United States District Court, W.D. North Carolina, Charlotte Division
COGBURN JR UNITED STATES DISTRICT JUDGE
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).
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.
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)).
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)).
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).
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).
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.
Petitioner pleads guilty to transporting and possessing child
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).
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).
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).
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.).
This Court varies downward after hearing evidence regarding
Petitioner's conduct and psychosexual
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.
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).
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).
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
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).
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 moderate
risk of recidivism, but noted that it was critical that he
obtain mental health treatment. (Id. at 156, 160).
Griffin testified that child pornography offenders who commit
a sexual contact offense are significantly more likely to
re-offend. (Id. at 181).
allocuted and continued to maintain that he had brought
information to the FBI and that he had not sexually abused
the child victim. (Id. at 233-38). This Court varied
down by two levels, citing the defendant's mental health
issues and his use of a computer, which reduced the guideline
range to 210-62 months of imprisonment. (Id. at
242-43). This Court sentenced Petitioner to 240 months of
imprisonment on Count One and to 120 months of imprisonment
on Count Two, with the sentences to run concurrently.
(Id.). The Court noted that it was not sentencing
Petitioner at the low end of the guidelines due to the
seriousness of the crime, the large number of “sick
images, dangerous scary images” that Petitioner had
downloaded, and the fact that Petitioner had used some of
these images to help him molest ...