Thursday, August 6, 2009

The Double Jeopardy Clause of the Fifth Amendment

The Eleventh Circuit released a good published opinion on Double Jeopardy Clause of the Fifth Amendment to the Constitution today. The case is United States v. Bobb (07-13252) and can be found here.

The defendant was charged with violations of 18 U.S.C. § 2252A(a)(2)(B)7 (“Count I”), and with knowingly “possessing” child pornography on August 4, 2005,8 in violation of 18 U.S.C. § 2252A(a)(5)(B)9 (“Count II”)

The defendant argued, for the first time on appeal, "that his sentences for both “receiving” and “possessing” child pornography are impermissible because both counts of the indictment charged him with the same offense in violation of the Fifth Amendment’s Double Jeopardy Clause."

The court rejected the arugment, which was an issue of first impression, because:

While we agree with Bobb’s opening argument, that “possession” is a lesser included offense of “receipt,” his appeal ultimately fails. Unlike the facts in Ball, Miller, Davenport, Giberson, and Brobst, where the defendants were convicted and sentenced under two different statutes for the same offense, Bobb’s convictions and sentences were based on two distinct offenses, occurring on two different dates, and proscribed by two different statutes.


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