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United States v. Derringer

United States District Court, E.D. Kentucky, Central Division

September 4, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
RICHARD EUGENE DERRINGER, Defendant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves, Chief Judge United States District Court.

         A jury convicted Defendant Richard Derringer of child pornography offenses under Counts 1, 2 and 4 of a Superseding Indictment. However, Derringer was acquitted of the charge contained in Count 3, which also involved child pornography. [Record No. 63] Thereafter, pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure, Derringer filed a motion for judgment of acquittal with respect to Count 4, [Record No. 72] The motion will be denied for the reasons outlined below.

         Derringer argues that the guilty verdict on Count 4 is inconsistent with the not guilty verdict on Count 3. Count 4 provides:

On or about March 12, 2018, in Boyle County, in the Eastern District of Kentucky,
RICHARD EUGENE DERRINGER and JACQUOLYN S. WALLS-LAND
did knowingly possess a matter containing visual depictions that had been transported in and affecting interstate and foreign commerce, and the production of said visual depictions involved the use of a minor engaging in sexually explicit conduct and the visual depictions were of such conduct, all in violation of 18 U.S.C. § 2252(a)(4)(B).

[Record No. 31] Further, Count 3 alleges:

On or about March 11, 2018, in Boyle County, in the Eastern District of Kentucky,
RICHARD EUGENE DERRINGER
did knowingly attempt to distribute a visual depiction using any means or facility of interstate or foreign commerce, including by computer, and the production of said visual depiction involved the use of a minor engaging in sexually explicit conduct and the visual depiction was of such conduct, all in violation of 18 U.S.C. § 2252(a)(2).

Id.

         Derringer cites United States v. Powell, 469 U.S. 57 (1984), as authority for his motion. In Powell, the Supreme Court held that the acquittal of the defendant on charges of conspiracy to possess cocaine and possession of cocaine did not require vacating the defendant's convictions of using a telephone to facilitate those offenses. Derringer acknowledges both that the present case is “the exact reverse of the situation in United States v. Powell” and that “Powell provides that consistency in the verdict is not necessary.” [Record No. 72-1, at 1 (citing Powell, 469 U.S. at 62)].

         Derringer further asserts that, to grant his present motion, the Court would have to follow Justice Butler's dissenting opinion in Dunn v. United States, 284 U.S. 390, 402 (1932), which provides:

One accused in different counts of an indictment of the same crime, there being no difference in the means alleged to have been employed, may not be adjudged guilty on a verdict of conviction on one count and of acquittal on the other. Speiller v. United States (C. C. A.) 31 F. (2d) 682, 684; State v. Akers, 278 Mo. 368, 370, 213 S. W. 424; State v. Headrick, 179 Mo. 300, 307, 78 S. W. ...

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