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10th Circuit: Child Porn Stored on Multiple Devices Constitutes One Count of Possession Under 18 U.S.C. § 2252A(a)(5)(B)

by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit held that child pornography stored on multiple devices at the same location and at the same time is only one count of possession under 18 U.S.C. § 2252A(a)(5)(B).

Samuel Elliott had over 8,000 images of child pornography, including videos of him sexually assaulting three different children, stored on an iPhone, a digital hard drive, a desktop computer, and Dropbox storage account. Elliott pleaded guilty to four counts of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B) and three counts of producing child pornography under 18 U.S.C. § 2251(a), reserving his right to appeal the possession counts as being multiplicitous. The district court imposed a sentence of 30 years on each of the three production counts and 20 years on each of the possession counts, all running consecutively for a total of 170 years’ imprisonment.

On appeal, the Tenth Circuit observed, “The Double Jeopardy Clause “protects a defendant against cumulative punishments for convictions on the same offense.” United States v. Benoit, 713 F.3d 1 (10th Cir. 2013). Included in double jeopardy protections are multiple punishments for the same offense based on the total punishment authorized by the legislature. United States v. Jackson, 736 F.3d 953 (10th Cir. 2013). If the same statutory violation is charged twice, the question is whether the facts underlying each count were intended by Congress to constitute separate “units of prosecution.” United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009).

A “unit of prosecution” is “the minimum amount of activity a defendant must undertake, what he must do, to commit each new and independent violation of a criminal statute.” United States v. Rents, 777 F.3d 1105 (10th Cir. 2015). The U.S. Supreme Court explained that determining the unit of prosecution is a matter of statutory interpretation, and if after employing the usual tools of statutory interpretation the Court is left with a “grievous ambiguity or uncertainty” concerning the statute, the Court employs the rule of lenity. Muscarello v. United States, 524 U.S. 125 (1998). (Note: The rule of lenity means all doubts or uncertainties about a criminal statute are resolved in favor of the defendant.)

Relevant portions of § 2252A(a)(5)(B) provide: “Any person who ... knowingly possesses ... any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography” shall be subject to the criminal penalties in question. Because the statute contains the word “any,” the Tenth Circuit concluded the statute is ambiguous, and the rule of lenity applies.

The Court reached this conclusion based on the following reasoning. In Bell v. United States, 349 U.S. 81 (1955), the Supreme Court considered the Mann Act, which applies to the knowing transportation of “any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose.” The Supreme Court held that the statute could be reasonably read to provide a unit of prosecution based on the number of transports or based on the number of women, and “the ambiguity should be resolved in favor of lenity.” And in Ladner v. United States, 358 U.S. 169 (1958), the Supreme Court applied the rule of lenity to a statute that criminalizes interference with “any person” engaged in federal duties. The Supreme Court stated, “If Congress desires to create multiple offenses from a single act affecting more than one federal officer, Congress can make that meaning clear.”

Similarly, the word “any” in § 2252A allows the conclusion that only one offense occurs if the defendant possessed a book and a magazine containing child pornography, but the statute can also be reasonably interpreted to mean that two separate offenses occurred for possession of the same material because the word “any” is “used to refer to an unspecified number or quantity of a thing or things, no matter how much or how many.” Oxford English Dictionary (3d ed. 2016). The Tenth Circuit, having concluded the statute is ambiguous and that the rule of lenity applies, ruled that the possession counts are multiplicitous.

Accordingly, the Court remanded to the district court with instructions to vacate the convictions and sentences on all but one of Elliott’s child pornography possession convictions. See: United States v. Elliott, 937 F.3d 1310 (10th Cir. 2019).

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