United States v. Sullivan

575 F. App'x 793

Opinion

MEMORANDUM

**

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, 52 S.Ct. 180, 76 L.Ed. 306 (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. § 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.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Circuit Rule 36-3.

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, 753 F.3d 845 (9th Cir.2014).