I must admit I'm surprised.
Defendant gets convicted of two counts at trial: (1) receipt, and (2) possession of child pornography. The Ninth Circuit subsequently holds that you can't be convicted of both. So which conviction stands, and who decides? (This matters a ton since receipt has a five-year mandatory minimum but possession doesn't.)
The first paragraph of Judge O'Scannlain's opinion framed the question as: "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?" When I read that, my initial reaction was: "I would think the prosecutor gets to decide, since they are the ones who brought the charges in the first place, and thus have the discretion to drop one or the other at outset -- a discretion that presumably continues." I also had a sense that Judge O'Scannlain would probably feel the same way.
But after reading the opinion, I learn not only that Judge O'Scannlain comes out the other way, but also that he's right -- and that my initial impression was wrong. Here's a case where (1) there's a rule, and (2) the rule matters.
Federal Rule of Criminal Procedure 48(a) says: “The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent.” Judge O'Scanlain persuades me that, yep, that means the court -- not the prosecutor -- gets to decide which count gets dropped post-conviction, at least when (as here) the defendant won't consent to dropping the possession count given the differential sentencing regimes.
You learn something new every day.
