Seventh Circuit Finds No Double Jeopardy for Defendant Accused of CP Possession and Receipt – U.S. v. Halliday

February 21, 2012 by David S. Seltzer

Not long ago, I wrote on this blog about the reversal of a conviction for a defendant convicted of both possession and receipt of the same child pornography. As a child pornography possession defense attorney, I know prosecutors often see opportunities to get heavy sentences for people in this position because CP crimes are so unpopular with the public, but in this case, the court decided the double conviction violated the Double Jeopardy Clause of the Fifth Amendment. So I was interested to see a Seventh U.S. Circuit Court of Appeals case that came to the opposite conclusion. In United States v. Halliday, the court upheld Scott Halliday’s convictions because he was charged with possession and receipt of two different videos. However, the court did send the case back for resentencing, finding that his original sentence was based on false assumptions by the judge.

Halliday was found by criminal investigators working for the state of Illinois, who found his suspected child pornography through file-sharing software. The computer was at the residence Halliday had shared with his wife and young son until recently; at the wife’s request, he moved in with his mother around the first search. After law enforcement searched and seized the computer a few months later, Halliday was questioned and eventually admitted he was likely responsible for the child pornography found there. He was indicted on two counts of receiving child pornography and one of possession. The receipt counts were for receipt on April 20, 2008 and May 27, 2008; the possession count was for possession between those two dates. The court did not instruct the jury that the same videos could not form the basis for receipt and possession convictions, but it did vote to convict on all three counts. Halliday did not object. At sentencing, the judge went above the government’s request and sentenced him to 240 months.

On appeal, the Seventh Circuit reviewed Halliday’s double jeopardy claim for plain error because he raised the issue for the first time on appeal. The court applied the Blockberger test for double jeopardy, which asks whether each count requires proof of a fact that the other does not. It acknowledged that two to three of its sister circuits have ruled that possession is a lesser included offense of receipt and therefore they cannot be charged together. However, it said, the issue is moot in this case because more than one video formed the basis for Halliday’s conviction. It dismissed Halliday’s argument that the dates on the indictment make it possible that the convictions overlap, saying evidence showed multiple downloads between the two dates. However, it found the indictment deficient and warned prosecutors and judges to be clear in future cases to avoid double jeopardy problems. The court then went on to find plain procedural error in Halliday’s sentencing, because the judge relied on an unrelated case to decide that Halliday felt the crime as “victimless,” despite Halliday having made no such statement. Because this was improper, it remanded the case for resentencing.

As a cyber crime criminal defense lawyer, I’m pleased to see that the Seventh is willing to remand a sentence that was apparently based on conjecture about Halliday’s motives rather than statements he made. As I said, child pornography crimes are unpopular, and even judges may feel strongly enough to make decisions based on assumptions or emotions rather than the record. However, it’s not entirely clear that the multiple downloads of which Halliday was accused were enough to eliminate the danger of double jeopardy, as the Seventh appeared to be saying. Though the evidence apparently included multiple download allegations, there was only one possession charge, which suggests a reference to possession of the video forming the basis for the earlier receipt charge. As a child pornography criminal defense attorney, I would prefer to see this clarified in trial court, even if that means a remand, because freedom from double jeopardy is a basic constitutional right.

Seltzer Law, P.A., represents clients around the United States who are accused of child pornography possession and other serious internet or technology crimes. If you’re facing charges and you’d like to discuss your options and rights, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online for a free consultation.

Similar blog posts:

Sixth Circuit Rules Defendant Cannot Be Sentenced Twice for Possession and Receipt of Child Porn – U.S. v. Ehle

Examining Whether Possession and Distribution of Child Pornography Are the Same Crime

Eighth Circuit Rules Child Porn Defendant Waived Double Jeopardy Claim When He Pleaded Guilty – U.S. v. Dolehide