Charges of CP Possession Based on Different Devices Were Multiplicitous

United States v. Elliott, 2019 WL 4252182 (10th Cir. September 9, 2019) (NM): Elliot was convicted 3 counts of producing child pornography and 4 counts of possessing it. Each of the four possession counts charged a different electronic device or medium on which Elliott stored his collection. The district court ordered the 240 month prison term for each possession count, to run consecutively. Elliott said 3 of those 4 counts were multiplicitous and violated the Double Jeopardy Clause. Because he possessed the different electronic devices in the same physical location and at the same time, he should not have been convicted of distinct possession counts for each device.

The panel agreed. The panel said the plain text of 18 U.S.C. § 2252A(a)(5)(B) does not clearly define the appropriate unit of prosecution. Since it includes the ambiguous modifier ‘any’ before the enumerated list of storage materials, the statute creates sufficient ambiguity as to the correct unit of prosecution. In others words, the statute is ambiguous as to whether the unit of prosecution is a single device containing child pornography or the simultaneous possession of multiple devices containing that pornography. According to the rule of lenity, distinct charges for each electronic device or medium were improper. The panel notes that although part of his collection was stored in a Dropbox account on servers outside New Mexico, Elliott still simultaneously possessed those images with the others on different devices. His iPhone was ‘synced’ to the Dropbox account and he accessed the account from the same location as the iPhone. The panel vacated Elliott's convictions and sentences on all but one of the child pornography possession convictions.