FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANNY TEAGUE,

Defendant-Appellant.

No. 10-10276

D.C. No.

1:05-cr-00495-

LJO-1

OPINION

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted

January 15, 2013—San Francisco, California

Filed July 18, 2013

Before: A. Wallace Tashima, Susan P. Graber,

and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher
2 UNITED STATES V. TEAGUE

 This summary constitutes no part of the opinion of the court. It has

*

been prepared by court staff for the convenience of the reader.

SUMMARY

*

Criminal Law

The panel affirmed a criminal judgment in a case in which

the defendant, who was convicted of both receipt and

possession of child pornography, argued that he is being

punished twice for the same conduct in violation of the

Double Jeopardy Clause. 

The panel held that the district court erred by entering

judgment on both counts absent some assurance that the

convictions were based on separate conduct. In light of the

overwhelming and unrebutted evidence of separate conduct,

the panel held that the error did not affect the defendant’s

substantial rights.

COUNSEL

Carolyn D. Phillips, Fresno, California, for DefendantAppellant.

Benjamin B. Wagner, United States Attorney, Camil A.

Skipper, Appellate Chief, and Brian W. Enos (argued),

Assistant United States Attorney for the Eastern District of

California, Fresno, California, for Plaintiff-Appellee.
UNITED STATES V. TEAGUE 3

OPINION

FISHER, Circuit Judge:

A jury convicted Danny Teague of both receipt and

possession of child pornography. Because possession is a

lesser included offense of receipt, the convictions violate the

Fifth Amendment’s Double Jeopardy Clause if they were

based on the same conduct. See United States v. Overton,

573 F.3d 679, 695 (9th Cir. 2009). On the other hand, “where

separate conduct supports each offense, the Fifth

Amendment’s Double Jeopardy Clause is not implicated.” Id.

The prosecutor charged receipt of one set of files and charged

possession of a much larger set of files. Because the files

supporting the receipt count were a subset of the files

supporting the possession charge and the prosecutor did not

request, nor did the district court provide, an instruction

explicitly requiring the jury to base the two convictions on

separate conduct, it is theoretically possible the convictions

were based on the same conduct. We agree with Teague that

the district court erred by entering judgment on both counts

absent some assurance that the convictions were based on

separate conduct. In light of the overwhelming and

unrebutted evidence of separate conduct, however, we hold

that the error did not affect Teague’s substantial rights. We

therefore affirm.

BACKGROUND

In November 2005, a detective determined that a

computer owned by appellant Danny Teague was being used

to download child pornography from the Internet. The

computer was using the LimeWire program, a peer-to-peer

network that allows users to share files with other computers
4 UNITED STATES V. TEAGUE

on the Internet. Law enforcement agents executed a search

warrant on Teague’s house, located Teague’s computer in the

garage and found files containing child pornography on the

computer. The agents also located a briefcase, stored

underneath the computer desk, containing 20 compact discs

(CDs) containing child pornography. Because this case

hinges on the differences between them, we briefly address

the key attributes of the files on the CDs (the CD files) and

the files on the computer (the computer files).

The computer files comprised approximately 20 image

files and 11 movie files containing child pornography.

Unrefuted testimony established that they were downloaded

from the Internet in 2005. The computer files were stored on

the hard drive of Teague’s computer.

The CD files were located on CDs contained in a

briefcase under Teague’s computer desk. These files

included approximately 760 images of child pornography,

several of which were duplicates. The CD files discussed at

trial were created (i.e., saved to the CD) in 2002 and 2003,

although other files may have been created before 2002 or

after 2003. The briefcase containing the CDs also contained

receipts and other indicia showing that it belonged to Teague,

including documents addressed to him and documents signed

by him. The CDs themselves also included files showing that

they belonged to Teague, such as photos of Teague and his

family that had been taken with a camera found in Teague’s

closet. The CDs also contained sexually explicit photographs

of Teague, benign photos of Teague’s family and explicit

child pornographic images that had been digitally altered to

include Teague.
UNITED STATES V. TEAGUE 5

Teague was charged with three counts: (1) receipt or

distribution of material depicting the sexual exploitation of

minors in violation of 18 U.S.C. § 2252(a)(2); (2) possession

of material depicting the sexual exploitation of minors in

violation of 18 U.S.C. § 2252(a)(4)(B); and (3) production of

obscene visual representations of the sexual abuse of children

in violation of 18 U.S.C. § 1466A(a)(1). Teague was

convicted on all three counts, but he does not challenge the

third count here. Teague was sentenced to 230 months’

custody on Count 1 and 120 months’ custody on Count 2, the

sentences to run concurrently.

STANDARD OF REVIEW

We review Teague’s double jeopardy claim for plain error

because he raised it for the first time on appeal. See United

States v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008)

(“Although we normally review de novo claims of double

jeopardy violations, we review issues, such as the present

one, not properly raised before the district court for plain

error.” (citation omitted)). Under plain error review, the

convictions must be affirmed unless: “(1) there has been an

error in the proceedings below; (2) that error was plain; (3) it

affected substantial rights; and (4) it seriously affected the

fairness, integrity, or public reputation of judicial

proceedings.” Id.

DISCUSSION

Teague argues that he is being punished twice for the

same conduct in violation of the Double Jeopardy Clause,

because possession (Count 2) is a lesser included offense of

receipt (Count 1). As discussed below, the receipt count was
6 UNITED STATES V. TEAGUE

plainly based on the computer files. Teague’s appeal

therefore turns on the basis for the possession conviction.

I.

The Fifth Amendment’s Double Jeopardy Clause protects

a defendant from being punished twice for a single criminal

offense. See U.S. Const. amend. V. “When a defendant has

violated two different criminal statutes, the double jeopardy

prohibition is implicated when both statutes prohibit the same

offense or when one offense is a lesser included offense of

the other.” Davenport, 519 F.3d at 943.

Possession of child pornography is a lesser included

offense of receipt of child pornography because a person who

has received child pornography has also, by definition,

possessed it. See id. at 947. “Therefore, while the

Government can indict and prosecute a defendant for both

receipt and possession of child pornography, entering

judgment of conviction for both is multiplicitous and

constitutionally impermissible when based on the same

conduct.” Overton, 573 F.3d at 695. On the other hand,

“where separate conduct supports each offense, the Fifth

Amendment’s Double Jeopardy Clause is not implicated.” Id.

II.

The government maintains that the Double Jeopardy

Clause is not implicated here because the receipt count is

based on the computer files and the possession count is based

on the CD files. If so, the convictions are not multiplicitous.

See United States v. Schales, 546 F.3d 965, 980 (9th Cir.

2008) (“[T]here would have been no double jeopardy

violation if the government had distinctly charged Schales
UNITED STATES V. TEAGUE 7

 Count 1 charged that Teague: 1

beginning on an unknown date no later than on or about

March 5, 2004 and continuing through on or about

November 30, 2005, in Kern County, within the State

and Eastern District of California, and elsewhere did

knowingly receive and distribute any visual depiction

that had been mailed, shipped, or transported in

interstate or foreign commerce, or which contained

with both receipt . . . for the images that he downloaded from

the internet and with possession . . . for the images that he

transferred to and stored on compact discs.”).

Schales sets out the framework for double jeopardy

claims like Teague’s and, as here, involved child pornography

stored on a computer and CDs. We explained that, “where a

defendant has stored sexually explicit images in separate

medi[a],” such as on a hard drive and CDs, “the government

may constitutionally charge that defendant with separate

counts for each type of material or media possessed.” Id. at

979. The government did not do so in Schales. “Instead, the

indictment charge[d] Schales with receipt of the material by

way of downloading it from the internet onto his computer

and possession of this material in the same medium.” Id. at

980 (emphasis added). Schales could have been charged with

possession and receipt in different media. Because he was

not, however, his convictions were multiplicitous.

The indictment here charged Teague with receipt based

on the computer files and with possession based on both the

computer files and the CD files. Specifically, Count 1

charged that Teague received child pornography from the

Internet using a computer and modem between 2004 and

2005. Count 1 made no mention of compact discs and did 1
8 UNITED STATES V. TEAGUE

materials that had been so mailed, shipped, or

transported, and the producing of the depiction involved

a minor engaging in sexually explicit conduct and was

of such conduct, specifically: the defendant, using a

computer and modem, received or distributed via the

internet and interstate commerce, at least one visual

depiction, which the defendant then knew, was a visual

depiction, the producing of which involved the use of

a minor engaged in sexually explicit conduct . . . .

 Count 2 charged that Teague: 2

beginning on an unknown date no later than on or about

December 2001 and continuing to on or about

November 30, 2005, in Kern County, within the State

and Eastern District of California, and elsewhere did

knowingly possess 1 or more matters which contained

any visual depiction that had been mailed, shipped, or

transported in interstate or foreign commerce, or which

was produced using materials which had been so

mailed, shipped, or transported, the producing of which

involved a minor engaging in sexually explicit conduct

and the depiction was of such conduct, specifically: the

defendant possessed on an internal computer hard disc

drive and on one or more digital videos and/or compact

discs at least one image file which contained a visual

depiction, the producing of which involved the use of

a minor engaged in sexually explicit conduct . . . .

not specify 2002–03 as the time frame during which the CD

files were created. Count 2, by contrast, charged that Teague

possessed child pornography “on an internal computer hard

disc drive and on one or more digital videos and/or compact

discs” between 2001 and 2005.2

The indictment is an improvement on Schales to the

extent it charged possession in a medium (CDs) for which it

did not charge receipt. That the government charged separate
UNITED STATES V. TEAGUE 9

conduct, however, does not mean that the jury based its

convictions on separate conduct. Both counts referred to the

computer files so, in theory, the jury could have convicted

under both counts based solely on the files on Teague’s

computer, in violation of the Double Jeopardy Clause. Of

course, it is also possible that the jury found receipt based on

the files on the computer and found possession based, at least

in part, on the files on the CDs.

The conjunctive phrasing of the indictment created the

possibility of multiplicitous convictions, and neither the

government nor the district court did anything to remove that

possibility. On the contrary, the jury was not instructed that

it had to find separate conduct, the jury delivered a general –

rather than special – verdict and the government argued in

closing that the computer files supported the possession

conviction. The district court’s entry of judgment on both

counts, absent some assurance that the convictions were

based on separate conduct, was error.

III.

Next we must determine whether the error requires

reversal. To prevail on plain error review, Teague must show

“(1) there has been an error in the proceedings below; (2) that

error was plain; (3) it affected substantial rights; and (4) it

seriously affected the fairness, integrity, or public reputation

of judicial proceedings.” Davenport, 519 F.3d at 943. The

first two requirements are clearlymet. An error is plain when

it is “clear” or “obvious” under the law. United States v.

Olano, 507 U.S. 725, 734 (1993). Disregard of the separate

conduct requirement was a plain error.
10 UNITED STATES V. TEAGUE

Teague, however, has not satisfied the third requirement

– that the error affected substantial rights. “[I]n most cases

[this requirement] means that the error must have been

prejudicial: It must have affected the outcome of the district

court proceedings.” Id. Although we have not expressly

considered the circumstances under which the failure to

ensure that convictions were based on separate conduct is

prejudicial, we have considered the analogous situation where

a district court omits a necessary offense element from its

jury instructions.

A district court’s failure to instruct on a necessary offense

element “does not always ‘affect’ a defendant’s substantial

rights and . . . the failure to submit an element to the jury is

not per se prejudicial.” United States v. Alferahin, 433 F.3d

1148, 1157 (9th Cir. 2006). Specifically, such an error affects

substantial rights when “there is a reasonable probability the

jury’s verdict would have been different” had the jury been

properly instructed. United States v. Jenkins, 633 F.3d 788,

807 (9th Cir. 2011);see also United States v. Tuyet Thi-Bach

Nguyen, 565 F.3d 668, 677 (9th Cir. 2009) (holding that

failure to submit an element to the jury was not prejudicial

because the element had been established by “overwhelming

evidence”);United States v. Smith, 282 F.3d 758, 767–68 (9th

Cir. 2002) (holding that, because an element erroneously

omitted from jury instructions was undisputed, the

instructional error did not affect substantial rights). We may

consider facts logically implied by the fact of conviction

when evaluating whether an error is prejudicial. See United

States v. Baldwin, 987 F.2d 1432, 1439 (9th Cir. 1993)

(holding that a conviction of aiding and abetting was the

functional equivalent of a factual finding that the omitted

element had been satisfied).
UNITED STATES V. TEAGUE 11

 An instruction on separate conduct would have prevented the error in 3

this case so we apply the prejudice standard for an omitted jury instruction

here. That is not to say, however, that it is the only means by which the

district court could have assured itself that the convictions were based on

separate conduct.

Not instructing on an offense element is analogous to not

instructing on separate conduct, so we adopt the same

prejudice standard here. We hold that a failure to instruct on

separate conduct affects substantial rights when there is a

reasonable probability that the jury would not have convicted

on both counts had it been properly instructed.3

Applying this framework, we hold that the court’s failure

to give a separate conduct instruction or otherwise assure

itself the separate conduct requirement had been satisfied was

not prejudicial given the overwhelming evidence that Teague

possessed the CD files. The indictment separately charged

Teague with possessing the CD files. The CDs were found in

a briefcase along with receipts made out to him, documents

addressed to him and documents signed by him. The

briefcase was underneath the desk on which the computer

Teague used to download child pornography was located.

The CDs contained benign photos of Teague and his family,

sexually explicit photos of Teague and explicit child

pornographic images that had been digitally altered to include

Teague. Moreover, there was unrefuted evidence that photos

on the CDs were taken with the digital camera that agents

found in Teague’s closet. Teague did not contest any of these

facts.

Teague’s only defense at trial was that someone else had

committed the crimes he was charged with committing. He

pointed out that others had access to the computer and that
12 UNITED STATES V. TEAGUE

two of his step-grandsons had used it frequently. That the

jury convicted Teague of receiving child pornography on his

computer means it conclusively rejected his defense, thereby

also eliminating any doubt that Teague possessed the CDs

found in his briefcase just a few feet away.

In sum, the district court should have assured itself the

separate conduct requirement was satisfied. It could have

done so here by giving a jury instruction or by some other

means such as by providing the jury with a special verdict

form to list which files supported each conviction. Failure to

employ any such means was error, but it caused Teague no

prejudice. Teague was convicted of receiving child

pornography on his computer and the overwhelming evidence

shows that he also possessed child pornography in a different

medium – the CDs in his briefcase. Accordingly, we hold

that the error did not affect Teague’s substantial rights.

AFFIRMED.