                                                                           FILED
                           NOT FOR PUBLICATION                             MAY 28 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10196

              Plaintiff - Appellee,              D.C. No. 4:09-cr-00167-DLJ-1

  v.
                                                 MEMORANDUM*
EDWARD LEE SULLIVAN,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-10217

              Plaintiff - Appellant,             D.C. No. 4:09-cr-00167-DLJ-1

  v.

EDWARD LEE SULLIVAN,

              Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                 D. Lowell Jensen, Senior District Judge, Presiding

                      Argued and Submitted January 14, 2014
                            San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Circuit Rule 36-3.
Before: TALLMAN and IKUTA, Circuit Judges, and O’CONNELL, District
Judge.**

      Defendant Edward Sullivan appeals his convictions under 18 U.S.C.

§§ 2251(a) and 2252(a)(4)(B) as well as the sentences imposed. We have

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.1

      Defendant’s convictions under § 2251(a) and § 2252(a)(4)(B) did not violate

the Double Jeopardy Clause because each statute of conviction requires proof of an

element that the other does not. Blockburger v. United States, 284 U.S. 299, 304

(1932). Under § 2251(a), the government must prove that the defendant is a

person who “employs, uses, persuades, induces, entices, or coerces” a minor to

engage in sexually explicit conduct for purposes of producing a visual depiction of

that conduct. 18 U.S.C. § 2251(a); cf. Ninth Circuit Model Criminal Jury

Instruction 8.181. There is no corresponding element in § 2252(a)(4)(B). Under

§ 2252(a)(4)(B), the government must prove that the defendant knew that a minor

was involved in the visual depiction of sexually explicit conduct. 18 U.S.C.


          **
             The Honorable Beverly Reid O’Connell, United States District Court
Judge for the Central District of California, sitting by designation.
      1
       We resolve two of Sullivan’s claims in this memorandum, and resolve his
remaining claims as well as the government’s cross-appeal in a concurrently issued
opinion. United States v. Sullivan, – F.3d – (9th Cir. 2014).


                                         2
§ 2252(a)(4)(B); cf. Ninth Circuit Model Criminal Jury Instruction 8.185. There is

no corresponding element in § 2251(a). Because “[t]he Blockburger test focuses

on the statutory elements of each offense” rather than on evidence presented at

trial, it is irrelevant that the evidence used to convict Sullivan on both counts

overlapped. United States v. Kimbrew, 406 F.3d 1149, 1151–52 (9th Cir. 2005).

      We also conclude the district court did not abuse its discretion in excluding

polygraph evidence pursuant to Rule 403 of the Federal Rules of Evidence, even

though the court did not cite that rule in its decision. United States v. Ramirez-

Robles, 386 F.3d 1234, 1245 (9th Cir. 2004). The district court could reasonably

conclude that such evidence would not be helpful to the court, but would cause

undue delay and would waste time. Fed. R. Evid. 403. Accordingly, we need not

address whether the district court abused its discretion by not appointing a

polygraph expert. Defendant’s motion to augment the record on appeal is denied

as moot.

      Affirmed.




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