United States v. Brashear

• Decision Date: 01 November 2012
• Docket Number: CRIMINAL NO. 4:11-cr-0062
• Parties: UNITED STATES OF AMERICA v. JEREMY T. BRASHEAR
• Court: U.S. District Court — Middle District of Pennsylvania

UNITED STATES OF AMERICA

v.JEREMY T. BRASHEAR

CRIMINAL NO. 4:11-cr-0062

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Date: November 1, 2012

(Judge Conner)

MEMORANDUM

Presently before the court is defendant Jeremy Brashear's ("Brashear") motion (Doc. 56) to dismiss the indictment. The motion has been fully briefed. For the following reasons, the motion will be denied.

I. Discussion¹

In the case sub judice, Brashear raises various constitutional challenges to 18 U.S.C. § 2252 relating to charges brought against him for possession of child pornography. At the outset, the court notes that Brashear, through his counsel, concedes that the constitutional challenges discussed infra "have been raised and rejected in various District and Circuit Court in the federal system . . . . [and that] [t]he instant Motion is being filed to preserve the constitutional challenges raised with respect to the pending federal indictment in the event it becomes necessary to pursue an appeal." (Doc. 56, ¶¶ 27, 28). The court appreciates this candor, but willaddress the arguments in seriatim to preserve its own rulings on the issues presented.

A. Double Jeopardy and Multiplicity

Brashear first argues that the government is punishing him multiple times for the same conduct because the indictment alleges that he distributed, received, and possessed child pornography.² (Doc. 57, at 2).

The indictment charges Brashear with the following: (1) distributing child pornography, namely, a video with the file name: "Stickam.com-spoiled_princess (14) [highlightes].avi," on November 30, 2010, in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1); (2) receiving in excess of 100 videos and 1,500 pictures containing child pornography between November 30, 2010, and December 16, 2010, in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1); and, (3) possessing in excess of 100 videos and 1,500 pictures containing child pornography on December 16, 2010, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(1). (See Indictment Counts I, II, & III).

Rule 7(c)(1) of the Federal Rules of Criminal Procedure provides, in pertinent part, an "indictment . . . must be a plain, concise, and definite written statement of the essential facts constituting the offense charged . . . ." Fed. R. Crim. Pro. 7(c)(1). An indictment is sufficient if "it contains the elements of the offense intended to becharged and sufficiently apprises the defendant of what he must be prepared to meet, and [also] enables the defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense." United States v. Hodge, 211 F.3d 74, 76 (3d Cir. 2000) (internal quotations omitted). Furthermore, the Third Circuit recognized that when an indictment is deemed deficient "dismissal [must be considered] 'the most drastic remedy.'" United States v. Bansal, 663 F.3d 634, 661 (3d Cir. 2011); see also United States v. Cameron, 662 F.Supp.2d 177, 180 (D.Me. 2009) ("Because dismissing an indictment 'directly encroaches upon the fundamental role of the grand jury,' the power of the Court to dismiss an indictment is reserved for extremely limited circumstances.") (citing United States v. Edgar, 82 F.3d 499 (1st Cir. 1996); Whitehouse v. United States Dist. Court, 53 F.3d 1349 (1st Cir. 1995); United States v. Thomas, 519 F. Supp. 2d 141(D. Me. 2007) (internal citations omitted)).

Generally, the Fifth Amendment's Double Jeopardy clause prohibits a defendant from being punished and successively prosecuted multiple times for the same criminal offense. See United States v. Conley, 37 F.3d 970, 975 (3d Cir. 1994). Double jeopardy is also implicated when a defendant is convicted of two separate crimes, one of which is a lesser included offense of the other. See United States v. Cesare, 581 F.3d 206, 207 (3d Cir. 2009) (acknowledging that a defendant cannot be sentenced for both bank robbery and armed bank robbery because the former was a lesser included offense of the latter).

Is it well-settled law that possession of child pornography is a lesser included offense of receiving child pornography when both charges relate to the same image on the same date. See United States v. Miller, 527 F.3d 54, 72 (3d Cir. 2008); United States v. Bobb, 577 F.3d 1366, 1374-75 (11th Cir. 2009); United States v. Davenport, 519 F.3d 949, 947 (9th Cir. 2008) (". . . the offense of possessing child pornography is a lesser included offense of the receipt of child pornography."); United States v. Woods, 730 F. Supp. 2d 1354, 1377 (S.D.Ga. 2010) (explaining that the Bobb court held "possession of child pornography is a lesser-included offense of receipt of child pornography under 18 U.S.C. § 2252A and that a conviction for both offenses based on the same conduct violates the Double Jeopardy Clause"). The government may include both offenses in the indictment and prosecute both through trial. Id.; see Davenport, 519 F.3d at 944 (defendant conceding that government is permitted to include both offenses in indictment and pursue both throughout trial, so long as judgment was not entered against him on both counts); Ball v. United States, 470 U.S. 856, 865 (1985) (although the government may pursue a multi-count indictment where a singular act is the premise for both receipt and possession, the court cannot impose two convictions or sentences based on that indictment). It is the punishment of both offenses, not the prosecution, that is unconstitutional. See United States v. Zacherle, No. CR-06-0100-FVS, 2008 WL 5000145, at *4 (E.D. Wash. 2008). Therefore, the inclusion of both receipt and possession charges in the indictment does not violate principles of multiplicity or double jeopardy; rather, only his conviction and sentence on both offenses would constitute a violation ofBrashear's constitutional rights. Accordingly, the motion will be denied on this ground.³

By contrast, it has been held that possession of child pornography is not a lesser included offense of distribution of child pornography, especially when the two occur on different dates. See United States v. Faulds, 612 F.3d 566, 571 (7th Cir. 2010) (explaining that, "[e]ven if it is ordinarily true that to distribute something one must also possess it, it does not follow that one must possess it a month after the distribution is complete. Congress intended to punish possession of child pornography as well as distribution, and [defendants'] continued possession of the pornography was an independent crime subject to sanction. The fact that he happened also to distribute it a month earlier does not insulate him from liability for continued possession a month later.") In the case sub judice, Brashear is charged with distributing a video containing child pornography on November 30, 2010. (Count I). However, he is charged with possessing over 100 video and 1,500 pictures on December 16, 2010, one month subsequent to the events leading to the distribution charge. (Count III). That the government charged him for both is not a violation of his constitutional rights. Brashear's continued possession of the videoof child pornography one month after he distributed it is a separate and distinct violation of the federal child pornography laws, and the government was legally sound in charging both counts under 18 U.S.C. §2252A.

B. Void for Vagueness

Brashear next argues that 18 U.S.C. § 2252A is void because it is too vague to provide adequate notice to individuals of ordinary intelligence of the conduct that is prohibited and thereby invites arbitrary and discriminatory enforcement. (See Doc. 57, at 7).

The "void for vagueness" doctrine stems from due process requirements of the Fourteenth Amendment and "is designed to give 'fair warning' of prohibited conduct[]" to "men of common intelligence[.]" See Scavone v. Pa. State Police, No. 12-1071, 2012 WL 4857776, at *2 (3d Cir. Oct. 15, 2012) (citing San Filippo v. Bongiovanni, 961 F.2d 1125, 1135 (3d Cir. 1992); United States v. Loy, 237 F.3d 251, 262 (3d Cir. 2001) (internal citations omitted). "A statute violates due process of law if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Id. (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). A statute is not unconstitutionally vague merely because it may sometimes be difficult to establish whether an incriminating fact has actually been proven. See United States v. Williams, 553 U.S. 285, 306 (2008).

Brashear argues that because courts, and therefore "men of common intelligence," have struggled with what constitutes "receipt" and "possession" 18 U.S.C. § 2252A is overly vague. Brashear does not cite to any caselaw on point, and, in fact, cites to cases wherein the courts were asked to decide what constituted knowing possession or distribution. See Doc. 57, at 8-9 (citing United States v. Kuchinski, 469 F.3d 853 (9th Cir. 2006); United States v. Romm, 455 F.3d 990 (9th Cir. 2006); United States v. Stulock, 308 F.3d 922 (8th Cir. 2002); United States v. Watzman, 486 F.3d 1004 (7th Cir. 2007); United States v. Tucker, 305 F.3d 1193 (10th Cir. 2002)). Notably, this same argument has been raised and rejected by the Seventh Circuit. See United States v. Woods, 730 F. Supp. 2d 1354, 1364 (7th Cir. 2010) (explaining that the "cases that Defendant contends have given different interpretations to the meaning of receipt and possession do not in fact address what it means to receive or possess child pornography. Rather, these cases have explained what is required to establish knowing receipt or possession.") (emphasis in original).

The court finds that the distribution, receipt, and possession of child pornography prohibited by the provisions of 18 U.S.C. § 2252A are not unconstitutionally vague. The provisions at issue proscribe the knowing distribution, receipt, or possession of child pornography which has been transmitted through...