Opinion
01-CV-513, (98-CR-334; 99-CR-272)(LEK)
April 20, 2004
MEMORANDUM — DECISION AND ORDER
Petitioner Maurice Wayne Jones ("Petitioner" or "Jones"), now moves the Court for the following relief: (1) pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence, (Dkt. No. 29), and (2) for the appointment of counsel to pursue his § 2255 motion, (Dkt. No. 42). The United States of America, as Respondent, opposes both of these motions. For the following reasons, both motions are denied.
I. BACKGROUND
The facts surrounding this case have also been recorded by the Second Circuit in an unpublished decision on an appeal Jones filed.United States v. Jones, 210 F.3d 356 (2d Cir. 2000) (Table), 2000 U.S. App. LEXIS 6316 (unpublished opinion).
In 1997, Mr. Jones, age 41, resided in North Carolina. He met a minor, then age 15 who lived in Plattsburgh, New York, in an America On Line teen chat room. The two communicated over the internet and then began speaking on the telephone with Mr. Jones indicating that he would like to come to Plattsburgh to have sex with this individual. On or about August 31, 1997, Jones traveled from North Carolina to Plattsburgh to see the victim, who he knew to be under the age of 16. He stayed for five days, and the two met a number of times in his hotel room.
While visiting the Plattsburgh area, Jones brought his computer, which contained a number of images that he showed to his victim, including one of a minor involved in sexually explicit conduct. When authorities searched his home in July 1998, a computer and disks were seized that contained a number of images of prepubescent minors engaged in sexually explicit conduct.
(b) Procedural History
On June 2, 1999, this Court accepted Jones' guilty plea on three counts and entered judgment of conviction. On October 28, 1999, the Court sentenced Petitioner based upon his guilty plea. First, Petitioner pled guilty to Count 1 of the Second Superseding Indictment ("SSI") (98-CR-334), which charged, under 18 U.S.C. § 2423(b), travel in interstate commerce with intent to engage in a sexual act with a juvenile, for which Petitioner received a sentence of 120 months. Second, Petitioner pled guilty to Count 5 of the SSI, which charged, in violation of 18 U.S.C. § 2252(A)(a)(1), transportation of child pornography, for which he was sentenced to 180 months. These two sentences imposed for the violations charged in the SSI were to run concurrently, thus providing for a 180 month sentence under these counts. Finally, Petitioner pled guilty to Count 1 of the Information (99-CR-272), which charged, in violation of 18 U.S.C. § 2252(a)(4)(B), possession of child pornography, for which he was sentenced to 30 months. This 30 month sentence imposed under Count 1 of the Information was to run consecutively to the two SSI sentences. Petitioner was therefore sentenced to 210 months imprisonment, in addition to three years of supervised release, and a $300 special assessment.
Jones waived his right to appeal the conviction but did not waive his right to appeal the sentence imposed. (Dkt. No. 32, Exhibit 4: Plea Agreement at ¶ 10.1). He appealed the imposition of two sentencing enhancements to the Second Circuit, which affirmed the Court's decision to impose them. Jones. 2000 U.S. App. LEXIS 6316 (unpublished opinion).
Petitioner now moves to vacate his sentence pursuant to 28 U.S.C. § 2255. Specifically, his motion seeks relief on four grounds: (1) as required byApprendi v. New Jersey, 120 S.Ct. 2348 (2000), the facts supporting sentencing enhancements that exposed Petitioner to a sentence beyond the statutory maximum must have been submitted to a jury for a determination of guilt, (2) Petitioner's guilty plea was made involuntarily, unintelligently, and unknowingly in violation of his Fifth Amendment rights, (3) Petitioner was deprived of effective assistance in violation of his Sixth Amendment rights, and (4) the Supreme Court's determinationin Ashcroft v. Free Speech Coalition. 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), that the Child Pornography Prevention Act of 1996 (CPPA) was unconstitutional, in part, renders Petitioner's convictions under the same unconstitutional.
II. DISCUSSION
(a) Petitioner's motion for appointment of counsel
Petitioner first moves the Court for appointment of counsel to represent him in the motion to set aside, vacate, or amend his sentence. (Dkt. No. 42). The government opposes this motion. (Dkt. No. 43).
It is well-settled, as Petitioner acknowledges, that he has no constitutional right to counsel to collaterally attack his conviction.Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); (Dkt. No. 50, Petitioner's Reply Mem. at 1-2). Rather, Petitioner moves for appointment of counsel under 18 U.S.C. § 3006A and Local Rule 83.3(c) of the Northern District of New York.
§ 3006A(a)(2) allows a district judge to appoint counsel for a § 2255 petitioner who cannot afford representation on his own when "the interests of justice so require". Local Rule 83.3(c) provides factors to consider in determining whether counsel shall be appointed, which include:
(1) The potential merits of the claims as set forth in the pleading;
(2) The nature and complexity of the action, both factual and legal, including the need for factual investigation;
(3) The presence of conflicting testimony calling for an attorney's presentation of evidence and cross-examination;
(4) The capability of the pro se party to present the case;
(5) The inability of the pro se party to retain an attorney by other means;
(6) The degree to which the interests of justice shall be served by appointment of an attorney, including the benefit the Court shall derive from the assistance of an appointed attorney;
(7) Any other factors the Court deems appropriate.
As the Court is not ordering a hearing on Petitioner's § 2255 motion, Petitioner has no need for counsel to assist him in presenting evidence and examining witnesses, nor is there any need for factual investigation. The Court must consider the potential merits of his § 2255 claims and whether Petitioner requires the expertise of counsel to address them.
A hearing will be ordered on a § 2255 petition unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. For the reasons set forth below, it is clear that Jones is entitled to no relief, and therefore, no hearing will be held on the instant petition.
In the present case, Petitioner filed his amended motion and nineteen months later filed for appointment of counsel. At that point, Petitioner had filed his motion and memoranda of law on the merits of his petition. The Court has reviewed the materials he submitted. As will be discussed below, the Court finds no merit in his claims. Petitioner thoroughly briefed the issues he now raises. Therefore, the assistance of counsel would not improve his chances to prevail where all his claims are sufficiently argued, but yet still meritless. This point is dispositive, and the Court will not appoint Jones counsel.
(b) Standard of Review for Motion under § 2255
As one court noted, the collateral attack on a guilty plea under § 2255 is "quite stringent" because it is "presume[d] that the proceedings which led to defendant's conviction were correct." United States v. Moss. 137 F. Supp.2d 1249, 1256 (D.Kan. 2001). A collateral attack such as the one Petitioner has now brought has long been subjected to a high standard of review:
A § 2255 movant can successfully challenge a guilty plea conviction based on a rule 11 violation only by establishing that the violation constituted a "constitutional or jurisdictional" error, United States v. Timmreck, 441 U.S. 780, 783, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979) (citing Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)), or by showing that the error resulted in a "'complete miscarriage of justice'" or in a proceeding "'inconsistent with the rudimentary demands of fair procedure.'" Timmreck, 441 U.S. at 784 (quoting Hill, 368 U.S. at 428). The movant should also demonstrate that he was prejudiced by the violation because he did not understand the consequences of his plea, or that, if he had been properly advised, he would not have pled guilty. Id. Lucas v. United States, 963 F.2d 8, *12-13 (2d Cir. 1992).
(c) Enhancements Applied to Petitioner's Sentence
(1) Prior appeal
As noted above, Jones appealed to the Second Circuit the imposition of two sentencing enhancements under the U.S. Sentencing Guidelines ("Guidelines"): (1) a five-level enhancement under § 2G2.2(b)(2) of the Guidelines for an offense involving the distribution of child pornography, and (2) a four-level enhancement under § 262.2(b)(3) of the Guidelines for offenses involving material that portrays sadistic or masochistic conduct. The Court of Appeals affirmed this Court's imposition of those enhancements. Jones. 2000 U.S. App. LEXIS 6316 (unpublished opinion).
In affirming the Court's sentencing decision with respect to these enhancements, the Second Circuit instructed that the "district court explicitly adopted the factual findings made in the presentence report, which were uncontested by Jones." Id. at *4.
(2) Petitioner's failure to address his Apprendi claim before the Second Circuit in a prior appeal requires dismissal of the claim
Petitioner has already appealed his case to the Second Circuit, wherein he then objected to two of the enhancements applied by the Court. Petitioner now attempts to raise additional grounds for contesting his sentence and the enhancements applied to it, under Apprendi. His failure to raise this Apprendi claim on appeal with the Second Circuit, however, bars him from raising it before this Court. "It is now well-settled that habeas petitioner brought by state prisoners under § 2254 will be dismissed unless the prisoner has shown cause for failing to raise his claim at the appropriate time and prejudice from the alleged error."Campino v. United States, 968 F.2d 187, 189 (2d Cir. 1992). See Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 633 (2d Cir. 2001) (acknowledging this standard applies to claims under § 2255 for federal convictions, as well).
Petitioner has not demonstrated that he had cause for not raising this issue before the Second Circuit in his prior appeal. Although the Supreme Court issued Apprendi a few months after Petitioner's appeal to the Second Circuit was complete, a bar still exists. Courts have recognized that even if prisoners' appeals were complete before Apprendi had been handed down, the legal framework for that decision had been set years before, allowing prisoners to make such an argument in their appeals:
[T]he lack of precedent for a position differs from "cause" for failing to make a legal argument. Indeed, even when the law is against a . . . contention, a litigant must make the argument to preserve it for later consideration. . . . The lack of any reasonable legal basis for a claim may constitute "cause," . . . but the foundation for Apprendi was laid long before 1992. Other defendants had been making Apprendi-like arguments ever since the Sentencing Guidelines came into being, and in McMillian v. Pennsylvania. 477 U.S. 79, 91 L.Ed.2d 67, 106 S.Ct. 2411 (1986), the Court addressed on the merits an argument along similar lines. [Appellant] could have invoked the themes in McMillian . . . just as the Justices did in Apprendi. United States v. Smith. 241 F.3d 546, 548-49 (7th Cir. 2001) (emphasis in original) (internal citations omitted).See also Narvaez v. United States, 2003 U.S. Dist. LEXIS 12978 (S.D.N.Y 2003) (citing to Smith for the same proposition).
Petitioner's Apprendi claim is not properly considered by this Court, as he failed to raise it before the Second Circuit and has shown no cause for such failure.
(d) Petitioner's Guilty Plea
"A guilty plea is constitutionally valid if it represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. A defendant must accordingly receive real notice of the true nature of the charge against him, as well a description of the critical elements of the offense. . . ." Panuccio v. Kelly, 927 F.2d 106, 110 (2d Cir. 1991) (internal citations and quotations omitted). Moreover, a trial court could assume that a defendant understands the charges against him if he is represented by counsel who had explained the charges to him. Id. at 111 (citing Henderson v. Morgan. 426 U.S. 637, 647 (1976)).
(1) Petitioner's argument
Petitioner moves for his sentence to be set aside because his guilty plea was taken involuntarily, unintelligently, and unknowingly in violation of the Fifth Amendment's due process clause. In so moving, he claims that he received misrepresentations from counsel, in a letter dated April 17, 1999, that if he pled guilty to the three counts, there would be no enhancement sought by the prosecution for sadistic and masochistic photos. (Dkt. No. 29, Motion to vacate at 6, ¶ 1). He further claims that the Court did not advise him of the nature of the charges against him and the possible consequences. (Dkt. No. 29, Motion to vacate at 6, ¶ 4). Such error, Petitioner contends, made his plea involuntary.
(2) The Court fully explained to Petitioner the charges against him
Petitioner argues that his plea was involuntary because "the movant was not advised of the connotations and the consequences of his plea insofar as the enhancements were concerned by his counsel, the prosecutor in the Plea Agreement, or the court [sic] during his Rule 11 hearing and during his sentencing hearing." (Dkt. No. 2, Petitioner's Mem. of Law at 36). In the present case, the record from Petitioner's allocution clearly dispels his claim that his plea was involuntary.
The Court advised Petitioner as to the specific nature of the charges in a detailed plea allocution. First, Petitioner admitted the facts as stated by the prosecution. (Dkt. No. 32 Exhibit 2, Plea Transcript at 19). The counts to which Petitioner pled guilty were read in court and included the elements of each crime. (Dkt. No. 32 Exhibit 2, Plea Transcript at 13-15). To each count he stated that he wished to plead guilty. Petitioner stated several times at his plea allocution that he had discussed his plea and its consequences with his attorney. See, e.g., Dkt. No. 32 Exhibit 2, Plea Transcript at p. 10-12. All of these statements, coupled with the fact that he had fully discussed the charges with his attorney make it clear that Petitioner understood the nature of the charges against him, contradicting his present claim.
Further, the plea agreement signed by Petitioner stated in express terms the elements of the charges against him and the fact that he had fully discussed them with his attorney. (Dkt. No. 32 Exhibit 4, Plea Agreement at ¶ 3.6).
Petitioner was also fully advised as to the consequences of his plea, specifically with respect to his possible sentence. The plea agreement instructed that his sentence imposed is within the sole discretion of the Court who may sentence him to the maximum term of imprisonment allowed in the Sentencing Guidelines. (Dkt. No. 32, Exhibit 4: Plea Agreement at ¶ 4.10). The maximum sentences were set out therein, and were identical to the maximum sentences explained above, namely, 10 years for Count 1 of the SSI, 15 years for Count 5 of the SSI, and 5 years for Count 1 of the Information. (Dkt. No. 32 Exhibit 4, Plea Agreement at ¶ 4.1). These maximums were repeated at the plea allocution. (Dkt. No. 32 Exhibit 2, Plea Transcript at 19-20). Petitioner was fully apprised of the nature of the potential sentence he faced. Although the enhancements were not suggested at the plea, there was no promise by the Court or government that his sentence would be less than the maximum permitted under the guidelines.
At most, Petitioner may have pointed to statements made by the Assistant U.S. Attorney at the plea allocution. When instructed to brief Petitioner as to the "applicable sentencing guidelines", the AUSA first enunciated the maximums mentioned above. (Dkt. No. 32, Plea Transcript at 19). Before discussing the estimated sentences, the AUSA noted that "there are some issues as to some specific offense characteristics and whether they will or won't apply, and so the best I have been able to do is come up with what I loosely call a best and worst case scenario. . . ." (Dkt. No. 32, Plea Transcript at 20). Even the "worst case scenario" did not contemplate the maximums that were ultimately applied. However, no where in the plea agreement nor at the allocution was there a promise of a particular sentence. The Court specifically instructed Petitioner that it was not obliged to follow any recommendation received from the government. (Dkt. No. 32, Plea Transcript at 24). Therefore, the AUSA's statements at the plea did not constitute an enforceable promise.
(3) Petitioner's claim that the letter from his attorney indicated a side agreement
Petitioner also claims that he believed that his attorney's April 17, 1999 letter, which stated that the government promised that it would not seek enhancements, was part of the plea agreement. (Dkt. No. 29, Petitioner's motion at 6). Absent enforcement of that promise, Petitioner claims his plea was involuntary and unknowing.
United States v. Palladino, 347 F.3d 29 (2d Cir. 2003), is instructive on this point. In Palladino, the Second Circuit held that a six-sentence enhancement sought by the government was improper, but the Court based its decision upon the language of the plea agreement, not upon the Fifth Amendment, as Petitioner does here. InPalladino, the plea agreement stated that the government estimated the offense level to be 10 "based on information known to [the U.S. Attorney's Office] at this time." Id. at 33. The government sought a six-level enhancement at the sentencing hearing. Id, at 34. However, the government conceded that the information on which it sought the six-level enhancement at sentencing was not new and was in fact known to the United States at the time of the plea agreement. Id, at 34. The Court held, therefore, that the government violated the plea agreement, and the defendant was permitted to withdraw his plea.
In the present case, however, Petitioner points to no promise in the plea agreement as to what offense level the Prosecution would seek. In fact, the written plea agreement here stipulated only to the maximum sentences permitted and stated that sentencing was within the sole discretion of the Court pursuant to the Sentencing Guidelines. (Dkt. No 32, Exhibit 4, at ¶¶ 4.1, 4.10). This information was further reiterated at the plea. (Dkt. no. 32, Exhibit 2, at 19, 21).
His attorney's letter, written more than one month prior to the plea agreement, could not be understood as a promise from the government as to what enhancements would be sought. The plea agreement itself stated that it constituted the entire agreement, thereby eliminating the argument that the plea encompassed additional elements. Petitioner cannot now claim that his plea on the written terms was involuntary or unknowing because he understood it to include a promise that the government would not seek any enhancements.
(e) Petitioner's Ineffective Assistance of Counsel Claim
The burden is on Petitioner to demonstrate that he did not receive effective assistance of counsel, and he is required to (1) show that counsel's performance was deficient such that it fell below an "objective standard of reasonableness" measured under prevailing professional norms, and (2) demonstrate affirmative prejudice such that there is a reasonable probability that but for counsel's [error], the result of the proceeding would have been different. Bermudez v. Portuondo, 2004 U.S. Dist. LEXIS 5427, *121-22 (S.D.N.Y. 2004) (citing toStrickland v. Washington, 466 U.S. 668, 686-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
Petitioner claims that he was deprived of the right to effective assistance of counsel as guaranteed by the Sixth Amendment. Summarily, Petitioner make this allegation because (1) counsel coerced him into entering a guilty plea by misinforming Petitioner and misleading the Court to belive that the AUSA would not pursue the enhancements, and (2) counsel failed to assert Petitioner's right to exclude evidence based upon the illegality of the CPPA.
(1) Petitioner's claim of coercion
The government has submitted the affidavit of Jones' attorney, Kent B. Sprotbery, Esq. Therein, Mr. Sprotbery specifically contradicts Jones' first argument that counsel misled Petitioner into believing that enhancements would not be applied to his sentence. Mr. Sprotbery states:
I never promised Mr. Jones that any enhancement would not apply if he entered a plea of guilty. More specifically, I never represented that the government would not pursue any specific enhancement if he entered a plea of guilty. The potential for numerous Guideline enhancements were the source of many conversations with Mr. Jones and AUSA Spina and all parties were very aware of potential enhancements. Dkt. No. 32, Exhibit 5, Sprotbery Aff. at ¶ 16.
Moreover, Mr. Sprotbery also states in that affidavit that:
The specific enhancement for the portrayal of SM material was a potential problem but all parties knew of its potential application. A significant amount of research was conducted regarding the "SM" enhancement. . . . I concluded that the application would probably not apply and so informed Mr. Jones, but I clearly indicated that the final decision would rest with the sentencing Judge. Dkt. No. 32, Exhibit 5, Sprotbery Aff. at ¶¶ 24-25.
In fact, Mr. Sprotbery's affidavit states the specific dates upon which he met with Petitioner and discussed the potential application of the enhancements. (Dkt. No. 32, Exhibit 5, Sprotbery Aff. at ¶¶ 8-9, 12, 13, 15, 17-18, 20, and 23. He states in no uncertain terms that he did not coerce Petitioner into accepting a plea. (Dkt. No. 32, Exhibit 5, Sprotbery Aff. at ¶ 9).
At his plea, Jones specifically stated that he was satisfied with counsel's performance. (Dkt. No. 32, Exhibit 2, Plea Transcript at 15). Petitioner also stated that no one made threats or promises to him in an effort to induce his plea, and Mr. Sprotbery also told the Court that he in no way coerced his client. (Dkt. No. 32, Exhibit 2, Plea Transcript at 8, 10, 23). Jones' only evidence on this issue is his word that counsel provided less than a reasonable standard of legal representation. However, "[s]elf-serving conclusory allegations . . . are insufficient to establish ineffective assistance of counsel." Hernandez v. United States, 280 F. Supp.2d 118, *122 (S.D.N.Y. 2003) (citing to United States v. Torres, 129 F.3d 710, 715-17 (2d. Cir 1997); United States v. Gonzalez, 970 F.2d 1095, 1099-1101 (2d Cir. 1992).
(2) Petitioner's claim that counsel failed to argue that the CPPA is unconstitutional
Finally, Petitioner claims Mr. Sprotbery provided ineffective assistance of counsel because he did not fully consider pursuing a claim that the CPPA was unconstitutional. Such an argument is without merit considering the Court's following discussion that the unconstitutionality of the definition of "child pornography" in the CPPA does not affect his sentence.
(f) Unconstitutionality of the Child Pornography Prevention Act
Finally, Petitioner claims that the United States Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), requires the Court to vacate his conviction on two of the three counts to which he pled guilty. Specifically, he argues that Free Speech makes clear that some of the images he was convicted for possessing were protected speech, and therefore they cannot constitutionally form the basis for his convictions.
(1) Ashcroft v. Free Speech Coalition
In Free Speech, the Court considered the constitutionality of the CPPA section which defined child pornography:
"[C]hild porngraphy means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, or sexually explicit conduct where —
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct
(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; . . .
(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct. . . .18 U.S.C. § 2256(8).
The Court first explained that § 2256(8)(A) retained the New York v. Ferber, 458 U.S. 747, 73 L.Ed.2d 1113, 102 S.Ct. 3348 (1982), principle that child pornography made using real children could be prohibited. 535 U.S. at 241. Under Ferber, images made using real children were unprotected speech, because the images were a permanent record of a child's abuse, and the traffic in child pornography was an economic motive for its production, so the state had an interest in closing the distribution network. 535 U.S. at 249 (citing Ferber, 458 U.S. at 759).
In §§ 2256(8)(B), (D), Congress encompassed in the definition of child pornography, "'virtual child pornography,' which include[s] computer-generated images. . . ." Id, at 241. Congress adopted this definition because it rationalized that virtual child pornography can harm children in other ways, such as its use by pedophiles to encourage children to participate in sexual activity. Id. at 241. However, in Free Speech, the Court refused to uphold these provisions that would prohibit speech on this basis, recognizing that in prior child pornography cases, the Court "anchored its holding in the concern for participants, those whom it called the 'victims of child pornography.'" Id, at 250 (citing to Osborne v. Ohio, 495 U.S. 103, 110, 109 L.Ed.2d 98, 110 S.Ct. 1691 (1990)). The Court held that §§ 2256(8)(B) and (D) "proscribe[d] a significant universe of speech that is neither obscene . . . nor child pornography under Ferber," 535 U.S. at 240. Specifically, the Court held §§ 2256(8)(B) and (D) unconstitutional because they encompassed virtual child pornography:
In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not "intrinsically related" to the sexual abuse of children, as were the materials in Ferber. . . . While the Government asserts that the images can lead to actual instances of child abuse . . . , the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unqualified potential for subsequent criminal acts. Id. at 250.
Because Free Speech makes it clear that a conviction under the CPPA must be based on pornography using real children and not computer imaging, Petitioner now claims that his convictions under 18 U.S.C. § 2252A(a)(1), 2252(a)(4)(B), must be set aside because "the prosecution made no effort to delineate between computer depictions of real people and depictions traceable wholly to computer imaging." (Dkt. No. 30, Petitioner's Mem. of Law at 7).
(2) Count 1 of the Information under § 2252(W4YB)
The child pornography that Petitioner possessed, and which formed the basis of his conviction under § 2252(a)(4)(B) in Count 1 of the Information, was made using real children and therefore falls within § 2256(8)(A), the part of the CPPA's child pornography definition that remained intact after Free Speech. The language of the Information, itself, makes it clear that the child pornography Petitioner was charged with possessing in this Count contained images using real children, not computer imaging nor young-looking adults.
Congress explicitly wrote a severability provision that states that "if any provision of this Act, including . . . the definition of the child pornography . . . is held to be unconstitutional, the remainder of this Act, including any other provision or section of the definition of the term child pornography, . . . shall not be affected thereby." CPPA, Pub.L. No. 104-208, § 8, 110 Stat. 3009, 3009-31 (1996). Therefore, the unconstitutionality of §§ 2256(8)(B), (D), does not preclude conviction under other provisions of the CPPA.
Count 1 of the Information tracked the language of § 2256(8)(A), as it stated that Petitioner possessed "visual depictions of minors engaging in sexually explicit conduct . . . which were produced using minors engaged in such conduct. . . ." (Dkt. No. 32, Exhibit 2: Plea at 13 (AUSA's reading of the indictment)). Petitioner pled guilty and admitted all of the facts contained therein. He cannot now argue that the images were virtual computer images. Therefore, because the pornographic images which Petitioner possessed were made using real children upon his own admission, they are not protected speech even after the Supreme Court'sFree Speech decision. Petitioner's plea and conviction on this Count of the Information will not be set aside.
(3) Count 5 of the SSI under § 2252A(a)(1)
Count 5 of the SSI charging Petitioner with violating § 2252A(a)(1) was based upon his possession of one image, "!! 12+MOM". Petitioner now argues that his sentence on this count should be set aside because "[t]he '!! 12+MOM' depiction of a minor engaged in sexually explicit conduct is not described [by the prosecution] as a depiction of a real person, a computer depiction created through computer imaging, or any other specific type of depiction." (Dkt. No. 30, at 7).
The SSI charged that Petitioner transported this image across state lines "knowing that such image depicted sexually explicit conduct. . . ." (Dkt. No. 32, Exhibit 2: Plea at 15 (AUSA reading the SSI)). This language in the SSI does not clearly indicate that the government proceeded under the constitutional § 2256(8)(A) definition of "child pornography" such that the image was made using real children.
However, because Free Speech narrowed the definition of "child pornography" since the time of the indictment, the Court may look to the facts admitted by Petitioner and the plea agreement to determine whether the image would fall within the constitutional definition of "child pornography". See, e.g., United States v. Wainuskis, 138 F.3d 183, 185 (5th Cir. 1998) ("The district court relied on both the plea colloquy and [Pre-Sentencing Report] to find a factual basis to support [defendant's] guilty plea. Logically, it must examine the same information to determine if there is a factual basis to set aside her conviction" when an intervening change in controlling law altered the definition of the statutory term "use".).
The plea agreement contained a statement of relevant facts that Petitioner admitted to be true. (Dkt. No. 32, Exhibit 4, Plea Agreement at ¶¶ 3.3, 3.4). The stipulated facts provide evidence that the image in question used real children and not virtual images nor young looking adults. The facts stated that "'!! 12+MOM' involved a minor engaged in sexually explicit conduct." (Dkt. No. 32, Exhibit 4, Plea Agreement at ¶ 3.4). The plea agreement further stated the elements of the crime and explained that the "computer image transported constitutes a visual depiction of a minor engaged in sexually explicit conduct" and "the defendant knew the image was of a minor engaged in sexually explicit conduct." (Dkt. No. 32, Exhibit 4, Plea Agreement at ¶ 3.6(B)).
The United States now argues, and the Court agrees, that this language in the plea agreement demonstrates that the government's case on Count 5 of the Indictment follows the definition of "child pornography" found in § 2256(8)(A). Again, this section defines "child pornography" as a "visual depiction [which] involves the use of a minor engaging in sexually explicit conduct. . . ." 18 U.S.C. § 2256(8)(A) (emphasis added). The image in question falls under the definition in § 2256(8)(A) and is therefore child pornography and is not protected speech. The Petitioner's sentence on this ground will not be set aside.
III. CONCLUSION
For the reasons set forth above, it is hereby
ORDERED that Petitioner's motion for appointment of counsel is DENIED; and it is further
ORDERED that Petitioner's motion to vacate, set aside, or alter his sentence is DENIED, and it is further ORDERED that the Clerk serve a copy of this Order on all parties.
IT IS SO ORDERED.