Friday, August 26, 2016

Fantasy, Cannibalism and the Police Officer

Before we go any further, I should warn you of two things: One is that this is, necessarily, an unusually long post for this blog; the other is that the case it examines involves issues that may be offensive to or upsetting for some readers.
This post examines an opinion from the U.S. Court of Appeals for the 2d Circuit:  U.S. v. Valle, 807 F.3d 508 (2015).  The court begins the opinion in what is an interesting departure from how courts usually begin appellate opinions, e.g., Doe was charged with X crimes based on certain conduct, Doe went to trial and was convicted and now appeals his/her conviction. 
This panel of the U.S. Court of Appeals for the 2d Circuit begins by explaining that this
is a case about the line between fantasy and criminal intent. Although it is increasingly challenging to identify that line in the Internet age, it still exists and it must be rationally discernible in order to ensure that `a person's inclinations and fantasies are his own and beyond the reach of the government.’ Jacobson v. U.S., 503 U.S. 540 (1992). We are loath to give the government the power to punish us for our thoughts and not our actions. Stanley v. Georgia, 394 U.S. 557, 565 (1969). That includes the power to criminalize an individual's expression of sexual fantasies, no matter how perverse or disturbing. Fantasizing about committing a crime, even a crime of violence against a real person whom you know, is not a crime.

This does not mean that fantasies are harmless. To the contrary, fantasies of violence against women are both a symptom of and a contributor to a culture of exploitation, a massive social harm that demeans women. Yet we must not forget that in a free and functioning society, not every harm is meant to be addressed with the federal criminal law. Because `[t]he link between fantasy and intent is too tenuous for fantasy [alone] to be probative,’ U.S. v. Curtin, 489 F.3d 935 961 (U.S. Court of Appeals for the 9th Circuit 2007) (en banc) (Kleinfeld, J., concurring), and because the remaining evidence is insufficient to prove the existence of an illegal agreement or Valle's specific intent to kidnap anyone, we affirm the district court's judgment of acquittal on the single count of conspiracy to kidnap.
U.S. v. Valle, supra.
Before we go any further, I need to remind you that (i) this is going to be a very long post and (ii) aspects of it will raise issues that may upset sensitive readers.
The Court of Appeals  then took up the facts in the case, explaining that Gilberto Vallee is a
native of Forest Hills, Queens. At the time of the events giving rise to his prosecution, he was an officer in the New York City Police Department living with his wife, Kathleen Mangan, and their infant daughter in Forest Hills. Valle has no prior criminal record and there is no evidence that he ever acted violently or threateningly towards anyone.

Valle was, however, an active member of an Internet sex fetish community called Dark Fetish Network (`DFN’). He connected with individuals around the world whom he knew only by screen names such as `Moody Blues’ or “Aly Kahn,” or by email addresses. Valle communicated with these individuals by email or web chat, usually in the late evening and early morning hours after his work shift. Many of his Internet communications involved the transmission of photographs of women he knew—including his wife, her colleagues from work, and some of his friends and acquaintances—to other DFN users with whom he discussed committing horrific acts of sexual violence. These `chats’ consisted of gruesome and graphic descriptions of kidnapping, torturing, cooking, raping, murdering, and cannibalizing various women.

Valle's online fantasy life was, to say the least, extremely active during this period. However, there is no evidence that he ever learned the real identities of the individuals with whom he chatted, nor is there any evidence that he ever made concrete plans to meet in person or speak by telephone or web camera with any of them.

In September 2012, Mangan became concerned about Valle's late-night Internet activities after she found several disturbing images of dead women on a laptop that the couple shared. She installed spyware on the computer, which recorded each website entered by the computer's users and captured screen shots every five minutes. With the use of the spyware, Mangan found more disturbing pictures and records of websites that Valle visited. These included detailed emails and chats where Valle discussed butchering her and raping and torturing other women whom they knew. After confronting Valle about his computer use and moving out of the home with their daughter, Mangan contacted federal authorities.
U.S. v. Valle, supra.
The Court of Appeals went on to explain that Valle was
subsequently arrested and charged with a single conspiracy to kidnap several of the women who were the subject of his chats. Although he had chatted with numerous individuals he met on DFN, the Government identified three alleged co-conspirators: Michael VanHise, a man from New Jersey who was known to Valle as `mikevanhise81@aol.com’ and `michael19902135@yahoo.com’; an unidentified individual apparently located in Pakistan who used the screen name `Aly Khan’; and Dale Bolinger, a man in England who was known to Valle only by his screen name, `Moody Blues.’ And although Valle had discussed up to one hundred different women in his chats, the indictment alleged five targets of the kidnapping conspiracy: Kathleen Mangan, his wife; Alisa Friscia, Mangan's former co-worker; Andria Noble; Kristen Ponticelli; and Kimberly Sauer, a former college classmate of Valle's who was living in the Baltimore area.
U.S. v. Valle, supra.
The Court of Appeals then took up the reason the case was before it, noting that,  
[i]n a thorough and thoughtful 118–page opinion, the district court (Gardephe, J.) granted Valle's Rule 29 motion with respect to the conspiracy charge. 301 F.R.D. 53 (S.D.N.Y. 2014).  While remaining `mindful of the jury's critical role in our legal system,’ Judge Gardephe acknowledged his responsibility to ensure that the government satisfies its burden of establishing proof beyond a reasonable doubt. Id. at 80. Emphasizing `the unique circumstances of this extraordinary case,’ he concluded that, notwithstanding the jury's verdict to the contrary, the prosecutors had failed to prove beyond a reasonable doubt that Valle and his alleged co-conspirators had entered into a conspiracy to kidnap or that Valle had formed the requisite specific intent to kidnap. Id. at 62, 89.

In reaching this conclusion, Judge Gardephe cited extensively to the testimony of FBI Special Agent Corey Walsh, the lead agent assigned to review and analyze Valle's emails and chats whose testimony had formed (in the court's view) the `centerpiece’ of the Government's case and the `foundation’ of its argument that Valle had acted with criminal intent. Id. at 83-84. Agent Walsh testified that he, along with prosecutors and other case agents, reviewed all of the emails and chats found on Valle's computer and concluded that Valle's conversations with 21 of the 24 individuals whom he `met’ on DFN were `fantasy.’ SA 8, 128.

At the same time, the prosecution team concluded that Valle's conversations with the three alleged co-conspirators contained what they termed `elements of real crime’ because they `described dates, names, and activities that you would use to conduct a real crime.’ 301 F.R.D. at 65. There was no evidence that Agent Walsh or any of the other members of the prosecution team had any specialized training or experience that would render them particularly competent to distinguish between `real’ and `fantasy’ chats. Indeed, Agent Walsh conceded that the `fantasy role-play’ chats and emails shared many of the same features as the `real”’ chats and emails that purportedly reflected criminal intent, including dates for planned kidnappings, conjured acts of sexual violence, prior surveillance that Valle fantasized about having conducted, and fantastical elements such as human-sized ovens and rotisseries for cooking victims. Id. at 65-66.
U.S. v. Valle, supra.
The District Court Judge’s opinion then went on to explain that,
[a]fter an exhaustive review of the chats and emails introduced at trial, Judge Gardephe concluded that there was no discernible difference between the `real’ and `fantasy’ chats:

Both sets of chats involve discussions about Facebook photographs of women Valle knows; dates for planned kidnappings; prices Valle will charge for kidnapping these women; surveillance Valle has allegedly conducted of these women; the use of chloroform to incapacitate victims; acts of sexual violence that will be perpetrated on these women; and fantastical elements such as human-size ovens and rotisseries, and the construction of soundproofed basements and pulley apparatuses that will be used for purposes of torture.
Id. at 60. Accordingly, he concluded that no reasonable juror could have found beyond a reasonable doubt that the allegedly `real’ chats evinced criminal intent any more than did the acknowledged `fantasy’ chats. Id. at 84.

The district court further concluded that the Government's remaining evidence, including Valle's Internet search history and `real life’ encounters with several of the alleged targets, was insufficient to establish either a genuine agreement to kidnap or Valle's specific intent to kidnap in light of the fantastical nature of the chats and the weakness of the remaining evidence. Id. at 90. Judge Gardephe stressed, among other things, that there was no evidence that any of the alleged conspirators ever exchanged contact information or sought to learn each other's true identities, and that the communications were episodic, with months often passing in between. Id. at 60. When dates for planned kidnappings came and went, Valle and his alleged co-conspirators would `simply begin discussing another woman as a potential target, in the same manner that a consumer of pornography might turn to a different image, photograph, or movie.’ Id. at 89. They also had agreed to the impossible—kidnapping three different women in three different places spanning thousands of miles on the same day—and Valle had `provided his alleged co-conspirators with a veritable avalanche of false, fictitious, and fantastical information concerning himself and the steps he had allegedly taken to facilitate a kidnapping.’ Id. at 61, 90. These facts, Judge Gardephe reasoned, were `entirely inconsistent with the notion that Valle was engaged in a genuine kidnapping conspiracy’ and, on the other hand, `entirely consistent with Valle's defense that he was engaged in fantasy role-play’ and that the intent of the conversations was simply `mutual fantasizing.’ Id. at 60, 90. Accordingly, Judge Gardephe concluded that the Government's proof had not established Valle's guilt beyond a reasonable doubt and granted Valle's motion for a judgment of acquittal.
U.S. v. Valle, supra.
The opinion goes on to explain that,
[f]or many of the same reasons, Judge Gardephe conditionally granted Valle's motion for a new trial on the ground that the jury's verdict was contrary to the weight of the evidence. Id. at 104. Although the basis for his ruling was limited to the weight of the evidence, Judge Gardephe also expressed serious concern about the prosecution's trial tactics and the effect they may have had on the jury. Specifically, he questioned the propriety of the prosecution's repeated references to Valle's status as a police officer, such as arguments that `it is not ok’ for someone in that position to engage in such fantasies.

`Once the lies and the fantastical elements [of the chats] are stripped away,’ Judge Gardephe concluded, `what is left are deeply disturbing misogynistic chats and emails written by an individual obsessed with imagining women he knows suffering horrific sex-related pain, terror, and degradation.’ Id. at 61. `[I]n what was an extraordinary case involving highly inflammatory and emotional subjects,’ the prosecution's questionable conduct had `raise[d] concerns’ that the jury's verdict was the product of `disgust and revulsion’ rather than reason and that Valle had been `held to a higher standard because of his status as a police officer.’ Id. at 105–07, 109.

Finally, the district court denied Valle's motion for a judgment of acquittal as to the CFAA count. While acknowledging the existence of a `vigorous judicial debate’ over the meaning of `exceeds authorized access,’ the court nonetheless concluded that Valle's conduct fell `squarely within the plain language’ of the statute because Valle had not been authorized `to input a query regarding Hartigan's name’ without a law enforcement reason for doing so. Id. at 111, 113.

Valle was sentenced to 12 months in custody (which was principally a sentence of time served because he had already spent 20 months in pretrial detention), one year of supervised release, and a $25 special assessment. The Government has appealed the judgment of acquittal on the conspiracy count and Valle has appealed his conviction on the CFAA count.
U.S. v. Valle, supra.
The Court of Appeals began its analysis of the issues involved in Valle’s appeal with the Government’s appeal of the judgment of acquittal, noting that in order to
sustain a conspiracy conviction, the prosecution must prove beyond a reasonable doubt that the person charged with conspiracy knew of its existence and knowingly joined and participated in it. U.S. v. Rodriguez, 392 F.3d 539, 545 (U.S. Court of Appeals for the 2d Circuit 2004). The Government must also prove, beyond a reasonable doubt, that the defendant possessed the specific intent to commit the offense that was the object of the conspiracy—here, kidnapping.  U.S. v. Torres, 604 F.3d 58, 65 (U.S. Court of Appeals for the 2d Circuit 2010).This requirement is contextual: the prosecution's proof must be considered in relation to the rest of the evidence presented at trial, rather than in isolation. . . .
At trial, the prosecution built its case around Valle's chats and emails with his alleged co-conspirators. On appeal, it argues that these communications, `taken at face value, were fully sufficient to establish his intent to join a kidnapping conspiracy.’ Gov't Opening Br. 32. We disagree.

As previously explained, Valle's chats and emails with the three alleged co-conspirators were part of a much larger set of chats and emails with 24 individuals on DFN. According to the prosecution, the former were unique because they evinced `real’ criminal intent while the rest did not. After reviewing the chats and emails introduced at trial, the district court concluded that the `real’ and `fantasy’ chats were indistinguishable. 301 F.R.D. at 86.

Our review of the record yields the same conclusion. In both groups of chats, Valle transmits Facebook images of women and offers to kidnap and sell them on a `cash upon delivery’ basis, and in both groups he expresses a desire to kidnap, rape, torture, and eat women whom he knows. In both groups Valle also claims to conduct surveillance of potential victims and discusses his intentions to kidnap them using chloroform and ropes. And in both groups he describes the various devices he `owns’ that will assist in the process. Many of the `fantasy’ chats also do not explicitly state that the participants are engaged in fantasy and are as graphic and detailed as the `real’ chats. For example, the `real’ chats and the `fantasy’ chats both include haggling over the kidnapping fees that Valle `wanted to charge,’ although the prosecution argues that this haggling is unique to the `real’ conspiracy with VanHise. See id. at 84. The `real’ chats thus contain the same core elements as the chats the Government concedes are `fantasy.’

Moreover, the `real’ chats take place in the same time period as the admittedly “`fantasy’ chats. On the evening of July 12, 2012, for instance, Valle discusses kidnapping Andria Noble with Aly Khan in a `real’ chat and, an hour later, discusses kidnapping Noble with someone else in a chat that was `fantasy.’ The prosecution thus proposed that Valle simultaneously agreed to kidnap Noble while also engaging in role-play about the same woman. This temporal proximity casts further doubt upon any rational distinction between the chats.

Even when `taken at face value,’ the `real’ chats contain numerous other indicia of fantasy. For example, the prosecution alleged that Valle formed a genuine agreement with the specific intent to kidnap three different women in three different locations on the same day. First, Valle agreed with Aly Khan to lure Mangan to either India or Pakistan on February 20, 2012 and to slaughter her there. Second, he agreed with VanHise to kidnap Alisa Friscia in Manhattan on February 20, 2012 and deliver her to an unknown location in exchange for $4,000 in cash. Finally, Valle agreed with Aly Khan to kidnap Andria Noble on February 20, 2012 from her home in Columbus, Ohio. On appeal, the prosecution posits that the jury could have reasonably concluded that Valle seriously planned to kidnap Mangan, Firscia, and Noble on the same day and failed to go through with the kidnappings only because `an obstacle arose,’ or because he had a `fear of getting caught.’ Gov't Opening Br. 54. We believe that no rational juror could reach this conclusion for the reason noted by Judge Gardephe:  `The notion that Valle had resolved to lure Mangan to India or Pakistan (to slaughter with Aly Khan], while at the same time kidnapping Andrea Noble in Columbus, Ohio, and kidnapping Alisa Friscia from the Upper East Side of Manhattan, is simply outlandish. 301 F.R.D. at 90.
U.S. v. Valle, supra (emphasis in the original).
The District Court Judge’s opinion goes on to explain that in addition to
plots that would put the same person in different places at the same time, the `real’ chats are replete with references to fantastical elements such as a human-sized oven, a spit, and a remote cabin in the woods, none of which Valle owned or made any effort to acquire. The fantastical nature of the `real’ chats is bolstered by the entirely virtual nature of the alleged conspirators' relationships. Valle had no pre-existing relationship with those with whom he chatted, and he formed no real life relationship with any of them. He did not know their real names and, indeed, could not be sure of their genders, ages, or locations. Neither he nor his alleged co-conspirators made any effort to communicate by telephone, text message, or web camera, much less meet in person. And weeks or months could go by between Valle's chats with any particular individual. While anonymity is not uncommon in Internet communications, the fantastical elements of the chats combined with the impersonal nature of the interactions provides pervasive and unmistakable indicia of deep fantasy.

Consequently, we need look no further than the prosecution's own work product to find reasonable doubt. The prosecution divided the exchanges into two groups and undertook to convince the jury to convict Valle on the theory that one group was fantasy and the other proved criminal intent. This exercise failed because the distinction the prosecution urged does not exist in this case. There is simply no material difference between the two groups of chats. We do not believe that the prosecution satisfies the proof beyond a reasonable doubt standard by relying upon a distinction that is untethered to reason or common sense.

Perhaps realizing that there is no actual distinction to be drawn between the `real’ and `fantasy’ chats, the prosecution now contends that it `did not take a position one way or the other as to whether [Valle's online communications with people other than the named co-conspirators] constituted genuine planning, puffery, preparatory conversations, role-playing, or something else entirely.’ Gov't Opening Br. 39. The record, however, belies this assertion.
U.S. v. Valle, supra.
The opinion goes on to explain that
Agent Walsh was a key witness in the prosecution's case. He was the lead investigative agent and a majority of the chats and emails introduced were admitted into evidence through his testimony. He unequivocally testified, often in response to the Government's own questions, that the Government considered Valle's chats with 21 other individuals to be `fantasy’ and Valle's chats with the three alleged co-conspirators to be `real.’ The following exchanges between Agent Walsh and AUSA Hadassa Waxman on direct examination are illustrative:

WAXMAN: When you were reviewing those emails between [Valle] and the two dozen individuals, did you separate them into groups?
WALSH: I did.
WAXMAN: What were those groups?
WALSH: Ones that I believe that were real and ones that I believe were fantasy.
WAXMAN: Why did you make that separation?
WALSH: In the ones that I believe were fantasy, the individuals said they were fantasy. In the ones that I thought were real, people were sharing ... real details of women, names, what appeared to be photographs of the women, details of past crimes and they also said that they were for real.
WAXMAN: What caused you to make that separation between the emails you found that had realistic characteristics and those that were fantasy?
WALSH: Only my interest in obtaining information about that real criminal activity.
SA 8–9.
WAXMAN: Agent Walsh, approximately how many of Officer Valle's emails and electronic chats did you review in connection with your investigation?
WALSH: Thousands.
WAXMAN: We just reviewed over yesterday and today about 40, is that right?
WALSH: That's correct, ma'am.
WAXMAN: Why did you focus on these 40 particular communications?
WALSH: We believed that these chats and e-mails contained elements of real crimes.
WAXMAN: And why did you come to that conclusion?
WALSH: They described dates, names, and activities that you would use to conduct a real crime.
WAXMAN: And did you cast aside a certain number of emails as well?
WALSH: Yes, ma'am.
WAXMAN: Why did you choose not to focus on those emails?
WALSH: Quite frankly, ma'am, they didn't seem realistic.
WAXMAN: Why not?
WALSH: They were clearly role-play. They used the word `fantasy’ in the actual chats or emails.
SA 125–26.
On cross-examination, Agent Walsh admitted that the grouping decision was made by numerous agents and prosecutors.
BAUM: Now, when you made that decision that 21 out of 24 participants with Mr. Valle were engaged in fantasy role-play, were you the only one who made that decision?
WALSH: No, sir.
BAUM: How many agents were involved in that decision?
WALSH: Approximately eight to 10, sir. . . .
BAUM: And how many people from the U.S. Attorney's Office were involved in that decision?
WALSH: About two, sir.
BAUM: So eight to 10 law enforcement officers and at least two lawyers from the U.S. Attorney's Office decided that out of 24 people that Mr. Valle chatted or emailed with[,] 21 were fantasy role-plays, is that correct?
WALSH: Approximately. Yes, sir.
SA 129–30.
U.S. v. Valle, supra.
The Court of Appeals went on to explain that the prosecution
now urges that the distinction between `real’ chats and `fantasy’ role play was Valle's defense and that the district court applied the wrong standard by forcing the prosecution to disprove the defense theory of the case. As the exchanges above demonstrate, the distinction was introduced and relied on by the Government's case agent. In any event, intent is an essential element of the crime that the Government charged. The issue, therefore, is not whether the prosecution disproved the defense 's theory, but whether the prosecution proved its theory that Valle's `real’ chats represented a departure from his otherwise entirely imaginary world.
U.S. v. Valle, supra (emphasis in the original).
The court then noted that the “Government” advances the “[a]lternative” argument that
even if it introduced the distinction, it did not rely on or concede the truth of the distinction because it `did not even introduce any of the `fantasy’ conversations at trial so that [a] comparison could be made’ with the `real’ chats. Gov't Opening Br. 41. A sampling of the `fantasy’ chats was introduced by the defense in its cross-examination of Agent Walsh. But regardless of how the exhibits were introduced, the Government's own investigation concluded that forty chats permitted the inference of conspiratorial intent, as compared to myriad other chats that did not. The Government claims that it does not have to prove a distinction between these two sets of chats because the jury could have rationally found that `defendants charged with attempting or conspiring to engage in criminal, deviant activity often contemporaneously engage in “fantasy” behavior . . . about activity . . . that is similar to the charged conduct.’ Id. at 43.

This contention proves too little. Once the Government constructs its case around the theory that a certain group of chats permits the inference of conspiratorial intent while another group of essentially similar chats is consistent with non-criminal behavior, some adequate explanation must be forthcoming. Where, as here, none is, the non-criminal chats are a powerful indicator that a reasonable juror must necessarily entertain reasonable doubt about the prosecution's case.

Unable to materially distinguish the `real’ chats from the `fantasy’ chats, the Government relies on evidence of `real world’ steps that Valle took in order to `prepare’ for the kidnappings. See, e.g., Gov't Opening Brief 56–58, 60–68. For example, the prosecution introduced evidence that Valle performed Internet searches for how to kidnap people, how to make chloroform, and how to restrain and cannibalize people. The prosecution also introduced evidence that Valle researched prior kidnappings, which it argues permitted the jury to infer that Valle was interested in how those kidnappers were caught so that he could learn from their experiences and avoid apprehension. Id. at 63.

To be sure, Internet searches can provide some relevant proof of intent. However, an Internet search, in and of itself, is not criminal. Here, the searches on which the Government relies occurred in a context of deep fantasy. As with his chats and emails, Valle's Internet searches show that he was interested in committing acts of sexualized violence against women. Interest may be relevant evidence of intent, but it does not by itself prove intent. `No doubt some people commit sex crimes because they want to turn their fantasies into reality, but most people with criminal fantasies probably refrain from acting on them, because they know it would be wrong, or because they do not want to risk the penalties.’ U.S. v. Curtin, supra (Kleinfeld, J., concurring).

The Government also relies on at least two occasions when Valle engaged in acts of `surveillance’ of his intended victims. First, the Government notes that Valle admitted in a post-arrest statement that he was on Friscia's block on March 1, 2012, two days after he allegedly agreed to kidnap her with VanHise. Gov't Opening Br. 56–58. Valle told a government agent that he was on the block to drop off Mangan to have lunch with Friscia, but both Mangan and Friscia testified that they had not met for lunch that day. Valle indicated to the agent that he was on the block only very briefly, and there is no evidence to the contrary. There is also no evidence that he observed Friscia or her apartment building while he was on her block. Valle's false exculpatory explanation for being on the block is `insufficient proof on which to convict where other evidence of guilt is weak.’ U.S. v. Johnson, 513 F.2d 819, 824 (U.S. Court of Appeals for the 2d Circuit 1975). As the district court found, no rational juror could conclude from this evidence alone that Valle was engaged in `surveillance.’
U.S. v. Valle, supra.
The Court of Appeals went on to explain that,
[s]econd, the prosecution and our dissenting colleague contend that the jury could convict Valle of a conspiracy to kidnap based on his communications with Moody Blues about Kimberly Sauer. See Gov't Opening Br. 35–36. This evidence is insufficient to show that Valle agreed or had the specific intent to kidnap Sauer and, in any event, it does not establish Moody Blues's intent.

Sauer is a former college classmate of Valle's who lives in Maryland. According to Sauer, she communicated with Valle by text message approximately ten to fifteen times a year. Mangan testified that she and Valle made three or four trips to Maryland during the course of their relationship (from 2009 through September 2012) and that each time she and Valle made an effort to see Sauer when in the area.

In January 2012, Valle asked Sauer for her address so that he could send her a Patrolmen's Benevolent Association card. The earliest chat between Valle and Moody Blues introduced at trial takes place seven months later, on July 9, 2012. During this conversation, Valle described several girls that he was `working on grabbing . . . for thanksgiving,’ and told Moody Blues that `Kimberly [is] by far the easiest’ to kidnap because he could `just show up at her home unannounced.’ JA 80–82. After Valle suggested that `maybe you can make it here and help me with her, since you have experience,’ Moody Blues responded that he lives in England but it is `easy to get to the Big apple.’ JA 81.

Valle also told Moody Blues that he was `single,’ had a `big gas oven,’ and that `no one is around [him] for about ¾ of a mile.’ JA 84. The two then discussed how they would truss up Sauer and cook her on an outdoor spit at Valle's mountain house. During this same chat, approximately one hour after Valle wrote that he wanted to kidnap someone for Thanksgiving, Valle told Moody Blues that he was `thinking of a Labor Day cookout . . . with Kimberly as the main course.’ JA 86. Valle noted that she had `been one of my favorite victims to fantasize about for almost 10 years now.’ JA 86. Again during the same chat in early July, Valle sent Moody Blues a link to a video of Sauer on vacation and volunteered to make chloroform and buy rope. Moody Blues replied that `Labour day is the 3rd [of] September, not a lot of time to sort out plane tickets etc. Will see what cheap deals I can get.’ JA 90.
U.S. v. Valle, supra.
The Court of Appeals then goes on to explain that,
[o]ne day later, on July 10, Valle sent Moody Blues `a word document, a blueprint of everything we will need to carry this out.’ JA 100. The document, entitled `Abducting and Cooking Kimberly: A Blueprint,’ has a `target date’ of September 2, 2012 for the abduction. It includes a photograph of Sauer, and accurately describes her age and marital status and that she is not a drug user, does not have tattoos, and drinks only occasionally. All of the other information in this document is false, including her last name, date of birth, birthplace, and educational history. The entire `plan’ for abduction set out in the `Blueprint’ is as follows: `I will arrive at some point Sunday night at her home to kidnap her. She lives in a quiet suburban neighborhood (Pictures of her house to be added).’ The document also lists some materials that are needed, including a car, chloroform, rope, gag, tarp/plastic bags, gloves, and cheap sneakers. JA 267–68. After receiving the `Blueprint,’ Moody Blues asked `[m]ay I have her address? For Googling using the Map app?’ JA 101. Valle lied that he was `not sure’ of her exact address. Id. There is no evidence in the record that Valle ever obtained any of the materials listed in the `Blueprint,’ or that the document was ever updated with pictures of Sauer's house or any additional information.

At some point prior to July 12, Valle called Sauer to tell her that he would be traveling to Maryland with his wife and daughter for a weekend. They made plans to meet for lunch on July 22. On July 17, Valle informed Moody Blues that he would be having lunch with Sauer. Later in this chat, Moody Blues asked Valle if he had a recipe for chloroform. Valle sent him a link. On July 19, Moody Blues again asked for Sauer's address, and Valle replied that he did not know it by heart. Valle never provided Moody Blues with Sauer's address.

On July 20, Valle conducted a number of Internet searches relating to kidnapping, including `how to kidnap someone,’ `how to chloroform a girl,’ and `kidnapped girl.’ On July 21, Valle traveled to Maryland with his wife and daughter. They visited several college friends, and had the scheduled lunch with Sauer on July 22. On July 21, Valle texted Sauer `[w]e drove by your pink building today,’ and she responded `Haha yay!’ JA 237. At trial, Sauer testified that she understood Valle to refer to her office building, which has pink-tinted windows, but that Valle had never visited her at work and she had never sent him photographs of the building. She described the lunch as `fine’ and `pleasant.’

On the evening of July 22, after Valle returned home, he emailed Moody Blues that Sauer `looked absolutely mouthwatering.’ JA 117. Valle and Moody Blues said nothing more about the plot to kidnap Sauer and did not talk again for another month. On August 21, Valle and Moody Blues began to discuss Kristen Ponticelli, a recent graduate of Valle's high school whom he did not know. JA 264. There is no evidence in the record that Valle and Moody Blues ever discussed Sauer or Ponticelli again after August 21.
U.S. v. Valle, supra.
The court’s opinion then goes on to explain that,
[a]s Judge Gardephe observed, the chats pertaining to Sauer are not materially different from the other fantasy chats. All of the elements of this alleged plot are equally fantastical, including the presence of the nonexistent mountain house, the human-sized oven, and the `Blueprint.’ The `plan’ to kidnap Sauer in the `Blueprint’ is no more detailed than is the `plan’ in Valle's Internet chats with Moody Blues, nor does the list of materials required differ from the types of materials Valle discusses in his chats. And critically, Valle makes concerted efforts to conceal from Moody Blues any identifying information about Sauer that could be used in furtherance of a kidnapping such as her last name, date of birth, and the name of her alma mater. Although the prosecution speculates that Valle did not share accurate information about Sauer because he did not want Moody Blues to undertake the kidnapping without him, there is no evidence in the record to support such an inference.
U.S. v. Valle, supra.
The Court of Appeals then began the process of articulating its ruling, on the issue before it:
Thus, the only meaningful difference between this alleged conspiracy and the `fantasy’ chats is the occurrence of Valle's lunch with Sauer in Maryland during approximately the same time period as he discussed kidnapping her with Moody Blues. Although the Government characterizes Valle's communications with Sauer as `out of the blue,’ the record shows that they communicated by text message in the year prior to the alleged kidnapping plot on a regular basis and that they made an effort to see each other when Valle was in town. Valle did not have lunch with Sauer alone, but rather came with Mangan and their infant daughter. Moreover, the chats between Moody Blues and Valle leading up to and following the lunch make it impossible to conclude, without speculation, that the lunch was `surveillance’ in furtherance of a genuine conspiracy. Moody Blues makes only a single reference to purchasing plane tickets in the July 9 chat, but that suggestion is never brought up again. Except for the e-mail recapping the lunch on July 22 and the August 24 conversation in which their focus moves to Ponticelli after a brief mention of Sauer, Moody Blues and Valle never again discuss Sauer or any plot to kidnap her. In fact, Moody Blues and Valle do not speak at all for the month after July 22, and the `target date’ of September 2 passes with no discussion. And Valle never takes any step of any sort in furtherance of an alleged kidnapping.
U.S. v. Valle, supra.
It went on to explain that
[w]e are in accord with the prosecution and our dissenting colleague that a jury might be able to distill some incriminating evidence from all of this. But `some’ evidence is not the test. Because Valle's relationship with Moody Blues is essentially indistinguishable from his relationship with all of the others with whom he chatted, we agree with Judge Gardephe that a rational jury could not conclude that this evidence was sufficient to meet the `beyond any reasonable doubt’ requirement. As our case law instructs:

`[I]t is not enough that the inferences in the government's favor are permissible. A court must also be satisfied that the inferences are sufficiently supported to permit a rational juror to find that [each element of the offense] is established beyond a reasonable doubt.

If the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, then a reasonable jury must necessarily entertain a reasonable doubt

U.S. v. Triumph Capital Grp., Inc., 544 F.3d 149, 159 (U.S. Court of Appeals for the 2d Circuit 2008).
The court then articulated its holding, i.e., its decision on the issue at hand:
Finally, on the basis of this evidence, it is impossible to determine beyond a reasonable doubt whether Moody Blues—or for that matter any of Valle's other alleged co-conspirators—ever had the specific intent to commit a kidnapping. We have taken a bilateral approach to the crime of conspiracy: at least two people must agree. `When one of two persons merely pretends to agree, the other party, whatever he may believe, is in fact not conspiring with anyone.' See U.S. v. Bicaksiz, 194 F.3d 390, 398 (U.S. Court of Appeals for the 2d Circuit 1999). The only evidence the Government offers to demonstrate Moody Blues's intent is the words he used in the chats. Gov't Reply Br. 21–22. As we have explained, these chats of `real’ criminal intent are rife with indicia of fantasy and contain the same substantive elements as the chats the Government concedes are `fantasy.’ The conclusion that the chats do not support a finding of Valle's conspiratorial intent applies with equal force to Moody Blues.

On this record, no reasonable juror could conclude beyond a reasonable doubt that Valle possessed the specific intent to kidnap anyone or that he and his alleged co-conspirators ever formed an agreement to actually carry out any of the purported kidnappings. The mere indulgence of fantasy, even of the repugnant and unsettling kind here, is not, without more, criminal. We therefore affirm the district court's judgment of acquittal as to the conspiracy count.

U.S. v. Valle, supra.
You can, if you are interested, read more about this case in the news stories you can find here and here

Wednesday, August 24, 2016

Possession of Child Pornography and the “Unit of Prosecution”

This post examines a recent opinion from the Supreme Court of Minnesota:  State v. Bakken, 2016 WL 4126390 (Supreme Court of Minnesota 2016).  This court is examining an issue the Court of Appeals of New Mexico addressed last spring, in a case I turned into an earlier blog post. You might want to compare the two opinions.
As courts usually do, the Supreme Court begins the opinion by explaining that
[b]etween November 2012 and June 2013, appellant Timothy Bakken downloaded, viewed, and saved to his computer's hard drive seven pornographic images of minors engaged in sexual conduct. He downloaded and saved these photographs on different days—one each on November 9, December 2, December 9, December 14, March 5, April 28, and June 4. Each photograph depicted a different minor. After police seized Bakken's computer and discovered the images, he was charged with seven counts of Possession of Pornographic Work Involving Minors, in violation of Minnesota Statutes §617.247, subd. 4(a) (2014).

Bakken pleaded guilty to all seven counts. In establishing the factual basis for the plea, he admitted that an individual he had met in an online chat room had sent him the images. He further admitted that, after the images were sent, he downloaded them, viewed them, and saved them on his computer's hard drive on the dates alleged in the complaint. Before sentencing, Bakken filed a motion in which he argued that (1) he could only be convicted and sentenced for one count of possession because the `unit of prosecution’ in the statute is possession of the computer, rather than the individual images stored on it, and (2) his offenses were part of a single behavioral incident. The district court denied Bakken's motion, ruling that the statute authorized the State to separately charge Bakken with possession for each pornographic image and that Bakken's offenses were not part of the same behavioral incident. Accordingly, the court imposed seven concurrent sentences, with the longest sentence being an executed term of 51 months in prison.
State v. Bakken, supra.
The Supreme Court goes on to explain that
Bakken appealed and the court of appeals affirmed. State v. Bakken, 871 N.W.2d 418, 420 (Minnesota Court of Appeals 2015). Because we conclude that Minnesota Statutes § 617.247 that authorized the State to charge appellant with a separate count for each distinct pornographic work that appellant possessed, and appellant's conduct in possessing the pornographic works was not part of a single behavioral incident, we affirm.
State v. Bakken, supra.
The Supreme Court began its analysis of the issue Bakken was raising by explaining that
[w]e first consider whether the State could properly charge multiple counts of possession of child pornography under Minnesota Statutes § 617.247. Whether a defendant commits one or more distinct offenses under a criminal statute depends on the statute's `unit of prosecution.’  Sanabria v. United Sates, 437 U.S. 54, 69-70 (1978) (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221 (1952)). Violations of the same statutory provision may be charged multiple times in a single prosecution if the Legislature `intended the facts underlying each count to make up a separate unit of prosecution.’ United States v. Chipps, 410 F.3d 438, 447 (U.S. Court of Appeals for the 8th Circuit 2005); see also State v. Stith, 292 N.W.2d 269, 273-275 (Minnesota Supreme Court 1980) (holding that the statute authorized charging seven counts of securities fraud based on seven misrepresentations because the Legislature intended each misrepresentation to be a separate offense). Accordingly, we must consider the language of the statute criminalizing the possession of child pornography to determine whether the State was authorized to charge Bakken with seven separate counts of possession.
State v. Bakken, supra.
The court went on to explain that Minnesota Stautes § 617.247 subdivision 4(a) provides as follows:
 `A person who possesses a pornographic work or a computer disk or computer or other electronic, magnetic, or optical storage system or a storage system of any other type, containing a pornographic work, knowing or with reason to know its content and character, is guilty of a felony. . . .’  Bakken contends that, because all of the pornographic works he possessed were stored on a single computer, the statute is ambiguous as to the unit of prosecution. He contends that in a factual scenario such as this one, the Legislature intended to authorize only a single charge for possession of the computer containing the works. This ambiguity, he asserts, requires that we apply the rule of lenity and construe the statute to authorize only a single charge. The State responds that the statute unambiguously authorizes the charging of a separate count for each distinct pornographic work a person possesses, regardless of where the work is stored.

Statutory interpretation presents a question of law that we review de novo. State v. Smith, 876 N.W.2d 310, 336 (Minnesota Supreme Court 2016). The goal of statutory interpretation is to ascertain and effectuate the intent of the Legislature. Minnesota Statutes § 645.16 (2014); State v. Irby, 848 N.W.2d 515, 518 (Minnesota Supreme Court 2014). When the words of a statute in their application to an existing situation are clear and free from all ambiguity, we give effect to the plain meaning of the law. State v. Mauer, 741 N.W.2d 107, 111 (Minnesota Supreme Court 2007). But a statute is ambiguous if, as applied to the facts of the case, it is susceptible to more than one reasonable interpretation. See State v. Schmid, 859 N.W.2d 816, 820 (Minnesota Supreme Court 2015). In determining whether the statute is ambiguous, we consider the `canons of interpretation’ listed in Minnesota Statutes § 645.08 (2014), and interpret the statute as a whole to `harmonize and give effect to all its parts,’ presuming that the Legislature `intended the entire statute to be effective and certain.’ State v. Riggs, 865 N.W.2d 679, 682-683 (Minnesota Supreme Court 2015).  
State v. Bakken, supra.
The Supreme Court then took up the issue in this case, explaining that
[w]e conclude that Minnesota Statutes § 617.247 unambiguously criminalizes both the possession of a pornographic work itself and the possession of a computer storing a pornographic work. Therefore, it was within the State's authority to charge Bakken with seven separate counts of possession for seven distinct pornographic works. The two items that the statute prohibits possessing —`a pornographic work’ and `a computer . . . containing a pornographic work’ — are linked in the statute by the word `or.’ Minnesota Statutes § 617.247, subd. 4(a).  The word `or’ is typically read as disjunctive, requiring that only one of the possible factual situations linked by the `or’ be present for the statute to be violated. State v. Loge, 608 N.W.2d 152, 155 (Minnesota Supreme Court 2000). The plain language of the statute does not restrict the State's authority to bring charges when pornographic works are possessed by an individual and stored on a computer; rather, the statute criminalizes the possession of two different things.

This straightforward reading of the statute comports with our decision in State v. Stith, in which we confronted a strikingly similar question and came to the same conclusion. 292 N.W.2d 269. In Stith, the statute provided that a person could commit securities fraud in three ways: by employing a scheme to defraud, by engaging in a fraudulent business, or by making an untrue statement of material fact in connection with the sale of securities. Id. at 273. The State charged Stith with multiple counts, one count for each untrue statement. Id. 

Stith contended that, because his conduct satisfied all three provisions and he employed only a single scheme or business to defraud, the State could charge only one count of securities fraud. Id. at 274. We rejected that argument, noting that the use of the word `or' in the statute made the alternative methods of violating the statute disjunctive, which gave the State the authority to choose among the provisions in prosecuting Stith. Id.

As in Stith, the statute in this case can be violated in multiple ways. That the definitions of criminal activity may overlap does not require the State to charge the case in a way that is the most advantageous to the defendant. See State v. Lee, 683 N.W.2d 309, 315 (Minnesota Supreme Court 2004) (noting that, when definitions of criminal offenses overlap, `the state has the discretion to charge a person with the offense which is best supported by the available evidence and which carries a penalty commensurate with the culpable acts involved’).
State v. Bakken, supra.
The Supreme Court then noted that,
[i]n urging us to reach the opposite conclusion, Bakken argues that, when read as a whole, the statute is ambiguous as to the unit of prosecution because the `statute's first clause . . . allows a charge for possession of the work’ whereas `the second clause’ is `plainly for possession of the medium.’ Accordingly, he contends, an interpretation that allows the State to charge separately for possession of individual works stored on a computer renders the second clause superfluous. See Riggs, 865 N.W.2d at 683 (stating that in determining whether a statute is ambiguous, we consider whether a particular interpretation will `give effect to all of [the statute's] provisions’). But that is not the case. Under the State's proffered reading, the second clause of the statute is not duplicative of the first; it criminalizes possession of a different item (the computer versus the work).

Appellant's surplusage argument assumes that, when a person possesses a computer that contains a pornographic work, the person necessarily possesses the pornographic work contained therein. That assumption is not always true. For instance, a person can possess a computer jointly with another, as with a roommate or spouse. See Lee, 683 N.W.2d at 316. N. 7. Assume one person has password access to the illegal images, and the other does not, but knows that the images are on the computer. See id. (explaining that one constructively possesses contraband if he or she keeps the item in a place under his or her exclusive control, or if it can be shown that he or she consciously exercised dominion and control over the item). In that case, the latter person would violate the statute's second clause but not its first.
State v. Bakken, supra.
The Supreme Court then began the process of winding down its analysis and delivering its holding:
Moreover, appellant's proffered reading would require us to limit the first clause of the statute to incorporate only part of the statutory definition of `pornographic work.] See Minnesota Statutes § 617.246.subd. 1(f) (2014). That definition encompasses digital images of the type stored on appellant's computer and produced for viewing on a computer monitor. See id., subd. 1(f)(2) (defining `pornographic work,’ in part, as `any visual depiction, including any photograph [or] . . . picture . . . produced by electronic . . . means’). The theory offered by appellant—that when a work is stored on a computer, the State may no longer prosecute possession of the work itself—would require us to ignore the parts of the statutory definition of `pornographic work’ that criminalize the possession of digital pornographic works themselves. We have `no opportunity to ignore part of the legislature's definition,’ State v. Peck, 773 N.W.2d 768, 773 (Minnesota Supreme Court 2009), of `pornographic work.'

Finally, our conclusion regarding the unit of prosecution is in accord with the way that foreign courts have viewed the same question. In states in which the applicable statute criminalizes possession of the pornographic work itself, as ours does, courts have regularly determined that possession of each individual pornographic work constitutes a separate offense. See, e.g., Peterka v. State, 864 N.W.2d 745 (North Dakota Supreme Court 2015). Other foreign courts have concluded that their statutes criminalizing possession of child pornography are ambiguous as to the unit of prosecution, but typically only when the statute in question, unlike ours, uses a collective or plural term in describing what is unlawful to possess. See, e.g., State v. Olsson, 324 P.3d 1230 (New Mexico Supreme Court 2014).

In sum, because Minnesota Statutes § 617.247 unambiguously criminalizes both possession of an individual pornographic work and possession of a storage system containing a pornographic work, the State had authority to charge Bakken with a count of violating the statute for each pornographic work he possessed.
State v. Bakken, supra.
The Supreme Court then took up the related issue of whether
the district court erred in determining that Bakken's criminal conduct was not part of a single behavioral incident. Subject to various exceptions, `if a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses.’ Minnesota Statutes § 609.035, subd. 1 (2014). Thus, the law generally `prohibits multiple sentences, even concurrent sentences, for two or more offenses that were committed as part of a single behavioral incident.’ State v. Gerguson, 808 N.W.2d 586, 589 (Minnesota Supreme Court 2012) (quoting State v. Norregaard, 384 N.W.2d 449, 449 (Minnesota Supreme Court 1986)). When, as here, all of the crimes at issue contain an intent element, we determine whether the crimes were part of a single behavioral incident by considering (1) whether `the offenses occurred at substantially the same time and place,’ State v Jones, 848 N.W.2d 528, 533 (Minnesota Supreme Court 2014), and (2) whether the conduct `was motivated by an effort to obtain a single criminal objective,’ State v. Bauer, 792 N.W.2d 825, 828 (Minnesota Supreme Court 2011).  

The State bears the burden of proving, by a preponderance of the evidence, that a defendant's offenses were not part of a single behavioral incident. State v. Williams, 608 N.W.2d 837, 841-842 (Minnesota Supreme Court 2000). Whether the offenses were part of a single behavioral incident is a mixed question of law and fact, so we review the district court's findings of fact for clear error and its application of the law to those facts de novoState v. Jones, supra. Determining whether multiple offenses are part of a single behavioral incident is not a `mechanical’ exercise, but rather requires an examination of all the facts and circumstances.  State v. Soso, 562 N.W.2d 299, 304 (Minnesota Supreme Court

In this case, the parties agree that Bakken's seven offenses were committed in the same place: his bedroom in his mother's house in Polk County. Thus, we consider whether the offenses occurred at substantially the same time, and whether they were motivated by an effort to obtain a single criminal objective.
State v. Bakken, supra.
The Supreme Court began the analysis of whether Bakken’s offenses were part of a “single behavioral incident” by explaining that
[b]ecause Bakken did not commit each of the possession crimes at substantially the same time, this factor weighs against him. Although a crime of possession is a continuing offense, State v. Lawrence, 312 N.W.2d 251, 253 (Minnesota Supreme Court 1981), it is complete when the offender takes possession of the prohibited item, see State v. Bauer, supra  (concluding that a possession offense and a controlled-substance-sale offense were committed at different times because the possession, though continuing, was completed before the sale offense occurred). Two of Bakken's offenses were completed 5 days apart, and other offenses were separated by over a month.

Bakken's offenses also were not committed to obtain a single criminal objective, which means this factor also weighs against him. In analyzing this factor, we examine the relationship of the offenses to one another. State v. Jones, supra. We consider `whether all of the acts performed were necessary to or incidental to the commission of a single crime and motivated by an intent to commit that crime.’ State v. Krampotich, 282 Minn. 182, 186-187, 163 N.W.2d 772, 776 (1968).  

Even assuming that Bakken possessed each of the pornographic works to satisfy his sexual urges, the mere fact that he committed multiple crimes over time for the same criminal objective does not mean he committed those crimes to attain a single criminal objective. objective. See State v. Soto, supra (explaining that when the defendant was convicted of selling cocaine on 4 different days over a 1–month period, although each sale was motivated by the same desire to profit, `[t]he separate sales were not motivated by a desire to obtain a single criminal objective’ because a `criminal plan of obtaining as much money as possible is too broad an objective . . . within the meaning of section 609.035’); State v. Eaton, 292 N.W.2d 260, 266-267 (Minnesota Supreme Court 1980) (explaining that when appellant was convicted of two counts of theft by swindle for acts occurring 3 days apart, the objective of `swindl[ing] as much as possible’ was `too broad to be a single criminal goal’).
State v. Bakken, supra.
The opinion then explains that, in this case,
Bakken's offenses were not in furtherance of, or even incidental to, the successful completion of any of his other offenses. See State v. Banks, 331 N.W.2d 491, 494 (Minnesota Supreme Court 1983) (concluding that a gun-possession offense and a fleeing-police offense were not part of the same behavioral incident because both offenses could be explained `without necessary reference to the [other] offense’); Mercer v. State, 290 N.W.2ed 623, 626 (Minnesota Supreme Court 1980). And because Bakken's offenses were completed at substantially different times, other cases in which we have concluded that an offender had a single criminal goal in committing multiple offenses over a shorter, discrete time period are inapposite. See, e.g., Langdon v. State, 375 N.W.2d 474, 476 (Minnesota Supreme Court 1985) (reasoning that defendant's `overall criminal objective’ was `to steal as much money as he could that afternoon’ by burglarizing several laundry rooms in the same apartment complex); State v. Herberg, 324 N.W.2d 346, 347, 349 (Minnesota Supreme Court 1982) (reasoning that defendant's `underlying motivation remained the same’ in committing four violent offenses against the same victim over the course of an afternoon).

Bakken, however, argues that when assessing whether possession offenses are part of a single behavioral incident, we should depart from our well-established test and instead adopt a new `flexible’ one that `de-emphasizes’ the factor of time, focusing only on the time when the defendant's possession of illegal items was discovered. He argues that such a test is necessary to address potential sentencing disparities attributable to overly aggressive prosecutorial charging decisions.

Certainly, the sheer number of pornographic works that some offenders possess may counsel the cautious exercise of prosecutorial discretion. But `[w]ithin the limits set by the legislature's constitutionally valid definition of chargeable offenses, “the conscious exercise of some selectivity in enforcement”’ is acceptable so long as that selectivity is not discriminatory. State v. Smith, 270 N.W.2d 122, 124 (Minnesota Supreme Court 1978) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)). And as we said in Stith, `harsh results of the statute [can] be modified by the charging authorities, the trial judge through section 609.035 [if applicable],  or general sentencing discretion.’ 272 N.W.2d at 275.  Indeed, such sentencing discretion was actually exercised in this case: Bakken received 51 months in prison—the shortest sentence the court could impose without departing from the sentencing guidelines.
State v. Bakken, supra.
The Supreme Court goes on the conclude the opinion by explaining that
Bakken, though, argues that it is highly relevant to the `single behavioral incident’ inquiry that his multiple possession offenses were discovered by law enforcement at the same time. In support of his argument, Bakken points to State v. Carlson, in which we held that possession of 29 obscene films, all discovered by police at the same time, could support only one sentence for possession of obscene material with intent to sell. State v. Carlson, supra. That case is easily distinguishable, however, as there was no indication that the State could establish that the defendants possessed the films or offered them for sale at any time or place other than when and where they were discovered by police. When the offenses are committed is a factor in our § 609.935 determination. See Mercer, 290 N.W.2d at 626; see also Banks, 331 N.W.2d at 494 (concluding that the possession offense discovered upon arrest for the fleeing-police offense were separate behavioral incidents). Here, by contrast, Bakken began his possession of the pornographic works at different times.

Therefore, because Bakken's offenses were completed at substantially different times, and because his conduct was not motivated by an effort to obtain a single criminal objective, the district court did not err in sentencing Bakken on each of the separate possession convictions.
State v. Bakken, supra.