Double jeopardy

United States v. Brobst, 558 F. 3d 982 (9th Cir. 2009), is primarily a search and seizure case.  But here is a tantalizing piece about double jeopardy in a child pornography case.

In light of this court’s decisions in United States v. Davenport, 519 F.3d 940 (9th Cir. 2008) and United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), Brobst’s convictions for both receipt and possession of child pornography violated the Double Jeopardy Clause of the Fifth Amendment to the Constitution. See Davenport, 519 F.3d at 947. "Where we conclude that a defendant has suffered a double jeopardy violation because he was erroneously convicted for the same offense under two separate counts . . . ‘the only remedy consistent with the congressional intent is for the [d]istrict [c]ourt, where the sentencing responsibility resides, to exercise its discretion to vacate one of the underlying convictions.’" United States v. Schales, 546 F.3d 965, 980 (9th Cir. 2008)(quoting United States v. Ball, 470 U.S. 856, 864, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985)). Accordingly, we vacate the judgment and remand with instructions that the district court vacate one of Brobst’s convictions for either receipt or possession of child pornography, allowing for it to be reinstated without prejudice if his other conviction should be overturned on direct or collateral review.

United States v. Brobst, 558 F.3d 982, *39-40 (9th Cir. 2009).


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