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.
They began messaging each other online through Kik, a social media site, with Phillips posing as a female named Katie. Katie’s profile included a picture of a young female. The messaging from Katie turned sexually explicit in nature and Phillips began sending sexually explicit images of female. He then asked the minor to send sexually explicit videos of himself. The minor’s family soon found out what he was doing with his cell phone and notified the police. A subpoena was sent to Kik and it led to the address for Phillips. Another subpoena for his phone revealed that the “Katie” account had Kik was on his phone along with a contact for the boy and records that the boy and Katie had chatted.
Phillips went to trial raising the defense that he was role playing posing as Katie. He claimed that he did not know he was chatting with a minor. Before the case went to the jury, a charge conference was held. Phillips argued that because the indictment only charged him with knowingly and intentionally persuading a minor to engage in sexually explicit conduct for the purpose of making visual depictions, the jury instruction needed to affirm that he was only guilty if he knew the victim was a minor.
The appellate court disagreed because knowledge of a victim’s age is not an element of the offense for which he was charged under 18 U.S.C. §2251, so the government need not prove that Phillips knew his victim’s age for a conviction. An extra term in an indictment ordinarily does not become part of the charged crime.
The appellate court agree with his Double Jeopardy argument that his conviction for possessing child pornography is a lesser-included offense of receiving it. The Double Jeopardy Clause guarantees that the federal government cannot punish someone more than once for the same offense, and the lesser included offense was the same offense. The conviction was remanded for resentencing,