Supreme Court of the United States

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1 No. ================================================================ In The Supreme Court of the United States JOHN DOLEHIDE, vs. Petitioner, UNITED STATES OF AMERICA, Respondent. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit PETITION FOR WRIT OF CERTIORARI ROSENBERG & MORSE BRENT ROSENBERG 505 5th Avenue, Suite 1010 Des Moines, Iowa Telephone: (515) Fax: (515) bdr@rosenbergmorse.com Counsel for Petitioner John Dolehide ================================================================ COCKLE LAW BRIEF PRINTING CO. (800) OR CALL COLLECT (402)

2 i QUESTIONS PRESENTED FOR REVIEW 1. Whether the Eighth Circuit applied the correct legal analysis, consistent with this Court s prior jurisprudence in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct (1974); Menna v. New York, 423 U.S. 61, 96 S.Ct. 241 (1975); and United States v. Broce, 488 U.S. 563, 109 S.Ct. 757 (1989), in determining that the Petitioner had waived his double jeopardy claim merely upon entering his plea to multiple counts. 2. Whether in enacting 18 U.S.C. 2252A(a)(5)(B), Congress intended that the unit of prosecution shall be the media upon which the child pornography resides such that convictions for multiple counts requires sufficient proof of multiple media.

3 ii LIST OF PARTIES The Petitioner is John Thomas Dolehide. The Respondent is the United States of America by and through the Solicitor General of the United States.

4 iii TABLE OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW... i LIST OF PARTIES... ii TABLE OF AUTHORITIES... v OPINIONS BELOW... 1 JURISDICTION... 1 CONSTITUTIONAL AND STATUTORY PRO- VISIONS INVOLVED... 2 STATEMENT OF THE CASE... 3 REASONS FOR GRANTING THE WRIT... 9 I. THE EIGHTH CIRCUIT S DETERMINA- TION THAT THE PETITIONER WAIVED HIS DOUBLE JEOPARDY CLAIM MERELY UPON THE ENTRY OF HIS PLEA TO TWO COUNTS OF POSSES- SION OF CHILD PORNOGRAPHY IS IN CONFLICT WITH THIS COURT S PRIOR JURISPRUDENCE IN BLACKLEDGE v. PERRY, 417 U.S. 21, 94 S.CT (1974); MENNA v. NEW YORK, 423 U.S. 61, 96 S.CT. 241 (1975); AND UNITED STATES v. BROCE, 488 U.S. 563, 109 S.CT. 757 (1989)... 9

5 iv TABLE OF CONTENTS Continued Page II. THE UNIT OF PROSECUTION FOR A VIOLATION OF 18 U.S.C. 2252A(A)(5)(B) IS THE MEDIA ON WHICH THE CHILD PORNOGRAPHY WAS POSSESSED, NOT THE DATES OF POSSESSION AND THE PUNISHMENT OF THE PETITIONER FOR MULTIPLE VIOLATIONS OF 18 U.S.C. 2252A(A)(5)(B) BASED ON MULTIPLE DATES OF POSSESSION VIOLATES THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT CONCLUSION APPENDIX Opinion of the Eighth Circuit Court of Appeals. App. 1 Judgment and Sentencing... App. 12 Denial of Rehearing... App. 27 First Amended Information... App. 28 United States v. Schaefer Order... App. 30

6 CASES: v TABLE OF AUTHORITIES Page Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) Blackledge v. Perry, 417 U.S. 21, 94 S.Ct (1974)... 8, 9, 12, 13, 15 Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) Ex Parte Lange, 85 U.S. 163 (1873) Menna v. New York, 423 U.S. 61, 96 S.Ct. 241 (1975)... 8, 9, 12, 13, 15 North Carolina v. Pearce, 395 U.S. 711 (1969) Ornelas v. United States, 517 U.S. 690, 116 S.Ct (1996) Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) United States v. Anson, 304 Fed.Appx. 1 (2nd Cir. 2008) United States v. Arvizu, 543 U.S. 266, 122 S.Ct. 744 (2002) United States v. Broce, 488 U.S. 563, 109 S.Ct. 757 (1989)... 9, 12, 13, 15 United States v. Brown, 453 F.3d 1024 (8th Cir. 2006)... 18, 20 United States v. Carpenter, 462 F.3d 981 (8th Cir. 2006)... 19, 20

7 vi TABLE OF AUTHORITIES Continued Page United States v. Davis, 636 F.3d 1281 (10th Cir. 2011) United States v. Dolehide, 663 F.3d 343 (8th Cir. 2011)... 1 United States v. Hinkeldey, 626 F.3d 1010 (8th Cir. 2010)... 14, 21, 23 United States v. Limley, 510 F.3d 825 (8th Cir. 2007)... 7, 8, 15 United States v. Martin, 278 Fed.Appx. 696 (8th Cir. 2008)... 22, 23 United States v. Olano, 507 U.S. 725 (1993)... 10, 11, 22, 26 United States v. Planck, 493 F.3d 501 (5th Cir. 2007)... 22, 24, 25 United States v. Schaefer, 2011 WL (N.D. Iowa 2011)... 23, 24 United States v. Schaefer, 1:10-cr LRR, Doc. 50 (Unpublished)... 14, 23, 24, 25 United States v. Seay, 620 F.3d 919 (8th Cir. 2010) United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)... 19, 20 United States v. Stock, 2011 WL (8th Cir. 2011) (per curiam)... 11, 13, 14

8 vii TABLE OF AUTHORITIES Continued Page STATUTORY AND CONSTITUTIONAL PROVISIONS: U.S. Const. amend. IV... 19, 20 U.S. Const. amend. V... 2, 16, U.S.C. 2252A(a)(5)(B)... passim 18 U.S.C. 2252A(b)(2)... passim 18 U.S.C U.S.C. 3742(a)(1) U.S.C. 3742(a)(2) U.S.C. 1254(1) U.S.C RULES: Fed. Rule Crim. Proc. 52(a) Fed. Rule Crim. Proc. 52(b)... 7, 9, 10, 11 S. Ct. Rule TREATISE: Black s Law Dictionary, 1018 (Bryan A. Garnered), 7th ed., West , 19

9 1 PETITION FOR WRIT OF CERTIORARI The Petitioner, John Thomas Dolehide, petitions the Court for a Writ of Certiorari to review a final judgment of the United States Court of Appeals for the Eighth Circuit (entered December 6, 2011) affirming his sentence in all regards OPINIONS BELOW The United States Court of Appeals for the Eighth Circuit entered its opinion affirming Petitioner s conviction and sentence. The opinion of the Court of Appeals appears at App and is reported at 663 F.3d 343 (8th Cir. 2011). A petition for rehearing was filed and denied by order of the Eighth Circuit. The order is unpublished and appears at App. 27. The Judgment of the United States District Court for the Northern District of Iowa is unpublished and appears at App The Amended and Subsisted Order on sentencing of the United States District Court for the Northern District of Iowa is reported at 2011 WL (N.D. Iowa 2011) JURISDICTION The Court of Appeals for the Eighth Circuit entered its decision on December 6, A petition for rehearing was filed on December 19, 2011, and denied on January 11, Jurisdiction of this Court

10 2 is invoked under 28 U.S.C. 1254(1) and is timely under Supreme Court Rule CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED U.S. Const. amend. V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 18 U.S.C. 2252A(a)(5)(B): (a) Any person who (5) either (B) knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported using any

11 3 means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in or affecting interstate or foreign commerce by any means, including by computer; shall be punished as provided in subsection (b). 18 U.S.C. 2252A(b)(2): (2) Whoever violates, or attempts or conspires to violate, subsection (a)(5) shall be fined under this title or imprisoned not more than 10 years, or both, but, if such person has a prior conviction under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years STATEMENT OF THE CASE The United States District Court for the Northern District of Iowa exercised jurisdiction pursuant to

12 4 18 U.S.C The United States Court of Appeals for the Eighth Circuit exercised jurisdiction pursuant to 18 U.S.C. 3742(a)(1) & (2) and 28 U.S.C The Petitioner, John Thomas Dolehide, was the subject of child pornography investigation arising out of his use of the Limewire file sharing program in late spring and early summer During the investigation, law enforcement was able to establish direct connections to the Petitioner s computer and download child pornography. Pre-Sentence Investigation Report, dated January 19, 2011 ( PSIR ), 1:10-cr-92- LRR, Doc. 27, 13. The investigation culminated in a search of his residence by law enforcement on July 9, At that time, a Toshiba laptop computer and several separate hard drives were seized and an interview conducted. PSIR, 1:10-cr-92-LRR, Doc. 27, 14. This investigation resulted in a plea, pursuant to a plea agreement. On October 12, 2010, the Petitioner pled guilty to a First Amended Information containing two counts of possession of child pornography, in violation of 18 U.S.C. 2252A(a)(5)(B) and (b)(2). The First Amended Information stated the charges as follows: The United States Attorney charges: COUNT 1 On or about June 17, 2009, in the Northern District of Iowa, defendant JOHN DOLEHIDE did knowingly possess and attempt to possess visual depictions of minors engaged in sexually explicit conduct, said

13 5 visual depictions having been produced using computer equipment that had been shipped and transported in and affecting interstate and foreign commerce. This was in violation of Title 18, United States Code, Sections 2252A(a)(5)(B) and 2252A(b)(2). COUNT 2 On or about July 9, 2009, in the Northern District of Iowa, defendant JOHN DOLEHIDE did knowingly possess and attempt to possess visual depictions of minors engaged in sexually explicit conduct, said visual depictions having been produced using computer equipment that had been shipped and transported in and affecting interstate and foreign commerce. This was in violation of Title 18, United States Code, Sections 2252A(a)(5)(B) and 2252A(b)(2). App The counts are distinguished based on dates of possession rather than media on which the child pornography was possessed. In his plea agreement and colloquy, the Petitioner acknowledged and admitted the following: A. On or about June 17, 2009, at his residence in Cedar Rapids, Iowa, defendant knowingly possessed images of child pornography on computer equipment that was manufactured outside of the state of Iowa.

14 6 Defendant knew the images depicted children who were under the age of 18. B. On or about July 9, 2009, at his residence in Cedar Rapids, Iowa, defendant knowingly possessed images of child pornography on computer equipment that was manufactured outside of the state of Iowa. Defendant knew the images depicted children who were under the age of 18. Among the images were more than 10 videos of minors engaged in sexually explicit conduct. The images included prepubescent minors engaged in sadistic sexual conduct, including bondage. Plea Agreement, 1:10-cr-92, Doc. No A sentencing hearing was held on March 22, A considerable amount of evidence was presented with regard to the fact that the Petitioner suffers from Asperger s Syndrome and its likely impact and effect on his sentence. However, the evidence relevant to his double jeopardy claim was only contained in paragraphs 14 and 19 through 23 of the PSIR. PSIR, 1:10-cr-92-LRR, Doc. 27, 14, In sum and substance, such paragraphs described in detail material contained on a Toshiba laptop which is undisputedly child pornography. In addition, the PSIR referenced certain other media which was seized and which is described as containing suspected child pornography but is not otherwise specifically described.

15 7 On May 5, 2011, the District Court entered a written sentencing order and determined the Petitioner s Total Offense Level under the United States Sentencing Guidelines ( Guidelines ) was 33. The District Court denied the Petitioner s motion for a variance and sentenced him to a term of 135 months imprisonment. Judgment was entered on May 9, 2011, and a notice of appeal was timely filed on May 13, On appeal, the Petitioner raised for the first time the issue as to whether the two counts of his conviction were in law and fact the same crime such that the conviction and punishment for both was in violation of the Fifth Amendment to the United States Constitution. Rule 52(b) of the Federal Rules of Criminal Procedure provides for the review of plain error even if the issue was not previously brought to the attention of the District Court. Rule 52(b) states: [a] plain error that affects substantial rights may be considered even though it was not brought to the court s attention. Fed. Rule Crim. Proc. 52(b). The Petitioner argued that the unit of prosecution pursuant to 18 U.S.C. 2252A(a)(5)(B) was the media and that neither his plea nor the Government s evidence at sentencing established multiple media by a preponderance of the evidence. The Eighth Circuit did not address this argument. Instead, the Eighth Circuit simply held that the Petitioner had waived the argument pursuant to United States v. Limley, 510 F.3d 825 (8th Cir. 2007),

16 8 which held that [a] valid guilty plea is an admission of guilt that waives all non-jurisdictional defects and defenses. Id. at 827. While the Eighth Circuit did not explicitly state that the alleged defect in this case was non-jurisdictional, such a finding is implicit in its holding. On petition for rehearing, the Petitioner argued that the correct analysis to be employed with regard to waiver in the context of a guilty plea is set out in a series of cases beginning with Blackledge v. Perry, 417 U.S. 21, 94 S.Ct (1974); Menna v. New York, 423 U.S. 61, 96 S.Ct. 241 (1975), and culminating with United States v. Broce, 488 U.S. 563, 109 S.Ct. 757 (1989). The sum and substance of these cases is that where the double jeopardy claim reveals a facial defect in the proceedings, there is no waiver. Where there is a facial defect giving rise to a double jeopardy claim, the issue is jurisdictional. The Eighth Circuit did not follow this analysis. The Eighth Circuit denied the petition for rehearing without comment. App. 27. This writ is filed to request review of that opinion

17 9 REASONS FOR GRANTING THE WRIT I. THE EIGHTH CIRCUIT S DETERMINATION THAT THE PETITIONER WAIVED HIS DOUBLE JEOPARDY CLAIM MERELY UPON THE ENTRY OF HIS PLEA TO TWO COUNTS OF POSSESSION OF CHILD PORNOGRAPHY IS IN CONFLICT WITH THIS COURT S PRIOR JURISPRUDENCE IN BLACKLEDGE v. PERRY, 417 U.S. 21, 94 S.CT (1974); MENNA v. NEW YORK, 423 U.S. 61, 96 S.CT. 241 (1975); AND UNITED STATES v. BROCE, 488 U.S. 563, 109 S.CT. 757 (1989). On October 12, 2010, the Petitioner pled guilty to an amended information containing two counts of possession of child pornography, in violation of 18 U.S.C. 2252A(a)(5)(B) and (b)(2). The counts were distinguished solely by dates of possession rather than by separate media. At sentencing, the court relied on the PSIR which identified material which was clearly child pornography on one media but referenced to suspected child pornography on other seized media. On appeal, the Petitioner raised his double jeopardy claim for the first time pursuant to Rule 52(b) of the Federal Rules of Criminal Procedure. The double jeopardy claim is inexorably tied to the Court s determination of the unit of prosecution for a violation of 18 U.S.C. 2252A(a)(5)(B) and (b)(2), discussed below. If, as argued below, the unit of prosecution is the media on which the child pornography is possessed rather than the date of its possession, then the

18 10 error is plain and clear, the defect is jurisdictional and no waiver occurred. Although the Eighth Circuit did not conduct a plain error review and made no findings either way, the Petitioner s first hurdle before this Court seems to be the establishment that the claim is reviewable at all. Rule 52(b) of the Federal Rules of Criminal Procedure provides for the review of plain error even if the issue was not previously brought to the attention of the District Court. Rule 52(b) states: [a] plain error that affects substantial rights may be considered even though it was not brought to the court s attention. Fed. Rule Crim. Proc. 52(b). With regard to plain error review, in United States v. Olano, 507 U.S. 725 (1993), this Court considered the distinction between forfeited claims and waived claims stating: Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right. [Citations omitted]. Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant s choice must be particularly informed or voluntary, all depend on the right at stake. Olano, 507 U.S. at This Court further stated that authority for appellate review also requires that the error must be clear, or equivalently, obvious... and further, that the plain error must

19 11 affec[t] substantial rights. This is the same language employed in Rule 52(a), and in most cases it means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings. Olano, 507 U.S. at 734. Applying Olano and Rule 52(b), it is clear that the Petitioner (1) has not intentionally relinquished his double jeopardy claim, (2) that the error was clear and obvious, and (3) the error affected his substantial rights (i.e., affected the outcome of the district court proceedings ). If a legal rule was violated during the district court proceedings, and if the defendant did not waive the rule, then there has been an error within the meaning of Rule 52(b) despite the absence of a timely objection. Olano, 507 U.S. at 734. The Petitioner s claim, while forfeited, was not waived and he has met the requirements for plain error review of this claim. As previously noted, the Eighth Circuit did not conduct a plain error review. Instead, the Circuit applied United States v. Stock, 2011 WL (8th Cir. 2011) (per curiam). The Circuit stated that Stock presented nearly identical circumstances to the facts of the present case and concluded that the Petitioner had waived his double jeopardy claim by simply entering into a guilty plea pursuant to his plea agreement. In doing so, the Circuit failed to consider controlling authority of this Court relating to application of waiver in the context of a plea and misapplied the facts of Stock to the present case. The United States Supreme Court considered waiver in the context of a guilty plea in a series of

20 12 cases beginning with Blackledge v. Perry, 417 U.S. 21, 94 S.Ct (1974); Menna v. New York, 423 U.S. 61, 96 S.Ct. 241 (1975), and culminating with United States v. Broce, 488 U.S. 563, 109 S.Ct. 757 (1989). Both Blackledge and Menna affirmatively state that a double jeopardy claim is not waived merely on a plea. Blackledge and Menna involved situations where the Court was able to determine that the double jeopardy clause was violated on the face of the record and without resort to other evidence not in the record. The Supreme Court in Menna stated: [w]e do not hold that a double jeopardy claim may never be waived. We simply hold that a plea of guilty to a charge does not waive a claim that judged on its face the charge is one which the State may not constitutionally prosecute. Id., 423 U.S. at 63, n. 2, 96 S.Ct. at 242, n. 2. Thus, were the double jeopardy claim is based on a facial defect in the proceedings, there is no waiver. In United States v. Broce, 488 U.S. 563, 109 S.Ct. 757 (1989), a double jeopardy claim was rejected because this Court found, in that particular case, that it could not determine the claim without resort to extrinsic evidence. The claimant in Broce had pled guilty to two separate conspiracies which he later claimed were the same conspiracy. It was not apparent on the record in Broce that the two conspiracies were in fact the same. Thus, this Court in Broce determined that the plea was not facially defective which had been the case in Blackledge and Menna. Broce may be read as a limitation to Blackledge and

21 13 Menna but, more fairly, it appears to be merely the other side of the coin from Blackledge and Menna. The Eighth Circuit in Stock recognized this distinction. The Circuit stated: [Stock] pled guilty under a plea agreement to two counts of possession of child pornography. One was based on his possession of images stored on a laptop, and the other was based on his possession of images on an external hard drive. Stock, 2011 WL , at 1 (emphasis added). The Eighth Circuit in Stock, relying on Blackledge and Broce, concluded that the two counts, based on separate media, presented no facial defect and thus the merger claim was waived. If, as we argued on appeal to the Eighth Circuit, the unit of prosecution for a violation of 18 U.S.C. 2252A(a)(5)(B) is the media on which the child pornography is possessed rather than the dates of its possession, and his plea facially referenced the two distinct media, Stock seems correctly decided. Stock does not, however, present nearly identical circumstances, nor is its analysis applicable to, the present case. The Petitioner pled to two counts which referenced two separate dates, not two separate media as in Stock. Thus, if the unit of prosecution is the media, the Petitioner s plea to and conviction on multiple counts based on dates of possession is facially defective, the issue is jurisdictional and the Blackledge/Menna/Broce line of cases suggests that no waiver occurred. The present case is in fact identical to the circumstances presented in another Northern District of Iowa case decided by the same judge as the Stock

22 14 case, and at almost the same time that the Petitioner was sentenced. In United States v. Schaefer, 1:10-cr LRR, Doc. 50 (Unpublished), App , the District Court correctly found a double jeopardy violation and concluded it was not waived by the plea. Schaefer, like the present case, involved a plea to two counts of a violation of 18 U.S.C. 2252A(a)(5)(B), based on dates, not media. For the Eighth Circuit to have found waiver on the facts of the present case, it had to implicitly conclude that the unit of prosecution for a violation of 18 U.S.C. 2252A(a)(5)(B) was something other than the media on which the child pornography was possessed (i.e., the dates of possession). That makes its reliance on Stock very difficult to understand because the clear underlying basis for the finding of waiver in that case was the fact that Defendant Stock admitted to possessing multiple media undisputedly containing child pornography, but not on separate dates. The issue of unit of prosecution is further discussed below but is inexorably entwined with the waiver issue. See United States v. Hinkeldey, 626 F.3d 1010, (8th Cir. 2010); United States v. Schaefer, 1:10-cr LRR, Doc. 50 (Unpublished), App The Eighth Circuit appears to reject that authority in concluding that there is no facial defect in a plea to multiple counts of a violation of 18 U.S.C. 2252A(a)(5)(B) and (b)(2) based on separate dates of possession as the unit of prosecution, while at the same time relying on Stock which is also authority for

23 15 the proposition that unit of prosecution is the media on which the child pornography was possessed, not the dates of possession. The Eighth Circuit also relied on United States v. Limley, 510 F.3d 825 (8th Cir. 2007), for the proposition that [a] valid guilty plea is an admission of guilt that waives all non-jurisdictional defects and defenses. Id. at 827. While that is true, a double jeopardy claim alleges a constitutional defect in the proceedings which is clearly jurisdictional. See United States v. Seay, 620 F.3d 919 (8th Cir. 2010), in which this Court held a Second Amendment challenge survived a plea, and stated: Such challenges to the court s jurisdiction may be pursued despite a defendant s guilty plea. See Broce, 488 U.S. at 575, 109 S.Ct. 757; Menna, 423 U.S. at 62 n. 2, 96 S.Ct. 241; Blackledge, 417 U.S. at 30, 94 S.Ct Because we see no way to reconcile Fox with the clear language of our cases holding that facial challenges are jurisdictional in nature, see Morgan, 230 F.3d at 1071, we hold that Seay s Second Amendment challenge is jurisdictional and, therefore, survives his guilty plea. Seay, 620 F.3d at 923. Thus, the Eighth Circuit s reliance on Stock is both factually and legally misplaced and inconsistent with this Court s and the Circuit s prior jurisprudence. Instead, the waiver analysis should have proceeded through the Blackledge, Menna and Broce line of cases which turn on whether

24 16 the defect is facial and whether the claim may be determined on the record before the court. That analysis would seem to require the Court to first determine the unit of prosecution for a violation of 18 U.S.C. 2252A(a)(5)(B), then determine whether there was plain error and then determine whether the claim was waived. The Eighth Circuit went straight to waiver. Again, if the unit of prosecution is the media on which the child pornography was possessed, as further discussed below, then the double jeopardy claim is apparent on the face of this case, the challenge is jurisdictional, not waived, and survives the guilty plea. If there is no waiver, then the various other issues raised on appeal in the Petitioner s opening brief to the Eighth Circuit should have been decided. II. THE UNIT OF PROSECUTION FOR A VIOLATION OF 18 U.S.C. 2252A(A)(5)(B) IS THE MEDIA ON WHICH THE CHILD PORNOGRAPHY WAS POSSESSED, NOT THE DATES OF POSSESSION AND THE PUNISHMENT OF THE PETITIONER FOR MULTIPLE VIOLATIONS OF 18 U.S.C. 2252A(A)(5)(B) BASED ON MULTIPLE DATES OF POSSESSION VIOLATES THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT Under the double jeopardy clause of the Fifth Amendment, no person shall be subject for the same offense to be twice put in jeopardy of life or limb.

25 17 U.S. Const. amend. V. In North Carolina v. Pearce, 395 U.S. 711 (1969), this Court stated: If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And... there has never been any doubt of (this rule s) entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offense.... (T)he Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it. Pearce, 395 U.S. at (citing Ex Parte Lange, 85 U.S. 163, 173 (1873)). This Court further stated, [w]e hold that the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully credited in imposing sentence upon a new conviction for the same offense. Id. at Thus, the double jeopardy clause of the Fifth Amendment applies equally to multiple punishments as well as multiple convictions. If in law and fact the two counts to which the Petitioner pled are the same crime, the 135 month sentence imposed by the District Court violates the double jeopardy clause as the statutory maximum sentence which could have been imposed was 120 months. 18 U.S.C. 2252A(b)(2). The analysis as to whether the two counts to which the Petitioner pled are one crime or two

26 18 separate crimes begins with Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180 (1932). In Blockburger, this Court stated that whether the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Id., 284 U.S. at 304. In the present case, the Petitioner pled to the First Amended Information stating two counts of violation of 18 U.S.C. 2252A(a)(5)(B) and (b)(2). The counts were merely distinguished by their dates. The plea agreement and colloquy did not establish any further distinctions. The relevant evidence at sentencing contained in the PSIR established the possession of multiple media but only established that one medium, a Toshiba laptop, undisputedly contained child pornography. 1 If multiple violations of 18 U.S.C. 1 While the issue was not decided by the Eighth Circuit due to its ruling on waiver, the question of proof of multiple media was extensively briefed and argued on appeal. As we argued, the standard of proof applicable to issues at sentencing is preponderance of the evidence. United States v. Brown, 453 F.3d 1024, 1026 (8th Cir. 2006). Other than admissions made on the plea, the only proof offered at sentencing with regard to multiple media was contained in the PSIR, which referred specifically to the Toshiba laptop as containing child pornography and all other media as suspected. The Black s Law Dictionary defines suspicion as [t]he imagination or apprehension of the existence of something wrong based only on slight or no evidence, without definitive proof. Black s Law Dictionary, 1175 (Bryan A. Garnered), 7th ed., West Reasonable suspicion, a term often used in the context of permissible searches pursuant to the (Continued on following page)

27 19 Fourth Amendment to the United States Constitution is defined as [a] particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity. Black s Law Dictionary, 1018 (Bryan A. Garnered), 7th ed., West Whether the term is suspicion, suspect or suspected, the evidentiary standard is based only on slight or no evidence, without definitive proof. That something which is suspected is not thereby proven by a preponderance of the evidence is best illustrated by analogy to a comparison, under a Fourth Amendment analysis, of the level of proof required to allow a legal stop under Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct (1968), with that required to establish probable cause, and that which establishes something by a preponderance of the evidence. In United States v. Arvizu, 543 U.S. 266, 122 S.Ct. 744 (2002), this Court stated: When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing. See, e.g., id. at , 101 S.Ct This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. Id. at 418, 101 S.Ct See also Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (reviewing court must give due weight to factual inferences drawn by resident judges and local law enforcement officers). Although an officer s reliance on a mere hunch is insufficient to justify a stop, Terry, supra, at 27, 88 S.Ct. 1868, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, Sokolow, supra, at 7, 109 S.Ct Arvizu, 543 U.S. at Similarly, the Eighth Circuit in United States v. Carpenter, 462 F.3d 981 (8th Cir. 2006), stated (Continued on following page)

28 A(a)(5)(B) may be established by possession of the same medium on multiple dates, or even times, then it is conceivable that such proof could be used to establish an infinite number of violations based on the possession of a single photograph during the tiniest divisions of time. On the other hand, if the multiple violations may be established only by the possession of multiple media, as the clear reading of 18 U.S.C. 2252A(a)(5)(B) suggests, then the dates and times of possession are irrelevant and neither count requires proof of a fact which the other does not. Blockburger, 284 U.S. at 304. Thus, the fundamental [r]easonable suspicion is a lower threshold than probable cause, Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), and it requires considerably less than proof of wrongdoing by a preponderance of the evidence. Carpenter, 462 F.3d at 986. See also, United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct (1989); United States v. Davis, 636 F.3d 1281, 1291 (10th Cir. 2011). Thus, as we argued, suspected and suspicion are an even lower level of proof than reasonable suspicion. Under the Fourth Amendment analysis of Sokolow, Arvizu and Carpenter, something which gives rise to a reasonable suspicion falls considerably short of satisfying a preponderance of the evidence standard.... Arvizu, 543 U.S. at 274. It logically follows that something which is suspected does not even get that far. Accordingly, we argued that the PSIR s recitation, without description, that other media contained items suspected to be child pornography, or which were suspected child erotica, as the case may be, fails as a matter of law to establish that they actually contained child pornography by a preponderance of the evidence as required by United States v. Brown, 453 F.3d 1024, 1026 (8th Cir. 2006).

29 21 question which precedes the plain error and waiver analysis is what is the unit of prosecution? Beyond the clear reading of the statute, the jurisprudence to date on this issue has largely backed into the conclusion that multiple convictions for violations of 18 U.S.C. 2252A(a)(5)(B) require multiple media by upholding convictions based on multiple media without explicitly stating that is the unit of prosecution to the exclusion of all other possibilities. In United States v. Hinkeldey, 626 F.3d 1010 (8th Cir. 2010), the Eighth Circuit considered the question of whether multiple counts charging violations of Section 2252A(a)(5)(B) could be supported by possession of child pornography on multiple media. The Circuit stated: Hinkeldey claims that the simultaneous possession of overlapping, illegal files on separate devices does not constitute distinct possession crimes under 18 U.S.C. 2252A(a)(5)(B). The statute calls for punishment of a person who knowingly possesses... any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography. Id. (emphasis added).... We conclude that Hinkeldey s double jeopardy challenge to the separate possession counts must fail, because it is not clear or obvious under current law that Congress intended that conduct like Hinkeldey s make

30 22 up a single unit of prosecution. See Olano, 507 U.S. at 734, 113 S.Ct The principal decisions in this area appear to support the district court s decision. The Fifth Circuit, in a case involving three possession counts based on images from two computers and a number of diskettes, affirmed separate convictions on each count under 2252A(a)(5)(B). See United States v. Planck, 493 F.3d 501 (5th Cir. 2007).... The court explained that as long as the prohibited images were obtained through the result of different transactions, the statute permits a separate count for each type of material or media possessed. Id.; see also United States v. Anson, 304 Fed.Appx. 1, 4 (2nd Cir. 2008) (declaring that the any language of 2252A(a)(5)(B) lends itself to treating each book, magazine, or other material in this case a computer hard drive and thirty-nine CD-ROMs as separate units of prosecution ). Our court has also suggested, in an unpublished opinion, that 2252A(a)(5)(B) allows separate convictions for illegal images stored on different devices. In United States v. Martin, 278 Fed.Appx. 696 (8th Cir. 2008), we cited Planck and held that because the defendant admitted that he possessed multiple disks containing pornographic images of children, the district court did not abuse its discretion by declining to treat the defendant s two convictions under

31 A(a)(5)(B) as one crime for purposes of sentencing. Id. at 697. Hinkeldey, 626 F.3d at Thus, the Eighth Circuit and others have held that a unit of prosecution for a violation of Section 2252A(a)(5)(B) is the media on or in which the contraband is contained. However, although the Government in this case argued that the unit of prosecution could also be something else, there seems to be no good idea what that something else might be or authority for that proposition. As previously noted, the same judge in the same District Court in this case had occasion to consider this double jeopardy claim both in Stock and in a case presenting very nearly the same context as is presented in this case. In United States v. Schaefer, 2011 WL (N.D. Iowa 2011). Schaefer was indicted on one count of possession of child pornography, in violation of 18 U.S.C. 2252A(a)(5)(B) and (b)(2) and was charged in an information with a second count of possession of child pornography, in violation of 18 U.S.C. 2252A(a)(5)(B) and (b)(2). On December 6, 2010, pursuant to a plea agreement, he pled to both counts. On February 28, 2011, he filed a motion based on Double Jeopardy styled Motion to Merge Counts of Conviction. United States v. Schaefer, 1:10-cr LRR, Doc. 33. By order entered May 5, 2011, the District Court granted the Motion to Merge, concluding that Schaefer had pled to two counts of possession of child pornography which, in law and fact, were the same crimes.

32 24 United States v. Schaefer, 1:10-cr LRR, Doc. 50 (Unpublished), App Accordingly, the District Court concluded that the statutory maximum sentence, and therefore the top of the Guideline range, was 120 months. Schaefer, 2011 WL at 1. As in Schaefer, the Petitioner was charged in the First Amended Information with two counts of occurring on June 17, 2009, and July 9, App The selection of the two dates was based on dates that law enforcement was able to access the Petitioner s computer, the former being the date of a direct connection and download, and the latter being the date the search warrant was executed and his computer seized. Thus, as charged and pled, it was supposed by the Government that the unit of prosecution was the possession of contraband on different dates. In Schaefer, the selection of dates appears to be based on dates when receipt could be established. The District Court s analysis on that point, however, is equally applicable to the present case. The District Court stated: Although it did not specifically address the issue, Planck arguably found that the fact that multiple counts of receipt of child pornography may be properly charged does not automatically mean that multiple counts of possession may be properly charged. Planck, 493 F.3d at In other words, the Fifth Circuit Court of Appeals found that receipt of child pornography and possession of child pornography have different units of

33 25 prosecution. It distinguished the receipt statute, 2252(a)(2), which criminalizes each separate receipt of child pornography and the possession statutes, which criminalize the possession of child pornography... at a single place and time. Id. at 505. The plain language of the individual statutes clearly bolsters this conclusion. The possession of child pornography statute speaks in terms of the vehicles or places that enable that possession, such as magazines, disks, videotapes and any other material that contains an image of child pornography. 18 U.S.C. 2252A(a)(5)(B). Schaefer, App. 25. As in Schaefer, while the double jeopardy clause might not have been implicated if separate distribution and possession counts were charged in the First Amended Information, the clause is implicated by the charging of two counts of the same violation on different dates, as the date of possession child pornography is not the unit of prosecution for violation of Section 2252A(a)(5)(B). Rather, it is the media on which it is possessed. Tying back into the waiver argument, if this Court determines that the unit of prosecution for a violation of Section 2252A(a)(5)(B) is the media on which the child pornography is possessed, and that multiple and separate violations of Section 2252A(a)(5)(B) were not established, then the double jeopardy clause was violated and the error is plain, clear and obvious.

34 26 A plain error review also requires that the error affected the Petitioner s substantial rights.... [I]n most cases it means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings. Olano, 507 U.S. at 734. In the present case, that is the easiest element to satisfy as the Petitioner received a sentence of 135 months. If the double jeopardy clause was violated, then counts of conviction must be merged for sentencing and the Petitioner could only have been sentenced to a term of imprisonment not to exceed 120 months, which is the statutory maximum. Therefore, the error clearly affected the outcome of the district court proceedings. In conclusion, the Petitioner was convicted of two counts of the same crime in law and fact and, pursuant to the double jeopardy clause, may only be punished for a single violation. The counts of conviction merge for the purpose of sentencing with the result that any sentence imposed in the matter over the statutory maximum of 120 months is unconstitutional. We respectfully request that this Court so find and remand this matter for resentencing consistent with such holding CONCLUSION For all of the reasons stated, the Petitioner prays that the Petition for Writ of Certiorari be granted and that the decision of the Eighth Circuit below be

35 27 reversed and matter remanded to the District Court for a resentencing consistent with the ruling of this Court. Respectfully submitted, ROSENBERG & MORSE BRENT ROSENBERG 505 5th Avenue, Suite 1010 Des Moines, Iowa Telephone: (515) Fax: (515) bdr@rosenbergmorse.com Counsel for Petitioner John Dolehide

36 App. 1 UNITED STATES of America, Appellee, v. John DOLEHIDE, Appellant. No United States Court of Appeals, Eighth Circuit. Submitted: Oct. 21, Filed: Dec. 6, Rehearing and Rehearing En Banc Denied Jan. 11, Brent D. Rosenberg, argued, Des Moines, IA, for appellant. Peter E. Deegan, Jr., AUSA, argued, Cedar Rapids, IA, for appellee. Before RILEY, Chief Judge, SHEPHERD, Circuit Judge, and MAGNUSON, 1 District Judge. MAGNUSON, District Judge. John Dolehide appeals from the District Court s 2 imposition of a 135-month sentence on two counts of possession of child pornography. We affirm. 1 The Honorable Paul A. Magnuson, United States District Court Judge for the District of Minnesota, sitting by designation. 2 The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.

37 I. BACKGROUND App. 2 Appellant John Dolehide was the subject of a child pornography investigation arising from his use of LimeWire, a file-sharing program. During the investigation, law enforcement officers downloaded child pornography directly from Dolehide s LimeWire files. During the subsequent search of his home, law enforcement officers confiscated a laptop and several hard drives. On October 12, 2010, Dolehide waived indictment and pled guilty to an information charging him with two counts of possession of child pornography in violation of 18 U.S.C. 2252A(a)(5)(B) and 2252A(b)(2). The District Court accepted Dolehide s guilty plea on October 27, On December 20, 2010, the U.S. Probation Office issued the presentence investigation report ( PSR ) and both parties filed objections. Probation issued an Amended PSR on January 19, Prior to sentencing, both parties filed position papers, and Dolehide filed a motion for a downward variance. The District Court held a sentencing hearing on March 23, 2011, during which the parties presented evidence. Much of the hearing focused on Dolehide s mental-health issues. Dolehide presented evidence that he has had difficulties in social settings his entire life and that he has been diagnosed with various disorders, including Attention Deficit Hyperactivity Disorder ( ADHD ), High Functioning Pervasive Developmental Disorder, Disruptive Behavior Disorders, Autistic

38 App. 3 Spectrum Disorder, and Asperger s Syndrome. Dolehide argued that he should be sentenced to probation because he would likely become a victim in the prison system. The District Court took the matter under advisement and issued a lengthy Order on May 6, The District Court s Order addressed two of the issues raised on appeal: (1) whether a five-level enhancement for distribution applied given Dolehide s uploading and downloading of illegal images through LimeWire; and (2) whether Dolehide s mental-health issues warranted a downward variance. The District Court determined that the five-level enhancement applied because the Government offered evidence that the offenses involved the distribution of child pornography in expectation of a thing of value. U.S.S.G. 2G2.2(b)(3)(B). Specifically, the District Court determined that Dolehide had made illegal images available to others via LimeWire and that he knowingly downloaded such images from others. The District Court also denied Dolehide s request for a downward variance. The District Court found that the evidence regarding Dolehide s mental-health status conflicted; for example, one doctor testified that Dolehide suffered from Asperger s and others concluded that he suffered from ADHD or other behavioral disorders. The District Court concluded that, whatever the diagnosis, the ascertainable facts established that Dolehide s mental issues did not contribute to his commission of the crimes and did

39 App. 4 not justify the imposition of probation. The District Court pointed to the fact that Dolehide is intelligent and able to function on a relatively normal basis. Prior to the underlying events, Dolehide lived independent of his family, went to school, and had relationships with peers. In the course of his dealings with law enforcement, he was able to be polite and carry on a cogent conversation, and he acknowledged that possessing child pornography is wrong. The District Court further noted that the Bureau of Prisons is well-equipped to manage and treat Dolehide during his tenure in custody. Dolehide now appeals his sentence. II. DISCUSSION A. Double Jeopardy Dolehide argues that his sentence violates the Double Jeopardy Clause of the Fifth Amendment because the two counts of conviction were effectively the same offense. Dolehide pled guilty to both counts of conviction and did not raise the double jeopardy argument during any of the proceedings below. Under nearly identical circumstances, this Court recently held that the defendant waived his right to challenge his conviction on the basis of double jeopardy when he pled guilty to two counts of possession of child pornography. United States v. Stock, No , 445 Fed. Appx. 894, 2011 WL (8th Cir. Nov. 10, 2011) (per curiam); see also United States v. Limley, 510 F.3d 825, 827 (8th Cir.2007) ( A valid

40 App. 5 guilty plea is an admission of guilt that waives all non-jurisdictional defects and defenses. ). We reasoned that [b]y pleading guilty to two counts of possession of child pornography, Stock admitted that he had committed two separate crimes. Stock, 445 Fed.Appx. at 895, 2011 WL , at *2. As in Stock, Dolehide admitted his guilt to two distinct crimes by pleading guilty to two counts of possession of child pornography. Dolehide thus has waived his double jeopardy claim and we are foreclosed from reviewing that claim on appeal. United States v. Booker, 576 F.3d 506, 511 (8th Cir.2009) (waived claims are unreviewable on appeal). B. Sentencing Enhancement In an appeal of a sentencing enhancement, the District Court s legal conclusions are reviewed de novo and its factual findings for clear error. United States v. San-Miguel, 634 F.3d 471, 474 (8th Cir.2011). Dolehide argues that the District Court erred in applying a five-level enhancement under U.S.S.G. 2G2.2(b)(3)(B). Section 2G2.2(b)(3)(B) applies where the offense involved distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain. This Court has applied the enhancement where the defendant received and shared child pornography files through peer-to-peer file sharing networks. United States v. Bastian, 603 F.3d