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United States v. Petersen

United States District Court, D. Montana, Missoula Division

July 12, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
JOSHUA PETERSEN, Defendant/Movant.

          ORDER

          DONALD W. MOLLOY, DISTRICT JUDGE.

         This case comes before the Court on Defendant/Movant Joshua Petersen's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. (Doc. 824.) Petersen is a federal prisoner and is represented by retained counsel.

         I. Preliminary Review

         The motion is subject to preliminary review before the United States is required to respond. The Court must determine whether "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. A petitioner "who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review." Calderon v. U.S. Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996) (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). But "it is the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer." Advisory Comm. Note (1976), Rule 4, Rules Governing § 2254 Cases, cited in Advisory Comm. Note (1976), Rule 4, Rules Governing § 2255 Proceedings.

         II. Background

         A. Procedural Background

         In November 2013, a grand jury indicted Petersen, along with 13 codefendants, of one count of engaging in a child exploitation enterprise, a violation of 18 U.S.C. § 2252A(g) (Count 1), and one count of conspiring to advertise child pornography, a violation of 18 U.S.C. § 2251(d) and (e) (Count 2). (Doc. 129.) The allegations stemmed from the defendants' activities on a child pornography bulletin board, known as the Kingdom of Future Dreams ("KOFD"). From March 2014 to October 2014, all but one of Petersen's codefendants entered plea agreements with the government and received sentences ranging from 180 to 220 months. On June 5, 2014, a Third Superseding Indictment was filed, charging the same two counts outlined above against only Petersen and one other codefendant, Steven Grovo. (Doc. 477.) A bench trial was held in October 2014, (see Min. Entries, Docs. 604, 606, 609; Trial Trs., Docs. 773, 774, 775), and both Petersen and Grovo were found guilty of both counts charged, (see Min. Entry, Doc. 609; Trial Tr. 553).

         A presentence report was prepared. Petersen's advisory guideline range was 324 to 405 months. Count 1 carried a 20-year mandatory minimum prison sentence upon conviction. Count 2 carried a 15-year mandatory minimum. On January 22, 2015, Petersen was sentenced to 240 months on both Counts I and II, to run concurrently, with fifteen years of concurrent supervision on each count to follow. (See Docs. 741, 745.) Petersen was also held joint and severally liable with his co-defendants for $29, 859.00 in restitution, now paid. (Judg., Doc. 745; Order, Doc. 694; Satisfaction of Judg., Doc. 816.)

         Petersen appealed, (Notice, Doc. 756), and both his conviction and sentence were affirmed, [1] (Docs. 806 (Op.) & 807 (Mem. Dispo.)). Petersen's conviction became final December 27, 2016. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his § 2255 motion on August 25, 2017. 28 U.S.C. § 2255(f)(1). With the exception of the initial proceedings, Petersen had retained counsel at every stage of the case.

         B. Trial

         Petersen went to trial on two counts: one count of engaging in a child exploitation enterprise, a violation of 18 U.S.C. § 2252A(g) (Count 1), and one count of conspiring to advertise child pornography, a violation of 18 U.S.C. § 2251(d) and (e) (Count 2). (See Doc. 477.) The elements of Count 1 are that: (1) the defendant knowingly distributed, received or accessed with intent to view child pornography on three or more separate incidents; (2) the defendant committed the offenses in concert with three or more other persons; and (3) the distribution, receipt or accessing with intent to view child pornography involved more than one victim. 18 U.S.C § 2252A(g). To prove the offense charged at Count 2, the government was required to show that: (1) beginning on or about November 6, 2009 and ending on or about March 19, 2012, there was an agreement between two or more persons to commit the crime of advertising child pornography and (2) the defendant became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it. See Model Crim. Jury Instr. 9th Cir. (2010 Ed.), Instr. No. 8.20: Conspiracy - Elements.

         The government called eleven witnesses at trial, two codefendants-Robert Krise and Philip Morris-and nine law enforcement officers. Law enforcement initially linked Petersen to KOFD after executing a search warrant on the residence of Paul Wencewicz, the Board's creator, in Poison, Montana. (Trial Tr. 13.) Wencewicz authorized law enforcement to take over his account-user name Dreamer-to access the Board, allowing law enforcement to then identify other members, including Petersen. (Trial Tr. 15.) After receiving a search warrant for Petersen's home in Arizona, law enforcement uncovered three computers, three portable hard drives, three internal hard drives, one flash card, one thumb drive, and two cell phones. (Trial Tr. 18, 77-79; Exs. 9, 10, 11.) Agents also uncovered compact discs containing child pornography that Petersen admitted were his. (Trial Tr. 68; Ex. 12.) Law enforcement found files on Petersen's computer connected to KOFD, (Trial Tr. 439; see also Trial Tr. 469 (uncovering 869 matches when compared contents with 58, 000 images found on KOFD)), and were also able to connect the username "aqualung" with web history on Petersen's computer, (Trial Tr. 437). Trial testimony established that Petersen was active on the Board under the username "aqualung." (See Trial Tr. 17.)

         Investigation into KOFD revealed 28, 000 threads and over 300, 000 images. (Trial Tr. 253.) KOFD had approximately 40 - 45 members with five possible status levels: Castle Dweller, Castle Resident, Legionnaire, Moderator, and Administrator. (Trial Tr. 101, 103.) Castle Dwellers had the lowest level of access while Moderators and Administrators had the highest. (Id.) Based on aqualung's "user profile," Petersen was a Castle Resident who first registered with the Board on November 10, 2009 and last accessed it on March 12, 2012. (See Ex. 122.) Aqualung made over 400 posts on KOFD across a number of forums. (See Ex. 293 (listing number of posts by forum).)

         There was no evidence that Petersen had personally met any of the other KOFD members or that they were aware of his identity. (See Trial Tr. 102, 124, 126, 414.) However, Petersen's codefendants testified at trial that they were familiar with the user aqualung on KOFD, (Trial Tr. 101 (Krise), 393 (Morris)), and that child pornography was present on the upper levels of the Board, including full nudes, "slip" images, and "see thru" images, (see Trial Tr. 105-07 (Krise)). Members could create threads, post messages or other content in reply to an existing posting, or view images without posting anything. (Trial Tr. 111 (Krise); 162 (expert testimony that "Bottom Dwellers" portion of the ...


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