United States v. Hinkel

2016 | Cited 0 times | First Circuit | September 20, 2016

United States Court of Appeals For the First Circuit

No. 15-1672





Defendant, Appellant.


[Hon. William G. Young, U.S. District Judge]


Thompson, Selya, and Kayatta, Circuit Judges.

Christine DeMaso, Assistant Federal Public Defender, Federal Public Defender Office, District of Massachusetts, for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

September 20, 2016

KAYATTA, Circuit Judge. After being ensnared by a law

enforcement sting operation, Paul Hinkel was charged with using a

means of interstate commerce (the internet) to entice a minor to

engage in illegal sexual activity in violation of 18 U.S.C.

§ 2422(b). He was convicted following a jury trial and sentenced

to ten years' imprisonment, to be followed by five years'

supervised release. On appeal, he claims that a variety of alleged

errors undermined the integrity of the jury's verdict and the

appropriateness of his sentence. After careful review, we affirm

both Hinkel's conviction and the bulk of the sentence imposed by

the district court, finding cause to alter only two conditions of

Hinkel's supervised release.

I. Background

At trial, the government relied chiefly on evidence of

electronic messages exchanged between Hinkel and government agents

posing as a fifteen-year-old girl and her mother. Because Hinkel's

challenge trains partly on the sufficiency of the government's

evidence, we summarize this back-and-forth in considerable detail,

vulgar and lewd as it is.

On February 14, 2014, an agent with the Department of

Homeland Security placed a personal advertisement on the "Casual

Encounters" online message board, a subsection of the website

Craigslist frequented by those seeking adult sex partners. Using

the name "Lisa Richards," the agent published a post entitled "mom

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with daughter looking--w4m--38 (Boston)."1 In its entirety, the

post stated: "open minded mom DDF with daughter looking for male

that might be interested in taboo relationship, some dom.........

needs to be discreete though. if you have an interest in a

interesting relationship contact me, use intersting in subject

line. we will chat off CL."2

At 12:54 pm that day, Craigslist user "ctautumn," later

identified as Hinkel, responded to the advertisement via email

using the subject line "VERY INTERESTING AND INTRIGUING." Hinkel

told "Lisa" that he was "an experienced Daddy/Dom and [he] ha[d]

been looking for this type of scenario." He then listed some of

his "taste[s]" and provided graphic descriptions of sexual acts

that he imagined engaging in with "Lisa" and her daughter. Forty-

five minutes later, the agent responded, writing that "she" was

"trying to introduce [her] daughter to sex" and asking if Hinkel

"mind[ed] if shes young?" Prompted by Hinkel's responsive request

for her daughter's age, "Lisa" informed Hinkel that her daughter

"Samantha" was "15 but experienced."

1 According to trial testimony, the use of "w4m" signified that the poster was a "w[oman]" seeking a "m[an]." Throughout this opinion, we reproduce the text of Hinkel and the agents' communications warts and all, with minimal editorial revisions for clarity. 2 Testimony reflected that in the parlance of these online postings, "DDF" meant "drug and disease free," "dom" meant "dominate," and "CL" meant "Craigslist."

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Seven minutes later, at 2:05 pm, Hinkel responded:

"Sounds very naughty! I am concerned about her age since legally

she should be 16 or older."3 He asked whether "Lisa's" daughter

had "played in this type of scene before" and whether "Mommy and

daughter play together as well," stating that he found "that kind

of play so very erotic," and that it was a "big turn on for [him]."

In response, at 2:10 pm, "Lisa" wrote, "shes not [16 or older] so

i guess this conversation is over." But Hinkel insisted otherwise,

replying, one minute later, to say, "Nope..... It is not over! I

want to talk more! I'm very intrigued by it all. Such taboo and

naughty play!!!!"

Over the course of roughly the next month, Hinkel

corresponded frequently and in lurid detail with "Lisa" and her

fictitious daughter "Samantha." In subsequent emails, "Lisa" told

Hinkel that she was looking for a man to "teach[] her [daughter]"

and that she wanted "Samantha" "to experience sex with a man the

right way." Hinkel frequently expressed eagerness to perform this

role, describing his own sexual desires in detail. From time to

time, though, he also expressed what he called "conflicting

3 Hinkel was correct about this as a matter of Massachusetts law, see Mass. Gen. Laws ch. 265, § 23; ch. 277, § 39, meaning that he would not have been guilty of the crime of conviction had he simply responded by stating his intention to wait until "Samantha" turned sixteen to engage in the sexual conduct.

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feelings" regarding the criminal conduct he was preparing to engage

in. At one point Hinkel told "Lisa":

I once placed an ad looking for this very type of scenario, but to be honest the ad stated that the daughter was to be of legal age. I was taken back a bit when you said she wasn't. The last thing I want to do to any girl is damage her emotionally. I'm very caring. As long as she is desires this, I am game.

On another occasion, Hinkel wrote "Lisa" that when he

arrived to meet "Samantha" he would "play it by ear and gauge it

based on Samantha's feelings and comfort level," saying that he

was "nervous . . . [to] be with such a young girl" and "sooooooooo

very concerned about her and how she will feel." "Lisa" reassured

Hinkel, saying "i think you will love her...and i appreciate the

way you describe our situation :)," telling him that the planned

encounter would be "such an amazing experience for us to have


Hinkel and "Lisa" formed plans to stage their encounter

with "Samantha" at "Lisa's home" in Watertown, Massachusetts, on

March 19, 2014. A week before, Hinkel exchanged emails directly

with "Samantha." Referring to her as "sweetheart," Hinkel promised

to make the experience "fun and enjoyable" for this fifteen-year-

old girl. When "Samantha" said that she liked it when she

"rub[bed] herself," Hinkel asked if she would like him to "touch

[her] there as well." In one of his final messages to "Lisa,"

Hinkel asked whether "Samantha" knew she could never tell anyone

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about their planned encounter because, in his words, "you and I

can get into a lot of trouble. Even years later."

On the appointed day, Hinkel arrived at the Watertown

residence where he was greeted by arresting officers. He consented

to a search of the bag he was carrying and of a lockbox in his

vehicle. These searches--and later searches of his home and work

computers--yielded evidence, ultimately introduced at trial, that

we will discuss in greater detail later in this opinion.

II. Analysis

A. Entrapment

Hinkel does not contest that he was the author of the

"ctautumn" emails and text messages sent to the government agents.

His chief defense at trial was entrapment.

The defense of entrapment "exists to prevent 'abuse[]'

of the 'processes of detection and enforcement . . . by government

officials' who might instigate an illegal 'act on the part of

persons otherwise innocent in order to lure them to its commission

and to punish them.'" United States v. Díaz-Maldonado, 727 F.3d

130 , 137 (1st Cir. 2013) (alterations in original) (quoting

Sorrells v. United States, 287 U.S. 435 , 448 (1932)). When the

defense is properly raised, we apply a two-part test. First, we

look at the government's conduct to see if it is of the type that

would cause a person not otherwise predisposed to commit a crime

to do so. See id. Examples of such "government overreaching"

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include "excessive pressure by the government upon the defendant

or the government's taking advantage of an alternative, non-

criminal type of motive." United States v. Gendron, 18 F.3d 955 ,

961–62 (1st Cir. 1994). If the government does employ "methods of

persuasion or inducement that create a substantial risk

that . . . an offense will be committed by persons other than those

who are ready to commit it," Model Penal Code § 2.13(1)(b), "we

proceed to a second step and look at the particular person to see

if that person was in any event predisposed to commit the crime,"

Díaz-Maldonado, 727 F.3d at 137; accord Gendron, 18 F.3d at 962-63.

In seeking an entrapment jury instruction, a defendant

must first shoulder the "modest" burden of making a prima facie

showing that there is some evidence both elements are satisfied in

his or her case. United States v. Vasco, 564 F.3d 12 , 18 (1st

Cir. 2009). If this "'entry-level burden' of production," Díaz-

Maldonado, 727 F.3d at 139 (quoting United States v. Coady, 809

F.2d 119 , 122 (1st Cir. 1987)), is satisfied--as it clearly was in

this case, see, e.g., United States v. Gamache, 156 F.3d 1 , 9–11

(1st Cir. 1998)--then the defendant is entitled to a jury

instruction explaining the defense. In addition,

the burden shifts to the government to prove beyond a reasonable doubt one of two things, either of which defeats the defense: that the government did not wrongfully induce the accused to engage in criminal conduct or that the accused had a predisposition to engage in such conduct absent the inducement.

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United States v. DePierre, 599 F.3d 25 , 27 (1st Cir. 2010).

The district court instructed the jury on the parameters

of the entrapment defense using the pattern jury instructions

commonly used by district courts in this circuit, declining to

give a lengthier instruction requested by Hinkel. The court also

denied Hinkel's motion for judgment of acquittal premised on the

government's failure to offer evidence sufficient to remove the

inference of entrapment from the proceedings. See Fed. R. Crim.

P. 29. Hinkel challenges both of these unfavorable decisions on


1. Sufficiency of the Evidence

Hinkel put a credible entrapment case to the jury by

arguing that the government's bundling of licit and illicit sex

into a package deal led him to go where he never would have gone

but for the government's clever and sophisticated inducement. The

government went to lengths to create a dressed-up window of

opportunity for the crime to be committed and, on numerous

occasions, downplayed the harm that could be expected to flow from

the commission of the crime by describing how "amazing" the

encounter would be, how "excited" "Samantha" was, and how "Lisa"

"appreciate[d]" how "honest and caring" Hinkel had been in his

messages. As in virtually any sting operation, the fictitious co-

conspirator here also sought to allay concerns about detection by

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the authorities and to build credibility with the target of the

investigation through frequent, familiar communication that

undoubtedly took the "edge" off of the reprehensible conduct under

contemplation. As for predisposition, Hinkel points out that he

had never previously been convicted of a crime, had raised two

adult children and had not been accused of having an inappropriate

relationship with either of them, and that the government had not

uncovered any evidence suggesting that he had other underage


The jury, though, was not buying Hinkel's view of the

evidence. So the question for the district court, and now us, is

whether the evidence of both wrongful inducement and lack of

predisposition was so one-sided that a reasonable jury could not

have found beyond a reasonable doubt that the government carried

its burden of negating the entrapment defense. This question of

evidentiary sufficiency is a question of law that we consider de

novo. United States v. Prieto, 812 F.3d 6 , 13 (1st Cir. 2016).

We resolve that question in the government's favor.

Crucially, the government informed Hinkel at the very outset of

the exchanges--before rolling out the force of its enticements--

that the daughter was only fifteen years old. Promptly thereafter

(only about an hour and fifteen minutes after Hinkel first

responded to the advertisement, and just six emails into the

exchange), the agents pointblank offered him an unambiguous

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opportunity to walk away. The precise words exchanged merit

attention. When told the girl's age Hinkel voiced no firm

objection. Rather, he expressed "concern," and then asked for

more information about her experience. A government agent intent

on inducement might well have simply responded by answering the

question with assurances about her experience. Instead, the agent

treated the expression of concern as a likely objection, and

volunteered that the "conversation [was] over," thereby giving

Hinkel an easy out before he crossed the threshold that led to the

subsequent enticement and assurances that could otherwise be seen

as creating a disposition where none previously existed. Equally

importantly, upon learning the daughter's age and recognizing the

illegal nature of the proposed relationship, Hinkel explained his

refusal to walk away by citing the "taboo" nature of the proposal

as that which made it attractive to him: "I'm very intrigued by

it all. Such taboo and naughty play!!!!"

Hinkel did thereafter make statements that implied some

residual conflict concerning the illegality of the proposal, but

never because he viewed the command of the law as indicative of

what is right and wrong. Rather, his concern about the illegality

of the proposed conduct was one that was assuaged by arrangements

to minimize detection (i.e., confirming that "Samantha" was told

to keep their activities secret). In this respect, he was like a

putative bank robber who hesitated only to make sure that the

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bank's security system was down. He also made clear his position

that he would do nothing that, in his judgment, harmed "Samantha."

But, of course, that is a judgment that the law does not allow him

to make, anymore than it allows a person to kill only those thought

to deserve death. In this respect, Hinkel's self-serving arrogance

in relying on his own version of right versus wrong reasonably

might be seen as an ingredient in his predisposition to commit the


In any event, the important point is that Hinkel was

offered and declined a clear exit at the outset. Hinkel was not

a person who entered a nightclub only to find out several hours

later that it was a bordello. Rather, he was more like the person

who confirmed at the front door the nature of the activity being

offered, and then entered precisely because its greater than

expected "taboo" aspects attracted him. Given such a chronology,

a jury could easily find beyond a reasonable doubt that the agents'

subsequent enticements and assurances, much like those of a pimp,4

were simply reasonable efforts to negotiate the arrangement rather

than wrongful overreaches aimed at using pressure to create a

crime. "This is not a case . . . in which a government agent

4 It is unfortunately not far-fetched to encounter parents pimping their minor children on the internet. See, e.g., Aisha J. v. Ariz. Dep't of Econ. Sec., No. 1 CA-JV 11-0161, 2012 WL 666573 , at *2 (Ariz. Ct. App. Feb. 28, 2012).

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refused to take 'no' for an answer and persisted in recruiting a

target." Díaz-Maldonado, 727 F.3d at 137.

This is also not a case like United States v. Poehlman,

217 F.3d 692 (9th Cir. 2000), where government agents first

established, over the course of six months, a close relationship

with a lonely target whom they then enticed by slowly "play[ing]

on [the target's] obvious need for an adult relationship, for

acceptance of his sexual proclivities and for a family, to draw

him ever deeper into a sexual fantasy world involving these

imaginary girls," id. at 702. Similarly, in State v. Canaday, 641

N.W.2d 13 (Neb. 2002), undercover law enforcement agents strung an

advertisement respondent along for four months before clearly

establishing that the target was expected to have sex with the

fictitious pen pal's children as a requirement of any relationship

with the mother, see id. at 17–20.

Here, the government's tactics as they played out

involved no "psychologically 'graduated' set of responses to [the

target's] own noncriminal responses, beginning with innocent lures

and progressing to frank offers." Gendron, 18 F.3d at 963.

Rather, the initial lure was ambiguous (mother and daughter in

"taboo" and "interesting" arrangement), and the ambiguity was

thoroughly and promptly eliminated before Hinkel sought to explore

and act on the further enticements.

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Because we find that the evidence supported a finding

that the government did not wrongly induce Hinkel to engage in

criminal conduct, we need not reach the question of whether the

government also sufficiently demonstrated that Hinkel was

predisposed to commit the kind of offense in question absent any

governmental involvement. See United States v. Walter, 434 F.3d

30 , 37 (1st Cir. 2006) ("In addressing Walter's primary argument

that the government failed to carry its burden of proving that no

entrapment occurred, we again note that the government's burden is

met if it proves beyond a reasonable doubt that either element of

the defense, inducement or lack of predisposition, fails."); cf.

United States v. Nieves-Burgos, 62 F.3d 431 , 434 (1st Cir. 1995)

("[W]hen a jury returns a general verdict of guilty on a single

count charging more than one criminal act, the verdict stands if

the evidence sufficiently supports any of the acts charged.")

2. Instructions

Hinkel further faults the district court for refusing to

give his requested entrapment instruction. Instead, the court

gave the pattern jury instruction on entrapment commonly used by

district courts in this jurisdiction. See Pattern Crim. Jury

Instr. 1st Cir. § 5.05 (1998). The chief distinction between the

two is that Hinkel's version included examples of government

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activity that might amount to improper inducement to commit a


We see no abuse of discretion in the court's decision or

legal error in its instruction. Arguing otherwise on appeal,

Hinkel relies principally on United States v. Montañez, 105 F.3d

36 (1st Cir. 1997). The defendant in Montañez hung his entire

defense on the theory that he was entrapped by a government agent

posing as a female friend who repeatedly beseeched him to obtain

cocaine for her to resell, claiming that she would lose her

children if he did not help her earn money. Id. at 37–38. When

instructing the jury on entrapment, the district court gave several

examples of inducement by coercion but refused to include examples

of entrapment based on appeals to sympathy. Id. at 38 & n.3. We

5 Hinkel had requested that the district court tell jurors that: Improper inducement may include persuasion, false statements, excessive pressure by the officer, an undue appeal to sympathy, psychological manipulation, or other governmental conduct that creates a risk of causing an otherwise unwilling person to commit the crime charged. Even very subtle pressure, if skillfully applied, can amount to inducement for purposes of the entrapment defense. Some of the inducement factors relevant to enticement of a minor to engage in sexual activity may include a) whether the government made the initial contact; b) whether the government introduced the topics of sex and meeting in person; and c) the extent to which the government influenced the defendant's behavior by portraying the minor as sexually precocious.

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reversed, ruling that by both providing the coercion examples and

"omitting any 'sympathy' examples, the trial court may well have

left the jury with the mistaken impression that coercion is a

necessary element of entrapment and, in this case, such a

misunderstanding could well have affected the outcome." Id. at


Here, the district court did not instruct on entrapment

by setting out some examples of inducement while leaving out other,

more pertinent examples. In its discretion, the court simply stuck

with the standard form, accurately describing the generic defense

of entrapment, and correctly outlining the elements. Unlike in

Montañez, this instruction "adequately inform[ed] the jury of [the

defendant's] theory of defense," id. at 40, and did not suggest

that the conduct here was not wrongful by omitting it from a

description of conduct that was wrongful.

B. Evidentiary Issues

On appeal, Hinkel renews his objections to several

unfavorable evidentiary judgment calls made by the district court

during the course of the trial. Hinkel challenges: (1) the

admission of seventeen photographs and five sexually explicit

cartoons discovered on his work computer; (2) the admission of

evidence of sexual paraphernalia and children's clothing found in

the trunk of his car on the day of his arrest; (3) the exclusion

of evidence of a prior sexually-tinged electronic conversation

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with an adult he met online; and (4) the exclusion of certain text

messages Hinkel sent to "Lisa" that, he argues, would have

"contextualized the government's facially inculpatory evidence."

We address each evidentiary challenge in turn.

1. The Photographs and Cartoon Evidence

A post-arrest forensic examination of Hinkel's computer

yielded twenty-two electronic images that were later introduced at

trial. Seventeen are photographs of Hinkel, apparently self-

taken. The remaining five are drawings of anime characters. Once

the district court ruled that Hinkel was entitled to a jury

instruction on entrapment, the government offered and the district

court admitted, over Hinkel's objection, both sets of evidence as

probative of Hinkel's predisposition to commit the crime of

conviction.6 The images, the court reasoned, were probative of

Hinkel's predisposition to commit a sex crime involving a minor

because they demonstrated Hinkel's interest in "playing out a role

of a hypersexualized child in need of chastisement," a fantasy

that he later sought to actualize through his communications with

"Lisa" and "Samantha." The government briefly discussed these

images at trial in the course of its examination of the forensic

6 Much of this evidentiary contest played out in advance of trial, with the district court informing the parties how it would rule were the entrapment issue to arise at trial, as it ultimately did. Hinkel objected when the images were introduced, dooming the government's appellate argument that the dispute has not been properly preserved.

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technician and again during closing arguments. Jurors were, of

course, free to peruse the contents of the entire report.

Evidence of another act is ordinarily impermissible "to

show that on a particular occasion the person acted in accordance

with" the character manifest in the other act, Fed. R.

Evid. 404(b)(1), but such evidence may be introduced "for another

purpose, such as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of

accident," id. 404(b)(2). "[I]n situations where the defendant

employs entrapment as a defense to criminal liability, prior bad

acts relevant to a defendant's predisposition to commit a crime

are highly probative." United States v. Van Horn, 277 F.3d 48 , 57

(1st Cir. 2002); cf. United States v. Thomas, 134 F.3d 975 , 980

(9th Cir.), as amended on denial of reh'g (Apr. 10, 1998) ("For

the jury to find predisposition beyond a reasonable doubt, it must

consider the defendant's character."). But even if evidence of a

defendant's prior acts or his or her character has "special

relevance" to a disputed issue such as predisposition, such

evidence "may not be admitted if . . . its probative value is

'substantially outweighed by the danger of . . . unfair prejudice,

confusion of the issues, or misleading the jury.'" Van Horn, 277

F.3d at 57 (quoting Fed. R. Evid. 403).

We review the court's decision to admit this evidence

for abuse of discretion. Id. at 56. Because the "balancing act"

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demanded by Rule 403 is a "fact-sensitive enterprise" best left to

the trial judge, "[o]nly rarely and in extraordinarily compelling

circumstances will we, from the vista of a cold appellate record,

reverse a district court's on-the-spot judgment concerning the

relative weighing of probative value and unfair effect." United

States v. Vizcarrondo-Casanova, 763 F.3d 89 , 94 (1st Cir 2014)

(alteration in original) (quoting Freeman v. Package Mach. Co.,

865 F.2d 1331 , 1340 (1988)); see also United States v. Majeroni,

784 F.3d 72 , 76 (1st Cir. 2015) ("In exercising their broad

discretion under Rule 403, trial judges have a feel for the

evidence and the courtroom that is difficult to replicate on the

pages of a transcript, so our deference to judgment calls of this

type is great.").

We consider first the five cartoons, which consist of

detailed anime drawings of adults and minors engaged in sex acts,

sometimes in bondage. It was well within the trial court's

discretion to admit these cartoons found on Hinkel's computer

depicting sex with children as probative of Hinkel's

predisposition. Cf. United States v. Chambers, 642 F.3d 588 , 595–

96 (7th Cir. 2011) (images of child pornography possessed by

defendant admissible to show "sexual inclination towards

children"); United States v. Brand, 467 F.3d 179 , 199-201 (2d Cir.

2006) (evidence of "possession of images of child pornography and

child erotica" admissible to show defendant predisposed to commit

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"sexual offenses against children"). Hinkel could hardly

challenge the government to prove his predisposition to engage in

sex with a minor while simultaneously barring the government from

presenting proof that he possessed depictions of adults having sex

with minors.

The seventeen photos of Hinkel require a different

analysis. None involve children. Rather, thirteen pictures show

Hinkel wearing women's underwear,7 sometimes with his genitalia

visible, one shows him prepared to punish himself, two show his

erect penis, and two present views of his spread buttocks. What

properly probative role these pictures had in this case is a

mystery. The government forthrightly confesses that "they played

virtually no role in the government's case or its response to

Hinkel's entrapment defense." Egged on less frankly by government

counsel at trial, the district court hypothesized that the pictures

were all relevant to the entrapment defense. The reasoning seems

to be that in one of the pictures Hinkel appears to wear a child's

tutu, so if Hinkel fantasized himself as a child, that reasonably

suggests he was predisposed to have sex with a child. No evidence

at all supported this hypothesized nexus. Nor does the nexus

apply, even by its own terms, to sixteen of the seventeen pictures.

7 Trial testimony indicated that some of the items of clothing worn by Hinkel in these photos appeared to be among those found in Hinkel's vehicle at the time of his arrest. See infra Part II.B.2.

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The Supreme Court has cautioned that "evidence that

merely indicates a generic inclination to act within a broad range,

not all of which is criminal, is of little probative value in

establishing predisposition." Jacobson v. United States, 503 U.S.

540 , 550 (1992). Our own court has rejected as impermissible "the

inference . . . that the tendency to engage in unusual, albeit

legal, sexual activity with an adult indicates a predisposition

toward pedophilia." Gamache, 156 F.3d at 11. In sum, the photos

had virtually no probative force on any issue properly before the


We turn therefore to the issue of prejudice. In most

circumstances, the prejudicial impact of these photos would be

patent and substantial. Knowledge of Hinkel's licit but unusual

sexual practices and his attitude toward sex might cause some

jurors to think that his proclivities knew no bounds, licit or

otherwise. In this case, though, this prejudicial potential was

largely cumulative, or redundant, because of the email exchanges

put before the jury. In these properly admitted exchanges

evidencing both the crime and the facts relevant to the entrapment

defense, Hinkel repeatedly and lewdly described his preferred

sexual practices, including practices likely viewed by some jurors

as more unusual than what the pictures showed. Also properly

admitted were the graphic anime pictures, the relevant prejudicial

impact of which went much more directly to the heart of the case.

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The risk of incremental prejudice from the photos was further

blunted by the district court's prophylactic statement to the jury

earlier in the trial that it was not to act as "the bedroom police"

and that "if we get evidence in this case of cross-dressing or

bondage and discipline or, within limits, sadomasochism, that

whatever you may think about that conduct, among consenting

adults . . . . That's not criminal."

All in all, we have evidence of very little probative

value that was nevertheless highly unlikely to have caused any

incremental prejudice in the context of this particular record

already replete with evidence of Hinkel's sexual behavior and

plans. Whether that means that, net-net, the district court did

not abuse its discretion, or that error exists, but it is harmless,

we need not decide. In either event, Hinkel loses.8

2. Other Evidentiary Challenges

Law enforcement officers found a lockbox in the truck

Hinkel drove to the scene where he intended to consummate the

8For this same reason, it was not plain error for the district court to have failed to repeat without request its earlier instruction that the jurors were not "bedroom police." Trial counsel, too, may have had perfectly rational tactical reasons to refrain from seeking the repetitive instruction. See United States v. Fanfan, 468 F.3d 7 , 12–13 (1st Cir. 2006) ("[M]any defense lawyers would shrink from an instruction that the jury should not count [a defendant's] propensity for [a particular crime] against him. Rather than erasing the risk that the jury would misuse the bad act evidence, such an instruction could easily invite the jury's attention to a quite natural inference.").

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crime. After securing Hinkel's consent, they searched the lockbox

and discovered a cache of sexual paraphernalia, including women's

clothing and underwear, children’s underwear, and sex toys among

other objects. Over objection, the district court admitted

evidence of this material, finding it "probative of [Hinkel's]

then present intent." See Fed. R. Evid. 803(3). Hinkel argues

that this evidence was both irrelevant and unfairly prejudicial.

We disagree: it was no abuse of discretion to let the

jury learn of the sex-related objects Hinkel brought with him from

Connecticut to Massachusetts for the encounter with "Lisa" and

"Samantha." All of this evidence went to helping the government

prove its affirmative case that Hinkel was not all talk and no

action. In short, the objects were relevant--and highly so--

because Hinkel brought them to the scene of the meeting with Lisa,

evidencing that sex was the purpose of that meeting. Hinkel argues

that he only intended to use what he carried out of the truck.

But a jury could reasonably find that he brought all of the items

as possible objects to use with "Samantha." After all, he had

told "Lisa" that he would "play it by ear" and "see how it went"

with "Samantha." To the extent the objects also ran the risk of

eliciting juror disgust, and thus prejudice, the balance here was

one that the trial judge had ample discretion to weigh.

Hinkel also challenges two decisions by the district

court excluding evidence he sought to admit. One piece of evidence

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was a fragment of a 2010 online chat exchange recovered from

Hinkel's work computer. The exchange occurred between two users,

"fun2day07" (Hinkel, by his own assertion) and "purpleangel1219,"

that apparently took place in March 2010. At one point in the

chat transcript, "purpleangel1219" asked Hinkel (assuming he is,

indeed, "fun2day07") if he ever "want[ed] to play with [his

daughter]" and Hinkel said he had not and "would never do

any[thing] like that." Counsel for Hinkel sought to introduce the

chat transcript as evidence of lack of predisposition and the

district court ruled the exchange irrelevant. For several reasons,

this is a judgment we will not disturb. For one, the exchange

occurred several years before the events in question. Second,

there was no suggestion in Hinkel's prosecution that he abused his

own children. Leaving aside questions about authenticity,

hearsay, and completeness, excluding this evidence on relevance

grounds was a decision well within the judge's range of

discretionary authority.

Hinkel also sought to admit certain text messages sent

by him, which he says provided context for two other messages that

were read aloud by a government witness at trial.9 The text

9These text messages sent by Hinkel to "Lisa" read, "I'm glad and eager to hear her response. Makes me aroused to think of her like this," and, "Very hot, I could even use a toy on her, while in that position, and make her cum several times before I take her."

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messages read aloud related to Hinkel sending "Lisa" an explicit

photograph. Defense counsel objected to the text messages in the

first instance but then, on cross examination, sought to introduce

other parts of the conversation to place the messages in context.

The district court ruled that this was impermissible since the

defense was objecting to the messages' admissibility. On appeal,

Hinkel claims he would have used the opportunity to highlight a

text message wherein he wrote, "Too bad, looks like I scared you

with that photo. Take care."

The district court's treatment of this evidence was

inconsistent at best. But we fail to see how this lost opportunity

to introduce evidence of Hinkel apologizing for sending an explicit

photograph would have had any bearing at all on the strength,

completeness, or relevance of the government's evidence. Even

assuming that the district court's puzzling explanation for

excluding the text evidence was error, there is nothing remotely

exculpatory about the text message conversation that could have

materially benefitted Hinkel. Any error was harmless. See United

States v. Shea, 159 F.3d 37 , 40 (1st Cir. 1998); United States v.

Rose, 104 F.3d 1408 , 1414 (1st Cir. 1997).

C. Supervised Release

After serving his ten-year prison sentence--the minimum

term of imprisonment for conviction under this statute, see 18

U.S.C. § 2422(b)--Hinkel will be subject to a five-year term of

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supervised release. At Hinkel's sentencing hearing, the district

court imposed all of the Special Conditions ("Conditions") of

supervised release proposed by the Probation Office in its

Presentence Report ("PSR"). Hinkel has preserved objections to

four of the thirteen Conditions, excerpted in relevant part below:

Condition 4: The defendant shall not possess or use a computer or have access to any online service without the prior approval of the Probation Office.

Condition 7: The defendant is not to use a computer, internet-capable device, or similar electronic device to access child pornography or to communicate with any individual or group for the purpose of promoting sexual relations with children. The defendant is prohibited from entering chat rooms to send or receive 'instant messages,' or to send or receive email with attached electronic files through any electronic medium unless required for an express class assignment in an accredited educational institution or as an express job requirement for legal, outside employment. The defendant shall not utilize any sex- related adult telephone services, websites, or electronic bulletin boards.

Condition 9: The defendant shall provide the probation officer with access to any requested financial information for purposes of monitoring their compliance with the imposed computer access/monitoring conditions, including, but not limited to, credit card bills, telephone bills, and cable/satellite television bills.

Condition 13: The defendant shall be subject to search and seizure of his residence and elsewhere with reasonable suspicion by the Probation Office.

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We review preserved challenges to conditions of

supervised release for abuse of the sentencing judge's discretion.

United States v. Perazza-Mercado, 553 F.3d 65 , 69 (1st Cir. 2009).

"Although district courts have significant discretion to impose

special conditions of supervised release, that discretion is not

unlimited." United States v. Medina, 779 F.3d 55 , 60 (1st Cir.

2015). A special condition of release may only be imposed if the

sentencing court determines that the condition:

(1) is reasonably related to the factors set forth in [18 U.S.C. § ]3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);

(2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in [18 U.S.C. § ]3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and

(3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. [§ ]994(a).

18 U.S.C. § 3583(d); see generally Medina, 779 F.3d at 60. The

rationale for imposing the condition must also "have adequate

evidentiary support in the record." United States v. Roy, 438

F.3d 140 , 144 (1st Cir. 2006).

Applying these principles, we find that the first

sentence of Condition 4, excerpted above, sweeps too broadly in

banning Hinkel from, essentially, all internet access without the

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prior approval of his probation officer.10 This kind of broad-

brush, untailored approach to sculpting the conditions of

supervised release imposes "a greater deprivation of liberty than

is reasonably necessary" to achieve the penal goals Congress has

identified. 18 U.S.C. § 3583(2).

We have upheld broad restrictions on internet access as

a condition of supervised release "where (1) the defendant used

the internet in the underlying offense; (2) the defendant had a

history of improperly using the internet to engage in illegal

conduct; or (3) particular and identifiable characteristics of the

defendant suggested that such a restriction was warranted."

Perazza-Mercado, 553 F.3d at 70. Here, Hinkel did use the internet

in committing the crime but we are reluctant to rely on that use

alone where it is largely collateral to the offense in question,

much like how using his truck to arrive to meet "Lisa" and

"Samantha" would differ from using his truck to drive recklessly.

As we have previously observed, "[a]n undue restriction

on internet use 'renders modern life--in which, for example, the

government strongly encourages taxpayers to file their returns

electronically, where more and more commerce is conducted on-line,

and where vast amounts of government information are communicated

10 Condition 4 also requires that Hinkel cooperate with Probation to install software on his computer to monitor his activities. He does not object to this requirement.

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via website--exceptionally difficult.'" Id. at 72 (quoting United

States v. Holm, 326 F.3d 872 , 878 (7th Cir. 2003)). That

observation, made some seven years ago, has only more force today.

And it takes no leap of faith to predict that in roughly nine

years, when Hinkel is released, internet connectivity is likely to

be even closer to a prerequisite to normal functioning in modern

society. See generally Riley v. California, 134 S. Ct. 2473 , 2484

(2014) (observing two years ago that internet-enabled smart phones

"are now such a pervasive and insistent part of daily life that

the proverbial visitor from Mars might conclude they were an

important feature of human anatomy").

Hinkel's internet usage will also be subject to

electronic monitoring per the unobjected-to additional provisions

of Condition 4. Given these restrictions, further banning Hinkel

from even monitored internet access provides too little benefit to

outweigh what we increasingly view as a serious and severe


Nor do we take solace, as we have in a previous case, in

the presence in Condition 4 of a safety valve permitting the

defendant to seek approval from the Probation Office and, if

necessary, the district court, in order to use the internet for

educational or vocational purposes. See United States v. Stergios,

659 F.3d 127 , 134 (1st Cir. 2011) ("Should Stergios find [the

internet ban] unduly restrictive upon his release, he need only

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speak with his supervising officer and, if that does not succeed,

raise the issue with the district court."). Stergios, unlike

Hinkel, was a "repeat offender" with "a history of improperly using

the internet to engage in fraud." Id. at 135. Importantly,

Stergios had previously proven himself unable or unwilling to

refrain from using a computer to commit fraud while on supervised

release following a conviction arising out of a similar use of

computers to commit fraud. There is no contention that Hinkel has

such a recidivist history or that he has already violated

conditions of release. Our obligation to ensure that the special

conditions of supervised release work no "greater deprivation of

liberty than is reasonably necessary," 18 U.S.C. § 3583(d)(2), to

achieve the goals of criminal sentencing, see id.

§§ 3583(a)(2)(B)-(D), compels us to vacate the first sentence--

and no more--of Condition 4 of Hinkel's supervised release.

For similar reasons, we also find that the last two

sentences of Condition 7 in the excerpt above sweep too broadly

and, in the case of the last sentence, too ambiguously. The

penultimate sentence suffers from the same defect as we have

identified in Condition 4, flatly prohibiting (other than in the

course of outside employment or classwork) the use of what have

now become standard forms of communicating and associating on

essentially all subjects. The last sentence, in turn, expands

what would be a reasonable effort to preclude access to sites and

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services related to sex with minors, or child pornography, into a

ban covering access to all sites that are in any way "sex-related,"

thereby covering, for example, a large swath of generally accepted

modern entertainment, and even news.

In finding the first sentence of Condition 4

unreasonable, we simultaneously sustain as reasonable the first

sentence of Condition 7. Forbidding Hinkel from using devices "to

access child pornography or to communicate with any individual or

group for the purpose of promoting sexual relations with children"

speaks closely to the conduct at the heart of the offense Hinkel

committed and is reasonably limited to the particular forms of

communication that enabled his crime.

Finally, we may briefly dispense with Hinkel's challenge

to Conditions 9 and 13. These Conditions essentially act as

enforcement subsidies in the government's favor, supporting the

Probation Office's efforts to ensure Hinkel's compliance with the

conditions limiting his freedom in his first five post-carceral

years. While these provisions make it easier for the government

to invade his privacy, they are reasonably related to either the

Conditions we have approved or the ones Hinkel has not challenged.

Without such tools to "mandate compliance," the district court's

imposition of special conditions would be "ineffectual."

Stergios, 659 F.3d at 134 (quoting United States v. Sebastian, 612

F.3d 47 , 52 (1st Cir. 2010)).

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III. Conclusion

Having carefully considered Hinkel's very well briefed

and argued challenge, we affirm his conviction and affirm his

sentence, with the exception of the first sentence of Condition 4

and the last two sentences of Condition 7 governing the terms of

his supervised release, each of which we vacate.

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