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United States v. Kiderlen

June 22, 2009


Appeal from the United States District Court for the Eastern District of Missouri.

The opinion of the court was delivered by: Colloton, Circuit Judge.

Submitted: June 9, 2008

Before LOKEN, Chief Judge, EBEL,*fn1 and COLLOTON, Circuit Judges.

On December 15, 2005, a grand jury charged Steven Kiderlen with one count of transporting child pornography, in violation of 18 U.S.C. § 2252A(a)(1). Kiderlen's counsel moved to withdraw on June 26, 2006, and Kiderlen asked to proceed pro se. The district court*fn2 granted the motions, but later appointed new counsel, after Kiderlen was transferred to an out-of-state detention facility for psychiatric observation in September 2006. The court then held two competency hearings in March and April 2007, and determined that Kiderlen was competent to stand trial. In May 2007, Kiderlen's attorney requested leave to withdraw and remain as standby counsel, and Kiderlen again filed a motion to proceed pro se. The court granted the motions, and Kiderlen tried his own case before a jury. The jury found him guilty, and the district court sentenced him to 240 months' imprisonment. On appeal, Kiderlen argues that (1) he was not competent to stand trial, (2) he did not knowingly and voluntarily waive his right to counsel, (3) the verdict reached by the jury was not supported by sufficient evidence, (4) his sentence is unreasonable under 18 U.S.C. § 3553(a), and (5) his sentence violates the Eighth Amendment's ban on cruel and unusual punishment. We affirm.


On June 1, 2004, a family services worker contacted the Lincoln County, Missouri, sheriff's office and advised the sheriff that a twelve year-old female, K.G., had saved sexually suggestive instant messages received from Kiderlen. The messages, dated May 29, 2004, indicated that Kiderlen had engaged in sexual encounters with three other minor females, and showed Kiderlen propositioning K.G. for sex. When the police visited Kiderlen's residence later that day, Kiderlen refused to consent to a search of his residence and declined to answer questions, but he did turn over a computer to the police.

On June 2, 2004, the police obtained and executed a search warrant for Kiderlen's residence, where they found three work stations with missing central processing units. After Kiderlen and his wife, Angela, arrived home, the police took the couple into custody. Angela told the police that she had helped Kiderlen destroy these computers and throw them in a ditch in a state park. Angela led police to the park, where they recovered the computers. The damage to the machines was so extensive, however, that the police could not recover any data. The computer that Kiderlen had provided to the police three days earlier was his daughter's, and the hard drive did not contain pornography.

On that same day, K.G.'s mother told police that K.G. previously had received two e-mails from Kiderlen. The first e-mail contained eight images depicting prepubescent minors engaged in various sex acts. The second e-mail contained two web links entitled "Six Taking Shower" and "Nude Girls." K.G.'s mother attempted to access the web links on the second e-mail, but was unable to do so because a password was required. Police eventually conducted a forensic examination of K.G.'s mother's computer, discovering both e-mails and the sexually suggestive instant messages that K.G. received from Kiderlen. On December 15, 2005, Kiderlen was charged with transporting child pornography, in violation of 18 U.S.C. § 2252A(a)(1).

On June 26, 2006, Kiderlen's appointed counsel moved to withdraw, and Kiderlen asked to proceed pro se. The court warned Kiderlen that he would be held to the same standards as an attorney trained in the law, and suggested that Kiderlen accept a court-appointed standby counsel. But when Kiderlen persisted in his desire for self-representation, the court ultimately granted the motions. The court also made clear that it would appoint successor counsel upon Kiderlen's request.

At a status conference in September 2006, a magistrate judge reviewed the government's request that Kiderlen submit to a psychiatric evaluation to determine his competency to stand trial. The magistrate judge previously had granted a similar request, but Kiderlen refused to submit to an evaluation by a local psychiatrist. At the September conference, the magistrate judge again ordered a mental competency evaluation. Due to the "bizarre nature of some of the comments and statements [Kiderlen] made," the magistrate also recommended that the district court appoint counsel. The district court accepted the recommendation and appointed counsel to represent Kiderlen at all remaining proceedings before the court.

The psychiatrist who evaluated Kiderlen at Federal Medical Center in Butner, North Carolina, determined that Kiderlen was competent to stand trial. Kiderlen's counsel objected to the psychiatrist's report, and asked that a second evaluation be conducted by a doctor of Kiderlen's choosing. The government did not oppose this request, and the court granted the motion. When Kiderlen's chosen psychiatrist arrived, however, Kiderlen again refused to be evaluated, leaving only one complete psychiatric evaluation for consideration by the district court. Kiderlen's counsel identified this problem at the March 2007 competency hearing, and again expressed concern, based on his personal interactions with his client, about Kiderlen's competency. Counsel represented that Kiderlen could not meaningfully assist in preparing a defense, and that Kiderlen's actions suggested that additional psychiatric treatment was necessary before Kiderlen could stand trial. The court continued the hearing to allow the parties to call witnesses.

At the continuation of the competency hearing on April 17, 2007, the court heard testimony from Dr. Tanya Cunic, the only doctor able to complete a psychiatric evaluation of Kiderlen. Dr. Cunic opined that based on four hours of formal interaction with Kiderlen, she found him able to assist in his defense and competent to proceed. Dr. Cunic explained that Kiderlen appeared to ascribe to the Freeman Movement, a group of people who believe that President Franklin Roosevelt pledged the birth certificates of United States citizens as collateral for the United States debt. Members of the movement believe that the government is treating them as monetary collateral instead of human beings, and that a criminal indictment listing the name of a movement member in all capital letters is actually a suit against a fictitious corporation rather than the named person. Dr. Cunic explained that Freemen also do not recognize the authority of the courts.

Despite Kiderlen's unusual ideology, he discussed common topics with Dr. Cunic in a coherent fashion. Dr. Cunic noted that Kiderlen was very different from the ten other Freemen she had dealt with in the past. She observed that Kiderlen had learned about the movement from someone in another jail facility, and that Kiderlen believed that subscribing to the Freeman movement was his best "defense" because it enabled him to weigh down the government with paperwork. Dr. Cunic took Kiderlen's understanding of the strategic benefits of subscribing to the Freeman Movement as evidence that Kiderlen was capable of meaningfully assisting in his defense. Dr. Cunic also noted that Kiderlen was able to speak rationally and interact appropriately, although at times he would choose not to do so.

In cross-examining Dr. Cunic, defense counsel elicited evidence that Kiderlen had expressed suicidal thoughts and superficially cut his arm with a razor on one occasion. Dr. Cunic testified, however, that these events were not necessarily indicative of mental illness. She later said that she felt Kiderlen understood the Freeman Movement and was able to employ it as a defense, but that he did not actually believe in the movement. In her written report, Dr. Cunic added that Kiderlen's request to proceed pro se should not be construed as evidence of mental illness, and that if Kiderlen chose to accept representation, then he would be able properly to assist an attorney in the defense of his case. The magistrate judge credited Dr. Cunic's report and testimony, and found that Kiderlen was competent to stand trial, stating:

[Kiderlen has] a rational understanding of his current legal circumstances and the proceedings against him. He has the ability to consult with his lawyer and to provide meaningful information. If he does not do so, it is because he chooses not to do so.

Kiderlen moved for reconsideration, but the district court concluded that "every attempt has been made to ensure that Defendant is competent to stand trial," and denied the motion. The court found that further attempts to evaluate ...

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