U.S. v. Schales

• Decision Date: 20 October 2008
• Docket Number: No. 07-10288.,07-10288.
• Citation: 546 F.3d 965
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter M. SCHALES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

546 F.3d 965

UNITED STATES of America, Plaintiff-Appellee, v. Walter M. SCHALES, Defendant-Appellant.

No. 07-10288.

United States Court of Appeals, Ninth Circuit.

Argued April 15, 2008.

Submitted and Filed October 20, 2008.

Daniel J. Broderick, Federal Defender, Melody M. Walcott, Assistant Federal Defender (Argued), of Fresno, CA, on behalf of defendant-appellant Walter M. Schales.

McGregor W. Scott, United States Attorney, David L. Gappa, Assistant United States Attorney (Argued), of Fresno, CA, on behalf of plaintiff-appellee The United States of America.

Appeal from the United States District Court for the Eastern District of California; Oliver W. Wanger, District Judge, Presiding. D.C. No. CR-05-00385-OWW.

Before: MARY M. SCHROEDER, RICHARD R. CLIFTON, and CONSUELO M. CALLAHAN, Circuit Judges.

CALLAHAN, Circuit Judge:

Walter M. Schales ("Schales"), who was forty-five years old at the time of this incident, approached a fourteen-year-old 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 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 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.

Obscenity has no protection under the First Amendment. See United States v. Williams, ___ U.S. ___, 128 S.Ct. 1830, 1835-36, 170 L.Ed.2d 650 (2008) (citing Roth v. United States, 354 U.S. 476, 484-85, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)). In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (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, 93 S.Ct. 2607 (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, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002).

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, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (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, 122 S.Ct. 1389.

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 PROTECT 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).

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, 122 S.Ct. 1389 (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, 122 S.Ct. 1389.

(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...