United States District Court, D. Minnesota
M. SERTICH, EMILY POLACHEK, ASSISTANT UNITED STATES
ATTORNEYS, FOR PLAINTIFF.
EDWIN KUHNEL, PRO SE DEFENDANT.
R. TUNHEIM CHIEF JUDGE
John Edwin Kuhnel was charged with nine counts of receipt of
child pornography under 18 U.S.C. §§ 2252(a)(2) and
(b)(1). (Superseding Indictment at 1-2, Apr. 1, 2019, Docket
No. 127.) Kuhnel was also charged with two counts of
possession; one under 18 U.S.C. §§ 2252(a)(4)(B)
and (b)(2); and one under 18 U.S.C. §§
2252A(a)(5)(B) and (b)(2). (Id. at 3-4.) Kuhnel
filed a series of pretrial motions requesting the Court to
(1) suppress Examiner Report #3 (Mot. to Suppress Ex. Report,
Apr. 12, 2019, Docket No. 134); (2) dismiss the indictment as
insufficient (Mot. to Dismiss for Insufficiency, May 2, 2019,
Docket No. 149); (3) order the United States to disclose its
witness list (Mot. to Disclose Witnesses, Sept. 9, 2019,
Docket No. 202); (4) order discovery of certain information
(Mot. for Impeaching Matter, Sept. 12 2019, Docket No. 205);
(5) dismiss the indictment for government misconduct (Mot. to
Dismiss for Gov. Misconduct, Sept. 18, 2019, Docket No. 217);
(6) dismiss the indictment for vindictive prosecution (Mot.
to Dismiss for Vindictive Prosecution, Sept. 18, 2019, Docket
No. 218); (7) reopen the issue of suppression of evidence
seized without a warrant and grant a continuance of trial
(Mot. to Recons., Sept. 18, 2019, Docket No. 219); (8)
preclude certain evidence pursuant to a motion in limine
(Def.'s Mot. in Lim., Sept. 20, 2019, Docket No. 226);
(9) dismiss certain counts as multiplicitous of another count
(Mot. to Dismiss Counts 2-9, Sept. 20, 2019, Docket Nos.
227); (10) order specific accommodations for the inspection
of evidence (Mot. to Inspect, Oct. 10, 2019, Docket No. 236);
and (11) allow for an out-of-time supplemental briefing on
Kuhnel's motion to dismiss for vindictive prosecution.
(Mot. for Suppl. Brief, Nov. 7, 2019, Docket No. 248.)
United States opposes the majority of these motions but has
indicated a willingness to provide certain accommodations for
the inspection of evidence. (Omnibus Resp. to Pretrial Mot.
(“Pretrial Mot. Resp.”) at 2, 7, 9, 11-16, 17,
Oct. 25, 2019, Docket No. 241.) For the reasons set forth
below, the Court will largely deny Kuhnel's motions.
parties are familiar with the relevant factual and procedural
history. For the sake of brevity, the Court will not repeat
such history here and will only discuss facts in the sections
below to the extent necessary to rule on the present motions.
REPORT AND RECOMMENDATION (Docket No. 199.)
motions to (1) suppress Examiner Report #3 (Docket No. 134);
and (2) dismiss the indictment as insufficient (Docket No.
149) are the subject of a Report and Recommendation
(“R&R”) from the Magistrate Judge. (R&R,
Sept. 3, 2019, Docket No. 199.) The Magistrate Judge
recommended that the Court deny both motions. (R&R at 16-
17.) Kuhnel objected to the R&R's denial of both
motions. (Def.'s Objs. to R&R at 3, 10, Sept. 13,
2019, Docket No. 206.) The United States filed a response
urging adoption of the R&R. (Gov't Resp. at 1, Sept. 27,
2019, Docket No. 230.) The Court will review Kuhnel's
objections de novo. 28 U.S.C. § 636(b)(1);
accord LR 72.2(b)(3). For the reasons set forth
below, the Court will adopt the R&R and deny Kuhnel's
Motion to Suppress Examiner Report 3
pertains to Kuhnel's motion to suppress Examiner Report
#3, Kuhnel contends that (1) the Magistrate Judge incorrectly
disregarded Kuhnel's supplemental briefing; (2) the
R&R mischaracterizes the facts; and (3) the R&R
incorrectly found that Kuhnel did not suffer a violation of
his constitutional rights and that the inevitable discovery
doctrine applied. (Def.'s Objs. To R&R at 2-10.)
Objection to Denial of the Supplemental Briefing
objects to the Magistrate Judge's order denying
acceptance of his supplemental briefing. The Magistrate
Judge stated, however, that even if the supplemental briefing
would have been timely, it would not have altered the
recommendation. (R&R at 3 n.1.) Further, Kuhnel revives
the core arguments made in his supplemental briefing,
sometimes word-for-word, in separately filed motions that the
Court will review. (Compare Def.'s Supp. Brief,
Aug. 20, 2019, Docket No. 189 with Def.'s Objs.
to R&R, Sept. 13, 2019, Docket No. 206 and Mot.
to Dismiss for Gov. Misconduct, Sept. 18, 2019, Docket No.
217.) Thus, the Court will deny Kuhnel's objection on
this ground as it is irrelevant to the outcome.
Objection to Factual Issues in Report and
claimed factual errors in the R&R, Kuhnel first argues
that Officer Dale Hanson's initial analysis of
Kuhnel's computer was a complete examination and was not
limited in scope. Second, Kuhnel disagrees with the R&R
finding that Officer Hanson offered Wold-Kuhnel's
Expert-the use of certain software because Wold's own
software was taking longer than expected. Third, Kuhnel
claims the Magistrate Judge incorrectly found that Officer
Hanson's testimony lacked evasiveness. Kuhnel further
argues that Officer Hanson's statements impeach his
hearing transcript clearly supports the Magistrate
Judge's factual summary and the Court will deny
Kuhnel's objections. First, Officer Hanson testified that
he conducted an initial forensic examination of Kuhnel's
laptop and, as is common practice, was requested later to
conduct an additional analysis. (SEALED Hr'g Tr. at
76:16-77:10, July 11, 2019, Docket No. 175.) An initial
examination that later requires additional analysis indicates
that the first examination was not complete.
while Wold stated he did not recall why Officer Hanson
offered Wold the use of a forensic software program, Officer
Hanson stated it was because Wold's program was taking
longer than expected. (Id. at 41:8-24; 82:9-21.) The
Magistrate Judge adopted the only explanation proffered
during the hearing. Third, the hearing transcript does not
show Officer Hanson acting in an evasive manner nor does it
show Officer Hanson impeaching himself. The Court also notes
that the Magistrate Judge was present for the examination of
Officer Hanson and is therefore in a much better position to
evaluate his credibility and demeanor when subject to
questioning. Thus, the Court finds that the R&R
accurately reflected the facts and adopts them herein.
Objection to Finding No Constitutional Violations
to Kuhnel's core objections to suppress, Kuhnel makes two
main arguments. First, Kuhnel argues that Officer Hanson
impermissibly interfered with and solicited information from
Wold and, as a result, interfered with attorney-client
privilege and the expert's work product. Second, Kuhnel
argues that the United States would not have independently
discovered the information because it had already conducted a
thorough search of Kuhnel's computer without finding the
evidence. As a result, Kuhnel argues for suppression of
Examiner Report #3 under the Fourth and Fifth Amendments.
Each argument is considered below.
Impermissible Interference or Solicitation
United States may not discover or inspect the work-product of
the defendant, the defendant's attorney, or the
defendant's agent during the case. Fed. R. Crim. P.
16(b)(2)(A); United States v. Nobles, 422 U.S. 225,
237-39 (1975). Work-product doctrine is designed to protect
the mental processes of the attorney but because attorneys
must rely on other investigators in preparation for trial, it
also protects the work of other agents, including experts.
doctrine prevents the United States from either gaining
unauthorized access or compelling Kuhnel's expert, Wold,
to disclose his mental processes and work-product. Kuhnel
alleges that the United States gained unauthorized access by
(1) placing Wold in a government cubicle to perform his
examination of the computer; (2) continuing to communicate
with Wold after Wold's investigation was complete; and
(3) effectively soliciting information from
record does not support these allegations. Wold testified
that he had sufficient privacy during his examination and
that neither Officer Hanson nor any agent of the United
States compelled him to divulge any privileged information.
(SEALED Hr'g Tr. at 67:4- 14, July 11, 2019, Docket No.
175) Officer Hanson denied observing Wold's work and Wold
agreed. (Id. at 49:15-52:10, 84:16-85:6.) There is
no evidence that any government agent violated Kuhnel's
constitutional rights during Wold's examination.
there is no evidence that Officer Hanson or any other
government agent impermissibly observed Wold's work,
there is no evidence that Officer Hanson solicited
information from Wold. Kuhnel's argument is, in essence,
it “takes two to tango.” (Def.'s Objs. to
R&R at 4, Sept. 13, 2019, Docket No. 206.) But any
information Officer Hanson received from Wold appears to have
been voluntarily disclosed by Wold without any solicitation
by the United States. (SEALED Hr'g Tr. at 50-51, 54,
83-84, 91-92, July 11, 2019, Docket No. 175.) And neither the
Constitution nor the privilege doctrine compels a government
agent to stop listening when someone voluntarily discloses
information. Because nothing in the record demonstrates that
a government agent violated Kuhnel's constitutional
rights or impermissibly violated a privilege, Kuhnel has not
demonstrated grounds to suppress Examiner Report #3.
the Court assumed that the United States impermissibly gained
work-product from Wold in violation of Kuhnel's rights,
the evidence would be admissible under the inevitable
discovery doctrine. Nix v. Williams, 467 U.S. 431,
444 (1984); United States v. Sallis, 920 F.3d 577,
582-83 (8th Cir. 2019). The burden of proving
inevitable discovery is on the Government. Nix, 467
U.S. at 444. The Government must prove by a
preponderance of the evidence that “(1) there is a
reasonable probability the evidence would have been
discovered by lawful means in the absence of police
misconduct, and (2) the government was actively pursuing a
substantial, alternative line of investigation at the time of
the constitutional violation.” United States v.
Thomas, 524 F.3d 855, 858 (8th Cir. 2008).
United States has met its burden on both elements. First, the
United States has shown there was a reasonable probability of
discovery by lawful means. Kuhnel claims that United States
had already completed an exhaustive search and argues the
Forte program would not have been discovered without Officer
Hanson gaining unauthorized access to Wold's
work-product. But the United States provided evidence that it
planned to conduct a more thorough examination of the
computer and its files before Wold disclosed any information
to Officer Hanson. (SEALED Hr'g Tr. at 76:16-77:10,
118:25-19:24, July 11, 2019, Docket No. 175.) Officer Hanson
also discovered the existence of the Forte program using a
keyword search based on evidence the United States had prior
to Kuhnel being indicted-the filename of the image.
(Id. at 86:21-88:8.) Wold, Kuhnel's own expert,
also stated another expert reviewing the laptop “should
have” found the Forte program. (Id. at
55:10-56:7.) Because United States already had the evidence
it needed to discover the Forte program and it planned to
conduct a more thorough search, there was a reasonable
probability of discovery of the Forte program without the
information disclosed by Wold.
the United States has also shown that it was actively
pursuing a substantial, alternative line of investigation at
the time of Officer Hanson's contacts with Wold. As noted
above, United States already planned to conduct further
analysis of the computer. (Id. at 76:16-77:10,
118:25-19:24.) Moreover, Officer Hanson stated he conducts
additional analysis prior to almost every trial.
(Id. at 76:23-77:7.) This shows the existence of the
necessary alternative line of investigation, meeting the
second element of the inevitable discovery doctrine. See
Thomas, 524 F.3d at 858. As a result, Examiner Report #3
would be admissible even if the United States had violated
Kuhnel's constitutional rights.
the Court finds that (1) Kuhnel's constitutional rights
were not violated, and (2) even if Kuhnel's rights had
been violated, the inevitable discovery doctrine applies, the
Court will overrule Kuhnel's objections and will adopt
the Magistrate Judge's recommendation that Kuhnel's
Motion to Suppress Examiner Report #3 be denied.
also objects to the Magistrate Judge's recommendation
that the Court deny Kuhnel's Motion for Dismissal and
Release Based on an Insufficient Indictment. Kuhnel's
main arguments appear to be that (1) the Magistrate Judge
showed bias when considering this issue; (2) the R&R did
not adequately address whether the superseding indictment
charged each element; and ...