United States v. Edward Sullivan ( 2014 )

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NOT FOR PUBLICATION MAY 28 2014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.
3