United States of America v. Stokes
Filing
22
MEMORANDUM Opinion and Order. Signed by the Honorable Rebecca R. Pallmeyer on 10/29/2015. Mailed notice(rm, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA,
Plaintiff,
v.
CHARLES STOKES (78869-004),
Defendant.
)
)
)
)
)
)
)
)
)
No. 14 C 9485
Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Petitioner Charles Stokes ("Stokes") was convicted by a federal jury in June 2010 on a
charge of traveling in foreign commerce for the purpose of engaging in a sex act with a minor, a
violation of 18 U.S.C. § 2423(b). He was sentenced to 180 months in prison, the statutory
maximum. Stokes has moved to vacate his conviction and sentence pursuant to 28 U.S.C.
§ 2255. He presents six alleged bases for relief: (1) counsel was ineffective because he had
insufficient time to prepare for trial; (2) the prosecutors engaged in “knowing use of false
testimony”; (3) the indictment was constructively amended at trial; (4) this court lacked
jurisdiction to hear the charges against him; (5) the court improperly applied U.S.S.G. § 2G2.1 in
his case; and (6) the court "did not consider the defendant[']s 3553(a) factors." Stokes has also
moved for the court to recuse [8] from reviewing his § 2255 motion on the basis of bias. For the
reasons explained here, the motion for recusal [8] is denied, and Stokes’s § 2255 petition [1] is
dismissed. The court declines to grant a Certificate of Appealability on any issue.
BACKGROUND
Except where noted, the following facts are drawn from the Seventh Circuit's opinion
affirming Petitioner's conviction and sentence. United States v. Stokes, 726 F.3d 880, 885–87
(7th Cir. 2013).
I.
Factual Background
Stokes served as a teacher in Florida's Miami-Dade public-school system for more than
a decade. In February 2000, Stokes pleaded no contest to a charge of misdemeanor battery for
indecent touching of two of his male students. A Florida court suspended Stokes's sentence
and placed him on probation.
Shortly thereafter, Stokes requested—and was granted—
permission to complete his probation in Thailand. Less than a month after entering his guilty
plea, Stokes moved to Thailand, settling in the city of Pattaya, approximately 90 miles southeast
of Bangkok on the Gulf of Thailand.
Within two weeks of touching down in his new home, Stokes began seeking out boys for
sex. His modus operandi involved enticing runaways and other boys from the streets to his
home, ostensibly to play video games. But, once there, Stokes would engage in sex acts with
them, often memorializing those acts with a digital camera. During his time in the country, he
also frequently hired young male prostitutes. This behavior continued undetected for several
years. Outside of a three-week trip to the United States starting in late December 2001, Stokes
resided continuously in Thailand from March 2000 until his extradition in 2007. While there, he
supported himself by teaching English as a second language.
In December 2002, Immigration and Customs Enforcement ("ICE") agents based in
Thailand received a tip that Stokes had been fired from a teaching job in Bangkok for indecently
touching male students. The agents opened an investigation and learned that this was the
second time that Stokes had been dismissed from a Thai school for similar allegations. Based
on this information, ICE sought the help of the Royal Thai Police. Thai officers eventually
obtained a warrant authorizing a search of Stokes's home "to locate and seize any illegal items."
(Search Warrant, Ex. 3 to Def.'s Mem. in Support of Mot. to Suppress, R. 108, United States
v. Stokes, No. 07 CR 590, N.D. Ill.)
Early in the morning of October 9, 2003, ICE agents and the Royal Thai Police executed
the warrant at Stokes's home. They recovered a digital camera, multiple compact discs, and a
2
computer.
The devices contained, in total, more than 6,000 images of Stokes's sexual
encounters with adolescent and prepubescent boys.
II.
Procedural History
Despite the voluminous evidence recovered by authorities, Stokes was not arrested until
July 2006, nearly three years after the search. Another year passed before Thailand granted
the United States' extradition request and Stokes returned to Miami to face a charge of violating
18 U.S.C. § 2423(c). That provision makes it a crime for U.S. citizens and lawful permanent
residents to travel in foreign commerce and engage in illicit sexual conduct. As prosecutors
soon realized, however, that particular subsection of § 2423 was not enacted until after Stokes
had departed the United States for Thailand and therefore did not apply to his conduct.
Prosecutors dropped that charge, but Stokes was transferred to the Northern District of Illinois
where he was indicted on three counts of violating 18 U.S.C. § 2251A(b)(2)(A), a childtrafficking statute. Prosecutors later dismissed these charges as well, however, and finally
indicted Stokes on a single count of violating 18 U.S.C. § 2423(b), which at the time of Stokes's
March 2000 emigration to Thailand prohibited traveling in interstate or foreign commerce for the
purpose of engaging in a sexual act with a person under 18. See 18 U.S.C. § 2423(b) (effective
Oct. 30, 1998 to Nov. 2, 2002).
Stokes moved to suppress the evidence recovered in the 2003 search of his home in
Thailand. This court denied the motion, United States v. Stokes, 710 F. Supp. 2d 689 (N.D. Ill.
2009), and the case proceeded to trial before a jury.
At trial, the government introduced
testimony from the ICE agents involved in the investigation and from two Thai boys who were
sexually assaulted by Stokes. One of the victims was a “street kid nicknamed ‘Ice’," who was
11 years old when Stokes first lured him to his home. 726 F.3d at 887. Ice testified that Stokes
subjected him to various sex acts and gave him money on some 20 different occasions. The
other victim, nicknamed "Note," also was 11 when he first went home with Stokes. He testified
to a similar pattern of sexual abuse perpetrated by Stokes.
3
Finally, the government introduced a representative sample of the 6,000 photographic
images recovered during the search of Stokes's home.
The photographs depicted Stokes
engaged in various sex acts with Thai boys, including Ice and Note. An ICE agent testified that
approximately 70 different boys appear in the images, 60 of whom appeared to be under 16. Of
those, half appeared to be under the age of 12, and the youngest looked to be about 7.
Hundreds of these photos were transferred from Stokes's camera to compact discs in the
months immediately before and after his brief trip to the United States at the end of 2001.
The jury found Stokes guilty and this court sentenced him to the statutory maximum
penalty of 15 years in prison. The Seventh Circuit upheld both the conviction and sentence on
appeal. Stokes filed this § 2255 motion [1] in November 2014, raising five different grounds for
relief.
He later added a sixth [6].
He has also asked this court to recuse itself from the
consideration of his § 2255 motion [8]. The government filed a response [16] to which Stokes
has replied [20].
DISCUSSION
I.
Motion to Recuse
Stokes argues that this court should recuse itself from consideration of his § 2255
motion based on "the fervent possibility [of] personal bias and prejudice." (Mot. for Recusal,
R. 8, at 1.) In support of his motion, Stokes points to several comments made by this court
throughout Stokes's trial and sentencing as well as statements made by the court in an
unrelated case involving a different defendant charged with a similar crime. (Id. at 2–12.)
Section 455(a) of the Judicial Code, 28 U.S.C. § 455(a), requires a judge to disqualify
herself in any proceeding in which her impartiality might reasonably be questioned. Section
455(b)(1) requires disqualification when the judge has an actual personal bias or prejudice
concerning a party, or personal knowledge of disputed evidentiary facts. Stokes's motion to
recuse invokes both theories.
4
A.
Section 455(a)
The relevant question for purposes of § 455(a) disqualification is whether "the judge's
impartiality might reasonably be questioned by a well-informed, thoughtful observer rather than
to a hypersensitive or unduly suspicious person." O'Regan v. Arbitration Forums, Inc., 246 F.3d
975, 988 (7th Cir. 2001) (internal quotation marks and citation omitted). The standard is an
objective one: "That an unreasonable person, focusing on only one aspect of the story, might
perceive a risk of bias is irrelevant. . . . [A] reasonable person is able to appreciate the
significance of the facts in light of relevant legal standards and judicial practice and can discern
whether any appearance of impropriety is merely an illusion." In re Sherwin-Williams Co., 607
F.3d 474, 477–78 (7th Cir. 2010).
B.
Section 455(b)(1)
The appropriate standard of proof for a claim of recusal predicated on actual prejudice is
similar: "whether a reasonable person would be convinced that the judge is biased." United
States v. Balistrieri, 779 F.2d 1191, 1201 (7th Cir. 1985). To justify recusal under this theory, a
party must file an affidavit that includes definite and particular facts about circumstances that
would convince a reasonable person that the judge is prejudiced. Tezak v. United States, 256
F.3d 702, 717 (7th Cir. 2001) (citing 28 U.S.C. § 144). "[J]udicial rulings alone almost never
constitute a valid basis for a bias or partiality motion." Liteky v. United States, 510 U.S. 540,
555 (1994). Rather, "[b]ias against a litigant must . . . arise from an extrajudicial source." Hook
v. McDade, 89 F.3d 350, 355 (7th Cir. 1996). Opinions formed by the judge on the basis of
facts introduced or events occurring in the course of the current proceedings do not constitute a
basis for a bias or partiality motion unless they display a deep-seated antagonism that would
make fair judgment impossible. Liteky, 510 U.S. at 555.
The Seventh Circuit has stated that "the negative bias or prejudice from which the law of
recusal protects a party must be grounded in some personal animus or malice that the judge
harbors against him, of a kind that a fair-minded person could not entirely set aside when
5
judging certain persons or causes." Balistrieri, 779 F.2d at 1201. Further, "the disqualification
of a judge for actual bias or prejudice is a serious matter, and it should be required only when
the bias or prejudice is proved by compelling evidence." Id. By the same token, recusal is not a
tool that parties can arbitrarily invoke. Judges have an obligation not to recuse themselves in
those cases in which they are qualified to sit. See Laird v. Tatum, 409 U.S. 824, 837 (stating
that "a Federal judge has a duty to sit where not disqualified which is equally as strong as the
duty to not sit where disqualified" (emphasis in original)).
C.
Stokes's Allegations of Prejudice
Stokes's allegations of bias focus on three sets of comments made by the court. First,
he points to statements the court made during the sentencing of Donald McGuire, who was also
convicted in this court of traveling in interstate and foreign commerce for the purpose of having
sex with a minor. Second, he objects to comments made by the court during a hearing on
August 4, 2009. And third, he takes issue with a series of rulings and in-court statements made
by the court during his trial.
i.
The McGuire Case
Stokes objects to the following quote published in the Chicago Tribune after McGuire's
sentencing: "'I want any such person to know the system of justice, and this judge personally,
finds it absolutely abhorrent,' the judge said of McGuire's misconduct. He committed 'a very,
very serious sin,' she said." Id. Although Stokes implies that the court made these comments
about the McGuire case to the media, (R. 8 at 2–3 ("[T]his Court made public its feelings
recording its personal revulsion, both in Court and in the press . . . .").), the statements in
question were made at McGuire's sentencing and subsequently published in a newspaper
article. See Jeff Coen, Former Priest, 78, Gets 25 Years on Abuse Charges, Chicago Tribune,
Feb.
12,
2009,
http://articles.chicagotribune.com/2009-02-12/news/0902111018_1_abuse-
charges-sentencing-guidelines-priest. This distinction is material, as statements made to the
media about a pending case may justify recusal, In re Sherwin-Williams Co., 607 F.3d at 478
6
(discussing cases in which "recusal has been ordered because of a district judge's comments to
the media [where] the commented-upon-case was pending before the district judge"), while incourt statements seldom do, Liteky, 510 U.S. at 555 (holding that "judicial rulings alone almost
never constitute a valid basis for a bias or partiality motion") (citing United States v. Grinnell
Corp., 384 U.S. 563, 583 (1966)).
The court's comments were not improper in McGuire's case, see Liteky, 510 U.S. at 541
("Even though a federal judge who presides at a criminal trial may, upon completion of the
evidence, be exceedingly ill disposed towards a defendant, who has been shown to be a
thoroughly reprehensible person, the judge is not thereby recusable . . . for bias or prejudice."),
and they have no bearing on Stokes's. Petitioner has not presented any evidence connecting
this court's statements about McGuire to any personal malice or animus toward Stokes. As a
result, those statements do not justify recusal.
ii.
August 4, 2009 Hearing
Stokes next urges the court to recuse itself based on the following remarks from an
August 2009 status hearing, remarks which he argues "revealed an air of prejudice and
exposed a bias toward a select group of people." (R. 8 at 3)
Specifically, addressing the
argument that a search for drugs could not reasonably have led to discovery of photographs,
the court observed:
There are drugs that are known to be used by homosexuals, and maybe this is
one of those drugs. . . . So the agents go into the home looking for evidence of
that—of the use of that drug.
They know that it's popularly used by
homosexuals. They know that male sexual activity, boys, could be involved. It
doesn't strike me as a huge stretch to say, what's on the camera? I guess I am
just saying that, apart from the scope of the warrant argument, I am not sure that
it jumps off the page at me that looking into a camera in a situation like that is
unreasonable.
(Aug. 4, 2009 Hearing Tr., R. 305, at 20–21, United States v. Stokes, No. 07 CR 590, N.D. Ill.)
Stokes goes on to claim that "[t]his line of reasoning is insulting and displays the Court[']s
prejudice and disgust toward someone accused of such a crime." (R. 8 at 3.)
7
These comments do not reflect insult or disgust. In support of his motion to suppress,
Stokes argued characterized the Thai warrant as a "drug warrant" and that the search for
photographic and video evidence in Stokes's home exceeded the scope of the warrant. (Mot. to
Suppress, R. 59, at 2–3, United States v. Stokes, No. 07 CR 590, N.D. Ill.) The court ultimately
concluded that the Warrant Clause of the Constitution does not apply to an extraterritorial
search, such as this one, and that the circumstances of the search were otherwise reasonable.
Stokes, 710 F. Supp. 2d at 698-702.
The Court of Appeals affirmed both of those
determinations. Stokes, 726 F.3d at 890-94. Taken in context, in its remarks from the bench,
the court was simply recognizing that the circumstances could be understood as supporting the
reasonableness of the officials’ conduct. But regardless of their context, nothing in the court’s
remarks would cause a reasonable person to question the court's impartiality.
Nor do the
comments support Stokes's claim that the court held personal or extrajudicial biases against
Stokes or others accused of similar crimes. As such, the statements in question do not warrant
recusal.
iii.
Statements Made During Stokes's Trial
Finally, Stokes contends that recusal is warranted based on numerous incidents at trial
and sentencing that allegedly exposed the court's prejudice against him. For instance, Stokes
points to multiple rulings made in the government's favor (R. 8 at 4–12), and references by the
court to Stokes's previous legal trouble in Florida (id. at 3–4), as evidence of the court's bias
against him.
The Supreme Court has noted that "judicial rulings alone almost never constitute a valid
basis for a bias or partiality motion," Liteky 510 U.S. at 555. This case is no exception. To
support his claims, Stokes must offer facts that are sufficiently specific to convince a reasonable
person that bias—or at least the appearance of bias—exists. Tezak, 256 F.3d at 717 (7th Cir.
2001). Stokes has offered no such facts. Instead, he relies on the inference that because the
court was (in Stokes’s estimation) "terse" with defense counsel and ruled against Petitioner on
8
certain issues (R. 8 at 4–9), the court must have harbored personal, extrajudicial animus against
him. That inference is not enough to justify recusal. And the argument ignores the many
instances in which this court ruled on motions in Stokes's favor. (Resp't's Br., R. 16, at 18–19
(listing orders ruling in Stokes's favor)). Petitioner's motion to recuse [8] is denied.
II.
28 U.S.C. § 2255 Motion
Pursuant to 28 U.S.C. § 2255, a prisoner sentenced in violation of the Constitution or
laws of the United States "may move the court which imposed the sentence to vacate, set aside
or correct the sentence." 28 U.S.C. § 2255(a); Swanson v. United States, 692 F.3d 708, 714
(7th Cir. 2012). A petition for relief under § 2255 requests an extraordinary remedy, essentially
asking the district court to "reopen the criminal process to a person who has already had an
opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). In
reviewing such a petition, the district court need not conduct an evidentiary hearing and may
dismiss the petition without a hearing if "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(b).
As outlined above, Stokes has raised six separate grounds in support of his § 2255
motion. The court addresses his six arguments below.
A.
Ineffective Assistance of Counsel
Stokes's first claim for § 2255 relief is that he was denied the effective assistance of
counsel. Specifically, Stokes claims that his trial attorney, Pablo de Castro, had insufficient time
to mount an adequate defense because he was appointed "just 90 days prior to trial" and the
court denied his request for an extension of time. (R. 1 at 6.) Due to these time constraints,
Stokes contends that de Castro could not (1) "engage in meaningful/necessary investigation or
analysis of discovery or witnesses," or (2) "fully review[] and analyz[e] the evidence prior to
trial." (Id.)
In order to establish constitutionally ineffective assistance of counsel, the petitioner must
show that (1) "counsel's representation fell below an objective standard of reasonableness" and
9
(2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694
(1984). To satisfy the performance prong of the Strickland test, Stokes must direct the court to
specific acts or omissions of counsel. See United States v. Trevino, 60 F.3d 333, 338 (7th Cir.
1995).
The court must then consider whether, in light of all the circumstances, counsel's
performance was outside the range of professionally competent assistance. Id. Meanwhile, in
order to satisfy the prejudice prong, Stokes must "must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different." Strickland, 466 U.S. at 694. A court need not address both prongs of the
Strickland test if one provides the answer. See United States v. Fudge, 325 F.3d 910, 924 (7th
Cir. 2003) (citing Matheney v. Anderson, 253 F.3d 1025, 1042 (7th Cir. 2001)).
The court will focus exclusively on Strickland's prejudice prong, because it proves
dispositive here. Stokes lists a number of things that de Castro might have done with additional
time to build a defense. For instance, he could have (1) "create[d] timetables, graphs and
charts showing exactly the frequency (or infrequency) of the defendant's meetings with
prostitutes" (R. 1 at 9); (2) interviewed more "potential witnesses" (id. at 11); and pursued
"legitimate concerns or potential defenses." (id.). But Stokes does not explain how any of this
additional legwork could have affected the jury's determinations. For instance, how would the
timelines, graphs, or charts that Stokes suggests have cast doubt on the government's case?
What testimony would additional witnesses have offered? And what potential defense could de
Castro have raised? Stokes answers none of these questions. Instead, he simply names a
laundry list of things that his attorney could have done, without any explanation as to how they
would have altered the result of his trial. This failure is particularly damning in light of the
evidence against Stokes, which the Seventh Circuit characterized as "overwhelming." Stokes,
726 F.3d at 897.
Without establishing a reasonable probability that the outcome of the
10
proceedings would have been different if not for the time constraints put on his trial counsel,
Stokes cannot prevail on his ineffective-assistance claim.
B.
Knowing Use of False Testimony
Stokes next argues that his conviction should be vacated because the government
knowingly introduced false testimony against him. (R. 1 at 18–20.) A conviction obtained
through the knowing use of false testimony violates due process. Napue v. Illinois, 360 U.S.
264, 269 (1959). To obtain a new trial, however, a petitioner must establish that: (1) there was
false testimony; (2) the prosecution knew or should have known that it was false; and (3) there
is a likelihood that the false testimony affected the judgment of the jury. Morales v. Johnson,
659 F.3d 588, 606 (7th Cir. 2011). For purposes of this analysis, the Seventh Circuit has
distinguished between "mere inconsistencies" in a witness's testimony, United States v. Verser,
916 F.2d 1268, 1271 (7th Cir. 1990), and "the willful assertion under oath of a false, material
fact." Carey v. Duckworth, 738 F.2d 875, 878 (7th Cir. 1984).
Stokes offers dozens of citations to the record in support of his assertion that the
government knowingly introduced witnesses who testified falsely. (R. 1 at 12-17.) The majority
of these references are simply page and line numbers without additional information regarding
the content or alleged contradiction revealed at the record citation. And at least some of the few
passages purportedly quoted by Stoke are in fact actually paraphrases or mischaracterizations
of the actual trial testimony. (See, e.g., id. at 12 (offering quotes attributed to law-enforcement
officials that inaccurately reproduce the record).)
In any event, none of the evidence that Stokes offers supports the notion that any
witness for the prosecution offered perjured testimony. At most, Stokes has identified mere
inconsistencies that do not substantiate his claim that government witnesses "did invent,
fabricate, or perjure themselves during pre-trial and trial proceedings." (R. 8 at 12.) One
example is illustrative of this failing. Stokes takes issue with the testimony of ICE Agent Gary
Phillips. At trial, Phillips explained that he had identified the boy known as "Note" as "under 12"
11
years of age based on physical observations rather than any formal medical or physical
examination. (R. 1 at 13–14; June 7, 2010 Trial Tr., R. 288, at 97–98, United States v. Stokes,
No. 07 CR 590, N.D. Ill.) Stokes contends that this testimony contradicts an investigation report
that stated "On January 30, 2004, C.A. Bangkok with assistance of [Phillips], conducted an
interview and x-ray examination of [Note]." (R. 1 at 14.) The report is vague as to Phillips’s
precise role in the x-ray examination. Even assuming he played a substantial role, however, his
testimony is not obviously inconsistent with that activity, let alone false. In his testimony, Phillips
did not offer a blanket denial of having ever performed any medical tests on Note; he simply
stated that his assessment of the boy's age was not based on any formal examination.
Moreover, even if some of the testimony cited by Stokes did show that government
witnesses offered non-truthful testimony, he has not offered any evidence that the government
was or should have been aware of the untruths. Nor has he presented any basis for the
conclusion that the allegedly false testimony prejudiced him. As Stokes has failed to satisfy any
of the three factors required to support his contention that the prosecution knowingly introduced
false testimony, this claim fails.
C.
Constructive Amendment of the Indictment
Stokes's third ground for relief is that the government "constructively amended" the
indictment at trial, "convicting the defendant of acts he did outside the scope of the indictment."
(R. 1 at 18.) More specifically, he claims that the government failed to introduce any evidence
of Stokes's intent in traveling to Thailand—a necessary element of § 2243(b)—and instead
presented evidence of the sex acts that Stokes engaged in after his arrival for the purpose of
"inviting the jury to transfer its revulsion . . . into a conviction for travel with intent." (Id.)
As the government points out, Stokes already litigated this claim on direct appeal and
lost. In fact, this section of Stokes's § 2255 motion is largely a rehashing of his appellate brief
on direct review. (Compare R. 1 at 19 ("[N]o evidence was presented of the defendant[']s
purpose for initiating his travel.") with Appellant's Br., R. 14, United States v. Stokes, No. 1112
2734, 7th Cir. ("There was no evidence of the defendant's purpose for initiating the travel."))
The Seventh Circuit described challenge on this issue as "frivolous," explaining that "Stokes's
sexual abuse of young boys both before and after his travel to Thailand was directly and
centrally relevant to his intent at the time of his travel." Stokes, 726 F.3d at 896. As this
argument was considered and rejected on appeal, Stokes may not relitigate it in this collateral
proceeding. See Fuller v. United States, 398 F.3d 644, 648 (7th Cir. 2005) ("[O]nce this court
has decided the merits of a ground of appeal, that decision establishes the law of the case and
is binding on a [court] asked to decide the same issue in a later phase of the same case, unless
there is some good reason for reexamining it.") (quoting United States v. Mazak, 789 F.2d 580,
581 (7th Cir. 1986)); White v. United States, 371 F.3d 900, 902 (7th Cir. 2004) ("[T]he courts . . .
forbid a prisoner to relitigate in a collateral proceeding an issue that was decided on his direct
appeal.").
D.
Jurisdictional challenge
Next, Stokes argues that this court "did not have proper jurisdiction to address the
charged offense" and, therefore, "the Court should enter an order to annul, vacate or set aside
judgment." (R. 1 at 24.) Like his constructive-amendment argument, Stokes has raised this one
On direct appeal, Stokes similarly claimed that the Rule of Specialty 1 barred his
before.
prosecution because he was extradited for a violation of 18 U.S.C. § 2423(c) but convicted
under § 2423(b). The Seventh Circuit ruled that, because Thailand was alerted to the modified
charges against Stokes and subsequently waived the Rule of Specialty, Stokes's conviction did
not run afoul of the doctrine. United States v. Stokes, 726 F.3d 880, 888 (7th Cir. 2013).
1
A doctrine of treaty law, the Rule of Specialty stands for the proposition that an
extradited individual can only be prosecuted for the specific crime(s) for which he was
extradited. United States v. Warda, 285 F.3d 573, 575-76 (7th Cir. 2002) ("[T]he Rule of
Specialty ... does not allow the country to which an individual is extradited to prosecute that
person for a crime unless the extraditing nation has expressly authorized such a prosecution.").
13
Because Stokes raised this argument on direct appeal, he cannot relitigate it on collateral
review. See Fuller, 398 F.3d at 648; White, 371 F.3d at 902.
E.
Cross Reference to § 2G2.1
Stokes's fifth ground supporting his § 2255 motion is that the court should not have
applied U.S.S.G. § 2G2.1 in determining Stokes’s sentence, because none of the relevant
conduct took place in the United States. (R. 1 at 25-27.)
Because this argument was available to him on direct appeal, Stokes should have
raised it then. His failure to do so constitutes a procedural default, barring him from raising the
claim in his § 2255 petition unless he can show (1) cause for the default and (2) actual prejudice
caused by the failure to appeal. See Belford v. United States, 975 F.2d 310, 313 (7th Cir.
1992).
Even apart from the procedural default, the court must dismiss this claim because it
lacks merit. The Seventh Circuit rejected a similar argument almost two decades ago in United
States v. Dawn, 129 F.3d 878, 886 (7th Cir. 1997). In Dawn, as in Stokes's case, the defendant
received a higher sentence under the cross-referenced § 2G2.1, the child pornography
production guideline. Dawn, who was convicted of possession of child pornography, argued
that the district court erred in applying § 2G2.1, because any films depicting minors in sexually
explicit conduct would have been produced abroad. Id. at 881. The Seventh Circuit rejected
this line of reasoning, reiterating that the Sentencing Guidelines are designed to consider
conduct beyond the offense of conviction:
[T]aking into account conduct related to the offense of conviction in sentencing is
not the same thing as holding the defendant criminally culpable for that
conduct. . . . However much it may look like the defendant is being sentenced for
a different offense—and the cross-referencing provisions of the Guidelines often
make it appear very much as though he were—he is actually being sentenced
solely for the crime or crimes of which he was convicted."
Id. at 884 (citations omitted).
14
The court went on to note that "sentencing judges may look to the conduct surrounding
the offense of conviction in fashioning an appropriate sentence, regardless of whether the
defendant was ever charged with or convicted of that conduct, and regardless of whether he
could be." Id. at 886. Thus, the fact that the conduct relevant to U.S.S.G. § 2G2.1 occurred
exclusively abroad was "immaterial" to that Guideline's applicability at Dawn's sentencing. Id.
The Seventh Circuit's reasoning in Dawn dooms Stokes's argument here. Regardless of
the location where Stokes created sexually explicit visual or printed material, § 2G2.1 was
applicable in determining his appropriate sentence under the Sentencing Guidelines.
F.
Section 3553 Factors
Finally, Stokes challenges his sentence on the theory that this court failed to "consider
[his] 3553(a) factors as a primary guide at sentencing." (Amendment to § 2255 Motion, R. 6, at
1.) Like his argument regarding the extraterritorial applicability of U.S.S.G. § 2G2.1, Stokes has
procedurally defaulted this claim by failing to raise it on direct appeal. See Belford, 975 F.2d at
313. But it, too, fails on its merits.
After calculating a defendant's sentencing range under the advisory guidelines, district
courts must "hear the arguments of the parties and conclude by making an individualized
assessment of the appropriate sentence based on the § 3553(a) factors."
United States
v. Booker, 612 F.3d 596, 601 (7th Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 49-50
(2007)).
Ultimately, the court "must adequately explain the chosen sentence to allow for
meaningful appellate review and to promote the perception of fair sentencing."
Gall,
552 U.S. at 50.
Although the court did not explicitly cite to the § 3553 factors at sentencing, it need not
do so, so long as it "gives meaningful consideration to the factors . . . and arrives at a sentence
that is objectively reasonable." United States v. Shannon, 518 F.3d 494, 496 (7th Cir. 2008);
see also United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005) ("[T]he sentencing judge can
15
discuss the application of the statutory factors to the defendant not in checklist fashion but
instead in the form of an adequate statement of the judge's reasons.").
The court's "meaningful consideration" of the § 3553 factors here is evident from an
examination of the transcript of Stokes's sentencing. For example, the court discussed, at
length, both "the nature and circumstances of the offense and the history and characteristics of
the defendant" as required by § 3553(a)(1), describing Stokes as "a very intelligent man" with
"multiple graduate degrees" and his conduct as "not only a crime but . . . a terribly serious moral
offense." (Sentencing Tr., R. 311, at 80–81, United States v. Stokes, No. 07 CR 590, N.D. Ill.)
Regarding the need for the sentence imposed, pursuant to § 3553(a)(2), the court cited
"Stokes'[s] ability to escape from any more serious penalty for his previous conduct" and the fact
that "Mr. Stokes doesn't feel the shame that any of us should when confronted with the
evidence of our wrongdoing." (Id. at 83, 84.) Finally, the court referred to its "responsibility not
to impose a sentence that's disproportionate to those experienced by persons engaged in
similar activity," (id. at 84), consistent with § 3553(a)(6)'s requirement that courts consider "the
need to avoid unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct."
All of this evidences the court's meaningful consideration of the § 3553 factors and their
applicability to Stokes at his sentencing. Thus, even if the § 3553 argument were properly
before this court, the court would conclude that its statements at sentencing demonstrate fair
treatment of § 3553 factors.
III.
Certificate of Appealability
The court denies a Certificate of Appealability on all claims. To receive a Certificate of
Appealability, Stokes must make "a substantial showing of the denial of a constitutional right."
28 U.S.C. § 2253(c)(2). A "substantial showing" exists only where "reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were 'adequate to deserve encouragement to
16
proceed further.'" Resendez v. Knight, 653 F.3d 445, 446 (7th Cir. 2011) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). The court's ruling in this case is not one that jurists of
reason would find debatable.
CONCLUSION
For the foregoing reasons, Stokes's motion under 28 U.S.C. § 2255 is denied, and the
court declines to grant a Certificate of Appealability. The motion for recusal [8] is also denied.
ENTER:
Dated: October 29, 2015
_________________________________________
REBECCA R. PALLMEYER
United States District Judge
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?