JACOBS v. UNITED STATES OF AMERICA
Filing
35
OPINION (REDACTED). Signed by Judge Renee Marie Bumb on 5/1/2018. (tf, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BRYAN JACOBS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Civ. Action No. 15-3661 (RMB)
OPINION (REDACTED)
BUMB, United States District Judge
This matter comes before the Court on Petitioner Bryan Jacobs’
(“Jacobs”) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody. (“2255 Mot.,” ECF
No. 1.) Jacobs alleged six grounds for relief from his conviction
and sentence. The Government filed an opposition brief. (Brief of
the United States in Opposition to Bryan Jacobs’ Motion to Vacate,
Set Aside, or Correct his Sentence Under 28 U.S.C. § 2255, “Gov’t
Brief”, ECF No. 19.) Jacobs filed a reply. (Response of Bryan
Jacobs to the United States Brief In Opposition to Bryan Jacobs’
Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C.
§ 2255. (“Reply Brief,” ECF No. 32.) For the reasons discussed
below, the § 2255 motion is denied.
1
I.
BACKGROUND
On
April
24,
2013,
Jacobs
was
charged
in
a
ten-count
Superseding Indictment with the following: (a) five counts of
sexual exploitation of children, in violation of 18 U.S.C. §
2251(a); (b) four counts of receipt of child pornography, in
violation of 18 U.S.C. § 2252A(a)(2)(A), (b)(1); and (c) one count
of possession of child pornography, in violation of 18 U.S.C. §
2252A(a)(5)(B),
(D.N.J.)
(b)(2).
(Superseding
United
States
Indictment,
v.
ECF
Jacobs,
No.
41.)
10cr801(RMB)
After
jury
selection began, Jacobs pled guilty to one count of receipt of
child pornography, in violation of 18 U.S.C. § 2252A(a)(2). Id.
(Minute Entry, ECF Nos. 74, 75; Plea Agreement, ECF No. 76.) In
exchange for his plea, the United States dismissed nine additional
charges
including:
five
counts
of
manufacturing
child
pornography, three counts of receipt of child pornography, and one
count of possession. Id. (Plea Agreement, ECF No. 76.)
Jacobs’ plea came about in the following manner. During trial
preparation in September 2013, the Government requested that the
Court conduct an inquiry under Missouri v. Frye, 566 U.S. 134
(2012), to ensure that Jacobs’ counsel had fully informed him of
the many plea offers. Id. (Motions in Limine, ECF Nos. 53-1 at 3739; 62-1 at 56-58; Minute Entry, ECF No. 72.) Jacobs responded
that he had always been willing and remained willing to accept the
plea
offer
of
October
12,
2011.
2
United
States
v.
Jacobs,
10cr801(RMB) (D.N.J.) (Def. Opp. to Govt’s Motions in Limine, ECF
No. 66 at 8.)
The factual stipulations included in the October 12, 2011
Plea Agreement were included verbatim in the October 1, 2013 Plea
Agreement. (Gov’t Brief Exhibits, October 12, 2011 Plea Agreement,
ECF No. 28-3; October 1, 2013 Plea Agreement, ECF No. 28-4.)
The
Probation
Department
prepared
a
Presentence
Report
(“PSR”) and determined Jacobs had an offense level of 41, and
criminal history category of I, with an advisory guidelines range
of 324 to 405 months imprisonment, capped at a statutory maximum
of 240 months. (Gov’t Brief, ECF No. 19 at 10.) At first, Jacobs
objected to five upward sentencing adjustments, including three he
stipulated to in the Plea Agreement. (Id. at 11.) In his sentencing
memorandum,
however,
Jacobs
withdrew
all
but
two
factual
objections to the PSR and stated he had no legal objections. (Id.)
The sentencing hearing was held on May 28, 2014, and the Court
adopted the PSR and found a Guidelines range of 324 to 405 months,
subject to a 240-month statutory maximum. United States v. Jacobs,
10cr801(RMB) (D.N.J.) (Sentencing Tr., ECF Nos. 91, 92.) Jacobs
requested a downward variance and the Government requested the
statutory maximum sentence of 240 months. (Id.)
This Court considered the factors under U.S.C. § 3553(a) and
declined to grant Jacobs a variance. (Id.) The Court imposed a
Guidelines range sentence of a 240-month period of imprisonment in
3
light of the very serious nature of the offense and immeasurable
emotional trauma imposed on the victims, with a fifteen-year term
of
supervised
release.
United
States
v.
Jacobs,
10cr801(RMB)
(D.N.J.) (Sentencing Tr., ECF No. 92 at 180-198.) After a hearing
on August 7, 2014, the Court also imposed restitution of $75,000.
Id. (Opinion and Order, ECF Nos. 99, 100.)
On appeal, Jacobs argued that his sentence and the amount of
restitution were unreasonable. U.S. v. Jacobs, 609 F. App’x 83, 85
(3d Cir. 2015). Jacobs contended the Court made two procedural
sentencing errors: (1) miscalculating the Guidelines range by
including inapplicable enhancements; and (2) failing to consider
his arguments in favor of a lesser sentence under the § 3553(a)
factors. (Id. at 85-86.) The Third Circuit held that Jacobs waived
his Guidelines calculation challenges to the following: (1) a twolevel
enhancement
under
U.S.S.G.
§
2G2.2(b)(2),
for
images
involving a prepubescent minor or a minor less than 12 years old;
(2)
a
six-level
enhancement
under
§
2G2.2(b)(3)(D),
for
distributing images to a minor to induce the minor to engage in
illegal
activity;
and
(3)
a
four-level
enhancement
under
§
2G2.2(b)(4), for images that portrayed sadistic or masochistic
conduct. Id. at 86. Although Jacobs initially objected to the
enhancements
in
the
PSR,
he
dropped
sentencing memorandum. Id.
The Third Circuit explained:
4
the
objections
in
his
Jacobs suggests that he did not pursue these
objections
because
the
United
States
“threat[ened]” that Jacobs would lose credit
for acceptance of responsibility and that the
United States might withdraw from the plea
agreement. Appellant's Br. at 37. With respect
to the enhancements Jacobs now argues were
incorrect, the United States only made this
“threat” with respect to Jacobs's objection to
the § 2G2.2(b)(3)(D) enhancement. Presentence
Report at 40–41. The United States's “threat”
was that Jacobs had stipulated that this
enhancement would apply in the plea agreement;
objecting
to
the
enhancement
could
be
construed as breaching the plea agreement,
allowing the United States to withdraw from
it,
or
as
Jacobs's
failure
to
accept
responsibility for the offense. Id. Given that
the United States's position is supported by
the plea agreement, App. at 97, we see no basis
to excuse Jacobs's waiver.
Jacobs, 609 F. App’x at 86, n. 8.
The Third Circuit also held that the District Court, in
evaluating the § 3553(a) factors, meaningfully considered the
arguments Jacobs raised, and Jacobs merely disagreed with the
substantive reasonableness of the sentence. Id. Jacobs’ sentence
was
substantively
reasonable
because
he
accumulated
a
large
library of child pornography, defrauded and extorted minors into
creating child pornography of themselves, and his conduct had a
serious impact on his victims. Id. at 86-87.
Jacobs presented the following grounds for relief, quoted
verbatim, in his § 2255 motion:
•
Ground One: Court violated defendant’s 6th Amendment
right to effective assistance of counsel;
5
•
Ground Two:
subparts];
Ineffective Assistance of Counsel [eight
•
Actual Innocence of Count of Conviction;
•
Ground Four:
voluntarily;
Plea
•
Ground Five:
Prosecution breached plea agreement;
•
II.
Ground Three:
Ground Six:
Court improperly applied enhancement to
guidelines that were not based on relevant conduct
not
entered
into
knowingly
nor
STANDARD OF REVIEW
A prisoner in custody pursuant to a federal court judgment
and conviction may move the court that imposed the sentence to
vacate, set aside or correct the sentence, if the sentence was
imposed in violation of the Constitution or laws of the United
States; or if the court was without jurisdiction to impose such
sentence;
or
if
the
sentence
was
in
excess
of
the
maximum
authorized by law, or is otherwise subject to collateral attack.
28
U.S.C.
§
2255(a).
In
considering
a
motion
to
vacate
a
defendant's sentence, “the court must accept the truth of the
movant's factual allegations unless they are clearly frivolous on
the basis of the existing record.” U.S. v. Tolliver, 800 F.3d 138
(3d Cir. 2015) (quoting United States v. Booth, 432 F.3d 542, 545
(3d Cir. 2005) (quoting Government of the Virgin Islands v. Forte,
865 F.2d 59, 62 (3d Cir. 1989)). “The district court is required
to hold an evidentiary hearing ‘unless the motion and files and
records of the case show conclusively that the movant is not
6
entitled to relief.’” U.S. v. Lilly, 536 F.3d 190, 195 (3d Cir.
2005) (quoting Booth, 432 F.3d at 545.) For the reasons discussed
below, the records of the case conclusively show that Jacobs is
not entitled to relief, and the Court will not hold an evidentiary
hearing in this matter.
Jacobs
raises
constitutional
claims
based
on
ineffective
assistance of counsel. An ineffective assistance of counsel claim
has two components:
First, the defendant must show that counsel’s
performance was deficient.
This requires
showing that counsel made errors so serious
that counsel was not functioning “as counsel”
guaranteed
the
defendant
by
the
Sixth
Amendment.
Second, the defendant must show
that the deficient performance prejudiced the
defense. This requires showing that counsel’s
errors were so serious as to deprive the
defendant of a fair trial, a trial whose
result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Furthermore, the first prong of the test “requires a defendant
to show ‘that counsel’s representation fell below an objective
standard of reasonableness.’" Lafler v. Cooper, 132 S.Ct. 1376,
1384 (2012) (quoting Hill v. Lockhart, 474 U.S. 52, 57 (1985)).
There is “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.’” Strickland, 466 U.S. at 689 (quoting Michel v.
7
Louisiana,
350
U.S.
91,
101
(1955)).
“The
Sixth
Amendment
guarantees reasonable competence, not perfect advocacy judged with
the benefit of hindsight.” Yarborough v. Gentry, 540 U.S. 1, 8
(2003) (citing Bell v. Cone, 535 U.S. 685, 702 (2002); Kimmelman
v. Morrison, 477 U.S. 365, 382 (1986); Strickland, 466 U.S. at
689; United States v. Cronic, 466 U.S. 648, 656 (1984)).
The second prong of the Strickland test, prejudice, requires
a defendant to “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. The “ultimate focus” of the prejudice inquiry is on the
fundamental fairness of the proceeding. Id. at 696. “A reasonable
probability is one ‘sufficient to undermine confidence in the
outcome.’” Collins v. Sec. of Pennsylvania Dept. of Corr., 742
F.3d 528, 547 (3d Cir. 2014) (quoting Strickland, 466 U.S. at 694).
“Prejudice is viewed in light of the totality of the evidence at
trial….” Id. (citing Rolan v. Vaugh, 445 F.3d 671, 682 (3d. Cir.
2006)). A court need not address both components of the ineffective
assistance inquiry. Strickland, 466 U.S. at 697. “If it is easier
to dispose of an ineffectiveness claim on the ground of lack of
sufficient
prejudice
.
.
.
that
Strickland, 466 U.S. at 697.
III. DISCUSSION
A. Ground One
8
course
should
be
followed.”
For his first ground for relief, Jacobs complains that on
September 18, 2013, the court denied his request for appointment
of new trial counsel and forced him to proceed with ineffective
counsel after he declined the alternative of representing himself.
(2255 Mot., ECF No. 1 at 4.) The Government opposes relief, noting
that twelve days before trial the court held a hearing on Jacobs’
request for new counsel, and Attorney Levin, whom Jacobs sought to
dismiss, was Jacobs’ fourth attorney. (Gov’t Brief, ECF No. 19 at
18-20.)
In reply, Jacobs asserts his trial counsel, Mr. Levin, did
not have a sound trial strategy because: (1) he did not follow up
on IP address data to show Jacobs’ involvement in child pornography
did not begin until November 29, 2008; (2) he did not pursue
certain dates when Jacobs could not possibly have logged on to a
computer, according to the IP address data; (3) he did not subpoena
the witness known as “GreekPatch43” to refute the distribution
sentence enhancement; (4) he did not hire a “child porn expert” to
determine if the images were child pornography; (5) an email from
the prosecution to an investigator said not to worry because Mr.
Levin said he would get the defendant to take a plea. (Reply Brief,
ECF No. 32 at 4-5.)
When a court is faced with a request for appointment of new
counsel
on
the
eve
of
trial,
it
must
determine
whether
the
defendant’s reasons for the request constitute good cause to
9
justify continuance of the trial. United States v. Welty, 674 F.2d
187 (3d Cir. 1982). Examples of good cause to delay trial for
substitution of defense counsel include a conflict of interest, a
complete breakdown in communication, or an irreconcilable conflict
between attorney and client. Id. at 188 (citing McKee v. Harris,
649 F.2d 927, 931 (2d Cir. 1981); United States v. Calabro, 467
F.2d 973, 986 (2d Cir. 1972), cert. denied, 410 U.S. 926 (1973));
U.S. v. Goldberg, 67 F.3d 1092, 1098 (3d Cir. 1995)(same).
There
are
countervailing
governmental
interests
that
are
relevant factors to the “good cause” analysis. Goldberg, 67 F.3d
at 1098. These interests include the efficient administration of
criminal justice; the accused’s opportunity to prepare a defense;
the rights of other defendants awaiting trial who may be prejudiced
by a continuance; and whether the request is made in bad faith,
for purposes of delay, or to subvert judicial proceedings. Id.
(citations omitted). “If the district court denies the request to
substitute counsel and the defendant decides to proceed with
unwanted counsel” there is no “Sixth Amendment violation unless
the
district
court's
‘good
cause’
determination
was
clearly
erroneous or the district court made no inquiry into the reason
for the defendant's request to substitute counsel.” Id.
If the court denies a continuance for the defendant to obtain
new counsel, the defendant must choose to continue with existing
counsel or represent himself. Welty, 674 F.2d at 187. This raises
10
the possibility of waiving the Sixth Amendment right to counsel.
Welty, 674 F.2d at 187. Thus, the court must ensure that the
defendant’s decision to represent himself is intelligently and
competently waived. Id. (citing Johnson v. Zerbst, 304 U.S. 458,
465 (1938)).
Following a hearing, the Court found Jacobs did not show good
cause to substitute counsel on the eve of trial. United States v.
Jacobs, 10cr801(RMB) (D.N.J.) (Hearing Tr., ECF No. 78.) Most of
Jacobs’ complaints about counsel were disagreements on strategy,
which are issues for counsel to decide. (Id. at 19.) Jacobs also
complained that counsel had an amicable relationship with the
prosecutors
and
discussing
issues
civility
and
did
not
with
seek
the
communication
permission
prosecution,
between
from
but
counsel
Jacobs
the
is
Court
before
noted
encouraged,
especially when discussions might lead to a plea offer. (Id. at
19-20.)
Mr. Levin said he would be ready for trial, and his work on
the case up to that point suggested this was true. (Id. at 20.)
Jacobs also complained about lack of communication, but Jacobs had
recently refused to meet with Levin. (Id.) Finally, the case had
been vigorously litigated over a course of years. (Id. at 61.) The
defense hired an expert who had engaged in forensic analysis for
years. (Id.) Another delay would prejudice the administration of
justice. (Id.)
11
In sum, Jacobs stated that he did not wish to proceed with
Mr.
Levin
as
counsel.
United
States
v.
Jacobs,
10cr801(RMB)
(D.N.J.) (Hearing Tr., ECF No. 78 at 4.) However, Jacobs also
refused to voluntarily waive his right to counsel, stating instead
that the court was forcing him to do so. (Id. at 22-64.) Therefore,
the Court determined that Mr. Levin would proceed as trial counsel.
The good cause analysis was thorough and met the requirements
described in Welty and Goldberg. Ground One of the motion is
denied.
B. Ground Two
In Ground Two of his motion, Jacobs alleged eight instances
of
ineffective
assistance
of
counsel:
(1)
failure
to
inform
defendant that he could have the court reconsider the September
18, 2013 motion; (2) counsel misinformed defendant that the plea
offer of October 1, 2013 is much better than the “C” plea that was
also available; (3) counsel failed to review the elements of the
crime or compare the images to the Dost factors before telling
defendant
to
take
the
plea;
(4)
counsel
erroneously
advised
defendant that he could argue against the distribution stipulation
in the Plea Agreement a later time; (5) counsel failed to inform
defendant that the court could add sentence enhancements that were
not stipulated in the Plea Agreement; (6) counsel failed to inform
defendant, after receipt of the PSR, that defendant had the right
to withdraw the plea before sentencing; (7) counsel misunderstood
12
the prosecution’s threat regarding defendant’s objections to the
PSR and erroneously withdrew the objections due to the threat; (8)
at sentencing, counsel failed to argue against enhancements that
were not based on relevant conduct. (2255 Mot., ECF No. 1 at 56.)
1. Failure to inform Jacobs that he could seek
reconsideration of the September 18, 2013 motion for
appointment of new counsel
Jacobs asserts his counsel was ineffective by not advising
him that he could seek reconsideration of the court’s denial of
his September 18, 2013 request for appointment of new counsel.
(2255 Mot., ECF No. 1 at 5.) The Government contends Jacobs cannot
show Strickland prejudice because a motion for reconsideration was
unlikely to succeed, and defense counsel’s time was better spent
preparing for trial. (Gov’t Brief, ECF No. 19 at 31.) In reply,
Jacobs asserts his counsel should have told him of his right to
request reconsideration after his plea was accepted on October 1,
2013, because it was no longer a factor in the court’s decision
that it was the “eve of trial.” (Reply Brief, ECF No. 32 at 9.)
Jacobs has not shown that prejudice resulted from counsel’s
failure to advise him that he could seek reconsideration of the
denial of his motion for appointment of new counsel. The Court
carefully considered Jacobs’ reasons for his request and did not
find good cause to appoint a fifth attorney to represent Jacobs.
A motion for reconsideration would have been denied.
13
Moreover, if Jacobs had new reasons to replace his counsel
after he entered into the Plea Agreement, he could have brought a
motion without asking for reconsideration of the earlier decision.
The Court denies this claim of ineffective assistance of counsel.
2.
Ineffective assistance by misinforming Jacobs that
October 1, 2013 plea offer was better than the “C”
plea
Jacobs contends his counsel was ineffective by telling him
that the October 1, 2013 plea offer was better than the June 6,
2013 Rule 11(c)(1)(C) plea offer. (2255 Mot., ECF No. 1 at 5.) In
response,
the
Government
asserts
counsel
was
not
ineffective
because the October 1, 2013 Plea Agreement that Jacobs accepted
was the most favorable plea that was offered. (Gov’t Brief, ECF
No. 19 at 24.) The Government notes that the court conducted
hearings pursuant to Missouri v. Frye, 1 for each plea offer made.
(Id. at 24-25.) With the exception of the October 11, 2011 plea
offer, which was in all material respects identical to the October
1, 2013 agreement that Jacobs accepted, all other plea offers
required Jacobs to plead guilty to one or more counts of sexual
exploitation of children in violation of 18 U.S.C. § 2251(a), which
carried a 15-year mandatory minimum and 30-year statutory maximum
sentence of imprisonment. (Id. at 25.)
1
In Missouri v. Frye, the Supreme Court held that “as a general
rule, defense counsel has the duty to communicate formal offers
from the prosecution to accept a plea on terms and conditions that
may be favorable to the accused.” 566 U.S. 134, 145 (2012).
14
The October 1, 2013 plea offer was the only offer that
permitted Jacobs to plead guilty to the lesser offense of receipt
of child pornography in violation of 18 U.S.C. § 2252(A)(a)(2),
which carried a 5-year mandatory minimum and a 20-year statutory
maximum term of imprisonment. (Gov’t Brief, ECF No. 19 at 25.)
The Government also maintains that Jacobs cannot establish
prejudice because a trial would almost certainly have resulted in
conviction on all of the offenses in the Superseding Indictment
because the Government had evidence of hundreds of defendant’s
chats with minors, and evidence of his possession of sexually
explicit
photographs
with
19
identified
minor
victims.
(Id.)
Jacobs was provided voluminous discovery, and the defense retained
a computer forensic expert prior to his guilty plea. (Id.) If
Jacobs had gone to trial on the Superseding Indictment, he would
have faced up to 240 years imprisonment, the sum of the statutory
maximum for each of the counts. (Id. at 26.)
Jacobs replied that the June 6, 2013 plea offer was more
favorable to him because it carried a lower Guidelines range than
the Guidelines range that resulted from his guilty plea. (Reply
Brief, ECF No. 32 at 9.) Jacobs admits that the June 6, 2013 offer
did not permit him to seek a sentence of less than 20 years, but
the
Court
had
discretion
to
sentence
him
within
the
lower
Guidelines range for an offense level of 35. (Id.) In contrast,
Jacobs argues that the October 1, 2013 plea offer he accepted
15
carried an offense level of 41, and a statutory maximum of 20 years
imprisonment. (Reply Brief, ECF No. 32 at 9.)
Jacobs fails to acknowledge that, although he was sentenced
to
the
statutory
maximum
of
20
years
for
receipt
of
child
pornography, the October 1, 2013 plea offer was the only offer
that permitted him to argue for a much lesser sentence. The
Sentencing Guidelines were advisory when Jacobs pled guilty, and
the Court had discretion to sentence Jacobs under the Guidelines
range under either plea offer, but he was not permitted to seek
less than 20 years under the June 6, 2013 offer. See Gall v. United
States,
552
U.S.
38,
46
(2007)
(the
Supreme
Court
made
the
Sentencing Guidelines advisory in United States v. Booker, 543
U.S. 220 (2005), but an appellate court may take the degree of
variance
from
the
Guidelines
into
account
in
assessing
reasonableness of the sentence, under an abuse of discretion
standard.)
It was more favorable for Jacobs to be permitted to
argue for less than a 20-year term of imprisonment. Therefore,
counsel was not ineffective, and the Court denies this ground for
relief.
3.
In
Counsel failed to review the elements of the crime
or to compare the images to the Dost factors before
recommending acceptance of the plea offer
support
of
this
claim,
Jacobs
asserts
that
when
he
questioned his counsel whether the images relevant to Count 6 of
the Superseding Indictment were “child porn,” counsel responded
16
only that they probably were. (2255 Mot., ECF No. 1 at 5.) The
Government argues that even if counsel did not discuss the elements
of the crime or the Dost factors with Jacobs before he accepted
the plea offer, there is no prejudice because the elements were
described in the plea memorandum, and the plea colloquy indicated
Jacobs was aware of the factual basis establishing the elements of
the crime. (Gov’t Brief, ECF No. 19 at 32-33.) Further, the
Government asserts there was no prejudice because the images Jacobs
received on November 30, 2008, Government Exhibits 211 and 212,
meet the definition of “lascivious display of the genitals or pubic
area” in light of the Dost factors. (Id. at 47.)
The relevant facts are as follows. Jacobs signed the Plea
Agreement on October 1, 2013. United States v. Jacobs, 10cr801(RMB)
(D.N.J.) (Plea Agreement, ECF No. 76.)) The Plea Agreement contains
stipulations that: (1) Jacobs received images that constitute
child pornography, as defined in Title 18, United States Code,
Section 2256(8); (2) the offense involved distribution to a minor
that
was
intended
to
persuade,
induce,
entice,
coerce,
or
facilitate the travel of, the minor to engage in prohibited sexual
conduct; (3) the offense involved a pattern of activity involving
the sexual abuse or exploitation of a minor; (4) the offense
involved a pattern of activity involving the sexual abuse or an
interactive computer service for the possession, transmission,
receipt, or distribution of the material, or for accessing with
17
intent to view the material; and (5) the offense involved at least
150
images,
but
fewer
than
300.
United
States
v.
Jacobs,
10cr801(RMB) (D.N.J.) (Plea Agreement, ECF No. 76 at 8.)
Jacobs also signed an “Application for Permission to Enter
Plea of Guilty.” United States v. Jacobs, 10cr801(RMB) (D.N.J.)
(Application, ECF No. 77.) In the application, Jacobs agreed that
he was satisfied that he had enough time to discuss the plea with
his lawyer; he read and discussed the Indictment with his lawyer
and
understood
the
charge
against
him
for
receipt
of
child
pornography; he told his lawyer all the facts about the charges in
the Indictment and was satisfied that his lawyer advised him on
the nature of each charge and all the possible defenses; he
understood if he pled guilty that the judge would ask him what he
did, and he would have to acknowledge his guilt as charged by
setting forth his actions so that the judge is satisfied that he
is indeed guilty; and any statements he made when pleading guilty
under oath, if untrue, could be the basis of a perjury prosecution
against him. (Id.)
During the plea colloquy, the Court emphatically advised
Jacobs to tell the Court if there was something he did not
understand, and that he had a right to consult with his attorney
at any time during the plea colloquy. Id. (Plea Colloquy, ECF No.
94 at 3.) Jacobs agreed that he read the charges in the Superseding
Indictment and had time to discuss the Indictment, and his case in
18
general,
with
counsel.
United
States
v.
Jacobs,
10cr801(RMB)
(D.N.J.) (Plea Colloquy, ECF No. 94 at 4.) He agreed that he was
satisfied with Mr. Levin’s representation and advice. (Id. at 5.)
He went over the Plea Agreement with Mr. Levin and had the
opportunity to ask any questions he had. (Id. at 6.) He agreed
that he accurately answered the questions on the Application for
Permission to Enter a Guilty Plea. (Id. at 7-8.) He agreed to plead
guilty to Count 6 of the Superseding Indictment, that he received
child pornography on November 30, 2008, in violation of 18 U.S.C.
§ 2252A(a)(2). (Id. at 14.)
Jacobs
also
stated
that
he
knowingly
received
files
containing images of a minor engaged in sexually explicit conduct
on or about November 30, 2008. (Id. at 24.) He acknowledged that
those files contained images of child pornography as defined in 18
U. S.C. § 2256(8). (Id. at 24-25.) Jacobs identified the minor in
the images by the name he knew him by, and said that he knew the
images depicted a real person under the age of eighteen engaged in
sexually
explicit
conduct.
(Id.
at
25.)
He
admitted
that
he
downloaded the images from the Internet onto a computer media that
he owned, controlled and possessed. (Id.)
The Government described Exhibits 211 and 212: 2
2
It appears the Government concedes Exhibit 210 does not depict
“lascivious exhibition of the genitals or pubic area” under the
Dost factors.
19
(Gov’t Brief, ECF No. 19 at 47.) The Government concludes the
images of CV1 that Jacobs received on November 30, 2008 were child
pornography. (Id. at 47, 49.)
Jacobs
replied
that
his
counsel
did
not
know
whether
Government Exhibits 211 and 212 were pornography or not, and he
could not have adequately advised Jacobs on the elements of the
crime if he was unaware of the standard. (Reply Brief, ECF No. 32
at 10.) Jacobs further contends his counsel did not know the
contents
of
the
images;
therefore,
he
could
not
know
which
stipulations or sentencing enhancements might be relevant. (Id. at
10-11.) Finally, in his actual innocence claim, Jacobs contests
the Government’s description of the images in Government Exhibits
211 and 212. (Id. at 16-17.)
First, the Court addresses Jacobs’ claim that counsel failed
to inform him of the elements of the crime to which he pled guilty.
Jacobs pled guilty to receipt of child pornography in violation of
20
18 U.S.C. § 2252A(a)(2) (eff. December 7, 2012). United States v.
Jacobs,
10cr801(RMB)
(D.N.J.)
(Plea
Agreement,
ECF
No.
76.)
Pursuant to 18 U.S.C. § 2256(8) (eff. Oct. 13, 2008):
“child
pornography”
means
any
visual
depiction, including any photograph, film,
video, picture, or computer or computergenerated image or picture, whether made or
produced by electronic, mechanical, or other
means, of sexually explicit conduct, where—
(A) the production of such visual
depiction involves the use of a minor
engaging in sexually explicit conduct;
(B) such visual depiction is a digital
image, computer image, or computergenerated
image
that
is,
or
is
indistinguishable from, that of a minor
engaging in sexually explicit conduct; or
(C) such visual depiction has been
created, adapted, or modified to appear
that an identifiable minor is engaging in
sexually explicit conduct.
Sexually
explicit
conduct
is
defined
in
18
U.S.C.
§
2256(2)(A)(v)(eff. Oct. 13, 2008) as “lascivious exhibition of the
genitals or pubic area of any person.”
The Third Circuit Court of Appeals adopted a six-factor test,
known
as
the
“Dost
factors,”
to
aid
the
trier
of
fact
in
determining the meaning of “lascivious exhibition of the genitals
or pubic area.” 3 The six factors are:
3
United States v. Villard, 885 F.2d 117, 122 (3d Cir. 1989)
(quoting United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal.
1986), aff’d sub nom, United States v. Weigand, 812 F.2d 1239 (9th
Cir.), cert. denied, 484 U.S. 856 (1987)).
21
1) whether the focal point of the visual
depiction is on the child's genitalia or pubic
area;
2) whether the setting of the visual depiction
is sexually suggestive, i.e., in a place or
pose
generally
associated
with
sexual
activity;
3) whether the child is depicted in an
unnatural pose, or in inappropriate attire,
considering the age of the child;
4) whether the child is fully or partially
clothed, or nude;
5) whether the visual depiction suggests
sexual coyness or a willingness to engage in
sexual activity;
6) whether the visual depiction is intended or
designed to elicit a sexual response in the
viewer.
Villard, 885 F.2d at 122.
Upon
review
of
Government
Exhibits
211
and
212,
the
Government’s descriptions of the images are accurate and the images
constitute lascivious exhibition of the genitals or pubic area
under
the
prejudice
Dost
from
factors.
counsel’s
Therefore,
alleged
Jacobs
failure
to
cannot
establish
view
Government
Exhibits 211 and 212 in light of the Dost factors before advising
Jacobs to accept the guilty plea. If Jacobs had gone to trial, not
only was he likely to be convicted on Count 6, but he would have
been tried on eight additional counts, with potentially hundreds
of pornographic images retrieved from his computer admitted into
evidence.
22
“[I]n order to satisfy the ‘prejudice’ requirement” of the
Strickland test in the context of ineffective assistance in the
plea process, “the defendant must show that there is a reasonable
probability that, but for counsel's errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985). Here, where the written plea
agreement, the Application for Permission to Enter Plea of Guilty,
and the plea colloquy cured any deficiency in counsel’s advice
regarding
the
elements
of
the
crime
and
the
factual
basis
satisfying those elements, there is no reasonable probability that
Jacobs would have insisted on going to trial where his sentencing
exposure was a 240 years on all nine counts, in contrast to the 5year mandatory minimum and 20-year mandatory maximum he faced under
the guilty plea to Count 6. This claim of ineffective assistance
of counsel in the plea process is denied.
4.
Counsel was ineffective
argue
against
the
stipulation in the Plea
and then he withdrew
stipulation without his
by telling Jacobs he could
ambiguous
distribution
Agreement at a later time
Jacobs’ objection to the
consent
Jacobs contends his counsel erroneously informed him that he
could challenge the distribution stipulation in the Plea Agreement
at a later time. (2255 Mot., ECF No. 1 at 5.) The Government
responds to this claim by arguing that even if this allegation
were
true,
there
was
no
prejudice
because
the
distribution
stipulation was factually correct. (Gov’t Brief, ECF No. 19 at
23
35.) The Government’s evidence indicated that Jacobs used child
pornography with the intent to induce and coerce minors to produce
additional child pornography. (Gov’t Brief, ECF No. 19 at 35,
citing PSR at ¶¶11-14 and pp. 40-41; A256, 277, 287-92, 312-13;
SA3-6.)
The Government also argues that Jacobs was not prejudiced by
entering into a plea agreement that contained the distribution
stipulation, which resulted in a sentence enhancement. (Id. at 3536.) Jacobs was aware the court could sentence him to the 20-year
statutory maximum, and without the plea, he faced a maximum of 240
years if convicted on all counts in the Superseding Indictment.
(Id.)
Jacobs replied that the distribution stipulation was untrue
because during the November 30, 2008 “chat” between himself and a
minor,
Jacobs
did
not
send
any
pictures
or
post
any
child
pornography on any website, Russian or otherwise. (Reply Brief,
ECF No. 32 at 11.)
The distribution stipulations in the Plea Agreement provide:
b.
Bryan
A.
Jacobs’
offense
involved
distribution to a minor that was intended to
persuade,
induce,
entice,
coerce,
or
facilitate the travel of, the minor to engage
in prohibited sexual conduct.
d.
Bryan A. Jacobs’ offense involved the use
of a computer or an interactive computer
service for the possession, transmission,
receipt or distribution of the material, or
24
for accessing
material.
with
intent
to
review
the
United States v. Jacobs, 10cr801(RMB) (D.N.J.) (Plea Agreement,
ECF No. 76.)
Paragraphs 11-14 of the PSR describe the background of the
offense relevant to the distribution stipulation:
25
dren
engaged in sexually explicit c
ct.
(Gov’t Brief, Exhibit, PSR, ECF No. 28-1.)
The Court concludes that the distribution stipulation was not
ambiguous and it was supported by the factual record. Even if
counsel
erroneously
told
Jacobs
he
could
argue
against
the
stipulation he made in the Plea Agreement later, there was no
prejudice because his argument would have failed. The Court denies
this ineffective assistance of counsel claim.
5.
Ineffective assistance claims related to sentence
enhancements that were not stipulated to in the Plea
Agreement; and Ground Five alleging the prosecution
breached the Plea Agreement
In response to these claims, the Government assumes Jacobs is
referring to the sentence adjustments for prepubescent minors,
U.S.S.G.
§
2G2.2(b)(2),
and
sadistic
or
masochistic
images,
U.S.S.G. § 2G2.2(b)(4), to which Jacobs did not stipulate. (Gov’t
Brief, ECF No. 19 at 37.) The Government contends these claims are
contradicted by the Plea Agreement and the plea colloquy, and
Jacobs cannot establish prejudice because he agreed that the court
was not bound by the stipulations and was empowered to “make
independent factual findings.” (Id. at 37-38.)
In reply, Jacobs asserts that he accepted the plea offer based
solely on the stipulations in the Plea Agreement, and he would not
have taken the plea if it had more stipulations. (Reply Brief, ECF
No. 32 at 13.) He contends that when the PSR included facts in
support
of
additional
sentence
enhancements
not
in
the
Plea
Agreement, his counsel failed to inform him that he could withdraw
his plea prior to sentencing. (Id. at 14.) Jacobs argues the
Government did not uphold its end of the bargain because it argued
for additional sentence enhancements not in the Plea Agreement,
and but for counsel’s error in failing to inform him he could
27
withdraw the plea, he would have gone to trial. (Reply Brief, ECF
No. 32 at 14.)
The Plea Agreement and Application for Permission To Enter
Guilty Plea indicate Jacobs was informed of and agreed: (1) that
the sentencing judge may impose any reasonable sentence up to and
including the statutory maximum term of imprisonment and the
maximum statutory fine (Plea Agreement, ECF No. 76 at 2); (2) the
prosecution—
reserve[d] its right to take any position with
respect to the appropriate sentence to be
imposed on Bryan A. Jacobs by the sentencing
judge, to correct any misstatements relating
to the sentencing proceedings, and to provide
the sentencing judge and the United States
Probation Office all law and information
relevant
to
sentencing,
favorable
or
otherwise. In addition, this Office may inform
the sentencing judge and the United States
Probation Office of (1) this agreement; and
(2) the full nature and extent of Bryan A.
Jacobs’ activities and relevant conduct with
respect to this case
(Id. at 4); (3) the agreement to stipulate —
does not bind the sentencing judge, who may
make independent factual findings and may
reject any or all of the stipulations entered
into by the parties. To the extent that
parties do not stipulate to a particular fact
or legal conclusion, each reserves the right
to argue the existence of and the effect of
any such fact or conclusion upon the sentence…
(Id.); and (4)
I understand that the Court will not be able
to determine the sentence for my case until
after
the
Presentence
Report
has
been
28
completed and both I and the Government have
had an opportunity to read the report and
challenge any facts reported by the probation
officer.
(Application for Permission to Enter Guilty Plea, ECF No. 77, ¶29.)
The plea colloquy further establishes that (1) Jacobs said he
had the opportunity to ask his counsel any questions he had about
the Plea Agreement; (2) Jacobs understood that the stipulations in
the Plea Agreement did not bind the sentencing court; (3) Jacobs
understood the sentencing court would be obligated to calculate
the Guidelines sentencing range, consider any possible departures,
and the sentencing factors under 18 U.S.C. § 3553(a); (4) Jacobs
understood the Probation Office would prepare a presentence report
and come up with an adjusted offense level that would take into
account whether there were any adjustments to the offense level;
(5) that it was impossible for his counsel or the court to know
precisely what the Guidelines range would be before the presentence
report was completed; and (6) the court might have to hold a
hearing
to
determine
facts
that
would
affect
the
advisory
Guidelines range. United States v. Jacobs, 10cr801(RMB) (D.N.J.)
(Plea Colloquy, ECF No. 94.)
Thus,
the
records
of
the
plea
process
refute
Jacobs’
assertions that he accepted the plea offer based solely on the
stipulations in the Plea Agreement, and that he would not have
taken the plea otherwise. Jacobs was fully informed during the
29
plea colloquy that the Probation Office could present facts in
support of additional sentence enhancements, and he was informed
by the terms of the Plea Agreement that the Government could
provide the Probation Office with such facts and make arguments in
support of additional sentence enhancements, just as Jacobs could
argue for a lower sentence. Therefore, Jacobs was not prejudiced
by his counsel’s alleged failure to inform him there could be
additional enhancements in the PSR and at sentencing.
The Court denies the ineffective assistance of counsel claims
related to the sentence enhancements that were not stipulated to
in the Plea Agreement. The Court also denies Ground Five, where
Jacobs alleges that the prosecution breached the Plea Agreement by
arguing the existence of facts and legal conclusions that were not
stipulated to by the parties in the Plea Agreement. The Plea
Agreement expressly reserved the right of both parties to argue
the
existence
of
facts
and
legal
conclusions
that
were
not
stipulated by the parties.
C.
Ground Three
For his third ground for relief, Jacobs claims he is actually
innocent because Count 6, to which he pled guilty, was based on
his receipt of three images that were First Amendment expressions
and not pornography. (2255 Mot, ECF No. 1 at 7.) Referring to
Government Exhibits 210, 211 and 212, Jacobs asserts that under
the Dost factors: (1) the focal point of the images is not on the
30
genital or pubic area; (2) the setting is not sexually suggestive;
(3) CV1 is standing in a natural pose; (4) CV1 is partially clothed
in a bathing suit; (5) the visual depictions do not suggest sexual
coyness nor willingness to engage in sexual activity; and (6) the
visual depictions are not intended to elicit a sexual response in
the viewer. (Id.)
The Government maintains that the evidence supporting Count
6 refutes Jacobs’ actual innocence claim. (Gov’t Brief, ECF No. 19
at 44.) The Government refers to a November 30, 2008 chat log
The Government also points to three photographs of CV1, marked
for trial as Exhibits 210-212, which were taken by CV1 at Jacobs’
direction and sent to him during the November 30, 2008 chat,
described in Section III(B)(4) above. (Id. at 47.)
“The Supreme Court has yet to decide whether a prisoner can
obtain habeas relief based on a freestanding claim of actual
innocence, having left the matter open time and again.” Bruce v.
Warden Lewisburg USP, 868 F.3d 170, 183 (3d Cir. 2017) (citations
omitted). Assuming there is a freestanding actual innocence habeas
claim, such
a
claim
would
require
31
“more
convincing
proof
of
innocence” than that needed to meet the gateway standard for
excusing a procedural default). Bruce, 868 F.3d at 184.
The gateway standard of actual innocence is that “a petitioner
must ‘demonstrate that, in light of all the evidence, it is more
likely than not that no reasonable juror would have convicted
him.’” Id. (quoting Bousley v. United States, 523 U.S. 614, 623
(1998) (internal quotation marks omitted)). “The Government ‘is
not limited to the existing record to rebut any showing that [the]
petitioner may make.’” Id. (quoting Bousley, 523 U.S. at 623-24.))
Upon the Court’s review of the chat log and images related to
Count 6, Jacobs failed to prove that in light of all the evidence
it is more likely than not that no reasonable juror would have
convicted him on Count 6. Jacobs’ actual innocence claim is denied.
D.
Ground Four
In Ground Four, Jacobs alleges his plea was not entered into
knowingly and voluntarily. (2255 Mot., ECF No. 1 at 8.) Ground
Four is based on the combination of errors alleged by Jacobs in
his other grounds for relief. (Id.) The Court denies Ground Four
because the Plea Agreement, Application for Permission to Enter
Guilty Plea, and plea colloquy indicate Jacobs’ plea was knowing
and voluntary. The Court has addressed Jacobs’ individual claims
above.
32
E.
Ground Six
For his sixth ground for relief, Jacobs alleges the court
improperly applied enhancements to Guidelines that were not based
on relevant conduct. (2255 Mot., ECF No. 1 at 11.) In Ground Two,
Jacobs also contends his counsel was ineffective for failing to
object to the sentence enhancements in the PSR. (Id. at 6.) Jacobs
refers to enhancements under U.S.S.G. §§ 2G2.2(b)(2), (3), (4);
and 2G2.2(b)(3)(D). (2255 Mot., ECF No. 1 at 11.) He asserts that
CV1 was over the age of 13 during all alleged conduct; no other
minors’ images were used in the commission of the offense of
conviction; the images do not portray sadistic or masochistic
conduct; there is no penetration in any of the images of CV1 and
no such images were used in the offense of conviction; and the
alleged distribution did not involve CV1 and was not part of the
commission of the offense of conviction. (Id.)
The Government asserts that Jacobs misunderstands the scope
of “relevant conduct” the sentencing court may consider under
U.S.S.G. § 1B1.3; relevant conduct is not limited to the specific
offense of conviction. (Gov’t Brief, ECF No. 19 at 54-55.) Thus,
the Government contends it was proper for the court to consider
evidence that would have been admitted at trial relating to the
other counts in the Superseding Indictment to which Jacobs did not
plead guilty. (Id. at 55.)
33
Under U.S.S.G. § 1B1.3, “relevant conduct” refers to the
factors that determine the Guidelines range for the offense conduct
and adjustments. Relevant conduct includes “all acts and omissions
committed ... that occurred during the commission of the offense
of conviction, [or] in preparation for that offense ...” or “that
were part of the same course of conduct or common scheme or plan
as the offense of conviction.” United States v. Sullivan, 414 F.
App'x 477, 480 (3d Cir. 2011).
A comment to § 1B1.3 explains that “[w]hether conduct is part
of the “same course of conduct” depends on “whether offenses are
sufficiently connected or related to each other” as determined by
such factors as the “degree of similarity of the offenses, the
regularity (repetitions) of the offenses, and the time interval
between the offenses.” Sullivan, 414 F. App’x at 480 (quoting §
1B1.3 cmt. n. 9(B)). “[E]ven if one factor is absent, relevant
conduct may be found where at least one other factor is strong.”
Id. (quoting United States v. Kulick, 629 F.3d 165, 171 (3d Cir.
2010) (quoting United States v. Wilson, 106 F.3d 1140, 1143 (3d
Cir. 1997)).
At the sentencing hearing, the Court heard arguments from the
parties
concerning
the
final
PSR.
United
States
v.
Jacobs,
10cr801(RMB) (Sentencing Tr., ECF No. 91 at 1-17.) The Court struck
Paragraphs 29 and 35, and adopted the final PSR as modified. (Id.
at 14-17.) The PSR indicated a Total Offense Level of 40, a
34
criminal history category of I, and a Guidelines range of 292-365
months imprisonment, limited by the statutory cap to 240-month
term. United States v. Jacobs, 10cr801(RMB) (Sentencing Tr., ECF
No. 91 at 17.)
The
final
PSR
contained
a
two-level
adjustment
under
§
2G2.2(b)(2) based on child pornography recovered at defendant’s
home, involving prepubescent minors under the age of twelve. (PSR,
ECF No. 28-1, ¶57.) This adjustment was supported by evidence that
CDs seized from Jacobs’ home contained images of young boys engaged
in sexually explicit conduct; and in one of the CDs, the images
were saved in files that appeared to be labeled according to the
age of the boys “9-13,” “11-14,” “13-16,” and “16-18.” (Id., ¶26.)
Therefore,
the
Court
properly
adopted
this
adjustment
for
prepubescent minors as relevant conduct in Jacobs’ common course
of conduct in receipt of child pornography.
The final PSR contained a six-level enhancement pursuant to
U.S.S.G. § 2G2.2(b)(3)(D), based on Jacobs conduct of inducing
minors to send him sexually explicit pictures of themselves. (Govt.
Brief, Exhibit, PSR, ECF No. 28-1, ¶58.) This enhancement is
supported by evidence that Jacobs posed as a female to induce a
thirteen-year-old
boy
to
send
sexually
explicit
pictures
of
himself, and that Jacobs threatened to share the pictures with the
victim’s friends if he did not send more pictures. (Id., ¶¶27,
30(b).) Therefore, the Court properly adopted this adjustment as
35
relevant conduct to the common scheme or plan of Jacob’s offense
of conviction.
The final PSR also contained a four-level enhancement under
U.S.S.G. § 2G2.2(b)(4) because the offense involved material that
portrays sadistic or masochistic conduct or other depictions of
violence. (Govt. Brief, Exhibit, PSR, ECF No. 28-1, ¶59.) This
enhancement was supported by Jacobs’ receipt of an image
The Court properly adopted this adjustment as part of the acts
that occurred in the commission of the offense.
For these reasons, the Court denies Ground Six, and the
allegation in Ground Two that counsel was ineffective by failing
to argue against these sentence enhancements.
F.
Certificate of Appealability
The Court must assess whether a certificate of appealability
should issue. A litigant may not appeal from a final order in a
proceeding
under
appealability.
28
28
U.S.C.
U.S.C.
§
§
2255
without
a
of
A
2253(c)(1)(B).
certificate
certificate
of
appealability shall not issue unless there is a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2).
“Where
a
district
court
has
rejected
the
constitutional claims on the merits, the showing required to
satisfy
§
demonstrate
2253(c)
that
is
straightforward:
reasonable
jurists
36
the
would
petitioner
find
the
must
district
court's
assessment
of
the
constitutional
claims
debatable
or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Based on the discussion above, reasonable jurists would not
find it debatable that (1) the Court did not violate Jacobs’ Sixth
Amendment right to counsel by denying his request for new counsel
on
the
eve
of
trial;
(2)
defense
counsel
did
not
provide
ineffective assistance of counsel that prejudiced the defense;
(3) Jacobs is not actually innocent of Count 6; (4) Jacobs entered
into the plea knowingly and voluntarily; (5) the prosecution did
not breach the Plea Agreement; and (6) and the Court properly
applied sentence enhancements to the Guidelines based on relevant
conduct.
IV. CONCLUSION
For the foregoing reasons, the motion to vacate, set aside,
or correct the sentence (ECF No. 1) is DENIED, and the Court SHALL
NOT ISSUE a certificate of appealability. An appropriate Order
shall follow.
Dated: May 1, 2018
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
37
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