United States v. Danny Teague

A jury convicted Danny Teague of both receipt and possession of child pornography. Because possession is a lesser included offense of receipt, the convictions violate the Fifth Amendment’s Double Jeopardy Clause if they were based on the same conduct. See United States v. Overton, 573 F.3d 679, 695 (9th Cir.2009). On the other hand, “where separate conduct supports each offense, the Fifth Amendment’s Double Jeopardy Clause is not implicated.” Id. The prosecutor charged receipt of one set of files and charged possession of a much larger set of files. Because the files supporting the receipt count were a subset of the files supporting the possession charge and the prosecutor did not request, nor did the district court provide, an instruction explicitly requiring the jury to base the two convictions on separate conduct, it is theoretically possible the convictions were based on the same conduct. We agree with Teague that the district court erred by entering judgment on both counts absent some assurance that the convictions were based on separate conduct. In light of the overwhelming and unrebutted evidence of separate conduct, however, we hold that the error did not affect…