Eighth Circuit Rules Child Porn Defendant Waived Double Jeopardy Claim When He Pleaded Guilty – U.S. v. Dolehide

December 12, 2011 by David S. Seltzer

Last summer, I blogged from my perspective as a child pornography possession defense attorney about double jeopardy. In a Sixth Circuit case, the court found a defendant could not be convicted of both possessing and receiving the same child pornography, because one offense necessarily includes the other. In that case, the court also found that the defendant cannot have waived his right to challenge the ruling by pleading guilty. That case turns out to contrast with a more recent Eighth U.S. Circuit Court of Appeals case, U.S. v. Dolehide. John Dolehide of Iowa pleaded guilty to two counts of child pornography possession, then appealed the sentence on double jeopardy grounds. The Eighth Circuit found the claim waived because it was never raised at trial.

Law enforcement identified Dolehide through his use of the file-sharing service Limewire to trade child pornography. He was ultimately charged with and pleaded guilty to two counts of possession of child pornography. After his presentencing report, Dolehide moved for a downward variance, based on factors other than double jeopardy. Rather, he argued that he had mitigating mental health problems including ADHD and Asperger’s syndrome, and would likely become a victim in the prison system. In a lengthy order, the court denied his request for a downward variance and granted the prosecution’s request for an upward variance based on evidence that Dolehide offered the pornography in expectation of a “thing of value” — other child porn. He was ultimately sentenced to 135 months in prison, and now appeals.

On appeal, Dolehide argued first that his conviction for two separate counts of child porn possession violates the Double Jeopardy Clause. The Eighth Circuit declined to consider this argument, saying it was waived because Dolehide never brought it up in lower court. The court also cited its own recent case in United States v. Stock, decided Nov. 11, in which it reasoned that Stock admitted to committing two separate crimes when he pleaded guilty to both counts. Dolehide also appealed his sentence enhancement for expectation of “a thing of value.” The commentary to the sentence enhancement expressly considers trading for more child porn a “thing of value,” the court said, and that using a file-sharing system to upload and download is evidence of expectation of a trade. Furthermore, it said, evidence shows Dolehide is too familiar with computers to claim ignorance of how file-sharing works. Thus, it affirmed the district court.

As a cyber crime criminal defense lawyer, I am very familiar with the legal principle that arguments not brought up at trial are waived on appeal. By making sure each avenue of defense is covered at trial, an experienced attorney can set clients up for a successful appeal, if necessary. As for the sentence enhancement, it appears to be written directly into the law that courts may presume defendants expect something of value from using file-sharing software to both upload and download files. You may be able to fight this with the right facts, which is why defendants facing serious criminal charges like child pornography should always get the help of an experienced child pornography criminal defense attorney. Even if you have a strong case, courts may penalize you for failing to meet statutory requirements.

Seltzer Law, P.A., represents clients around the United States who are facing serious charges of online or “cyber” crimes. For a free, confidential case evaluation, send us an email or call us anytime — 24 hours a day and seven days a week — at 1-888-THE-DEFENSE (1-888-843-3333).

Similar blog posts:

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

Man Faces Federal Trial on Child Porn Charges Despite Conviction on State Charges

Fourth Circuit Rules Sentence Enhancement Proper for Child Porn Defendant With Prior Battery – U.S. v. Spence