In a recent decision, the U.S. Court of Appeals for the Second Circuit concluded that the “plain language” of 18 U.S.C. 2252(a)(4) will support only one conviction for possession of multiple images of child pornography, no matter how many images there may be.

The defendant in United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009), was convicted on 11 counts of possession of child pornography: one for each image found in his home by investigators. The images were stored in three external hard drives kept in two different rooms: one image on one drive, three on another, and seven on the third. The appellant, citing United States v. Lacy, 119 F.3d 742 (9th Cir. 1997), argued for the first time on appeal that he should have been subject to only three convictions: one for each hard drive that contained the images. The government, arguing that each image constituted an “allowable unit of prosecution,” took the predictable position that all eleven convictions should stand.

The appeals court rejected both arguments. Relying on the language in Section 2252(a)(4)(B) which criminalizes possession of one “or more” matter depicting child pornography, the court found that a person possessing multiple images “has violated the statute only once.” 564 F.3d at 155 (emphasis added). The court further found its interpretation consistent with the affirmative defense under Section 2252(c)(1), which allows an accused to defend against a charge on the grounds that he possessed fewer than three images — a defense which the court concluded contemplates a single charge of multiple images. Id. The court also found that nothing in the legislative history suggested a contrary congressional intent. Id. at 155-56. Applying plain error analysis, the court unsurprisingly found that eleven convictions where only one should stand met the test for such error.

In dicta, the court endorsed reasoning in two recent appellate decisions concluding that an accused cannot be convicted of both receiving and possessing the same item.   See United States v. Davenport, 519 F.3d 940 (9th Cir. 2008); United States v. Miller, 527 F.3d 54 (3d Cir. 2008).  The court did not rely on their analyses, however, because the appellant was convicted of receiving and possessing different items. 564 F.3d at 158-9.

The court likewise reserved judgment on how the statute should be applied when the government can show the accused acquired the images on different occasions or stored them at different sites because the government neither pled nor proved that was the case. Id. at 155, fn. 5.  Prosecutors who charge Section 2252 offenses should take note of this open question and seek to distinguish their cases by alleging the various dates of receipt shown in the file directory of electronic images, and different storage sites as the facts warrant.

5 Responses to “Second Circuit case on multiplicity in Section 2252(a)(4) prosecutions”

  1. dreadnaught says:

    Prosecutors who charge Section 2252, go to US v. Medina, read Judge Stucky’ dissent, rethink your decision to charge Section 2252. Draft a 134 (1) or (2) and save ration of aggravation for all.

  2. Non-Mensa says:

    A couple of questions:

    Does the term “any” operate differently than “one or more”? If so, how?

    Does this mean that one could conceivably be charged with multiple counts of 2252(a)(1)-(3), but may only be charged once for (a)(4)?

    I can imagine a scenario in which a person commits multiple acts of “receiving”, whereupon each receipt could logically be construed as a possession, but if the person is not caught in the act, then there is only one underlying offense.

    I suppose it all boils down to A9)(1)-(3) being criminal acts whereas (a)(4) is a criminal status.

  3. Christopher Mathews says:

    Non-Mensa: The government argued that Congress intended to punish “any” possession, an argument the Polouizzi court accepted. The court did not agree, however, that this intent meant Congress also “intended to permit separate prosecution and punishment for each such item or image possessed.” 564 F.3d at 156 (citing Heflin v. United States, 385 U.S. 415 (1959)).

    As I read the decision, one conviction can be sustained for possession of any number of images — but only one conviction.

  4. Publius says:

    Dreadnaught hits the nail on the head.

  5. Anonymous says:

    Is “save ration of aggravation” part of the dissent’s binding guidance too? Glad you’re advising us prosecutors.