United States v. Schales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-10288
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00385-OWW
WALTER M. SCHALES,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding

Argued April 15, 2008
Submitted October 20, 2008
San Francisco, California

Filed October 20, 2008

Before: Mary M. Schroeder, Richard R. Clifton, and
Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

14725
 UNITED STATES v. SCHALES 14731

COUNSEL

Daniel J. Broderick, Federal Defender, Melody M. Walcott,
Assistant Federal Defender (Argued), of Fresno, California,
on behalf of defendant-appellant Walter M. Schales.

McGregor W. Scott, United States Attorney, David L. Gappa,
Assistant United States Attorney (Argued), of Fresno, Califor-
nia, on behalf of plaintiff-appellee The United States of
America.

OPINION

CALLAHAN, Circuit Judge:

Walter M. Schales (“Schales”), who was forty-five years
old at the time of this incident, approached a fourteen-year-
old girl at a Wal-Mart store located in Hanford, California,
surreptitiously placed a digital camera underneath her mini-
skirt, and took a photograph. Caught red-handed by another
shopper, Schales quickly tried to delete the photographs
stored on his camera. Despite Schales’s efforts, local law
enforcement recovered several pictures of two young girls
from his camera and then sought a warrant to search his resi-
dence. Upon executing the warrant, law enforcement agents
discovered an immense quantity of child pornography.
Schales’s collection included a number of morphed photo-
graphs that he created by taking pictures of local minor girls
who were unaware that they were being photographed, cutting
their faces from the photographs, and then pasting their faces
on sexually explicit images of other girls that he downloaded
from the internet. A forensic analysis of Schales’s computer
14732 UNITED STATES v. SCHALES
revealed thousands of images of child pornography which had
been downloaded from the internet, with many of the victims
under the age of six.

After a four-day trial, Schales was found guilty of receiving
or distributing material involving the sexual exploitation of
minors, 18 U.S.C. § 2252(a)(2); possessing material involving
the sexual exploitation of minors, 18 U.S.C. § 2252(a)(4)(B);
and receiving or producing a visual depiction of a minor
engaging in sexually explicit conduct that is obscene, 18
U.S.C. § 1466A(a)(1). On appeal, Schales launches an array
of constitutional and evidentiary challenges to his convictions
and sentence. For the reasons set forth below, we reject
Schales’s facial and as applied challenges to 18 U.S.C.
§ 1466A(a)(1); his sufficiency of evidence claim; his evidenti-
ary challenge to the admission of the Wal-Mart incident; and
his claim that the district court erred by refusing to adjust his
sentence for acceptance of responsibility. However, as
explained below, we remand the case back to the district court
to vacate either his conviction for receiving material involving
the sexual exploitation of minors in violation of 18 U.S.C.
§ 2252(a)(2) or for possessing material involving the sexual
exploitation of minors in violation of 18 U.S.C.
§ 2252(a)(4)(B) because, on this record, his conviction for
both violates the Double Jeopardy Clause.

I.

After Schales was arrested at the Wal-Mart store, local law
enforcement obtained a search warrant for Schales’s resi-
dence. Upon arriving at Schales’s home to execute the search
warrant, an investigator asked Schales whether they would
find any items related to child pornography in his home, to
which he replied “yeah.” During a search of Schales’s home,
law enforcement seized a significant quantity of child pornog-
raphy and obscene depictions of minors engaged in sexually
explicit conduct. Officers seized a computer, some peripheral
devices, several CDs, DVDs, VHS tapes, 8mm tapes, digital
 UNITED STATES v. SCHALES 14733
cameras, a video camera, morphed photographs, pornographic
magazines, and women’s underwear.

Investigators reviewed the seized material and discovered
that Schales had taken large quantities of digital still and
video images of approximately nine minors in his community.
These female minors ranged in age from six to seventeen, and
Schales had produced 15 to 100 obscene images of each of
these victims. Investigators discovered thousands of images of
child pornography from the internet downloaded onto his
computer, many portraying children under the age of six.
There were images of prepubescent children being anally and
vaginally penetrated by adult males, and pictures depicting
bestiality with females as young as six years of age. Schales
also transferred images from his digital camera to his com-
puter, which contained photo editing software. He used this
software to manipulate images of himself, including some
sexually explicit images, and obscene and sexually explicit
images of minors that he had obtained from the internet.
Schales produced morphed images of female minors engaged
in sexually explicit conduct through this process.

The grand jury indicted Schales for receiving or distribut-
ing material involving the sexual exploitation of minors
(Count 1), possessing material involving the sexual exploita-
tion of minors (Count 2), and receiving or producing a visual
depiction of a minor engaging in sexually explicit conduct
that is obscene (Count 3). A jury found Schales guilty of all
three counts. The district court sentenced him to a term of
incarceration of 210 months on Counts One and Three, and
120 months on Count Two, to run concurrently. The court
also imposed a lifetime period of supervised release.

II.

[1] Obscenity has no protection under the First Amend-
ment. See United States v. Williams, 128 S. Ct. 1830, 1835-36
(2008) (citing Roth v. United States, 354 U.S. 476, 484-85
14734 UNITED STATES v. SCHALES
(1957)). In Miller v. California, 413 U.S. 15 (1973), the
Supreme Court articulated a three-part test to guide a jury’s
determination whether material is obscene, which considers:
“(a) whether the average person, applying contemporary com-
munity standards would find that the work, taken as a whole,
appeals to the prurient interest; (b) whether the work depicts
or describes, in a patently offensive way, sexual conduct spe-
cifically defined by the applicable state law; and (c) whether
the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.” Id. at 24 (internal quotation
marks and citations omitted). The three-part Miller test is still
the operative framework used to evaluate obscenity. See Ash-
croft v. Free Speech Coal., 535 U.S. 234, 246 (2002).

[2] Almost a decade after Miller, the Supreme Court first
addressed a challenge to a statute prohibiting child pornogra-
phy in New York v. Ferber, 458 U.S. 747 (1982), and held
that the government may constitutionally prohibit the creation
or promotion of pornography featuring real children even
though it does not meet the Miller obscenity standard. In
1996, in response to technological developments, Congress
passed the Child Pornography Prevention Act (“CPPA”),
which extended the definition of child pornography to cover
any visual image that “is, or appears to be, of a minor engag-
ing in sexually explicit conduct” or has been promoted in a
manner that “conveys the impression” of a minor engaging in
sexually explicit conduct. 18 U.S.C. § 2256(8)(D) (1996)
(repealed 2003). The Court in Free Speech Coal. struck down
provisions of the CPPA as unconstitutionally overbroad
because these provisions prohibited speech that did not meet
the obscenity requirements under Miller and did not incorpo-
rate the Ferber requirement that actual minors be involved in
the production of the child pornography. Free Speech Coal.,
535 U.S. at 246-51.

In response to this decision, Congress enacted the Prosecu-
torial Remedies and Other Tools to end the Exploitation of
Children Today Act of 2003 (“PROTECT Act”). The PRO-
 UNITED STATES v. SCHALES 14735
TECT Act amended the general obscenity statute in 18 U.S.C.
§ 1466A to proscribe the transfer of certain obscene visual
representations of the sexual abuse of children. Subsection
(a)(1) of section 1466A provides in part:

Any person who . . . knowingly produces, distrib-
utes, receives, or possesses with intent to distribute,
a visual depiction of any kind, including a drawing,
cartoon, sculpture, or painting, that . . . depicts a
minor engaging in sexually explicit conduct and is
obscene . . . or attempts or conspires to do so, shall
be subject to the penalties provided in section
2252A(b)(1) . . . .

18 U.S.C. § 1466A(a)(1).

A. 18 U.S.C. § 1466A(a)(1) is Facially Constitutional.

We begin with Schales’s challenge to the facial validity of
18 U.S.C. § 1466A(a)(1) on overbreadth and vagueness
grounds. A challenge to the constitutionality of a federal stat-
ute is a question of law that is reviewed de novo. United
States v. Lujan, 504 F.3d 1003, 1006 (9th Cir. 2007).

[3] The First Amendment to the United States Constitution
provides that “Congress shall make no law . . . abridging the
freedom of speech.” U.S. Const. amend. I. The Supreme
Court recognizes that “[t]he freedom of speech has its limits;
it does not embrace certain categories of speech, including
defamation, incitement, obscenity, and pornography produced
with real children.” Free Speech Coal., 535 U.S. at 245-46
(citations omitted). Accordingly, the government may ban the
transportation and distribution of obscene material under Mil-
ler, irrespective of whether it involves a minor child, and all
child pornography produced with real children under Ferber.
Free Speech Coal., 535 U.S. at 239-40.
14736 UNITED STATES v. SCHALES
(1) 18 U.S.C. § 1466A(a)(1) is Not Unconstitutionally
Overbroad.

Schales contends that the inclusion in 18 U.S.C.
§ 1466A(a)(1) of drawings, cartoons, sculptures, and paint-
ings in its definition of visual depictions means that any
attempt at art that can be found to depict a minor engaging in
sexually explicit conduct or is obscene is prohibited. He
argues, therefore, that paper dolls, stick figures, and wooden
toys are included within the prohibition of section
1466A(a)(1). At oral argument, however, Schales recognized
that the plain language of section 1466A(a)(1) does indeed
require that the depiction be obscene, see 18 U.S.C.
§ 1466A(a)(1) (“visual depiction of any kind, including a
drawing, cartoon, sculpture, or painting, that . . . depicts a
minor engaging in sexually explicit conduct [ ] and . . . is
obscene”) (emphasis added), but nonetheless maintained that
the Supreme Court’s decisions in Ferber and Free Speech
Coalition suggest that section 1466A(a)(1) is unconstitutional
because it encompasses material that is not produced with
actual minors. He is wrong.

[4] “The Constitution gives significant protection from
overbroad laws that chill speech within the First Amend-
ment’s vast and privileged sphere. Under this principle, [a
statute] is unconstitutional on its face if it prohibits a substan-
tial amount of protected expression.” Free Speech Coal., 535
U.S. at 244 (citing Broadrick v. Oklahoma, 413 U.S. 601, 612
(1973)); see Williams, 128 S. Ct. at 1838. A statute is not
invalid simply because some impermissible applications are
conceivable. Ferber, 458 U.S. at 772. Instead, the “law’s
application to protected speech [must] be ‘substantial,’ not
only in an absolute sense, but also relative to the scope of the
law’s plainly legitimate applications.” Virginia v. Hicks, 539
U.S. 113, 119-20 (2003).

[5] The fundamental overbreadth problem with the CPPA
identified in Free Speech Coalition was that it “proscribe[d]
 UNITED STATES v. SCHALES 14737
a significant universe of speech that [was] neither obscene
under Miller nor child pornography under Ferber.” Free
Speech Coal., 535 U.S. at 240. Congress addressed this defect
when it drafted section 1466A(a)(1) by regulating only
obscene conduct. The Supreme Court has repeatedly found
that statutes that proscribe conduct only with respect to mate-
rial that is obscene under the Miller test are not overbroad.
See, e.g., Hamling v. United States, 418 U.S. 87 (1974); Paris
Adult Theatre I v. Slaton, 413 U.S. 49 (1973). Thus, section
1466A(a)(1) is not impermissibly overbroad because it too
requires that the government satisfy the Miller standards. See
United States v. Handley, 564 F. Supp. 2d 996, 1005 (S.D.
Iowa, 2008) (holding that 18 U.S.C. § 1466A(a)(1) is not
overbroad because it incorporates the Miller obscenity test);
United States v. Whorley, 386 F. Supp. 2d 693, 696-97 (E.D.
Va. 2005) (same). The fact that this statute does not require
that an actual minor exist, see 18 U.S.C. § 1466A(c), is imma-
terial because, unlike the CPPA, section 1466A(a)(1) is an
obscenity statute and not a child pornography statute.

[6] Schales’s parade of horribles that paper dolls, stick fig-
ures, and wooden toys are going to be criminalized by this
statute is illusory. For a work to be obscene it must appeal to
the prurient interest, be patently offensive in light of commu-
nity standards, and lack serious literary, artistic, political, or
scientific value. Miller, 413 U.S. at 24. Obscenity can, of
course, manifest itself in many different types of mediums. In
Kaplan v. California, 413 U.S. 115 (1973), the Supreme
Court stated that when it

declared that obscenity is not a form of expression
protected by the First Amendment, no distinction
was made as to the medium of the expression.
Obscenity can, of course, manifest itself in conduct,
in the pictorial representation of conduct, or in the
written and oral description of conduct. The Court
has applied similarly conceived First Amendment
14738 UNITED STATES v. SCHALES
standards to moving pictures, to photographs, and to
words in books.

Id. at 118-19. If a work contains a visual depiction of a minor
engaging in sexually explicit conduct and meets the Miller
obscenity test, it may be proscribed by section 1466A(a)(1).
See, e.g., Handley, 564 F. Supp. 2d 996 (Japanese anime
comic books); Whorley, 386 F. Supp. 2d 693 (same). The Mil-
ler obscenity test, however, serves as a “firewall to guard
against constitutionally protected speech being swept within
the ambit of the conduct criminalized by the statute[ ].” Whor-
ley, id. at 697. Accordingly, we find that 18 U.S.C.
§ 1466A(a)(1) does not prohibit a substantial amount of pro-
tected speech and is thus not overbroad.

(2) 18 U.S.C. § 1466A(a)(1) is Not Unconstitutionally
Vague.

[7] To avoid being unconstitutionally vague, a penal statute
must “define the criminal offense with sufficient definiteness
that ordinary people can understand what conduct is prohib-
ited and in a manner that does not encourage arbitrary and
discriminatory enforcement.” Kolender v. Lawson, 461 U.S.
352, 357 (1983) (citations omitted). “[T]he Constitution does
not require impossible standards; all that is required is that the
language conveys sufficiently definite warning as to the pro-
scribed conduct when measured by common understanding
and practices.” Hamling, 418 U.S. at 111 (citation and inter-
nal quotation marks omitted). “[P]erfect clarity and precise
guidance have never been required even of regulations that
restrict expressive activity.” Williams, 128 S. Ct. at 1845
(citation omitted).

[8] The Supreme Court has repeatedly rejected vagueness
challenges to obscenity statutes. In United States v. 12 200-Ft.
Reels of Super 8mm. Film, 413 U.S. 123 (1973), issued the
same day as Miller, the Court extended the standards articu-
lated in Miller for testing the constitutionality of state legisla-
 UNITED STATES v. SCHALES 14739
tion dealing with obscenity to federal legislation. 413 U.S. at
130. The Court held that it was prepared to hold the generic
terms — “obscene,” “lewd,” “lascivious,” “filthy,” “inde-
cent,” or “immoral” as used in 18 U.S.C. § 1462 (prohibiting
the importation or transportation of obscene material) to
describe regulated material — to be limited to the “patently
offensive representations or descriptions of that specific ‘hard
core’ sexual conduct given as examples in Miller.” Id. at 130
n.7. Rejecting a vagueness challenge to 18 U.S.C. § 1461
(prohibiting the mailing of obscene material) the following
year, the Supreme Court commented that its decision in 12
200-Ft. Reels of Super 8 mm. Film “made clear our willing-
ness to construe federal statutes dealing with obscenity to be
limited to material such as that described in Miller.” Hamling,
418 U.S. at 115; see Smith v. United States, 431 U.S. 291,
308-09 (1977) (concluding that section 1461 was not uncon-
stitutionally vague because the type of conduct covered by the
statute can be ascertained with sufficient ease to avoid due
process problems). In Reno v. ACLU, 521 U.S. 844 (1997),
the Supreme Court explained that the three-part Miller
obscenity test is not vague because it “limits the uncertain
sweep of the obscenity definition.” Id. at 873. Accordingly,
federal statutes dealing with obscenity are construed to incor-
porate the Miller standards and thus are not unconstitutionally
vague. See Ashcroft v. ACLU, 535 U.S. 564, 581 n.11 (2002)
(stating that while not mentioned in statutory text, the Court
has held that the Miller test “defines regulated speech for pur-
poses of federal obscenity statutes”).

[9] Section 1466A(a)(1) is not unconstitutionally vague
because it is limited to the prohibition of obscene material and
thus employs the same Miller requirements that the Supreme
Court has already deemed valid. We have observed that the
definition of obscenity has survived vagueness challenges in
a number of Supreme Court cases. See Info. Providers’ Coal.
for Def. of the First Amendment v. FCC, 928 F.2d 866, 874
(9th Cir. 1991) (citations omitted). There is no reason to treat
section 1466A(a)(1) any differently. Fanciful hypotheticals
14740 UNITED STATES v. SCHALES
can be imagined to create vagueness arguments with respect
to most any statute. However, as the Supreme Court recently
explained in Williams, “[t]he problem that poses is addressed,
not by the doctrine of vagueness, but by the requirement of
proof beyond a reasonable doubt.” 128 S. Ct. at 1846 (citation
omitted). The Court further noted, “[w]hat renders a statute
vague is not the possibility that it will sometimes be difficult
to determine whether the incriminating fact it establishes has
been proved; but rather the indeterminacy of precisely what
that fact is.” Id. (explaining that the Court has “struck down
statutes that tied criminal culpability to . . . wholly subjective
judgments without statutory definitions, narrowing context, or
settled legal meanings”). There is no such indeterminacy here
because section 1466A(a)(1) proscribes only obscene mate-
rial. Accordingly, we hold that 18 U.S.C. § 1466A(a)(1) is not
unconstitutionally vague.

B. 18 U.S.C. § 1466A(a)(1) is Constitutional As Applied
to Schales.

Schales contends that the morphed images he created “fall
through the cracks of the statutory prohibitions in § 1466A”
because this statute incorporates the definition of child por-
nography in 18 U.S.C. § 2256(8), which requires that the “vi-
sual depiction . . . is, or is indistinguishable from, that of a
minor engaging in sexually explicit conduct.” Under his logic,
because section 1466A encompasses drawings, cartoons,
sculptures and paintings, it conflicts with section 2256(8)(B)’s
requirement that the image be indistinguishable from a minor.1

[10] The fallacy of Schales’s logic is his premise that sec-
tion 1466A incorporates the definition of “child pornography”
and requires that actual minors be victimized. In fact, the stat-
ute explicitly provides that “[i]t is not a required element of
1
Notably, Schales never argued to the district court that the jury should
be instructed on the definition of “child pornography” contained in 18
U.S.C. § 2256(8) when detailing the elements of section 1466A(a)(1).
 UNITED STATES v. SCHALES 14741
any offense under this section that the minor depicted actually
existed.” 18 U.S.C. § 1466A(c). A plain reading of this statute
makes clear that “child pornography” is not a requisite ele-
ment of section 1466A(a)(1). We decline to “read words into
a statute that are not there.” United States v. Watkins, 278
F.3d 961, 965 (9th Cir. 2002) (citations omitted). We reiterate
that this statute only encompasses obscenity under Miller and
does not extend to child pornography under Ferber. Whether
the images were of actual minors, morphed minors, or imagi-
nary minors, section 1466A requires that the government
prove that the visual depiction is obscene. Thus, 18 U.S.C.
§ 1466A(a)(1) was constitutionally applied to Schales’s cre-
ation of morphed images.

C. There is Sufficient Evidence in the Record to Sustain
Schales’s Conviction under 18 U.S.C. § 1466A(a)(1).

[11] Schales challenges the sufficiency of evidence used to
convict him of violating 18 U.S.C. § 1466A(a)(1). In order to
obtain a conviction under this statute, the government must
prove beyond a reasonable doubt that a defendant: (1) know-
ingly; (2) produces, distributes, receives or possesses with
intent to distribute; (3) a visual depiction of any kind, includ-
ing a drawing, cartoon, sculpture, or painting; (4) the visual
depiction depicts a minor engaging in sexually explicit con-
duct; and (5) the visual depiction is obscene. See 18 U.S.C.
§ 1466A(a)(1). A challenge to the sufficiency of evidence
introduced by the government is reviewed de novo. United
States v. Odom, 329 F.3d 1032, 1034 (9th Cir. 2003). Viewing
the evidence in the light most favorable to the government,
this court must consider whether “any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” Id.

At trial, the government proceeded under two theories to
support a conviction under section 1466A(a)(1): first, that
Schales received obscene visual depictions of minors, and
second, that he produced obscene visual depictions of minors
14742 UNITED STATES v. SCHALES
through a morphing process.2 Schales does not contest that the
morphed images were obscene visual depictions. Instead, he
maintains that the government did not introduce sufficient
evidence to convict him of an offense under 18 U.S.C.
§ 1466A(a)(1) because a morphed image does not resemble a
real minor and that the definition of “child pornography” con-
tained in 18 U.S.C. § 2256(8) requires that the visual depic-
tion be “indistinguishable from . . . that of a minor.” We have
already rejected this claim.

In reviewing the sufficiency of evidence against Schales,
we focus on two pieces of evidence introduced by the govern-
ment. The government’s closing argument initially focused on
one image, Exhibit 15-KW-6, and asserted that it supported
Schales’s conviction on all three counts. The government
explained that Exhibit 15-KW-6 was created by “morphing”
a photograph of a local minor girl with obscene pictures of a
seven-year-old North Carolina girl with her “vaginal area . . .
exposed and covered with semen and an adult male penis also
appear[ing] in the image.” Detective Wiens of the Fresno
County Sheriff’s Department conducted a computer forensic
examination of CD-ROM discs seized at Schales’s house.
Detective Wiens testified that he produced a computer foren-
sic report, which identified all of the images from the CD-
ROM, including Exhibit 15-KW-6. FBI Special Agent
McGrath testified that he recognized several of the images on
the CD-ROM as part of a series depicting a seven-year old
victim from Raleigh, North Carolina.3 Special Agent McGrath
also testified that one of the images depicted this prepubes-
cent female with what appears to be semen on her. The local
minor girl was identified by her father, who testified that the
2
The term “producing” is defined as “producing, directing, manufactur-
ing, issuing, publishing, or advertising.” 18 U.S.C. § 2256(3).
3
Detective Paige of the Palm Beach County Sheriff’s Office also testi-
fied that he recognized images on the CD-ROM depicting a child and an
adult male that he arrested. The minor female depicted was five years old
at the time of the photograph.
 UNITED STATES v. SCHALES 14743
photographs were taken of his youngest daughter, who was
approximately ten years old at the time, at a church function
his family attended with Schales.

At trial, the government also focused on two other images,
Exhibits 40-KW-11 and 40-KW-12. These images depict “an
adult male with an erect penis holding a photograph . . . that
was recovered from the defendant’s computer” of a “minor
female exposing her anal and vaginal areas.” The government
asserts that Schales produced these images by using an image
of a minor female engaged in sexually explicit conduct down-
loaded from the internet and combining it with a photograph
of a local minor girl. The local minor girl pictured in these
exhibits was identified by her mother, who testified that these
photographs were taken of her daughter, who was approxi-
mately fifteen years old at the time, when the family was ren-
ovating a house with Schales’s help.

[12] Thus, the government introduced images seized during
the search of Schales’s home and computer depicting images
that he “received” over the internet and “produced” through
a morphing process. A rational jury could certainly conclude
that these images satisfy each element of section 1466A(a)(1)
and the Miller standard of obscenity.4 413 U.S. at 24.

D. The District Court Did Not Abuse its Discretion by
Admitting Evidence of the Wal-Mart Incident.

In a pretrial order, the district court concluded that the gov-
ernment could introduce three of the dozens of images that
were recovered from Schales’s camera seized from him at the
Wal-Mart store. The district court also held that the govern-
ment could present testimony that Schales was seen at Wal-
Mart, that he walked behind a female with a camera in hand,
that he took pictures of her, that he was seen pushing buttons
4
The jury was instructed on each element to sustain a conviction under
section 1466A(a)(1), including the Miller three-part obscenity test.
14744 UNITED STATES v. SCHALES
on his camera after being confronted by a witness, and that
images were recovered from his camera. Schales does not
challenge the district court’s ruling that this evidence was sep-
arately admissible as: (1) “other act” evidence “inextricably
intertwined” with the crime with which he was charged, see
United States v. Rrapi, 175 F.3d 742, 748-49 (9th Cir. 1999);
(2) Rule 404(b) evidence to show knowledge, intent, modus
operandi, and absence of mistake; and (3) Rule 404(b) evi-
dence of consciousness of guilt with respect to his attempts to
delete the images on his camera, see United States v. Meling,
47 F.3d 1546, 1557 (9th Cir. 1995). Instead, he contends that
this evidence was cumulative because there was a significant
amount of testimony at trial dealing with him using photo-
graphs of local minor girls to create morphed images. A dis-
trict court’s evidentiary rulings are reviewed for an abuse of
discretion, United States v. Alvarez, 358 F.3d 1194, 1205 (9th
Cir. 2004), and will be reversed only if such error “more
likely than not affected the verdict.” United States v. Pang,
362 F.3d 1187, 1192 (9th Cir. 2004).

[13] Schales fails to explain how the court abused its dis-
cretion by admitting limited evidence of the Wal-Mart inci-
dent. Although the government introduced testimony that the
defendant produced obscene images by morphing images, the
Wal-Mart incident was part of the res gestae of the charged
offenses and provided the jury with an example of how
Schales would surreptitiously take photographs of minor girls
in his community. Furthermore, the court limited the govern-
ment to introducing only three of the dozens of recovered
images from his camera, prohibited the introduction of
Schales’s false statements to the police, and did not allow
admission of the fact that Schales had been issued a citation
for his actions. Even if the admitted evidence should have
been excluded, Schales fails to establish that this error more
likely than not affected the verdict and thus was not harmless
error. See Pang, 362 F.3d at 1192 (“Even if we find error, we
will only reverse if an erroneous evidentiary ruling ‘more
likely than not affected the verdict.’ ”) (citation omitted).
 UNITED STATES v. SCHALES 14745
E. Schales Did Not Qualify for a Downward Adjustment
for Acceptance of Responsibility.

The district court refused to give Schales a downward
adjustment in his offense level for acceptance of responsibil-
ity based on the factors set forth in U.S.S.G. § 3E1.1. Schales
contends that the district court should have granted a down-
ward adjustment because he accepted responsibility when law
enforcement asked him prior to executing the search warrant
of his home whether they would find any items related to
child pornography and he replied “yeah.” This court reviews
“the district court’s interpretation of the Sentencing Guide-
lines de novo, the district court’s application of the Sentencing
Guidelines to the facts of th[e] case for abuse of discretion,
and the district court’s factual findings for clear error.” United
States v. Lambert, 498 F.3d 963, 966 (9th Cir. 2007) (italics
added and citation omitted).

[14] “A defendant is entitled to a downward adjustment if
he clearly accepts responsibility for all of his relevant con-
duct.” United States v. Wilson, 392 F.3d 1055, 1061 (9th Cir.
2004) (citation omitted). It is a “rare circumstance” for a
defendant to be entitled to an adjustment where he asserts his
right to a trial and “puts the government to its burden by con-
testing material factual matters.” Id. (citation omitted). This
court has “consistently held that where a defendant refuses to
admit all of his guilt, his cooperation notwithstanding, a dis-
trict court may properly deny a downward adjustment.” Id. at
1063 (citations omitted). Here, not only did Schales refuse to
admit guilt on any count, he also did not accept responsibility
for any of his relevant conduct. Furthermore, his conduct does
not satisfy any of the considerations listed in the Commentary
to section 3E1.1 of the advisory Sentencing Guidelines deal-
ing with acceptance of responsibility. See U.S.S.G. § 3E1.1.
Recognizing that the district court is entitled to “great defer-
ence because of its unique position to evaluate a defendant’s
acceptance of responsibility,” Wilson, 392 F.3d at 1061 (cita-
14746 UNITED STATES v. SCHALES
tion and internal quotation marks omitted), we affirm the
court’s denial of a downward adjustment.

F. The Double Jeopardy Clause Prohibits Schales’s Con-
victions for Both Receipt and Possession of Material
Involving the Sexual Exploitation of Minors.

[15] The Fifth Amendment’s Double Jeopardy Clause pro-
tects criminal defendants against being punished twice for a
single criminal offense. U.S. Const. amend. V. Schales con-
tends that his convictions for both receiving material involv-
ing the sexual exploitation of minors in violation of 18 U.S.C.
§ 2252(a)(2) and possessing material involving the sexual
exploitation of minors in violation of 18 U.S.C.
§ 2252(a)(4)(B) violate the Double Jeopardy Clause. Schales
raises his double jeopardy challenge for the first time on
appeal and therefore we apply a plain error standard of
review. See Fed. R. Crim. P. 52(b). Under a plain error stan-
dard, relief is not warranted unless there has been: (1) error,
(2) that is plain, (3) “that affects substantial rights,” and (4)
that “seriously affect[s] the fairness, integrity or public repu-
tation of the judicial proceedings.” United States v. Olano,
507 U.S. 725, 732 (1993) (citations omitted). Nonetheless, we
find a double jeopardy violation because possession of sexu-
ally explicit material is a lesser-included offense of receipt of
sexually explicit material and because the government has not
sufficiently alleged separate conduct.

(1) The Blockburger Test.

[16] The Double Jeopardy Clause is implicated when a
defendant has been convicted under two different criminal
statutes and both statutes prohibit the same offense or one
offense is a lesser-included offense of the other. Rutledge v.
United States, 517 U.S. 292, 297 (1996); United States v.
Davenport, 519 F.3d 940, 943 (9th Cir. 2008). We employ the
Blockburger test to evaluate claims of a double jeopardy vio-
lation. Id. “[W]here the same act or transaction constitutes a
 UNITED STATES v. SCHALES 14747
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).

We begin by examining whether receipt of material involv-
ing sexual exploitation of minors requires proof of an addi-
tional fact which possession of material involving sexual
exploitation of minors does not. See Davenport, 519 F.3d at
943. In Davenport, we recently held that convictions for both
receiving child pornography in violation of 18 U.S.C.
§ 2252A(a)(2) and possessing child pornography in violation
of 18 U.S.C. § 2252A(a)(5)(B) violated the Double Jeopardy
Clause because the offense of possessing child pornography
is a lesser-included offense of the receipt of child pornogra-
phy. 519 F.3d at 947; see also United States v. Giberson, 527
F.3d 882, 891 (9th Cir. 2008) (adopting Davenport). We see
no reason to conclude otherwise when it comes to receiving
material involving the sexual exploitation of minors in viola-
tion of 18 U.S.C. § 2252(a)(2) and possessing material involv-
ing the sexual exploitation of minors in violation of 18 U.S.C.
§ 2252(a)(4)(B). Cf. United States v. Miller, 527 F.3d 54, 64
n.10 (3d Cir. 2008) (noting that “[t]he jurisprudence concern-
ing the receipt and possession of 18 U.S.C. § 2252 and the
comparable provisions of 18 U.S.C. § 2252A often con-
verges” and that “[t]hese statutory provisions have been char-
acterized as ‘materially identical’ ”).

[17] The Supreme Court has recognized that comparing
statutes to determine whether one set of elements is a subset
of another requires a purely textual comparison. Carter v.
United States, 530 U.S. 255, 260-61 (2000). 18 U.S.C.
§ 2252(a)(2) states:

Any person who . . . knowingly receives, or distrib-
utes any visual depiction that has been mailed, or has
been shipped or transported in interstate or foreign
14748 UNITED STATES v. SCHALES
commerce, or which contains materials which have
been mailed or so shipped or transported, by any
means including by computer, or knowingly repro-
duces any visual depiction for distribution in inter-
state or foreign commerce by any means including
by computer or through the mails, if . . . (A) the pro-
ducing of such visual depiction involves the use of
a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct.

18 U.S.C. § 2252(a)(4)(B) states:

Any person who . . . knowingly possesses 1 or more
books, magazines, periodicals, films, video tapes, or
other matter which contain any visual depiction that
has been mailed, or has been shipped or transported
in interstate or foreign commerce, or which was pro-
duced using materials which have been mailed or so
shipped or transported, by any means including by
computer, if . . . (i) the producing of such visual
depiction involves the use of a minor engaging in
sexually explicit conduct; and (ii) such visual depic-
tion is of such conduct.

A comparison of the texts of the receipt offense,
§ 2252(a)(2), and the possession offense, § 2252(a)(4)(B),
reveals that possession is a lesser-included offense of receipt.
We reiterated in Davenport that “federal statutes criminaliz-
ing the receipt of contraband [generally] require a knowing
acceptance or taking . . . possession of the prohibited item.”
519 F.3d at 943 (quoting United States v. Romm, 455 F.3d
990, 1001 (9th Cir. 2006)); see Ball v. United States, 470 U.S.
856, 865 (1985) (as a general matter, possession of contra-
band is a lesser-included offense of receipt of the item). Thus,
while the government can indict a defendant for both receipt
and possession of sexually explicit material, entering judg-
ment against him is multiplicitous and a double jeopardy vio-
 UNITED STATES v. SCHALES 14749
lation when it is based on the same conduct. See Davenport,
519 F.3d at 944 (citing Ball, 470 U.S. at 865).

(2) The Acts Underlying the Receipt and Possession
Counts are Based on the Same Conduct.

The government does not dispute that possession of sexu-
ally explicit material is a lesser-included offense of receipt of
sexually explicit material. Instead, the government contends
that there is no double jeopardy violation because the two
counts are based on different acts. The Blockburger test is
implicated only “where the same act or transaction constitutes
a violation of two distinct statutory provisions.” 284 U.S. at
304. The Double Jeopardy Clause does not, of course, pro-
hibit the government from prosecuting a defendant for multi-
ple offenses in a single prosecution. Ohio v. Johnson, 467
U.S. 493, 500 (1984); United States v. Kuchinski, 469 F.3d
853, 859 (9th Cir. 2006). The government, however, bears the
burden of establishing multiple counts by charging and prov-
ing separate offenses. See United States v. Planck, 493 F.3d
501, 504-05 (5th Cir. 2007).

The government contends that the conduct charged in the
receipt offense is factually different than the conduct charged
in the possession offense because the indictment charges
Schales with possession for a month longer than the receipt
offense and because the evidence introduced at trial proves
that Schales possessed and created copies of images that he
transferred from one medium to another. The government
asserts that this separate conduct — the receipt of the child
pornography pictures on his computer hard drive and then the
subsequent printing out of those images and retaining them on
multiple compact discs — distinguishes this case from Daven-
port where the defendant’s possession of images of child por-
nography was limited to the computer hard drive.

[18] The statute proscribing the possession of sexually
explicit material prohibits the possession of “books, maga-
14750 UNITED STATES v. SCHALES
zines, periodicals, films, video tapes, or other matter which
contain any visual depiction” of sexually explicit conduct. 18
U.S.C. § 2252(a)(4)(B). In United States v. Lacy, 119 F.3d
742 (9th Cir. 1997), we explained that a “matter,” is the phys-
ical medium that contains the visual depiction such as a com-
puter hard drive or a computer disc. Id. at 748. Thus, where
a defendant has stored sexually explicit images in separate
mediums, the government may constitutionally charge that
defendant with separate counts for each type of material or
media possessed.

For example, in Planck, the Fifth Circuit held that the gov-
ernment may permissibly charge a defendant with separate
counts of possession for storing images of child pornography
on a desktop, a laptop, and diskettes. 493 F.3d at 504. The
court explained that “where a defendant has images stored in
separate materials (as defined in 18 U.S.C. § 2252A), such as
a computer, a book, and a magazine, the Government may
charge multiple counts, each for the type of material or media
possessed, as long as the prohibited images were obtained
through the result of different transactions.” Id. (citing United
States v. Buchanan, 485 F.3d 274, 281-82 (5th Cir. 2007)
(finding the defendant’s convictions for multiple counts of
receipt of child pornography were multiplicitous because the
indictment failed to allege separate receipt of the four images
identified)).

[19] The indictment in this case charged Schales with
receipt and possession of sexually explicit material based on
the same conduct. In Count One, relating to receipt, the grand
jury returned an indictment that charged Schales

from in or about January 2005, and continuing
through September, 2005 . . . did knowingly receive
and distribute, via computer, visual depictions, the
producing of which involved minors engaging in
sexually explicit conduct, which depictions had been
transported in interstate commerce, specifically: the
 UNITED STATES v. SCHALES 14751
defendant, using a computer and modem, received
and distributed via the Internet and interstate com-
merce, numerous image files, including but not lim-
ited to Joint Photographic Experts Format files and
Graphic Interchange Formats (JPEG & GIF files) all
of which, as the defendant then knew, contained
visual depictions, the producing of which involved
the use of minors engaged in sexually explicit con-
duct . . . .

In Count Two, relating to possession, the grand jury returned
an indictment that charged Schales

from in or about January 2005, and continuing
through October 4, 2005 . . . did knowingly possess
visual depictions, the producing of which involved
minors engaging in sexually explicit conduct, which
depictions had been transported in interstate com-
merce, specifically: the defendant obtained posses-
sion via the Internet of numerous image files,
including but not limited to Joint Photographic-
Experts Format files and Graphic Interchange For-
mats (JPEG & GIF files) all of which contained
visual depictions, the producing of which involved
the use of minors engaged in sexually explicit con-
duct . . . .

Nothing in the indictment indicates that Schales was charged
with, or prosecuted for, different conduct.

[20] If the government wishes to charge a defendant with
both receipt and possession of material involving the sexual
exploitation of minors based on separate conduct, it must dis-
tinctly set forth each medium forming the basis of the separate
counts. For example, we note that there would have been no
double jeopardy violation if the government had distinctly
charged Schales with both receipt of material involving the
sexual exploitation of minors for the images that he down-
14752 UNITED STATES v. SCHALES
loaded from the internet and with possession of material
involving the sexual exploitation of minors for the images that
he transferred to and stored on compact discs. However, the
indictment as written does not allow us to conclude that the
jury found Schales guilty of separate conduct. Instead, the
indictment charges Schales with receipt of the material by
way of downloading it from the internet onto his computer
and possession of this material in the same medium. This is
multiplicitous. See Davenport, 519 F.3d at 947; Giberson, 527
F.3d at 891.

[21] The district court’s jury instructions and the jury’s ver-
dict do not lead us to a different conclusion. The district court
instructed the jury on the elements of both receipt and posses-
sion of material involving the sexual exploitation of minors.
The jury was not instructed that it would have to find separate
conduct. The district court did not utilize a special verdict
form to indicate to the jury that it would have to find separate
conduct. In fact, the government argued to the jury that it
could convict Schales on all three counts by relying solely on
one image. On this record, we cannot conclude that Schales
was convicted for separate conduct.

[22] As we have done in Davenport and Giberson, we find
that Schales’s concurrent sentences for both receipt and pos-
session of material involving the sexual exploitation of minors
constitute plain error and that this affects “substantial rights
by imposing on him the potential collateral consequences of
an additional conviction.” Giberson, 527 F.3d at 891 (quoting
Davenport, 519 F.3d at 947). “[B]ecause the prohibition
against double jeopardy is a cornerstone of our system of con-
stitutional criminal procedure, this error threatens the fairness,
integrity, and public reputation of our judicial proceedings.”
Id. (quoting Davenport, 519 F.3d at 947). Where we conclude
that a defendant has suffered a double jeopardy violation
because he was erroneously convicted for the same offense
under two separate counts, and we find that the evidence was
sufficient to support either conviction, “the only remedy con-
 UNITED STATES v. SCHALES 14753
sistent with the congressional intent is for the [d]istrict
[c]ourt, where the sentencing responsibility resides, to exer-
cise its discretion to vacate one of the underlying convic-
tions.” Ball, 470 U.S. at 864.

III.

[23] In sum, we find that Schales’s facial and as applied
challenges to 18 U.S.C. § 1466A(a)(1) lack merit. Section
1466A(a)(1) proscribes obscene visual depictions of minors
engaging in sexually explicit conduct. The scope of this penal
statute extends only to obscene visual depictions, as articu-
lated by the Supreme Court in Miller, and thus, the existence
of an actual minor is unnecessary. Furthermore, we reject
Schales’s sufficiency of evidence claim, his challenge to the
district court’s admission of the Wal-Mart evidence, and his
assertion that the district court erred by refusing to adjust his
sentence for acceptance of responsibility. Finally, we remand
this case to the district court to vacate either Schales’s convic-
tion for receiving material involving the sexual exploitation of
minors in violation of 18 U.S.C. § 2252(a)(2), or for possess-
ing material involving the sexual exploitation of minors in
violation of 18 U.S.C. § 2252(a)(4)(B). In this case, convic-
tions for both receipt and possession of material involving the
sexual exploitation of minors violates the Double Jeopardy
Clause. The district court should allow the vacated offense to
be reinstated without prejudice if Schales’s other conviction
is overturned on direct or collateral review.

Accordingly, we reject Schales’s challenges to his convic-
tion and sentence except that the case is remanded to the dis-
trict court to vacate either his conviction for receiving
material involving the sexual exploitation of minors in viola-
tion of 18 U.S.C. § 2252(a)(2) or his conviction for possess-
ing material involving the sexual exploitation of minors in
violation of 18 U.S.C. § 2252(a)(4)(B).