Pavulak v. United States, Crim. No. 09-43SLR. Civ. No. 14-290-SLR.

CourtUnited States District Courts. 3th Circuit. United States District Court (Delaware)
Writing for the CourtROBINSON, Senior District Judge
Citation248 F.Supp.3d 546
Decision Date31 March 2017
Docket NumberCrim. No. 09-43SLR. Civ. No. 14-290-SLR.
Parties Paul E. PAVULAK, Movant/Movant, v. UNITED STATES of America, Respondent/Plaintiff.

248 F.Supp.3d 546

Paul E. PAVULAK, Movant/Movant,
v.
UNITED STATES of America, Respondent/Plaintiff.

Crim. No. 09-43SLR. Civ. No. 14-290-SLR.

United States District Court, D. Delaware.

Signed March 31, 2017


248 F.Supp.3d 551

Paul E. Pavulak. Pro se movant.

Shawn Weede. Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Counsel for respondent.

MEMORANDUM OPINION

ROBINSON, Senior District Judge

I. INTRODUCTION

Paul E. Pavulak ("movant") is a federal inmate currently confined at the USP Tucson in Tucson, Arizona. Movant timely filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (D.I. 135) The government filed an answer in opposition. (D.I. 157) For the reasons discussed, the court will deny movant's § 2255 motion without holding an evidentiary hearing.

II. BACKGROUND

A. Factual Background

After being released from prison on July 1, 2008, movant was required to register as a sex offender by virtue of two prior convictions for unlawful sexual contact with minors. (D.I. 157, Exs. 1–4) On or about August 18, 2008, movant created a Yahoo account with the username "Pavy224." (D.I. 80 at 14–15; D.I. 164, Ex. 130B) In or about August 2008, movant also created a profile on the website "cherryblossoms.com," which is used by sex tourists to solicit Philippine prostitutes. (D.I. 165, Ex. 186; D.I. 80 at 86–88, 124–127) In his profile, movant wrote that he was seeking "a lover" and that he would be "making several visits to the Philippines." (D.I. 165, Ex. 186)

Movant then began conducting online video and written chats (including webcam sessions) with various females in the Philippines, during which he expressed a sexual interest in minor and young adult girls. On August 26, 2008, movant emailed a woman later identified as Ara Duran, of

248 F.Supp.3d 552

Cebu, Philippines. (D.I. 80 at 93–95; D.I. 165, Exs. 198–201)

Movant subsequently engaged in an online and physical relationship with Duran, which included his traveling to the Philippines in December 2008 and January 2009 to meet her and her and her young daughter ("Jane Doe"). (D.I. 161, Ex. 77; D.I. 164, Exs. 131–136, 141, 175; D.I. 167, Ex. 292; D.I. 80 at 27–31) In particular, movant stayed with Duran and Jane Doe between December 16 and December 28, 2008. (D.I. 161, Exs. 70–71) Movant took numerous photographs of himself together with Duran and Jane Doe using his Casio digital camera. (D.I. 165, Exs. 197–202; D.I. 167, Exs. 279–81) A number of these photographs depict Duran and/or movant nude or engaging in sexual activity. (D.I. 166, Exs. 257, 258A, 259A; D.I. 167, Ex. 279) Others depict them in public places. (D.I. 166, Exs. 260–261; D.I. 167, Exs. 279–281) Movant also used that camera to photograph Duran and Jane Doe with a Gateway laptop computer. (D.I. 165, Exs 199–200) In some of these photographs, Jane Doe's pubic area appears to be either exposed or loosely covered with a diaper. (D.I. 165, Exs. 199–200)

Movant also recorded a number of videos depicting him and Duran engaged in sexual acts. (D.I. 166, Exs. 258, 259; D.I. 167, Ex. 283; D.I. 80, at 59–60) One video depicts Duran performing oral sex on movant. (D.I. 167, Ex. 283) Near the beginning of the video, movant states: "This will be [Jane Doe's] training video. You show her how to do it." Id.

Another video depicts Duran, Jane Doe and movant in a hotel room. (D.I. 167, Ex. 285) The video was recorded from a webcam attached to the laptop. The video begins with Jane Doe seated on Duran's lap. Jane Doe and Duran are clothed and appear to be watching something on the computer screen. Movant appears in the camera frame completely nude and standing immediately next to the seated Duran and child. In portions of the video, movant's penis and pubic area are visible in the camera frame in close proximity to Jane Doe's face and torso. The child begins to cry. Movant then walks behind them and sits on the bed and dresses. Duran approaches movant and kisses him, while he grabs her pubic area. The child runs to her mother and cries. Movant goes over to the laptop and turns off the webcam. Id.

As he left the Philippines on January 13, 2009, movant used his Nokia cell phone to engage in a text message conversation with Duran regarding his plan for performing sexual acts Jane Doe on his next trip to the Philippines; his desire to watch Jane Doe on his webcam using a sex toy he supplied to Duran; and encouraging Duran to perform sexual acts on the child to prepare her for movant's return. (D.I. 167, Ex. 288; D.I. 79 at 136–145)

In the fall of 2008, the Delaware State Police ("DSP") Sex Offender Registry Unit received tips that movant was working and staying at his adult children's office, CTI, which he had not reported on his sex offender registration documents. (D.I. 83 at 54–55) Detective Robert Jones received information from two CTI technicians (Curtis Mack and Jahdel Riggs) that movant had been working at CTI since the summer of 2008. (D.I. 83 at 56–57, 253–55, 275–77) They also reported that they had witnessed movant using computers at the office to view sexually suggestive images of what appeared to them to be minor females. Id. at 58, 83–85, 260, 279–80, 287. In addition, both witnesses reported that they had seen movant on the "cherryblossoms.com" website and engaged in webcam sessions with various females who were posing suggestively. Id.

On January 14, 2009, movant arrived at Philadelphia International Airport on a flight from the Philippines. (D.I. 167, Ex. 292; D.I. 83 at 61–62, 290) Movant was

248 F.Supp.3d 553

carrying a laptop bag containing power cord, computer equipment, but no laptop. (D.I. 83 at 62, 106, 292) Movant told a Customs agent that he left the laptop in the Philippines. Id. at 292. Law enforcement agents followed movant as he left the airport in a vehicle registered to his daughter, and was driven directly to the CTI office. Id. at 62–65. Upon arriving there, movant went inside alone. Id. Agents observed movant go into a back office and eventually turn out the light. Id.

On January 18, 2009, movant engaged in another webcam chat with Ara Duran. (D.I. 167, Ex. 275) Jane Doe was with Duran during this webcam chat. The conversation quickly turned sexual, and movant instructed Dura to display Jane Doe's genitals on the webcam. Id.

At approximately 7:30 a.m. on January 19, 2009, DSP officers executed a search warrant at the CTI office occupied by movant. (D.I. 83 at 65, 106–107) Movant was present for the search. (D.I. 159, Exs. 25–27; D.I. 83 at 67–70, 112) In a post-arrest interview, movant admitted that he occupied the rear office in the CTI suite and had been "helping out" at the business by working about 10–20 hours per week. (D.I. 83 at 72–73) He also admitted that his email address was Pavy224@yahoo.com, and that he had traveled to the Philippines between December 10, 2008 and January 14, 2009. Id. at 76–77, 83.

Many items showing movant's use and control over the rear office were documented, including sleeping items, toiletries, food and laundry (D.I. 160, Exs. 43–48); a laptop computer, a Casio digital camera and memory cards found to contain movant's chats, work-related information, and photographs of movant, Duran, Jane Doe and other females (D.I. 160, Exs. 43, 49–50, 52, 56; D.I. 161, Exs. 65–66); a Nokia cellular telephone containing movant's text messages to Duran (D.I. 161, Ex. 64; D.I. 167, Ex. 288); documents relating to movant's travel to the Philippines and visit with Duran (D.I. 161, Exs. 70–71, 74, 77, 83–86; D.I. 162, Ex. 93); notes on various foreign females with whom movant was chatting online and planned to meet, as well as notes relating to jobs (D.I. 162, Ex. 97); and movant's sex offender registration, banking and insurance documents. (D.I. 160, Ex. 51; D.I. 161, Ex. 89; D.I. 162, Ex. 104; D.I.163, Exs. 106, 112)

A desktop computer was seized from the front receptionist area of the suite. (D.I. 160, Exs. 23, 30, 33) This computer was found to contain approximately 2,904 thumbnail images of child pornography. (D.I. 80 at 200:18–209:25; D.I. 165, Exs. 190–95; D.I. 167, Ex. 291) The computer also contained numerous digital photographs of movant in various settings. (D.I. 165, Exs. 187–188; D.I. 80 at 140:11–147:18) Some of these images also appear on movant's "cherryblossoms.com" webpage. (D.I. 80 at 147:3–18) The computer also contained hundreds of chat logs involving "pavy224" and females in the Philippines, including 11 chat logs with Ara Duran. (D.I. 80 at 149:10–153:17; D.I. 164, Ex. 174)

A laptop computer seized from movant's rear office in the CTI suite contained approximately 2,811 image files of child pornography. (D.I. 166, Exs. 261–269; D.I. 167, Ex. 291; D.I. 79 at 62:24–63:23, 68:2–70:23,107:4–109:10) Twenty-nine of the images of child pornography, along with forty-nine images of movant, Duran and adult pornography, had been accessed and edited using Windows Photo Gallery between September and November 2008. (D.I. 165, Ex. 238; D.I. 167, Ex. 295; D.I. 79, 62:24–63:23, 68:2–70:23; D.I. 81 at 73:20–75–18) These images were saved in Windows Photo Gallery on six dates...

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2 practice notes
  • State v. Brown, A-39 Sept. Term 2019
    • United States
    • United States State Supreme Court (New Jersey)
    • January 25, 2021
    ...in other part by Reynolds v. United States, 565 U.S. 432, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012) ; see also Pavulak v. United States, 248 F. Supp. 3d 546, 569 (D. Del. 2017) (finding such a conviction lawful). Other circuits have reached similar conclusions. See, e.g., 245 N.J. 91 United Sta......
  • United States v. Gilchrist, CRIMINAL NO. 3:19-147
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • March 3, 2021
    ...or face criminal penalties. However, SORNA also applies to Gilchrist based on his 1991 New York State conviction. See Pavulak v. U.S., 248 F.Supp.3d 546, 568-69 (D. De. 2017) (holding that "it would appear that the earliest possible effective date of SORNA for pre-enactment sex offenders in......
2 cases
  • State v. Brown, A-39 Sept. Term 2019
    • United States
    • United States State Supreme Court (New Jersey)
    • January 25, 2021
    ...in other part by Reynolds v. United States, 565 U.S. 432, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012) ; see also Pavulak v. United States, 248 F. Supp. 3d 546, 569 (D. Del. 2017) (finding such a conviction lawful). Other circuits have reached similar conclusions. See, e.g., 245 N.J. 91 United Sta......
  • United States v. Gilchrist, CRIMINAL NO. 3:19-147
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • March 3, 2021
    ...or face criminal penalties. However, SORNA also applies to Gilchrist based on his 1991 New York State conviction. See Pavulak v. U.S., 248 F.Supp.3d 546, 568-69 (D. De. 2017) (holding that "it would appear that the earliest possible effective date of SORNA for pre-enactment sex offenders in......

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