By Elizabeth DeFrance
On December 2, 2015, the Fourth Circuit Court of Appeals issued a published opinion in the criminal case, United States v. Schnittker. Michael Schnittker appealed his conviction for receipt of child pornography in violation of 18 U.S.C. 2252(a)(2), arguing that it was barred by the Fifth Amendment’s Double Jeopardy Clause because he previously pled guilty to possession of child pornography in violation of 18 U.S.C. 2252(a)(4).
Search Reveals Two Hard Drives Containing Pornographic Material
Schnittker was indicted for possession of child pornography and for receipt of child pornography based on images contained on two hard drives, a Maxtor hard drive and a Western Digital hard drive, found during a search of his home. Each hard drive contained over a thousand images and videos, many of which were duplicates. However, the Maxtor hard drive contained many files that were not also contained on the Western Digital hard drive. After Schnittker’s attorney informed the prosecutor he intended to enter a guilty plea for the possession charge, the government sent Schnittker an e-mail making it explicit that only the Western Digital hard drive would be used for the possession charge, and the Maxtor hard drive would be used for the receipt charge. In open court, just before Schnittker entered his guilty plea, the prosecutor stated for the record that the Maxtor hard drive would be used for the receipt count and was not covered under the plea. This was reiterated in the statement of facts Schnittker and his attorney signed in connection with the guilty plea. Schnittker was later convicted of receipt of child pornography based on images from the Maxtor hard drive. Schnitter appealed, claiming that his conviction violated the Double Jeopardy Clause of the Fifth Amendment.
Double Jeopardy is a Bar Only if Offenses are the Same in Law and Fact
Punishment for two offenses violates the Double Jeopardy Clause of the Fifth Amendment if the offenses are the same in law and in fact. Here, the court assumed without deciding that the offenses were the same in law because possession of child pornography is a lesser-included offense of receipt of child pornography.
To determine if offenses are the same in fact, the court first asks whether a reasonable person in the defendant’s position “would construe the count to which [he] pled guilty to cover the offense charged later in prosecution.” Then, if the court determines that a reasonable person in the defendant’s position would understand his guilty plea only covered the first offense, the court next asks whether “the possession conviction was based on an image the receipt of which did not form the basis of the receipt conviction.”
The Two Charges were Based on Distinct Unlawful Acts
The Court determined that Schnittker understood his guilty plea to possession of child pornography only covered the images contained on the Western Digital hard drive because the government made it expressly clear each hard drive would be used for a different charge. The Court cited the e-mail sent to Schnittker before the guilty plea was entered, the spreadsheets the government provided Schnittker detailing which images were contained on each hard drive, the government reiterated this point in open court right before Schnittker entered his guilty plea, and the statement of facts Schnittker and his attorney signed in connection with the guilty plea only named the Western Digital hard drive.
The Court then determined that the unlawful conduct covered under Shnittker’s guilty plea was distinct from the unlawful conduct covered in his later conviction for receipt of child pornography. This was based on the fact that many files on the Maxtor hard drive were not duplicates of files on the Western Digital hard drive.
The Conviction was Upheld
Shnittker’s conviction for receipt of child pornography was based on a different set of facts than those used for his guilty plea to possession of child pornography. Therefore the Court found no double jeopardy violation and Shnittker’s conviction was affirmed.
