Unpublished Disposition, 928 F.2d 409 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 409 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Nancy Jo SMITH, Defendant-Appellant.

No. 90-30011.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 1990.Decided March 12, 1991.

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

D. Alaska


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counts of sexual abuse of her minor children: (1) one count of carnal knowledge of a female under 16, 18 U.S.C. § 2032 (repealed 1986); (2) eleven counts of first degree sexual abuse of a minor, Alaska Stat. Sec. 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. Sec. 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).


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, --- 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 assaults, two convictions would be appropriate. 741 P.2d at 1207-08.

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."

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) (defining offense as "sexual penetration with a person who is under 13 years of age") (emphasis added); Alaska Stat. Sec. 11.41.436(a) (2) (violation occurs when an individual "engages in sexual contact with a person who is under 13 years of age") (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 separate counts represent only two acts of sexual abuse. Cox, 633 F.2d at 876; Amer, 367 F.2d at 806. Ms. Smith's failure to make a record on the issue in the district court deprives her of the ability to carry her burden now. The entry of multiple convictions was not plain error.4 

II. The Jury Instructions.

A. The need to find a specific "sexual intent."

Ms. Smith argues that the court's instructions erroneously permitted the jury to convict absent a finding that she possessed a "sexual intent." She relies on Flink v. State, 683 P.2d 725, 733 (Alaska Ct.App.1984), in which the court held that, in order for genital contact to be "sexual contact" within the meaning of Alaska's second degree sexual abuse statute, the jury must find that the defendant intended the contact "to result in either the sexual arousal or sexual gratification of the actor or the victim."

Under Alaska law, first and second degree sexual abuse of a minor are general intent crimes. Van Meter v. State, 743 P.2d 385, 390-91 (Alaska Ct.App.1987). In fact, the Alaska legislature has specifically rejected Flink 's holding:

[T]he legislature intends to change the result reached by the Alaska Court of Appeals in Flink v. State.... [T]he legislature intends to reaffirm that crimes involving sexual contact and penetration are general intent crimes.

1984 Senate Journal 3387, quoted in Van Meter, 743 P.2d at 390 (emphasis omitted).

Judge Kleinfeld instructed the jury that, in order to convict Ms. Smith of sexual abuse, they must find that the crime was "committed intentionally." The court defined "intentionally" in the following terms:

This means that the defendant's conscious objective must have been to cause the result. This intent need not be the only objective. An act is done intentionally if the defendant acted on purpose or voluntarily such, that he or she consciously desired to perform the act or know [sic] that the act was substantially certain to follow from his or her conduct.

Because the instruction adequately stated the law of intent5  and required the jury to find a general intent to commit sexual contact or sexual penetration, we hold that the instructions do not constitute plain error.

B. The need for a justification instruction.

Under Alaska law, affirmative defenses exist to charges of sexual contact and penetration. A defendant may rebut evidence of sexual contact by showing by a preponderance of the evidence that the contacts "may reasonably be construed to be normal caretaker responsibilities for a child, interactions with a child, or affection for a child," or took place in the course of administering recognized medical treatment. Alaska Stat. Sec. 11.81.900(b) (52) (B). A defendant may overcome evidence of sexual penetration only by demonstrating by a preponderance of the evidence that the penetration occurred in the course of medical treatment. Alaska Stat. Sec. 11.81.900(b) (53) (B).

Neither of these affirmative defense instructions was given at trial. Indeed, Ms. Smith concedes that no evidence in the record supported either theory. Ms. Smith nevertheless contends that this omission deprived her of due process in two ways.

First, Ms. Smith argues that the combination of requiring the jury to find only a general knowing intent to engage in sexual contact and the omission of these defenses permitted the jury to convict her without ever finding a criminal intent. In other words, Ms. Smith suggests that the government has improperly presumed a constituent element of the crime--that the contact or penetration did not occur in the course of ordinary parental care or medical treatment. Cf. Mullaney v. Wilbur, 421 U.S. 684 (1975) (state may not shift to defendant burden of proving that killing occurred in the heat of passion on sudden provocation in murder prosecution).

We decline to address the broad constitutional issue raised by Ms. Smith. Even assuming that the prosecution ordinarily must prove that the contact or penetration did not occur in the course of parental or medical care, the government has no obligation to disprove a mitigating factor not raised by the evidence. The Supreme Court's opinion in Mullaney requires the government to prove the absence of heat of passion only "when the issue is properly presented in [the] ... case." 421 U.S. at 704. In contrast to the present case, the trial court in Mullaney had before it evidence that the defendant attacked the victim in a frenzy of anger. Mullaney, 421 U.S. at 685. "Mullaney v. Wilbur ... does not forbid States from requiring the criminal defendant to present at least some evidence to raise a factual issue with respect to heat of passion or self-defense." Hankerson v. North Carolina, 432 U.S. 233, 237 n. 3 (1977). Because there was no evidence to support a finding that the assaults in this case were occasioned by routine parental or medical care, we hold that the district court's failure to assign such a burden to the prosecution in the instructions was not plain error.

Second, Ms. Smith argues that hinging the availability of these affirmative defenses on the admission of "some evidence" placing them in issue unconstitutionally burdens the defendant's fifth amendment right to remain silent by compelling testimony.

While such an argument might prevail if the statute insisted that "the defendant introduce some evidence" supporting the instruction, that is not this case. The statute cares not what the source of the evidence is. The support for such an instruction could derive from the cross-examination of the prosecution's evidence or from gaps in the government's case. Thus, contrary to Ms. Smith's suggestion, nothing in the statute exacts as a toll for the affirmative defense instruction a surrender of the defendant's fifth amendment rights. We therefore sustain the conviction despite the absence of affirmative defense instructions.

C. Unconstitutional overbreadth.

Ms. Smith posits as her final contention that Alaska's first degree sexual abuse statute is overbroad and vague. Unlike the second degree "sexual contact" statute, the first degree "sexual penetration" provision does not permit an affirmative defense of parental care. Compare Alaska Stat. Sec. 11.81.900(b) (52) (B) with id. Sec. 11.81.900(b) (53) (B).

Because Ms. Smith introduced no evidence indicating that the sexual penetrations charged in this case occurred in the course of ordinary parental care, she has no standing to challenge the statute as vague or overbroad. " [O]ne to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." United States v. Raines, 362 U.S. 17, 21 (1960) (citations omitted).

Ms. Smith suggests that the traditional exception permitting overbreadth challenges where they raise first amendment issues should be extended to all statutes chilling constitutionally protected conduct. See, e.g., NAACP v. Button, 371 U.S. 415, 432-33 (1963) (enforcement of barratry statute may be invalid if it infringes on protected first amendment rights "whether or not ... the petitioner has engaged in privileged conduct").

That the Constitution affords some measure of protection to parents' right to raise their children as they see fit cannot be gainsaid. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510, 532, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Even assuming that overbreadth challenges may be raised outside the context of first amendment cases, we would nonetheless hold that Ms. Smith lacks standing because she failed to allege that her own parenting, or anyone else's for that matter, was actually chilled by Alaska's statute. Cf. Laird v. Tatum, 408 U.S. 1, 13-14 & n. 7 (1972).6 


We affirm Ms. Smith's convictions. No plain error has been found. Her conviction for thirteen counts of sexual abuse does not offend the double jeopardy clause because the circumstances of each assault warrant separate prosecution. Moreover, Ms. Smith's failure to raise this issue at trial has left her and this panel with a record barren of substantiation for her claim of overlapping punishments for the same acts. Ms. Smith likewise exposed no error in the content of the jury instructions or in the court's omission of the statutory affirmative defenses.

Finally, Ms. Smith lacks standing to level an overbreadth challenge to Alaska's first degree sexual abuse statute.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


United States v. Meyer, 602 F. Supp. 1480 (S.D. Cal. 1985), addresses the clarity with which Congress must make known its intent to permit multiple counts. See id. at 1482. Meyer does not address the question of burden of proof in unit of prosecution cases


In Assimilative Crimes Act prosecutions, we are "free to interpret the extrapolated state criminal statute just as if [we] were interpreting any federal statute because the assimilated state law, in effect, becomes a federal statute." United States v. Kiliz, 694 F.2d 628, 629 (9th Cir. 1982). The cases cited by Ms. Smith "are purely advisory." Id


Bell v. United States, 349 U.S. 81 (1955) does not dictate a contrary result. In Bell, the Supreme Court held that the interstate transportation for immoral purposes of two women in a single trip in a single vehicle constituted but one violation of the Mann Act, 18 U.S.C. § 2421. d. at 83-84. As the Supreme Court noted in Bell, the federal purpose animating that statute was "the withdrawal of 'the facility of interstate transportation' " from use for immoral purposes. Id. at 83 (quoting Hoke v. United States, 227 U.S. 308 (1913)). The protection of the individual woman, in isolation, was not the gist of the statute. Thus a violation was accomplished by the act of transportation--moving interstate--and not by reference to the woman. The statute, in other words, was designed such that the federal interest in regulating interstate travel was considered the victim of any violation, not the woman

Here, by contrast, we are effectively dealing with a state statute, the plain text of which focuses on the protection of the individual child-victim. Because it is a state statute, violations are defined in terms of the distinct instances of physical assault; there is no need to "federalize" or somehow import a national concern into the definition of the crime. In Bell, the defendant could argue that the crux of the offense was the act of transportation of which there was only one (albeit involving two women). Id. at 83. Here, Ms. Smith can point to no comparable part of the Alaska statute's text that would support the theory that assaults of different children constitute but one offense.


The fact that each act was separately memorialized on film further supports treating each assault as a distinct crime


Cf. Alaska Stat. Sec. 11.81.900(a) (1)


Ms. Smith cursorily raises one additional objection. The jury was instructed that, in order to convict of second degree sexual abuse, it must find that Ms. Smith acted intentionally. The statute, however, requires that sexual contact be made "knowingly." Alaska Stat. Sec. 11.81.900(b) (52) (A). Requiring the jury to find a more culpable mens rea than that imposed by statute is harmless error or, at a minimum, is not plain error. See United States v. Bertman, 686 F.2d 772, 775 (9th Cir. 1982) (error in jury instructions harmless where defendant could not have benefitted from correct instruction). Moreover, Ms. Smith's own requested instruction defined "knowing" as an act done "voluntarily and intentionally." Any error was thus invited. United States v. Gilley. 836 F.2d 1206, 1211 n. 6 (9th Cir. 1988)