United States v. Kuhnel

• Decision Date: 02 February 2022
• Docket Number: No. 20-3388,20-3388
• Citation: 25 F.4th 559
• Parties: UNITED STATES of America, Plaintiff - Appellee v. John Edwin KUHNEL, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

25 F.4th 559

UNITED STATES of America, Plaintiff - Appellee

v.John Edwin KUHNEL, Defendant - Appellant

No. 20-3388

United States Court of Appeals, Eighth Circuit.

Submitted: October 22, 2021

Filed: February 2, 2022

Craig Raymond Baune, Assistant U.S. Attorney, Katharine Thornton Buzicky, Assistant U.S. Attorney, Emily Anne Polachek, Manda M. Sertich, Assistant U.S. Attorney, U.S. Attorney's Office, District of Minnesota, Minneapolis, MN, for Plaintiff-Appellee.

Glenn P. Bruder, Mitchell & Bruder, Prairie, MN, for Defendant-Appellant.

John Edwin Kuhnel, Adelanto, CA, Pro Se.

Before ERICKSON, GRASZ, and STRAS, Circuit Judges.

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."

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 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.

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, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) ). An individual subject to a court-ordered search condition retains a "significantly diminished ... reasonable expectation of privacy." Id. at 120, 122 S.Ct. 587.

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, 126 S.Ct. 2193, 165 L.Ed.2d 250 (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).

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 ...