11th Circuit Denies Double Jeopardy Claim in Federal Child Porn Case

In United States v. Lee, the 11th Circuit Court of Appeals held that, despite the fact that the defendant had previously been prosecuted for the same conduct, the government was able to prosecute him a second time under a different statute.

Background and Procedural History

The defendant was allegedly communicating with a minor online and requested that the minor send him sexually explicit photos of herself. The case was then investigated by the FBI and the agent used the minor’s phone to communicate directly with the defendant. The defendant then asked the agent, believing it was the minor, to send him sexual photos and videos.

As a result, the defendant was charged under federal law with the offense of soliciting and advertising for child pornography (18 USC 2251(d)). The case went to trial and the defendant was convicted. However, the conviction was later overturned on appeal as a result of the 11th Circuit’s decision in United States v. Caniff.

The government then filed a second indictment against the defendant, charging him this time with the offense of enticing a minor to produce child pornography (18 USC 2251(a)). The defendant filed a motion to dismiss the indictment contending that this violated his double jeopardy rights. The district court denied the motion and the defendant filed an interlocutory appeal.

United States v. Caniff Decision

We previously reported about the decision in Caniff. In that case, the defendant was prosecuted and convicted under 18 USC 2251(d) for essentially the same type of conduct. The 11th Circuit reversed his conviction and found that this particular statute did not apply to private, person-to-person text messages.

The Court held that this particular subsection of the statute was intended only to prosecute those who solicited child pornography through some sort of public forum, requiring at least more than one person to be privy to the solicitation. The Court did emphasize that its ruling would not prevent the government from being able to prosecute individuals who solicit child pornography in private text conversations, but that it would have to do so using other federal statutes. That is exactly what the government did in the defendant’s case.

Ruling that Double Jeopardy did not Apply

The Court noted at the outset that the Fifth Amendment provides that no person “shall be subject for the same offense to be twice put in jeopardy of life or limb.” The issue for the Court was whether the subsequent indictment constituted a second prosecution for the same offense.

In making this determination, the Court applied the test outlined in the Supreme Court’s 1932 decision in Blockburger v. United States. In that case, the Supreme Court held that “where the same act or transaction constitutes a violation of two distinct statutory provisions, cumulative punishment may not be imposed unless each provision requires proof of an additional fact which the other does not.”

The Court then examined the statutory elements for each of the two offenses to determine whether this was, in fact, the case. Since one of the offenses required the making or publishing of a notice or advertisement and the other required the enticement or inducement of a minor, the Court found that the two offenses do require proof of different facts.

Therefore, the Court concluded that these statutes are not considered to be the same offense under the Blockburger test. The district court’s denial of the defendant’s motion to dismiss the indictment was affirmed and the case will be permitted to proceed to trial.