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United States v. Ausbie

United States District Court, D. Nevada

December 29, 2017

UNITED STATES OF AMERICA, Plaintiffs,
v.
JOEL KENNETH AUSBIE, Defendants.

          ORDER

         Presently before the court is defendant Joel Ausbie's motion to dismiss. (ECF No. 133). The government filed a response (ECF No. 147), to which defendant replied (ECF No. 148).

         Also before the court is defendant's motion for a new trial. (ECF No. 138). The government filed a response (ECF No. 150), to which defendant replied (ECF No. 151).

         I. Facts

         On October 3, 2015, co-conspirator Calvin Robinson visited the shared home of defendant and Nicomi Sasser. (ECF No. 147). Robinson brought a black duffel bag containing approximately $250, 000 in cash, and left it at the residence. Id. The next day, after a domestic dispute, Sasser fled the shared home with her youngest son and took the duffel bag. Id. She fled California and rented a storage locker in Buckeye, Arizona. Id. She placed $190, 000 in the duffel bag and left it in the locker. She thereafter travelled to San Antonio, Texas. Id.

         After realizing that the duffel bag was gone, defendant demanded the return of his money by placing phone calls and sending text messages to Sasser. Id. Sasser texted defendant information regarding the location of the duffel bag and the storage locker code. Id. Cell phone analysis shows that a phone subscribed to Robinson travelled to Buckeye, Arizona, on October 16, 2015. Id.

         During this time period Nicomi Sasser's father, Joseph Sasser, and stepmother, Debra Sasser, lived in a trailer-residence in Las Vegas, Nevada. Id. On October 20, 2015, at 1:00 am, the couple woke up to gunshots and the sound of breaking glass. Id. Joseph Strickland, a co-conspirator, testified that an individual known as “H.B.” hired him (on behalf of defendant) to shoot a firearm into the home of Joseph and Debra Sasser. Id. Strickland also testified that he was instructed to throw a note into the window of the residence. Id. The note requested the return of the money, and stated that if it was not returned the author would kill members of Sasser's family. Id.

         After the incident, Joseph Sasser spoke with his daughter, who told him about the money and defendant's demand that it be returned. Id. Joseph Sasser contacted defendant and told defendant that he did not have the money and did not know where his daughter was. Id. Thereafter, Joseph Sasser began receiving threatening text messages, including messages threatening the life of his wife Debra. Id. Cell phone records indicate that during this time frame defendant communicated with Strickland and Robinson regarding plans to set fire to a building. Id.

         On October 30, 2015, Strickland set fire to Joseph Sasser's business (Las Vegas Kettle Corn & Special Events, LLC). Id. Robinson, acting on behalf of defendant, had paid Strickland to set fire to the building. Id. After the fire, defendant texted Strickland to make plans to burn down Joseph Sasser's other store. Id. Before these plans could materialize, law enforcement officers arrested defendant. Id.

         II. Discussion

         a. Motion to dismiss

         Defendant argues that the court should dismiss the superseding indictment in the case, or alternatively should dismiss count one of the superseding indictment. (ECF No. 133). Defendant asserts that the charges in the superseding indictment are multiplicitous and violate the double jeopardy clause of the constitution. Id. Accordingly, defendant argues that the counts should merge for purposes of sentencing. Id. The government responds that the indictment and convictions do not violate the double jeopardy clause, as each count requires proof of a fact that the other count does not. (ECF No. 147).

         The double jeopardy clause protects against a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989).

         “An indictment is multiplicitous if it charges a single offense in several counts.” United States v. Rude, 88 F.3d 1538, 1546 (9th Cir. 1996). To assess whether two statutory provisions penalize the same offense, the court must determine “whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (9th Cir. 1932).

         Here, the Blockburger test applies, as defendant was convicted under separate statutory provisions. See United States v. Kimbrew, ...


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