In United States v. Halliday, 672 F.3d 462 (7th Cir. 2012), the Seventh Circuit addressed whether possession of child pornography is a lesser-included offense of receipt and remanded the sentence because the sentencing judge considered an improper fact.
Law enforcement downloaded child pornography from the defendant's computer using Limewire, and search of defendant's computer revealed 15 videos which had been downloaded on 8 dates. He was convicted on two counts of receipt and one count of possession - the receipt charges for the first and last download date and possession for the intervening time.
On appeal, Halliday argued that the separate convictions for receipt and possession violated double jeopardy because possession is a lesser-included offense. The court discussed circuit precedent which held that receipt and possession do not violate double jeopardy, but suggested that "the reasoning of these cases is now in question, both because of our more recent views of the scienter requirement in possession cases, and because of how our sister circuits have viewed possession and receipt in the child pornography context." However, there was no need to make such a decision here as "where separate images form the bases for separate receipt and possession counts, there can be no double jeopardy violation." The court did issue a note for attorneys in future cases:
While we do not today overturn Myers, Malik, or Watzman, we note that in future cases, the government would be wise to clearly indicate in the indictment which images are included in each count of the indictment. Additionally, where both receipt and possession are charged, we would also think it wise for the court to instruct the jury that any images and videos relied on for a receipt count cannot form the basis of a conviction for a possession count. The absence of such an instruction in this case, however, does not alter our analysis.
Halliday also argued that the sentencing judge relied on an improper fact at sentencing. The judge suggested that the defendant thought the crime was victimless and not criminal, but the defendant never asserted either idea. Thus, this speculation may have improperly influenced the sentence, and the sentence was vacated and remanded.