                                                                              FILED
                            NOT FOR PUBLICATION                                JUN 10 2011

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-50236

               Plaintiff - Appellee,             D.C. No. 2:09-cr-00153-MMM-1

    v.
                                                 MEMORANDUM*
RICHARD MICHAEL WELTON,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                   Margaret M. Morrow, District Judge, Presiding

                              Submitted June 8, 2011**
                                Pasadena, California

Before: D.W. NELSON and IKUTA, Circuit Judges, and PIERSOL, Senior
District Judge.***




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
         ***
             The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for South Dakota, Sioux Falls, sitting by designation.
      Richard Michael Welton appeals his conviction for possession of child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). He argues that his

conviction must be reversed because there was a variance between the indictment

and the evidence presented at trial with regard to the dates on which he was alleged

to have possessed child pornography. Therefore, he contends, the evidence was

insufficient to convict him of the crime alleged in the indictment. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      “A person is entitled under the Fifth Amendment not to be held to answer

for a felony except on the basis of facts which satisfied a grand jury that he should

be charged.” United States v. v. Tsinhnahijinnie, 112 F.3d 988, 992 (9th Cir.

1997). “A variance occurs when the charging terms of the indictment are left

unaltered, but the evidence offered at trial proves facts materially different from

those alleged in the indictment.” United States v. Gil, 58 F.3d 1414, 1422 (9th Cir.

1995) (citations, quotation marks, and internal alterations omitted). However, to

satisfy constitutional requirements, “[t]he government ordinarily need prove only

that the crime occurred on a date reasonably near the one alleged in the indictment,

not on the exact date.” Tsinhnahijinnie, 112 F.3d at 991. If a variance “does not

affect the substantial rights of the defendant,” it is harmless error. Id. Where the

date is not a material element of the offense, a difference between the date alleged


                                          2
in the indictment requires no particular proof and constitutes reversible error only

if it violates the principles prohibiting variances by misleading the defendant or

creating a risk of double jeopardy. Id.

      In this case, the district court did not err in convicting Welton because any

variance was “not of a character which could have misled the defendant at the

trial” or subjected him to a “danger of double jeopardy.” Id. (internal quotation

marks and citations omitted). Nothing in the record indicates that there was any

confusion about what images were at issue. The proceedings pertained to the same

images throughout, and Welton was interviewed about those images, litigated

pretrial issues concerning them, and referred to them throughout the trial.

Additionally, there is no risk of double jeopardy because the court made extensive

factual findings that clearly covered the 95 images discovered in August 2007.

Hence, there should be no confusion over the scope of Welton's conviction.

      AFFIRMED.




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