Multiple Counts, Lesser-Included Offenses and Double Jeopardy


By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


One of the quiet abuses in the nation’s criminal justice system is prosecutors overcharging criminal defendants. In their zeal to prosecute and convict, prosecutors file multiple counts against a defendant in a single indictment involving the same criminal conduct knowing – or least possessing the duty to know – that two convictions based on the same conduct will almost always be reversed on appeal.  Criminal defense lawyers argue that many prosecutors charge multiple counts against a defendant in an attempt to prejudice a defendant, insinuating that the defendant must have done something to justify the multiple counts.  There were two recent examples of this prosecutorial abuse – one involving a Texas case and the other involving a federal case in California.


Jared Daniel Littrell was charged in a multi-count indictment in Potter County, Texas, with felony murder and aggravated robbery. The charges stemmed from a criminal scheme by Littrell and a prostitute to rob a former client of the prostitute. Littrell and the prostitute entered the client’s hotel room where a struggle ensued during which the client was shot and killed. See: Littrell v. State, 2008 Tex. Crim. App. LEXIS 1306 (Tex. Crim. App. Oct. 15, 2008).
The trial judge charged the jury with an instruction that it could convict the Littrell on both counts. The jury did just that, and assessed Littrell’s punishment at 30 years on the felony murder and 25 years on the aggravated robbery conviction. Littrell appealed his convictions contending that the Fifth Amendment’s prohibition against double jeopardy had been violated by his punishment for offenses based on the same conduct. The Amarillo Court of Appeals disagreed, holding that because the murder and aggravated robbery each contained an element the other does not, double jeopardy did not attach. See: Littrell v. State, 2007 Tex.App. 5988 (Tex.App.-Amarillo July 25, 2007). The Court said:


”To prove aggravated robbery as alleged in the indictment, the State had to prove, among other things, the commission of theft coupled with aggravating circumstances; such was not required to prove . . . murder . . . . To prove murder, the State had to establish that an act of appellant caused [the complainant]’s death; that element is missing in . . . aggravated assault [sic] . . . . So, the test espoused in Cervantes [v. State, 815 S.W.2d 569, 571-75 (Tex.Crim.App. 1991)] was met and no problems with double jeopardy arose.” Id. LEXIS at 6.


The Court of Criminal Appeals said that the Amarillo Court of Appeals’ reasoning was flawed and that the Cervantes rule had been misapplied. The court began its analysis by pointing out that the Fifth Amendment’s double jeopardy provisions are applicable to the states through the Fourteenth Amendment. While most people think of double jeopardy as a bar to a second prosecution for the same offense of which a defendant has been acquitted, this Fifth Amendment protection also prohibits the State from punishing a criminal defendant more than once for the same offense. See. Brown v. Ohio, 432 U.S. 161, 165 (1977).
Jared Littrell was given two punishments from a single prosecution. The Court of Criminal Appeals in Littrell said that “two offenses may be the same if one offense stands in relation to the other as a lesser-included offense, or if the two offenses are defined under distinct statutory provisions but the Legislature has made it clear that only one punishment is intended.” Id., at LEXIS 6. See also: Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008); Langs v. State, 182 S.W.3d 680, 685 (Tex.Crim.App. 2006).
The United States Supreme Court long ago in Blockburger v. United States established the “same elements” test which presumes that the Legislature did not regard two statutorily defined offenses to be the same if “each provision requires proof of a fact that the other does not.” 281 U.S. 299, 304 (1932). The Court of Criminal Appeals has narrowly construed the Blockburger test as only a tool of statutory construction not meant to be an exclusive test and that a criminal defendant may be punished for two offenses that would be regarded the same under the Blockburger test “if the Legislature has otherwise made manifest its intention that he should be.” Id., at LEXIS 6. See also: Garza v. State, 213 S.W.3d 338, 352 (Tex.Crim.App. 2007).
The two issues the Littrell court had to squarely address were: whether the aggravated robbery is a lesser-included offense of the felony murder, and if so, whether the Legislature has clearly expressed an intention that a criminal defendant should in fact be punished for both the greater and lesser-included offenses. Id., LEXIS at 6-7. The first, and primary question, was answered under state law “by comparing the elements of the greater offense, as the State pled it in the indictment, with the elements of the statute that defines the lesser offense.” See: Hall v. State, 225 S.W.3d 524, 525 (Tex.Crim.App. 2007). The Littrell court said that “if the aggravated robbery is a lesser-included offense under this analysis, the judicial presumption is that they are the same for double-jeopardy purposes and that the accused may not be punished for both.” Id., at LEXIS 7.


The Littrell court found a viable double jeopardy violation through the following analysis:

”The State’s theory of felony murder, as expressed in Count One of the indictment, is that the appellant committed an act clearly dangerous to human life that caused the complainant’s death during the commission (or attempted commission) of aggravated robbery. Count Two of the indictment alleges that self-same predicate aggravated robbery. In order to establish felony murder as alleged in Count One, the State need prove no more than the aggravated robbery (or attempted aggravated robbery) alleged in Count Two, plus additional facts. In order to prove the aggravated robbery, the State need prove no additional fact that is not already contained in Count One. As they are pled in the indictment, then, Count Two is clearly subsumed within, and therefore constitutes a lesser-included offense of, Count One, both as a matter of state law and for double-jeopardy purposes.” Id., at LEXIS 7-8.
The Littrell court then turned a critical eye on the Amarillo appeals court by pointing out that the lower court “seems to have lost sight of the fact that the appellant was charged with felony murder under Section 19.02(b)(3) of the Penal Code, rather than murder under Section 19.02(b)(1). Had the appellant been charged under the latter provision, we agree that aggravated robbery would not have constituted a lesser-included offense. Murder under such an indictment would require proof only that the appellant intentionally or knowingly caused the complainant’s death and would not involve proof of a predicate felony such as aggravated robbery. Thus, those two offenses would (at least presumably) not be the same for jeopardy purposes, since on the face of the pleadings each would require proof of at least one fact that the other would not. But an intentional and knowing murder was not the theory that the State chose to pursue in Count One.” Id., at LEXIS 10.
The prosecution knew – or should have known – that by charging Jared Littrell under Tex. Penal Code § 19.02(b) (3), the felony murder and aggravated robbery became the “same offense.” It can reasonably be assumed that the prosecutor chose to proceed under § 19.02(b) (3) because he/she did not want to be shackled with the burden of proving under § 19.02(b) (1) that Littrell intentionally and knowingly killed the victim. Besides, a “felony-murder” conviction sounds better – even if the law does not sanction it as the prosecutor charged it in his/her indictment.


Having found that the manner in which the prosecutor charged the aggravated robbery was a lesser-included offense of the felony murder and, therefore, constituted the same offense for double jeopardy purpose, the Littrell court then turned its attention to whether the Legislature has clearly expressed an intention that Littrell could be punishment for both offenses notwithstanding the Blockburger test. The court found no such legislative expression, saying:
“The Legislature knows well enough how to plainly express its intention that an accused should suffer multiple punishments for the same offense. There are examples readily to be found in the Penal Code. One is Section 22.04(h), which makes it clear that an accused who is charged with injury to a child, elderly individual, or disabled individual may also be prosecuted (and presumably, punished) for any other penal-code violation to which his conduct may subject him. Similarly, Section 71.03(3) of the Penal Code provides that ‘[i]t is no defense to prosecution’ for engaging in organized criminal activity that the accused has also been charged with one of the predicate offenses. We have held this to be a clear enough indication of a legislative ‘intention that a defendant charged with engaging in organized criminal activity may also be charged (at least in the same proceeding) with the underlying offense and punished for both.’ We find no comparable language in either Section 19.02, the murder statute, or Chapter 29 of the Penal Code, which defines the offenses of robbery and aggravated robbery. In the absence of such a comparably clear expression of a contrary legislative intent, we hold that the offense of aggravated robbery as pled in Count Two of the appellant’s indictment was a lesser-included offense of, and therefore the same offense for double-jeopardy purposes as, the offense of felony murder as specifically pled in Count One. The court of appeals erred to conclude otherwise.” Id., at LEXIS 14-15.


In the federal prosecution, Walter M. Schales, 45-years of age at the time, approached a 14-year-old girl in 2005 at a Wal-Mart in Hanford, California, secretly placed a digital camera underneath her mini-skirt, and took a photograph. He was caught red-handed by a fellow shopper who immediately called the police. Schales tried to delete the photographs stored on his camera, but the police successfully recovered several photographs of two young girls from the camera. The police secured a warrant to search Schales’ residence during which they discovered a large quantity of child pornography.


Among this collection was a number of photographs of local minor girls who faces had been cut out and pasted on sexually explicit images of other girls Schales had downloaded from the Internet. A forensic analysis of Schales’ computer revealed thousands of images of child pornography downloaded from the Internet, many of whom were under the age of six. See: United States v. Schales, 2008 U.S. App. LEXIS 21872, p. 1-2 (9th Cir. Oct. 20, 2008).
A federal grand jury indicted Schales in Count One for receiving or distributing material involving the sexual exploitation of minors under 18 U.S.C. § 2252(a) (2); in Count Two for possessing material involving the sexual exploitation of minors under 18 U.S.C. § 2252(a) (4) (B); and in Count Three for receiving or producing a visual depiction of a minor engaging in sexually explicit conduct that is obscene under 18 U.S.C. § 1466A (a) (1). After a four day trial, a jury found Schales guilty on all three counts and he was sentenced by the federal district court to a term of incarceration of 210 months on Counts One and Three and a concurrent 120 month term on Count Two. Id., at LEXIS 4-5.
Schales appealed his conviction based on a number of constitutional and evidentiary issues, including a claim that his Fifth Amendment protection against double jeopardy had been violated because of his two convictions under § 2252(a)(2) and (a)(4)(b).


The Ninth Circuit began its review by saying that federal courts employ the Blockburger test to evaluate double jeopardy claims. Id., at LEXIS 27. The Ninth Circuit cited the Blockburger test as follows: “[W]here 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.” See: Blockburger, supra, 284 U.S. at 304. Applying this test, the Ninth Circuit concluded:


”We begin by examining whether receipt of material involving sexual exploitation of minors requires proof of an additional fact which possession of material involving sexual exploitation of minors does not … we recently held that convictions for both receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2) and possessing child pornography in violation of 18 U.S.C § 2252A((a)(5)(B) violated the Double Jeopardy Clause because the offense of possessing child pornography is a lesser-included offense of the receipt of child pornography. We see no reason to conclude otherwise when it comes to receiving material involving the sexual exploitation of minors in violation of 18 U.S.C. § 2252(a) (2) and possessing material involving the sexual exploitation of minors in violation of 18 U.S.C. § 2252(a) (4) (B).


”The Supreme Court has recognized that comparing statutes to determine whether one set of elements is a subset of another requires a purely textual comparison … A comparison of the texts of the receipt offense, § 2252(a)(2), and the possession offense, § 2252(a)(4)(B), reveals that possession is a lesser-included offense of receipt … Thus, while the government can indict a defendant for both receipt and possession of sexually explicit material, entering judgment against him is multiplicitous and a double jeopardy violation when it is based on the same conduct.” Id., at LEXIS 30 [Internal citations omitted].


The Ninth Circuit rejected the government’s argument that the two counts questioned by Schales did not create a double jeopardy violation because they were based on different acts. The appeals court noted that while the government could prosecute Schales for multiple offenses in a single prosecution, it had the burden of “establishing [the] multiple counts by charging and providing separate offenses.” Id. See also: United States v. Planck, 493 F.3d 501, 504-05 (5th Cir. 2007).


”The government,” said the Ninth Circuit, “contends that the conduct charged in the receipt offense is factually different than the conduct charged in the possession offense because the indictment charges Schales with possession for a month longer than the receipt offense and because the evidence introduced at trial proves that Schales possessed and created copies of images that he transferred from one medium to another. The government asserts that this separate conduct — the receipt of the child pornography pictures on his computer hard drive and then the subsequent printing out of those images and retaining them on multiple compact discs — distinguishes this case from Davenport where the defendant’s possession of images of child pornography was limited to the computer hard drive.


”The statute proscribing the possession of sexually explicit material prohibits the possession of ‘books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction’ of sexually explicit conduct. 18 U.S.C. § 2252(a) (4) (B). In United States v. Lacy, 119 F.3d 742 (9th Cir. 1997), we explained that a ‘matter,’ is the physical medium that contains the visual depiction such as a computer hard drive or a computer disc. Id., at 748. Thus, where a defendant has stored sexually explicit images in separate mediums, the government may constitutionally charge that defendant with separate counts for each type of material or media possessed.


”For example, in Planck, the Fifth Circuit held that the government may permissibly charge a defendant with separate counts of possession for storing images of child pornography on a desktop, a laptop, and diskettes. 409 F.3d at 504. The court explained that ‘where a defendant has images stored in separate materials (as defined in 18 U.S.C. § 2252A), such as a computer, a book, and a magazine, the Government may charge multiple counts, each for the type of material or media possessed, as long as the prohibited images were obtained through the result of different transactions.’” Id., at LEXIS 32-33.
The indictment against Schales charged him with both receiving and possessing material involving the sexual exploitation of minors based on the same conduct. Count One charged that from January 2005 through September 2005 Schales knowingly received material involving the sexual exploitation of minors and Count Two charged that from January 2005 through October 2005 he possessed such material. The Ninth Circuit concluded:


“If the government wishes to charge a defendant with both receipt and possession of material involving the sexual exploitation of minors based on separate conduct, it must distinctly set forth each medium forming the basis of the separate counts. For example, we note that there would have been no double jeopardy violation if the government had distinctly charged Schales with both receipt of material involving the sexual exploitation of minors for the images that he downloaded from the internet and with possession of material involving the sexual exploitation of minors for the images that he transferred to and stored on compact discs. However, the indictment as written does not allow us to conclude that the jury found Schales guilty of separate conduct. Instead, the indictment charges Schales with receipt of the material by way of downloading it from the internet onto his computer and possession of this material in the same medium. This is multiplicitous.” Id., at LEXIS 34-35.


In each of these cases, the prosecutors effectively overcharged the defendants. They used the indictments, the charging instruments, as a mechanism for making the prosecution of their cases easier. It relieved them of the burden of having to produce additional evidence to prove the improperly charged counts as separate offenses. It is difficult not to conclude that these prosecutors deliberately tried to skirt the Fifth Amendment’s double jeopardy prohibitions in order to secure easier – and certainly more politically profitable – convictions.