United States v. Hensley, No. 19-2417 (8th Cir. 2020)
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Hensley, charged with attempted enticement of a minor to engage in illegal sexual conduct (18 U.S.C. 2422(b)); attempted production of child pornography after having previously been convicted of child sex crimes (18 U.S.C. 2251(a) and 2251(e)), and possession of child pornography after having previously been convicted of child sex crimes (18 U.S.C. 2252(a)(4)(B)), moved to suppress evidence of statements he made during a custodial interrogation. The district court denied the motion, finding that officers had reasonable suspicion to stop his vehicle and that the encounter became consensual by the time questioning began. Hensley was convicted on all counts and was sentenced to 420 months’ imprisonment.
The Eighth Circuit affirmed, rejecting arguments that the evidence was insufficient to support his convictions. The court also rejected challenges to the instruction on how the jury could properly consider the evidence of his prior convictions and illustrative examples regarding a “substantial step.” Any error in denying the motion to suppress was harmless. The prosecutor’s closing remarks were fairly supported by the evidence or reasonable inferences therefrom. The court noted that the district court was required to impose 420 months imprisonment as Hensley’s total punishment.
Court Description: [Shepherd, Author, with Loken and Erickson, Circuit Judges] Criminal case - Criminal law. Evidence was sufficient to support defendant's child pornography convictions; the evidence showed he intended to entice the fictitious minor female to engage in illegal sexual conduct and that he took a substantial step towards commission of the crime by planning and ultimately driving to an agreed-upon location to meet the minor; defendant attempted to produce child pornography when he asked for a photograph of the minor's breasts and vagina; the evidence was sufficient to show defendant knowingly possessed child pornography on his computer; the court's jury instruction on consideration of prior convictions and substantive step were not erroneous; the court cautions that instructions using illustrative examples which track closely the facts of a defendant's case are discouraged; the instructions here regarding substantial step toward the commission of an offense fall short of reversible error; the prosecutor's closing arguments were supported by the evidence or reasonable inferences therefrom, and did not warrant reversal under the plain error doctrine; any error in failing to suppress defendant's statements to police was harmless in light of the other evidence in the case, including defendant's own testimony at trial; argument that the court erred in imposing a 420-month sentence on the possession of pornography count rejected as the error was harmless because the mandatory minimum for his conviction on the charge of attempted production of child pornography after having previously been convicted of a child sex crime is 420 months.
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