Counting Crimes When Defendants Possess Many Images of Child Pornography on Several Devices

Imagine a defendant in a child pornography case has two computers in his home. Each computer contains twenty images of child pornography. Has the defendant committed one single crime of possessing forty images? Or has he committed two crimes of possessing twenty images each? Alternatively, has the defendant committed forty distinct crimes of possession? Put another way, should the number of crimes be determined by the number of images, the number of physical devices, or simply grouped together as a single offense?

Courts have answered these questions by considering the Double Jeopardy Clause of the Fifth Amendment, which instructs that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” Under this provision, a defendant cannot be punished twice for the same act. The difficult question is, what exactly is the “act” prohibited by child pornography laws? Courts have answered this question by undertaking careful and sometimes hypertechnical readings of the different laws that punish possession of child pornography. As a result, there is no one answer to the question. Under recent cases, at least, the answer depends on the specific statute.

In some instances, courts have held that the relevant statute makes possessing many images on multiple devices one single crime. Consider United States v. Chiaradio, __ F.3d. __, 2012 WL 2821892 (1st Cir. 2012), which was brought under 18 U.S.C. § 2252(a)(4)(B). A search of the defendant’s home revealed a desktop computer and laptop computer. The desktop contained 5,000 images and the laptop contained 2,000 images. Both computers were connected to the defendant’s home wireless network, allowing the exchange of files between them. Prosecutors charged the defendant with two counts of violating 18 U.S.C. § 2252(a)(4)(B) – that is, one count for each computer. On appeal following conviction, the First Circuit ruled that the defendant had committed only one crime rather than two.

The Chiaradio court reasoned that before being amended in 1998, § 2252(a)(4)(B) had prohibited only the possession of “three or more images” of child pornography. Circuit precedent at that time had held that the reference to multiple images indicated a Congressional intent to treat possession of many images as one crime. In 1998, the statute was amended to prohibit “one or more images,” but the Fifth Circuit reasoned that there was no reason to treat the change in number as a change in the intent to treat possession of multiple images as a single act of possession. As a result, “at least in circumstances similar to the circumstances of this case,” a person “who simultaneously possesses a multitude of forbidden images at a single time and in a single place will have committed only a single offense.” Id. at *5.

In other instances, courts have held that the relevant statute makes possessing many images on multiple devices as many crimes as there are physical devices. Consider United States v. Hinkeldey, 626 F.3d 1010 (8th Cir. 2010), a case involving 18 U.S.C. § 2252A(a)(5). 18 U.S.C. § 2252A is basically a mirror image of 18 U.S.C. § 2252 that was enacted in the 1990s in response to concerns with virtual and morphed child pornography. It basically repeats the prohibition in § 2252 and then has some broader definitions to go beyond “traditional” real images, at least to the extent constitutionally allowed. In Hinkeldey, investigators searched the defendant’s home and found over 1,500 images of child pornography on six different storage devices: a computer, a zip drive, and four computer disks. The government charged the defendant with six counts of possession under § 2252A(a)(5)(B) – one for each physical storage device. Following conviction on all six counts, the Eighth Circuit affirmed the six separate convictions.

The Hinkeldey court emphasized the textual differences between § 2252(a)(4) and § 2252A(a)(5). Section 2252(a)(4) prohibits the collective act of possessing “one or more images” on whatever physical storage devices may exist. In contrast, § 2252A(a)(5) focuses on the distinct physical storage device, as it punishes one who knowingly possesses “any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography.” The textual difference is subtle, but the courts have found it important. Under the cases, then, prosecutors must group acts of possession of images on several physical devices as a single count of possession if they charge the case under § 2252(a)(4). On the other hand, they can charge as many counts of possession as there are physical devices that contain contraband images if they charge the case under § 2252A(a)(5).

Finally, courts have sometimes interpreted the relevant statute so that possession of each each individual image constitutes its own separate crime. Consider State v. McPherson, 269 P.3d 1181 (Ct. App. Ariz. 2012), a case involving Arizona’s child pornography statute. The defendant possessed seven images on a single DVD, and the state charged the defendant with seven counts of possession. The defendant was convicted of all seven counts, and the sentencing court imposed a ten-year punishment for each act of possession to run consecutively. As a result, the defendant was sentenced to a 70-year prison term for possessing a single DVD with seven images. The Court of Appeals affirmed the conviction:

Section 13–3553(A)(2) prohibits “possessing any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.” A “’visual depiction’ includes each visual image that is contained in an undeveloped film, videotape or photograph or data stored in any form and that is capable of conversion into a visual image.” A.R.S. § 13–3551(11). [T]he legislature intended these statutes to criminalize each image that constitutes child pornography because its very existence harms the victim it depicts. Even identical images, therefore, result in separate prosecution and punishment. See A.R.S. §§ 13–705(M), 13–3553(C) (requiring consecutive sentences for each conviction of sexual exploitation of minor under fifteen). See also A.R.S. § 13–711(A) (“Except as otherwise provided by law, if multiple sentences of imprisonment are imposed on a person at the same time, the sentence or sentences imposed by the court shall run consecutively.”).

Under Arizona law, we . . . must conclude that separate convictions and punishments for different images on the same DVD are constitutionally permissible because the legislature intended the unit of prosecution to be each individual “depiction.”

This brings us to the two big questions. First, as a matter of statutory interpretation, are you convinced by these cases — and in particular the different treatment of § 2252(a)(4) and § 2252A(a)(5)? And second, as a matter of policy, which is the best approach? Should the number of crimes be determined by the number of images, the number of physical devices, or simply grouped together as a single offense? My own view is that it makes the most sense to group all the acts of possession as a single offense, and then to have sentencing enhancements based on the overall number of images. Do you agree?