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United States v. Cottom

United States District Court, D. Nebraska

August 31, 2018

KIRK COTTOM Defendant.


          Joseph F. Bataillon Senior United States District Judge

         This matter is before the Court on the defendant's motion to vacate under 28 U.S.C. § 2255. Filing No. 302 in 8:13CR108 and Filing No. 43 in 8:15CR239. The Court initially reviewed this case and ordered the government to file an answer addressing defendant's constitutional claims. Filing No. 303 in 8:13CR108 and Filing No. 44 in 8:15CR239. The government filed its answer. Filing No. 308 in 8:13CR108 and Filing No. 48 in 8:15CR239.

         I. BACKGROUND

         Cottom, along with numerous others, was indicted for child pornography offenses in the United States District Court for the District of Nebraska after an FBI investigation of child pornography web servers based in Bellevue, Nebraska. In March 2013, he was charged with receiving and attempting to receive child pornography (Count I) in violation of Title 18 U.S.C. § 2252A(a)(2) on November 19, 2012, and with knowingly accessing with the intent to view child pornography (Count II) in violation of Title 18 U.S.C. § 2252A(a)(5) on November 19, 2012. In April 2015, the defendant was also indicted in the Western District of New York on charges of receipt of child pornography (Count I) in violation of Title 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1), and possession of child pornography (Counts II-IV). That case was transferred to the District of Nebraska on July 31, 2015. See No. 8:15CR239.

         This is a case involving the government's use of a Network Investigative Technique (“NIT”) warrant to monitor and intercept internet traffic of child pornography. The defendant moved to suppress the evidence from the NIT search, alleging he was not provided notice. After an evidentiary hearing, the Magistrate Judge recommended that the Motion to Suppress be denied. Filing No. 148 in 8:13CR108, Findings and Recommendation at 7-8. Cottom objected to the Magistrate Judge's recommendation, but the Court overruled the objection and accepted the Magistrate Judge's Findings and Recommendations. Filing No. 155 in 8:13CR108.

         Cottom entered a conditional plea of guilty to the charge of accessing with intent to view pornography (Count II) in 8:13CR108 and to the charge of receiving child pornography (Count I) in 8:15CR239, reserving his right to appeal the Court's suppression ruling. Cottom was sentenced to 72 months of imprisonment. He later moved to withdraw his guilty plea and the Court denied the motion.

         Cottom appealed to the United States Court of Appeals for the Eighth Circuit (“Eighth Circuit”). Opinion; United States v. Cottom, 679 Fed.Appx. 518, 520 (8th Cir. 2017). On appeal, he challenged the government's delayed notice following the execution of the NIT warrant, but not the Magistrate Judge's authority to issue the warrant. Id.The Eighth Circuit affirmed the district court's judgment. Id.

         In his brief in support of his § 2255 motion, the defendant describes the prosecutors as the “Keith Becker cabal” and refers to defense counsel as “shills.” Filing No. 305 in 8:13CR108 and Filing No. 45 in 8:15CR239. The brief contains unsupported assertions that the prosecutor's “malicious prosecution scheme” was based on perjured testimony by special agents and expert witnesses before the grand jury.

         Cottom alleges that Nebraska counsel Joseph Gross and Joseph Howard and New York counsel Steven Slawinski were ineffective in that each failed to communicate with and maintain loyalty to him, ignored his requests, and failed to investigate all avenues of defense. He further contends that Howard and Slawinski coerced him to enter into a plea agreement, and argues that had his counsel been effective, the result of the case would have been different. The government responds that counsel was not ineffective in failing to follow the defendant's requests because the requests were meritless; and it also argues that the defendant was not prejudiced by any alleged failures to communicate.

         The defendant also alleges prosecutorial misconduct. He argues that he was indicted in New York as part of a scheme to acquire more evidence to prove the Nebraska charges. He further alleges misconduct in the prosecutor's loss of the source code of the NIT, which, Cottom contends, would have been favorable to the defendant.[1] He argues that the source code is material to his innocence or guilt and he is therefore prejudiced by the inability to obtain it. The defendant also argues that the prosecutor suborned perjury by witnesses. In response, the government argues that the defendant has failed to point to evidence that shows “that the federal prosecutorial policy ‘had a discriminatory effect and that it was motivated by a discriminatory purpose'” as required by United States v. Armstrong, 517 U.S. 456, 465 (1996) (quoting Wayte v. United States, 470 U.S. 598, 608 (1985).

         Finally, the defendant argues that his Fourth Amendment right to be free from an unreasonable search and seizure was violated because the United States Magistrate Judge in the District of Nebraska did not have the authority to issue the warrant permitting use of an NIT. The government relies on this Court's decision in the case of another defendant charged in the same investigation for the proposition that the NIT warrant was properly authorized under Federal Rule of Criminal Procedure 41(b)(1)(4). See United States v. Laurita, No. 8:13CR107, 2016 WL 4179365 (D. Neb. Aug. 5, 2016). Also, it argues that suppression of the evidence, even if obtained unconstitutionally, is inappropriate in any event because the evidence falls within the Leon good faith exclusion.


         A. Law

         1. ...

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