Sunday, June 07, 2015

Case o' The Week: Meeting of Minds in Different Times? Johnson and Conspiracy to Produce Child Pornography

“Everyone loves a conspiracy.” Dan Brown, The Da Vinci Code.
Everyone, that is, except James E. Johnston. United States v. Johnson, 2015 WL 3372538 (9th Cir. May 26, 2015), decision available here.

Players: Decision by Judge McKeown, joined by Judges Murguia and Friedland.

Facts: After learning Johnson had applied for membership in a child porn website, agents obtained and executed a search warrant. Id. at *1. They discovered child porn and, in later searches, chats between Johnson and (apparently) an adult prostitute located overseas. Id. at *4. Johnson asked this prostitute, “Switlass,” to obtain child pornography for him; she agreed if he sent her $350 to purchase a digicam to take pictures of minor females. Id. Johnson told Switlass she was his “partner.” Id. A few days after Johnson sent the money, Switlass sent Johnson emails and a CD with child porn images. Id. at *2. At the later trial for conspiracy to produce child pornography, the defense introduced evidence that some of the images he received from Switlass were produced months before their chats (and thus could not have been produced after their agreement). Id. at *4. Johnson was convicted and sentenced to 293 months. Id. at *2.

Issue(s): “According to Johnson, there was only a ‘one-way’ agreement; because Switlass and he had never had a shared criminal intent, there was never a ‘meeting of the minds’ required to support a conspiracy conviction.” Id. at *4.

Held:Although Johnson’s version of events is not entirely implausible, the jury was entitled to reject it . . . Even if the evidence regarding the production date of the photographs was iron clad (which it was not), a ‘rational fact-finder’ could have concluded beyond a reasonable doubt that the chat records nonetheless demonstrated the existence of an agreement between Johnson and Switlass to produce child pornography.” Id. at *5 (citing Jackson, 443 U.S. at 324).

Of Note: Johnson was charged with conspiring to produce child pornography in violation of 18 USC § 2251. Id. at *4. There was no shortage of evidence that he intended to conspire with “Switlass” to produce child porn (regrettably calling her “partner” just to make his intent clear.). Id. The foreign prostitute “Switlass,” however, appears to have had a very different intent – her intent was to con Johnson (and she succeeded). Johnson sent her money to buy a camera and produce child porn, but Switlass sent pictures with creation dates that predated their chats. 

As the Court notes in a footnote, “If two defendants act in concert to achieve a different goal, the government has not shown a meeting of the minds as to a common scheme or plan.” Id at *4 & n.1 (quoting United States v. Lorenzo, 994 F.2d 1448, 1459 (9th Cir. 1993)). Johnson’s dicta that the conspiracy count would stand, even if all of the evidence was “iron clad” that the picture dates all preceded the chats, seems hard to reconcile with horn book conspiracy law in footnote one.

Johnson is a troubling conspiracy decision that should be carefully limited to its facts: there was not iron clad evidence that all pictures predated the chats, so the jury could have rationally found Switlass agreed with Johnson to produce child pornography.

How to Use: The aforementioned Footnote One at least shuts down one conspiracy misunderstanding in Johnson. On appeal, the government argued that Switlass’s intent was irrelevant, as long as Johnson honestly believed he was entering into a conspiracy. Id. at *4 & n. 1. Not so, explains Judge McKeown, “[t]he essence of a conspiracy is a meeting of the minds.” Id. Use footnote one, and its favorable quotation of Lorenzo, to stave off the government’s one-sided conspiracy theories.
For Further Reading: The government’s abuse of conspiracy law is the focus of reform efforts. For a very good collection of resources on modern conspiracy law, visit NACDL’s collection here. 

  Once there, check out Steven R. Morrison, The System of Modern Criminal Conspiracy, 63 Cath. U. L. Rev. 371 (2014), on how we’ve now strayed from our 600 year old roots in modern conspiracy law.

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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