September 23, 2016
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. Nos.
1:11CR00191-010, -Oil - Sarah Evans Barker, Judge.
Ripple, Rovner, and Sykes, Circuit Judges.
nearly a decade, John Gries and James McCullars were active
participants in a private online chat room frequented by
pedophiles sharing large volumes of child pornography. They
were indicted for conspiracy to distribute child pornography,
conspiracy to sexually exploit a child, and engaging in a
child-exploitation enterprise. Other users of the chat room
cooperated with investigators, pleaded guilty, and received
sentencing consideration. The charges against Gries and
McCullars proceeded to trial; several cooperators testified
convict Gries and McCullars of the enterprise offense, the
government had to prove that they committed three or more
crimes against children "in concert" with three or
more persons. 18 U.S.C. § 2252A(g)(2). The jury found
them guilty on all charges.
sentencing the parties and the judge overlooked an important
point: The conspiracy counts are lesser-included offenses of
the enterprise count. Instead of merging those convictions
and imposing sentence on the greater offense or lesser
offenses alone, the judge imposed concurrent sentences on all
three convictions. That error violates the Double Jeopardy
Clause. Rutledge v. United States, 517 U.S. 292, 307
(1996). We reverse and remand with instructions to vacate the
sentences on either the greater or lesser counts and enter
new judgments accordingly. The remaining issues on appeal are
almost ten years, Gries and McCullars participated in an
online conspiracy of pedophiles who shared large collections
of child pornography and discussed the sexual exploitation of
children. The group used password-protected chat rooms to
privately communicate in real time and facilitate the
exchange of massive personal libraries of child pornography.
Collectively, the libraries contained thousands of files
containing images depicting the violent sexual abuse of
thousands of children. The files were encrypted, but members
of the group shared passwords to give chat-room participants
access to the contents. When a group member had new material
to share, he would message others in the chat room, describe
the contents of the file, and offer it for distribution.
estimated that at its peak the conspiracy included as many as
35 to 40 participants, but the government could identify only
Gries, McCullars, and 11 other coconspirators. Most
cooperated with investigators by handing over and decrypting
their child-pornography collections. Gries also did so, but
McCullars did not. Nine coconspirators pleaded guilty to a
single count of engaging in a child-exploitation enterprise
in violation of § 2252A(g)(2); they are serving prison
terms ranging from 135 to 360 months.
jury indicted Gries and McCullars on three counts: conspiracy
to distribute and receive child pornography, 18 U.S.C. §
2252A(a)(2); conspiracy to sexually exploit a child, 18
U.S.C. § 2251(d)(1)(A); and engaging in a
child-exploitation enterprise, § 2252A(g)(2). Gries was
also charged separately with five additional counts of
receiving child pornography. Three of their coconspirators
agreed to testify for the government in exchange for
favorable sentencing recommendations.
charges against Gries and McCullars were tried to a jury over
the course of a week. To convict them on the enterprise
charge, the government had to prove beyond a reasonable doubt
that each defendant committed at least three predicate crimes
against children "in concert" with three other
people. § 2252A(g)(2). The predicates included the
conspiracies alleged in counts one and two, together with
multiple separate acts of distributing, receiving, and
advertising child pornography.
jury found the defendants guilty on all counts. On the
enterprise count, the jury found that Gries committed 10
predicate offenses, including the conspiracies charged in
counts one and two. The jury found that McCullars committed
17 predicate crimes, including the two conspiracies.
the Sentencing Guidelines, Gries faced an advisory
imprisonment range of 324 to 405 months. The judge imposed a
sentence of 240 months on count one (conspiracy to distribute
child pornography), 360 months on count two (the
child-exploitation conspiracy), 360 months on the enterprise
count, and 240 months on each separate conviction for
receiving child pornography. The terms are concurrent,
yielding an aggregate sentence of 360 months, the midpoint of
the advisory range. The guidelines recommended a life
sentence for McCullars. The judge imposed a ...