Monday, July 15, 2019

No 2255 Relief in CP Case Based on “Lascivious Exhibition”


US v. Courtade: Courtade was charged with producing and possessing child pornography based on a 24-minute video of his 14-year-old stepdaughter taking a shower. The point of the video was allegedly so that Courtade could test whether the camera was waterproof. During the video her “breasts and genitals are visible at various points.” The Government offered a plea agreement in which Courtade would plead guilty to possession of child pornography and face a 0-10 year statutory sentencing range and it would dismiss the production count, which carried a 15-30 year statutory range. While the offer was pending Courtade filed a motion to dismiss, arguing that the video did not show any “sexually explicit conduct” because it did not contain “lascivious exhibition of the anus, genitals, or pubic area of any person.” Defense counsel eventually changed his mind on the merits of the motion. While the Fourth Circuit had not yet waded into the split of authority on how to define “lascivious exhibition” (particularly the issue of whether it is an objected of subjective standard), other courts had done so in a way that “caused [him] some greater concern” and led him to conclude that the motion to dismiss “was essentially a no go.” Counsel advised Courtade to take the plea bargain, which he did. The district court sentenced him to 10 years (the advisory Guideline range was 210-262 months).

Courtade then filed a 2255 motion arguing that the conduct he pleaded guilty to was not a federal offense because it did not involve sexually explicit conduct, that his plea was not made knowingly and intelligently, that the district court failed to get a proper factual basis, and that Courtade received ineffective assistance of counsel by not consulting him about an appeal. Attached to the motion as an exhibit was a complete transcript of the video, in which Courtade tells his stepdaughter that the camera is off and won’t record her and that if she helps Courtade he will take her for ice cream after her shower. The district court concluded that the first three grounds for relief had been procedurally defaulted because he did not appeal his original conviction and counsel was not ineffective about not consulting Courtade about an appeal. The district court denied the 2255 motion.


The Fourth Circuit granted a certificate of appealability on two issues and eventually affirmed the dismissal of Courtade’s 2255 motion. The first issue was whether Courtade was actually innocent of possession of child pornography. The court recognized the split over the application of the “lascivious exhibition” test and the so-called Dost factors, but ultimately did not “venture into this thicket . . . because we can dispose of this case based on the objective characteristics of the video alone,” which the court said were “the images and audio contained within its four corners.” The video includes “extensive nudity” that is “entirely the product of an adult man’s deceit, manipulation, and direction.” The court noted that Courtade lied about the purpose of the enterprise and the fact that the camera was not recording, in addition to directing the stepdaughter “on how to hold and position it, ensuring that the camera records her nude body.” In addition, he promised her a reward for participating. The second issue was whether Courtade’s counsel was ineffective for failing to consult with him about an appeal. The court held that Courtade could not show ineffective assistance, as he could not show that “a rational defendant in his position would have wanted to appeal” given that he “pleaded guilty and executed a broad appellate waiver, and he otherwise indicated a desire for the proceedings to end.”

NC Robbery Is “Violent Felony” Under ACCA Force Clause


US v. Dinkins: Dinkins pleaded guilty to being a felon in possession of a firearm in 2009 and was sentenced under the Armed Career Criminal Act to 252 months in prison. After the Supreme Court decided Johnson in 2015, Dinkins filed a 2255 motion arguing that two of his prior convictions, for robbery and accessory before the fact of armed robbery in North Carolina, no longer qualified as ACCA predicates. The district court dismissed the motion on procedural grounds.

The Fourth Circuit granted a certificate of appealability and, after addressing Dinkins’s substantive arguments, affirmed the denial of his 2255 motion. Dinkins’s argument was that robbery and armed robbery (to which he was an accessory) in North Carolina do not require the kind of “violent force” it takes to be an ACCA predicate. That was based primarily on the Fourth Circuit’s 2016 decision in Gardner, but the court concluded that the Supreme Court’s intervening decision in Stokeling effectively overruled Gardner. Taking from Stokeling that the primary issue with robbery is whether it requires the defendant physically overcome the victim’s resistance, however slight, the court held that North Carolina robbery (and armed robbery) does require that as an element. Indeed, the court held that “North Carolina’s definition of common law robbery is materially indistinguishable from the Florida robbery statute that the Court in Stokeling held was a violent felony.” The same conclusion applied to Dinkins’s prior conviction for accessory before the fact to armed robbery because “the elements of the substantive crime are incorporated into the North Carolina crime of being an accessory before the fact.” That distinguishes the offense from conspiracy, which does not require a completed substantive offense.