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United States v. Johnson

United States District Court, D. Maryland, Southern Division

August 10, 2016

UNITED STATES OF AMERICA,
v.
CHARLES JEROME JOHNSON, Defendant-Petitioner.

          MEMORANDUM OPINION

          GEORGE J. HAZEL United States District Judge.

         Pursuant to 28 U.S.C. § 2255, Charles Jerome Johnson has requested that the Court vacate his conviction and/or sentence on the basis of ineffective assistance of counsel. ECF No. 89 at 1.[1] According to Johnson, he would have accepted the government's plea offer of thirty-six months but for his former counsel. Robert C. Bonsib. leading Johnson to believe he had a defense against the charges, drastically understating the penalty Johnson would receive if convicted at trial, and tailing to advise Johnson to take the plea offer of thirty-six months. ECF No. 89 at 3. Johnson asserts Bonsib should have "directly and specifically advised" that there was no possible defense to the charges and that Johnson "absolutely should" accept the plea agreement of thirty-six months. ECF No. 106 at 2. A hearing is unnecessary. Eoc. R. 105.6 (D. Md. 2016). For the reasons stated below, Johnson's Motion to Vacate Conviction and Sentence is DENIED.

         I. BACKGROUND

         A. Procedural History

         On May 23, 2012. the Government filed a superseding indictment charging Johnson with receiving and possessing child pornography in violation of 18 U.S.C. § 2252A. ECF No. 24 at 1. Specifically. Count One charged Johnson with knowingly receiving child pornography and materials that contained child pornography on April 15. 2011. in violation of 18 U.S.C. § 2252A(a)(2), ECF No. 24 at 1. and Count Two charged Johnson with knowingly possessing any material that contained an image of child pornography on May 17. 2011, in violation of 18 U.S.C. § 2252A(a)(5)(B), ECF No. 24 at 2. Johnson, who was represented by Bonsib from his Initial Appearance on October 13.. 2011 until August 8, 2012. ECF Nos. 8, 70, [2] pleaded not guilty and the matter proceeded to trial, ECF No. 89 at 2.

         After the three day trial concluded on June 14. 2012. ECF No. 48. the jury found Johnson guilty on both counts, ECF No. 53. On November 14, 2012, Judge Williams sentenced Johnson, who was then represented by Matthew Kaiser, to a term of ninety-six months. ECF No. 73. On September 4. 2014, Johnson filed this motion, requesting that the Court vacate "his convictions and direct the Government to re-offer its pre-trial plea deal so that Mr. Johnson may be resentenced as if he had pleaded guilty and agreed to fully admit his offense conduct instead of proceeding to trial." ECF No. 89 at 4. The Court directed the government to file a response. ECF No. 92, which was filed on May 11, 2015, ECF No. 102.

         B. Johnson's Affidavit

         Johnson submitted an affidavit in support of his motion. According to Johnson, shortly after a search warrant was executed at Johnson's home. Johnson retained the services of Bonsib, who had "more than 30 years of experience practicing law in the Greenbelt. Maryland area" and "was experienced in cases where defendants had been charged with using a computer to illegally obtain[] child pornography." Id. ¶ 3. Johnson explained that he viewed pornographic images of children because he was writing a book, and never purposely saved images to his computer's hard drive. Id. ¶ 4.

         Bonsib advised Johnson that cases like Johnson's case are difficult to defend and showed Johnson a case to demonstrate how sentences were calculated, but Bonsib never explained how Johnson's sentence would be calculated. Id. ¶ 5. Bonsib also advised Johnson that "being convicted at trial would not necessarily lead to [a] harsher sentence" and that Johnson would receive "around (or near) the minimum of 60 months imprisonment" if he lost at trial. Id. Bonsib communicated the Government's plea offer to Johnson, explaining that the offer was a sentence of thirty-six months imprisonment with no further reduction, but he did not discuss "the advantages and disadvantages of pleading guilty versus going to trial" nor advise Johnson to take the plea. Id. ¶ 6. Johnson did not know that he was facing a potential sentence of 121 to 151 months if he rejected the plea offer. Id. ¶ 10.

         In mid-December 2011, Bonsib provided Johnson with approximately twenty different judicial opinions that ruled on facts similar to Johnson's case in which "the defendants were successful at trial or appeal because the defendants had viewed on the computer, but not saved, child pornography." Id. ¶ 7. Just prior to the start of trial, Bonsib told Johnson for the first time that the images Johnson saved to a Microsoft Word document demonstrated that he exercised dominion and control over the images on his computer. Id. ¶ 8.

         C. Bonsib's Affidavit

         The government submitted an affidavit from Bonsib in support of its opposition. In Bonsib's affidavit, he states that he had a number of conferences with Johnson and '"spent many hours discussing the issues of his case, including discussing possible legal and factual defenses and how best to present his position regarding the allegations brought against him in this matter.*' EC1; No. 101. They also discussed what defenses Johnson "might offer, his potential testimony before the jury and how he should best present his defense and his own testimony, should he have decided to testify in his own defense." Id. Shortly before trial, the Government filed "a motion in limine that was eventually granted by the Court and had the effect of essentially 'gutting' the substance of what Mr. Johnson wanted to present, through his testimony, to the jury." Id.

         Despite Bonsib advising Johnson that "the likelihood of a successful outcome after trial was slight, " Johnson consistently and without exception expressed that he would not accept any plea agreement "that exposed him to the possibility of incarceration or involved the requirement of registration on the Sexual Offender Registry" Id. The Government offered a plea that would have required Johnson to agree to a thirty-six month term of imprisonment and Johnson was fully advised of the possibility of resolving his case on those terms. Id. However, Johnson maintained that he would not accept a plea irrespective of whether the risk of post-trial sentencing was “3 years, 5 years or 15 years, or any period of incarceration." Id.

         In support of his affidavit, Bonsib attached memoranda that summarized some of his interactions with Johnson. HCF No. 101, Ex, 1. The memoranda detail Bonsib's repeated attempts to explain to Johnson that he would likely be convicted at trial and Johnson's firmness regarding not accepting any plea that included incarceration. Bonsib also attached a statement and an email from Johnson that expressed Johnson's insistence on not accepting any plea that included ...


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