United States v. Quay Phipps

MEMORANDUM

Defendant-Appellant Quay Phipps appeals his conviction of one count of transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(l), and three counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Phipps raises five challenges to his conviction. We reject each challenge and affirm.

1. Phipps contends the district court violated the Double Jeopardy Clause when it denied his motion to dismiss the possession counts as lesser-included offenses of the transportation count. However, no double jeopardy problem exists where the charges are supported by discrete conduct. United States v. Overton, 573 F.3d 679, 697-98 (9th Cir.2009). “[T]he government must allege and prove distinct conduct underlying each charge, whether the conduct underlying each charge occurred on the same or different dates.” United States v. Lynn, 636 F.3d 1127, 1137 (9th Cir.2011).

Count One of the Superseding Indictment charged Phipps with transporting at least one image of child pornography on or about December 26, 2009, in violation of 18 U.S.C. § 2252A(a)(l). The conduct supporting Count One was an email sent by Phipps with an attachment containing a…