909 F.3d 289
9th Cir.2018Background
- FBI received a tip from Dropbox that child-pornography images were uploaded to an account linked to “Pablo Garrido.”
- Agents executed a warrant at Juan Pablo Garrido Chilaca’s home and seized a desktop tower, a loose Western Digital hard drive, and a Simple Tech Pro Drive; Dropbox account also contained offending images.
- Each seized device and the Dropbox account contained videos or images of child pornography and were linked such that files could sync between them.
- A superseding indictment charged Chilaca with four counts under 18 U.S.C. § 2252(a)(4)(B): one count for the Dropbox account and three counts for three separate hard drives.
- Chilaca moved to dismiss as multiplicitous; the district court denied the motion, a jury convicted on all four counts, and Chilaca was sentenced to four concurrent 66-month terms.
- On appeal Chilaca argued the four counts were multiplicitous (double jeopardy); the Ninth Circuit reversed in part, vacated three counts, and remanded for resentencing on a single count.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether simultaneous possession of child-pornography "1 or more" matters on multiple media at one time/place permits multiple §2252(a)(4)(B) convictions | Government: each medium (Dropbox + three drives) are separate acts/units of prosecution, so four counts are valid | Chilaca: "1 or more" means simultaneous possession of multiple matters at one time/place is one offense | The court held simultaneous possession on multiple media in the same place/time constitutes a single §2252(a)(4)(B) violation; the four counts were multiplicitous |
| Whether multiplicity error was harmless because sentences ran concurrently and grouped for Guidelines | Government: error harmless—grouping and concurrent sentences eliminated prejudice | Chilaca: multiple convictions themselves violate Double Jeopardy and cause collateral consequences | Court held the multiplicity was not harmless; multiple convictions have collateral consequences and must be remedied |
| Appropriate remedy for multiplicitous convictions | Government: urged affirmance or at least no new trial/resentencing beyond Guidelines grouping | Chilaca: argued for a new trial because jury may have been prejudiced by multiple counts | Court held the remedy is to vacate the extra convictions and remand to resentence on a single count; no new trial required because same evidence would have been presented |
| Whether Ninth Circuit should follow precedent treating separate storage media as separate units | Government: cited dicta suggesting transfers between media could be separate acts; urged distinguishing §2252 from §2252A | Chilaca: urged adherence to sister-circuit holdings interpreting "1 or more" as a single unit when possession is simultaneous | Court followed sister circuits interpreting "1 or more" to mean a single unit for simultaneous possession and declined to create a circuit split |
Key Cases Cited
- United States v. Polouizzi, 564 F.3d 142 (2d Cir.) ("1 or more" limits simultaneous multiple matters to a single §2252(a)(4)(B) violation)
- United States v. Chiaradio, 684 F.3d 265 (1st Cir.) (simultaneous possession on multiple interlinked computers in one residence is one offense)
- United States v. Emly, 747 F.3d 974 (8th Cir.) (simultaneous possession on multiple devices seized in one location constitutes one §2252(a)(4)(B) violation)
- United States v. Kimbrough, 69 F.3d 723 (5th Cir.) (interpreting predecessor statute; supports single-unit view)
- United States v. Schales, 546 F.3d 965 (9th Cir.) (holding indictment insufficient to show separate acts; dicta on media transfers distinguished)
- United States v. Kuchinski, 469 F.3d 853 (9th Cir.) (concurrent sentences and grouping do not cure multiplicitous convictions; remedy may require vacatur)
- United States v. Overton, 573 F.3d 679 (9th Cir.) (concurrent sentences do not render double jeopardy harmless; vacatur of duplicate conviction required)
- United States v. Nash, 115 F.3d 1431 (9th Cir.) (new trial unnecessary where same evidence would have been introduced on a single count)
- United States v. Zalapa, 509 F.3d 1060 (9th Cir.) (remedy for multiplicity is vacatur of the multiplicitous conviction)