United States v. Keith
| Decision Date | 08 July 2022 |
| Docket Number | 15-cr-827 (AJN),20-CV-4410 (AJN) |
| Parties | United States, v. David Keith, Defendant. David Keith, Movant, v. United States, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Before the Com! is pro se Defendant David Keith's Motion to Vacate, Set Aside, or Correct the Sentence brought under 28 U.S.C. § 2255. For the reasons that follow Keith's motion is denied.
On November 30, 2015, the Government filed the first Indictment in this case, charging Keith with two counts of production of child pornography, in violation of 18 U.S.C. §§ 2251(a), (e), and 2 (Counts One and Two); one count of receipt of child pornogr aphy, in violation of 18 U.S.C §§ 2252A(a)(2)(B) and (b)(1), and 2 (Count Three); and one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2), and 2 (Count Four). Dkt. No. 5 at 1-7.[1] On January 29, 2016, at Keith's request, Dkt. No. 11, the Court appointed Thomas Nooter, a member of the Southern District of New York's Criminal Justice Act (“CJA”) panel, as Keith's lawyer, see Dkt No. 17.
Keith filed a motion to suppress on March 17, 2016, challenging the validity of the warrant authorizing the search of Keith's mother's premises (“the Premises Warrant”) and the fruits of that search, including a recorded statement made by Keith, as well as an identification procedure used to identify Keith. Dkt. No. 21. The Court denied the motion on April 22, 2016. United States v. Keith, 183 F.Supp.3d 427, 428 (S.D.N.Y. 2016) (Dkt. No. 36).
On May 6, 2016, the Government filed a First Superseding Indictment, which added one additional count: that Keith violated 18 U.S.C. § 2251 while required by New York state law to register as a sex offender, in violation of 18 U.S.C. § 2260A (Count Five). Dkt. No. 44, ¶ 5. The addition of this new count raised Keith's mandatory minimum sentence, upon a conviction on either child pornography production count, by 10 years. See 18 U.S.C. § 2260A.
Throughout this period, Keith maintained to Nooter, his attorney, that he had an alibi with respect to the child pornography production counts: that he was in Atlanta, Georgia at the time the videos were recorded and had lent his car to a friend while he was out of state, and therefore was not the man depicted in the videos at issue. Dkt. No. 139-1 (“Nooter Decl.”), ¶ 8. Nooter directed an investigator to attempt to corroborate Keith's story, who initially appeared to have some success in doing so. Id. ¶¶ 9-11, 28. Keith then participated in an innocence proffer with the Government in June 2016, during which Keith signed a written agreement stating that anything he said during the proffer could be used against him at trial and relayed his alibi. Id. ¶¶ 13-14. Shortly thereafter, however, the Government confirmed that Keith was, in fact, in New York during the period he claimed to have been in Atlanta and determined that Keith's alibi was fabricated. Id. ¶¶ 15, 17; Dkt. No. 125 (“PSR”), ¶ 26.[2]
On November 22, 2016, the Government filed a Second Superseding Indictment (the “Indictment”), adding an additional charge that Keith had made false statements to the Government on June 20 and 21, 2016 during the innocence proffer, in violation of 18 U.S.C. § 1001(a)(2) (Count Six). Dkt. No. 63 (“Indictment”), ¶ 6. Keith was arraigned on this Indictment on the same day, at the final pretrial conference. See Dkt. No. 68.
Shortly before trial was set to begin on December 5, 2016, defense counsel indicated to the Government that Keith might be willing to accept a plea deal. Keith premised acceptance on two conditions, each of which was designed to affect the mandatory minimum sentence to which he was exposed. Dkt. No. 139 (“Gov't Opp'n”), at 5; Nooter Decl. ¶¶ 17-18. First, the Government had to agree to drop Count Five of the Indictment, which, if it resulted in conviction, would have increased the mandatory minimum sentence Keith faced under Counts One and Two by ten years. Second, Keith wanted the plea to preserve a legal argument that his prior convictions for sexual misconduct under New York Penal Law § 130.20 did not constitute convictions for crimes “relating to . . . sexual abuse” under 18 U.S.C. §§ 2251(e) and 2252A(b)(1)-(2). The effect of a ruling on that issue in Keith's favor would have been to reduce his mandatory minimum to 15 years, rather than 25. The plea would provide Keith the right to appeal an adverse determination on this legal issue in the event the Court ruled against him and imposed a minimum sentence of 25 years. See Dkt. No. 70 (“Nov. 29, 2016 Tr.”), at 10-11, 3435.
The Government accepted the proposal, and on November 29, 2016-a week before trial was set to commence-Keith pleaded guilty to five counts of the Indictment (i.e., every count but Count Five). The effect of the plea was straightforward: beyond reserving his right to argue that the mandatory minimum was only 15 years, Keith lowered the maximum mandatory minimum from 35 years to 25 years. He thus avoided a sentence, upon conviction, that could require, at a minimum, that he be in prison until he turned 74.
At the plea colloquy, the Court ensured that Keith was competent to plead, that he understood his rights, and that he understood the terms of the agreement. Specifically, Keith affirmed under oath, inter alia, that he was satisfied with his lawyer's representation and that he understood the consequences of pleading guilty. See Nov. 29, 2016 Tr. at 1-9. The Court also ensured that the dispute carved out in the plea agreement was a purely legal one, and that Keith understood its contours and implications. See id. at 9-12 (); id. at 18-25 ( detail the mandatory minimums for each count and the effect of the pending legal issue on those minimums); id. at 18-19 ().
In his allocution, Keith testified that he created sexually explicit videos of two different underage female victims for the purpose of sexual gratification. Id. at 37-39. Keith further allocuted to knowingly receiving visual depictions of child pornography, id. at 40, and admitted to knowingly possessing child pornography depicting sexually explicit photos of children under 12, id. at 41-42. Finally, Keith admitted that his statements to a prosecutor and federal agent that he was in Atlanta, Georgia from October 10 to 22, 2013, were knowingly false. Id. at 4243. The Government proffered that it would have introduced at trial, inter alia, testimony regarding videos, images, and computer forensic data found on Keith's electronic devices, the videos, images, data themselves, and testimony from the victims. Id. at 45.
On January 4, 2017, Keith moved to preclude the application of certain sentencing enhancements under 18 U.S.C. §§ 2251 and 2252A that would have had the effect of increasing his mandatory minimum sentence. Dkt. No. 72. After the parties fully briefed the issue, the Court, on May 16, 2017, issued a memorandum and order holding that Keith's prior conviction in New York for engaging in non-consensual sexual intercourse, under N.Y. Penal Law § 130.20(1), was categorically a crime “relating to . . . sexual abuse,” 18 §§ 2251(e), 2252A(b)(1), (2), and that the higher mandatory minimums applied. United States v. Keith, No. 15-CR-827 (AJN), 2017 WL 11683831, at *7 (Dkt. No. 84).
Two days later, the Court received a letter from defense counsel stating that Keith was “extremely upset by the ruling” and “wishe[d] to make a motion to withdraw his guilty plea.” Dkt. No. 85 at 1. The Court scheduled a conference to address Keith's request, and to potentially appoint new counsel to make such a motion. Dkt. No. 91 (“May 25, 2017 Tr.”). On May 25, 2017, the Court appointed Marc Berger as additional CJA counsel, id., and on June 8, 2017, Berger notified the Court that he had “reviewed the relevant filings and transcripts[] and[, inter alia], conferred with Mr. Keith's CJA Counsel, . . . [and] at th[at] time . . . d[id] not see a valid legal basis for [Keith] to move to withdraw his guilty plea.” Letter from Marc P. Berger to Hon. Alison J. Nathan (June 8, 2017).[3]
On June 20, 2017, the Court held a conference to confirm that Keith no longer sought appointment of new counsel for the purpose of moving to withdraw his plea. At that conference, however Nooter raised an entirely new issue, explaining that Keith had alerted him to the possibility that a meritorious motion to suppress might have been filed in this case, but Nooter had failed to discover it. Dkt. No. 94 at 4. In particular, Nooter noted that the search of Keith's residence that resulted in the seizure of much of the Government's evidence in this case was based on probable cause derived from an earlier search involving the use of a network investigate technique (“NIT”) to locate the addresses of individuals accessing a website notorious for hosting child pornography. Id. at 4-6.[4] The Court thereafter granted leave for Keith, through independent counsel, to file a motion to withdraw the guilty plea stemming from purported improprieties in the earlier...
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