United States v. John Kuhnel ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-3388
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United States of America
Plaintiff - Appellee
v.
John Edwin Kuhnel
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 22, 2021
Filed: February 2, 2022
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Before ERICKSON, GRASZ, and STRAS, Circuit Judges.
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ERICKSON, Circuit Judge.
After a bench trial, the district court convicted John Kuhnel of receipt and
possession of child pornography. On appeal, Kuhnel challenges the search of his
vehicle by his supervising probation officer and the sufficiency of the evidence for
the receipt convictions. Kuhnel raises additional arguments in a pro se supplemental
brief, including that his possession convictions violate the Double Jeopardy Clause.1
We affirm in part and remand with instructions.
I. BACKGROUND
In 2010, Kuhnel was convicted of second-degree criminal sexual conduct in
Minnesota state court for sexually abusing Victim G, a preschool-aged child. The
state court stayed the sentence and placed Kuhnel on probation. Kuhnel signed a
plea document acknowledging he would be subject to a mandatory conditional
release period of 10 years because he committed a qualifying sex offense. Terms of
conditional release under Minnesota law “may include successful completion of
treatment . . . and any other conditions the [Minnesota Department of Corrections]
commissioner considers appropriate.” Minn. Stat. § 609.3455, subd. 8(b).
The state court revoked Kuhnel’s probation and sentenced him to a 36-month
term of imprisonment. Consistent with Minnesota practice, Kuhnel served two-
thirds of his sentence in a correctional facility and the remaining year on supervised
release. The conditional release period began to run when Kuhnel was released from
prison. See id., subd. 6.
The week before leaving confinement, on August 27, 2014, Kuhnel signed a
conditions of release form. A line near the top stated, “Release Status: Supervised
Release(SR).” A handwritten notation designated the termination date as September
2, 2024. The conditions prohibited Kuhnel from possessing sexually explicit
material, accessing the internet or electronic devices without permission, using
nonapproved social media or chat websites, and consuming alcohol or drugs. A
standard condition required Kuhnel to “submit at any time to an unannounced visit
and/or search of the offender’s person, vehicle or premises by the agent/designee.”
1
Although “we typically do not consider pro se submissions when an appellant
is represented by counsel,” United States v. Cheney, 571 F.3d 764, 767 n.3 (8th Cir.
2009), we granted Kuhnel leave to file a supplemental brief.
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Probation Officer Brian James was assigned to supervise Kuhnel. Kuhnel
secured employment in the information technology field and received permission to
have a cell phone and a laptop for work. Officer James used monitoring software to
track Kuhnel’s activity on his electronic devices and email accounts.
In November 2016, Officer James became concerned that Kuhnel was
violating his release conditions when he discovered emails indicating Kuhnel had
accessed unauthorized websites including Facebook and Craigslist. A coworker also
told Officer James he had seen Kuhnel drinking alcohol in a bar.
Officer James instructed Kuhnel to meet with him at the probation office on
November 29, 2016. Shortly before Kuhnel arrived for the meeting, Officer James
observed that he had signed into his email account from an unrecognized device.
During the meeting, Kuhnel admitted to drinking alcohol and using his work laptop
to access prohibited websites.
In light of the admissions and observations, Officer James and two other
probation officers decided to search Kuhnel’s vehicle. Kuhnel accompanied the
officers to the parking lot, opened the vehicle, and admitted he had electronic devices
inside when asked. The probation officers discovered the authorized work laptop
and another laptop that Kuhnel falsely claimed belonged to his employer’s client.
Officer James sent the purported client laptop to the Minneapolis Police
Department for a full search pursuant to a warrant. The search uncovered more than
33,000 child pornography files. Kuhnel downloaded the files through subscription-
based online message boards known as Usenet newsgroups. In January 2016,
Kuhnel downloaded thousands of child pornography files using a newsgroups
program called Forte. He moved most of those files into a folder labelled “Keep,”
which had more than 30 subfolders. The subfolders’ names suggested they
contained child pornography. Examples included “Kids Index,” “PTHC” (a
common acronym for “pre-teen hardcore”), and the name of a minor victim in a
known child pornography series. In August 2016, Kuhnel downloaded additional
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child pornography files from Newsleecher, a separate newsgroups service. He
programmed those downloads to populate in a folder entitled “DarkNet.” While
using Newsleecher, Kuhnel entered search terms such as “Daddyy,” “Russian teen,”
and “Incezt.” In one instance, Kuhnel downloaded a picture of Victim G from
Facebook and transposed the minor’s face onto a child pornography image.
A superseding indictment ultimately charged Kuhnel with nine counts of
receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1); one
count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B)
and (b)(2); and one count of possession of child pornography, in violation of 18
U.S.C. § 2252A(a)(5)(B) and (b)(2). Kuhnel unsuccessfully moved to suppress the
evidence obtained from the seizure of the laptop. He subsequently elected to
represent himself and filed numerous pro se motions. These motions included a
motion to reopen the suppression record, alleging his attorney neglected to inform
him of his right to testify at the hearing. He also asserted double jeopardy violations
and sought dismissal of various counts of the superseding indictment. The district
court denied the motions.
Kuhnel proceeded to a bench trial. The district court found him guilty on each
count of the superseding indictment and issued findings of fact and conclusions of
law. Kuhnel unsuccessfully filed post-trial motions for judgment of acquittal. The
district court sentenced Kuhnel to a term of 204 months’ imprisonment on all counts
to run concurrently with 15 years of supervised release to follow.
II. DISCUSSION
Kuhnel presents three primary arguments on appeal: (1) the district court erred
in denying his motion to suppress, (2) the evidence was insufficient to support his
convictions for receipt of child pornography, and (3) his convictions for possession
of child pornography are in violation of the United States Constitution’s prohibition
of double jeopardy. We address each issue in turn.
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A. Vehicle Search
We review the denial of a motion to suppress under a mixed standard, with
factual findings reviewed for clear error and legal conclusions reviewed de novo.
United States v. Holly, 983 F.3d 361, 363 (8th Cir. 2020). The Fourth Amendment
protects against unreasonable searches and seizures of a person’s papers and effects.
U.S. Const. amend. IV. “[T]he reasonableness of a search is determined ‘by
assessing, on the one hand, the degree to which it intrudes upon an individual’s
privacy and, on the other, the degree to which it is needed for the promotion of
legitimate governmental interests.’” United States v. Knights, 534 U.S. 112, 118-19
(2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). An individual
subject to a court-ordered search condition retains a “significantly diminished . . .
reasonable expectation of privacy.” Id. at 120.
Kuhnel contends that the district court’s factual determination that he knew a
search condition applied to him at the time the probation officers seized his laptop
is contrary to the evidence. Notice of the search condition is a “salient” factor for
assessing the reasonableness of a search. Samson v. California, 547 U.S. 843, 852
(2006). Kuhnel maintains that because the signed conditions of release form
specified his status as “Supervised Release(SR),” he reasonably believed that the
search condition only applied to his initial one-year supervised release period and
that the provision expired before the vehicle search.
Kuhnel’s claim is contrary to the record. The district court found Officer
James’ testimony at the suppression hearing credible and concluded that Kuhnel was
aware that the supervised and conditional release periods ran concurrently and
carried the same conditions effective through September 2, 2024. The district court
also found that Officer James discussed the release conditions with Kuhnel on
multiple occasions. Under these circumstances, we find no clear error by the district
court in determining Kuhnel had knowledge of the search condition. It follows that
the vehicle search was reasonable and permissible even in the absence of suspicion.
See United States v. Jackson, 866 F.3d 982, 985 (8th Cir. 2017).
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Even assuming reasonable suspicion was applicable, the probation officers
had sound justifications to search Kuhnel’s vehicle. “Reasonable suspicion exists
when, considering the totality of the circumstances known to the officer at the time,
the officer has a particularized and objective basis for suspecting wrongdoing.”
United States v. Hamilton, 591 F.3d 1017, 1022 (8th Cir. 2010). Kuhnel admitted
to viewing prohibited websites on the authorized work laptop that he told Officer
James was in his vehicle. In addition, Officer James noticed Kuhnel had accessed
his email account from an unrecognized device just prior to their meeting, leading
him to believe the device might be nearby. The probation officers had objective
bases to suspect Kuhnel’s vehicle contained evidence of release violations, and the
district court properly denied the motion to suppress.
Kuhnel next contends that the district court erroneously denied his motion to
reopen the suppression record based on his attorney’s alleged failure to inform him
of his right to testify at the hearing. We construe that argument as an ineffective
assistance of counsel claim, which we consider “on direct appeal only where the
record has been fully developed, where not to act would amount to a plain
miscarriage of justice, or where counsel’s error is readily apparent.” United States
v. Ramirez-Hernandez, 449 F.3d 824, 827 (8th Cir. 2006). None of those exceptions
apply here. We decline to adjudicate Kuhnel’s premature ineffective assistance of
counsel claim.
B. Receipt Convictions
When reviewing the sufficiency of the evidence after a bench trial, we use the
same standard applicable to a jury verdict. United States v. Morris, 791 F.3d 910,
913 (8th Cir. 2015). That is, we view the evidence in the light most favorable to the
government and draw all reasonable inferences in favor of the verdict. United States
v. White, 962 F.3d 1052, 1055 (8th Cir. 2020). “We avoid reweighing the evidence
or assessing the credibility of the witnesses, and reversal is warranted only if no
reasonable [factfinder] could have found guilt beyond a reasonable doubt.” United
States v. Mabery, 686 F.3d 591, 598 (8th Cir. 2012).
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Kuhnel concedes he possessed child pornography but asserts he mistakenly
received the images while trying to mass download adult pornography. See United
States v. Wheelock, 772 F.3d 825, 831 (8th Cir. 2014) (“The fact that a knowing
possessor received . . . [child] pornography does not necessarily mean he did so
‘knowingly.’”). “A person ‘knowingly receives’ child pornography under 18 U.S.C.
§ [2252(a)(2)] when he intentionally views, acquires, or accepts child pornography
on a computer from an outside source.” United States v. Croghan, 973 F.3d 809,
826 (8th Cir. 2020) (emphasis omitted) (quoting United States v. Pruitt, 638 F.3d
763, 766 (11th Cir. 2011) (per curiam)). The names of the newsgroups Kuhnel
subscribed to and the individual files he downloaded made plain they would result
in the acquisition of child pornography. Kuhnel’s use of search terms related to child
pornography and his organization of the downloaded files into dozens of user-
created folders also denoted his intent to receive the illicit images. See United States
v. Morrissey, 895 F.3d 541, 549-50 (8th Cir. 2018) (finding sufficient evidence for
receipt conviction where child pornography files were downloaded from websites
and stored in a folder that indicated user interaction). Finally, Kuhnel’s possession
of relatively few adult pornography files showed his principal objective was to
obtain child pornography. Sufficient evidence supported the receipt convictions.
C. Double Jeopardy
We review double jeopardy claims de novo. United States v. Anderson, 783
F.3d 727, 739 (8th Cir. 2015). A double jeopardy violation arises when a defendant
is convicted of two crimes that are “in law and fact the same offense.” United States
v. Roy, 408 F.3d 484, 491 (8th Cir. 2005). “[W]here the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not.” Blockburger v. United States,
284 U.S. 299, 304 (1932). The Blockburger test “is concerned solely with the
statutory elements of the offenses charged.” United States v. Hansen, 944 F.3d 718,
724 (8th Cir. 2019) (quoting Grady v. Corbin, 495 U.S. 508, 521 n.12 (1990),
overruled on other grounds by United States v. Dixon, 509 U.S. 688 (1993)).
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Kuhnel argues that his two convictions for possession of child pornography
are multiplicitous. The district court convicted him under 18 U.S.C. § 2252(a)(4)(B)
for possessing six images and videos depicting real minors engaging in sexually
explicit conduct. Separately, the district court convicted him under 18 U.S.C.
§ 2252A(a)(5)(B) for possessing a picture of Victim G’s face transposed onto a child
pornography image. Kuhnel possessed all the images and videos on the same laptop
on the same day.
We conclude as an initial matter that Kuhnel’s convictions resulted from the
“same act or transaction.” Blockburger, 284 U.S. at 304. Both § 2252(a)(4)(B) and
§ 2252A(a)(5)(B) synonymously forbid the possession of “matter” or “material”
containing child pornography, not the possession of the images themselves. Cf.
United States v. Hinkeldey, 626 F.3d 1010, 1013 (8th Cir. 2010) (explaining that
Ҥ 2252A(a)(5)(B) allows separate convictions for illegal images stored on different
devices” (emphasis added)). The possession of multiple child pornography images
on the same laptop constituted a single criminal act.
Meanwhile, the elements necessary to prove violations of § 2252(a)(4)(B) and
§ 2252A(a)(5)(B) are indistinguishable. The model jury instructions often used by
district courts in this circuit recommend the same elements for both offenses. See
Eighth Circuit Manual of Model Jury Instructions (Criminal) 6.18.2252 (2020). This
is consistent with the statements we have previously made which describe these
possession provisions as “materially identical.” United States v. Muhlenbruch, 634
F.3d 987, 1003 n.6 (8th Cir. 2011) (quoting United States v. Miller, 527 F.3d 54, 64
n.10 (3d Cir. 2008)).
The government responds that Kuhnel’s conviction under § 2252A(a)(5)(B)
involved additional proof of a digitally “morphed” image. “Child pornography” for
purposes of § 2252A(a)(5)(B) more broadly includes visual depictions “created,
adapted, or modified to appear that an identifiable minor is engaging in sexually
explicit conduct.” 18 U.S.C. § 2256(8)(C). Like § 2252(a)(4)(B), however, the
definition also encompasses visual depictions of real minors engaging in sexually
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explicit conduct. 18 U.S.C. § 2256(8)(A). Although the digitally altered picture of
Victim G would not have fallen within the narrower language of § 2252(a)(4)(B),
all the images and videos charged in the possession counts met the definition of child
pornography applicable to § 2252A(a)(5)(B). The two possession statutes therefore
do not require mutually exclusive proof of different types of child pornography.
We hold that the Double Jeopardy Clause prevents convictions under both 18
U.S.C. § 2252(a)(4)(B) and 18 U.S.C. § 2252A(a)(5)(B) for the possession of a
single material containing child pornography. Because the district court imposed
concurrent sentences, the appropriate remedy is to remand with directions to vacate
one of the multiplicitous convictions. United States v. Emly, 747 F.3d 974, 980 (8th
Cir. 2014).2
III. CONCLUSION
We affirm the suppression ruling and the convictions for receipt of child
pornography. We remand to the district court with instructions to vacate one of the
possession convictions.
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2
We decline to consider Kuhnel’s pro se ineffective assistance of counsel
claims on direct appeal and reject the remaining arguments in his supplemental brief
as meritless.
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