United States v. Donald Harvey

Filing

OPINION FILED - THE COURT: Raymond W. Gruender, Myron H. Bright and Jane Kelly AUTHORING JUDGE:Myron H. Bright (PUBLISHED); [4389403-2] Denying motion for appointment of counsel filed by Appellant Mr. Donald A. Harvey.; [4387681-2] Denying motion to appeal for writ filed by Appellant Mr. Donald A. Harvey.; [4371226-2] Denying motion for a new trial filed by Appellant Mr. Donald A. Harvey., [4366034-2] Denying motion of plain error - sufficiency filed by Appellant Mr. Donald A. Harvey., [4361085-2] Denying motion of plain error - sentencing filed by Appellant Mr. Donald A. Harvey., [4359434-2] Denying motion for discovery filed by Appellant Mr. Donald A. Harvey., [4328119-2] Denying motion to preserve claim filed by Appellant Mr. Donald A. Harvey., [4315812-2] Denying motion for reduction or correction of sentence filed by Appellant Mr. Donald A. Harvey., CONCUR BY: Raymond W. Gruender [4425436] [15-2677]

United States Court of Appeals
For the Eighth Circuit
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No. 15-2677
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Donald A. Harvey
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: April 15, 2016
Filed: July 13, 2016
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Before GRUENDER, BRIGHT, and KELLY, Circuit Judges.
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BRIGHT, Circuit Judge.
Donald Harvey appeals his convictions and his sentence for receipt of child
pornography and possession of child pornography. Harvey argues the district court
abused its discretion when it denied his motion to withdraw his nolo contendere plea,
that his sentence was substantively unreasonable, and that his two convictions violate
the Double Jeopardy Clause.

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The district court did not abuse its discretion when it denied Harvey’s motion
to withdraw his plea. But Harvey’s two convictions violate the Double Jeopardy
Clause because they arise out of the same act or transaction. We affirm in part,
reverse in part, and remand with instructions for the district court to vacate one of
Harvey’s convictions and resentence Harvey.
I. BACKGROUND
In early 2014, Omaha Police arrested and detained Harvey on a charge
unrelated to this case and seized his Toshiba laptop. From jail, Harvey asked his
friend Rinat Chase to pick up his laptop from the Omaha Police Department and
check the laptop to make sure his personal documents and photos were still on the
laptop. Chase picked up the laptop, but she was unable to log on to the laptop using
the passwords Harvey gave her.
Chase took the laptop to a computer repair store. An employee at the store
advised Chase the laptop would be expensive to repair, but the store could transfer
the information from the laptop’s hard drive to another device. Chase brought her
own external hard drive to the store for the transfer. A few days later, Chase picked
up her external hard drive, looked through its contents, and discovered what she
believed was child pornography.
On May 21, 2014, a judge released Harvey on bond in the unrelated case and
ordered him to report to the Salvation Army Adult Rehabilitation Facility. Chase
picked him up from the jail and the next day drove him to the Salvation Army.
Before she dropped him at the Salvation Army, Chase helped Harvey run some
errands, and she bought him a new cell phone. Harvey was continuously on the cell
phone until Chase dropped him off. Later, Chase brought Harvey’s laptop to him at
the Salvation Army and picked up the cell phone she purchased Harvey. Chase
looked through Harvey’s internet browsing history on the phone and clicked on a
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link, which took her to a website containing videos of prepubescent males and
females engaged in sexual acts.
On July 7, 2014, Chase reported to the Bellevue Police Department that she
discovered child pornography on Harvey’s computer and that Harvey had viewed
child pornography on the cell phone she purchased for him. The next day, Bellevue
Police obtained and executed search warrants for the cell phone and Chase’s external
hard drive, which still contained the files the computer repair store transferred from
Harvey’s laptop. In the search, police found child pornography on the external hard
drive.
Police also went to the Salvation Army to seize Harvey’s laptop, but the laptop
was in pieces and the hard drive was missing. A week later, however, an employee
at the Salvation Army was cleaning a bookshelf in a common area when he found the
Toshiba hard drive from Harvey’s laptop hidden behind some books. The Salvation
Army gave the hard drive to the Omaha Police Department, which in turn gave it to
the Bellevue Police Department.
Bellevue Police obtained a search warrant and searched the hard drive. In the
search, police discovered 36 videos of child pornography with creation dates ranging
from November 2012 through May 2013.
On September 15, 2014, a grand jury charged Harvey in a two-count indictment
with receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2), and
possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). While
the indictment charged that Harvey received the child pornography from November
2012 through May 2013, and that he possessed the child pornography on July 8,
2014, the basis for both counts was the child pornography police found when they
searched the Toshiba hard drive from Harvey’s laptop, as the government explained

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in the factual basis at Harvey’s plea hearing. (District Court Docket No. 46, Tr. of
Plea Hrg., pp. 15-16).
On Friday, April 10, 2015, Harvey pled nolo contendere to both counts. At the
plea hearing, the district court explained Harvey’s rights, including the right to use
the court’s subpoena power to compel the attendance of witnesses or the production
of documents for trial. Harvey indicated he understood his rights, and he voluntarily
waived these rights, admitted the factual basis, and pled nolo contendere to the
charges.
The following Monday, Harvey filed a pro se motion to withdraw his plea.
Harvey moved to withdraw his plea for five reasons: (1) he was innocent; (2) the
government manufactured evidence; (3) he did not know he could use the subpoena
power to compel a witness on his behalf; (4) the government admitted it could alter
the file download dates; and (5) he wanted to examine evidence, cross-examine
witnesses, and use the court’s subpoena power.
The district court held a hearing on Harvey’s motion. At the hearing, the
district court questioned Harvey at length on what new evidence he discovered that
led him to file his motion to withdraw his nolo contendere plea. Following the
hearing, the district court issued an order denying Harvey’s motion to withdraw his
plea.
At sentencing, the district court calculated a guideline range of 135 to 168
months’ imprisonment on Count One, and 120 months’ imprisonment (the statutory
maximum) on Count Two. The district court varied downward and sentenced Harvey
to 74 months’ imprisonment on each count, to run concurrently. Harvey timely
appealed.

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II. ANALYSIS
Harvey argues that the district court abused its discretion when it denied his
motion to withdraw his nolo contendere plea and that his sentence was substantively
unreasonable. Prior to oral argument, this Court also ordered counsel to be prepared
to discuss whether Harvey’s convictions for receipt of child pornography and
possession of child pornography violated the Double Jeopardy Clause, and whether
this issue was properly before the Court on appeal.
A.

Motion to Withdraw Nolo Contendere Plea

Harvey argues the district court erred when it denied his motion to withdraw
his nolo contendere plea. We review the denial of a motion to withdraw a nolo
contendere plea for an abuse of discretion. United States v. Van Doren, 800 F.3d
998, 1001 (8th Cir. 2015).
After the court accepts a plea, the defendant may withdraw his plea if he can
show a “fair and just reason” for the withdrawal. Fed. R. Crim. P. 11(d)(2)(B).
“While the standard is liberal, the defendant has no automatic right to withdraw a
plea.” Van Doren, 800 F.3d at 1001 (quoting United States v. Heid, 651 F.3d 850,
853 (8th Cir. 2011)). “The plea of guilty is a solemn act not to be disregarded
because of belated misgivings about [its] wisdom.” United States v. Alvarado, 615
F.3d 916, 920 (8th Cir. 2010) (quoting United States v. Morrison, 967 F.2d 264, 26768 (8th Cir. 1992)) (alteration in original).
In his pro se motion to withdraw his plea, Harvey asserted his innocence of the
crime, claimed the government manufactured evidence, and indicated he was unaware
he could subpoena a witness on his behalf. The district court held a hearing on
Harvey’s motion. At the hearing, the district court noted that Harvey’s claims of
innocence were based on information he had before he pled nolo contendere, and he
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had not addressed his concerns at the change of plea hearing just days before he filed
his motion to withdraw the plea. The district court also noted that at the change of
plea hearing Harvey indicated that he understood the elements of the crime.
Following the hearing on Harvey’s motion to withdraw his plea, the district court,
without explanation, denied the motion.
This decision was not an abuse of discretion. First, while Harvey asserts his
innocence of the charges, “[a]n assertion of innocence – even a swift change of heart
after the plea – does not constitute a fair and just reason to grant withdrawal.” United
States v. Johnson, 512 Fed. App’x 648, 656 (8th Cir. 2013) (quoting Alvarado, 615
F.3d at 922). Indeed, a district court does not need to consider a defendant’s
assertions of innocence if the defendant does not demonstrate fair and just grounds
to withdraw the plea. United States v. Norvell, 729 F.3d 788, 793 (8th Cir. 2013).
Therefore, Harvey’s claims of innocence alone do not demonstrate a fair and just
reason to allow him to withdraw his plea, particularly when these claims were based
on information available to Harvey before he pled nolo contendere.
Second, the transcript from the change of plea hearing belies Harvey’s claims
that he did not know he could use the court’s subpoena power to compel witnesses
on his behalf. Harvey admitted both in his petition to enter a plea of nolo contendere
and at his change of plea hearing that he understood he could use the court’s
subpoena power. His conclusory assertions that he did not understand this right only
days after he indicated the contrary ring hollow and do not supply a fair and just
reason to withdraw the plea. United States v. Bahena, 223 F.3d 797, 806-07 (8th Cir.
2000).
Finally, the district court properly rejected Harvey’s unsubstantiated,
conclusory claims that the government fabricated evidence. A district court does not
abuse its discretion where it does not allow a defendant to withdraw his plea based
on inherently unreliable allegations unsupported by specific facts. See United States
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v. Haubrich, 744 F.3d 554, 557 n.2 (8th Cir. 2014). Here, Harvey pointed to no
specific facts to support his allegation that the government manufactured evidence by
changing the creation dates of the child pornography on his laptop. The district court
did not abuse its discretion when it denied Harvey’s motion to withdraw his plea on
this basis.
B.

Double Jeopardy Clause

The Double Jeopardy Clause prohibits the imposition of “multiple punishments
for the same criminal offense.” United States v. Hill, 750 F.3d 982, 987 (8th Cir.
2014) (quoting United States v. Bennett, 44 F.3d 1364, 1368 (8th Cir. 1995)). “If ‘the
same act or transaction constitutes a violation of two distinct statutory provisions, the
test to be applied to determine whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other does not.’” United States v.
Muhlenbruch, 634 F.3d 987, 1002-03 (8th Cir. 2011) (quoting Blockburger v. United
States, 284 U.S. 299, 304 (1932)).
In Muhlenbruch, this Court held that a defendant’s convictions for receipt of
child pornography under 18 U.S.C. § 2252(a)(2) and possession of child pornography
under 18 U.S.C. § 2252(a)(4)(B) violate the Double Jeopardy Clause when based on
the same act or transaction because possession under § 2252(a)(4)(B) is a lesserincluded offense of receipt under § 2252(a)(2). 634 F.3d at 1003-04. While Harvey
pled nolo contendere to receipt and possession under two different statutes – receipt
under 18 U.S.C. § 2252A(a)(2) and possession under 18 U.S.C. § 2252(a)(4)(B) –
receipt under § 2252A(a)(2) is likely identical to receipt under § 2252(a)(2), and
therefore Muhlenbruch is instructive. See United States v. Miller, 527 F.3d 54, 64
n.10 (3d Cir. 2008) (“The jurisprudence concerning the receipt and possession
provisions of 18 U.S.C. § 2252 and the comparable provisions of 18 U.S.C. § 2252A
often converges. Section 2252(a)(2) prohibits the receipt of material ‘transported [in
interstate or foreign commerce] by any means including by computer’ that depicts ‘a
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minor engaging in sexually explicit conduct,’ and § 2252(a)(4)(B) prohibits the
possession of such material. These statutory provisions have been characterized as
‘materially identical’ to § 2252A(a)(2) and § 2252A(5)(B), which, respectively,
prohibit the receipt and possession of child pornography.”) (quoting United States v.
Malik, 385 F.3d 758, 760 (7th Cir. 2004)).
At oral argument, the United States conceded1 that both of Harvey’s
convictions are based on the same act or transaction – the child pornography he
downloaded on the Toshiba hard drive from his laptop – and therefore his convictions
violate the Double Jeopardy Clause. Thus, we reverse and remand to the district
court “to exercise its discretion to vacate one of the underlying convictions” and to
resentence Harvey. Ball v. United States, 470 U.S. 856, 864 (1985).2
III. CONCLUSION
We affirm in part, reverse in part, and remand with instructions for the district
court to vacate one of Harvey’s convictions and resentence Harvey. In light of the
remand for resentencing, we do not address whether Harvey’s sentence was
substantively unreasonable.3

1

Our decision rests on the government’s concession. The Court compliments
counsel for both parties on their presentation of the Double Jeopardy Clause issue at
oral argument and thanks counsel for the United States for its candor in conceding
that Harvey’s convictions violated the Double Jeopardy Clause.
2

Whether to reduce Harvey’s sentence in light of the double-jeopardy violation
is a matter, at this time, properly addressed by the district court on remand.
3

Harvey’s numerous pro se motions are denied. To the extent these motions
raise claims and theories Harvey might raise in a post-conviction proceeding, the
denial is without prejudice.
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GRUENDER, Circuit Judge, concurring.
I join the majority in rejecting Harvey’s challenge to the district court’s
decision on his motion to withdraw his plea. In light of the Government’s
concession, I also join the decision to remand this case to the district court with
instructions to vacate one of Harvey’s convictions. However, because the district
court imposed the same sentence on each child-pornography count and determined
that the sentences would run concurrently, I would not disturb Harvey’s 74-month
sentence. Instead, I would instruct the district court only to vacate one count of
conviction and its associated $100 special assessment. See United States v. Grimes,
702 F.3d 460, 469 (8th Cir. 2012) (finding a double jeopardy violation but concluding
that resentencing was unnecessary because the district court had imposed concurrent
sentences for the five vacated convictions and one affirmed conviction).
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