Conviction for Both Receipt and Possession of Child Pornography Was Not Prejudicial – U.S. v. Teague
One of the problems with the child pornography sentencing guidelines is the unnecessary multiplicity of ways to penalize the same conduct. As the Sentencing Commission noted, prosecutors have some discretion to bring charges for receipt of child pornography or possession, because possession is a lesser included offense of receipt and has a lower sentencing range. But sometimes, prosecutors bring both charges and the court doesn’t adequately sort it out, leading to a potential double jeopardy problem for the defendant. That was the claim in U.S. v. Teague, an appeal by Danny Teague of California. The Ninth U.S. Circuit Court of Appeals ultimately ruled that while the district court made a mistake, the error didn’t affect Teague’s rights.
Detectives found Teague downloading child porn on LimeWire. A search warrant turned up child pornography on his laptop, and also a briefcase full of CDs with child porn on them. The laptop files on Teague’s hard drive included 20 images and 11 movies downloaded in 2005. The CD files included 760 images of child porn saved to the CDs in 2002 and 2003. He was charged with receipt or distribution of child porn, and possession of child pornography. His indictment included both the computer files and the CDs in the possession charge. He was ultimately convicted by a jury and sentenced to 230 months in prison on the receipt charge and 120 months on the possession charge, running concurrently.
On appeal, Teague argued that he is being penalized twice for the same conduct because possession is a lesser included offense of receipt. The Ninth Circuit started by noting that the receipt charge was clearly based on the files found on Teague’s computer. Thus, in order for his appeal to stand, the court said, the possession charge also needs to be based on them. It’s not clear that the jury convicted Teague of possession for both the CDs and the computer files, the court said; the jury was not instructed on the double jeopardy issue. Thus, it is possible “in theory” that the jury could have convicted on both counts based solely on the computer files, the court said, giving rise to a double jeopardy problem. Thus, it agreed that the district court erred. But the error didn’t affect Teague’s substantial rights, the court said, because there’s no reasonable probability that the jury wouldn’t have convicted him if properly instructed. The overwhelming evidence shows that Teague possessed both types of file, the court said, and thus the error was not prejudicial.
This case shows how important the prosecution’s choice of charges can be. Because possession is a lesser included charge of receipt—you cannot receive a thing without possessing it—prosecutors could have charged him with just possession and still adequately described the conduct Teague was charged with. This would have carried the lower 120-month sentence—which is still 10 years in prison—without exposing him to the much higher 230-month receipt sentence. The Sentencing Commission report said whether prosecutors bring receipt charges often depends on the circumstances, and this creates a disparity between defendants charged with similar cyber crimes. As a defense attorney, I agree with the Commission that this is not desirable, and hope Congress has the courage to address it.
If you’re facing serious child pornography charges or other cyber crime charges, don’t wait to call Seltzer Law, P.A. for a free, confidential consultation. You can reach us through our website or call 1-888-THE-DEFENSE.
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