Althage v. United State of America

Filing 13

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that Movant Mark David Althage's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 [# 1 ] is denied. IT IS FURTHER ORDERED that this court will not issue a certificate of appealability because Althage has not made a substantial showing of a denial of any constitutional right. IT IS FURTHER ORDERED that movant's motion for appointment of counsel, his motion to supplement, and his request for Rule 201 hearing [## 10 , 11 ] are denied. A separate judgment in accord with this Memorandum and Order is entered this same date. Signed by District Judge Catherine D. Perry on 1/14/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARK DOUGLAS ALTHAGE,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 4:13CV2384 CDP

MEMORANDUM AND ORDER
Movant Mark Douglas Althage brings this action to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. Althage is serving a 96 month
sentence following his conviction at bench trial of knowingly possessing child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Case No. 4:10CR225
CDP.
Althage alleges that he received ineffective assistance of counsel. He raises
a confusing group of arguments that the government’s evidence regarding the
interstate or foreign commerce element of the crime was insufficient, and argues
that his counsel failed adequately to challenge that evidence and the legal basis for
the conviction. His arguments are without merit and I will deny the motion
without a hearing.

I. Background
Althage went to trial on a one-count superseding indictment charging him
with knowingly possessing child pornography in violation of 18 U.S.C. §
2252A(a)(5)(B). He waived his right to a jury trial. After the trial, I entered
detailed findings and conclusions setting out the reasons for the conviction. See
United States v. Althage, Case No. 4:10CR225 CDP, Order, Findings and
Conclusions dated June 3, 2011 [docket entry 68].
The bench trial took two days and I announced the decision in open court on
the third day. Althage was charged with and convicted of possessing 22 video files
containing child pornography; there were a total of 70 files found, but only 22 were
charged. The computer had two hard drives, both produced in Singapore, and one
of them was encrypted. 1 As set out in more detail in the Findings and Conclusions,
the fact that child pornography was found on the computer was easily established
by the government’s evidence; the main contested issue was whether Althage
knowingly possessed it. He testified that he did not know the child pornography
was on the computer and suggested that his ex-wife had done it. Althage also
called a computer forensic expert witness, who testified that child pornography
was on the computer and in his opinion it had not been downloaded from the

1

The government did not have access to the encrypted drive at the time of trial, so Althage was
not charged or convicted of possessing the child pornography that was later found on that
encrypted drive.
2

internet. The defense expert agreed that the two hard drives in the computer were
products from Singapore. The government presented significant circumstantial
evidence leading me to conclude that Althage knowingly possessed the materials.
This included evidence that the computer had been used to search for child
pornography at times Althage was the only one with access to it, the use of
Althage’s bank card and email to obtain an account allowing access to a child
pornography website, and evidence that someone had accessed directories using
the thumbnail view showing the first frame of several of the videos. This
evidence, coupled with the fact that Althage’s own testimony was not credible,2
supported the conclusion that the government had met its burden of proving him
guilty as charged.
After sentencing, Althage’s trial counsel Murry Marks was granted leave to
withdraw and the Federal Public Defender’s office was appointed to represent him
on appeal. On appeal Althage challenged the substantive reasonableness of his
sentence. On August 8, 2012, the United States Court of Appeals for the Eighth
Circuit affirmed Althage’s conviction. United States v. Althage, 484 Fed. App’x.
76 (8th Cir. 2012) (per curiam).

2

Among other things, I credited the testimony of Althage’s ex-wife over his, and I found not
credible his alibi evidence and his shifting stories about whether he knew the password to the
encrypted hard drive.
3

II. Grounds for Relief
Although Althage’s motion itself raises only two grounds, his accompanying
memorandum makes a number of related and unrelated arguments. The initial
motion states the grounds as:
(1)

Defense Counsel Murry Marks failed to investigate the
government’s evidence necessary to establish jurisdiction,
commerce clause and the elements of the crime.

(2)

Prosecutor Misconduct: Brady issue – Fraud.

In his memorandum in support of the motion, Althage spends many pages arguing
that the court had no jurisdiction over him, that the evidence showed his ex-wife
had put the materials on the computer, that the government improperly failed to
show a connection between child pornography accessed on the internet with
Althage’s bank card and the child pornography found on his computer, and the
puzzling allegation that his guilty plea was not knowingly and voluntarily entered.
I need not discuss the latter argument, because Althage did not plead guilty. I will
not discuss his argument that his wife was responsible, because that was fully
presented at trial and rejected. In his reply brief Althage abandoned his argument
that the government somehow committed a violation of Brady v. Maryland, 373
U.S. 83 (1963), which was meritless in any event because the government never
contended that the child pornography with which Althage was charged was
downloaded from the internet.

4

III. Timeliness of Althage’s Motion
The Government argues that Althage’s motion is time-barred because it was
filed after the expiration of the one-year statute of limitations contained in 28
U.S.C. § 2255(f). Althage’s conviction became final on November 6, 2012, ninety
days after his appeal was denied. Both Althage and the Government agree that the
limitations period expired on November 6, 2013.
It is unclear exactly when the motion left Althage’s hands. This court
received and docketed the motion on November 20, 2013. It was originally
received, however, by the Court of Appeals. The Eighth Circuit Clerk of Court
forwarded it to this court, with an accompanying letter stating the motion was
received there on November 18, 2013. The envelope in which it was originally
received by the Court of Appeals bears a “Received” stamp with the date
November 13, 2013, but that stamp is in a different format from the Eighth Circuit
“Received” Stamp appearing on Althage’s cover letter, which shows the November
18 date. There are no cancellation marks or dated postmarks of any kind on the
outside of the envelope.
Althage argues that the filing was timely based on the ‘prison mailbox rule,’
and asserts in his reply brief that he “maintains under penalty of perjury [that he
placed it in the prison mail system] on November 5, 2013.” The actual motion,
however, does not exactly say that.

5

Althage’s original written motion is on a preprinted form containing the
following statement: “I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct and that this Motion under 28 U.S.C. § 2255
was placed in the prison mailing system on (month, date, year). Executed (signed)
on ______ (date).” There is a blank line for the signature of the movant following
the statement. Althage signed the form and filled in the “executed on” date as “1105-2013.” He did not, however, fill in the date on the part of the form saying when
the motion was placed in the prison mailing system. The Government argues that
this statement is therefore insufficient to fulfill the requirements of the prison
mailbox rule.
In addition to the pre-printed motion form, Althage also submitted a
memorandum in support of his motion. It contains the following certificate of
service: “I, Mark Douglas Althage, do hereby certify that a true and correct copy of
the foregoing document has been sent to Tiffany G. Becker, Assistant United
States Attorney by placing it in institutional mail first class, postage paid on this
the 5th of November, 2013.” Althage’s signature follows this declaration.
Under the prison mailbox rule, a prisoner’s pro se motion is deemed filed on
the date it is delivered to prison authorities for mailing to the court, and the
prisoner must file a sworn declaration recounting the date upon which he left his
petition with prison authorities for mailing. Grady v. United States, 269 F.3d 913,

6

916 (8th Cir. 2001). Although the statement in the motion itself did not set forth
the date exactly as required, I conclude that could have been an unintentional
oversight. Taken together with the other documents and statements filed
contemporaneously, it satisfies the prison mailbox rule. Therefore, I will address
Althage’s motion on its merits.
IV. Ineffective Assistance of Counsel
Althage’s motion claims that counsel was ineffective because he failed to
investigate and challenge “jurisdiction, commerce clause and the elements of the
crime.” He appears to be asserting that counsel should have argued that there was
no proof of an interstate or foreign nexus because: (1) the child pornography for
which he was convicted was not downloaded from the internet, and (2) the court
lacked subject-matter jurisdiction because the computer was assembled from
discarded parts and there was no evidence that the hard drive had traveled across
state lines in its disassembled form. Althage argues that had his counsel conducted
the proper investigation, he would have discovered that the government could not
establish an interstate or foreign commerce nexus and the federal charges would
have been dismissed.
The Sixth Amendment guarantees every defendant the right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). To succeed
on a claim of ineffective assistance a movant must show that (1) counsel’s

7

performance was deficient and (2) that the deficient performance prejudiced his
defense. Id. at 687. “Judicial scrutiny of counsel’s performance must be highly
deferential” and there is a “strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Id. at 689. To demonstrate
prejudice, a petitioner must show that but for counsel’s errors, there is a reasonable
probability that the result would have been different. Id. at 694. “[A] court need
not address both components [of the Strickland test] if the movant makes an
insufficient showing on one of the prongs.” Engelen v. United States, 68 F.3d 238,
241 (8th Cir. 1995). Effective assistance of counsel requires that “counsel has a
duty to make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.” Strickland, 466 U.S. at 691.
To the extent that Althage attempts to raise a free-standing claim that the
court lacked jurisdiction, he is confusing the court’s jurisdiction with what is often
referred to as the “jurisdictional element” – the requirement that the government
prove a nexus to interstate or foreign commerce, which is an element of many
federal crimes, including 18 U.S.C. § 2252A This is not a proper claim that the
court lacks jurisdiction, see e.g., United States v. Ratigan, 351 F.3d 957, 963 (9th
Cir. 2003)(“[T]he jurisdictional element of federal crimes does not present a pure
question of the court’s subject-matter jurisdiction. . . . It is not jurisdictional in the
sense that it affects … a court’s constitutional or statutory power to adjudicate a

8

case,” citing Hugi v. United States, 164 F.3d 378 (7th Cir. 1999)); see also United
States v. White Horse, 316 F.3d 769, 772 (8th Cir. 2003). Counsel could not have
been ineffective for failing to challenge the jurisdiction of the court.
To the extent Althage is arguing that counsel was ineffective for failing to
challenge whether the child pornography was downloaded from the internet, he is
simply wrong on several levels. First, his counsel did present evidence that the
child pornography was not downloaded from the internet – the defense expert
witness testified that his examination of the computer revealed that the materials
for which Althage was charged were placed on the computer from some unknown
external device, and were not downloaded from the internet. Second, the
government did not present evidence or otherwise argue that the material was
downloaded from the internet. The government proved that Althage possessed the
child pornography – it was not required to also prove that he downloaded it from
the internet. The government proved the interstate or foreign commerce nexus by
showing that the hard drives were manufactured outside the state of Missouri.
Whether Althage used the internet to obtain this child pornography was thus not a
disputed issue,3 and counsel cannot be considered ineffective for failing to develop
this argument further.

3

The government did present evidence that the computer history showed internet searches using
terms frequently used to seek out child pornography, and that a bank card associated with
Althage and his email address were used to access a child pornography website, but this was
9

Althage’s main argument about the jurisdictional element is that it could not
be met because the computer had been assembled in Missouri from discarded parts,
and he says his lawyer was ineffective for failing to raise this argument. Althage
was charged by superseding indictment with violating 18 U.S.C. § 2252A(a)(5)(B)
as follows:
Mark Douglas Althage, the defendant herein, did knowingly possess
material that contained an image of child pornography that was
produced using materials that traveled in interstate and foreign
commerce, to wit, [description of Althage’s computer and hard
drives], said computer hard drives having been produced outside
Missouri and therefore having traveled in interstate and foreign
commerce, and said computer and computer hard drives contained
child pornography, including by not limited to, one of the following:
[list of 22 video files]
[Superseding Indictment, p. 2-3]. The government presented evidence that both
hard drives had been produced in Singapore and then imported to the United
States, to states other than Missouri.4 To be found in Missouri, they had to have
traveled in interstate and foreign commerce. The evidence showed that the child
pornography was downloaded to the hard drives. The government thus proved that
the videos he was convicted of possessing were produced using materials that had
traveled in interstate and foreign commerce. The jurisdictional basis for
prosecution of possession of child pornography based upon materials that have
presented as circumstantial evidence going to his knowledge; it was not evidence that the child
pornography for which he was convicted had been obtained from the internet.
4
Both of the hard drives were clearly labeled as being made in Singapore and business records
obtained from the manufacturer showed that they had been shipped to the United States.
Althage’s own computer forensics expert agreed that the hard drives were made in Singapore.
10

been transported in interstate or foreign commerce is well established. See e.g.
United States v. Mugan, 441 F.3d 622 (8th Cir. 2006). There is no doubt that the
jurisdictional or commerce element was met.
Two Eighth Circuit cases have discussed the jurisdictional element in some
detail. In United States v. Inman, 558 F.3d 742, 747 (8th Cir. 2009), the
convictions were affirmed where the government presented undisputed evidence at
trial that the hard drive of the computer containing the images had been made in
the Philippines, shipped somewhere to be assembled into a computer, and then
shipped into Missouri. Id. at 750. In contrast, in United States v. Johnson, 652
F.3d 918 (8th Cir. 2011), the Eighth Circuit reversed a conviction where the jury
instructions were improper and the evidence of the interstate nexus was not
conclusive. To the extent Althage is attempting to rely on these cases, they do not
support his argument that counsel was ineffective for failing to argue that a hard
drive produced in Singapore can no longer meet the jurisdictional element simply
because it might have been taken out of one computer and placed in another one.
The hard drive was still manufactured in Singapore, and counsel cannot be
ineffective for failing to make a baseless argument.
There is nothing in the statutory language or the case law to support
Althage’s novel theories about the jurisdictional element. Counsel cannot be
ineffective for failing to raise a novel theory that has no support in the law. And

11

Althage cannot show that he was prejudiced by counsel’s failure to raise this
theory, because there is no chance that the argument would have been successful.
V. Conclusion
There is no reason for an evidentiary hearing in this case. “A petitioner is
entitled to an evidentiary hearing on a section 2255 motion unless the motion and
the files and records of the case conclusively show that he is entitled to no relief.”
Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008) (internal
quotation marks and citation omitted). However, a hearing is not required when
the claim is inadequate on its face or the record affirmatively refutes the factual
assertions upon which the claim is based. Id. Because I find that Althage’s claims
are both inadequate and affirmatively refuted by the records and files before me, I
will not hold a hearing.
I will not issue of a certificate of appealability. “A certificate of
appealability may issue under paragraph (1) only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(1). A substantial showing is one where issues are debatable among
reasonable jurists, a court could resolve the issues differently, or the issues deserve
further proceedings. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997).
Because no reasonable jurist could find that Althage has made a substantial

12

showing that he was denied any constitutional right, no certificate of appealability
will be issued.
Althage has filed a motion for appointment of counsel, a motion for leave to
file a supplemental pleading, and a “Request for Evidence Rule 201(e) hearing on
Matter of Judicial Notice.” I will deny these motions. Althage’s claims are
meritless as conclusively demonstrated by the records of the case, and they are not
factually or legally complex. Appointment of counsel is not necessary here.
Althage’s motion to supplement and motion for Rule 201 hearing relate to
what he characterizes as “newly discovered evidence.” This argument appears to be
currently in vogue in prisons and posits that the federal government lacks the power
to prosecute crimes that are not committed on federal property. Althage also claims
that the Assistant United States Attorney’s failure to present evidence to the grand
jury on this point was a “fraud on the court.” I will deny these motions, as they are
legally frivolous.
Accordingly,
IT IS HEREBY ORDERED that Movant Mark David Althage’s motion to
vacate, set aside, or correct sentence under 28 U.S.C. § 2255 [#1] is denied.
IT IS FURTHER ORDERED that this court will not issue a certificate of
appealability because Althage has not made a substantial showing of a denial of
any constitutional right.

13

IT IS FURTHER ORDERED that movant’s motion for appointment of
counsel, his motion to supplement, and his request for Rule 201 hearing [##10, 11]
are denied.
A separate judgment in accord with this Memorandum and Order is entered
this same date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 14th day of January, 2016.

14