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District court must vacate convictions, sentences on child porn conspiracy charges

September 20, 2017

A federal judge in Indianapolis must vacate two men’s convictions and sentences on charges of conspiracy to distribute child pornography and to sexually exploit a child after the 7th Circuit Court of Appeals determined those convictions should have been merged with a child-exploitation enterprise conviction.

In United States of America v. John D. Gries and James McCullars, 15-2432 and -2447, John Gries and James McCullars participated for nearly a decade in an online chatroom where collections of child pornography were shared and participants discussed the exploitation of children. Using password-protected chatrooms, participants were able to facilitate the real-time exchange of massive libraries of child porn.

Gries, McCullars and 11 others were identified as chatroom participants, and most, including Gries, cooperated with investigators by giving them their child porn collections. Additionally, nine of the co-conspirators pleaded guilty to one count of engaging in a child exploitation enterprise, while Gries and McCullars, who did not plead, were indicted on three counts: conspiracy to distribute and receive child porn, conspiracy to sexually exploit a child, and engaging in a child-exploitation enterprise. Gries was also charged separately with five counts of receiving child porn.

After three of their co-conspirators agreed to testify for the government, a jury found Gries and McCullars guilty as charged, with Gries found to have committed 10 predicate offenses to prove the enterprise charge, and McCullars found to have committed 17 predicate crimes. The district court judge sentenced Gries to 20 years on the conspiracy to distribute counts, 30 years on the exploitation conspiracy count, 30 years on the enterprise count and 20 years for each conviction of receiving child porn, all to run concurrently. McCullars was sentenced to the same terms on the conspiracy counts and to life on the enterprise count, also running concurrently.

On appeal, Gries and McCullars argued their three separate sentences on the three counts of conviction violated double jeopardy because the conspiracies were predicates for — and thus, lesser-included offenses of — the enterprise charge. They also raised additional arguments, but because the 7th Circuit Court of Appeals found the other arguments to be meritless or not needing to be addressed, it reversed and remanded on the double jeopardy issue alone.

In a Wednesday opinion, Judge Diane Sykes pointed to the case of Rutledge v. United States, 517 U.S. 292, 307 (1996), in which the U.S. Supreme Court held that concurrent sentences for convictions of conspiracy to distribute controlled substances and coterminous continuing criminal enterprise violated double jeopardy protections.

“The Rutledge rule is clear, long-standing, and directly applicable,” Sykes wrote of the instant case. “Because the conspiracies are lesser-included offenses of the enterprise crime, multiple sentences violate the Double Jeopardy Clause. The convictions on count one and two should have been merged with the enterprise conviction prior to the imposition of sentence.”

Thus, the 7th Circuit remanded with instructions to vacate the convictions and sentences on the lesser counts and to enter new judgments accordingly.

The appellate court also found the defendants did not overcome the presumption of reasonable sentences because the district court judge reasonably concluded their risk of recidivism was high and reasonably sentenced them to harsher terms than their co-conspirators.  

 

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