United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1964
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Ray Leon Huether, *
*
Defendant-Appellant. *
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Submitted: December 16, 2011
Filed: March 9, 2012
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Before LOKEN, BRIGHT, and SHEPHERD, Circuit Judges.
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BRIGHT, Circuit Judge.
Ray Leon Huether was convicted by a jury and sentenced to 240 months’ (20
years’) imprisonment for receipt of materials involving the sexual exploitation of
minors in violation of 18 U.S.C. § 2252(a)(2) and 2252(b)(1), and 120 months’ (10
years’) imprisonment for possession of materials involving the sexual exploitation of
minors in violation of 18 U.S.C. § 2252(a)(4)(B) and 2252(b)(2), both sentences to
run consecutive to each other and to his 30-year state court sentence.1 Before trial,
1
Huether was charged in the District Court of Ward County, Minot, North
Dakota, with gross sexual imposition and possession of child pornography. The jury
found Huether guilty of gross sexual imposition and the court sentenced him to 40
Huether filed a motion to suppress statements made during a search of his Fargo
residence. Huether now appeals the district court’s2 denial of his motion to suppress
and its judgment entered against him. In his appeal, Huether contends the district
court: (1) erred by entering convictions on both a greater offense and a lesser
included offense contrary to the Double Jeopardy Clause, (2) committed plain error
by admitting testimony contrary to the Confrontation Clause, (3) erred by allowing
a police officer to give testimony that usurped the jury’s function, and (4) erred by
failing to suppress un-Mirandized statements. We affirm in part, reverse in part, and
remand.
I. BACKGROUND
After receiving a complaint from Huether’s then-girlfriend (hereinafter “CT”)
alleging her daughter had been sexually abused by Huether, the Minot Police
Department executed a search of Huether’s residence. At the time of the search,
Huether had moved to Fargo, but still retained ownership of the Minot residence,
often returning on the weekends. In the search, police seized various computer
equipment and optical computer discs. An examination of the equipment and
computer discs revealed child pornography stored in about 90 hours of video, and 257
images, 50 of which appeared to be duplicates.
After the Minot search, six law enforcement officers, including Sergeant David
Goodman of the Minot Police Department and officials from the Fargo Police
years’ imprisonment, with 10 years suspended. The state dismissed the child
pornography charges. At the time of sentencing, Huether, age 43, would likely be
imprisoned for the rest of his life. He does not challenge the federal sentences as
excessive, but only challenges them as to an alleged violation of double jeopardy,
discussed infra at page 12.
2
The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.
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Department and the North Dakota Bureau of Criminal Investigation (“NDBCI”),
executed a search warrant at the Fargo residence Huether shared with his girlfriend.
The officers arrived at the Fargo residence at 7:45 a.m. on August 8, 2008. Upon
finding Huether in bed, Goodman informed Huether that the officers were there to
look for pictures and video of CT’s daughter, and that he was not under arrest or in
custody. Huether signed the warrant, consenting to a search of the residence. Officer
Goodman then asked Huether if he would answer some questions, and again told him
he was not under arrest or in custody. According to Officer Goodman’s written
police report, he also told Huether that he was free to leave; although Huether later
testified at his state court trial that he did not remember being told he was free to
leave. About thirty minutes into the interview, one of the other officers entered the
room, at which time Officer Goodman began recording the interview. Huether was
not restrained during the interview; although he testified that Officer Goodman was
blocking the bedroom door, the room’s only exit.
The interview lasted approximately two hours, during which time Huether
made incriminating statements about his sexual abuse of C.T.’s child, and in addition,
about the child pornography discovered during the Minot search. About ninety
minutes into the interview, Officer Goodman stated to Huether, “we’ve got two
officers from the Minot Police Department, two from the Fargo Police Department,
and two from [NDBCI]. One of the officers from the [NDBCI] is . . . is ou[r]
computer forensic specialist. So he’s here to assist with the computer part of it.”
Officer Goodman arrested Huether after the interview and the search concluded.
Huether was not given Miranda warnings prior to, or at any point during, his
interview with Officer Goodman.
Thereafter, a federal grand jury charged Huether with receipt of materials
involving the sexual exploitation of a minor, in violation of 18 U.S.C. § 2252(a)(2)
and 2252(b)(1) (“Count One”), and possession of materials involving the sexual
exploitation of a minor, in violation of 18 U.S.C. § 2252(a)(4)(B) and 2252(b)(2)
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(“Count Two”). Before trial, Huether filed a motion to suppress all of his statements
from the Fargo search. The district court denied Huether’s motion.
At trial, the government presented testimony from Special Agents Timothy
Erickson, an NDBCI computer forensic specialist, and Randy Helderop with
Homeland Security Investigations. Agent Erickson had ten years of experience
working under NDBCI’s Internet Crimes Against Children Task Force (ICACTF) and
was present at both the Minot and Fargo searches. He conducted a forensic
examination of the hard drives and compact discs seized during the Minot search.
Using the NDBCI’s file server, he analyzed the files to determine known and
unknown child victims of sexual exploitation. He then sent the files to the National
Center for Missing and Exploited Children (NCMEC), as mandated by NDBCI.
Agent Helderop was responsible for determining whether the charged offenses had
an interstate nexus and testified that the labels affixed to the hard drives showed they
were manufactured abroad.
As previously stated, the jury found Huether guilty on both counts and the
district court sentenced Huether to 240 months’ (20 years’) imprisonment for Count
One and 120 months’ (10 years’) imprisonment for Count Two, both sentences to run
consecutive to each other and to his 30-year state court sentence. Huether now
appeals the district court’s denial of his motion to suppress and the judgment entered
against him.
II. DISCUSSION
A. Miranda
Huether contends the district court erred in denying his motion to suppress the
recorded statements made during the Fargo search. When reviewing the denial of a
motion to suppress, we review “the district court’s factual findings for clear error and
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its conclusions of law de novo.” United States v. Muhlenbruch, 634 F.3d 987, 995
(8th Cir. 2011).
The Fifth Amendment dictates that Miranda warnings be given when
“interrogation is ‘initiated by law enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of action in any significant way.’”
Id. (quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)) (citation omitted). To
determine whether a defendant was in custody for Miranda purposes, a court looks
to the totality of the circumstances confronting the defendant at the time of the
interview, and asks “whether a reasonable person in his position would consider his
freedom of movement restricted to the degree associated with formal arrest.” United
States v. Flores-Sandoval, 474 F.3d 1142, 1146 (8th Cir. 2007) (quotation omitted).
The inquiry is an objective one, without consideration of the participants’ subjective
views. Id. (quotation omitted). The following non-exclusive factors inform the
custody inquiry:
(1) whether the suspect was informed that he was free to leave and
that answering was voluntary;
(2) whether the suspect possessed freedom of movement;
(3) whether the suspect initiated contact or voluntarily acquiesced;
(4) whether strong arm tactics or strategies were employed;
(5) whether the atmosphere was police dominated; or,
(6) whether the suspect was placed under arrest at the end of
questioning.
Muhlenbruch, 634 F.3d at 996. “The first three . . . factors which, if present, mitigate
against the existence of custody . . . the last three . . . are aggravating factors which,
if present, aggravate the existence of custody.” United States v. Axsom, 289 F.3d
496, 500-01 (8th Cir. 2002).
The record establishes that the first, third and sixth factors were present.
Officer Goodman advised Huether, at least twice, that he was not under arrest or in
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custody. It is undisputed that when Officer Goodman and the other officers initiated
contact with Huether, he did not ask to leave, refuse to answer, or request anything
during the interview, despite being told that he was not under arrest or in custody.
Indeed, Officer Goodman did not decide to arrest Huether until after the interview.
The record shows Huether freely answering Officer Goodman’s questions
regarding the allegations of child sexual abuse, and receipt and possession of child
pornography. In fact, Huether became more responsive in answering Officer
Goodman’s questions as the interview progressed. He also cooperated with the
officers in providing access to his laptop.
Huether claims Officer Goodman made a verbal showing of force–telling
Huether about the officers participating in the search, including a computer forensic
specialist. Huether claims that the interview then became custodial, in violation of
his Fifth Amendment rights. However, when Huether signed the search warrant,
which listed the officers’ names, he became aware of the number of officers present.
Huether also has prior experience with law enforcement—he was arrested after being
questioned by law enforcement in Montana. At a minimum, these factors show that
Huether is no stranger to being interviewed by law enforcement and that he
voluntarily chose to be cooperative.
Further, this court’s recent decision in Unites States v. Perrin, 659 F.3d 718
(8th Cir. 2011), indicates that more than what is in the record here reviewed is
required for a determination that Huether was in custody for Miranda purposes. A
federal officer, one of at least six in tactical gear who entered the house with a search
warrant for child pornography, interviewed Perrin in his bedroom. Id. at 720. Before
taking Perrin to the bedroom, the officer told Perrin he was free to leave and that he
did not have to answer any questions, to which Perrin indicated that he understood.
Id. The officer nearly closed the bedroom door, leaving it slightly open, enabling
another officer to enter the bedroom to conduct a search during the interview. Id. No
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officers restrained Perrin or positioned themselves so as to inhibit his exit. Id. at 721.
Like Officer Goodman, the officer there did not raise his voice or threaten Perrin; and
like Perrin, Huether had no trouble “understanding or answering questions about
internet use and child pornography.” Id. at 720. The circumstances were such that
Perrin would have considered himself free not to answer the officer’s questions and
leave the premises, and therefore not in custody when he confessed to possessing
child pornography. Id. at 721.
Perrin reiterates that this court has held “circumstances more dominated by
police were not custodial.” Id. (citing United States v. Czichray, 378 F.3d 822, 825,
830 (8th Cir. 2004) (holding that a chiropractor was not in custody for Miranda
purposes despite an “ensuing interview[] which lasted nearly seven hours”); United
States v. LeBrun, 363 F.3d 715, 721 (8th Cir. 2004) (holding that defendant was not
in custody when he gave inculpatory statements in a windowless room with enlarged
photographs on the wall as a deceptive interview tactic and where the officers “falsely
trumped up the evidence they said they possessed.”).
We affirm the district court’s judgment. The record here supports the district
court’s decision declining to suppress the evidence. Moreover, the record shows that
Huether, without hesitation, answered the questions relating to the materials in his
computer.
B. Confrontation Clause
Huether contends the district court erred in admitting testimony from Agent
Erickson, which repeated the conclusions of a report prepared by those at NCMEC,
and testimony from Agent Helderop concerning the hard drives’ and compact discs’
origin. Huether did not raise this issue in the district court; accordingly, we review
the district court’s ruling for plain error. United States v. Olano, 507 U.S. 725, 736
(1993). To establish plain error, Huether must show an error that is plain and that
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affects his substantial rights. United States v. Mireles, 617 F.3d 1009, 1012 (8th Cir.
2010). But even where plain error is found, Huether will not automatically prevail
as we will remedy the error only if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Robertson, 606 F.3d 943, 50
(8th Cir. 2010) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
Huether’s Confrontation Clause arguments rely mainly on Bullcoming v. New
Mexico, 131 S. Ct. 2705, 2716 (2011) (holding defendant had right to confront
analyst who certified blood-alcohol report) and Melendez-Diaz v. Massachusetts, 129
S. Ct. 2527, 2532 (2009) (holding forensic laboratory expert’s statement that
substance was cocaine is testimonial for Sixth Amendment Confrontation Clause
purposes). According to Huether, Agents Erickson’s and Helderop’s testimony
improperly allowed the government to prove the jurisdictional element of Counts One
and Two—that the images were of individuals from outside North Dakota and
transported to North Dakota via the internet, and that the hard drives and compact
discs were manufactured outside North Dakota—by repeating conclusions of non-
testifying persons. Huether’s reliance is misplaced.
Bullcoming established that an out-of-court statement “may not be introduced
against the accused at trial unless the witness who made the statement is unavailable
and the accused has had a prior opportunity to confront that witness.” 131 S. Ct. at
2713. That case did not address expert testimony based on independent knowledge
of the evidence, as is the case here. Evidence of the images’ origin came from Agent
Erickson’s testimony based on his training, ten years of experience, and use of
NDBCI’s file server to identify the images. The files were then sent to NCMEC as
mandated by NDBCI. The NCMEC report was not offered as evidence at trial and
not necessary to prove the jurisdictional element of the offense. But see Melendez-
Diaz, 129 S. Ct. at 2540 (affidavits were “prepared specifically for use at petitioner’s
trial.”)
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Agent Helderop testified that the labels affixed to the hard drives showed they
were manufactured outside the United States. He also testified to a conversation with
personnel at Maxell, the CDs’ distributor, in completing his analysis of the materials.
But an examination of the labels alone showed the interstate transportation of the hard
drives. Thus, this evidence undermines Huether’s contention that Agent Helderop’s
testimony violated the Confrontation Clause. See United States v. Koch, 625 F.3d
470, 480 (8th Cir. 2010) (holding that district court did not abuse its discretion in
admitting testimony that defendant’s computer and flash drive were labeled as having
been manufactured abroad to prove interstate commerce element).
Therefore, the district court did not err in admitting Agents Erickson’s and
Helderop’s testimony.
C. Expert Testimony
Huether also contends the district court violated Fed. R. Evid. 702 and 704
when it permitted Agent Erickson to testify that he believed Huether put the child
pornography on the hard drives. Huether argues the testimony also improperly
vouched for CT’s credibility while embracing an ultimate issue. “We review the
evidentiary rulings of a district court only for abuses of discretion, and will reverse
only when an improper evidentiary ruling affects the substantial rights of the
defendant . . . .” United States v. Yarrington, 634 F.3d 440, 447 (8th Cir. 2011)
(quotation omitted). “We will not reverse if the error was harmless.” Id. (quotation
omitted).
FED. R. EVID. 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise if:
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(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to
the facts of the case.
FED. R. EVID. 702.
“In a criminal case, an expert witness must not state an opinion about whether
the defendant did or did not have a mental state or condition that constitutes an
element of the crime charged or of a defense . . . .” FED. R. EVID. 704. But generally,
“[a]n opinion is not objectionable just because it embraces an ultimate issue.” Id. To
determine whether Huether received the images via interstate commerce, the jury had
to accept that file features found on the computers seized from the Minot search and
on Huether’s laptop in Fargo matched those on the internet. Because knowledge of
computers and internet use differ widely among lay jurors, Agent Erickson’s
testimony appropriately helped better understand the evidence. See United States v.
Davis, 457 F.3d 817, 824 (8th Cir 2006) (“Expert testimony is appropriate when it
relates to issues that are beyond the ken of people of ordinary intelligence.”) His
testimony assisted the jury in processing information relating to whether Huether
downloaded and saved the images and videos to his hard drives.
Further, it is undisputed that Agent Erickson had specialized knowledge based
on his ten years of experience working as a member or coordinator for the ICACTF.
He knew Huether had access to computers in Minot and Fargo at all relevant times,
and that Huether admitted to moving the downloaded images to folders and hard
drives. He participated in the investigation and was present during both the Minot
and Fargo searches. He personally performed computer analysis on Huether’s
computers and equipment seized at both residences.
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The district court instructed the jury on how to consider expert testimony and
how to draw inferences. It further instructed that the jury alone could determine
whether the images of child pornography had been received over the internet. And
like testimony from other witnesses, the jury—as trier of fact—was free to reject
Agent Erickson’s opinion.
Huether would also have us interpret Agent Erickson’s testimony as bolstering
CT’s testimony that no one else came to the Minot residence after Huether moved out,
and therefore no one else could have placed the images on the hard drives. When
asked whether he had an opinion about who may have put the images on the CDs,
Agent Erickson responded, “Yes.” Over Huether’s objection, the district court
permitted Agent Erickson to testify, “[b]ased on the detailed file structure and the way
that they were consistent among all the computers that we discovered child porn . .
. the only person that was at both residences was Ray Huether.” Contrary to
Huether’s contention, “[t]he use of opinions is not abolished by . . . rule [702],
however. It will continue to be permissible for . . . experts to take the further step of
suggesting the inference which should be drawn from applying the specialized
knowledge to the facts.” FED. R. EVID. 702 advisory comm. notes, 1972 Proposed
Rules; see also FED. R. EVID. 703 and 705.
Even if we agree with Huether that allowing this statement into evidence
invades the jury’s province as the trier of fact, the error is a harmless one. The jury
received evidence in the form of Huether’s own statements during Officer Goodman’s
interview with Huether that he moved the images from one folder to another in the
hard drives and later put them on compact discs. Therefore, the district court did not
abuse its discretion in admitting this questioned evidence and we will not reverse its
ruling on this issue.
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D. Double Jeopardy Clause
Finally, Huether contends that his convictions and separate sentences for both
receipt and possession violate the Fifth Amendment’s Double Jeopardy Clause.
Because Huether did not raise a double jeopardy defense in the district court, we
review his claim for plain error. FED. R. CRIM. P. 52(b); United States v. Sickinger,
179 F.3d 1091, 1092-93 (8th Cir. 1999).
To prevail under a double jeopardy claim, Huether must first show that he was
convicted of “two offenses that are in law and fact the same.” United States v.
Muhlenbruch, 634 F.3d at 1002 (finding defendant’s receipt and possession
convictions were based on the same conduct, such that the district court’s error in
entering judgment against him on both counts was plain, and the error affected his
substantial rights) (quotation omitted). The parties do not dispute that a §
2252(a)(4)(B) possession offense is a lesser included offense to the § 2252(a)(2)
receipt offense under the law. See id. The issue then is whether Huether’s
convictions were based on the same facts.
While the government is not prohibited from charging Huether with both a
greater and lesser offense, the jury must be instructed that they cannot convict him for
both offenses based on the same facts. United States v. Dixon, 507 F.2d 683, 684
(8th Cir. 1974). They must be tasked with separating the evidence in considering the
counts separately, and instructed that they may not convict Huether of both counts
based on overlapping evidence. See id. Such an instruction should not be hidden
from the jury.
Relevant to our inquiry are jury instructions F-3, F-4, and F-5. Jury instruction
F-3 reads, in relevant part:
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Each alleged offense, and the evidence pertaining to it, must be
considered separately. The fact that you may find the Defendant not
guilty or guilty as to one of the offenses charged should not control your
verdict as to the other offense charged. You must base your verdict on
each count solely on the evidence presented relevant to that count.
Jury instructions F-4 and F-5 go on to set forth the elements of receipt and
possession, respectively, with the only distinction being use of the word “receipt” or
“possession.”
The district court did not instruct the jury that they may not convict Huether of
both receipt and possession based on the same facts. At most, jury instruction F-3
directed the jury to consider Count One and Count Two separately. Without more,
the jury could have very well convicted Huether of receiving the same images that he
was also found to have possessed.
The evidence also did not specify which images Huether was charged with
receiving and which he was charged with possessing. During trial, the government
spoke of Huether’s conduct collectively, making no distinction as to which images
he was found to have received or possessed; leaving that task for the jury to perform.
Similarly, the indictment states that “[f]rom an unknown time until about August
2008,” Huether knowingly received (Count One) or possessed (Count Two) “visual
depictions involv[ing] the use of minors engaging in sexually explicit conduct.”
Indeed, the language set forth under Counts One and Two charged Huether with
receiving and possessing child pornographic images during the same time period,
namely sometime until August of 2008, without reference to distinct acts of receipt
or possession on different dates or at different times. Thus, failure to properly
instruct the jury was plain error. See Muhlenbruch, 634 F.3d at 1004.
Huether’s sentences run consecutive to his 30-year state court sentence. Thus,
the error substantially affects his rights under the Fifth Amendment. Simply put,
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Huether received a longer prison term than he would have without the error. See id.
at 1004. We therefore determine it proper to have the district court vacate one of
Huether’s convictions.
III. CONCLUSION
We affirm in part, reverse in part, and remand with instruction for the district
court to vacate one of Huether’s convictions and the sentence imposed thereon.
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