Petition for Writ of Certiorari — Elton Vallare, Petitioner v. United States

No. ________________

In the Supreme Court of the United States

ELTON VALLARE, PETITIONER,

V.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MAUREEN SCOTT F RANCO

Federal Public Defender

BRADFORD W. BOGAN

Assistant Federal Public Defender

Western District of Texas

727 E. César E. Chávez Blvd., B-207

San Antonio, Texas 78206-1205

(210) 472-6700

(210) 472-4454 (Fax)

Counsel of Record for Petitioner

i

QUESTION PRESENTED FOR REVIEW

18 U.S.C. § 2252A(a)(5)(B) provides:

Any person who … knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical,

film, videotape, computer disk, or any other material that

contains an image of child pornography that has been

mailed, or shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by

computer, or that was produced using materials that have

been mailed, or shipped or transported in or affecting interstate or foreign commerce by any means, including by computer[.]

(emphasis added). The question presented is: What is the unit of

prosecution under § 2252A(a)(5)(B)?

No. ________________

In the Supreme Court of the United States

ELTON VALLARE, PETITIONER,

V.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT

Petitioner Elton Vallare asks that a writ of certiorari issue to review

the opinion and judgment entered by the United States Court of Appeals

for the Fifth Circuit on April 8, 2021.

PARTIES TO THE PROCEEDING

The caption of this case names all parties to the proceeding in the

court whose judgment is sought to be reviewed.

iii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ...................................... i

PARTIES TO THE PROCEEDING ................................................ ii

TABLE OF AUTHORITIES ........................................................... iv

OPINION BELOW ............................................................................1

JURISDICTION OF THE SUPREME COURT OF THE UNITED

STATES .............................................................................................1

STATUTE INVOLVED.....................................................................1

STATEMENT ....................................................................................2

REASONS FOR GRANTING THE WRIT .......................................5

The Court should grant certiorari to resolve the circuit split

over the unit of prosecution under 18 U.S.C. § 2252A(a)(5)(B),

which makes it a crime to “knowingly possess[ ] … any …

material that contains an image of child pornography[.]”........5

CONCLUSION ............................................................................... 11

APPENDIX

iv

TABLE OF AUTHORITIES

Cases

United States v. Anson,

304 F. App’x 1 (2d Cir. 2008) (summary order) .......................... 6

United States v. Berry,

977 F.2d 915 (5th Cir. 1992) .................................................... 8, 9

United States v. Elliott,

937 F.3d 1310 (10th Cir. 2019) .............................................. 7, 10

United States v. Hinkeldey,

626 F.3d 1010 (8th Cir. 2010) ...................................................... 6

United States v. Planck,

493 F.3d 501 (5th Cir. 2007) .......................................... 4, 6, 7, 10

United States v. Prestenbach,

230 F.3d 780 (5th Cir. 2000) ........................................................ 9

United States v. Reedy,

304 F.3d 358 (5th Cir. 2002) .................................................. 7, 10

United States v. Woerner,

709 F.3d 527 (5th Cir. 2013) .................................................... 7, 8

Statutes

18 U.S.C. § 494 ................................................................................. 9

18 U.S.C. § 922(g) ........................................................................ 8, 9

18 U.S.C. § 2252A ............................................................................ 2

18 U.S.C. § 2252A(a)(2) ................................................................... 2

18 U.S.C. § 2252A(a)(5)(B) .....................................................passim

28 U.S.C. § 1254(1) .......................................................................... 1

v

Rules

Sup. Ct. R. 13.1 ................................................................................ 1

Sup. Ct. R. 13.5 ................................................................................ 1

1

OPINION BELOW

A copy of the unpublished opinion of the court of appeals,

United States v. Vallare, No. 20-50433 (5th Cir. Apr. 8, 2021) (per

curiam), is reproduced at Pet. App. 1a–2a.

JURISDICTION OF THE SUPREME COURT OF THE

UNITED STATES

On March 19, 2020, the Court extended the deadline for filing

a petition for writ of certiorari due after that date to 150 days from

the date of the lower court’s judgment. See also Sup. Ct. R. 13.1,

13.5. On July 19, 2021, the Court rescinded the March 19, 2020

Order, but kept the extension in place for judgments entered in

between the dates of two orders: “[I]n any case in which the relevant lower court judgment… was issued prior to July 19, 2021, the

deadline to file a petition for a writ of certiorari remains extended

to 150 days from the date of that judgment or order.” This petition

is filed within that time, as the opinion and judgment of the United

States Court of Appeals for the Fifth Circuit were entered on April

8, 2021. The Court has jurisdiction to grant certiorari under 28

U.S.C. § 1254(1).

STATUTE INVOLVED

Title 18 U.S.C. § 2252(a)(5)(B) provides:

Any person who … knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical,

2

film, videotape, computer disk, or any other material that

contains an image of child pornography that has been

mailed, or shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by

computer, or that was produced using materials that have

been mailed, or shipped or transported in or affecting interstate or foreign commerce by any means, including by computer[.]

STATEMENT

Elton Vallare was charged in a five-count indictment with child

pornography offenses under 18 U.S.C. § 2252A:

•

Counts One and Two: distributing child pornography on

February 14, 2015, and March 11, 2017, respectively, in violation of § 2252A(a)(2);

•

Count Three: receiving child pornography between September 2014 and March 11, 2017, in violation of § 2252A(a)(2);

and

•

Counts Four and Five: possessing material containing child

pornography

on

June

14,

2017,

in

violation

of

§ 2252A(a)(5)(B) .

Count Four alleged that the material was a laptop computer;

Count Five alleged that the material was an external hard drive.

Vallare went to trial. A jury found him guilty of all five counts.

3

The district court sentenced Vallare to concurrent terms of 20

years’ imprisonment and 10 years’ supervised release on all five

counts, to run concurrently with each other. The court also imposed a special assessment of $500 ($100 per count).

The written judgment differed slightly from the district court’s

oral pronouncement of the sentence. In the judgment, the court

adjudged Vallare guilty of all five counts, but amended the oral

pronouncement of the sentence on Count Three—the receipt

count—due to multiplicity concerns:

The Court is concerned that entering sentences under both

receipt and possession counts raises multiplicity and double jeopardy concerns. Accordingly, the Court now amends

the sentence announced at the hearing.

As amended, the sentence on Count Three was zero years’ imprisonment and zero years’ supervised release. The sentences on the

other four counts remained the same: concurrent terms of 20 years’

imprisonment and 10 years’ supervised release. The $500 special

assessment remained in place.

Vallare appealed. He argued that his convictions on two counts

of possessing material containing child pornography were multiplicitous, because the allowable unit of prosecution under

§ 2252A(a)(5)(B) is the act of possession—not each separate material possessed. Pet. App. 2a Thus, Vallare argued, simultaneous

4

possession of multiple materials containing child pornography is

only one offense under § 2252A(a)(5)(B). Vallare acknowledged

that his argument was foreclosed under Fifth Circuit precedent,

see United States v. Planck, 493 F.3d 501, 505 (5th Cir. 2007), but

raised the issue to preserve it for further review. Pet. App. 2a. The

court of appeals granted the Government’s motion for summary

affirmance. Pet. App. 2a.

5

REASONS FOR GRANTING THE WRIT

The Court should grant certiorari to resolve the circuit

split over the unit of prosecution under 18 U.S.C.

§ 2252A(a)(5)(B), which makes it a crime to “knowingly

possess[ ] … any … material that contains an image of child

pornography[.]”

1. This case presents a circuit split conflict over the unit of

prosecution under 18 U.S.C. § 2252A(a)(5)(B), which makes it a

crime to “knowingly possess … any … material” containing child

pornography. 1 Vallare was convicted and sentenced on two counts

of possession under § 2252A(a)(5)(B) for simultaneously possessing two separate materials: a laptop computer and an external

1 The provision reads in full:

Any person who … knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical,

film, videotape, computer disk, or any other material that

contains an image of child pornography that has been

mailed, or shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by

computer, or that was produced using materials that have

been mailed, or shipped or transported in or affecting interstate or foreign commerce by any means, including by computer[.]

6

hard drive. Vallare argues that was error because the unit of prosecution under the statute is possession, not each separate material

containing pornography. Thus, Vallare argues, his sentences for

both counts are multiplicitous.

Vallare’s argument was foreclosed by Fifth Circuit precedent,

which has interpreted § 2252A(a)(5)(B) to define the unit of prosecution as each separate material that contains child pornography,

even if a person simultaneously possesses more than one such material. United States v. Planck, 493 F.3d 501, 505 (2007). The

Eighth Circuit has found the Fifth Circuit’s interpretation of the

statute persuasive. See United States v. Hinkeldey, 626 F.3d 1010,

1014–15 (8th Cir. 2010); see also United States v. Anson, 304 F.

App’x 1, 4 (2d Cir. 2008) (summary order) (concluding that “the

prohibition of the possession of ‘any book, magazine, periodical,

film, videotape, computer disk, or any other material that contains

an image of child pornography,’ set forth in § 2252A(a)(5)(B), lends

itself to treating each book, magazine, or other material—in this

case a computer hard drive and thirty-nine CD–ROMs—as separate ‘units’ of prosecution”). The Tenth Circuit has rejected the

Fifth Circuit’s interpretation and agreed with Vallare’s reading of

the statute. See United States v. Elliott, 937 F.3d 1310, 1313–16

7

(2019). Vallare asks the Court to grant a writ of certiorari to resolve this circuit conflict.

2. “Multiplicity” is the charging of one offense in more than

one count. United States v. Woerner, 709 F.3d 527, 538 (5th Cir.

2013); United States v. Reedy, 304 F.3d 358, 363 (5th Cir. 2002).

“The rule against multiplicitous prosecutions stems from the Fifth

Amendment's proscription against double jeopardy.” Planck, 493

F.3d at 503. “The rule prevents the Government from charging a

single offense in more than one count of an indictment.” Id. “The

chief danger raised by a multiplicitous indictment is the possibility

that the defendant will receive more than one sentence for a single

offense.” Id. (cleaned up).

The test for multiplicity is “whether separate and distinct prohibited acts, made punishable by law, have been committed.” Id.

(cleaned up). It is a two-step test. Woerner, 709 F.3d at 539. First,

the Court “look[s] to the statute charged to ascertain the ‘allowable

unit of prosecution,’ or the actus reus of the crime.” Id. (quoting

Reedy, 304 F.3d at 365). This is a question of Congressional intent:

“the legislature may castigate a particular act by exposing the actor to several prosecutions and punishments, or it may specify that

the act should only be subject to a single unit of prosecution.” Id.

8

(cleaned up). Second, the Court “reviews the evidence to see how

many distinct criminal acts the defendant committed.” Id.

Here, Counts Four and Five of the indictment both charged

Vallare with possessing “material” containing child pornography,

in violation of 18 U.S.C. § 2252A(a)(5)(B). That statute proscribes

“knowingly possesses[ing] … any book, magazine, periodical, film,

videotape, computer disk, or any other material that contains an

image of child pornography ….” (emphasis added). Court Four alleged that the “material” was an “HP Compaq Presario laptop computer[.]” Count Five alleged that the “material” was a “Toshiba external hard drive[.]” The counts alleged simultaneous possession

of the two devices “[o]n or about June 14, 2017[.]”

Under similarly worded and structured statutes with an actus

reus involving “any” specified item, the unit of prosecution is the

act of possession, regardless of how many separate prohibited

items are possessed simultaneously. For example, 18 U.S.C.

§ 922(g) makes it a crime for certain persons to “possess … any

firearm or ammunition[.]” Thus, under § 922(g), the unit of prosecution is possession, not the firearm or the ammunition. United

States v. Berry, 977 F.2d 915, 919 (5th Cir. 1992). That is, possession of more than one firearm on a single occasion, or simultaneous

possession of firearms and ammunition, is one offense under

9

§ 922(g), regardless of how many firearms or rounds of ammunition the person possesses at that one time. Id.

To take another example, 18 U.S.C. § 494, like § 922(g) and

§ 2252A(a)(5)(B), uses the “possess any” construction: “Whoever …

[knowingly] possesses with intent to utter or publish as true, any

such false, forged, altered, or counterfeit writing ….” In United

States v. Prestenbach, 230 F.3d 780 (5th Cir. 2000), the defendant

was convicted of four counts of violating § 494. Each of the four

counts was based on a separate altered money order, all of which

were in a single lotion bottle. Id. at 781. Looking to Berry and cases

interpreting similarly worded and structured statutes, the Fifth

Circuit held that “[k]eeping four altered money orders in a lotion

bottle is one action, and therefore one crime.” Id. at 784.

Section § 2252A(a)(5)(B) has the same structure—the “possess

any” construction—and therefore should be interpreted the same

way as these other statutes: the act of “possess[ing] … any … material” containing child pornography is a single offense, regardless

of how many separate materials the person possesses at the same

time. And those were the facts here. The indictment charged Vallare with possessing two materials—a laptop computer and an external hard drive, both containing child pornography—on the same

10

date: June 14, 2017. Those were the facts the Government proved

at trial.

The Fifth Circuit has held otherwise. In United States v.

Planck, that court held that the unit of prosecution under

§ 2252A(a)(5)(B) is each separate material that contains child pornography, even if a person simultaneously possesses more than

one such material. 493 F.3d at 505. At the same time, the Fifth

Circuit has recognized that the word “any” has bedeviled courts

when it comes to identifying the unit of prosecution under various

statutes. See Reedy, 304 F.3d at 365 & n.7.

This bedevilment caused by § 2252A(a)(5)(B)’s use of “any” has

led the Tenth Circuit to the opposite conclusion from the Fifth Circuit:

We must determine whether Congress unambiguously defined the unit of prosecution in § 2252A(a)(5)(B) as each individual device on which the defendant stores child pornography. We conclude that it did not. The statute of conviction

contains the ambiguous modifier “any” preceding the enumerated list of storage materials. § 2252A(a)(5)(B). Both

the Supreme Court and this court have determined that

modifier creates sufficient ambiguity as to require lenity

when interpreting numerous other statutes in the face of

multiplicity challenges.

Elliott, 937 F.3d at 1313.

11

The Court should resolve this conflict to bring uniformity to the

enforcement of § 2252A(a)(5)(B) across the country.

CONCLUSION

FOR THESE REASONS, Vallare asks this Honorable Court to

grant a writ of certiorari.

Respectfully submitted.

MAUREEN SCOTT FRANCO

Federal Public Defender

Western District of Texas

727 E. César E. Chávez Blvd., B-207

San Antonio, Texas 78206

Tel.: (210) 472-6700

Fax: (210) 472-4454

s/ Bradford W. Bogan

BRADFORD W. BOGAN

Assistant Federal Public Defender

Attorney for Defendant-Appellant

DATED: September 7, 2021