United States v. Christopher Emly
2014 U.S. App. LEXIS 6142
| 8th Cir. | 2014Background
- In October 2010 law enforcement traced child‑pornography files to a laptop in Christopher Emly’s mother’s home and executed a warrant, seizing the laptop, an SD card, a CD, and a desktop tower from a room identified as Emly’s bedroom.
- Forensics showed LimeWire had been used to obtain ~629 illegal images on the laptop; 481 of those images were also on the SD card; the CD and desktop each contained 6–8 images that had been burned/copied from the laptop.
- A federal indictment charged Emly with one count of receipt (via LimeWire) and three counts of possession under 18 U.S.C. § 2252(a)(4)(B) — one possession count for each seized device; all possession counts alleged possession on or about the same day.
- The district court denied a pretrial motion to merge the possession counts, instructed the jury on receipt and the lesser‑included offense of possession (with stair‑step language), and the jury returned guilty verdicts on receipt, on the lesser included possession offense, and on each of the three possession counts; the court entered judgment only on the receipt and all three possession counts and sentenced concurrently.
- On appeal Emly argued (1) multiplicity/double jeopardy as to the three possession counts, (2) double jeopardy from convictions on both receipt and its lesser included possession offense, and (3) constructive amendment from the receipt jury instruction.
Issues
| Issue | Emly's Argument | Government's Argument | Held |
|---|---|---|---|
| Multiplicity of § 2252(a)(4)(B) possession counts | Charging three possession counts (one per device) for overlapping images is multiplicitous — only one unit of prosecution when multiple matters are possessed simultaneously | Different devices/occasions create separate "matters" and thus separate offenses; Congress’s language permits multiple counts | Counts are multiplicitous; vacate two of three possession convictions (no new trial because no prejudice and concurrent sentences) |
| Guilty verdicts on both receipt and lesser included possession | Convicting on both violates Double Jeopardy / requires remand for new trial on receipt | Verdicts on greater and lesser included offenses are not inconsistent; polling and entering judgment only on receipt cures double counting | No plain error; jury polling confirmed intent and court entered judgment only on receipt; lesser verdicts treated as surplusage |
| Constructive amendment via Instruction No. 9 | The receipt instruction omitted the production element (use of minors), thereby constructively amending the indictment | Instruction fairly captured production given stipulation that images depicted actual children; no amendment | No constructive amendment; instruction implicitly required that images depicted real minors, satisfying the production element |
Key Cases Cited
- United States v. Hinkeldey, 626 F.3d 1010 (8th Cir. 2010) (distinguishes §2252A’s “any” from §2252’s “1 or more” in unit‑of‑prosecution analysis)
- United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009) (§2252(a)(4)(B) permits only one simultaneous‑possession conviction for multiple matters)
- United States v. Chiaradio, 684 F.3d 265 (1st Cir. 2012) (multiple matters possessed simultaneously at one time/place constitute a single offense under §2252(a)(4)(B))
- United States v. Howard, 507 F.2d 559 (8th Cir. 1974) (guilty verdicts on greater and lesser included offenses create no per se inconsistency; polling can cure ambiguity)
- United States v. Chipps, 410 F.3d 438 (8th Cir. 2005) (multiplicity analysis asks whether Congress intended separate units of prosecution; separate‑count instructions can mitigate prejudice from multiplicity)