United States v. Hinkeldey
2010 U.S. App. LEXIS 24832
| 8th Cir. | 2010Background
- In Sept 2007, an Iowa agent traced child pornography files to Hinkeldey’s computer and obtained a search warrant.
- Forensic analysis found over 1,500 illicit images/videos on the computer, disks, and zip drive.
- LimeWire was installed July 2007 with sharing enabled, allowing others to access files on the computer.
- Hinkeldey admitted to searching for and viewing child pornography on LimeWire and transferring files to disks, with some files dated before LimeWire’s installation.
- Indictment (Mar 2008) charged one count of receipt and six counts of possession under 18 U.S.C. § 2252A(a)(2)(A) and (a)(5)(B); government dismissed the receipt count.
- Jury (Feb 2009) convicted Hinkeldey on all six possession counts; sentencing used consecutive sentencing to achieve within advisory range, yielding 210 months total.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether six possession counts are multiplicitous under § 2252A(a)(5)(B). | Hinkeldey argues multiple counts punish the same offense. | Hinkeldey contends each device/file constitutes a single unit of prosecution. | Not plain error; counts may be separate units under current law. |
| Whether Planck required a 'different transactions' standard to permit separate convictions. | Planck dictates separate convictions only if obtained through different transactions. | Even if standard applies, district court did not err in denying merger. | Even assuming the standard, no plain error in not merging. |
| Whether the 'any' language in § 2252A(a)(5)(B) unambiguously defines units of prosecution. | § 2252A(a)(5)(B) ambiguous; lenity should apply. | Statutory ambiguity does not compel relief; authorities support multiple units. | Readily support multiple units; no plain error in multiple convictions. |
Key Cases Cited
- United States v. Planck, 493 F.3d 501 (5th Cir.2007) (upholds separate counts for images stored on different media under § 2252A(a)(5)(B) when obtained via different transactions)
- United States v. Anson, 304 Fed.Appx. 1 (2d Cir.2008) (recognizes 'any' language may permit separate counts for different media)
- United States v. Martin, 278 Fed.Appx. 696 (8th Cir.2008) (unpublished; multiple disks can support multiple convictions under § 2252A(a)(5)(B))
- United States v. Polouizzi, 564 F.3d 142 (2d Cir.2009) (distinguishes § 2252A(a)(4)(B) from § 2252A(a)(5)(B))
- United States v. Kinsley, 518 F.2d 665 (8th Cir.1975) (discusses ambiguity of 'any' in defining unit of prosecution)
- United States v. Chipps, 410 F.3d 438 (8th Cir.2005) (discusses unit-of-prosecution under multiplicity analysis)