Defendant May Not Be Convicted for Both Receipt and Possession, Eighth Circuit Rules – U.S. v. Huether
In child pornography cases, appeals usually focus on sentences rather than whether the crime was proven. In my opinion as a child pornography criminal defense attorney, that’s at least in part because sentences in child porn cases are very high (even unreasonably high), but proof is not usually an issue. I’ve written here several times about the legality of sentencing a defendant for receipt and possession of the same materials, which is generally not permitted by appeals courts because one is a lesser included offense of the other, making it illegal double jeopardy to penalize the defendant for both. That was one of the decisions made by the Eighth U.S. Circuit Court of Appeals in United States v. Huether. The court upheld the evidence used to convict Ray Leon Huether of North Dakota, but sent the case back to trial court to vacate one of Huether’s convictions for possession or receipt.
Huether came to the attention of authorities when his former girlfriend, identified as CT, told the Minot police he had sexually abused her daughter. Huether had moved to Fargo, but maintained a residence in Minot, where the Minot police found substantial amounts of child pornography. Officers then searched his residence in Fargo, waking him at 7:45 a.m. and obtaining his consent to the search. One officer asked Huether to answer some questions but said he was free to leave; Huether answered for about two hours, some of which was taped. He was not read his Miranda rights, but at the end of the interview and search, he was arrested. He was ultimately indicted in federal court on charges of receipt of child pornography and possession of child pornography. Huether unsuccessfully challenged the statements he made to the officers, but was convicted on both counts and sentenced to a total of 30 years in prison. (That sentence was to run consecutively with a state-court sentence of 30 years for gross sexual imposition.)
On appeal, Huether made two main claims: The district court should not have allowed evidence obtained from his non-Mirandized interview with police; and convictions for both receipt and possession violate the Fifth Amendment right to be free of double jeopardy. The Eighth Circuit disagreed with the first assertion, but found merit in the second. Miranda warnings are required when a suspect is in custody, and the Eighth found that Huether was not officially or constructively in custody when he gave his interview in Fargo. Huether was advised he could leave at least twice during the interview, he answered voluntarily and the police did not dominate or strong-arm him. On the double jeopardy issue, however, the court found that it’s undisputed that possession is a lesser included offense of receipt. If prosecutors charge both, the jury must be told that it can only convict on one, the Eighth said — particularly when, as here, there’s nothing explaining which charges pertain to which images. Thus, the court remanded the case to trial court to vacate one of the two sentences.
As a cyber crime criminal defense lawyer, I’ve seen at least two other recent decisions involving double jeopardy for a defendant charged with both receipt and possession of child pornography. As the Eighth Circuit notes, possession must be included in the offense of receipt; after all, you can’t receive something without then possessing it. The court also noted that in this case, the mistake substantially affects Huether’s rights, since he was servng a total of 60 years between the state and federal convictions. Vacating one conviction will take 10 to 20 years off that total, which is a substantial change, but still makes it possible that Huether will die in prison. As a child pornography criminal defense attorney, I commonly see sentences this long, because of the highly politicized nature of child porn cases.
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