UNITED STATES оf America, Plaintiff-Appellee, v. Danny TEAGUE, Defendant-Appellant.
No. 10-10276.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 15, 2013. Filed July 18, 2013.
1187
667 n. 2 (6th Cir. 2001), that paragraph (d)(2)‘s cap does not apply when a prisoner obtains more than just monetary relief in an action-precisely the holding in Dannenberg.
Benjamin B. Wagner, United States Attorney, Camil A. Skipper, Appellate Chief, and Brian W. Enos (argued), Assistant United States Attorney for the Eastern District of California, Fresno, CA, for Plaintiff-Aрpellee.
Before: A. WALLACE TASHIMA, SUSAN P. GRABER, and RAYMOND C. FISHER, Circuit Judges.
OPINION
FISHER, Circuit Judge:
A jury convicted Danny Teague of both receipt and possession of child pornography. Because possession is a lesser included offense of receipt, the convictions violate the Fifth Amendment‘s Double Jeopardy Clause if they were based on the same conduct. Seе United States v. Overton, 573 F.3d 679, 695 (9th Cir. 2009). On the other hand, “where separate conduct supports each offense, the Fifth Amendment‘s Double Jeopardy Clause is not implicated.” Id. The prosecutor charged receipt of one set of files and charged possession of a much larger set of files. Because the files supporting the receipt count were a subset of the files supporting the possession charge and the prosecutor did not request, nor did the district court provide, an instruction explicitly requiring the jury to base the two convictions on separate conduct, it is theoretically possible the convictions were based on the same conduct. We agreе with Teague that the district court erred by entering judgment on both counts absent some assurance that the convictions were based on separate conduct. In light of the overwhelming and unrebutted evidence of separate conduct, however, we hold that the error did not affect Teague‘s substantial rights. We therefore affirm.
BACKGROUND
In Nоvember 2005, a detective determined that a computer owned by appellant Danny Teague was being used to download child pornography from the Internet. The computer was using the LimeWire program, a peer-to-peer network that allows users to share files with other computers on the Internet. Law enforcemеnt agents executed a search warrant on Teague‘s house, located Teague‘s computer in the garage and found files containing child pornography on the computer. The agents also located a briefcase, stored underneath the computer desk, containing 20 compact discs (CDs) containing child pornography. Because this case hinges on the differences between them, we briefly address the key attributes of the files on the CDs (the CD files) and the files on the computer (the computer files).
The computer files comprised approximately 20 image files and 11 movie files containing child pornography. Unrefuted testimony established that they were downloaded from the Internet in 2005. The computer files were stored on the hard drive of Teague‘s computer.
The CD files were located on CDs contained in a briefcase under Teague‘s computer desk. These files included approximately 760 images of child pornography, several of which were duрlicates. The CD files discussed at trial were created (i.e., saved to the CD) in 2002 and 2003, although other files may have been created
Teague was charged with three counts: (1) receipt or distribution of material depicting the sexual exploitation of minors in violation of
STANDARD OF REVIEW
We review Teague‘s double jeopardy claim for plain error because he raised it for the first time on appeal. See United States v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008) (“Although we normally review de novo claims of double jeopardy violations, we review issues, such as the present one, not properly raised before the district court for plain error.” (citation omitted)). Under plain error review, the convictions must be аffirmed unless: “(1) there has been an error in the proceedings below; (2) that error was plain; (3) it affected substantial rights; and (4) it seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Id.
DISCUSSION
Teague argues that he is being punished twice for the same conduct in violation of the Double Jeopardy Clause, beсause possession (Count 2) is a lesser included offense of receipt (Count 1). As discussed below, the receipt count was plainly based on the computer files. Teague‘s appeal therefore turns on the basis for the possession conviction.
I.
The Fifth Amendment‘s Double Jeopardy Clause protects a defendant from bеing punished twice for a single criminal offense. See
Possession of child pornography is a lesser included offense of receipt of child pornography because a person who has received child pornography has also, by definition, possessed it. See id. at 947. “Therefore, while the Government can indict and prosecute a defendant for both receipt and possession of child pornography, entering judgment of conviction for both is multiplicitous and constitutionally impermissible when based on the same conduct.” Overton, 573 F.3d at 695. On the other hand, “where separate conduct supports each offense, the Fifth Amendment‘s Double Jeopardy Clause is not implicated.” Id.
II.
The government maintains that the Double Jeopardy Clause is not implicated here because the receipt count is based on the computer files and the possession
Schales sets out the framework for double jeopardy claims like Teague‘s and, as here, involved child pornography stored on a computer and CDs. We explained that, “where a defendant has stored sexually explicit images in separate medi[a],” such as on a hard drive and CDs, “the government may constitutionally charge that defendant with separate counts for each type of material or media possessed.” Id. at 979. The government did not do so in Schales. “Instead, the indictment charge[d] Schales with receipt of the material by way of downloading it from the internet onto his computеr and possession of this material in the same medium.” Id. at 980 (emphasis added). Schales could have been charged with possession and receipt in different media. Because he was not, however, his convictions were multiplicitous.
The indictment here charged Teague with receipt based on the computer files and with possession based on both the cоmputer files and the CD files. Specifically, Count 1 charged that Teague received child pornography from the Internet using a computer and modem between 2004 and 2005.1 Count 1 made no mention of compact discs and did not specify 2002-03 as the time frame during which the CD files were created. Count 2, by contrast, charged that Teague possessed child pornography “on an internal computer hard disc drive and on one or more digital videos and/or compact discs” between 2001 and 2005.2
The indictment is an improvement on Schales to the extent it charged possession in a medium (CDs) for which it did not charge receipt. That the government charged separate conduct, however, does not mean that thе jury based its convictions on separate conduct. Both counts referred to the computer files so, in theo-
The conjunctive phrasing of the indictment created the possibility of multiplicitous convictions, and neither the government nor the district court did anything to remove that possibility. On the contrary, the jury was not instructed that it had to find separate сonduct, the jury delivered a general-rather than special-verdict and the government argued in closing that the computer files supported the possession conviction. The district court‘s entry of judgment on both counts, absent some assurance that the convictions were based on separate conduct, was error.
III.
Next we must determine whether the error requires reversal. To prevail on plain error review, Teague must show “(1) there has been an error in the proceedings below; (2) that error was plain; (3) it affected substantial rights; and (4) it seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Davenport, 519 F.3d at 943. The first two requirements arе clearly met. An error is plain when it is “clear” or “obvious” under the law. United States v. Olano, 507 U.S. 725, 734 (1993). Disregard of the separate conduct requirement was a plain error.
Teague, however, has not satisfied the third requirement-that the error affected substantial rights. “[I]n most cases [this requirement] means that the error must have been prejudicial: It must have affectеd the outcome of the district court proceedings.” Id. Although we have not expressly considered the circumstances under which the failure to ensure that convictions were based on separate conduct is prejudicial, we have considered the analogous situation where a district court omits a necessary оffense element from its jury instructions.
A district court‘s failure to instruct on a necessary offense element “does not always ‘affect’ a defendant‘s substantial rights and ... the failure to submit an element to the jury is not per se prejudicial.” United States v. Alferahin, 433 F.3d 1148, 1157 (9th Cir. 2006). Specifically, such an error affects substantial rights when “there is a reasonable probability the jury‘s verdict wоuld have been different” had the jury been properly instructed. United States v. Jenkins, 633 F.3d 788, 807 (9th Cir. 2011); see also United States v. Tuyet Thi-Bach Nguyen, 565 F.3d 668, 677 (9th Cir. 2009) (holding that failure to submit an element to the jury was not prejudicial because the element had been established by “overwhelming evidence“); United States v. Smith, 282 F.3d 758, 767-68 (9th Cir. 2002) (holding that, because an element erroneously omitted from jury instructions was undisputed, the instructional error did not affect substantial rights). We mаy consider facts logically implied by the fact of conviction when evaluating whether an error is prejudicial. See United States v. Baldwin, 987 F.2d 1432, 1439 (9th Cir. 1993) (holding that a conviction of aiding and abetting was the functional equivalent of a factual finding that the omitted element had been satisfied).
Not instructing on an offense element is analogous to not instructing on separate conduct, so we adopt the same prejudice standard here. We hold that a failure to instruct on separate conduct affects substantial rights when there is a reasonable probability that the jury would
Applying this framework, we hold that the cоurt‘s failure to give a separate conduct instruction or otherwise assure itself the separate conduct requirement had been satisfied was not prejudicial given the overwhelming evidence that Teague possessed the CD files. The indictment separately charged Teague with possessing the CD files. The CDs were found in a briefсase along with receipts made out to him, documents addressed to him and documents signed by him. The briefcase was underneath the desk on which the computer Teague used to download child pornography was located. The CDs contained benign photos of Teague and his family, sexually explicit photos of Teague and explicit child pornographic images that had been digitally altered to include Teague. Moreover, there was unrefuted evidence that photos on the CDs were taken with the digital camera that agents found in Teague‘s closet. Teague did not contest any of these facts.
Teague‘s only defense at trial was that somеone else had committed the crimes he was charged with committing. He pointed out that others had access to the computer and that two of his step-grandsons had used it frequently. That the jury convicted Teague of receiving child pornography on his computer means it conclusively rejected his defense, thereby also eliminating any doubt that Teague possessed the CDs found in his briefcase just a few feet away.
In sum, the district court should have assured itself the separate conduct requirement was satisfied. It could have done so here by giving a jury instruction or by some other means such as by providing the jury with a special verdict form to list which files supported eаch conviction. Failure to employ any such means was error, but it caused Teague no prejudice. Teague was convicted of receiving child pornography on his computer and the overwhelming evidence shows that he also possessed child pornography in a different medium-the CDs in his briefcase. Accordingly, we hоld that the error did not affect Teague‘s substantial rights.
AFFIRMED.