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State, federal double-jeopardy challenge fails

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A man’s claims of federal and state double-jeopardy violations were rejected today by the Indiana Court of Appeals, which affirmed the trial court in a case involving multiple child pornography videos.

In John Thomas Pontius v. State of Indiana, No. 29A04-1001-CR-24, John Pontius appealed two of his five convictions of possession of child pornography as Class D felonies claiming they violated double-jeopardy laws. He also claimed he received ineffective assistance of trial counsel.

In May 2007, an Indiana State Police detective investigating Internet crimes involving child exploitation detected transmission of certain suspect images to an Internet Protocol address in Carmel. The images were transmitted between Feb. 19 and March 14, 2007. The detective provided information to Noblesville Police, who determined the specific IP address to which the images had been transmitted. Authorities got a search warrant for the home of Pontius’ grandparents, who were the subscribers at the IP address at issue; Pontius lived with them at certain times in 2007. The computer seized from the home contained four pornographic videos, which were all identified as featuring underage girls.

Upon speaking with Pontius, police learned he had downloaded certain materials on two separate computers. Authorities then got a search warrant for Pontius’ parents’ home and seized the computer there. A search of the computer revealed two videos, both downloaded July 16, 2007.

The state charged Pontius July 27, 2007, with six counts of possession of child pornography, with counts 1-4 corresponding to the videos found on the computer at his grandparents’ home and counts 5 and 6 found on the computer at his parents’ home. There is no dispute, however, that videos 1 and 6, which have the same name, are identical in content.

During his bench trial in May 2009, defense counsel commented he had not watched the videos in question. The court convicted Pontius of counts 1-3, 5, and 6, and acquitted him of count 4 on the basis that the individuals pictured “could be persons who might be 18 years of age.” He was sentenced to concurrent sentences of 3 years on each count, with 545 days executed and 550 days suspended to probation.

On appeal, Pontius argued because of the identical content of videos 1 and 6, his convictions for both violate double jeopardy under the federal and state constitutions. He also argued that his trial counsel was ineffective for failing to view the videos, causing prejudice by permitting Pontius to be convicted of two allegedly identical counts, impeding defense counsel’s ability to cross-examine witnesses regarding the age of video participants, and undermining defense counsel’s argument that Pontius’ possession of the videos was not knowing or intentional.

Pontius claimed that his dual convictions pursuant to Indiana Code Section 35-42-4-4(c) for counts 1 and 6, which are based upon the same video, constitute impermissible multiple convictions in violation of double-jeopardy principles.

Court of Appeals Judge Cale Bradford noted the court recently evaluated Ind. Code Section 35-42-4-4(c) in the context of a double jeopardy challenge. See Brown v. State, 912 N.E.2d at 896. In Brown, the court first considered the plain language of the statute because the legislature had defined the crime of possession of child pornography by referencing objects in the singular – a picture, a videotape, for instance – suggesting that its clear intent was to make the possession of each separate picture or video a distinct occurrence of offensive conduct in violation of the law. The court also considered the policies behind the law: preventing the victimization of children and obstructing the growth of the child pornography industry. Because of that, the Brown court ruled that “‘multiple convictions and punishments for possession of child pornography distinguished only by the image so possessed do not violate federal double jeopardy principles.’ Id. at 896.”

But in the instant case, the two digital video files at issue are identical and can be distinguished only by the computers on which they were found, the location of the computers, and the time of their downloads. The state argued those distinctions were adequate to sustain separate convictions, citing the New Hampshire case of State v. Ravell, 922 A.2d 685 (N.H. 2007).

In agreeing with the Ravell court, the appellate panel in the instant case wrote that limiting convictions for “double” possession of duplicate copies of child pornography on different computers or hard drives dilutes the legislature’s purpose of preventing child exploitation and growth of the child pornography industry.

“Were Videos 1 and 6 in the instant case the product of data back-up protocols or procedures, perhaps the broad language of section 35-42-4-4(c) would not apply. See Ravell, 922 A.2d at 688 …” the court wrote. “But here, while two of Pontius’s convictions were based upon possession of a single digital video file, he downloaded that file at two separate times, onto two separate computers and hard drives located at two separate residences, as Videos 1 and 6. Through two different, volitional transactions, Pontius possessed the same child pornography in two separate places, and he therefore committed two separate crimes. See U.S. v. Planck, 493 F.3d 501, 504 (5th Cir. 2007)….”

The court found no federal double-jeopardy violation.

Regarding the claims of double-jeopardy violations of state law, the court noted that given the separate evidence used to prove the existence of two copies of the same, distinct digital video file, it was rejecting the double-jeopardy challenge under the Indiana Constitution.

The court also found no prejudice regarding the claims of ineffective assistance of trial counsel and that the claims do not warrant relief.
 

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  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

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