United States District Court, D. Nevada
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).
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).
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.
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.
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
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.
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.
Motion to dismiss
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).
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).
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).
the Blockburger test applies, as defendant was
convicted under separate statutory provisions. See United
States v. Kimbrew, ...