Case o' The Week: Seeing Double? Indictment Trouble - Chilaca and Multiplicity in Child Porn Cases

 Four bites at the apple are three too many.

United States v. Chilaca, 2018 WL 6165235 (9th Cir. Nov. 26, 2018), decision available here.

Players: Great decision of first impression by visiting SD Texas Chief DJ Rosenthal, joined by Judges Judges Hurwitz and Hawkins.

Facts: Chilaca was charged with four counts of possessing child porn. Id. at *1. A search warrant at Chilaca’s home had revealed a PC (that had an internal hard drive) and two separate hard drives – all linked to a Dropbox account that had child porn. Id. 

  He was charged in four counts, that alleged possession of images in the three hard drives and Dropbox. Id. Chilaca’s motion to dismiss multiplicitous counts was denied, he was convicted after a jury trial of all four counts, and received four 66 month (concurrent) prison terms. Id.

Issue(s): “In this appeal, Chilaca contends that his four counts of conviction were multiplicitous and constituted double jeopardy.” Id. 

  “Section 2252(a)(4)(B) makes it a crime for ‘[a]ny person who either knowingly possesses, or knowingly accesses with intent to view, or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction’ of child pornography. 18 U.S.C. § 2252(a)(4)(B). The indictment charged four § 2252(a)(4)(B) violations. The question is whether, under this statute, simultaneous possession of child-pornography images, stored in different media and found in the same location, creates separate ‘allowable units of prosecution.’ Id. at *2 (footnote omitted).

Held: “We, like all other circuits that have considered the issue, interpret § 2252(a)(4)(B)’s use of the phrase '1 or more' to mean that the simultaneous possession of different matters containing offending images at a single time and place constitutes a single violation of the statute. This interpretation is consistent with the provision’s plain language and the structure of the statute as a whole.” Id. at *5. 

  “The government does not dispute that Chilaca’s possession of child-pornography images on the separate media was simultaneous and in the same location . . . . The four counts under § 2252(a)(4)(B) charged in the indictment against Chilaca are therefore multiplicitous.” Id. at *5-*6 (citation omitted).

Of Note: Chilaca’s holding of first impression in the Ninth is a great outcome, and one that follows the outcomes of the four circuits that have tackled this question. 

  Of additional interest, however, is Chief District Judge Rosenthal’s harmless error analysis. In retreat, the government threw a “harmless error” Hail Mary. More specifically, the government argued that the multiplicitous convictions should not be touched because Chilaca had received concurrent sentences. Id. at *6. 

  In a thoughtful analysis the Ninth rejects that harmless error argument, distinguishing its ‘06 Kuchinski decision and focusing on Chilaca’s challenge to the convictions. Id. The defense doesn’t get its hoped-for retrial, id. at *7, but the case is remanded for the district court to knock three of the multiplicitious counts and resentence. Id. Chilaca is a valuable “harmless error” decision, with impact outside of this narrow multiplicity context.

How to Use: Can child porn stored on Dropbox be a “unit of prosecution” under Section 2252(a)(4)(B)? The Court in Chilaca carefully notes that neither party contested whether a Dropbox account qualifies as an “allowable unit of prosecution” under this statute. Id. at *2 & n.2. 

  An interesting footnote to mull.

                                               

For Further Reading: President Trump and Senator Ben Sasse (Republican, Nebraska) have opined much of late on the Ninth’s reversal rate at SCOTUS. The Ninth, we are told, is “overturned more than any Circuit in the Country, 79%.”

Hon. Sen. Ben Sasse and President Trump

  True?

  Meh – as Mark Twain (and others) have observed, there are “lies, damn lies, and statistics.” 

   For a thoughtful discussion of the real figures behind the Ninth's record at the Supremes, see Does the Ninth Circuit Have the Highest Reversal Rate in the Country? available here.

Image of movie poster, “Multiplicity” from http://d.ratingmovies.com/servlet/Main/FilmDisplay?film_rn=4917

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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