United States v. Kevin Morrissey
895 F.3d 541
| 8th Cir. | 2018Background
- Morrissey, previously convicted in Washington of possession of child pornography, was under supervised release in Iowa with restrictions on Internet access and devices.
- Probation officers found an active Wi‑Fi hotspot and a Dell laptop at Morrissey’s Iowa residence; forensic exam found 50 images and one video (some downloaded) and browser history; a Seagate hard drive seized from an outbuilding contained 10 additional images.
- A federal grand jury charged Morrissey with one count of possession of child pornography and one count of receipt of child pornography; at trial the government admitted a forensic spreadsheet (showing some images NCMEC‑confirmed) and introduced multiple images and a video from the laptop and hard drive.
- The jury convicted on both counts; Morrissey received concurrent sentences (120 months possession; 180 months receipt). He appealed raising multiple claims including double jeopardy, sufficiency, venue, constructive amendment/variance, Confrontation/hearsay, and prosecutorial misconduct.
- The court found the possession count was a lesser‑included offense of receipt and concluded the district court plainly erred by not instructing the jury it could not convict on both counts based on the same images; it remanded to vacate the possession conviction but affirmed the receipt conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy (dual convictions for receipt and possession) | Morrissey: jury could have convicted on both counts for the same images; court should have instructed jury to avoid double conviction | Government: indictment listed overlapping dates; evidence could be parsed between laptop (receipt) and Seagate (possession) | Plain error; failure to instruct was plain because prosecutor blurred distinctions; remand to vacate lesser possession conviction |
| Sufficiency of evidence for receipt | Morrissey: government didn’t prove files were child pornography or that he knowingly received them | Government: images/video were sexually explicit; some files downloaded or in user folders showing interaction; Morrissey admitted Internet use on laptop | Affirmed: a reasonable jury could find files were child pornography and that Morrissey knowingly received them |
| Venue / constructive amendment / variance | Morrissey: proof and jury instruction allowed conviction for conduct before he moved to Iowa (Washington), outside indictment’s dates/district | Government: venue not contested at trial (waived); dates are not an essential element; evidence was within statute of limitations and notice was adequate | Waived: counsel declined venue instruction and did not timely object; no constructive amendment or prejudicial variance found |
| Confrontation Clause / hearsay (spreadsheet showing NCMEC confirmations) | Morrissey: spreadsheet introduced hearsay/testimonial NCMEC confirmations in violation of Confrontation Clause | Government: no timely objection (forfeited/waived); even if error, abundant direct evidence (images/video) supports verdict | Court assumed error/plainness but found no substantial‑rights prejudice; admission did not warrant reversal |
Key Cases Cited
- United States v. Huether, 673 F.3d 789 (8th Cir. 2012) (jury must be instructed not to convict on greater and lesser offenses based on the same facts)
- United States v. Muhlenbruch, 634 F.3d 987 (8th Cir. 2011) (definition of same offense for double jeopardy purposes)
- United States v. Zavesky, 839 F.3d 688 (8th Cir. 2016) (upholding dual convictions where indictment and proof distinguished receipt and possession)
- United States v. Carpenter, 422 F.3d 738 (8th Cir. 2005) (remand to vacate lesser‑included conviction when required)
- United States v. Mathews, 761 F.3d 891 (8th Cir. 2014) (standard for reviewing sufficiency of the evidence)
- United States v. Coleman, 584 F.3d 1121 (8th Cir. 2009) (standard for reversal for insufficient evidence)
- United States v. Worthey, 716 F.3d 1107 (8th Cir. 2013) (distinguishing browser cache thumbnails from files showing user interaction)
- United States v. Pendleton, 832 F.3d 934 (8th Cir. 2016) (presumption that juries follow instructions)
- United States v. Haley, 500 F.2d 302 (8th Cir. 1974) (government’s burden to prove venue)
- Olano v. United States, 507 U.S. 725 (1993) (distinguishing waiver and forfeiture and standard for plain‑error review)
- Molina‑Martinez v. United States, 136 S. Ct. 1338 (2016) (elements of plain‑error review)
- Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (2009) (testimonial forensic statements implicate Confrontation Clause)
- Starr v. United States, 533 F.3d 985 (8th Cir. 2008) (constructive amendment and variance doctrine)
- Stuckey v. United States, 220 F.3d 976 (8th Cir. 2000) (time not an essential element unless statute so provides)