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United States v. Kuhnel

United States District Court, D. Minnesota

December 12, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN EDWIN KUHNEL, Defendant.

          MANDA M. SERTICH, EMILY POLACHEK, ASSISTANT UNITED STATES ATTORNEYS, FOR PLAINTIFF.

          JOHN EDWIN KUHNEL, PRO SE DEFENDANT.

          ORDER

          JOHN R. TUNHEIM CHIEF JUDGE

         Defendant 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.)

         The 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.

         DISCUSSION

         I. BACKGROUND

         The 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.

         II. REPORT AND RECOMMENDATION (Docket No. 199.)

         Kuhnel's 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.[1] (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 objections.

         A. Motion to Suppress Examiner Report 3

         As it 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.)

         1. Objection to Denial of the Supplemental Briefing

         Kuhnel objects to the Magistrate Judge's order denying acceptance of his supplemental briefing.[2] 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.

         2. Objection to Factual Issues in Report and Recommendation

         On the 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 credibility.

         The 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.

         Second, 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.

         3. Objection to Finding No Constitutional Violations

         Turning 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.

         a. Impermissible Interference or Solicitation

         The 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. See id.

         Work-product 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 Wold.[3]

         The 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.

         Just as 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.

         b. Inevitable Discovery

         Even if 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.[4] 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).

         The 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.

         Second, 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.

         Because 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.

         B. Insufficient Indictment

         Kuhnel 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 ...


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