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In Order to Receive Child Porn, One Must Also Possess It

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By William Peacock, Esq. on April 03, 2013 10:01 AM

The police in Tulsa, Oklahoma got a phone call from a lady who had stumbled upon child pornography on her live-in boyfriend's computer.

The investigating officer showed up, the lady and her friend escorted him to the home office, and played back the video. After about ten seconds, the officer called the cybercrimes unit, and was instructed to seize the computer after obtaining witness statements from the lady and the friend.

The Search

Joseph Benoit, the owner of the child porn, contends that the evidence should have been suppressed due to a Fourth Amendment violation.

There are two problems with his argument. First, the Fourth Amendment doesn't apply to private parties. His girlfriend and her buddy were the ones who searched the computer. The only time it applies to private parties is when the officer directs the private party's conduct.

Here, the officer showed up and watched what was provided. He gave absolutely no instructions or guidance, nor did he take any action, until he observed what he was certain was child pornography.

Double Jeopardy & Lesser Included Offenses

Benoit also argued multiplicity, or to put it differently, that his convictions for receipt and for possession amounted to punishment for the same conduct.

In these types of Double Jeopardy cases, the Blockburger test applies: if "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 two crimes, § 2252(a)(2) (possession) and (a)(4) (receipt), are nearly identical. And one has to ask, is it possible to knowingly receive without simultaneously knowingly possessing? The Supreme Court said no in Ball, a gun possession case. Other circuit courts, including the Sixth, Eleventh, Third, and Ninth, have used the same logic in regards to child porn.

And the Tenth? They join their sister circuits in holding that possession is a lesser-included offense of receipt.

Separate Acts?

That doesn't end the inquiry, however. Even in circuits that have joined the lesser-included logic, defendants have been convicted of receipt and possession. The question is, with a number of files, was he convicted of receiving some, and possessing others? If so, the multiple counts punish different behavior regarding different pornography.

Alas, it was not so here. Both counts of the indictment referred to the pornography collection as a whole - not as two separate collections. In the prosecutor's opening and closing, he referred to the collections as one whole ("the first count is receiving ... Count 2 is possessing that same child pornography that was downloaded and is possessed ...").

For prosecutors, that means in future cases, the route to the maximum punishment is to find a logical way to divide the entirety of the collection into multiple sub-bodies, such as filed downloaded on one day, and files downloaded on another, and maintain that division throughout the indictment and trial.

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