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United States v. Gries

United States Court of Appeals, Seventh Circuit

September 20, 2017

United States of America, Plaintiff-Appellee,
v.
John D. Gries and James McCullars, Defendants-Appellants.

          Argued September 23, 2016

         Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Nos. 1:11CR00191-010, -Oil - Sarah Evans Barker, Judge.

          Before Ripple, Rovner, and Sykes, Circuit Judges.

          SYKES, CIRCUIT JUDGE

         For nearly a decade, John Gries and James McCullars were active participants in a private online chat room frequented by pedophiles sharing large volumes of child pornography. They were indicted for conspiracy to distribute child pornography, conspiracy to sexually exploit a child, and engaging in a child-exploitation enterprise. Other users of the chat room cooperated with investigators, pleaded guilty, and received sentencing consideration. The charges against Gries and McCullars proceeded to trial; several cooperators testified against them.

         To convict Gries and McCullars of the enterprise offense, the government had to prove that they committed three or more crimes against children "in concert" with three or more persons. 18 U.S.C. § 2252A(g)(2). The jury found them guilty on all charges.

         At sentencing the parties and the judge overlooked an important point: The conspiracy counts are lesser-included offenses of the enterprise count. Instead of merging those convictions with the enterprise conviction and imposing sentence on the greater offense alone, the judge imposed concurrent sentences on all three convictions. That error violates the Double Jeopardy Clause. Rutledge v. United States, 517 U.S. 292, 307 (1996). We reverse and remand with instructions to vacate the sentences on the conspiracy counts and enter new judgments accordingly. The remaining issues on appeal are meritless or need not be addressed.

         I. Background

         For almost ten years, Gries and McCullars participated in an online conspiracy of pedophiles who shared large collections of child pornography and discussed the sexual exploitation of children. The group used password-protected chat rooms to privately communicate in real time and facilitate the exchange of massive personal libraries of child pornography. Collectively, the libraries contained thousands of files containing images depicting the violent sexual abuse of thousands of children. The files were encrypted, but members of the group shared passwords to give chat-room participants access to the contents. When a group member had new material to share, he would message others in the chat room, describe the contents of the file, and offer it for distribution.

         Investigators estimated that at its peak the conspiracy included as many as 35 to 40 participants, but the government could identify only Gries, McCullars, and 11 other coconspirators. Most cooperated with investigators by handing over and decrypting their child-pornography collections. Gries also did so, but McCullars did not. Nine coconspirators pleaded guilty to a single count of engaging in a child-exploitation enterprise in violation of § 2252A(g) (2); they are serving prison terms ranging from 135 to 360 months.

         A grand jury indicted Gries and McCullars on three counts: conspiracy to distribute and receive child pornography, 18 U.S.C. § 2252A(a)(2); conspiracy to sexually exploit a child, 18 U.S.C. § 2251(d)(1)(A); and engaging in a child-exploitation enterprise, § 2252A(g) (2). Gries was also charged separately with five additional counts of receiving child pornography. Three of their coconspirators agreed to testify for the government in exchange for favorable sentencing recommendations.

         The charges against Gries and McCullars were tried to a jury over the course of a week. To convict them on the enterprise charge, the government had to prove beyond a reasonable doubt that each defendant committed at least three predicate crimes against children "in concert" with three other people. § 2252A(g)(2). The predicates included the conspiracies alleged in counts one and two, together with multiple separate acts of distributing, receiving, and advertising child pornography.

         The jury found the defendants guilty on all counts. On the enterprise count, the jury found that Gries committed 10 predicate offenses, including the conspiracies charged in counts one and two. The jury found that McCullars committed 17 predicate crimes, including the two conspiracies.

         Under the Sentencing Guidelines, Gries faced an advisory imprisonment range of 324 to 405 months. The judge imposed a sentence of 240 months on count one (conspiracy to distribute child pornography), 360 months on count two (the child-exploitation conspiracy), 360 months on the enterprise count, and 240 months on each separate conviction for receiving child pornography. The terms are concurrent, yielding an aggregate sentence of 360 months, the midpoint of the advisory range. The guidelines recommended a life sentence for McCullars. The judge imposed a ...


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