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United States v. Garrido Chilaca

United States Court of Appeals, Ninth Circuit

November 26, 2018

United States Of America, Plaintiff-Appellee,
v.
Juan Pablo Garrido Chilaca, Defendant-Appellant.

          Argued and Submitted October 15, 2018 San Francisco, California

          Appeal from the United States District Court No. 2:16-cr-00195-DLR-1 or the District of Arizona Douglas L. Rayes, District Judge, Presiding

          Juliana Manzanarez (argued) and Ray A. Ybarra Maldonado, Ybarra Maldonado & Associates, Phoenix, Arizona, for Defendant-Appellant.

          Peter S. Kozinets (argued) Assistant United States Attorney; Krissa M. Lanham, Deputy Appellate Chief; Elizabeth A. Strange, First Assistant United States Attorney; United States Attorney's Office, Phoenix, Arizona; for Plaintiff-Appellee.

          Before: Michael Daly Hawkins and Andrew D. Hurwitz, Circuit Judges, and Lee H. Rosenthal, [*] Chief District Judge.

         SUMMARY [*]

         Criminal Law

         The panel reversed in part, vacated in part, and remanded, in a case in which the defendant was convicted of four counts of possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).

         The panel held that, under § 2254(a)(4)(B), which makes it a crime to knowingly possess "1 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 media found at the same time and in the same place were therefore multiplicitous and constituted double jeopardy. The panel held that 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 is warranted. The panel remanded with instructions to vacate three of the multiplicitous counts of convictions and to resentence the defendant on the remaining count.

          OPINION

          ROSENTHAL, CHIEF DISTRICT JUDGE

         Juan Pablo Garrido Chilaca was convicted after a jury trial of four counts of possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The district court sentenced Chilaca to serve four concurrent 66-month prison terms, followed by a lifetime of supervised release.

         In this appeal, Chilaca contends that his four counts of conviction were multiplicitous and constituted double jeopardy. This court has jurisdiction under 28 U.S.C. § 1291. We reverse and remand with instructions to vacate all but one of the counts and to resentence Chilaca accordingly.[1]

         I. BACKGROUND

         In May 2015, Dropbox, Inc.-an internet company providing data storage for electronic files-submitted a tip to the National Center for Missing and Exploited Children that child-pornography images had been uploaded to an account registered to "Pablo Garrido." Dropbox identified the account email address as karmus28@gmail.com. The FBI linked the Dropbox and email accounts to IP addresses and to a cellphone number in Pablo Garrido's name.

         Executing a search warrant for Chilaca's home, FBI agents seized a Compaq desktop computer tower, a loose Western Digital hard drive disconnected from a computer, and a Simple Tech Pro Drive hard drive. Each device contained videos or images of child pornography. Each device was linked to the Dropbox account, allowing files added to a folder on that device to upload to the Dropbox account; the images were therefore accessible from the Dropbox folder on the other devices.

         A grand jury indicted Chilaca for two counts of child-pornography possession, in violation of 18 U.S.C. § 2252(a)(4)(B). A superseding indictment charged Chilaca with four counts, again under § 2252(a)(4)(B). Count 1 charged possession of 24 images and 1 video of child pornography in the Dropbox account; Count 2 charged possession of 22 images and 6 videos on a "Seagate brand hard drive"; Count 3 charged possession of 7 images and 5 videos on a "Western brand hard drive"; and Count 4 charged possession of 6 images and 2 videos on a "Simple Tech Pro Drive brand hard drive."

         Chilaca moved to dismiss the superseding indictment as multiplicitous, arguing that he could be charged with only one count of violating 18 U.S.C. § ...


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