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United States v. Grovo

United States District Court, D. Montana, Missoula Division

July 12, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
STEVEN GROVO, Defendant/Movant.

          ORDER NUNC PRO TUNC

          DONALD W MOLLOY, DISTRICT JUDGE

         This case comes before the Court on Defendant/Movant Steven Grovo's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. (Doc. 826.) Grovo is a federal prisoner proceeding pro se.

         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 Grovo, 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 Grovo'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 Grovo and one other codefendant, Joshua Petersen. (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 Grovo and Petersen were found guilty of both counts charged, (see Min. Entry, Doc. 609; Trial Tr. 553).

         A presentence report was prepared. Grovo's advisory guideline range was 360 months to life. Count 1 carried a 20-year mandatory minimum prison sentence upon conviction. Count 2 carried a 15-year mandatory minimum. On January 22, 2015, Grovo was sentenced to 360 months on both counts, to run concurrently, followed by a lifetime term of supervision on each count. (See Docs. 740, 742.) Grovo was also held joint and severally liable with his co-defendants for $29, 859.00 in restitution, now paid. (Judg., Doc. 742; Order, Doc. 694; Satisfaction of Judg., Doc. 816.)

         Grovo appealed, (Notice, Doc. 744), and both his conviction and sentence were affirmed; the amount of restitution was remanded for recalculation. (Docs. 806 (Op.) & 807 (Mem. Dispo.)). Grovo unsuccessfully filed a petition for certiorari to the Supreme Court, (Doc. 814), and his conviction became final February 21, 2017, (Doc. 815). Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his § 2255 motion on February 5, 2018. 28 U.S.C. § 2255(f)(1).

         B. Trial

         Grovo 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 government called eleven witnesses at trial, two codefendants-Robert Krise and Philip Morris-and nine law enforcement officers. Law enforcement initially linked Grovo 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 Grovo. (Trial Tr. 15.)

         After receiving a search warrant for Grovo's home in Massachusetts, law enforcement uncovered a desktop computer used by Grovo, as well as a binder containing printouts of child pornography. (Trial Tr. 37-45; Ex. 6.) The digital devices seized during the search contained images indicative of child pornography. (Trial Tr. 47.) Grovo was interviewed twice during the search. He told law enforcement that he had joined KOFD approximately four years prior and that while "the board itself appeared mainstream on its face[, ]... it had a hierarchy type process to be able to see or view the child pornography on the site." (Trial Tr. 41.) He also admitted to having downloaded images of child pornography. (Trial Tr. 47.) Grovo was interviewed again at the police station, where he admitted his username on KOFD was "Karomesis." (Trial Tr. 48.)

         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 Karomesis's "user profile," Grovo was a Castle Resident who first registered with the Board on November 10, 2009 and last accessed it on February 27, 2012. (See Ex. 121.) Karomesis made over 300 posts on KOFD across a number of forums. (See Ex. 292 (listing number of posts by forum).)

         There was no evidence that Grovo personally met any of the other KOFD members or that they were aware of his identity. (See Trial Tr. 102, 124, 126, 414.) However, Grovo's codefendants testified at trial that they were familiar with the user Karomesis, (Trial Tr. 101 (Krise), 394 (Morris)), and both had directly messaged or emailed with him, (Trial Tr. 102 (Krise), 394 (Morris)). Grovo's codefendants also testified 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. Ill. (Krise); 162 (expert testimony that "Bottom ...


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