Just because you win, doesn’t mean you win something you want.
Gary Dudeck pled guilty to three charges: possessing child pornography, receiving child pornography, and receipt of images depicting minors engaged in sexual activity.*
The district court sentenced him to ten years on each of the three counts, and ran the sentence concurrently.
Mr. Dudeck appealed, and argued that he can’t be guilty of all three of these charges.
While there’s a lot that double jeopardy doesn’t mean, double jeopardy prevents a person from being convicted of the same crime twice.
So, if you commit an assault and an aggravated assault, where an aggravated assault is basically just defined as an assault plus some kind of aggravating factor, at sentencing, the court should dismiss the assault, and only sentence you for the aggravated assault.
Mr. Dudeck argued that receiving child pornography requires possessing child pornography, so that his conviction of possession should be ignored. Otherwise, it would violate double jeopardy.
The Sixth Circuit agreed that receipt of child pornography includes possession of child pornography in his case, United States v. Dudeck. The court remanded because it wasn’t clear whether the images that supported the possession count were the same ones that supported the receipt count.
And, if Mr. Dudeck prevails, what does he get? The sentencing court already made clear that the sentence for receipt and possession should be the same. And the court already ran them concurrent to one another.
Mr. Dudeck, if he wins on this argument, as the potential to save himself $100. Every criminal defendant has to pay $100 for every felony count that he or she is convicted of. It’s the law.
If Mr. Dudeck’s possession conviction is overturned, he saves himself a full one hundred dollars.
* You may wonder what the difference is between receiving child pornography and receiving images depicting minors engaging in sexual activity. Basically, receiving child pornography – pictures involving real children – is a separate crime that receiving images that contain “virtual” children. If the image is real child porn, its receipt is prohibited by 18 U.S.C. S 2252(a)(2). If the image is of a virtual child, receipt is prohibited by 18 U.S.C. S 2252A(a)(2), which relies on a broader definition of child pornography.
If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.