6th Circuit Clarifies Blockburger Test as Applied to CP

We are all familiar with the famous Blockburger test that two convictions for essentially the same conduct do not violate the Double Jeopardy clause as long as each requires proof of a fact that the other does not require. If conviction A requires proof of 1, 2, 3, 4, and 5, while conviction B requires proof of 2, 3, 4, 5, and 6, then convictions for A and B do not violate Double Jeopardy.

Today in United States v. Dudeck, the Sixth Circuit clarified how this test applies to child porn (“CP”) cases. While recognizing that possession of CP is a lesser included offense of receipt of CP (because one cannot receive CP without also possessing it), the court provided a roadmap to all of the loopholes in the double jeopardy clause in this context. The actual holding of the case was merely that as long as the defendant “was charged with receipt of any images for which he was not also charged with possession—and vice-versa—the two can be punished as separate offenses.” This much was already clear, if the defendant is charged with receipt of images 1-100 and possession of images 2-101, then both convictions can stand.

This would seem like enough to support multiple convictions in every case, since there will almost always be more than 1 image of CP found on the defendant’s computer. But the Sixth Circuit went farther, in what was arguably dicta, to point out all the loopholes that could technically save multiple convictions when the prosecutor did not have the foresight to carefully distribute the images among the charges as described above. Specifically, the court suggested that multiple convictions might not violate the double jeopardy clause if:

1) receipt and possession occurred on different dates;

2) after receiving the CP, the defendant then transferred it to a different medium (e.g. if the defendant downloaded the CP off the internet and then transferred it to a cd or a folder on his computer); or

3) there were images in the possession charge that were not also in the receipt charge (i.e. receipt of images 1-10 and possession of images 1-20).

The court then went out of its way to point out that even if 2 of the defendants 3 charges were dismissed on double jeopardy grounds (the case was remanded for further fact finding on this issue), there was nothing to stop the district court from imposing the same sentence (i.e. 1 sentence of 120 months instead of 3 concurrent sentences of 120 months). Of course, while the district court is free in any case to impose the same term of imprisonment, the defendant would save $200 in special assessment if two of the charges were found to violate the double jeopardy clause.