United States v. Donald Harvey
2016 U.S. App. LEXIS 12843
8th Cir.2016Background
- In early 2014 Omaha police seized Donald Harvey’s Toshiba laptop in an unrelated arrest; a friend, Rinat Chase, retrieved the laptop but could not log in and took its hard drive data on her external drive after a repair shop transfer.
- Chase discovered files she believed to be child pornography on the external drive, later reported this to police, and also observed child-pornography videos in Harvey’s browsing history on a phone she purchased for him.
- Police recovered the original Toshiba hard drive (found hidden at the Salvation Army) and a warrant search revealed 36 child-pornography videos created between Nov. 2012 and May 2013.
- A federal grand jury indicted Harvey on two counts: receipt of child pornography (18 U.S.C. § 2252A(a)(2)) and possession of child pornography (18 U.S.C. § 2252(a)(4)(B)); the factual basis at plea tied both counts to the files on the Toshiba hard drive.
- Harvey pled nolo contendere to both counts on April 10, 2015, then filed a pro se motion three days later seeking to withdraw the plea (asserting innocence, claimed fabricated evidence, and that he didn’t know about subpoena rights).
- The district court denied the motion to withdraw, sentenced Harvey to concurrent 74-month terms on each count, and he appealed; the government conceded on appeal that the two convictions arose from the same act/transaction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court abused its discretion by denying Harvey's motion to withdraw his nolo contendere plea | Harvey: plea withdrawal warranted due to innocence, fabricated evidence, and unawareness of subpoena rights | Government: plea was knowing and voluntary; claims were baseless or derived from information available before plea | Denial affirmed — no fair and just reason shown; asserted innocence and subpoena ignorance contradicted plea colloquy; fabrication claims unsupported |
| Whether convictions for receipt and possession of child pornography violate Double Jeopardy | Harvey: (argued on appeal) convictions should not both stand if based on same act/transaction | Government: conceded both convictions were based on the same act/transaction (the files on the hard drive) | Convictions violate Double Jeopardy when based on same act; remand to vacate one conviction and resentence |
| Whether possession under § 2252(a)(4)(B) is a lesser-included offense of receipt under § 2252A(a)(2) | Harvey: two counts derive from same conduct and are not separate punishments | Government: conceded same-transaction basis; did not oppose relief | Court treated possession as lesser-included in context of same act and followed precedent requiring vacatur of one conviction |
| Whether resentencing was required following vacatur of one conviction | Harvey: sought relief from both convictions and sentence | Government: conceded double-jeopardy violation; left discretion on resentencing to district court | Case remanded for the district court to vacate one conviction and resentence (majority); concurrence would vacate one conviction and assessment but leave concurrent sentence intact |
Key Cases Cited
- United States v. Muhlenbruch, 634 F.3d 987 (8th Cir.) (receipt and possession convictions violate Double Jeopardy when based on same act)
- Blockburger v. United States, 284 U.S. 299 (Supreme Court) (test for whether two statutory provisions constitute the same offense)
- Ball v. United States, 470 U.S. 856 (Supreme Court) (remedy and procedures when convictions violate Double Jeopardy)
- United States v. Van Doren, 800 F.3d 998 (8th Cir.) (standard of review for denial of motion to withdraw plea)
- United States v. Alvarado, 615 F.3d 916 (8th Cir.) (defendant has no automatic right to withdraw plea for belated misgivings)
- United States v. Grimes, 702 F.3d 460 (8th Cir.) (vacatur of convictions for double-jeopardy violations may not require resentencing when remaining concurrent sentence unaffected)