"Counts" and "Crimes"

This is a follow-up to my last post, which talked about a prosecutor’s discretion in deciding how many charges to file against a defendant.

In that post, I talked a bit about how the prosecutor in that case increased the number of charges against Mr. Cline after his first conviction was thrown out and the case was remanded for a new trial. The prosecutor said he increased the number of counts because there had been a problem – a duplicity problem – in the first indictment.

I want to talk here about what the issues that can arise in deciding whether a particular charge – a “count” – charges, essentially, too “much” crime or too little. Let’s start with a basic premise of bringing criminal charges.

Defendants are usually charged in an indictment, which is a set of charges returned by a grand jury, but they can also be charged in an information, which is an essentially identical set of charges that is produced by a prosecutor without the assistance of a grand jury.

In any charging document, each specific “charge” – each accusation that a defendant committed a “crime”, is set out in a separate “count.” So, an indictment will have a “Count I,” a “Count II, and so on, each of which charges a different crime. There are two kinds of challenges a defendant can raise to how a prosecutor has structured the charges in the counts in an indictment or information.

One is what is called “duplicity.” Duplicity essentially consists of charging two or more crimes in a single count. That’s the reason the prosecutor in the Cline case gave for adding all those charges the second time. The rationale was that in the first indictment some of the counts charged Mr. Cline with sending two emails to harass a particular victim; since each act of sending a harassing email was a separate crime under the statute at issue, that indictment was duplicitous, i.e, it improperly combined “crimes” in a single count.

The other problem is called “multiplicity.” Multiplicity is often described, in a phrase I like, as “impermissibly fractionating a single course of conduct into multiple offenses.” It means that the prosecution breaks one crime up into pieces, and charges the pieces in different counts of an indictment or information.

The reason duplicity and multiplicity are a problem is that both undermine the fairness of the proceeding. With duplicity, the defendant has to defend against a count that has two or more crimes in it; and that can make it difficult for the defense to figure out how to structure their case (do we defend against all of them or only one of them?). It can also make it difficult for the defendant who has been acquitted to raise double jeopardy if he’s charged again.

Assume a defendant was acquitted on a Count that charged crimes A and B. The prosecution then charges him again, in a new indictment, with Crime B. He says that’s double jeopardy. The prosecution says “no, they acquitted you of Crime A. We can still pursue Crime B.” The problem with multiplicity is even simpler. It means that the prosecution is taking one crime and turning it into several crimes. Assume, for example, someone is arrested for possessing an illegal drug. The drug comes in tablet form, and the person arrested had 5,000 tablets of the drug. He is charged in an indictment with 5,000 counts of illegally possessing the drug . .. one count per tablet. He can argue that the counts are multiplicitous because they break one crime (possessing “the drug”) into 5,000 counts (possessing 5,000 iterations of “the drug”). IMHO, that could would be seriously multiplicitous, which means the prosecutor would be told to revise it into a single count.

Okay, let’s get to cybercrime. In U.S. v. Davenport, 519 F.3d 940 (9th Circuit Court of Appeals 2008), Davenport was charged both with possessing child pornography and with receiving child pornography. The charges were based on the same images. Let’s make things simple and say that he was charged with “receiving” 10 images of child pornography (it was a lot more) and with “possessing” the same 10 images.

Davenport argued that the charges were multiplicitous . . . that they turned what should be, at most, 10 crimes into 20 crimes (10 of possessing + 10 of receiving). He said the charges were multiplicitous because they punished the same conduct. Davenport said, basically, that you can’t “possess” something without having first “received” it, so the act of possession necessarily encompasses the act of receiving the item possessed. Davenport was essentially arguing that “receipt” is a “lesser included offense” of possession.

A lesser included offense is a “smaller” crime the elements of which are contained within a larger crime. Trespass is a lesser included offense of burglary: Trespass is knowingly and unlawfully entering premises (a house, a business); burglary is knowingly and unlawfully entering premises for the purpose of committing a crime (theft, arson, murder, etc.) once inside. So, if a defendant is charged with both criminal trespass and burglary for the same course of conduct, i.e., for breaking into the same building to commit a crime inside, he can argue that the charge is multiplicitous, because it breaks a single “crime” into two pieces. And the defendant should win, which means the prosecution has to decide whether to charge trespass OR burglary.

What about Davenport? What do you think? Is “receipt” a lesser included offense of “possession”, or are they two different crimes?

(Spoiler: In the Davenport case, the Ninth Circuit Court of Appeals held that receipt IS a lesser included offense of possession, so Davenport could not be charged, and convicted of multiple counts of both based on the same images. At least one other federal court has reached the same conclusion.)

(If you’re interested in reading the Davenport opinion, you can find it on the Ninth Circuit’s website. Click on the “opinions” link on the left-hand side of the page and go to the opinions issue for March. You’ll find Davenport listed as having been issued on March 20, 2008; the docket number is 06-30596.)