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Courtade v. United States

United States District Court, E.D. Virginia, Norfolk Division

December 13, 2017

RYAN COURTADE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 2:15cr29

          OPINION

          REBECCA BEACH SMITH CHIEF JUDGE.

         This matter is before the court on the Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Motion"), and incorporated Memorandum, filed by counsel on December 22, 2016. ECF No. 51. The court issued an order requiring the government to respond on January 18, 2017. ECF No. 53. Subsequently, the United States sought discovery from the Petitioner's former counsel. ECF No. 54. That motion was granted in accordance with the protective order issued in the court's Memorandum Order of March 20, 2017. ECF No. 66. The affidavits of the Petitioner's former counsel, with attached exhibits, were filed under seal on April 19, 2017. ECF Nos. 71, 72.

         The United States filed a Response in Opposition to the Motion on May 19, 2017. ECF No. 76. The Petitioner filed his Reply on June 5, 2017. ECF No. 79. On July 20, 2017, the court ordered the United States to file, under seal, the original video at issue in this case, so that the court could conduct an in camera review of the video. ECF No. 82. On July 28, 2017, the court granted the Petitioner's request for an evidentiary hearing. ECF No. 84. On October 16, 2017, prior to the evidentiary hearing, the Petitioner filed a letter that included supplemental authority for the court's consideration. ECF No. 88. At the evidentiary hearing on October 17, 2017, the court set a deadline at October 20, 2017, at 5:00 P.M., for the parties to file any additional materials for the court to consider. ECF No. 89. On the evening of October 20, 2017, the Petitioner filed Proposed Findings of Fact and Conclusions of Law. ECF No. 90. The Motion is now ripe for review.

         I. FACTUAL AND PROCEDURAL HISTORY

         On May 20, 2015, a grand jury returned a two-count Superseding Indictment against the Petitioner. Count One charged the Petitioner with Production of Child Pornography, in violation of 18 U.S.C. §§ 2251(a), (e) and 2256(2). ECF No. 13 at 1. Count Two charged the Petitioner with Possession of Child Pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Id. at 2. On August 25, 2015, the Petitioner, appearing with counsel, pleaded guilty to Count Two. ECF Nos. 26, 27. The Petitioner, under oath, and the government agreed to a "Statement of Facts, " which described the following foundations for the Petitioner's guilty plea:

On August 5, 2014, the Petitioner was found in the bedroom of Jane Doe, a young teenager, kneeling by her bed with his hands underneath the sheets. Statement of Facts ¶ 3, ECF No. 28. Jane Doe was asleep at the time. Id. When local police arrived on the scene, they found the Petitioner in his car, breaking a CD. Id. 1 4. When questioned about the contents of the CD, the Petitioner informed the police that it was a video of Jane Doe naked and in the shower, made with a GoPro video camera belonging to the United States Navy. Id. The Petitioner "stated he had Jane Doe take the camera in the shower to see if the camera was waterproof." Id. A forensic review of the Petitioner's computer revealed a twenty-four minute video of Jane Doe. Id. ¶ 6.
In the video, COURTADE is seen turning on the video camera and then placing the camera on the bathroom counter facing the shower with Jane Doe in view. COURTADE talks to Jane Doe and then leaves. Jane Doe undresses completely, gets in the shower, closes the shower curtain, and turns on the shower. Jane Doe then calls for COURTADE, who comes back into the bathroom, hands her the camera over the shower rod, and Jane Doe runs the camera under the water for a little while. Jane Doe hands the camera back to COURTADE, COURTADE reviews the camera, and hands the camera back to Jane Doe and tells her to put it on the floor of the shower. Jane Doe follows the instruction, and then gives it back to COURTADE. COURTADE then places the camera, still on, back on the counter of the bathroom facing the shower and exits the bathroom. Jane Doe peeks out at the camera a few times, then gets out at the far end of the shower, drops to the floor, and crawls out of the view of the camera below the countertop. Jane Doe reappears on the other side of the camera's view, dries off, gets dressed and exits the bathroom. During the video, Jane Doe's breasts and genitals are visible at various points.

Id. In the Plea Agreement, which the Petitioner signed and confirmed under oath at the plea agreement hearing, ECF No. 26, he stated that he (1) "will plead guilty because [he] is in fact guilty of the charged offense, " (2) "admits the facts set forth in the statement of facts filed with this plea agreement[, ] and [ (3) ] agrees that those facts establish guilt of the offense charged beyond a reasonable doubt." Plea Agreement ¶ 3, ECF No. 27.

         The Petitioner also attached a transcript of the audio from the video to his Motion as Exhibit 3:

Beginning (COURTADE starts video, showing his face. He places it on the bathroom counter facing the shower, the wide angle lens shows the entire bathroom. He says something here that is covered by noise from movement.}
:11 to:39
COURTADE: Unclear until "... this is off, [unclear], can't record you. You want to take this out and do this myself I will. It's all up to you. You cool?
VIC: Yeah.
COURTADE: So just holler at me in a minute, when you get in the shower, gonna hand it to you, can you do that?
VIC: 'Kay.
COURTADE: [unclear due to VIC tapping on counter] You cool?
VIC: Um-hm.
COURTADE: You gonna need a minute, or you need to use the bathroom?
VIC: I just need a minute.
COURTADE: Okay.
(COURTADE exits bathroom, shutting door. From:40 to 1:44, VIC undresses, starts water, turns on shower, and gets in}
1:46 to 2:47
VIC: [sealed][1]
COURTADE: (through door) You ready?
VIC: Yeah!
COURTADE: Ready?
VIC: Yeah!
(COURTADE reenters bathroom}
COURTADE: You good?
VIC: Yeah.
(COURTADE picks up camera, hands it over shower curtain to VIC}
COURTADE: So if you hold it like right in front of you, and hold it under the water for a few minutes, then hand it back to me, so I can make sure no water's getting into it ...
VIC: Okay.
COURTADE: then just (garbled by noise) ... off ... hold it like arm's length in front of you ... (garbled by noise) ... so the back is away from you (garbled)
(VIC takes camera and puts it under the shower spray, gives it back.}
3:39 to 4:20
COURTADE: Yeah. I'm going to be over here for a second ... (} Alright, it looks good. Doesn't look like any water's getting in there, (hands it back to VIC over curtain} Got it?
VIC: Yeah.
COURTADE: You need to set it back down on the floor there. (VIC puts camera on floor of shower, pointing up at her as she washes)
VIC: Like that? (barely audible over shower hitting camera)
(Shower runs over camera from 4:20 until 9:37)
9:37 to
VIC: (garbled by noise)
COURTADE: What's that?
VIC: (garbled by noise)
COURTADE: (garbled by noise) Will you, rinse it off?
VIC: Okay.
9:55 to 11:03
COURTADE: Hold it .... Out in front of you ... just a little bit ... ...

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