The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on the Defendant's Motion to Strike Count I for Duplicity (d/e 8) (Duplicity Motion), and his Motion to Strike Count III for Multiplicity (d/e 9) (Multiplicity Motion). For the reasons set forth below, the Motions are DENIED.
The Indictment (d/e 6) alleges that Defendant Anthony Adams actively participated in a computer chat room that existed to facilitate the trading of child pornography. According to the Indictment, the chat room used "peer-to-peer" software that allowed individuals participating in the chat room to select files from their personal computers and make those files available to other chat room participants to download directly. Indictment, ¶ 3. The Indictment alleges that Adams used this chat room and other commercially available peer-to-peer software to receive, transport and possess child pornography. Id., ¶ 5.
Count I of the Indictment charges that: From on or about October 21, 2005, to March 2, 2006, at Springfield, Illinois, in the Central District of Illinois, the defendant, ANTHONY ADAMS, did knowingly receive and distribute child pornography that had been transported in interstate and foreign commerce by computer.
Id., ¶ 7. The Indictment charges that this conduct violated 18 U.S.C. § 2252A(a)(2)(A).
Count III of the Indictment charges that:
From on or about October 21, 2005, to March 2, 2006, at Springfield, Illinois, in the Central District of Illinois, the defendant, ANTHONY ADAMS, knowingly possessed pictures, computer hard drives, computer discs and other materials containing three or more images of child pornography, as that term is defined in 18 United States Code Section 2256(8), which had been mailed and shipped and transported in interstate and foreign commerce, including by computer, and that were produced using materials that had been mailed and shipped and transported in interstate and foreign commerce, including by computer.
Id., ¶ 13. The Indictment charges that this conduct violated 18 U.S.C. § 2252A(a)(5)(B). Id., ¶ 14.
Adams argues in the Duplicity Motion that Count I is improperly duplicitous because the Count charges in one Count two separate offenses:
(1) receiving child pornography, and (2) distributing child pornography. Section 2252A(a)(2)(A) makes either a crime. Adams argues that Count I must be stricken or the Government must elect which of the two crimes it wishes to pursue.
Adams argues in the Multiplicity Motion that Count III improperly charges Adams with the same crime that is alleged in Count I. He argues that the crime of possessing child pornography is the same crime as the crime of receiving child pornography. He also notes that the time period in the two Counts is identical; thus, the Counts are based on the same conduct. Adams argues that Count III must be stricken or the Government must elect whether to proceed on Count I or Count III.
The Court is not persuaded by either of these arguments. The Court will address each Motion separately.
A duplicitous count charges more than one distinct and separate offense. United States v. Berardi, 675 F.2d 894, 897 (7th Cir. 1982). However, an indictment charging multiple acts in the same count, each of which could be charged as a separate offense, may not be duplicitous where these acts comprise a continuing course of conduct that constitutes a single offense. United States v. Buchmeier, 255 F.3d 415, 421 (7th Cir. 2001). That is the situation here. Count I alleges that Adams received and distributed child pornography as part of a continuing course of conduct from October 21, 2005, to March 2, 2006. When the charges involve multiple acts that are part of a continuing course of conduct, the Government has some discretion in deciding whether to organize the charges into ...