United States v. Groenendal
| Decision Date | 08 June 2020 |
| Docket Number | File No. 1:11-CR-260 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JACK ALAN GROENENDAL, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
HON. PAUL L. MALONEY
Before the Court is a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 (ECF No. 155) and supplements thereto (ECF Nos. 153, 160, 221), filed by Defendant Jack Alan Groenendal. The Government has filed a response to the motion, arguing that the grounds for relief are meritless and/or procedurally defaulted. Defendant has filed a reply. After considering the record and the parties' arguments, the Court finds that the motion is meritless. Accordingly, the Court will deny it.
In September 2011, a grand jury returned an indictment charging Defendant with two offenses: attempted receipt of child pornography, and attempted possession of child pornography. In a second superseding indictment returned in June 2013, the Government charged Defendant with attempted receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), and attempted access with intent to view child pornography, in violation of 18 U.S.C. § 2254(a)(4)(B). (See ECF No. 81.)
The charges against Defendant stemmed from internet searches that he performed on his home computer in the summer of 2011. Using the image search feature on the Bing internet search engine, Defendant repeatedly entered a variety of search terms (over 140 in all) in order to generate thumbnail images of child pornography in the search results. Those search terms included the following: "little ones," "peach fuzz," "the teachers assistant," "girlsspotting," "trolling for girls," "naughty gym class," "throaty little whores," "bathroom girls," "cutiepiedolls," "boytoy," "girlswithoutclothes," and "cutecut." Defendant also entered the following: the name of a Russian website that is a common source of child pornography; well-known pseudonyms for victims of child pornography; and the names of child actresses whose faces are often pasted onto sexually explicit images of children.
Defendant had a history of seeking out child pornography. In 2007, he pleaded guilty to possession of child pornography after authorities discovered that he sent sexually explicit images of children to a Yahoo group. (See United States v. Groenendal, No. 1:07-cr-93 (W.D. Mich.), Plea Hr'g Tr. 39-40, ECF No. 33.) For that conviction, the Court sentenced him to 42 months in prison and 3 years of supervised release. Defendant was serving the supervised release portion of that sentence when he conducted the internet searches described above.
The conditions of Defendant's supervised release prohibited him from possessing pornography. Also, he had to obtain permission to access the internet. Defendant's probation officer, Rhonda Wallock, gave him permission to access a handful of websites from his work computer so that he could perform his job. She also gave him unrestricted access to the internet from his home computer, provided that he pay for and install monitoring software on that computer. (Trial Tr. I at 89, ECF No. 126.)
In August 2011, Officer Wallock learned about Defendant's illicit behavior from reports generated by the monitoring software. These reports, which Wallock received by email, showed the URLs that Defendant accessed and the search terms that he used. The software also sent information to an online portal that Wallock could access. At the portal, Wallock found screen shots of Defendant's search activity and links that essentially replicated Defendant's searches; in other words, the links led to live search results for the searches Defendant had conducted a week or so earlier. Wallock initially believed that these links led to additional screen shots of Defendant's computer, but she later learned that the links led to live search results that were similar to the results that Defendant would have received.
Special Agent Blair Babcock, a computer forensics investigator, assisted Wallock with reviewing the information gleaned by the monitoring software. (Trial Tr. II at 221-22, ECF No. 127.) According to Babcock's testimony at trial, that information showed that Defendant initiated searches using the terms mentioned above, and then scrolled through pages and pages of results from those searches. (Id. at 225.) And on at least one occasion, Defendant hovered over a search result with the pointer of his mouse, causing a pornographic image to enlarge on his screen. (Id. at 226.)
After discovering the troubling internet activity by Defendant, Wallock had his computer seized and then examined by Agent Babcock. Babcock's examination uncovered multiple images of adult pornography and seven images of child pornography on the computer's hard drive, located in the folder used for temporary storage of images downloaded by the internet browser. The screen shots of Defendant's computer did not show any child pornography, but the images stored on his computer confirmed that his search results had contained child pornography.
When Defendant testified at his trial in October 2013, he acknowledged that he conducted the searches mentioned above. (Id. at 366.) He also acknowledged that his search results led to pornography, but he denied having any intent to access or receive child pornography. He noted that he never clicked on any links in the search results. (Id. at 387.) And he contended that he thought his home computer had a filter that would prevent him from obtaining child pornography.
To justify the searches, Defendant claimed that they were part of his "homework" for a court-mandated therapy program for sex offenders. (Id. at 372.) The workbook for this therapy program told him to "identify" his "destruction warning line," which is the "last kinds of thoughts, feelings, [and] behaviors that would be an indicator that [Defendant] is at extremely high risk to have a re-offense[.]" (Trial Tr. III at 466, ECF No. 128.) The workbook also told him to establish a "plan" to avoid this warning line. Defendant claimed that he interpreted these instructions to mean that he had to bring himself up to his warning line and then practice his avoidance plan. (Trial Tr. II at 377, 381-83.) Defendant decided that his warning line—his last act before possessing child pornography—was conducting searches on Bing using "deviant"1 search terms, but not clicking on any of the images in the search results. (Id. at 387, 395, 417.) His avoidance plan was to "pray" with his eyes closed and to not look at the images on the screen, and he claimed that is what he did, most of the time. (Id. at 384, 405, 421-23.) He admitted to scrolling through multiple pages of search results, but he claimed that his eyes were closed and that he focused his attention on the scrollbar at the edge of the screen instead of the images. (Id. at 421-22.) On the other hand, he acknowledged seeing terms like "cutecut" and "hard on myself" underneath pornographic images in his search results, and then using those terms to conduct further searches. (Id. at 404, 408.)
The instructor for Defendant's therapy program testified that he disagreed with Defendant's interpretation of the therapy workbook. The purpose of the workbook exercise was to identify the warning line and learn to stay away from it. The exercise did not encourage engaging in behavior that could lead up to that line. (Trial Tr. III at 466-67.)
Obviously, the jury did not accept Defendant's explanations. It found him guilty of both offenses. The Court then found Defendant guilty of violating the terms of his supervised release. The Court sentenced him to 15 years in prison for the attempted receipt conviction and 10 years for the attempted access conviction, to be served concurrently. The new sentence runs consecutive to an 18-month term for Defendant's supervised release violation.
Defendant appealed his conviction and the revocation of his supervised release with the assistance of attorney Paul J. Neel. Defendant raised the following issues on appeal: (1) the evidence was insufficient to convict because it did not show that Defendant intended to commit the charged offenses; (2) Babcock testified about technical matters despite that fact that he was not qualified as an expert; and (3) without a valid conviction, the Court should not have revoked Defendant's supervised release.
The Court of Appeals for the Sixth Circuit affirmed Defendant's conviction and the revocation of his supervised release in an order entered on April 27, 2015. See United States v. Groenendal, No. 14-1143/1148 (6th Cir. Apr. 27, 2015), available at ECF No. 132. The Court of Appeals determined that Defendant's arguments regarding the sufficiency of evidence "simply reiterate his claim that the jury rejected at trial, i.e., that his only intent in conducting the searches was to comply with the instructions in his workbook and to complete his homework." Id. at PageID.1436. The Court of Appeals rejected his theory that he was not guilty because he only accessed thumbnail images of child pornography and did not save them to his hard drive. Id.Unlike the defendant in another case who was charged with a different offense, and who accessed thumbnail images on only one occasion, nine months before those images were discovered on his hard drive, Defendant "accessed thumbnail images of child pornography on multiple occasions over a period of several weeks, searched for these images, and manipulated them to enable his viewing of the images on his computer screen." Id. at PageID.1437.
The Court of Appeals also rejected Defendant's challenge to the testimony of Babcock, finding that this Court "followed the proper procedure for admitting opinion testimony" and gave proper cautionary instructions to the jury. Id.
Finally, the Court of Appeals rejected Defendant's challenge to the revocation of his supervised release because his general assertion of error in his conviction was not...
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