UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-10097 Plaintiff-Appellee, D.C. No. v. 2:07-cr-00425-MCE-1 JAMES E. JOHNSTON, Defendant-Appellant. OPINION

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., Chief District Judge, Presiding

Argued and Submitted March 9, 2015—San Francisco California

Filed May 26, 2015

Before: M. Margaret McKeown, Mary H. Murguia, and Michelle T. Friedland, Circuit Judges.

Opinion by Judge McKeown 2 UNITED STATES V. JOHNSTON

SUMMARY*

Criminal Law

The panel affirmed convictions for receipt of child pornography and conspiracy to produce child pornography and to travel internationally to engage in illicit sex, but vacated the judgment and remanded with instructions that the district court vacate the defendant’s conviction for possession of child pornography.

The panel reiterated that the offense of possession of child pornography is a lesser included offense of receipt of child pornography, and that under the Double Jeopardy Clause of the Fifth Amendment, it is constitutional error to enter a conviction against a defendant for both receipt and possession of child pornography for the same conduct. The panel held that in this case the record does not allow the conclusion that the convictions for receipt and possession were based on separate conduct.

The panel held that a reasonable jury could have found beyond a reasonable doubt each element of conspiracy to produce child pornography under 18 U.S.C. § 2251, and that the search of the defendant’s computer did not exceed the scope of the search warrant.

The panel rejected the defendant’s contention that the district court erred at sentencing by referencing facts that were stripped from the draft presentence report and by

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. JOHNSTON 3 admonishing him for failing to apologize for his actions, where the district court (1) clarified that the sentence was based solely on facts that were proven to the jury and undisputed sections of the presentence report and (2) explicitly recognized that remaining silent was the defendant’s right.

COUNSEL Joseph J. Wiseman (argued), Wiseman Law Group, PC, Davis, California, for Defendant-Appellant. Heiko P. Coppola (argued), Assistant United States Attorney; Benjamin B. Wagner, United States Attorney; Camil A. Skipper, Assistant United States Attorney and Appellate Chief, Sacramento, California, for Plaintiff-Appellee.

OPINION McKEOWN, Circuit Judge:

An investigation of a major child pornography website, “Illegal.cp”, led federal agents to a desktop computer in James Johnston’s home office. The contents of that computer were the basis of his convictions for possession and receipt of child pornography as well as conspiracy to produce child pornography and to travel internationally to engage in illicit sex.

Central to this appeal are Johnston’s convictions for both receipt and possession of child pornography. Consistent with our precedent in United States v. Davenport, 519F.3d9404 UNITED STATES V. JOHNSTON (9th Cir. 2008), as well as the views of a majority of the other circuits to consider the issue, we reiterate that the offense of possession of child pornography is a lesser included offense of receipt of child pornography. Under the Double Jeopardy Clause of the Fifth Amendment, it is constitutional error to enter a conviction against a defendant for both receipt and possession