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INDICTMENT “PILING ON” VIOLATES DOUBLE JEOPARDY

Pablo Chilaca was convicted of four counts of possessing child pornography in violation of 18 USC 2252(a)(4)(B). He got four concurrent 66-month prison terms. Chilaca appealed, arguing that his four counts of conviction were multiplicitous.

An indictment is not multiplicitous merely because it charges more than one violation of the same statute based on related conduct; instead, a defendant can be convicted of multiple violations of the same statute if the conduct underlying each violation involves a separate and distinct act. However, where a single act or transaction is alleged to have resulted in multiple violations of the same statutory provision, the proper inquiry involves the determination of what Congress has made “the allowable unit of prosecution.”

Last week, the 9th Circuit held that under 18 USC 2252(a)(4)(B), which makes it a crime to knowingly possess one or more matters containing any visual depiction of child pornography, simultaneous possession of different matters containing offending images at a single time and place constitutes a single violation. The panel held that the four counts charging the defendant with possession of child-pornography images on separate hard drives found at the same time and in the same place were multiplicitous and constituted double jeopardy.

The panel held the error was not harmless, but that because the record clearly shows that evidence presented at trial would have been the same regardless of the number of counts charged, no new trial was warranted. The panel remanded with instructions to vacate three of the four counts of convictions and to resentence the defendant on the remaining count.

United States v. Garrido Chilaca, Case No. 17-10296 (9th Cir. Nov. 26, 2018)

– Thomas L. Root