United States v. Samuel Elliott (10th Cir. September 2019)

The Federal Docket

October 17, 2019

Child Pornography/Elements – A defendant may not be charged for multiple counts of possessing child pornography based solely on having child pornography on multiple devices.

Samuel Elliott pleaded guilty to one count of producing child pornography and four counts of possessing child pornography based on images law enforcement found on four of his electronic devices. On appeal, he argued that three of the four counts were multiplicitous and in violation of the Double Jeopardy Clause since he possessed all of the devices in the same location and at the same time, in one singular act of possession.

The Court agreed and reversed Elliott’s convictions for three of the four counts. Elliott’s statute of conviction, 18 U.S.C. § 2252A(a)(5)(B), prohibits knowingly possessing “any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography.”

The Court held that the statute was ambiguous regarding the proper “unit of prosecution” for each count of possessing child pornography. The Court explained that the word “any” preceding the list of mediums (books, film, etc) could apply to either the kind of medium, which would be singular and allow multiple counts based on the possession of multiple mediums, or the quantity of mediums, under which one could possess multiple mediums as part of one act of possession. The Court cited several Supreme Court opinions and other Tenth Circuit opinions finding ambiguity based on the word “any” as a modifier.

Since the statute was ambiguous and allowed multiple interpretations, the Court invoked the rule of lenity and applied the interpretation most favorable to the defendant, which reads the statute as prohibiting the possession of any number of devices containing images of child pornography.

Dissenting, Judge Tymvokich arguing that the “separate receipt” or “separate storage” theories of possession allow a conviction for each medium possessed. The majority rejected this theory in its opinion, however, noting that the statute criminalizes “possession” of any number of “storage devices,” as opposed to the separate acts of “receiving” images or storage devices.

Appeal from the District of New Mexico

Opinion by Lucero, joined by Ebel

Dissent by Tymkovich

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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