Phillips went to trial and was convicted of a three-count federal indictment charging him with 1) persuading, inducing, and enticing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction, 2) receiving material containing child pornography, and possessing material containing child pornography. He argued in this appeal that the district court constructively amended the indictment which charged him with knowingly and intentionally causing a minor to engage in sexually explicit conduct for the purpose of producing a video. He claimed the trial court committed reversible error to instruct the jury that the government need not prove he knew the boy was a minor. He also argued there was a Double Jeopardy violation of the constitution because that he was sentenced for both a crime and a lesser included crime based on the same set of facts.
The federal appeals court rejected his argument that the district court constructively amended the indictment, but it agreed that he was sentenced for both a crime and a lesser included crime. Here Phillips, who is a 33-year old man went on line pretending to be a 17 or 18 year old girl on a social media website where he met a minor boy.