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.
12
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.”
13
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:
16
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
19
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
22
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,”)
1
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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
25
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.
2
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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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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.