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United States v. Morrissey

United States Court of Appeals, Eighth Circuit

June 29, 2018

United States of America Plaintiff- Appellee
v.
Kevin Timothy Morrissey Defendant-Appellant

          Submitted: January 12, 2018

          Appeal from United States District Court for the Southern District of Iowa - Council Bluffs

          Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.

          SHEPHERD, Circuit Judge.

         Following a jury trial, Kevin Timothy Morrissey was convicted of one count of possession of child pornography under 18 U.S.C. § 2252(a)(4)(B), (b)(2) and one count of receipt of child pornography under 18 U.S.C. § 2252(a)(2), (b)(1). He appeals both convictions. We affirm the receipt conviction, but remand to the district court with instructions to vacate the lesser-included possession conviction because the district court failed to instruct the jury that it could not convict Morrissey for both receipt and possession based on the same facts.

         I. Background

         In July 2013, Morrissey was sentenced in Washington state court to 34 months imprisonment and 36 months of supervised release for possession of child pornography. After he was released in May 2014, he moved to Iowa in September 2014, and his supervision was transferred there. Under his terms of supervision, Morrissey was prohibited from accessing the Internet and possessing devices that could access the Internet. On January 7, 2016, probation officers conducted a home visit at Morrissey's residence in Oakland, Iowa, where they discovered an active wireless hotspot and a Dell laptop computer. Examination of the Dell laptop revealed 50 images and one video (collectively "files") that Digital Forensics Examiner Anthony Kava believed to be child pornography, as well as a web browser history indicative of searches for child pornography. Officers obtained a search warrant for Morrissey's residence and seized hard drives from an outbuilding on the property. One was a Seagate hard drive containing 10 images of suspected child pornography.

         A grand jury in the Southern District of Iowa indicted Morrissey on one count of possession of child pornography and one count of receipt of child pornography. At Morrissey's jury trial, Kava testified as to the files recovered from the Dell laptop and Seagate hard drive, and the government introduced into evidence-without objection-a spreadsheet Kava created listing the files he believed to be child pornography. The spreadsheet also indicated which files had been previously identified as child pornography by the National Center for Missing and Exploited Children ("NCMEC").[1] In addition, the government introduced-again, without objection-12 images and one video of suspected child pornography from the Dell laptop and 10 images from the Seagate hard drive. Six of the hard drive images had been previously identified by NCMEC as child pornography. Two FBI agents also testified, based on their own investigations, that two of those six images were child pornography.

         The jury was instructed that in order to convict Morrissey for receipt of child pornography, it must first find "that from an unknown date, but at least as early as May of 2015, continuing up to and including January of 2016, [Morrissey] knowingly received one or more visual depictions of a minor engaged in sexually explicit conduct." During deliberations, the jury asked the court, "How far back can unknown date be, i.e., 1990?" In the presence of both counsel and Morrissey, the district court proposed this response: "It can begin at any time, but you must unanimously agree as to at least one receipt after March 29, 2011." This, the court reasoned, accurately reflected the five-year statute of limitations. Morrissey's counsel told the court he had "no objection to that."

         Morrissey was convicted of one count of possession of child pornography and one count of receipt of child pornography. As to the possession conviction, the jury found the government had failed to prove that one or more of the images depicted a minor under the age of 12. Thus, Morrissey was subject to a maximum sentence of 10 years for possession, as opposed to a 20-year maximum sentence. 18 U.S.C. § 2252(b)(2). Morrissey was sentenced to 120 months imprisonment on the possession conviction and 180 months imprisonment on the receipt conviction to be served concurrently.

         Morrissey raises seven issues on appeal: double jeopardy, insufficient evidence, improper venue, a constructive amendment to the indictment, a material variance from the indictment, a Confrontation Clause and hearsay violation, and prosecutorial misconduct.

         II. Double Jeopardy

         We first address Morrissey's claim that the district court erred by failing to instruct the jury that it could not convict him for both possession and receipt based on the same facts. Because Morrissey failed to request such an instruction, our review is for plain error. United States v. Huether, 673 F.3d 789, 798 (8th Cir. 2012). "To establish plain error, [Morrissey] must show an error that is plain and that affects his substantial rights." Id. at 796. We remedy plain "error only if it seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (internal quotation marks omitted).

         The Double Jeopardy Clause of the Fifth Amendment protects a defendant from "[m]ultiple punishments for the same criminal offense." United States v. Muhlenbruch, 634 F.3d 987, 1002 (8th Cir. 2011) (alteration in original) (internal quotation marks omitted). To establish a Double Jeopardy violation, a defendant "must show that he was convicted of two offenses that are in law and fact the same offense." Id. (internal quotation marks omitted). Two offenses are considered the same offense for Double Jeopardy purposes unless each offense "requires proof of a fact which the other does not." Id. 1002-03 (internal quotation marks omitted).

         "Possession of child pornography is a lesser-included offense to receipt of child pornography." United States v. Zavesky, 839 F.3d 688, 695 (8th Cir. 2016). That is to say that proof of receipt of child pornography "necessarily includes proof of possession of child pornography." Muhlenbruch, 634 F.3d at 1003. Thus, convicting a defendant for both possession and receipt based on the same conduct would violate the Double Jeopardy Clause. Zavesky, 839 F.3d at 695.

         "While the government is not prohibited from charging [a defendant] with both a greater and lesser offense, the jury must be instructed that they cannot convict him for both offenses based on the same facts." Huether, 673 F.3d at 798. The jury "must be tasked with separating the evidence in considering the counts separately, and instructed that they may not convict [the defendant] of both counts based on overlapping evidence." Id.

         In Huether, we found plain error where the court failed to instruct the jury that receipt and possession convictions cannot be based on the same images. Id. at 798-99. Although multiple images were found on various hard drives and CDs, neither the indictment nor the evidence at trial "specif[ied] which images [the defendant] was charged with receiving and which he was charged with possessing." Id. at 799. Because the defendant was potentially convicted on both counts for the same images, we ordered the district court to vacate one of the convictions. Id.; but see Zavesky, 839 F.3d at 695-96 (upholding conviction for both receipt and possession where indictment listed different dates for receipt and possession charges and prosecutor presented evidence at trial of two separate computer folders: one where images were downloaded and another where a video was saved).

         Here, the indictment did not specify which images went to receipt and which to possession, but it did list different-albeit overlapping-dates for the two counts. The government argues that the Dell laptop images supported the receipt conviction and the Seagate hard drive images supported the possession conviction. But, at trial-particularly in closing argument-the government did not make a clear enough distinction between the images. Rather, the prosecutor repeatedly suggested in closing that the defendant could be convicted of possession for images found on either the laptop or the hard drive and even specifically stated that Morrissey was "charged with possession of the Seagate hard drive and Dell laptop." Moreover, the prosecutor suggested both convictions could be based on the very same image, stating, "I only have to prove to you that one of these images is child pornography." Because the jury could have convicted Morrissey of both receipt and possession based on the same image or images found on the Dell laptop, we find failure to instruct was plain error. See Huether, 673 F.3d at 798. We therefore remand to the district court to vacate the conviction and sentence of the lesser-included possession offense. See United States v. Carpenter, 422 F.3d 738, 747 (8th Cir. 2005) (remanding to district court to vacate conviction for lesser-included offense).

         Having conclusively addressed Morrissey's conviction for possession of child pornography, we now turn to his remaining ...


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