USCA4 Appeal: 23-4339 Doc: 52 Filed: 01/16/2025 Pg: 1 of 20

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4339

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

CHRISTOPHER WILLIAM KUEHNER, a/k/a nechris, a/k/a William Christopher Kuehner,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:22-cr-00120-LMB-4)

Argued: September 27, 2024 Decided: January 16, 2025

Before GREGORY, QUATTLEBAUM, and BERNER, Circuit Judges.

Affirmed by published opinion. Judge Berner wrote the opinion in which Judge Gregory and Judge Quattlebaum joined.

ARGUED: Lana Manitta, LAW OFFICE OF LANA MANITTA, PLLC, Alexandria, Virginia, for Appellant. Seth Michael Schlessinger, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Jessica D. Aber, United States Attorney, Richmond, Virginia, Daniel Honold, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. USCA4 Appeal: 23-4339 Doc: 52 Filed: 01/16/2025 Pg: 2 of 20

BERNER, Circuit Judge:

More than forty years ago in New York v. Ferber, the United States Supreme Court

expressed profound concern about the rise of child exploitation and abuse through the

production and dissemination of photographs and films depicting minors engaging in

sexual activity.

(1982). The Court emphasized that the “prevention of

sexual exploitation and abuse of children constitutes a government objective of surpassing

importance.”

. This is because such photographs and films become “a permanent

record” of the abuse of a child “and the harm to the child is exacerbated by their

circulation.”

. Ferber was decided long before the advent of the Internet and social

media, digital cameras, video cameras, and cell phones at the ready, and relatively

inexpensive computer equipment. Taken together, these technological advances have

enabled an exponential increase in the instantaneous, often anonymous, and broad

dissemination of such material.

Congress recognized this growing problem when, in 2006, it enacted the Adam

Walsh Child Protection and Safety Act to protect children from sexual exploitation and

abuse, by promoting Internet safety and preventing the production and dissemination of

child pornography, which we will refer to as child sexual abuse material. 1 Adam Walsh

1 “Child pornography” is defined as the “visual depiction” of a minor “engaging in sexually explicit conduct.”

(8); see United States v. Williams,

(2008). We refer to such content as “child sexual abuse material” to reflect more accurately the abusive and exploitative nature of child pornography. Child Sexual Abuse Material, Nat’l Ctr. for Missing & Exploited Children (accessed Jan. 2, 2025), https://www.missingkids.org/theissues/csam [https://perma.cc/PV8D-GZEX]; United States v. Larson, No. 19-cr-50165,

, at *1 n.1 (D.S.D. Jan. 17, 2023) (Continued) 2 USCA4 Appeal: 23-4339 Doc: 52 Filed: 01/16/2025 Pg: 3 of 20

Child Protection and Safety Act of 2006,

Stat. 587, 587 (2006);

§ 501; see id. § 701. Among its many provisions, the Walsh Act amended Section

2252A of Title 18 of the United States Code, to add a criminal ban on “child exploitation

enterprises.” Adam Walsh Child Protection and Safety Act of 2006 § 701. This case

concerns the proper interpretation of that provision.

Christopher William Kuehner actively used a website and a messaging server

dedicated to sexual violence and the sexual exploitation of minors. Employing two

different usernames, he produced and encouraged the production of child sexual abuse

material on these platforms. After authorities revealed that Kuehner was behind the

usernames, they charged him with one count of engaging in a child exploitation enterprise.

Following a two-day bench trial, Kuehner was convicted and subsequently sentenced to

serve twenty years in prison.

On appeal, Kuehner raises several challenges to his conviction. First, he maintains

that the district court erroneously interpreted the requirement of the child exploitation

enterprises statute that predicate felony offenses be performed “in concert with three or

more other persons.” The district court considered the number of people involved in the

predicate offenses cumulatively. In other words, it was enough that all the predicate

felonies were committed with a total of three or more other people when summed together.

(explaining that pornography “connotes a certain aspect of consent that is impossible when the images or videos depict children,” and because of this lack of consent, child sexual abuse material is “evidence of a child being sexually abused.”). Other courts have done the same. See, e.g., United States v. Johnson,

(2d Cir. 2024); Doe #1 v. Twitter, Inc., No. 22-15103,

, at *1 (9th Cir. May 3, 2023); United States v. Glowacki, No. 22-3279,

, at *1 (6th Cir. Jan. 13, 2023). 3 USCA4 Appeal: 23-4339 Doc: 52 Filed: 01/16/2025 Pg: 4 of 20

Kuehner argues that each predicate offense must have been committed in concert with three

or more other people. Second, Kuehner argues that there was insufficient evidence to

support his conviction for engaging in a child exploitation enterprise. Third, he contends

that the district court erred in denying his motion to vacate his conviction and dismiss the

indictment because the Government failed to turn over certain information in its

possession.

We reject each of these challenges and affirm the judgment of the district court.

I. Background

A.

Kuehner and four co-defendants were charged with one count of knowingly

engaging in a child exploitation enterprise in violation of 18 U.S.C. § 2252A(g). One of

the co-defendants, Nathan Larson, had created a website called “Rapey.su” (the Website)

and served as its administrator. 2 The conduct at issue in Kuehner’s criminal case arose

from activities on the Website, which was dedicated to discussions of sexual exploitation

and rape, and on “Discord,” an online communications platform that allows users to

message each other, share images and videos, and audio or video call.

2 Larson died in federal pre-trial custody, and the Government subsequently dismissed the indictment as to Larson. 4 USCA4 Appeal: 23-4339 Doc: 52 Filed: 01/16/2025 Pg: 5 of 20

Kuehner waived his right to a jury trial and consented to a bench trial. Witnesses at

the trial included three minor victims (MVs) 3: MV1, MV2, and MV7, a co-defendant who

pled guilty, Homeland Security Investigation special agents, and forensic analysts and

experts, including James Fottrell, Director of the High Technology Investigative Unit of

the Department of Justice’s Child Exploitation and Obscenity Section.

The Website maintained a dedicated section for users interested in the sexual

exploitation of children. This section had forums, galleries, and options that allowed users

to message one another privately and in groups. Website users could also earn and display

“badges” in their profiles to convey particular messages or the completion of a task, such

as a badge for “confirmed rapist” or “confirmed child molester.” See, e.g., J.A. 147. 4

“Confirmed” users of the Website were provided greater access to chats with other users

and access to non-public galleries and media.

The Government presented evidence that Kuehner joined the Website on September

27, 2020, under the username “nechris.” “Nechris” earned the status of confirmed user on

the Website by posting a picture of himself with the name of the Website written on his

forearm. “Nechris” also earned “Confirmed rapist” and “Rapey” badges. United States v.

Kuehner, Case No. 22-cr-120,

, at *2 (E.D. Va. Jan. 31, 2023). The

“nechris” profile described the user as a 36-year-old, 5’8”, “Caucasian/Asian” man from

Washington state, which Director Fottrell testified generally matched Kuehner’s

3 In an effort to protect their privacy and to avoid revictimization, we avoid using the names and Website usernames of the minor victims. As the egregious facts of this case make abundantly clear, content that is posted online becomes nearly impossible to remove. 4 Citations to “J.A.” refer to the Joint Appendix filed by the parties in this appeal. 5 USCA4 Appeal: 23-4339 Doc: 52 Filed: 01/16/2025 Pg: 6 of 20

description.

Kuehner admitted to federal agents that he had used his personal email,

[email protected], to register on the Website as “nechris.” On October 6, 2020, some of

the information in “nechris’s” profile on the Website, including the birth year, location,

identifying information, and age, were modified, and the email address associated with the

username was changed from [email protected] to [email protected].

At trial, the Government produced evidence that Kuehner, under the username

“nechris,” repeatedly interacted with, encouraged, and pressured minor victims to post

child sexual abuse material. Director Fottrell testified about the conduct involving the

minor victims. Unless otherwise noted, the events described below took place before the

“nechris” profile information was changed on October 6, 2020.

“Nechris” messaged MV1 describing his desire to sexually abuse her and directing

her to send him sexually explicit material of herself. Following these instructions, MV1

posted five videos of herself, including videos showing her masturbating. MV1 tagged

“nechris” in this post. He acknowledged the videos by thanking her in the gallery where

MV1 posted the media. The Website had a public chat that was a “running commentary”

between Website users. J.A. 144. In the public chat, “nechris” discussed the child sexual

abuse material depicting MV1 with another confirmed adult user and bragged about his

role in convincing MV1 to post the material.

MV2 testified at trial about her interactions with “nechris” on Discord. “Nechris”

also requested child sexual abuse material from MV2, as well as other minor victims.

“Nechris” also sent nude images of himself to MV2. Kuehner’s face was visible in some

of these images.

6 USCA4 Appeal: 23-4339 Doc: 52 Filed: 01/16/2025 Pg: 7 of 20

Director Fottrell testified that “nechris” asked MV3 to produce and post child sexual

abuse material. In the public chat, in response to Larson’s commentary, “nechris” posted

that he was looking forward to MV3’s next video. “Nechris” gave a “thumbs up” reaction

to a comment by Larson that MV3 was an “ephebophile’s delight,” 5 and commented that

he “love[d]” the child sexual abuse material depicting MV3. J.A. 123–24. “Nechris” gave

a “thumbs up” reaction to a crude comment by Larson about MV3’s body. “Nechris” and

other users of the Website commented on the child sexual abuse material posted by MV3,

expressing their gratification.

In the public chat on the Website with several other confirmed adult users, “nechris”

commented “[l]et’s see this now” in response to another user who wanted MV4 to produce

a child sexual abuse material video. J.A. 112. Another confirmed adult user indicated his

agreement and approval by reacting with a “smiley face” to “nechris’s” comment. J.A. 112.

“Nechris” also publicly commented on child sexual abuse material posted by MV5,

referring to some of this material as “the gold standard.” J.A. 111. He encouraged MV5 to

make another video, saying “we all look forward to it . . . .” J.A. 111. Another confirmed

adult user “liked” a comment by “nechris” about MV5 having engaged in sexually explicit

conduct before going to school in the morning.

“Nechris” advised yet another minor, MV6, on the optimal placement of the camera

to make child sexual abuse material. MV6 proposed an idea for a child sexual abuse

5 Director Fottrell testified that an “ephebophile” is someone “who is sexually interested [in] post pubescent minors.” J.A. 124. 7 USCA4 Appeal: 23-4339 Doc: 52 Filed: 01/16/2025 Pg: 8 of 20

material video and “nechris” encouraged her to record herself engaging in lewd acts

because he wanted to watch her. MV6 complied with these requests.

After the “nechris” profile was changed, in the Website’s public chat, “nechris”

urged MV7 to make a lewd video and pressured her to do so several times, despite MV7

repeatedly declining. Another confirmed adult user joined “nechris” to urge MV7 to

produce an exploitative video. MV7 finally acceded to the pressure from “nechris” and

other Website members and posted child sexual abuse material.

Kuehner’s exploitation of minor victims was not limited to the Website. “Nechris”

was one of the individuals who ran a private “server” on Discord, akin to a chat room, to

share and distribute child sexual abuse material. “Nechris” and other adult users of the

Website invited minor victims, including MV1 and MV2, to join Discord to communicate

with one another. All three minor victims who testified at trial, MV1, MV2, and MV7,

described their interactions with “nechris” on Discord. “Nechris” had asked each of them

to provide sexually explicit content on the Discord server.

Kuehner’s principal defense at trial was that someone had impersonated him as

“nechris” on the Website and Discord, such that he himself had not engaged in the charged

activities. The evidence indicated otherwise, however. Kuehner’s own statements

implicated him. In addition to Kuehner’s confessions about his email address and Website

account, Kuehner admitted that he took a confirmation photo for the “nechris” account and

posted it to the Website. Even then, Kuehner argued that there was no evidence that he was

always behind the “nechris” account.

8 USCA4 Appeal: 23-4339 Doc: 52 Filed: 01/16/2025 Pg: 9 of 20

The Government also presented significant forensic evidence connecting Kuehner

to the Website. Federal agents had executed a search warrant of Kuehner’s home and

recovered a desktop computer, a laptop, and a cell phone. Law enforcement successfully

conducted a forensic analysis of the desktop computer and cell phone, but forensic experts

could only access the deleted files on the laptop. The evidence presented at trial established

that Kuehner had accessed child sexual abuse material, including videos and images of

minors, on these devices. Analyses of Kuehner’s web browser history and his laptop

confirmed that he had used the [email protected] email address and variations of the alias

“nechris.”

To support his defense that someone had impersonated him, Kuehner elicited

testimony from Director Fottrell that as the Website’s creator and administrator, Larson

had access to statistics and data pertaining to the Website, including records of users’

activity and associated IP addresses. Director Fottrell testified that Larson could edit

profiles, change passwords, and modify or delete the administrative logs that track his own

actions taken as an administrator. Director Fottrell further testified that there were “three

fundamental problems” with the theory that Larson, or perhaps another administrator,

impersonated Kuehner. J.A. 152. To impersonate Kuehner as “nechris,” Director Fottrell

testified that the impersonator would need to know: (1) “nechris’s” password; (2)

Kuehner’s IP address; and (3) how to fake the administrative logs to cover the

impersonator’s actions.

Director Fottrell specifically testified that without access to “nechris’s” password,

neither Larson nor any other administrator could login as “nechris” to impersonate

9 USCA4 Appeal: 23-4339 Doc: 52 Filed: 01/16/2025 Pg: 10 of 20

Kuehner. Larson could have changed “nechris’s” password and then logged in, but he

would have been unable to change it back to “nechris’s” original password—because

Larson never knew the original password. After an extensive review, Director Fottrell

identified no evidence suggesting that Larson knew “nechris’s” password or that someone

else logged in as “nechris.” There was no evidence that the password to the “nechris”

account had ever been changed. Although it is possible that someone could have altered

the IP address to make it appear as if that person was using the Website from “nechris’s”

location, according to Director Fottrell, it was highly improbable that someone could do so

without leaving a record. Director Fottrell further testified that most of the IP addresses

connected to “nechris” were from the Seattle area, where Kuehner resided, and that, taken

together, it was “very unlikely” that Larson, or another individual, impersonated Kuehner.

B.

The district court found Kuehner guilty of engaging in a child exploitation

enterprise. That statute provides that a:

person engages in a child exploitation enterprise for the purposes of this section if the person violates section 1591, section 1201 if the victim is a minor, or chapter 109A (involving a minor victim), 110 (except for sections 2257 and 2257A), or 117 (involving a minor victim), as a part of a series of felony violations constituting three or more separate incidents and involving more than one victim, and commits those offenses in concert with three or more other persons.

18 U.S.C. § 2252A(g)(2).

The district court held that the evidence at trial “established that Kuehner committed

a series of predicate felony violations constituting over three or more separate incidents.”

Kuehner,

, at *6. Section 2251(a) and (e) of Title 18 of the United States

10 USCA4 Appeal: 23-4339 Doc: 52 Filed: 01/16/2025 Pg: 11 of 20

Code “criminalize production and attempted production of child [sexual abuse material],

which are predicate offenses of engaging in a child exploitation enterprise

under § 2252A(g).” Kuehner,

, at *6. Kuehner “violated or attempted to

violate

(a),” and his conduct “also constituted enticement or attempted

enticement of a minor to engage in unlawful sexual conduct in violation of

(b).” Kuehner,

, at *7–8. The district court sentenced

Kuehner to the mandatory minimum sentence of twenty years’ incarceration, as well as

twenty years’ supervised release.

After sentencing, Kuehner filed a motion to vacate the district court’s judgment,

commitment order, and memorandum opinion, and to dismiss the indictment, or, in the

alternative, to grant him a new trial. Kuehner argued that the Government’s failure to

disclose material it received in response to subpoenas sent to Google and Discord was a

violation of Brady v. Maryland,

(1963). Following an evidentiary hearing, the

district court denied Kuehner’s motion. Kuehner filed a timely appeal.

II. Analysis

Kuehner contends that the district court erred in three ways. First, he challenges the

district court’s interpretation of the “in concert with” requirement of the child exploitation

enterprises statute. Second, he maintains that there was insufficient evidence to support his

guilty verdict. Third, he contends that the district court erred in denying his Brady motion

11 USCA4 Appeal: 23-4339 Doc: 52 Filed: 01/16/2025 Pg: 12 of 20

because the Government failed to turn over material and exculpatory information received

from various Google and Discord accounts. We address each in turn.

A. Statutory Interpretation of the Child Exploitation Enterprises Statute

Kuehner maintains that the district court’s interpretation of the child exploitation

enterprises statute was erroneous because the statute requires a defendant to act “in concert

with” three or more individuals when committing each of the predicate felony offenses. He

also maintains that the rule of lenity requires us to interpret the child exploitation

enterprises statute in his favor. We disagree with both arguments.

We review issues of statutory interpretation de novo and begin our interpretation

with the plain text of the statute. United States v. Muhammed,

, 127–28 (4th

Cir. 2021). A person violates the child exploitation enterprises statute if that person “as a

part of a series of felony violations constituting three or more separate incidents and

involving more than one victim, . . . commits those offenses in concert with three or more

other persons.” 18 U.S.C. § 2252A(g)(2) (emphasis added). The most natural reading of

this text is that the phrase “those offenses” refers to the collective “series of felony

violations.” The phrase “with three or more other persons” modifies “those offenses,”

thereby indicating that the series of felony offenses must have been committed with “three

or more other persons.” A person will therefore have been found to have engaged in a child

exploitation enterprise if the predicate felony offenses, as a series: (1) constituted three or

more separate incidents; (2) involved more than one victim; and (3) were committed in

concert with three or more people. If Congress wanted to require that each predicate

12 USCA4 Appeal: 23-4339 Doc: 52 Filed: 01/16/2025 Pg: 13 of 20

offense be committed in concert with three or more people, the statute would have included

this requirement.

We decline to adopt Kuehner’s strained construction of the statute to require that

“each” predicate offense be committed in concert with three or more other people and find

ourselves in good company. All our sister circuits that have addressed this interpretive

question have held that the number of people for the “in concert with” requirement may be

considered cumulatively. See, e.g., United States v. El-Battouty,

(3d Cir.

2022); United States v. DeFoggi,

, 710 n.4 (8th Cir. 2016); United States v.

Grovo,

(9th Cir. 2016); see also United States v. Daniels,

(6th Cir. 2011). Not a single circuit has interpreted the child exploitation

enterprises statute in the manner urged by Kuehner.

The continuing criminal enterprise statute,

, informs our reading of

the child exploitation enterprises statute as well. The child exploitation enterprises statute

and the continuing criminal enterprise statute are structured similarly: a person is found to

have engaged in either enterprise if that person committed certain predicate felonies, and

such violations are part of a series committed in concert with several people. See Grovo,

; compare 18 U.S.C. § 2252A(g)(2) with

(c). In relevant

part, the continuing criminal enterprise statute requires that the requisite predicate felony

violations be “undertaken by such person in concert with five or more other persons . . . .”

(c)(2)(A). In defining “in concert with” under the continuing criminal

enterprise statute, this court has not required that each predicate felony have been

committed by five individuals at the same time or even that five people collectively

13 USCA4 Appeal: 23-4339 Doc: 52 Filed: 01/16/2025 Pg: 14 of 20

engaged in a single specific offense. See United States v. Johnson,

(4th

Cir. 1995) (quoting United States v. Ricks,

(4th Cir. 1989)). We decline

to construct the child exploitation enterprises statute in a contradictory manner.

Kuehner also contends that the rule of lenity requires us to find in his favor due to

the ambiguity present in the interpretation of the child exploitation enterprises statute. The

rule of lenity guides courts to “strictly construe[ ]” criminal statutes and avoid interpreting

them to “extend criminal liability beyond that which Congress has ‘plainly and

unmistakably’ proscribed.” United States v. Hilton,

(4th Cir. 2012)

(citation omitted). “Under [this] well-established principle of statutory construction,

ambiguities in criminal statutes must be resolved in favor of lenity for the accused.” United

States v. Headspeth,

(4th Cir. 1988). This rule, however, is employed

only if, after “considering text, structure, history, and purpose, there remains a ‘grievous

ambiguity or uncertainty in the statute,’ . . . such that the Court must simply ‘guess as to

what Congress intended.’” Barber v. Thomas,

(2010) (citations and

quotations omitted). No such uncertainty or ambiguity exists here. Upon review of the text

of the child exploitation enterprises statute, we find that the meaning is clear and does not

call for application of the rule of lenity.

We hold that the child exploitation enterprises statute does not require that each

predicate felony be committed “in concert with” three or more people. The required total

of three or more people can be summed across the relevant predicate offenses.

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B. Sufficiency of the Evidence

We next address Kuehner’s contentions regarding the sufficiency of the evidence.

Kuehner maintains that there was insufficient evidence to convict him because (1) someone

else could have used the “nechris” account and (2) the predicate felonies were not

performed in concert with at least three other people.

We review “judgments resulting from a bench trial under a mixed standard of

review: factual findings may be reversed only if clearly erroneous,” and legal findings are

reviewed de novo. United States v. Landersman,

(4th Cir. 2018) (quoting

Raleigh Wake Citizens Ass’n v. Wake Cnty. Bd. of Elections,

(4th Cir.

2016)). The court should “uphold a guilty verdict if, taking the view most favorable to the

Government, there is substantial evidence to support the verdict. ‘Substantial evidence’

means evidence that a reasonable finder of fact could accept as adequate and sufficient to

support a conclusion of a defendant’s guilt beyond a reasonable doubt.”

at 406 (quoting

United States v. Armel,

(4th Cir. 2009)).

1.

The district court did not clearly err in finding that no one else accessed the

“nechris” account and impersonated Kuehner. Indeed, the Government presented

substantial evidence showing that, at the time of the conduct in question, Kuehner

controlled the “nechris” account.

Kuehner’s own admissions to federal law enforcement agents established that his

username on the Website was “nechris.” The three minor victims identified Kuehner in

open court and testified that “nechris” told them his name and, in some instances, shared

15 USCA4 Appeal: 23-4339 Doc: 52 Filed: 01/16/2025 Pg: 16 of 20

other specific details about his life that pertained to his family, location, and age. He even

shared photos of himself. All of these details described Kuehner accurately.

The forensic evidence presented at trial also overwhelmingly supported a

conclusion that Kuehner was “nechris”: The IP addresses, computer files, browser history,

and shortcut files all indicate that Kuehner accessed child sexual abuse material on the

Website and used the username “nechris.” Further strengthening this conclusion is Director

Fottrell’s testimony on how unlikely it was for anyone else to have accessed the “nechris”

account and Kuehner’s failure to identify any forensic evidence of anyone else logging in

under this username. The most reasonable inference, based on the evidence in the light

most favorable to the Government, is that Kuehner operated the “nechris” account.

2.

Kuehner’s final argument is that, even if there is sufficient evidence that there had

been a “tacit agreement” among Kuehner and others to produce or attempt to produce child

sexual abuse material, that is only evidence of a conspiracy to commit those offenses, and

not evidence of a violation of the child exploitation enterprises statute. The Supreme Court

has recognized, however, that “the plain meaning of the phrase ‘in concert’ signifies mutual

agreement in a common plan or enterprise” and requires proof of a conspiracy. Rutledge v.

United States,

(1996). There is no reason why this meaning does not

apply equally to the child exploitation enterprises statute. See DeFoggi,

;

16 USCA4 Appeal: 23-4339 Doc: 52 Filed: 01/16/2025 Pg: 17 of 20

Grovo,

; Daniels,

; United States v. Wayerski,

(11th Cir. 2010).

The Government need only produce evidence showing that Kuehner entered into

“an agreement with three or more other persons to commit the series of predicate felonies.”

Grovo,

. An agreement need not be explicit. This court has established

that an “agreement may be inferred from the facts and circumstances of the case,” and “a

tacit or mutual understanding among or between the parties will suffice.” United States v.

Baker,

(4th Cir. 1993) (first quote); United States v. Depew,

(4th Cir. 1991) (second quote). There was sufficient evidence to conclude that

Kuehner had tacitly agreed with other Website users to produce or attempt to produce child

sexual abuse material and entice or attempt to entice minor victims to engage in unlawful

sexual conduct. See Grovo,

.

The Government also produced evidence sufficient to show that Kuehner acted “in

concert” with at least three other people, and the district court did not err in relying on

evidence from the Website’s public chat, including Kuehner’s comments and likes in the

public chat. Taking the view most favorable to the Government, a reasonable factfinder

could conclude beyond a reasonable doubt that Kuehner produced and attempted to

produce child sexual abuse material and enticed or attempted to entice minor victims to

engage in unlawful sexual conduct with the approval and support of other confirmed

Website users. See

. Kuehner repeatedly encouraged minor victims to post and

share child sexual abuse material because users on the Website wanted to see that material.

17 USCA4 Appeal: 23-4339 Doc: 52 Filed: 01/16/2025 Pg: 18 of 20

Taken together, the Government presented substantial evidence that Kuehner

committed the predicate felonies in concert with three or more people.

C. Brady Violation

Finally, Kuehner maintains that the Government violated Brady v. Maryland by

failing to disclose information it received from Google and Discord about various accounts.

Kuehner also contends that the district court erred in denying his motion to vacate his

conviction or, in the alternative, to order a new trial. In Brady, the Supreme Court held that

the prosecution’s withholding of evidence that was favorable to a defendant and material

to guilt or punishment violated the defendant’s due process rights.

.

The court reviews a district court’s denial of a motion for a new trial under the abuse

of discretion standard. See United States v. Stokes,

(4th Cir. 2001). We

review the district court’s legal conclusions in a Brady ruling de novo and its factual

findings under the clear error standard. United States v. King,

(4th Cir.

2011).

To establish a Brady violation, Kuehner must show: “(1) that the undisclosed

information was favorable, either because it was exculpatory or because it was impeaching;

(2) that the information was material; and (3) that the prosecution knew about the evidence

and failed to disclose it.” United States v. Parker,

(4th Cir. 2015).

“Evidence is ‘exculpatory’ and ‘favorable’ if it ‘may make the difference between

conviction and acquittal’ had it been ‘disclosed and used effectively.’” United States v.

Wilson,

(4th Cir. 2010) (quoting United States v. Bagley,

(1985)). Evidence is material if “there is a reasonable probability that, had the evidence

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been disclosed to the defense, the result of the proceeding would have been different.”

Bagley,

. A “‘reasonable probability’ is a probability sufficient to

undermine confidence in the outcome.”

It is undisputed that the Government had in its

possession information from Google and Discord and failed to disclose it. Kuehner does

not argue that this information was impeaching. He contends that the information was both

exculpatory and material. Even assuming the information was exculpatory, the information

from neither Google nor Discord is material.

Relevant here, the Government issued subpoenas to Google to produce information

about the [email protected] email account and Discord to produce information

about the “Nekryz#9079” account. The information received from Google showed that

[email protected] had been created on October 6, 2020, and was registered to a

“John McJanal.”

According to Kuehner, the information received by the Government from Google

showed that someone other than him created and used [email protected] and posted

as “nechris” on the Website after October 6, 2020. Yet Kuehner fails to explain how that

is material when most of the offending conduct took place prior to October 6, 2020.

Kuehner also offers no convincing response to the forensic evidence connecting him to

[email protected], including evidence that this email was accessed from a tablet

recovered from Kuehner’s home and created at the request of a user with an IP address

from the area in which Kuehner lived.

Kuehner’s contentions regarding the information received from Discord are equally

unavailing. Discord was “unable to locate a user” by the username of “Nekryz#9079” and

19 USCA4 Appeal: 23-4339 Doc: 52 Filed: 01/16/2025 Pg: 20 of 20

had “no information” on this account. J.A. 488. The Government posits that this was due

to Discord’s retention policy. At that time, Discord deleted a user’s information from its

back-up systems after 45 days. Even if the information from Discord had been disclosed,

it was not material to Kuehner’s claim that he had been impersonated. The evidence in the

record still tied Kuehner to this Discord account. Director Fottrell testified that “nechris”

invited a minor Website user to join him on Discord under the name “Nekyrz#9079.” There

was an overwhelming amount of evidence against Kuehner notwithstanding the

information from Discord about the “Nekryz#9079” account. Kuehner has not

demonstrated a reasonable probability that the information produced by Discord would

have made the difference between conviction and acquittal. See Bagley,

;

J.A. 514–15.

We find no Brady violation. The district court did not abuse its discretion in denying

Kuehner’s motion to vacate his conviction, or, in the alternative, for a new trial.

III. Conclusion

We hold that the total number of people required for the “in concert with” element

may be summed across the series of predicate offenses under the child exploitation

enterprises statute. We also hold that there was sufficient evidence to convict Kuehner of

engaging in a child exploitation enterprise, and that the Government did not commit a

Brady violation.

The district court’s judgment is therefore

AFFIRMED.

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