United States v. Hinkel , 837 F.3d 111 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1672
UNITED STATES OF AMERICA,
Appellee,
v.
PAUL R. HINKEL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Thompson, Selya, and Kayatta,
Circuit Judges.
Christine DeMaso, Assistant Federal Public Defender, Federal
Public Defender Office, District of Massachusetts, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
September 20, 2016
KAYATTA, Circuit Judge. After being ensnared by a law
enforcement sting operation, Paul Hinkel was charged with using a
means of interstate commerce (the internet) to entice a minor to
engage in illegal sexual activity in violation of 18 U.S.C.
§ 2422(b). He was convicted following a jury trial and sentenced
to ten years' imprisonment, to be followed by five years'
supervised release. On appeal, he claims that a variety of alleged
errors undermined the integrity of the jury's verdict and the
appropriateness of his sentence. After careful review, we affirm
both Hinkel's conviction and the bulk of the sentence imposed by
the district court, finding cause to alter only two conditions of
Hinkel's supervised release.
I. Background
At trial, the government relied chiefly on evidence of
electronic messages exchanged between Hinkel and government agents
posing as a fifteen-year-old girl and her mother. Because Hinkel's
challenge trains partly on the sufficiency of the government's
evidence, we summarize this back-and-forth in considerable detail,
vulgar and lewd as it is.
On February 14, 2014, an agent with the Department of
Homeland Security placed a personal advertisement on the "Casual
Encounters" online message board, a subsection of the website
Craigslist frequented by those seeking adult sex partners. Using
the name "Lisa Richards," the agent published a post entitled "mom
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with daughter looking--w4m--38 (Boston)."1 In its entirety, the
post stated: "open minded mom DDF with daughter looking for male
that might be interested in taboo relationship, some dom.........
needs to be discreete though. if you have an interest in a
interesting relationship contact me, use intersting in subject
line. we will chat off CL."2
At 12:54 pm that day, Craigslist user "ctautumn," later
identified as Hinkel, responded to the advertisement via email
using the subject line "VERY INTERESTING AND INTRIGUING." Hinkel
told "Lisa" that he was "an experienced Daddy/Dom and [he] ha[d]
been looking for this type of scenario." He then listed some of
his "taste[s]" and provided graphic descriptions of sexual acts
that he imagined engaging in with "Lisa" and her daughter. Forty-
five minutes later, the agent responded, writing that "she" was
"trying to introduce [her] daughter to sex" and asking if Hinkel
"mind[ed] if shes young?" Prompted by Hinkel's responsive request
for her daughter's age, "Lisa" informed Hinkel that her daughter
"Samantha" was "15 but experienced."
1
According to trial testimony, the use of "w4m" signified
that the poster was a "w[oman]" seeking a "m[an]." Throughout
this opinion, we reproduce the text of Hinkel and the agents'
communications warts and all, with minimal editorial revisions for
clarity.
2
Testimony reflected that in the parlance of these online
postings, "DDF" meant "drug and disease free," "dom" meant
"dominate," and "CL" meant "Craigslist."
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Seven minutes later, at 2:05 pm, Hinkel responded:
"Sounds very naughty! I am concerned about her age since legally
she should be 16 or older."3 He asked whether "Lisa's" daughter
had "played in this type of scene before" and whether "Mommy and
daughter play together as well," stating that he found "that kind
of play so very erotic," and that it was a "big turn on for [him]."
In response, at 2:10 pm, "Lisa" wrote, "shes not [16 or older] so
i guess this conversation is over." But Hinkel insisted otherwise,
replying, one minute later, to say, "Nope..... It is not over! I
want to talk more! I'm very intrigued by it all. Such taboo and
naughty play!!!!"
Over the course of roughly the next month, Hinkel
corresponded frequently and in lurid detail with "Lisa" and her
fictitious daughter "Samantha." In subsequent emails, "Lisa" told
Hinkel that she was looking for a man to "teach[] her [daughter]"
and that she wanted "Samantha" "to experience sex with a man the
right way." Hinkel frequently expressed eagerness to perform this
role, describing his own sexual desires in detail. From time to
time, though, he also expressed what he called "conflicting
3
Hinkel was correct about this as a matter of Massachusetts
law, see Mass. Gen. Laws ch. 265, § 23; ch. 277, § 39, meaning
that he would not have been guilty of the crime of conviction had
he simply responded by stating his intention to wait until
"Samantha" turned sixteen to engage in the sexual conduct.
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feelings" regarding the criminal conduct he was preparing to engage
in. At one point Hinkel told "Lisa":
I once placed an ad looking for this very type
of scenario, but to be honest the ad stated
that the daughter was to be of legal age. I
was taken back a bit when you said she wasn't.
The last thing I want to do to any girl is
damage her emotionally. I'm very caring. As
long as she is desires this, I am game.
On another occasion, Hinkel wrote "Lisa" that when he
arrived to meet "Samantha" he would "play it by ear and gauge it
based on Samantha's feelings and comfort level," saying that he
was "nervous . . . [to] be with such a young girl" and "sooooooooo
very concerned about her and how she will feel." "Lisa" reassured
Hinkel, saying "i think you will love her...and i appreciate the
way you describe our situation :)," telling him that the planned
encounter would be "such an amazing experience for us to have
together."
Hinkel and "Lisa" formed plans to stage their encounter
with "Samantha" at "Lisa's home" in Watertown, Massachusetts, on
March 19, 2014. A week before, Hinkel exchanged emails directly
with "Samantha." Referring to her as "sweetheart," Hinkel promised
to make the experience "fun and enjoyable" for this fifteen-year-
old girl. When "Samantha" said that she liked it when she
"rub[bed] herself," Hinkel asked if she would like him to "touch
[her] there as well." In one of his final messages to "Lisa,"
Hinkel asked whether "Samantha" knew she could never tell anyone
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about their planned encounter because, in his words, "you and I
can get into a lot of trouble. Even years later."
On the appointed day, Hinkel arrived at the Watertown
residence where he was greeted by arresting officers. He consented
to a search of the bag he was carrying and of a lockbox in his
vehicle. These searches--and later searches of his home and work
computers--yielded evidence, ultimately introduced at trial, that
we will discuss in greater detail later in this opinion.
II. Analysis
A. Entrapment
Hinkel does not contest that he was the author of the
"ctautumn" emails and text messages sent to the government agents.
His chief defense at trial was entrapment.
The defense of entrapment "exists to prevent 'abuse[]'
of the 'processes of detection and enforcement . . . by government
officials' who might instigate an illegal 'act on the part of
persons otherwise innocent in order to lure them to its commission
and to punish them.'" United States v. Díaz-Maldonado, 727 F.3d
130, 137 (1st Cir. 2013) (alterations in original) (quoting
Sorrells v. United States, 287 U.S. 435, 448 (1932)). When the
defense is properly raised, we apply a two-part test. First, we
look at the government's conduct to see if it is of the type that
would cause a person not otherwise predisposed to commit a crime
to do so. See id. Examples of such "government overreaching"
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include "excessive pressure by the government upon the defendant
or the government's taking advantage of an alternative, non-
criminal type of motive." United States v. Gendron, 18 F.3d 955,
961–62 (1st Cir. 1994). If the government does employ "methods of
persuasion or inducement that create a substantial risk
that . . . an offense will be committed by persons other than those
who are ready to commit it," Model Penal Code § 2.13(1)(b), "we
proceed to a second step and look at the particular person to see
if that person was in any event predisposed to commit the crime,"
Díaz-Maldonado, 727 F.3d at 137; accord Gendron, 18 F.3d at 962-63.
In seeking an entrapment jury instruction, a defendant
must first shoulder the "modest" burden of making a prima facie
showing that there is some evidence both elements are satisfied in
his or her case. United States v. Vasco, 564 F.3d 12, 18 (1st
Cir. 2009). If this "'entry-level burden' of production," Díaz-
Maldonado, 727 F.3d at 139 (quoting United States v. Coady, 809
F.2d 119, 122 (1st Cir. 1987)), is satisfied--as it clearly was in
this case, see, e.g., United States v. Gamache, 156 F.3d 1, 9–11
(1st Cir. 1998)--then the defendant is entitled to a jury
instruction explaining the defense. In addition,
the burden shifts to the government to prove
beyond a reasonable doubt one of two things,
either of which defeats the defense: that the
government did not wrongfully induce the
accused to engage in criminal conduct or that
the accused had a predisposition to engage in
such conduct absent the inducement.
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United States v. DePierre, 599 F.3d 25, 27 (1st Cir. 2010).
The district court instructed the jury on the parameters
of the entrapment defense using the pattern jury instructions
commonly used by district courts in this circuit, declining to
give a lengthier instruction requested by Hinkel. The court also
denied Hinkel's motion for judgment of acquittal premised on the
government's failure to offer evidence sufficient to remove the
inference of entrapment from the proceedings. See Fed. R. Crim.
P. 29. Hinkel challenges both of these unfavorable decisions on
appeal.
1. Sufficiency of the Evidence
Hinkel put a credible entrapment case to the jury by
arguing that the government's bundling of licit and illicit sex
into a package deal led him to go where he never would have gone
but for the government's clever and sophisticated inducement. The
government went to lengths to create a dressed-up window of
opportunity for the crime to be committed and, on numerous
occasions, downplayed the harm that could be expected to flow from
the commission of the crime by describing how "amazing" the
encounter would be, how "excited" "Samantha" was, and how "Lisa"
"appreciate[d]" how "honest and caring" Hinkel had been in his
messages. As in virtually any sting operation, the fictitious co-
conspirator here also sought to allay concerns about detection by
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the authorities and to build credibility with the target of the
investigation through frequent, familiar communication that
undoubtedly took the "edge" off of the reprehensible conduct under
contemplation. As for predisposition, Hinkel points out that he
had never previously been convicted of a crime, had raised two
adult children and had not been accused of having an inappropriate
relationship with either of them, and that the government had not
uncovered any evidence suggesting that he had other underage
victims.
The jury, though, was not buying Hinkel's view of the
evidence. So the question for the district court, and now us, is
whether the evidence of both wrongful inducement and lack of
predisposition was so one-sided that a reasonable jury could not
have found beyond a reasonable doubt that the government carried
its burden of negating the entrapment defense. This question of
evidentiary sufficiency is a question of law that we consider de
novo. United States v. Prieto, 812 F.3d 6, 13 (1st Cir. 2016).
We resolve that question in the government's favor.
Crucially, the government informed Hinkel at the very outset of
the exchanges--before rolling out the force of its enticements--
that the daughter was only fifteen years old. Promptly thereafter
(only about an hour and fifteen minutes after Hinkel first
responded to the advertisement, and just six emails into the
exchange), the agents pointblank offered him an unambiguous
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opportunity to walk away. The precise words exchanged merit
attention. When told the girl's age Hinkel voiced no firm
objection. Rather, he expressed "concern," and then asked for
more information about her experience. A government agent intent
on inducement might well have simply responded by answering the
question with assurances about her experience. Instead, the agent
treated the expression of concern as a likely objection, and
volunteered that the "conversation [was] over," thereby giving
Hinkel an easy out before he crossed the threshold that led to the
subsequent enticement and assurances that could otherwise be seen
as creating a disposition where none previously existed. Equally
importantly, upon learning the daughter's age and recognizing the
illegal nature of the proposed relationship, Hinkel explained his
refusal to walk away by citing the "taboo" nature of the proposal
as that which made it attractive to him: "I'm very intrigued by
it all. Such taboo and naughty play!!!!"
Hinkel did thereafter make statements that implied some
residual conflict concerning the illegality of the proposal, but
never because he viewed the command of the law as indicative of
what is right and wrong. Rather, his concern about the illegality
of the proposed conduct was one that was assuaged by arrangements
to minimize detection (i.e., confirming that "Samantha" was told
to keep their activities secret). In this respect, he was like a
putative bank robber who hesitated only to make sure that the
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bank's security system was down. He also made clear his position
that he would do nothing that, in his judgment, harmed "Samantha."
But, of course, that is a judgment that the law does not allow him
to make, anymore than it allows a person to kill only those thought
to deserve death. In this respect, Hinkel's self-serving arrogance
in relying on his own version of right versus wrong reasonably
might be seen as an ingredient in his predisposition to commit the
crime.
In any event, the important point is that Hinkel was
offered and declined a clear exit at the outset. Hinkel was not
a person who entered a nightclub only to find out several hours
later that it was a bordello. Rather, he was more like the person
who confirmed at the front door the nature of the activity being
offered, and then entered precisely because its greater than
expected "taboo" aspects attracted him. Given such a chronology,
a jury could easily find beyond a reasonable doubt that the agents'
subsequent enticements and assurances, much like those of a pimp,4
were simply reasonable efforts to negotiate the arrangement rather
than wrongful overreaches aimed at using pressure to create a
crime. "This is not a case . . . in which a government agent
4 It is unfortunately not far-fetched to encounter parents
pimping their minor children on the internet. See, e.g., Aisha J.
v. Ariz. Dep't of Econ. Sec., No. 1 CA-JV 11-0161, 2012 WL 666573,
at *2 (Ariz. Ct. App. Feb. 28, 2012).
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refused to take 'no' for an answer and persisted in recruiting a
target." Díaz-Maldonado, 727 F.3d at 137.
This is also not a case like United States v. Poehlman,
217 F.3d 692 (9th Cir. 2000), where government agents first
established, over the course of six months, a close relationship
with a lonely target whom they then enticed by slowly "play[ing]
on [the target's] obvious need for an adult relationship, for
acceptance of his sexual proclivities and for a family, to draw
him ever deeper into a sexual fantasy world involving these
imaginary girls," id. at 702. Similarly, in State v. Canaday, 641
N.W.2d 13 (Neb. 2002), undercover law enforcement agents strung an
advertisement respondent along for four months before clearly
establishing that the target was expected to have sex with the
fictitious pen pal's children as a requirement of any relationship
with the mother, see id. at 17–20.
Here, the government's tactics as they played out
involved no "psychologically 'graduated' set of responses to [the
target's] own noncriminal responses, beginning with innocent lures
and progressing to frank offers." Gendron, 18 F.3d at 963.
Rather, the initial lure was ambiguous (mother and daughter in
"taboo" and "interesting" arrangement), and the ambiguity was
thoroughly and promptly eliminated before Hinkel sought to explore
and act on the further enticements.
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Because we find that the evidence supported a finding
that the government did not wrongly induce Hinkel to engage in
criminal conduct, we need not reach the question of whether the
government also sufficiently demonstrated that Hinkel was
predisposed to commit the kind of offense in question absent any
governmental involvement. See United States v. Walter, 434 F.3d
30, 37 (1st Cir. 2006) ("In addressing Walter's primary argument
that the government failed to carry its burden of proving that no
entrapment occurred, we again note that the government's burden is
met if it proves beyond a reasonable doubt that either element of
the defense, inducement or lack of predisposition, fails."); cf.
United States v. Nieves-Burgos, 62 F.3d 431, 434 (1st Cir. 1995)
("[W]hen a jury returns a general verdict of guilty on a single
count charging more than one criminal act, the verdict stands if
the evidence sufficiently supports any of the acts charged.")
2. Instructions
Hinkel further faults the district court for refusing to
give his requested entrapment instruction. Instead, the court
gave the pattern jury instruction on entrapment commonly used by
district courts in this jurisdiction. See Pattern Crim. Jury
Instr. 1st Cir. § 5.05 (1998). The chief distinction between the
two is that Hinkel's version included examples of government
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activity that might amount to improper inducement to commit a
crime.5
We see no abuse of discretion in the court's decision or
legal error in its instruction. Arguing otherwise on appeal,
Hinkel relies principally on United States v. Montañez, 105 F.3d
36 (1st Cir. 1997). The defendant in Montañez hung his entire
defense on the theory that he was entrapped by a government agent
posing as a female friend who repeatedly beseeched him to obtain
cocaine for her to resell, claiming that she would lose her
children if he did not help her earn money. Id. at 37–38. When
instructing the jury on entrapment, the district court gave several
examples of inducement by coercion but refused to include examples
of entrapment based on appeals to sympathy. Id. at 38 & n.3. We
5 Hinkel had requested that the district court tell jurors
that:
Improper inducement may include persuasion,
false statements, excessive pressure by the
officer, an undue appeal to sympathy,
psychological manipulation, or other
governmental conduct that creates a risk of
causing an otherwise unwilling person to
commit the crime charged. Even very subtle
pressure, if skillfully applied, can amount to
inducement for purposes of the entrapment
defense. Some of the inducement factors
relevant to enticement of a minor to engage in
sexual activity may include a) whether the
government made the initial contact; b)
whether the government introduced the topics
of sex and meeting in person; and c) the extent
to which the government influenced the
defendant's behavior by portraying the minor
as sexually precocious.
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reversed, ruling that by both providing the coercion examples and
"omitting any 'sympathy' examples, the trial court may well have
left the jury with the mistaken impression that coercion is a
necessary element of entrapment and, in this case, such a
misunderstanding could well have affected the outcome." Id. at
39.
Here, the district court did not instruct on entrapment
by setting out some examples of inducement while leaving out other,
more pertinent examples. In its discretion, the court simply stuck
with the standard form, accurately describing the generic defense
of entrapment, and correctly outlining the elements. Unlike in
Montañez, this instruction "adequately inform[ed] the jury of [the
defendant's] theory of defense," id. at 40, and did not suggest
that the conduct here was not wrongful by omitting it from a
description of conduct that was wrongful.
B. Evidentiary Issues
On appeal, Hinkel renews his objections to several
unfavorable evidentiary judgment calls made by the district court
during the course of the trial. Hinkel challenges: (1) the
admission of seventeen photographs and five sexually explicit
cartoons discovered on his work computer; (2) the admission of
evidence of sexual paraphernalia and children's clothing found in
the trunk of his car on the day of his arrest; (3) the exclusion
of evidence of a prior sexually-tinged electronic conversation
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with an adult he met online; and (4) the exclusion of certain text
messages Hinkel sent to "Lisa" that, he argues, would have
"contextualized the government's facially inculpatory evidence."
We address each evidentiary challenge in turn.
1. The Photographs and Cartoon Evidence
A post-arrest forensic examination of Hinkel's computer
yielded twenty-two electronic images that were later introduced at
trial. Seventeen are photographs of Hinkel, apparently self-
taken. The remaining five are drawings of anime characters. Once
the district court ruled that Hinkel was entitled to a jury
instruction on entrapment, the government offered and the district
court admitted, over Hinkel's objection, both sets of evidence as
probative of Hinkel's predisposition to commit the crime of
conviction.6 The images, the court reasoned, were probative of
Hinkel's predisposition to commit a sex crime involving a minor
because they demonstrated Hinkel's interest in "playing out a role
of a hypersexualized child in need of chastisement," a fantasy
that he later sought to actualize through his communications with
"Lisa" and "Samantha." The government briefly discussed these
images at trial in the course of its examination of the forensic
6 Much of this evidentiary contest played out in advance of
trial, with the district court informing the parties how it would
rule were the entrapment issue to arise at trial, as it ultimately
did. Hinkel objected when the images were introduced, dooming the
government's appellate argument that the dispute has not been
properly preserved.
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technician and again during closing arguments. Jurors were, of
course, free to peruse the contents of the entire report.
Evidence of another act is ordinarily impermissible "to
show that on a particular occasion the person acted in accordance
with" the character manifest in the other act, Fed. R.
Evid. 404(b)(1), but such evidence may be introduced "for another
purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of
accident," id. 404(b)(2). "[I]n situations where the defendant
employs entrapment as a defense to criminal liability, prior bad
acts relevant to a defendant's predisposition to commit a crime
are highly probative." United States v. Van Horn, 277 F.3d 48, 57
(1st Cir. 2002); cf. United States v. Thomas, 134 F.3d 975, 980
(9th Cir.), as amended on denial of reh'g (Apr. 10, 1998) ("For
the jury to find predisposition beyond a reasonable doubt, it must
consider the defendant's character."). But even if evidence of a
defendant's prior acts or his or her character has "special
relevance" to a disputed issue such as predisposition, such
evidence "may not be admitted if . . . its probative value is
'substantially outweighed by the danger of . . . unfair prejudice,
confusion of the issues, or misleading the jury.'" Van Horn, 277
F.3d at 57 (quoting Fed. R. Evid. 403).
We review the court's decision to admit this evidence
for abuse of discretion. Id. at 56. Because the "balancing act"
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demanded by Rule 403 is a "fact-sensitive enterprise" best left to
the trial judge, "[o]nly rarely and in extraordinarily compelling
circumstances will we, from the vista of a cold appellate record,
reverse a district court's on-the-spot judgment concerning the
relative weighing of probative value and unfair effect." United
States v. Vizcarrondo-Casanova, 763 F.3d 89, 94 (1st Cir 2014)
(alteration in original) (quoting Freeman v. Package Mach. Co.,
865 F.2d 1331, 1340 (1988)); see also United States v. Majeroni,
784 F.3d 72, 76 (1st Cir. 2015) ("In exercising their broad
discretion under Rule 403, trial judges have a feel for the
evidence and the courtroom that is difficult to replicate on the
pages of a transcript, so our deference to judgment calls of this
type is great.").
We consider first the five cartoons, which consist of
detailed anime drawings of adults and minors engaged in sex acts,
sometimes in bondage. It was well within the trial court's
discretion to admit these cartoons found on Hinkel's computer
depicting sex with children as probative of Hinkel's
predisposition. Cf. United States v. Chambers, 642 F.3d 588, 595–
96 (7th Cir. 2011) (images of child pornography possessed by
defendant admissible to show "sexual inclination towards
children"); United States v. Brand, 467 F.3d 179, 199-201 (2d Cir.
2006) (evidence of "possession of images of child pornography and
child erotica" admissible to show defendant predisposed to commit
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"sexual offenses against children"). Hinkel could hardly
challenge the government to prove his predisposition to engage in
sex with a minor while simultaneously barring the government from
presenting proof that he possessed depictions of adults having sex
with minors.
The seventeen photos of Hinkel require a different
analysis. None involve children. Rather, thirteen pictures show
Hinkel wearing women's underwear,7 sometimes with his genitalia
visible, one shows him prepared to punish himself, two show his
erect penis, and two present views of his spread buttocks. What
properly probative role these pictures had in this case is a
mystery. The government forthrightly confesses that "they played
virtually no role in the government's case or its response to
Hinkel's entrapment defense." Egged on less frankly by government
counsel at trial, the district court hypothesized that the pictures
were all relevant to the entrapment defense. The reasoning seems
to be that in one of the pictures Hinkel appears to wear a child's
tutu, so if Hinkel fantasized himself as a child, that reasonably
suggests he was predisposed to have sex with a child. No evidence
at all supported this hypothesized nexus. Nor does the nexus
apply, even by its own terms, to sixteen of the seventeen pictures.
7 Trial testimony indicated that some of the items of clothing
worn by Hinkel in these photos appeared to be among those found in
Hinkel's vehicle at the time of his arrest. See infra Part II.B.2.
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The Supreme Court has cautioned that "evidence that
merely indicates a generic inclination to act within a broad range,
not all of which is criminal, is of little probative value in
establishing predisposition." Jacobson v. United States, 503 U.S.
540, 550 (1992). Our own court has rejected as impermissible "the
inference . . . that the tendency to engage in unusual, albeit
legal, sexual activity with an adult indicates a predisposition
toward pedophilia." Gamache, 156 F.3d at 11. In sum, the photos
had virtually no probative force on any issue properly before the
jury.
We turn therefore to the issue of prejudice. In most
circumstances, the prejudicial impact of these photos would be
patent and substantial. Knowledge of Hinkel's licit but unusual
sexual practices and his attitude toward sex might cause some
jurors to think that his proclivities knew no bounds, licit or
otherwise. In this case, though, this prejudicial potential was
largely cumulative, or redundant, because of the email exchanges
put before the jury. In these properly admitted exchanges
evidencing both the crime and the facts relevant to the entrapment
defense, Hinkel repeatedly and lewdly described his preferred
sexual practices, including practices likely viewed by some jurors
as more unusual than what the pictures showed. Also properly
admitted were the graphic anime pictures, the relevant prejudicial
impact of which went much more directly to the heart of the case.
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The risk of incremental prejudice from the photos was further
blunted by the district court's prophylactic statement to the jury
earlier in the trial that it was not to act as "the bedroom police"
and that "if we get evidence in this case of cross-dressing or
bondage and discipline or, within limits, sadomasochism, that
whatever you may think about that conduct, among consenting
adults . . . . That's not criminal."
All in all, we have evidence of very little probative
value that was nevertheless highly unlikely to have caused any
incremental prejudice in the context of this particular record
already replete with evidence of Hinkel's sexual behavior and
plans. Whether that means that, net-net, the district court did
not abuse its discretion, or that error exists, but it is harmless,
we need not decide. In either event, Hinkel loses.8
2. Other Evidentiary Challenges
Law enforcement officers found a lockbox in the truck
Hinkel drove to the scene where he intended to consummate the
8For this same reason, it was not plain error for the district
court to have failed to repeat without request its earlier
instruction that the jurors were not "bedroom police." Trial
counsel, too, may have had perfectly rational tactical reasons to
refrain from seeking the repetitive instruction. See United States
v. Fanfan, 468 F.3d 7, 12–13 (1st Cir. 2006) ("[M]any defense
lawyers would shrink from an instruction that the jury should not
count [a defendant's] propensity for [a particular crime] against
him. Rather than erasing the risk that the jury would misuse the
bad act evidence, such an instruction could easily invite the
jury's attention to a quite natural inference.").
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crime. After securing Hinkel's consent, they searched the lockbox
and discovered a cache of sexual paraphernalia, including women's
clothing and underwear, children’s underwear, and sex toys among
other objects. Over objection, the district court admitted
evidence of this material, finding it "probative of [Hinkel's]
then present intent." See Fed. R. Evid. 803(3). Hinkel argues
that this evidence was both irrelevant and unfairly prejudicial.
We disagree: it was no abuse of discretion to let the
jury learn of the sex-related objects Hinkel brought with him from
Connecticut to Massachusetts for the encounter with "Lisa" and
"Samantha." All of this evidence went to helping the government
prove its affirmative case that Hinkel was not all talk and no
action. In short, the objects were relevant--and highly so--
because Hinkel brought them to the scene of the meeting with Lisa,
evidencing that sex was the purpose of that meeting. Hinkel argues
that he only intended to use what he carried out of the truck.
But a jury could reasonably find that he brought all of the items
as possible objects to use with "Samantha." After all, he had
told "Lisa" that he would "play it by ear" and "see how it went"
with "Samantha." To the extent the objects also ran the risk of
eliciting juror disgust, and thus prejudice, the balance here was
one that the trial judge had ample discretion to weigh.
Hinkel also challenges two decisions by the district
court excluding evidence he sought to admit. One piece of evidence
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was a fragment of a 2010 online chat exchange recovered from
Hinkel's work computer. The exchange occurred between two users,
"fun2day07" (Hinkel, by his own assertion) and "purpleangel1219,"
that apparently took place in March 2010. At one point in the
chat transcript, "purpleangel1219" asked Hinkel (assuming he is,
indeed, "fun2day07") if he ever "want[ed] to play with [his
daughter]" and Hinkel said he had not and "would never do
any[thing] like that." Counsel for Hinkel sought to introduce the
chat transcript as evidence of lack of predisposition and the
district court ruled the exchange irrelevant. For several reasons,
this is a judgment we will not disturb. For one, the exchange
occurred several years before the events in question. Second,
there was no suggestion in Hinkel's prosecution that he abused his
own children. Leaving aside questions about authenticity,
hearsay, and completeness, excluding this evidence on relevance
grounds was a decision well within the judge's range of
discretionary authority.
Hinkel also sought to admit certain text messages sent
by him, which he says provided context for two other messages that
were read aloud by a government witness at trial.9 The text
9These text messages sent by Hinkel to "Lisa" read, "I'm glad
and eager to hear her response. Makes me aroused to think of her
like this," and, "Very hot, I could even use a toy on her, while
in that position, and make her cum several times before I take
her."
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messages read aloud related to Hinkel sending "Lisa" an explicit
photograph. Defense counsel objected to the text messages in the
first instance but then, on cross examination, sought to introduce
other parts of the conversation to place the messages in context.
The district court ruled that this was impermissible since the
defense was objecting to the messages' admissibility. On appeal,
Hinkel claims he would have used the opportunity to highlight a
text message wherein he wrote, "Too bad, looks like I scared you
with that photo. Take care."
The district court's treatment of this evidence was
inconsistent at best. But we fail to see how this lost opportunity
to introduce evidence of Hinkel apologizing for sending an explicit
photograph would have had any bearing at all on the strength,
completeness, or relevance of the government's evidence. Even
assuming that the district court's puzzling explanation for
excluding the text evidence was error, there is nothing remotely
exculpatory about the text message conversation that could have
materially benefitted Hinkel. Any error was harmless. See United
States v. Shea, 159 F.3d 37, 40 (1st Cir. 1998); United States v.
Rose, 104 F.3d 1408, 1414 (1st Cir. 1997).
C. Supervised Release
After serving his ten-year prison sentence--the minimum
term of imprisonment for conviction under this statute, see 18
U.S.C. § 2422(b)--Hinkel will be subject to a five-year term of
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supervised release. At Hinkel's sentencing hearing, the district
court imposed all of the Special Conditions ("Conditions") of
supervised release proposed by the Probation Office in its
Presentence Report ("PSR"). Hinkel has preserved objections to
four of the thirteen Conditions, excerpted in relevant part below:
Condition 4: The defendant shall not possess
or use a computer or have access to any online
service without the prior approval of the
Probation Office.
Condition 7: The defendant is not to use a
computer, internet-capable device, or similar
electronic device to access child pornography
or to communicate with any individual or group
for the purpose of promoting sexual relations
with children. The defendant is prohibited
from entering chat rooms to send or receive
'instant messages,' or to send or receive
email with attached electronic files through
any electronic medium unless required for an
express class assignment in an accredited
educational institution or as an express job
requirement for legal, outside employment.
The defendant shall not utilize any sex-
related adult telephone services, websites, or
electronic bulletin boards.
Condition 9: The defendant shall provide the
probation officer with access to any requested
financial information for purposes of
monitoring their compliance with the imposed
computer access/monitoring conditions,
including, but not limited to, credit card
bills, telephone bills, and cable/satellite
television bills.
Condition 13: The defendant shall be subject
to search and seizure of his residence and
elsewhere with reasonable suspicion by the
Probation Office.
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We review preserved challenges to conditions of
supervised release for abuse of the sentencing judge's discretion.
United States v. Perazza-Mercado, 553 F.3d 65, 69 (1st Cir. 2009).
"Although district courts have significant discretion to impose
special conditions of supervised release, that discretion is not
unlimited." United States v. Medina, 779 F.3d 55, 60 (1st Cir.
2015). A special condition of release may only be imposed if the
sentencing court determines that the condition:
(1) is reasonably related to the factors set
forth in [18 U.S.C. § ]3553(a)(1), (a)(2)(B),
(a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty
than is reasonably necessary for the purposes
set forth in [18 U.S.C. § ]3553(a)(2)(B),
(a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy
statements issued by the Sentencing Commission
pursuant to 28 U.S.C. [§ ]994(a).
18 U.S.C. § 3583(d); see generally Medina, 779 F.3d at 60. The
rationale for imposing the condition must also "have adequate
evidentiary support in the record." United States v. Roy, 438
F.3d 140, 144 (1st Cir. 2006).
Applying these principles, we find that the first
sentence of Condition 4, excerpted above, sweeps too broadly in
banning Hinkel from, essentially, all internet access without the
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prior approval of his probation officer.10 This kind of broad-
brush, untailored approach to sculpting the conditions of
supervised release imposes "a greater deprivation of liberty than
is reasonably necessary" to achieve the penal goals Congress has
identified. 18 U.S.C. § 3583(2).
We have upheld broad restrictions on internet access as
a condition of supervised release "where (1) the defendant used
the internet in the underlying offense; (2) the defendant had a
history of improperly using the internet to engage in illegal
conduct; or (3) particular and identifiable characteristics of the
defendant suggested that such a restriction was warranted."
Perazza-Mercado, 553 F.3d at 70. Here, Hinkel did use the internet
in committing the crime but we are reluctant to rely on that use
alone where it is largely collateral to the offense in question,
much like how using his truck to arrive to meet "Lisa" and
"Samantha" would differ from using his truck to drive recklessly.
As we have previously observed, "[a]n undue restriction
on internet use 'renders modern life--in which, for example, the
government strongly encourages taxpayers to file their returns
electronically, where more and more commerce is conducted on-line,
and where vast amounts of government information are communicated
10 Condition 4 also requires that Hinkel cooperate with
Probation to install software on his computer to monitor his
activities. He does not object to this requirement.
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via website--exceptionally difficult.'" Id. at 72 (quoting United
States v. Holm, 326 F.3d 872, 878 (7th Cir. 2003)). That
observation, made some seven years ago, has only more force today.
And it takes no leap of faith to predict that in roughly nine
years, when Hinkel is released, internet connectivity is likely to
be even closer to a prerequisite to normal functioning in modern
society. See generally Riley v. California, 134 S. Ct. 2473, 2484
(2014) (observing two years ago that internet-enabled smart phones
"are now such a pervasive and insistent part of daily life that
the proverbial visitor from Mars might conclude they were an
important feature of human anatomy").
Hinkel's internet usage will also be subject to
electronic monitoring per the unobjected-to additional provisions
of Condition 4. Given these restrictions, further banning Hinkel
from even monitored internet access provides too little benefit to
outweigh what we increasingly view as a serious and severe
imposition.
Nor do we take solace, as we have in a previous case, in
the presence in Condition 4 of a safety valve permitting the
defendant to seek approval from the Probation Office and, if
necessary, the district court, in order to use the internet for
educational or vocational purposes. See United States v. Stergios,
659 F.3d 127, 134 (1st Cir. 2011) ("Should Stergios find [the
internet ban] unduly restrictive upon his release, he need only
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speak with his supervising officer and, if that does not succeed,
raise the issue with the district court."). Stergios, unlike
Hinkel, was a "repeat offender" with "a history of improperly using
the internet to engage in fraud." Id. at 135. Importantly,
Stergios had previously proven himself unable or unwilling to
refrain from using a computer to commit fraud while on supervised
release following a conviction arising out of a similar use of
computers to commit fraud. There is no contention that Hinkel has
such a recidivist history or that he has already violated
conditions of release. Our obligation to ensure that the special
conditions of supervised release work no "greater deprivation of
liberty than is reasonably necessary," 18 U.S.C. § 3583(d)(2), to
achieve the goals of criminal sentencing, see id.
§§ 3583(a)(2)(B)-(D), compels us to vacate the first sentence--
and no more--of Condition 4 of Hinkel's supervised release.
For similar reasons, we also find that the last two
sentences of Condition 7 in the excerpt above sweep too broadly
and, in the case of the last sentence, too ambiguously. The
penultimate sentence suffers from the same defect as we have
identified in Condition 4, flatly prohibiting (other than in the
course of outside employment or classwork) the use of what have
now become standard forms of communicating and associating on
essentially all subjects. The last sentence, in turn, expands
what would be a reasonable effort to preclude access to sites and
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services related to sex with minors, or child pornography, into a
ban covering access to all sites that are in any way "sex-related,"
thereby covering, for example, a large swath of generally accepted
modern entertainment, and even news.
In finding the first sentence of Condition 4
unreasonable, we simultaneously sustain as reasonable the first
sentence of Condition 7. Forbidding Hinkel from using devices "to
access child pornography or to communicate with any individual or
group for the purpose of promoting sexual relations with children"
speaks closely to the conduct at the heart of the offense Hinkel
committed and is reasonably limited to the particular forms of
communication that enabled his crime.
Finally, we may briefly dispense with Hinkel's challenge
to Conditions 9 and 13. These Conditions essentially act as
enforcement subsidies in the government's favor, supporting the
Probation Office's efforts to ensure Hinkel's compliance with the
conditions limiting his freedom in his first five post-carceral
years. While these provisions make it easier for the government
to invade his privacy, they are reasonably related to either the
Conditions we have approved or the ones Hinkel has not challenged.
Without such tools to "mandate compliance," the district court's
imposition of special conditions would be "ineffectual."
Stergios, 659 F.3d at 134 (quoting United States v. Sebastian, 612
F.3d 47, 52 (1st Cir. 2010)).
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III. Conclusion
Having carefully considered Hinkel's very well briefed
and argued challenge, we affirm his conviction and affirm his
sentence, with the exception of the first sentence of Condition 4
and the last two sentences of Condition 7 governing the terms of
his supervised release, each of which we vacate.
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