U.S. v. Smith
| Decision Date | 12 March 1991 |
| Docket Number | No. 90-30011,90-30011 |
| Citation | 928 F.2d 409 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Nancy Jo SMITH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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of sexual abuse of her minor children: (1) one count of carnal knowledge of a female under 16, 18 U.S.C. Sec. 2032 (repealed 1986); (2) eleven counts of first degree sexual abuse of a minor, Alaska Stat. Sec. 11.41.434(a)(1), incorporated into federal law by the Assimilative Crimes Act, 18 U.S.C. Sec. 13; (3) two counts of second degree sexual abuse of a minor, Alaska Stat. Sec. 11.41.436(a)(2), incorporated into federal law by the Assimilative Crimes Act, 18 U.S.C. Sec. 13; (4) two counts of sexual exploitation of children, 18 U.S.C. Sec. 2251(b); and (5) one count of interstate transportation of child pornography, 18 U.S.C. Sec. 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).
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.
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) (), 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.
The double jeopardy clause protects not only against duplicate prosecutions, but multiple punishments also for the same offense. Grady v. Corbin, --- 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 first assault "was not a necessary or inevitable predecessor to the later" act. 741 P.2d at 1207. The court also noted that the second assault "involved a complete change in the character of the interaction," because the level of resistance displayed by the victim changed. Id. The Rodriguez court also held that, where there was a break in time (while the defendant filmed a sex act) or a change in location between two In Johnson v. State, 762 P.2d 493, 495 (Alaska Ct.App.1988), the court held that "[s]eparate convictions for multiple acts of penetration involving different openings of the victim's or the defendant's body are permissible."
assaults, two convictions would be appropriate. 741 P.2d at 1207-08.
Finally, in Newsome v. State, 782 P.2d 689, 691-92 (Alaska Ct.App.1989), the court merged acts of sexual penetration and contact occurring in the course of a single assault, but sustained convictions for two assaults separated in time by a number of hours.
Applying these cases and traditional rules of statutory construction to the counts at issue yields the following results. First, all assaults involving different victims represent separate crimes. The statutory prohibition is couched in terms of protecting individual minors. See Alaska Stat. Sec. 11.41.434(a)(1) () (emphasis added); Alaska Stat. Sec. 11.41.436(a)(2) () (emphasis added). To hold, as Ms. Smith argues, that the sexual abuse of three children merits no more punishment than an assault on one would be both illogical and contrary to the statute's language individualizing the offense. We therefore sustain the convictions under counts 17, 21, and 22. 3
Changing from an individual assault to forced group sex also merits separate convictions, due to the "complete change in the character of the interaction[s]." Rodriguez, 741 P.2d at 1207. See also Oswald, 715 P.2d at 281. Forcing children to perform sex acts on, or to endure sex acts performed by, their unconsenting siblings marks a sufficient change in the type of emotional trauma to warrant separate convictions. We therefore sustain the convictions under counts 16, 17, and 19.
A change in Ms. Smith's role from aiding an assault by her husband to actively abusing a child herself supports two convictions. The text of the sexual abuse statutes specifically identify these two roles as alternative means of violating the statute, using the conjunction "or." See Alaska Stat. Secs. 11.41.434(a)(1), 11.41.436(a)(2). We hold that this change in roles constitutes "a sufficient break in ... circumstance" to permit two separate convictions, and sustain the convictions for counts 5, 6, 14, and 23.
Count 18 constitutes an offense separate and apart from count 22 because the two represent distinct acts of penetration "involving different openings of ... the defendant's body." Johnson, 762 P.2d at 495. Likewise, counts 7 and 8 constitute severable offenses due to the different role assumed by S.J.W. in each instance and the change in level and type of contact with S.J.W.'s body that the assaults accomplished. Counts 7, 8, and 18 are therefore upheld.
We also hold that counts 4 and 5 and counts 6 and 7 each support separate prosecutions because, while hypothesizing that each of these instances of abuse could have occurred in the course of a single prolonged assault, Ms. Smith consistently fails to cite any evidence in the record supporting her version of the timing of these events. This case thus stands in sharp contrast to Oswald, Rodriguez, Johnson, and Newsome, where the court was able to cite specific evidence demonstrating that the abuses at issue either did or did not occur within a contained period of time. Had Ms. Smith raised her double jeopardy claim at the time of trial, both the children and Ms. Smith could have been examined concerning the timing of the sexual acts. Ms. Smith, however, broached this subject for the first time on appeal. She bears the burden of proving, by reference to specific facts contained in the record, that the thirteen...
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