United States v. Hensley
| Decision Date | 16 December 2020 |
| Docket Number | No. 19-2417,19-2417 |
| Parties | UNITED STATES of America, Plaintiff - Appellee v. Robert Nathan HENSLEY, Defendant - Appellant |
| Court | U.S. Court of Appeals — Eighth Circuit |
Kristin Huntington Bryant, Assistant U.S. Attorney, Stephanie Mazzanti, Assistant U.S. Attorney, John Ray White, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Arkansas, Little Rock, AR, for Plaintiff-Appellee
Latrece Gray, Assistant Federal Public Defender, Jason Phillip Kearney, Sylvia Talley, Assistant Federal Public Defender, Federal Public Defender's Office, Little Rock, AR, for Defendant-Appellant
Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
Robert Nathan Hensley was charged with attempted enticement of a minor to engage in illegal sexual conduct, in violation of 18 U.S.C. § 2422(b) (Count 1); attempted production of child pornography after having previously been convicted of child sex crimes, in violation of 18 U.S.C. §§ 2251(a) and 2251(e) (Count 2); and possession of child pornography after having previously been convicted of child sex crimes, in violation of 18 U.S.C. § 2252(a)(4)(B) (Count 3). Hensley filed a motion to suppress evidence, and after an evidentiary hearing, the district court1 denied the motion. Following a jury trial, Hensley was found guilty on all three counts. The district court sentenced him to 420 months imprisonment on each count, to run concurrently, and supervised release for life. Hensley appeals the district court's denial of his motion to suppress as well as his conviction and sentence, arguing that the evidence was insufficient to support his convictions; that the district court erred in instructing the jury; that the government made improper and prejudicial closing remarks; and that his sentence for Count 3 was illegal. Having jurisdiction under 28 U.S.C. § 1291, we affirm.
On October 12, 2017, Hensley responded to a Craigslist advertisement posted by an FBI agent. The advertisement indicated that a father and daughter, whose age was listed as 18, were traveling through the Conway, Arkansas area and were looking to have sex. Between October 12, 2017, and October 13, 2017, Hensley and the agent, posing as the father, exchanged numerous text messages relating to Hensley's meeting the father and his "daughter" so Hensley could have sex with the daughter. Approximately five minutes into their exchange on October 12, the father told Hensley that his daughter was 14. Sometime later, Hensley texted that he was "not into minors" and also said "18 and up only." R. Doc. 1, at 4. Nonetheless, Hensley continued to exchange sexually explicit text messages with the father, in which Hensley described in detail various sex acts he wanted to perform on the daughter. He also asked the father to "[s]end front pic tits and pus." R. Doc. 1, at 5. Hensley offered to pay to perform sex acts on the daughter while the father watched, and even offered to "buy" the daughter for $3,000, for which the daughter would receive "a lifetime of bondage and sex." R. Doc. 1, at 5. Upon the father's request, Hensley texted a picture of himself.
At around 4:00 a.m. on October 13, 2017, Hensley called the National Human Trafficking Hotline to anonymously report suspected trafficking of a 14-year-old minor female. Later, Hensley and the agent, still posing as the father, resumed their text conversation. Through text messages, Hensley and the father agreed to meet at an Exxon gas station in Cabot, Arkansas, at 2:00 p.m.; Hensley would pay $150 to have sex with the daughter; and the father could watch. Hensley admittedly drove to the Exxon. Additionally, four law enforcement officers drove to the Exxon. Hensley and the father exchanged text messages in which each party wanted the other to reveal himself first. The meeting did not take place. Shortly thereafter, Hensley texted the father, provided his address, and invited him to his house for oral sex.
The agents drove to Hensley's address, and they used his license plate data to pull up the associated driver's license information. The photo on the license was consistent with the photo Hensley had texted to the agent. FBI Special Agent John Sablatura then placed a ruse service call to Hensley's heating and air conditioning business. Hensley left his home in his work truck, and the agents pulled him over approximately a mile from his home. They questioned him about the minor female who he suspected was being trafficked. Hensley told the agents he was glad they were there and he had information about the girl to help them out. Further, he admitted sending the text message requesting "front pic tits and pus." Eventually the agents asked Hensley if he had a laptop computer and if they could review it. The agents obtained Hensley's consent to search his home for the laptop and to search the laptop. The agents found and seized the laptop.
On October 17, 2017, Hensley was arrested and charged with attempted enticement of a minor and attempted production of child pornography. A forensic examination of the laptop revealed three images of minor children engaged in sexually explicit conduct. Subsequently, the grand jury returned a superseding indictment, adding one count of possession of child pornography.
Before trial, Hensley filed a motion to suppress the statements he made to the agents and any evidence obtained as a result of his custodial interrogation. The district court held an evidentiary hearing, at which Hensley, the agents, and other witnesses testified. Thereafter, the district court entered a comprehensive order denying the motion to suppress. The district court rejected Hensley's argument that he was unlawfully seized in violation of the Fourth Amendment when the agents pulled him over and questioned him, finding that the agents had reasonable suspicion to pull him over and that the encounter became consensual by the time questioning began. The district court further held that Hensley knowingly and voluntarily waived his Miranda 2 rights, but even if he had not, his interrogation was not custodial and thus the agents were not required to give him any Miranda warnings.
At trial, FBI Computer Analysis Response Team analyst Tim Whitlock testified for the government. He found three images of child pornography in unallocated space on Hensley's laptop, meaning the images were on the computer but had been deleted either by the user or the computer's operating system. He could not definitively say who deleted the images or when they were deleted. Whitlock explained that the images were digital and could have been received on the laptop or transferred from another digital source, but he could not definitively say which. Hensley's computer expert, Robert Gray, testified that the images could have been accessed by Hensley from links found on the websites in Hensley's browser history, as described in the trial exhibits. While Hensley denied producing or saving the images, he testified that he surfed the internet in his free time, typically for sexually explicit material by searching and then clicking on links. He did not testify about using any other digital source to access or upload sexually explicit material. It is undisputed that the laptop on which the images were found was manufactured in China.
Hensley's browser history revealed an interest in pornography where youth was emphasized, and the government introduced this history as evidence at trial. Hensley admitted intentionally accessing all of the websites in the trial exhibits. For example, he accessed the website "youngpetite.org," the description of which included the word "teen." Gray testified that the websites’ homepages indicated there was no child pornography on the sites and that there was a very high likelihood that no child porn was on the sites. Gray admitted, however, that he did not access the content of those sites but rather visited only the homepages. Hensley accessed some of the sites using the private browser function, although he denied using the function intentionally.
Both experts testified that the images found on Hensley's laptop could have been intentionally accessed from the internet or could have been temporarily saved without the user's knowledge as "pop-ups," which refer to items automatically opening on a computer. Hensley described seeing pop-ups when he accessed "adult videos" or websites. Whitlock determined that the laptop was used to access the internet and that Hensley was the user. Hensley admitted at trial that he used the laptop to access the internet, including the websites listed in the government's exhibits.
Whitlock testified that a program called CCleaner was on Hensley's laptop. CCleaner is a cleaning software that deletes and assists in hiding items. Whitlock determined that CCleaner was run at 1:52 a.m. on October 13, 2017. Gray testified that the launch of CCleaner did not necessarily mean Hensley's laptop was cleaned then. Hensley admitted that a store installed CCleaner on his laptop, but he denied intentionally launching it.
The government introduced into evidence certified records of Hensley's prior child sex crimes convictions. When Special Agent Sablatura was asked on direct examination about the nature of the convictions, Hensley requested a limiting instruction. The district court gave a limiting instruction during trial and admonished the jury that it "may not consider these convictions as evidence he actually committed the crimes that he's charged with in this case." R. Doc. 111, at 35. Hensley did not object or request any other specific language in this limiting instruction. The district court admitted only the nature of the prior convictions, not any of the underlying facts.
Over Hensley's objection, the district court's jury instruction on the attempted enticement charge contained the following illustrative example: "The act of driving to a planned meeting location has been found sufficient...
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