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Name: United States v. Schales
Case #: 07-10288
Court: US Court of Appeals
District 9 Cir
Opinion Date: 10/20/2008
Summary

A Double Jeopardy violation occurs when appellant is convicted of two offenses for which the government has not sufficiently alleged separate conduct. Following appellant’s arrest for surreptitiously taking pictures of underage females at a Wal-Mart store, law enforcement personnel searched his residence and discovered numerous items of child pornography and other types of pornography, as well as digital images appellant had created of children and sexual activities. Appellant was subsequently convicted of the federal offenses of receiving or distributing material involving sexual exploitation of minors; possessing materials involving the sexual exploitation of minors; and receiving or producing visual depiction of a minor engaging in sexually explicit conduct. The panel held that 18 U.S.C. § 1466A(a)(1), which proscribes obscene visual depictions of minors engaging in sexually explicit conduct, is not on its face unconstitutionally overbroad or vague; that because the statute requires that the government prove that the visual depiction is obscene and does not require that the minor depicted actually existed, it is not unconstitutional as applied to the defendant’s creation of morphed images; and that there was sufficient evidence to support the defendant’s conviction under that statute. But the panel agreed that the convictions for receiving material involving the sexual exploitation of minors and the lesser-included offense of possessing material involving the sexual exploitation of minors constituted a violation of the Double Jeopardy clause because the government failed to allege separate conduct for each offense.