Eighth Circuit Overturns Conviction Because of Flawed Jury Instructions – U.S. v. Johnson Jr.

September 5, 2011 by David S. Seltzer

As a Miami-Dade child pornography defense lawyer, I have read decisions in the past that draw a fine line between the federal crime of possessing child pornography and that of receiving child pornography. Logically, a person cannot possess anything he or she has not received, so even though they are separate crimes, the defendant generally is convicted of only one. That was not the case in U.S. v. Johnson Jr., an Eighth U.S. Circuit Court of Appeals case in which the defendant challenged both his receipt conviction and the fact that he was convicted of both offenses. Randy Lee Johnson Jr. was sentenced to 135 months in prison (11 and one-quarter years) on convictions for both possessing and receiving the same prohibited images. Because the jury was erroneously instructed on the crimes, the Eighth Circuit sent it back to the district court for resentencing.

Johnson is a professional photographer who had an assistant helping him as he photographed a hockey game in Iowa in November 2008. The assistant, Dawn Gorelick, was downloading photos off camera memory cards onto Johnson’s laptop when she discovered child pornography among the photos. She found an off-duty police officer in the hockey arena and reported it. In a police interview at the arena, and after being Mirandized, Johnson told the police he had stumbled on child pornography while viewing adult pornography, but that he saves everything. Later investigation found 190 images believed to be child pornography, which Johnson said he had downloaded from the Internet. This was videotaped. However, at trial, Johnson recanted that confession, saying it was obtained under extreme stress and fear, and had no idea how the child pornography got onto his computer. He was convicted on both counts anyway.

On appeal, Johnson’s main argument was that there was insufficient evidence for his conviction for receiving child pornography, because of allegedly erroneous instructions given to the jury about federal jurisdiction. For federal jurisdiction to apply, the child pornography must have been shipped in interstate or foreign commerce or contained materials shipped in interstate or foreign commerce. Johnson denied this at trial and the government’s computer expert could not confirm it. Despite this, the jury was erroneously instructed to consider only whether the materials of the child pornography were shipped in interstate commerce — that is, the instructions left out the possibility that the pornography itself could have been shipped over state or international lines. And there was no evidence presented at trial that the components of Johnson’s computer were shipped over state lines. Under the Eighth Circuit’s own 2009 decision in U.S. v. Inman, a conviction from flawed jury instructions can still be upheld if a rational jury could still have found the defendant guilty. In this case, the Eight found that was not necessarily true; whether the child pornography came from interstate commerce was disputed at trial. Thus, it vacated the conviction for receiving child pornography and sent the possession conviction back for resentencing. Judge Smith dissented, arguing that the evidence for federal jurisdiction was overwhelming.

This decision applies to cases in the Eighth Circuit, to which Florida does not belong, so it does not apply directly to my work as a Fort Lauderdale child pornography criminal defense attorney. But because federal circuit courts usually follow one another, this decision may hold some influence with the Eleventh Circuit if a similar case arises there. Any given child pornography case may be a state case or a federal case, and the issue in Johnson’s prosecution is the main issue: whether the child pornography provably traveled over state or national borders. When it did not, it should be a state case. While the best outcome of all is having the prosecution dropped, defendants often prefer to be prosecuted at the state level because federal child pornography convictions carry harsh mandatory minimum sentences and judges have little flexibility to ignore them. This is just one of the tools I use as a south Florida cyber crime criminal defense lawyer to get clients the best possible outcome.

If you’re charged with any child pornography crime, don’t hesitate to call the cyber crime experts at Seltzer Law, P.A. for help. Based in Miami, we represent defendants throughout the U.S. who are accused of serious online crimes. For a free, confidential evaluation of your case, send us an email or call 1-888-THE-DEFENSE (1-888-843-3333).

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