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United States v. Welch

United States District Court, D. Nebraska

May 24, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSHUA WELCH, Defendant.

          MEMORANDUM AND ORDER

          JOSEPH F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the court on the defendant's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, Filing No. 500. The defendant challenges the government's use of a Network Investigative Technique (“NIT”) warrant to monitor and intercept internet traffic of child pornography.[1]

         I. FACTS

         Welch was charged in Count I of a two-count Indictment with receipt and attempted receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1), and in Count II with knowingly accessing a computer disk or other material with intent to view child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Filing No. 1. Welch was one of many out-of-state defendants charged with receiving child pornography through the Tor network from servers housing sites that contained child pornography (PedoBook, Pedoboard, and TB2) in Nebraska. See, e.g., United States v. Cottom, 679 Fed.Appx. 518 (8th Cir. 2017); United States v. Huyck, 849 F.3d 432 (8th Cir. 2017); United States v. Laurita, 821 F.3d 1020 (8th Cir. 2016). The facts are set forth in the Eighth Circuit Court of Appeals' decision in Welch's direct appeal and need not be repeated here, except as necessary to the court's opinion. See United States v. Welch, 811 F.3d 275, 280-81 (8th Cir. 2016), cert. denied, 136 S.Ct. 2476 (June 13 2016).

         Before trial, Welch filed various pre-trial motions, but did not challenge venue. He filed a motion to suppress the evidence found in the NIT warrant and his motion was consolidated with those of other defendants allegedly using internet pornography sites such as PedoBook, Pedoboard, and TB2. Welch alleged violations of Federal Rule of Criminal Procedure 41 and denial of his Fourth Amendment rights as the result of the government's use of a court-authorized NIT. After a hearing, the magistrate judge recommended that this court deny the Welch's motion to suppress. Filing No. 203. Welch objected to the Magistrate Judge's findings. Filing No. 220. After de novo review, this court denied Welch's objection and denied the motion to suppress. Filing No. 241.

         Welch proceeded to trial and the jury returned verdicts of guilty as to each count of the Indictment. Filing No. 327. Welch was sentenced to two concurrent ten-year terms of imprisonment. Filing No. 397.

         On appeal, Welch argued that his notice of the NIT warrant was insufficient under Federal Rule of Criminal Procedure 41. The Eighth Circuit Court of Appeals (“Eighth Circuit”) affirmed Welch's conviction. Welch, 811 F.3d at 280-81. Assuming without deciding that Rule 41 applied to the NIT warrant, the Eighth Circuit agreed that the notice given to Welch did not comply with the Rule, but found that such a procedural violation is not per se an unreasonable search in violation of the Fourth Amendment. Id. at 280. In order to show a Fourth Amendment violation, the Eighth Circuit stated that Welch must show either prejudice or reckless disregard of proper procedure. Id. at 280-81. The Court of Appeals found Welch had not made that showing and accordingly found the delayed notice of the NIT warrant did not violate the Fourth Amendment and did not require suppression of evidence. Id. at 281.

         Welch raises three grounds for relief in his § 2255 motion. First, he claims venue was improper in the District of Nebraska. Second, he asserts that the NIT warrant issued by a Magistrate Judge in the District of Nebraska was void ab initio because the Magistrate Judge lacked jurisdiction to issue the warrant. Third, Welch claims that his prosecution and sentence are illegal because the Magistrate Judge was without authority to issue the NIT warrant. He also argues that the violations are of constitutional magnitude and alleges his counsel was ineffective in failing to raise any of those grounds in his appeal.

         In response, the government argues that Welch's claims are procedurally barred because he did not raise them in district court or on appeal. It also argues that Welch's claim of ineffectiveness of counsel on the venue issue fails because the facts developed at trial clearly establish that venue in Nebraska was proper. The government denies that the NIT warrant was void ab initio and contends the Magistrate Judge had authority to issue the warrant. It also argues that the warrant satisfies the Fourth Amendment and contends any violation of Federal Rule of Criminal Procedure 41 is not of constitutional magnitude.[2] Last, the government argues that if there is any constitutional violation, the good faith exception found in United States v. Leon, 468 U.S. 897, 906 (1984), would apply. The government also contends that Welch is not entitled to a hearing on his § 2255 motion.

         II. LAW

         A. 28 U.S.C. § 2255

         A federal prisoner who seeks relief from a conviction and sentence under § 2255 must establish a violation that constitutes “‘a fundamental defect which inherently results in a complete miscarriage of justice.'” United States v. Gomez, 326 F.3d 971, 974 (8th Cir. 2003) (quoting United States v. Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)). Section 2255 is intended to provide federal prisoners a remedy for jurisdictional or constitutional errors. Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011). It is not intended to be a substitute for appeal or a vehicle for relitigating matters decided on appeal. See Bousley v. United States, 523 U.S. 614, 621 (1998); Davis v. United States, 417 U.S. 333, 346-47 (1974).

         Claims not raised on direct appeal are procedurally defaulted and may not be raised under § 2255 unless a petitioner can demonstrate (1) cause for the default and actual prejudice or (2) actual innocence. United States v. Moss, 252 F.3d 993, 1000 (8th Cir. 2001). To establish “cause” for a default, “the prisoner must ‘show that some objective factor external to the defense impeded counsel's efforts to comply with [a] procedural rule.'” Davila v. Davis, 137 S.Ct. 2058, 2065 (2017) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). A factor is external to the defense if it cannot fairly be attributed to the prisoner. Id. One such factor is attorney error. Id. (stating “[i]t has long been the rule that attorney error is an objective external factor providing cause for excusing a procedural default only if that error amounted to a deprivation of the constitutional right to counsel.”). An error amounting to constitutionally ineffective assistance is “imputed to the State” and is therefore external to the prisoner. Id.

         A court may dismiss a claim without an evidentiary hearing “if the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is ...


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