                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 13-10097
           Plaintiff-Appellee,
                                         D.C. No.
              v.                   2:07-cr-00425-MCE-1

JAMES E. JOHNSTON,
          Defendant-Appellant.            OPINION


     Appeal from the United States District Court
         for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding

                Argued and Submitted
       March 9, 2015—San Francisco California

                    Filed May 26, 2015

   Before: M. Margaret McKeown, Mary H. Murguia,
       and Michelle T. Friedland, Circuit Judges.

              Opinion by Judge McKeown
2                 UNITED STATES V. JOHNSTON

                           SUMMARY*


                          Criminal Law

    The panel affirmed convictions for receipt of child
pornography and conspiracy to produce child pornography
and to travel internationally to engage in illicit sex, but
vacated the judgment and remanded with instructions that the
district court vacate the defendant’s conviction for possession
of child pornography.

    The panel reiterated that the offense of possession of child
pornography is a lesser included offense of receipt of child
pornography, and that under the Double Jeopardy Clause of
the Fifth Amendment, it is constitutional error to enter a
conviction against a defendant for both receipt and possession
of child pornography for the same conduct. The panel held
that in this case the record does not allow the conclusion that
the convictions for receipt and possession were based on
separate conduct.

    The panel held that a reasonable jury could have found
beyond a reasonable doubt each element of conspiracy to
produce child pornography under 18 U.S.C. § 2251, and that
the search of the defendant’s computer did not exceed the
scope of the search warrant.

    The panel rejected the defendant’s contention that the
district court erred at sentencing by referencing facts that
were stripped from the draft presentence report and by

  *
    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. JOHNSTON                     3

admonishing him for failing to apologize for his actions,
where the district court (1) clarified that the sentence was
based solely on facts that were proven to the jury and
undisputed sections of the presentence report and (2)
explicitly recognized that remaining silent was the
defendant’s right.


                         COUNSEL

Joseph J. Wiseman (argued), Wiseman Law Group, PC,
Davis, California, for Defendant-Appellant.

Heiko P. Coppola (argued), Assistant United States Attorney;
Benjamin B. Wagner, United States Attorney; Camil A.
Skipper, Assistant United States Attorney and Appellate
Chief, Sacramento, California, for Plaintiff-Appellee.


                         OPINION

McKEOWN, Circuit Judge:

    An investigation of a major child pornography website,
“Illegal.cp”, led federal agents to a desktop computer in
James Johnston’s home office. The contents of that computer
were the basis of his convictions for possession and receipt of
child pornography as well as conspiracy to produce child
pornography and to travel internationally to engage in illicit
sex.

    Central to this appeal are Johnston’s convictions for both
receipt and possession of child pornography. Consistent with
our precedent in United States v. Davenport, 519 F.3d 940
4               UNITED STATES V. JOHNSTON

(9th Cir. 2008), as well as the views of a majority of the other
circuits to consider the issue, we reiterate that the offense of
possession of child pornography is a lesser included offense
of receipt of child pornography. Under the Double Jeopardy
Clause of the Fifth Amendment, it is constitutional error to
enter a conviction against a defendant for both receipt and
possession of child pornography for the same conduct. See
Brown v. Ohio, 432 U.S. 161, 168–69 (1977); Davenport,
519 F.3d at 947–48. Johnston’s conviction for possession of
child pornography must be vacated. Johnston’s remaining
challenges do not merit reversal—sufficient evidence
supports the jury’s verdict; the search of his computer did not
exceed the scope of the search warrant; and the district
court’s comments at sentencing do not constitute procedural
or constitutional error.

                       BACKGROUND

   In February 2006, federal agents learned that James
Johnston had applied for membership with a child
pornography website. Later that year, agents obtained and
executed a search warrant for his home and computers.

    This search revealed that Johnston had stored images and
videos depicting child pornography in three places. To begin,
Johnston’s hard drive contained 304 videos downloaded from
the internet. Johnston also had received a compact disc with
more than ninety explicit images. Finally, Johnston’s email
inbox contained a total of four emails with attached images
that were duplicates of the images contained on the compact
disc.

    Agents searching Johnston’s computer also discovered a
series of sexually explicit Yahoo Instant Messenger chats
               UNITED STATES V. JOHNSTON                    5

between Johnston and a user named “Switlass.” In these
chats, Johnston expressed a desire to obtain child
pornography and travel overseas to engage in sex acts with
adolescent girls.

    In one exchange, Johnston requested that Switlass take
pictures of nude children for him. Switlass agreed to do so if
Johnston paid for her to purchase a “digicam.” Johnston told
Switlass “We are partners,” and the same day sent her $350
via Western Union. Just a few days later, Switlass sent
Johnston three emails and a CD with images of child
pornography.

    In another series of chats, Johnston made arrangements to
meet Switlass in the Philippines. Switlass promised to
arrange sexual encounters for Johnston with adolescent girls.
Johnston informed Switlass that he would be in the
Philippines in September 2006 and promised to bring
“hundreds of dollars” for the “underage girls.” He flew from
San Francisco to Hong Kong on August 31, 2006 and stayed
overseas until September 2007. Government agents followed
Johnston for one day in Bangkok; they observed him visiting
adult entertainment establishments but did not witness any
improper conduct towards minors.

   Johnston was arrested when he returned from Asia in
September 2007. He was eventually charged with and
convicted of one count of conspiracy to produce child
pornography, two counts of receipt of child pornography, one
count of possession of child pornography, and one count of
conspiracy to travel with intent to engage in illicit sexual
conduct.
6              UNITED STATES V. JOHNSTON

    The trial judge recused herself before sentencing. Judge
England assumed responsibility for Johnston’s case and
sentenced him to a within-Guidelines sentence of 293
months’ imprisonment.

                        ANALYSIS

I. DOUBLE JEOPARDY CHALLENGE

    The Double Jeopardy Clause of the Fifth Amendment
provides that no person “shall . . . be subject for the same
offence to be twice put in jeopardy of life or limb.” The
Supreme Court has explained that this provision precludes
dual convictions in situations where two different statutes
define the “‘same offense,’ typically because one is a lesser
included offense of the other.” Rutledge v. United States,
517 U.S. 292, 297 (1996).

    Johnston’s case fits this principle “to a T.” In Davenport,
we held that the offense of possession of child pornography,
18 U.S.C. § 2252A(a)(5)(B), is a lesser included offense of
receipt of child pornography, 18 U.S.C. § 2252A(a)(2).
519 F.3d at 947. Even if the second conviction does not
result in a greater sentence, imposing convictions under both
statutes for the “same conduct” constitutes plain error. Id. at
947–48. A majority of circuits that have considered the
question agree that possession of child pornography is a
lesser included offense of receipt and that imposing
convictions under both statutes for the same conduct violates
the Double Jeopardy Clause. See United States v. Benoit, 713
F.3d 1, 15–16 (10th Cir. 2013); United States v. Dudeck, 657
F.3d 424, 430 (6th Cir. 2011); United States v. Muhlenbruch,
634 F.3d 987, 1003 (8th Cir. 2011); United States v. Bobb,
577 F.3d 1366, 1374 (11th Cir. 2009); United States v. Miller,
               UNITED STATES V. JOHNSTON                     7

527 F.3d 54, 72 (3d Cir. 2008). Two additional circuits have
signaled their agreement with Davenport’s holding without
explicitly deciding the issue. See United States v. Brown, 701
F.3d 120, 127 (4th Cir. 2012) (stating without explanation
that a defendant convicted of both receipt and possession of
child pornography “has been convicted of multiplicitous
offenses”); United States v. Polouizzi, 564 F.3d 142, 159 (2d
Cir. 2009) (noting, in a case involving receipt and possession
charges based on separate conduct, that “we find the
reasoning of Davenport and Miller persuasive”). But see
United States v. Halliday, 672 F.3d 462, 470 (7th Cir. 2012)
(noting that “[o]ur sister circuits’ holdings regarding § 2252A
would cause us to question our earlier decisions” but
declining to reach the question because separate images
supported the defendant’s convictions for possession and
receipt).

    In later cases we reiterated that the Davenport rule
extends only to multiple convictions for the same criminal
act. “[W]here 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); see also United States v. Schales, 546 F.3d
965, 978 (9th Cir. 2008). In the context of child
pornography, a defendant may be convicted both of receipt of
one image and possession of another image, or for receipt of
an image on a hard drive and possession of the same image
on a compact disc, but not for receipt and possession of the
same image on the same device. See Schales, 546 F.3d at
979.

    To avoid offending the Double Jeopardy Clause when
prosecuting a defendant both for a crime and a lesser-
included offense, the government “must distinctly set forth”
8               UNITED STATES V. JOHNSTON

the criminal activity that forms the basis of each count. Id. at
980. In this appeal, we ask whether the record “allow[s] us
to conclude that the jury found [Johnston] guilty of separate
conduct.” Id.

    The record here allows no such conclusion. Agents
linked Johnston to three discrete sources of child
pornography: videos on his hard drive, images on a compact
disc, and images attached to emails. The indictment and the
jury verdict form both state that the possession charge (count
4) is based on Johnston’s possession of the hard drive and the
compact disc. In a special verdict, the jury found that he
possessed child pornography in both mediums.

     The receipt charges, however, do not specify the medium
in which Johnston received child pornography. Instead, the
indictment and jury instructions on those charges simply
reference the date range on which the receipt occurred. The
first receipt charge (count 2) alleged that Johnston received
child pornography “between on or about February 10, 2006,
and on or about March 4, 2006.” The second receipt charge
(count 3) alleged that Johnston received child pornography
“between on or about May 26, 2006, and on or about August
19, 2006.”

    The government acknowledges the conundrum of
multiplicitous convictions through its explanation that it
offered a special verdict on the possession charge in the event
the jury did not convict on one of the receipt charges. But
here, the government missed a step because the form does not
assure us that separate conduct formed the basis of the jury’s
decision to convict on each count. Admittedly, based on the
evidence, the date range specified in count 2 appears to limit
that count to the hard drive images. Although the
               UNITED STATES V. JOHNSTON                     9

government now asserts that count 3 relates only to the
images attached to the emails (which in fact were essentially
duplicates from the CD), the date range listed encompasses
the time during which Johnston received both the CD and the
emails. Therein lies the problem—there is an obvious
overlap between the dates and evidence for the possession
count and count 3 receipt. See United States v. Teague,
722 F.3d 1187, 1191–92 (9th Cir. 2013) (noting that charging
documents with overlapping date ranges and mediums
“create[] the possibility of multiplicitous convictions”). We
are left with the inescapable result that we cannot confirm
that the jury convicted Johnston of separate conduct in the
possession charge.

    To bridge this gap, the government argues that we should
overlook its failure to specify the separate conduct underlying
each conviction in the indictment and jury instructions
because the prosecutor’s closing argument clarified what
evidence supported each count. To begin, a prosecutor’s
closing argument is simply that—argument—and cannot
supply a missing evidentiary link. As the court appropriately
instructed the jury, “what the lawyers have said in their . . .
closing arguments . . . is intended to help you interpret the
evidence, but it is not evidence.” Even so, in this case we
cannot discern anything helpful from the summation. The
prosecutor repeatedly referred to the receipt and possession
counts in the same breath without any indication that the jury
was required to consider separate conduct for each count.
Even more confusing was the mixing and matching of
references to whether count 3 related to the CD or the email
photographs.

   It bears emphasizing that the decision of how to charge
and prosecute a defendant accused of both receiving and
10             UNITED STATES V. JOHNSTON

possessing child pornography rests entirely within the
government’s control. A prosecutor may pursue both receipt
and possession convictions in a child pornography case by
specifying the different criminal acts that form the basis of
each count. An obvious solution up front is to consider
delineating in the indictment which images relate to which
count. Alternatively, the government could submit to the jury
both a receipt and a possession count based on the same
conduct, but request that the court vacate or stay the
possession conviction if there is a receipt conviction for
duplicate conduct. Indeed, the range of electronic media will
often result in separate conduct stemming from images
downloaded to a hard drive, images transferred from a hard
drive to a CD, or physical prints of digitally transmitted
images. The government’s options are as varied as the
technology the defendant might employ, but the law requires
sufficient specificity to avoid implicating the Double
Jeopardy Clause. We vacate the judgment and remand with
instructions that the district court vacate Johnston’s
conviction for possession of child pornography.

II. SUFFICIENCY OF THE EVIDENCE

   Johnston argues that there was insufficient evidence to
support his conviction for conspiracy to produce child
pornography under 18 U.S.C. § 2251. Although Johnston
advances an interpretation of the evidence that absolves him
of guilt, we affirm because a reasonable jury could have
found each element of the offense beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

    According to chat records, Switlass—whom agents
believed to be an adult prostitute located overseas—and
Johnston discussed sex with young girls, money, photos, and
                  UNITED STATES V. JOHNSTON                           11

a possible party with Switlass and two girls. On May 25,
2006, the conversation turned to production of pictures.
Johnston told Switlass that he wanted her to produce child
pornography. At Switlass’s request, Johnston promptly sent
her $350 to purchase a “digicam” to take photographs of
minor females. After that discussion, Johnston told Switlass
“we are partners” and asked her to “send me one 12 year
picture.” Although Switlass asked for $400, Johnston in a
later chat explained that $350 should be enough for a camera.

    Based on the chat transcripts, the enterprise on the table
on May 25 was an effort, which Johnston characterized as a
partnership, to photograph underage girls. The conspiracy
was born. A reasonable jury could have viewed that evidence
as more than sufficient to establish that Johnston and Switlass
formed a conspiracy to produce child pornography in
violation of 18 U.S.C. § 2251.

    Johnston attempts to escape this conclusion by pointing
out that some of the photographs he received from Switlass
were produced months before their chats. In Johnston’s view,
this timing demonstrates that Switlass never intended to
produce any new child pornography, but instead only to sell
Johnston already-existing images. According to Johnston,
there was only a “one-way” agreement; because Switlass
and he never had a shared criminal intent, there was never a
“meeting of the minds” required to support a conspiracy
conviction.1



  1
    The government’s position that Switlass’s intent is irrelevant so long
as Johnston honestly believed he was entering a conspiracy contradicts
well-established law. The essence of a conspiracy is a “meeting of the
minds.” If “two defendants act in concert to achieve a different goal, the
12                UNITED STATES V. JOHNSTON

    Although Johnston’s version of events is not entirely
implausible, the jury was entitled to reject it. Notably,
Johnston’s gloss on the evidence overlooks the almost
contemporaneous events of his solicitation to Swittlass, her
request for money to undertake the filming, and Johnston’s
confirmation that they were “partners.” Even if the evidence
regarding the production date of the photographs had been
iron-clad (which it was not), a “rational factfinder” could
have concluded beyond a reasonable doubt that the chat
records nonetheless demonstrated the existence of an
agreement between Johnston and Switlass to produce child
pornography. See Jackson, 443 U.S. at 324. We decline to
second-guess a reasonable jury’s interpretation of the
evidence.

III.     COMPUTER SEARCH

    The government obtained a warrant in September 2006 to
search Johnston’s computer for child pornography, sexual
activity with children, and the production, distribution,
possession, or receipt of child pornography. Initially the
government performed what it termed “preliminary
forensics” and a “bare minimum” scan of his home office
computer. Johnston challenges a much later search, in 2011,
when a government agent viewed Johnston’s emails, chat
logs, and internet search history. He argues that this search
exceeded the scope of the warrant and thus that evidence
relating to his convictions for conspiracy to produce child
pornography and conspiracy to travel overseas for the
purpose of having illicit sex was obtained through an illegal
search.


government has not shown a meeting of the minds as to a common scheme
or plan.” United States v. Lorenzo, 995 F.2d 1448, 1459 (9th Cir. 1993).
               UNITED STATES V. JOHNSTON                    13

    The principles relating to execution of search warrants are
well known. To pass constitutional muster, the “search must
be one directed in good faith toward the objects specified in
the warrant or for other means and instrumentalities by which
the crime charged had been committed.” United States v.
Rettig, 589 F.2d 418, 423 (9th Cir. 1978). When the
defendant challenges the manner in which a search was
conducted, we examine the language of the search warrant
and ask whether “a reasonable officer [would] have
interpreted the warrant to permit the search at issue.” United
States v. Gorman, 104 F.3d 272, 274 (9th Cir. 1996). Thus, a
search authorized by a valid warrant may nonetheless be
unreasonable if the officers conducting the search exceed the
scope of the warrant and, for example, begin looking for files
that are not related to the subject of the search warrant. See
United States v. Hill, 459 F.3d 966, 978 (9th Cir. 2006).

   In September 2006, federal agents obtained a search
warrant to search Johnston’s home, computers, and any other
“computer-related” hardware, software, and equipment for:

       # Any and all visual depictions of minors
         engaging in sexually explicit conduct in
         any format or media, including, but not
         limited to, computer photographs . . .
         [and] information pertaining to the sexual
         interest in child pornography, sexual
         activity with children or the production,
         distribution, possession or receipt of child
         pornography[;]

       # Correspondence pertaining to the
         possession, receipt, distribution, or
         advertisement of [child pornography;]
14             UNITED STATES V. JOHNSTON

       # Envelopes, letters, and other
         correspondence including, but not limited
         to, electronic mail, chat logs, and
         electronic messages, offering to transmit
         [child pornography; and]

       # Records or other items which evidence
         ownership or use of computer equipment
         found in the . . . residence.

    Johnston did not challenge the scope or legality of the
warrant. At an evidentiary hearing on Johnston’s motion to
suppress, Special Agent Brian Cardwell of the California
Department of Justice testified regarding the methods
employed to search Johnston’s computer. The search took
place in three distinct phases. On September 6, 2006, Agent
Cardwell entered Johnston’s home and used specialized
software to conduct a “forensic preview.” The forensic
preview preserves data on the computer and performs a brief
scan of its hard drive; within “five to ten minutes” the
software indicated that there were child pornography videos
stored on the computer. About a week later, Cardwell
conducted a “bare minimum” forensic scan of the computer.
He used software called “EnCase” to create a gallery of all
the images and videos on the computer. Cardwell browsed
that gallery to confirm that it included images and videos
depicting child pornography and then created a compact disc
for use by prosecutors.

   A second review of the computer data occurred some five
years later in the spring of 2011, after Johnston declined to
accept a plea deal. During this search, Cardwell repeated his
previous search for child pornography, then perused
Johnston’s internet history and email correspondence.
               UNITED STATES V. JOHNSTON                    15

Cardwell also began looking at files associated with
Johnston’s credit card number and e-mail address.

    The third, and most exhaustive, phase of the search began
in July of 2011. Over the course of several sessions, Cardwell
browsed and searched Johnston’s email, chat logs, and
“unallocated space.” He searched for generic keywords such
as “child porn,” “pedo,” “Baby J,” “Lolita,” and “hussy fan.”
Cardwell also searched the computer using Johnston’s credit
card number, Yahoo screen name, and Western Union
account information. These efforts turned up evidence about
Johnston’s travels abroad for the purpose of having sex with
minors and agreement with Switlass to produce child
pornography.

    Johnston claims that the third review was nothing more
than “rummaging for more offenses.” He urges us to reverse
the district court’s denial of the suppression motion and adopt
the reasoning in United States v. Carey, 172 F.3d 1268 (10th
Cir. 1999). The difficulty with this argument is that Carey
presented an entirely different situation—the government
agent was searching a computer for evidence of drug sales
when he stumbled across child pornography images.
Although the search warrant directed the agent to look only
for evidence of narcotics activities, he began opening
computer files that he believed would contain child
pornography images. Not surprisingly, the Tenth Circuit held
that the search violated the Fourth Amendment because the
agent “abandoned” his search for drug evidence and started
an entirely new, warrantless search. Id. at 1273.

    Nothing of the sort happened here. To begin, the plain
language of the warrant authorized the government to search
not only for child pornography, but also evidence of sexual
16              UNITED STATES V. JOHNSTON

activity with children, correspondence related to child
pornography, and “items which evidence ownership or use of
computer equipment found in the . . . residence.” Each of the
search methods Cardwell employed related directly to this
mandate. Nothing suggests that Agent Cardwell directed his
search efforts towards anything other than child pornography,
sexual activity with children, and Johnston’s ownership and
control over the computer. He was not digging around in
unrelated files or locations that might have prompted the need
for a second warrant. Cardwell’s discovery of evidence of
additional crimes is a reflection of the practical reality that
Johnston’s statements about child pornography were
intermingled with chats about foreign trips for the purpose of
having sex with minors and discussion about buying a camera
to produce explicit images of children.

IV.     SENTENCING PROCEEDING

    Johnston’s last challenge is that the district court erred at
sentencing by referencing facts that were stripped from the
draft presentence report and admonishing him for failing to
apologize for his actions.

    Under Federal Rule of Criminal Procedure 32(i)(3)(B),
the sentencing judge “must—for any disputed portion of the
presentence report or other controverted matter—rule on the
dispute or determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the
court will not consider the matter in sentencing.” In United
States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc),
we held that it is a “significant procedural error” for a
sentencing judge to “choose a sentence based on clearly
erroneous facts.”
               UNITED STATES V. JOHNSTON                   17

    During sentencing proceedings, the district court made
reference to factual matters that were stricken from
Johnston’s presentence report. He stated that Johnston had
traveled outside of the United States “to have contact with
these prepubescent females,” and to “engage in sex with 12-
to 15-year-old virgins.” The judge also noted that Johnston
had molested his stepchildren in the 1980s, and praised the
prosecutor for not bringing those children to the sentencing
hearing to testify.

    While these comments raise the specter of sentencing
error, the district court made clear that it took into account
only “what was found by the jury” in this case. The court
stated:

       I’m not taking [the abuse allegations] into
       consideration right now . . . . I’m only taking
       into account what was found by the jury in
       this particular case.

       The previous judge excluded a number of
       things from that jury, and there were things
       that were stricken from the probation report.
       I’m taking the probation report and the jury’s
       findings as they are. I don’t need to go back
       any further than what I have in front of me.

   This statement clarified that Johnston’s sentence was
based solely on facts that were proven to the jury and the
undisputed sections of the presentence report. The district
court did not violate either Rule 32 or the teaching of Carty.

   Johnston also claims that he is entitled to resentencing
because, in violation of Mitchell v. United States, 526 U.S.
18             UNITED STATES V. JOHNSTON

314, 321 (1999), the district court drew an adverse inference
from Johnston’s failure to testify. The question of how the
Fifth Amendment privilege interacts with the legitimate
sentencing consideration of lack of remorse is a difficult one.
The Supreme Court expressly declined to address this issue
in Mitchell. Id. at 326 (“Whether silence bears upon the
determination of lack of remorse . . . is a separate question
. . . . [W]e express no view on it.”).

    Although the district court commented on Johnston’s
reticence at the sentencing hearing, Judge England also
explicitly recognized that remaining silent was “his right.”
Particularly when considered in the context of the district
court’s careful review of the record and extensive explanation
of the sentence imposed, this comment reinforces that
Johnston’s sentence was not affected by an adverse inference
drawn from his silence. He is not entitled to resentencing on
this ground.

  AFFIRMED in part, VACATED in part, and
REMANDED.
