Convictions for possession and distribution of child pornography do not violate the Double Jeopardy Clause. McElmurry was convicted of possessing (18 U.S.C. § 2252(a)(4)(B)) and distributing (18 U.S.C. § 2252(a)(2)) child pornography. One of his arguments on appeal was that the Double Jeopardy Clause precludes convictions for both possession and distribution of child pornography. Held: Double Jeopardy Clause not violated. Courts have held that separate convictions and sentencing for receiving and possessing child pornography violate the Double Jeopardy Clause. (See, e.g., United States v. Davenport (9th Cir. 2008) 519 F.3d 940.) The theory of these cases is that, under the Blockburger v. United States (1932) 284 U.S. 299, 304 “same elements” test, receiving child pornography necessarily includes possessing the child pornography. Under the Blockburger test, where the same act constitutes a violation of two distinct statutory provisions, courts will consider whether each provision requires proof of a fact which the other does not. Unlike the offenses for receiving and possessing child pornography, the offenses of distributing and possessing each require proof of a fact that the other does not. Possession is not an element of distribution and a person may arrange for distribution of child pornography without possessing it. A possessor of child pornography may choose not to distribute it. As a result, neither possession nor distribution of child pornography is necessarily a lesser-included offense of the other.

Allowing others to download child pornography via a file-sharing network is sufficient evidence of distribution of child pornography. McElmurry also argued on appeal that his conviction for distributing child pornography should be reversed for insufficient evidence because he did not actively do anything to distribute the images. Held: There is sufficient evidence. The evidence admitted during McElmurry’s trial indicated that he placed child pornography into a shared folder on his computer and allowed other users of the GigaTribe file-sharing network to download the contents of that folder, and that FBI agents posing as a GigaTribe user were able to obtain child pornography by doing so. Although only the FBI agents, and not McElmurry, had to press buttons to transfer the pornographic content, there was sufficient evidence to support a distribution conviction. (United States v. Budziak (9th Cir. 2012) 697 F.3d 1105, 1109 [“[E]vidence is sufficient to support a conviction for distribution under 18 U.S.C. § 2252(a)(2) when it shows that the defendant maintained child pornography in a shared folder, knew that doing so would allow others to download it, and another person actually downloaded it.”].)

Child pornography convictions reversed because the district court did not review evidence of other crimes and acts prior to ruling that the danger of unfair prejudice did not substantially outweigh the probative value of the evidence. During McElmurry’s federal trial, the prosecution sought to admit a 2006 video of a police interview with McElmurry regarding a previous child pornography offense. In the video, McElmurry admitted that he viewed child pornography daily, traded images with people, and was probably addicted to child pornography. He later pled guilty to possessing child pornography in state court and was sentenced to prison. The prosecutor also sought to admit a letter written by McElmurry to a prison inmate. In the letter, he boasted about how federal agents would be unable to find child pornography on his computer because of the encryption he used to secure it. The prosecution argued that these materials were relevant to prove “knowledge” and “lack of mistake.” (Fed. Rules Evid., rule 404(b)(2).) Prior to trial, McElmurry objected to the admission of the interview and letter on multiple grounds, including that the risk of unfair prejudice of both substantially outweighed their probative value. (Fed. Rules Evid., rule 403.) The district court, without personally reviewing the materials, overruled the objection and the evidence was admitted. McElmurry challenged the ruling on appeal. Held: Reversed. When considering whether evidence of an uncharged crime or other act is unduly prejudicial under rule 403, the district court must personally “read every word” of the other acts evidence and cannot instead rely on the prosecution’s offer of proof. (See United States v. Curtin (9th Cir. 2007) 489 F.3d 935; United States v. Waters (9th Cir. 2010) 627 F.3d 345.) Here, the record established that the district court did not review the material prior to the ruling. The error was not harmless.