U.S. v. Dean
| Decision Date | 23 November 2009 |
| Docket Number | Criminal Action No. 2:08cr65-MHT. |
| Parties | UNITED STATES of America v. Jack Furman DEAN, Jr. |
| Court | U.S. District Court — Middle District of Alabama |
Defendant Jack Furman Dean, Jr., pleaded guilty to producing obscene material and possession of child pornography. This case is now before the court on Dean's motion for a new trial. Dean argues that he was convicted of possessing and producing the same materials in violation of the Double Jeopardy Clause of the Fifth Amendment. He also argues that the statute criminalizing production is overbroad, infringing upon protections conferred by the First Amendment. Dean asks the court to set aside his conviction on one of the counts or, alternatively, to run his sentences on the two counts concurrently. For the reasons that follow, Dean's motion will be denied.
Dean was charged in a two-count indictment in the Middle District of Alabama. Count one (the "production count") charged Dean with producing an obscene visual representation of the sexual abuse of a child, in violation of 18 U.S.C. § 1466A(a)(2). Count two (the "possession count") charged Dean with possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).
Dean pleaded guilty to both counts without a plea agreement. After a lengthy sentencing hearing, in which both parties presented evidence, the court imposed the maximum for each count, 20 years for the production count, and ten years for the possession count, to run consecutively.
At sentencing, Dean objected to consecutive sentences for the crimes on the ground that the possession count is a lesser-included offense of the production count. The court instructed Dean to raise this objection in a motion for a new trial, which is now before the court.
Dean makes two principal arguments. First, he asserts that the two counts punish the same conduct and that the possession count is a lesser-included offense of the production count. Dean presents this argument as a constitutional claim, contending that conviction on both counts exposed him to double jeopardy in violation of the Fifth Amendment. Second, Dean argues that § 1466A(a)(2), the statute underlying the production count, violates the First Amendment because it is overbroad.
The government responds that Dean waived his right to challenge his convictions by pleading guilty; that possession under § 2252A(a)(5)(B) is not a lesser-included offense of production under § 1466A(a)(2); and that the two counts punish different acts. The government further argues that § 1466A(a)(2) is not overbroad.
Count one charges Dean with producing an obscene visual representation of the sexual abuse of a child, in violation of § 1466A(a)(2). The statute provides, in pertinent part, that:
The statute does not require that the image be of an actual child. 18 U.S.C. § 1466A(c) ().
Count two charges Dean with possessing child pornography, in violation of § 2252A(a)(5)(B). The statute criminalizes the knowing possession of, or knowing access with intent to view, "any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography." 18 U.S.C. § 2252A(a)(5)(B). For purposes of this statute, "child pornography" is defined as:
"any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
18 U.S.C. § 2256(9).
As a preliminary matter, the government contends that Dean waived his constitutional claims by pleading guilty to both counts of the indictment.
"The general rule is that a guilty plea waives all non-jurisdictional challenges to a conviction." United States v. Smith, 532 F.3d 1125, 1127 (11th Cir.2008). But in Menna v. New York, 423 U.S. 61, 63 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), the Supreme Court recognized an exception to this rule, stating "that a plea of guilty to a charge does not waive a claim that—judged on its face—the charge is one which the State may not constitutionally prosecute." "Following Menna, [the Eleventh Circuit has] held that a defendant does not waive a double jeopardy challenge when, judged on the basis of the record that existed at the time the guilty plea was entered, the second count is one the government may not constitutionally prosecute." Smith, 532 F.3d at 1128. "In other words, a defendant may challenge his conviction if he does not need to go outside what was presented at the plea hearing to do so." United States v. Bonilla, 579 F.3d 1233, 1240 (11th Cir.2009) (emphasis in original).
Dean bases his double-jeopardy challenge on a "purely textual comparison" of § 1466A(a)(2) and § 2252A(a)(5)(B), arguing that the production count is a lesser-included offense of the possession count. Def.'s Mot. at 9. His claim does not require the court to look beyond the existing record. In similar circumstances, the Eleventh Circuit has addressed the merits of a double-jeopardy claim to determine whether the claim was waived by the defendant's guilty plea. See Bonilla, 579 F.3d at 1241-43 (); Smith, 532 F.3d at 1128-29 (); see also United States v. Kaiser, 893 F.2d 1300, 1303 (11th Cir.1990)("Kaiser's guilty plea did not waive his double jeopardy claim" because whether one count was a lesser included offense of another count "can be determined from the face of the indictment.").1 Thus, the court must address the merits of Dean's double-jeopardy claim to determine whether the claim was waived.
The government contends that Dean waived both of his claims, but offers no arguments specific to waiver of the overbreadth claim. Finding no reason to treat the overbreadth claim differently from the double-jeopardy claim, the court addresses the merits of the overbreadth claim as well.
The Fifth Amendment's Double Jeopardy Clause provides that "no person ... shall be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The clause prohibits "a second prosecution for the same offense after an acquittal; a second prosecution for the same offense after a conviction; and multiple punishments for the same offense." United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). The prohibition against multiple punishments for the same offense is at issue in this case.
"The protection against multiple punishments for the same offense is `designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature.'" Bonilla, 579 F.3d at 1241 (citations omitted). When legislative intent is unclear, courts "determine[] whether a defendant has been punished twice for the `same offense' by applying the rule set forth in Blockburger v. United States, [284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)]." Rutledge v. United States, 517 U.S. 292, 297, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996). "Under Blockburger, when a single, completed criminal transaction violates two or more criminal statutes, the Double Jeopardy Clause does not shield a defendant against prosecution under one or more of the applicable statutes so long as `each statute requires proof of an additional fact which the other does not.'" United States v. Williams, 527 F.3d 1235, 1240 (11th Cir.2008) (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. 180). In contrast, where a defendant has been charged with a crime that is a lesser-included offense of another charged crime, the Double Jeopardy Clause protects that defendant from being convicted of both crimes. Rutledge, 517 U.S....
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