Petition for Writ of Certiorari — Robert Nathan Hensley, Petitioner v. United States

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No. 19-2417

United States of America

Plaintiff - Appellee

v.

Robert N^han Hensley

Defendant - Appellant

}

Appeal from United States District Court

for the Eastern District of Arkansas - Little Rock

.

Submitted: September 25, 2020

Filed: December 16, 2020

Before LOKEN, SHEPHERD, and ERICKS,ON, Circuit Judges.

SHEPHERD, Circuit Judge.

Robert Nathan Hensley was charged with attempted enticement of a minor to

engage in illegal sexual conduct, in violation of 18 U.S.C. § 2422(b) (Count 1);

attempted production of child pornography after having previously been convicted

of child sex crimes, in violation of 18 U.S.C. §§ 2251(a) and 2251(e) (Count 2); and

possession of child pornography after having previously been convicted of child sex

crimes, in violation of 18 U.S.C. § 2252(a)(4)(B) (Count 3). Hensley filed a motion

to suppress evidence, and after an evidentiary hearing, the district court1 denied the

motion. Following a jury trial,.Hensley was found guilty on all three counts. The

district court sentenced him to 420 months imprisonment on each count, to run

concurrently, and supervised release for life. Hensley appeals the district court’s

denial of his motion to suppress as well as his conviction and sentence, arguing that

the evidence was insufficient to support his convictions; that the district court erred

in instructing the jury; that the government made improper and prejudicial closing

remarks; and that his sentence for Count 3 was illegal.' Having jurisdiction under 28

U.S.C. § 1291, we affirm.

• *.;

I.

On October 12, 2017, Hensley responded to a Craigslist advertisement posted

by an FBI agent. The advertisement indicated that a father and daughter, whose age

was listed as 18, were traveling through the Conway, Arkansas area and were

looking to have sex. Between October 12, 2017, and October 13,2017, Hensley and

the agent, posing as the father, exchanged numerous text messages relating to

Hensley’s meeting the father and his *Jdaughter” so Hensley could have sex with the

daughter. Approximately five minutes into their exchange on October 12, the father

told Hensley that his daughter was 14. Sometime later, Hensley texted that he was

“not into minors” arid also said “18 and lip only.” R. Doc. 1, at 4. Nonetheless,

Hensley continued to exchange sexually explicit text messages with the father, in

which Hensley described in detail various sex acts he wanted to perform on the

daughter.. He also asked the father to “[sjend front pic tits, and pus.” R. Doc. 1, at5. Hensley offered to pay to perform sex acts on the daughter while the father

watched, and even offered to “buy” the daughter for $3,000, for which the daughter

would receive “a lifetime of bondage and sex.” R. Doc. 1, at 5. Upon the father’s

request, Hensley texted a picture of himself. . .

'The Honorable Susan Webber Wright, United States District Judge for the

Eastern District of Arkansas.

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At around 4:00 a.m. on Octoben3',72017;"Hensley calledlheTIationalTIumanTrafficking Hotline to anonymously repqrt suspected trafficking of a 14-year-old

minor female. Later, Hensley and the'agent, still posing as the father, resumed their

text conversation. Through text messages, Hensley and the father agreed to meet at

an Exxon gas station in Cabot, Arkansas, at 2:00 p.m.; Hensley would pay $150 to

have sex with the daughter; and the father could watch. Hensley admittedly drove

to the Exxon. Additionally, four law enforcement officers drove to the Exxon.

Hensley and the father exchanged text messages in which each party wanted the

other to reveal himself first. The meeting did not take place. Shortly thereafter,

Hensley texted the father, provided his address, and invited him to his house for oral

sex.

The agents drove to Hensley’s address, and they used his license plate data to

pull up the associated driver’s license information. The photo on the license was

consistent with the photo Hensley had texted to the agent. FBI Special Agent John

Sablatura then placed a ruse service call to Hensley’s heating and air conditioning

business. Hensley left his home in his work truck, and the agents pulled him over

approximately a mile from his home. They questioned him about the minor female

who he suspected was being trafficked. Hensley told, the agents he was glad they

were there and he had information qj^out the girl to help them out. Further, he

admitted sending the text message requesting “front pic tits and pus.” Eventually

the agents asked Hensley if he had a laptop computer and if they could review it.

The agents obtained Hensley’s consent to search his home for the laptop and to

search the laptop. The agents found and seized the laptop.

On October 17, 2017, Hensley was arrested and charged with attempted

enticement of a minor and attempted production of child pornography. A forensic

examination of the laptop revealed three images of minor children engaged in

sexually explicit conduct. Subsequently, the grand jury returned a superseding

indictment, adding one count of possession of child pornography.

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Before trial, Hensley filed a motion to suppress the statements he made to the

agents and any evidence obtained as. a result of his custodial interrogation. The

district court held an evidentiary hearing, at which Hensley, the agents, and other

witnesses testified. Thereafter, the .district court entered a.comprehensive order

denying the motion to suppress. The district court rejected Hensley’s argument that

he was.unlawfully seized in violation of the Fourth Amendment when the agents

pulled him over and questioned him, finding that the agents.had,reasonable suspicion,

to pull him over and that the encounter became consensual by the time questioning

began. The district court further held that Hensley knowingly and voluntarily

waived his Miranda2 rights, but even if he had not, his interrogation,was not custodial

and thus the agents were not required to.give.him any Miranda warnings.

• At trial, FBI Computer Analysis Response Team analyst Tim Whitlock

testified for the government. He found three images of child pornography in

unallocated space on Hensley’sTaptop, meaning the images were on the computer

but had been deleted either by the user or the computer’s operating system. He could

not definitively say who deleted the images or when they were deleted. Whitlock

explained that the images were digital and could have been received on the laptop

or transferred from another digital source, but he could not definitively say which.

Hensley’s computer expert, Robert Gray, testified that the images could have been

accessed by Hensley from links found on the websites in.Hensley’s browser history,

as described in the trial exhibits. While Hensley denied producing or saving the

images , he testified that he surfed the internet in his free time, typically for sexually

explicit material by searching and then clicking on links. He did not testify about

using any other digital source to access or upload sexually explicit material. It is

undisputed that the laptop on which the images were found was manufactured in

China.

Hensley’s browser history revealed an interest in pornography where youth

was emphasized, and the government introduced this history as evidence at trial.

2Miranda v. Arizona, 384 U.S. 436 (1966).

&

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Hensley admitted intentionally accessingTall'ofthe'websitesiirthetrial-exhib its-Forexample, he accessed the website “youpgpetite.org,” the description of which

included the word “teen.” Gray testified that the websites’ homepages indicated

there was no child pornography on the sites and that there was a very high likelihood

that no child pom was on the sites. Gray admitted, however, that he did not access

the content of those sites but rather visited only the homepages. Hensley accessed

some of the sites using the private browser function, although he denied using the

function intentionally.

Both experts testified that the images found on Hensley’s laptop could have

been intentionally accessed from the internet or could have been temporarily saved

without the user’s knowledge as “pop-ups,” which refer to items automatically

opening on a computer. Hensley described seeing pop-ups when he: accessed “adult

videos” or websites. Whitlock determined that .the laptop was used to access the

internet and that Hensley was the user. Hensley admitted at; trial that he used the

laptop to access the internet, including the websites listed in the government’s

exhibits.

Whitlock testified that a program called CCleaner was on Hensley’s laptop.

CCleaner is a cleaning software that deletes and assists in hiding items. Whitlock

determined that CCleaner was run at 1:52 a.m. on October 13, 2017. Gray testified

that the launch of CCleaner did'not necessarily mean Hensley’s laptop was cleaned

then. Hensley admitted that a store installed CCleaner on his laptop, but he denied

intentionally launching it.

The government introduced into evidence certified records of Hensley’s prior

child sex crimes convictions. When Special Agent Sablatura was asked on direct

examination about the nature of the convictions, Hensley requested a limiting

instruction. The district court gave a' limiting. instruction during trial and

admonished the jury that it “may not'consider these-convictions as evidence he

actually committed the crimes that he’s charged with in this case.” R. Doc. 111, at

35. Hensley did not object or request any other specific language in this limiting

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??

instruction. The district court admitted only the nature of the prior convictions, not

any of the underlying facts.

t

*

Over Hensley’s objection, the district court’s jury instruction on the attempted

enticement charge contained the following illustrative example: “The act of driving

to a planned meeting location has been found sufficient to show that a defendant

took a substantial step towards commission of the crime,” :R. .Doc. 91, at 13. Also

over Hensley’s objection, the district court’s, jury instruction on the. attempted ,

production charge .contained the following ..illustrative, example; “Asking for .nude

pictures of a minor may constitute a substantial step to produce, child pornography.”

R. Doc. 91, at; 16. Additionally, the district court instructed the.jury .that it could,

consider evidence of Hensley’s prior- convictions for its tendency to show, a

propensity to commit- sex offenses against children, as well as to determine.

Hensley’s intent, knowledge, and lack of mistake. R. Doc. 91, at 5. The district

court’s instructions further reminded the jury: “[I]f you were instructed that some

evidence was received for a limited purpose only, you must follow that instruction.”

R. Doc. 91, at 4.

At the close of the evidence, Hensley moved for judgment of acquittal, which

the district court denied. The jury returned a.guilty verdict on all counts. The district

court sentenced, Hensley to three concurrent terms of 420 months imprisonment.

During sentencing, Hensley acknowledged more than once that he faced-a

mandatory minimum of 420 months, or 35 years, on Count 2. At one point the

district court acknowledged that the statutory maximum for Count 3 is 20 years but.

stated that Count 2’s mandatory minimum “governs this sentence,” R. Doc. 109, at

23. Hensley did not object to the sentence on Count 3.

-, On appeal, Hensley challenges: (1) the district court’s denial of his motion to

suppress; (2) the sufficiency of the evidence supporting his convictions; (3) the

district court’s jury instruction regarding his prior convictions and its use of

illustrative examples in Instruction Nos. 9 and 11; (4) five-.of the government’s

closing remarks as being so prejudicial that they warrant reversal; and (5) the legality

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of his sentence- for Count 3—Due~to_the-ffamre-of-the4ssues-we-wi-llU3egin-byaddressing the sufficiency of the evidence.

II.

A.

Hensley challenges the sufficiency the evidence supporting his convictions

for Counts 1 -3. “We review the sufficiency of the evidence supporting a conviction

de novo, “viewing the evidence most favorably-to the verdict, resolving conflicts in

favor' bf the verdict, and giving it the benefit of all reasonable inferences.’” .United

States v.Riepe,-858 F.3d 552, 558-59 (8th Cir. 2017) (citation omitted). The verdict

must be upheld “if ‘there is an interpretation of the evidence that would allow a

reasonable jury to find the defendant guilty beyon<i a reasonable doubt.’” Id. at-559

(citation omitted).

'

•

1.

Hensley argues that the evidence was insufficient to support his conviction for

attempted enticement of a minor to engage in illegal sexual conduct, in violation of

18 U.S.C. § 2422(b). To convict Hensley of enticement of a minor, the government

must prove beyond a reasonable doubt that he: “(!) ‘used a facility of interstate

commerce, such as the internet or the telephone system;’. (2) ‘knowingly used the

facility of interstate commerce with the intent to . . . entice a person to engage in

illegal sexual activity;’ and (3) ‘believed that the person he sought to . . . entice was

under the age of eighteen.’” United States v. Young, 613 F.3d 735, 742 (8th Cir.

2010) (citation omitted). To prove an attempt, the government must prove that the

defendant intended to commit the predicate offense and took a substantial step in

furtherance of the offense. See United States v. Bernhardt, 903 F.3d 818, 827 (8th

Cir. 2018).

Hensley contends that the evidence is insufficient to sustain his conviction on

this count because: (1) he wasresponding’to a Graigslist advertisement which listed

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(b

the female’s age as 18; (2) his text messages with the undercover agent indicated

that Hensley was seeking a sexual encoupter with a female who.was 18 years old;

and (3) he had no direct communication witli the minor and alerted the National

Human.Trafficking Hotline about, thesituation. Additionally, he asserts that he did

not take any substantial step towards committing the offense.

.

The evidence is sufficient to show that Hensley intended to entice the fictitious

minor female to engage in illegal sexual conduct and that he took a substantial step

towards commission of the offense by planning and ultimately driving to the Exxon

station to meet the minor and her “father.” In Hensley’s messages with the

undercover agent, the agent made it clear to Hensley that the fictitious minor was 14

years old. Hensley continued to engage in the conversation, responding multiple

times with sexually explicit messages and inquiring as to whether the agent would

“sell her.” It is clear from the.messagps that Hensley was negotiating sexual activity

with a minor child, and in particular that he was intending to violate Ark. Code Ann.

§ 5-14-127 (sexual assault in the fourth degree). His assertions to the contrary

simply created a factual dispute for the jury to resolve, and a reasonable jury could

have found unpersuasive his testimony that he was not serious about the exchange.

Again, from the explicit nature of the messages, which evince an intent to have sex

with the minor in exchange for cash, and his actually making plans to meet the “girl”

and her “father,” a reasonable jury could easily reject Hensley’s view of the evidence

and discount certain facts in his favor. The fact that the minor did not exist, or that

Hensley never met her or communicated directly with her, is of no moment, as

attempted enticement may occur through an adult intermediary or when there is no

actual minor involved. See United States v. Spurlock, 495 F.3d 1011, 1014 (8th Cir.

2007) (“[T]he efficacy of § 2422(b) would be eviscerated if a defendant could

circumvent the statute simply by employing an intermediary to carry out his intended

objective.” (citation omitted)); United States v. Pierson, 544 F.3d 933, 939-40 (8th

Cir. 2008) (affirming conviction for attempted enticement of a minor where “victim”

was an undercover profile posing as a 13-year-old girl); see also United States v.

Yost 479 F.3d-815,: 819 n.2 (1 lt:h Cir: 2007) (per curiam) (explaining that an actual

minor is not required for an attempted enticement conviction and that “[i]t is

x>

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sufficient that a defendant believe a minor is ihvolved”)~Finaliy,-the factthat-he—

arranged for and traveled to a potential meeting at the Exxon station satisfied the

substantial step • requirement. See Young. 613 F.3d at 743 (explaining that

defendant’s reserving a motel room and traveling to the motel in order to have sex

with a minor constituted substantial steps towards committing the crime of

enticement of a minor); see also Spurlock, 495 F.3d at 1014 (explaining that making

plans with minors’ mother to meet at a motel in order to have sex with minors

constituted a substantial step towards committing the crime of enticement of a

minor). Accordingly, we conclude that the evidence is sufficient to sustain

Hensley’s conviction for attempted enticement of a minor.

2.

Next, Hensley argues that there was insufficient evidence , to support his

conviction for attempted production of chi^d pornography. To convict Hensley of

attempted production of child pornography, the government needed to prove beyond

a reasonable doubt that: (1) he believed tl]|t the female was a minor; (2) he attempted

to entice the minor to engage in sexually explicit conduct; (3) he intentionally

engaged in this behavior in order to produce a visual depiction of that conduct; and

(4) he used a means of interstate or foreign commerce. See United States v.

Schwarte, 645 F.3d 1022, 1030 (8th Cir. 2011). The government also needed to

prove that Hensley took a substantial step towards the commission of the offense.

Id.

Hensley does not dispute that he sent a text message to the undercover agent

instructing the agent to send a photograph of the minor’s breasts and vagina. Instead,

Hensley argues that he did not believe the female was a minor, as evidenced by his

messages in which he stated that the minor female looked 18 and that he was not

interested in a minor child, and his message was not intended to be taken seriously.

He also asserts that because there were no actual images, the jury would have

resorted to speculation as to what those images would have depicted. Finally, he

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argues that mere nudity is insufficient to,prove that the images would have depicted

sexually explicit conduct.

The evidence is sufficient to show that Hensley believed the female was a

minor ,and. that,-using a means of .foreign’ commerce; he attempted to-entice her to,

engage in sexually explicit conduct for the purpose of producing a visual depiction

of said conduct. See Pierson, 544 F.3d at 938-40 (finding sufficient evidence for

attempted , production conviction where defendant and fictitious, minor-discussed

minor’s age to be 13 and defendant asked minor to transmit nude pictures of herse.lf.^

via webcam). First,..there was ample evidence showing that Hensley believedrthe

fictitious female was a. minor. Indeed, the text-messages, between, him,and the

undercover agent repeatedly reference the minor’s age, 14. Additionally,.Hensley

called the National Human Trafficking Hotline to report his .belief that a 14-year-old.

female was a potential victim of trafficking, Based on the evidence, a reasonable

jury could conclude that Hensley believed the female was a minor and reject his

testimony to the contrary.

Second, a reasonable jury could have disbelieved Hensley’s claims that his

request was not a serious one. He admitted on cross-examination that nothing in his

request to the undercover agent would indicate that he was not sincere. Moreover,

the explicit nature of his request, his. prior convictions for sex offenses, and

comments demonstrating his sexual purpose, all supported a finding that Hensley

was quite serious in requesting this image.

Third; there was sufficient evidence from which a reasonable jury could find

that, Hensley was, seeking sexually explicit images. In the context of child

pornography, “sexually explicit conduct” includes “lascivious exhibition of the anus,,

genitals, or pubic area of any person.” 18 U.S.C. § 2256(2)(B)(iii). “Lascivious”

means “sexual in nature.” United States v. Wallenfang, 568 F.3d 649, 657 (8th Cir.

2009) (citation omitted). “Lasciviousness may be found when an image of a nude

or partially clothed child focuses'on the child’s genitals or pubic area and is intended

to elicit a sexual response in the viewer.”'* United States v,-Petroske, 928 F.3d 767,

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772 (8th Cir72019)7~Here, Hensley requestFd'an' image~oftheTninorfemaleVvaginawhile negotiating with the undercover agent to have a sexual encounter with the

minor, and the nature of the messages evinced an inference that Hensley’s request

was intended for sexual purposes. Accordingly, a reasonable jury could infer from

the evidence that Hensley was intentionally seeking a sexually explicit or lascivious

image of the minor female.

Finally, it is established that asking for an image of a minor’s genitals

constitutes a substantial step to produce child pornography. Schwarte, 645 F.3d at

1030-31 (explaining that defendant took a substantial step towards committing

production of child pornography where he aslfed minor to send him nude pictures

and videos of herself, offered to provide her a laptop in exchange for said pictures

or videos, and provided a mailing address where she could mail the video).

Accordingly, we conclude that the evidence is sufficient to sustain Hensley’s

conviction for attempted production of child pornography.3

3.

Next, Hensley challenges the sufficiency of the evidence supporting his

conviction for possession of child pornography. To convict Hensley of possession

of child pornography, the government needed to prove beyond a reasonable doubt

that Hensley: (1) knowingly possessed an item of child pornography, and that (2) the

3Hensley also argued in his reply brief and at oral argument that, because the

photo he requested may have already existed at the time he requested it, the jury

could not find beyond a reasonable doubt that he enticed or persuaded a minor to

engage in sexually explicit conduct in order to produce a visual depiction of it. He

cites a Second Circuit case, United States v. Broxmeyer, 616 F.3d 120 (2d Cir.

2010), in support of this proposition. But “[tjhis [Cjourt does not consider issues

raised for the first time on appeal in a reply brief ‘Unless the appellant gives some

reason for failing to raise and brief the issue in his opening brief.’” Jenkins v.

Winter. 540 F.3d 742, 751 (8th Cir. 2008) (citatibn omitted). Hensley does not

provide a reason for his failure to raise and brief this argument in his opening brief.

Therefore, the argument is waived. See id.

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item was transported or produced in interstate or foreign commerce by any means.

See Schwarte, 645 F.3d at 1033.

Hensley brings two main challenges tp the, sufficiency, of the evidence as to

Count-3. -He first argues that the government failed to^.prove the jurisdictional

element beyond a reasonable doubt. He does not dispute, that agents found three

images of child pornography in unallocated space on Hensley’.s computer. He also,

does not dispute that the computer on which the images were found was

manufactured in China, which this Court has found sufficient to satisfy the

jurisdictional element of § 2252. See United States v. Koch, 625 F.3d 470, 479 (8th

Cir. 2010) (citing United States v. Mugan, 441 F.3d 622, 627-30 (8th .Cir. 2006)).

Accordingly, Hensley’s first argument fails.

Second, Hensley asserts that the evidence was insufficient to show that he

knowingly possessed'the images by virtue of their location in unallocated space on

his computer. Although “the location of child pornography in inaccessible internet

and orphan files can raise serious issues of inadvertent or unknowing

possession . . . these are. issues of fact, hot of law.” United States v. Kain, 589 F.3d

945, 949 (8th Cir. 2009). Here, there was sufficient- circumstantial evidence

supporting a finding that Hensley knowingly possessed the images, even if there is

some evidence supporting his alternative explanation that he did not know those files

were located on. his computer and were automatically downloaded by his browser.

Where the evidence “rationally supports two conflicting hypotheses,” we “will not

disturb the conviction.” United .States v. McArthur, 573 F.3d 60.8, 614-15 (8th Cir.

2009) (citation omitted) (affirming conviction for possession of child pornography

over defendant’s argument that images’ location in unallocated space meant he did

not knowingly possess them). A reasonable jury could find that Hensley knowingly

possessed these images, notwithstanding the fact that they were located in

unallocated space on the computer. Accordingly, we conclude that the evidence was

sufficient to sustain Hensley^s conviction for possession of child pornography.

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B7

Hensley also contends that the district court erred in instructing the jury in two

respects. First, Hensley challenges the instruction on how the jury may properly

consider the evidence of his prior convictions. Second, Hensley challenges

Instruction Nos. 9 and 1 l’s illustrative examples regarding a “substantial step” for

Counts 1 and 2, respectively.

1.

Hensley' argues that the district court erred in not giving a written limiting

instruction that his prior convictions may not be considered as evidence that he

committed the crimes at issue. We review the district court’s instruction on prior

conviction evidence for plain error because Hensley failed to make a

contemporaneous objection before the district court. See United States v. Poitra,

648 F.3d 884, 887 (8th Cir. 2011). To succeed under the plain error standard,

Hensley must show there was an error that is clear qr obvious under current law; the

error affected his substantial rights; and the error “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id.

At trial, the government introduced into evidence certified records of

Hensley’s prior child sex crimes convictions. Hensley then requested a limiting

instruction, which the district court granted. As Hensley requested, the district court

verbally admonished the jury that it “mqy not consider these convictions as evidence

he actually committed the crimes that he’s charged with in this case.” R. Doc. Ill,

at 35. Hensley did not object or request any other specific language in this limiting

instruction.

At the initial instructions conference, Hensley requested a “[Federal Rule of

Evidence] 404(b) limiting instruction” regarding.his prior convictions. The district

court rejected his request because, under Rule 414, his prior convictions were

admissible for more purposes than his proposed instruction allowed. Before the final

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instructions conference, the district court circulated to the parties its limiting

instruction, which reads as follows:

,

You haye heard evidence that the defendant has previously been

convicted of other sex offenses concerning children. You may consider

this evidence for its tendency, if any,'to show the defendant’s

propensity to engage in crimes such as those charged in the Superseding

Indictment. You may also consider that evidence to. determine the

defendant’s' intent, knowledge, and whether the charges in the

Superseding Indictment are a result of mistake.

R. Doc. 91, at 5. We find the district court’s instruction to be an accurate statement

of law. See Fed. R. Evid. 414 (providing that, in a criminal case where the defendant

is accused of certain sex offenses, evidence that the defendant committed other such

sex offenses is admissible and “may be considered on any matter to which [they]

[are] relevant”); Fed. R. Evid. 404(b) (providing that “[e]vidence of a crime, wrong,

or other act” is admissible to prove “motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident”). Hensley did not

object to this instruction, despite having the opportunity to do so at the time the

instruction was first discussed and again following consideration of the last

instruction. Moreover, although Hensley had proffered a limiting instruction stating

that .the jury may not convict a person simply because they believe he may have

committed similar crimes in the past, the instruction further stated that the jury may

consider prior convictions “only on the issue of [his] intent or lack thereof.” The

district court rejected the instruction as “too limiting” because it did not say the prior

convictions were admissible to show propensity, knowledge, or lack of mistake or

accident. R. Doc. 115, at 3-4. The district court did not err in rejecting Hensley’s

instruction because it was an incorrect statement of law. Additionally, the district

court’s Instruction No. 2 reiterated the limitation on the jury’s consideration of

Hensley’s prior convictions, stating: “[I]f you were instructed that some evidence

was received for a limited purpose, you must follow that instruction.” “[A] jury is

presumed to follow all instructions.” ;United States v. Paul, 217 F.3d 989, 997 (8th

Cir. 2000) (citing Jones v. United States, -527 U.S. 373, 394 (1999)).

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Even if it was error for the district court npt to expressly repeat in the written

jury instructions the admonition that the jury could not consider Hensley s prior

convictions as evidence that he actually committed the crimes at issue, that error was

not clear or obvious under existing law. Given the district court’s verbal and written

instructions as a whole, the substantial evidence presented, and the fact that only the

convictions and not the underlying facts were admitted, any error did not affect

Hensley’s substantial rights or the fairness, integrity, or reputation of the

proceedings. See Poitra, 648 F.3d at 887. Accordingly, there is no plain error

warranting relief.

.

2.

Hensley timely objected to the district court’s use of illustrative examples in

Instruction Nos. 9 and 11. “Accordingly, we review for abuse of discretion.” United

States v . White, 863 F.3d 784, 790 (8th Cir. 2017). “[W]e evaluate jury instructions

by viewing them as a whole and affirm if the instructions fairly and adequately

submitted the issues to the jury.” United States v. Wright, 246 F.3d 1123,1128 (8th

Cir. 2001).

A district court “may comment on evidence to assist the jury so long as it

makes it clear that the jurors must make all factual determinations themselves.’

United States v. Ray, 250 F.3d 596, 602 (8th Cir. 2001). However, it must avoid

placing undue emphasis on one party’s evidence. See Caviness v. Nucor-Yamato

Steel Co., 105 F.3d 1216, 1222 (8th Cir. 1997). “A [district] court must be careful

if it intends to tie in principles of law to the facts.” Vanskike v. ACF Indus., Inc,,

665 F.2d 188, 202 (8th Cir. 1981).

We find the Tenth Circuit’s decision in United States v. Bowen, where the

court rejected a defendant’s challenge to-a jury instruction containing an illustrative

example, to be instructive. See 437 F.3d 1.009, 1017 <10th Cir. 2006). In Bowen,

the defendant was charged with and cohvicted of possession with the intent to

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distribute methamphetamine. 1(1 at 1013-14. The court determined there was

sufficient evidence to support the jury’s verdict, including evidence that the

defendant constructively possessed the drugs based on his presence in the .car where

the drugs were found, his reaching under the passengerls seat, his nervousness

around the police, and the plastic baggies associated with drug distribution that

police found in his pockets. Id at 1015. On appeal, he challenged a jury instruction

explaining what the government must show to prove that he.constructively possessed

•• *

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‘ft

\

the drugs. Id. at 1016-17. The challenged jnstruction stated':'' "

In addition to knowingly having the power or "ability* to: cohtrol''an ■

object, the government must prove an act on the-part of the defendant - . - .

by which that power or ability is manifested and implemented, such as

. an act placing the object within easy reach of the defendant, or an act .

concealing the object from view.

■ . .

Id. at 1017 (emphasis omitted). The defendant complained that the above-quoted

portion “provided a ‘formula for conviction5 because it supplied the jury with

specific examples of the evidence which would support a plausible inference that he

had knowledge of’ the drugs. Id The Tenth Circuit concluded that the instruction .

was not reversible error. Id. It reasoned that the instruction was a correct statement

of the law and that the examples “assisted the juiy’s understanding of constructive

possession.” Id. at 1018. Further, the court opined that the examples “were worded

broadly and did not too closely track the specific facts presented in [the defendant’s]

case. Equally important, the examples provided .did not unduly emphasize the

prosecution’s theory of the case, or usurp the jury’s fact finding role.” Id

By contrast, the Second Circuit in United States v. Dove vacated a defendant’s

conviction for bank robbery based upon two “unbalanced” jury instructions. See

916 F.2d 41, 45-46 (2d Cir. 1990). The first challenged instruction centered on the

eyewitnesses’ failure to identify the defendant in the courtroom after identifying him

in a police lineup. Id at 43-44- ^.The first instruction read as follows:

-16-

r

The government has the burden ofproving [the defendant’s] identity as

the perpetrator beyond a reasonable doubt. In this connection, it is not

essential that a witness be able to identify'a defendant in open Court or

be free from doubt as to the correctness of her identification of the

defendant by other means. However, if you are not convinced beyond

a reasonable doubt that the defendant was the person who committed

the crime, you must find him not guilty.

Id. at 44 (emphasis added). The court concluded the instruction was “unbalanced

because it instructed the jury as to how the [government’s key] witnesses’ inability

to identify the defendant in the courtroom might bear on guilt without indicating

how this rather significant evidence might hear on innocence.” Id. at 45. The court

further noted that the imbalance could l)ave been cured by adding the defendant’s

proposed one-sentence instruction advising the jury that it was “free to consider and

weigh the effect” of the eyewitnesses’ failure to identify the defendant in the

courtroom. Id.

The second challenged instruction concerned the difference between direct

and circumstantial evidence. Id. at 44. The majority of the government’s evidence

was circumstantial. See id. at 43-44. The instruction read as follows:

Now, to illustrate the difference between direct and circumstantial

evidence, let us assume that the fact in issue in a case is whether Jack

shot and killed Mary. If a witness testified that he personally saw Jack

shoot Mary, then we would say we have direct evidence of that fact.

On the other hand, if a witness testifies that an hour before Mary was

shot he sold Jack the pistol which has been identified as the murder

weapon, and it was found in Jack’s possession shortly after the murder,

we would say we have circumstantial evidence of the fact that Jack did

shoot Mary. That, as I say, is a very simple illustration and has no direct

bearing on this case at all, but is illustrative of what I mean by

circumstantial evidence.

Id. at 44. The Second Circuit opined that this instruction was improper because it

assumed Jack’s guilt in the premise, “and the jury is merely instructed how to look

for evidence of that guilt.” Id. at 46. Although the example “was not analogous to

-17-

.)

the facts of this case, the use in a criminal case of a hypothetical that assumes guilt

where defendant asserts his innocence is disfavored.” Id The court also pointed out

that “[virtually all of the circumstantial evidence pointed towards the possibility of

[defendant’s] innocence.” Id. Finally,.the court noted that the government and the

defense had jointly urged the district courj to use a neutral hypothetical, which the

district court rejected. Id. at 45-46.

We are troubled by the district court’s use of one-sided illustrative examples

in Instruction Nos. 9 and 11, particularly Instruction No. 1.1 ’s close similarity to the

facts of Hensley’s case. The examples are troublesome because they .explain how

the jury could find in favor of the government on the attempt element without

explaining how the jury might find in favor of Hensley. However, viewing the

instructions as a whole, see Wright, 246 F.3d at 1128, we conclude that the district

court did not commit reversible error. Importantly, the district court also instructed

the jury that it “should not take anything I have said or done during the trial as

indicating what I think of the evidence or what I think your verdict should be.” R.

Doc. 115, at 88. In so doing, the district court made clear that “the jurors must make

all factual determinations themselves.” See Ray, 250 F.3d at 602. And like the

instructions in Bowen, Instruction Nos. 9 and 11 are correct statements of law. See

United States v. Herbst, 666 F.3d 504, 51 1 (8th Cir. 2012) (driving to a location may

constitute a substantial step); Schwarte, 645 F.3d at 1030-31 (asking minor to send

nude pictures and videos of herself, offering to provide her a laptop in exchange for

said pictures or videos, and providing a mailing address where she could mail video

is a substantial step in furtherance of production of child pornography).

Additionally, they assisted the jury ’s understanding of a substantial step with respect

to Counts 1 and 2. Cf. Bowen, 437 F.3d at 1018. Moreover, the instructions were

permissive and did not compel the jury to reach a,particular conclusion regarding

the evidence. Although Instruction No. 11 arguably tracks more closely with the

facts of Hensley’s case than the instruction in Bowen, this fact does not change our

conclusion. Taken as a whole, the Instructions do not unduly emphasize the

prosecution’s theory or usurp the jury’s fact-finding role.

-18-

The government represented at oral argument that the use of illustrative

examples is common practice in the Eastern District of Arkansas. Nevertheless, we

discourage the use of such one-sided jury instructions, particularly where, as here,

they contain illustrative examples which track closely with the facts of a defendant’s

case. Nonetheless, the district court’s inclusion of such examples here falls short of

reversible error.

C.

Hensley next contends that the prosecutor made five improper remarks and

misstated the evidence during closing arguments, and that these remarks and

misstatements were so grave that they warrant reversal and remand for a new trial.

Because Hensley failed to object to the closing remarks at trial, we review them only

for plain error. See United States v. Robinson, 439 F.3d 777, 780 (8th Cir. 2006).

First, the government remarked that Hensley waited at the Exxon for two-and-a-half

to three hours. Second, the government stated that a person cannot get to the private

browser function without being intentional about it. Third, the government argued

that Hensley’s accessing browser sites was intentional and that the experts did not

testify that the sites in his browser history showed up as pop-ups. Fourth, the

government argued that police found only three child porn images on Hensley’s

computer because Hensley ran the CCleaner program and spent time deleting

images. Finally, the government stated that Gray, the defense expert, did not access

the actual content of the porn sites in Hensley’s browser history because “he knew

what was on it,” implying that he knew they contained child pornography.

Having carefully reviewed the five challenged remarks, we conclude that they

were fairly supported by the evidence or reasonable inferences therefrom, and any

error was not so prejudicial as to warrant reversal under plain error review.

Additionally, because the district court properly instructed the jury on the elements

of the offenses and “instructed the jury that arguments, of.counsel are, not evidence,

there is no plain error warranting relief.” See United States v. Mullins, 446 F.3d

750, 760 (8th Cir. 2006) (citation omitted).'

-19-

P>

,111. ■ •

. . Hensley further, argues that the district'.court erred in denying his motion to

suppress on the sole ground that his interrogation on .October. 13,2017, was custodial

and the agents failed to advise him of his Miranda rights. “In reviewing the denial

of a motion to suppress, we review the district court’s factual findings for clear error

and its legal conclusions de novo.” United States y. Ferguson, 970 F.3d 895, 901.

(8th Cir. 2020).

Even if the district court’s failure to suppress Hensley’s statements was error,

we find it was harmless. “An error is harmless if it does not affect substantial rights

of the defendant, and did not influence or had only a slight influence on the verdict.”

United States v. Martinez. 462 F.3d 903, 910 (8th Cir. 2006) (citation omitted).

Given the other admissible evidence against Hensley, including his own testimony

at trial, we conclude that failure to suppress his statements did not sufficiently

influence the jury as to require reversal. Accordingly, any error was harmless. See

id. (finding district court’s failure to suppress defendant’s statements to be harmless

error given other evidence).

IV.

Finally, Hensley challenges the legality of his sentence for Count 3, arguing

that 420 months imprisonment exceeds the statutory maximum. The government

agrees. But because Hensley did not object to the illegality of the sentence at

sentencing, it is reviewed only for plain error. See United States v. Bossanv, 678

F.3d 603, 606 (8th Cir. 2012) (failure to object at trial to illegality of sentence that

exceeded statutory maximum results in plain error review). Though this error is

plain, under plain error review, we may correct the error only if it “affects substantial

rights[] and ‘seriously affects the fairness, integrity, or public reputation of judicial

proceedings.’” Id. (quoting United States v. Pirani, 406 F.3d 543, 549 (8th Cir.

2005) (en banc)). An error affects substantial rights by “prejudicially influencing]

the outcome of the district court proceedings.” Id, (alteration in original) (citation

*

-20-

omitted). In this sentencing context, Hensley must show that, “absent the error, the

[district] court could not have imposed [420] rqonths[] imprisonment as his total

punishment.” Id, at 607. As Hensley acknowledged more than once during

sentencing, the mandatory minimum sentence for Count 2 is 420 months. Thus,

even absent the plain error as to Count 3, the district court was required to impose

420 months imprisonment as'Hensley’s total punishment. Accordingly, Hensley

cannot show prejudice necessary for plain error relief as to the sentence, and

Hensley’s request to vacate the sentence is denied.

V.

For the foregoing reasons, we affirm the judgment of the district court.

-21-

Case 4:17-cr-00310-SWW Document 75 Filed 02/01/19 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

UNITED STATES OF AMERICA,

*

*

Plaintiff,

*

*

*

vs.

No. 4:17-cr-00310-SWW

*

*

*

ROBERT.NATHAN HENSLEY,

*

*

Defendant.

*

ORDER

Robert Nathan Hensley is charged in a three-count superseding indictment

with attempted enticement of a minor, attempted production of child pornography,

and possession of child pornography. Hensley has pleaded not guilty to those

charges.

Before the Court is a motion [doc.#57] of Hensley to suppress any

statements he made and any other evidence obtained as a result of what he

characterizes as an unlawful seizure and interrogation. The government has

responded in opposition to Hensley’s motion. The Court held an evidentiary

hearing on Hensley’s motion to suppress on January 15, 2019. This order

{b

I

^adIdR

ao245B (Rev. 09/17) juc^i^?iRn^aCrimingDocument 103

Filed 07/02/19

Page 8 of 8

Sheet 6 — Schedule of Payments

Judgment — Page

,

8

of

8

DEFENDANT: ROBERT NATHAN HENSLEY

CASE NUMBER: 4:17-CR-00310-001 SWW

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:

A

2)

Lump sum payment of S

□

□

300.00

not later than

in accordance with DC,

due immediately, balance due

□ D,

, or

E, or

□

□ F below; or

B

□

Payment to begin immediately (may be combined with

□ C,

□ D, or

□ F below); or

C

□

Payment in equal , i

(eg,, weekly, monthly, quarterly) installmenfs of S ■ ,

over a period of

(e.g., 30 or 60 days) after the date of this judgment; or

(e.g., months or years), to commence

D

□

Payment in equal

(e.g., weekly, monthly, quarterly) installments 'Oft S

:over a period of

__________ (e.g., months or years), to commence

(e.g., 30 or 60 days) after release from imprisonment to a

term of supervision; or

.

4 l .

E

□

Payment during the term of supervised release will commence within

(e.g., 30 or 60 days) after release from

imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or

F

□

Special instructions regarding the payment of criminal monetary penalties:

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during

Financial Responsibility Program, are made to the clerk of the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

□

Joint and Several

Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several Amount,

and corresponding payee, if appropriate.

i

□

The defendant shall pay the cost of prosecution.

□

The defendant shall pay the following court cost(s):

□

The defendant shall forfeit the defendant’s interest in the following property to the United States:

f

.

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine

interest, (6) community restitution, (7) JVTA assessment, (8) penalties, and (9) costs, including cost of prosecution and court costs.

* i

ADD8

Case 4:17-cr-00310-SWW Document 75 Filed 02/01/19 Page 2 of 18

constitutes the Court’s findings of fact and 'conclusions of law.1

I.

On October 12, 2017, the FBI placed an advertisement on Craigslist

advertising a young female. Hensley responded to the ad and engaged in a series

of text messages with an FBI undercover agent (UC), Hasheem Alexander, that

. centered around Hensley meeting a father and his 14 year old daughter so that

Hensley could engage in sex with the daughter. Ultimately, Hensley agreed to

meet the UC at an Exxon gas station near his home.

Four law enforcement officials were present at the Exxon where FBI agents

parked a white Chrysler 300 that was supposed to contain the father and his minor

daughter. FBI Agents John Sablatora and Alexander were parked on one side of

the Exxon’s parking lot and another surveillance vehicle was driving around as the

agents were looking for Hensley’s vehicle, a white Ford truck. The fourth law

1 Two witnesses testified at the suppression hearing. In assessing their testimony, the

Court may believe all of what a witness said, or only part of it, or none of it. In deciding what

testimony of each witness to believe, the Court has considered the witness’ intelligence, the

opportunity the witness had to have seen or heard the things testified about, the witness’

memory, any motives that witness may have for testifying a certain way, the manner of the

witness while testifying, whether that witness said something different at an earlier time, the

general reasonableness of the testimony, and the extent to which the testimony is consistent with

the evidence. In deciding whether or not to believe a witness, the Court has kept in mind that

people sometimes hear or see things differently and sometimes forget things. The Court

considered therefore whether a contradiction was an innocent misrecollection or lapse of

memory or an intentional falsehood, and that may depend on whether it has to do with an

important fact or only a small detail. See 8th Cir.-Crim. Jury Instr. § 3.04 (2017).

. 2

(b

ADD10

Case 4:17-cr-00310-SWW Document 75 Filed 02/01/19 Page 3 of 18

enforcement official was in the white Chrysler 300.

l^he UC continued to text Hensley attempting to locate and identify his

vehicle. Hensley,requested three times that the UC produce the minor female

before he pulled into the meeting location. When np minor female was produced,

the conversation between the UC and Hensley eroded and no meeting took place. ,

Later, however, Hensley texted the UC and invited him.to his residence for a

“blow job.” Hensley provided an address for his residence. The agents drove to

the residence and determined that the residence matched the description that

Hensley had earlier given ofhis residence. The agents ran license plates of

vehicles in the driveway of the residence, researched the address, and were able to

pull up Hensley’s ID and picture. The picture matched the picture of Hensley that

he had earlier sent to the UC.

Because the agents preferred to engage Hensley while.he was in his vehicle

rather than in his residence, the agents placed a ruse call to Hensley via his Heat

t

and Air business and gave him an address nearby. After Hensley left his residence

on what he thought was a service call, the agents followed him for a short distance

and conducted a traffic stop. A vehicle containing Task Force Officer Grant

Humphries pulled out in front of Hensley and. stopped in front of him at a stop sign

and a vehicle containing Agents Sabl-atora and Alexander pulled in behind him

3

\)

ADDll

Case 4:17-cr-00310-SWW Document 75 Filed 02/01/19 Page 4 of 18

with lights and sirens activated. Agents Sablatora and Alexander got out of their

vehicle and approached Hensley’s vehicle. Officer Humphries also exited his

vehicle. Agent Sablatora went to the driver’s side of Hensley’s vehicle and asked

him to get out while Agent Alexander was on the passenger side. Hensley claims

both agents we're'pointing'their guns at him through the windows.

As Hensley exited his vehicle, Agent Sablatora states he and Agent'

Alexander told him that he was not under arrest but that they were going to place

him in handcuffs for everybody’s protection and that they were trying to figure out

what was going on. Hensley claims that Agent Alexander told him, “I think you’re

under arrest,” after he admitted to sending a certain text.

Agent Sablatora states he told Hensley that he and Agent Alexander had

information that there was an underage kid being trafficked for sex. He states

Hensley said he was glad we were there and had information about that and would

like to help us out with that.

Agent Sablatora states that after determining that Hensley was unarmed, his

handcuffs were removed. Agent Sablatora estimates that Hensley was in handcuffs

less than two minutes. Agent Sablatora told Agent Alexander to take Hensley to

Officer Humphries’ vehicle that had since been repositioned in a nearby parking

lot. Agent Alexander and Hensley got in the vehicle and started talking while

4

ADD12

Case 4:17-cr-00310-SWW Document 75 Filed 02/01/19 Page 5 of 18

Agent Sablatora and Officer Humphries moved Hensley’s truck and the vehicle

behind it to the same parking lot.

....

Hensley claims he was initially handcuffed behindhis back but that when he

sat down in the front seat of Officer Humphries’ vehicle, Agent Alexander

unhooked one arm an.d brought them in front of him and rehooked the handcuffs.

Hensley states he was handcuffed the entire time.

,

11

Agent Sablatora got into the back passenger’s seat in the vehicle with Agent

Alexander and Hensley. Both Agents Alexander and Sablatora were armed with

their firearms in holsters on their hips, The agents did not have their firearms

sitting out, neither of them had on their vests, there weren’t any other officers in

.

the vehicle, and there weren’t any other officers standing around the vehicle.

Hensley didn’t check to see if the door where he was sitting was unlocked, but he

states he.didn’t think you can secure that door.

According to the United States, Agent Alexander Mirandized Hensley and

he waived his rights.. Hensley denies he was read his Miranda rights and states

that all of his questioning was recorded by Agent Alexander. He states that Agent

Alexander spoke into the recorder, saying “we’re here with Mr. Hensley and we’re

conducting an interview, and Mr. Hensley has been read his Miranda rights. And

we’re going to. start this interview now.” .Hensley states his “first response was, ‘I

5

ADD13

Case 4:17-cr-00310-SWW Document 75 Filed 02/01/19

Page 6 of 18

haven’t been read my Miranda rights, but Fm still willing to talk to you,’ and we

continued.” Agent Sablatora denies the interview was recorded.

Agent Sablatora states it was a relaxed atmosphere in the vehicle and that he

and Agent Alexander Were making it feel'like everyone was On the same team,

acting like he and Agent Alexander didn’t'really know what was going on and that

they were trying to catch somebody. Once the agents started talking to Hensley

about the supposed sex trafficker, Agent'Sablatora states Hensley told them that he

had text messages on his phone that was still in his vehicle and that the agents

could go get it and look at them, which Agent Sablatora states he did: Agent

Sablatora states he pulled up the text messages and started asking Hensley about

them. In addition to the text messages, some of which Hensiey claims have been

improperly deleted, there were multiple photographs of Hensley and girls using a

“sex machine” that Hensley references in the text messages. Hensley denies he

voluntarily handed over his phone but states that when lie got out of his vehicle,

Agent Alexander took his phone that was lying on the seat and started going

through it right away.

Hensley states he openly agreed to cooperate with Agents Alexander and

Sablatora to explain why they were wrong that he was the suspect. He states they

started asking questions and he talked with them because he wanted to clear his

6

&

ADD14

Case 4:17-cr-00310-SWW . Document 75 Filed 02/01/19 Page 7 of 18

name. Hensley advised the: agents'thabh'e made a report.to the National Human

Trafficking Hotline a day earlier. He also advised that he is a registered sex

offender and that “[i]t’s quite possible” he told them he didn’t want to go back to

jailThe interview with Hensley lasted,abo.ut 30 minute,s and .ended with .the

agents asking him if he had a laptop. Hensley stated he had one at his residence

,

about a mile away and gave them consent to search it. Agents Sablatora and

Alexander, Officer Humphries, and Hensley then proceeded to Hensley’s

residence.

Once at his residence, Hensley, states “[t]hey” had him sit on a bench in

handcuffs in front of the residence and refused him a cigarette. Agent Sablatora

states Hensley was walking around outside smoking .a cigarette and that he was not

in handcuffs.

Hensley states he was handed the keys to his residence and asked to open it,

and so,he “reached up and opened it and Agent Sablatora went in.” Hensley states

that after about five or seven minutes, Agent Sablatora stepped back out with his

laptop in his hand. Hensley states Agent Sablatora then went over to his storage

building and went through it and came out with the laptop in a laptop case.

Hensley states that when Agent' Sablatora stated they were going to take the laptop

7

ADD15

Case 4:17-cr-00310-SWW Document 75 Filed 02/01/19 Page 8 of 18

with them rather than search it right there, he at'that point asked for a lawyer.

Hensley was ultimately arrested after Agent Alexander consulted with the United

States Attorney’s Office.

On Hensley’s laptop were several images of child pornography. One image

depicted the bare vagina and anus of a prepubescent female. One image depicted a

prepubescent female with a penis in front of her face. One image depicted a

prepubescent female with a penis penetrating her anus.

II.

1.

Hensley first argues that because he was unlawfully detained, and because

stopping an automobile and its occupants constitutes a seizure, he was seized in

violation of the Fourth Amendment. Hensley argues that any statements allegedly

made by him and any other evidence obtained as a result of his unlawful seizure

must therefore be suppressed.

“A law enforcement officer may conduct an investigative stop of a vehicle if

the officer has a reasonable suspicion supported by articulable facts that criminal

activity may be afoot.” United States v. Robinson, 670 F.3d 874, 876 (8lh Cir.

2012) (internal quotation marks and citation omitted). “Although reasonable

suspicion must be more than a hunch, the Fourth Amendment only requires an

8

ADD16

Case 4:17-cr-00310-SWW Document 75 Filed 02/01/19 Page 9 of 18

officer to articulate some, minimal'objective justification for an investigatory

stop.” United States v. Coleman, 603 F.3d 496, 499-500 (8th Cir. 2010) (internal

quotation marks and citation omitted). In addition, “[i]t is well established ... that

police officers may handcuff a suspect and place him in a patrol car during an

investigative stop in order to protect their personal safety and maintain the status

quo.” Robinson, 670 F.3d at 877 (citation omitted)., See, also United States v.

Stachowiak, 521 F,3d 852, 855 (8th Cir. 2008) (“At any investigative stop—

whether there is an arrest, an inventory search, neither, or both—officers may take

steps reasonably necessary to protect their personal safety.”)/

In this case, the agents were able to establish the identity of the individual

(Hensley) who was communicating with the UC and arranging to have sex with a

minor as Hensley had previously sent a photograph of himself to the agents and the

agents were able to determine that the'same individual lived at the address

provided by the individual communicating with the UC. The agents thus had a

i

reasonable suspicion that Hensley was attempting to have sex with a minor and

!.

,

therefore had reasonable suspicion to pull bis vehicle over.

•

-

Moreover, the encounter between the agents and Hensley was consensual.

:

*

.

.

.

“If the encounter becomes consensual, it is not a seizure, the Fourth Amendment is

not implicated, and the officer is not prohibited from asking questions unrelated to

9

ADD17

Case 4:17-cr-00310-SWW Document 75 Filed 02/01/19 Page 10 of 18

the traffic stop or seeking consent to searclr the vehicle.” United States v. Munoz,

590 F.3d 916, 921 (8th Cir. 2010) (internal quotation marks and citation omitted).

“Whether an encounter is consensual turns upon the unique facts of each case.”

United States v. Quintero-Felix, 714 F.3d 563, 568 (8th Cir. 2013) (internal

quotation marks and citation omitted).

“A seizure does not occur simply because a law enforcement officer

approaches an individual and asks a few questions or requests

permission to search an area.” [United States v. Flores, 474 F.3d

1100, 1103 (8th Cir. 2007)]. A person is seized within the meaning of

the Fourth Amendment when, under the totality of the circumstances,

“a reasonable person would have believed that he was not free to

leave.” Jones, 269 F.3d at 925. Circumstances of a seizure may

include “the threatening presence of several officers, the display of a

weapon by an officer, some physical touching of the person of the

citizen, or the use of language or tone of voice indicating that

compliance with the officer’s request might be compelled.” Flores,

474 F.3d at 1103, quoting United States v. White, 81 F.3d 775, 779

(8th Cir. 1996); see also United States v. Nunley, 873 F.2d 182, 18485 (8th Cir. 1989) (defendant was seized when officers' statements

were more than routine questioning, and suggested to defendant that

she was the particular focus of an investigation). Conversely, if a

reasonable person feels free to “disregard the police and go about his

business,” the encounter is consensual. Florida v. Bostick, 501 U.S.

429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), quoting California

v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690

(1991). “The test is necessarily imprecise, because it is designed to

assess the coercive effect of police conduct, taken as a whole, rather

than to focus on particular details of that conduct in isolation.”

Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100

L.Ed.2d 565 (1988).

Munoz, 590 F.3d at 921.

10

(h

ADD18

Case 4:17-cr-00310-SWW Document 75 Filed 02/01/19 Page 11 of 18

In this case, Hensley was to I'd h&was got under arrest, and he told the agents

he was glad they were there, that he wanted.to provide information to them

concerning a potential human trafficker, and that he had contacted the National

Human Trafficking Hotline. Indeed, as noted in the Court’s November 28, 2018

order [doc.#71] following a pretrial hearing, Hensley’s defense to the charges he ^

faces is that he was trying to investigate child predators and assist lawr

'

'

‘

•

...

■

' '

.

A ’ : '

' -.»l

*

1J

*

V.

.

. i

«

enforcement. Hensley also told the agents that he was a registered sex offender

and did not want to go back to jail and he openly ^agreed to cooperate with Agents

Alexander and Sablatora to explain why they were wrong that he was a suspect and

to clear his name.

,.

...

2,.

Hensley further argues that when he was stopped away from his home and

placed inside Officer Humphries’ vehicle, he was not advised he was free to leave

and that he did not have to speak with agents. Hensley states the agents conducted

a custodial interrogation of him and that.there is no signed Miranda waiver, no

recording of his statement, and no signed consent to search waiver. Hensley

argues that any statements allegedly made by him and any other evidence obtained

as a result of his custodial interrogation must therefore be suppressed, ’

11

ADD19

Case 4:17-cr-00310-SWW Document 75 Filed 02/01/19 Page 12 of 18

i

•

Under Miranda v. Arizona, 384 U.S.'436,' 86 S.Ct. 1602 (1966), the

admissibility at trial of any custodial statement is conditioned on warning the

suspect, prior to any questioning, that he'has the right to remain silent, that any

statement he makes may be used as evidence against him, and that he has the right

to the presence of an attorney, either retained or appointed. Miranda warnings

must be issued prior to questioning whenever a suspect is (1) interrogated (2) while

in custody. United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990).

“[U]nwarned statements that are otherwise voluntary within the meaning df the

Fifth Amendment must nevertheless be excluded from evidence under Miranda”

Oregon v. Elstad, 470 U.S. 298, 307, 105 S.Ct. 1285, 1292 (1985).2

As an initial matter, the Court finds that Hensley waived his right to any

Miranda warnings when his response to Agent Alexander allegedly stating that

Hensley had been read his Miranda rights was, ‘“I haven’t been read my Miranda

rights, but I’m still willing to talk to you,’ and we continued. »3 However, to the

extent Hensley didn’t waive his Miranda rights, there is no persuasive evidence

2 However, sucli unwarned but voluntary statements can be used to impeach a

defendant’s testimony at trial. United States v. Pafane, 542 U.S. 630, 124 S.Ct. 2620 (2004). In

addition, a failure to give a suspect Miranda warnings does not require suppression .of the

physical fruits of the suspect’s unwarned but voluntary statements. Id. Such physical evidence

remain admissible. Id.

3 Hensley has. by his count, four prior felony convictions and has been arrested four or

five times.

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Case 4:17-cr-00310-SWW Document 75 Filed 02/01/19

Page 13 of 18

that Hensley was given Miranda Warnings pi;ior to questioning. The United States

points to the transcript of Hensley’s bond hearing where Agent Alexander testified

that Hensley was Mirandized but that Hensley stated he. wanted to make a

statement. Agent Alexander did so testify, but the United States will not call,.-.

Agent Alexander as a witness at trial because of an unrelated investigation into

Agent Alexander’s.conduct. Moreover, the Court granted the United States’.

motion in. limine to preclude reference to Agent Alexander. Hensley thus will have

no opportunity to question Agent Alexander concerning his claim that he gave

Miranda warnings to Hensley. Accordingly, the Court is unable to find that Agent

Alexander gave Hensley Miranda warnings prior to questioning.

The question, then, is whether Hensley was interrogated while in custody

such that Miranda warnings prior to questioning were required. Concerning the

interrogation component, Agents Sablatora and Alexander escorted Hensley to a

law enforcement vehicle where the agents asked him questions. Although Hensley

told the agents he was glad they.were there and that he wanted to provide

information to them concerning a potential human trafficker,, it is clear that the

agents asked Hensley questions that were likely to evoke an incriminating

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response. Thus, the Court finds that Hensley was interrogated. See Rhode Island

v. Innis, 446 U.S. 291, 301, 100 S.Ct* 1682, 1689-90.(1980) (“the term

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Case 4:17-cr-00310-SWW Document 75 Filed 02/01/19 Page 14 of 18

‘interrogation’ under Miranda refers not oirly to express questioning, but also to

any words or actions on the part of the police (other than those normally attendant

to arrest and custody) that the police should know are reasonably likely to elicit an

incriminating response from the suspect”).

Although the Court finds that Hensley was interrogated, the Court finds that

the interrogation was not custodial and, thus, no Miranda warnings were required

(even if Hensley did not waive his Miranda rights). A custodial interrogation in

this context is “questioning initiated by law enforcement officers after a person has

been taken into custody or otherwise deprived of his freedom of action in any

significant way.” Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. The “in custody”

inquiry for Miranda purposes asks whether given the totality of circumstances

surrounding the interrogation, a reasonable person in the suspect’s position would

have understood his situation to be one of custody and felt he was not at liberty to

terminate the interrogation and leave. Griffin, 922 F.2d at 1347 (citations omitted)!

If Hensley believed that his freedom of action'had been restrained to a “degree

associated with formal arrest” and his “belief was reasonable from an objective

viewpoint,” then Hensley was “held in custody during the interrogation.” Id.

Six factors inform the Court’s analysis of whether Hensley was in custody,

although the factors are not exhaustive and need not be applied ritualistically in

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Case 4:17-cr-00310-SWW Document 75 Filed 02/01/19 Page 15 of 18

every case. United States v. Giboney, 863 F.t3d 1022 1027 (8lh Cir. 2017) (citation’

omitte'd). Those factors are: “(1) whether the-suspect was informed at the time of .

questioning that the questioning was voluntary, that the suspect was free to .leaveor request the officers to do':SO, or that the suspect was not considered under arrest;

(2) whether the suspect possessed unrestrained freedom of movement during .. ^ , ,

questioning; (3) whether the suspect initiated contact with authorities: or voluntarily

acquiesced to official requests to respond to questions;.(4) whether strong arm.

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tactics or deceptive stratagems were employed during;questioning; (5) whether the .

atmosphere of the questioning was police dominated; or, (6) whether the suspect

was placed under arrest at the termination of the questioning.” Griffin, 922 F.2d at

1349.

As to the first factor, whether the suspect was informed at the time of

questioning that the questioning was voluntary, that the suspect was free to leave ,

or request the officers to do'so, or that the suspect was not considered under arrest,

Hensley’s interview in-the front passenger, seat of Officer Humphries’ unlocked

vehicle was a consensual encounter, during which Hensley was free to leave at any

time.' “While advising someone that.he or she is not under arrest helps to mitigate

an interview’s custodial nature, an explicit assertion that the person may end. the

encounter is stronger medicine” United States v. Gllie, 442 F.3d 1 135, 1 138 (8th

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Case 4:17-cr-00310-SWW Document 75 Filed 02/01/19 Page 16 of 18

Cir. 2006). Here, Hensley was told that he'was not under arrest and Hensley

claims that he was trying to assist law enforcement catch a child predator and that

he wanted to cooperate and clear his name.

As to the second factor, whether the suspect possessed unrestrained freedom .

of movement during questioning, the Court finds that Hensley was not in handcuffs

and the door to the vehicle was unlocked. Furthermore, Hensley indicated that he

wanted to answer agents’ questions and wanted to remain in the vehicle. Again,

this is consistent with his defense that he was trying to investigate child predators

and assist law enforcement and that he wanted to clear his name.

As to the third factor, whether the suspect initiated contact with authorities

or voluntarily acquiesced to official requests to respond to questions, Hensley told

the agents he wanted to cooperate with them in catching someone that was trying

to traffic a minor. He further told the agents that he did not want to go back to jail

and would cooperate. Moreover, Hensley testified that although he hadn’t been

read his Miranda rights, he was “still willing to talk” to Agent Alexander even

though he knew he was a suspect.

As to the fourth factor, whether strong arm tactics or deceptive stratagems

were employed during questioning, there is no evidence or assertions in Hensley’s

motion to suppress that the agents employed strong arm tactics or deceptive

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Case 4:17-cr-00310-SWW Document 75 Filed 02/01/19 Page 17 of 18

stratagems, although Hensley initially responded to a false Craigslist.ad that .the

FBI had placed.

As to the fifth factor, whether the atmosphere of the questioning was police

dominated, there is no evidence it was a police dominated atmosphere. Agents

Sablatora and Alexander were the only two law enforcement:officials in the ..

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vehicle. While there may have been one of two' other officers present, they, were

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not in or around the vehicle. Cf. United States v. Axsom, 289 F.3d 496, 502-503

(8th Cir. 2002) (no police dominated atmosphere where, although there were nine

agents and specialists in the defendant’s small house executing the search warrant,

only two agents conducted the interview of the defendant wlm smoked a pipe in a

chair inside the house while agents sat across from him: “[w]hile execution of the

search warrant was certainly police-dominated, the interview between the two

agents and Axsom was not.”).

As to the sixth factor, whether the suspect was placed under arrest at the

termination of the questioning, Hensley was ultimately arrested, but whether the

suspect was placed under, arrest at the termination of questioning does not alone

“establish that the interview was custodial.” Giboney, 863 F.3d at 1028. Cf.

United States v. Flores-Sandoval, 474 F.3d 1142, 1146-47 (8th Cir. 2007)

(defendant not in custody although he was arrested immediately after being

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Case 4:17-cr-00310-SWW Document 75 Filed 02/01/19 Page 18 of 18

\

questioned by an ICE agent about his .immigration status). Here, the decision to

arrest Hensley was only made after obtaining Hensley’s laptop and consulting with

the United States Attorney’s office.

In sum, given the totality of circumstances surrounding Hensley’s

interrogation, the Court finds a reasonable person in Hensley’s position would

have felt he was at liberty to terminate the interrogation and leave.

III.

For the foregoing reasons, the Court denies the motion [doc.#57] of Robert

Nathan Hensley to suppress.

IT IS SO ORDERED this 1st day of February 2019.

/s/Susan Webber Wright

UNITED STATES DISTRICT JUDGE

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f-

CERTIFICATE OF SERVICE/COMPLIANCE

{

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1 hereby certify that on October'4, 2019, I electronically filed the

foregoing with the Clerk of the Court for the United States Court of Appeals

for the Eighth Circuit by using the CM/ECF system. I certify that the

Appellee in the case is a registered CM/ECF user and that service will be

accomplished by the CM/ECF system. I certify the addendum has been

scanned for viruses and is virus-free. I further certify the‘full text of this

addendum was prepared in Book Antiqua, size 14.

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I also certify that a true and correct copy of this Appellant's

Addendum has been mailed to the Appellant, Robert Nathan Hensley; at his

current address, and served upon the government by mail at the address

below:

: ■

Robert Nathan Hensley, # 31650-009

FCI Forrest City Medium

Federal Correctional Institution

P.O.Box 3000

Forrest City, AR 72336

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Kristin Huntington Bryant

Assistant U.S. Attorney

U.S. Attorney's Office

Eastern District of Arkansas

425 W- Capitol Avenue, Suite 500

Little Rock, AR 72201

/s/ Latrece Gray

Latrece Gray

i

/s/ Sylvia Talley'

Sylvia Talley

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