United States v. Johnston, No. 13-10097 (9th Cir. 2015)
Annotate this CaseDefendant was convicted of possession and receipt of child pornography, as well as conspiracy to produce child pornography and to travel internationally to engage in illicit sex. The court reiterated, in light of United States v. Davenport and other circuit precedent, that the offense of possession of child pornography is a lesser included offense of receipt of child pornography. Under the Double Jeopardy Clause, it is constitutional error to enter a conviction against a defendant for both receipt and possession of child pornography for the same conduct. In this case, defendant's conviction for possession of child pornography must be vacated. The court concluded that sufficient evidence supported the jury's verdict; the search of defendant's computer did not exceed the scope of the search warrant; and the district court's comments at sentencing do not constitute procedural or constitutional error. Accordingly, the court affirmed the convictions for receipt of child pornography and conspiracy to produce pornography and to travel internationally to engage in illicit sex. The court remanded with instructions for the district court to vacate the conviction for possession of child pornography.
Court Description: Criminal Law. The panel affirmed convictions for receipt of child pornography and conspiracy to produce child pornography and to travel internationally to engage in illicit sex, but vacated the judgment and remanded with instructions that the district court vacate the defendant’s conviction for possession of child pornography. The panel reiterated that the offense of possession of child pornography is a lesser included offense of receipt of child pornography, and that under the Double Jeopardy Clause of the Fifth Amendment, it is constitutional error to enter a conviction against a defendant for both receipt and possession of child pornography for the same conduct. The panel held that in this case the record does not allow the conclusion that the convictions for receipt and possession were based on separate conduct. The panel held that a reasonable jury could have found beyond a reasonable doubt each element of conspiracy to produce child pornography under 18 U.S.C. § 2251, and that the search of the defendant’s computer did not exceed the scope of the search warrant. The panel rejected the defendant’s contention that the district court erred at sentencing by referencing facts that were stripped from the draft presentence report and by UNITED STATES V. JOHNSTON 3 admonishing him for failing to apologize for his actions, where the district court (1) clarified that the sentence was based solely on facts that were proven to the jury and undisputed sections of the presentence report and (2) explicitly recognized that remaining silent was the defendant’s right.
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