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United States v. Huyck

United States District Court, D. Nebraska

August 7, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL HUYCK Defendant.

          MEMORANDUM AND ORDER

          JOSEPH F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the court on defendant's motion to vacate under 28 U.S.C. § 2255. Filing No. 594 in 8:13CR107 and Filing No. 93 in 8:15CR44. The court initially reviewed this case and ordered the government to file an answer addressing defendant's ineffective counsel claims. Filing No. 607 in 8:13CR107 and Filing No. 95 in 8:15CR44. The government filed its answer. Filing No. 611 in 8:13CR107 and Filing No. 98 in 8:15CR44.

         I. Procedural History

         Following a trial, the jury convicted defendant for the receipt of child pornography and access with intent to view child pornography[1]. Filing No. 511 in 8:13CR107, Judgment and Filing No. 64 in 8:15CR44, Judgment. The court sentenced the defendant to concurrent terms of imprisonment of 36 months and 72 months on the conviction in 8:13CR107, to run concurrent with the 36-month term sentence in the 8:15CR44 conviction[2]. Id. The Eighth Circuit Court of Appeals affirmed his conviction and sentence. Filing No. 589 in 8:13CR107 and Filing No. 91 in 8:15CR44.

         II. Facts

         This case arises from the Federal Bureau of Investigation's (“FBI's”) sting operation consisting of a website hosted in Nebraska. The websites' users operated anonymously on the Tor network. Throughout the investigation, the FBI utilized a court-authorized Network Investigative Technique (NIT) to identify the anonymous users, such as Huyck, on Tor.

         The Indictment in 8:13CR107 identified the defendants as “John Does” using specific Internet Protocol (“IP”) address at an exact date and time to access Pedoboard. Huyck plead not guilty to all counts of the Indictment in 8:13CR107.

         Huyck filed motions to suppress evidence from the FBI controlled websites and challenged the residential warrant as stale. The district court denied the motions and overruled the objection to the warrant. Huyck also requested in his motions in limine, the exclusion of trial exhibits which consisted of notes, text documents, and Internet bookmarks found on devices seized from his residence. Prior to his filings, the defendant waived his right to a continuance for case 8:15CV44. The two cases against Huyck, 8:13CR107 and 8:15CR44, were consolidated and were ready to proceed to trial on March 2, 2015.

         The jury trial commenced on March 2, 2015. Among the government's witnesses was an expert witness who works as a forensic computer analyst. The witness testified to the contents of the digital devices found in Huyck's residence. The defendant's attorney cross examined that witness. The defendant also called his own expert witness to testify about the evidence. The government was given the opportunity to cross examine this witness. Prior to submitting the case to the jury, the district court granted Huyck's motion for a judgment of acquittal on Count III of 8:15CR44. The acquitted charge pertained to a single image of child pornography found on one of the defendant's devices. The jury found Huyck guilty on Counts I and II of the Second Superseding Indictment in 8:13CR107 and Counts I and II of the Indictment in 8:15CR44. The court did not accept the jury's verdict on Count I of the Indictment in 8:15CR44, finding the charge inconsistent with the jury's guilty verdict on Count II.

         III. Defendant's §2255 Motion

         In his § 2255 motion, the defendant alleges he was denied effective assistance of counsel because his attorney: 1) failed to investigate exculpatory evidence and witnesses; 2) failed to allow Huyck to participate in his own defense and to testify on his own behalf; and 3) failed to advise Huyck of, or exercising, his right to a continuance when arraignment on new charges was less than two weeks before trial began. He also contends that the accumulation of errors in the case violated his right to due process.

         IV. Law

         Ineffective assistance of counsel issues are appropriately raised in collateral proceedings. United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003). “The right to counsel is a fundamental right of criminal defendants; it assures the fairness, and thus the legitimacy, of our adversary process.” Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). The right to counsel includes the right to reasonably effective counsel. Strickland v. Washington, 466 U.S. 668, 694 (1984). The defendant must show that there is a reasonable probability that the result of his proceedings would have been different if his lawyer had competently performed. King v. United States, 595 F.3d 844, 852 (8th Cir. 2010). To establish prejudice under Strickland, a petitioner must “demonstrate that there is a reasonable probability that, but for counsel's claimed unprofessional errors, the result of the proceeding would have been different.” Christenson v. Ault, 598 F.3d 990, 996 (8th Cir. 2010). Prejudice in a claim of failure to investigate exists when a defendant shows what evidence would have been revealed by diligent investigation and that further evidence would have made a different outcome to the trial a reasonable probability. Palmer v. Clarke, 408 F.3d 423, 445 (8th Cir. 2005). “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” United States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006).

         The court recognizes a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. (citations omitted). A criminal defendant has the right to testify on his own behalf and this right can only be waived by the defendant himself. Foster v. Delo, 11 F.3d 1451 (8th Cir. 1993). In order to prove prejudice to satisfy Strickland, the defendant must prove that ...


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