Split Created: Are Potential Affirmative Defenses Part of the Double Jeopardy Analysis?

Per United States v. Davenport, 2008 WL 732491 (9th Cir. Mar. 20, 2008)

A forensic analysis of Winston Davenport’s computer revealed more than 800 pictures and videos containing child pornography. Davenport entered a plea agreement and pled admitted that he was guilty of the each of the elements of both receipt and possession of child pornography. He was sentenced to 78 months incarceration and lifetime supervised release for each crime, the sentences to be served concurrently. Davenport appeals his conviction, arguing that it violates the Fifth Amendment prohibition on double jeopardy because the same conduct underlies both counts. As this was not raised at sentencing, the Ninth reviews for plain error.

The Fifth Amendment prohibits multiple punishments for the same offense. Two statutes do not prohibit the same offense if one “requires proof of a fact which the other does not.” Blockburger, 284 U.S. 299, 304 (1932). Receipt and possession purportedly differ from each other in two important aspects. First, receipt requires that the images themselves travel in interstate commerce, whereas possession only requires that the materials used to make the image so have traveled. Secondly, the possession charge is subject to an affirmative defense and safe harbor for those who attempt to destroy the image or turn it in to law enforcement authorities.

The Ninth Circuit panel rejects the first distinction, reasoning that satisfaction of the commerce nexus for receipt would also satisfy it for possession. It continues to also reject the second basis for distinction, reasoning that this affirmative defense, which relies on mitigation rather than directly negating an element of the crime, does not require the government to prove an additional fact, per Blockburger. The panel therefore vacates the sentence and remands for the district court to vacate one of the two convictions. Judge Graber dissents, arguing that CAs 1,4 have applied Blockburger to include affirmative defenses. She notes that these two are the only circuits to have addressed the issue, although the panel cited the CA 2 in support of its rejection of mitigating affirmative defenses. She concludes her dissent by noting that congressional intent, which is an important double jeopardy inquiry, clearly authorizes separate punishments for the two crimes.