In CP case, Court Clarifies Possession is a Lesser-included Offense of Receipt, Limits Victim's Damages to those Proximately Caused By Defendant

U.S. v. Benoit, 2013 WL 1298154 (4/3/13) (Okl.) (Published) - A couple of favorable defense decisions in a child porn case that saves the defendant some money, but the receipt conviction and prison sentence are affirmed. The child porn possession offense was a lesser-included offense of the child porn receipt offense. One can't knowingly receive without also knowingly possessing, [although one could possibly unknowingly receive and then knowingly continue to possess].. There was no clear indication of congressional intent to punish the offenses separately. The offenses involved the same "visual depictions" because the indictment alleged the same dates for each offense, both counsel stated to the jury they involved the same pictures and the instructions didn't refer to different pictures. The fine distinctions the government drew on appeal with respect to the evidence of the dates the images were created don't matter. The jury was never alerted to those distinctions. So the d. ct. must vacate one of the convictions.

The 10th adopts the majority view on restitution in child porn cases. Vicky is entitled only to damages that the defendant in particular proximately caused. Because proximate cause is such a widely accepted principle, the 10th refused to conclude Congress intended to abrogate it without good reason and there was no good reason. The evidence below was "relatively thin" as to how much of Vicky's losses the defendant was specifically responsible for. The 10th had no issue with the attorney fees award of $5,950, but it wasn't happy with the d. ct. dividing the total losses by the number of restitution judgments Vicky had previously received for a sum of $5,516. The d. ct. had not made a finding that the number of judgments was about equal to the number of end-users or that the defendant caused approximately the same amount of damages as other end-users.

On the bad news side, there was no government search of the defendant's computer when his girlfriend showed an officer child porn on the defendant's computer. The girlfriend asked the officer to come over after she discovered child porn on the defendant's computer when she was paying some bills online. After the officer arrived, the girlfriend's more computer-savvy friend said to the officer: "I can show the porn to you." The officer said "Okay." That response did not transform an otherwise private search into a government intrusion. The officer did not affirmatively encourage, initiate or instigate the private action. The officer had the right to seize the computer under the plain view doctrine after he saw the porn. He had the right to be where he was when he viewed the porn because the girlfriend had the actual authority to invite the officer into the home and office she shared with the defendant.. The officer was in a place where he could plainly view the incriminating evidence. The incriminating character of the evidence was immediately apparent.

The evidence was sufficient to establish an interstate nexus based on evidence the content of the images had been produced in another state. The d.ct. did not clearly err in refusing to accord an acceptance-of-responsibility reduction. It was not enough to get the reduction that that the defendant did not actively assert his innocence. At trial he contested many aspects of the government's case and didn't stipulate to evidence, causing the government much work and expense. The good § 3E1.1 10th Circuit cases, Garcia and Gauvin, don't say the reduction has to be given under the circumstances of those cases, only that the d. ct. did not abuse its discretion in doing so in those cases.