Category: Sexual Abuse

Double Jeopardy and Private Searches – “He got weed, He got weed”

Double Jeopardy stands for the principle that a person can’t be convicted for the same crime twice. Sometimes laws are created that involve the exact same action. A conviction for both crimes can have an effect on sentencing and how many years someone may spend in prison.

Below is a case that discusses what the courts look to when considering Double Jeopardy. This case also has a good discussion on when the right to invoke counsel has taken place and when Miranda is necessary.

Miranda is not required for statements taken from people not in custody. In determining custody status, the Courts will look to the objective facts and not the subjective intent of the officers.

Finally, this case also discusses when the 4th Amendment of the Constitution applies for searches and why a search by a private party not acting on the behalf of the government is not governed by the 4th Amendment of the Constitution.

When reading this case, I couldn’t help but think of the Chris Rock video where he plays a man who upsets his girlfriend in the car. When the officers pull them over, the woman starts yelling, “he got weed, he got weed”

United States v. Randall Muhlenbruch
App. from S.D. Iowa


Factual Summary:

Defendant Muhlenbruch was assaulted by his wife. The wife was ordered to move out of the apartment, but she still stayed. The then Wife claimed she found Child Pornography on her husband’s computer. The wife claims when she confronted Defendant Muhlenbruch he agreed to delete the images but she then convinced him not to do so. When Defendant Muhlenbruch left the home to run errands, the wife had a friend come to the home and copy the Child Pornograpy files onto a CD. The wife’s friend then took the images to the police.

The officers viewed the images and prepared a search warrant. Officers conducted surveillance on the apartment. When Defendant Muhlenbruch and his wife showed up, officers approached Defendant Muhlenbruch. Defendant Muhlenbruch was not placed under arrest but was taken to the police station in the back of a patrol car for questioning. The wife told officers she found the Child Pornography and had friend make copies of it to turn over to the police.

Defendant Muhlenbruch was interrogated and the interrogation was recorded on DVD. Officers said he was free to leave. Defendant Muhlenbruch asked if he needed an attorney. Offices said that was up to him. Muhlenbruch then confessed. After the confession, Defendant Muhlenbruch again asked if he should have an attorney. Finally, Defendant Muhlenbruch asked for a lawyer.

The facts are clear that Defendant Muhlenbruch was not advised of his Miranda rights before his statement was taken. Defendant Muhlenbruch eventually consented to the search of his computer as well. Defendant Muhlenbruch was not arrested and was taken back home.

Defendant Muhlenbruch was indicted by a Grand Jury. Defendant Muhlenbruch filed motions to suppress his statements and the evidence obtained during search of his apartment and the computers hard drive.

The Federal District Court denied the motions. The Federal District Court sentenced Defendant Muhlenbruch to two concurrent 120 month. sentences after jury verdict of guilty on knowingly receiving Child Pornography and knowingly possession Child Pornography.


(1) Motion to Suppress Statements and Evidence
a. Defendant Muhlenbruch asserts that his statements should be suppressed because he was nott advised of his Miranda rights and the statements were involuntary.

b. The Federeal 8th Circuit Court of Appeals ruled:

1. Miranda warnings are required when interrogation is initiated by officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

2. Custody is determined under totality of circumstances. The Court looks to whether a reasonable person in his position would consider his freedom of movement restricted to the degree associated with formal arrest.

3. The focus of the analysis is on the objective circumstances, not the subjective opinions or determinations of the officers.

4. The factors to consider are:

a. whether the suspect was informed he was free to
leave and answering was voluntary;

b. whether the suspect possessed freedom of movement;

c. whether the suspect initiated contact or voluntarily
acquiesced to the statement;

d. whether the strong arm tactics or strategies were
employed by law enforcement;

e. whether the atmosphere of the interview was police dominated;

f. whether the suspect was placed under arrest at end
of questioning.

5. In this case the Federal Court of Appeals Ruled that the Defendant was not in custody.

a. Since he was not in custody there is no need to
provide Miranda and no need to evaluate argument that officers denied his unambiguous request for counsel.

b. Regarding the voluntary nature of his statement, the Federal Court of Appeals 8th Circuit said:
1. A conviction based on involuntary confession, obtained through police coercion violates Due Process and any such conviction must be overturned.

2. A statement is considered involuntary if it was extracted by threats, violence, or express or implied promises sufficient to overbear the Defendant’s will and critically impair his capacity for self-determination.

3. The Court will look at the totality of the ircumstances and the conduct of the officers and characteristics of the accused.

4. In this case, The Federal Court of Appeals 8th Circuit ruled that the confession was voluntary.

a. there was no indication he was sleep deprived or under influence of alcohol thus making him more susceptible to coercion.

6. Regarding the motion to suppress the evidence found on the Computer, the Federal Court of Appeals 8th Circuit ruled-

A . A search by a private citizen is not subject to the
strictures of the 4th Amendment of the Constitution unless the private citizen is acting as a government agent.

B. In order for a citizen to be considered a government agent, the Court looks to:

a. whether the gov’t had knowledge of and
acquiesced in the search;

b. whether the citizen intended to assist law
enforcement to further his own purposes; and

c. whether the citizen acted at the gov’t’s request.

C. In this case, the wife did her own independent investigation and her friend copied the files at the request of the wife, not law enforcement. Therefore, there was no government involvement in the initial search and the 4th Amendment of the Constiution does not apply.

7. The Court then ruled on Double Jeopardy for Possession and Receipt conviction for same images.

a. The 8th Circuit Federal Court of Appeals said:

1. In order to establish a violation of the clause, the Defendant must show he was convicted of two offenses that are in law and fact the same offense.

2. if the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offense or only one is whether each provision
requires a proof of a fact which the other does not.

3. For the analysis, the Court looked to Ball v. U.S. 470 U.S. 856 (1985).

a. The Court determined that Congress did not intend to
punish felons for both possessing and receiving the same firearm under different statutes because proof of illegal receipt of a firearm necessarily includes proof of illegal possession of that weapon.

b. The Federal Court of Appeals in the 9th Circuit in the case of U.S. v. Schales 546 F.3d 965, determined possession of Child Pornography is lesser included offense of receipt of Child Pornography.

4. The 8th Circuit Court of Appeals agreed that that proof of receiving child pornography necessarily includes that of receiving child pornography and therefore the multiple convictions violate double jeopardy.

Cell Phone Use Increases Prison Sentence By 28 Months

The Federal Court considers many factors when determining an appropriate sentence for a Defendant after conviction. One factor the Courts consider are the sentencing guidelines. These Guidelines can be found in the Federal Sentencing Guidelines Manual. These Guidelines were derived at after studies were completed on how people were sentenced across the nation and other factors. One original purpose of the guidelines was an attempt to eliminate disparity in sentences amongst Defendants convicted of similar crimes.

The Guidelines begin by establishing a base level offense and a criminal history category. The criminal history category is determined by your criminal past. Even State misdemeanor offenses can have a significant effect on this category.

The offense level begins with the base level. This is the category the crime convicted of fits into. From this base level offense, the level may increase or decrease based on several factors. Some of these factors are not necessarily in the specific language of the actual offense for which a conviction occurred. The Court may consider such things as whether the victim is considered vulnerable under the Guidlelines, If the offense is based on the race or religion of the victim, whether the Defendant is to be considered a manager or leader in the offense, and many other considerations. Below is a case where the use of a cell phone to commit the offense enhanced the level to a point where the Defendant will serve an extra 28 months in prison for using the cell phone.

United States v. Neil Kramer
App. from W.D. Mo.

Facts Summary: Defendant Kramer pled guilty to transporting a minor in interstate commerce
with the intent to engage in criminal sexual activity with her. Mr. Kramer acknowledged that he used his cellular telephone to make voice calls and send text messages to the “victim” for a 6 month period. The cell phone did not have internet capabilities. At sentencing, the District Court concluded that the phone was a “computer” and applied a two point enhancement for its use to facilitate the offense
pursuant to USSG §2G1.3(b)(3). The Court sentenced Mr. Kramer to 168 months. The District Court acknowledged that had it not been for the computer enhancement, Mr. Kramer would have been sentenced to 140 months.

Mr. Kramer appealed arguing the enhancement was procedural error
because a cell phone used could only to make voice calls and engage in text messages. Therefore this phone should not be considered a “computer.”


(1) The Court may consider a cell phones a computer

a. Defendant Kramer argued:

1. The District Court incorrectly interpreted term “computer” to
include basic cell phone.

2. The sentencing enhancement should apply only if device is used
to access the internet.

b. The 8th Circuit Federal Court of Appeals ruled:

1. USSG 2G1.3(b)(3) provides a 2 level enhancement for use of a
computer to “persuade, induce, entice, coerce or facilitate the travel of
the minor to engage in prohibited sexual conduct.”

2. A “computer” has meaning given in 18 USC §1030(e)(1), which:

a. Means any electronic, magnetic, optical arithmetic,
or storage functions and includes any data storage facility or
communications facility directly related to or
operating in conjunction with such device.

b. However, the definition does not include an automated
typewriter or typesetter, a portable hand held calculator or other similar

3. Based upon this definition, the Court decided there is nothing in statutory definition that excludes devices because they lack connection to the Internet. Therefore, cellular phones are not excluded from the definition of a computer and therefore the 2 level sentencing enhancement applies.

a. The Court noted that a cell phone makes use of an
electronic data processor and the same is true when it is used to send text messages

Defend yourself against sex crime allegations

In today’s world there is much controversy surrounding sexual abuse and sex crimes. A person accused may find that even if acquitted they are looked upon with suspicion and fear. The allegation itself can carry with significant stigma and social repercussions. Too often, prosecutors charge out criminal sexual conduct cases based solely on the allegations presented. Little physical evidence is often presented. Though it may seem the case is weak, an aggressive defense is necessary. That may include hiring experts to review witness interviews for suggestive language and improper techniques.

Sex crimes widely vary in type and severity; consequences surrounding these alleged crimes will also determine what charges are filed and what potential penalties suspects will face. The Flanagan Law Office represents clients against all types of sex offenses, including:

  • Sexual assault and abuse
  • Aggravated sexual assault
  • Child molestation
  • Internet solicitation
  • Statutory rape
  • Indecent exposure
  • Prostitution or solicitation
  • Child pornography

Here are some helpful steps to remember if you’re ever accused of sexual abuse or a sex crime:

1. Do not give any statements to law enforcement and do not discuss the case with any other people until you have retained legal counsel.

2. Hire an experienced criminal defense lawyer.

3. Write down the names of potential helpful witnesses to aid in your case.

4. After hiring a lawyer, make written notes regarding the allegations. Share these notes with you lawyer.

If you have been accused or arrested for a sex crime in Minnesota, you already know how devastating these charges can be for you and your life.

Contact the Flanagan Law Office, in Fridley, Minnesota, to speak with an experienced attorney about your situation and to learn more information about your rights. Call to schedule a free initial consultation at 763-786-5324 or 651-200-3484.