June 18, 2009; see amended opinion filed July 14, 2009
Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding. D.C. No. 2:07-CR-00028- DWM
The opinion of the court was delivered by: Tallman, Circuit Judge
Argued and Submitted January 21, 2009 -- Seattle, Washington
Before: Thomas M. Reavley,*fn1 Senior Circuit Judge, Richard C. Tallman and Milan D. Smith, Jr., Circuit Judges.
Following a two-day bench trial before the Honorable Donald W. Molloy in the District of Montana, Walter Merle Overton was convicted on two counts of sexual exploitation of a minor in violation of 18 U.S.C. § 2251(a) and (b), and on separate counts of receipt of child pornography and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (a)(5)(B), respectively. The district court sentenced Overton to a term of incarceration of 235 months, to be followed by a lifetime of supervised release.
Overton advances several arguments on appeal. He contends (1) that there was insufficient evidence to support a conviction on the sexual exploitation counts, (2) that his conviction on the multiple counts violated the Fifth Amend-ment's prohibition against double jeopardy, and (3) that the district court committed reversible error in imposing his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
On June 5, 2006, an 18-year-old female, JNW, walked into a Manhattan, Montana bank, and disclosed to a teller that she had been raped earlier that morning by her stepfather, who was waiting outside. The bank teller immediately alerted the local sheriff's office. Deputies responded and arrested Walter Merle Overton.
Early that morning, Overton and his wife Laura Nelson Overton, JNW's natural mother ("Nelson"), left home for work at Montana State University ("MSU") in Bozeman, where they were both employed. Overton, however, surreptitiously made his way back to their house that morning.*fn2 Overton entered JNW's bedroom and, finding his stepdaughter alone in the house and still in bed, told her to remove her clothes.*fn3
In addition to engaging in sexual contact, he took nude pictures of her with a digital camera in various rooms of the house.
While in custody and after waiving his Miranda rights, Overton admitted to engaging in various sexual acts with his stepdaughter. The Gallatin County Sheriff's Office began an investigation and later the Federal Bureau of Investigation became involved.*fn4 The subsequent investigation resulted in the discovery of large quantities of electronically-stored pornographic images, many depicting children (which Overton had downloaded from the Internet), and nude pictures of JNW (which he had taken himself), all of which led to the federal charges and Overton's conviction now before us.
As he did on the morning of June 5, Overton had taken nude photographs of his stepdaughter on at least two prior occasions. The first of these incidents took place in about March 2005 when JNW was 17 years old and a minor. On this occasion, Overton confronted her with a camera and insisted that "a family should be closer and sexuality shouldn't be a big deal" and that JNW "shouldn't be afraid of [her] body." JNW ultimately acquiesced and allowed him to take nude photographs of her in various poses in both his bedroom and the living room. Overton later loaded the photographic images of JNW onto his home computer.
JNW later divulged to her mother what had occurred. Nelson confronted Overton, who admitted that he had photographed JNW and showed her at least one of the images. Nelson demanded that he dispose of the pictures and imposed a rule that Overton should not be alone with JNW in the future. Contrary to the assurances provided to his wife, Overton copied the homemade images of his minor stepdaughter to a memory device and transferred them to his work computer at MSU. Unbeknownst to Nelson or JNW, he later rein-stalled the illicit images of JNW onto the home computer.
In February 2007, Overton, with counsel present, was interviewed by FBI Special Agents Kevin Damuth and John Sorensen as part of the federal investigation. During that meeting Overton admitted that he routinely downloaded pornography, including child pornography, from the Internet, which he then saved to special directory folders on his home and work computers. He described his use of the MSU computer system, through which he accessed the Internet and searched free online pornography sites using suggestive search terms such as "teens." Overton admitted that he became sexually aroused when viewing these images and characterized his conduct as an "addiction."
Overton also told the agents that he had taken nude pictures of JNW on three separate occasions in 2005 and 2006. He then transferred those photographs from his digital camera to his computers, saving them in folders similar to those in which he placed the downloaded pornographic images. Overton also identified five photographs that were taken when JNW was 17 years old. At their request, Overton provided a written statement, confirming his admissions to the FBI agents.
Law enforcement discovered large quantities of pornography and illicit material on his home and work computers. A search of Overton's two work computers, for example, revealed over six gigabytes of images and video including pornography. Overton had created an "F" partition on the hard drive where he stored pornographic images, depicting both adults and children. The investigation also uncovered the homemade images of JNW.
In July 2007, a Grand Jury indicted Overton, charging him with four federal crimes. Counts I and II charged Overton with the sexual exploitation of a minor in violation of 18 U.S.C. § 2251(a) and (b), respectively, based on the nude photographs he took of his stepdaughter. Count III charged Overton with the knowing receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2), and Count IV charged him with the unlawful possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The indictment also included a forfeiture count pursuant to 18 U.S.C. § 2253(a).
Overton waived his right to trial by jury and proceeded with a bench trial before Judge Molloy. At trial, the prosecution introduced numerous images presumed to be child pornography, which were received without objection, as well as various pictures of JNW, including Exhibits 6-1 through 6-5, five photographs taken during the March 2005 incident when JNW was a minor. The prosecution called a total of nine witnesses, including JNW, Nelson, and Agent Damuth, and presented Overton's written statement from the February 2007 interview with FBI agents.
At the close of the Government's case-in-chief, Overton moved for acquittal on the ground that the prosecution failed to prove the elements in its case beyond a reasonable doubt, arguing that the pictures of JNW did not depict "sexually explicit conduct," as required for conviction. The district court denied the motion. Overton then took the stand in his own defense, denied matters previously admitted to FBI agents, and provided rationalizations for much of his conduct involving his stepdaughter.
At the conclusion of the two-day trial, the district court found Overton guilty on all counts and entered Findings of Fact & Conclusions of Law. Specifically, the court found that Overton created and thereafter possessed three sexually explicit photographs of his minor stepdaughter and also downloaded numerous images of child pornography from the Internet onto his home and work computers. Overton filed a motion for post-conviction dismissal, requesting dismissal of either Count I or II and either Count III or IV, alleging violations of the Fifth Amendment's Double Jeopardy Clause. The district court denied the motion in a detailed order.
The Probation Office prepared a lengthy Presentence Investigation Report ("PSR") for the sentencing phase, which described in detail the circumstances of the instant offenses and Overton's background. Several sources confirmed Over-ton's expressed belief that it was acceptable for adults to teach underage family members about sex. The PSR also relayed a past incident described by Overton's previous wife where he allegedly propositioned one of his biological daughters to engage in sexual activity. The child was 12 years old at the time. Based on the calculated offense level and criminal history, the Probation Office recommended a Sentencing Guidelines range for imprisonment of between 188 and 235 months. This range was within the permissible statutory range for the subject offenses.*fn5
The parties were provided with ample opportunity to review and respond to the PSR and the Probation Office's recommendation. The Government did not file objections. Over-ton's only objection related to the double jeopardy argument raised in his previously denied post-conviction motion to dismiss. He requested a sentence at the low end of the Guidelines range.
On February 29, 2008, the district court held a sentencing hearing. After considering the arguments and evidence presented by both sides, Judge Molloy sentenced Overton to 235 months on Counts I, II, and III, and to 120 months on Count IV, to run concurrently, and to be followed by a lifetime of supervised release. Overton timely appeals his conviction and sentence.
Overton first claims that the Government's proof was insufficient to sustain a conviction on the sexual exploitation counts charged in Counts I and II. Claims of sufficiency of the evidence are reviewed de novo. United States v. Shipsey, 363 F.3d 962, 971 n.8 (9th Cir. 2004). Findings of fact, however, are reviewed for clear error. United States v. Doe, 136 F.3d 631, 636 (9th Cir. 1998). Evidence is sufficient to support a conviction unless, viewing the evidence in the light most favorable to sustaining the verdict, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). "The same test applies to both jury and bench trials." Doe, 136 F.3d at 636; Friends of Yosemite Valley v. Norton, 348 F.3d 789, 793 (9th Cir. 2003).
Overton was found guilty of violating two provisions of 18 U.S.C. § 2251, based on his conduct involving his stepdaughter. Section 2251(a), the basis of Count I, states as follows:*fn6
(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed.
Section 2251(b), the basis of Count II, by comparison, states in full:
(b) Any parent, legal guardian, or person having custody or control of a minor who knowingly permits such minor to engage in, or to assist any other person to engage in, sexually explicit conduct for the purpose of producing any visual depiction ...