United States v. McCullars, No. 15-2447 (7th Cir. 2017)Annotate this Case
For nearly a decade, Gries and McCullars actively participated in a private online chat room frequented by pedophiles sharing large volumes of child pornography. They were indicted for conspiracy to distribute child pornography, conspiracy to sexually exploit a child, and engaging in a child-exploitation enterprise. Other users of the chat room cooperated with investigators, pleaded guilty, and received sentencing consideration. The charges against Gries and McCullars proceeded to trial; several cooperators testified against them. To convict Gries and McCullars of the enterprise offense, the government had to prove that they committed three or more crimes against children “in concert” with three or more persons, 18 U.S.C. 2252A(g)(2). The jury found them guilty on all charges. The Seventh Circuit reversed. While the jury’s special verdict was sufficient to support the section 2252A(g)(2) enterprise convictions without the conspiracy predicates, at sentencing the parties and the judge overlooked that the conspiracy counts are lesser-included offenses of the enterprise count. Instead of merging those convictions with the enterprise conviction and imposing sentence on the greater offense alone, the judge imposed concurrent sentences on all three convictions. That error violates the Double Jeopardy Clause.