928 F.2d 409 (9th Cir. 1991), 90-30011, U.S. v. Smith

Docket Nº:90-30011.
Citation:928 F.2d 409
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Nancy Jo SMITH, Defendant-Appellant.
Case Date:March 12, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 409

928 F.2d 409 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,


Nancy Jo SMITH, Defendant-Appellant.

No. 90-30011.

United States Court of Appeals, Ninth Circuit

March 12, 1991

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted Nov. 5, 1990.

Appeal from the United States District Court for the District of Alaska; No. CR-88-067-AJK, Andrew J. Kleinfeld, District Judge, Presiding.



Before TANG, O'SCANNLAIN and LEAVY, Circuit Judges.



Nancy Jo Smith was convicted of seventeen counts of sexual abuse of her minor children: (1) one count of carnal knowledge of a female under 16, 18 U.S.C. § 2032 (repealed 1986); (2) eleven counts of first degree sexual abuse of a minor, Alaska Stat. § 11.41.434(a)(1), incorporated into federal law by the Assimilative Crimes Act, 18 U.S.C. § 13; (3) two counts of second degree sexual abuse of a minor, Alaska Stat. § 11.41.436(a)(2), incorporated into federal law by the Assimilative Crimes Act, 18 U.S.C. § 13; (4) two counts of sexual exploitation of children, 18 U.S.C. § 2251(b); and (5) one count of interstate transportation of child pornography, 18 U.S.C. § 2252(a)(1).

Except for the carnal knowledge and interstate transportation of pornography counts, the charges all pertain to two different episodes of sexual abuse. The first occurred on or about February 1986, and the second occurred on or about December 1986. On appeal, Ms. Smith contends that the thirteen counts of first and second degree sexual abuse relating to events in February and December 1986 should have been charged as just two counts of continuous sexual assault. She also argues that the Judge did not correctly instruct the jury on the intent element for sexual abuse. Because Ms. Smith failed to raise either objection below, we review only for plain error. United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 179 (1989); United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir.1989).


I. The Double Jeopardy Claim

A. Ms. Smith's standing to raise the double jeopardy issue.

To establish standing, Ms. Smith must demonstrate both a particularized injury and that the relief requested will cure the harm alleged. Warth v. Seldin, 422 U.S. 490, 499, 505 (1975). In Benton v. Maryland, 395 U.S. 784, 790 (1969), the Supreme Court held that "the mere possibility of ... collateral consequences" from multiple convictions, despite concurrent sentencing, satisfies Article III's standing requirement. See also Clermont v. United States, 432 F.2d 1215, 1217 (9th Cir.1970), cert. denied, 402 U.S. 997 (1971). We hold that the possible impact of the additional sentences on Ms. Smith's eligibility for parole gives her standing to pursue the double jeopardy issue.

B. The burden of proof.

Ms. Smith argues that the government bears the burden of proving that the separate instances of sexual abuse were not part of a single transaction. See Clifton v. State, 758 P.2d 1279, 1285 (Alaska Ct.App.1988). We disagree. The burden of demonstrating a violation of the double jeopardy clause generally rests with the appealing defendant. See United States v. Cox, 633 F.2d 871, 876 (9th Cir.1980) (placing burden on defendant challenging retrial after a mistrial), cert. denied, 454 U.S. 844 (1981). When the appellant asserts that the timing of factual events converts them into a single unit of prosecution, even though they appear to be separate events, the burden rests with him to prove facts demonstrating that the events were separate. See Amer v. United States, 367 F.2d 803, 806 (8th Cir.1966). 1 Moreover, the burden here appropriately rests on Ms. Smith because her failure to raise the issue below has led to the skimpy record evidence of timing and sequence with which we are now faced.

C. The thirteen counts of sexual abuse.

The double jeopardy clause protects not only against duplicate prosecutions, but multiple punishments also for the same offense. Grady v. Corbin, 495 U.S. ----, 110 S.Ct. 2084, 2090 (1990) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). When a defendant is charged with committing a series of acts proscribed by a single statute, we inquire into the appropriate "unit of prosecution" in order to protect against multiple convictions for what, in fact, was only a single criminal violation. See Ladner v. United States, 358 U.S. 169, 173-78 (1958); Bell v. United States, 349 U.S. 81, 82-83 (1955). The task is one of statutory construction, rather than one of constitutional interpretation. Ladner, 358 U.S. at 173; Bell, 349 U.S. at 82-83.

Consequently, if Ms. Smith can demonstrate that, within the meaning of Alaska's sexual abuse statutes, her conduct comprehended only two offenses, the double jeopardy clause requires that the remaining eleven sentences be vacated. To this end, Ms. Smith cites a number of opinions from Alaska's intermediate court of appeals delineating the appropriate unit of prosecution under the State's sexual abuse statutes. 2

In Oswald v. State, 715 P.2d 276, 280-81 (Alaska Ct.App.1986), the court held that repeated assaults in a single transaction would support separate prosecutions where "there was a sufficient break in time and circumstance to warrant separate convictions." 715 P.2d at 281.

In Rodriguez v. State, 741 P.2d 1200, 1206-08 (Alaska Ct.App.1987), the court held that the performance of fellatio and sodomy on a single victim merited two convictions because the...

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