United States of America v. DENIS AVILES SALGUERO, AKA Alfredo Aviles-Salguero, AKA Denis Alfredo…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DENIS AVILES SALGUERO, AKA
Alfredo Aviles-Salguero, AKA Denis
Alfredo Aviles-Salguero, AKA
Demonios13_6, AKA Aviles Salguero
Dennis, AKA Davis A. Aviles Salguero,
AKA Denis A. Salguero, AKA Denis
Alfredo Aviles Salguero,
Defendant-Appellant.
No. 16-50329
D.C. No.
2:11-cr-01156-FMO-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Fernando M. Olguin, District Judge, Presiding
Argued and Submitted August 28, 2018
Pasadena, California
Before: BYBEE and WATFORD, Circuit Judges, and HERNANDEZ,** District
Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Marco A. Hernandez, United States District Judge for
the District of Oregon, sitting by designation.
FILED
SEP 4 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Denis Aviles Salguero appeals from his convictions for distribution, receipt,
and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(2),
(b)(1), (a)(5)(B), (b)(2). We affirm, but remand to correct the judgment.
1. Salguero argues that the district court erred in seating four jurors—Jurors
7, 12, 16, and 21—who indicated that they had trouble speaking, reading, writing,
or understanding English. Juror 7 was not in fact seated on the jury; for reasons
not disclosed in the record, she was absent on the second day of voir dire when the
jury was empaneled, and another juror took her place. Jurors 12 and 16 were
seated without objection. The district court’s decision not to excuse those jurors
for cause was not plain error, as each engaged in colloquies with the court and
indicated their ability to sufficiently understand English. Salguero requested that
Juror 21 be excused for cause, but the district court did not abuse its discretion in
declining that request. The transcript reflects that Juror 21 was able to understand
and answer questions in English, and does not provide a basis to conclude that the
court erred in determining that he was qualified to serve. See People of Territory
of Guam v. Palomo, 511 F.2d 255, 258–59 (9th Cir. 1975).
2. Next, Salguero argues that the district court’s conducting a portion of voir
dire at sidebar violated his right to be present under Federal Rule of Criminal
Procedure 43 and the Fifth Amendment, as well as his right to a public trial under
the Sixth Amendment. Because Salguero failed to object to his absence from the

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sidebar, we review only for plain error. See United States v. Rivera, 682 F.3d
1223, 1232 (9th Cir. 2012) (public trial right is forfeited if not asserted in a timely
fashion); United States v. Sherwood, 98 F.3d 402, 407 (9th Cir. 1996) (right to be
present is forfeited where defendant failed to indicate that he wished to be present
during sidebar voir dire); see also United States v. Olano, 507 U.S. 725, 731–32
(1993) (plain error review applies where defendant forfeits a claim by failing to
raise it in a timely manner). Even assuming the sidebar amounted to a violation,
there was no plain error. The court placed no restrictions on Salguero’s ability to
confer with counsel, and Salguero does not allege that his presence would in any
way have affected the composition of the jury. See United States v. Reyes, 764
F.3d 1184, 1192–93 (9th Cir. 2014); United States v. Fontenot, 14 F.3d 1364,
1369–70 (9th Cir. 1994).
3. The district court did not err in ending the peremptory strike process after
the prosecution and the defense passed on their turns in succession. In United
States v. Turner, 558 F.2d 535 (9th Cir. 1977), we explained that the district
court’s broad discretion in setting the procedure for peremptory challenges is
subject to two limitations. First, “the defendant must be given adequate notice of
the system to be used,” and second, that system “must not unduly restrict the
defendant’s use of his challenges.” Id. at 538. Neither limitation was violated
here. The district court explained in advance that if both parties passed on their

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turns in succession, no further strikes would be allowed. That procedure did not
unduly restrict Salguero’s use of his challenges, because no jurors were added to
the panel whom Salguero did not have a chance to strike. See id. (“Our holding
does not prevent a district judge from forbidding a challenge to any juror who was
a member of the panel at the time the jury was accepted.”); see also United States
v. Yepiz, 685 F.3d 840, 846 (9th Cir. 2012).
4. Salguero’s convictions for receipt and possession of child pornography
do not violate the Double Jeopardy Clause of the Fifth Amendment. Possession of
child pornography is a lesser included offense of receipt of child pornography,
United States v. Davenport, 519 F.3d 940, 947 (9th Cir. 2008), but double jeopardy
is not implicated where separate conduct underlies each offense, United States v.
Johnston, 789 F.3d 934, 938 (9th Cir. 2015). “If the government wishes to charge
a defendant with both receipt and possession of [child pornography] based on
separate conduct, it must distinctly set forth each medium forming the basis of the
separate counts.” United States v. Schales, 546 F.3d 965, 980 (9th Cir. 2008). The
indictment in this case specified that Count 18—the receipt charge—was based on
material received into Salguero’s email inbox, while Count 19—the possession
charge—was based on material possessed in a particular file folder on Salguero’s
hard drive that he had downloaded from an online chat platform. Accordingly, the
government presented separate evidence, corresponding to the appropriate

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medium, to support each charge. Even if some of the same images were found in
Salguero’s email and on his hard drive, the evidence makes clear that the images
Salguero affirmatively downloaded to his hard drive were separate from the images
he received as email attachments.
5. Finally, we note that the judgment states that the conviction on Count 18
was for possession of child pornography, when in fact that count charged receipt.
We remand to the district court with instructions to correct the judgment to reflect
that the conviction on Count 18 was for receipt of child pornography, not
possession. See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.
2000) (remanding sua sponte to correct the judgment).
AFFIRMED; REMANDED solely to correct the judgment.

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