United States District Court, D. Montana, Great Falls Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
MORRIS, UNITED STATES DISTRICT COURT JUDGE
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).
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).
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.
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.
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.
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.
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.
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
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.
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
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.
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.
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).
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).
timely filed his motion under 28 U.S.C. § 2255 on May
25, 2016. See 28 U.S.C. § 2255(f)(1);