Opinion
Case No. 3:11-cr-373-SI Case No. 3:13-cr-048-SI
04-06-2017
UNITED STATES OF AMERICA, v. LOGAN STORM, Petitioner-Defendant.
Billy J. Williams, United States Attorney, and Jane Shoemaker and Gary Sussman, Assistant United States Attorneys, United States Attorney's Office, District of Oregon, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204. Of Attorneys for United States of America. Logan Storm, 73774-065, Federal Correctional Institution, 3600 Guard Road, Lompoc, CA 93436. Pro se Petitioner-Defendant.
OPINION AND ORDER
Billy J. Williams, United States Attorney, and Jane Shoemaker and Gary Sussman, Assistant United States Attorneys, United States Attorney's Office, District of Oregon, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204. Of Attorneys for United States of America. Logan Storm, 73774-065, Federal Correctional Institution, 3600 Guard Road, Lompoc, CA 93436. Pro se Petitioner-Defendant. Michael H. Simon, District Judge.
Before the Court is Petitioner-Defendant Logan Storm's ("Storm") motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. ECF 204. For the following reasons, the motion is DENIED.
Storm challenges his sentences and convictions in both Case No. 3:11-cr-373-SI (possession of child pornography) and Case No. 3:13-cr-048-SI (failure to appear). Unless otherwise noted, all citations to "ECF" refer to the docket in Case No. 3:11-cr-373-SI.
STANDARDS
Section 2255 permits a prisoner in custody under sentence to move the court that imposed the sentence to vacate, set aside, or correct the sentence on the ground that:
[T]he sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .28 U.S.C. § 2255(a). To warrant relief, a petitioner must demonstrate that an error of constitutional magnitude had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) ("We hold now that Brecht's harmless error standard applies to habeas cases under section 2255, just as it does to those under section 2254.").
Under § 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section '[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (emphasis in original) (quoting § 2255). In determining whether a § 2255 motion requires a hearing, "[t]he standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted." United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (quotation marks omitted) (alteration in original). A district court may dismiss a § 2255 motion based on a facial review of the record "only if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are 'palpably incredible or patently frivolous.'" Id. at 1062-63 (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)). Conclusory statements in a § 2255 motion are insufficient to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).
If a court denies a petition, the court may issue a certificate of appealability if "jurists of reason could disagree with the district court's resolution of [the petitioner's] constitutional claims or [if] jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Although the petitioner is not required to prove the merits of his case for the court to issue a certificate of appealability, the petitioner must demonstrate "something more than the absence of frivolity or the existence of mere good faith on his or her part." Miller-El, 537 U.S. at 338 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)) (quotation marks omitted).
BACKGROUND
Storm was an eighth grade teacher who taught at a middle school in Beaverton, Oregon. ECF 26-7 at 2. On July 25, 2010, Storm's girlfriend, Amy Anderton ("Anderton"), reported to the Portland Police that she had found child pornography on Storm's laptop computer and on a "thumb drive" that was hidden in a box. ECF 26-7 at 2-4. At that time, Storm and Anderton had been living together for approximately one month. ECF 26-7 at 3. Anderton reported recently seeing several files on both devices that contained pornographic images of young girls. ECF 26-7 at 3-4. When Anderton discovered the images, she showed some of them to her housemate, Michael Neilson ("Nielson"), to have a witness. ECF 26-7 at 3, 5. Anderton did not contact the police until she left for a trip to Salt Lake City a few days later. ECF 26-7 at 3.
After Anderton's report, police spoke with Neilson, who confirmed Anderton's story. ECF 26-7 at 5. Detective Timothy Snider prepared a search warrant, and a judge authorized the warrant later that night over the telephone. ECF 26-7 at 8-12; ECF 26-18 at 4. Police executed the warrant in the early hours of July 26, 2010. ECF 54 at 17:3-5. Neilson let police detectives into the house and directed them to Anderton and Storm's bedroom where Storm was sleeping. ECF 54 at 16:23-17:18. Detective Snider escorted Storm to the living room and read aloud the search warrant. ECF 54 at 18:1-10, 18:24-19:3. Detective Snider also read Storm his Miranda rights, even though police were not planning on arresting Storm. ECF 54 at 19:19-20:6. Storm invoked his right to remain silent and his right to an attorney. ECF 54 at 26:10-21.
During their initial search, police detectives found and seized Storm's white Apple laptop computer ("laptop"), a "Geek Squad" brand thumb drive ("GS drive") located underneath the laptop, and a cardboard gift box that matched Anderton's description of where the thumb drive had been hidden. ECF 54 at 29:4-13, 30:2-7. Detectives then prepared a property receipt that was shown to Storm. ECF 54 at 30:12-14, 31:2-4. Storm asked about one of the items on the receipt, a "BLK 4G thumb drive found under item 2." ECF 54 at 35:18-36:10. When officers explained it was the GS drive that they had found under the laptop, Storm claimed the GS drive belonged to Anderton. ECF 54 at 36:7-20. Storm then told police that his thumb drive was in his backpack. ECF 54 at 36:21-37:1. Detective Snider re-searched the backpack and found a "Lexar" brand thumb drive ("Lexar drive"), which was then seized as well. ECF 54 at 37:8-17. The police detectives then left. ECF 54 at 83:2-4.
Shortly after the search, Storm left the country without notifying either his son or his son's mother. ECF 196 at 179 (816:5-22). Storm also sent an email to his supervising school principal in which he resigned from his position and stated that he would likely not be returning due to "an international legal situation." ECF 196 at 184-186 (821:22-823:2).
On the morning of July 26, 2010, Detective Snider and his team attempted to preview the contents of the laptop and GS drive, but had only limited success. ECF 194 at 39-40 (103:14-104:22). The devices were then taken to the Northwest Regional Computer Forensics Laboratory ("RCFL") for a forensic preview. ECF 194 at 40-41 (104:23-105:16). RCFL personnel were able to open some of the files on the laptop and GS drive, where they found images of child pornography. ECF 194 at 41-42 (105:17-106:03). RCFL personnel also determined that the GS drive had been plugged into the laptop only a few hours before police executed the search warrant. ECF 194 at 42 (106:4-9), 261-62 (325:21-326:5). The devices were formally submitted to the RCFL for forensic analysis the next day. ECF 194 at 42 (106:10-22). The RCFL first made forensic images of all three devices. ECF 194 at 264-65 (328:6-329:21). During forensic analysis of the laptop and GS drive, RCFL found several PowerPoint files containing pornographic images of children. ECF 194 at 269-70 (333:12-334:8). From a cursory review, RCFL found no PowerPoint files on the Lexar drive and thus did not conduct any further examinations on that drive. ECF 194 at 270 (334:9-20).
A state grand jury indicted Storm on 30 charges of violating Oregon Revised Statutes § 163.684, Encouraging Child Sexual Abuse in the First Degree. ECF 26-21. Storm was arrested upon his return to the United States on February 19, 2011. ECF 196 at 188-89 (825:22-826:1-6). Storm's state trial began in September 2011. See ECF 26-22. After the prosecution rested its case, Storm moved for judgment of acquittal based on venue. ECF 26-23 at 10:25-11:1. Specifically, Storm argued that the State had presented insufficient evidence to prove beyond a reasonable doubt that the images were copied to Storm's devices in Multnomah County. ECF 26-23 at 11:14-18. The State requested a brief recess to file a response brief, and its request was granted. ECF 26-24 at 7:14-21, 25:5-15. The State then consulted with the United States Attorney's Office, which agreed to prosecute Storm under federal law. See ECF 26-4 at 2:25-3:8. Upon returning to court, the State moved to dismiss its indictment. ECF 26-4 at 2:25-3:8. The motion was granted, and the State delivered all of its evidence against Storm to federal agents from the U.S. Department of Homeland Security. ECF 26-9 at 13.
On September 20, 2011, a federal grand jury indicted Storm on one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). ECF 1. Federal agents obtained new search warrants and conducted new searches on all the seized devices. ECF 26-10; ECF 26-11; ECF 26-12; ECF 195 at 118-19 (486:23-487:9), 128-29 (496:22-497:3). Agent Jim Mooney found additional evidence not uncovered by the RCFL, which was located mostly in the unallocated space and hidden files of the devices. ECF 195 at 133 (501:10-23), 136 (504:5-10), 137-38 (505:25-506:5). The additional evidence found by Agent Mooney further demonstrated a sexual interest in children, and included child erotica, cartoons of child pornography, and PowerPoint files containing child pornography placed next to non-pornographic pictures of Storm and his middle school students. ECF 195 at 133 (501:14-16), 135-36 (503:19-504:7), 140 (508:7-12), 141 (509:3-12). Agent Mooney also found various non-pornographic documents and photographs that were stored on all three devices, and evidence that one PowerPoint file containing child pornography had been accessed using all three devices. ECF 195 at 139 (507:19-25), 140 (508:13-22); ECF 26-13 at 16.
The Court presided over Storm's federal jury trial, where Storm was represented by Assistant Federal Public Defenders Gerald Needham and Amy Baggio. ECF 5; ECF 8. Defense counsel filed several preliminary motions, including a motion to dismiss the indictment for violation of the Double Jeopardy Clause and a motion to suppress statements obtained in violation of Miranda. ECF 22; ECF 23. The Court denied these motions. ECF 53. Defense counsel also made several motions in limine and moved for discovery of Agent Mooney's forensic reports and the contents of Nielson's cellular telephone. ECF 65; ECF 94; ECF 120. These motions were also denied. ECF 79; ECF 121.
On January 23, 2013, Storm's federal trial began. ECF 193. Defense counsel presented the jury with Storm's theories of the case: Nielson had planted the child pornography on Storm's computer and thumb drives because Nielson wanted Storm's girlfriend, Anderton, and there were serious problems with the government's forensic evidence. ECF 193 at 51:17-54:1. Both Anderton and Nielson testified at trial, and defense counsel cross-examined them extensively. ECF 194 at 156-69 (220-233), 200-23 (264-287). Defense counsel also thoroughly cross-examined state and federal agents about their investigation and handling of evidence. ECF 194 at 44-71 (108-35), 274-91 (338-55); ECF 195 at 23-29 (391-97), 71-87 (439-55); ECF 196 at 7-72 (644-709). On February 19, 2011, the jury found Storm guilty of possession of child pornography. ECF 179 at 3 (960:22-23).
After receiving the verdict, the Court (through a different judge) allowed Storm to remain out of custody pending a further detention hearing and also placed him on electronic monitoring. ECF 179 at 11-12 (968:13-969:18). That night, Storm removed his monitoring device and fled to Mexico. ECF 159 at ¶¶ 36-37. Shortly thereafter, Storm was indicted on one count of failing to appear, in violation of 18 U.S.C. § 3146(a) and (b)(1)(A)(ii). Docket 3:13-cr-048-SI, ECF 1. Several months later, Mexican authorities arrested Storm and deported him back to the United States. ECF 169 at ¶¶ 37, 41. On June 26, 2013, Storm pleaded guilty to the charge of failure to appear. Docket 3:13-cr-048-SI, ECF 15. On September 10, 2013, the Court sentenced Storm for both convictions. The Court imposed a total of eight years in prison, followed by ten years of supervised release. ECF 166; Docket 3:13-cr-048-SI, ECF 23.
Storm timely filed a notice of appeal in both cases, and Terry Kolkey represented Storm on appeal. ECF 169; ECF 170; Docket 3:13-cr-048-SI, ECF 27. Storm challenged the constitutionality of the state and federal search warrants, the terms of supervised release imposed in the failure to appear case, and the Court's ruling on a motion to preclude images of child pornography from being published to the jury. United States v. Logan Storm, 612 F. App'x 445 (9th Cir. 2015). On July, 28, 2015, the Ninth Circuit affirmed Storm's convictions and sentence. Id. Storm's petition for rehearing or en banc review was denied. ECF 201. On July 26, 2016, Storm filed this motion pro se to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. ECF 204.
DISCUSSION
Storm petitions to vacate, set aside, or correct his sentence on several grounds. A court must liberally construe the filings of a pro se petitioner and afford the petitioner the benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Storm's filings are not a model of clarity, but the Court endeavors to ascertain the grounds for Storm's motion. In so doing, the Court agrees with most of the government's characterizations of Storm's claims. See ECF 219.
Liberally construing Storm's filings, he asserts that he is due relief on the following grounds: (A) his trial counsel and appellate counsel provided ineffective assistance; (B) the prosecution committed several violations of Brady v. Maryland, 373 U.S. 83 (1963); (C) several errors were made relating to the interstate nexus element of a federal possession of child pornography violation; (D) two potentially biased jurors were not excused; (E) Storm was the victim of a vindictive prosecution; (F) Strom is actually innocent, a freestanding claim; (G) Storm's conviction and sentence for failing to appear are invalid because they rely on his possession conviction; (H) the government violated Storm's Miranda rights and right against Double Jeopardy; and (I) the Ninth Circuit erred in resolving Storm's direct appeal. A. Ineffective Assistance of Counsel (Ground 1 and Motion 2 Ground 1)
In the attachment to his motion, Storm raises two more grounds for relief. See ECF 204-2. The Court refers to these two grounds collectively as "Motion 2."
Storm argues that he received ineffective assistance from both his trial and appellate counsel. The leading federal case governing claims of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Under Strickland, a challenger must prove that: (1) counsel's performance was deficient; and (2) there is a reasonable probability that, but for the deficient performance, the result of the proceeding would have been different. Id. at 688.
Under the first Strickland prong, in order for counsel's performance to be constitutionally deficient, it must fall below an objective standard of reasonableness. Id. A "court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). "The challenger's burden is to show 'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (quoting Strickland, 466 U.S. at 687). "[S]trategic choices made after thorough investigation of law and facts" by attorneys "are virtually unchallengeable." Miles v. Ryan, 713 F.3d 477, 490 (9th Cir. 2012) (quoting Strickland, 466 U.S. at 690-91).
Under the second Strickland prong, a petitioner must establish that he or she was prejudiced by the ineffective counsel. Strickland, 466 U.S. at 694. Prejudice is established when there is "a probability sufficient to undermine confidence in the outcome." Id. Because a convicted defendant must satisfy both prongs of the Strickland test, failure to establish either deficient performance or prejudice makes it unnecessary to examine the other prong. See Strickland, 466 U.S. at 697 (explaining that it is not necessary for a court evaluating the merits of an ineffective assistance claim to analyze the components of the applicable test in any particular order or to evaluate both components if the petitioner fails to carry his burden as to one aspect of the test).
Storm contends that his trial counsel, Gerald Needham, was ineffective because he: failed to present exculpatory evidence; did not ask for a continuance when Storm's son was in the hospital; did not adequately object to the Court's rulings; refused to prepare Storm to testify; did not effectively raise the grounds that Storm is raising in this petition; and generally failed to advocate zealously and effectively on Storm's behalf. Storm does not mention Mr. Needham's co-counsel, Amy Baggio, in Storm's claim of ineffective assistance. Storm's allegations are not supported by the record and he presents no new evidence from which to conclude that Mr. Needham's performance was deficient.
Storm asserts that trial counsel failed to introduce several pieces of exculpatory evidence. First, Storm argues that Mr. Needham failed to introduce a text message from Anderton to Storm stating, "I understand you trying to put the blame on me. It wont [sic] work tho [sic], the files were created, every time they were opened was on your computer." ECF 204 at 5. Beyond this assertion by Storm, there is no evidence in the record that such a text message from Anderton exists. Additionally, Storm presents no evidence that Mr. Needham's failure to introduce this text message, assuming that it does exist, was anything other than strategic. The message appears to indicate nothing more than Anderton's belief that Storm is guilty.
Next, Storm claims Mr. Needham should have presented evidence that cartoons posted on Nielson's website "matches characters" in the cartoon child pornography found on the devices. Although nothing in the record indicates that the cartoons from Nielson's website were found to have "matched" any cartoon pornography in evidence, defense counsel did cross-examine Nielson regarding cartoons posted online. ECF 194 at 245-49 (309:12-313:2). Finally, Storm asserts that Mr. Needham did not present evidence regarding the multiple discrepancies in the creation and modification dates and times on the files containing child pornography. To the contrary, defense counsel cross-examined Agent Mooney about the discrepancies. See ECF 196 at 13-14 (650:10-651:11), 46-52 (683:24-689:8), 68-71 (705:2-708:25). Thus, record contradicts Storm's claim that Mr. Needham failed to present exculpatory evidence.
Storm next claims that he received ineffective assistance because Mr. Needham did not ask for a continuance when Storm's son was hospitalized. In Mr. Needham's and Ms. Baggio's declarations of counsel, they both state that Storm knew at the time that he could ask for a continuance because of his son's illness. ECF 219-1 at ¶ 5; ECF 219-2 at ¶ 8. Ms. Baggio explains that Storm "insisted that the best thing for his son was for [Storm] to proceed to trial and emerge victorious with a finding of 'Not Guilty.'" ECF 219-2 at ¶ 8. The Court finds the assertion that Mr. Needham did not seek a continuance because Storm did not want one to be credible.
Storm also asserts that Mr. Needham refused to prepare Storm to testify. Again, this assertion is not supported by the record. Defense counsel prepared for the possibility that Storm would testify, although they advised him against taking the stand. See ECF 219-1 at ¶¶ 6, 9; ECF 219-2 at ¶ 9. Mr. Needham explains that his time records "specifically indicate that [Mr. Needham] spent time preparing for [Storm's] direct testimony" with Storm. ECF 219-1 at ¶ 6. Ms. Baggio wrote that, while going through her old case file, she found a "23-page document entitled 'Logan Storm Direct,'" which included Storm's handwritten annotations and suggested edits. ECF 219-2 at ¶ 9. Thus, Mr. Needham effectively prepared for the possibility that Storm would testify, and Storm made the ultimate decision not to do so. ECF 219-1 at ¶ 9; ECF 219-2 at ¶ 9.
Finally, Storm claims that Mr. Needham did not make adequate objections, failed effectively to raise the grounds asserted in this petition, and generally did not advocate zealously for Storm. These claims are not substantiated by the record. In addition to Mr. Needham and Ms. Baggio's declarations, the record also shows that counsel made numerous pretrial motions, motions in limine, discovery motions, and objections at trial. See, e.g., ECF 22; ECF 23; ECF 24; ECF 25; ECF 64; ECF 65; ECF 67; ECF 87; ECF 88; ECF 89; ECF 94; ECF 107; ECF 108; ECF 120; ECF 123; ECF 124; ECF 194 at 17 (81:17), 74 (138:7), 108 (172:2), 296 (360:11). Some of these motions were regarding issues that Storm now raises in this petition or evidence that Storm now claims was suppressed or inappropriately admitted. See, e.g., ECF 22; ECF 23; ECF 64; ECF 65; ECF 94; ECF 120; ECF 195 at 6-16 (374:13-384:10). The record shows that defense counsel dedicated substantial time and resources to Storm's defense and zealously advocated on Storm's behalf.
Storm fails to show that Mr. Needham's performance fell below an objective standard of reasonableness. Thus, Storm has not proven the first Strickland prong, that Mr. Needham's performance as trial counsel was constitutionally deficient. Because Storm has not established the first Strickland prong, it is unnecessary to examine the prejudice prong. See Strickland, 466 U.S. at 697. Storm's claim of ineffective assistance of trial counsel fails.
Storm also argues that his appellate counsel, Terry Kolkey, was ineffective because he failed to raise on appeal all the grounds that Storm raises in this petition. On appeal, Kolkey challenged the validity of the state and federal search warrants, the Court's ruling that images of child pornography could be shown to the jury, and the conditions of supervised release for Storm's conviction on the charge of failure to appear. In a short unpublished opinion, the Ninth Circuit affirmed Storm's possession of child pornography conviction and declined to consider the supervised release conditions relating to his conviction for failure to appear. Storm, 612 F. App'x at 447-48.
"'[W]innowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-752 (1983)). Kolkey's decision to not raise other grounds on Storm's appeal was likely strategic. The claims Storm raises in this motion, as discussed in this Opinion and Order, are not strong arguments. Thus, Storm fails to prove that Kolkey's performance was deficient, and Storm's claim of ineffective assistance of appellate counsel also fails. B. Brady (Grounds 2, 9, 10, 11, and 12)
Storm claims that the government engaged in several Brady violations. "Under the landmark case of Brady v. Maryland, 373 U.S. 83, 87 (1963), prosecutors are constitutionally obligated to disclose 'evidence favorable to an accused . . . [that] is material either to guilt or to punishment.'" Amado v. Gonzalez, 758 F.3d 1119, 1134 (9th Cir. 2014) (alterations in original) (quoting Brady, 373 U.S. at 87). "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense." United States v. Agurs, 427 U.S. 97, 109-10 (1976). "[I]f the omitted evidence creates a reasonable doubt that did not otherwise exist, [however,] constitutional error has been committed." Id. at 112. There are three components to a Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or impeaching; (2) the evidence must have been suppressed by the state, either willfully or inadvertently; and (3) the suppression was prejudicial. Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
Liberally construing his filings, Storm asserts several Brady violations. First, he claims that the government used mishandled and altered evidence. Defense counsel, however, thoroughly examined at trial the fact that police mishandled the evidence, causing some of the dates and times on the files to be altered. During evidence previews conducted by police shortly after they seized the devices, detectives failed to use a properly functioning "write-blocker." See ECF 194 at 289-90 (353:25-354:10); ECF 196 at 26-41 (663:13-678:14), 80 (717:8-19). On cross-examination, Agent Mooney confirmed that the system logs on the devices indicated the detectives had accidentally altered some of the files' dates, times, and "hash values" (digital fingerprints) when they tried to preview the devices. ECF 196 at 26-41 (663:13-678:14). During defense counsel's closing argument, the government's mishandling of the evidence was reiterated to the jury. ECF 197 at 48-52 (919:8-923:17). There is nothing in the record that suggests the government suppressed the fact that investigators had mishandled the evidence. Thus, there was no suppression of evidence by the government and no Brady violation. See Strickler, 527 U.S. at 281-82.
Next, Storm claims that a change in the government's exhibits on the second day of trial was a radical alteration of evidence that prevented Storm from presenting alibi witnesses. The change in exhibits Storm references was a change in demonstrative exhibits created by Agent Mooney. See ECF 194 at 9-11 (73:15-75:5); ECF 195 at 6-10 (374:13-378:13), 12-15 (380:23-383:19). The exhibits were demonstrative screenshots showing how Agent Mooney went about conducting his forensic examination. ECF 195 at 9 (377:13-20). The government explained to the Court that Agent Mooney had prepared these exhibits while on a trip to Peru, which appeared to have altered the dates and times on the exhibits but not on the underlying evidence. ECF 195 at 6-10 (374:13-378:13), 12-15 (380:23-383:19).
Agent Mooney realized his mistake after hearing opening statements, and the government promptly notified defense counsel. ECF 194 at 9-11 (73:15-75:5); ECF 195 at 6-7 (374:13-375:12). Agent Mooney then created new summary charts of the file information, which the government used, instead of the altered original exhibits. ECF 195 at 12-15 (380:23-383:19), 247-50 (615:11-618:14). The government did not suppress any evidence in this instance because before trial the government gave Storm the raw data used to make these summary charts. See ECF 195 at 15 (383:13-19). Defense counsel also cross-examined Agent Mooney about the change in his demonstrative exhibits. ECF 196 at 57-71 (694:13-708:17).
Even if these summary charts could be considered exculpatory evidence that was suppressed by the government, the record shows that Storm suffered no prejudice from their "suppression." Storm asserts that this "change" in evidence prevented him from calling alibi witnesses. Defense counsel had access to all of the underlying data used to create the summary charts, and a computer forensic expert hired by the defense before trial had already determined the dates and times when files were accessed. See ECF 219-1 at ¶ 8. Storm did not give defense counsel any verifiable alibis for those dates and times, and does not present any now. See id. The alibi witness Storm presented at trial could not be certain that Storm was with her on the date and time in question. See ECF 196 at 219 (856:16-20). There is no evidence in the record, and Storm presents no new evidence, that an alibi witness would have been called had the government provided the revised summary charts to Storm earlier than it did. Thus, there was no Brady violation when the government changed its demonstrative exhibits during trial.
Storm next claims that the discrepancies in the dates and times on the files prove that they were either created on another computer or were tampered with. Storm concludes that these discrepancies constitute exculpatory forensic evidence that exonerates him. Agent Mooney, however, explained to the jury that dates and times on digital files are unreliable by nature. See, e.g., ECF 195 at 250-55 (618:11-623:12); ECF 196 at 85-87 (722:2-724:8), 90-91 (727:3-728:14), 94-95 (731:22-732:13). Agent Mooney also explained that metadata cannot be used to determine on which device a file was created or how a file has been edited. See ECF 196 at 85 (722:18-23), 88-89 (725:22-726:1). Finally, as discussed above, the detectives' mishandling of the evidence was fully presented to the jury.
In Storm's petition, he asserts that the "last modified" dates of the files found on the Lexar drive were revised by the government between pre-trial discovery and trial. Storm provides a table of what he claims are the "original" last modified dates and the "government's" last modified dates, arguing that discrepancies prove corruption or fabrication of the evidence. The government correctly notes that Storm has likely mistaken the "last modified" dates from the files found on the GS drive as being from the Lexar drive. Compare ECF 204 at 21, with ECF 204-1 at 4-9 and ECF 219-3.
Storm also makes a more traditional Brady violation claim. During pretrial discovery, the government produced what it believed were all of the screen shots that police took of Neilson and Anderton's text message exchanges before, during, and after the execution of the search warrant. ECF 219-5. The government initially sought to introduce only excerpts of the conversation into evidence, but offered to introduce all the messages upon the request of defense counsel. ECF 191 at 29:16-25. While compiling the new exhibit, the government discovered that there were some additional screenshots of text messages between Neilson and Anderton that had not been produced. ECF 194 at 77-78 (141:14-142:23). The government provided the additional messages to defense counsel the following morning. ECF 194 at 77 (141:14-19). Defense counsel had time to review the newly discovered messages during the mid-morning and lunch breaks, which happened before the cross-examinations of Anderton and Nielson. See ECF 194 at 79 (143:21-25), 154-55 (218:23-219:1), 156 (220), 200 (264). Storm claims, however, that this delay in production of the additional text messages by the government constitutes a Brady violation.
The text messages the prosecutors discovered and produced mid-trial contain discussions between Anderton and Nielson regarding the possibility of Storm hurting himself, the process of Storm moving out, what to do about Storm's dog, the police inquiring about Storm's whereabouts, not being able to get in touch with Storm, the possibility that Storm is on the run, and Storm's parents. ECF 231-1 at 24-46. The only part of the conversation that could potentially be interpreted as exculpatory was:
Anderton: I feel so bad that u & bri have to deal w/ stuff. Especially u being in the thick of it. Happy bday! SoECF 231-1 at 42-43. Both Anderton and Nielson were cross-examined about this specific part of their text message conversation. ECF 194 at 168 (232:4-12), 221 (285:1-11).
Nielson: Thanks. Well this isn't a good place for you to be right now. You should be with friends and family.
Anderton: rry about the bull shit!
Nielson: Don't apologize though. I feel like a crime fighter.
Anderton: I know. I'm not looking forward to coming back to it. Although my friends and fam never stop talking about it
Anderton: Please don't get the super hero complex. I had enough of that w/ logan
Nielson: So your saying I should stop wearing tights underneath my clothes.
Brady requires that "the exculpatory or impeaching evidence is disclosed at a time when it still has value." United States v. Houston, 648 F.3d 806, 813 (9th Cir. 2011); United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991). The additional text messages, if they could be considered exculpatory, were turned over while they still had value, which was before defense counsel cross-examined either Anderton or Nielson. This is shown by the fact that counsel was able to cross-examine Anderton and Nielson about the additional text messages. Thus, the additional text messages were not "suppressed" as that term is understood under Brady.
Moreover, even assuming the additional messages were suppressed by the government, there is no showing that the suppression was prejudicial. The full set of text messages was submitted to the jury, which still returned a guilty verdict.
Storm's multiple claims of Brady violations are refuted by the record. No evidence was suppressed, and all the evidence Storm now references in his petition was available for use in his defense either before or during trial. Most of the evidence was shown to the jury and discussed during trial, so there is also no indication that any alleged suppression of evidence by the government prejudiced Storm. As a result, Storm has failed to prove that there were any Brady violations in his criminal prosecution, and he is not entitled to relief on that basis. C. Interstate Nexus (Grounds 3, 5, 6-8, 13, and 15)
Storm asserts several grounds relating to the interstate nexus element of his crime of possession of child pornography. First, Storm argues that the federal indictment included "no time of crime" because it did not allege the timeframe for when the child pornography was transported across state lines. The act of transporting child pornography across state lines is not prohibited by 18 U.S.C. § 2252A(a)(5)(B). See United States v. Wright, 625 F.3d 583, 594 (9th Cir. 2010) (noting that § 2252A(a)(1) prohibits the transportation of child pornography). What is prohibited by § 2252A(a)(5)(B) is the possession of child pornography, which is the actus reus of the crime. See United States v. Overton, 573 F.3d 679, 697-98 (9th Cir. 2009) (noting "the actus reus is the possession of child pornography," while discussing whether there was a double jeopardy violation (quoting United States v. Planck, 493 F.3d 501, 505 (5th Cir. 2007))). That the child pornography images or materials used to produce them were transported in interstate commerce is merely an attendant circumstance that must be met in order to secure a conviction. The indictment was therefore sufficient because it included the date of the criminal conduct that is actually prohibited under the charging statute—possession of child pornography.
Storm next claims that the Court gave erroneous instructions to the jury on how the government could satisfy the interstate commerce element of § 2252A(a)(5)(B). Storm's understanding of the interstate commerce element is incorrect. To convict a defendant under § 2252A(a)(5)(B), the government must prove: (1) the defendant knowingly possessed material containing an image of child pornography; and (2) the images had been transported "in or affecting interstate or foreign commerce by any means, including by computer, or [were] produced using materials that have been . . . transported in or affecting interstate commerce by any means, including computer." 18 U.S.C. § 2252A(a)(5)(B).
At the beginning of trial, the Court gave the following preliminary instruction relating to the government's burden to prove the interstate commerce element of possession of child pornography: "And three, the visual depiction or depictions had either been transported in or affecting interstate or foreign commerce by any means, including by computer, or were produced using materials that had been shipped or transported in or affecting interstate foreign commerce." ECF 193 at 22:18-22. At the end of trial, the Court provided the jury with the following final instructions on that element:
(3) The visual depiction(s) had either been
ECF 134 (Jury Instructions) at 8. The Court also provided an instruction entitled "Interstate or Foreign Commerce Explained," which stated:a. Transported in or affecting interstate or foreign commerce by any means, including by computer, or
b. Produced using materials that had been shipped or transported in or affecting interstate or foreign commerce.
The government must prove, beyond a reasonable doubt, either that the images depicting child pornography had been transported in or affecting interstate or foreign commerce by any means, including by computer, or that they were produced using materials
that had been shipped or transported in or affecting interstate or foreign commerce by any means, including by computer. The government can do so either by proving that the images themselves had previously crossed state lines by any means, including by computer, or that the computer hard drive, thumb drive, or other digital storage media the images were saved to had previously crossed state lines. The government need not prove that the images were part of a commercial transaction.Id. at 10; see also ECF 197 at 14 (885:2-15).
These jury instructions are consistent with Ninth Circuit law. Possessing child pornography on computer equipment that has previously traveled in interstate or foreign commerce satisfies the interstate nexus element. See United States v. Lacy, 119 F.3d 742, 750 (9th Cir. 1997) (holding that downloading child pornography onto a computer is "producing," and that the interstate nexus element is proven when computers that the images were downloaded on had traveled in interstate commerce); see also United States v. Guagliardo, 278 F.3d 868, 871 (9th Cir. 2002) (holding that the materials were from foreign commerce when child pornography images were copied onto disks that had been manufactured abroad). Thus, the Court's instructions to the jury on the issue of interstate or foreign nexus were not erroneous.
Finally, Storm makes several claims relating to his belief that the government did not prove the required interstate or foreign nexus element. The government offered more than sufficient evidence of interstate nexus. First, the government offered evidence that all of the devices containing images of child pornography had been manufactured outside of Oregon. See ECF 195 at 34-40 (402:9-408:9) (laptop hard drive manufactured in Thailand and previously owned in Shanghai), 44-47 (412:20-415:1) (Lexar drive manufactured in China), 54-55 (422:25-423:25) (GS drive manufactured in New Jersey). Thus, the government proved that the images of child pornography were on devices that had travelled in or affected interstate or foreign commerce.
The government also offered evidence that several of the images of child pornography found on the devices were known from previous investigations to have been produced originally outside of Oregon. See ECF 195 at 64-66 (432:10-434:21), 88-92 (456:22-460:10), 214-217 (582:9-585:10). This was a second and independently sufficient ground demonstrating the requisite interstate nexus—that the images had originally been created outside of Oregon. Storm's claims relating to interstate nexus are without merit and do not entitle him to any relief.
D. Jury Bias (Ground 4)
Storm asserts that the Court failed to exclude two jurors who admitted to being victims of sexual abuse and biased on the issue of sexual abuse. Storm does not identify the purportedly biased jurors or provide any evidence of the alleged bias. He offers nothing other than his conclusory allegation. Thus, this claim fails.
Storm may be referring to one potential juror whose brother had adopted two children who had been sexually abused, and another potential juror who had been the victim of sexual abuse when he was very young. Although the Court declined to excuse them for cause, counsel for Storm used peremptory challenges to exclude them, and neither of those persons were seated and sworn as jurors in this case. Thus, the Court's refusal to excuse these potential jurors for cause caused no prejudice to Storm.
E. "Malicious Prosecution" (Ground 14)
Storm asserts a ground that he calls "malicious prosecution," which appears to be a claim of vindictive prosecution. Storm argues that when state prosecutors "lost" their jury trial, they made a deal with federal prosecutors in order to "vindicate the loss." Storm claims that this initial "collusion" and cooperation throughout the federal case was "nefarious." In support of his vindictive prosecution claim, Storm alleges that federal prosecutors threatened Storm's parents and fiancé, had Storm indicted on false state charges to pressure him to plead guilty, used fabricated and corrupted evidence at trial, withheld evidence, and threatened to have the State re-indict dismissed charges in order to keep Storm in jail pending his federal sentencing. The assertions of fabricated, corrupted, and withheld evidence have already been addressed above and found to be meritless.
Vindictive prosecution, a due process violation, occurs when a prosecutor seeks additional charges that would not have been sought but for hostility towards the defendant for exercising a constitutional or statutory right. United States v. Hernandez-Herrera, 273 F.3d 1213, 1217 (9th Cir. 2001); United States v. Frega, 179 F.3d 793, 801-02 (9th Cir. 1999) (citations omitted). A presumption of vindictiveness may arise when there is "[e]vidence indicating a realistic or reasonable likelihood of vindictiveness." United States v. Montoya, 45 F.3d 1286, 1299 (9th Cir. 1995) (citations omitted). "Once a presumption of vindictiveness has arisen, the burden shifts to the prosecution to show that independent reasons or intervening circumstances dispel the appearance of vindictiveness and justify its decisions." Id. (quotation marks omitted).
Bringing new charges supports a presumption of vindictiveness when the new charges are based on the same conduct that was the subject of the first indictment, the same sovereign is involved, and the decision to bring new charges directly follows the assertion of a right by the defendant. United States v. Garza-Juarez, 992 F.2d 896, 907 (9th Cir. 1993). Vindictive prosecution is less likely to occur when a separate sovereign is the entity that brings the additional charges. United States v. Ballester, 763 F.2d 368, 370 (9th Cir. 1985); see also United States v. Robison, 644 F.2d 1270, 1273 (9th Cir. 1981).
Storm correctly asserts that the federal prosecutor only brought federal charges against Storm after he filed a motion to dismiss for lack of venue in his state case. Although the federal charges were based on the same conduct as the state charges, they were brought by a different sovereign, decreasing the likelihood of vindictive prosecution. See Ballester, 763 F.2d at 370. The Ninth Circuit has held that motions to dismiss and motions relating to venue are the exercise of rights that can support an inference of vindictive prosecution. See United States v. Groves, 571 F.2d 450, 453 (9th Cir.1978); United States v. DeMarco, 550 F.2d 1224, 1226 (9th Cir. 1977). The record shows, however, that the federal charges were not brought as punishment for Storm filing his motion in state court, but rather because the State thought the motion may have merit. See ECF 26-2; ECF 26-3; ECF 26-25. The State decided to forego its case in favor of federal prosecution because federal law does not require proof of venue. ECF 26-4 at 2-3. Storm has shown no evidence indicating that the federal prosecutor chose to indict Storm in retaliation for his filing a motion to dismiss during the state trial.
Storm claims that prosecutors threatened to indict his parents or to have the State bring additional charges in an attempt to pressure Storm into accepting a plea agreement. Storm also alleges that prosecutors threatened his fiancé with criminal indictment or imprisonment if she failed to cooperate with their investigation. Storm, however, offers no evidence in support of these allegations.
When negotiating a plea agreement, "prosecutors may threaten additional charges and carry through on this threat, . . . [and] the filing of additional charges after a defendant refuses to plead guilty does not raise a presumption of vindictiveness." Hernandez-Herrera, 273 F.3d at 1217 (quotation marks omitted); see also United States v. Goodwin, 457 U.S. 368, 379-80 (1982). These threats can also be made about third-party family members. See United States v. Caro, 997 F.2d 657, 659 (9th Cir. 1993); see also United States v. Reynoso-Gonzalez, 5 F. App'x 662, 663 (9th Cir. 2001) ("The government is able to offer a plea agreement to a defendant whereby a third-party receives a benefit from the defendant's decision to plead guilty."). Only if the plea agreement is made are such threats relevant, and then only in regards to the voluntariness of the plea. See Sanchez v. United States, 50 F.3d 1448, 1455 (9th Cir. 1995); United States v. Castello, 724 F.2d 813, 814-15 (9th Cir. 1984).
Even if the government made threats against Storm or his parents in order to pressure him to plead guilty, such conduct does not constitute prosecutorial vindictiveness. Storm never pleaded guilty to any charge relevant to his petition, so there is no issue of voluntariness to which such threats might be relevant. Similarly, even if prosecutors did threaten Storm's fiancé in an attempt to persuade her to cooperate, she ultimately did not cooperate or provide evidence against Storm. Prosecutorial vindictiveness cannot be inferred from these alleged threats.
Finally, the record does not support Storm's assertion that the federal prosecutor threatened to have the State refile any dismissed charges in order to keep Storm in jail pending sentencing. When advocating after conviction that Storm be taken into custody pending sentencing, the only statement the federal prosecutor made about state charges was to inform the Court that the State had said they were "prepared to reinstitute its charges." ECF 179 at 9-10 (966:21-967:1). The record indicates that the prosecutor was informing the court of the possibility that the State might prosecute Storm, rather than threatening that the State will do so.
Storm's claims of prosecutorial vindictiveness are unsupported by the law and by the record. Storm has failed to show "a realistic or reasonable likelihood of [prosecutorial] vindictiveness." Montoya, 45 F.3d at 1299. Thus, no presumption of vindictiveness arises, and Storm's vindictive prosecution claim fails.
F. Actual Innocence (Ground 18)
Storm asserts a freestanding claim of actual innocence. Usually, a prisoner claims actual innocence so that his otherwise procedurally barred constitutional claim can be considered on the merits. See Schlup v. Delo, 513 U.S. 298, 315 (1995); Carriger v. Stewart, 132 F.3d 463, 477 (9th Cir. 1997) (en banc). It is unclear from the Supreme Court whether a freestanding actual innocence claim is cognizable on federal habeas review. See House v. Bell, 547 U.S. 518, 554-55 (2006), Herrera v. Collins, 506 U.S. 390, 417 (1993). The Ninth Circuit, however, has recognized that claims of actual innocence are cognizable under 28 U.S.C. § 2255. See United States v. Berry, 624 F.3d 1031, 1038 n.5 (9th Cir. 2010); Carriger, 132 F.3d at 476. The threshold for a freestanding claim of actual innocence is "extraordinarily high" and a petitioner must "affirmatively prove that he is probably innocent." Carriger, 132 F.3d at 476 (quotation marks omitted).
Storm has failed to meet this "extraordinarily high" threshold. Id. Storm presents no evidence that affirmatively proves his probable innocence, such as a newly discovered alibi witness or the confession of another person. Instead, Storm merely rehashes the defense theories he presented at trial. Habeas petitions under § 2255 "may not be used as a chance at a second appeal." United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010). Storm offers no new evidence showing he is probably innocent, and thus his claim of actual innocence fails.
The government argues that Storm's freestanding actual innocence claim fails both on its merits and because it is procedurally defaulted. One of the excuses for procedural default is actual innocence, which is proven at a lower standard than the standard for a freestanding claim of actual innocence. See Carriger, 132 F.3d at 477. Therefore, if Storm had a freestanding actual innocence claim with merit, logic dictates that any procedural default would be excused. --------
G. Failure to Appear Conviction and Sentence (Grounds 16 and 17)
Storm argues that if the Court vacates his possession of child pornography sentence, then his failure to appear sentence should either be vacated or, at a minimum, the post-prison terms that would typically apply only to someone with a history of sexual violence should be withdrawn. Storm's possession of child pornography sentence is not being vacated, and thus the Court rejects these claims. H. Double Jeopardy and Miranda Violations (Grounds 13 and 19)
Storm argues that the government unlawfully indicted him in violation of the Double Jeopardy Clause and that his Miranda rights were violated during the execution of the state search warrant. Both of these issues were fully briefed and argued when defense counsel made preliminary motions to suppress defendant's statements and to dismiss the indictment for violation of Double Jeopardy. See ECF 22; ECF 23; ECF 31; ECF 32; ECF 39; ECF 40. The Court considered and denied these motions before trial. See United States v. Storm, 2012 WL 3643845 (Aug. 23, 2012). Storm did not challenge on appeal the Court's rulings on these motions. See Storm, 612 F. App'x at 447.
Although Storm's Double Jeopardy and Miranda claims are likely subject to procedural default, see United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993), the government did not raise a procedural default affirmative defense. Instead, the government argues that the Court should decline to review these claims under the doctrine of law of the case. The Court finds that Storm offers no new evidence or arguments than those already presented to and rejected by the Court during Storm's criminal proceedings. The Court finds no reason to change its previous analysis and conclusion denying these motions. See Storm, 2012 WL 3643845 at *4-8.
I. Appellate Decision (Motion 2 Ground 2)
Finally, Storm asks the Court to reexamine issues the Ninth Circuit ruled on during his direct appeal, calling the appellate decision a "misruling." The doctrine of law of the case applies. "Under the law of the case doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the same court, or a higher court, in the same case." United States v. Jingles, 702 F.3d 494, 499-500 (9th Cir.2012) (quotation marks omitted). "A collateral attack is the 'same case' as the direct appeal proceedings for purposes of the law of the case doctrine." Id. at 500. A court may decline to apply the decision of a previous court if "(1) the decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced at a subsequent trial." Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc) (quoting Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir. 1997) (en banc)).
Storm claims that the Ninth Circuit's decision was clearly erroneous and enforcing it would work a manifest injustice. The Court disagrees. Storm has provided no new evidence or legal decisions that cause the Court to question the Ninth Circuit's affirmance in 2015 of Storm's conviction. Thus, the law of the case doctrine applies, and the Court will not disturb the Ninth Circuit's ruling.
CONCLUSION
None of the grounds raised by Storm have merit, and thus his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (ECF 204) is DENIED. The Court also DECLINES to issue a Certificate of Appealability on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this 6th day of April 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge