White Collar Crime News

Possession of child pornography is a lesser included offense of receipt of child pornography February 14, 2010

While it may seem like common sense, the Government actually tried to argue that possessing child pornography is not a lesser-included offense of receiving child pornography. Luckily, the Third Circuit in U.S. v. Miller (2008) saw otherwise.

In Miller, the defendant argued that possessing child pornography is a lesser-included offense of receiving child pornography, and thus that § 2252A(a)(2) (prohibiting receipt) and § 2252A(a)(5)(B) (prohibiting possession) “proscribe the same offense.” The Court stated that for the purpose of double jeopardy analysis, two offenses are the same if one is a lesser-included offense of the other under the “same elements” (or Blockburger) test. This test “inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ . . . .” United States v. Dixon, 509 U.S. 688, 696 (opinion of the court) (internal quotation omitted); see also Blockburger v. United States, 284 U.S. 299, 304 (1932) (“[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”).

The Court found that, as a general matter, possession of a contraband item is a lesser-included offense of receipt of the item. See Ball v. United States, 470 U.S. 856 (1985). In Ball, a felon convicted of possessing a firearm in violation of 18 U.S.C. § 922(h) (since revised) was also convicted of receiving that firearm in violation of 18 U.S.C. App. § 1202(a) (since repealed). Applying the same elements

test, the Supreme Court concluded, in Ball, that “[w]hen received, a firearm is necessarily possessed. In other words, Congress seems clearly to have recognized that a felon who receives a firearm must also possess it, and thus had no intention of subjecting that person to two convictions for the same criminal act.” Id. at 862 (internal quotation omitted).

Drawing on Ball, the Ninth Circuit, in United States v. Kuchinski, 469 F.3d 853, 859 (9th Cir. 2006), in which the defendant was indicted both under § 2252A(a)(2) and under § 2252A(a)(5)(B), observed, in dicta, that “[i]f, as it seems, the counts were based on the same acts, entering judgment on both the offenses would be improper.” See also United States v. Morgan, 435 F.3d 660, 662-63 (6th Cir. 2005) (noting that a defendant charged under § 2252A(a)(2), who pled guilty to violating § 2252A(a)(5)(B), had pled to “a lesser-included offense of the charged violation”); United States v. Mohrbacher, 182 F.3d 1041, 1048-49 (9th Cir. 1999) (consulting dictionary definitions of “receive” after concluding that “there is no indication that Congress intended a specific legal meaning for the term”). The observation of these courts that possession of child pornography is a lesser-included offense of receipt of child pornography, though offered in dicta, appears to be correct under Ball. See also United States v. Kamen, 491 F. Supp. 2D 142 (D. Mass. 2007) (holding that possessing videotapes depicting “a minor engaging in sexually explicit conduct,” in violation of § 2252(a)(4)(B) is a lesser-included offense of receiving the same videotapes in violation of § 2252(a)(2)).

As a result, the Court concluded that pursuant to Ball, possession of child pornography in violation of § 2252A(a)(5)(B) is a lesser included offense of receipt of child pornography in violation of § 2252A(a)(2).