United States v. Robert Hensley, 982 F.3d 1147

Background

FBI undercover posted a Craigslist ad posing as a father and (fictitious) daughter; the undercover told Hensley the daughter was 14 during text exchanges. Hensley continued to send explicit messages, asked for nude photos, offered money, and agreed to meet at a gas station.
Hensley called the National Human Trafficking Hotline the night of the chats, drove to the planned meeting location, and later invited the undercover to his home; agents located him, used a ruse call, pulled him over, and obtained consent to search his home and laptop.
Forensic exam of the laptop recovered three deleted (unallocated-space) images of child pornography; CCleaner had been run on the computer. Browser history showed visits to sites emphasizing youth; Hensley admitted using the laptop for internet pornography.
The government introduced certified records of Hensley’s prior child-sex convictions; the court gave a limiting instruction and permitted the convictions for propensity, intent, knowledge, and lack of mistake under Rule 414.
Hensley was convicted by a jury on attempted enticement (18 U.S.C. § 2422(b)), attempted production of child pornography (18 U.S.C. §§ 2251(a), 2251(e)), and possession of child pornography (18 U.S.C. § 2252(a)(4)(B)); sentenced to concurrent 420-month terms. He appealed denial of suppression, sufficiency, jury instructions, closing arguments, and Count 3 sentence legality.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Motion to suppress (stop/questioning/statements)	Stop and questioning lawful; encounter was consensual; any waiver of Miranda was knowing or interrogation was non-custodial.	Stop was unlawful seizure and interrogation was custodial; statements should be suppressed for Miranda violations.	Court affirmed denial: officers had reasonable suspicion for stop; encounter became consensual; Miranda waiver was valid or interrogation non-custodial; any error harmless.
Sufficiency — attempted enticement (Count 1)	Texts showed belief the girl was 14, explicit negotiations, arranged meeting and travel constitute intent and substantial step.	Ad listed age 18; Hensley said he was not into minors and called hotline; he did not directly contact a minor or complete the meeting.	Evidence sufficient: undercover told Hensley the girl was 14; explicit messages and driving to meet satisfy intent and substantial-step.
Sufficiency — attempted production (Count 2)	Hensley asked for fotos of the minor’s genitals and negotiated sex — an intent to obtain sexually explicit images and a substantial step.	Hensley disputed belief the girl was a minor and argued request was unserious or images could preexist.	Evidence sufficient: jury could infer belief, sexual purpose, and that requesting genital photos was a substantial step.
Sufficiency — possession (Count 3)	Three child-porn images found on his laptop (manufactured in China) satisfy interstate-commerce and, with circumstantial evidence, knowing possession.	Images were in unallocated space (deleted/orphan files); could be inadvertent downloads or pop-ups — no knowing possession.	Evidence sufficient: jurisdiction satisfied by foreign manufacture; knowing-possession disputed but properly a factual question for the jury.
Jury instructions (prior convictions; illustrative examples)	Instructions correctly stated Rule 414/404(b) uses; examples help explain "substantial step."	Requested a more limiting written admonition; objected that illustrative examples were one-sided and tracked prosecution facts, risking undue emphasis.	No reversible error: limiting instruction given verbally and in part in writing; illustrative examples were legal and permissive though the court discouraged one-sided examples.
Prosecutorial closing remarks	Remarks were supported by evidence or reasonable inferences (duration at Exxon, intentional private browsing, CCleaner use, defense expert’s conduct).	Several statements misstated evidence and were prejudicial, warranting reversal.	No plain error: comments were supported or reasonable inferences; jury instructions mitigated argument-only status.
Sentence legality (Count 3)	Even if Count 3 sentence exceeded its statutory maximum, Count 2 mandatory minimum required 420 months, so no prejudice.	420 months exceeds Count 3 statutory maximum and is therefore illegal as to that count.	Plain error in exceeding Count 3 maximum was found but not remediable because Count 2’s mandatory minimum produced the same total sentence (no prejudice).

Key Cases Cited

United States v. Young, 613 F.3d 735 (8th Cir. 2010) (enticement substantial-step examples)
United States v. Spurlock, 495 F.3d 1011 (8th Cir. 2007) (attempt conviction where intermediary was used; no actual minor required)
United States v. Pierson, 544 F.3d 933 (8th Cir. 2008) (attempted production sufficiency where defendant asked fictitious minor for nude images)
United States v. Schwarte, 645 F.3d 1022 (8th Cir. 2011) (asking minor for nude images can be a substantial step toward production)
United States v. Koch, 625 F.3d 470 (8th Cir. 2010) (foreign manufacture of device can satisfy § 2252 interstate-commerce element)
United States v. Mugan, 441 F.3d 622 (8th Cir. 2006) (similar holding on jurisdictional element via foreign manufacture)
United States v. Kain, 589 F.3d 945 (8th Cir. 2009) (issues arising from images in unallocated/orphan files are factual questions)
United States v. McArthur, 573 F.3d 608 (8th Cir. 2009) (affirming possession conviction despite files in unallocated space)
United States v. Bowen, 437 F.3d 1009 (10th Cir. 2006) (permissible use of illustrative jury examples that assist without usurping jury role)
United States v. Dove, 916 F.2d 41 (2d Cir. 1990) (vacating conviction for unbalanced jury instructions that assumed guilt in hypotheticals)
United States v. Poitra, 648 F.3d 884 (8th Cir. 2011) (plain-error review for jury instruction objections)
United States v. Mullins, 446 F.3d 750 (8th Cir. 2006) (closing-argument standard and instruction mitigation)
United States v. Martinez, 462 F.3d 903 (8th Cir. 2006) (harmless-error standard for suppression rulings)
United States v. Bossany, 678 F.3d 603 (8th Cir. 2012) (plain-error review in sentencing and prejudice requirement)