July 16 2009
DA 07-0639
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 235
STATE OF MONTANA,
Plaintiff and Appellant,
v.
GREGORY HILTON NEUFELD,
Defendant and Appellee.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 06-0053
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Hon. Steve Bullock, Montana Attorney General; Tammy K. Plubell,
Assistant Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney; Ann Marie McKittrick,
Deputy County Attorney, Billings, Montana
For Appellee:
Nancy G. Schwartz, Attorney at Law, Billings, Montana
Submitted on Briefs: October 29, 2008
Decided: July 16, 2009
Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 Gregory Neufeld was charged in the District Court of the Thirteenth Judicial
District, Yellowstone County, with the offense of sexual intercourse without consent.
However, before trial on the sexual intercourse without consent charge in the District
Court, he was indicted and convicted by his plea of guilty of the federal offenses of
sexual exploitation of children in violation of 18 U.S.C. § 2251, and possessing child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), in the United States District
Court for the District of Montana. As a result of his federal convictions, he was
sentenced to 262 months in federal prison. Neufeld then moved to dismiss the Montana
State charge claiming double jeopardy. The District Court granted his motion to dismiss.
The State appeals.
¶2 The issue before this Court is whether § 46-11-504, MCA, bars Neufeld’s
prosecution on the Montana sexual intercourse without consent charge.
¶3 In 2002 or 2003, Neufeld began having sexual intercourse with then 13-year-old
K.B. He was 28 years old at the time. The intercourse occurred intermittently until
Neufeld joined the army in January of 2005. Neufeld videotaped himself having sexual
intercourse with K.B. and he admitted that he would sometimes photograph K.B. in
sexual poses or performing sexual acts.
¶4 Neufeld joined the army. He asked K.B. to retrieve and destroy the sexually
explicit photographs he had left in storage. She destroyed some of the photographs but
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kept others. When her father discovered the photographs she had kept, he contacted the
police.
¶5 On January 19, 2006, the information charging Neufeld with sexual intercourse
without consent was filed in the Montana District Court. That same day he was charged
in federal court with violation of 18 U.S.C. § 2251, sexual exploitation of children, 18
U.S.C. § 2252A(a)(2), receipt of child pornography, and 18 U.S.C. § 2252A(a)(5)(B),
possession of child pornography.
¶6 In November 2006, Neufeld pled guilty to sexual exploitation of children and
possession of child pornography in federal court. He was sentenced considering the
federal sentencing guidelines. These guidelines prescribed a sentence between 121 and
151 months. However, his sentence was enhanced due to specific offense characteristics
because K.B. was 12 but not yet 16 years of age and the offense involved the commission
of a sexual act or sexual contact. The resulting sentencing range was 262-327 months. In
May 2007, Neufeld was sentenced to 262 months in federal prison.
¶7 The Montana information charged Neufeld with sexual intercourse without
consent committed in approximately 2002 or 2003 to 2004, alleging he had sexual
intercourse with K.B. on numerous occasions as a continuing course of conduct.
¶8 After he was convicted in federal court, Neufeld moved to dismiss the Montana
charge based on § 46-11-504(1), MCA, which reads in pertinent part:
When conduct constitutes an offense within the jurisdiction of any state or
federal court, a prosecution in any jurisdiction is a bar to a subsequent
prosecution in this state if:
(1) the first prosecution resulted in an acquittal or in a conviction and the
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subsequent prosecution is based on an offense arising out of the same
transaction;
¶9 The District Court granted Neufeld’s motion to dismiss, concluding that Neufeld’s
sexual conduct with the minor K.B. subjected him to prosecution for equivalent offenses
in both the United States and Montana courts and both prosecutions were based on the
same transaction.
¶10 A district court’s decision to grant or deny a defendant’s motion to dismiss a
charge on the basis of double jeopardy presents a question of law that this Court reviews
for correctness. State v. Cech, 2007 MT 184, ¶ 7,
338 Mont. 330,
167 P.3d 389.
¶11 We use a three-part test to determine whether a subsequent prosecution is barred
under § 46-11-504(1), MCA, as follows:
(1) a defendant’s conduct constitutes an offense within the jurisdiction of
the court where the first prosecution occurred and within the jurisdiction of
the court where the subsequent prosecution is pursued;
(2) the first prosecution resulted in an acquittal or a conviction; and
(3) the subsequent prosecution is based on an offense arising out of the
same transaction [as that term is defined in § 46-1-202(23), MCA].
Cech, ¶ 13 (quoting State v. Tadewaldt, 277 Mont. 261, 264,
922 P.2d 463, 465 (1996)).
¶12 All three factors must be met in order to bar subsequent prosecution. State v.
Gazda,
2003 MT 350, ¶ 12,
318 Mont. 516,
82 P.3d 20.
¶13 In this case, factor one and factor three of the test announced in Tadewalt are at
issue.
¶14 The first factor of the test is satisfied when both jurisdictions have authority to
prosecute for the same conduct. State v. Sword,
229 Mont. 370, 373,
747 P.2d 206, 208
(1987). In order to demonstrate that jurisdiction existed in both courts, the same conduct
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must subject a defendant to the possibility that he could be convicted of an “equivalent
offense” in each jurisdiction. Cech, ¶ 17 (citing Gazda, ¶ 14). It is not necessary that a
defendant be charged with identical offenses in both jurisdictions, only that his conduct
constitute an equivalent offense in both jurisdictions. Cech, ¶ 18.
¶15 18 U.S.C. § 2251 defines Sexual Exploitation of Children:
(a) Any person who employs, uses, persuades, induces, entices, or coerces
any minor to engage in, or who has a minor assist any other person to
engage in, or who transports any minor in or affecting interstate or foreign
commerce, or in any Territory or Possession of the United States, with the
intent that such minor engage in, any sexually explicit conduct for the
purpose of producing any visual depiction of such conduct or for the
purpose of transmitting a live visual depiction of such conduct, shall be
punished as provided under subsection (e), if such person knows or has
reason to know that such visual depiction will be transported or transmitted
using any means or facility of interstate or foreign commerce or in or
affecting interstate or foreign commerce or mailed, if that visual depiction
was produced or transmitted using materials that have been mailed,
shipped, or transported in or affecting interstate or foreign commerce by
any means, including by computer, or if such visual depiction has actually
been transported or transmitted using any means or facility of interstate or
foreign commerce or in or affecting interstate or foreign commerce or
mailed.
¶16 In the Montana District Court, Neufeld was charged with violating § 45-5-503,
MCA, which reads: “(1) A person who knowingly has sexual intercourse without
consent with another person commits the offense of sexual intercourse without consent.”
A person cannot consent to sexual intercourse if they are less than 16 years old. Section
45-5-501, MCA.
¶17 Although Neufeld was not charged with the identical offense in federal court as he
was in state court, Montana sought to punish him for the same conduct he has already
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been punished for in federal court. That is, in federal court Neufeld was convicted
because he persuaded, induced, enticed, or coerced a minor to engage in sexually explicit
conduct. The prohibited conduct in this case necessarily included sexual intercourse with
a minor, as well as creating a visual depiction of that conduct. Further, Neufeld’s federal
punishment was increased because his offense involved the commission of a sexual act or
sexual contact. Montana sought to punish him for sexually explicit conduct which
consisted of the same sexual contact with the same minor. In this instance, while the
elements of the charges actually brought in the United States and Montana courts were
not identical, under the facts of this case the offenses of sexual exploitation of children
and sexual intercourse without consent are equivalent. See Cech, ¶ 18. Factor one of the
test announced in Tadewalt is satisfied.
¶18 For purposes of factor three of the double jeopardy test announced in Tadewalt,
the offenses charged in different jurisdictions must arise out of the same transaction.
“Transaction” is defined in § 46-1-202(23), MCA, as:
[C]onduct consisting of a series of acts or omissions that are motivated by:
(a) a purpose to accomplish a criminal objective and that are necessary or
incidental to the accomplishment of that objective; or (b) a common
purpose or plan that results in the repeated commission of the same offense
or effect upon the same person or the property of the same person.
See Gazda, ¶ 20.
¶19 In this case, the charging documents in both the United States Court and the
Montana District Court reference the same time and the same sexual conduct with the
same victim. And, while the federal prosecution focused on pornography, both the
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federal and the Montana charges included, as a part of the offense, sexual contact with
K.B.
¶20 Neufeld was charged with equivalent offenses in both jurisdictions based upon
engaging in sexual intercourse with the minor child K.B. while videotaping the activity.
The crimes Neufeld was charged with are different, but the same conduct led to the
equivalent charges. Offenses arise from the same transaction when a defendant’s
underlying conduct which gives rise to each prosecution is motivated by a purpose to
accomplish the same criminal objective. Gazda, ¶ 20. In this case, Neufeld’s criminal
objective was to engage in sexual contact with a minor, and in addition he recorded that
activity. His sexual contacts with that minor constitute a crime under both the Montana
statute and the federal statutes.
¶21 The District Court did not err in concluding that the Montana prosecution is barred
under § 46-11-504(1), MCA.
¶22 Affirmed.
/S/ JOHN WARNER
We Concur:
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
Justice Jim Rice, concurring.
¶23 I agree with the Court’s decision to affirm the District Court, but believe the
Court’s analysis is somewhat unclear. The Court states that “the prohibited conduct in
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this case necessarily included sexual intercourse with a minor.” Opinion, ¶ 17. However,
the federal offense of Sexual Exploitation of Children does not “necessarily include”
sexual intercourse. Under 18 U.S.C.A. § 2251, a person can commit that offense merely
by displaying images of the genital or pubic area. The Montana offense of Sexual
Intercourse without Consent requires “penetration of the vulva, anus, or mouth.” Section
45-2-101, MCA. The Court states “the charging documents” reference the same sexual
conduct, Opinion, ¶ 19, yet the federal indicting documents do not allege that Neufeld
committed sexual intercourse or penetration.
¶24 Rather, at his federal sentencing hearing, Neufeld admitted to the court that he had
engaged in a “sexual relationship” with K.B. when she was thirteen years old. The
United States District Court therefore enhanced Neufeld’s sentence because of this
admitted sexual activity with a minor. Thus, it was the enhancement of Neufeld’s
sentence which triggered the double jeopardy protections under § 46-11-504, MCA,
because at that point he was being punished for the same prohibited conduct for which he
was charged in State Court. Therefore, though the federal and Montana offenses where
different as originally charged, Neufeld’s federal sentence incorporated the same
prohibited conduct.
/S/ JIM RICE
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