United States v. Austin
| Decision Date | 16 July 2018 |
| Docket Number | No. 3:16-cr-00068,3:16-cr-00068 |
| Citation | 321 F.Supp.3d 820 |
| Parties | UNITED STATES of America, Plaintiff, v. Abraham Amos AUSTIN, Defendant. |
| Court | U.S. District Court — Middle District of Tennessee |
Henry C. Leventis, U.S. Attorney's Office, Nashville, TN, for Plaintiff.
In his Sentencing Memorandum (Doc. No. 97), Abraham Amos Austin requests that his plea of guilty to Count One of the Indictment charging receipt of child pornography between June 12, 2009 and September 10, 2015 be vacated, and that he be sentenced only on Count Two, which charges possession of child pornography on September 11, 2015. In response, the Government has filed a Motion to Dismiss Count Two (Doc. No. 103), leaving the receipt count for sentencing. Having fully considered the arguments of the parties and the applicable law, the Government's motion will be granted.
"Possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B) is a lesser-included offense of receipt of child pornography under 18 U.S.C. § 2252A(a)(2)(A)." United States v. Dudeck, 657 F.3d 424, 426 (6th Cir. 2011). After all, "one obviously cannot ‘receive’ an item without then also ‘possessing’ that item, even if only for a moment." United States v. Ehle, 640 F.3d 689, 695 (6th Cir. 2011). Because the Fifth Amendment's Double Jeopardy Clause prohibits a defendant from being placed "in jeopardy of life or limb" twice for the same offense, U.S. Const. amend. V, a defendant cannot be sentenced for both receipt and possession of child pornography unless "separate conduct is found to underlie the two offenses," Dudeck, 657 F.3d at 426. See also, United States v. Jamerson, 536 F. App'x 606, 609 (6th Cir. 2013) (); United States v. Hutchinson, 448 F. App'x 599, 603 (6th Cir. 2012) ().
In this case, while the Government "does not concede the defendant's multiplicity argument," it "does acknowledge that the charges are similar in nature and timing," (Doc. No. 103 at 1), and does not offer proof that "separate conduct" underlies the offenses. Instead, "in the interest of efficiency," (Doc. No. 103 at 3) the Government requests dismissal of Count Two.
In so moving, the Government begins by pointing out that charging decisions are within the prosecutor's bailiwick, and quotes the following passage from Jamerson:
It is well established that prosecutors have broad discretion in charging decisions. See Gardenhire v. Schubert, 205 F.3d 303, 319 (6th Cir. 2000). Even when two statutes with "identical elements" prohibit the same criminal conduct but provide different penalties, the government may prosecute under either statute "so long as it does not discriminate against any class of defendants." United States v. Batchelder, 442 U.S. 114, 124-25, 99 S.Ct. 2198, 60 L.Ed. 2d 755 (1979). A criminal defendant has no constitutional right to choose which penalty he will receive. Id. at 125, 99 S.Ct. 2198. Because possession is a lesser-included offense of the receipt charge, the penalty for possession is less than the receipt of child pornography offense and the government has the broad discretion to charge [the defendant] with the offense carrying the higher penalty.
(Id. at 2-3, quoting Jamerson, 536 F. App'x at 609 ). The Government also quotes United States v. Marshall, 736 F.3d 492, 501 (6th Cir. 2013), which confirms that "[w]hether to prosecute and whether to charge the greater offense or the lesser-included offense are decisions well within the prosecutor's discretion." (Id. at 2).
Fair enough, but the Government already exercised that discretion back in March 2016 when it chose to ask the grand jury to charge Austin with both possession and receipt of child pornography. See, United States v. Huyck, No. 8:13CR107, 2015 WL 4727462, at *7 (D. Neb. Aug. 10, 2015) (). In the absence of evidence that the charges were based on "separate conduct," that choice proved to be problematic given the Double Jeopardy Clause of the Fifth Amendment, and presents the entirely different question that is now before the Court. Unfortunately, the answer is nowhere near as clear-cut as that suggested by the parties in their briefing.
The Government relies on three cases: Hutchinson; United States v. Gerick, 568 F. App'x 405 (6th Cir. 2014) ; and United States v. Mazel, 603 F. App'x 379 (6th Cir. 2015). Each of those cases involved receipt and possession of child pornography and stated that, when this pairing of charges violates the Double Jeopardy Clause, the court must vacate the conviction for possession because it is the lesser included offense. Gerick, 568 F. App'x 405 ; Mazel, 603 F. App'x at 383 ; Hutchinson, 448 F. App'x at 604. In doing so, all three cite United States v. DeCarlo, 434 F.3d 447, 457 (6th Cir. 2006) for the more general proposition that, where convictions violate the Double Jeopardy Clause, the conviction for the lesser-included offense is to be vacated, with Gerick even describing this as being "well established" law. Gerick, 568 F. App'x at 408.
In response, Austin points out that all of the cases on which the Government relies for dismissal of the receipt count are unpublished, and "unpublished opinions are never controlling authority." Fonseca v. Consol. Rail Corp., 246 F.3d 585, 591 (6th Cir. 2001) (citing Salamalekis v. Comm'r of Soc. Sec., 221 F.3d 828, 833 (6th Cir. 2000) ). He acknowledges the reference in each case to DeCarlo, a published decision, but argues DeCarlo got it wrong.
In DeCarlo, defendant was convicted of interstate travel for the purpose of engaging in illicit sexual conduct, along with interstate travel with intent to have sex with a child younger than 12 years of age. Finding the former charge a lesser included offense of the latter, the Sixth Circuit concluded that convictions on both counts violated the Double Jeopardy Clause, remanded the case, and "instructed" the district court "to vacate the conviction" on the lesser count. DeCarlo, 434 F.3d at 457.
In its substantive discussion, the Sixth Circuit in DeCarlo relied on Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996), where defendant was convicted of both conspiring to distribute cocaine as well as conducting a continuing criminal enterprise. The Supreme Court found the conspiracy count to be a lesser included offense, and, thus, one of the two counts "must be vacated." Id. at 307, 116 S.Ct. 1241. Rutledge, in turn, relied on Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985), that involved receipt and possession of the same weapon. Finding a double jeopardy violation, the Supreme Court "vacate[d] the judgment of the Court of Appeals and remand[ed] with instructions to have the District Court exercise its discretion to vacate one of the convictions." Ball, 470 U.S. at 865, 105 S.Ct. 1668. Because Ball gave the district court discretion as to the count to be vacated, and Rutledge did not mention which count (the greater or lesser included) was to be vacated, Austin argues that the Sixth Circuit erred in DeCarlo by mandating that the lesser-included offense be vacated.
Austin is not alone in his reading of Rutledge and Ball. For example, in United States v. Fischer, another case involving both continuing criminal enterprise and conspiracy to distribute narcotic charges, the government went "so far as to suggest that the lesser-included offense should be automatically stricken, thus denying the district court the discretion to decide which of the two sentences to vacate under Rutledge." 205 F.3d 967, 970 n. 2 . (7th Cir. 2000) (emphasis in original) Noting that "[t]he Rutledge opinion itself says nothing about how lower courts should follow its rule," the Seventh Circuit turned to Ball because it "alleviate[d] the double-punishment problem" by leaving it to the district court to decide which conviction to vacate. Id."Thus, when a defendant is convicted of an offense and a lesser-included offense, the district court should decide which conviction to vacate." Id. Other circuits read Ball and Rutledge the same way. United States v. Maier, 646 F.3d 1148, 1154 (9th Cir. 2011) ; United States v. Bobb, 577 F.3d 1366, 1372 (11th Cir. 2009).
Still other Courts of Appeal, while citing Ball and/or Rutledge, dictate which count to vacate, much like DeCarlo did. Thus, for example, the Fifth Circuit in United States v. Brito, 136 F.3d 397, 408 (5th Cir. 1998) stated that "is well settled that in cases of double jeopardy arising from the simultaneous charging of a greater and a lesser included offense, we dismiss the lesser included offense," and "[t]he Rutledge decision has not placed this practice in question." See also, United States v. Sellers, 657 F. App'x 145, 148 (4th Cir. 2016) ().
One way to resolve the seemingly inconsistent approaches would be to surmise that the appellate court is exercising the discretion when it directs the district court to vacate the lesser included offense. This, however, would run afoul of the Supreme Court's observation in Ball that, where a defendant...
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