Petition for Writ of Certiorari — Christopher William Kuehner, Petitioner v. United States

Supreme Court briefApr 16, 2025

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IN THE SUPREME COURT OF THE UNITED STATES

CASE NO.________________

CHRISTOPHER WILLIAM KUEHNER,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

THE LAW OFFICE OF LANA MANITTA, PLLC

By:

/s/

Lana Manitta, VSB #42994/DC Bar #989100

600 Diagonal Rd., Suite 600

PMB #1152

Alexandria, VA 22314

(703) 705-4428

FAX (703) 705-4429

Lmanitta@ManittaLaw.com

Counsel for Petitioner

.

QUESTIONS PRESENTED

I.

Is The Failure to Disclose Subpoena Returns that are Exculpatory and

Directly Related to a Defense Theory Until Post-Trial and Only Upon

Request a Violation of Brady¸ And Should the Remedy for the Violation

be to Vacate the Conviction?

II.

Should the “In Concert” Element of 21 U.S.C. 2252A(g) be Met by the

Aggregate of Predicate Offenses or Does the Statute Require that Each

Predicate Offense be Committed in Concert with At Least Three Others?

III.

Where There is Evidence of Outside Access to a Defendant’s User

Profile on an Exploitative Site, Is Evidence Sufficient to Convict,

Especially Where the Offense Requires a Specific Number of Predicate

Offenses Committed in Concert with Others

i

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

ii

RELATED CASES

There are no related cases.

iii

TABLE OF CONTENTS

Opinions Below.......................................................................................................... 1

Jurisdiction ................................................................................................................. 1

Constitutional and Statutory Provisions Involved ..................................................... 1

Statement of the Case................................................................................................. 1

Reasons for Granting the Petition ............................................................................14

Conclusion ............................................................................................................... 25

iv

INDEX TO APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT, FILED JANUARY 16, 2025 ............ 1a

APPENDIX B — JUDGMENT OF THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT, FILED JANUARY 16, 2025 .......... 21a

v

TABLE OF AUTHORITIES CITED

Cases

Kyles v. Whitley, 514 U.S. 419, 433–34, 115 S. Ct. 1555, 1565–66,

131 L. Ed. 2d 490 (1995) ...........................................................................14, 15

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963) ...............................................................................................13, 14, 15, 16

United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383 (1985)............... 14

United States v. Daniels, 653 F.3d 399 (6th Cir. 2011).........................................3, 17

United States v. DeFoggi¸839 F.3d 701 (8th Cir. 2016) ...........................3, 17, 22

United States v. El-Battouty, 38 F.4th 327 (3rd Cir. 2022).................................... 3, 17

United States v. Grovo, 826 F.3d 1207 (9th Cir. 2016) ..................................3, 17, 23

United States v. Wiltberger, 18 U.S. 76, 95, 5 L.Ed. 37,

(1820) .................18

Statutes and Rules

18 U.S.C. § 2252A(g) ....................................................... 2, 3, 10, 16, 17, 20, 22, 24

FRCP 5f..........................................................................................................1, 13, 16

Legislation

152 Cong. Rec. S8012-02, 152 Cong. Rec. S8012-02, S8018,

2006 WL 2034118............................................................................................... 2

HR 4472, 109th CONGRESS, 1st and 2d Sessions ................................................ 2

PL 109–248, July 27, 2006, 120 Stat. 587 ...........................................................1, 2

Other Sources

Model Crim. Jury Instr. 8th Cir. 6.18.2252A(g) (2021) ............................................ 3

vi

IN THE SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the

judgment below.

OPINIONS BELOW

The published opinion of the United States court of appeals appears at

Appendix A.

JURISDICTION

The date on which the United States Court of Appeals for the Fourth Circuit

issued its ruling in Petitioner’s case was January 16, 2025, and no petition for

rehearing was filed. The jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The provisions of law involved in this Petition are 18 U.S.C. § 2252A, the

Fifth Amendment to the United States Constitution, and Federal Rule of Criminal

Procedure (“FRCP”) 5f.

STATEMENT OF THE CASE

I.

Legislative History

In 2006, Congress enacted the Children’s Safety and Violent Crime

Reduction Act, or the Adam Walsh Act (“Walsh Act”). PL 109–248, July 27,

1

2006, 120 Stat. 587. Title VII of the Walsh Act included the Internet Safety Act

and added subsection (g) to 18 U.S.C. § 2252A. Id. The objective of “tough

new penalties for child exploitation enterprises” was aimed at “dramatically

increas[ing] internet safety.” 152 Cong. Rec. S8012-02, 152 Cong. Rec. S801202, S8018, 2006 WL 2034118.

Subsection (g) was not simply an increased penalty for existing offenses, but

rather it “created a new crime outlawing child exploitation enterprises, [which]

would imprison for a mandatory minimum sentence of 20 years those who act in

concert to commit at least three separate violations of Federal child

pornography, sex trafficking, or sexual abuse laws against multiple child

victims.” Id. The “new crime” was created “to prosecute the “molestation on

demand” child pornographic industry.” Id. Not surprisingly, the Act enjoyed

bipartisan support.

But the early versions of the legislation that evolved into the Adam Walsh Act

did not include the “new crime” created by 2252A(g) and were more broadly aimed

at “protecting children, to secure the safety of judges, prosecutors, law enforcement

officers, and their family members, to reduce and prevent gang violence, and for

other purposes.” HR 4472, 109th CONGRESS, 1st and 2d Sessions. Therein, the

word “enterprise” was used only in relation to criminal street gangs and racketeering

2

enterprises. Id. Yet, the statute creates not only a “new crime,” but a new criminal

“enterprise” defined by the very specific elements. 18 U.S.C. § 2252A(g).

2252A is now being used to merely punish crimes that already exist more

harshly rather than target the specified “new crime,” and this misapplication

is a direct result of the misinterpretation of the “in concert” element. In addition to

the Fourth Circuit, other circuits that have taken up the question as to whether

each predicate offense must be performed in concert with three or more other

persons have decided—with little support from the legislative history or the

language of the Act, and in contravention of tenets of statutory interpretation—

that for purposes of two of the elements of the offense (“in concert with” and

number of victims) the predicate offenses may be tallied together. See United

States v. Daniels, 653 F.3d 399 (6th Cir. 2011); United States v. DeFoggi¸839 F.3d

701 (8th Cir. 2016); United States v. Grovo, 826 F.3d 1207 (9th Cir. 2016); United

States v. El-Battouty, 38 F.4th 327 (3rd Cir. 2022); see also Model Crim. Jury Instr.

8th Cir. 6.18.2252A(g) (2021).

II.

Mr. Kuehner’s Case

On July 14, 2022, Mr. Kuehner was charged in a one-count Indictment with

engaging in a child exploitation enterprise in violation of 2252A. The case arose

out of activities on the “rapey.su” website, which was designed, operated,

administered, and controlled by co-defendant Nathan Larson, who died in prison

3

awaiting trial on this and a case out of California. Mr. Kuehner registered with

the site on September 27, 2020, with username “Nechris.” Over the course of the

next few weeks, Nechris posted comments in rapey.su’s Siropu

constant,

continuously

scrolling

message

“chat”

(a

board), participated in private,

sexually explicit chats with minor (i.e., underage) users of the site, and through

such communications solicited material of an explicit nature from minor users of

the site.

Although a forensic examination of ten of Mr. Kuehner’s devices found

references in forensic data to a few filenames matching explicit files from the site,

or including usernames from the site, no sexually explicit images let alone images

of child pornography were found on any of Mr. Kuehner’s devices seized by law

enforcement, and it therefore could not be proved that Mr. Kuehner downloaded or

even viewed the files in question, let alone that they were sexually explicit.

a. Impersonation

Mr. Kuehner’s primary theory of defense was that since administrators of

the rapey.su website—the most likely culprit being the founder, designer, and

operator of the site Nathan Larson—could access user accounts, there was

insufficient proof that Mr. Kuehner himself had performed all the acts comprising

the alleged predicate acts, and therefore insufficient proof of his guilt to the offense

charged. In support of his argument, Mr. Kuehner highlighted the fact that on

4

October 6, 2020, the profile for username Nechris was changed in various ways,

most notably changing his email address from

necryz@gmail.com

to

mc3996520@gmail.com.

When Mr. Kuehner was interviewed by law enforcement in December, 2021,

he admitted registering for the rapey.su website and provided the email address he

used, necryz@gmail.com. He never mentioned—and was notably never asked

about the mc3996520@gmail.com address. By that time, however, Google

subpoena returns for both email addresses had already been received, and agents

therefore knew that the mc2996520@gmail.com address came back to a “John

McJanal.” The only evidence of that email address showing up on any of Mr.

Kuehner’s devices is evidence of emails sent to the necryz@gmail.com address

on June 6, 2021—months after the relevant time period in this case—

attempting to verify a Discord account for user Nekryz#9079. Despite the

mc3996520@gmail.com being added to the Nechris rapey.su profile in October

2020, these June, 2021 incoming emails to Mr. Kuehner’s actual email address are

the first and only mentions of this second email address existing anywhere on Mr.

Kuehner’s devices. And again, they do not arise from him using that email address.

There was no evidence adduced that Mr. Kuehner registered or used the

mc3996520@gmail.com email address, or that he even responded to the

authentication emails sent by Discord to the necryz@gmail.com address on June 6,

5

2021. The evidence from Google is only that “John McJanal” was the subscriber to

the mc3996520@gmail.com address, and that the email address was last accessed at

the end of June 2021 from IP addresses not associated with Mr. Kuehner. Adding

to the suspicion surrounding this second email address is the Discord subpoena

return. Discord was unable to locate a user by the name Nekryz#9079. Id.

The most logical conclusion from the subpoena returns and history of

mc3996520@gmail.com showing up within Mr. Kuehner’s actual emails is this: as

late as June 2021, an attempt was made by someone other than Mr. Kuehner to

register a new Discord user account but was unsuccessful because no one

authenticated the mc3996520@gmail.com address. It is unclear if the emails seeking

authentication were even opened, but they certainly were not responded to, and the

new Discord account was never set up.

Various witnesses described interacting with Mr. Kuehner through a

separate platform called “Discord” in October and November 2020. The Discord

group was a more “close-knit community” that did not require posting material,

like the rapey.su site. The Discord interactions described were private

interactions, and the witnesses did not offer exact types of content solicited by

Mr. Kuehner on this platform except “nudes,” or “undressed.” In fact, the

descriptions of these interactions, which were “mainly voice calls”, that were

often “odd, but not outright explicit,” “sometimes sexually explicit” but other

6

times “just general conversation,” stood in stark contrast to the exhibits produced

from the rapey.su site of Nechris’ activity, which often involved very specific

requests for highly explicit material. Also notable was that one witness discussing

her known interactions with the actual Mr. Kuehner was that, although another

user was “constantly asking to see people pee,” Mr. Kuehner hadn’t ever showed

no apparent interest in this type of material. The fact that in a more “close-knit”

group, ostensibly run by Mr. Kuehner, he was less demanding, less explicit,

less aggressive, and displayed different predilections than Nechris, is also

indicative that others may have been behind that username at various times

relevant to the predicate acts.

Notably, October 6, 2020, changes were made to Nechris’ profile on the

rapey.su site, including his height, his eye color, his race, his home state, and his

email address. One site user testified at trial that she could not go in and change

her own username without moderator or administrator permission. And on

direct examination at trial Agent Fottrell unequivocally confirmed that site

administrators has the following capability:

So, for example, . . . when an administrator was logging – somebody

was logging in as Leucosticte [one of Larson’s many usernames] and

then changing the password to Nechris so they could log in. We don’t

know what Nechris’s password is. If we wanted to log into them, the

administrator has the ability to change his password to something else.

So now that we changed his password to something else, we could log

in as the user. But we don’t know what Nechris’s original password

was; the administrator just has the ability to change it to something else.

7

Nathan Larson was the “admin of all admins,” as the individual who set up

the site, served as administrator and moderator. He had access to an

administrator portal behind the scenes of the site. He could and did edit user

profiles. He could also change user passwords. And rapey.su did not require

two-factor authentication for login, only the password.

Agent Fottrell insisted however, that impersonating a user would be

“a difficult task,” but his testimony only bears out that it might be difficult to

avoid detection. Various logs, for example, would show changes made to profiles,

etc. But not everyone even had access to those logs, only administrators

On redirect examination, Agent Cottrell was asked how he knew there was

“no evidence” someone had impersonated Nechris. Agent Cottrell’s response was

not a response, but a deflection. He could only repeat what he had said earlier, that

“in [his] mind, it’s a very difficult problem to fake somebody logging in as Nechris.”

In fact, it’s not difficult at all:

First, Agent Cottrell said, “I’d have to know his password.” But this had

already been confirmed on direct (see above), and during cross, through this

exchange:

Q . . . [Larson] could go into their profile and he could

make changes? A Correct.

Q And he could even change someone's password?

A He could change somebody's password, absolutely.

8

Q Now, you testified on direct that he doesn't

know their password, but he can change it?

A Right. Correct.

And we know that changes were made to Nechris’ profile.

Second, Agent Cottrell said, “I’d have to geolocate and login from an

IP address that looks like his.” Well, no. Only to cover one’s tracks in the IP

logs would one need to do this, and it would only involve signing in to the

site through IP address within the same geolocation as the user. Once again,

therefore, logging in as someone else was not difficult at all, and in fact,

evidence showed that some of Nechris’ activities on the site came from IP

addresses linked to a Comcast “home-based” IP address, but other activity came

from IP addresses that were routed through third-party IP address providers. These

IP addresses were basically “rented” through Leaseweb, and do not associate

with a user’s computer, but rather Leasweb’s server. Some were in the

Seattle, Washington area, but some were even in California (the very place

Larson was ultimately arrested after kidnapping a 12-year-old he met on the site

in Colorado). Larson could have easily done this by “spoofing” his location to

another location, simply adding another layer to his connection (i.e., routing

through the third-party provider IP address) allowing his activity from his home

in Virginia, or anywhere else, to reflect an IP address elsewhere. Importantly,

there was no evidence offered at trial that Mr. Kuehner ever contacted, let

9

alone contracted or subscribed to Leaseweb services—or any third party—for an

offsite IP address. Ten of his devices were seized and analyzed, and there was

no evidence of any such service being used, website being access, subscription

being paid, etc.

b. Interpretation of the “In Concert” Element

A secondary but related theory involved the interpretation of 18 U.S.C. §

2252A(g)—specifically the “in concert” element. First, Mr. Kuehner

submitted that the district court should interpret the statute to require that each

predicate act be performed in concert with at least three others. Id. Second, he argued

that the actions of user Nechris were performed alone, for his own purposes, from

behind a computer keyboard, not in concert with others. Id.

The Siropu chat feature of the rapey.su site—often referred to at trial as a

“group chat” which is a bit misleading—is a continuous streaming and scrolling

message board; so, a user signing on can’t see all of the discussions going on and

isn’t necessarily intending to engage with everyone looking at the scroll while

posting. A small portion of the messages, covering only the very most recent activity,

shows on the user’s screen. What is visible may be anything at that point from oneoff posts directed at no one in particular, or a discussion between two or more

users. Even when one is aware that multiple people are viewing the scroll, users can

direct their comments to specific users explicitly by “tagging” them or implicitly

10

by simply engaging only with that other user (e.g., by responding to their

comments and questions to the exclusion of others).. As the posted messages scroll

by on the screen, only if one actively scrolled backward could they see earlier posts.

The experience of the group chat is therefore akin to entering a large room

which is sometimes empty and sometimes packed with people. If one chooses

to “talk” to another person one has no idea who is actually “listening to” (i.e.,

reading) your conversation. But that doesn’t mean one is intentionally talking to

everyone in the room every time they walk in the room. Nechris’ activity in the

Siropu chat was sometimes a “private conversation” in the larger room,

and sometimes a conversation that invited others to weigh in. But those forming

the predicate acts were not of the latter sort.

The first predicate act involving the solicitation of sexually explicit material

by Nechris arises from, as Agent Cottrell described it, a “chat between the user

Bananacabana and Nechris,” and later postings within the group chat directed

specifically to Bananacabana by Nechris. The “pee video” request by Nechris to

user Yoonji also arises in the group chat. A discussion about producing a video

takes place within the group chat but is between Nechris and Lilith. The request

for material from Skinny.freakkk occurs in a private chat, seeking a video “just for

me.” While Nechris discusses looking forward to the material video with other

users, the solicitation of sexually explicit material was private. Nechris also

11

encouraged, in the public chat, engagement in private video messaging with

Skinny.freakkk but did not thereby ask for specific material.

The district court rejected defense arguments and found sufficient evidence

that Mr. Kuehner committed five predicate acts— specifically five separate

violations of 18 U.S.C. § 2251(a) and (e) (production or attempted production of

child pornography). Each of the predicate acts found by the court involved Nechris

interacting in a rapey.su message exchange with other site users, who were under

the age of eighteen, asking them to produce video depictions of themselves

engaging in sexually explicit activity. Id. In one such request, user Nechris

asked for a “pee video,” which Mr. Kuehner submits is not necessarily “sexually

explicit material.” No request was made to show genitalia, or in fact any body part,

or even nudity, and in fact no such content was produced.

Further, the district court found the defense of impersonation “implausible,”

but in its oral ruling post-trial referred to the defense being that Larson “fully”

impersonated Mr. Kuehner on the site, which was not the defense. The defense

was that because Larson (or any other administrator but most likely Larson)

could impersonate Mr. Kuehner, and because there were as the district court

describes them “inexplicable changes” to Nechris’ profile indicating as much, that

the government could not prove commission of the predicate acts by Mr.

Kuehner beyond a reasonable doubt.

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III.

The Brady Violation

Post-trial, Mr. Kuehner, by and through counsel, requested the government to

produce the returns of administrative subpoenas, especially one sent to Google for

subscriber information for the email mc3996520@gmail.com. In response, the

government produced, for the first time post-trial, returns from Google and Discord

which had been obtained in September, 2021 that showed that the

mc3996520@gmail.com was not registered to Mr. Kuehner and a Discord account

username linked to that email, believed to be associated with Mr. Kuehner, did not

exist.

IV.

Sentencing & Post Trial Motions

On April 25, 2023, Mr. Kuehner was sentenced to the statutory mandatory

minimum of 240 months, with credit for time served. Based on the government’s

Brady violation, Mr. Kuehner sought to have his conviction and sentence

vacated pursuant to Fed. R. Crim. P. 33 and the case dismissed on the grounds

that the United States had violated its obligations pursuant to Fed. R. Crim,

P. 5f and Brady. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d

215 (1963); FRCP 5f. Although the district court ruled a Brady violation had

occurred, the court also held that even had the withheld evidence been introduced

at trial, it would not have “made a material difference to the outcome.”

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On appeal, the Fourth Circuit affirmed the district court, but also found that

no Brady violation had occurred.

REASONS FOR GRANTING THE PETITIOIN

I.

The Government’s Failure to Disclose Administrative Subpoena

Returns from Google and Discord Violated Brady, and the Evidence

Was Directly Supportive of the Defense Theory

“[F]avorable evidence is material, and constitutional error results from

its suppression by the government, “if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the proceeding would have

been different,” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383

(1985); (White, J., concurring in part and concurring in judgment). Thus, the

“showing of materiality” does not require a showing that the disclosure of the

evidence in question would have resulted in acquittal. Id., at 682, 105 S.Ct., at

3383–3384.

The question is not whether the defendant would more likely than not

have received a different verdict with the evidence, but whether in

its absence he received a fair trial, understood as a trial resulting

in a verdict worthy of confidence. A “reasonable probability” of a

different result is accordingly shown when the government's

evidentiary suppression “undermines confidence in the outcome of

the trial.”

Kyles v. Whitley, 514 U.S. 419, 433–34, 115 S. Ct. 1555, 1565–66, 131 L. Ed.

2d 490 (1995) citing Bagley, 473 U.S. at 678, 105 S.C.t at 3381.

14

As in Kyles, the “disclosure of the suppressed evidence to competent

counsel” in Mr. Kuehner’s case would have made a different result reasonably

probable.” Kyles, 514 U.S. at 441, 115 S. Ct. at 1569, 131 L. Ed. 2d 490. The

evidence at issue in Mr. Kuehner’s Motion to Vacate was the results of

Administrative Subpoenas sent to Google and Discord on September 27, 2021.

This information was exculpatory evidence that the government did not disclose. In

fact, it was direct evidence that was key to and supportive of the very theory of

defense Mr. Kuehner developed at trial solely through his challenge via crossexamination to the government’s case. Moreover, the district court’s request

that the government address availability of lesser included offenses, is indicative

that indeed, the presentation of direct evidence supporting Mr. Kuehner’s defense

that not all of the incriminating chats and posts were in fact his own likely could

have altered the ultimate determination of guilt, especially as to the narrow and

specific offense charged in the Indictment.

The subpoena returns support the argument that since the original Nechris

profile was changed, someone else was impersonating Mr. Kuehner on various

platforms. Had defense counsel been able to utilize this evidence during cross

examination of the agents tasked with forensic analysis of his devices, of Agent

Cottrell’s testimony regarding there being “no evidence” of impersonation, and

of Agent Gallegly who interviewed Mr. Kuehner months after the subpoena return

15

yet failed to ask about this second email address, this would have

significantly undermined the prosecution’s case when it mattered—i.e., during the

course of the trial. There is certainly at least a reasonable probability that the court’s

ruling, which was based on the implausibility of the impersonation defense—

would have been different.

The availability of the Discord evidence as well—that different account was

associated with the second email address not belonging to Mr. Kuehner was nearly

created months after the relevant period—would have provided even more support

to the impersonation defense and thereby a reasonable probability of a different

result.

In light of the above, dismissal of the indictment was an available and

appropriate remedy for violations of Fed. R. Crim. P. 5f and Brady. The district

court’s Rule 5f Order warned the government of this very potential consequence,

but instead there was no consequence at all, except the grave prejudice to Mr.

Kuehner, despite the finding that there was, indeed, a Brady violation.

II.

The “In Concert” Element of 18 USC 2252A(g) Should Not be Met by

Combining the Predicate Offenses

As noted above, 2252A(g) was passed to create a “new crime,” not simply

to punish already existing offenses more harshly. In addition, the rule of lenity

should apply. The relevant language of the statute is as follows:

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A person engages in a child exploitation enterprise for the purposes

of this section if the person violates section 1591, section 1201 if

the victim is a minor, or chapter 109A (involving a minor victim),

110 (except for sections 2257 and 2257A), or 117 (involving a

minor victim), as a part of a series of felony violations constituting

three or more separate incidents and involving more than one

victim, and commits those offenses in concert with three or more

other persons.

18 U.S.C. 2252A(g)(2).

Circuit courts tasked with interpreting this language have all at least implicitly

acknowledged a lack of clarity with respect to the “in concert” element and some

turned to precedent interpreting a different statue with “similar language”—

18 U.S.C. § 848(c)—for guidance. Daniels, 653 F.3d at 412; DeFoggi, 839 F. 3d at

710; Grovo, 826 F. 3d at 1215. The Third Circuit, looking at the statute only last

year, undertook to analyze the 2252A(g) itself, ultimately concluding that the

absence of the word “each” in the phrase “commits those offenses” means that the

phrase “in concert with three other persons” applies to the “series of offenses,”

not to each individual offense. El-Battouty, 38 F. 4th at 329.

Mr. Kuehner submits that the approach taken by the Third Circuit—

considering the language of the statute independent of those with “similar language,”

is the better approach, given the fact that the dissimilarities between 2252A(g) and

848(c) renders the latter unfit for this purpose. However, the Third Circuit failed to

17

apply a tenet of statutory construction that ensures due process as guaranteed by the

5th Amendment. Where there is ambiguity, the rule of lenity should apply.

“The rule that penal laws are to be construed strictly . . . . [] is founded on the

tenderness of the law for the rights of individuals; and on the plain principle that the

power of punishment is vested in the legislative, not in the judicial department. It

is the legislature, not the Court, which is to define a crime, and ordain its

punishment.” United States v. Wiltberger, 18 U.S. 76, 95, 5 L.Ed. 37,

(1820).

While strict construction should not subvert the clear intention of the legislature,

The case must be a strong one indeed, which would justify a Court

in departing from the plain meaning of words, especially in a penal act,

in search of an intention which the words themselves did not suggest.

To determine that a case is within the intention of a statute, its

language must authorize us to say so. It would be dangerous, indeed,

to carry the principle, that a case which is within the reason or mischief

of a statute, is within its provisions, so far as to punish a crime not

enumerated in the statute, because it is of equal atrocity, or of kindred

character, with those which are enumerated. If this principle has ever

been recognized in expounding criminal law, it has been in cases

of considerable irritation, which it would be unsafe to consider as

precedents forming a general rule for other cases.

Id. at 96, 5 L.Ed. at

.

Mr. Kuehner submits that the Third Circuit is incorrect in finding that

the phrase “those offenses” means the collective “series of felony violations”

instead of individual offenses. The words “series” and “violations” were clearly

chosen to distinguish the “series” from the enumerated offenses mentioned

immediately preceding that clause. In fact, there are “offenses” mentioned in the

18

statute. They are “violations of section 1591, section 1201 . . ., chapter 109A,

110, or 117.” It is to these that “commits those offenses” refers.

While the Third Circuit makes much of the fact that the words “each of” are

missing (and shouldn’t be implied), they aren’t in fact necessary so long as one

carefully considers to what “those offenses” actually refers. To confirm that this

reading is the more reasonable, especially in light of the rule of lenity, it is important

to note some other things that the legislature did not say, but could have:

“ . . . as part of a series of felony offenses constituting three or more separate incidents

and involving more than one victim, and commits those offenses in concert with

three or more other persons.”

OR

“ . . . as a part of a series of felony violations constituting three or more

separate incidents and involving more than one victim, and commits that

series of violations in concert with three or more other persons.”

OR

“ . . . as a part of a series of felony offenses constituting three or more separate

incidents involving a total of two or more victims, and commits those offenses

in concert with a total of three or more other persons.”

By returning the readers attention to “offenses,” rather than the “series”

or “the violations,” it is actually fairly clear what the legislature meant, but to the

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extent ambiguity exists, the statute should not be read to expand its reach—

especially to cover conduct already criminalized, including as the object of

conspiracy, elsewhere within the very titles mentioned in 2252A(g).

Finally, the reading that allows the “at least three other persons” to be tallied

over the “series of violations,” undermines the requirement for “three separate

incidents,” and further allows for the possibility that someone could perform two

predicate acts completely alone and only one in concert with three people, and still

be convicted of engaging in an enterprise based on those three predicate acts.

III. The Evidence Was Insufficient to Convict Mr. Kuehner of the Offense

Charged

i.

Use of the Nechris Username by an Administrator such as Larson Was

Possible and Changes to the Nechris User Profile Indicate Use by Someone

Other than Mr. Kuehner

Site administrators could have been behind the activities of Nechris by simply

changing the password.

The “difficult task” would be covering it up. But “covering it up” was

defined by Agent Fottrell as eradicating all trace of the impersonation, which

would not be necessary if the user would not have access to the relevant logs

Regardless there is no reason to assume that Larson would need to or try to “cover

it up,” even though he could. Larson set up this site and he set it up to allow

himself to change user passwords and sign in as other users. Larson could have

20

chosen to require two-factor authentication, securing user profiles

from impersonation (including by law enforcement). But he did not set it up that

way, likely because it would have limited his ability to sign in as other users.

As Carl Sagan said, “absence of evidence is not evidence of absence,” and

so “no evidence” of impersonation would not mean it didn’t happen. But we do

have evidence that Nechris’ profile was changed, including the crucial inclusion of

a new email address. Knowing that Larson could do it easily, it doesn’t matter

whether it would have been difficult to cover his tracks, since that was the least of

what Larson was trying to hide with the rapey.su site. Larson was hardly

concerned about law enforcement let alone other users, but regardless, if someone

tried to sign into their account and had trouble, they would reach out to Larson

for help. If someone thought they were “hacked,” they would reach out to

Larson for help. And if someone thought Larson hacked them, to whom would

they complain? More likely than not, the user (fearing perhaps law enforcement

detection), would abandon the profile altogether, allowing Larson to continue to use

their username indefinitely. It’s a “no lose” situation for him, and the idea that it

would be “difficult” to hide is of absolutely no consequence. It was possible, then

there is no way to prove beyond a reasonable doubt that Mr. Kuehner committed

each of the predicate acts associated with username “Nechris” (let alone “in concert

with at least three others”).

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ii.

Evidence is Insufficient to Prove Each—or Even the Collective “All”

of the Predicate Acts was Performed “In Concert” With at least Three

Other Persons

The activity of Nechris through the various channels of the rapey.su site

is similar to that of the Defendant in the DeFoggi case, which the Eight Circuit

found did not satisfy the “in concert” element of the statute. United States v.

DeFoggi, 839 F.3d 701, 710 (8th Cir. 2016). DeFoggi was a member of the

PedoBook site which was similar in purpose and design to rapey.su. Id. at 704. In

the site’s group chats, “DeFoggi wrote at length about his interest in child

pornography and solicited child pornography from other members of PedoBook.”

Id. at 710. The predicate acts committed b y DeFoggi w e r e a c c e s s i n g child

pornography, as opposed to “production or attempted production,” but that does

not alter the fact that Nechris’ activities were like DeFoggi’s, in that ultimately, they

were done “alone from behind one computer’s screen.” Id.

The district court found that Mr. Kuehner had a “tacit agreement with at least

three other users” to commit violations of 2251(a) and (e), but even if this is correct,

that is a conspiracy to commit 2251(a) and (e), not necessarily a violation of

2252A(g). Although many of the adult users of rapey.su site may have intended

to commit, committed, and applauded the commission of that offense by others,

that does not mean they acted in concert with one another to produce or attempt

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to produce child pornography.1 To quote the Eight Circuit, “even assuming

without deciding that the child exploitation enterprise offense requires a

conspiracy and nothing more, the evidence was insufficient here.” Id.

For purposes of finding action “in concert,” the district court focused on the

“group chat” on the site. Again, however, “group chat” is a bit misleading, since

it is simply a continuous chat stream which could have anywhere from zero to any

number of members “in the room,” but only privy to what is scrolling by at the time

they look at the screen. One-on-one conversations were held within that so- called

“group chat.” More importantly, the solicitation of sexually explicit material was

done in either one-on-one or fully private discussions, while the “pee video” and

encouragement to others to engage in a private video chat with Skinny.freakkk

were posted on the Siropu chat. The government exhibits include various examples

of Nechris seeking material for his sole use, most often within private chats. While

the Siropu chats were inappropriate and often disgusting, they did not comprise

Where the predicate act is a different child pornography offense, such as a violation

of 2251(d) (advertising child pornography) participation in a message board and

mutual encouragement has satisfied the “in concert” element, but the message board

was in fact an instrumentality of the offense itself since that is where the material

was advertised. See United States v. Grovo, 826 F.3d 1207 (9th Cir. 2016)

(defendants being “active participants in the community” bulletin board, it was

reasonable to infer “from their activities that they agreed with other members

to further the board’s common goal of sharing, accessing and viewing

child pornography,”)

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at least three separate incidents of production or attempted production of

child pornography in concert with others. Unless the victims of the solicitations

can qualify both as “victims” and the “others” for 2252A(g), then the evidence

is insufficient that Nechris acted in concert with at least three others in the

commission of each separate or the series of incidents of violating 2251(a) and (e).

The statute under which Mr. Kuehner was charged was promulgated as

creating a “new crime,” targeting the organized sexual exploitation of children

conducted by groups of individuals, usually facilitated by the internet. The

sophisticated and organized nature of an “enterprise” as opposed to an individual,

or even two or three individuals acting in concert (i.e., a conspiracy) would trigger

a harsher penalty than those committing the predicate offenses outside of such

an “enterprise.” The specificity of the elements was not unintentional and

the interpretation applied by the district court and sister circuits treats it as

such, undermining the very purpose of the statute by enveloping far less serious

offenses (to wit, those committed by individuals or by one or two people, acting

solely for their own purposes) which are already crimes, punishable by in many

cases different mandatory minimums and subject to significant sentencing

guidelines offense levels and applicable enhancements.

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CONCLUSION

For the reasons set for above, Mr. Kuehner respectfully prays that his

petition for a writ of certiorari be granted.

Respectfully Submitted,

CHRISTOPHER WILLIAM KUEHNER

By Counsel

THE LAW OFFICE OF LANA MANITTA, PLLC

By:

/s/

Lana Manitta, VSB #42994

1800 Diagonal Rd., Suite 600

PMB #1152

Alexandria, VA 20132

(703) 705-4428

FAX (703) 705-4429

LManitta@ManittaLaw.com

Counsel for Christopher Kuehner

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APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT, FILED

JANUARY 16, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — JUDGMENT OF THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT, FILED

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-4339

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

CHRISTOPHER WILLIAM KUEHNER, a/k/a nechris, a/k/a William Christopher

Kuehner,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at

Alexandria. Leonie M. Brinkema, District Judge. (1:22-cr-00120-LMB-4)

Argued: September 27, 2024

Decided: January 16, 2025

Before GREGORY, QUATTLEBAUM, and BERNER, Circuit Judges.

Affirmed by published opinion. Judge Berner wrote the opinion in which Judge Gregory

and Judge Quattlebaum joined.

ARGUED: Lana Manitta, LAW OFFICE OF LANA MANITTA, PLLC, Alexandria,

Virginia, for Appellant. Seth Michael Schlessinger, OFFICE OF THE UNITED STATES

ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Jessica D. Aber, United

States Attorney, Richmond, Virginia, Daniel Honold, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

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BERNER, Circuit Judge:

More than forty years ago in New York v. Ferber, the United States Supreme Court

expressed profound concern about the rise of child exploitation and abuse through the

production and dissemination of photographs and films depicting minors engaging in

sexual activity. 458 U.S. 747, 749 (1982). The Court emphasized that the “prevention of

sexual exploitation and abuse of children constitutes a government objective of surpassing

importance.” Id. at 757. This is because such photographs and films become “a permanent

record” of the abuse of a child “and the harm to the child is exacerbated by their

circulation.” Id. at 759. Ferber was decided long before the advent of the Internet and social

media, digital cameras, video cameras, and cell phones at the ready, and relatively

inexpensive computer equipment. Taken together, these technological advances have

enabled an exponential increase in the instantaneous, often anonymous, and broad

dissemination of such material.

Congress recognized this growing problem when, in 2006, it enacted the Adam

Walsh Child Protection and Safety Act to protect children from sexual exploitation and

abuse, by promoting Internet safety and preventing the production and dissemination of

child pornography, which we will refer to as child sexual abuse material. 1 Adam Walsh

“Child pornography” is defined as the “visual depiction” of a minor “engaging in

sexually explicit conduct.” 18 U.S.C. § 2256(8); see United States v. Williams, 553 U.S.

285, 288 (2008). We refer to such content as “child sexual abuse material” to reflect more

accurately the abusive and exploitative nature of child pornography. Child Sexual Abuse

Material, Nat’l Ctr. for Missing & Exploited Children (accessed Jan. 2, 2025),

https://www.missingkids.org/theissues/csam [https://perma.cc/PV8D-GZEX]; United

States v. Larson, No. 19-cr-50165, 2023 WL 196171, at *1 n.1 (D.S.D. Jan. 17, 2023)

(Continued)

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Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, 587 (2006);

id. § 501; see id. § 701. Among its many provisions, the Walsh Act amended Section

2252A of Title 18 of the United States Code, to add a criminal ban on “child exploitation

enterprises.” Adam Walsh Child Protection and Safety Act of 2006 § 701. This case

concerns the proper interpretation of that provision.

Christopher William Kuehner actively used a website and a messaging server

dedicated to sexual violence and the sexual exploitation of minors. Employing two

different usernames, he produced and encouraged the production of child sexual abuse

material on these platforms. After authorities revealed that Kuehner was behind the

usernames, they charged him with one count of engaging in a child exploitation enterprise.

Following a two-day bench trial, Kuehner was convicted and subsequently sentenced to

serve twenty years in prison.

On appeal, Kuehner raises several challenges to his conviction. First, he maintains

that the district court erroneously interpreted the requirement of the child exploitation

enterprises statute that predicate felony offenses be performed “in concert with three or

more other persons.” The district court considered the number of people involved in the

predicate offenses cumulatively. In other words, it was enough that all the predicate

felonies were committed with a total of three or more other people when summed together.

(explaining that pornography “connotes a certain aspect of consent that is impossible when

the images or videos depict children,” and because of this lack of consent, child sexual

abuse material is “evidence of a child being sexually abused.”). Other courts have done the

same. See, e.g., United States v. Johnson, 93 F.4th 605, 608 (2d Cir. 2024); Doe #1 v.

Twitter, Inc., No. 22-15103, 2023 WL 3220912, at *1 (9th Cir. May 3, 2023); United States

v. Glowacki, No. 22-3279, 2023 WL 179887, at *1 (6th Cir. Jan. 13, 2023).

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Kuehner argues that each predicate offense must have been committed in concert with three

or more other people. Second, Kuehner argues that there was insufficient evidence to

support his conviction for engaging in a child exploitation enterprise. Third, he contends

that the district court erred in denying his motion to vacate his conviction and dismiss the

indictment because the Government failed to turn over certain information in its

possession.

We reject each of these challenges and affirm the judgment of the district court.

I.

Background

A.

Kuehner and four co-defendants were charged with one count of knowingly

engaging in a child exploitation enterprise in violation of 18 U.S.C. § 2252A(g). One of

the co-defendants, Nathan Larson, had created a website called “Rapey.su” (the Website)

and served as its administrator. 2 The conduct at issue in Kuehner’s criminal case arose

from activities on the Website, which was dedicated to discussions of sexual exploitation

and rape, and on “Discord,” an online communications platform that allows users to

message each other, share images and videos, and audio or video call.

Larson died in federal pre-trial custody, and the Government subsequently

dismissed the indictment as to Larson.

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Kuehner waived his right to a jury trial and consented to a bench trial. Witnesses at

the trial included three minor victims (MVs) 3: MV1, MV2, and MV7, a co-defendant who

pled guilty, Homeland Security Investigation special agents, and forensic analysts and

experts, including James Fottrell, Director of the High Technology Investigative Unit of

the Department of Justice’s Child Exploitation and Obscenity Section.

The Website maintained a dedicated section for users interested in the sexual

exploitation of children. This section had forums, galleries, and options that allowed users

to message one another privately and in groups. Website users could also earn and display

“badges” in their profiles to convey particular messages or the completion of a task, such

as a badge for “confirmed rapist” or “confirmed child molester.” See, e.g., J.A. 147. 4

“Confirmed” users of the Website were provided greater access to chats with other users

and access to non-public galleries and media.

The Government presented evidence that Kuehner joined the Website on September

27, 2020, under the username “nechris.” “Nechris” earned the status of confirmed user on

the Website by posting a picture of himself with the name of the Website written on his

forearm. “Nechris” also earned “Confirmed rapist” and “Rapey” badges. United States v.

Kuehner, Case No. 22-cr-120, 2023 WL 1422310, at *2 (E.D. Va. Jan. 31, 2023). The

“nechris” profile described the user as a 36-year-old, 5’8”, “Caucasian/Asian” man from

Washington state, which Director Fottrell testified generally matched Kuehner’s

In an effort to protect their privacy and to avoid revictimization, we avoid using

the names and Website usernames of the minor victims. As the egregious facts of this case

make abundantly clear, content that is posted online becomes nearly impossible to remove.

4

Citations to “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

3

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description. Id. Kuehner admitted to federal agents that he had used his personal email,

necryz@gmail.com, to register on the Website as “nechris.” On October 6, 2020, some of

the information in “nechris’s” profile on the Website, including the birth year, location,

identifying information, and age, were modified, and the email address associated with the

username was changed from necryz@gmail.com to mc3996250@gmail.com.

At trial, the Government produced evidence that Kuehner, under the username

“nechris,” repeatedly interacted with, encouraged, and pressured minor victims to post

child sexual abuse material. Director Fottrell testified about the conduct involving the

minor victims. Unless otherwise noted, the events described below took place before the

“nechris” profile information was changed on October 6, 2020.

“Nechris” messaged MV1 describing his desire to sexually abuse her and directing

her to send him sexually explicit material of herself. Following these instructions, MV1

posted five videos of herself, including videos showing her masturbating. MV1 tagged

“nechris” in this post. He acknowledged the videos by thanking her in the gallery where

MV1 posted the media. The Website had a public chat that was a “running commentary”

between Website users. J.A. 144. In the public chat, “nechris” discussed the child sexual

abuse material depicting MV1 with another confirmed adult user and bragged about his

role in convincing MV1 to post the material.

MV2 testified at trial about her interactions with “nechris” on Discord. “Nechris”

also requested child sexual abuse material from MV2, as well as other minor victims.

“Nechris” also sent nude images of himself to MV2. Kuehner’s face was visible in some

of these images.

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Director Fottrell testified that “nechris” asked MV3 to produce and post child sexual

abuse material. In the public chat, in response to Larson’s commentary, “nechris” posted

that he was looking forward to MV3’s next video. “Nechris” gave a “thumbs up” reaction

to a comment by Larson that MV3 was an “ephebophile’s delight,” 5 and commented that

he “love[d]” the child sexual abuse material depicting MV3. J.A. 123–24. “Nechris” gave

a “thumbs up” reaction to a crude comment by Larson about MV3’s body. “Nechris” and

other users of the Website commented on the child sexual abuse material posted by MV3,

expressing their gratification.

In the public chat on the Website with several other confirmed adult users, “nechris”

commented “[l]et’s see this now” in response to another user who wanted MV4 to produce

a child sexual abuse material video. J.A. 112. Another confirmed adult user indicated his

agreement and approval by reacting with a “smiley face” to “nechris’s” comment. J.A. 112.

“Nechris” also publicly commented on child sexual abuse material posted by MV5,

referring to some of this material as “the gold standard.” J.A. 111. He encouraged MV5 to

make another video, saying “we all look forward to it . . . .” J.A. 111. Another confirmed

adult user “liked” a comment by “nechris” about MV5 having engaged in sexually explicit

conduct before going to school in the morning.

“Nechris” advised yet another minor, MV6, on the optimal placement of the camera

to make child sexual abuse material. MV6 proposed an idea for a child sexual abuse

Director Fottrell testified that an “ephebophile” is someone “who is sexually

interested [in] post pubescent minors.” J.A. 124.

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material video and “nechris” encouraged her to record herself engaging in lewd acts

because he wanted to watch her. MV6 complied with these requests.

After the “nechris” profile was changed, in the Website’s public chat, “nechris”

urged MV7 to make a lewd video and pressured her to do so several times, despite MV7

repeatedly declining. Another confirmed adult user joined “nechris” to urge MV7 to

produce an exploitative video. MV7 finally acceded to the pressure from “nechris” and

other Website members and posted child sexual abuse material.

Kuehner’s exploitation of minor victims was not limited to the Website. “Nechris”

was one of the individuals who ran a private “server” on Discord, akin to a chat room, to

share and distribute child sexual abuse material. “Nechris” and other adult users of the

Website invited minor victims, including MV1 and MV2, to join Discord to communicate

with one another. All three minor victims who testified at trial, MV1, MV2, and MV7,

described their interactions with “nechris” on Discord. “Nechris” had asked each of them

to provide sexually explicit content on the Discord server.

Kuehner’s principal defense at trial was that someone had impersonated him as

“nechris” on the Website and Discord, such that he himself had not engaged in the charged

activities. The evidence indicated otherwise, however. Kuehner’s own statements

implicated him. In addition to Kuehner’s confessions about his email address and Website

account, Kuehner admitted that he took a confirmation photo for the “nechris” account and

posted it to the Website. Even then, Kuehner argued that there was no evidence that he was

always behind the “nechris” account.

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The Government also presented significant forensic evidence connecting Kuehner

to the Website. Federal agents had executed a search warrant of Kuehner’s home and

recovered a desktop computer, a laptop, and a cell phone. Law enforcement successfully

conducted a forensic analysis of the desktop computer and cell phone, but forensic experts

could only access the deleted files on the laptop. The evidence presented at trial established

that Kuehner had accessed child sexual abuse material, including videos and images of

minors, on these devices. Analyses of Kuehner’s web browser history and his laptop

confirmed that he had used the necryz@gmail.com email address and variations of the alias

“nechris.”

To support his defense that someone had impersonated him, Kuehner elicited

testimony from Director Fottrell that as the Website’s creator and administrator, Larson

had access to statistics and data pertaining to the Website, including records of users’

activity and associated IP addresses. Director Fottrell testified that Larson could edit

profiles, change passwords, and modify or delete the administrative logs that track his own

actions taken as an administrator. Director Fottrell further testified that there were “three

fundamental problems” with the theory that Larson, or perhaps another administrator,

impersonated Kuehner. J.A. 152. To impersonate Kuehner as “nechris,” Director Fottrell

testified that the impersonator would need to know: (1) “nechris’s” password; (2)

Kuehner’s IP address; and (3) how to fake the administrative logs to cover the

impersonator’s actions.

Director Fottrell specifically testified that without access to “nechris’s” password,

neither Larson nor any other administrator could login as “nechris” to impersonate

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Kuehner. Larson could have changed “nechris’s” password and then logged in, but he

would have been unable to change it back to “nechris’s” original password—because

Larson never knew the original password. After an extensive review, Director Fottrell

identified no evidence suggesting that Larson knew “nechris’s” password or that someone

else logged in as “nechris.” There was no evidence that the password to the “nechris”

account had ever been changed. Although it is possible that someone could have altered

the IP address to make it appear as if that person was using the Website from “nechris’s”

location, according to Director Fottrell, it was highly improbable that someone could do so

without leaving a record. Director Fottrell further testified that most of the IP addresses

connected to “nechris” were from the Seattle area, where Kuehner resided, and that, taken

together, it was “very unlikely” that Larson, or another individual, impersonated Kuehner.

B.

The district court found Kuehner guilty of engaging in a child exploitation

enterprise. That statute provides that a:

person engages in a child exploitation enterprise for the purposes of this

section if the person violates section 1591, section 1201 if the victim is a

minor, or chapter 109A (involving a minor victim), 110 (except for

sections 2257 and 2257A), or 117 (involving a minor victim), as a part of a

series of felony violations constituting three or more separate incidents and

involving more than one victim, and commits those offenses in concert with

three or more other persons.

18 U.S.C. § 2252A(g)(2).

The district court held that the evidence at trial “established that Kuehner committed

a series of predicate felony violations constituting over three or more separate incidents.”

Kuehner, 2023 WL 1422310, at *6. Section 2251(a) and (e) of Title 18 of the United States

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Code “criminalize production and attempted production of child [sexual abuse material],

which are predicate offenses of engaging in a child exploitation enterprise

under § 2252A(g).” Kuehner, 2023 WL 1422310, at *6. Kuehner “violated or attempted to

violate 18 U.S.C. § 2251(a),” and his conduct “also constituted enticement or attempted

enticement of a minor to engage in unlawful sexual conduct in violation of

18 U.S.C. § 2422(b).” Kuehner, 2023 WL 1422310, at *7–8. The district court sentenced

Kuehner to the mandatory minimum sentence of twenty years’ incarceration, as well as

twenty years’ supervised release.

After sentencing, Kuehner filed a motion to vacate the district court’s judgment,

commitment order, and memorandum opinion, and to dismiss the indictment, or, in the

alternative, to grant him a new trial. Kuehner argued that the Government’s failure to

disclose material it received in response to subpoenas sent to Google and Discord was a

violation of Brady v. Maryland, 373 U.S. 83 (1963). Following an evidentiary hearing, the

district court denied Kuehner’s motion. Kuehner filed a timely appeal.

II.

Analysis

Kuehner contends that the district court erred in three ways. First, he challenges the

district court’s interpretation of the “in concert with” requirement of the child exploitation

enterprises statute. Second, he maintains that there was insufficient evidence to support his

guilty verdict. Third, he contends that the district court erred in denying his Brady motion

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because the Government failed to turn over material and exculpatory information received

from various Google and Discord accounts. We address each in turn.

A. Statutory Interpretation of the Child Exploitation Enterprises Statute

Kuehner maintains that the district court’s interpretation of the child exploitation

enterprises statute was erroneous because the statute requires a defendant to act “in concert

with” three or more individuals when committing each of the predicate felony offenses. He

also maintains that the rule of lenity requires us to interpret the child exploitation

enterprises statute in his favor. We disagree with both arguments.

We review issues of statutory interpretation de novo and begin our interpretation

with the plain text of the statute. United States v. Muhammed, 16 F.4th 126, 127–28 (4th

Cir. 2021). A person violates the child exploitation enterprises statute if that person “as a

part of a series of felony violations constituting three or more separate incidents and

involving more than one victim, . . . commits those offenses in concert with three or more

other persons.” 18 U.S.C. § 2252A(g)(2) (emphasis added). The most natural reading of

this text is that the phrase “those offenses” refers to the collective “series of felony

violations.” The phrase “with three or more other persons” modifies “those offenses,”

thereby indicating that the series of felony offenses must have been committed with “three

or more other persons.” A person will therefore have been found to have engaged in a child

exploitation enterprise if the predicate felony offenses, as a series: (1) constituted three or

more separate incidents; (2) involved more than one victim; and (3) were committed in

concert with three or more people. If Congress wanted to require that each predicate

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offense be committed in concert with three or more people, the statute would have included

this requirement.

We decline to adopt Kuehner’s strained construction of the statute to require that

“each” predicate offense be committed in concert with three or more other people and find

ourselves in good company. All our sister circuits that have addressed this interpretive

question have held that the number of people for the “in concert with” requirement may be

considered cumulatively. See, e.g., United States v. El-Battouty, 38 F.4th 327, 329 (3d Cir.

2022); United States v. DeFoggi, 839 F.3d 701, 710 n.4 (8th Cir. 2016); United States v.

Grovo, 826 F.3d 1207, 1215 (9th Cir. 2016); see also United States v. Daniels, 653 F.3d

399, 412 (6th Cir. 2011). Not a single circuit has interpreted the child exploitation

enterprises statute in the manner urged by Kuehner.

The continuing criminal enterprise statute, 21 U.S.C. § 848, informs our reading of

the child exploitation enterprises statute as well. The child exploitation enterprises statute

and the continuing criminal enterprise statute are structured similarly: a person is found to

have engaged in either enterprise if that person committed certain predicate felonies, and

such violations are part of a series committed in concert with several people. See Grovo,

826 F.3d at 1214; compare 18 U.S.C. § 2252A(g)(2) with 21 U.S.C. § 848(c). In relevant

part, the continuing criminal enterprise statute requires that the requisite predicate felony

violations be “undertaken by such person in concert with five or more other persons . . . .”

21 U.S.C. § 848(c)(2)(A). In defining “in concert with” under the continuing criminal

enterprise statute, this court has not required that each predicate felony have been

committed by five individuals at the same time or even that five people collectively

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engaged in a single specific offense. See United States v. Johnson, 54 F.3d 1150, 1155 (4th

Cir. 1995) (quoting United States v. Ricks, 882 F.2d 885, 891 (4th Cir. 1989)). We decline

to construct the child exploitation enterprises statute in a contradictory manner.

Kuehner also contends that the rule of lenity requires us to find in his favor due to

the ambiguity present in the interpretation of the child exploitation enterprises statute. The

rule of lenity guides courts to “strictly construe[ ]” criminal statutes and avoid interpreting

them to “extend criminal liability beyond that which Congress has ‘plainly and

unmistakably’ proscribed.” United States v. Hilton, 701 F.3d 959, 966 (4th Cir. 2012)

(citation omitted). “Under [this] well-established principle of statutory construction,

ambiguities in criminal statutes must be resolved in favor of lenity for the accused.” United

States v. Headspeth, 852 F.2d 753, 759 (4th Cir. 1988). This rule, however, is employed

only if, after “considering text, structure, history, and purpose, there remains a ‘grievous

ambiguity or uncertainty in the statute,’ . . . such that the Court must simply ‘guess as to

what Congress intended.’” Barber v. Thomas, 560 U.S. 474, 488 (2010) (citations and

quotations omitted). No such uncertainty or ambiguity exists here. Upon review of the text

of the child exploitation enterprises statute, we find that the meaning is clear and does not

call for application of the rule of lenity.

We hold that the child exploitation enterprises statute does not require that each

predicate felony be committed “in concert with” three or more people. The required total

of three or more people can be summed across the relevant predicate offenses.

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B.

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Sufficiency of the Evidence

We next address Kuehner’s contentions regarding the sufficiency of the evidence.

Kuehner maintains that there was insufficient evidence to convict him because (1) someone

else could have used the “nechris” account and (2) the predicate felonies were not

performed in concert with at least three other people.

We review “judgments resulting from a bench trial under a mixed standard of

review: factual findings may be reversed only if clearly erroneous,” and legal findings are

reviewed de novo. United States v. Landersman, 886 F.3d 393, 406 (4th Cir. 2018) (quoting

Raleigh Wake Citizens Ass’n v. Wake Cnty. Bd. of Elections, 827 F.3d 333, 340 (4th Cir.

2016)). The court should “uphold a guilty verdict if, taking the view most favorable to the

Government, there is substantial evidence to support the verdict. ‘Substantial evidence’

means evidence that a reasonable finder of fact could accept as adequate and sufficient to

support a conclusion of a defendant’s guilt beyond a reasonable doubt.” Id. at 406 (quoting

United States v. Armel, 585 F.3d 182, 184 (4th Cir. 2009)).

1.

The district court did not clearly err in finding that no one else accessed the

“nechris” account and impersonated Kuehner. Indeed, the Government presented

substantial evidence showing that, at the time of the conduct in question, Kuehner

controlled the “nechris” account.

Kuehner’s own admissions to federal law enforcement agents established that his

username on the Website was “nechris.” The three minor victims identified Kuehner in

open court and testified that “nechris” told them his name and, in some instances, shared

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other specific details about his life that pertained to his family, location, and age. He even

shared photos of himself. All of these details described Kuehner accurately.

The forensic evidence presented at trial also overwhelmingly supported a

conclusion that Kuehner was “nechris”: The IP addresses, computer files, browser history,

and shortcut files all indicate that Kuehner accessed child sexual abuse material on the

Website and used the username “nechris.” Further strengthening this conclusion is Director

Fottrell’s testimony on how unlikely it was for anyone else to have accessed the “nechris”

account and Kuehner’s failure to identify any forensic evidence of anyone else logging in

under this username. The most reasonable inference, based on the evidence in the light

most favorable to the Government, is that Kuehner operated the “nechris” account.

2.

Kuehner’s final argument is that, even if there is sufficient evidence that there had

been a “tacit agreement” among Kuehner and others to produce or attempt to produce child

sexual abuse material, that is only evidence of a conspiracy to commit those offenses, and

not evidence of a violation of the child exploitation enterprises statute. The Supreme Court

has recognized, however, that “the plain meaning of the phrase ‘in concert’ signifies mutual

agreement in a common plan or enterprise” and requires proof of a conspiracy. Rutledge v.

United States, 517 U.S. 292, 300 (1996). There is no reason why this meaning does not

apply equally to the child exploitation enterprises statute. See DeFoggi, 839 F.3d at 710;

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Grovo, 826 F.3d at 1214; Daniels, 653 F.3d at 413; United States v. Wayerski, 624 F.3d

1342, 1351 (11th Cir. 2010).

The Government need only produce evidence showing that Kuehner entered into

“an agreement with three or more other persons to commit the series of predicate felonies.”

Grovo, 826 F.3d at 1214. An agreement need not be explicit. This court has established

that an “agreement may be inferred from the facts and circumstances of the case,” and “a

tacit or mutual understanding among or between the parties will suffice.” United States v.

Baker, 985 F.2d 1248, 1255 (4th Cir. 1993) (first quote); United States v. Depew, 932 F.2d

324, 326 (4th Cir. 1991) (second quote). There was sufficient evidence to conclude that

Kuehner had tacitly agreed with other Website users to produce or attempt to produce child

sexual abuse material and entice or attempt to entice minor victims to engage in unlawful

sexual conduct. See Grovo, 826 F.3d at 1216.

The Government also produced evidence sufficient to show that Kuehner acted “in

concert” with at least three other people, and the district court did not err in relying on

evidence from the Website’s public chat, including Kuehner’s comments and likes in the

public chat. Taking the view most favorable to the Government, a reasonable factfinder

could conclude beyond a reasonable doubt that Kuehner produced and attempted to

produce child sexual abuse material and enticed or attempted to entice minor victims to

engage in unlawful sexual conduct with the approval and support of other confirmed

Website users. See id. at 1216. Kuehner repeatedly encouraged minor victims to post and

share child sexual abuse material because users on the Website wanted to see that material.

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Taken together, the Government presented substantial evidence that Kuehner

committed the predicate felonies in concert with three or more people.

C.

Brady Violation

Finally, Kuehner maintains that the Government violated Brady v. Maryland by

failing to disclose information it received from Google and Discord about various accounts.

Kuehner also contends that the district court erred in denying his motion to vacate his

conviction or, in the alternative, to order a new trial. In Brady, the Supreme Court held that

the prosecution’s withholding of evidence that was favorable to a defendant and material

to guilt or punishment violated the defendant’s due process rights. 373 U.S. at 87.

The court reviews a district court’s denial of a motion for a new trial under the abuse

of discretion standard. See United States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001). We

review the district court’s legal conclusions in a Brady ruling de novo and its factual

findings under the clear error standard. United States v. King, 628 F.3d 693, 702 (4th Cir.

2011).

To establish a Brady violation, Kuehner must show: “(1) that the undisclosed

information was favorable, either because it was exculpatory or because it was impeaching;

(2) that the information was material; and (3) that the prosecution knew about the evidence

and failed to disclose it.” United States v. Parker, 790 F.3d 550, 558 (4th Cir. 2015).

“Evidence is ‘exculpatory’ and ‘favorable’ if it ‘may make the difference between

conviction and acquittal’ had it been ‘disclosed and used effectively.’” United States v.

Wilson, 624 F.3d 640, 661 (4th Cir. 2010) (quoting United States v. Bagley, 473 U.S. 667,

676 (1985)). Evidence is material if “there is a reasonable probability that, had the evidence

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been disclosed to the defense, the result of the proceeding would have been different.”

Bagley, 473 U.S. at 682. A “‘reasonable probability’ is a probability sufficient to

undermine confidence in the outcome.” Id. It is undisputed that the Government had in its

possession information from Google and Discord and failed to disclose it. Kuehner does

not argue that this information was impeaching. He contends that the information was both

exculpatory and material. Even assuming the information was exculpatory, the information

from neither Google nor Discord is material.

Relevant here, the Government issued subpoenas to Google to produce information

about the mc3996250@gmail.com email account and Discord to produce information

about the “Nekryz#9079” account. The information received from Google showed that

mc3996250@gmail.com had been created on October 6, 2020, and was registered to a

“John McJanal.”

According to Kuehner, the information received by the Government from Google

showed that someone other than him created and used mc3996250@gmail.com and posted

as “nechris” on the Website after October 6, 2020. Yet Kuehner fails to explain how that

is material when most of the offending conduct took place prior to October 6, 2020.

Kuehner also offers no convincing response to the forensic evidence connecting him to

mc3996250@gmail.com, including evidence that this email was accessed from a tablet

recovered from Kuehner’s home and created at the request of a user with an IP address

from the area in which Kuehner lived.

Kuehner’s contentions regarding the information received from Discord are equally

unavailing. Discord was “unable to locate a user” by the username of “Nekryz#9079” and

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had “no information” on this account. J.A. 488. The Government posits that this was due

to Discord’s retention policy. At that time, Discord deleted a user’s information from its

back-up systems after 45 days. Even if the information from Discord had been disclosed,

it was not material to Kuehner’s claim that he had been impersonated. The evidence in the

record still tied Kuehner to this Discord account. Director Fottrell testified that “nechris”

invited a minor Website user to join him on Discord under the name “Nekyrz#9079.” There

was an overwhelming amount of evidence against Kuehner notwithstanding the

information from Discord about the “Nekryz#9079” account. Kuehner has not

demonstrated a reasonable probability that the information produced by Discord would

have made the difference between conviction and acquittal. See Bagley, 473 U.S. at 682;

J.A. 514–15.

We find no Brady violation. The district court did not abuse its discretion in denying

Kuehner’s motion to vacate his conviction, or, in the alternative, for a new trial.

III.

Conclusion

We hold that the total number of people required for the “in concert with” element

may be summed across the series of predicate offenses under the child exploitation

enterprises statute. We also hold that there was sufficient evidence to convict Kuehner of

engaging in a child exploitation enterprise, and that the Government did not commit a

Brady violation.

The district court’s judgment is therefore

AFFIRMED.

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FILED: January 16, 2025

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________________

No. 23-4339

(1:22-cr-00120-LMB-4)

___________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

CHRISTOPHER WILLIAM KUEHNER, a/k/a nechris, a/k/a William Christopher

Kuehner

Defendant - Appellant

___________________

JUDGMENT

___________________

In accordance with the decision of this court, the judgment of the district

court is affirmed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

/s/ NWAMAKA ANOWI, CLERK

21a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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