Lafortune v. United States

GIRARD LAFORTUNE, Petitioner,

v.UNITED STATES OF AMERICA, Respondent.

CRIMINAL NO. 03-10366-PBS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

November 2, 2012

MEMORANDUM AND ORDER

Saris, U.S.D.J.

I. Introduction

Petitioner, Girard LaFortune, brings this motion pursuant to 28 U.S.C. § 2255(a) claiming that his attorney was ineffective when she failed to file a motion to suppress statements made without Miranda warnings.¹ Also, Petitioner seeks to amend his habeas motion to add two additional claims. First, he claims a government witness should not have been able to testify that he witnessed the signing of the inculpatory photographs. Secondly, he challenges his mandatory sentence imposed pursuant to 18 U.S.C. § 2251 as cruel and unusual. Petitioner's request for relief (Docket No. 129) is DENIED.

II. PROCEDURAL HISTORY

On March 31, 2004 Petitioner was indicted on four counts of transportation and attempted transportation of child pornography in interstate commerce in violation of 18 U.S.C. § 2252(a)(1) and (b)(1)(count one); receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2)(count two); possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B)(count three); and, printing or publishing a notice or advertisement for child pornography in violation of 18 U.S.C. § 2251(d)(count four). Count one alleges LaFortune posted illegal images on the Yahoo internet group "Baldy3"; count two alleges he received such images on his computer; count three alleges he possessed such images on his computer and in his home; and count four alleges he emailed the Baldy3 group soliciting others to post pornographic images.

Prior to trial, LaFortune pleaded guilty to counts two and three. In November, 2005, he went to trial and was convicted by a jury on counts one and four. LaFortune received a sentence of 420 months of imprisonment, followed by 60 months of supervised release. Since LaFortune was a three time offender and convicted of advertising child pornography, 420 months was the mandatory minimum sentence. On appeal, his conviction was affirmed. See United States v. LaFortune, 520 F.3d 50, 53 (1st Cir. 2008), cert. denied, 555 U.S. 871 (2008) (No. 07-11486).

On August 15, 2006 Petitioner's trial counsel, Syrie Fried, wrote her client a letter explaining that she could not continue to represent him on appeal.² In the letter she states:

My reason for feeling this way is that, after reflection, I am not sure that I provided effective representation during the course of your trial proceedings. Specifically, I feel I may have been ineffective because I didn't file a motion to dismiss the promotion count of the indictment and because I didn't file a motion to suppress your statements to the FBI agents when they came to your house and executed your search warrant.

(Pet'r's Mem. , Ex. 1.) Upon inquiry by the court, Petitioner filed a motion requesting counsel to represent him in this habeas petition. (Docket No. 137.) The court granted the Petitioner's request and appointed counsel. (Docket No. 139.)

III.STATEMENT OF THE FACTS

A. Facts Related to Pre-Miranda Statements

The following facts are largely drawn from the trial record and are not specifically disputed³ except where stated.

On October 29, 2003, the FBI executed a search warrant at Petitioner's home. (Tr. 2-80, Def. Aff. ¶ 3.) Investigators arrived between 7:30 and 8:00 A.M. (Tr. 2-117.) While most of the agents went inside the apartment to perform the search, FBI agents Todd Richards and David George interviewed the Petitioner in the small common area adjoining his apartment. Id. at 2-122-23. Petitioner's apartment consisted of one room, occupied solely by him. (Tr. 2-119-20, Def. Aff. ¶ 2.) During the course of the entire search and interrogation there were as many as seven officers in Petitioner's home. (Tr. at 2-120.) The Petitioner was not read his Miranda rights until nearly 10:00 A.M., about two hours after Agents George and Richards began the interview. (Tr. at 2-125-26, Def. Aff. ¶ 16.) In the interim, the Petitioner stated that he viewed child pornography "quite frequently," that the CDs in his possession contained what "some would consider . . . child pornography," that he is interested in pictures of girls between the ages of ten and fourteen, that he used certain e-mail addresses to trade child pornography, and that he posted specific images of child pornography traded online. (Tr. 2-96-101). He initialed some of the images.

In addition to answering questions, Petitioner was shown the photographs user davyjones20002000 had posted in a Yahoo! group titled "Baldy 3" and was asked whether the photographs were familiar. Id. at 2-97. He answered he was familiar with the images and that he had seen them before because the photographs were "pretty standard internet fare." (Def. Aff. ¶ 10.) Petitioner was then asked to initial the photographs and, as he initialed them, Petitioner claims he was told the "initials meant only that [he] had seen these images." (Def. Aff. ¶ 11.) Agent George testified that the initials meant Petitioner hadacknowledged viewing, downloading, and posting the photograph. (Tr. 2-99.) Petitioner also contends that only Agent Richards was present in the room during the questioning regarding these images and the initialing of the photos. (Def. Aff. ¶¶ 11-12.) He claims that Agent George entered the room to continue the questioning after the initialing of the photographs. (Def. Aff. ¶¶ 12.) Agent George testified that he was present during the questioning and signing. (Tr. 2-97-99.)

During the course of this questioning, LaFortune contends he met with various forms of restraint on his freedom of movement. A police officer accompanied Petitioner when he asked to get his cigarettes, following him to and from his room (id. at 2-128-29), then blocking the exterior door with his body (Def. Aff. ¶ 7). An officer also escorted Petitioner to the bathroom and watched him through the bathroom's open door. (Tr. 2-130-31, Def. Aff. ¶ 8.) Before 9:00 A.M. Petitioner was allowed to use the telephone to call his workplace to say he would not be coming in that day. (Tr. 2-131-32, Def. Aff. ¶ 9.) Again officers escorted him to the phone and watched him make the call. (Def. Aff. ¶ 9.) Throughout the search and investigation, Petitioner's car was blocked by the police cruisers in the driveway. Id.

B. Facts Related to Petitioner's Conviction

At trial, the government sought to prove that Petitioner posted certain child pornography images to an internet Yahoo! group site, and an email message encouraging members of the Yahoo! internet group to post further images. The government introduced the following evidence:

Agent Kari Morales Marsh, a member of the Innocent Images Task Force, testified that during an undercover investigation designed to identify child sexual exploitation, she was invited to join a Yahoo! internet group named "Baldy 3." (Tr. 1-38-46.) Upon entering the group, she received an email that was sent as a message to the entire Baldy 3 group from an individual registered with the username daveyjones20002000. Id. at 1-56. The message subject was titled "As promised" and the message read "Added a few pics in the folder . . . Holly 'n Rim. They're my two favorites. Will post more later. Please post fills if you have." Id. at 1-62. Agent Marsh testified that the word "fills" refers to photos that complete a series of photographs. Id. at 2-15. Agent Marsh never had any direct contact with davyjones20002000. Id. at 2-27.

A representative from Yahoo! testified that when an individual who logged in as davyjones20002000 connected with the Yahoo! database, an internet protocol ("IP") address was recorded for that user - 24.128.242.59. Id. at 2-48,68. An IP address is aunique number assigned by an internet provider to its subscribers in order to connect the subscribers to the internet so the internet provider can identify them. Id. at 2-37. An IP address is linked to only one given location at any given time. Id. The address stays constant until an individual "logs off" the internet. Id. at 2-39. A representative from Comcast testified that IP address 24.128.242.59 was assigned to a subscriber named Girard LaFortune at 80 Allen Road, Room 1, Billerica, Massachusetts, id. at 2-36-37, Petitioner's longstanding address at the time of arrest. Some evidence suggested that different actions and log-in attempts by the user, davyjones20002000, were recorded with different IP addresses. Id. at 2-54-56, 60-61. During cross-examination, defense counsel's questions suggested a new IP address assigned to davyjones20002000 could indicate that the individual using the davyjones20002000 account was signing in from a different computer at a different location. Id. at 2-56-57. This line of examination also suggested that a different IP address meant a different person, not Petitioner, was logging in as davyjones20002000. Id. A representative from Yahoo! conceded that a different IP address could mean that an individual was signing on from a different computer location, but also stated that it does not necessarily mean a different person is logging in. Id. at 2-56-57.

Defense counsel also suggested through questioning that because Petitioner had a cable modem, as opposed to a phone dial-up connection, his IP address would not change because cable modems remain constantly connected to the internet. Id. at 2-39, 3-42. This line of questioning was meant to suggest that if Petitioner's cable modem connection is always constant, his IP address would remain constant, so any different IP address associated with the davyjones20002000 account could indicate another individual logging into the username from a different location. A computer forensic expert for the government testified that each time an individual logs on and off the internet, he can be assigned a new IP address. Id. at 3-41-42. Even if an individual has a cable modem that is constantly connected to...