There is this rule of law—dating back to 1932 when the U.S. Supreme Court first pronounced it—that the Double Jeopardy Clause of the U.S. Constitution prohibits multiple punishments for the same criminal offense.
The double jeopardy test as the Supreme Court stated in Blockburger v. United States is this: If “the same act or transaction constitutes a violation of two distinct 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.”
Here is how the test is applied.
Possession Lesser Included of Receipt
In 2011, the Eighth Circuit Court of Appeals in United States v. Muhlenbruch held that double jeopardy occurs when a defendant is convicted for receipt of child pornography under 18 U.S.C. § 2252(a)(2) and possession of child pornography under § 2252(a)(4)(B) based on the same act or transaction because possession is a lesser included offense of receipt.
USA v. Harvey
The Eighth Circuit encompasses the State of Nebraska. There is only one federal district in the entire state. Thus, there is only one Assistant U.S. Attorney’s office in the state. The office’s website states that its goal “is to do justice in each and every case we handle.” The office’s “General Crimes Unit” handles the prosecution of child sexual exploitation offenses, including the receipt, transportation, distribution and manufacture of child pornography. There are eleven prosecutors (AUSAs) in this unit.
We don’t which AUSA prosecuted Donald Lee Harvey. What we do know from a July 13, 2016 decision by the Eighth Circuit Court of Appeals is that the AUSA did not know or did not properly apply the double jeopardy law in the circuit.
The facts leading to Harvey’s conviction illustrate he was either ignorant of computer technology or that he had a relentless sexual compulsion.
This Bellevue resident downloaded and stored child pornography on his Toshiba laptop. The city’s police department found out about this criminal activity. But it is how the police found out about Mr. Harvey’s crime hat calls into question the mental status of this particular defendant.
Defendant Asked Friend to Secure his Documents and Photos
In early 2014, Harvey was in jail in Omaha on another offense unrelated to his child pornography activities. The Eighth Circuit did not state what this offense was for. The court simply said that the defendant’s laptop was seized during the arrest.
Harvey called a female friend while he was in jail. He asked her to pick up the laptop from the Omaha Police Department and make sure all his documents and photos were still on the laptop. The friend did as requested but could not log on to the laptop with the passwords provided to her by Harvey.
Being a good friend, she took the laptop to a computer repair store asking if they could access the hard drive. Store employees told her that it would be expensive to repair the computer but they could transfer the information stored on its hard drive to another device.
The friend agreed.
Backup Placed on External Drive
She brought her own external hard drive to store for the transfer. She later picked up the new external hard drive and discovered what she believed was child pornography.
She did not call the police.
In May 2014, a judge ordered Harvey released on bond on the charge unrelated to the child porn offenses. The judge instructed him to report to the local Salvation Army Adult Rehabilitation Facility.
Upon Release Viewing Porn on Phone
Harvey’s friend picked him at the jail and drove him around so he could run some errands. She also bought him a cell phone. She noticed that he remained continuously on the phone while they drove around the city. She then drove him the Salvation Army facility.
Later, the friend took Harvey’s laptop to him at the Salvation Army facility and picked up the cell phone she had purchased for him. She checked Harvey’s “internet browsing history” on the phone and clicked on a website that took her to what the Eighth Circuit described as a “website containing videos of prepubescent males and females engaged in sexual acts.”
Friend Reports to Police
Two months later the friend reported this entire sequence of events to the Bellevue Police Department. This department obtained and executed a search warrant for the friend’s cell phone and external hard drive that still had all the files on it that were transferred by the computer repair store. An ensuing search discovered the child pornography.
By the time the Bellevue police arrived at the Salvation Army facility, the laptop was in pieces and its hard drive was missing. However, a week later a Salvation Army employee was cleaning book shelves when he discovered Harvey’s hard drive stashed behind some books. The Salvation Army gave the hard drive to the Omaha Police Department which in turn gave it to the Bellevue Police Department.
Pursuant to a search warrant, Bellevue police searched the hard drive and discovered 36 videos of child pornography with creation dates from November 2012 through May 2013.
Indicted on Possession and Receipt of Child Porn Based on Same Conduct
In December 2014, prosecutors in the General Crimes Unit sought and secured a two-count indictment for possession and receipt of child pornography pursuant to the aforementioned federal statutes. The indictment specifically alleged that Harvey received the child pornography between November 2012 and May 2013 and possessed the child pornography on the date the police discovered it on the hard drive, July 8, 2014.
In April 2014, Harvey pled nolo contendere, no contest, to both counts charged in the indictment. The U.S. Sentencing Guidelines recommended a sentence of 135 to 168 months on count one and the maximum 120 months on count two. The court varied downward, imposing concurrent 74-month sentences on each count.
Harvey Appealed in Unrelated Issues, Appellate Court Sees Error
Harvey’s counsel did not raise the jeopardy issue and the government did not express any concern it may have had about the issue. The appellate court, to their great credit, on their own initiative ordered briefing on the double jeopardy issue.
Two Convictions, Same Transaction
However, at oral argument before the Eighth Circuit, the government “conceded that both of Harvey’s convictions [were] based on the same act or transaction.”
The fact that the Eighth Circuit had to see and call attention to all the parties about the double jeopardy was embarrassing to both the General Crimes Unit and the attorney(s) representing Harvey. The sentencing judge had some egg stain as well for this legal fiasco.
The appeals court, however, was in an understanding mood.
Government Conceded on Appeal Violation of Double Jeopardy
In a footnote observation, the court said that “our decision rests on the government’s concession. The Court compliments counsel for both parties on their presentation of the Double Jeopardy Clause issue at oral argument and thanks counsel for the United States for its candor in conceding that Harvey’s convictions violated the Double Jeopardy Clause.”
And we must also concede that the U.S. Attorney’s fulfilled its stated objective to do justice in each and every case it handles.
As for Harvey, it is unclear whether he will benefit from the constitutional error. The appeals court remanded his case back to the district court with instructions that one of his convictions be vacated and that he be resentenced. The appeals court left it up to the district court to determine whether to reduce Harvey’s 74-month sentence.