United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM AND OPINION ORDER
M. DOW, JR. UNITED STATES DISTRICT JUDGE
the Court is Defendant's motion to dismiss  Count
One of the indictment. For the reasons stated below,
Defendant's motion to dismiss  is denied. The case
remains set for status on July 25, 2018 at 9:00 a.m.
September 19, 2013, a grand jury returned a two-count
indictment against Defendant. Count One of the indictment
alleged that on or about August 20, 2013, defendant knowingly
received child pornography-namely, a file folder titled
“AG-120” that had been downloaded from
BitTorrent-in violation 18 U.S.C. §
2252A(a)(2)(A). Count Two of the indictment alleged that on
or about August 27, 2013, defendant knowingly possessed
items-namely, an Apple Tower G5, an Apple MacBook Laptop, and
a G-Tech external hard drive-that each contained images of
child pornography in violation of 18 U.S.C. §
2252A(a)(5)(B). The images identified in Count One of the
indictment were different than those identified in Count Two
of the indictment.
filed a motion to dismiss Count One of the indictment,
arguing that Counts One and Two of the indictment “are
based on the same act or transaction and therefore violate
the Double Jeopardy Clause.” [127, at 2.] The
government filed a response, arguing that (1) “the
conduct and the images charged in Counts One and Two of the
indictment are distinct and do not arise out of the same act
or transaction[, ]” and (2) “Double Jeopardy is
only implicated upon entry of judgment on counts of
conviction-not while counts are pending before trial.”
[128, at 1.] Although the Court gave Defendant the
opportunity to file a reply, Defendant did not do so. Before
the Court is Defendant's motion to dismiss  Count
One of the indictment against him.
an indictment is not a means of testing the strength or
weakness of the government's case, or the sufficiency of
the government's evidence.” United States v.
Moore, 563 F.3d 583, 586 (7th Cir. 2009) (internal
quotation marks and citation omitted). Rather, a motion to
dismiss or strike counts of an indictment seeks to identify
and correct a defect in the indictment. Fed. R. Crim. P.
12(b)(3)(B)(ii). Here, Defendant challenges the indictment on
double jeopardy grounds.
Double Jeopardy Clause of the Fifth Amendment provides that
“[n]o person shall * * * be subject for the same
offence to be twice put in jeopardy of life or limb.”
U.S. CONST. amend. V. “Three separate guarantees inhere
in this constitutional provision: (1) once acquitted of a
charge, a person shall not be prosecuted again for the same
offense; (2) once convicted of a crime, a person shall not be
prosecuted again for that same crime; and (3) one shall not
be punished twice for the same offense.” United
States v. Hatchett, 245 F.3d 625, 630 (7th Cir. 2001)
(citing Ill. v. Vitale, 447 U.S. 410, 415 (1980)).
“Where proof of one offense necessarily entails proof
that another offense occurred, rendering the latter a lesser
included offense of the former, the two offenses are deemed
to be the ‘same' for purposes of” double
jeopardy. Id. at 632 (citing Rutledge v. United
States, 517 U.S. 292, 297 (1996)).
Clause “applies both to successive punishments and to
successive prosecutions for the same criminal offense.”
United States v. Dixon, 509 U.S. 688, 696 (1993);
see also Ohio v. Johnson, 467 U.S. 493, 498 (1984).
“It protects against both actual punishment and the
attempt to convict and punish a defendant twice for the same
crime.” United States v. Faulkner, 793 F.3d
752, 755 (7th Cir. 2015) (citing Price v. Georgia,
398 U.S. 323, 326 (1970)). However, “when multiple
sentences are imposed in the same trial, ‘the role of
the constitutional guarantee is limited to assuring that the
court does not exceed its legislative authorization by
imposing multiple punishments for the same
offense.'” United States v. Halliday, 672
F.3d 462, 468 (7th Cir. 2012) (quoting Brown v.
Ohio, 432 U.S. 161, 165 (1977)).
asks that the Court dismiss Count One of the indictment
because of double jeopardy concerns. [127, at 2.]
Specifically, Defendant argues that Counts One and Two of the
indictment “are based on the same act or transaction
and therefore violate the Double Jeopardy Clause.”
[127, at 2.] In support of this argument, Defendant
exclusively relies upon United States v. Harvey,
which held that the defendant's convictions for receipt
and possession of child pornography arose out of same act or
transaction and thus violated Double Jeopardy Clause. 829
F.3d 586, 590-91 (8th Cir. 2016). In reaching this
conclusion, the Eighth Circuit explained that possession of
child pornography is a lesser included offense of receipt of
child pornography when based on the same act or transaction.
Id. Because the government conceded that
defendant's convictions for receipt and possession of
child pornography were based on the same act or transaction,
the court concluded that the defendant's convictions
violated the Double Jeopardy Clause. Id. at 591.
Although a majority of circuits have agreed with the
conclusion reached by the Eighth Circuit-namely, that
possession of child pornography is a lesser included offense
of receipt of child pornography, see United States v.
Johnston, 789 F.3d 934, 938 (9th Cir. 2015) (collecting
cases)-the Seventh Circuit has not yet addressed the issue.
However, this Court need not decide the issue today. Even
assuming that that the Seventh Circuit would follow the
majority approach that possession of child pornography is a
lesser included offense of receipt of child pornography,
allowing the government to proceed on both Counts One and Two
of the indictment in this case does not violate the Double
begin-unlike Harvey-the images and/or videos that
form the bases of the receipt and possession counts are
different. Accordingly, Counts One and Two cannot be
considered the same crime. The Seventh Circuit has squarely
addressed this issue, stating that “where separate
images form the bases for separate receipt and possession
counts, there can be no double jeopardy violation.”
United States v. Halliday, 672 F.3d 462, 470 (7th
Cir. 2012). The Seventh Circuit further advised that,
“in future cases, the government would be wise to
clearly indicate in the indictment which images are included
in each count of the indictment.” Id. at 472.
As discussed above, the government has done so here. Given
that Defendant elected not to file any reply brief, Defendant
appears to concede the point.
even if the images and/or videos underlying Counts One and
Two of the indictment were the same, “the government
[may] submit to the jury both a receipt and possession count
based on the same conduct, but request that the court vacate
or stay the possession conviction if there is a receipt
conviction for duplicate conduct.” Johnston,
789 F.3d at 940. In other words, the government is entitled
to charge the defendant under two different theories for the
same conduct and determine, after the jury has rendered its
verdict, on which count defendant should be sentenced. Any
motion to dismiss a count of the indictment based on double
jeopardy concerns therefore is premature.