United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge
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.
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
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
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.
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.
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.
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.
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. 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).
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.