A federal district court has vacated two convictions related to child pornography due to double jeopardy violations. Yarosius v. United States, 2012 U.S. Dist. LEXIS 18408 (N.D. Ohio 2012). The defendant had been convicted on three counts:
- Count One: receipt and distribution of visual depictions of real minors engaged in sexually explicit conduct (18 U.S.C. §2252(a)(2))
- Count Two: receiving and distributing child pornography that had been transported in interstate commerce by computer (18 U.S.C. §2252A(a)(2)(A))
- Count Three: possessing child pornography on two computers (18 U.S.C. §2252A(a)(5)(B))
In a § 2255 motion, the defendant sought to have Count One and Count Three vacated on double jeopardy grounds. The court found that possession charge was a lesser-included offense of the receipt charge under Sixth Circuit precedent, requiring that Count Three be vacated. Further, the Count Two statute was meant to allow prosecution of both virtual and real images, but Count One was only for real images. Since Count One and Count Two were punishing the same images, Count One was a lesser-included offense of Count Two.