Eleventh Circuit Court of Appeals - Published Opinions

Friday, July 28, 2017

Little: Constructive Possession of a CP Email Where Stored on the Server

In United States v. Little, No. 16-10664 (July 28, 2017) (Ed Carnes, William Pryor, Dubina), the Court affirmed a conviction and sentence for possessing and transporting child pornography.

As for the conviction, the defendant argued that venue was improper in Florida for his possession conviction, because he received an email with child pornography attached while he was in Texas and did not open that email while he was in Florida.  The Court rejected that argument for two reasons.  First, the Court found that the defendant unquestionably possessed a different email containing child pornography while in Florida, since he sent that email to someone else.  Even though that email was also the subject of the transportation count, that did not violate double jeopardy because possession and transportation have different elements.  Second, and in any event, the Court found that the defendant had constructive possession of the Texas email while he was in Florida, because he had the power to retrieve that email from the server, and he expressed an intention to do so by discussing trading child pornography.  Applying plain error, the Court also upheld the denial of a motion to sever the possession and transportation counts, emphasizing that they involved the same time-frame, same email account, and similar subject matter.

As for the sentence, the Court found that the district court did not err in applying the five-level enhancement for distributing child pornography with the expectation to receive a thing of value, pursuant to U.S.S.G. 2B2.2(b)(3)(B).  The Court found no clear error in finding that the evidence reflected an expectation of receiving child pornography, which was a thing of value.  The Court also upheld the two-level enhancement for using a computer in connection with the charged offense, pursuant to U.S.S.G. 2B2.2(b)(6).  The Court found that applying the enhancement did not result in impermissible double-counting, because his base-offense level did not fully account for his use of a computer.  Agreeing with five other circuits, the Court reasoned that, because not all transportation cases necessarily do require the use of a computer, that use was not fully reflected in the base-offense level for that count.