NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

 v. 

WILLIAM BLESSETT, 

Defendant-Appellant,

Nos. 19-10328, 19-10351

D.C. Nos. 2:06-cr-389-WBS 

2:18-cr-33-WBS

MEMORANDUM*

Appeals from the United States District Court

for the Eastern District of California

William Shubb, District Judge, Presiding

Argued and Submitted November 9, 2021

Pasadena, California

Before: COLLINS and LEE, Circuit Judges, and BAKER,**Judge.

William Blessett appeals his conviction for possession of child pornography,

and he separately appeals his 24-month prison sentence for violating the terms of his 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable M. Miller Baker, Judge for the United States Court of 

International Trade, sitting by designation.

FILED

APR 11 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

supervised release stemming from a previous conviction for possession of child pornography. We vacate his conviction for possession in No. 19-10351 and remand for 

a new trial, and we affirm his sentence for violation of his supervised release terms

in No. 19-10328.

In 2017, Blessett was arrested on charges of possession of child pornography 

and violation of the terms of his supervised release. During the execution of a search

warrant that preceded his arrest, federal agents found a laptop, two tablets, and five 

phones, together containing at least 2,009 images and 57 videos of child pornography.

1. In 2018, a grand jury indicted Blessett on one count of receipt of child pornography under 18 U.S.C. § 2252(a)(2), five counts of possession of child pornography under 18 U.S.C. § 2252(a)(4)(B), and a forfeiture allegation under 18 U.S.C. 

§ 2253(a) relating to the devices.

Shortly before trial, Blessett moved to dismiss the possession counts, arguing 

that the Double Jeopardy Clause prohibited charging separate counts of possession 

of child pornography for items found in one search but on different devices, based 

on this Court’s decision in United States v. Chilaca, 909 F.3d 289, 295 (9th Cir. 

2018). In response, the government filed a superseding indictment alleging one 
3 

count of receipt of child pornography under 18 U.S.C. § 2252(a)(2), together with a 

forfeiture allegation.

1

After Blessett moved to dismiss the new superseding indictment on various 

grounds, the district court gave the prosecution the choice of proceeding on the superseding indictment’s charge of receipt, on the lesser-included offense of possession in the superseding indictment’s receipt count, or on one of the original indictment’s possession counts. Both the prosecution and the defense agreed that proceeding on the superseding indictment’s lesser-included possession charge would resolve 

Blessett’s objections.

2 The district court stated that, in describing the charge in the 

jury instructions, it would use the word “possession” rather than “receipt,” and the 

defense agreed.

After the prosecution rested at trial, the defense objected to the prosecution’s 

request that the district court use the government’s proposed modified version of the 

pattern Ninth Circuit criminal jury instructions for possession of child pornography. 

As defense counsel explained, the pattern instructions incorporated additional 

1

In relevant part, the superseding indictment charged that Blessett “did knowingly 

receive at least one visual depiction on a cloud file hosting service and on at least 

one digital storage device, using a means and facility of interstate and foreign commerce, and which had been shipped and transported in and affecting interstate and 

foreign commerce, and which contained materials which had been so transported . . . 

all in violation of [18 U.S.C. § 2252(a)(2)].”

2 We are not asked to decide, and do not decide, whether Blessett’s various objections to the indictments had any validity.
4 

alternatives for the possession offense defined in § 2252(a)(4) that are not lesserincluded offenses of the receipt offense defined by § 2252(a)(2) and charged in the 

superseding indictment.

The district court overruled the defense’s objections, accepted the proffered 

instruction, and instructed the jury to convict Blessett for possession of child pornography if the pornography “had been either shipped or transported in interstate or 

foreign commerce, or, produced using or copied into material that had been transported in interstate or foreign commerce by computer or other means.” (Emphasis 

added.) After receiving these instructions, the jury returned a conviction.

In his timely appeal, Blessett argues that the jury instruction given at trial was 

erroneous because it set forth two possible means of proving an interstate commerce 

nexus, while the superseding indictment (which was based on the greater offense of

receipt of child pornography under 18 U.S.C. § 2252(a)(2)) captures only one of 

those means. See Stirone v. United States, 361 U.S. 212, 215–16 (1960).

We apply de novo review to allegations that an indictment was constructively 

amended, and “[i]f the court determines that the indictment was constructively 

amended, a reversal is always in order.” United States v. Tuan Ngoc Luong, 965 F.3d 

973, 984 (9th Cir. 2020) (citing United States v. Adamson, 291 F.3d 606, 615 (9th 

Cir. 2002)), cert. denied, 142 S. Ct. 336 (2021). “A constructive amendment occurs 

when the charging terms of the indictment are altered, either literally or in effect, by 
5 

the prosecutor or a court after the grand jury has last passed upon them.” United 

States v. Davis, 854 F.3d 601, 603 (9th Cir. 2017) (quoting United States v. Ward, 

747 F.3d 1184, 1190 (9th Cir. 2014)).

The question presented in this appeal is whether the district court constructively amended the superseding indictment through the jury instruction. Under the

charge given at trial, the jury could convict Blessett (assuming the other statutory 

elements were satisfied) if it found that pornographic material was shipped or transmitted in interstate or foreign commerce, or if the device onto which that material 

was copied or downloaded was itself shipped in interstate or foreign commerce. Although one form of possession of child pornography is a lesser-included offense of 

receipt of child pornography, United States v. Johnston, 789 F.3d 934, 937 (9th Cir. 

2015), the government wrongly contends that every form of the possession offense 

described in § 2252(a)(4) is “necessarily encompassed by the statutory language of 

the greater offense of receipt” in § 2252(a)(2).

The elements of receipt under § 2252(a)(2) require that a person “knowingly 

receive[], or distribute[], any visual depiction” of a minor engaging in sexually explicit conduct. See 18 U.S.C. § 2252(a)(2). Section 2252(a)(2) also requires an interstate commerce nexus, which may be satisfied by showing either (1) that the defendant received the visual depiction using any means or facility of interstate or foreign commerce”; or (2) that the visual depiction is one “that has been mailed, or has 
6 

been shipped or transported in or affecting interstate or foreign commerce, or which 

contains materials which have been mailed or so shipped or transported, by any 

means including by computer.” Id.

The elements of possession under § 2252(a)(4) require that the person “knowingly possess[], or knowingly access[] with intent to view[,]” any “matter which 

contain[s] any visual depiction” of “a minor engaging in sexually explicit conduct.”

18 U.S.C. § 2252(a)(4)(B). Section 2252(a)(4) also requires an interstate commerce 

nexus, but it phrases it differently. Specifically, it must be shown that the visual 

depiction is one that “has been mailed, or has been shipped or transported using any 

means or facility of interstate or foreign commerce or in or affecting interstate or 

foreign commerce, or which was produced using materials which have been mailed 

or so shipped or transported, by any means including by computer[.]” Id. (emphasis 

added). As this Court analogously noted in United States v. Davenport, 519 F.3d 

940, 944 (9th Cir. 2008), with respect to the distinct child-pornography offenses described in 18 U.S.C. § 2252A, “the interstate commerce requirement is technically 

different for receipt and possession.” That is, “the receipt provision [in § 2252A]

necessarily requires shipment of the pornography, while the possession provision 

may meet the interstate commerce nexus either by shipment or by alternative 

means.” Id. (emphasis added).
7 

A similar observation applies to § 2252(a). A defendant may be guilty of possession under § 2252(a)(4) even absent shipment of the pornographic material when, 

for example, that material was produced using a computer or cell phone that was 

itself transmitted across state lines. The elements for possession, therefore, are not 

always subsumed under the elements for receipt—it is possible for a defendant’s 

conduct to meet the interstate commerce nexus requirement for the former and not 

the latter. Put another way, possession under § 2252(a)(4) may be said to be a lesserincluded offense of receipt under § 2252(a)(2) only to their extent that their interstate-commerce elements overlap and not to the extent that they differ.

Here, the jury instructions—which were modelled on the Ninth Circuit’s instructions for the § 2252(a)(4)(B) possession offense—directed the jury that it may

find the interstate commerce element satisfied if the child pornography “had been 

either shipped or transported in interstate or foreign commerce” or “produced using 

or copied into material that had been transported in interstate or foreign commerce 

by computer or other means.” (Emphasis added.)

3 But the superseding indictment

alleged receipt under § 2252(a)(2), not possession, and those two offenses overlap 

only as to the first of the two nexuses in the jury instructions. That is, the jury could 

have convicted Blessett based on the view that he had copied images onto devices 

3 The phrase “copied into” was not in the Ninth Circuit pattern instruction but was 

proposed by the government based on the construction of “produced” in United 

States v. Guagliardo, 278 F.3d 868, 871 (9th Cir. 2002).
8 

shipped in interstate commerce, even if those images had not themselves been transported in interstate commerce (including by using a means or facility of interstate 

commerce). This means that the jury instructions given at trial opened a path for the 

jury to convict Blessett of a possession charge that was not a lesser-included offense 

of the receipt charge that was alleged in the superseding indictment.

An indictment is amended “ ‘when the charging terms of the indictment are 

altered, either literally or in effect, by the prosecutor or a court after the grand jury 

has last passed upon them.’ ” United States v. Von Stoll, 726 F.2d 584, 586 (9th Cir. 

1984) (quoting United States v Cusmano, 659 F.2d 714, 718 (6th Cir. 1981)). Because the possession offense described in the jury instructions allowed conviction 

based on a nexus element that was not included in the receipt offense charged in the 

indictment, that possession charge was to that extent not a lesser-included offense of 

the indictment’s receipt offense. See Schmuck v. United States, 489 U.S. 705, 716 

(1989); see also United States v. Nichols, 9 F.3d 1420, 1422 (9th Cir. 1993). As a 

result, it is impossible to know from the terms of the superseding indictment whether 

the grand jury would have indicted Blessett for the possession offense that rested on 

the non-overlapping interstate-nexus element, and we therefore must conclude that 

the challenged jury instruction constructively amended the indictment. Adamson, 

291 F.3d at 615. And when this court determines that constructive amendment has 

occurred, “a reversal is always in order.” Tuan Ngoc Luong, 965 F.3d at 984 (citing 
9 

Adamson, 291 F.3d at 615). We therefore vacate Blessett’s conviction for possession

and remand for the district court to conduct a new trial.

2. In his other timely appeal, Blessett challenges the district court’s imposition 

of a 24-month sentence for violation of the terms of his supervised release,

4

arguing 

that the district court failed to sufficiently explain its reasons for imposing the maximum sentence. Blessett acknowledges that defense counsel did not preserve this 

issue, so we review for plain error.

The district court explained that Blessett’s violation of the terms and conditions of his supervised release was a “serious breach of trust and the right message 

has to be sent on this one as well.” We find no error in the district court’s explanation 

for the sentence, especially in view of Blessett’s repeated violations of the terms of 

his supervised release. We therefore affirm Blessett’s sentence for the violation of 

his supervised release.

In No. 19-10351, VACATED AND REMANDED; in No. 19-10328, AFFIRMED.

4 This was not Blessett’s first violation of the terms of his supervised release for his 

2006 conviction.