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U.S. v. HECTOR

No. 08-30271.

577 F.3d 1099 (2009)

UNITED STATES of America, Plaintiff-Appellee, v. Ricky Lee HECTOR, Defendant-Appellant.

United States Court of Appeals, Ninth Circuit.

Filed August 18, 2009.

Attorney(s) appearing for the Case

John Rhodes, Assistant Federal Defender, Federal Defenders of Montana, Missoula, MT, argued the cause for Defendant-Appellant and filed briefs. Anthony R. Gallagher, Federal Defender, Federal Defenders of Montana, Missoula, MT, was also on the briefs.

Cyndee L. Peterson, Assistant United States Attorney, Missoula, MT, argued the cause for the United States and submitted a brief. William W. Mercer, United States Attorney, Missoula, MT, was on the brief.

Before ALFRED T. GOODWIN, DIARMUID F. O'SCANNLAIN and RAYMOND C. FISHER, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

As between the prosecutor and the trial judge, who determines which conviction to vacate when a defendant has been convicted of multiplicitous offenses in violation of the Double Jeopardy Clause?

I

Ricky Hector possessed child pornography through a peer-to-peer network which allowed for file-sharing. He pled guilty to both receipt (Count I) and possession (Count II) of child pornography. See 18 U.S.C. §§...

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