United States v. Halliday

• Decision Date: 14 February 2012
• Docket Number: No. 10–2337.,10–2337.
• Citation: 672 F.3d 462
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Scott HALLIDAY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

672 F.3d 462

UNITED STATES of America, Plaintiff–Appellee,

v.Scott HALLIDAY, Defendant–Appellant.

No. 10–2337.

United States Court of Appeals, Seventh Circuit.

Argued May 9, 2011.Decided Feb. 14, 2012.

Joseph H. Hartzler (argued), Attorney, Office of the United States Attorney, Springfield, IL, for Plaintiff–Appellee.

Nangah Tabah (argued), Barry Levenstam, Attorney, Jenner & Block LLP, Chicago, IL, for Defendant–Appellant.

Before EASTERBROOK, Chief Judge, and WOOD and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

A federal grand jury charged Scott Halliday in a superseding indictment with two counts of receiving child pornography (in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1)) and one count of possessing child pornography (in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2)). The indictment charged that the receipt offenses occurred, respectively, “[o]n or before April 20, 2008,” and “[o]n or before May 27, 2008.” The possession count charged that the offense occurred “[o]n or between April 20, 2008, and May 27, 2008.” A jury returned a guilty verdict against Halliday on all three counts. On May 28, 2010, the district court sentenced Halliday on all three counts to a prison term totaling 240 months, and judgment was entered on June 2, 2010.

Halliday now appeals his convictions and sentence. First, he argues that the district court's entry of convictions and concurrent sentences on separate counts for receipt and possession of child pornography violates the Double Jeopardy Clause of the Fifth Amendment because possession is a lesser-included offense of receipt. Because we find that the evidence in this case sufficiently shows that the receipt and possession convictions were based on different conduct, we do not find plain error and affirm the entry of his convictions. Halliday also argues that his sentence was based on an erroneous assumption and was unreasonable. We conclude that the district court improperly relied on Halliday's supposed beliefs about the criminal nature of his acts, and vacate Halliday's sentence and remand for a resentencing.

I. BACKGROUND

In September 2007, Halliday married and moved into his wife's apartment in Rantoul, Illinois. In March 2008, they bought a new computer and set it up in their bedroom. Halliday installed LimeWire, a file-sharing software program that they used to download and watch movies. Halliday was a stay-at-home father to the couple's young son, and was spending, by his wife's account, up to ten hours a day on the computer. On May 28, Halliday moved out of his wife's apartment at her request and into his mother's home in Champaign.

In May and July 2008, a criminal investigator for the Illinois Attorney General's Office conducted an internet-based search for shared computer folders that contained suspected child pornography. On May 13, the investigator remotely downloaded from the Hallidays' computer seven shared files containing suspected child pornography. On July 17, the investigator downloaded another six files containing suspected child pornography. In November 2008, law enforcement officers obtained and executed a warrant to search Sarah Halliday's residence, and seized the computer there. Investigators analyzed the computer's hard drive and found 15 videos containing child pornography. The download dates for these videos were: April 20, 2008 (three videos), April 21 (one video), April 27 (six videos), May 1 (one video), May 2 (one video), May 12 (one video), May 26 (one video), and May 27 (one video).

Halliday was interviewed on the day of the search, and initially said he downloaded some child pornography by accident and tried to delete it. He later admitted he used search terms such as “underage girls” to locate pornographic movies involving minor females and that he was most likely responsible for any child pornography found on the computer.

Halliday was indicted and charged with two counts of receiving child pornography and one count of possessing child pornography. According to the indictment, the two receipt offenses occurred “on or before April 20, 2008” (Count One) and “on or before May 27, 2008” (Count Two). The possession offense (Count Three) occurred “on or between” those dates. In her opening statement the prosecutor stated that “[t]he first date and the first count is April 20, 2008. The second count is May 27, 2008.” As to the possession count, the prosecutor stated that “[t]he dates for this offense—and this is for Count 3—are between April 20, 2008, and May 27, 2008. So Count 1 and 2 are for the first time he received, the last time he received, and possession for everything in between.” During its case, the government published clips from eight videos, including clips from the first and last videos Halliday downloaded, April 20, 2008 (one video) and May 27 (one video), and six videos he downloaded in between, the dates of which were April 27 (three videos), May 1, 2008 (one video), May 2 (one video), May 12 (one video). In its closing arguments, the government stated that the two receipt counts were “for the two dates: April 20, 2008, and the very last time, May 27, 2008.” As to the possession count, the prosecutor stated, “[s]o now we're looking at the time period between April 20, 2008, and March—or May 27, 2008.” The court did not instruct the jury that it could not use the same videos to convict on both the receipt and possession counts.

The jury found Halliday guilty on all three counts. Halliday did not raise a double jeopardy objection following the verdict, or seek to prevent the district court from entering judgment on any of the three counts.

At sentencing on May 28, 2010, there were no objections to the pre-sentence investigation report, and the district court adopted it in its entirety. The pre-sentence report recommended that the two receipt and the possession counts be grouped together because of the “ongoing and continuous” nature of the offense, and applied United States Sentencing Guideline § 2G2.2(a)(2), which triggered a base offense level of twenty-two. Two levels were added because the material involved a minor who had not attained the age of 12 years; two were added because Halliday utilized LimeWire to facilitate downloading; and another two-level adjustment applied because of the use of a computer. The district court also found that the material involved sadistic or masochistic conduct or other depictions of violence, warranting a four-level adjustment. The court found that the offense involved 15 videos, equaling 1125 images, resulting in a five-level increase. The court therefore calculated a total offense level of thirty-seven, and a criminal history category of one, resulting in an advisory range of 210–262 months' imprisonment. The government requested a 210–month prison term, and the defense agreed with the government and stated that a within-Guidelines sentence would be “appropriate.”

Halliday spoke at sentencing, stating that he believed he was coerced into confessing, and asked to take a polygraph test to prove his innocence. He also stated that he had received ineffective assistance of counsel based on counsel's failure to call specific witnesses. The court stated that it would not sentence Halliday to the statutory maximum of 30 years, but would choose a “mid-range Guideline sentence in excess of what the Government asked for.” The court sentenced Halliday to 240 months' imprisonment, consisting of 240 months on the two receipt counts (Counts I and II) and 120 months on the possession count (Count III), to run concurrently. The court also imposed a fifteen-year term of supervised release.

II. ANALYSIS

A. Double Jeopardy Claim

Because Halliday did not raise a double jeopardy claim below, this court will review the claim for plain error. Fed.R.Crim.P. 52(b); United States v. Van Waeyenberghe, 481 F.3d 951, 958 (7th Cir.2007). “Under the plain error standard, the party asserting the error must establish (1) that there was in fact an error; (2) that the error was plain; and (3) that the error affects substantial rights.” United States v. Van Allen, 524 F.3d 814, 819 (7th Cir.2008) (internal quotations omitted). Even where plain error is found, the defendant is not automatically entitled to relief. The relief afforded by Rule 52(b) is discretionary, and “[w]e will not exercise our discretion to consider the error unless it ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see also United States v. Faulds, 612 F.3d 566, 568 (7th Cir.2010).

Halliday argues that the district court's entry of separate convictions for receipt and possession of child pornography was a violation of the Double Jeopardy Clause of the Constitution, because possession is a lesser-included offense of receipt. The Double Jeopardy Clause states 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. But Halliday's argument in reality is a question of statutory interpretation. The Supreme Court has stated that when multiple sentences are imposed in the same trial, “the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (emphasis added); see also Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). Courts may not “prescrib[e] greater punishment than the legislature intended.” Rutledge v. United States, 517 U.S. 292, 297, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) (quoting Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)). So the question is whether Congress intended to punish both receipt of child pornography and possession of the same child pornography.

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