USA v. Sierra et al

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JESSE SIERRA and DUSTIN SIERRA,
Defendants.
5:19-CR-50110-JLV
REPORT AND RECOMMENDATION
REGARDING MOTIONS TO DISMISS
(DOCS. 71, 73)
Pending are Defendants’ Motions to Dismiss (Docs. 71, 73). 	Based on a
careful consideration of all the evidence, and counsel’s written arguments, the
Court respectfully makes the following:
RECOMMENDATION
It is respectfully recommended that Defendants’ Motions to Dismiss
(Docs. 71, 73) be denied.
JURISDICTION
The eleven-count Indictment in the above captioned case charges the
following: Kidnapping in violation of 18 U.S.C. §§ 1201(a)(2), 1153, and 2;
Aggravated Sexual Abuse by Force in violation of 18 U.S.C. §§ 2241(a)(1),
2246(2)(A), 1153, and 2; Aggravated Sexual Abuse by Force in violation of 18
U.S.C. §§ 2241(a)(1), 2246(2)(B), 1153, and 2; Interstate Domestic Violence in
violation of 18 U.S.C. §§ 2261(a)(2) and 2; Assault Resulting in Serious Bodily
Injury in violation of 18 U.S.C. §§ 113(a)(6), 1153, and 2; and Assault by
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Strangulation of a Dating Partner in violation of 18 U.S.C. §§ 113(a)(8), 1153,
and 2. 	(Doc. 31). 	The pending Motions were referred to the Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and United States District Judge Jeffrey L.
Viken’s Standing Order dated April 1, 2018.
FACTUAL BACKGROUND
Defendant, Jesse Sierra, filed the present Motion to Dismiss (Doc. 71).
In his motion, Jesse Sierra, seeks the dismissal of the indictment as
multiplicitous or, in the alternative, to compel the Government to elect between
Counts: II and III; Counts V and VI; Counts VII and X; and Counts IX and XI.
Id. at p. 1. 	Co-Defendant, Dustin Sierra, joins in the Motion to Dismiss, or
alternatively, to compel election between those counts that apply to him,
Counts II and III and Counts V and VI. (Doc. 73).
DISCUSSION
I. 	Motions to Dismiss
A. 	Legal Standard for Multiplicity
The Double Jeopardy Clause of the Fifth Amendment provides that “no
person shall be subject for the same offence to be twice put in jeopardy of life
or limb.” 	U.S. CONST . amend. V. 	“An indictment is multiplicitous if it charges
the same crime in two counts.” 	United States v. Chipps, 410 F.3d 438, 447
(8th Cir. 2005). 	“A multiplicitous indictment is impermissible because ‘the jury
can convict the defendant on both counts, subjecting the defendant to two
punishments for the same crime in violation of the double-jeopardy clause of
the Fifth Amendment.’” 	United States v. Sandstrom, 594 F.3d 634, 651–52
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(8th Cir. 2010) (quoting Chipps, 410 F.3d at 447)). 	“Demonstrating that an
indictment violates the double jeopardy clause requires the defendant to show
that the two offenses charged are in law and fact the same offense.” 	United
States v. Two Elk, 536 F.3d 890, 898 (8th Cir. 2008) (internal quotation
omitted).
The Blockburger test sets out the applicable rule that “where the same
act or transaction constitutes a violation of two distinct statutory provisions,
the test to be applied to determine whether there are two offenses or only one,
is whether each provision requires proof of a fact which the other does not.”
Blockburger v. United States, 284 U.S. 299, 304 (1932). 	“A single act may be
an offense against two statutes; and if each statute requires proof of an
additional fact which the other does not, an acquittal or conviction under either
statute does not exempt the defendant from prosecution and punishment
under the other.” 	Id. (internal quotation omitted). 	However, the “double
jeopardy clause does not prevent multiple punishments for the same offense
where Congress has specifically authorized cumulative punishment under two
statutes.” 	United States v. Mills, 835 F.2d 1262, 1264 (8th Cir. 1987).
B. 	Counts II and III are not Multiplicitous
Jesse and Dustin Sierra argue that Counts II and III are multiplicitous
because the “two counts differ only in how the sexual act is alleged to have
occurred as defined under 18 U.S.C. § 2246.” 	(Doc. 72 at p. 2). 	Count II
charges Aggravated Sexual Abuse by Force in violation of 18 U.S.C. §§
2241(a)(1), 2246(2)(A), 1153, and 2. 	“Sexual act” under § 2246(2)(A) is defined
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as “contact between the penis and the vulva or the penis and the anus.” 	Count
III charges Aggravated Sexual Abuse by Force in violation of 18 U.S.C. §§
2241(a)(1), 2246(2)(B), 1153, and 2. 	“Sexual act” under § 2246(2)(B) is defined
as “contact between the mouth and the penis, the mouth and the vulva, or the
mouth and the anus.” 	Defendants assert the different definitions of “sexual
act” under the statute “merely provide alternate ways of violating 18 U.S.C. §
2241(c), not separate and distinct offenses that may be separately charged.”
(Doc. 72 at p. 2). 	Defendants argue Counts II and III “purportedly occurred in
one episode . . . exposing the Defendant[s] to the risk [they] might receive
multiple punishments for the same alleged course of conduct.” 	Id. at p. 4-5.
Defendants’ arguments are directly contrary to Eighth Circuit precedent.
We conclude that § 2241(c)’s language confirms that aggravated
sexual abuse is a separate-act offense. 	The plain language of §
2241(c) states that a person commits aggravated sexual abuse by
“engag[ing] in a sexual act with another person.” (emphasis added).
The statute does not say “sexual act or acts,” or “sexual course of
conduct.” 	Each 	of 	the 	permutations 	enumerated 	in § 	2246(2)
constitutes a sexual act and they are linked in the disjunctive. 	It
follows, then, that engaging in multiple sexual acts (as listed in §
2246(2)) would amount to multiple violations of § 2241(c) and would
leave 	the 	perpetrator 	susceptible 	to 	multiple 	punishments
thereunder.
United States v. Two Elk, 536 F.3d 890, 899 (8th Cir. 2008). 	Accordingly,
Defendants’ arguments fail on the merits. The indictment is not multiplicitous
for charging: (1) conduct between the penis and vulva or penis and the anus
under § 2246(2)(A); and (2) contact between the mouth and the penis, mouth
and the vulva, or the mouth and the anus under § 2246(2)(B). 	Double jeopardy
is not implicated, even if the separate sexual acts occurred within a single
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course of conduct. 	Accordingly, the court holds Counts II and III are not
multiplicitous.
C. 	Counts V and VI are not Multiplicitous
Jesse and Dustin Sierra argue that Counts V and VI are multiplicitous
because the “counts differ only in how it is alleged the purported assault
occurred as defined under 18 U.S.C. § 113.” 	(Doc. 72 at p. 2). 	Count V
charges Assault Resulting in Serious Bodily Injury in violation of 18 U.S.C. §§
113(a)(6), 1153, and 2. 	Count VI charges Assault by Strangulation of a Dating
Partner in violation of 18 U.S.C. §§ 113(a)(8), 1153, and 2. 	Defendants assert
the different definition of “assault” under the statute “merely provide alternate
ways of violating the statute and are not separate and distinct offenses that can
be charged separately in an Indictment.” (Doc. 72 at p. 2).
Here, the two counts are not multiplicitous. 	Each count requires proof of
an additional fact, which the other does not. 	See Blockburger, 284 U.S. at 304.
Count V, Assault Resulting in Serious Bodily Injury in violation of 18 U.S.C. §§
113(a)(6) and 1153, requires proof of the following elements:1
1. 	On or about between July 13, 2019, and July 21, 2019
inclusive, the defendant assaulted Esther Wolf;
2. 	The defendant acted knowingly and willfully;
3. 	The defendant is an Indian person;
4. 	The offense took place in Indian Country; and
5. 	Esther Wolfe suffered serious bodily injury as a result.
1 Both Counts V and VI also charge Aiding and Abetting under 18 U.S.C. § 2 which requires
proof that: (1) a defendant knew the crime was being committed or going to be committed; and
(2) knowingly acted in some way for the purpose of aiding the commission of the crime.
Because aiding and abetting is dependent on the specific elements of the crime charged, it
therefore holds that counts alleging aiding and abetting are also not multiplicitous if the
underlying offenses do not implicate double jeopardy.
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Count VI, Assault by Strangulation of a Dating Partner in violation of 18 U.S.C.
§§ 113(a)(8) and 1153, requires proof of the following elements:
1. 	On or about between July 13, 2019, and July 21, 2019,
inclusive, the defendant assault Esther Wolfe;
2. 	The defendant assaulted her by strangling, suffocating, or
attempting to strangle or suffocate her;
3. 	That Esther Wolfe was a spouse, intimate partner, or dating
partner;
3. 	The defendant acted knowingly and willfully;
4. 	The defendant is an Indian person; and
5. 	The offense took place in Indian Country.
Count V requires proof that the victim suffered serious bodily injury as a result
of the assault. 	Count VI does not require such proof. 	Contrary, Count VI
requires proof that the defendant assaulted the victim, specifically by
strangling, suffocating, or attempting to strangle or suffocate her, and that the
victim was a spouse, intimate partner, or dating partner. 	Count V does not
require such proof. 	Therefore, as a matter of law, the two offenses are not the
same. 	Likewise, Defendants’ assertion that the subsections of 18 U.S.C. § 113
are cannot be separate and distinct offenses contradicts Eighth Circuit
precedent. 	See e.g. United States v. Eagle, 586 F.2d 1193, 1196–97 (8th Cir.
1978) (holding two counts charged under two different subsections of 18 U.S.C.
§ 113 were different as a matter of law).
Furthermore, Defendants bear the burden to demonstrate that two
offenses charged “are in law and fact the same offense.” 	Two Elk, 536 F.3d at
898 (emphasis added). 	Here Defendants merely allege the statute provides
different ways of violating the statute, not distinct offenses. 	Neither defendant
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provided any factual background to support their proposition as to why the
offenses are in law and fact the same.
Contrary, the Government asserts that the two assaults “were
accomplished by different means, occurred at different times and places, and
had different motivations.”2 (Doc. 82 at p. 6-7). 	The Government further
proffers that the Assault by Strangulation charged in Count VI occurred while
Jesse Sierra “repeatedly strangled the victim while his codefendant drove them
from Rapid City to the Pine Ridge Reservation . . . .” 	Id. at p. 7. 	The Assault
Resulting in Serious Bodily Injury charged in Count V is alleged to have
occurred by “repeated beatings with [Jesse Sierra’s] fists and feet after arriving
at the Pine Ridge Reservation, in varying locations across multiple days.” 	Id.
Defendants have failed to meet their burden as to both prongs of the
Blockburger test. 	Accordingly, the court holds Counts V and VI are not
multiplicitous.
D. 	Counts VII and X are not Multiplicitous
Jesse Sierra argues Counts VII and X are multiplicitous because “[the
counts] differ only in that Count VII alleges the Defendant’s purpose was to the
complainant ‘hold for ransom or reward’ whereas Count X alleges the purpose
2 The court notes that although the Government’s proffer is helpful to further rebut the
multiplicity argument, the court’s holding would remain the same even if the assaults had not
occurred at different times or in different locations. The Blockburger test a two-prong test that
requires a showing that two charges are both the same in law and fact. It makes no difference
whether the same conduct forms the basis of two charges, so long as each charge requires
proof of an element that the other does not, double jeopardy is not implicated. See
Blockburger, 284 U.S. at 304 (internal quotation omitted) (noting the Supreme Court’s
acceptance of the notion that “[a] single act may be an offense against two statutes . . . if each
statute requires proof of an additional fact which the other does not”).
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was to commit a crime of violence against the complaining witness.” 	(Doc. 72
at p. 3).
Again, these two counts are not multiplicitous because they each require
proof of an additional fact, which the other does not. 	Count VII, Kidnapping in
violation of 18 U.S.C. §§ 1201(a)(2) and 1153, requires proof of the following
elements:
1. 	The defendant, unlawfully seized, confined, or kept detained
Esther Wolfe without her consent;
2. 	The defendant held Esther Wolfe for ransom, reward, revenge,
sexual gratification, or other reason;
3. 	The 	defendant 	voluntarily 	and 	intentionally 	transported,
Esther Wolfe while she was seized, confined, kept, or detained;
4. 	The transportation was in interstate or foreign commerce;
5. 	The defendant is an Indian person; and
6. 	The offense took place in Indian Country.
Count X, Interstate Domestic Violence in violation of 18 U.S.C. §
2261(a)(2), requires proof of the following elements:
1. 	The defendant, caused a spouse, intimate partner, or dating
partner to travel;
2. 	The travel was in interstate or foreign commerce or to enter or
leave Indian Country;
3. 	The travel was by force, coercion, duress, or fraud;
4. 	In the course of, as a result of, or to facilitate such conduct or
travel, the defendant committed or attempted to commit a crime
of violence against that spouse, intimate partner, or dating
partner.
Count VII requires proof that the defendant held the victim for ransom,
reward, revenge, sexual gratification, or other reason. 	Count X does not
require such proof. 	Contrary, Count X requires proof that in the course of, as
a result of, or to facilitate such conduct or travel, the defendant committed or
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attempt to commit a crime of violence against a spouse, intimate partner, or
dating partner. 	Count VII does not require such proof.
The Eighth Circuit has not expressly answered the question of
multiplicity as it pertains to convictions for both Kidnapping and Interstate
Domestic Violence. 	However, the Eighth Circuit has held it was not plain error
for the district court to permit a conviction and sentencing on both offenses
when the defendant did not raise the issue of double jeopardy until on appeal.
See United States v. Sickinger, 179 F.3d 1091, 1093 (8th Cir. 1999) (discussing
how other circuits have recognized that “kidnapping requires proof of ‘holding,’
while the domestic violence statute does not, and the domestic violence statute
requires proof of an ‘intimate partner,’ a fact not required for a kidnapping
conviction”).
In rejecting the defendant’s double jeopardy challenge on appeal in
Sickinger, the Eighth Circuit cited two cases from other circuits that had
rejected the argument that Interstate Domestic Violence is simply a more
specific type of Kidnapping. 	Id. (citing United States v. Bailey, 112 F.3d 758,
766-67 (4th Cir.) cert. denied, 522 U.S. 896, 118 S.Ct. 240, (1997); United
States v. Frank, 8 F.Supp.2d 253, 282 n. 26 (S.D.N.Y.1998)). 	The Eighth
Circuit did, however, note that it need not decide in that case if it ultimately
agreed with Bailey and Frank due to the plain error standard of review.
Sickinger, 179 F.3d at 1093, fn. 3.
However, other circuits have come to conclusions on this very issue. 	For
example, the Fourth Circuit case cited to by the Eighth Circuit, expressly held
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that an indictment charging both Interstate Domestic Violence and Kidnapping,
as a result of the same transaction, was not multiplicitous.
Clearly, the domestic violence statute requires proof of several facts
which the kidnapping statute does not, the most obvious of which
is 	that 	the 	victim be 	“a 	spouse 	or 	intimate 	partner.” 	Equally
apparent 	is 	that 	the 	kidnapping 	statute 	requires 	proof 	of 	the
additional element that the defendant held the victim “for ransom or
reward or otherwise.” 	Although there are other differences between
the elements of the domestic violence statute and the crime of
kidnapping, 	these 	two 	stated 	differences 	satisfy
the Blockburger requirement that each statute require the proof of
an element which the other does not. 	Accordingly, we find that the
interstate domestic violence statute proscribes conduct distinct from
that 	criminalized 	by 	the 	kidnapping 	statute. 	Therefore,
[Defendant’s] two-count indictment under the interstate domestic
violence statute and kidnapping statute is not multiplicitous and
must stand.
United States v. Bailey, 112 F.3d 758, 767 (4th Cir. 1997).
Similarly, the Fifth Circuit determined an indictment charging both
Kidnapping and Interstate Domestic Violence was not multiplicitous under
Blockburger, and concluded the district court did not commit plain error by
determining a sentence for both.
The interstate domestic violence statute requires that the victim be
a spouse or intimate partner of the defendant, that the defendant
crossed state lines with the intent to injure, harass, or intimidate
the victim, that a crime of violence was engaged in intentionally
either in the course of or as the result of such travel, and that as a
result of that crime of violence, bodily injury to the victim occurred.
It can therefore be said that a kidnapping conviction requires proof
of a fact not required by the interstate domestic violence statute
(e.g., that the victim be held for purposes beneficial to the defendant
at the time state lines were crossed), and that a conviction for
interstate domestic violence requires proof of a fact not required by
the kidnapping statute (e.g., that the victim be a spouse or intimate
partner, that bodily injury to the victim resulted).
United States v. Lankford, 196 F.3d 563, 578 (5th Cir. 1999).
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In keeping with the trend, the Seventh Circuit Court of Appeals held:
Accordingly, 	it 	makes 	no 	difference 	that 	the 	same 	evidence
established that [the defendant] forcibly caused [the victim] to travel
in interstate commerce and also that he “held” her as required for
conviction of kidnapping. 	Each of these offenses requires proof of
an element that the other does not, and that defeats [Defendant’s]
multiplicity argument.
United States v. Larsen, 615 F.3d 780, 788 (7th Cir. 2010).
As stated supra, Defendants bear the burden to demonstrate that two
offenses charged “are in law and fact the same offense.” 	Two Elk, 536 F.3d at
898 (emphasis added). 	Jesse Sierra makes no showing that both offenses fail
to pass the Blockburger test. 	Instead, he merely asserts that “[n]o evidence
supports the supposition the complaining witness was forcibly taken or held
for ransom or reward. 	The complaining witness initially asserted there was a
domestic relationship between her and the Defendant.” 	(Doc. 72 at p. 3).
Jesse Sierra has proffered no factual background that supports this assertion
or could permit this court to determine that Counts VII and X, despite
happening in the same time frame, are multiplicitous. 	Although familiar with
the Criminal Complaint (Doc. 1) detailing the allegations concerning July of
2019, this court has been provided no factual background by either party3
concerning the events alleged in August of 2018.
Although the Eighth Circuit has not made a determinative finding on this
issue, this court is persuaded by, and adopts, the holding of the Fourth, Fifth,
and Seventh Circuits that indictments charging both Kidnapping and Interstate
3 The court recognizes this burden is ultimately that of the Defense.
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Domestic Violence do not implicate double jeopardy. 	Furthermore, even if the
Eighth Circuit were to hold contrary, that the elements of both offenses are not
distinct as a matter of law, it is still the defendant’s burden to demonstrate
offenses are both in law and fact the same. 	The indictment alleges both Counts
occurred “[o]n or about between August 28, 2018, and August 29, 2018.” 	(Doc.
31 at p. 4-5). 	Jesse Sierra has proffered no facts to demonstrate how both
Counts VII and XI were factually the same, in that they resulted from the same
exact conduct, even if he could demonstrate that they were legally the same.
Subsequently, this court is left with no facts to determine whether or not
separate instances of kidnapping and interstate domestic violence occurred
over the two-day period charged in the indictment.
Accordingly, this court holds Counts VII and X are not multiplicitous.
However, even if the Eighth Circuit were to later determine that Kidnapping
and Interstate Domestic Violence are the same as a matter of law, because
Jesse Sierra failed meet his burden in demonstrating that the two charges are
the same in fact, this court’s holding would remain unchanged.
E. 	Counts IX and XI are not Multiplicitous
Finally, Jesse Sierra argues Counts IX and XI are multiplicitous.4 Count
IX charges Assault Resulting in Serious Bodily Injury in violation of 18 U.S.C.
§§ 113(a)(6) and 1153. 	Count XI charges Assault by Strangulation of a Dating
4 Jesse Sierra’s motion as it pertains to Counts IX and XI incorrectly references violations of 18
U.S.C. §§ 2241 and 2242. (Doc. 72 at p. 3). The motion also references the correct statutes for
Counts IX and XI, which is 18 U.S.C. §§ 113(a)(6) and 113(a)(8), respectively. The court
presumes the references to 18 U.S.C. §§ 2241 and 2242 to be a typographical error.
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Partner in violation of 18 U.S.C. §§ 113(a)(8) and 1153. 	Both counts are
alleged to have occurred on or about between the dates of August 28, 2018,
and August 29, 2018, inclusive. 	(Doc. 31). 	Jesse Sierra’s arguments for
Counts IX and XI mirror the multiplicity arguments made regarding Counts V
and VI. 	This court has already addressed the difference in elements between
18 U.S.C. §§ 113(a)(6) and 113(a)(8), supra in Section I.C, and will not repeat
that analysis here. 	As a matter of law, Counts XI and XI are not the same.
Additionally, Jesse Sierra again provides no factual background for the
court to determine the charges resulting from August of 2018 are the same as
a matter of law and fact. 	However, even if Jesse Sierra had proffered evidence
that it was the same conduct that formed the basis of both charges, such an
argument would fail because, as a matter of law, each charge requires proof of
an element that the other does not. 	It makes no difference whether the same
conduct proves both offenses, because the Blockburger test is a two-prong test
that requires a showing that two charges are the same not just in fact, but also
in law.5 Defendant has failed to meet his burden on both prongs of the
5 The court is not aware whether or not the same conduct does in fact form the basis for both
charges. Likewise, it is not entirely clear if Jesse Sierra is making the argument in his motion
that two charges, each of which has an element that the other does not, are still multiplicitous
if the same conduct forms the basis for both. Rather, for purposes of a thorough analysis, the
court addresses the potential argument because the indictment charges Counts IX and XI over
a limited period, a two day-span in August of 2018. Therefore, it is possible that the same
conduct does form the basis of both charges. Regardless, if Defendant is making such an
argument, it would be without merit. Although the “same conduct” rule was at one time in
effect, such a rule has been expressly overruled by the Supreme Court in support of
Blockburger as the sole test for double jeopardy. See United States v. Dixon, 509 U.S. 688,
704 (1993) (overruling Grady v. Corbin, 495 U.S. 508 (1990)) (“The ‘same-conduct’ rule [Grady]
announced is wholly inconsistent with earlier Supreme Court precedent and with the clear
common-law understanding of double jeopardy.); Dixon, 509 U.S. at 704 (quoting Gavieres v.
United States, 220 U.S. 338, 345 (1911)) (“While it is true that the conduct of the accused was
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Blockburger test. 	Accordingly, the court holds Counts IX and XI are not
multiplicitous.
CONCLUSION
For the foregoing reasons, it is respectfully recommended that
Defendants’ Motions to Dismiss (Docs. 71, 73) be denied.
NOTICE TO PARTIES
The parties have fourteen (14) days after service of this Report and
Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. 	Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific in order to require de novo review by the
District Court. 	Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED this 9th day of March, 2020.
BY THE COURT:
DANETA WOLLMANN
United States Magistrate Judge
one and the same, two offenses resulted, each of which had an element not embraced in the
other.”).
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