FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 07-10288 Plaintiff-Appellee,

D.C. No.

v.  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
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, California, 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-yearold girl at a Wal-Mart store located in Hanford, California,

surreptitiously placed a digital camera underneath her miniskirt, 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 residence. Upon executing the warrant, law enforcement agents

discovered an immense quantity of child pornography.

Schales’s collection included a number of morphed photographs 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

UNITED STATES v. SCHALES 14731
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 evidentiary 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 residence. 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 pornography 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

14732 UNITED STATES v. SCHALES
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 computer, 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 distributing material involving the sexual exploitation of minors

(Count 1), possessing material involving the sexual exploitation 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 Amendment. See United States v. Williams, 128 S. Ct. 1830, 1835-36

(2008) (citing Roth v. United States, 354 U.S. 476, 484-85

UNITED STATES v. SCHALES 14733
(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 community 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 specifically 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 Ashcroft 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 pornography 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 engaging 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 incorporate 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 Prosecutorial Remedies and Other Tools to end the Exploitation of

Children Today Act of 2003 (“PROTECT Act”). The PRO14734 UNITED STATES v. SCHALES
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, distributes, 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 statute 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 Miller, 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. 

UNITED STATES v. SCHALES 14735
(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 paintings 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 Amendment’s vast and privileged sphere. Under this principle, [a

statute] is unconstitutional on its face if it prohibits a substantial 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]

14736 UNITED STATES v. SCHALES
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 material 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 immaterial 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 figures, 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 community 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

UNITED STATES v. SCHALES 14737
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 Miller 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[ ].” Whorley, id. at 697. Accordingly, we find that 18 U.S.C.

§ 1466A(a)(1) does not prohibit a substantial amount of protected 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 prohibited 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 proscribed conduct when measured by common understanding

and practices.” Hamling, 418 U.S. at 111 (citation and internal 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 articulated in Miller for testing the constitutionality of state legisla14738 UNITED STATES v. SCHALES
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,” “indecent,” 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 willingness 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 unconstitutionally 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 incorporate 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 purposes 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

UNITED STATES v. SCHALES 14739
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 material. 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 pornography in 18 U.S.C. § 2256(8), which requires that the “visual 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 section 1466A incorporates the definition of “child pornography”

and requires that actual minors be victimized. In fact, the statute explicitly provides that “[i]t is not a required element of

1Notably, 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). 

14740 UNITED STATES v. SCHALES
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 element 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 imaginary 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 creation 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) knowingly; (2) produces, distributes, receives or possesses with

intent to distribute; (3) a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting; (4) the visual

depiction depicts a minor engaging in sexually explicit conduct; 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

UNITED STATES v. SCHALES 14741
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” contained in 18 U.S.C. § 2256(8) requires that the visual depiction 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 government. 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 forensic report, which identified all of the images from the CDROM, 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 prepubescent female with what appears to be semen on her. The local

minor girl was identified by her father, who testified that the

2The term “producing” is defined as “producing, directing, manufacturing, issuing, publishing, or advertising.” 18 U.S.C. § 2256(3). 

3Detective Paige of the Palm Beach County Sheriff’s Office also testified 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. 

14742 UNITED STATES v. SCHALES
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 downloaded 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 approximately fifteen years old at the time, when the family was renovating 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 government 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 government could present testimony that Schales was seen at WalMart, that he walked behind a female with a camera in hand,

that he took pictures of her, that he was seen pushing buttons

4The jury was instructed on each element to sustain a conviction under

section 1466A(a)(1), including the Miller three-part obscenity test. 

UNITED STATES v. SCHALES 14743
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 separately 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) evidence 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 photographs of local minor girls to create morphed images. A district 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 discretion by admitting limited evidence of the Wal-Mart incident. 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 government 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).

14744 UNITED STATES v. SCHALES
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 responsibility based on the factors set forth in U.S.S.G. § 3E1.1. Schales

contends that the district court should have granted a downward 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 Guidelines 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 conduct.” 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 contesting 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 district 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 dealing with acceptance of responsibility. See U.S.S.G. § 3E1.1.

Recognizing that the district court is entitled to “great deference because of its unique position to evaluate a defendant’s

acceptance of responsibility,” Wilson, 392 F.3d at 1061 (citaUNITED STATES v. SCHALES 14745
tion and internal quotation marks omitted), we affirm the

court’s denial of a downward adjustment. 

F. The Double Jeopardy Clause Prohibits Schales’s Convictions for Both Receipt and Possession of Material

Involving the Sexual Exploitation of Minors. 

[15] The Fifth Amendment’s Double Jeopardy Clause protects criminal defendants against being punished twice for a

single criminal offense. U.S. Const. amend. V. Schales contends that his convictions for both receiving material involving 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 standard, 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 reputation 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 sexually 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 violation. Id. “[W]here the same act or transaction constitutes a

14746 UNITED STATES v. SCHALES
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 involving sexual exploitation of minors requires proof of an additional 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 pornography. 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 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). Cf. United States v. Miller, 527 F.3d 54, 64

n.10 (3d Cir. 2008) (noting that “[t]he jurisprudence concerning the receipt and possession of 18 U.S.C. § 2252 and the

comparable provisions of 18 U.S.C. § 2252A often converges” and that “[t]hese statutory provisions have been characterized 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 distributes any visual depiction that has been mailed, or has

been shipped or transported in interstate or foreign

UNITED STATES v. SCHALES 14747
commerce, or which contains materials which have

been mailed or so shipped or transported, by any

means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce by any means including

by computer or through the mails, if . . . (A) the producing 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 produced 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 depiction 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 criminalizing 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 contraband 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 judgment against him is multiplicitous and a double jeopardy vio14748 UNITED STATES v. SCHALES
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 sexually 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, prohibit the government from prosecuting a defendant for multiple 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 proving 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 Davenport where the defendant’s possession of images of child pornography was limited to the computer hard drive. 

[18] The statute proscribing the possession of sexually

explicit material prohibits the possession of “books, magaUNITED STATES v. SCHALES 14749
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 physical medium that contains the visual depiction such as a computer 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 government 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

14750 UNITED STATES v. SCHALES
defendant, using a computer and modem, received

and distributed via the Internet and interstate commerce, numerous image files, including but not limited 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 conduct . . . . 

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 commerce, specifically: the defendant obtained possession via the Internet of numerous image files,

including but not limited to Joint PhotographicExperts Format files and Graphic Interchange Formats (JPEG & GIF files) all of which contained

visual depictions, the producing of which involved

the use of minors engaged in sexually explicit conduct . . . . 

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 distinctly 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 downUNITED STATES v. SCHALES 14751
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 verdict do not lead us to a different conclusion. The district court

instructed the jury on the elements of both receipt and possession 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 possession 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 constitutional 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 con14752 UNITED STATES v. SCHALES
sistent with the congressional intent is for the [d]istrict

[c]ourt, where the sentencing responsibility resides, to exercise its discretion to vacate one of the underlying convictions.” 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 articulated 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 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). In this case, convictions 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 conviction and sentence except that the case is remanded 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 his conviction for possessing material involving the sexual exploitation of minors in

violation of 18 U.S.C. § 2252(a)(4)(B).

UNITED STATES v. SCHALES 14753