Shannon v. United States

39 F.4th 868

Shawn SHANNON, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 21-1108

United States Court of Appeals, Seventh Circuit.

Argued April 14, 2022

Decided July 12, 2022

Curtis T. Lovelace, Attorney, Lovelace Center for Criminal Law, Chicago, IL, for Petitioner-Appellant.

W. Scott Simpson, Attorney, Office of the United States Attorney, Springfield, IL, for Respondent-Appellee.

Before Sykes, Chief Judge, and Hamilton and Scudder, Circuit Judges.

Hamilton, Circuit Judge.

In a jury trial before District Judge Colin S. Bruce, petitioner Shawn Shannon was convicted of nineteen counts of sexually exploiting a child and one count of distributing child pornography. Judge Bruce sentenced Shannon to 720 months (60 years) in prison. Shannon challenges those convictions under 28 U.S.C. § 2255, arguing that his trial counsel was ineffective and that he did not receive a fair trial before an unbiased judge. The § 2255 motion was assigned to District Judge James E. Shadid, who denied relief. Shannon has appealed that denial.

We agree with Judge Shadid that Shannon's ineffective-assistance claim fails. Given the extensive and powerful evidence against Shannon, even if we were to assume his trial counsel's performance was deficient, he has failed to show that he was prejudiced by any deficiency. On the judicial-bias claim, we also agree with Judge Shadid that ex parte communications between Judge Bruce and staff of the U.S. Attorney's office do not warrant a new trial on guilt or innocence. Based on those ex parte communications and comments by Judge Bruce at Shannon's sentencing that implicitly discouraged an appeal, however, we conclude as a matter of our supervisory authority that Shannon must be resentenced before a different judge.

I. Facts and Procedural History

A. Trial Proceedings

In June 2016, Shannon was indicted by a grand jury in the Central District of Illinois on nineteen counts of sexually exploiting a child in violation of 18 U.S.C. § 2251(a) and (e) and one count of distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1).

The charges arose from Shannon's relationship with J.W., a minor. In a jury trial before Judge Bruce, evidence showed that the two originally met when J.W. was around eight years old. They began spending more time together when J.W. was around twelve. Shannon was in his forties at the time. J.W.'s mother testified that Shannon was like "a family member" and that she had hoped he could provide a positive male role model for her son. She characterized Shannon as a "confidant" for J.W. and said that J.W. described Shannon as his best friend. J.W. helped with lighting and sound for Shannon's gospel music group—known as the Shannons—and occasionally traveled with them for performances. Shannon frequently bought gifts for J.W., including a new cell phone.

The government presented evidence that Shannon and J.W. exchanged thousands of text messages in the early months of 2015, when J.W. was thirteen. J.W. testified that they used a code—the letter "P"—so that Shannon would know not to text when someone else had J.W.'s phone. In many of the messages, Shannon wrote in graphic detail about masturbation, watching pornography, and other sexual activity. Shannon also discussed wanting to engage in sexual activity with J.W., who testified that those comments made him feel "very awkward."

Text messages from late February 2015 showed that Shannon and J.W. made plans to meet in Decatur, Illinois, where J.W. lived. Shannon said that he would take pictures of J.W. "with good poses." J.W. testified that he and Shannon stayed at a Decatur hotel on the night of February 28. While they were there, Shannon used his iPhone to take several nude pictures of J.W. Shannon told J.W. how to pose for the pictures. And J.W. testified that they masturbated together and watched pornography on Shannon's computer.

The government introduced evidence to corroborate J.W.'s testimony and to refute any suggestion that someone had framed Shannon by using another Apple device to send the messages. A forensic examiner testified that text messages extracted from Shannon's phone showed Shannon preparing for the Decatur trip. Cell phone location data indicated that the phone was accessing a cell tower near Shannon's residence in Muncie, Indiana at the time the messages were sent. The witness also used location data from February 28 to trace the phone's movement across central Illinois toward the hotel in Decatur.

On a point critical to the framing theory at the heart of Shannon's § 2255 motion, the forensic expert also testified that if another device had accessed the Apple ID associated with Shannon's iPhone, then a system log entry would have been created. The expert had found no evidence of any such log entries to indicate that another device had accessed that Apple ID.

Along with this forensic evidence, records from the Decatur hotel showed that Shannon had checked in on February 28, 2015 and checked out the next day. Those records also revealed that Shannon was driving a black GMC Sierra, which matched the results of the government's investigation. Finally, the records indicated that Shannon had stayed in Room 222. A detective took pictures of that room several weeks later, and its furnishings resembled those visible in the pictures of J.W.

On March 17, 2015, J.W.'s mother discovered the sexually explicit messages and pictures on J.W.'s phone. She told Dustin Bradshaw, J.W.'s cousin, what she had found. Bradshaw, who was a member of Shannon's music group, texted Shannon about what he had heard. J.W.'s mother testified that she received several text messages from Shannon later that day. One message said: "Hey, Dustin just told me. I am sorry about taking pictures for [J.W.]. He asked for his girlfriend. I'll be 100 percent honest. I did not think at all." Another message said: "I should have ... never done it. He's like a brother to me; so when he asked, I just did it without thinking."

Cell phone location data showed that Shannon's phone was near his Muncie residence when these messages were sent. The government's forensic expert also testified that text messages, emails, and contacts were deleted from Shannon's phone around March 18.

The pictures from the Decatur trip served as the basis for the child exploitation charges, while two other sexually explicit pictures of J.W. that Shannon sent him on March 14 were the subject of the charge for distributing child pornography. At trial, the government also twice offered evidence of prior acts under Federal Rule of Evidence 404(b). On both occasions, Judge Bruce gave a limiting instruction before the evidence was admitted. He admonished the jury that these acts had not been charged in the indictment and that the evidence could be used only "to help you decide whether the defendant had the intent or motive to sexually exploit a minor or to prove his identity."¹

First, J.W. testified about an earlier occasion on which Shannon had taken sexually explicit pictures of him. In the fall of 2014, J.W. and Bradshaw traveled to Muncie for a music festival and stayed at Shannon's home overnight. After Bradshaw fell asleep, J.W. testified, Shannon and J.W. watched pornography and masturbated together. J.W. also said that Shannon took sexually explicit pictures of him. The pictures showed J.W. with his shirt lifted and his penis exposed. Another forensic expert testified that these pictures had been recovered from J.W.'s phone, where they were stored in an application called Video Safe 2. J.W. explained that the application "hid photos" and that Shannon had paid for and installed it on J.W.'s phone.

Second, the government presented evidence—subject to the same limiting instruction—about Shannon's relationship with A.W., another minor. A.W. testified that he was sixteen years old when he met Shannon on a dating website in 2009. Although A.W.'s dating profile listed his age as eighteen, A.W. said he eventually admitted to Shannon that he was younger. A.W. testified that Shannon asked him for sexually explicit pictures on multiple occasions and told him how to pose. A.W. sent Shannon such pictures, and Shannon also sent A.W. sexually explicit pictures that he had taken of himself. In addition, A.W. testified that Shannon invited him to his home and performed oral sex on him.

The defense did not call any witnesses. After less than thirty minutes of deliberation, the jury found Shannon guilty of all nineteen counts of sexually exploiting a child and the single count of distributing child pornography.

B. Post-Trial Proceedings and Sentencing

Two weeks after the verdict, Shannon moved for a new trial. Judge Bruce denied the motion. In doing so, he criticized the motion's "bare and unsupported contentions" and commented that Shannon's counsel appeared to have spent "little time" on it.

Shannon's case then moved to sentencing. Based on the underlying charges and several enhancements, the presentence report calculated an offense level of forty-three, a criminal history category of I, and an advisory guideline sentence of life in prison. The statutory maximum, however, was thirty years for each child exploitation count and twenty years for the distribution of child pornography count. Judge Bruce—and both parties—understood the Guidelines to recommend a sentence of 7,080 months (590 years), "consisting of 360 months on each of Count One through Nineteen and 240 months on Count Twenty, all to run consecutively." Shannon v. United States , No. 18-cv-2233, 2020 WL 6947421, at *4 (C.D. Ill. Nov. 25, 2020). Whether the Guidelines actually recommended maximum, consecutive sentences on all counts for 590 years is not a question we need to resolve. Cf. U.S.S.G. § 5G1.2(d) (impose consecutive sentences "only to the extent necessary to produce a combined sentence equal to the total punishment").

Shannon's trial counsel withdrew, and a federal defender was appointed to represent...