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United States v. Frostman

United States District Court, E.D. Virginia, Newport News Division

October 24, 2016

UNITED STATES OF AMERICA,
v.
JEROME PAUL FROSTMAN, Defendant.

          OPINION AND ORDER

          MARK S. DAVIS UNITED STATES DISTRICT JUDGE.

         This matter is before the Court after issuance of an Order requiring Defendant to show cause why the Court should not reject his guilty plea and Plea Agreement, and vacate its prior finding of guilt. ECF No. 38. For the following reasons,, the Court orders the parties to schedule a hearing to address the Court's conclusions in this Opinion and Order.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On May 16, 2016, Defendant, Jerome Paul Frostman, was charged in a criminal complaint with one count of distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2). ECF No. 1. On June 14, 2016, a grand jury of this Court returned a four count indictment charging Defendant with one count of distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2); and three counts of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a) (2) . ECF Nos. 20, 21. Defendant entered a plea of not guilty at his arraignment. ECF No. 28. The Court was later advised that Defendant had entered into a plea agreement with the Government and wished to change his plea to guilty as to Count Two, distribution of child pornography. Defendant appeared before the Court for a guilty plea hearing as to Count Two on August 8, 2016. ECF No. 33. During the guilty plea hearing, the following exchanges, as well as many others not directly relevant here, took place between the Court and Defendant:

THE COURT: I have two questions for you about your Constitutional rights. First, do you believe that any of your Constitutional rights have been violated in any way in connection with the seizure of any physical or tangible evidence relating [to] your offense by any police or other law enforcement agent, federal or state?
DEFENDANT: No, Your Honor.
THE COURT: Second: Do you believe that any of your Constitutional rights have been violated in any way in regard to the taking of any oral or written statement from you by any police, governmental or law enforcement agency, or by anyone directly or indirectly having a connection with such an agency or a person in such an agency?
DEFENDANT: No, Your Honor.
***
THE COURT: Have you had the opportunity to discuss your case with your attorney, Mr. Grindrod?
DEFENDANT: Yes, Your Honor.
THE COURT: Have you actually discussed all the facts in the case with him?
DEFENDANT: Yes, Your Honor.
THE COURT: Are you satisfied that Mr. Grindrod has fully considered all the facts and discussed with you any possible defenses that you may have to the charges against you?
DEFENDANT: I am, Your Honor.
***
THE COURT: Have you discussed with your attorney both the sentencing guidelines and the[] statutory sentencing factors?
DEFENDANT: I have, Your Honor.
THE COURT: Has Mr. Grindrod explained to you the various considerations that go into determining these factors?
DEFENDANT: He has, Your Honor.
***

         The Court then asked Defense counsel the following questions to which he responded:

THE COURT: Mr. Grindrod, has Mr. Frostman been competent and able to cooperate with you in this case?
MR. GRINDROD: Yes, Your Honor.
THE COURT: Have you discussed the facts of the case in detail with him?
MR. GRINDROD: Yes, Your Honor.
THE COURT: Are you satisfied that there are no meritorious defenses that the defendant might raise in the case which, in your opinion, would result in a not-guilty verdict by a jury?
MR. GRINDROD: Mr. Frostman, in consultation with me, has decided that this plea agreement is in his best interest, Your Honor.
THE COURT: Can you elaborate on why you didn't answer the question "Yes" or "No"?
MR. GRINDROD: Your Honor, I don't think I can -- I don't think I can answer the question as phrased without revealing opinion work product.
THE COURT: Is that an answer you're going to be giving in every single guilty plea, pretty much?
MR. GRINDROD: I mean, obviously if the Court directly orders me to answer the question as phrased, Your Honor, I'll comply with that order. I just, I think it is -- that that question would -- requires me in this case and in other similar -- in basically every case where it's asked --
THE COURT: It's not unique to this case? That's what I'm trying to figure out.
MR. GRINDROD: Yes, Your Honor, that's correct.
THE COURT: I may reflect more on that after the hearing.
MR. GRINDROD: I understand, Your Honor.
THE COURT: All right. Are you satisfied that the defendant's constitutional rights have been observed so far in this case?
MR. GRINDROD: We're not pursuing any constitutional claims in this litigation, Your Honor.
THE COURT: Mr. Grindrod, you always make me think. Have you -- how many times have you met with Mr. Frostman, approximately?
MR. GRINDROD: At least 10 times, Your Honor.
THE COURT: And do you think that you've discussed all the facts of the case ...

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