                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 20 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-50403

              Plaintiff - Appellee,              D.C. No. 3:08-cr-04402-DMS-1

  v.
                                                 MEMORANDUM *
DAVID GRUMMER,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                        Argued and Submitted July 10, 2012
                               Pasadena, California

Before: TALLMAN and N.R. SMITH, Circuit Judges, and BENSON, District
Judge.**

       David Grummer appeals his jury conviction and sentence for eighteen

counts of receipt of images of minors engaged in sexually explicit conduct in




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Dee V. Benson, District Judge for the U.S. District
Court for Utah, sitting by designation.
violation of 18 U.S.C. § 2252(a)(2) and five counts of possession of images of

minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4).

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      1. There was no unreasonable delay in conducting the search of Grummer’s

lawfully seized computer hard drives. The search warrant and supporting affidavit

did not contain a 90-day limitation on completing the search of the hard drives. Cf.

United States v. Krupa, 658 F.3d 1174, 1188 (9th Cir. 2011) (affidavit in support

of search warrant stated that “[t]he amount of time currently required for this

examination [of digital media] is 120 days plus 10 days for review” (emphasis

added)). Because the EPA agents acted diligently, the delay in conducting the

search was reasonable under the Fourth Amendment and Federal Rule of Criminal

Procedure 41. See United States v. Dass, 849 F.2d 414, 415 (9th Cir. 1988).

      2. Grummer’s argument that the search warrant was overbroad is waived,

because it was not raised before the district court. See United States v. Hay, 231

F.3d 630, 638 n.7 (9th Cir. 2000).

      3. Grummer’s argument that the methodology chosen by the EPA forensic

examiner was outside the scope of the search warrant is waived, because it was not

raised before the district court. See id.




                                            2
      4. Grummer’s argument that the good faith doctrine does not protect the

search is waived, because it was not raised before the district court. See id.

      5. Grummer’s conviction for both receipt and possession of images of

minors engaged in sexually explicit conduct was not plain error. “[W]hile the

government can indict a defendant for both receipt and possession of sexually

explicit material, entering judgment against him is multiplicitous and a double

jeopardy violation when it is based on the same conduct.” United States v.

Schales, 546 F.3d 965, 978 (9th Cir. 2008). However, “where separate conduct

supports each offense, the Fifth Amendment’s Double Jeopardy Clause is not

implicated.” United States v. Overton, 573 F.3d 679, 695 (9th Cir. 2009). No

authority prohibits the use of trial testimony to establish that separate conduct

supports each offense. Here, the sentencing district judge presided over the trial

and heard trial testimony showing that separate conduct supported the receipt and

possession counts. Because for sentencing purposes, the district judge could

conclude from the trial testimony that the receipt and possession counts were based

on separate conduct, any error committed by the district court was not plain. See

United States v. De La Fuente, 353 F.3d 766, 769 (9th Cir. 2003).

      AFFIRMED.




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