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Ninth Circuit Reverses Conviction because of Constructive Amendment: Blessett

The Ninth Circuit reversed a conviction because of a constructive amendment between the indictment and the jury charge.

In Blessett, the Ninth Circuit reversed a conviction because of a constructive amendment between the indictment and the jury charge.

Facts:  CP case, possible Constructive Indictment

Blessett was arrested and a search warrant was executed on his items.  Officers found a laptop, two tablets and five phones.  There were 2009 images and 57 videos of Child Pornography (CP).

Blessett was charged with receipt of CP under 2252(a)(2) and 5 counts of possession of CP under 2252(a)(4)(B).  After a motion to dismiss, the government filed a superseding indictment of one count of Receipt of CP under 2252(a)(2).  (note:  Blessett also was accused of a violation of supervised release).

The parties agreed to go forward on a lesser included charge:

“After Blessett moved to dismiss the new superseding indictment on various grounds, the district court gave the prosecution the choice of proceeding on the superseding indictment's charge of receipt, on the lesser-included offense of possession in the superseding indictment's receipt count, or on one of the original indictment's possession counts. Both the prosecution and the defense agreed that proceeding on the superseding indictment's lesser-included possession charge would resolve Blessett's objections. The district court stated that, in describing the charge in the jury instructions, it would use the word “possession” rather than “receipt,” and the defense agreed.”

After the prosecutor rested at trial, the defense objected to the government’s proposed jury charge because “the pattern instructions incorporated additional alternatives for the possession offense defined in § 2252(a)(4) that are not lesser included offenses of the receipt offense defined by § 2252(a)(2) and charged in the superseding indictment.”  The court overruled the objections and gave jury instructions that stated that they could convict Blessett for possession of CP if the CP “’had been either shipped or transported in interstate or foreign commerce, or, produced using or copied into material that had been transported in interstate or foreign commerce by computer or other means.’”

The Jury convicted Blessett and he appealed stating that the jury instruction given at trial gave two ways to commit the crime when the indictment only included one of those means.  This, if true would serve as a constructive indictment.

Holding:  A Constructive Amendment was Used Here.

The Ninth Circuit stated that:

The elements of receipt under § 2252(a)(2) require that a person “knowingly receive[ ], or distribute[ ], any visual depiction” of a minor engaging in sexually explicit conduct.  There must also be an interstate commerce nexus, which can be solved by showing:

either (1) that the defendant received the visual depiction using any means or facility of interstate or foreign commerce”; or (2) that the visual depiction is one “that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer. 

The Elements of possession require that the “person “knowingly possess[ ], or knowingly access[ ] with intent to view[,]” any “matter which contain[s] any visual depiction” of “a minor engaging in sexually explicit conduct.”  Here, there must be an interstate commerce nexus as well, which the prosecutor can prove by showing “that the visual depiction is one that “has been mailed, or has been shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer[.]”

This created a constructive indictment:

Here, the jury instructions—which were modelled on the Ninth Circuit's instructions for the § 2252(a)(4)(B) possession offense—directed the jury that it may find the interstate commerce element satisfied if the child pornography “had been either shipped or transported in interstate or foreign commerce” or “produced using or copied into material that had been transported in interstate or foreign commerce by computer or other means.” (Emphasis added.) But the superseding indictment alleged receipt under § 2252(a)(2), not possession, and those two offenses overlap only as to the first of the two nexuses in the jury instructions. That is, the jury could have convicted Blessett based on the view that he had copied images onto devices shipped in interstate commerce, even if those images had not themselves been transported in interstate commerce (including by using a means or facility of interstate commerce). This means that the jury instructions given at trial opened a path for the jury to convict Blessett of a possession charge that was not a lesser-included offense of the receipt charge that was alleged in the superseding indictment.

This meant that a constructive indictment had occurred:

An indictment is amended “ ‘when the charging terms of the indictment are altered, either literally or in effect, by the prosecutor or a court after the grand jury has last passed upon them.’ ” …Because the possession offense described in the jury instructions allowed conviction based on a nexus element that was not included in the receipt offense charged in the indictment, that possession charge was to that extent not a lesser-included offense of the indictment's receipt offense. ..As a result, it is impossible to know from the terms of the superseding indictment whether the grand jury would have indicted Blessett for the possession offense that rested on the non-overlapping interstate-nexus element, and we therefore must conclude that the challenged jury instruction constructively amended the indictment. 

The court determined that since a constructive amendment had occurred, a reversal was in order.

The court vacated the conviction and sentence in the new CP case (Blessett’s supervised release violation was affirmed) and remanded the cases back to the district court.  No. 19-10351

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