               Case: 16-12863       Date Filed: 06/14/2019      Page: 1 of 27


                                                                     [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 16-12863
                              ________________________

                     D.C. Docket No. 8:15-cv-00185-VMC-TBM



GLEN T. JONES, JR.,

                                                        Petitioner - Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

                                                        Respondent - Appellee.

                              ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                           ________________________

                                      (June 14, 2019)

Before JORDAN and ROSENBAUM, Circuit Judges, and MARTINEZ, * District
Judge.

PER CURIAM:

*
 Honorable Jose E. Martinez, United States District Judge for the Southern District of Florida,
sitting by designation.
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      The language of the Double Jeopardy Clause of the Fifth Amendment—

“[N]or shall any person be subject for the same offence to be twice put in jeopardy

of life or limb,” U.S. Const. amend. V—appears simple on its face. But as Justice

Rehnquist once remarked, “the decisional law in the area is a veritable Sargasso Sea

which could not fail to challenge the most intrepid judicial navigator.” Albernaz v.

United States, 450 U.S. 333, 343 (1981). Today we confront a double jeopardy

scenario which is, as far as we can tell, infrequent.

      Glen Jones, a Florida prisoner proceeding pro se, filed a habeas corpus petition

in the district court pursuant to 28 U.S.C. § 2254. As relevant here, he argued that

his two identically-worded convictions for unlawful sexual activity with a minor,

see Fla. Stat. § 794.05 (2006), violated the prohibition against double jeopardy. The

district court rejected Mr. Jones’ double jeopardy claim on two grounds. First, it

ruled that, as the state post-conviction court had found, the claim was procedurally

defaulted. Second, it concluded alternatively that the claim failed on the merits.

      We granted Mr. Jones a certificate of appealability on the double jeopardy

claim, appointed counsel for him, and have now had the benefit of oral argument.

We conclude that Mr. Jones’ double jeopardy claim was not procedurally barred. On

the merits, we disagree in part with the district court and hold that the circumstances

surrounding Mr. Jones’ two convictions do create a double jeopardy concern—the

inability of Mr. Jones to plead estoppel in a future similar prosecution due to his


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inability to know which instances of conduct formed the basis of the jury verdict.

But we do not grant Mr. Jones habeas relief because he cannot demonstrate prejudice

under Brecht v. Abrahamson, 507 U.S. 619 (1993). Briefly stated, the evidence at

trial was sufficient to allow the jury to convict Mr. Jones of two separate instances

of unlawful sexual activity with a minor, and the statute of limitations has run on

any future prosecution for similar conduct with the same minor—the type of

prosecution which might pose double jeopardy problems. We therefore affirm the

district court’s denial of Mr. Jones’ habeas petition.

                                           I

      Beginning in 2005, Mr. Jones, then 45 years old, began a sexual relationship

with his daughter’s 16-year-old friend, H.R.        In November of that year, law

enforcement began to investigate the relationship after Florida’s Department of

Children and Families received a tip detailing inappropriate conduct between the

two. H.R. initially denied having an inappropriate relationship with Mr. Jones, but

later admitted to the relationship in February of 2006 once police learned she had

become pregnant. In March of 2006, authorities arrested Mr. Jones and charged him

by information with two counts of unlawful sexual activity with a minor. H.R. gave

birth in August of 2006 and DNA testing confirmed that Mr. Jones was the child’s

father.




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      Mr. Jones proceeded to trial in September of 2007. By this time, the state had

filed its third amended information, charging Mr. Jones with committing the same

statutory offense in two nearly-identical counts:

      1) UNLAWFUL SEXUAL ACTIVITY WITH A MINOR
      2) UNLAWFUL SEXUAL ACTIVITY WITH A MINOR

      In the Name and by Authority of the State of Florida:

      [COUNT 1:] JERRY HILL, State Attorney for the Tenth Judicial
      Circuit, by and through his undersigned Assistant State Attorney,
      charges that GLEN T JONES between June 1, 2005 and February 2,
      2006, in the County of Polk and State of Florida, did, on one or more
      occasions, while 24 years of age or older, engage in sexual activity with
      [H.R.], a person 16 or 17 years of age, by uniting or penetrating the
      vagina of [H.R.], with the sexual organ of GLEN T JONES, contrary to
      Florida Statute 794.05. (2 DEG FEL) (LEVEL 6)

      COUNT 2: Informant aforesaid, under oath, further information makes
      that GLEN T JONES between June 1, 2005 and February 2, 2006, in
      the County of Polk and State of Florida, GLEN T JONES did, on one
      or more occasions, while 24 years of age or older, engage in sexual
      activity with [H.R.], a person 16 or 17 years of age, by uniting or
      penetrating the vagina of [H.R.] with the sexual organ of GLEN T
      JONES, contrary to Florida Statute 794.05. (2 DEG FEL) (LEVEL 6)

Not only did the counts have virtually identical language, each one of them alleged

one or more instances of unlawful conduct.

      At trial, the parties did not dispute that Mr. Jones had some sexual contact

with H.R. Rather, the dispute was over how many episodes of sexual contact there

were, when they occurred, and the circumstances under which they took place.




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      H.R. testified that she and Mr. Jones had sexual relations on several occasions

and, although she did not provide specific dates, described the instances in some

detail. The first instance occurred at nighttime while she was having a sleepover

with Mr. Jones’ daughter. H.R. explained that Mr. Jones came into the room where

she was sleeping, woke her up, and told her to come with him to his bedroom. She

followed him and, once they got to his bedroom, the pair began to have sex. The

second instance, H.R. said, was some time later when she had another sleepover with

Mr. Jones’ daughter. H.R. described a third instance which followed the same

pattern, except that this time the sex was unprotected. A fourth instance, according

to H.R., occurred behind a Walgreens in Mr. Jones’ truck after he picked her up from

work at Checkers. Although H.R. was unsure of dates, she testified that there were

“a few other times” after that when the pair had sex. So, if H.R.’s testimony was

credited, Mr. Jones had sex with her five or six times.

      H.R. explained that she became pregnant sometime in October or November

of 2005 and gave birth to a baby girl in August of 2006. On cross-examination, H.R.

acknowledged that she was unsure of details regarding the specific instances of when

she and Mr. Jones had sex. She agreed with the prosecutor on re-direct, however,

that they had sex on “numerous occasions.”

      The prosecution introduced a recorded phone call that H.R. made to Mr. Jones

on February 27, 2006, while being supervised by detectives. The call began with


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H.R. asking why Mr. Jones had suggested that she have an abortion. Mr. Jones

denied being the father, stating “[y]ou and I did not have any sex for 38 days before

[an estimated conception date], and we didn’t have any sex for 36 days after that.”

H.R. responded that she only remembered them having sex “four times” and then

asked Mr. Jones if he remembered the specific dates, to which Mr. Jones responded

that he did. He stated that they had sex in November (of 2005) and also on January

16, 2006. The conversation was then abruptly cut short by Mr. Jones, who asked

H.R. to call him back later that night.

      Before concluding its case, the prosecution introduced the testimony of a

crime lab technician from the Florida Department of Law Enforcement.               He

explained that DNA analysis had identified Mr. Jones as the father of H.R.’s

daughter.

      Mr. Jones testified in his own defense. He stated that he and H.R. had possible

sexual contact one time, on October 21, 2005, which H.R. initiated.       According to

Mr. Jones, he was asleep in his locked bedroom and woke up at 4 a.m. to find H.R.

nude in his bed and on top of him. He testified that he was wet and assumed that the

fluid was from H.R.’s vagina. He also said that he had an erection, but could not

confirm whether he had ejaculated. Mr. Jones confronted H.R. and told her to get

dressed and leave his room, which she did after resisting.




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      Closing arguments were brief. The prosecutor did not attempt to identify or

specify which two instances of unlawful sexual activity Mr. Jones was guilty of. Nor

did the prosecutor parse out each individual instance. Instead, he explained that the

evidence showed that H.R. “had sexual intercourse with the defendant numerous

times.” The only specific instance discussed was the October 2005 episode of sexual

contact that Mr. Jones admitted to (although he claimed to have slept through the

event). The prosecutor also argued that conception occurred in November or

December of 2005 and that, based on this evidence “there was more than one

incidence of sexual activity with the victim . . . it happened more than on one

October.” Mr. Jones’ counsel gave a very brief argument, explaining that the jury

would have to “decide who to believe”—Mr. Jones or H.R.

      The trial court then instructed the jury. Although told that the verdict must be

unanimous, that each count had to be “considered separately, and a separate verdict

returned as to each,” the jury was not instructed that it had to agree on the specific

instances of sexual activity or which instance was being charged in which count.

The jury was only instructed that it must find that the state proved three elements

beyond a reasonable doubt: (1) that H.R. was 16 or 17 years of age; (2) that Mr.

Jones was age 24 or older; and (3) that Mr. Jones engaged in sexual activity in which

his sexual organ penetrated or had union with the vagina of H.R.          The    jury

returned a verdict that same afternoon, finding Mr. Jones “Guilty of Unlawful Sexual


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Activity with a Minor” on both charges in a general verdict form. The verdict form

did not ask for, and the jury did not provide, findings as to which instances of sexual

activity formed the basis for the guilty verdicts. The trial court sentenced Mr. Jones

to 15 years’ imprisonment on Count One and a consecutive term of 15 years’

probation on Count Two.

      Mr. Jones pursued a direct appeal and sought post-conviction relief, all

without success. On September 14, 2012, Mr. Jones filed a pro se motion to correct

an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). In that

motion, he argued that his two convictions violated the Double Jeopardy Clause

under the United States and Florida Constitutions. The state post-conviction court

construed Mr. Jones’ motion as one challenging the sufficiency of the evidence and

struck it because Rule 3.800(a) could not be used to mount sufficiency challenges to

the evidence. Mr. Jones appealed that order to the state intermediate appellate court,

which summarily affirmed.

      Mr. Jones, still proceeding pro se, raised his double jeopardy claim (among

others) in his federal petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254. The district court denied relief on this claim, concluding that the state court

had applied a procedural bar, and that bar prevented review. Alternatively, the

district court denied relief on the merits, holding that nothing prevented the state

from bringing a separate charge for each violation of the statute.


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       Mr. Jones appealed. As noted, we granted him a COA on his double jeopardy

claim and appointed counsel to represent him on appeal. We thank counsel for his

able service to Mr. Jones and to the court.1

                                                II

       “Under the doctrine of procedural default, a federal habeas court will not

review a claim rejected by a state court ‘if the decision of [the state] court rests on a

state law ground that is independent of the federal question and adequate to support

the judgment[.]’” Conner v. Hall, 645 F.3d 1277, 1287 (11th Cir. 2011) (quoting

Coleman v. Thompson, 501 U.S. 722, 729 (1991)). See also Davila v. Davis, 137 S.

Ct. 2058, 2064 (2017) (“[A] federal court may not review federal claims that were

procedurally defaulted in state court—that is, claims that the state court denied based

on an adequate and independent state procedural rule.”). A state bar, however, must

be adequate and independent. See Spencer v. Kemp, 781 F.2d 1458, 1470–71 (11th

Cir. 1986) (en banc) (“It is a dominant theme of the Supreme Court case law . . . that

a federal habeas petitioner shall not be denied federal review of a federal




1
  In the brief that he has filed on behalf of Mr. Jones, counsel makes an additional argument. He
contends that Count One is duplicitous because it improperly charges more than one offense. See
generally United States v. Chrane, 529 F.2d 1236, 1237 n.3 (5th Cir. 1976) (explaining the concept
of duplicity). The argument is not without some force, but we decline to address it for two reasons.
First, Mr. Jones did not raise a duplicity claim in the state court, and therefore has not exhausted
such a claim. See 28 U.S.C. § 2254(b)(1)(A). Second, Mr. Jones did not raise a duplicity argument
in the district court, and normally issues cannot be raised for the first time on appeal.

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constitutional claim on the basis of an asserted state procedural ground that is

manifestly unfair in its treatment of that claim.”).

      The “adequacy of state procedural bars to the assertion of federal questions is

itself a federal question.” Douglas v. Alabama, 380 U.S. 415, 422 (1965). We apply

a three-part test to determine adequacy. See Judd v. Haley, 250 F.3d 1308, 1313

(11th Cir. 2001) (citing Card v. Dugger, 911 F.2d 1494, 1516–17 (11th Cir. 1990)).

First, the state court must “clearly and expressly state that it is relying on state

procedural rules to resolve the federal claim without reaching the merits of that

claim.” Id. Second, the state court decision must rest “solidly on state law grounds,

and may not be intertwined with an interpretation of federal law.” Id. (quotation

marks omitted). Third, “the state procedural rule must be adequate; i.e., it must not

be applied in an arbitrary or unprecedented fashion.” Id. “The state court’s

procedural rule cannot be ‘manifestly unfair’ in its treatment of the petitioner’s

federal constitutional claim to be considered adequate for the purposes of the

procedural default doctrine.” Id. (quoting Card, 911 F.2d at 1517).

      Mr. Jones’ pro se Rule 3.800(a) motion made clear that he was raising a

double jeopardy challenge—and not a sufficiency challenge—to his convictions.

The motion referred to double jeopardy on six of its seven pages (often multiple

times on a page). For example, the motion stated that “[d]ual sentences for the two

offenses charged in this case, were imposed in violation of Defendant’s right to be


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free of Double Jeopardy,” that “[t]he constitutional guarantee against double

jeopardy, prohibits [ ] multiple convictions that are not sufficiently discrete to be

deemed separate offenses,” and that his “convictions . . . for two (2) counts of alleged

sexual battery violated Double Jeopardy, because the charging information did not

include language clearly predicating the disputed charges in the distinct alleged sex

acts[.]” The motion cited the Fifth Amendment and relevant case law, including one

of the seminal Supreme Court cases interpreting the Double Jeopardy Clause,

Blockburger v. United States, 284 U.S. 299, 304 (1932), and described its “same

elements” test. It also cited Florida cases finding double jeopardy violations in

sexual battery cases. See, e.g., Gisi v. State, 909 So. 2d 531, 533 (Fla. 2d DCA 2005)

(“The constitutional guarantee against double jeopardy prohibits multiple

convictions for lewd and lascivious acts that are not sufficiently discrete to be

deemed separate offenses.”).

      The state post-conviction court issued a short order striking Mr. Jones’ Rule

3.800(a) motion:

      Though Defendant couches his claim in the language of double
      jeopardy, a review of the Motion indicates that he is actually claiming
      that the State did not adequately prove multiple sexual episodes within
      the time frame alleged. This is not cognizable in a motion pursuant to
      Rule 3.800(a). Furthermore, this Court has already addressed this issue
      in its Order issued on August 23, 2012.

Mr. Jones does not deny that this procedural ground was independent, so the only

question is whether it was adequate. We hold that it was not.
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      The procedural default rule applies “where the state court correctly applies a

procedural default principle of state law[.]” Bailey v. Nagle, 172 F.3d 1299, 1302

(11th Cir. 1999) (emphasis added). Accordingly, “[t]he procedural default doctrine

self-evidently is limited to cases in which a ‘default’ actually occurred—i.e., cases

in which the prisoner actually violated the applicable state procedural rule.” 2 Randy

Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 26.2[c]

(7th ed. 2017). See also Sivak v. Hardison, 658 F.3d 898, 907 (9th Cir. 2011) (“[W]e

follow the Supreme Court and our sister circuits in holding that an erroneously

applied procedural rule does not bar federal habeas review.”); Mapes v. Coyle, 171

F.3d 408, 429 (6th Cir. 1999) (finding a procedural bar inadequate where the issue

was raised but the state court erroneously refused to consider it); Kubat v. Thieret,

867 F.2d 351, 366 n.11 (7th Cir. 1989) (finding a procedural bar inadequate where

the state court ruled that the petitioner waived the claim but the “record clearly

show[ed] . . . that [petitioner] did in fact raise and argue the issue”); Walker v. Engle,

703 F.2d 959, 966 (6th Cir. 1983) (“We believe that when a state appellate court

applies a procedural bar that has no foundation in the record or state law, the federal

courts need not honor that bar.”); Brian R. Means, Federal Habeas Manual § 9B:12

(2018 ed.) (“It probably goes without saying that application of the procedural

default doctrine depends on the petitioner having actually violated the applicable

state procedural rule.”).


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      The state post-conviction court’s failure to recognize that Mr. Jones raised a

federal double jeopardy claim is difficult to understand given the extent to which he

described that challenge, with pertinent authority, in his motion. A state court does

not correctly apply a procedural bar by characterizing a petitioner’s motion as

something that it is not. See Mapes, 171 F.3d at 429. See also Douglas, 380 U.S. at

420–23 (finding Alabama procedural bar “plainly inadequate” where defense

counsel made objections to subject matter and in “light of th[e] record it [wa]s

difficult to understand the Court of Appeals’ conclusion” that the claim was

defaulted by counsel’s failure to object to each and every question). By failing to

recognize that Mr. Jones had raised a federal double jeopardy claim, by incorrectly

characterizing that claim into a different sufficiency of the evidence claim, and by

applying a procedural bar to the re-characterized claim, the state post-conviction

court acted in a way that was “manifestly unfair in its treatment of [Mr. Jones’]

federal constitutional claim.” Judd, 250 F.3d at 1313 (citing Card, 911 F.2d at 1517)

(quotation marks omitted). The procedural bar is therefore inadequate. See id. at

1318 (finding manifestly unfair the application of a state procedural bar where “[t]he

court misconstrued federal law in finding the record insufficient for a consideration

of Judd’s appeal on the merits”).

      In its brief, the state tellingly does not argue that the state post-conviction

court properly construed Mr. Jones’ Rule 3.800(a) motion as one challenging the


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sufficiency of the evidence. The state does, however, argue that Mr. Jones’ claim is

still procedurally barred because a double jeopardy challenge has to be made through

a Rule 3.850 motion—not a Rule 3.800(a) motion. This newly-minted argument

fails for two reasons.

       First, we reject the state’s contention that the state post-conviction court’s

order can be read to have denied Mr. Jones’ claim on the ground that double jeopardy

challenges are not cognizable under Rule 3.800(a). To begin, the text of the court’s

order says otherwise. And because the state intermediate appellate court issued a

summary affirmance of that order, we “‘look through’ the unexplained decision to

the last related state-court decision that does provide a relevant rationale,” and

assume that it “adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188,

1192 (2018). The state presents no argument to rebut the Wilson presumption, and

the record reveals none.

      Second, we decline to consider this additional procedural bar because the state

raises it for the first time on appeal. Critically, Florida “failed to raise th[at] defense

. . . in the district court, and the court did not bring it up either.” Howard v. United

States, 374 F.3d 1068, 1073 (11th Cir. 2004). The state cannot “benefit[ ] now from

a defense it did not raise then.” Id. See also Smith v. Sec’y, Dep’t of Corr., 572 F.3d

1327, 1340 (11th Cir. 2009) (“If . . . the petitioner did raise the claim in the state

courts but not at the time or in the manner required by state procedural rules, the


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resulting procedural bar defense may be waived by the [s]tate’s failure to assert it.”).

Regardless of the validity of its new procedural default argument—which the parties

dispute—the state was “obligated to raise and preserve” it below or “lose the right

to assert the defense thereafter.” Trest v. Cain, 522 U.S. 87, 89 (1997) (alterations

adopted and quotation marks omitted).

                                          III

      We review the denial of a writ of habeas corpus de novo. See Muhammad v.

Sec’y, Fla. Dep’t of Corr., 733 F.3d 1065, 1071 (11th Cir. 2013). The state post-

conviction court rejected Mr. Jones’ double jeopardy claim on an inadequate and

erroneous procedural ground and accordingly never reached the merits of that claim.

Because we have concluded that the state post-conviction court incorrectly applied

a procedural bar to the double jeopardy claim, we review that claim de novo and do

not apply AEDPA’s deferential standard of review, as set forth in 28 U.S.C. §

2254(d). See, e.g., Williams v. Alabama, 791 F.3d 1267, 1273 (11th Cir. 2015).

                                           A

      The Supreme Court summarized the “three separate constitutional

protections” of the Double Jeopardy Clause in North Carolina v. Pearce, 395 U.S.

711, 717 (1969), overruled in part on other grounds by Alabama v. Smith, 490 U.S.

794 (1989): “It protects against a second prosecution for the same offense after

acquittal. It protects against a second prosecution for the same offense after


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conviction. And it protects against multiple punishments for the same offense.” In

order to protect against a future prosecution for the same offense, an indictment must

be specific enough to enable a defendant to “plead an acquittal or conviction in bar

of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87,

117 (1974). See also United States v. Pease, 240 F.3d 938, 943 (11th Cir. 2001).

      In a situation like that of Mr. Jones, where there is a post-trial double jeopardy

challenge to multiple convictions under the same statute, we look beyond the

elements of the offense and “examine the trial record to resolve a double jeopardy

claim.” United States v. Fiallo-Jacome, 784 F.2d 1064, 1066 (11th Cir. 1986)

(reviewing the evidence at trial to answer the “crucial factual question” of whether

the defendant “continuously possessed cocaine or whether he had it in his possession

on two distinct occasions”). See also United States v. Jones, 601 F.3d 1247, 1259

(11th Cir. 2010) (relying on a verdict form, which required the jury to make special

findings, and the evidence at trial to reject the defendant’s argument that his

convictions were multiplicitous). Take, for example, United States v. Bonavia, 927

F.2d 565 (11th Cir. 1991). Bonavia was charged and convicted of three counts of

possession of a firearm by a convicted felon under the same statute, 18 U.S.C. §

1202(a)(1).    The government conceded that some of the convictions were

multiplicitous, but argued that the convictions on the other counts were still valid

because each “allege[d] a separate and distinct possession which support[ed] a


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separate conviction and sentence.” Id. at 568. We first determined the permissible

“unit of prosecution,” and agreed with the government that “if evidence presented at

trial establishes that [the] defendant, at some point in the period covered by the

indictment, separated one of the weapons charged in the indictment and possessed

that weapon separately . . . the government may treat that weapon as a separate unit

of prosecution.” Id. at 569. We then reviewed the trial testimony and determined

that it established two separate instances of possession, thus supporting the

convictions on two of the three counts. See id. at 569–70. We reversed the third,

multiplicitous count. Id. at 571.

      Faced with a similar challenge, the Fifth Circuit succinctly explained the

appropriate mode of analysis. The test is identical to the analysis we undertook in

Bonavia, so we borrow its simple formulation here. “First, we look to the statute

charged to ascertain the ‘allowable unit of prosecution,’ or the actus reus of the crime

. . . . Second, we review the evidence to see how many distinct criminal acts the

defendant committed.” United States v. Woerner, 709 F.3d 527, 539–40 (5th Cir.

2013) (concluding that counts were not multiplicitous because the evidence showed

that the defendant possessed separate devices containing child pornography and the

images contained in those devices were downloaded through different transactions

on different dates). Accord Bonavia, 927 F.2d at 568–70 (first determining the




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allowable “unit of prosecution” and then reviewing trial evidence to determine if it

supported multiple convictions).

                                          B

       We now apply this test. Because Mr. Jones was convicted of unlawful sexual

activity with a minor, in violation of Fla. Stat. § 794.05, we look to that statute to

determine the allowable unit of prosecution. Once the legislature “has defined a

statutory offense by its prescription of the ‘allowable unit of prosecution,’ that

prescription determines the scope of protection afforded by a prior conviction or

acquittal.” Sanabria v. United States, 437 U.S. 54, 69–70 (1978) (citations omitted).

“Whether a particular course of conduct involves one or more distinct ‘offenses’

under the statute depends on this congressional choice.” Id. at 70. See also Brown

v. Ohio, 432 U.S. 161, 165 (1977) (“The legislature remains free under the Double

Jeopardy Clause to define crimes and fix punishments[.]”).

      The Florida legislature’s choice is clear. As relevant here, § 794.05(1)

prohibited “[a] person 24 years of age or older” from engaging in “sexual activity

with a person 16 or 17 years of age,” and criminalized each prohibited sexual act, as

defined in the statute. See Terry v. State, 224 So. 3d 763, 764 (Fla. 4th DCA 2017)

(affirming convictions for 13 counts of violating § 794.05); Jones v. State, 127 So.

3d 622, 623 (Fla. 4th DCA 2013) (affirming multiple convictions under § 794.05

based on three separate occasions in which the defendant and the minor victim


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engaged in sexual intercourse). We note, as well, that Florida courts have considered

the lewd and lascivious battery statute, Fla. Stat. § 800.04—which prohibits certain

“sexual activity” using identical terms as § 794.05—to permit punishment for each

distinct “episode” or incident of unlawful sexual activity. See Robinson v. State, 881

So. 2d 29, 30 (Fla. 1st DCA 2004); State v. Dell’Orfano, 651 So. 2d 1213, 1215–16

(Fla. 4th DCA 1995). Mr. Jones could therefore be convicted for each distinct

incident of prohibited sexual activity with H.R.

      We now review the evidence and trial record “to see how many distinct

criminal acts [Mr. Jones] committed.” Woerner, 709 F.3d at 539–40. The state

contends that there is no double jeopardy problem because the evidence presented at

trial established “many” incidents of unlawful sexual activity. We agree with this

assessment of the evidence: H.R.’s testimony at trial permitted the jury to find that

she and Mr. Jones had sex at least five (and maybe six) times; in the recorded call

that was introduced by the prosecution, Mr. Jones admitted to having had sex with

H.R. on two occasions within the time period set forth in the information; and there

was evidence that Mr. Jones was the father of H.R.’s child. As we have said,

“separate punishments for factually separate although statutorily identical crimes do

not raise double jeopardy concerns, even where the same victim is involved.”

Williams v. Singletary, 78 F.3d 1510, 1514 n.1 (11th Cir. 1996).




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      The issue here, however, does not concern sufficiency of the evidence. The

problem is that nothing in the record—not the information, not the jury instructions,

not the prosecutor’s closing argument, and not the jury’s general verdict—identify

which two instances the jury found Mr. Jones guilty of. The state did not answer

this question in its brief and, most troubling, was unable to identify which two

instances the jury found Mr. Jones guilty of when pressed several times at oral

argument. See Rec. of Oral Argument at 25:52–29:59.

      This uncertainty raises a significant double jeopardy concern. The Double

Jeopardy Clause protects “against multiple punishments for the same offense” and

“against a second prosecution for the same offense after conviction.” Pearce, 395

U.S. at 717. See also Green v. United States, 355 U.S. 184, 187 (1957) (“The

constitutional prohibition against ‘double jeopardy’ was designed to protect an

individual from being subjected to the hazards of trial and possible conviction more

than once for an alleged offense.”). These protections inherently require that

everyone know which instances Mr. Jones was convicted of so that he can raise a

double jeopardy bar to future prosecutions under § 794.05 for similar conduct. Yet

here no one—including the state—knows (or can reasonably determine) what

specific instances of sexual conduct Mr. Jones was convicted of. Any attempt to

come up with an answer would be based on guesswork.




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      In this respect, the Sixth Circuit’s decision in Valentine v. Konteh, 395 F.3d

626 (6th Cir. 2005), although decided on due process grounds, is instructive. There,

the defendant was convicted of 40 counts of sexual abuse, including 20 “carbon

copy” counts of child rape, “each of which was identically worded so that there was

no differentiation among the charges,” and 20 similarly identical counts of felonious

sexual penetration.    See id. at 628.    The lone child victim testified that the

undifferentiated offenses took place a number of times (“about 20” times, “about

15” times, “about 10” times) and described the typical abuse scenarios.

      Even applying AEDPA deference, the Sixth Circuit vacated all but one of the

defendant’s multiple convictions for child rape and all but one of the multiple

convictions for sexual penetration because “[d]ue process [ ] requires that criminal

charges provide criminal defendants with the ability to protect themselves from

double jeopardy.” Id. at 634. The identically-worded counts, combined with the

victim’s testimony, posed two related problems: “First, there was insufficient

specificity in the indictment or in the trial record to enable Valentine to plead

convictions or acquittals as a bar to future prosecutions. Second, the undifferentiated

counts introduced the very real possibility that Valentine would be subject to double

jeopardy in his initial trial by being punished multiple times for what may have been

the same offense.” Id. at 634–35.




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      The second double jeopardy problem identified in Valentine does not present

the same danger here. As we have already explained, in this case—unlike the

situation in Valentine—sufficient evidence establishes the two violations that were

charged against Mr. Jones. But Mr. Jones’ convictions do present the first double

jeopardy problem. As in Valentine, “[w]e cannot be sure what double jeopardy

would prohibit because we cannot be sure what factual incidents were presented and

decided by this jury.” 395 F.3d at 635. We are therefore convinced that, given the

lack of any distinction presented in the information, the trial record, or the jury’s

verdict, Mr. Jones’ multiple convictions for identically-worded counts spanning the

same period of time create a double jeopardy problem.

      The state urges us to ignore the vagueness in the information, the lack of

precision in the trial record, and the lack of specificity in the verdict form because

child victims are often unable to provide precise dates of abuse. We recognize this

evidentiary concern, as have Florida courts. See State v. Dell’Orfano, 651 So. 2d

1213, 1214 (Fla. 2d DCA 1995). See generally Lindsay Wandrey et al., Maltreated

Children’s Ability to Estimate Temporal Location and Numerosity of Placement

Changes and Court Visits, 18 Psychol. Pub. Pol’y & L. 79, 98–99 (2012)

(summarizing scientific research establishing that “it may be unrealistic to assume

that children will be able to provide temporal estimates of abuse”); Elaine R.

Cacciola, The Admissibility of Expert Testimony in Intrafamily Child Sexual Abuse


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Cases, 34 UCLA L. Rev. 175, 176 n.12 (1986) (“One significant problem with child

witnesses is that they have difficulty testifying as to when an incident occurred.”).

The requirement of some differentiation between incidents, however, is not an

“insuperable obstacle.”     Currier v. Virginia, 138 S. Ct. 2144, 2149 (2018).

Confronted with the same argument in Valentine, the Sixth Circuit explained:

      The Constitution does, however, demand that if a defendant is going to
      be charged with multiple counts of the same crime, there must be some
      minimal differentiation between the counts at some point in the
      proceeding. Without such differentiation, these prosecutions would
      reduce to nothing the constitutional protections of the Fifth and
      Fourteenth Amendment.

Valentine, 395 F.3d at 638.

      The record in this case reveals several ways in which Mr. Jones’ right to be

free from double jeopardy could have been protected, even without H.R. providing

specific dates of the instances of sexual contact. First, the state could have chosen

to rely on just two of the instances related by H.R., and told the jury in closing what

those instances were. Had the prosecution done that, it likely would have been

possible to reasonably conclude that those two instances were the ones supporting

the convictions, and this would have allowed Mr. Jones to plead a double jeopardy

bar if he were charged in the future of having had prohibited sexual contact with

H.R. during the same period of time. See United States v. Halliday, 672 F.3d 462,

471 (7th Cir. 2012) (explaining, under plain error review of double jeopardy

challenge to convictions for receipt and possession of child pornography, that
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“[d]espite the deficiencies in the indictment, the prosecutor’s statements and the

evidence at trial showed that there were different download dates and therefore

separate conduct”). Second, the state could have differentiated between counts

based upon H.R.’s description of where they were committed, (e.g., “behind

Walgreens” to identify the fourth instance), or an identifying feature about it (e.g.,

“the time the pair engaged unprotected sex” to identify the third instance). See

Hardy v. Beightler, 538 F. App’x 624, 629 (6th Cir. 2013) (finding no double

jeopardy problem despite identically-worded counts because “[o]n several

occasions, the prosecution was careful to explain to the jury the differences between

the identical rape counts and the identical kidnapping counts”); Valentine, 395 F.3d

at 637 (explaining that differentiation could be established with reference to “certain

locations or certain actions”); State v. Generazio, 691 So. 2d 609, 611 (Fla. 4th DCA

1997) (permitting differentiation among counts based on the type of sexual act

committed). Third, and similarly, the jury could have been asked to identify which

instances it found were proven for each count with a special verdict form. Cf. Jones,

601 F.3d at 1259 (finding no multiplicity problem where the “district court used a

verdict form that required the jury to make special findings” about distinct instances

of firearm possession).

                                          C




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      We now address whether, given the nature of the double jeopardy problem,

habeas relief is warranted. In our view, the answer to that question is no.

      Under Brecht, modified to fit the circumstances presented here, the question

is whether the violation had (or is having) a “substantial and injurious effect or

influence.” 507 U.S. at 637–38. See also O’Neal v. McAninich, 513 U.S. 432, 445

(1995) (explaining that if a federal habeas court has “grave doubt” about the

harmlessness of an error that affects substantial rights, it should grant relief). This

standard applies even though the state post-conviction court did not address Mr.

Jones’ double jeopardy claim on the merits. See Fry v. Pliler, 551 U.S. 112, 121

(2007).

      The vice created by the circumstances surrounding Mr. Jones’ convictions is

the potential inability of Mr. Jones to plead jeopardy in a future prosecution charging

him with unlawful sexual contact with H.R. during the time frame specified in the

information.    But “where there is no threat of either multiple punishment or

successive prosecutions, the Double Jeopardy Clause is not offended.” United States

v. Wilson, 420 U.S. 332, 344 (1975). See also Schiro v. Farley, 510 U.S. 222, 230

(1994) (similar concept). At this time there is no such successive prosecution. And,

critically, the statute of limitations for any violations of § 794.05 that Mr. Jones may

have committed with respect to H.R. in 2005 and 2006 has long since run. See Fla.

Stat. §§ 775.15(2)(a)–(b) & 775.15(13)(a). See also Hemphill v. State, 820 So. 2d


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405, 406 (Fla. 2d DCA 2006) (describing statute of limitations principles for certain

sexual offenses around the time of Mr. Jones’ conduct). So, as we see things, the

double jeopardy problem that could have arisen from the way Mr. Jones was

charged, tried, and convicted—his inability to plead jeopardy in future prosecutions

for the multiple violations of § 794.05 with H.R.—has not and will not arise. It is

simply too late for Florida to charge Mr. Jones with any other instances of unlawful

sexual contact with H.R. in 2005 and 2006.

       The prohibition against double jeopardy does not “exist[ ] to provide

unjustified windfalls.” Jones v. Thomas, 491 U.S. 376, 387 (1989). As we stated

earlier, there was sufficient evidence that Mr. Jones had unlawful sexual contact with

H.R. on at least two occasions during the time period set forth in the information.

And those two convictions, in and of themselves, do not violate the Double Jeopardy

Clause. See Williams, 78 F.3d at 1514 n.1. If we were to set aside one of the two

convictions now, see Valentine, 395 F.3d at 638–39, we would be providing Mr.

Jones with a windfall.2



                                                IV


2
  Should the state inexplicably seek to charge Mr. Jones again with unlawful sexual contact with
H.R. during the time frame specified in the information, Mr. Jones can of course assert that the
statute of limitations has run. If that defense is somehow rejected, Mr. Jones will be able to plead
jeopardy and point to the problems we have identified in this opinion. At that point, a court would
have to determine a remedy for Mr. Jones. See United States v. Tovar-Rico, 61 F.3d 1529, 1532
(11th Cir. 1995); United States v. Suarez, 617 F. App’x 537, 545 (6th Cir. 2015).
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      The district court’s denial of habeas relief with respect to Mr. Jones’ double

jeopardy claim is affirmed.

      AFFIRMED.




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