The opinion of the court was delivered by: (Judge Conner)
Presently before the court is defendant Jeremy Brashear's ("Brashear") motion (Doc. 56) to dismiss the indictment. The motion has been fully briefed. For the following reasons, the motion will be denied.
In the case sub judice, Brashear raises various constitutional challenges to 18 U.S.C. § 2252 relating to charges brought against him for possession of child pornography. At the outset, the court notes that Brashear, through his counsel, concedes that the constitutional challenges discussed infra "have been raised and rejected in various District and Circuit Court in the federal system . . . . [and that]
[t]he instant Motion is being filed to preserve the constitutional challenges raised with respect to the pending federal indictment in the event it becomes necessary to pursue an appeal." (Doc. 56, ¶¶ 27, 28). The court appreciates this candor, but will address the arguments in seriatim to preserve its own rulings on the issues presented.
A. Double Jeopardy and Multiplicity
Brashear first argues that the government is punishing him multiple
times for the same conduct because the indictment alleges that he
distributed, received, and possessed child pornography.*fn2
(Doc. 57, at 2).
The indictment charges Brashear with the following: (1) distributing child pornography, namely, a video with the file name: "Stickam.com-spoiled_princess
(14) [highlightes].avi," on November 30, 2010, in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1); (2) receiving in excess of 100 videos and 1,500 pictures containing child pornography between November 30, 2010, and December 16, 2010, in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1); and, (3) possessing in excess of 100 videos and 1,500 pictures containing child pornography on December 16, 2010, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(1). (See Indictment Counts I, II, & III).
Rule 7(c)(1) of the Federal Rules of Criminal Procedure provides, in pertinent part, an "indictment . . . must be a plain, concise, and definite written statement of the essential facts constituting the offense charged . . . ." Fed. R. Crim. Pro. 7(c)(1). An indictment is sufficient if "it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet, and [also] enables the defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense." United States v. Hodge, 211 F.3d 74, 76 (3d Cir. 2000) (internal quotations omitted). Furthermore, the Third Circuit recognized that when an indictment is deemed deficient "dismissal [must be considered] 'the most drastic remedy.'" United States v. Bansal, 663 F.3d 634, 661 (3d Cir. 2011); see also United States v. Cameron, 662 F.Supp.2d 177, 180 (D.Me. 2009) ("Because dismissing an indictment 'directly encroaches upon the fundamental role of the grand jury,' the power of the Court to dismiss an indictment is reserved for extremely limited circumstances.") (citing United States v. Edgar, 82 F.3d 499 (1st Cir. 1996); Whitehouse v. United States Dist. Court, 53 F.3d 1349 (1st Cir. 1995); United States v. Thomas, 519 F. Supp. 2d 141(D. Me. 2007) (internal citations omitted)).
Generally, the Fifth Amendment's Double Jeopardy clause prohibits a defendant from being punished and successively prosecuted multiple times for the same criminal offense. See United States v. Conley, 37 F.3d 970, 975 (3d Cir. 1994). Double jeopardy is also implicated when a defendant is convicted of two separate crimes, one of which is a lesser included offense of the other. See United States v. Cesare, 581 F.3d 206, 207 (3d Cir. 2009) (acknowledging that a defendant cannot be sentenced for both bank robbery and armed bank robbery because the former was a lesser included offense of the latter).
Is it well-settled law that possession of child pornography is a lesser included offense of receiving child pornography when both charges relate to the same image on the same date. See United States v. Miller, 527 F.3d 54, 72 (3d Cir. 2008); United States v. Bobb, 577 F.3d 1366, 1374-75 (11th Cir. 2009); United States v. Davenport, 519 F.3d 949, 947 (9th Cir. 2008) (". . . the offense of possessing child pornography is a lesser included offense of the receipt of child pornography."); United States v. Woods, 730 F. Supp. 2d 1354, 1377 (S.D.Ga. 2010) (explaining that the Bobb court held "possession of child pornography is a lesser-included offense of receipt of child pornography under 18 U.S.C. § 2252A and that a conviction for both offenses based on the same conduct violates the Double Jeopardy Clause"). The government may include both offenses in the indictment and prosecute both through trial. Id.; see Davenport, 519 F.3d at 944 (defendant conceding that government is permitted to include both offenses in indictment and pursue both throughout trial, so long as judgment was not entered against him on both counts); Ball v. United States, 470 U.S. 856, 865 (1985) (although the government may pursue a multi-count indictment where a singular act is the premise for both receipt and possession, the court cannot impose two convictions or sentences based on that indictment). It is the punishment of both offenses, not the prosecution, that is unconstitutional. See United States v. Zacherle, No. CR-06-0100-FVS, 2008 WL 5000145, at *4 (E.D. Wash. 2008). Therefore, the inclusion of both receipt and possession charges in the indictment does not violate principles of multiplicity or double jeopardy; rather, only his conviction and sentence on both offenses would constitute a violation of Brashear's constitutional rights. Accordingly, the motion will be denied on this ground.*fn3
By contrast, it has been held that possession of child pornography is not a lesser included offense of distribution of child pornography, especially when the two occur on different dates. See United States v. Faulds, 612 F.3d 566, 571 (7th Cir. 2010) (explaining that, "[e]ven if it is ordinarily true that to distribute something one must also possess it, it does not follow that one must possess it a month after the distribution is complete. Congress intended to punish possession of child pornography as well as distribution, and [defendants'] continued possession of the pornography was an independent crime subject to sanction. The fact that he happened also to distribute it a month earlier does not insulate him from liability for continued possession a month later.") In the case sub judice, Brashear is charged with distributing a video containing child pornography on November 30, 2010. (Count I). However, he is charged with possessing over 100 video and 1,500 pictures on December 16, 2010, one month subsequent to the events leading to the distribution charge. (Count III). That the government charged him for both is not a violation of ...