Understanding Conditions of Probation in Child Pornography Cases
United States v. Kuhnel, 20-3388
The conditions prohibited the Defendant 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 the Defendant to “submit at any time to an unannounced visit and/or search of the offender’s person, vehicle or premises by the agent/designee.” Defendant’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.
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 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. Consistent with local practice, Kuhnel served two-thirds of his sentence in a correctional facility and the remaining year on supervised release.
The conditions prohibited Kuhnel from possessing sexually explicit material, accessing the internet or electronic devices without permission, using non-approved 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.”
Kuhnel secured employment in the information technology field and received permission to have a cell phone and a laptop for work. Shortly before Kuhnel arrived for a meeting at the probation office, Officer James observed that he had signed into his email account from an unrecognized device.
Officer James sent the purported client laptop to the Minneapolis Police Department for a full search pursuant to a warrant, which uncovered more than 33,000 child pornography files. 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.
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.
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.
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. 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.
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).
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).
“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). 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).
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.