United States v. Robert Hensley ( 2020 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 19-2417
    ___________________________
    United States of America
    Plaintiff - Appellee
    v.
    Robert Nathan Hensley
    Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Eastern District of Arkansas - Little Rock
    ____________
    Submitted: September 25, 2020
    Filed: December 16, 2020
    ____________
    Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
    ____________
    SHEPHERD, Circuit Judge.
    Robert Nathan Hensley was charged with attempted enticement of a minor to
    engage in illegal sexual conduct, in violation of 
    18 U.S.C. § 2422
    (b) (Count 1);
    attempted production of child pornography after having previously been convicted
    of child sex crimes, in violation of 
    18 U.S.C. §§ 2251
    (a) and 2251(e) (Count 2); and
    possession of child pornography after having previously been convicted of child sex
    crimes, in violation of 
    18 U.S.C. § 2252
    (a)(4)(B) (Count 3). Hensley filed a motion
    to suppress evidence, and after an evidentiary hearing, the district court 1 denied the
    motion. Following a jury trial, Hensley was found guilty on all three counts. The
    district court sentenced him to 420 months imprisonment on each count, to run
    concurrently, and supervised release for life. Hensley appeals the district court’s
    denial of his motion to suppress as well as his conviction and sentence, arguing that
    the evidence was insufficient to support his convictions; that the district court erred
    in instructing the jury; that the government made improper and prejudicial closing
    remarks; and that his sentence for Count 3 was illegal. Having jurisdiction under 
    28 U.S.C. § 1291
    , we affirm.
    I.
    On October 12, 2017, Hensley responded to a Craigslist advertisement posted
    by an FBI agent. The advertisement indicated that a father and daughter, whose age
    was listed as 18, were traveling through the Conway, Arkansas area and were
    looking to have sex. Between October 12, 2017, and October 13, 2017, Hensley and
    the agent, posing as the father, exchanged numerous text messages relating to
    Hensley’s meeting the father and his “daughter” so Hensley could have sex with the
    daughter. Approximately five minutes into their exchange on October 12, the father
    told Hensley that his daughter was 14. Sometime later, Hensley texted that he was
    “not into minors” and also said “18 and up only.” R. Doc. 1, at 4. Nonetheless,
    Hensley continued to exchange sexually explicit text messages with the father, in
    which Hensley described in detail various sex acts he wanted to perform on the
    daughter. He also asked the father to “[s]end front pic tits and pus.” R. Doc. 1, at
    5. Hensley offered to pay to perform sex acts on the daughter while the father
    watched, and even offered to “buy” the daughter for $3,000, for which the daughter
    would receive “a lifetime of bondage and sex.” R. Doc. 1, at 5. Upon the father’s
    request, Hensley texted a picture of himself.
    1
    The Honorable Susan Webber Wright, United States District Judge for the
    Eastern District of Arkansas.
    -2-
    At around 4:00 a.m. on October 13, 2017, Hensley called the National Human
    Trafficking Hotline to anonymously report suspected trafficking of a 14-year-old
    minor female. Later, Hensley and the agent, still posing as the father, resumed their
    text conversation. Through text messages, Hensley and the father agreed to meet at
    an Exxon gas station in Cabot, Arkansas, at 2:00 p.m.; Hensley would pay $150 to
    have sex with the daughter; and the father could watch. Hensley admittedly drove
    to the Exxon. Additionally, four law enforcement officers drove to the Exxon.
    Hensley and the father exchanged text messages in which each party wanted the
    other to reveal himself first. The meeting did not take place. Shortly thereafter,
    Hensley texted the father, provided his address, and invited him to his house for oral
    sex.
    The agents drove to Hensley’s address, and they used his license plate data to
    pull up the associated driver’s license information. The photo on the license was
    consistent with the photo Hensley had texted to the agent. FBI Special Agent John
    Sablatura then placed a ruse service call to Hensley’s heating and air conditioning
    business. Hensley left his home in his work truck, and the agents pulled him over
    approximately a mile from his home. They questioned him about the minor female
    who he suspected was being trafficked. Hensley told the agents he was glad they
    were there and he had information about the girl to help them out. Further, he
    admitted sending the text message requesting “front pic tits and pus.” Eventually
    the agents asked Hensley if he had a laptop computer and if they could review it.
    The agents obtained Hensley’s consent to search his home for the laptop and to
    search the laptop. The agents found and seized the laptop.
    On October 17, 2017, Hensley was arrested and charged with attempted
    enticement of a minor and attempted production of child pornography. A forensic
    examination of the laptop revealed three images of minor children engaged in
    sexually explicit conduct. Subsequently, the grand jury returned a superseding
    indictment, adding one count of possession of child pornography.
    -3-
    Before trial, Hensley filed a motion to suppress the statements he made to the
    agents and any evidence obtained as a result of his custodial interrogation. The
    district court held an evidentiary hearing, at which Hensley, the agents, and other
    witnesses testified. Thereafter, the district court entered a comprehensive order
    denying the motion to suppress. The district court rejected Hensley’s argument that
    he was unlawfully seized in violation of the Fourth Amendment when the agents
    pulled him over and questioned him, finding that the agents had reasonable suspicion
    to pull him over and that the encounter became consensual by the time questioning
    began. The district court further held that Hensley knowingly and voluntarily
    waived his Miranda2 rights, but even if he had not, his interrogation was not custodial
    and thus the agents were not required to give him any Miranda warnings.
    At trial, FBI Computer Analysis Response Team analyst Tim Whitlock
    testified for the government. He found three images of child pornography in
    unallocated space on Hensley’s laptop, meaning the images were on the computer
    but had been deleted either by the user or the computer’s operating system. He could
    not definitively say who deleted the images or when they were deleted. Whitlock
    explained that the images were digital and could have been received on the laptop
    or transferred from another digital source, but he could not definitively say which.
    Hensley’s computer expert, Robert Gray, testified that the images could have been
    accessed by Hensley from links found on the websites in Hensley’s browser history,
    as described in the trial exhibits. While Hensley denied producing or saving the
    images, he testified that he surfed the internet in his free time, typically for sexually
    explicit material by searching and then clicking on links. He did not testify about
    using any other digital source to access or upload sexually explicit material. It is
    undisputed that the laptop on which the images were found was manufactured in
    China.
    Hensley’s browser history revealed an interest in pornography where youth
    was emphasized, and the government introduced this history as evidence at trial.
    2
    Miranda v. Arizona, 
    384 U.S. 436
     (1966).
    -4-
    Hensley admitted intentionally accessing all of the websites in the trial exhibits. For
    example, he accessed the website “youngpetite.org,” the description of which
    included the word “teen.” Gray testified that the websites’ homepages indicated
    there was no child pornography on the sites and that there was a very high likelihood
    that no child porn was on the sites. Gray admitted, however, that he did not access
    the content of those sites but rather visited only the homepages. Hensley accessed
    some of the sites using the private browser function, although he denied using the
    function intentionally.
    Both experts testified that the images found on Hensley’s laptop could have
    been intentionally accessed from the internet or could have been temporarily saved
    without the user’s knowledge as “pop-ups,” which refer to items automatically
    opening on a computer. Hensley described seeing pop-ups when he accessed “adult
    videos” or websites. Whitlock determined that the laptop was used to access the
    internet and that Hensley was the user. Hensley admitted at trial that he used the
    laptop to access the internet, including the websites listed in the government’s
    exhibits.
    Whitlock testified that a program called CCleaner was on Hensley’s laptop.
    CCleaner is a cleaning software that deletes and assists in hiding items. Whitlock
    determined that CCleaner was run at 1:52 a.m. on October 13, 2017. Gray testified
    that the launch of CCleaner did not necessarily mean Hensley’s laptop was cleaned
    then. Hensley admitted that a store installed CCleaner on his laptop, but he denied
    intentionally launching it.
    The government introduced into evidence certified records of Hensley’s prior
    child sex crimes convictions. When Special Agent Sablatura was asked on direct
    examination about the nature of the convictions, Hensley requested a limiting
    instruction. The district court gave a limiting instruction during trial and
    admonished the jury that it “may not consider these convictions as evidence he
    actually committed the crimes that he’s charged with in this case.” R. Doc. 111, at
    35. Hensley did not object or request any other specific language in this limiting
    -5-
    instruction. The district court admitted only the nature of the prior convictions, not
    any of the underlying facts.
    Over Hensley’s objection, the district court’s jury instruction on the attempted
    enticement charge contained the following illustrative example: “The act of driving
    to a planned meeting location has been found sufficient to show that a defendant
    took a substantial step towards commission of the crime.” R. Doc. 91, at 13. Also
    over Hensley’s objection, the district court’s jury instruction on the attempted
    production charge contained the following illustrative example: “Asking for nude
    pictures of a minor may constitute a substantial step to produce child pornography.”
    R. Doc. 91, at 16. Additionally, the district court instructed the jury that it could
    consider evidence of Hensley’s prior convictions for its tendency to show a
    propensity to commit sex offenses against children, as well as to determine
    Hensley’s intent, knowledge, and lack of mistake. R. Doc. 91, at 5. The district
    court’s instructions further reminded the jury: “[I]f you were instructed that some
    evidence was received for a limited purpose only, you must follow that instruction.”
    R. Doc. 91, at 4.
    At the close of the evidence, Hensley moved for judgment of acquittal, which
    the district court denied. The jury returned a guilty verdict on all counts. The district
    court sentenced Hensley to three concurrent terms of 420 months imprisonment.
    During sentencing, Hensley acknowledged more than once that he faced a
    mandatory minimum of 420 months, or 35 years, on Count 2. At one point the
    district court acknowledged that the statutory maximum for Count 3 is 20 years but
    stated that Count 2’s mandatory minimum “governs this sentence.” R. Doc. 109, at
    23. Hensley did not object to the sentence on Count 3.
    On appeal, Hensley challenges: (1) the district court’s denial of his motion to
    suppress; (2) the sufficiency of the evidence supporting his convictions; (3) the
    district court’s jury instruction regarding his prior convictions and its use of
    illustrative examples in Instruction Nos. 9 and 11; (4) five of the government’s
    closing remarks as being so prejudicial that they warrant reversal; and (5) the legality
    -6-
    of his sentence for Count 3. Due to the nature of the issues, we will begin by
    addressing the sufficiency of the evidence.
    II.
    A.
    Hensley challenges the sufficiency of the evidence supporting his convictions
    for Counts 1-3. “We review the sufficiency of the evidence supporting a conviction
    de novo, ‘viewing the evidence most favorably to the verdict, resolving conflicts in
    favor of the verdict, and giving it the benefit of all reasonable inferences.’” United
    States v. Riepe, 
    858 F.3d 552
    , 558-59 (8th Cir. 2017) (citation omitted). The verdict
    must be upheld “if ‘there is an interpretation of the evidence that would allow a
    reasonable jury to find the defendant guilty beyond a reasonable doubt.’” 
    Id. at 559
    (citation omitted).
    1.
    Hensley argues that the evidence was insufficient to support his conviction for
    attempted enticement of a minor to engage in illegal sexual conduct, in violation of
    
    18 U.S.C. § 2422
    (b). To convict Hensley of enticement of a minor, the government
    must prove beyond a reasonable doubt that he: “(1) ‘used a facility of interstate
    commerce, such as the internet or the telephone system;’ (2) ‘knowingly used the
    facility of interstate commerce with the intent to . . . entice a person to engage in
    illegal sexual activity;’ and (3) ‘believed that the person he sought to . . . entice was
    under the age of eighteen.’” United States v. Young, 
    613 F.3d 735
    , 742 (8th Cir.
    2010) (citation omitted). To prove an attempt, the government must prove that the
    defendant intended to commit the predicate offense and took a substantial step in
    furtherance of the offense. See United States v. Bernhardt, 
    903 F.3d 818
    , 827 (8th
    Cir. 2018).
    Hensley contends that the evidence is insufficient to sustain his conviction on
    this count because: (1) he was responding to a Craigslist advertisement which listed
    -7-
    the female’s age as 18; (2) his text messages with the undercover agent indicated
    that Hensley was seeking a sexual encounter with a female who was 18 years old;
    and (3) he had no direct communication with the minor and alerted the National
    Human Trafficking Hotline about the situation. Additionally, he asserts that he did
    not take any substantial step towards committing the offense.
    The evidence is sufficient to show that Hensley intended to entice the fictitious
    minor female to engage in illegal sexual conduct and that he took a substantial step
    towards commission of the offense by planning and ultimately driving to the Exxon
    station to meet the minor and her “father.” In Hensley’s messages with the
    undercover agent, the agent made it clear to Hensley that the fictitious minor was 14
    years old. Hensley continued to engage in the conversation, responding multiple
    times with sexually explicit messages and inquiring as to whether the agent would
    “sell her.” It is clear from the messages that Hensley was negotiating sexual activity
    with a minor child, and in particular that he was intending to violate 
    Ark. Code Ann. § 5-14-127
     (sexual assault in the fourth degree). His assertions to the contrary
    simply created a factual dispute for the jury to resolve, and a reasonable jury could
    have found unpersuasive his testimony that he was not serious about the exchange.
    Again, from the explicit nature of the messages, which evince an intent to have sex
    with the minor in exchange for cash, and his actually making plans to meet the “girl”
    and her “father,” a reasonable jury could easily reject Hensley’s view of the evidence
    and discount certain facts in his favor. The fact that the minor did not exist, or that
    Hensley never met her or communicated directly with her, is of no moment, as
    attempted enticement may occur through an adult intermediary or when there is no
    actual minor involved. See United States v. Spurlock, 
    495 F.3d 1011
    , 1014 (8th Cir.
    2007) (“[T]he efficacy of § 2422(b) would be eviscerated if a defendant could
    circumvent the statute simply by employing an intermediary to carry out his intended
    objective.” (citation omitted)); United States v. Pierson, 
    544 F.3d 933
    , 939-40 (8th
    Cir. 2008) (affirming conviction for attempted enticement of a minor where “victim”
    was an undercover profile posing as a 13-year-old girl); see also United States v.
    Yost, 
    479 F.3d 815
    , 819 n.2 (11th Cir. 2007) (per curiam) (explaining that an actual
    minor is not required for an attempted enticement conviction and that “[i]t is
    -8-
    sufficient that a defendant believe a minor is involved”). Finally, the fact that he
    arranged for and traveled to a potential meeting at the Exxon station satisfied the
    substantial step requirement. See Young, 
    613 F.3d at 743
     (explaining that
    defendant’s reserving a motel room and traveling to the motel in order to have sex
    with a minor constituted substantial steps towards committing the crime of
    enticement of a minor); see also Spurlock, 
    495 F.3d at 1014
     (explaining that making
    plans with minors’ mother to meet at a motel in order to have sex with minors
    constituted a substantial step towards committing the crime of enticement of a
    minor). Accordingly, we conclude that the evidence is sufficient to sustain
    Hensley’s conviction for attempted enticement of a minor.
    2.
    Next, Hensley argues that there was insufficient evidence to support his
    conviction for attempted production of child pornography. To convict Hensley of
    attempted production of child pornography, the government needed to prove beyond
    a reasonable doubt that: (1) he believed that the female was a minor; (2) he attempted
    to entice the minor to engage in sexually explicit conduct; (3) he intentionally
    engaged in this behavior in order to produce a visual depiction of that conduct; and
    (4) he used a means of interstate or foreign commerce. See United States v.
    Schwarte, 
    645 F.3d 1022
    , 1030 (8th Cir. 2011). The government also needed to
    prove that Hensley took a substantial step towards the commission of the offense.
    
    Id.
    Hensley does not dispute that he sent a text message to the undercover agent
    instructing the agent to send a photograph of the minor’s breasts and vagina. Instead,
    Hensley argues that he did not believe the female was a minor, as evidenced by his
    messages in which he stated that the minor female looked 18 and that he was not
    interested in a minor child, and his message was not intended to be taken seriously.
    He also asserts that because there were no actual images, the jury would have
    resorted to speculation as to what those images would have depicted. Finally, he
    -9-
    argues that mere nudity is insufficient to prove that the images would have depicted
    sexually explicit conduct.
    The evidence is sufficient to show that Hensley believed the female was a
    minor and that, using a means of foreign commerce, he attempted to entice her to
    engage in sexually explicit conduct for the purpose of producing a visual depiction
    of said conduct. See Pierson, 
    544 F.3d at 938-40
     (finding sufficient evidence for
    attempted production conviction where defendant and fictitious minor discussed
    minor’s age to be 13 and defendant asked minor to transmit nude pictures of herself
    via webcam). First, there was ample evidence showing that Hensley believed the
    fictitious female was a minor. Indeed, the text messages between him and the
    undercover agent repeatedly reference the minor’s age, 14. Additionally, Hensley
    called the National Human Trafficking Hotline to report his belief that a 14-year-old
    female was a potential victim of trafficking. Based on the evidence, a reasonable
    jury could conclude that Hensley believed the female was a minor and reject his
    testimony to the contrary.
    Second, a reasonable jury could have disbelieved Hensley’s claims that his
    request was not a serious one. He admitted on cross-examination that nothing in his
    request to the undercover agent would indicate that he was not sincere. Moreover,
    the explicit nature of his request, his prior convictions for sex offenses, and
    comments demonstrating his sexual purpose all supported a finding that Hensley
    was quite serious in requesting this image.
    Third, there was sufficient evidence from which a reasonable jury could find
    that Hensley was seeking sexually explicit images. In the context of child
    pornography, “sexually explicit conduct” includes “lascivious exhibition of the anus,
    genitals, or pubic area of any person.” 
    18 U.S.C. § 2256
    (2)(B)(iii). “Lascivious”
    means “sexual in nature.” United States v. Wallenfang, 
    568 F.3d 649
    , 657 (8th Cir.
    2009) (citation omitted). “Lasciviousness may be found when an image of a nude
    or partially clothed child focuses on the child’s genitals or pubic area and is intended
    to elicit a sexual response in the viewer.” United States v. Petroske, 
    928 F.3d 767
    ,
    -10-
    772 (8th Cir. 2019). Here, Hensley requested an image of the minor female’s vagina
    while negotiating with the undercover agent to have a sexual encounter with the
    minor, and the nature of the messages evinced an inference that Hensley’s request
    was intended for sexual purposes. Accordingly, a reasonable jury could infer from
    the evidence that Hensley was intentionally seeking a sexually explicit or lascivious
    image of the minor female.
    Finally, it is established that asking for an image of a minor’s genitals
    constitutes a substantial step to produce child pornography. Schwarte, 
    645 F.3d at 1030-31
     (explaining that defendant took a substantial step towards committing
    production of child pornography where he asked minor to send him nude pictures
    and videos of herself, offered to provide her a laptop in exchange for said pictures
    or videos, and provided a mailing address where she could mail the video).
    Accordingly, we conclude that the evidence is sufficient to sustain Hensley’s
    conviction for attempted production of child pornography.3
    3.
    Next, Hensley challenges the sufficiency of the evidence supporting his
    conviction for possession of child pornography. To convict Hensley of possession
    of child pornography, the government needed to prove beyond a reasonable doubt
    that Hensley: (1) knowingly possessed an item of child pornography, and that (2) the
    3
    Hensley also argued in his reply brief and at oral argument that, because the
    photo he requested may have already existed at the time he requested it, the jury
    could not find beyond a reasonable doubt that he enticed or persuaded a minor to
    engage in sexually explicit conduct in order to produce a visual depiction of it. He
    cites a Second Circuit case, United States v. Broxmeyer, 
    616 F.3d 120
     (2d Cir.
    2010), in support of this proposition. But “[t]his [C]ourt does not consider issues
    raised for the first time on appeal in a reply brief ‘unless the appellant gives some
    reason for failing to raise and brief the issue in his opening brief.’” Jenkins v.
    Winter, 
    540 F.3d 742
    , 751 (8th Cir. 2008) (citation omitted). Hensley does not
    provide a reason for his failure to raise and brief this argument in his opening brief.
    Therefore, the argument is waived. See 
    id.
    -11-
    item was transported or produced in interstate or foreign commerce by any means.
    See Schwarte, 
    645 F.3d at 1033
    .
    Hensley brings two main challenges to the sufficiency of the evidence as to
    Count 3. He first argues that the government failed to prove the jurisdictional
    element beyond a reasonable doubt. He does not dispute that agents found three
    images of child pornography in unallocated space on Hensley’s computer. He also
    does not dispute that the computer on which the images were found was
    manufactured in China, which this Court has found sufficient to satisfy the
    jurisdictional element of § 2252. See United States v. Koch, 
    625 F.3d 470
    , 479 (8th
    Cir. 2010) (citing United States v. Mugan, 
    441 F.3d 622
    , 627-30 (8th Cir. 2006)).
    Accordingly, Hensley’s first argument fails.
    Second, Hensley asserts that the evidence was insufficient to show that he
    knowingly possessed the images by virtue of their location in unallocated space on
    his computer. Although “the location of child pornography in inaccessible internet
    and orphan files can raise serious issues of inadvertent or unknowing
    possession . . . these are issues of fact, not of law.” United States v. Kain, 
    589 F.3d 945
    , 949 (8th Cir. 2009). Here, there was sufficient circumstantial evidence
    supporting a finding that Hensley knowingly possessed the images, even if there is
    some evidence supporting his alternative explanation that he did not know those files
    were located on his computer and were automatically downloaded by his browser.
    Where the evidence “rationally supports two conflicting hypotheses,” we “will not
    disturb the conviction.” United States v. McArthur, 
    573 F.3d 608
    , 614-15 (8th Cir.
    2009) (citation omitted) (affirming conviction for possession of child pornography
    over defendant’s argument that images’ location in unallocated space meant he did
    not knowingly possess them). A reasonable jury could find that Hensley knowingly
    possessed these images, notwithstanding the fact that they were located in
    unallocated space on the computer. Accordingly, we conclude that the evidence was
    sufficient to sustain Hensley’s conviction for possession of child pornography.
    -12-
    B.
    Hensley also contends that the district court erred in instructing the jury in two
    respects. First, Hensley challenges the instruction on how the jury may properly
    consider the evidence of his prior convictions. Second, Hensley challenges
    Instruction Nos. 9 and 11’s illustrative examples regarding a “substantial step” for
    Counts 1 and 2, respectively.
    1.
    Hensley argues that the district court erred in not giving a written limiting
    instruction that his prior convictions may not be considered as evidence that he
    committed the crimes at issue. We review the district court’s instruction on prior
    conviction evidence for plain error because Hensley failed to make a
    contemporaneous objection before the district court. See United States v. Poitra,
    
    648 F.3d 884
    , 887 (8th Cir. 2011). To succeed under the plain error standard,
    Hensley must show there was an error that is clear or obvious under current law; the
    error affected his substantial rights; and the error “seriously affects the fairness,
    integrity, or public reputation of judicial proceedings.” 
    Id.
    At trial, the government introduced into evidence certified records of
    Hensley’s prior child sex crimes convictions. Hensley then requested a limiting
    instruction, which the district court granted. As Hensley requested, the district court
    verbally admonished the jury that it “may not consider these convictions as evidence
    he actually committed the crimes that he’s charged with in this case.” R. Doc. 111,
    at 35. Hensley did not object or request any other specific language in this limiting
    instruction.
    At the initial instructions conference, Hensley requested a “[Federal Rule of
    Evidence] 404(b) limiting instruction” regarding his prior convictions. The district
    court rejected his request because, under Rule 414, his prior convictions were
    admissible for more purposes than his proposed instruction allowed. Before the final
    -13-
    instructions conference, the district court circulated to the parties its limiting
    instruction, which reads as follows:
    You have heard evidence that the defendant has previously been
    convicted of other sex offenses concerning children. You may consider
    this evidence for its tendency, if any, to show the defendant’s
    propensity to engage in crimes such as those charged in the Superseding
    Indictment. You may also consider that evidence to determine the
    defendant’s intent, knowledge, and whether the charges in the
    Superseding Indictment are a result of mistake.
    R. Doc. 91, at 5. We find the district court’s instruction to be an accurate statement
    of law. See Fed. R. Evid. 414 (providing that, in a criminal case where the defendant
    is accused of certain sex offenses, evidence that the defendant committed other such
    sex offenses is admissible and “may be considered on any matter to which [they]
    [are] relevant”); Fed. R. Evid. 404(b) (providing that “[e]vidence of a crime, wrong,
    or other act” is admissible to prove “motive, opportunity, intent, preparation, plan,
    knowledge, identity, absence of mistake, or lack of accident”). Hensley did not
    object to this instruction, despite having the opportunity to do so at the time the
    instruction was first discussed and again following consideration of the last
    instruction. Moreover, although Hensley had proffered a limiting instruction stating
    that the jury may not convict a person simply because they believe he may have
    committed similar crimes in the past, the instruction further stated that the jury may
    consider prior convictions “only on the issue of [his] intent or lack thereof.” The
    district court rejected the instruction as “too limiting” because it did not say the prior
    convictions were admissible to show propensity, knowledge, or lack of mistake or
    accident. R. Doc. 115, at 3-4. The district court did not err in rejecting Hensley’s
    instruction because it was an incorrect statement of law. Additionally, the district
    court’s Instruction No. 2 reiterated the limitation on the jury’s consideration of
    Hensley’s prior convictions, stating: “[I]f you were instructed that some evidence
    was received for a limited purpose, you must follow that instruction.” “[A] jury is
    presumed to follow all instructions.” United States v. Paul, 
    217 F.3d 989
    , 997 (8th
    Cir. 2000) (citing Jones v. United States, 
    527 U.S. 373
    , 394 (1999)).
    -14-
    Even if it was error for the district court not to expressly repeat in the written
    jury instructions the admonition that the jury could not consider Hensley’s prior
    convictions as evidence that he actually committed the crimes at issue, that error was
    not clear or obvious under existing law. Given the district court’s verbal and written
    instructions as a whole, the substantial evidence presented, and the fact that only the
    convictions and not the underlying facts were admitted, any error did not affect
    Hensley’s substantial rights or the fairness, integrity, or reputation of the
    proceedings. See Poitra, 
    648 F.3d at 887
    . Accordingly, there is no plain error
    warranting relief.
    2.
    Hensley timely objected to the district court’s use of illustrative examples in
    Instruction Nos. 9 and 11. “Accordingly, we review for abuse of discretion.” United
    States v. White, 
    863 F.3d 784
    , 790 (8th Cir. 2017). “[W]e evaluate jury instructions
    by viewing them as a whole and affirm if the instructions fairly and adequately
    submitted the issues to the jury.” United States v. Wright, 
    246 F.3d 1123
    , 1128 (8th
    Cir. 2001).
    A district court “may comment on evidence to assist the jury so long as it
    makes it clear that the jurors must make all factual determinations themselves.”
    United States v. Ray, 
    250 F.3d 596
    , 602 (8th Cir. 2001). However, it must avoid
    placing undue emphasis on one party’s evidence. See Caviness v. Nucor-Yamato
    Steel Co., 
    105 F.3d 1216
    , 1222 (8th Cir. 1997). “A [district] court must be careful
    if it intends to tie in principles of law to the facts.” Vanskike v. ACF Indus., Inc.,
    
    665 F.2d 188
    , 202 (8th Cir. 1981).
    We find the Tenth Circuit’s decision in United States v. Bowen, where the
    court rejected a defendant’s challenge to a jury instruction containing an illustrative
    example, to be instructive. See 
    437 F.3d 1009
    , 1017 (10th Cir. 2006). In Bowen,
    the defendant was charged with and convicted of possession with the intent to
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    distribute methamphetamine. 
    Id. at 1013-14
    . The court determined there was
    sufficient evidence to support the jury’s verdict, including evidence that the
    defendant constructively possessed the drugs based on his presence in the car where
    the drugs were found, his reaching under the passenger’s seat, his nervousness
    around the police, and the plastic baggies associated with drug distribution that
    police found in his pockets. 
    Id. at 1015
    . On appeal, he challenged a jury instruction
    explaining what the government must show to prove that he constructively possessed
    the drugs. 
    Id. at 1016-17
    . The challenged instruction stated:
    In addition to knowingly having the power or ability to control an
    object, the government must prove an act on the part of the defendant
    by which that power or ability is manifested and implemented, such as
    an act placing the object within easy reach of the defendant, or an act
    concealing the object from view.
    
    Id. at 1017
     (emphasis omitted). The defendant complained that the above-quoted
    portion “provided a ‘formula for conviction’ because it supplied the jury with
    specific examples of the evidence which would support a plausible inference that he
    had knowledge of” the drugs. 
    Id.
     The Tenth Circuit concluded that the instruction
    was not reversible error. 
    Id.
     It reasoned that the instruction was a correct statement
    of the law and that the examples “assisted the jury’s understanding of constructive
    possession.” 
    Id. at 1018
    . Further, the court opined that the examples “were worded
    broadly and did not too closely track the specific facts presented in [the defendant’s]
    case. Equally important, the examples provided did not unduly emphasize the
    prosecution’s theory of the case, or usurp the jury’s fact finding role.” 
    Id.
    By contrast, the Second Circuit in United States v. Dove vacated a defendant’s
    conviction for bank robbery based upon two “unbalanced” jury instructions. See
    
    916 F.2d 41
    , 45-46 (2d Cir. 1990). The first challenged instruction centered on the
    eyewitnesses’ failure to identify the defendant in the courtroom after identifying him
    in a police lineup. 
    Id. at 43-44
    . The first instruction read as follows:
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    The government has the burden of proving [the defendant’s] identity as
    the perpetrator beyond a reasonable doubt. In this connection, it is not
    essential that a witness be able to identify a defendant in open Court or
    be free from doubt as to the correctness of her identification of the
    defendant by other means. However, if you are not convinced beyond
    a reasonable doubt that the defendant was the person who committed
    the crime, you must find him not guilty.
    
    Id. at 44
     (emphasis added). The court concluded the instruction was “unbalanced
    because it instructed the jury as to how the [government’s key] witnesses’ inability
    to identify the defendant in the courtroom might bear on guilt without indicating
    how this rather significant evidence might bear on innocence.” 
    Id. at 45
    . The court
    further noted that the imbalance could have been cured by adding the defendant’s
    proposed one-sentence instruction advising the jury that it was “free to consider and
    weigh the effect” of the eyewitnesses’ failure to identify the defendant in the
    courtroom. 
    Id.
    The second challenged instruction concerned the difference between direct
    and circumstantial evidence. 
    Id. at 44
    . The majority of the government’s evidence
    was circumstantial. See 
    id. at 43-44
    . The instruction read as follows:
    Now, to illustrate the difference between direct and circumstantial
    evidence, let us assume that the fact in issue in a case is whether Jack
    shot and killed Mary. If a witness testified that he personally saw Jack
    shoot Mary, then we would say we have direct evidence of that fact.
    On the other hand, if a witness testifies that an hour before Mary was
    shot he sold Jack the pistol which has been identified as the murder
    weapon, and it was found in Jack’s possession shortly after the murder,
    we would say we have circumstantial evidence of the fact that Jack did
    shoot Mary. That, as I say, is a very simple illustration and has no direct
    bearing on this case at all, but is illustrative of what I mean by
    circumstantial evidence.
    
    Id. at 44
    . The Second Circuit opined that this instruction was improper because it
    assumed Jack’s guilt in the premise, “and the jury is merely instructed how to look
    for evidence of that guilt.” 
    Id. at 46
    . Although the example “was not analogous to
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    the facts of this case, the use in a criminal case of a hypothetical that assumes guilt
    where defendant asserts his innocence is disfavored.” 
    Id.
     The court also pointed out
    that “[v]irtually all of the circumstantial evidence pointed towards the possibility of
    [defendant’s] innocence.” 
    Id.
     Finally, the court noted that the government and the
    defense had jointly urged the district court to use a neutral hypothetical, which the
    district court rejected. 
    Id. at 45-46
    .
    We are troubled by the district court’s use of one-sided illustrative examples
    in Instruction Nos. 9 and 11, particularly Instruction No. 11’s close similarity to the
    facts of Hensley’s case. The examples are troublesome because they explain how
    the jury could find in favor of the government on the attempt element without
    explaining how the jury might find in favor of Hensley. However, viewing the
    instructions as a whole, see Wright, 
    246 F.3d at 1128
    , we conclude that the district
    court did not commit reversible error. Importantly, the district court also instructed
    the jury that it “should not take anything I have said or done during the trial as
    indicating what I think of the evidence or what I think your verdict should be.” R.
    Doc. 115, at 88. In so doing, the district court made clear that “the jurors must make
    all factual determinations themselves.” See Ray, 
    250 F.3d at 602
    . And like the
    instructions in Bowen, Instruction Nos. 9 and 11 are correct statements of law. See
    United States v. Herbst, 
    666 F.3d 504
    , 511 (8th Cir. 2012) (driving to a location may
    constitute a substantial step); Schwarte, 
    645 F.3d at 1030-31
     (asking minor to send
    nude pictures and videos of herself, offering to provide her a laptop in exchange for
    said pictures or videos, and providing a mailing address where she could mail video
    is a substantial step in furtherance of production of child pornography).
    Additionally, they assisted the jury’s understanding of a substantial step with respect
    to Counts 1 and 2. Cf. Bowen, 
    437 F.3d at 1018
    . Moreover, the instructions were
    permissive and did not compel the jury to reach a particular conclusion regarding
    the evidence. Although Instruction No. 11 arguably tracks more closely with the
    facts of Hensley’s case than the instruction in Bowen, this fact does not change our
    conclusion. Taken as a whole, the instructions do not unduly emphasize the
    prosecution’s theory or usurp the jury’s fact-finding role.
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    The government represented at oral argument that the use of illustrative
    examples is common practice in the Eastern District of Arkansas. Nevertheless, we
    discourage the use of such one-sided jury instructions, particularly where, as here,
    they contain illustrative examples which track closely with the facts of a defendant’s
    case. Nonetheless, the district court’s inclusion of such examples here falls short of
    reversible error.
    C.
    Hensley next contends that the prosecutor made five improper remarks and
    misstated the evidence during closing arguments, and that these remarks and
    misstatements were so grave that they warrant reversal and remand for a new trial.
    Because Hensley failed to object to the closing remarks at trial, we review them only
    for plain error. See United States v. Robinson, 
    439 F.3d 777
    , 780 (8th Cir. 2006).
    First, the government remarked that Hensley waited at the Exxon for two-and-a-half
    to three hours. Second, the government stated that a person cannot get to the private
    browser function without being intentional about it. Third, the government argued
    that Hensley’s accessing browser sites was intentional and that the experts did not
    testify that the sites in his browser history showed up as pop-ups. Fourth, the
    government argued that police found only three child porn images on Hensley’s
    computer because Hensley ran the CCleaner program and spent time deleting
    images. Finally, the government stated that Gray, the defense expert, did not access
    the actual content of the porn sites in Hensley’s browser history because “he knew
    what was on it,” implying that he knew they contained child pornography.
    Having carefully reviewed the five challenged remarks, we conclude that they
    were fairly supported by the evidence or reasonable inferences therefrom, and any
    error was not so prejudicial as to warrant reversal under plain error review.
    Additionally, because the district court properly instructed the jury on the elements
    of the offenses and “instructed the jury that arguments of counsel are not evidence,
    there is no plain error warranting relief.” See United States v. Mullins, 
    446 F.3d 750
    , 760 (8th Cir. 2006) (citation omitted).
    -19-
    III.
    Hensley further argues that the district court erred in denying his motion to
    suppress on the sole ground that his interrogation on October 13, 2017, was custodial
    and the agents failed to advise him of his Miranda rights. “In reviewing the denial
    of a motion to suppress, we review the district court’s factual findings for clear error
    and its legal conclusions de novo.” United States v. Ferguson, 
    970 F.3d 895
    , 901
    (8th Cir. 2020).
    Even if the district court’s failure to suppress Hensley’s statements was error,
    we find it was harmless. “An error is harmless if it does not affect substantial rights
    of the defendant, and did not influence or had only a slight influence on the verdict.”
    United States v. Martinez, 
    462 F.3d 903
    , 910 (8th Cir. 2006) (citation omitted).
    Given the other admissible evidence against Hensley, including his own testimony
    at trial, we conclude that failure to suppress his statements did not sufficiently
    influence the jury as to require reversal. Accordingly, any error was harmless. See
    
    id.
     (finding district court’s failure to suppress defendant’s statements to be harmless
    error given other evidence).
    IV.
    Finally, Hensley challenges the legality of his sentence for Count 3, arguing
    that 420 months imprisonment exceeds the statutory maximum. The government
    agrees. But because Hensley did not object to the illegality of the sentence at
    sentencing, it is reviewed only for plain error. See United States v. Bossany, 
    678 F.3d 603
    , 606 (8th Cir. 2012) (failure to object at trial to illegality of sentence that
    exceeded statutory maximum results in plain error review). Though this error is
    plain, under plain error review, we may correct the error only if it “affects substantial
    rights[] and ‘seriously affects the fairness, integrity, or public reputation of judicial
    proceedings.’” 
    Id.
     (quoting United States v. Pirani, 
    406 F.3d 543
    , 549 (8th Cir.
    2005) (en banc)). An error affects substantial rights by “prejudicially influenc[ing]
    the outcome of the district court proceedings.” 
    Id.
     (alteration in original) (citation
    -20-
    omitted). In this sentencing context, Hensley must show that, “absent the error, the
    [district] court could not have imposed [420] months[] imprisonment as his total
    punishment.” 
    Id. at 607
    . As Hensley acknowledged more than once during
    sentencing, the mandatory minimum sentence for Count 2 is 420 months. Thus,
    even absent the plain error as to Count 3, the district court was required to impose
    420 months imprisonment as Hensley’s total punishment. Accordingly, Hensley
    cannot show prejudice necessary for plain error relief as to the sentence, and
    Hensley’s request to vacate the sentence is denied.
    V.
    For the foregoing reasons, we affirm the judgment of the district court.
    ______________________________
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