United States v. Senke

• Decision Date: 25 January 2021
• Docket Number: No. 19-1287,19-1287
• Citation: 986 F.3d 300
• Parties: UNITED STATES of America v. Charles J. SENKE, Appellant
• Court: U.S. Court of Appeals — Third Circuit

986 F.3d 300

UNITED STATES of America

v.Charles J. SENKE, Appellant

No. 19-1287

United States Court of Appeals, Third Circuit.

Argued July 8, 2020

Opinion Filed: January 25, 2021

OPINION

FUENTES, Circuit Judge.

Appellant Charles Senke challenges his conviction for attempted sex offenses involving a minor, raising four objections. First, he contends that it was error for the District Court not to inquire into his motions regarding counsel's performance. Second, he asserts that the District Court erred when it failed to verify at sentencing that he discussed the presentence report with counsel. Third, he takes issue with several special conditions of supervised release. Finally, he argues that a special assessment fee was erroneously imposed pursuant to a statute enacted after his offense conduct.

While the District Court's failure to address Senke's complaints regarding his counsel was an abuse of discretion under our precedent in United States v. Diaz ,¹ we decline to review this error for prejudice on direct appeal in the first instance. We also conclude that Senke was not prejudiced by the District Court's failure to verify on the record that Senke and his attorney discussed the presentence report before imposing sentence. Finally, because the special conditions of supervised release banning Senke's computer and internet use run afoul of our precedent in United States v. Holena ,² and because the Government concedes that the imposition of these conditions and a special assessment fee was plain error, we will remand for further proceedings on these issues. Accordingly, we will affirm in part and vacate and remand for further proceedings in part.

I. BACKGROUND

A. Offense Conduct

Appellant Charles Senke was arrested after striking up an online conversation on a popular social networking site with an undercover detective posing as an underage boy. In the course of that correspondence, Senke requested naked photographs of the underage boy, asked about the boy's sexual experiences, transmitted graphic photographs of himself and others, and offered to buy the boy gifts. During these exchanges, Senke was reminded multiple times that he was purportedly conversing with a minor.

The pair eventually made plans to meet. Senke agreed to travel to a mall near where he believed the boy lived. On the day of the planned meeting, Senke's vehicle was spotted by undercover detectives and followed into the mall parking lot. As Senke pulled into a parking spot, the detectives stopped the vehicle and took Senke into custody. Detectives found a cell phone, condoms, personal lubricant, a laptop computer, a memory card and other personal items in Senke's car.

B. Procedural History

Senke was charged in a three-count Superseding Indictment by a federal grand jury in Scranton, Pennsylvania for his attempts to engage in illicit sexual conduct with a minor.³

He appeared before the District Court and pleaded not guilty. He was then appointed a federal public defender to represent him. Less than two months later, the federal public defender filed a motion to withdraw as counsel, citing irreconcilable differences regarding case strategy. The District Court held a hearing on the matter, at which time Senke indicated that he wished to proceed pro se. After interviewing Senke, the District Court permitted him to proceed pro se, with the public defender as standby counsel.

Acting in a pro se capacity thereafter, Senke filed a plethora of pretrial motions, challenging the charges, the evidence, and his detention. The motions were denied. Following a conversation at a subsequent detention hearing, the District Court indicated that Senke agreed to accept appointed counsel. The District Court appointed a Criminal Justice Act attorney, Matthew T. Comerford, to represent Senke going forward.

i. Pretrial Complaints about Comerford

In April 2018, Senke filed a pro se motion titled, "Pro Se Omnibus Pre-Trial Motion" and "Inadequate Representation."⁴ In that motion, Senke asserted that Comerford, inter alia , (i) tried to pressure him to take a plea deal, (ii) did not take or return phone calls, (iii) refused to go over evidence, calling it "to[o] disgusting," (iv) failed to turn over discovery to Senke, and (v) was not preparing a defense strategy for trial.⁵ Senke also asserted that with Comerford as counsel, he "cannot get a fair and just trial."⁶ Senke did not, however, specifically request the appointment of new counsel.

The District Court took no action on this motion. Instead, Comerford filed a motion in July 2018, requesting that co-counsel be added to Senke's defense team. The District Court granted the motion, appointing Comerford's associate, Curt M. Parkins, to assist at trial.

A pretrial conference was held in August 2018. The conference was attended by Comerford and Parkins, and the prosecutor, but not Senke. At the conference, Comerford indicated that Senke was giving him "a hard time" about filing additional pretrial motions.⁷ Comerford stated, "I'm just letting you know he's not happy with me that I am not filing more motions."⁸ The District Court responded, "[h]e doesn't have much of a chance of losing you, right. You're the second or third guy on this deal."⁹

In apparent reference to Senke's pretrial letter regarding counsel, Comerford stated, "[Senke is] putting in writing that I am not doing things."¹⁰ This conversation prompted the prosecutor to ask, "He's not trying to fire you, is he?"¹¹ Comerford responded, "[n]ot that I know of," and Parkins stated, "[j]ust difficult."¹² The hearing concluded without any further mention of Senke's letter.

In the months leading up to trial, Senke did not submit any additional requests or communications to the District Court regarding his defense team. Trial commenced on October 2, 2018 with Comerford and Parkins representing Senke. Defense counsel did not present any evidence, and relied solely on a defense of entrapment. The next day, the jury returned a guilty verdict on all counts.

ii. Post-trial Complaints about Comerford

While awaiting sentencing, Senke filed three pro se motions regarding counsel. The first motion, requested that Comerford be substituted for "an appealant [sic] attorney."¹³ The second motion, informed the District Court that Senke sent a complaint to the Disciplinary Board and requested "substitution of counsel in regard to the above-mentioned matters."¹⁴ The third motion, requested "a CJA Appealant [sic] appointment by the Court."¹⁵

The District Court denied the first and third motions in written orders. In denying the first motion, the District Court footnoted its understanding of Senke's request for an "appealant [sic]" attorney as follows:

The deadline for defendant filing an appeal runs from the entry of judgment. Fed. R. App. P. 4(b)(1) ("In a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days after the later of ... the entry of either the judgment or order being appealed; or ... the filing of the government's appeal.") The judgment will be entered after defendant is sentenced. Upon appeal, the Third Circuit Court of Appeals has authority to appoint counsel for the defendant.¹⁶

In denying the third motion, the District Court stated that Senke's "pro se motion to substitute counsel for appellate reasons" was denied because "[t]he appeals court will deal with appointing defendant counsel for appeal purposes."¹⁷ The District Court did not separately respond to the second motion.

iii. Sentencing

After the jury verdict, the District Court ordered a presentence investigation report (the "PSR") to be filed. Senke submitted his own objections to the draft PSR, and Comerford filed a sentencing memorandum on Senke's behalf. The final PSR was filed, and an addendum was concurrently filed addressing Senke's objections. As relevant on appeal, the District Court did not confirm at sentencing that Senke and Comerford had an opportunity to discuss the PSR together.

Sentencing was held on January 29, 2019. The final PSR provided a Guidelines imprisonment range of 168 to 210 months. Prior to imposing the sentence, the District Court sustained an objection with respect to a five-level enhancement under U.S.S.G. § 4B1.5(b)(1) for repeat prohibited sexual conduct, and adjusted Senke's total offense level from 35 to 30. Because Count II carried a statutory mandatory minimum sentence of ten years’ imprisonment, the adjusted Guidelines range was 120 to 121 months. The District Court sentenced Senke to the mandatory minimum term and ten years of supervised release. Additionally, it imposed 17 special conditions of supervised release, including:

1. You must submit to substance abuse testing to determine if you have used a prohibited substance;

6. You must not have direct contact with any child you know or reasonably should know to be under the age of 18, including your own children, without the permission of the probation officer;

7. You must not go to, or remain at, any place where you know children under the age of 18 are likely to be, including parks, schools, playgrounds, and childcare facilities;

8. You must not go to, or remain at, a place for the primary purpose of observing or contacting children under the age of [18];

10. You must submit to periodic polygraph testing at the discretion of the probation officer as a means to ensure that you are in compliance with the requirements of your supervision or treatment program;

11. You must not possess and/or use computers ... or other electronic communications or data storage devices or media;

12. You must not access the Internet except for reasons approved in advance by the probation officer;

13. You must allow the probation officer to install computer monitoring software on any computer ... you use;

14. To ensure compliance with the computer monitoring condition, you must allow the probation officer to conduct initial and periodic unannounced searches of any computers ... subject to computer monitoring;

15. You must submit

...