Double Jeopardy: Maybe, Maybe Not
Earlier this year, the Sixth Circuit held in United States v. Ehle, 640 F.3d 689 (6th Cir. 2011), that possession of child pornography is a lesser included offense of receipt of child pornography, and, thus, one could not be sentenced for both without violating the Double Jeopardy Clause. Last week, however, the Court cautioned in United States v. Dudeck, -- F.3d --, 2011 WL 3179902 (6th Cir. 2011), that, while the ruling in Ehle is correct, its application may also depend on the facts of each case. Judges Keith, McKeague and Kethledge remanded the case for the district court to determine whether the possession conviction was based on the same images as the receipt conviction. If so, then Double Jeopardy required the possession conviction be set aside. But if the receipt conviction was based on different images than the possession conviction, then both convictions could still stand. Structure your plea agreements accordingly!