In United States v. Chilaca, --- F.3d ---, No. 17-10296 (9th Cir. 2018), the Court vacated the defendant's sentence on four counts of possessing child pornography, in violation of
18 U.S.C. § 2252(a)(4)(B).
Joining the other Circuits to consider the issue, the Court held that, under § 2254(a)(4)(B), which makes
it a crime to knowingly possess “1 or more” matters
containing any visual depiction of child pornography,
simultaneous possession of different matters containing
offending images at a single time and place constitutes a
single violation. In other words, simultaneously possessing “1 or
more” media or electronic storage devices that contain child pornography
images is only one violation of
§ 2252(a)(4)(B), regardless of the number of images or
separate media used to store the images.
Thus, the defendant's four convictions were multiplicitous in violation of the Double Jeopardy Clause.
The remedy was to vacate
three of the counts and remand for resentencing on the remaining count.
