7th Circuit gives new remand instructions on petition for rehearing

December 8, 2017

After withdrawing a September opinion to correct an error in remand instructions, a panel of the 7th Circuit Court of Appeals has once again ordered a district court judge to partially vacate two men’s child pornography convictions in order to correct a double jeopardy violation.

In its original opinion in the case of United States of America v. John D. Gries and James McCullars, 15-2432, -2447, the 7th Circuit ordered Southern District Court Judge Sarah Evans Barker to vacate John Gries and James McCullars’ convictions of two conspiracy charges: conspiracy to distribute and receive child porn, and to sexually exploit a child. That order came after the appellate panel determined those charges were lesser-included offense of the men’s third convictions for engaging in a child-exploitation enterprise.

Thus, under Rutledge V. United States, 517 U.S. 292, 307 (1996), concurrent sentences for the conspiracy and enterprise convictions violated double jeopardy protections, and the lesser-included offenses should have been merged with the enterprise convictions prior to sentencing, Judge Diane Sykes wrote in September. Thus, the original opinion remanded the case with instructions to vacate the conspiracy convictions and related sentences – an aggregate of 30 years for each man – and to enter new judgments accordingly.

However, the circuit panel withdraw that opinion Thursday on a petition for panel rehearing, citing an issue in the remand instructions. Instead, the court issued a new opinion that remanded the case with instructions for Barker to vacate either the enterprise conviction or the conspiracy convictions.

The petition for rehearing, which also included a petition for rehearing en banc, was denied in all other respects. Thus, the court’s original judgment upholding the sufficiency of the evidence against Gries and McCullars and their sentences – an aggregate of 30 years total for the former, and of life for the latter – was unchanged.


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