Tuesday, November 27, 2018

US v. Chilaca, No. 17-10296 (11-26-18)(Rosenthal w/Hawkins & Hurwitz).

The 9th reversed in part convictions for possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The panel held that, under § 2254(a)(4)(B), which makes it a crime to knowingly possess “1 or more” matters containing any visual depiction of child pornography, simultaneous possession of different matters containing offending images at a single time and place constitutes a single violation. Counts charging possession of child-pornography images on separate media found at the same time and in the same place were multiplicitous and constituted double jeopardy. The error was not harmless, but because the record clearly shows that evidence presented at trial would have been the same regardless of the number of counts charged, no new trial is warranted. The panel remanded with instructions to vacate three of the multiplicitous counts of convictions and to resentence the defendant on the remaining count.
The decision is here:



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