United States v. Walter Overton ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-30075
Plaintiff-Appellee, D.C. No.
v. 2:07-CR-00028-
WALTER MERLE OVERTON,  DWM
Defendant-Appellant. ORDER AND
AMENDED
 OPINION
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
January 21, 2009—Seattle, Washington
Filed June 18, 2009
Amended July 14, 2009
Before: Thomas M. Reavley,* Senior Circuit Judge,
Richard C. Tallman and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Tallman
*The Honorable Thomas M. Reavley, Senior United States Circuit
Judge for the Fifth Circuit, sitting by designation.
8765
UNITED STATES v. OVERTON 8769
COUNSEL
Anthony R. Gallagher, Office of the Federal Public Defenders
for the District of Montana, Great Falls, Montana, for the
defendant-appellant.
Eric B. Wolff (argued), Marcia Hurd, Assistant United States
Attorneys, and William W. Mercer, United States Attorney
for the District of Montana, Billings, Montana, for the
plaintiff-appellee.
ORDER
The Opinion filed on June 18, 2009, is AMENDED as fol-
lows:
The term “natural” appearing in the second paragraph of
Section I of the slip opinion appearing at page 7282, is
DELETED and REPLACED with the term “biological.”
8770 UNITED STATES v. OVERTON
The Clerk of the Court is hereby instructed to issue the
mandate in accordance with Federal Rule of Appellate Proce-
dure 41.
OPINION
TALLMAN, Circuit Judge:
Following a two-day bench trial before the Honorable Don-
ald W. Molloy in the District of Montana, Walter Merle Over-
ton was convicted on two counts of sexual exploitation of a
minor in violation of 18 U.S.C. § 2251(a) and (b), and on sep-
arate counts of receipt of child pornography and possession of
child pornography in violation of 18 U.S.C. § 2252A(a)(2)
and (a)(5)(B), respectively. The district court sentenced Over-
ton to a term of incarceration of 235 months, to be followed
by a lifetime of supervised release.
Overton advances several arguments on appeal. He con-
tends (1) that there was insufficient evidence to support a con-
viction on the sexual exploitation counts, (2) that his
conviction on the multiple counts violated the Fifth Amend-
ment’s prohibition against double jeopardy, and (3) that the
district court committed reversible error in imposing his sen-
tence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm.
I
On June 5, 2006, an 18-year-old female, JNW, walked into
a Manhattan, Montana bank, and disclosed to a teller that she
had been raped earlier that morning by her stepfather, who
was waiting outside. The bank teller immediately alerted the
local sheriff’s office. Deputies responded and arrested Walter
Merle Overton.
UNITED STATES v. OVERTON 8771
Early that morning, Overton and his wife Laura Nelson
Overton, JNW’s biological mother (“Nelson”), left home for
work at Montana State University (“MSU”) in Bozeman,
where they were both employed. Overton, however, surrepti-
tiously made his way back to their house that morning.1 Over-
ton entered JNW’s bedroom and, finding his stepdaughter
alone in the house and still in bed, told her to remove her clothes.2
In addition to engaging in sexual contact, he took nude pic-
tures of her with a digital camera in various rooms of the
house.
While in custody and after waiving his Miranda rights,
Overton admitted to engaging in various sexual acts with his
stepdaughter. The Gallatin County Sheriff’s Office began an
investigation and later the Federal Bureau of Investigation
became involved.3 The subsequent investigation resulted in
the discovery of large quantities of electronically-stored por-
nographic images, many depicting children (which Overton
had downloaded from the Internet), and nude pictures of JNW
(which he had taken himself), all of which led to the federal
charges and Overton’s conviction now before us.
As he did on the morning of June 5, Overton had taken
nude photographs of his stepdaughter on at least two prior
occasions. The first of these incidents took place in about
March 2005 when JNW was 17 years old and a minor. On this
occasion, Overton confronted her with a camera and insisted
that “a family should be closer and sexuality shouldn’t be a
big deal” and that JNW “shouldn’t be afraid of [her] body.”
JNW ultimately acquiesced and allowed him to take nude
1
At all times material to this appeal, JNW lived with her mother and
Overton at their home in Manhattan.
2
JNW testified at trial that Overton entered her room and told her that
this could either “be an enjoyable experience or a life threatening one.”
3
Overton was initially charged with incest in Gallatin County state
court. The state charges were dismissed in favor of this federal prosecu-
tion.
8772 UNITED STATES v. OVERTON
photographs of her in various poses in both his bedroom and
the living room. Overton later loaded the photographic images
of JNW onto his home computer.
JNW later divulged to her mother what had occurred. Nel-
son confronted Overton, who admitted that he had photo-
graphed JNW and showed her at least one of the images.
Nelson demanded that he dispose of the pictures and imposed
a rule that Overton should not be alone with JNW in the
future. Contrary to the assurances provided to his wife, Over-
ton copied the homemade images of his minor stepdaughter
to a memory device and transferred them to his work com-
puter at MSU. Unbeknownst to Nelson or JNW, he later rein-
stalled the illicit images of JNW onto the home computer.
In February 2007, Overton, with counsel present, was inter-
viewed by FBI Special Agents Kevin Damuth and John
Sorensen as part of the federal investigation. During that
meeting Overton admitted that he routinely downloaded por-
nography, including child pornography, from the Internet,
which he then saved to special directory folders on his home
and work computers. He described his use of the MSU com-
puter system, through which he accessed the Internet and
searched free online pornography sites using suggestive
search terms such as “teens.” Overton admitted that he
became sexually aroused when viewing these images and
characterized his conduct as an “addiction.”
Overton also told the agents that he had taken nude pictures
of JNW on three separate occasions in 2005 and 2006. He
then transferred those photographs from his digital camera to
his computers, saving them in folders similar to those in
which he placed the downloaded pornographic images. Over-
ton also identified five photographs that were taken when
JNW was 17 years old. At their request, Overton provided a
written statement, confirming his admissions to the FBI
agents.
UNITED STATES v. OVERTON 8773
Law enforcement discovered large quantities of pornogra-
phy and illicit material on his home and work computers. A
search of Overton’s two work computers, for example,
revealed over six gigabytes of images and video including
pornography. Overton had created an “F” partition on the hard
drive where he stored pornographic images, depicting both
adults and children. The investigation also uncovered the
homemade images of JNW.
In July 2007, a Grand Jury indicted Overton, charging him
with four federal crimes. Counts I and II charged Overton
with the sexual exploitation of a minor in violation of 18
U.S.C. § 2251(a) and (b), respectively, based on the nude
photographs he took of his stepdaughter. Count III charged
Overton with the knowing receipt of child pornography in
violation of 18 U.S.C. § 2252A(a)(2), and Count IV charged
him with the unlawful possession of child pornography in vio-
lation of 18 U.S.C. § 2252A(a)(5)(B). The indictment also
included a forfeiture count pursuant to 18 U.S.C. § 2253(a).
Overton waived his right to trial by jury and proceeded
with a bench trial before Judge Molloy. At trial, the prosecu-
tion introduced numerous images presumed to be child por-
nography, which were received without objection, as well as
various pictures of JNW, including Exhibits 6-1 through 6-5,
five photographs taken during the March 2005 incident when
JNW was a minor. The prosecution called a total of nine wit-
nesses, including JNW, Nelson, and Agent Damuth, and pre-
sented Overton’s written statement from the February 2007
interview with FBI agents.
At the close of the Government’s case-in-chief, Overton
moved for acquittal on the ground that the prosecution failed
to prove the elements in its case beyond a reasonable doubt,
arguing that the pictures of JNW did not depict “sexually
explicit conduct,” as required for conviction. The district
court denied the motion. Overton then took the stand in his
own defense, denied matters previously admitted to FBI
8774 UNITED STATES v. OVERTON
agents, and provided rationalizations for much of his conduct
involving his stepdaughter.
At the conclusion of the two-day trial, the district court
found Overton guilty on all counts and entered Findings of
Fact & Conclusions of Law. Specifically, the court found that
Overton created and thereafter possessed three sexually
explicit photographs of his minor stepdaughter and also
downloaded numerous images of child pornography from the
Internet onto his home and work computers. Overton filed a
motion for post-conviction dismissal, requesting dismissal of
either Count I or II and either Count III or IV, alleging viola-
tions of the Fifth Amendment’s Double Jeopardy Clause. The
district court denied the motion in a detailed order.
The Probation Office prepared a lengthy Presentence Inves-
tigation Report (“PSR”) for the sentencing phase, which
described in detail the circumstances of the instant offenses
and Overton’s background. Several sources confirmed Over-
ton’s expressed belief that it was acceptable for adults to teach
underage family members about sex. The PSR also relayed a
past incident described by Overton’s previous wife where he
allegedly propositioned one of his biological daughters to
engage in sexual activity. The child was 12 years old at the
time. Based on the calculated offense level and criminal his-
tory, the Probation Office recommended a Sentencing Guide-
lines range for imprisonment of between 188 and 235 months.
This range was within the permissible statutory range for the
subject offenses.4
The parties were provided with ample opportunity to
review and respond to the PSR and the Probation Office’s rec-
ommendation. The Government did not file objections. Over-
4
The statutory ranges were 15 to 30 years on Counts I and II, the sexual
exploitation of a minor offenses; 5 to 20 years on Count III, the receipt of
child pornography conviction; and not more than 10 years on Count IV,
the possession conviction.
UNITED STATES v. OVERTON 8775
ton’s only objection related to the double jeopardy argument
raised in his previously denied post-conviction motion to dis-
miss. He requested a sentence at the low end of the Guidelines
range.
On February 29, 2008, the district court held a sentencing
hearing. After considering the arguments and evidence pre-
sented by both sides, Judge Molloy sentenced Overton to 235
months on Counts I, II, and III, and to 120 months on Count
IV, to run concurrently, and to be followed by a lifetime of
supervised release. Overton timely appeals his conviction and
sentence.
II
Overton first claims that the Government’s proof was insuf-
ficient to sustain a conviction on the sexual exploitation
counts charged in Counts I and II. Claims of sufficiency of the
evidence are reviewed de novo. United States v. Shipsey, 363
F.3d 962, 971 n.8 (9th Cir. 2004). Findings of fact, however,
are reviewed for clear error. United States v. Doe, 136 F.3d
631, 636 (9th Cir. 1998). Evidence is sufficient to support a
conviction unless, viewing the evidence in the light most
favorable to sustaining the verdict, no rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979). “The same test applies to both jury and bench trials.”
Doe, 136 F.3d at 636; Friends of Yosemite Valley v. Norton,
348 F.3d 789, 793 (9th Cir. 2003).
Overton was found guilty of violating two provisions of 18
U.S.C. § 2251, based on his conduct involving his stepdaugh-
ter. Section 2251(a), the basis of Count I, states as follows:5
5
The October 2008 amendments expanded the scope of § 2251(a) and
(b) by inserting additional language to prohibit the transmission of live
images of sexually explicit conduct. We quote to the version of § 2251 in
effect at the time of Overton’s conviction. 18 U.S.C. § 2251 (2006).
8776 UNITED STATES v. OVERTON
(a) Any person who employs, uses, persuades,
induces, entices, or coerces any minor to engage in,
or who has a minor assist any other person to engage
in, or who transports any minor in interstate or for-
eign commerce, or in any Territory or Possession of
the United States, with the intent that such minor
engage in, any sexually explicit conduct for the pur-
pose of producing any visual depiction of such con-
duct, shall be punished as provided under subsection
(e), if such person knows or has reason to know that
such visual depiction will be transported in interstate
or foreign commerce or mailed, if that visual depic-
tion was produced using materials that have been
mailed, shipped, or transported in interstate or for-
eign commerce by any means, including by com-
puter, or if such visual depiction has actually been
transported in interstate or foreign commerce or
mailed.
Section 2251(b), the basis of Count II, by comparison, states
in full:
(b) Any parent, legal guardian, or person having cus-
tody or control of a minor who knowingly permits
such minor to engage in, or to assist any other person
to engage in, sexually explicit conduct for the pur-
pose of producing any visual depiction of such con-
duct shall be punished as provided under subsection
(e) of this section, if such parent, legal guardian, or
person knows or has reason to know that such visual
depiction will be transported in interstate or foreign
commerce or mailed, if that visual depiction was
produced using materials that have been mailed,
shipped, or transported in interstate or foreign com-
merce by any means, including by computer, or if
such visual depiction has actually been transported
in interstate or foreign commerce or mailed.
UNITED STATES v. OVERTON 8777
Criminal penalties for violating the sexual exploitation statute
are stiff. Offenders face, at minimum, fines and imprisonment
of “not less than 15 years nor more than 30 years.” 18 U.S.C.
§ 2251(e).
[1] Congress defined “sexually explicit conduct” to include,
inter alia, the “lascivious exhibition of the genitals or pubic
area of any person.” 18 U.S.C. § 2256(2)(A)(v).6 In our circuit
the trier of fact will often look to six factors to determine
whether a visual depiction of a minor constitutes a “lascivious
exhibition of the genitals or pubic area” in the particular case:
1) whether the focal point of the visual depiction is
on the child’s genitalia or pubic area;
2) whether the setting of the visual depiction is sexu-
ally suggestive, i.e., in a place or pose generally
associated with sexual activity;
3) whether the child is depicted in an unnatural pose,
or in inappropriate attire, considering the age of the
child;
4) whether the child is fully or partially clothed, or
nude;
5) whether the visual depiction suggests sexual coy-
ness or a willingness to engage in sexual activity;
6) whether the visual depiction is intended or
designed to elicit a sexual response in the viewer.
6
As relevant to the counts here, the term “sexually explicit conduct” is
defined by 18 U.S.C. § 2256(2)(A) to mean “actual or simulated—(i) sex-
ual intercourse, including genital-genital, oral-genital, anal-genital, or
oral-anal, whether between persons of the same or opposite sex; (ii) bes-
tiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivi-
ous exhibition of the genitals or pubic area of any person.”
8778 UNITED STATES v. OVERTON
United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986),
aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th
Cir. 1987). The Dost factors, as they are commonly referred,
are neither exclusive nor conclusive, but operate as merely “a
starting point” for determining whether a particular image is
“so presented by the photographer as to arouse or satisfy the
sexual cravings of a voyeur.” United States v. Hill, 459 F.3d
966, 972 (9th Cir. 2006) (quoting Wiegand, 812 F.2d at
1244). “The factors are merely general principles as guides
for our analysis.” Id. (internal quotations omitted). “[T]he jury
should not be made to rely on the Dost factors with precision
to reach a mathematical result, or to weigh or count them, or
to rely on them exclusively.” United States v. Rivera, 546
F.3d 245, 253 (2d Cir. 2008) (finding no error in jury instruc-
tions based on the Dost factors and affirming conviction for
possession of child pornography). Dost itself encourages con-
sideration of any other factors that may be relevant in a partic-
ular case. 636 F. Supp. at 832.
Overton’s only quarrel regarding his sufficiency of the evi-
dence claim is his continued insistence that the nude photo-
graphs he took of JNW do not depict “sexually explicit
conduct” within the meaning of § 2251. Here, the district
judge, sitting without a jury and as the trier of fact, reviewed
the five photographs of JNW taken in March 2005, when she
was 17 years old. Although all were of JNW nude, Judge
Molloy concluded that only three, Exhibits 6-2, 6-4, and 6-5,
portrayed “sexually explicit conduct” because they depicted
the lascivious exhibition of JNW’s genitals or pubic area. The
district court supported its factual findings with detailed
descriptions of each photograph with reference to the Dost
factors:
Exhibit 6-2 depicts a lascivious exhibition of the
genitals or pubic area of the victim. Although the
child’s genitals are not the focal point of the image
and are partially covered, the child’s genitals are vis-
ible. The child’s breasts are also visible. The image
UNITED STATES v. OVERTON 8779
is sexually suggestive because the child is sitting on
a bed—a place generally associated with sexual
activity. The image also suggests sexual coyness.
The child is posed with her head down, hair hanging
in her face, and her arms covering her breasts. The
hair in the child’s face and arms partially covering
her breasts suggests sexual coyness or reluctance.
The victim testified that Overton directed her regard-
ing where to place her hands. Thus, the image’s
depiction of sexual coyness was intended and the
image was likely designed to elicit a sexual response
in the viewer.
Exhibit 6-4 depicts a lascivious exhibition of the
genitals or pubic area of the victim. The child is
standing by a fireplace nude. She is facing the cam-
era with her breasts fully exposed. The child’s hands
are covering part of her genitals. The child’s breasts
and genitals are the focal point of the image.
Although only the lower portion of the child’s face
is visible, her hair is covering her face, suggesting
sexual coyness. The image is likely to arouse or sat-
isfy the sexual cravings of a voyeur.
Exhibit 6-5 depicts a lascivious exhibition of the
genitals or pubic area of the victim. The image is a
close up, frontal view of the child’s genitals and
breasts, both of which are fully exposed. The child’s
genitals are in the center of the picture and are thus
the focal point of the image. The image is sexually
suggestive because the child is sitting with her legs
spread apart—a pose generally associated with sex-
ual activity. In light of the prominence of the child’s
genitals and her pose, the image was very likely
intended to elicit a sexual response in the viewer.
We must initially determine what standard of review
applies to Overton’s first argument on appeal. Overton argues
8780 UNITED STATES v. OVERTON
that de novo review of the photographs applies. We disagree.
Overton’s sufficiency of the evidence claim amounts to noth-
ing more than his personal disagreement with the trier of
fact’s findings with respect to the images of JNW. He merely
asks that we make our own independent determination
whether or not the photographs at issue depict “sexually
explicit conduct.”
[2] “The question of whether the pictures fall within the
statutory definition is a question of fact as to which we must
uphold the district court’s findings unless clearly erroneous.”
Wiegand, 812 F.2d at 1244. We have held, for example, that
“lascivious” is a “commonsensical term,” id. at 1243, and that
whether an image is lascivious is a determination that a lay
person can and should make “based on the overall content of
the visual depiction.” Hill, 459 F.3d at 972; see also United
States v. Arvin, 900 F.2d 1385, 1390 (9th Cir. 1990)
(“[W]hether a given photo is lascivious is a question of fact.
. . . Because the jury was fully capable of making its own
determination on the issue of ‘lasciviousness,’ the district
court did not abuse its discretion in excluding the expert testi-
mony.”). Here, as he articulates his sufficiency of the evi-
dence claim, Overton merely disputes Judge Molloy’s
findings that three digital pictures of JNW depict “sexually
explicit conduct.” Therefore, we apply the significantly defer-
ential, clearly erroneous standard to Overton’s challenge to
the district court’s findings of fact. See United States v.
Nemuras, 740 F.2d 286, 286-87 (4th Cir. 1984) (concluding
that the district court did not clearly err in finding that photo-
graphs of a 4-year-old girl depicted “sexually explicit con-
duct” and affirming defendant’s conviction under § 2251).
We must accept the district court’s findings unless upon
review we are left with the “definite and firm conviction that
a mistake has been committed.” Easley v. Cromartie, 532
U.S. 234, 242 (2001); accord United States v. Elliott, 322
F.3d 710, 715 (9th Cir. 2003) (“Where there are two permissi-
UNITED STATES v. OVERTON 8781
ble views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous.”).7
[3] Having reviewed the evidence presented to the district
court for ourselves, we find no error, clear or otherwise, in the
conclusion that Exhibits 6-2, 6-4, and 6-5 depict “sexually
explicit conduct.” Here, the Dost factors, while not defini-
tional, firmly substantiate the finding that these three images
depict the lascivious exhibition of the genitals or pubic area.
The district court’s analysis of these factors with respect to
the images at issue, supra, is thorough and sound. We there-
fore find it unnecessary to replicate this discussion and merely
adopt it as part of our own.
[4] We think the sixth Dost factor, “whether the visual
depiction is intended or designed to elicit a sexual response in
the viewer,” Dost, 636 F. Supp. at 832, is of particular utility
where, as is the case here, the criminal conduct at issue relates
to a defendant’s role in the production of the exploitative
images under review, and not merely the possession of illicit
materials. “Although it is tempting to judge the actual effect
of the photographs on the viewer, we must focus instead on
the intended effect on the viewer.” United States v. Villard,
885 F.2d 117, 125 (3d Cir. 1989). As we have held, “lascivi-
ousness is not a characteristic of the child photographed but
of the exhibition which the photographer sets up for an audi-
ence that consists of himself or likeminded pedophiles.” Wie-
gand, 812 F.2d at 1244; accord United States v. Wolf, 890
F.2d 241, 245 (10th Cir. 1989) (“[T]he Ninth [C]ircuit clearly
stated that to violate 18 U.S.C. § 2251 the photographer need
not portray the victimized child as a temptress.”). This is
7
We have examined the same evidence admitted by the district court
and we see no reason to overturn the factual findings under the rule set
down in Jackson v. Virginia for appellate review of sufficiency challenges.
We note that our determination regarding the applicable standard of
review, while important to the soundness of our appellate function, is not
outcome-determinative in this particular case. Application of the broader
de novo review would lead us to the same result.
8782 UNITED STATES v. OVERTON
because “[c]hildren do not characteristically have counte-
nances inviting sexual activity,” United States v. Frabizio,
459 F.3d 80, 89 (1st Cir. 2006), but “an innocent child can be
coaxed to assume poses or expressions that bespeak sexual
availability when viewed by certain adults.” Rivera, 546 F.3d
at 251. After all, “[t]he crime is the offense against the child
—the harm ‘to the physiological, emotional, and mental
health’ of the child; the ‘psychological harm; the invasion of
the child’s ‘vulnerability.’ ” Wiegand, 812 F.2d at 1245 (quot-
ing New York v. Ferber, 458 U.S. 747, 758, 775-76 (1982))
(citations omitted).
[5] Here, the circumstances surrounding the creation of the
homemade images only strengthen our conviction that the
exhibition in Exhibits 6-2, 6-4, and 6-5 is “lascivious.” Over-
ton shepherded JNW throughout the family’s home, photo-
graphing her in assorted poses with varied backdrops. JNW
testified at trial that Overton “told me what to do,” “he made
me pose,” and he would “tell me to move my hands in a cer-
tain way” so that “he could get a full shot.” Overton not only
instigated the photographic sessions, he also staged the shoot
and directed the action to fulfill his desired vision. He was
“responsible for the mise-en-scène.” Rivera, 546 F.3d at 250
(considering testimony that “Rivera arranged the poses and
took the photographs”).8 The prosecution also offered addi-
tional nude photographs of JNW recovered from Overton’s
computers. Although it did not rely on these images in con-
8
On appeal, Overton insists that the district court wrongly “supposed
that JNW was in poses suggested by Mr. Overton.” He denies doing so
and contends that “he just took the photos of her naked.” This claim, even
if true, is not compelling. In any event, Overton’s contention belies the
evidence presented at trial. The district court found JNW to be a credible
witness, while it found Overton not credible. The district court’s ruling on
the credibility of a witness is entitled to substantial deference. United
States v. Jordan, 291 F.3d 1091, 1100 (9th Cir. 2002). A reasonable juror
could easily have reached the same conclusion as the district court did
based on this evidence presented at trial. We see no reason to set aside that
credibility determination here.
UNITED STATES v. OVERTON 8783
victing Overton on the sexual exploitation counts because
there was a failure of proof as to JNW’s age at the time, the
district court properly considered these additional illicit pho-
tographs as evidence dispelling any notion that the March
2005 images were created for innocent artistic or educational
reasons. While distorted in his taste, Overton was clear in his
intentions. The homemade images of JNW were intended and
designed to elicit a sexual response in the voyeur—namely, in
Overton himself or likeminded individuals. The evidence
presented at trial provides profound insight into the exhibition
seen within the four corners of the photographs and supports
the conclusion that the three images of JNW at issue are a suf-
ficient predicate for the sexual exploitation offenses.
[6] Just as we found in Wiegand: “Plainly the pictures were
an exhibition. The exhibition was of the genitals. It was a las-
civious exhibition because the photographer arrayed it to suit
his particular lust. Each of the pictures featured the child pho-
tographed as a sexual object.” 812 F.2d at 1244. Because we
are without a “definite and firm conviction” that a mistake
was committed, we conclude that the district court, sitting as
the trier of fact, did not clearly err in determining that Exhib-
its 6-2, 6-4, and 6-5 each depict a lascivious exhibition of a
minor’s genitals or pubic area and thus “sexually explicit con-
duct,” as defined by the statute. Easley, 532 U.S. at 242.
Overton does not dispute the sufficiency of the evidence with
respect to any other element of the offenses. Therefore, view-
ing the evidence in the light most favorable to sustaining the
conviction, we hold that a rational fact-finder could find the
essential elements of the federal offenses, violations of
§ 2251(a) and (b), beyond a reasonable doubt. Jackson, 443
U.S. at 319.
III
We next turn to Overton’s constitutional claims. Overton
contends that his conviction on the various counts is unlaw-
fully multiplicitous and violates the Fifth Amendment’s Dou-
8784 UNITED STATES v. OVERTON
ble Jeopardy Clause. We review the legality of Overton’s
conviction and sentence de novo, United States v. Kimbrew,
406 F.3d 1149, 1151 (9th Cir. 2005), as we would review the
district court’s denial of his motion to dismiss based on dou-
ble jeopardy grounds. United States v. Hickey, 367 F.3d 888,
891 n.3 (9th Cir. 2004); United States v. Jose, 425 F.3d 1237,
1240 (9th Cir. 2005).
[7] “[T]he prohibition against double jeopardy is a corner-
stone of our system of constitutional criminal procedure.”
United States v. Davenport, 519 F.3d 940, 947-48 (9th Cir.
2008). The Fifth Amendment’s Double Jeopardy Clause pro-
vides: “[N]or shall any person be subject for the same offense
to be twice put in jeopardy of life or limb.” U.S. Const.
amend. V. This fundamental right has been interpreted to pro-
tect persons “against successive prosecutions for the same
offense after acquittal or conviction and,” as relevant here,
“against multiple criminal punishments for the same offense.”
Monge v. California, 524 U.S. 721, 727-28 (1998); accord
United States v. Elliot, 463 F.3d 858, 864 (9th Cir. 2006).
Generally stated, “[w]hen a defendant has violated two differ-
ent criminal statutes, the double jeopardy prohibition is impli-
cated when both statutes prohibit the same offense or when
one offense is a lesser included offense of the other.” Daven-
port, 519 F.3d at 943 (citing Rutledge v. United States, 517
U.S. 292, 297 (1996)). Congress, of course, has the power to
authorize multiple punishments arising out of a single act or
transaction. The constitutional guarantee against double jeop-
ardy merely assures that the court does not “exceed its legisla-
tive authorization by imposing multiple punishments for the
same offense.” Id.
As a preliminary matter, we acknowledge that conviction
on multiple counts carries collateral consequences that, if
unlawfully multiplicitous, we cannot ignore simply because
imposed sentences might run concurrently. “For example, the
presence of two convictions on the record may delay the
defendant’s eligibility for parole or result in an increased sen-
UNITED STATES v. OVERTON 8785
tence under a recidivist statute for a future offense . . . and
certainly carries the societal stigma accompanying any crimi-
nal conviction.” Rutledge, 517 U.S. at 302 (quoting Ball v.
United States, 470 U.S. 856, 864-65 (1985)). “Where we con-
clude that a defendant has suffered a double jeopardy viola-
tion because he was erroneously convicted for the same
offense under two separate counts, . . . ‘the only remedy con-
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.’ ” United States v. Schales, 546 F.3d 965, 980 (9th Cir.
2008) (quoting Ball, 470 U.S. at 864).
A
Overton claims that his conviction on both Counts I and II,
for the sexual exploitation of a minor, is unconstitutional. It
is undisputed that both counts were predicated on the March
2005 episode when Overton took nude photographs of his
minor stepdaughter. Thus, the double jeopardy claim here
turns on whether Overton was convicted twice for the same
offense.
As acknowledged by the parties, whether § 2251(a) and (b)
punish the same offense or separate offenses is a matter of
first impression in our circuit.9 Therefore, we must explore the
space. We employ the well-established Blockburger test to
evaluate Overton’s double jeopardy claim and conclude that
Congress intended the statutory provisions to constitute sepa-
rate offenses. Accordingly, we find Overton’s conviction on
separate sexual exploitation counts, Counts I and II, constitu-
tionally permissible.
9
But see United States v. Threadgill, 297 Fed. App’x 688, 690 (9th Cir.
2008) (memorandum disposition) (affirming dual convictions under
§ 2251(a) and (b) because Threadgill “has not demonstrated that [these
provisions] do not each require proof of a fact that the other does not”
under the Blockburger test).
8786 UNITED STATES v. OVERTON
1
[8] The Supreme Court set forth a generally applicable test
in Blockburger v. United States, 284 U.S. 299 (1932), to
determine whether two statutory provisions prohibit the same
offense. The Blockburger test, as it has become known, states:
“where the same act or transaction constitutes a 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.” Id. at 304. “If two different criminal statutory
provisions indeed punish the same offense or one is a lesser
included offense of the other, then conviction under both is
presumed to violate congressional intent.” Davenport, 519
F.3d at 943. Our analysis focuses on the statutory elements of
the offenses, not the actual evidence presented at trial. Kim-
brew, 406 F.3d at 1151.
The Blockburger test is merely “a ‘rule of statutory con-
struction,’ and because it serves as a means of discerning con-
gressional purpose the rule should not be controlling where
. . . there is a clear indication of contrary legislative intent.”
Albernaz v. United States, 450 U.S. 333, 340 (1981); accord
Davenport, 519 F.3d at 946; see also Missouri v. Hunter, 459
U.S. 359, 367-69 (1983) (holding that the Blockburger analy-
sis, which concluded that two statutes punished the defendant
for the same conduct, gave way to clear legislative intent to
permit multiple punishments). “Absent a clearly expressed
legislative intention to the contrary,” however, the statutory
language “must ordinarily be regarded as conclusive.”
Albernaz, 450 U.S. at 336 (internal quotations omitted).
[9] Applying the Blockburger test to this case, it is readily
apparent that § 2251(a) and (b) constitute separate offenses
from which we infer Congress’s intent to authorize multiple
punishments for a single act or transaction. As the district
court ruled and as the Government maintains on appeal, each
statutory provision requires proof of an additional fact which
UNITED STATES v. OVERTON 8787
the other does not. To obtain a conviction under § 2251(a),
the prosecution must prove that the defendant “employ[ed],
use[d], persuade[d], induce[d], entice[d], or coerce[d] any
minor to engage in,” “had a minor assist any other person to
engage in,” or “transporte[d] any minor in interstate or foreign
commerce . . . with the intent that such minor engage in, any
sexually explicit conduct for the purpose of producing any
visual depiction of such conduct.” 18 U.S.C. § 2251(a). In
contrast, to obtain a conviction under § 2251(b), the prosecu-
tion must prove that the defendant is a “parent, legal guardian,
or person having custody or control of a minor who know-
ingly permits such minor to engage in, or to assist any other
person to engage in, sexually explicit conduct for the purpose
of producing any visual depiction of such conduct.” 18 U.S.C.
§ 2251(b).
[10] The evidence necessary to establish a violation of
§ 2251(a) will not necessarily suffice for a conviction under
§ 2251(b), and vice versa. Compare Model Crim. Jury Instr.
9th Cir. 8.150 (2003) (18 U.S.C. § 2251(a)) with Model Crim.
Jury Instr. 9th Cir. 8.151 (18 U.S.C. § 2251(b)). “[I]t matters
not that there is ‘substantial overlap’ in the evidence used to
prove the two offenses, so long as they involve different statu-
tory elements.” Kimbrew, 406 F.3d at 1152. Sexual exploita-
tion of a minor under § 2251(a) requires proof of active or
coercive conduct by a defendant upon a minor, whereas
§ 2251(b) relates only to knowledge (by a person with custo-
dial control). See H.R. Conf. Rep. No. 95-811, at 6 (1977), as
reprinted in 1978 U.S.C.C.A.N. 69, 70 (noting that the crimi-
nal act of § 2251(b) “is to be an expression of knowledge and
control.”). On the flip side, sexual exploitation under
§ 2251(b) must be predicated on proof of the defendant’s
supervisory relationship with the minor. See S. Rep. No. 95-
438, at 16 (1977), as reprinted in 1978 U.S.C.C.A.N. 40, 54
(“Liability under 2251(b) would only attach to those persons
who are charged by law with control over the minor, or, have
been delegated and voluntarily accepted such control by the
person charged by law with such responsibility.”). Because
8788 UNITED STATES v. OVERTON
each statutory provision requires proof of an additional fact
the other does not, violations of § 2251(a) and (b) of Title 18
are not the same offense under Blockburger, and we presume
that Congress intended to permit multiple punishments for a
single act or transaction.
Overton does not argue that a Blockburger analysis pro-
duces a contrary finding regarding congressional intent.
Rather, citing our decisions in United States v. Keen, 104 F.3d
1111 (9th Cir. 1996), and United States v. Zalapa, 509 F.3d
1060 (9th Cir. 2007), he contends that the Blockburger test
does not apply because Counts I and II both arise out of viola-
tions of the same statute, 18 U.S.C. § 2251, and a single act
or transaction.10
Overton’s argument is unsound. The Blockburger test
plainly applies to our review of the offenses in question.
Because § 2251(a) and (b) are, without question, separate stat-
utory provisions, Keen and Zalapa are inapposite. Those
cases, like others upon which Overton mistakenly relies,
involve multiple convictions based on a single statutory provi-
sion. The defendant in Keen was convicted on two counts of
violating 18 U.S.C. § 922(g)(1), for simultaneously possess-
ing a firearm and its ammunition. 104 F.3d at 1118. We there
rejected the Government’s argument that the Blockburger test
permitted double punishment, finding the test inapplicable
because it only applies when “the same act or transaction con-
stitutes a violation of two distinct statutory provisions.” Id. at
1118 n.12 (quoting Blockburger, 284 U.S. at 304) (emphasis
10
In cases where Blockburger does not apply, courts look elsewhere for
congressional intent to determine the allowable unit of prosecution, see
Keen, 104 F.3d at 1118, and apply the rule of lenity to resolve any
ambiguities in favor of the criminal defendant. The Supreme Court
describes the rule as follows: “This policy of lenity means that the Court
will not interpret a federal criminal statute so as to increase the penalty
that it places on an individual when such an interpretation can be based
on no more than a guess as to what Congress intended.” Albernaz, 450
U.S. at 342 (quoting Ladner v. United States, 358 U.S. 169, 178 (1958)).
UNITED STATES v. OVERTON 8789
in original); see also Brown v. United States, 623 F.2d 54,
56-59 (9th Cir. 1980) (reviewing whether Congress clearly
intended to impose cumulative punishments for a single docu-
ment that twice violated 18 U.S.C. § 922(a)(6)). Overton’s
reliance on Zalapa, a double jeopardy case that, like Keen,
involved multiple convictions based on a single statutory pro-
vision, is similarly unavailing.11 509 F.3d at 1062 (reviewing
conviction on two counts of violating 26 U.S.C. § 5861(d),
arising out of the possession of a single unregistered firearm).
The applicability of the Blockburger test is well-established
and courts, including ours, universally apply it in situations
like the instant one—where a defendant was convicted under
separate statutory provisions. See, e.g., Davenport, 519 F.3d
at 943-46 (applying the Blockburger test to the defendant’s
conviction under separate provisions of 18 U.S.C. § 2252A);
Kimbrew, 406 F.3d at 1151-52 (applying Blockburger test to
separate criminal conspiracy counts). In sum, Blockburger
applies here. It confirms that § 2251(a) and (b) do not punish
the same offense but rather separate offenses, and indicates
that Congress intended to authorize multiple punishments for
a single act or transaction.
2
[11] Nothing in the legislative history of 18 U.S.C. § 2251
conclusively discloses “an intent contrary to the presumption
which should be accorded to these [statutory provisions] after
application of the Blockburger test.” Albernaz, 450 U.S. at
340. Heavily relying on the Supreme Court’s decision in Bell
v. United States, 349 U.S. 81 (1955), Overton argues that
11
We recognize that, while he cites Keen extensively, Overton’s argu-
ment is based on language from a footnote in Zalapa. See Zalapa, 509
F.3d at 1062 n.1. While at times we used the term “statute” interchange-
ably with “statutory provision,” we dismiss any suggestion that such case-
specific language carries authoritative value to this or any other case. We
readily recognize and adhere to the long-standing Blockburger test, as dic-
tated by the Supreme Court.
8790 UNITED STATES v. OVERTON
because the legislative history is ambiguous on the question
of multiple punishment, we should invoke the rule of lenity
so as to disallow the imposition of multiple punishment. He
is wrong. This turns the analysis on its head and improperly
ignores the implications of the Blockburger analysis of the
statutory language. Where there is no statutory ambiguity at
the outset, “the rule of lenity simply has no application.”
Albernaz, 450 U.S. at 343.
Bell, like Keen and Zalapa, discussed supra, is a case
where separate statutory provisions were not at issue. Bell,
349 U.S. at 82 (reviewing the defendant’s conviction on two
counts of violating the Mann Act, arising out of a single trans-
action). The Court did not apply the Blockburger test and
looked directly to the legislative history. Finding no clear
indication regarding Congress’s intent to authorize multiple
punishment, the Court applied the rule of lenity, resolving the
ambiguity against the imposition of a harsher punishment. Id.
at 83-84. Because Blockburger applies here and establishes
that Overton was not convicted and sentenced twice for viola-
tions of the same offense, Bell has little application to this
case, if any.
On this point, we need only look to the Supreme Court’s
decision in Albernaz to untangle Overton’s flawed logic. The
statutory offenses at issue there—i.e., conspiracy to import
marijuana, 21 U.S.C. § 963, and conspiracy to distribute mari-
juana, 21 U.S.C. § 846—“clearly satisf[ied] the rule
announced in Blockburger and [the defendants did] not seri-
ously contend otherwise.” 450 U.S. at 338. Nevertheless, the
defendants, noting the congressional silence on the topic, id.
at 340-41, argued that “because Congress has not spoken with
the clarity required . . . to find an ‘unambiguous intent to
impose multiple punishment,’ we should invoke the rule of
lenity and hold that the statutory ambiguity on this issue pre-
vents the imposition of multiple punishment.” Id. at 336. The
Court rejected this notion as “read[ing] much into nothing,”
and noted that “if anything is to be assumed from the congres-
UNITED STATES v. OVERTON 8791
sional silence on this point, it is that Congress was aware of
the Blockburger rule and legislated with it in mind.” Id. at
341-42. The Court went on to explain that “the touchstone of
the rule of lenity is statutory ambiguity. . . . Where Congress
has manifested its intention, we may not manufacture ambigu-
ity in order to defeat that intent. Lenity thus serves only as an
aid for resolving ambiguity; it is not to be used to beget one.”
Id. at 342 (internal citation and quotations omitted).
In a way, the Blockburger test determines who must come
forward with the clear legislative intent.12 Because the analy-
sis with regard to § 2251(a) and (b) indicates that multiple
punishment is permissible, that burden falls upon Overton to
present a “clearly expressed legislative intention to the con-
trary.” Albernaz, 450 U.S. at 336. He has failed to present a
showing of congressional intent contradicting the statutory
language. Instead, Overton, having bypassed the Blockburger
analysis altogether, contends that “[r]eview of the statutory
scheme reveals no clarity concerning dual penalties,” and that
“[t]he legislative history . . . is silent on the cumulative pun-
ishment issue.” Overton reckons that this purported observa-
tion benefits his case. It definitively does not. On the contrary,
congressional silence under these circumstances is detrimental
to and conclusively undermines his double jeopardy claim.
[12] Our independent review of the legislative history has
similarly failed to unearth anything conclusive in Overton’s
favor. Rather, in enacting the legislation, Congress contem-
plated § 2251(a) and (b) as unique and separate crimes. See,
e.g., S. Rep. No. 95-438, at 15-16, 20, as reprinted in 1978
U.S.C.C.A.N. 40, 53-54, 57-58 (separately discussing conduct
that would constitute each federal crime); Id. at 61 (“Adults
12
Even if we were to conclude that the Blockburger test did not apply,
we would still need to determine whether Congress intended to authorize
multiple punishments for a single act or transaction. In such a case, how-
ever, the Government would shoulder the burden of presenting clear legis-
lative intent to overcome the rule of lenity.
8792 UNITED STATES v. OVERTON
who permit children to participate in these activities play an
essential role in the production process somewhat akin to the
supplier of an essential material.”). The legislative history
strengthens our conclusion under Blockburger that Congress
intended § 2251(a) and (b) to constitute separate offenses for
which multiple punishment is permissible, especially in egre-
gious situations like the instant case. See id. at 46 (recogniz-
ing that in “the worst cases, the parents themselves lead the
children into this depravity.”).13
[13] We hold that § 2251(a) and (b) are separate offenses
and multiple punishments based on the same act or transac-
tion do not violate the Double Jeopardy Clause of the Fifth
Amendment. Overton’s convictions on Counts I and II are not
constitutionally barred, and the district court properly denied
his post-conviction motion to dismiss on that ground.
B
Overton also contends that his conviction on Count III,
receipt of child pornography in violation of 18 U.S.C.
§ 2252A(a)(2), and Count IV, possession of child pornogra-
phy in violation of 18 U.S.C. § 2252A(a)(5)(B), infringe upon
his constitutional right against double jeopardy. It has been
established that “the offense of possessing child pornography
is a lesser included offense of the receipt of child pornogra-
phy.” Davenport, 519 F.3d at 947 (holding that separate con-
victions under § 2252A(a)(2) and § 2252A(a)(5)(B) based on
13
Overton’s argument that § 2251(a) and (b) are not “directed to sepa-
rate evils” is also not compelling. To say that both offenses target “the
exploitation of children” is to define the undesired “evil” far too broadly.
Under this view, a vast array of statutory offenses, including, for example,
child prostitution, another issue addressed by the same legislation, would
also be included. See S. Rep. No. 95-438, at 16-17, as reprinted in 1978
U.S.C.C.A.N. 40, 54-55. Rather, the legislative history references the sep-
arate evils of targeting minors for use in the production of materials that
depict sexually explicit conduct and of knowingly permitting the use of
minors in such depravity by persons with legal control over the minor.
UNITED STATES v. OVERTON 8793
the same conduct violated the Double Jeopardy Clause); see
also United States v. Giberson, 527 F.3d 882, 891 (9th Cir.
2008) (applying Davenport). Therefore, while the Govern-
ment can indict and prosecute a defendant for both receipt and
possession of child pornography, entering judgment of con-
viction for both is multiplicitous and constitutionally imper-
missible when based on the same conduct. Davenport, 519
F.3d at 944.14
[14] Here, whether Overton’s conviction for both receipt
and possession of child pornography offends the Fifth
Amendment’s protection against double jeopardy depends on
whether the “conduct underlying both offenses is the same.”
Id. at 942; accord United States v. Kuchinski, 469 F.3d 853,
859 (9th Cir. 2006) (“If . . . the [receipt and possession of
child pornography] counts were based on the same acts, enter-
ing judgment on both of the offenses would be improper.”
(emphasis added)). Stated in reciprocal terms, where separate
conduct supports each offense, the Fifth Amendment’s Dou-
ble Jeopardy Clause is not implicated. In the instant case,
there is no double jeopardy violation and the district court
properly denied his motion to dismiss with respect to these
counts because Overton was not twice punished for the same
14
The term “child pornography” is defined by 18 U.S.C. § 2256(8), to
mean:
[A]ny visual depiction, including any photograph, film, video,
picture, or computer or computer-generated image or picture,
whether made or produced by electronic, mechanical, or other
means, of sexually explicit conduct, where—
(A) the production of such visual depiction involves the use of a
minor engaging in sexually explicit conduct;
(B) such visual depiction is a digital image, computer image, or
computer-generated image that is, or is indistinguishable from,
that of a minor engaging in sexually explicit conduct; or
(C) such visual depiction has been created, adapted, or modified
to appear that an identifiable minor is engaging in sexually
explicit conduct.
8794 UNITED STATES v. OVERTON
conduct. For this reason, Overton’s case is distinguishable
from our recent decisions where we have found double jeop-
ardy violations in different contexts.15
Schales, for example, involved a similar double jeopardy
challenge to a conviction for both possession and receipt of
contraband images. 546 F.3d at 969. Walter Schales was
apprehended after surreptitiously placing a camera underneath
the skirt of a 14-year-old girl at a Wal-Mart store and taking
a photograph. Id. at 968. A search of Schales’s residence
uncovered thousands of images of child pornography, includ-
ing downloaded material, still and video images of minors
that Schales had taken himself, and sexually explicit images
that Schales manipulated with photo-editing software on his
computer. Id. at 969. A jury convicted Schales for receiving
materials involving the sexual exploitation of minors in viola-
tion of 18 U.S.C. § 2252(a)(2) and for possessing such materi-
als in violation of 18 U.S.C. § 2252(a)(4)(B).
Schales appealed his conviction, claiming, among other
things, a double jeopardy violation. After combing the indict-
ment, jury instructions, and verdict form, we were unable to
confidently conclude whether separate conduct formed the
bases for the receipt and the lesser included possession
offenses. Id. at 979-80 (“On this record, we cannot conclude
that Schales was convicted of separate conduct.”). Indeed, it
was particularly noteworthy that the prosecution had argued
to the jury that conviction on both counts could be based
“solely on one image.” Id. at 980. We held that Schales’s dou-
ble jeopardy rights were violated and remanded the case to the
district court to vacate either the receipt or the possession con-
viction. Id. at 977, 980-81; accord United States v. Brobst,
15
We note that Judge Molloy’s order denying Overton’s post-conviction
motion to dismiss preceded the issuance of our opinions in Davenport,
Schales, and other recent cases. Therefore, neither the district court nor the
parties had the guidance of our current precedent when addressing the
double jeopardy issue.
UNITED STATES v. OVERTON 8795
558 F.3d 982, 1000 (9th Cir. 2009) (remanding with instruc-
tions that the district court vacate one of Brobst’s convictions
for either receipt or possession of child pornography, allowing
for it to be reinstated without prejudice if his other conviction
should be overturned on direct or collateral review).
Our record, in contrast, is sufficiently developed and we are
able to definitively conclude that Overton’s receipt and pos-
session convictions arose from separate misdeeds. On appeal,
Overton concedes that his conduct in relation to JNW is dis-
tinct from his conduct relating to the Internet child pornogra-
phy. He argues, however, that Judge Molloy, sitting in place
of the jury, did not rely on the homemade images with respect
to Counts III and IV, but instead premised both his receipt and
possession convictions solely on “the same images”—i.e., the
child pornography he downloaded from the Internet to his
home and work computers. Not so. The record, in our view,
plainly reveals otherwise.
In Schales, we reviewed a jury verdict and therefore under-
took the formidable task of probing the record to determine
the factual predicate for the defendant’s conviction. Our task
here, by contrast, is considerably simpler because we review
a bench trial conviction. We are furnished with direct access
to the written findings and conclusions of the trier of fact and
therefore need not resort to scrutinizing the indictment or jury
forms in an effort to surmise what formed the basis of each
conviction.16 Here, the trier of fact has spoken with a clear
voice.
16
We have, however, reviewed the indictment to determine whether it
forecloses reliance on certain images with respect to the possession
offense. It does not. Count IV charges as follows:
That on or about 2004 and continuing until June 5, 2006, at Man-
hattan and Bozeman, in the State and District of Montana, and
elsewhere, the defendant, WALTER OVERTON, knowingly pos-
sessed numerous computer files containing an image or images
or movies of child pornography that had been mailed, shipped, or
8796 UNITED STATES v. OVERTON
Overton made the same double jeopardy argument he pre-
sents to us in his post-conviction motion to dismiss. The dis-
trict court denied Overton’s motion and, in doing so, left no
doubt that the receipt and possession convictions were based
on separate conduct, stating “the Court did not rely on the
same act to establish both Overton’s receipt and possession of
child pornography.” Whereas “Overton’s conviction for
receipt of child pornography [was] based on the fact that
Overton searched for child pornography on the Internet using
search words including ‘teen,’ and then viewed and down-
loaded some of the images returned as a result of his search-
es,” his conviction for possession was based not only on the
downloaded images but also “on his possession of the three
sexually explicit photographs he took of his minor step
daughter . . . .” In other words, Judge Molloy—the trier of
fact who considered the evidence and returned the guilty
verdict—confirmed that he had based the possession convic-
tion in part on Overton’s illicit photographs of JNW. Only
rarely can we expect to find such a clear and decisive answer
in an appellate record.
We find further confirmation that the possession conviction
was based on separate conduct. Judge Molloy made detailed
factual findings regarding Overton’s retention of the digital
photographs, going so far as to specify the file folder names
transported in interstate or foreign commerce by any means,
including by a computer located at 8166 Frontage Road, Manhat-
tan, and computers at the MSU-Bozeman Campus, Bozeman,
Montana and other locations or that was produced using materials
that had been mailed, shipped, or transported in interstate or for-
eign commerce by any means, including by computer, in viola-
tion of 18 U.S.C. § 2252A(a)(5)(B).
Quite clearly, the indictment leaves open the possibility that conviction
might be premised on the pictures he produced, and not merely the down-
loaded images. Therefore, nothing precluded Judge Molloy from finding
Overton guilty of unlawful possession because he retained the photo-
graphs of his stepdaughter.
UNITED STATES v. OVERTON 8797
within which he stored the homemade images. The findings
also track Overton’s conduct in deceiving his wife into believ-
ing he destroyed the images of JNW while, in reality, he shut-
tled them between his work and home computers. Further, in
his written conclusions regarding the possession (but not the
receipt) conviction Judge Molloy included credibility determi-
nations, finding JNW “a credible witness,” Overton “not
believable or credible,” and Nelson “biased” in her husband’s
favor. He also found that the items used to produce the pic-
tures of JNW had been transported in interstate or foreign
commerce—a finding likewise included in connection with
the possession (but not the receipt) conviction. The only logi-
cal conclusion to draw from the district court’s express find-
ings is that the possession offense encompassed Overton’s
conduct with respect to the illicit images of his stepdaughter.
Overton makes no effort to persuade us otherwise, except to
simply turn a blind eye to an unsupportive record.
We also reject Overton’s argument that both convictions
cannot be premised, as a matter of principle, on “the same
images.” The federal criminal offenses at issue punish con-
duct, and nothing precludes downloaded images from sup-
porting conviction on multiple counts. See United States v.
Planck, 493 F.3d 501, 505 (5th Cir. 2007) (“For the posses-
sion statute in issue, . . . the actus reus is the possession of
child pornography; the Government need only prove the
defendant possessed the contraband at a single place and time
to establish a single act of possession and, therefore, a single
crime.). We spoke clearly in Schales, where we agreed that
the receipt of material involving the sexual exploitation of
minors on Schales’s computer hard drive and the subsequent
transfer to different physical media—e.g., printing the images
or transferring them to portable devices—constituted separate
conduct. 546 F.3d at 979. Following our sister circuit, we con-
cluded that “where a defendant has stored sexually explicit
images in separate mediums, the government may constitu-
tionally charge that defendant with separate counts for each
type of material or media possessed.” Id. (citing Planck, 493
8798 UNITED STATES v. OVERTON
F.3d at 504 (“[W]here a defendant has images stored in sepa-
rate materials (as defined in 18 U.S.C. § 2252A), . . . the Gov-
ernment 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.”)).
After all, as the Fifth Circuit reasoned in Planck, “[a] contrary
result would allow amassing a warehouse of child porno-
graphic materials . . . with only a single count of possession
as a potential punishment.” 493 F.3d at 504 (holding that
because Planck possessed child pornography in three separate
places, i.e., a laptop, a desktop computer, and diskettes, he
committed three different crimes and his conviction on three
possession counts was not multiplicitous). We explained that
there would have been no double jeopardy violation if Schales
was convicted of “receipt . . . for images that he downloaded
from the [I]nternet and [of] possession . . . for images that he
transferred to and stored on compact discs.” Schales, 546 F.3d
at 980. The record, however, failed to demonstrate that the
jury so found.
Applying this principle to the instant case, Overton’s dual
convictions could also be premised solely on his collection of
downloaded child pornography. The district court made
express findings that on many separate occasions Overton
used his home and work computers to download images of
minors engaged in sexually explicit conduct, which he there-
after knowingly possessed in different physical media, includ-
ing at least one computer hard drive and one computer disk.
Under our precedent, the transfer and storage of previously-
downloaded Internet images—to a memory card or diskette,
for example—describes conduct separate from the act of
downloading pornography and may thus provide sufficient
independent basis for a possession conviction. Overton’s dou-
ble jeopardy argument fails on this ground as well.
[15] As the record reveals, the district court did not unlaw-
fully convict Overton of both receipt and the lesser included
possession offenses based on the same conduct. Overton cre-
UNITED STATES v. OVERTON 8799
ated sexually explicit photographs of his stepdaughter JNW,
which he thereafter stored in various locations. This conduct
is separate and distinct from perusing Internet porn sites and
downloading images to his home and work computers. The
instant case is therefore distinguishable from prior cases
where we have found constitutional infirmities. Overton’s
conviction for both receipt and possession of child pornogra-
phy steers clear of the Fifth Amendment’s prohibition against
double jeopardy.
IV
Finally, Overton challenges the sentencing determination.
He does not dispute the district court’s Sentencing Guidelines
computations, and he concedes that the 235-month sentence
imposed was within, albeit at the upper end of, the Guidelines
range. He nevertheless contends that the district court failed
to adequately consider the factors of 18 U.S.C. § 3553(a) and
imposed a “one-size fits all” sentence that was too harsh
under the circumstances. There is a procedural as well as a
substantive element to this argument. “On appeal, we first
consider whether the district court committed significant pro-
cedural error, then we consider the substantive reasonableness
of the sentence.” United States v. Carty, 520 F.3d 984, 993
(9th Cir. 2008) (en banc), cert. denied sub nom. Zavala v.
United States, 128 S. Ct. 2491 (2008). We therefore address
each in turn.
A
Overton alludes to procedural error by accusing the district
court of failing to address the § 3553(a) factors and ade-
quately explain the sentence imposed. We disagree. Judge
Molloy discussed at length the basis for the within-Guidelines
sentence, properly articulated the role of both the Guidelines
and the § 3553(a) factors, and referenced the various consid-
erations that weighed into the sentencing determination.
Among other things, Judge Molloy contemplated on the
8800 UNITED STATES v. OVERTON
record “a need for the sentence imposed to reflect the serious-
ness of the offense and to promote a respect for the law and
to provide just punishment for the offense,” “the need to
afford adequate deterrence to criminal conduct,” the lasting
harm imposed on the victim, the ongoing threat Overton
posed to children, his need for treatment in a sex offender pro-
gram, as well as the goal of avoiding sentence disparities for
similar offenses.
The district court diligently satisfied its obligations at sen-
tencing. See United States v. Diaz-Argueta, 564 F.3d 1047,
1051-52 (9th Cir. 2009) (holding that the district court’s cal-
culation of the applicable Guidelines range and statement that
it had “carefully considered the Presentence Report and the
comments of counsel, and the memorandum filed on behalf of
the defendant” were sufficient to conclude that it had properly
accounted for the § 3553(a) factors in fashioning a sentence).
The law does not require a district court to “tick off each of
the § 3553(a) factors to show that it has considered them. We
assume that district judges know the law and understand their
obligation to consider all of the § 3553(a) factors not just the
Guidelines.” Carty, 520 F.3d at 992. “Nor need the district
court articulate in a vacuum how each § 3553(a) factor influ-
ences its determination of an appropriate sentence.” Id.
As the Supreme Court has recognized, “[w]hen a judge
decides simply to apply the Guidelines to a particular case,
doing so will not necessarily require lengthy explanation.”
Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456, 2468
(2007); accord United States v. Carter, 560 F.3d 1107, 1117
(9th Cir. 2009). “[I]n the ordinary case, the Commission’s
recommendation of a sentencing range will ‘reflect a rough
approximation of sentences that might achieve § 3553(a)’s
objectives.’ ” Carty, 520 F.3d at 996 (quoting Kimbrough v.
United States, 128 S. Ct. 558, 574 (2007) (internal citations
omitted)). While it is error for the sentencing court to weigh
the Guidelines range more heavily than other § 3553(a) fac-
tors or to presume that the Guidelines range is reasonable, id.
UNITED STATES v. OVERTON 8801
at 991, there is no indication that the district court did so here.
In fact, to the contrary, the district court recognized the
Guidelines as a “starting point” and as merely “advisory”
before proceeding through a reasoned analysis of the factors
considered in fashioning an appropriate sentence.
We further note that Overton’s argument for a low-end sen-
tence, which was primarily based on his alleged good charac-
ter, was straightforward and uncomplicated. Thus, a thorough
explanation by the court was not required. See Rita, 127 S. Ct.
at 2469. Even so, the district court here plainly took account
of Overton’s mitigation case. It also placed the character evi-
dence in perspective, noting that the “witnesses who testified
about [Overton’s] character at work had no knowledge of his
private proclivities or interests, including his interest in teach-
ing his teenage stepdaughter about sex,” and that the harm
imposed “is not a thing that can be overlooked by the sugges-
tion that the public persona of Walter Merle Overton is a man
of good character, of trustworthiness and grace.”
[16] In sum, the record before us more than sufficiently
demonstrates that the district court heard and considered
Overton’s arguments, contemplated the § 3553(a) factors, and
reached an informed conclusion regarding sentencing. The
sentencing judge gave no indication that he felt bound by the
Guidelines range or presumed it reasonable. He certainly “set
forth enough to satisfy the appellate court that he has consid-
ered the parties’ arguments and has a reasoned basis for exer-
cising his own legal decisionmaking authority.” Rita, 127 S.
Ct. at 2468; see also 18 U.S.C. § 3553(c). There was no pro-
cedural error.
B
Second, Overton claims the 235-month sentence was sub-
stantively unreasonable. We consider the substantive reason-
ableness of a sentence under the deferential abuse of
discretion standard. Gall v. United States, 128 S. Ct. 586, 597
8802 UNITED STATES v. OVERTON
(2007). “We may not reverse just because we think a different
sentence is appropriate.” Carty, 520 F.3d at 993. After all,
“[t]he sentencing judge is in a superior position to find facts
and judge their import under § 3553(a) in the individual case.
The judge sees and hears the evidence, makes credibility
determinations, has full knowledge of the facts and gains
insights not conveyed by the record.” United States v. Cherer,
513 F.3d 1150, 1160 (9th Cir. 2008) (quoting Gall, 128 S. Ct.
at 597); accord Carter, 560 F.3d at 1120. While our circuit
has declined to embrace an appellate presumption of reason-
ableness, “when the judge’s discretionary decision accords
with the Commission’s view of the appropriate application of
§ 3553(a) in the mine run of cases, it is probable that the sen-
tence is reasonable.” Carty, 520 F.3d at 994 (quoting Rita,
127 S. Ct. at 2465). Stated in other terms, “a correctly calcu-
lated Guidelines sentence will normally not be found unrea-
sonable on appeal.” Id. at 988.
Here, after considering the totality of the circumstances, the
district court imposed a 235-month sentence, at the high end
of the Guidelines range. As discussed supra, it is readily
apparent from the record that the district court considered the
§ 3553(a) factors in determining an appropriate sentence for
Overton. On appeal, Overton simply reargues the leniency
argument he made before the district court. Frankly, given the
severity of Overton’s misdeeds and his unwillingness or
inability to sufficiently recognize the gravity of his actions,
we find Overton’s mitigating evidence substantially underwhel-
ming.17 We, like the district court, find significant “the nature
and circumstances of the offense and the history and circum-
stances of Walter Merle Overton,” including, but not limited
to, Overton’s undeterred recidivism, the seriousness and
depravity of his actions with his stepdaughter, his admitted
“addiction” to pornographic material and conduct damaging
17
Overton spoke on his own behalf at the sentencing hearing and
described his illicit conduct with JNW as a battle of competing priorities.
UNITED STATES v. OVERTON 8803
to children, and the evidence of what can fairly be described
as “grooming” proclivities.
[17] In short, Overton offers nothing that persuades us that
the Guidelines sentence imposed by Judge Molloy was sub-
stantively unreasonable. The statutory maximum was 30
years. 18 U.S.C. § 2251(e). Here, we can easily conclude that
a high-end Guidelines sentence of 235 months was reason-
able. The district court did not abuse its discretion at sentenc-
ing.
V
For the foregoing reasons, we affirm Overton’s conviction
and sentence on all grounds. First, we find no error in the dis-
trict court’s finding that Exhibits 6-2, 6-4, and 6-5 portray the
lascivious exhibition of the genitals or pubic area and there-
fore depict “sexually explicit conduct.” Viewing the evidence
in the light most favorable to support the conviction, a ratio-
nal trier of fact could have found the essential elements of the
sexual exploitation counts beyond a reasonable doubt. Sec-
ond, because there is no clearly expressed legislative intention
to the contrary, the Blockburger test conclusively demon-
strates that violations of § 2251(a) and (b) constitute separate
offenses for which Congress authorizes multiple punishments.
Accordingly, Overton’s conviction on separate sexual exploi-
tation counts is constitutionally permissible. Third, the record
on appeal demonstrates that Overton’s conviction for receipt
and the lesser included possession of child pornography was
based on separate conduct and therefore does not violate his
Fifth Amendment double jeopardy rights. Finally, the district
court did not commit procedural error or abuse its discretion
in imposing the within-Guidelines sentence.
AFFIRMED.