Holding: Multiple devices ≠ multiple counts: child pornography discovered at the same time, and in the same place, is a single offense, regardless of how many devices that material is stored on.
This fall, the Tenth Circuit limited the number of charges the government can bring for possessing child pornography, at least where that material is discovered at the same time and same place.
In United States v. Elliott, 937 F.3d 1310 (10th Cir. 2019), the defendant was charged with four possession counts, in violation of 18 U.S.C. § 2252A(a)(5)(B), which penalizes “possess[ing]” . . . any . . . material that contains an image of child pornography.” The charges were based on child pornography discovered on a computer, external hard drive, phone, and cloud storage account linked to the phone. All the items were located in the defendant’s bedroom during execution of a search warrant.
The government’s theory was that it could charge on a “per device” basis, i.e., that every device on which child pornography was located constituted a separate offense. The defendant argued that this charging theory was multiplicitous: that it imposed multiple punishments for the same offense of simply possessing child pornography.
To answer the question, the court of appeals had to determine what the unit of prosecution was for § 2252A. This is an inquiry of statutory interpretation—the unit of prosecution is the minimum amount of activity a defendant must undertake to commit each new and independent violation of a criminal statute.
Ultimately, the Tenth Circuit held that § 2252A(a)(5)(B) does not permit multiple possession charges based solely on the number of electronic devices a defendant simultaneously possessed. That means that child pornography discovered at the same time, and in the same place, is a single offense, regardless of how many devices that material is stored on. And because multiplicity is never harmless error, the Elliott court vacated all but one the defendant’s possession convictions.
Open question: whether the government might be able to sustain multiple possession charges with proof that a defendant received the child pornography at different times, or stored it in entirely separate locations.
- Be on the lookout for multiplicity. Whenever an indictment charges multiple violations of the same statute, be sure to ask what the unit of prosecution is for that statute. If it is unclear, query whether lenity may apply. Elliott and the Tenth Circuit’s en banc decision in United States v. Rentz, 777 F.3d 1105 (10th Cir. 2015) are good places to start your research.
- Don’t let other circuits’ decisions prevent you from making novel arguments. Here, the Fifth Circuit previously had accepted the government’s “per device” charging theory, and at least four other circuits had suggested in dicta that such charging might be permissible. The Tenth Circuit found none of this authority persuasive in ruling the other way.
- The unit of prosecution for child pornography possession under § 2252 is an open question, but it should be the same as § 2252A. There are two federal statutes that independently criminalize possessing child pornography: 18 U.S.C. § 2252A(a)(5)(B) and § 2252(a)(4)(B). And while § 2252 is charged less frequently, it still shows up from time to time. Elliott’s analysis applies only to § 2252A, but its discussion of § 2252 and the slight difference in wording between the two statutes should be helpful in arguing that the unit of prosecution under of § 2252 is the same as § 2252A.