United States v. Brandon Royce Phillips (11th Cir. July 2021)

The Federal Docket

July 14, 2021

Child Pornography/Jury Instructions – The district court did not constructively amend the defendant’s indictment for enticing a minor for the purpose of producing child pornography when it instructed the jury that the government did not have to prove the defendant had knowledge of the victim’s age, as the language alleging that the defendant acted “knowingly and intentionally” only applied to the “acts barred in the statute.

Child Pornography/Double Jeopardy – It was plain err for the defendant to be convicted and sentenced for receiving child pornography and the lesser-included offense of possessing child pornography.

Brandon Phillips was convicted of enticing a minor to produce child pornography, receiving child pornography, and possession of child pornography. Phillips had been posing as a teenage girl online and communicating with a 14-year-old boy, including sending pornography to the boy and requesting sexually explicit pictures of him in return. He was convicted after a trial in which he argued that he had been “role playing” and did not know he was talking to a minor.

On appeal, Phillips raised two principal arguments. First, he argued the district court constructively amended the indictment, which charged Phillips with “knowingly and intentionally enticing a minor,” when it instructed the jury that it could convict Phillips regardless of his knowledge regarding the victim’s age.

The Eleventh Circuit rejected this argument, noting that the statute in question, 18 USC 2251(a) does not require the Government to prove knowledge that a victim is a minor, and the scienter alleged in the indictment only applied to the “acts barred in the statute” of the defendant. Thus, the Court concluded, the trial court’s instruction “amended nothing at all.” The Court added that a district judge instructing the jury can ignore language in an indictment that alleges a “higher mens rea than the statute” requires as “mere surplusage.” The Court distinguished Phillips’ case to the defendant in United States v. Cancelliere (11th Cir. 1995), where the trial court redacted the word “willfully” from an indictment after the jury had initially been instructed, and the defendant had argued, that evidence of willfulness was required to convict.

The Court further held that the trial court plainly erred in violating Phillips’ rights under the Double Jeopardy Clause, since he had been convicted and sentenced for both receiving child pornography and the lesser-included offense of possessing child pornography. Accordingly, the Court vacated Phillips’ conviction for knowingly possessing child pornography.

On appeal from the Northern District of Florida
Opinion by Grant, joined by J. Pryor and Royal (by designation from M.D. Ga.)

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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