Double jeopardy examined in CP case by 6th Circuit

In United States v. Hutchinson, the Sixth Circuit vacated a conviction for possession of child pornography and remanded a conviction for receipt of child pornography due to double jeopardy considerations. 448 Fed. Appx. 599  (6th Cir. 2012). The defendant had pled guilty, but argued on appeal that the conviction violated the constitution.

The first conflict raised by the defendant was that convictions of Count Two (receipt and distribution of child pornography) and Count Three (possession of child pornography) violated double jeopardy. The court held that "conviction under both statutes is permissible if separate conduct is found to underlie the two offenses." In this case, the conduct for Count Two was that defendant possessed the computer containing child pornography, and the images were shipped through interstate commerce. The facts for Count Three were that defendant received and distributed child pornography through interstate commerce. Because both counts were based on the same conduct, the possession charge was a lesser-included offense, offended double jeopardy, and was vacated.

The defendant also argued a double jeopardy violation with Count One (receipt and distribution of visual depictions of minors engaged in sexually explicit conduct) and Count Two. The Sixth Circuit found that the record did not contain enough information, but "if the same images of 'real' child pornography formed the basis of both Counts One and Two," Count One would be a lesser-included offense. Both counts may cover real images, but only Count Two may cover virtual images. Thus, the issue was remanded.