United States v. Morrissey, No. 17-2157 (8th Cir. 2018)
Annotate this CaseThe Eighth Circuit affirmed defendant's conviction for one count of receipt of child pornography, but remanded with instructions to vacate the lesser-included possession conviction because the district court failed to instruct the jury that it could not convict defendant for both receipt and possession based on the same facts. The court held that the evidence was sufficient to support the receipt of child pornography conviction; any objection to venue was waived; there was no constructive amendment to the indictment nor a material variance from the indictment; even if the district court plainly erred by admitting a spreadsheet listing suspected files of child pornography, which was inadmissible hearsay in violation of the Confrontation Clause, the error did not affect defendant's substantial rights and reversal was not required; and defendant's claim of prosecutorial misconduct was rejected.
Court Description: Shepherd, Author, with Smith, Chief Judge, and Melloy, Circuit Judge] Criminal case - Criminal law. The district court erred in failing to instruct the jury that it could not convict defendant for both possession and receipt of child pornography based on the same facts, as convicting a defendant for both possession and receipt based on the same conduct violates the Double Jeopardy Clause; remanded to the district court with direction to vacate the conviction and sentence for the lesser-included possession offense; evidence was sufficient to support defendant's conviction for receipt of the materials; any objection to venue was waived; argument the government constructively amended the indictment rejected as neither the dates of the offense nor the venue listed in the indictment is an essential element of the offense; evidence at trial did not constitute a material variance from the charge listed in the indictment; while the court erred in admitting a government exhibit listing suspected files of child pornography because it indicated that the National Center for Missing and Exploited Children had confirmed the files as child pornography, thereby making the exhibit inadmissible hearsay in violation of the Confrontation Clause; even if the court's error was plain, it did not affect defendant's substantial rights and reversal was not required as there was ample evidence, apart from the spreadsheet, that the images were child pornography; claimed prosecutorial misconduct during closing argument did not warrant reversal.
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