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Sell v. United States

United States District Court, Fourth Circuit

December 31, 2013

GEORGE SELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Action No. 10-528

MEMORANDUM OPINION

ALEXANDER WILLIAMS, Jr., District Judge.

Pending before the Court are Petitioner's (1) Motion To Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("Motion to Vacate") and (2) Supplement to Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("Supplement"). The Court has carefully reviewed the record in connection with these Motions. For the following reasons, the Court DENIES said Motions.

I. FACTUAL AND PROCEDURAL BACKGROUND

Based on his participation in a Web-based bulletin board that offered child pornography ("Country Lounge"), on August 30, 2010, Petitioner was indicted for one count of Conspiracy to Advertise Child Pornography in violation of 18 U.S.C. § 2251(e), one count of Conspiracy to Transport Child Pornography in violation of 18 U.S.C. § 2252(b)(1), seven counts of Receipt of Child Pornography in violation of 18 U.S.C. § 2252(a)(2), and one count of Possession of Child Pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Doc. No. 1. In September 2011, Petitioner executed a plea agreement ("Agreement") and Statement of Facts ("Attachment A"). Doc. Nos. 32, 32-1. In the Agreement, Petitioner agreed to plead guilty to Count II of the Indictment, namely, one count of Conspiracy to Transport Child Pornography in violation of 18 U.S.C. § 2252(a)(1) and (b)(1).

According to Attachment A, from December 2006 to August 2008, Petitioner and others conspired to operate County Lounge, which was a secure website through which people traded images of child pornography. Petitioner was the "Root Administrator" and "day-to-day manager" of Country Lounge. Members of Country Lounge would primarily post non-child pornographic images that could be viewed on the board itself as preview images, with accompanying hyperlinks to the actual child pornographic content they wanted to share. Although one of County Lounge's purported rules stated that members should neither post links to nor request child pornography as defined under U.S. law and that members who violated this rule would be banned, the main purpose of Country Lounge was to facilitate the trading of images of child pornography and all members were expected to actively post new child pornographic material.

In August 2008 or thereabouts, law enforcement officials seized County Lounge and a forensic examination of it was performed. Based on the examination, the officials accessed between 10 and 150 images of child pornography from links that remained active at the time of seizure. In November 2009, agents from the Department of Homeland Security Immigration and Customs Enforcement executed a search warrant on the Petitioner's residence and removed three hard drives. A forensic examination of these items revealed that they contained approximately 150 images of child pornography. All of these images involved prepubescent minor girls engaged in the lascivious exhibition of the genitals or pubic area.

On or about January 26, 2012, the Court adjudged Petitioner guilty of Count II (Conspiracy to Transport Child Pornography) and sentenced him to, inter alia, 120 months in prison. Doc. No. 42. Approximately one year later, Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. §2255 and an accompanying 56-page memorandum in support ("Motion to Vacate"). See Doc. No. 56. Mindful of its obligation to construe pro se filings liberally, the Court has gleaned the following material arguments from Petitioner's somewhat disjointed Motion to Vacate:

i. Petitioner's counsel failed to communicate with him and failed to obtain certain evidence from the United States, such as a digital database of the website showing its entire content;

ii. The United States committed a Brady violation by failing to turn over a Country Lounge forum titled "Humiliation Nation, " which Petitioner alleges would have shown that the purported rule against child pornography was vigorously enforced;

iii. Had the United States turned over exculpatory evidence and Petitioner's counsel done his due diligence, the evidence would have shown that the United States could not have proved the elements of the offense;

iv. Although Country Lounge contained links to Russian females under 18, these links were images to "child erotica, " and the DOJ stated in 2000 and 2002 that child erotica did not constitute child pornography;

v. The Indictment was based on information obtained in violation of Petitioner's Fourth Amendment right to be free from unreasonable searches and seizures;

vi. The United States should have turned over the affidavit of a coconspirator that was used to indict Petitioner, and Petitioner's counsel should have made greater efforts to acquire this document; this affidavit would have shown that the coconspirator was biased against Petitioner, presumably because he was seeking to forge a cooperation deal with prosecutors;

vii. The United States deliberately overcharged Petitioner and publicly disseminated embarrassing information to coerce him to plead guilty, and Petitioner's counsel aided these ...


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