U.S. v. Muhlenbruch

• Citation: 634 F.3d 987
• Decision Date: 25 March 2011
• Docket Number: No. 10–1396.,10–1396.
• Parties: UNITED STATES of America, Appellee,v.Randall Frederick MUHLENBRUCH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

634 F.3d 987
84 Fed. R. Evid. Serv. 960

UNITED STATES of America, Appellee,
v.
Randall Frederick MUHLENBRUCH, Appellant.

No. 10–1396.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 24, 2010.Filed: Feb. 17, 2011.Rehearing Denied March 25, 2011.

[634 F.3d 992]

Alfredo G. Parrish, argued, Des Moines, IA, for appellant.John S. Courter, AUSA, argued, Des Moines, IA, for appellee.

[634 F.3d 993]

Before BYE, BEAM, and SMITH, Circuit Judges.BEAM, Circuit Judge.

The district court sentenced defendant Randall Muhlenbruch to two concurrent sentences of 120 months' imprisonment after a jury found him guilty of knowingly receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2), and knowingly possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). On appeal, Muhlenbruch challenges his convictions, arguing that (A) the district court erred when it denied his motions to suppress statements and evidence; (B) the evidence presented at trial was insufficient to support his convictions; (C) the district court erroneously allowed the jury to view Muhlenbruch's videotaped confession multiple times; and (D) his convictions for both possessing and receiving the same images of child pornography violate the Double Jeopardy Clause.¹ Muhlenbruch also challenges his sentence on several grounds. We affirm in part, reverse in part, and remand with instructions.

I. BACKGROUND

In late 2004, Muhlenbruch lived with his wife, Tatiana, in an apartment in Marshalltown, Iowa. In November of 2004, however, Tatiana was ordered to have no contact with Muhlenbruch following a domestic dispute in which Tatiana allegedly assaulted Muhlenbruch. Despite the order, the couple resumed cohabitation at Muhlenbruch's apartment sometime in early December of 2004. While Tatiana was staying at the apartment on December 10, 2004, she discovered apparent images of child pornography on Muhlenbruch's computer. When Tatiana confronted Muhlenbruch about the images, Muhlenbruch offered to delete the images but Tatiana convinced him not to. The following day, Muhlenbruch and Tatiana traveled to Des Moines to do some Christmas shopping.

Unbeknownst to Muhlenbruch, Tatiana contacted Jaret Klaas, a private citizen, and asked him to enter Muhlenbruch's apartment and copy the child pornography files from Muhlenbruch's computer onto a CD while Muhlenbruch and Tatiana were in Des Moines. Using a key that Tatiana left under a doormat outside Muhlenbruch's apartment, Klaas entered the apartment, accessed Muhlenbruch's computer, and downloaded what he believed were images of child pornography onto CDs. Klaas then went to the Marshalltown Police Department and reported to Officer Curtis Hansel that Muhlenbruch possessed child pornography on his computer. When Officer Hansel told Klaas that more information was needed before the police could take action, Klaas gave Officer Hansel the CDs containing files from Muhlenbruch's computer. Officer Hansel reviewed the images on the CDs and believed, based on his training and experience, that the images constituted child pornography.

Soon after Officer Hansel reviewed the CDs, he began to prepare a search warrant for Muhlenbruch's apartment. Meanwhile, an officer was assigned to conduct surveillance on Muhlenbruch's apartment and to prevent entry while the search warrant was being processed. Muhlenbruch and Tatiana returned to the apartment from Des Moines before the warrant was secured. There, an officer briefly spoke with Tatiana and Muhlenbruch without explaining why law enforcement was present. The officer told Muhlenbruch that he was

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not under arrest and Muhlenbruch was transported to the police station in the backseat of a patrol car for questioning.² At the police station, Muhlenbruch was placed in a hallway near the booking area while officers questioned Tatiana. Tatiana explained to the officers that she found child pornography on Muhlenbruch's computer and directed Klaas to enter Muhlenbruch's apartment to retrieve the images.

After Tatiana's interview, Officer Hansel and Detective Jeremy Linsenmeyer interviewed Muhlenbruch regarding the images found on his computer. A DVD recording of the interview shows that Muhlenbruch was interviewed in a relatively small, windowless room with the door closed for approximately twenty-two minutes. Before the officers began questioning Muhlenbruch, they explained that Muhlenbruch was not under arrest and that he was free to leave at any time. Officer Hansel then told Muhlenbruch that they wanted to ask him about pictures of children found on Muhlenbruch's computer. Muhlenbruch initially denied downloading child pornography on his computer but he admitted to saving adult pornography in a hidden computer folder entitled “AA727.” Detective Linsenmeyer stressed to Muhlenbruch the importance of being honest and he explained that Muhlenbruch's denial of downloading child pornography differed from Tatiana's statement. Shortly after this exchange, Muhlenbruch asked, “I am going to ask you at this point, do I need to bring an attorney in?” Detective Linsenmeyer responded, “That's up to you. I don't tell you one way or the other.” Muhlenbruch said, “Okay,” and he confessed to downloading child pornography approximately thirty seconds later without making any further references to counsel. This confession occurred approximately seven-and-a-half minutes into the interview. Muhlenbruch then elaborated that he would “never touch a child” but child pornography was like “the forbidden fruit. You ain't supposed to have it, so then you want it.”

After Muhlenbruch explained why and how he downloaded child pornography, Officer Hansel reiterated, “Like I told you, Randall, you're going to walk out this door no matter what.” Detective Linsenmeyer asked Muhlenbruch whether he would sign a form granting consent to seize Muhlenbruch's computer. Muhlenbruch responded, “I do wonder if I shouldn't have an attorney here to help me on this one.” Detective Linsenmeyer again told Muhlenbruch, “This is totally up to you.... If you don't want to do it, you don't have to.” Officer Hansel added, “[W]e can't tell you one way or the other” and again explained to Muhlenbruch that he was not under arrest and that “no matter what you say, or do, or don't do ... you're walking out that door.” Muhlenbruch then requested to consult a lawyer. Detective Linsenmeyer told Muhlenbruch that they would proceed to prepare a search warrant and that Muhlenbruch would need to remain at the police station until the warrant was secured to prevent Muhlenbruch from destroying or hiding the computer. Muhlenbruch then asked the officers whether his computer would be destroyed during the search. The officers explained that the computer would not be destroyed and Muhlenbruch replied that if he got his computer back, he would consent to the search. Later, Muhlenbruch reiterated, “I'll give you consent because you guys have been more than straightforward with me, and I don't think you're trying to hang

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me, I really don't.” It is undisputed that Muhlenbruch was not advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) at any point before or during the recorded interview.

After Muhlenbruch gave consent to seize his computer, Detective Linsenmeyer and Officer Hansel traveled to Muhlenbruch's apartment in a patrol car with Muhlenbruch seated in the front passenger seat. Inside the apartment, Muhlenbruch assisted the officers by unhooking the cables to his computer tower. Officer Hansel seized the computer, placed it in his patrol car, and returned to the police station with Detective Linsenmeyer. Muhlenbruch remained at his apartment and he was not arrested at that time. A warrant to search the computer's hard drive was obtained on January 11, 2005. Officer Hansel's affidavit in support of the warrant application incorrectly stated that Muhlenbruch confessed “under Miranda ” that child pornography was on his computer. A subsequent forensic examination of the hard drive revealed apparent images of child pornography.

On June 20, 2007, a grand jury filed an indictment charging Muhlenbruch with both receipt and possession of child pornography. Before trial, Muhlenbruch filed motions to suppress statements made during his recorded interview and evidence obtained during the search of his apartment and his computer's hard drive. The district court denied Muhlenbruch's motions to suppress and a jury later found Muhlenbruch guilty of both receiving and possessing child pornography. The district court then sentenced Muhlenbruch to 120 months' imprisonment and five years' supervised release for each count, to run concurrently. Muhlenbruch appeals.

II. DISCUSSIONA. Denial Motions to Suppress

Muhlenbruch argues that the district court erred when it denied his motions to suppress his statements and the evidence obtained during the searches of his apartment and computer. When reviewing the denial of a motion to suppress, we review the district court's factual findings for clear error and its conclusions of law de novo. United States v. Aguilera, 625 F.3d 482, 486 (8th Cir.2010).

1. Motion to Suppress Statements

Muhlenbruch asserts that the district court should have suppressed inculpatory statements he made during his interview with Officer Hansel and Detective Linsenmeyer because Muhlenbruch was not apprised of his Miranda rights before or during the interview. Specifically, Muhlenbruch challenges the district court's conclusion that Miranda warnings were not required because Muhlenbruch was not “in custody” at the time of the interview. Under the Fifth Amendment, Miranda warnings are required when “interrogation is ‘initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” United States v. New, 491 F.3d 369, 373 (8th Cir.2007) (quoting Miranda, 384 U.S....