United States v. Johnston

When the indictment arises from the same actions, a defendant may not be convicted of both possession and receipt of child pornography since possession is a lesser-included offense of receipt.

James Johnston was convicted of possessing, receiving, and conspiring to produce child pornography and to travel internationally to engage in illicit sex. Johnston appealed his convictions of receiving and possessing child pornography, making a challenge under the Double Jeopardy Clause of the Fifth Amendment. On appeal, the Ninth Circuit reviewed Johnston’s indictment and jury instructions, and found that they simply referenced the date range in which receipt occurred, instead of specifying which convictions stem from which dates. The panel found that the imprecision made it unclear as to whether the jury convicted the defendant based on separate actions, or whether the double conviction arose from the same act. The panel noted that although it is possible for a defendant to be convicted of both possession and receipt of child pornography, it is necessary that the two convictions stem from two distinct actions. The panel affirmed the convictions of receipt of child pornography and conspiracy to produce child pornography, but vacated the judgment of possession of child pornography with instruction to remand. The panel reasoned that Johnston should not have been convicted of both receipt and possession of the same images on the same device, since possession is a lesser-included offense of receipt of child pornography. Therefore, the panel decided that imposing two convictions under the same statute for the same conduct violated the Fifth Amendment’s Double Jeopardy Clause. AFFIRMED in Part, VACATED in Part, and REMANDED.