United States District Court, D. Montana, Missoula Division
DONALD W. MOLLOY, District Judge.
Defendant Joshua Petersen was charged in a Third Superseding Indictment of Count 1, Child Exploitation Enterprise, in violation of 18 U.S.C. § 2252A(g), and Count 2, Conspiracy to Advertise Child Pornography, in violation of 18 U.S.C. § 2251(d) & (e). After a two-day bench trial, he was found guilty of both Counts. Now before the Court is the question of whether the Double Jeopardy Clause prohibits entering judgment against Defendant on both Counts as well as Defendant's objections to the presentence investigation report.
I. Double Jeopardy
The child exploitation enterprise provision charged in Count 1, 18 U.S.C. § 2252A(g), provides:
A person engages in a child exploitation enterprise for the purposes of this section if the person violates... chapter 110... as a part of a series of felony violations constituting three or more separate incidents and involving more than one victim, and commits those offenses in concert with three or more other persons.
The predicate offenses under chapter 110 include distribution/receipt of child pornography under 18 U.S.C. § 2252(a)(2), access with intent to view/possession of child pornography under 18 U.S.C. § 2252(a)(4)(B), and advertising child pornography under 18 U.S.C. § 2251(d), among numerous other child exploitation crimes. To act "in concert with three or more other persons" means the same as to engage in a conspiracy with three or more other persons. See United States v. Daniels, 653 F.3d 399, 413 (6th Cir. 2011).
The conspiracy to advertise child pornography provision charged in Count 2, 18 U.S.C. § 2251(d) & (e), provides:
Any person who, [through interstate commerce], knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering... to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct... shall be punished.
Anyone who violates, attempts or conspires, to violate [section 2251] shall be punished.
The Third Superseding Indictment charged Defendant with child exploitation enterprise with predicate offenses of distribution/receipt under § 2252(a)(2) and accessing with intent to view under § 2252(a)(4)(B); the Indictment does not include advertising under § 2251(d) as a predicate offense for purposes of Count 1. ( See Indictment, Doc. 477 ("[Defendant] did knowingly and willfully engage in a child exploitation enterprise, that is [he] knowingly distributed, received and accessed with the intent to view child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B), as part of a series of felony violations constituting three or more separate incidents and involving more than one victim, and committed those offenses in concert with three or more persons, in violation of 18 U.S.C. § 2252A(g).").)
"The Fifth Amendment's prohibition on double jeopardy protects against being punished twice for a single criminal offense." United States v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008). "When a defendant has violated two different criminal statutes, the double jeopardy prohibition is implicated when both statutes prohibit the same offense or when one offense is a lesser included offense of the other." Id. To determine whether two statutory provisions prohibit the same offense or whether one offense is a lesser included offense of the other, courts use the Blockburger test where they "examine each provision to determine if it requires proof of a[n additional] fact which the other does not.'" Id. (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). The Blockburger test is a rule of statutory construction to be used only in the absence of an indication of clear Congressional intent. Whalen v. United States, 445 U.S. 684, 695 (1980). If two different statutes prohibit the same offense or one is a lesser included offense of the other, conviction under both violates the Fifth Amendment's prohibition of double jeopardy, and one count must be vacated. Id.
Here, the child exploitation enterprise statute does not indicate clear Congressional intent as to whether the provision constitutes a separate offense. See, e.g., Garrett v. United States, 471 U.S. 773, 781 (1985) (clear indication of Congressional intent where statutory provision required as a predicate offense an additional conviction, as opposed to violation, under the section); United States v. Baker, 63 F.3d 1478, 1494 (9th Cir. 1995) ("statutory language reflects congressional intent to supplement, rather than supplant, existing crimes and penalties", where it "specifically provides that [n]othing in [RICO] shall supersede any provision of Federal... law ...