Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brown v. United States

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

July 16, 2018



          Max O. Cogburn Jr., United States District Judge

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1). Also pending is the Government's Motion to Seal Petitioner's Motion to Vacate and Exhibits. (Doc. No. 4).

         I. BACKGROUND

         A. Petitioner is charged in state court will sexually abusing a three-year-old and, while on bond, shares thousands of images of child pornography using peer-to-peer software.

         In January 2011, Petitioner Jason Michael Brown was arrested on state charges, including six counts of first-degree sex offense with a child for forcing a three-year-old child to perform oral sex on him. (Crim. No. 3:14cr167, Doc. No. 23 at ¶ 92: PSR; Doc. No. 42 at 15: Sent. Tr. I)).

         Petitioner had shown the child images of child pornography to teach her how to perform oral sex on him, which he made her do on multiple occasions. (Id., Doc. No. 23 at ¶ 35; Doc. No. 42 at 35-36, 44). A computer seized during the investigation of these charges contained over 440 videos and tens of thousands of images of child pornography, including numerous files depicting the sexual abuse and rape of infants, bestiality with a child, and other violent images. (Id., Doc. No. 23 at ¶ 38; Doc. No. 43 at 201: Sent. Tr. II) (noting the images were some of the most violent that the prosecutor had ever seen)).

         In December 2011, while the state charges were pending, Petitioner downloaded and installed a peer-to-peer file sharing software program called “Gigatribe.” (Id., Doc. No. 23 at ¶ 8). Users of Gigatribe can only share or download images from each other if they are invited into another person's group. (Id., Doc. No. 43 at 88-90). Petitioner used the name “Gigatribal007” on the site. (Id., Doc. No. 23 at ¶¶ 8-9). On December 11, 2011, an undercover FBI agent who was on Gigatribe asked Petitioner for his password so he could see the files that Petitioner had created on his Gigatribe account. (Id., Doc. No. 23 at ¶ 10). Petitioner provided the password, and the agent was able to view 1, 045 images of child pornography. (Id. at ¶ 11).

         Eight days later, an undercover FBI agent contacted Petitioner using Gigatribe and asked Petitioner to share his password. (Id. at ¶ 15). Petitioner did so, and the agent was able to view 828 images of child pornography. (Id. at ¶ 16). However, after Petitioner was unable to download any files from that agent, he deleted the agent from his list of friends, which prevented the agent from downloading any more files. (Id. at ¶ 37). Later that day, Petitioner again provided his password to an undercover FBI agent, who was able to view 2, 797 images of child pornography. (Id. at ¶¶ 19-20). The following day, Petitioner also provided an undercover FBI agent with the password to his folder containing images of child pornography. (Id. at ¶ 24). On December 23, 2011, an undercover agent with the FBI made a fifth contact with Petitioner, who again provided access to child pornography contained in his Gigatribe folder. (Id. at ¶¶ 29-30). Agents were able to download images from Petitioner's folder, some of which depicted sexual assaults on children. (Id. at ¶¶ 12-13, 21-22, 26-27, 31-32).

         Based on this information, agents obtained a search warrant for Petitioner's home. When agents executed the search warrant, Petitioner delayed opening the door, originally denied involvement in the offense, denied that he had used the name “Gigatribal 007, ” stated that the computer belonged to his niece, and attempted to blame his ex-wife. (Id., Doc. No. 43 at 197-98). During the search, officers found a laptop that had been hidden. (Id. at 198). It was running a wiping software program, and a good portion of the hard drive had already been erased by the time officers found it. (Id.). However, a forensic examination of the computer linked the computer to Petitioner and his use of Gigatribe. (Id.).

         B. Petitioner pleads guilty to transporting and possessing child pornography.

         A grand jury indicted Petitioner, charging him with three counts of aiding and abetting the transportation of child pornography, in violation of 18 U.S.C. §§ 2252A, 2, and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). (United States v. Brown, No. 3:14CR35 (W.D. N.C. Feb. 19, 2014), Doc. No. 1: Indictment). Petitioner retained attorneys C. Melissa Owen and Noell Tin to represent him. Petitioner moved to suppress the evidence but eventually withdrew his motion to suppress and agreed to plead guilty to a two-count Bill of Information charging him with transporting child pornography, in violation of 18 U.S.C. § 2252A(a)(1) (Count One), and possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count Two). (Id., Doc. No. 40; Crim. No. 3:14cr167, Doc. Nos. 1-2).

         As part of Petitioner's plea agreement, the Government agreed to dismiss the four charges in the Indictment. (Crim. No. 3:14cr167, Doc. No. 2 at ¶ 2). The parties jointly recommended to the Court that a base offense level of 22 applied, that Petitioner's plea was timely entered for purposes of acceptance of responsibility, that either party could argue in favor of other enhancements or reductions, and that either party could seek a departure or variance, but Petitioner would not request a sentence of less than 120 months of imprisonment. (Id. at ¶ 7). Petitioner agreed that he understood the maximum penalties associated with his offenses, including the possibility of a lifetime term of supervised release, as well as the fact that his sentence had not yet been determined and that “any estimate of the likely sentence is a prediction rather than a promise” (Id. at ¶¶ 4, 6). He conceded that he could be sentenced up to the statutory maximum and that he could not withdraw his plea as a result of the sentence imposed. (Id. at ¶ 6). Petitioner agreed to pay full restitution to all victims directly or indirectly harmed by his relevant conduct. (Id. at ¶ 8). Petitioner also stipulated that he had read and understood the factual basis and that, other than the facts to which he objected, it could be used to determine his guideline range and sentence. (Id. at ¶ 14). Additionally, Petitioner agreed to waive the right to challenge his conviction and sentence on direct appeal or in any post-conviction proceeding, except as to claims of ineffective assistance of counsel or prosecutorial misconduct. (Id. at ¶¶ 18-19).

         During the plea hearing, Petitioner affirmed that he had reviewed the charges with his attorneys and that he understood the charges, as well as the maximum penalties for the offenses. (Id., Doc. No. 41 at 10-11: Plea Tr.). Petitioner testified that he understood that the Court would not be able to determine his sentence until after a PSR had been prepared, that he could receive a sentence higher or lower than the guidelines sentence, that the Court could order restitution, and that he would not be able to withdraw his plea if his sentence was more severe than he expected. (Id. at 11-12). Petitioner affirmed that he was guilty of the charges. (Id. at 13-14). The Government reviewed the terms of the plea agreement, including Petitioner's agreement to waive the right to contest his conviction and sentence on direct appeal or in any post-conviction proceeding, and Petitioner testified that he understood and agreed to these terms. (Id. at 14-18).

         Petitioner affirmed that no one had threatened or intimidated him to plead guilty, that no one had made any “promises of leniency or a light sentence” to get him to plead guilty, that he had had sufficient time to discuss any possible defenses with his attorneys, and that he was satisfied with their services. (Id. at 19). The magistrate judge accepted Petitioner's guilty plea, finding that it was knowingly and voluntarily made. (Id. at 21).

         A probation officer prepared a PSR, recommending that Petitioner's base offense level was 22 and that he should receive: a two-level enhancement for material involving prepubescent minors; a five-level enhancement for distribution with the expectation of the receipt of a thing of value; a four-level enhancement for material that portrays sadistic or masochistic conduct or other depictions of violence; a five-level enhancement for engaging in a pattern of conduct involving the sexual abuse or exploitation of a minor; a two-level enhancement for use of a computer; and a five-level enhancement because the offense involved more than 600 images. (Id., Doc. No. 23 at ¶¶ 49-55). Allowing a three-level reduction for acceptance of responsibility, Petitioner's total offense level was 42. (Id. at ¶¶ 73-75). The probation officer found that Petitioner was in criminal history category I and that this placed his guideline range at 360 months to life. (Id. at ¶¶ 90, 116). Because the statutory maximum on Count One was 240 months and the statutory maximum on Count Two was 120 months, the maximum sentence that could be imposed was 360 months. See (Id. at ¶ 116). Petitioner objected to the PSR, arguing that the distribution and pattern-of-activity enhancements should not apply and moved for a downward variance to 120 months of imprisonment. (Id., Doc. No. 23 at 21: PSR addnm.; Doc. No. 27 at 14: Sent. Memo.).

         C. This Court varies downward after hearing evidence regarding Petitioner's conduct and psychosexual evaluation.

         At sentencing, Petitioner testified that the answers that he had given during the plea hearing were truthful and that he would give the same answers if asked those questions again. (Id., Doc. No. 42 at 4-5). Petitioner again admitted his guilt of the charges. (Id. at 5). This Court then affirmed the magistrate judge's finding that Petitioner entered his guilty plea knowingly and voluntarily. (Id.).

         To rebut Petitioner's argument that the pattern-of-activity enhancement should not apply, the Government presented evidence from the certified child forensic examiner, who had interviewed the child victim, and the nurse practitioner, who had examined the child victim. (Id. at 9-49). The Government also played a video of the child victim's interview. (Id. at 16-18).

         Joseph Zadik, a special agent with the FBI and the case agent on Petitioner's case, helped execute the search warrant at Petitioner's house. (Id. at 50-51). Zadik testified that when he spoke with Petitioner, Petitioner denied that child pornography would be found on the computer in his home, stated that he did not know who owned the computer where pornography was found, but then said that it was his niece's computer, and stated that he did not know if he had an account called “Gigatribal007.” (Id. at 52-54). Zadik also testified that Petitioner suggested that his wife could be responsible for the pornography. (Id. at 55). According to Zadik, Petitioner told him that he had attempted to deliver some information to the FBI in Charlotte about ten years earlier. (Id. at 51). Petitioner also indicated that he had attempted to contact the Charlotte Mecklenburg Police Department. (Id. at 52). Zadik investigated whether there were records of any contact between Petitioner and the FBI or CMPD, and found that Petitioner had not filed any substantive complaints. (Id.). This Court found that the child victim's testimony was credible and sustained the pattern-of-activity enhancement. (Id. at 84-85).

         Petitioner's stepmother testified that Petitioner had had an altercation with someone who was looking at child pornography at a library, that Petitioner had said that he would try to stop this type of thing, and that on another occasion he had mentioned that he was going to go to the FBI to see if they could help him. (Id. at 56-58). Petitioner's stepmother testified that her phone records for Petitioner's phone showed that a four-minute and an approximately eight-minute call had been placed to a CMPD number. (Id., Doc. No. 43 at 188-89: Sent. Tr. II)). The Government checked CMPD's records, but there was no record of Petitioner making any reports. (Id. at 190).

         Agent Zadik testified that the Charlotte office had received multiple leads from other field offices regarding Gigatribal007. (Id., Doc. No. 42 at 95). The Government played recordings of agent interactions with Gigatribal007 on December 19, 2011, and December 23, 2011. (Id. at 96-97, 101-02). John Letterhos, a special agent with the FBI, testified as to interactions with Gigatribal007 in which Petitioner exchanged the password to his files so that an agent could download them and in which Petitioner asked for the agent's password to see his images and attempted to download files. (Id. at 107-12). The recording and testimony showed that Gigatribal007 disappeared from the agent's contact list after Petitioner attempted to download a file from the agent titled “torianal-8.jpg, ” but was unable to download anything. (Id. at 98-99, 112). This Court sustained Petitioner's objection to the five-level enhancement for distribution with the expectation of receipt and instead applied the two-level enhancement for distribution. (Id. at 121-22).

         At the continuation of the sentencing hearing, Elizabeth Griffin, an expert in sexual offense behavior, testified regarding her evaluation of Petitioner. (Id., Doc. No. 43 at 133, 139). She testified that she provisionally diagnosed Petitioner with schizoaffective disorder with bipolar subtype, including significant delusions and disorganized speech. (Id. at 143-45). Griffin testified that Petitioner's representation that he was trying to stop child pornography was consistent with his “obsessional thinking.” (Id. at 148). Based on Petitioner's answers to one of the tests that Griffin administered, she provisionally diagnosed him with histrionic personality disorder with narcissistic features. (Id. at 175). She did not believe that Petitioner met the criteria for pedophiliac disorder; however, she testified that often times the motivation to molest is not related to pedophilic interests. (Id. at 149, 154-55). She assessed Petitioner to have a low to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.