United States v. James Johnston

An investigation of a major child pornography website, “Illegal.cp”, led federal agents to a desktop computer in James Johnston’s home office. The contents of that computer were the basis of his convictions for possession and receipt of child pornography as well as conspiracy to produce child pornography and to travel internationally to engage in illicit sex.

Central to this appeal are Johnston’s convictions for both receipt and possession of child pornography. Consistent with our precedent in United States v. Davenport, 519 F.3d 940 (9th Cir.2008), as well as the views of a majority of the other circuits to consider the issue, we reiterate that the offense of possession of child pornography is a lesser included offense of receipt of child pornography. Under the Double Jeopardy Clause of the Fifth Amendment, it is constitutional error to enter a conviction against a defendant for both receipt and possession of child pornography for the same conduct. See Brown v. Ohio, 432 U.S. 161, 168-69 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977); Davenport, 519 F.3d at 947-48 . Johnston’s conviction for possession of child pornography must be vacated. Johnston’s remaining challenges do…