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United States v. Davis

United States District Court, D. Arizona

February 2, 2018

United States of America, Plaintiff,
v.
Jonathan Frank Davis, Defendant.

          ORDER

          David G. Campbell United States District Judge.

         The Superseding Indictment charges Defendant Jonathan Davis with conspiracy, sex trafficking, and transportation of persons to engage in prostitution. Doc. 63. Defendant has filed a motion to compel election or dismiss multiplicitous Counts Two and Three (Doc. 44)[1] and a motion to sever Count One from the remaining counts (Doc. 48). The motions are fully briefed, and the Court held a hearing on January 31, 2018. The Court will grant the first motion and deny the second.

         I. Motion to Compel Election or Dismiss Multiplicitous Counts.

         Counts Two and Three allege violations of 18 U.S.C. § 1591(a). Doc. 63 at 6. Count Two focuses on the fact that the alleged victim, Jane Doe 1, was younger than 18 years of age. Id. It alleges that Defendant violated § 1591(a) when he “knowingly recruited, enticed, harbored, transported, provided, obtained, and maintained” Jane Doe 1 to engage in a commercial sex act, “knowing and in reckless disregard of the fact that Jane Doe 1 had not attained the age of 18 years.” Id. Count Three focuses on the fact that force, fraud, and coercion were used to cause Jane Doe 1 to engage in prostitution. Id. It alleges Defendant violated § 1591(a) when he “knowingly recruited, enticed, harbored, transported, provided, obtained, and maintained” Jane Doe 1 to engage in a commercial sex act, “knowing and in reckless disregard of the fact” that this would be accomplished by “means of force, threats of force, fraud, and coercion.” Id.

         The question presented by Defendant's motion is whether the Superseding Indictment correctly asserts two separate crimes under § 1591(a), or whether the statute creates one crime that can be committed in two different ways.

         A. Relevant Law.

[The Double Jeopardy Clause] has been interpreted to protect persons against successive prosecutions for the same offense after acquittal or conviction and, as relevant here, against multiple criminal punishments for the same offense. . . . Congress, of course, has the power to authorize multiple punishments arising out of a single act or transaction. The constitutional guarantee against double jeopardy merely assures that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.

United States v. Overton, 573 F.3d 679, 690 (9th Cir. 2009) (internal quotation marks and citations omitted).

         Thus, the question is one of “legislative authorization” - did Congress intend to create two crimes or one crime when it enacted § 1591(a)? Id. The parties do not cite any federal case addressing this issue under § 1591(a).

         Courts in this circuit must apply “a presumption against construing statutes so as to lead to multiple punishment.” United States v. Arreola, 467 F.3d 1153, 1157 (9th Cir. 2006) (quoting United States v. UCO Oil Co., 546 F.2d 833, 837 (9th Cir. 1976)). This presumption arises from Supreme Court instructions:

When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. . . . It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment.

Bell v. United States, 349 U.S. 81, 83 (1955).

         With this presumption in mind, the Ninth Circuit has identified four factors to consider when deciding whether Congress has authorized one crime or two: “(1) the language of the statute itself, (2) the legislative history and statutory context, (3) the type of conduct proscribed, and (4) the appropriateness of multiple punishment for the conduct charged in the indictment.” Arreola, 467 F.3d at 1157.

         B. Arreola's Four Factors. 1. Language of the Statute.

         Section 1591(a) wins no awards for clarity. It includes two numbered paragraphs and additional language ...


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