Petition for Writ of Certiorari — Jason Lee Sarabia, Petitioner v. United States
Supreme Court briefJan 3, 2022
Ask Donna
What actually matters in this document.
Text
No. _______________________
In the Supreme Court of the United States
JASON LEE SARABIA, PETITIONER,
V.
UNITED STATES OF AMERICA
PETITION FOR WRIT OF CERTIORARI
TO THE
UNITED STATES COURT OF APPEALS OF THE FIFTH CIRCUIT
MAUREEN SCOTT F RANCO
Federal Public Defender
KRISTIN M. KIMMELMAN
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
QUESTION PRESENTED FOR REVIEW
Petitioner Jason Lee Sarabia possessed two cell phones containing child pornography images that the Government believed
he had received over a period of weeks before the phones were
seized. For each phone, Sarabia was charged with receipt of child
pornography and possession of the phone that contained child pornography. See 18 U.S.C. § 2252A(a)(2), (5)(B). The Government
used receipt and possession of the same images to prove both
counts per phone. The jury convicted Sarabia of all four counts.
On appeal, the Government did not dispute that possession is
the lesser-included-offense of receipt for the same image. Instead,
the Government argued, and the Fifth Circuit agreed, that the convictions were not multiplicitous because the jury could have convicted Sarabia based on receipt of different images for each count—
even though the Government did not argue at trial, nor was the
jury instructed, that distinct evidence supported each count.
The question presented is:
Do convictions of greater and lesser-included offenses violate
the Double Jeopardy Clause when the prosecution uses the
same evidence to obtain both convictions, as most circuits
have held, or must the defendant show that the jury could
not have based each conviction on different evidence, as the
Fifth Circuit has held?
No. _______________________
In the Supreme Court of the United States
JASON LEE SARABIA, Petitioner,
V.
UNITED STATES OF AMERICA
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS OF THE
FIFTH CIRCUIT
Petitioner, Jason Lee Sarabia 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 August 25, 2021.
PARTIES TO THE PROCEEDING
The caption names all parties to the proceeding in the court whose
judgment is sought to be reviewed.
RELATED PROCEEDINGS
All proceedings directly related to the case are:
• United States v. Sarabia, No. 5:18-CR-441-1 (W.D. Tex. June
29, 2020) (amended judgment)
iii
• United States v. Sarabia, No. 20-50438 (5th Cir. Aug. 25 &
Oct. 5, 2021) (unpublished opinion and order denying petition for panel rehearing)
iv
TABLE OF CONTENTS
QUESTION PRESENTED FOR REVIEW ..................................... ii
PARTIES TO THE PROCEEDING ............................................... iii
RELATED PROCEEDINGS........................................................... iii
TABLE OF AUTHORITIES ........................................................... vi
DECISIONS BELOW .......................................................................1
JURISDICTION OF THE SUPREME COURT OF THE
UNITED STATES .............................................................................1
CONSTITUTIONAL PROVISION INVOLVED .............................1
STATUTORY PROVISION INVOLVED .........................................2
STATEMENT ....................................................................................2
REASONS FOR GRANTING THE WRIT .......................................5
I.
The decision below conflicts with this Court’s double
jeopardy jurisprudence.........................................................5
II. The Fifth Circuit’s framework conflicts with other
circuits’ decisions finding receipt and possession
convictions multiplicitous when based on numerous
images. ............................................................................... 11
III. Sarabia’s case is an ideal vehicle to address this
important recurring issue. ................................................ 16
CONCLUSION ............................................................................... 19
APPENDIX A
United States v. Sarabia,
No. 20-50438, unpub. op.
(5th Cir. Aug. 25, 2021) (per curiam)
v
APPENDIX B
Denial of Petition for Panel Rehearing,
United States v. Sarabia,
No. 20-50438
(5th Cir. Oct. 5, 2021)
APPENDIX C
Indictment,
United States v. Sarabia,
No. 5:18-cr-00441-RCL
(W.D. Tex. June 20, 2018)
APPENDIX D
18 U.S.C. § 2252A
vi
TABLE OF AUTHORITIES
Cases
Abney v. United States,
431 U.S. 651 (1977) .............................................................. 10, 13
Ball v. United States,
470 U.S. 856 (1985) .................................................................. 6, 9
Blockburger v. United States,
284 U.S. 229 (1932) ...................................................................... 5
Brown v. Ohio,
432 U.S. 161 (1977) .................................................................. 5, 8
Ex parte Nielson,
131 U.S. 176 (1889) .............................................................. 7, 8, 9
State v. Nutt,
28 Vt. 598 (1856) .......................................................................... 7
United States v. Almonte,
638 F. App’x 71 (2d Cir. 2016) (per curiam) ............................. 14
United States v. Benoit,
713 F.3d 1 (10th Cir. 2013) ........................................ 6, 11, 12, 16
United States v. Davenport,
519 F.3d 940 (9th Cir. 2009) ............................................ 6, 11, 16
United States v. Debrow,
346 U.S. 374 (1953) .................................................................... 10
United States v. Dortch,
5 F.3d 1056 (7th Cir. 1993) ................................................. 15, 17
United States v. Ehle,
640 F.3d 689 (6th Cir. 2011) ............................................ 6, 11, 16
vii
United States v. Elliott,
937 F.3d 1310 (10th Cir. 2019),
cert. denied, 140 S. Ct. 1549 (2020) ............................................. 9
United States v. Ellis,
622 F.3d 784 (7th Cir. 2010) ...................................................... 15
United States v. Fall,
955 F.3d 363 (4th Cir. 2020) ................................................ 14, 17
United States v. Halliday,
672 F.3d 462 (7th Cir. 2012) ...................................................... 12
United States v. Hinkeldey,
626 F.3d 1010 (8th Cir. 2010) ...................................................... 9
United States v. Hope,
545 F.3d 293 (5th Cir. 2008) ...................................................... 14
United States v. Irving,
554 F.3d 64 (2d Cir. 2009) ......................................................... 14
United States v. Luera,
770 F. App’x 708 (5th Cir. 2019) (per curiam) .......................... 16
United States v. Miller,
527 F.3d 54 (3d Cir. 2008) ............................................... 6, 11, 16
United States v. Muhlenbruch,
634 F.3d 987 (8th Cir. 2011) ............................................ 6, 11, 16
United States v. Rabhan,
628 F.3d 200 (5th Cir. 2010) ...................................................... 13
United States v. Ragins,
840 F.2d 1184 (4th Cir. 1988) .................................................... 13
United States v. Register,
931 F.2d 308 (5th Cir. 1991) ...................................................... 14
United States v. Schales,
546 F.3d 965 (9th Cir. 2008) ............................................ 6, 12, 17
viii
United States v. Schnittker,
807 F.3d 77 (4th Cir. 2015) .................................................. 15, 18
United States v. Sturm,
673 F.3d 1274 (10th Cir. 2012) .................................................. 12
United States v. Winstead,
717 F. App’x 369 (5th Cir. 2017) (per curiam) ................ 5, 14, 16
United States v. Woerner,
709 F.3d 527 (5th Cir. 2013) ........................................................ 9
Whalen v. United States,
445 U.S. 684 (1980) ...................................................................... 6
Statutes
18 U.S.C. § 2252(a)(2) ...................................................................... 6
18 U.S.C. § 2252(a)(4)(B) ................................................................. 6
18 U.S.C. § 2252A ............................................................................ 2
18 U.S.C. § 2252A(a)(2) ............................................................... 2, 6
18 U.S.C. § 2252A(a)(5)(B) ...................................................... 2, 6, 9
18 U.S.C. § 3231 ............................................................................... 2
28 U.S.C. § 1254(1) .......................................................................... 1
Rules
Sup. Ct. R. 13.3 ................................................................................ 1
1
DECISIONS BELOW
A copy of the unpublished opinion of the court of appeals,
United States v. Sarabia, No. 20-50438 (5th Cir. Aug. 25, 2021)
(per curiam), is attached to this petition as Appendix A.
A copy of the order denying the petition for panel rehearing,
United States v. Sarabia, No. 20-50438 (5th Cir. Oct. 5, 2021), is
attached to this petition as Appendix B.
JURISDICTION OF THE SUPREME COURT OF THE
UNITED STATES
The opinion and judgment of the United States Court of Appeals for the Fifth Circuit were entered on August 25, 2021. Sarabia timely filed a petition for panel rehearing, which the Fifth Circuit denied on October 5, 2021. Pet. App. B. This petition is filed
within 90 days after the denial of rehearing. See Sup. Ct. R. 13.3;
The Court has jurisdiction to grant certiorari under 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
The Fifth Amendment to the U.S. Constitution provides, in
pertinent part: “No person shall … be subject for the same offence
to be twice put in jeopardy of life or limb ….”
2
STATUTORY PROVISION INVOLVED
The text of 18 U.S.C. § 2252A is reproduced in Appendix D.
STATEMENT
The Government charged Sarabia with four counts related to
child pornography found on two phones: receipt of child pornography on a ZTE phone during one month and later possession of that
ZTE phone with child pornography on it, and receipt of child pornography on a Samsung phone over two months and later possession of that Samsung phone with child pornography on it. 1 Pet.
App. C; see 18 U.S.C. § 2252A(a)(2), (5)(B). The case agent told the
grand jury that the possession and receipt counts for each phone
were based on the images found on those phones. C.A. ROA 3269–
70. The district court exercised jurisdiction under 18 U.S.C. § 3231.
Sarabia, representing himself, moved to dismiss multiplicitous
counts. C.A. ROA.292–300. He argued the two counts of receipt
and possession per phone were multiplicitous, because once an
item of child pornography is received, a device containing that item
is necessarily possessed. Thus, possession is the lesser-included offense of receipt. The district court agreed there was potentially a
multiplicity problem, but the court denied Sarabia’s pretrial
1 The Government also charged Sarabia with distribution but dis-
missed that count after the jury hung.
3
motion to dismiss and allowed the Government the opportunity to
prove each count was based on different acts or transactions. C.A.
ROA 610.
The Government did not try to prove each count based on different acts or transactions. Instead, it relied on the images found
on each phone as proof of the possession of a device containing
child pornography on or about the date law enforcement seized the
phones, and as proof of receipt of items of child pornography over
a period of weeks before the phones were seized. 2 Sarabia asked
for special jury instructions to ensure that each count was based
on different evidence, but the district court denied that request.
C.A. ROA 2073, 2078. In closing, the Government relied on the
same images found on the phones for the possession and receipt
offenses. C.A. ROA 2090–91, 2094–97. The Government highlighted the forensic expert’s testimony that the images on the
phones were received during the dates alleged for the receipt
counts. C.A. ROA 2099. And the Government emphasized that the
jury needed only to find that Sarabia “knowingly received an item
2 Specifically, the Government argued the same 77 images of child
pornography found on the ZTE were possessed on or about November
30, 2017, and received on or about August 31, 2017, to September 2017.
The Government argued the same 1,008 images of child pornography
found on the Samsung were possessed on or about November 30, 2017,
and received on or about February 23, 2017, to April 22, 2017.
4
of child pornography. One. An item. On or about those dates.”
ROA.2091.
At sentencing, Sarabia again objected to multiplicitous convictions and sentences. C.A. ROA 2259. The district court recognized
“there’s a multiplicity problem,” but believed the problem could be
avoided by imposing no imprisonment or supervised release on the
possession convictions. C.A. ROA 2199, 2256. The court imposed a
$100 special assessment on each conviction, for a total of $400, in
addition to the aggregate sentence of 285 months’ imprisonment
on the receipt counts. C.A. ROA 1042, 1046.
On appeal, Sarabia argued the receipt and possession convictions per phone violated his right against double jeopardy because
the possession offenses were lesser-included of the receipt offenses.
Sarabia showed that the Government used the same evidence to
prosecute both counts per phone and that the evidence would sustain convictions of both counts per phone. The Government did not
dispute it used the images found on the phone to convict Sarabia
of both counts per phone. Instead, it argued that Sarabia had the
burden to prove that the jury convicted him based on the same receipts. C.A. Gov’t Br. 34, 37. The Government claimed no multiplicity problem existed because the jury could have convicted Sarabia of each count based on images received through different
5
transactions—even though the Government did not ask the jury to
base each conviction on separate evidence. Id. at 36.
Despite Sarabia’s insistence that the Government cannot avoid
double jeopardy concerns by drafting a broad indictment and failing to ask for each conviction to be based on distinct acts, the court
of appeals agreed with the Government. The court of appeals reframed the question as “whether the jury could reasonably conclude that Sarabia received and possessed different depictions of
child pornography at different times.” Pet. App. A10 (citing United
States v. Winstead, 717 F. App’x 369, 371 (5th Cir. 2017) (per curiam)). The court reasoned that the Government presented evidence that a large enough number of images were received and
possessed over the relevant periods of time that the convictions are
not multiplicitous. Pet. App. A11.
REASONS FOR GRANTING THE WRIT
I. The decision below conflicts with this Court’s double
jeopardy jurisprudence.
1. The Double Jeopardy Clause “protects against multiple
punishments for the same offense.” Brown v. Ohio, 432 U.S. 161,
165 (1977) (cleaned up). In Blockburger v. United States, the Court
established that “where 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
6
each provision requires proof of an additional fact which the other
does not[.]” 284 U.S. 299, 304 (1932). This rule of statutory construction helps discern whether Congress intended multiple punishments. Whalen v. United States, 445 U.S. 684, 692 (1980).
This case involves a simultaneous prosecution of two statutory
offenses for the same act—receipt of child pornography that necessarily meant possession of a material containing child pornography. See 18 U.S.C. §§ 2252A(a)(2), (a)(5)(B). All courts of appeals
to have considered the issue have held that, when the offenses involve the same child pornography, receiving child pornography is
the “same offense” as possessing a material containing it. 3 This
conclusion accords with Ball v. United States, where this Court decided “proof of illegal receipt of a firearm necessarily includes proof
of illegal possession of that weapon” because, when “received, a
3 See, e.g., United States v. Miller, 527 F.3d 54, 72 (3d Cir. 2008)
(addressing § 2252A(a)(2)(A) and (a)(5)(B)); United States v. Ehle, 640
F.3d 689, 695–96 (6th Cir. 2011) (same); United States v. Davenport, 519
F.3d 940, 947–48 (9th Cir. 2009) (same); United States v. Bobb, 577 F.3d
1366, 1374–75 (11th Cir. 2009) (same). Cf. United States v. Muhlenbruch, 634 F.3d 987, 1003 (8th Cir. 2011) (addressing materially similar
18 U.S.C. § 2252(a)(2) and (a)(4)(B) and finding possession is lesser-included of receipt); United States v. Schales, 546 F.3d 965 (9th Cir. 2008)
(same); United States v. Benoit, 713 F.3d 1, 16 (10th Cir. 2013) (same).
Neither the Fifth Circuit nor the Government challenged the premise that receipt and possession convictions would be multiplictous if
based on the same child pornography. See Pet. App. A10–A13; C.A. Gov’t
Br. 38.
7
firearm is necessarily possessed.” 470 U.S. 856, 865 (1985) (cleaned
up).
2. The Fifth Circuit parted ways with the Court and most circuits by holding that, given the many images, double jeopardy was
not implicated because the jury could have convicted Sarabia of
receipt based on a different subset of images than those supporting
the possession conviction.
This after-the-fact parsing of evidence conflicts with centuryold precedent that, when “a person has been tried and convicted
for a crime which has various incidents included in it, he cannot be
a second time tried for one of those incidents without being twice
put in jeopardy for the same offense.” Ex parte Nielson, 131 U.S.
176, 188 (1889).
In Nielson, the Court explained that, when a person is convicted of a greater offense occurring over a period of time, that offense “‘must, in a certain sense, be considered a merger of all the
distinct acts’” culminating in that greater offense, and the greater
conviction prohibits being punished for a single act during that
same time period. 131 U.S. at 190 (quoting and analyzing State v.
8
Nutt, 28 Vt. 598 (1856)). 4 Applying this principle, the Court held
convictions for unlawful cohabitation over a course of years and
the lesser-included offense of adultery with the same woman during that period violated double jeopardy. 131 U.S. at 178, 188. Similarly, the Court held convictions for the lesser-included offense
joyriding and greater offense auto theft violated double jeopardy
even though prosecutors specified different dates for each charge,
focusing on different parts of the nine-day joyride. Brown, 432 U.S.
at 168. “The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial
units.” Id. at 169.
Sarabia’s receipt and possession convictions conflict with Nielson’s principle, that a greater conviction cannot be parsed into subsequent convictions, in two ways. First, the Government prosecuted Sarabia broadly by alleging he received child pornography
over the course of weeks on each phone. Pet. App. A11. Those broad
time periods included multiple receipt transactions and, consequently, the possession of a phone containing those images.
4 “[W]here a person was convicted of being a common seller of liquor,
it was held that he could not afterwards be prosecuted for a single act of
selling within the same period.” Nielsen, 131 U.S. at 190 (discussing
Nutt).
9
Having drafted the counts broadly, the Government could not then
obtain a conviction for individual receipts (or possessions) included
within those broad counts without placing Sarabia twice in jeopardy. See Nielson, 131 U.S. at 190.
Second, the Government broadly prosecuted Sarabia by alleging, in the possession counts, that he possessed a material—each
phone—that contained an image of child pornography. See §
2252A(a)(5)(B). The unit of prosecution for § 2252A(a)(5)(B) is the
material (phone), not each image. United States v. Elliott, 937 F.3d
1310, 1316 (10th Cir. 2019), cert. denied, 140 S. Ct. 1549 (2020);
United States v. Woerner, 709 F.3d 527, 540 (5th Cir. 2013); United
States v. Hinkeldey, 626 F.3d 1010, 1013–14 (8th Cir. 2010). The
possession offense cannot be parsed per image, but it does have
“various incidents included in it,” Nielsen, 131 U.S. at 188—individual receipts of images. Sarabia cannot be convicted of those individual receipts “without being twice put in jeopardy for the same
offense,” id.—because once he received child pornography on his
phone, he necessarily possessed that phone with child pornography. Cf. Ball, 470 U.S. at 865.
3. The Fifth Circuit found no double jeopardy violation because it asked the wrong question. It framed the inquiry as
whether the jury could have relied on receipt of some images for
10
the receipt convictions and possession of other images—and not
possession of the phones, as indicted—for the possession convictions. But the Court looks to the indictment and jury instructions
to assess double jeopardy claims, not to what evidence the jury
could have used to render verdicts on hypothetical narrower
charges. Abney v. United States, 431 U.S. 651, 664–65 (1977) (relying on jury instructions to find no double jeopardy violation);
United States v. Debrow, 346 U.S. 374 (1953) (requiring indictment
to sufficiently define the offense to protect against double jeopardy).
The Fifth Circuit also ignored that the Government never
asked the jury to convict on separate evidence, nor was the jury
instructed to do so. Sarabia’s jury instructions tracked the indictment, which charged receipt of child pornography on each phone
over several weeks, and the later possession of the phones with
child pornography on them. Pet. App. C; C.A. ROA 566–68. The
instructions also defined “receive” as meaning “to knowingly accept or take possession of something.” C.A. ROA 567. The jury was
not instructed, contrary to Sarabia’s request, that any conviction
be based on separate evidence. In its closing, the Government did
not parse evidence between the receipt and possession counts. Instead, it specifically directed the jury to the exhibits of images that
11
were on the phones as evidence of both the receipt and possession
counts per phone. C.A. ROA 2090–91, 2094–97, 2099. Nothing that
occurred at trial supported the court of appeals carving out convictions based on distinct evidence to avoid double jeopardy concerns.
Such a carve-out ignores the reality of how the indictment was
drafted, how the case was prosecuted, and how the jury was instructed.
II. The Fifth Circuit’s framework conflicts with other
circuits’ decisions finding receipt and possession
convictions multiplicitous when based on numerous
images.
The Fifth Circuit’s rejection of Sarabia’s double jeopardy right,
based on the number of images involved, conflicts with the Third,
Sixth, Eighth, Ninth, and Tenth Circuits, which have found convictions multiplicitous even when more than one image was involved per count. See, e.g., United States v. Miller, 527 F.3d 54, 58–
59, 72 (3d Cir. 2008) (convictions based on same 11 images found
on a zip disk); United States v. Ehle, 640 F.3d 689, 695–96 (6th Cir.
2011) (convictions based on same, numerous images, and receipt
occurred over yearlong period); United States v. Muhlenbruch, 634
F.3d 987, 1003–04 (8th Cir. 2011) (convictions based on “same facts
and images”); United States v. Davenport, 519 F.3d 940, 942, 947–
48 (9th Cir. 2008) (convictions based on hundreds of images and
12
videos); United States v. Benoit, 713 F.3d 1, 16–17 (10th Cir. 2013)
(convictions based on the same “hundreds of images” and “over 70some videos of child pornography” received and possessed during
19 months).
These decisions reflect a burden-shifting framework for addressing post-trial double jeopardy claims that did not occur in
Sarabia’s case. When the indictment and jury instructions show
that the same evidence was used to obtain convictions for the
greater and lesser-included offenses, the multiplicitous conviction
is vacated unless the Government shows it relied exclusively on
distinct evidence for each count. See, e.g., Benoit, 713 F.3d at 17–
18 (examining indictment, closing argument, and jury instructions
to find counts multiplicitous, noting “the jury was never alerted to
the fine distinction now made with respect to … the distinct
charges”); United States v. Schales, 546 F.3d 965, 980 (9th Cir.
2008) (examining indictment, jury instructions, and jury verdict to
find it cannot conclude Schales was convicted for separate conduct).
When it is clear the Government used different evidence to support each count despite a broad indictment, some courts have
found receipt and possession convictions were not multiplicitous.
See, e.g., United States v. Halliday, 672 F.3d 462, 471 (7th Cir.
13
2012) (prosecutor clearly and consistently delineated different
child pornography to form the bases for the receipt and possession
counts); United States v. Sturm, 673 F.3d 1274, 1288 (10th Cir.
2012) (“jury was specifically instructed as to which images were
associated with which count”); Bobb, 577 F.3d at 1375 (evidence
showed that he received zip files on a particular date and possessed
other images months later).
This accords with the framework used by every circuit, including the Fifth Circuit, to address interlocutory appeals of pretrial
motions to dismiss arguing the current prosecution violates double
jeopardy due to a prior one. United States v. Ragins, 840 F.2d 1184,
1192 (4th Cir. 1988) (collecting cases). Under that burden-shifting
framework, circuits require the defendant to carry “the initial burden of establishing a prima facie nonfrivolous double jeopardy
claim[.]” United States v. Rabhan, 628 F.3d 200, 204 (5th Cir.
2010). Once that burden is met, typically by focusing on the indictment language, the burden of persuasion shifts to the Government.
Id. “This shift is appropriate because the government controls the
particularity of an indictment” and chooses the evidence it presents to prove the charged offenses. Id. To place the burden solely
on the defendant, given these practical difficulties, would render
the Double Jeopardy Clause’s “right of immunity from prosecution
14
… relatively meaningless[.]” Ragins, 840 F.2d at 1192 (citing Abney, 431 U.S. at 661).
In addressing Sarabia’s post-trial double jeopardy claim for a
multiplicitous indictment, the Fifth Circuit employed a different
test that places the entire burden of proving multiplicity on the
defendant. 5 See Pet. App. A11. The Fifth Circuit’s test requires the
defendant to show that the jury could not have based each verdict
on distinct evidence. Pet. App. A10; Winstead, 717 F. App’x at 371.
The Fifth Circuit is not completely alone in setting up a double
jeopardy test impossible for a defendant to meet when the Government prosecutes broadly. The Second Circuit endorsed this afterthe-fact parsing of evidence in dicta. United States v. Irving, 554
F.3d 64, 79 (2d Cir. 2009) (noting no double jeopardy if jury could
have based possession and receipt convictions on different images,
but also finding other plain error factors not met); see also United
States v. Almonte, 638 F. App’x 71, 74 (2d Cir. 2016) (per curiam)
(same). And the Fourth Circuit found the overlap of evidence between receipt convictions for three images found on a laptop and
5 The Government argued, and the Fifth Circuit appears to have
agreed, that precedent required placing the burden entirely on Sarabia.
C.A. Gov’t Br. 34, 37 (citing United States v. Hope, 545 F.3d 293, 296
(5th Cir. 2008), and United States v. Register, 931 F.2d 308, 312 (5th Cir.
1991)). Sarabia disagreed with the Government’s interpretation of Hope
and Register. C.A. Sarabia Reply Br. 13–17.
15
the possession of a laptop with four videos and 726 child pornography images was too small, on plain error review, to warrant finding
the possession conviction multiplicitous. United States v. Fall, 955
F.3d 363, 374 (4th Cir. 2020); see also United States v. Schnittker,
807 F.3d 77, 83 (4th Cir. 2015) (finding sufficient proof that convictions were based on separate evidence “because the defendant
admitted to possessing over one thousand images or videos of child
pornography, at least some of which did not ground the receipt conviction”).
The Seventh Circuit posited a slightly different post-trial double jeopardy test that also places the burden solely on the defendant but focuses on the indictment and evidence “to determine exactly what the government sought to prove” during the first trial.
United States v. Dortch, 5 F.3d 1056, 1061–62 (7th Cir. 1993) (emphasis added); but see United States v. Ellis, 622 F.3d 784, 796 n.4
(7th Cir. 2010) (describing other Seventh Circuit cases endorsing
a burden-shifting framework). The Seventh Circuit did not ask
whether the first jury could have found the defendant guilty based
on evidence distinct from evidence that could have sustained the
second conviction.
The Fifth Circuit’s after-the-fact test of what the jury “could
have determined,” Pet. App. A12, is out of step with a majority of
16
circuits and offends the Double Jeopardy Clause. Given circuits’
confusion and conflict, the Court should clarify how double jeopardy claims are assessed post-trial for multiplicitous indictments.
III. Sarabia’s case is an ideal vehicle to address this
important recurring issue.
Sarabia raised his multiplicity concerns early and often. He
moved to dismiss multiplicitous counts pretrial, he asked for special jury instructions, and he raised multiplicity at sentencing. The
record is clear that the Government relied on the same evidence to
secure the possession and receipt convictions for each phone. This
case squarely presents an opportunity to resolve the question presented.
This question recurs frequently in child pornography prosecutions. See, e.g., Miller, 527 F.3d at 72; Ehle, 640 F.3d at 695;
Muhlenbruch, 634 F.3d at 1003; Davenport, 519 F.3d at 947–48;
Benoit, 713 F.3d at 16; Bobb, 577 F.3d at 1374–75. At least three
appeals decided by the Fifth Circuit in the past four years have
raised multiplicity concerns for possession and receipt convictions
for broadly charged counts. See Winstead, 717 F. App’x at 371 (addressing multiplicity of receipt and possession); United States v.
Luera, 770 F. App’x 708, 709 (5th Cir. 2019) (per curiam) (finding
no plain error because of lack of controlling precedent). But the
issue also arises whenever the Government prosecutes greater and
17
lesser-included offenses together in broad indictments that cover
the same evidence in multiple counts.
By framing the inquiry as whether the jury could have concluded the defendant received and possessed different child pornography depictions at different times, even when the charged offenses encompass those discrete incidents, the Fifth Circuit endorsed the prosecutorial tactic of charging broadly to easily obtain
convictions and evade multiplicity concerns by arguing after trial
that the jury could have relied on distinct evidence for each count.
This invites double jeopardy violations.
The Government relied on the same 77 images on the ZTE
phone and the same 1,008 images on Samsung phone to obtain the
greater and lesser-included convictions per phone. The jury was
instructed it could convict Sarabia for any receipt and any possession. Under the majority approach, Sarabia’s receipt and possession convictions were multiplicitious. See, e.g., Schales, 546 F.3d
at 980. Even under the Seventh Circuit’s approach in Dortch, the
convictions would be multiplicitous because the indictment and evidence show the Government sought to prove the receipt convictions with the receipt, over time, of multiple images that were possessed on two phones. See 5 F.3d at 1061–62. And the overlapping
evidence between Sarabia’s receipt and possession convictions was
18
not de minumus as in the Fourth Circuit’s cases. Cf. Fall, 955 F.3d
at 374; Schnittker, 807 F.3d 77, 83. The same child pornography
on the phones was the basis for the receipt convictions.
Sarabia is subjected to four convictions under Fifth Circuit’s
outlier standard asking whether the jury could have parsed the
evidence to sustain separate convictions, even though the Government and district court did not ask the jury to do so. When the
Government prosecutes broadly, this standard is impossible to
meet. If the Government wanted four convictions, then it should
have drafted the indictment differently or asked the jury to base
each conviction on separate receipts.
The Court should grant certiorari and clarify the protections of
the Double Jeopardy Clause for broad prosecutions of greater and
lesser-included offenses.
19
CONCLUSION
FOR THESE REASONS, Sarabia 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
KRISTIN M. KIMMELMAN
Assistant Federal Public Defender
Attorney for Defendant-Appellant
DATED: January 3, 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.