United States District Court, D. Minnesota
M. Sertich, Esq., United States Attorney's Office,
counsel for Plaintiff.
Edwin Kuhnel, pro se Defendant.
REPORT AND RECOMMENDATION
R. THORSON, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant John Edwin
Kuhnel's Motion to Suppress Examiner Report #3, and
Defendant's Motion for Dismissal and Release Based on an
Insufficient Indictment. (Doc. No. 134, Def.'s Mot. to
Suppress; Doc. No. 149, Def.'s Mot. to Dismiss.)
Criminal Complaint (Doc. No. 1) in this case was filed on
June 15, 2017. On July 17, 2017, a grand jury returned a true
bill on an Indictment (Doc. No. 14) charging Defendant with
two counts of receiving child pornography, in violation of 18
U.S.C. §§ 2252(a)(2), (b)(1), and one count of
possession of child pornography, in violation of 18 U.S.C.
§§ 2252(a)(4)(B), (b)(2). Defendant elected to
proceed pro se and standby counsel was appointed.
(Doc. No. 119, Hr'g Mins.) On April 1, 2019, a grand jury
returned a true bill on a Superseding Indictment (Doc. No.
127) that added seven counts for receipt of child
pornography, and one count for possession of child
pornography. Following an arraignment on the Superseding
Indictment and a hearing on other defense motions, the trial
date was continued to September 9, 2019. (Doc. No. 130,
Status Conf. Mins.) On April 12, 2019, Defendant moved to
suppress Examiner Report #3. (Doc. No. 134, Def.'s Mot.
to Supp.) On May 2, 2019, Defendant moved to dismiss the
Superseding Indictment. (Doc. No. 149, Def.'s Mot. to
Dis.) These matters were referred to the undersigned for a
Report and Recommendation pursuant to 28 U.S.C. § 636
and D. Minn. LR 72.1.
reasons set forth below, this Court recommends that both
Defendant's Motion to Suppress Examiner Report #3 (Doc.
No. 134) and Defendant's Motion for Dismissal and Release
Based on an Insufficient Indictment (Doc. No. 149) be denied.
Defendant's Motion to Suppress Examiner Report #3 (Doc.
Motion to Suppress Examiner Report #3 (Doc. No. 134) was
filed on April 12, 2019. The Government filed its Response
(Doc. No. 144) on May 1, 2019, and Defendant filed a Response
to the Response on the Motions to Suppress and Waive Jury
Trial (Doc. No. 160) on June 10, 2019. An evidentiary hearing
on Defendant's motion to suppress was held on July 2,
2019, at which testimony was received from Officer Dale
Hanson and Defendant's expert witness, Jeffrey Wold.
(See Doc. No. 172, Hr'g Mins; Doc. No. 175,
Hr'g Tr.) At this hearing, Defendant was granted leave to
file a supplemental brief by July 30, 2019. (See
Hr'g Mins.; Hr'g Tr. 129-30.) Defendant filed a
motion for an extension of the July 30th deadline (Doc. No.
177), which this Court granted on July 31, 2019. (Doc. No.
180, 7/31/19 Ord.) This Court instructed the Defendant to
work with his standby counsel to ensure Defendant met the new
filing deadline of August 15, 2019. (Id.) Defendant
failed to meet this extended deadline, and the Court issued
an Order taking his motion to suppress (Doc. No. 134) under
advisement on August 16, 2019. (Doc. No. 188, 8/16/19 Ord.)
seeks to suppress Examiner Report #3, which was prepared by
the Government's case agent, Officer Dale Hanson.
(See Doc. No. 173, Ex. List, Plf. Ex. 1.) Prior to
charging, Officer Hanson conducted an initial forensic
examination (“Examiner Report #1”) of
Defendant's laptop computer in March 2017. (Hr'g Tr.
71.) Officer Hanson's initial examination was limited in
scope because a full examination of a computer is not
ordinarily required prior to charging once contraband has
been discovered. (Id. at 72-73.) Officer
Hanson's Examiner Report #1 was disclosed to defense
counsel on July 24, 2017. This original report focused on
Defendant's alleged use of the NewsLeecher newsgroup
program to download child pornography files from the
Internet. (Id. at 74-75.) The first Indictment (Doc.
No. 14) was based on the findings of Examiner Report #1 and
included two counts of receiving child pornography, in
violation of 18 U.S.C. §§ 2252(a)(2), (b)(1), and
one count of possession of child pornography, in violation of
18 U.S.C. §§ 2252(a)(4)(B), (b)(2).
Wold was engaged by Defendant's counsel to assist
Defendant with the forensic analysis of his laptop computer.
In January 2019, Wold contacted Officer Hanson by email to
inform him that Wold had been appointed to perform a forensic
examination in Defendant's case. (Hr'g Tr. 75.)
Officer Hanson knew Wold from his work as a defense expert in
previous cases. (Id. at 75-76.) Sometime prior to
February 15, 2019, the prosecution team requested that
Officer Hanson conduct a more thorough forensic analysis of
the two child pornography files in preparation for trial.
(Id. at 76-77, 118-19.) Officer Hanson testified
that it is “very common” for prosecutors to make
such requests, and that in “pretty much every case
I've gone to trial on I've done additional
examination work.” (Id. at 77.)
between January 3, 2019, and February 19, 2019, Officer
Hanson and Wold had communicated by email concerning the
logistics of Wold's examination of Defendant's
computer. (See Ex. List, Plf. Ex. 2.) Hanson sent
Wold his original forensic examination report and some other
preliminary materials. (Hr'g Tr. 78-80.) Wold inquired
about where he would conduct his examination, and Officer
Hanson offered Wold the use of his workspace in Minneapolis
City Hall. (Id. at 79-81.) Officer Hanson testified
that he did this because he believed Wold preferred the
environment there to the FBI office. (Id.) Wold
shipped his hardware to Officer Hanson's office ahead of
his examination. (Id. at 48, 79.) Prior to
Wold's visit, Officer Hanson offered Wold a portable copy
of a program called Internet Evidence Finder, which contained
internet history data extracted from a forensic copy of
Defendant's laptop computer “in case [Wold] wanted
to look at it ahead of time.” (Id. at 79-80.)
February 19, 2019, Wold traveled to Minneapolis to examine
Defendant's HP Pavilion laptop containing child
pornography. (Id.) Wold met Officer Hanson at his
workstation in the Minneapolis City Hall. Officer Hanson
shares his workspace with four other examiners. (Id.
at 49, 81.) The workstation is a large U-shaped cubicle.
(Id.) Wold worked at a desk opposite Officer Hanson,
where Wold was seated with his back facing Officer
Hanson's back. There was approximately ten feet of space
between them. (Id. at 49-50, 81.) Officer Hanson
provided Wold with a forensic copy of the laptop for his
examination. (Id. at 81.)
spoke in general terms with Officer Hanson about what Wold
was looking for in his examination. (Id. at 81-82.)
Wold disclosed to Hanson that he was concerned with
“the receipt files not being right.”
(Id. at 81-82.) Because the program Wold was using
took longer than expected to process the data, Officer Hanson
provided Wold with the forensic program he used to review
Defendant's laptop, including Officer Hanson's
“bookmarks” of important information discovered
during his examination. (Id. at 82- 83.) Officer
Hanson believed that this would help Wold expedite his
forensic analysis. (Id.)
conducted his examination in Officer Hanson's workspace
between February 19 and 21, 2019. (Id. at 85.)
Officer Hanson testified that during Wold's examination,
Wold mentioned a program called “Forte, ” a
newsgroup program used to share and download
files. (Id. at 83-84.) Officer Hanson
testified that he wrote the name “Forte” down on
a piece of paper, and that he had no previous knowledge of
the Forte program. (Id. at 83-84, 105.) Officer
Hanson testified that he did not recall anything further
about this exchange. (Id.) At another point during
Wold's examination, Wold pointed out to Officer Hanson
that one of the image files charged as a possession count was
a thumbnail image of an already existing image file.
(Id. at 40, 51-52, 84.) Wold testified that using
thumbnails to charge additional possession counts is
“common practice, ” and that in his work he
“commonly relay[s]” such information to
investigating agents. (Id. at 40, 52.)
the examination, Officer Hanson did not solicit any
information from Wold or monitor Wold's examination.
(Id. at 50-51, 84-85.) Officer Hanson and Wold did
not review or discuss the content of any notes taken by Wold
during his examination. (Id.) Wold did not discuss
defense strategy with Officer Hanson. (Id. at 51,
Hanson provided Wold with a defense copy of the entire case,
with all contraband removed. (Id. at 85.) Officer
Hanson testified that “basically in every case I make a
defense copy of the entire case which includes everything but
the contraband. I asked [Wold] if he had a copy of that and
he said he didn't, so I burned a new disc for him and
gave that to him.” (Id.) Wold also took files
and data with him on a thumb drive for further examination,
after first allowing Officer Hanson to ...