United States District Court, E.D. Washington
ORDER DENYING § 2255 MOTION
O. RICE CHIEF UNITED STATES DISTRICT JUDGE.
THE COURT is Defendant's Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 170).
Defendant is represented by Matthew Campbell of the Federal
Defenders of Eastern Washington and Idaho. Assistant United
States Attorney Allyson Edwards now represents the United
States. The Court-having reviewed the motion, the response
and reply, and the record and files therein-is fully
informed. For the reasons discussed below, the Court denies
to Rule 8(a) of the Rules Governing Section 2255 Proceedings
in the United States District Courts, this Court determines
that no evidentiary hearing is warranted. The transcripts of
the proceedings and sworn testimony provided at trial resolve
Whether the introduction of a child victim's prior
consistent statement that Defendant committed
under-the-clothes touching constitutes constitutionally
ineffective assistance of counsel when Defendant also
confessed to under-the-clothes touching of that child.
Whether counsel provided constitutionally ineffective
assistance on direct appeal by failing to argue that the
exclusion of alleged exculpatory statements Defendant made
during an interview with law enforcement violated his due
process rights such that other portions of his confession
should have been considered in fairness, not just the
25, 2013, the grand jury returned a Second Superseding
Indictment which charged the Defendant with three counts of
Aggravated Sexual Abuse of a Minor in violation of 18 U.S.C.
§ 2241(c) (skin-to-skin contact) (Counts 1, 2 and 4),
and two counts of Abusive Sexual Contact with a Minor in
violation of 18 U.S.C. § 2244(a)(5)
(through-the-clothing contact) (Counts 3 and 5). ECF No. 68.
These charges encompass three different victims under the age
of twelve, on five separate occasions.
Government filed a motion in limine to preclude Defendant
from eliciting on cross-examination from the agents that
interviewed him, self-serving hearsay statements of the
Defendant. ECF No. 82. The Government argued that while the
Defendant's statements are not hearsay when offered by
the Government as admissions by party opponent pursuant to
Fed.R.Evid. 801(d)(2)(A), such statements, when offered by
the Defendant for their truth, are inadmissible hearsay
pursuant to Fed.R.Evid. 801(c). The Government did not
identify any of these statements it sought to preclude.
without any reference to any particular statement or
exculpatory evidence, at the pretrial conference
Defendant's counsel argued that:
“the failure to introduce those statements would
somehow or other suggest to the jury that the defendant in
some form or other doesn't have any explanation for his
behavior here. And it would be incomplete to allow the
government to only introduce those statements that are
negative while allowing -- and not allowing the introduction
of those statements about my wife came into the house when
* * * And certainly, one of these allegations involves the
claim that he was -- the girl did not have clothes on or was
not dressed at the time that these occurrences occurred. The
wife, when she was interviewed regarding that, said that she
had come home. She doesn't remember any occasion when
there were children in the house that were not dressed or
were disrobed or something of that nature. And the defendant,
I think, indicated that - I think the police made some sort
of an accusation that - that the children were not dressed
when the --when the woman came -- the mom came -- the wife
came home. And his statement indicated that he -- that she
was dressed and that that did not happen, which is supported
by the statement that the wife made to law enforcement when
they went and interviewed her and - suggesting that these are
merely self-serving statements and not statements of what his
recollection of the events is, although I have to say, Your
Honor, he made a lot of very negative statements.
The statements that he made that were helpful to him in this
case are not that many or not that great. But to not allow
the introduction of the complete interview I think would not
be a complete and fair expression of what occurred for the
jury and, indeed, might deny the defendant his due
process rights as to the interview that occurred in this
151 at 81-82 (emphasis added). This Court ruled:
The defendant does have the option -- he can call his wife
and he can call, if he so elects, to testify himself. So it
isn't denial of his due process rights. It only assures
that those statements that are made are sworn to by
individuals capable of testifying and being subject to
cross-examination. And so it's not a denial of due
process to require him to put on witnesses to testify to
that. So I will grant ECF No. 82, the motion in limine
brought by the government.
151 at 83.
September 16, 2013, the jury trial commenced. At trial, FBI
Special Agent Jason Benedetti testified about Defendant's
admissions made during an interview with law enforcement on
January 17, 2013. Defendant admitted being sexually attracted
to children for as long as he could remember. ECF No. 152 at
51 (sealed transcript). With respect to victim E.A.,
Defendant admitted touching her a total of six times in a
sexual way. Id. Defendant described an incident
occurring in about July 2012 when he was driving E.A. home
from his house (Count 1). Defendant asked E.A. to take her
pants down and he reached over and rubbed her vaginal area
with his hand and then asked her to take her hand and rub his
penis over his jeans - which she did. Id. at 56.
Defendant described another incident when he was alone with
E.A. in the living room of his home and he asked E.A. to take
her pants down, which she did and he then rubbed her vaginal
area, skin-to-skin contact. Id. at 54-55 (Count 2).
Defendant demonstrated how he used his right hand to
accomplish this. Id. at 55.
also admitted that when K.A. came over, he would touch her
but then Defendant immediately stated that he never touched
her, he just liked to look at her. Id. at 58.
also admitted to touching N.B. in a sexual way. Id.
at 70. He described an incident when he was repairing her
bike, found her standing in his kitchen looking out the
window, away from him. Id. He came up behind her,
reached his hands around her and touched her vaginal area
over her clothes. Id. She turned around with a mad
look on her face and he backed off. Id.
cross-examination, it was established that there was no
recording of Defendant's interview. Id. at 106.
The cross examination by the defense challenged the bias of
tribal members, id. at 86-90, the opportunity of the
girls to fabricate and to talk with each other about the
investigation, id. at 89, the negative interactions
between Defendant's family and one of the victim's
father, id. at 91, and established that the
Defendant had been cooperative throughout the interview,
id. at 108. No. exculpatory or other statements of
the Defendant were sought to be introduced.
testified at trial that she was then 10-years old. ECF No.
128 at 6 (sealed transcript). E.A. explained that she used
the words “private” for the circle she placed on
the genitals of a drawing of a nude female child and
“bottom” for the circle she placed on the drawing
of the backside of a nude female child. Id. at 22.
She testified that the Defendant touched her “privates
or bottom” three times on the top of her clothes.
Id. at 26-27. When asked what part of her body was
touched, E.A. said she did not want to talk about it.
Id. at 27. She described a time, when it was cold,
that Defendant was driving her home and touched her privates.
Id. at 28-29 (Count 1). E.A. drew on Exhibit 15 the
place Defendant touched her, circling the genital area on a
drawing of a nude female child. She testified that he touched
her two other times in his truck, too. Id. at 29.
testified at trial that she was then 12-years old. ECF No.
153 at 18 (sealed transcript). She testified that when she
was eight-years old the Defendant touched her butt.
Id. at 29-30 (Count 3). N.B. testified that she was
sitting on Defendant's couch while wearing her swimsuit
while her friend was using the Defendant's ...