UNITED STATES DISTRICT COURT

______________ DISTRICT OF TEXAS

________________ DIVISION

UNITED STATES OF AMERICA	      	§
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V.						§	CAUSE NO. ________________
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DEFENDANT’S MOTION TO DISMISS COUNT SEVEN OF THE SECOND SUPERSEDING INDICTMENT AND ALTERNATIVE MOTION TO STRIKE MISLEADING SURPLUSAGE FROM THE HEADING OF COUNT SEVEN

TO THE HONORABLE _____________, UNITED STATES DISTRICT JUDGE FOR THE _____________  DISTRICT OF TEXAS:

	NOW COMES  Defendant __________, through his attorney, _________________,  and respectfully requests that the Court dismiss count seven of the second superseding indictment, on the ground that it is multiplicitous of counts one through six.  In the alternative, ___________ requests that the Court require the Government to elect whether to proceed under counts one through six or under count seven.  In the event the Government elects to proceed under count seven,  requests that the Court, pursuant to Rule 7(d) of the Federal Rules of Criminal Procedure, strike the language “Possession of Materials Used in the Production of Child Pornography” from the heading of count seven, on the ground that it constitutes misleading and prejudicial surplusage.  In support of his Motion,  respectfully shows this Court the following facts and circumstances:
Introduction
	 ___________________ is charged by second superseding indictment with six counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and one count of possession of visual depictions of a minor engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B).  
	Section 2252A(a)(5)(B), which forms the basis of counts one through six, prohibits “knowingly possess[ing] any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography1 that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer[.]”  18 U.S.C. § 2252A(a)(5)(B).  
	Section 2252(a)(4)(B), which forms the basis of count seven, prohibits “knowingly possess[ing] 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if--   (i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct;  and (ii) such visual depiction is of such conduct[.]”18 U.S.C. § 2252(a)(4)(B).  
	Because all violations of § 2252(a)(4)(B) necessarily constitute a violation of § 2252A(a)(5)(B), the § 2252(a)(4)(B) charge in count seven is multiplicitous of the  § 2252A(a)(5)(B) charges in the six preceding counts.  Therefore, the Court should dismiss count seven of the second superseding indictment or require the Government to elect on which count/counts to proceed.  
	In addition, because the language “Possession of Materials Used in the Production of Child Pornography” bears no relationship to the § 2252(a)(4)(B) offense, and because it prejudicially suggests that it is a production instead of a possession charge, the Court should strike the language from the heading of count seven.
Legal Argument and Supporting Facts

	“Multiplicity” is the charging of a single offense under more than one count of an indictment. United States v. Soape, 169 F.3d 257, 266 (5th Cir. 1999); United States v. Nguyen, 28 F.3d 477, 482 (5th Cir. 1994).  The chief danger raised by a multiplicitous indictment is the possibility that a defendant will receive more than one sentence for a single offense in violation of double jeopardy.  Soape, 169 F.3d 257, 266. 
	Where a defendant is charged under two separate statutes, the Court should apply the Blockburger v. United States2 test to determine whether the two statutes proscribe the same offense. United States v. Singleton, 16 F.3d 1419, 1422 (5th Cir. 1994).  Blockburger requires the Court to compare the two statutes at issue and ask “whether each provision requires proof of an additional fact that the other does not. Id.  The Blockburger inquiry focuses on the statutory elements of the offense, not on their application to the facts of the specific case before the Court. Id.   Thus the question for this Court is not whether the specific § 2252(a)(4)(B) violation charged in this case also constitutes a violation of § 2252A(a)(5)(B), but whether all violations of the former constitute violations of the latter. See Id. (applying Blockburger test to 18 U.S.C. § 2119 (carjacking offense) and 18 U.S.C. § 924(c) (use of firearm during crime of violence offense).  	All violations of  § 2252(a)(4)(B) necessarily constitute violations of § 2252A(a)(5)(B).  A person violates § 2252(a)(4)(B) by (1) possessing 1 or more items3 which contain a “visual depiction”; (2) the production of the visual depiction “involves the use of a minor engaging in sexually explicit conduct”; (3) the “visual depiction is of such conduct”; and (4) the visual depiction was mailed, shipped, or transported in interstate or foreign commerce or was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce.  	Any violation of those elements would also constitute a violation of § 2252A(a)(5)(B), under the definition of “child pornography” in § 2256(8)(A), which includes visual depictions of “sexually explicit conduct, where—the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct[.]” Where, as here, there is this type of overlap between two statutory provisions, the Government can proceed  under both provisions only where there is a “clear indication” that Congress intended to allow for cumulative punishments for each offense. See Singleton, 16 F.3d 1419, 1425.  There is no clear indication in the legislative history of § 2252(a)(4)(B) that an offender may be subject to cumulative punishments for violations of §§ 2252(a)(4)(B) and 2252A(a)(5)(B).4  Accordingly, count seven of the second superseding indictment should be dismissed as multiplicitous of counts one through six.
	In addition, in the event that the Government elects to proceed only under count seven,  requests that the Court strike the language in the heading of count seven as surplusage.   Rule 7(d), Federal Rules of Criminal Procedure, permits the Court, on the defendant's motion, to strike surplusage from an indictment.  Fed. R. Crim. P. 7(d); United States v. Hughes, 766 F.2d 875, 879 (5th Cir. 1985). This remedy is provided for the defendant's protection, if “for example, the government asserts irrelevant or immaterial facts, particularly those that might prejudice the jury[.]” Hughes, 766 F.2d 875, 879.  In such situations, the defendant may compel the deletion of the surplusage.  Id.  
	The Government’s inclusion of the language “Possession of Materials Used in the Production of Child Pornography” to the heading of count seven—the § 2252(a)(4)(B) count— is surplusage.  As was discussed above, § 2252(a)(4)(B) is a possession of  child pornography offense.  It does not purport to cover either production of child pornography or the possession of materials used in the production of child pornography.  Not only is the language at issue surplusage, but it is misleading and potentially prejudicial to a jury; it suggests that the defendant is involved with the production of child pornography, which is a more severe offense than mere possession. Compare 18 U.S.C. § 2252(a)(4)(B) (possession of child pornography offense carries a 5-year maximum penalty) with 18 U.S.C. § 2251(a) (production of child pornography offense  carries a 20-year maximum penalty).  Accordingly, the language “Possession of Materials Used in the Production of Child Pornography” should be stricken from the heading of count seven of the second superseding indictment.
PRAYER
	WHEREFOR, premises considered, Defendant respectfully requests that this Honorable Court dismiss count seven of the second superseding indictment, on the ground that it is multiplicitous of counts one through six, or require the Government to elect on which count/counts to proceed.  In addition, Defendant respectfully requests that this Honorable Court strike the language “Possession of Materials Used in the Production of Child Pornography” from the heading of count seven of the second superseding indictment.

						Respectfully submitted.

						______________________________
					Attorney for Defendant

CERTIFICATE OF SERVICE

	I certify that I served a copy of the foregoing Defendant's Motion to Set Bond on the United States Attorney for the __________ District of Texas (Attn: Assistant U.S. Attorney ________________), by mailing it to his office at United States Attorney’s Office at _________________________, on _______________, 20________. 			

						______________________________________ 
						
						Attorney for Defendant