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Baalerud v. United States

United States District Court, W.D. North Carolina, Charlotte Division

January 30, 2017



          Max O. Cogburn United States District Judge.

         THIS MATTER is before the Court on consideration of petitioner's pro se Motion to Vacate, Set Aside or Correct Sentence which is filed pursuant to 28 U.S.C. § 2255. For the reasons that follow, petitioner's § 2255 Motion will be denied and dismissed.


         I. BACKGROUND

         On October 7, 2014, petitioner was indicted in this district on two counts of the knowing transmission of child pornography by any means utilizing interstate commerce, including a computer, in violation of 18 U.S.C. § 2252A(a)(1) (Counts One and Two); one count of the knowing receipt of child pornography using any means of interstate commerce, including a computer, in violation of § 2252A(a)(2) (Count Three); and one count of possession with intent to view child pornography that involved prepubescent minors that had not attained the age of twelve, by means of a computer, or other interstate means, in violation of § 2252A(a)(5)(B) (Count Four). Indictment (#1).

         Petitioner entered into a plea agreement with the Government agreeing to plead guilty to Count Two of his indictment in exchange for the Government's agreement to dismiss the remaining counts. In the agreement petitioner expressly agreed that, among other things, he was in fact guilty of the conduct charged in Count Two and upon conviction he could be subject to a maximum term of lifetime supervised release. Plea Agreement (#31).[1]

         On July 20, 2015, petitioner appeared with counsel before U.S. Magistrate Judge David Kessler for his Plea and Rule 11 hearing and he was placed under oath. Petitioner acknowledged that he had reviewed the bill of indictment with his counsel and the elements charged in Count Two, and he acknowledged that he understood the elements of the offense and the potential penalties he faced upon conviction. Petitioner also acknowledged that he had discussed any possible defenses with counsel and he knew he could plead not guilty and contest the charges at trial before a jury, summon witnesses, and cross-examine the government's witnesses. Petitioner then acknowledged that he understood and agreed with the terms of his plea agreement; that he was satisfied with the services of his counsel; and that he was pleading guilty because was in fact guilty of the conduct charged in Count Two. The court recorded petitioner's answers in writing and presented them to petitioner and counsel to review, and they agreed that the answers that petitioner had given under oath were true. The court accepted the guilty plea after finding that it was knowing and voluntary and petitioner's case was then referred to the U.S. Probation Office for preparation of a presentence report (PSR). Acceptance and Entry of Plea (#35).

         In the PSR, the probation officer included a detailed summary of petitioner's offense conduct to support the calculation of the Guidelines Range which included the complete Factual Basis noted above which is set forth as follows:

5. On November 18, 2013, CMPD Det. Chilton was operating an undercover capacity on the Gnutella Internet peer-to-peer network. He identified IP address as sharing files suspected of being child pornography. Det. Chilton was able to download six videos from the suspect IP address. A description of some of these videos is as follows:
a. (REDACTED TEXT) a video that depicts an adult female performing oral sex on a toddler that is lying nude on her back on a bed.
b. (REDACTED TEXT) a video that depicts an adult male having vaginal intercourse with a prepubescent female.
6. Det. Chilton initiated an administrative subpoena for the suspect IP address which returned the following subscriber information: Paul Baalerud. 6220 Hackberry Creek Tr., Charlotte NC 28269.
7. Between December 5, 2013 and January 7, 2014, Detective Aleta Dunbar with CMPD was operating in an undercover capacity on the Gnutella internet network Det. Dunbar identified a computer with the IP address 108.226.1 24.222 offering files of investigative interest for download. Det. Dunbar isolated the suspect IP address and downloaded 15 videos of child pornography. Examples of the tiles that she down loaded include:
a. (REDACTED TEXT) - this video depicts an adult male orally penetrating a prepubescent minor female under the age of 10. The man then attempts to vaginally penetrate her. Next the man attempts to anally rape the child.
b. (REDACTED TEXT) - this videos depicts an adult male having sexual intercourse with a prepubescent minor female that is approximately 8 to 9 years old. The male ejaculates on the child. Next the man inserts a cylinder object into the child's rectum. He then digitally penetrates the child's anus and rubs his pen is on the child's anus.
8. Det. Dunbar initiated an administrative subpoena to AT&T for subscriber in formation of IP address AT&T responded to the administrative subpoena on December 31, 2013 giving the following subscriber in formation: Paul Baalerud, 6220 Hackberry Creek Tr., Charlotte, NC 28269.
9. Based on her investigation, Det. Dunbar sought a search warrant for the Hackberry Creek address. This search warrant was executed on January 10, 2014. Numerous items, including a computer and external hard drive were seized. Defendant was the sole resident of the home.
10. Defendant agreed to be interviewed. He told the agent that he used a peer to peer program to find child pornography. He stated that he had been using it for about two years. Defendant used search terms like (REDACTED TEXT). He masturbated to child pornography. He told the agents that they would find child pornography on his external hard drive. Defendant indicated that he deleted his collection on an irregular basis. He told the agents that he was not sexually attracted to children but was interested in “the whole idea of control" and "they're [the children] just so innocent."111. Defendant was interviewed later the same day at CMPD. During that interview, he told agents that on five or more occasions, he had masturbated in front of a 2 year old child (Child Victim 1) and had the child touch Defendant's penis. He also told the agent that prior to Child Victim 1, he had two other child victims (CV2 and CV3) climb on top of him while he masturbated. This occurred when CV2 and CV3 were approximately one to two years old.2 12. A forensic examination was performed on the items seized from Defendant's residence. Peer to Peer software was located on the ...

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