In U.S. v. Bailey, defendant appealed his convictions for sexual exploitation of a child and possession of child pornography in violation of 18 U.S.C § 2251(a) and 18 U.S.C § 2252A(a)(5)(B) respectively. He argued that the indictment was insufficiently clear and that there was insufficient evidence to support his conviction on one of the counts.
After a bench trial, the district court made findings of fact that defendant video recorded the child victim after living her note instructing where and when to masturbate. He was seen in one recording giving the victim money in order to induce her to masturbate. He is also heard in the recording, telling her that she had better hurry up and masturbate.
First he challenges the sufficiency of the indictment. Bailey concedes that his challenge is made for the first time on appeal, and therefore the court of appeals review is limited. His challenge has two parts. First is count one through four. He argues that the language of each of said counts is identical with the exception of the time frame during which the alleged crime occurred. Because there was overlap in those time periods, he argues that he had insufficient factual information to tell which count charged the crime depicted in Government exhibits, he argues that he had insufficient notice to prepare his defense and also that he would be unable to invoke the protections of double jeopardy in the event of a future prosecution. The court of appeals rejected his arguments because it can prevail only if he could show he suffered actual prejudice as a result of the indictment and he cannot do this. He knew precisely which of the four video images were charged in each count. The images on each of the four Government exhibits were distinctive, and readily distinctive from the others and he will have no trouble obtaining double jeopardy protection in the event of any future prosecution.