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United States v. Laverdure

United States District Court, D. Montana, Great Falls Division

April 23, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
PATRICK JEDIDYA LAVERDURE, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          BRIAN MORRIS, UNITED STATES DISTRICT COURT JUDGE

         This case comes before the Court on Defendant/Movant Patrick Jedidya Laverdure's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Laverdure also filed a motion to reduce his sentence under 18 U.S.C. § 3582(c).

         At the time he filed, Laverdure was proceeding pro se. On December 6, 2017, the Court appointed new counsel to represent Laverdure. Counsel filed an amended motion superseding Laverdure's pro se motion on May 14, 2018. See Order (Doc. 151) at 2 ¶ 3. The United States has filed an answer (Docs. 169, 171) and Laverdure a reply (Doc. 174).

         I. Background

         In July 2010, sixteen-year-old M. told a records clerk at the Fort Peck Tribes' Department of Law and Justice that Laverdure, her uncle, had sexually abused her several years earlier. See 1 Trial Tr. (Doc. 85) at 46:13-47:12. In the course of the ensuing investigation, FBI Agent Craig Overby interviewed Laverdure. On March 10, 2011, Agent Overby, Laverdure, and two other investigators sat outside Laverdure's residence in a tribal law enforcement officer's vehicle and talked for about 20 minutes. See Id. at 93:2-94:4.

         On April 19, 2011, using another agent's vehicle, Laverdure and Overby drove from Wolf Point to the FBI field office in Havre, a three-hour trip, for an interview with Agent Smiedala. See 1 Trial Tr. at 98:9-99:19. Smiedala testified that he interviewed Laverdure for about an hour and 25 minutes. See Id. at 116:20-117:10. Agent Smiedala recorded a ten-minute summary of the interview. The government played the recording for the jury at trial. See Id. at 101:1-11, 122:6-21.

         In the interview, Laverdure said he inserted his finger in M.'s vagina while she was sleeping. He also said he fondled M.'s vagina while they were watching television on the couch and, on another occasion, engaged in the same conduct with S., M.'s little sister. See Id. at 101:15-102:4, 117:21-118:21. Laverdure told the agents that he remembered several details, including what he and S. were wearing. See 2 Trial Tr. (Doc. 86) at 154:12-158:18. All together, the interview and round trip took from 8:00 a.m. to 7:00 p.m. See 1 Trial Tr. at 103:3-16.

         A grand jury indicted Laverdure on June 20, 2011, on one count of aggravated sexual abuse involving M., a violation of 18 U.S.C. § 2241(c) (Count 1); one count of sexual abuse involving M., a violation of 18 U.S.C. § 2242(2)(A) (Count 2); and one count of abusive sexual contact with S., a violation of 18 U.S.C. § 2244(a)(1) (Count 3). See Interlineated Indictment (Doc. 1-1) at 2-3.

         Trial began on October 24, 2011. M. testified that she was awakened from sleep one night by Laverdure unbuttoning her pants and inserting his penis in her vagina. She testified that it hurt and that she was seven years old at the time. See 1 Trial Tr. at 53:7-54:17. M. recalled seeing Laverdure go to her sister's bed on the same night and picking up her sister when she started to cry. M. could not see whether Laverdure touched S. inappropriately. See Id. at 54:20-55:16. At trial, S. testified that she remembered people coming to talk to her about Laverdure in 2010, but she did not remember anything else. See Id. at 69:12-71:17. At the time of trial, M. was 18 years old, and S. was 16. See Id. at 50:10-11, 65:21-22.

         Two women testified about similar incidents with Laverdure. Both said Laverdure sexually assaulted them while they were sleeping. The incidents occurred in 1983 and 2009. Both women were adults at the time. See 1 Trial Tr. at 72:12-87:15; see also Fed. R. Evid. 413(a). Agents Overby and Smiedala also testified about their interviews with Laverdure.

         Laverdure testified in his own defense. He denied abusing either girl. See 2 Trial Tr. at 144:25-145:24. He conceded that he had made the admissions as described by the agents. He explained to the jury that he was “scared, nervous, thinking they wouldn't leave me alone if I didn't give them what they wanted. . . . because they're the FBI and I'm just a regular person.” See Id. at 145:9-15. Laverdure said he thought the agents knew what he was going to say. See Id. at 160:4-9. Laverdure further explained that hearing him say it was “what I was there for. They brought me up there.” Id. at 160:2-3. He “didn't think [he would] get in as much trouble for telling what [he] did” if, as he believed the agents had promised, the case “would go back to the tribes.” Id. at 162:5-14.

         After deliberating for about four hours, the jury asked for a transcript of M.'s testimony. The request was refused. See 2 Trial Tr. at 209:1-13, 210:21-212:10. About half an hour later, the jury returned a verdict against Laverdure, finding him guilty on all counts. See Id. at 212:8-10, 213:13-19, 214:9-215:4; Verdict (Doc. 64) at 1-2.

         The United States Probation Office prepared a presentence report. With a total offense level of 35 and a criminal history category of I, see Presentence Report ¶¶ 44, 46, the advisory guideline range for each of the three counts was 168 to 210 months, see U.S.S.G. ch. 5 Part A (Sentencing Table). The district court sentenced Laverdure on January 23, 2012, to serve 208 months on each count, concurrently, and a total of five years' supervised release to follow. See Minutes (Doc. 77); Judgment (Doc. 78) at 2-3.

         Laverdure appealed. The parties stipulated that the evidence was not sufficient to support the conviction on Count 2. The Ninth Circuit rejected Laverdure's other arguments and remanded the case for resentencing. See Mem. (Doc. 94) at 4, United States v. Laverdure, No. 12-30035 (9th Cir. Feb. 12, 2013). The district court resentenced Laverdure on October 21, 2013, to serve 160 months on Counts 1 and 3, concurrent, to be followed by a total of five years' supervised release. See Minutes (Doc. 105); Am. Judgment (Doc. 106) at 2-3.

         Laverdure again appealed. The United States conceded error in one of the conditions of supervised release. The Ninth Circuit again remanded the case for resentencing. See Mem. (Doc. 120) at 2, United States v. Laverdure, No. 13-30298 (9th Cir. June 29, 2015). The Court reimposed the previous sentence on December 1, 2015, and amended the previously overbroad condition of supervision. See Minutes (Doc. 131); [Second] Am. Judgment (Doc. 132) at 2-3, 4 (Special Condition No. 9).

         Laverdure filed a petition for writ of certiorari on February 29, 2016. The Supreme Court denied it on April 18, 2016. See Laverdure v. United States, No. 15-8542 (U.S. cert. denied Apr. 18, 2016).

         Laverdure timely filed his motion under 28 U.S.C. § 2255 on May 25, 2016. See 28 U.S.C. § 2255(f)(1); Go ...


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