United States v. Phillips, No. 18-11737 (11th Cir. 2021)
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The Eleventh Circuit affirmed defendant's convictions for crimes related to sexual misconduct with a minor. For two months, defendant, who was 33 years old, pretended to be a 17 or 18 year old girl as he communicated online with a 14 year old boy. Defendant sent sexually explicit videos of women to the boy and requested sexually explicit videos of him in return. Defendant was convicted for charges that he: (1) did knowingly and intentionally use, persuade, induce, and entice a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, in violation of 18 U.S.C. 2251(a) and (e); (2) did knowingly receive, and attempt to receive, material containing child pornography, in violation of 18 U.S.C. 2252A(a)(2) and (b)(1); and (3) did knowingly possess, and attempt to possess, material containing child pornography, in violation of 18 U.S.C. 2252A(a)(5)(B) and (b)(2).
The court concluded that neither section 2251(a) nor the indictment required the government to prove that defendant knew the victim's age in order to convict on Count I. Because the jury instruction was both a correct statement of the law and a correct statement of the charge, the district court did not constructively amend his indictment. However, the district court erred in convicting defendant of both possession and receipt of child pornography because a defendant cannot be punished twice for the same crime. Accordingly, the court affirmed defendant's conviction for Count I and II, vacated his conviction on Count III, and remanded for resentencing.
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