                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA ,               No. 10-10276
            Plaintiff-Appellee,
                                            D.C. No.
              v.                         1:05-cr-00495-
                                             LJO-1
DANNY TEAGUE,
         Defendant-Appellant.              OPINION


     Appeal from the United States District Court
         for the Eastern District of California
     Lawrence J. O’Neill, District Judge, Presiding

                Argued and Submitted
     January 15, 2013—San Francisco, California

                   Filed July 18, 2013

     Before: A. Wallace Tashima, Susan P. Graber,
        and Raymond C. Fisher, Circuit Judges.

               Opinion by Judge Fisher
2                  UNITED STATES V . TEAGUE

                           SUMMARY*


                           Criminal Law

   The panel affirmed a criminal judgment in a case in which
the defendant, who was convicted of both receipt and
possession of child pornography, argued that he is being
punished twice for the same conduct in violation of the
Double Jeopardy Clause.

    The panel held that the district court erred by entering
judgment on both counts absent some assurance that the
convictions were based on separate conduct. In light of the
overwhelming and unrebutted evidence of separate conduct,
the panel held that the error did not affect the defendant’s
substantial rights.


                            COUNSEL

Carolyn D. Phillips, Fresno, California, for Defendant-
Appellant.

Benjamin B. Wagner, United States Attorney, Camil A.
Skipper, Appellate Chief, and Brian W. Enos (argued),
Assistant United States Attorney for the Eastern District of
California, Fresno, California, for Plaintiff-Appellee.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V . TEAGUE                    3

                         OPINION

FISHER, Circuit Judge:

    A jury convicted Danny Teague of both receipt and
possession of child pornography. Because possession is a
lesser included offense of receipt, the convictions violate the
Fifth Amendment’s Double Jeopardy Clause if they were
based on the same conduct. See United States v. Overton,
573 F.3d 679, 695 (9th Cir. 2009). On the other hand, “where
separate conduct supports each offense, the Fifth
Amendment’s Double Jeopardy Clause is not implicated.” Id.
The prosecutor charged receipt of one set of files and charged
possession of a much larger set of files. Because the files
supporting the receipt count were a subset of the files
supporting the possession charge and the prosecutor did not
request, nor did the district court provide, an instruction
explicitly requiring the jury to base the two convictions on
separate conduct, it is theoretically possible the convictions
were based on the same conduct. We agree with Teague that
the district court erred by entering judgment on both counts
absent some assurance that the convictions were based on
separate conduct. In light of the overwhelming and
unrebutted evidence of separate conduct, however, we hold
that the error did not affect Teague’s substantial rights. We
therefore affirm.

                       BACKGROUND

   In November 2005, a detective determined that a
computer owned by appellant Danny Teague was being used
to download child pornography from the Internet. The
computer was using the LimeWire program, a peer-to-peer
network that allows users to share files with other computers
4               UNITED STATES V . TEAGUE

on the Internet. Law enforcement agents executed a search
warrant on Teague’s house, located Teague’s computer in the
garage and found files containing child pornography on the
computer. The agents also located a briefcase, stored
underneath the computer desk, containing 20 compact discs
(CDs) containing child pornography. Because this case
hinges on the differences between them, we briefly address
the key attributes of the files on the CDs (the CD files) and
the files on the computer (the computer files).

    The computer files comprised approximately 20 image
files and 11 movie files containing child pornography.
Unrefuted testimony established that they were downloaded
from the Internet in 2005. The computer files were stored on
the hard drive of Teague’s computer.

     The CD files were located on CDs contained in a
briefcase under Teague’s computer desk. These files
included approximately 760 images of child pornography,
several of which were duplicates. The CD files discussed at
trial were created (i.e., saved to the CD) in 2002 and 2003,
although other files may have been created before 2002 or
after 2003. The briefcase containing the CDs also contained
receipts and other indicia showing that it belonged to Teague,
including documents addressed to him and documents signed
by him. The CDs themselves also included files showing that
they belonged to Teague, such as photos of Teague and his
family that had been taken with a camera found in Teague’s
closet. The CDs also contained sexually explicit photographs
of Teague, benign photos of Teague’s family and explicit
child pornographic images that had been digitally altered to
include Teague.
                 UNITED STATES V . TEAGUE                     5

    Teague was charged with three counts: (1) receipt or
distribution of material depicting the sexual exploitation of
minors in violation of 18 U.S.C. § 2252(a)(2); (2) possession
of material depicting the sexual exploitation of minors in
violation of 18 U.S.C. § 2252(a)(4)(B); and (3) production of
obscene visual representations of the sexual abuse of children
in violation of 18 U.S.C. § 1466A(a)(1). Teague was
convicted on all three counts, but he does not challenge the
third count here. Teague was sentenced to 230 months’
custody on Count 1 and 120 months’ custody on Count 2, the
sentences to run concurrently.

                   STANDARD OF REVIEW

    We review Teague’s double jeopardy claim for plain error
because he raised it for the first time on appeal. See United
States v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008)
(“Although we normally review de novo claims of double
jeopardy violations, we review issues, such as the present
one, not properly raised before the district court for plain
error.” (citation omitted)). Under plain error review, the
convictions must be affirmed unless: “(1) there has been an
error in the proceedings below; (2) that error was plain; (3) it
affected substantial rights; and (4) it seriously affected the
fairness, integrity, or public reputation of judicial
proceedings.” Id.

                         DISCUSSION

    Teague argues that he is being punished twice for the
same conduct in violation of the Double Jeopardy Clause,
because possession (Count 2) is a lesser included offense of
receipt (Count 1). As discussed below, the receipt count was
6                UNITED STATES V . TEAGUE

plainly based on the computer files. Teague’s appeal
therefore turns on the basis for the possession conviction.

                              I.

    The Fifth Amendment’s Double Jeopardy Clause protects
a defendant from being punished twice for a single criminal
offense. See U.S. Const. amend. V. “When a defendant has
violated two different criminal statutes, the double jeopardy
prohibition is implicated when both statutes prohibit the same
offense or when one offense is a lesser included offense of
the other.” Davenport, 519 F.3d at 943.

    Possession of child pornography is a lesser included
offense of receipt of child pornography because a person who
has received child pornography has also, by definition,
possessed it. See id. at 947. “Therefore, while the
Government can indict and prosecute a defendant for both
receipt and possession of child pornography, entering
judgment of conviction for both is multiplicitous and
constitutionally impermissible when based on the same
conduct.” Overton, 573 F.3d at 695. On the other hand,
“where separate conduct supports each offense, the Fifth
Amendment’s Double Jeopardy Clause is not implicated.” Id.

                              II.

    The government maintains that the Double Jeopardy
Clause is not implicated here because the receipt count is
based on the computer files and the possession count is based
on the CD files. If so, the convictions are not multiplicitous.
See United States v. Schales, 546 F.3d 965, 980 (9th Cir.
2008) (“[T]here would have been no double jeopardy
violation if the government had distinctly charged Schales
                    UNITED STATES V . TEAGUE                       7

with both receipt . . . for the images that he downloaded from
the internet and with possession . . . for the images that he
transferred to and stored on compact discs.”).

    Schales sets out the framework for double jeopardy
claims like Teague’s and, as here, involved child pornography
stored on a computer and CDs. We explained that, “where a
defendant has stored sexually explicit images in separate
medi[a],” such as on a hard drive and CDs, “the government
may constitutionally charge that defendant with separate
counts for each type of material or media possessed.” Id. at
979. The government did not do so in Schales. “Instead, the
indictment charge[d] Schales with receipt of the material by
way of downloading it from the internet onto his computer
and possession of this material in the same medium.” Id. at
980 (emphasis added). Schales could have been charged with
possession and receipt in different media. Because he was
not, however, his convictions were multiplicitous.

    The indictment here charged Teague with receipt based
on the computer files and with possession based on both the
computer files and the CD files. Specifically, Count 1
charged that Teague received child pornography from the
Internet using a computer and modem between 2004 and
2005.1 Count 1 made no mention of compact discs and did


 1
     Count 1 charged that Teague:

          beginning on an unknown date no later than on or about
          March 5, 2004 and continuing through on or about
          November 30, 2005, in Kern County, within the State
          and Eastern District of California, and elsewhere did
          knowingly receive and distribute any visual depiction
          that had been mailed, shipped, or transported in
          interstate or foreign commerce, or which contained
8                      UNITED STATES V . TEAGUE

not specify 2002–03 as the time frame during which the CD
files were created. Count 2, by contrast, charged that Teague
possessed child pornography “on an internal computer hard
disc drive and on one or more digital videos and/or compact
discs” between 2001 and 2005.2

    The indictment is an improvement on Schales to the
extent it charged possession in a medium (CDs) for which it
did not charge receipt. That the government charged separate


             materials that had been so mailed, shipped, or
             transported, and the producing of the depiction involved
             a minor engaging in sexually explicit conduct and was
             of such conduct, specifically: the defendant, using a
             computer and modem, received or distributed via the
             internet and interstate commerce, at least one visual
             depiction, which the defendant then knew, was a visual
             depiction, the producing of which involved the use of
             a minor engaged in sexually explicit conduct . . . .

    2
        Count 2 charged that Teague:

             beginning on an unknown date no later than on or about
             December 2001 and continuing to on or about
             November 30, 2005, in Kern County, within the State
             and Eastern District of California, and elsewhere did
             knowingly possess 1 or more matters which contained
             any visual depiction that had been mailed, shipped, or
             transported in interstate or foreign commerce, or which
             was produced using materials which had been so
             mailed, shipped, or transported, the producing of which
             involved a minor engaging in sexually explicit conduct
             and the depiction was of such conduct, specifically: the
             defendant possessed on an internal computer hard disc
             drive and on one or more digital videos and/or compact
             discs at least one image file which contained a visual
             depiction, the producing of which involved the use of
             a minor engaged in sexually explicit conduct . . . .
                 UNITED STATES V . TEAGUE                     9

conduct, however, does not mean that the jury based its
convictions on separate conduct. Both counts referred to the
computer files so, in theory, the jury could have convicted
under both counts based solely on the files on Teague’s
computer, in violation of the Double Jeopardy Clause. Of
course, it is also possible that the jury found receipt based on
the files on the computer and found possession based, at least
in part, on the files on the CDs.

    The conjunctive phrasing of the indictment created the
possibility of multiplicitous convictions, and neither the
government nor the district court did anything to remove that
possibility. On the contrary, the jury was not instructed that
it had to find separate conduct, the jury delivered a general –
rather than special – verdict and the government argued in
closing that the computer files supported the possession
conviction. The district court’s entry of judgment on both
counts, absent some assurance that the convictions were
based on separate conduct, was error.

                              III.

     Next we must determine whether the error requires
reversal. To prevail on plain error review, Teague must show
“(1) there has been an error in the proceedings below; (2) that
error was plain; (3) it affected substantial rights; and (4) it
seriously affected the fairness, integrity, or public reputation
of judicial proceedings.” Davenport, 519 F.3d at 943. The
first two requirements are clearly met. An error is plain when
it is “clear” or “obvious” under the law. United States v.
Olano, 507 U.S. 725, 734 (1993). Disregard of the separate
conduct requirement was a plain error.
10               UNITED STATES V . TEAGUE

    Teague, however, has not satisfied the third requirement
– that the error affected substantial rights. “[I]n most cases
[this requirement] means that the error must have been
prejudicial: It must have affected the outcome of the district
court proceedings.” Id. Although we have not expressly
considered the circumstances under which the failure to
ensure that convictions were based on separate conduct is
prejudicial, we have considered the analogous situation where
a district court omits a necessary offense element from its
jury instructions.

    A district court’s failure to instruct on a necessary offense
element “does not always ‘affect’ a defendant’s substantial
rights and . . . the failure to submit an element to the jury is
not per se prejudicial.” United States v. Alferahin, 433 F.3d
1148, 1157 (9th Cir. 2006). Specifically, such an error affects
substantial rights when “there is a reasonable probability the
jury’s verdict would have been different” had the jury been
properly instructed. United States v. Jenkins, 633 F.3d 788,
807 (9th Cir. 2011); see also United States v. Tuyet Thi-Bach
Nguyen, 565 F.3d 668, 677 (9th Cir. 2009) (holding that
failure to submit an element to the jury was not prejudicial
because the element had been established by “overwhelming
evidence”); United States v. Smith, 282 F.3d 758, 767–68 (9th
Cir. 2002) (holding that, because an element erroneously
omitted from jury instructions was undisputed, the
instructional error did not affect substantial rights). We may
consider facts logically implied by the fact of conviction
when evaluating whether an error is prejudicial. See United
States v. Baldwin, 987 F.2d 1432, 1439 (9th Cir. 1993)
(holding that a conviction of aiding and abetting was the
functional equivalent of a factual finding that the omitted
element had been satisfied).
                    UNITED STATES V . TEAGUE                            11

    Not instructing on an offense element is analogous to not
instructing on separate conduct, so we adopt the same
prejudice standard here. We hold that a failure to instruct on
separate conduct affects substantial rights when there is a
reasonable probability that the jury would not have convicted
on both counts had it been properly instructed.3

    Applying this framework, we hold that the court’s failure
to give a separate conduct instruction or otherwise assure
itself the separate conduct requirement had been satisfied was
not prejudicial given the overwhelming evidence that Teague
possessed the CD files. The indictment separately charged
Teague with possessing the CD files. The CDs were found in
a briefcase along with receipts made out to him, documents
addressed to him and documents signed by him. The
briefcase was underneath the desk on which the computer
Teague used to download child pornography was located.
The CDs contained benign photos of Teague and his family,
sexually explicit photos of Teague and explicit child
pornographic images that had been digitally altered to include
Teague. Moreover, there was unrefuted evidence that photos
on the CDs were taken with the digital camera that agents
found in Teague’s closet. Teague did not contest any of these
facts.

   Teague’s only defense at trial was that someone else had
committed the crimes he was charged with committing. He
pointed out that others had access to the computer and that


 3
    An instruction on separate conduct would have prevented the error in
this case so we apply the prejudice standard for an omitted jury instruction
here. That is not to say, however, that it is the only means by which the
district court could have assured itself that the convictions were based on
separate conduct.
12              UNITED STATES V . TEAGUE

two of his step-grandsons had used it frequently. That the
jury convicted Teague of receiving child pornography on his
computer means it conclusively rejected his defense, thereby
also eliminating any doubt that Teague possessed the CDs
found in his briefcase just a few feet away.

    In sum, the district court should have assured itself the
separate conduct requirement was satisfied. It could have
done so here by giving a jury instruction or by some other
means such as by providing the jury with a special verdict
form to list which files supported each conviction. Failure to
employ any such means was error, but it caused Teague no
prejudice. Teague was convicted of receiving child
pornography on his computer and the overwhelming evidence
shows that he also possessed child pornography in a different
medium – the CDs in his briefcase. Accordingly, we hold
that the error did not affect Teague’s substantial rights.

     AFFIRMED.
