Sixth Circuit Rules Defendant Cannot Be Sentenced Twice for Possession and Receipt of Child Porn – U.S. v. Ehle

July 11, 2011 by David S. Seltzer

When I handle federal cases as a child pornography possession defense attorney, I sometimes have two competing charges to defend: knowingly possessing child pornography and knowingly receiving the same child pornography. As the Sixth U.S. Circuit Court of Appeals ruled recently in United States v. David Ehle, defendants cannot be sentenced for both: Because one offense includes the other, penalties for both would violate the constitutional prohibition of double jeopardy. Furthermore, the court found that Ehle’s choice to plead guilty and accept whatever penalties the Kentucky federal court imposed did not take away his right to challenge the ruling as double jeopardy.

Ehle was indicted for four charges, including the two at issue here. He made a plea agreement that read, in relevant part, that he “knowingly and voluntarily waives the right to contest or collaterally attack his conviction and the resulting sentence.” In the later hearing, however, the prosecutor in his case made clear that this waiver did not apply to any sentencing challenge he might bring. Ehle was sentenced to 20 years in prison on the charge of receiving child pornography and 10 years for the possession charge, to be served consecutively for a total of 30 years (on those two charges). He appealed on double jeopardy grounds.

The Sixth Circuit first dismissed the prosecutor’s claim that the appeal was barred, not by the waiver, but by Ehle’s intentional choice to plead guilty to both charges. The Sixth disagreed, saying the Supreme Court’s 1975 decision in Menna v. New York does not allow defendants to waive any claim based on unconstitutional prosecution. The Sixth then went on to consider whether Ehle’s conviction for both receipt and possession constitute double jeopardy. Under Supreme Court precedent, the court said, convictions on two charges can be double jeopardy only if each requires a proof of fact that the other does not. The two charges in Ehle’s case fail that test, the court said — in fact, the law says possession is a lesser included offense of receipt. Four other federal appeals courts, including the Eleventh, which covers Florida, have come to the same conclusion, the court noted. Thus, the Sixth sent Ehle’s case back to the district court, with orders to vacate on one charge and resentence on the other.

As a child porn possession defense lawyer, I’m pleased to see the Sixth Circuit join other federal appeals courts that have made similar decisions. As the court points out, it is logistically difficult to receive something without possessing it, even if only for a moment. That’s why possession is a lesser included offense of receipt. This decision does not necessarily go easy on Ehle and similar defendants. At best, his sentence will be cut down from 30 years in prison to 10, but the court is free to resentence him at a higher number within the guidelines for one of the crimes. Thus, he could still be in prison for 30 years. But as a cyber crime criminal defense attorney, I believe this is still better for my clients than rules that allow even longer sentences in violation of the right against double jeopardy.

Based in Miami, Seltzer Law, P.A. represents clients around the United States who are charged with serious crimes stemming from computers, technology and the Internet. That includes child pornography charges, solicitation of a minor and many more common online sex crimes. For a free, confidential evaluation of your case, send us an email or call 1-888-THE-DEFENSE (1-888-843-3333) today.


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