United States v. Davenport ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30596
Plaintiff-Appellee, D.C. No.
v.  CR-06-00006-
WINSTON DAVENPORT, 1-DWM
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
November 6, 2007—Seattle, Washington
Filed March 20, 2008
Before: William C. Canby, Jr., Susan P. Graber, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould;
Dissent by Judge Graber
2657
2660 UNITED STATES v. DAVENPORT
COUNSEL
Darla J. Mondou, Marana, Arizona, for the defendant-
appellant.
Marcia Hurd and Eric B. Wolff, U.S. Attorney’s Office, Bil-
lings, Montana, for plaintiff-appellee United States of Amer-
ica.
OPINION
GOULD, Circuit Judge:
Winston Davenport appeals the district court’s denial of
Davenport’s motion to withdraw his guilty plea and the sen-
tence that the district court imposed on him for one count of
receiving child pornography in violation of 18 U.S.C.
§ 2252A(a)(2) and one count of possessing child pornography
in violation of 18 U.S.C. § 2252A(a)(5)(B). After the district
court denied Davenport’s motion to withdraw his guilty plea,
UNITED STATES v. DAVENPORT 2661
Davenport received a 78-month sentence of incarceration for
each of the two counts, to be served concurrently, as well as
concurrent life terms of supervised release for each count.
In this opinion we address whether Davenport’s conviction
for both 18 U.S.C. § 2252A(a)(2), or receipt of child pornog-
raphy, and 18 U.S.C. § 2252A(a)(5)(B), or possession of child
pornography, offends double jeopardy when the conduct
underlying both offenses is the same.1 We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we determine that Daven-
port’s simultaneous conviction for both receipt and possession
of child pornography violates the Fifth Amendment’s prohibi-
tion on double jeopardy. We reverse and remand to the dis-
trict court for further proceedings consistent with this opinion.
I
In September of 2005, the Helena, Montana office of the
Department of Homeland Security, Immigration and Customs
Enforcement (“ICE”) learned that an IP address associated
with Davenport had been used to access a file-sharing pro-
gram and download images of child pornography from other
computer users. The ICE investigated Davenport’s involve-
ment with child pornography, and forensic analysis of Daven-
port’s computer revealed 496 images and 334 videos
containing child pornography, child erotica, or other possible
images of interest. Some of these materials depicted violence
or involved children under the age of twelve.
Davenport was indicted by a grand jury on February 16,
2006 on one count of receiving child pornography in violation
of 18 U.S.C. § 2252A(a)(2), one count of possessing child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and
1
Davenport’s other claims relating to the denial of his motion to with-
draw his guilty plea and to his sentence are the subject of a separate,
unpublished memorandum disposition filed contemporaneously with this
opinion.
2662 UNITED STATES v. DAVENPORT
one count of forfeiture under 18 U.S.C. § 2253(a) which
requires defendants convicted of child pornography offenses
to relinquish all rights to the computer on which the pornogra-
phy was found. Davenport entered into a plea agreement with
the government on April 21, 2006, waiving his right to appeal
issues regarding his conviction but not his sentence, in
exchange for a promise that the government would recom-
mend a sentence of either the mandatory statutory minimum
or the bottom of the Guidelines range, whichever was higher.
A change of plea hearing was held on April 24, 2006, at
which Davenport stated under oath, among other things, that
he was guilty of each of the elements of both receipt and pos-
session of child pornography.
At a sentencing hearing held on October 25, 2006, Daven-
port received 78 months of incarceration for the receipt and
possession counts, each, with the two sentences to be served
concurrently, followed by two concurrent lifetime terms of
supervised release. The judgment recording this conviction
and sentence was entered on October 27, 2006. Davenport
now argues, for the first time on appeal, that his sentence for
both receipt and possession of child pornography is impermis-
sible because the two convictions, based on the same conduct,
are multiplicitous, in violation of the Fifth Amendment’s
Double Jeopardy Clause.
II
Although we normally review de novo claims of double
jeopardy violations, United States v. Jose, 425 F.3d 1237,
1240 (9th Cir. 2005), we review issues, such as the present
one, not properly raised before the district court for plain
error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507
U.S. 725, 730-36 (1993); United States v. Valenzuela, 495
F.3d 1127, 1130 (9th Cir. 2007). Under the plain error stan-
dard, we will affirm Davenport’s sentence unless: (1) there
has been an error in the proceedings below; (2) that error was
plain; (3) it affected substantial rights; and (4) it seriously
UNITED STATES v. DAVENPORT 2663
affected the fairness, integrity, or public reputation of judicial
proceedings. Olano, 507 U.S. at 733; Valenzuela, 495 F.3d at
1130.
III
[1] The Fifth Amendment’s prohibition on double jeopardy
protects against being punished twice for a single criminal
offense. U.S. Const. amend. V.; Brown v. Ohio, 432 U.S. 161,
165 (1977). When multiple sentences are imposed in the same
trial, “the role of the constitutional guarantee is limited to
assuring that the court does not exceed its legislative authori-
zation by imposing multiple punishments for the same
offense.” Brown, 432 U.S. at 165. When a defendant has vio-
lated two different criminal statutes, the double jeopardy pro-
hibition is implicated when both statutes prohibit the same
offense or when one offense is a lesser included offense of the
other. Rutledge v. United States, 517 U.S. 292, 297 (1996). To
determine whether two statutory provisions prohibit the same
offense, we must examine each provision to determine if it
“requires proof of a[n additional] fact which the other does
not.” Blockburger v. United States, 284 U.S. 299, 304 (1932);
Ball v. United States, 470 U.S. 856, 861 (1985); United States
v. Williams, 291 F.3d 1180, 1186-87 (9th Cir. 2002), over-
ruled on other grounds by United States v. Gonzales, 506
F.3d 940 (9th Cir. 2007) (en banc). We also employ this anal-
ysis, commonly known as the Blockburger test, to determine
whether one offense is a lesser included offense of another.
Rutledge, 517 U.S. at 297. If two different criminal statutory
provisions indeed punish the same offense or one is a lesser
included offense of the other, then conviction under both is
presumed to violate congressional intent. See Missouri v.
Hunter, 459 U.S. 359, 366-67 (1983).
Davenport advances this basic proposition that we have
adopted in other statutory contexts: It is impossible to
‘receive’ something without, at least at the very instant of
‘receipt,’ also ‘possessing’ it. As we have recognized else-
2664 UNITED STATES v. DAVENPORT
where, “federal statutes criminalizing the receipt of contra-
band [generally] require a knowing acceptance or taking . . .
possession of the prohibited item.” United States v. Romm,
455 F.3d 990, 1001 (9th Cir. 2006) (internal quotation marks
omitted); see also United States v. Mohrbacher, 182 F.3d
1041, 1048 (9th Cir. 1999) (looking to the relevant statute’s
plain language and adopting, for statutory interpretation pur-
poses, the ordinary meaning of the word “receive,” namely
“to take . . . into one’s possession”).
From this, Davenport urges us to conclude that the offenses
described in 18 U.S.C. § 2252A(a)(2) also cover the offenses
described in 18 U.S.C. § 2252A(a)(5)(B), so that possession
is a lesser included offense of receipt. Davenport asserts that,
while the government may have been within constitutional
boundaries to include both offenses in the indictment, and
could permissibly have continued to prosecute Davenport for
both offenses through trial, see Ball, 470 U.S. at 865, entering
judgment against him on these counts was multiplicitous and
therefore in violation of the Fifth Amendment’s prohibition of
double jeopardy. We agree.
[2] We begin by comparing the text of each provision. See
Williams, 291 F.3d at 1187 (citing Carter v. United States,
530 U.S. 255, 260-61 (2000) (“The Supreme Court has recog-
nized that comparing statutes to determine whether one set of
elements is a subset of another requires a purely textual com-
parison.”). 18 U.S.C. § 2252A(a)(2), the “receipt” provision,
punishes: “Any person who . . . knowingly receives or distrib-
utes . . . any child pornography that has been mailed, or
shipped or transported in interstate or foreign commerce by
any means, including by computer . . .” 18 U.S.C.
§ 2252A(a)(5)(B), the “possession” provision, criminalizes
the “knowing[ ] possess[ion of] any book, magazine, periodi-
cal, film, videotape, computer disk, or any other material that
contains an image of child pornography that has been mailed,
or shipped or transported in interstate or foreign commerce by
any means, including by computer, or that was produced
UNITED STATES v. DAVENPORT 2665
using materials that have been mailed, or shipped or trans-
ported in interstate or foreign commerce by any means,
including by computer. . . .”
The government contends that the receipt and possession
provisions are not multiplicitous because each provision
requires proof of an element that the other does not. First, it
asserts that the receipt provision, 18 U.S.C. § 2252A(a)(2),
requires that the pornographic material be “shipped or trans-
ported in interstate . . . commerce by any means, including by
computer,” while in 18 U.S.C. § 2252A(a)(5) the pornography
need only be “produced using materials that have been . . .
shipped or transported in interstate . . . commerce.” Thus, the
government argues, entirely homemade child pornography
may support a conviction for violating the possession but not
the receipt provision. Second, the government contends that
the affirmative defense in 18 U.S.C. § 2252A(d), applicable to
18 U.S.C. § 2252A(a)(5) but not to 18 U.S.C. § 2252A(a)(2),
constitutes “proof of a[n additional] fact,” under the Block-
burger test, required for possession but not for receipt. We
consider and reject the government’s Blockburger analysis.
[3] In so far as the interstate commerce nexus is concerned,
we discern no difference between the positions advocated by
the government and Davenport, respectively. Both parties rec-
ognize that the interstate commerce requirement is technically
different for receipt and possession. Moreover, both parties
recognize that the receipt provision necessarily requires ship-
ment of the pornography, while the possession provision may
meet the interstate commerce nexus either by shipment or by
alternative means.2 Indeed, by meeting the interstate com-
merce nexus required for receipt, one necessarily also sustains
the required possession nexus: under 18 U.S.C.
2
Because we accept the position of the parties with regard to the ele-
ment of interstate shipment, we need not address the government’s addi-
tional point that it is possible to be guilty of possessing pornography
knowingly without having knowingly received it.
2666 UNITED STATES v. DAVENPORT
§ 2252A(a)(5)(B), the child pornography may itself have
“been mailed, or shipped or transported in interstate or foreign
commerce by any means . . . or . . . produced using materials
that have been mailed, or shipped or transported in interstate
or foreign commerce by any means.” Id. (emphasis added).
Because possession’s nexus requirement can be met in one of
two ways and receipt’s nexus requirement is one of those two
ways, then at least as to the interstate commerce nexus, a con-
viction for receipt necessarily includes proof of the elements
required for conviction under possession, and possession is a
lesser included offense of receipt.
[4] In contrast, the government’s argument fails when it
attempts to show that the crime of possession requires proof
of an element that the crime of receipt does not. The failure
inheres in the government’s resort to the affirmative defenses
in Section 2252(d). To explain why, we first revisit the Block-
burger test, which commands us to examine each provision to
determine if it “requires proof of a[n additional] fact which
the other does not.” Blockburger, 284 U.S. at 304 (emphasis
added). The government’s argument overlooks the nature of
affirmative defenses generally, and in particular of the type
found in 18 U.S.C. § 2252A(d). Affirmative defenses are
complete defenses that, once proven by the defendant, negate
criminal liability for an offense, notwithstanding the govern-
ment’s ability otherwise to prove all elements of that offense
beyond a reasonable doubt. The most significant difference,
for purposes of our Blockburger analysis, between the ele-
ments of 18 U.S.C. § 2252A(a)(2) and (a)(5) and the affirma-
tive defense found in 18 U.S.C. § 2252A(d) is that, unless a
defendant asserts that affirmative defense, the government
need not negate it to obtain a conviction. Accordingly, the
factual prerequisites of 18 U.S.C. § 2252A(d)—namely, that
the defendant possessed fewer than three images of child por-
nography and, among other things, promptly either took rea-
sonable steps to destroy each image or reported the matter to
law enforcement—are not facts that require proof under
Blockburger at all. See , e.g., Patterson v. New York, 432 U.S.
UNITED STATES v. DAVENPORT 2667
197, 206-07, 209-10 (1977) (holding that the federal constitu-
tion does not require proof of the nonexistence of all affirma-
tive defenses and that, if a state “chooses to recognize a factor
that mitigates the degree of criminality or punishment,” then
as long as such mitigating circumstance does not serve to
negate any of the elements of the criminal offense, the state
need not prove the mitigating factor’s nonexistence).
[5] Noting the differences between an element of and an
affirmative defense to a crime, the Second Circuit has stated:
“For these reasons, we have never conflated an affirmative
defense as the functional equivalent of an element of an
offense, even when . . . an element of the crime and the affir-
mative defense ‘overlap in the sense that evidence to prove
the latter will often tend to negate the former.’ ” Aparicio v.
Artuz, 269 F.3d 78, 98 (2d Cir. 2001) (quoting Martin v.
Ohio, 480 U.S. 228, 234 (1987)). We agree, and decline to
consider affirmative defenses, such as that in 18 U.S.C.
§ 2252A(d), that do not directly negate an element of the
crime but instead address mitigating circumstances, as “facts”
that “require” proof for purposes of the Blockburger analysis.3
Having concluded that the conviction presents a problem
under the Blockburger analysis, we turn to the dissent’s argu-
ment that congressional intent nonetheless mandates that we
uphold the multiplicitous conviction. As the dissent notes,
“[t]he Blockburger test is a ‘rule of statutory construction,’
3
Some affirmative defenses, by contrast, negate one or more of the ele-
ments required for a crime. Different principles apply to such affirmative
defenses: “[i]f a[n affirmative] defense negates an element of the crime,
rather than mitigates culpability once guilt is proven, it is unconstitutional
to put the burden of proof on the defendant.” United States v. Solorzano-
Rivera, 368 F.3d 1073, 1079 (9th Cir. 2004) (citing Walker v. Endell, 850
F.2d 470, 472 (9th Cir. 1988)). Thus, such an affirmative defense would
in reality be an element requiring the government’s proof of the converse
of the affirmative defense beyond a reasonable doubt. However, the affir-
mative defense in 18 U.S.C. § 2252A(d) is not such a defense; it concerns
mitigating circumstance and does not negate one of possession’s elements.
2668 UNITED STATES v. DAVENPORT
and because it serves as a means of discerning congressional
purpose the rule should not be controlling where, for example,
there is a clear indication of contrary legislative intent.”
Albernaz v. United States, 450 U.S. 333, 340-342 (1981); see
also Hunter, 459 U.S. at 368. However, this proclamation
retains the basic premise that: “[i]n resolving . . . [a] conten-
tion that Congress did not intend to authorize multiple punish-
ment for violations of [two statutes], our starting point must
be the language of the statutes. Absent a ‘clearly expressed
legislative intention to the contrary, that language must ordi-
narily be regarded as conclusive.’ ” Albernaz, 450 U.S. at 336
(quoting Consumer Product Safety Comm’n v. GTE Sylvania,
Inc., 447 U.S. 102, 108 (1980)).
We disagree with the dissent’s conclusion that Congress
has “clearly expressed” a “legislative intention to the con-
trary.” Relying on Hunter, the dissent argues that Congress,
by listing multiple harms associated with child pornography
and indicating a purpose to treat child pornography severely,
manifested its intent to impose multiple punishments even if
the crimes were the same under the Blockburger test. First,
the dissent asserts that Congress identified two distinct harms.
Yet nowhere in its congressional findings does Congress
explicitly frame receipt and possession as two distinct harms;
the dissent’s characterization of two distinct harms emanating
from receipt and possession, while perhaps reasonable, is
superimposed onto Congress’s findings. An equally plausible
interpretation of Congress’s findings is that the harms Con-
gress identified emanate from the general existence of child
pornography, and relate simultaneously to both receipt and
possession of those illicit materials.4
Next, the dissent argues that because under the original
1996 laws receipt and possession were clearly two multiply-
4
Cf. Rutledge, 517 U.S. at 304 (“If anything, the proximity [in the U.S.
Code of the two crimes at issue] indicates that Congress understood them
to be directed to similar, rather than separate, evils.”).
UNITED STATES v. DAVENPORT 2669
punishable crimes under Blockburger, and because Congress
intended its 1998 amendments to make child pornography
laws tougher, it therefore must be the case that Congress
intended that receipt and possession remain separate crimes.
The dissent is correct that Congress’s 1998 amendments were
motivated by an intent to toughen its child pornography laws.
Yet the 1998 amendments achieved that intent in several
ways: First, Congress increased some of the penalties for
child pornography offenses. See 105 P.L. 314, 202. Second,
under the original 1996 law possession of fewer than three
images of child pornography was legal regardless of whether
one continued to retain those images; thus the law did not take
a “zero tolerance” approach as to individuals who possessed
only one or two images of child pornography. By contrast,
under the 1998 amendment, Congress relegated possession of
fewer than three images of child pornography to being an
affirmative defense to—rather than an element of—the crime,
and required that defendants be able to qualify for the defense
only by meeting certain additional requirements (e.g., turning
over to law enforcement and/or destroying the images). In this
sense, Congress adopted a “zero tolerance” approach to pos-
session of child pornography. Congress’s “toughened” stance
on child pornography in 1998 did not necessarily include an
authorization of multiple and separate punishments for receipt
and possession of child pornography for the same conduct.
[6] Though the dissent’s construction of Congress’s intent
might be plausible, it cannot be said that Congress “clearly”
intended it, especially in light of alternate, plausible interpre-
tations. Hunter did not suggest that the Blockburger analysis
be dispensed with; it held only that the presumption against
multiple punishment arising from a Blockburger analysis
could be overcome by a clear expression of legislative intent
to the contrary. Hunter, 459 U.S. at 367. Such a clear expres-
sion is absent here, and so the controlling analysis remains
that of Blockburger to ascertain whether Congress intended
multiple punishments. See Rutledge, 517 U.S. at 304 n.14.
2670 UNITED STATES v. DAVENPORT
Even if the matter were “not entirely free from doubt, the
doubt must be resolved in favor of lenity.” See Whalen v.
United States, 445 U.S. 684, 694 (1980); see also Albernaz,
450 U.S. at 342 (“Th[e] policy of lenity means that the Court
will not interpret a federal criminal statute so as to increase
the penalty that it places on an individual when such an inter-
pretation can be based on no more than a guess as to what
Congress intended. We emphasize[ ] that the ‘touchstone’ of
the rule of lenity is statutory ambiguity.” (citation and quota-
tions omitted)). If Congress desires to authorize multiple and
separate punishments for receipt and possession for the same
child pornography conduct, it is of course free to do so. How-
ever, until it does, we should not exceed the clearly-expressed
legislative authorization.
[7] Having rejected the government’s argument that posses-
sion of child pornography requires proof of an element that
receipt does not, we conclude that, under the Blockburger test,
the offense of possessing child pornography is a lesser
included offense of the receipt of child pornography. Further-
more, given that Congress has not clearly indicated its intent
to the contrary, the district court erred when it imposed a sec-
ond and constitutionally impermissible conviction on Daven-
port for the same conduct, in violation of the Fifth
Amendment’s Double Jeopardy Clause. See Hunter, 459 U.S.
at 366. The fact that the terms of the two sentences run con-
currently does not alter our conclusion. See Ball, 470 U.S. at
864-65 (discussing potential adverse collateral consequences
of sentences violating double jeopardy, even if concurrent,
and concluding that “[t]he second conviction, even if it results
in no greater sentence, is an impermissible punishment.”).5
5
Davenport also suggests that his sentence for both possession and
receipt of child pornography presents a problem under United States v.
Booker, 543 U.S. 220 (2005), which requires that we analyze a sentence
for “reasonableness.” See United States v. Cantrell, 433 F.3d 1269, 1280
(9th Cir. 2006). We need not reach this argument because of our conclu-
sion that Davenport’s sentence is constitutionally infirm because of double
jeopardy.
UNITED STATES v. DAVENPORT 2671
[8] The district court’s error was plain, and it affected Dav-
enport’s substantial rights by imposing on him the potential
collateral consequences of an additional conviction. Finally,
because the prohibition against double jeopardy is a corner-
stone of our system of constitutional criminal procedure, this
error threatens the fairness, integrity, and public reputation of
our judicial proceedings. We therefore exercise our discretion
under Olano to correct it.
[9] We vacate the judgment and remand with instructions
that the district court vacate Davenport’s conviction on one of
the two counts, allowing for it to be reinstated without preju-
dice if his other conviction should be overturned on direct or
collateral review.
VACATED AND REMANDED.
GRABER, Circuit Judge, dissenting:
I respectfully dissent because, in my view, Congress clearly
intended to authorize cumulative punishment for receipt of
child pornography and possession of child pornography.
I disagree with the majority for two independent reasons.
First, the majority creates a circuit split by announcing a new
interpretation of the test first applied in Blockburger v. United
States, 284 U.S. 299 (1932). Second, the majority ignores
Congress’ clear intent to authorize cumulative punishment for
the crimes of receipt and possession.
A. The Blockburger Test and Affirmative Defenses
The majority’s formalistic application of the Blockburger
test looks only at the elements of each crime. In my view, we
need not turn a blind eye to all affirmative defenses that do not
negate an element of the crime. I would join the only circuits
2672 UNITED STATES v. DAVENPORT
to have addressed the issue and hold that affirmative defenses
are part of the analysis. United States v. Franchi-Forlando,
838 F.2d 585, 591 (1st Cir. 1988); United States v. Ortiz-
Alarcon, 917 F.2d 651, 653 (1st Cir. 1990) (following
Franchi-Forlando); United States v. Gomez-Ruiz, 931 F.2d
977, 979-80 (1st Cir. 1991) (same); United States v. Ahad,
985 F.2d 554, 1993 WL 27384, *1 (4th Cir. 1993) (per
curiam) (unpublished disposition)1 (expressly adopting the
reasoning and holding of Franchi-Forlando); see also United
States v. Verduzco, 373 F.3d 1022, 1028 (9th Cir. 2004)
(rejecting, in a different context, the argument that the term
“element” should not encompass an affirmative defense as a
“formalistic reading” of the term “element”).
Suppose these facts: John Doe ordered and received two
images of child pornography. He immediately regretted his
curiosity; an hour later, he shredded one image and took the
other to the nearest police station. Under the present version
of the statutes, John Doe is guilty of receiving child pornogra-
phy, notwithstanding the small number of images and the
buyer’s remorse, but he is not guilty of possessing child por-
nography.
As I read Blockburger, we simply examine the text of the
statutory provisions to see whether the crime of possession
requires proof of a fact that the crime of receipt does not. The
crime of possession requires proof that the defendant pos-
sessed three or more images or failed to delete the images or
inform the police about them. Receipt does not require proof
of any of those facts. Thus, the crime of possession requires
proof of a fact that the crime of receipt does not. That’s all
there is to it.2
1
Unpublished dispositions of the Fourth Circuit may be cited for their
persuasive value, regardless of the date of publication. 4th Cir. R. 32.1.0.
2
In practice, the government must take account of the affirmative
defense. If a prosecutor knew for certain that the affirmative defense
applies (as in my John Doe hypothetical), the government could not ethi-
cally charge John Doe with the crime of possession.
UNITED STATES v. DAVENPORT 2673
B. Congressional Intent
In determining whether the Double Jeopardy Clause per-
mits punishment for two separate crimes, the “ ‘dispositive
question’ [is] whether Congress intended to authorize separate
punishments for the two crimes.” Albernaz v. United States,
450 U.S. 333, 344 (1981) (quoting Whalen v. United States,
445 U.S. 684, 689 (1980)). The Blockburger test is only one
indicator of congressional intent and “is not controlling when
the legislative intent is clear from the face of the statute or the
legislative history.” Garrett v. United States, 471 U.S. 773,
779 (1985); see also Missouri v. Hunter, 459 U.S. 359, 368
(1983) (“[S]imply because two criminal statutes may be con-
strued to proscribe the same conduct under the Blockburger
test does not mean that the Double Jeopardy Clause precludes
the imposition, in a single trial, of cumulative punishments
pursuant to those statutes.”). In my view, Congress clearly
intended to authorize cumulative punishment for the crimes of
receipt and possession. Accordingly, even if I agreed with the
majority’s formalistic application of the Blockburger test, I
would nevertheless conclude that cumulative punishment is
authorized.
1. Legislative History of 18 U.S.C. § 2252A
In 1996, Congress enacted 18 U.S.C. § 2252A to criminal-
ize activities related to child pornography, including the sepa-
rate crimes of receipt of child pornography and possession of
child pornography. “Any person who . . . knowingly receives
. . . any child pornography that has been mailed, or shipped
or transported in interstate or foreign commerce” commits the
crime of receipt. 18 U.S.C. § 2252A(a)(2) (1996). “Any per-
son who . . . knowingly possesses any . . . material that con-
tains 3 or more images of child pornography” commits the
separate crime of possession. 18 U.S.C. § 2252A(a)(5)(B)
(1996).
Supporting the enactment of the statute, Congress made
findings about the harms that flow from child pornography.
2674 UNITED STATES v. DAVENPORT
Pub. L. No. 104-208, 110 Stat. 3009-26 (1996). At least two
distinct harms were identified.
First, Congress recognized the harm to the actual children
who are used in creating child pornography:
(1) the use of children in the production of sexu-
ally explicit material, including photographs, films,
videos, computer images, and other visual depic-
tions, is a form of sexual abuse which can result in
physical or psychological harm, or both, to the chil-
dren involved;
(2) where children are used in its production, child
pornography permanently records the victim’s abuse,
and its continued existence causes the child victims
of sexual abuse continuing harm by haunting those
children in future years[.]
Id. The creation of child pornography results from the market
for such images. Of note, a person who receives images (for
instance, by ordering a magazine or subscribing to an online
website) furthers the market for such images whether or not
the person retains them. Indeed, even a person who receives
the images and never gets around to viewing them still causes
these harms that Congress noted.
Second, and separately, Congress identified the harmful
uses of child pornography in the hands of pedophiles and sex-
ual abusers:
(3) child pornography is often used as part of a
method of seducing other children into sexual activ-
ity; a child who is reluctant to engage in sexual
activity with an adult, or to pose for sexually explicit
photographs, can sometimes be convinced by view-
ing depictions of other children “having fun” partici-
pating in such activity;
UNITED STATES v. DAVENPORT 2675
(4) child pornography is often used by pedophiles
and child sexual abusers to stimulate and whet their
own sexual appetites, and as a model for sexual act-
ing out with children; such use of child pornography
can desensitize the viewer to the pathology of sexual
abuse or exploitation of children, so that it can
become acceptable to and even preferred by the
viewer[.]
Id. Production or receipt of child pornography does not per se
cause these harms. Rather, a person’s possession and use of
the images causes these harms.
Congress amended the statute two years later. Its express
purpose was to get tougher on persons who possessed child
pornography. See 144 Cong. Rec. S12262-65 (1998) (explain-
ing that the “Protection of Children From Sexual Predators
Act of 1998” was an effort to take a “zero tolerance”
approach to possession of child pornography). Congress
effectuated that purpose by criminalizing the possession of
any number of images (not just “3 or more”). 18 U.S.C.
§ 2252A(a)(5). At the same time, it passed an affirmative
defense for persons who possessed less than three images and
promptly destroyed the images or contacted law enforcement.
18 U.S.C. § 2252A(d).3
3
That provision reads:
It shall be an affirmative defense . . . that the defendant—
(1) possessed less than three images of child pornography;
and
(2) promptly and in good faith, and without retaining or
allowing any person, other than a law enforcement agency, to
access any image or copy thereof—
(A) took reasonable steps to destroy each such image; or
(B) reported the matter to a law enforcement agency and
afforded that agency access to each such image.
18 U.S.C. § 2252A(d).
2676 UNITED STATES v. DAVENPORT
2. Analysis
To find congressional intent, we are to consider whether the
two statutory provisions are “directed to separate evils” or
address “diverse societal harms.” Ball v. United States, 470
U.S. 856, 864 (1985); Albernaz, 450 U.S. at 343; see also
Garrett, 471 U.S. at 781. Plainly that is so here. Congress
explicitly found that child pornography causes many harms.
Some of those harms are caused by receipt but not by posses-
sion, and others are caused by possession but not by receipt.
To find congressional intent, we are also to consider the
statute’s history. Albernaz, 450 U.S. at 342-43. When Con-
gress enacted the original version of 18 U.S.C. § 2252A
(1996), there is no question that Congress plainly authorized
cumulative punishment for possession and receipt, even under
the majority’s strict interpretation of the Blockburger test.4
When Congress amended the statute two years later, its
express purpose was to get tougher on the crime of posses-
sion. The amendment got tougher by creating a “default” that
proving possession of forbidden images presumes possession
of three or more and by adding that even a very small number,
by itself, does not relieve a defendant of criminal liability.
Surely Congress did not intend, at the same time, to reduce
criminal penalties for a typical offender, that is, someone who
receives and possesses three or more images of child pornog-
raphy.
The Supreme Court’s conclusion in Albernaz regarding cer-
tain drug offenses applies with equal force to the statutory
provisions that we consider today:
4
In the original version of the statute, the crimes of possession and
receipt had differing elements. Receipt contained an element requiring
proof of interstate or foreign shipment but possession did not. Possession
contained an element requiring proof of 3 or more images but receipt did
not. The majority therefore does not dispute that the original version of the
statute authorized cumulative punishment.
UNITED STATES v. DAVENPORT 2677
The conclusion [I] reach today regarding the
intent of Congress is reinforced by the fact that the
two [child pornography] statutes are directed to sep-
arate evils presented by [the child pornography mar-
ket]. [Receipt and possession of child pornography]
impose diverse societal harms, and . . . Congress has
in effect determined that [receiving and possessing
child pornography] is twice as serious as . . . do[ing]
either object singly. This result is not surprising for
. . . the history of the [child pornography] legislation
in this country reveals the determination of Congress
to turn the screw of the criminal machinery—
detection, prosecution, and punishment—tighter and
tighter.
450 U.S. at 343 (citation and internal quotation marks omit-
ted).
I do not agree with the majority that Congress’ intent is
unclear. Op. at 2668-69. The majority does not dispute any of
the following facts: Congress plainly authorized cumulative
punishments when it enacted the law in 1996, even under the
majority’s test; the statutory provisions are directed toward
different harms; two years later, Congress amended the statute
to “get tougher” on child pornography crimes; and nothing in
the legislative history suggests that Congress intended to
remove cumulative punishment. Short of an express provision
for cumulative punishment, it is hard to imagine a clearer
indication of Congress’ intent.
Indeed, the majority implies that an express provision is
required, op. at 2670, but the Supreme Court has squarely
rejected that view. In Garrett, 471 U.S. at 778-86, the two
statutory provisions at issue covered the “same conduct”
under the Blockburger test, and neither the statute nor the leg-
islative history contained an express provision authorizing
cumulative punishment. Nevertheless, the Court held that
Congress’ intent to authorize cumulative punishment was
2678 UNITED STATES v. DAVENPORT
plain from the legislative history and other indicators. Id. The
Supreme Court warned that the Blockburger rule is “not con-
trolling,” because to hold otherwise would “convert[ ] what is
essentially a factual inquiry as to legislative intent into a con-
clusive presumption of law.” Id. at 779. The majority’s analy-
sis in this case falls prey to that temptation: the majority
improperly views “the application of the Blockburger rule as
a conclusive determinant of legislative intent, rather than as
a useful canon of statutory construction.” Id.
The majority loses sight of why the Blockburger test is a
relevant indicator of Congress’ intent. As the Supreme Court
has explained, it is “ ‘assumed . . . that Congress was aware
of the Blockburger rule and legislated with it in mind.’ ”
Albernaz, 450 U.S. at 341-42. To reach the majority’s conclu-
sion, one must also assume that Congress knew that the
Blockburger test excluded consideration of affirmative
defenses. The problem with that assumption is that the only
circuits to have weighed in on the issue had held the exact
opposite. See cases cited above, in Part A. In effect, the
majority today creates a new interpretation of the Blockburger
test, contrary to existing interpretations, and then assumes
that, in 1998, Congress legislated with the majority’s novel
interpretation in mind. I cannot concur in that strained method
of determining congressional intent.
In summary, Congress clearly intended to permit cumula-
tive punishment for receipt of child pornography and posses-
sion of child pornography. Accordingly, I would hold that
punishing Defendant for both receipt and possession does not
violate the Double Jeopardy Clause. His convictions and sen-
tence should be affirmed in full.