Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Kuhnel

United States District Court, D. Minnesota

September 3, 2019

United States of America, Plaintiff,
v.
John Edwin Kuhnel, Defendant.

          Manda M. Sertich, Esq., United States Attorney's Office, counsel for Plaintiff.

          John Edwin Kuhnel, pro se Defendant.

          REPORT AND RECOMMENDATION

          BECKY R. THORSON, UNITED STATES MAGISTRATE JUDGE

         This 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.)

         The 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.

         For the 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.

         I. Defendant's Motion to Suppress Examiner Report #3 (Doc. No. 134)

         Defendant's 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.[1] (Doc. No. 188, 8/16/19 Ord.)

         A. Background

         Defendant 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).

         Jeffrey Wold was engaged by Defendant's counsel[2] 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.)

         Meanwhile, 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.)

         On 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.)

         Wold spoke in general terms with Officer Hanson about what Wold was looking for in his examination.[3] (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”[4] of important information discovered during his examination. (Id. at 82- 83.) Officer Hanson believed that this would help Wold expedite his forensic analysis. (Id.)

         Wold 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.[5] (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.)

         During 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, 84.)

         Officer 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.