United States District Court, E.D. Virginia, Norfolk Division
REBECCA BEACH SMITH CHIEF JUDGE.
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.
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.
FACTUAL AND PROCEDURAL HISTORY
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
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.
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.}
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?
COURTADE: So just holler at me in a minute, when you get in
the shower, gonna hand it to you, can you do that?
COURTADE: [unclear due to VIC tapping on counter] You cool?
COURTADE: You gonna need a minute, or you need to use the
VIC: I just need a minute.
(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
COURTADE: (through door) You ready?
(COURTADE reenters bathroom}
COURTADE: You good?
(COURTADE picks up camera, hands it over shower curtain to
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 ...
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
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?
COURTADE: You need to set it back down on the floor there.
(VIC puts camera on floor of shower, pointing up at her as
VIC: Like that? (barely audible over shower hitting camera)
(Shower runs over camera from 4:20 until 9:37)
VIC: (garbled by noise)
COURTADE: What's that?
VIC: (garbled by noise)
COURTADE: (garbled by noise) Will you, rinse it off?
9:55 to 11:03
COURTADE: Hold it .... Out in front of you ... just a little
bit ... ...