United States v. Leland Nielsen, III ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4650
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LELAND VICTOR NIELSEN, III,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Terry L. Wooten, Chief District
Judge. (3:13-cr-00558-TLW-1)
Argued: September 17, 2015 Decided: February 2, 2016
Before DUNCAN and DIAZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded with
instructions by unpublished opinion. Senior Judge Davis wrote
the opinion, in which Judge Duncan and Judge Diaz joined.
ARGUED: Casper Fredric Marcinak, III, SMITH MOORE LEATHERWOOD,
LLP, Greenville, South Carolina, for Appellant. James Hunter
May, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee. ON BRIEF: William N. Nettles, United
States Attorney, Julius N. Richardson, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DAVIS, Senior Circuit Judge:
This case arises from the conviction of Leland Victor
Nielsen, III, on four counts of aggravated sexual abuse of a
minor by force in violation of 18 U.S.C. § 2241(a), (c) (2012),
and four counts of sexual abuse of a minor in violation of 18
U.S.C. § 2243(a) (2012), based on the same conduct. On appeal,
Nielsen presents two issues for our review. First, he
challenges the district court’s denial of his motion to suppress
statements made to federal agents. Second, he contends that his
convictions are multiplicitous. For the reasons stated below,
we affirm the district court’s denial of Nielsen’s motion to
suppress but vacate his conviction and sentence on Counts 2, 4,
6, and 8 for sexual abuse of a minor as multiplicitous in
violation of the Double Jeopardy Clause of the Fifth Amendment.
Consequently, affirming in part and vacating in part, we remand
the case for the entry of an amended judgment.
I.
A.
On May 22, 2013, the FBI received a report of potential
sexual assaults occurring at the Fort Jackson Army installation
in Columbia, South Carolina. Twelve-year-old B.R. had told her
guidance counselor that she had been sexually assaulted by her
thirty-one-year-old uncle, Leland Nielsen, III, at her family’s
home on Fort Jackson. Nielsen, who was married to the sister of
3
B.R.’s mother, also lived in the home. A team of FBI agents
proceeded to the Fort Jackson residence to investigate the
allegations.
Nielsen was not at the residence when the agents arrived,
but some family members were present and gave consent for the
agents to enter the house. Agent Michael Stansbury asked
Nielsen’s mother-in-law to call Nielsen and ask him to come
home, but not to tell him the FBI was there. Nielsen’s mother-
in-law called Nielsen and falsely told him that he needed to
come home due to a medical emergency involving his sister-in-
law.
Agent Robert Waizenhofer waited in front of the house for
Nielsen to arrive. When Nielsen arrived, at approximately 8:00
p.m., Agent Waizenhofer approached him as he exited his car.
The two began speaking in the driveway. Agent Waizenhofer had
not drawn his gun, and he was not wearing any FBI insignia. He
told Nielsen that he was not in trouble and asked him about
B.R.’s allegations. Nielsen began admitting to sexual acts with
B.R. near the start of the interview, and Agent Waizenhofer
continued to question Nielsen to elicit details. Throughout the
interview, Agent Waizenhofer attempted to “empathize” with
4
Nielsen in an effort to open up conversation with him. J.A. 48. 1
Agent Waizenhofer was later joined by Agent Stansbury, and
the agents took turns asking Nielsen questions. At some point
during the interview, Agent Stansbury became more direct or
aggressive in his questioning. It had become apparent to the
agents that B.R. had performed oral sex on Nielsen but Nielsen
had not expressly admitted this. Agent Stansbury thus directly
questioned Nielsen on that point, stating “she sucked your dick.
Didn’t she? She sucked your dick.” J.A. 159. At another point
during the interview, the agents sought help from Agent Craig
Janikowski, who was dressed in green FBI fatigues, after coming
to an “impasse” with Nielsen. J.A. 44-45, 154-55. No more than
three agents ever interviewed Nielsen at once, and one agent
generally led the questioning even when others were present.
At some point during his interaction with the agents,
Nielsen told them that he had post-traumatic stress disorder
(PTSD) resulting from an accident at a chemical plant where he
was previously employed and that he was on medication to treat
the disorder. While Nielsen ultimately admitted to engaging in
various sex acts with B.R., he indicated that his PTSD was to
blame for his conduct. J.A. 42–44.
1 Citations to the “J.A.” are to the Joint Appendix filed by
the parties in this case.
5
The entire interview took place in front of Nielsen’s
residence. Throughout the interview, there were five or six
agents present at the residence. Nielsen was not handcuffed or
physically restrained while agents spoke with him, and he was
able to move around the yard and driveway. Agent Waizenhofer
testified that, at one point, Nielsen retrieved a bottle of
water from his car during the interview. J.A. 60–61. Nielsen
was never told that he was free to terminate the interview and
leave, and he was not provided with Miranda warnings prior to
speaking with the agents. The interview lasted until
approximately 11:00 p.m., when the agents placed Nielsen under
formal arrest.
B.
Nielsen was indicted on four counts of aggravated sexual
abuse of a minor by force under § 2241(a), (c) and four counts
of sexual abuse of a minor under § 2243(a) arising from four
sexual encounters between Nielsen and B.R. Nielsen filed a
pretrial motion to suppress statements he made during his
interview with the FBI, which the district court denied
following a hearing.
The case proceeded to trial. Before the jury charge,
Nielsen objected to a portion of the district court’s
instruction on the force element of the § 2241(a), (c) offenses.
The instruction permitted the government to prove force by
6
inference based on a disparity in strength and coercive power
between the offender and the victim. Nielsen argued that, under
the instruction, anyone who committed sexual abuse of a minor
under § 2243(a) would be inherently guilty of aggravated sexual
abuse under § 2241(a), (c). The court overruled the objection
and instructed the jury accordingly.
The jury returned guilty verdicts on all counts. Nielsen
raised his challenge to the force instruction again in a motion
for a new trial, which was denied. The court sentenced Nielsen
on all eight convictions as follows: imprisonment for terms of
life as to each of the four § 2241(a), (c) counts and terms of
fifteen years as to each of the four § 2243(a) counts, with all
such terms to run concurrently; and supervised release for
concurrent terms of ten years for each count should Nielsen ever
be released. The court also ordered Nielsen to pay a total of
$800 in special assessment fees based on the eight counts of
conviction. Nielsen timely appealed.
II.
A.
Nielsen contends that the district court erred in denying
his motion to suppress the statements he made to federal agents
as described above. He argues that his statements should have
been suppressed because they occurred during a custodial
interrogation without the warnings required under Miranda v.
7
Arizona, 384 U.S. 436 (1966), and because his statements were
not voluntary. We disagree.
We review the district court’s findings of fact on a motion
to suppress for clear error and its legal determinations de
novo. United States v. Hashime, 734 F.3d 278, 282 (4th Cir.
2013) (citation omitted). When reviewing the denial of a motion
to suppress, we view the evidence in the light most favorable to
the government. Id. (citation omitted).
The Fifth Amendment provides that “[n]o person . . . shall
be compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V. In Miranda, the Supreme Court
adopted a prophylactic rule that law enforcement must warn a
criminal suspect of certain rights prior to a custodial
interrogation as a means of protecting this constitutional
right. Miranda, 384 U.S. at 444. In general, evidence
obtained from a custodial interrogation without a Miranda
warning is inadmissible in the prosecution’s case-in-chief.
United States v. Parker, 262 F.3d 415, 419 (4th Cir. 2001).
Absent formal arrest, Miranda warnings are required only
“where there has been such a restriction on a person’s freedom
as to render him ‘in custody.’” Id. (quoting Oregon v.
Mathiason, 429 U.S. 492, 495 (1977)). “An individual is in
custody for Miranda purposes when, under the totality of the
circumstances, ‘a suspect’s freedom of action is curtailed to a
8
degree associated with formal arrest.’” Id. (quoting Berkemer
v. McCarty, 468 U.S. 420, 440 (1984)). This inquiry is
objective, looking to whether “‘a reasonable man in the
suspect’s position would have understood his situation’ to be
one of custody.” Hashime, 734 F.3d at 282 (citation omitted).
A number of factors are relevant to this inquiry, including “the
time, place and purpose of the encounter, the words used by the
officer, the officer’s tone of voice and general demeanor, the
presence of multiple officers, the potential display of a weapon
by an officer, and whether there was any physical contact
between the officer and the defendant.” Id. at 283 (citation
omitted). We also consider an individual’s isolation and
separation from family, as well as any physical restrictions.
Id. (citations omitted).
Considering the totality of the circumstances, the facts
here do not demonstrate that Nielsen was in custody when he
spoke with federal agents on May 22, 2013. Nielsen was
interviewed by agents at his residence rather than at a police
station or other law enforcement facility. While this fact is
not determinative, we are generally less likely to regard an
interview conducted in a familiar setting like a suspect’s home
as a custodial interrogation. See id. at 284. Five or six
federal agents were present at the residence, but no more than
three agents interviewed Nielsen at a time. Agent Waizenhofer,
9
the agent who initiated contact with Nielsen, told Nielsen that
he was not in trouble and maintained an “empathetic” tone with
Nielsen throughout the interview. The agents never drew their
weapons at any point during the interaction. Nielsen was not
handcuffed or otherwise physically restrained, and he was able
to move around the yard and driveway. Additionally, Nielsen
never asked to end the interview or to leave.
To be sure, some aspects of the agents’ interaction with
Nielsen are consistent with custody. While the interview was
conducted at Nielsen’s residence, Nielsen knew that agents were
searching the house while others spoke with him outside. He was
separated from his family. The interview lasted for three
hours, ending after dark. At times, the agents’ questioning
became more aggressive. And while Nielsen was not under arrest
and was free to terminate the interview, no one communicated
either of those facts to him.
Taken together, however, the circumstances do not reflect
the restriction of freedom associated with formal arrest. While
several aspects of the interview favor a finding of custody, we
do not fault the district court’s conclusion that they are
outweighed by circumstances that suggest otherwise—the small
number of agents at the residence, the lack of any physical
restraints on his movement and his ability to move around the
yard and driveway, and, at the start at least, the generally
10
empathetic tone of the interview. Nielsen’s interview was not
conducted in the sort of environment that we have previously
found consistent with custody. See, e.g., Hashime, 734 F.3d at
281, 283–85 (finding three-hour interview of suspect in home to
be custodial interrogation when suspect was awakened at gunpoint
with fifteen to thirty officers present in the residence, was
not permitted to move unless guarded, and was isolated from his
family and questioned in a small storage room); United States v.
Colonna, 511 F.3d 431, 435–36 (4th Cir. 2007) (finding three-
hour interview to be custodial interrogation when suspect was
awakened at gunpoint with twenty-three officers present in the
residence, was guarded at all times, and was questioned in an
FBI vehicle).
It is possible that Nielsen did not feel, subjectively,
that he was free to terminate the encounter. But our inquiry is
objective and not based on the suspect’s subjective feelings.
Hashime, 734 F.3d at 285. Any interview by law enforcement with
a suspect carries certain “coercive aspects” due to the
heightened risk that the suspect will be arrested and charged.
Hargrove, 625 F.3d at 178. We cannot conclude, however, that
Nielsen was in custody simply because he was approached by law
enforcement for questioning about the allegations made against
him. See id.
11
We hold that, viewing the evidence in the light most
favorable to the government, a reasonable person in Nielsen’s
position would not have understood his position to be one of
custody. The agents were not required to recite Nielsen’s
Miranda rights prior to the interview, and Nielsen’s statements
are thus not subject to suppression under Miranda and its
progeny.
B.
Nielsen also argues that even apart from the requirements
of Miranda, his statements were not voluntary. A statement is
involuntary under the Due Process Clause when it is “‘extracted
by . . . threats or violence’ or ‘obtained by . . . direct or
implied promises’ or ‘the exertion of . . . improper
influence.’” United States v. Ayesh, 702 F.3d 162, 168 (4th
Cir. 2012) (omissions in original) (quoting Hutto v. Ross, 429
U.S. 28, 30 (1976)). The relevant inquiry is “whether the
defendant’s will has been overborne or his capacity for self-
determination critically impaired because of coercive police
conduct.” United States v. Cristobal, 293 F.3d 134, 140 (4th
Cir. 2002) (citations omitted). To make this determination, we
examine the totality of the circumstances, including “the
characteristics of the defendant, the setting of the interview,
and the details of the interrogation.” Id. (citation omitted).
Coercive police conduct is “a necessary predicate” to a finding
12
that a suspect’s statements are involuntary. Id. (citations
omitted).
To support his argument, Nielsen points to many of the same
aspects of his interview with the agents that he identified as
indicative of custody. None of these factors—the sometimes
aggressive questioning of the agents, the length and location of
the interview, or the continuation of the interview after
Nielsen had confessed to the substance of the allegations—rise
to the level of coercive police conduct. Nielsen can point to
no conduct by the agents that would constitute the types of
actions generally considered to be coercive under our case law,
such as threats or violence, lengthy marathon interrogations, or
extended isolation. See United States v. Braxton, 112 F.3d 777,
784–85 (4th Cir. 1997) (en banc) (collecting cases).
Nielsen also emphasizes that he suffers from PTSD, had
taken several medications the morning of the interview, and
experienced anxiety during the interaction with the agents. A
suspect’s mental condition, whether due to mental illness or
medication, is not, standing alone, sufficient to render that
suspect’s statements involuntary. Cristobal, 293 F.3d at 141
(citing Colorado v. Connelly, 479 U.S. 157, 164–65 (1986)). And
even when taken together with the other circumstances of the
interview, Nielsen’s mental condition does not lead to the
conclusion that his “will [was] overborne or his capacity for
13
self-determination critically impaired” during the
interrogation. Id. at 140 (citation omitted). Accordingly, we
hold that the district court did not err in concluding that the
circumstances surrounding Nielsen’s interrogation comported with
due process.
III.
A.
Nielsen also challenges his convictions as multiplicitous.
He argues that Counts 1, 3, 5, and 7 of the indictment, charging
aggravated sexual abuse of a minor by force, and Counts 2, 4, 6,
and 8, charging sexual abuse of a minor, are multiplicitous
because the district court instructed the jury that it could
infer force to meet the elements of aggravated sexual abuse of a
minor by force if it found that the defendant had
disproportionately greater strength than the victim, which,
Nielsen contends, will “inevitably” be the case in a child abuse
case given the disparity in age between defendant and victim.
Br. Appellant 18. We agree that Nielsen’s convictions are
multiplicitous, though not for the reasons cited by Nielsen. 2
2
Because we resolve Nielsen’s multiplicity challenge on
other grounds, we need not address his argument concerning the
force instruction at length. However, because Nielsen argues
that the alleged error in the force instruction entitles him to
a new trial rather than the usual remedy of vacating the
multiplicitous convictions, we note that the trial judge
properly instructed the jury in this regard, see United States
(Continued)
14
Among the guarantees provided in the Double Jeopardy Clause
is protection against “the imposition of cumulative punishments
for the same offense in a single criminal trial.” United States
v. Shrader, 675 F.3d 300, 313 (4th Cir. 2012) (citation
omitted). “The legislature remains free under the Double
Jeopardy Clause to define crimes and fix punishments; but once
the legislature has acted courts may not impose more than one
punishment for the same offense . . . .” Brown v. Ohio, 432
U.S. 161, 165 (1977). An indictment is improperly
multiplicitous when it charges a single offense in several
counts. United States v. Burns, 990 F.2d 1426, 1438 (4th Cir.
1993) (citation omitted). “[R]eversal is warranted if the
defendant actually was convicted on multiplicitous counts and
subjected to multiple punishments.” Id. (citation omitted).
When a defendant is convicted of violating multiple
statutory provisions for a single act or transaction, we employ
the analysis set forth in Blockburger v. United States, 284 U.S.
299 (1932), to determine if the convictions offend the Double
Jeopardy Clause. Under Blockburger, “the test to be applied to
determine whether there are two offenses or only one, is whether
v. Johnson, 492 F.3d 254, 258 (4th Cir. 2007) (collecting
cases), and that the government relied on proof of Nielsen’s
size and strength to establish the force element, not simply
B.R.’s age, see J.A. 647.
15
each provision requires proof of an additional fact which the
other does not.” United States v. Martin, 523 F.3d 281, 291
(4th Cir. 2008) (quoting Blockburger, 284 U.S. at 304). Because
the Blockburger analysis is a “rule of statutory construction,”
it “should not be controlling where . . . there is a clear
indication of contrary legislative intent.” United States v.
Allen, 13 F.3d 105, 108 (4th Cir. 1993) (omission in original)
(quoting Whalen v. United States, 445 U.S. 684, 691 (1980), and
Albernaz v. United States, 450 U.S. 333, 340 (1981)).
Under Blockburger, sexual abuse of a minor is a lesser
included offense of aggravated sexual abuse of a minor by force.
Section 2243(a) proscribes sexual abuse of a minor:
Whoever, in the special maritime and territorial
jurisdiction of the United States . . . knowingly
engages in a sexual act with another person who--
(1) has attained the age of 12 years but has not
attained the age of 16 years; and
(2) is at least four years younger than the person so
engaging;
or attempts to do so, shall be fined under this title,
imprisoned not more than 15 years, or both.
Section 2241(a) proscribes aggravated sexual abuse by force or
threat:
Whoever, in the special maritime and territorial
jurisdiction of the United States . . . knowingly
causes another person to engage in a sexual act--
(1) by using force against that other person; or
(2) by threatening or placing that other person in
fear that any person will be subjected to death,
serious bodily injury, or kidnapping;
or attempts to do so, shall be fined under this title,
imprisoned for any term of years or life, or both.
16
Section 2241(c) provides for a thirty-year mandatory minimum
sentence when the victim of aggravated sexual abuse is a minor,
including when the victim “has attained the age of 12 years but
has not attained the age of 16 years (and is at least 4 years
younger than [the offender]).” Because § 2241(c) imposes a
mandatory minimum penalty for aggravated sexual abuse by force
or threat when the victim is a minor, age of the victim is an
element of the offense that must be submitted to the jury.
Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013).
As the government concedes, because the only difference
between the two offenses is the additional requirement under
§ 2241(a)(1) that force be proved to establish aggravated sexual
abuse, the § 2243(a) offenses are merely lesser included
offenses of the greater § 2241(a), (c) offenses. Suppl. Br.
Appellee 1. “It has long been understood that separate
statutory crimes need not be identical either in constituent
elements or in actual proof in order to be the same within the
meaning of the constitutional prohibition.” Brown, 432 U.S. at
164 (citations omitted). A greater offense and a lesser
included offense are the “same” offense for double jeopardy
purposes because the lesser included offense “requires no proof
beyond that which is required for conviction of the greater
[offense].” Id. at 168.
17
The government nonetheless contends that Nielsen’s
convictions do not offend the Double Jeopardy Clause because
Congress intended to authorize separate punishments for sexual
abuse of a minor and aggravated sexual abuse of a minor by
force. However, it can point to nothing in the legislative
history of either statute evincing “a clear indication of
contrary legislative intent” to impose multiple punishments for
the same offense. Allen, 13 F.3d at 108 (quoting Albernaz, 450
U.S. at 340). And the cases on which the government relies were
decided based on a Blockburger analysis of the two statutes
prior to the Supreme Court’s decision in Alleyne and are
therefore inapposite. See United States v. Rivera, 43 F.3d
1291, 1297 (9th Cir. 1995); United States v. Amos, 952 F.2d 992,
994 (8th Cir. 1991), abrogated on other grounds, United States
v. Allery, 175 F.3d 610 (8th Cir. 1999); United States v.
Morsette, 858 F. Supp. 2d 1049, 1052–53 (D.N.D. 2012). We
therefore see no reason to deviate from the result of the
Blockburger analysis here.
Accordingly, we conclude that the district court should
have merged the offenses so that Nielsen would have only been
convicted of, and sentenced for, the greater § 2241(a), (c)
offense in connection with each of the four charged instances of
abuse. See United States v. Jones, 204 F.3d 541, 544 (4th Cir.
2000) (citing Brown, 432 U.S. at 169) (holding that district
18
court erred in imposing separate sentence for lesser included
offense). In failing to do so, the district court erred.
B.
Nielsen, however, failed to preserve this issue for appeal.
While Nielsen argues that the multiplicity error was not
apparent until the district court charged the jury with the
allegedly erroneous force instruction, the multiplicity error we
identify above was apparent on the face of the indictment, yet
was never raised before the district court. Pursuant to the
version of Rule 12 in effect at the time of Nielsen’s trial,
Nielsen’s challenge to the indictment is waived because he did
not raise it in a pretrial motion, although “relief from the
waiver” may be granted “[f]or good cause.” Fed. R. Crim. P.
12(b)(3)(B), (e) (2011). Under the circumstances of this case,
where the error is so obvious that the government now concedes
that § 2243(a) is a lesser included offense of § 2241(a), (c)
under Blockburger and Nielsen attempted to raise a multiplicity
challenge during trial, we exercise our discretion to relieve
Nielsen of his waiver under Rule 12 and review the multiplicity
error discussed above under plain error review. See United
States v. Bennafield, 287 F.3d 320, 322 (4th Cir. 2002) (citing
United States v. Olano, 507 U.S. 725, 731–32 (1993)).
Under plain error review, a defendant must demonstrate that
“an error occurred, that the error was plain, and that the error
19
affected his substantial rights.” Id. (citing Olano, 507 U.S.
at 732). An error is plain if it is “clear” or “obvious,”
Olano, 507 U.S. at 734, and it affects substantial rights if it
prejudices the defendant, Bennafield, 287 F.3d at 322 (citing
United States v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998)).
Correction of the error is at our discretion, which we exercise
only when the error “seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.” Olano, 507 U.S.
at 736 (citation omitted).
Nielsen’s multiplicitous convictions satisfy these
requirements. That the § 2243(a) and § 2241(a), (c) counts
shared all elements besides force is clear and obvious from the
face of the indictment and from the district court’s
instructions to the jury. The multiplicity error resulted in
Nielsen’s conviction and sentencing on eight counts instead of
four, including eight concurrent terms of imprisonment (and
supervised release) and special assessment fees on eight
convictions instead of four, and was therefore prejudicial to
him. See United States v. Shorter, 328 F.3d 167, 173 (4th Cir.
2003) (discussing how even concurrent sentences on duplicative
convictions are improper); United States v. Leftenant, 341 F.3d
338, 348 (4th Cir. 2003) (vacating all but one of multiplicitous
sentences and special assessments). And finally, because the
error “seriously affect[s] the fairness, integrity or public
20
reputation of judicial proceedings,” Olano, 507 U.S. at 736(citation omitted), we should exercise our discretion to correct
it. When “a federal court exceeds its own authority by imposing
multiple punishments not authorized by Congress, it violates not
only the specific guarantee against double jeopardy, but also
the constitutional principle of separation of powers in a manner
that trenches particularly harshly on individual liberty.”
Whalen, 445 U.S. at 689. The imposition of multiplicitous
convictions and sentences in this case was therefore plain
error.
C.
Having concluded that Nielsen’s convictions are
multiplicitous and that the error was plain and is appropriate
for us to correct, we turn to the remedy. The usual remedy for
multiplicitous convictions is to vacate the offending
convictions and order a resentencing of the defendant
accordingly. See United States v. Brown, 701 F.3d 120, 127–28
(4th Cir. 2012) (citing Ball v. United States, 470 U.S. 856, 865
(1985)). Nielsen nonetheless argues that the multiplicity error
entitles him to a new trial because the jury “was prejudiced by
the Government’s ‘prolix pleading’ with regard to multiplicitous
charges implicating the same exact elements of proof.” Suppl.
Br. Appellant 7. We rejected a similar argument in United
States v. Colton, 231 F.3d 890 (4th Cir. 2000), and do so again
21
here. Because the same evidence was used to prove the
§ 2241(a), (c) offenses as the lesser § 2243(a) offenses,
Nielsen has suffered no cognizable prejudice from the jury’s
consideration of the multiplicitous counts. See Colton, 231
F.3d at 910.
IV.
For the reasons set forth above, the district court’s
denial of the motion to suppress is affirmed. Nielsen’s
convictions and sentences on Counts 2, 4, 6, and 8 for sexual
abuse of a minor under § 2243(a) are vacated, and the case is
remanded for entry of an order dismissing Counts 2, 4, 6, and 8
of the indictment and issuance of an amended judgment consistent
with this opinion.
AFFIRMED IN PART,
VACATED IN PART, AND
REMANDED WITH INSTRUCTIONS
22