NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 11 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 19-10328, 19-10351

Plaintiff-Appellee, D.C. Nos. 2:06-cr-389-WBS 2:18-cr-33-WBS v.

MEMORANDUM*

WILLIAM BLESSETT,

Defendant-Appellant,

Appeals from the United States District Court for the Eastern District of California William Shubb, District Judge, Presiding

Argued and Submitted November 9, 2021 Pasadena, California

Before: COLLINS and LEE, Circuit Judges, and BAKER,** Judge.

William Blessett appeals his conviction for possession of child pornography,

and he separately appeals his 24-month prison sentence for violating the terms of his

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. supervised release stemming from a previous conviction for possession of child por-

nography. We vacate his conviction for possession in No. 19-10351 and remand for

a new trial, and we affirm his sentence for violation of his supervised release terms

in No. 19-10328.

In 2017, Blessett was arrested on charges of possession of child pornography

and violation of the terms of his supervised release. During the execution of a search

warrant that preceded his arrest, federal agents found a laptop, two tablets, and five

phones, together containing at least 2,009 images and 57 videos of child pornogra-

phy.

1. In 2018, a grand jury indicted Blessett on one count of receipt of child por-

nography under 18 U.S.C. § 2252(a)(2), five counts of possession of child pornog-

raphy under 18 U.S.C. § 2252(a)(4)(B), and a forfeiture allegation under 18 U.S.C.

§ 2253(a) relating to the devices.

Shortly before trial, Blessett moved to dismiss the possession counts, arguing

that the Double Jeopardy Clause prohibited charging separate counts of possession

of child pornography for items found in one search but on different devices, based

on this Court’s decision in United States v. Chilaca, 909 F.3d 289, 295 (9th Cir.

2018). In response, the government filed a superseding indictment alleging one

2 count of receipt of child pornography under 18 U.S.C. § 2252(a)(2), together with a

forfeiture allegation.1

After Blessett moved to dismiss the new superseding indictment on various

grounds, the district court gave the prosecution the choice of proceeding on the su-

perseding indictment’s charge of receipt, on the lesser-included offense of posses-

sion in the superseding indictment’s receipt count, or on one of the original indict-

ment’s possession counts. Both the prosecution and the defense agreed that proceed-

ing on the superseding indictment’s lesser-included possession charge would resolve

Blessett’s objections.2 The district court stated that, in describing the charge in the

jury instructions, it would use the word “possession” rather than “receipt,” and the

defense agreed.

After the prosecution rested at trial, the defense objected to the prosecution’s

request that the district court use the government’s proposed modified version of the

pattern Ninth Circuit criminal jury instructions for possession of child pornography.

As defense counsel explained, the pattern instructions incorporated additional

1 In relevant part, the superseding indictment charged that Blessett “did knowingly receive at least one visual depiction on a cloud file hosting service and on at least one digital storage device, using a means and facility of interstate and foreign com- merce, and which had been shipped and transported in and affecting interstate and foreign commerce, and which contained materials which had been so transported . . . all in violation of [18 U.S.C. § 2252(a)(2)].” 2 We are not asked to decide, and do not decide, whether Blessett’s various objec- tions to the indictments had any validity.

3 alternatives for the possession offense defined in § 2252(a)(4) that are not lesser-

included offenses of the receipt offense defined by § 2252(a)(2) and charged in the

superseding indictment.

The district court overruled the defense’s objections, accepted the proffered

instruction, and instructed the jury to convict Blessett for possession of child por-

nography if the pornography “had been either shipped or transported in interstate or

foreign commerce, or, produced using or copied into material that had been trans-

ported in interstate or foreign commerce by computer or other means.” (Emphasis

added.) After receiving these instructions, the jury returned a conviction.

In his timely appeal, Blessett argues that the jury instruction given at trial was

erroneous because it set forth two possible means of proving an interstate commerce

nexus, while the superseding indictment (which was based on the greater offense of

receipt of child pornography under 18 U.S.C. § 2252(a)(2)) captures only one of

those means. See Stirone v. United States, 361 U.S. 212, 215–16 (1960).

We apply de novo review to allegations that an indictment was constructively

amended, and “[i]f the court determines that the indictment was constructively

amended, a reversal is always in order.” United States v. Tuan Ngoc Luong, 965 F.3d

973, 984 (9th Cir. 2020) (citing United States v. Adamson, 291 F.3d 606, 615 (9th

Cir. 2002)), cert. denied, 142 S. Ct. 336 (2021). “A constructive amendment occurs

when the charging terms of the indictment are altered, either literally or in effect, by

4 the prosecutor or a court after the grand jury has last passed upon them.” United

States v. Davis, 854 F.3d 601, 603 (9th Cir. 2017) (quoting United States v. Ward,

747 F.3d 1184, 1190 (9th Cir. 2014)).

The question presented in this appeal is whether the district court construc-

tively amended the superseding indictment through the jury instruction. Under the

charge given at trial, the jury could convict Blessett (assuming the other statutory

elements were satisfied) if it found that pornographic material was shipped or trans-

mitted in interstate or foreign commerce, or if the device onto which that material

was copied or downloaded was itself shipped in interstate or foreign commerce. Al-

though one form of possession of child pornography is a lesser-included offense of

receipt of child pornography, United States v. Johnston, 789 F.3d 934, 937 (9th Cir.

2015), the government wrongly contends that every form of the possession offense

described in § 2252(a)(4) is “necessarily encompassed by the statutory language of

the greater offense of receipt” in § 2252(a)(2).

The elements of receipt under § 2252(a)(2) require that a person “knowingly

receive[], or distribute[], any visual depiction” of a minor engaging in sexually ex-

plicit conduct. See 18 U.S.C. § 2252(a)(2). Section 2252(a)(2) also requires an in-

terstate commerce nexus, which may be satisfied by showing either (1) that the de-

fendant received the visual depiction using any means or facility of interstate or for-

eign commerce”; or (2) that the visual depiction is one “that has been mailed, or has

5 been shipped or transported in or affecting interstate or foreign commerce, or which

contains materials which have been mailed or so shipped or transported, by any

means including by computer.” Id.

The elements of possession under § 2252(a)(4) require that the person “know-

ingly possess[], or knowingly access[] with intent to view[,]” any “matter which

contain[s] any visual depiction” of “a minor engaging in sexually explicit conduct.”

18 U.S.C. § 2252(a)(4)(B). Section 2252(a)(4) also requires an interstate commerce

nexus, but it phrases it differently. Specifically, it must be shown that the visual

depiction is one that “has been mailed, or has been shipped or transported using any

means or facility of interstate or foreign commerce or in or affecting interstate or

foreign commerce, or which was produced using materials which have been mailed

or so shipped or transported, by any means including by computer[.]” Id. (emphasis

added). As this Court analogously noted in United States v. Davenport, 519 F.3d

940, 944 (9th Cir. 2008), with respect to the distinct child-pornography offenses de-

scribed in 18 U.S.C. § 2252A, “the interstate commerce requirement is technically

different for receipt and possession.” That is, “the receipt provision [in § 2252A]

necessarily requires shipment of the pornography, while the possession provision

may meet the interstate commerce nexus either by shipment or by alternative

means.” Id. (emphasis added).

6 A similar observation applies to § 2252(a). A defendant may be guilty of pos-

session under § 2252(a)(4) even absent shipment of the pornographic material when,

for example, that material was produced using a computer or cell phone that was

itself transmitted across state lines. The elements for possession, therefore, are not

always subsumed under the elements for receipt—it is possible for a defendant’s

conduct to meet the interstate commerce nexus requirement for the former and not

the latter. Put another way, possession under § 2252(a)(4) may be said to be a lesser-

included offense of receipt under § 2252(a)(2) only to their extent that their inter-

state-commerce elements overlap and not to the extent that they differ.

Here, the jury instructions—which were modelled on the Ninth Circuit’s in-

structions for the § 2252(a)(4)(B) possession offense—directed the jury that it may

find the interstate commerce element satisfied if the child pornography “had been

either shipped or transported in interstate or foreign commerce” or “produced using

or copied into material that had been transported in interstate or foreign commerce

by computer or other means.” (Emphasis added.)3 But the superseding indictment

alleged receipt under § 2252(a)(2), not possession, and those two offenses overlap

only as to the first of the two nexuses in the jury instructions. That is, the jury could

have convicted Blessett based on the view that he had copied images onto devices

3 The phrase “copied into” was not in the Ninth Circuit pattern instruction but was proposed by the government based on the construction of “produced” in United States v. Guagliardo, 278 F.3d 868, 871 (9th Cir. 2002).

7 shipped in interstate commerce, even if those images had not themselves been trans-

ported in interstate commerce (including by using a means or facility of interstate

commerce). This means that the jury instructions given at trial opened a path for the

jury to convict Blessett of a possession charge that was not a lesser-included offense

of the receipt charge that was alleged in the superseding indictment.

An indictment is amended “ ‘when the charging terms of the indictment are

altered, either literally or in effect, by the prosecutor or a court after the grand jury

has last passed upon them.’ ” United States v. Von Stoll, 726 F.2d 584, 586 (9th Cir.

1984) (quoting United States v Cusmano, 659 F.2d 714, 718 (6th Cir. 1981)). Be-

cause the possession offense described in the jury instructions allowed conviction

based on a nexus element that was not included in the receipt offense charged in the

indictment, that possession charge was to that extent not a lesser-included offense of

the indictment’s receipt offense. See Schmuck v. United States, 489 U.S. 705, 716

(1989); see also United States v. Nichols, 9 F.3d 1420, 1422 (9th Cir. 1993). As a

result, it is impossible to know from the terms of the superseding indictment whether

the grand jury would have indicted Blessett for the possession offense that rested on

the non-overlapping interstate-nexus element, and we therefore must conclude that

the challenged jury instruction constructively amended the indictment. Adamson,

291 F.3d at 615. And when this court determines that constructive amendment has

occurred, “a reversal is always in order.” Tuan Ngoc Luong, 965 F.3d at 984 (citing

8 Adamson, 291 F.3d at 615). We therefore vacate Blessett’s conviction for possession

and remand for the district court to conduct a new trial.

2. In his other timely appeal, Blessett challenges the district court’s imposition

of a 24-month sentence for violation of the terms of his supervised release,4 arguing

that the district court failed to sufficiently explain its reasons for imposing the max-

imum sentence. Blessett acknowledges that defense counsel did not preserve this

issue, so we review for plain error.

The district court explained that Blessett’s violation of the terms and condi-

tions of his supervised release was a “serious breach of trust and the right message

has to be sent on this one as well.” We find no error in the district court’s explanation

for the sentence, especially in view of Blessett’s repeated violations of the terms of

his supervised release. We therefore affirm Blessett’s sentence for the violation of

his supervised release.

In No. 19-10351, VACATED AND REMANDED; in No. 19-10328, AF-

FIRMED.

4 This was not Blessett’s first violation of the terms of his supervised release for his 2006 conviction.

9