United States v. Emly, No. 13-1882 (8th Cir. 2014)
Annotate this CaseDefendant appealed his conviction of one count of receipt of materials involving the sexual exploitation of children in violation of 18 U.S.C. 2252(a)(2) and three counts of possession of materials involving the sexual exploitation of children in violation of 18 U.S.C. 2252(a)(4)(B). The court concluded that the three possessions counts listed in the indictment were multiplicitous because they charged the same crime; because defendant received concurrent sentences on all of his convictions, a remand with directions that the convictions on two of the three possession counts be vacated rendered a new trial unnecessary; the court rejected defendant's argument that the jury erred in convicting him on the receipt count because it returned a guilty verdict on both the receipt offense; even assuming that the jury's verdict was ambiguous, the district court took remedial measures by polling the jury and it eliminated any threat of double counting by entering judgment of conviction only on the greater receipt offense; and jury Instruction No. 9 did not constructively amend the indictment because it fairly captured the production element of the crime. Accordingly, the court affirmed in part, vacated in part, and remanded.
Court Description: Criminal case - Criminal law. Defendant's actions in copying child pornography images onto three different devices did not permit the government to charge him with three separate counts of possession under 18 U.S.C. Sec. 2252(a)(4)(B) and the three counts were multiplicitous; however, the multiplicitous counts of possession did not taint the jury's deliberations where the jury was given instructions to consider each charge separately and where the evidence of defendant's guilt was strong; the proper remedy, in light of defendant's concurrent sentences, is to direct the district court to vacate the convictions on the multiplicitous counts, and a new trial is not required; guilty verdicts on both receipt and the lesser included offense of possession are not plainly inconsistent or ambiguous verdicts; further, the court eliminated any possibility of ambiguity by polling the jury and avoided any threat of double counting by entering judgment only on the greater offense of receipt of child pornography; jury instruction on receipt did not constructively amend the indictment.
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