United States v. Stewart
| Decision Date | 14 February 2022 |
| Docket Number | 5:14-cr-25-TKW/MJF,5:19-cv-32-TKW/MJF |
| Parties | UNITED STATES OF AMERICA v. CHARLES HEATH STEWART |
| Court | United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida |
REPORT AND RECOMMENDATION
Defendant Charles Heath Stewart (“Stewart”) has filed a second amended “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.” Doc. 194. The government filed a response and Stewart filed a reply. Docs. 198, 207. For the reasons set forth below, the undersigned respectfully recommends that the section 2255 motion be denied without an evidentiary hearing.[1] See Rules 8(a)-(b), Rules Governing Section 2255 Cases.
On September 17, 2014, a federal grand jury charged Stewart in a four-count indictment. Doc. 1. Counts One through Three charged Stewart with using, persuading, or inducing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, in violation of 18 U.S.C. § 2251(a) and (e). Count Four charged Stewart with possession of child pornography, in violation of 18 U.S.C § 2252A(a)(5)(B), (b)(2). The charges stemmed from law enforcement's discovery of “thumbnail” images on Stewart's personal cellular telephone (“cell phone”), which depicted Stewart's minor stepdaughter, C.T., performing a sexual act on Stewart. Doc. 30, PSR ¶¶ 10-11.
Certain pretrial motions and objections are relevant to Stewart's allegations in the instant motion. First, the government filed a motion in limine to exclude evidence regarding C.T.'s sexual behavior before and after the events charged in this case. The government argued that Stewart did not comply with Federal Rule of Evidence 412(c)(1)'s notice requirement. Doc. 52. In response, Stewart maintained that certain questions regarding C.T.'s alleged exposure to pornographic pictures and her own transmission and receipt thereof was relevant and did not fall under Rule 412. Doc. 54 at 1-2. United States District Court Judge Mark E. Walker denied the government's motion in limine and directed Stewart to file the required notice of intent to use evidence under Rule 412(c)(1). Doc. 60. Stewart complied. Docs. 54, 61. Judge Walker also ruled that Stewart could ask C.T. whether she had performed sexual acts with her boyfriend and, thus, whether the photographs at issue showed C.T. performing sexual acts on her boyfriend rather than Stewart. Doc. 103 at 5657.
Second, Stewart filed a motion in limine to allow him to question his ex-wife and C.T.'s mother, Judy Stewart.[2] Doc. 56. Judge Walker granted the motion, holding that Stewart could question Ms. Stewart about her relationship with Stewart because it could be relevant to C.T.'s motive for accusing Stewart of sexually abusing her. Doc. 102 at 36-37.
Third, at a pretrial hearing, Stewart objected to the government introducing photographs from Stewart's cell phone that appeared to have been taken through a “peephole” into the bathroom of Stewart's home. Id. at 39-47. Judge Walker ruled that the photographs would not be excluded because they were relevant and their prejudice to Stewart did not substantially outweigh their probative value. Id. at 47.
Fourth, at the same pretrial hearing, Stewart objected to the government playing an audio recording of C.T.'s reaction to seeing for the first time the thumbnail images at issue in this case. Id. at 67. Judge Walker ruled that C.T.'s subsequent identification of herself and Stewart in the thumbnails was admissible because it was nonhearsay, as was C.T.'s statement, “I didn't think anybody would believe me, ” because it was an excited utterance. Id. at 72-73.
Finally, on the second day of Stewart's first jury trial, Judge Walker determined that the government could introduce four photographs of adult pornography retrieved from Stewart's cell phone to rebut the defense that the phone was not Stewart's cell phone. Doc. 105 at 20-22.
Stewart's first jury trial, which commenced on June 24, 2015, ended in a mistrial after defense counsel discovered that the government failed to disclose to Stewart text messages that had been deleted from Stewart's phone. Id. at 115-33. Two separate agencies, the Florida Department of Law Enforcement (“FDLE”) and Homeland Security Investigations (“HSI”) had separately downloaded data from Stewart's phone. The FDLE download, which was provided to defense counsel, was a “logical extraction, ” meaning it did not include text messages that had been deleted from the phone. The HSI download, on the other hand, was a “physical extraction” that retrieved, and thus included, the deleted messages. Because the physical extraction was not provided to the defense, the government conceded prejudice.
1. Pretrial Motions
Two pretrial motions filed before Stewart's second trial are relevant here. First, in light of information disclosed at Stewart's first trial, Stewart moved to suppress from his second trial the cell-phone searches and all of the data found therein.[3] Docs. 92, 97. After a lengthy hearing, Judge Walker denied Stewart's motion for three reasons: (1) there was no evidence of intentional wrongdoing in law enforcement's handling of the phone; (2) neither chain-of-custody issues nor authenticity issues justified the suppression of the phone; and (3) any potential chain-of-custody issue was relevant to the weight rather than the admissibility of the evidence. Doc. 110; Doc. 164 at 160-66.
Second, the government moved to introduce Rule 404(b) evidence. Specifically, the government moved to introduce: (1) images of what appeared to be minors either engaged in sexually explicit conduct or displayed in a sexually provocative manner that were recovered from Stewart's phone; (2) sexually-explicit images of Stewart and his ex-wife taken from the same angle as child pornographic images also recovered from his phone; and (3) testimonial evidence of Stewart's alleged mental and physical abuse of his ex-wife, C.T., and his daughter, H.S. Docs. 77, 96, 101. Judge Walker ruled that the government could introduce a sampling of fifteen photographs of what appeared to be minors, some of whom were in provocative poses, and information about why C.T. was afraid of Stewart. Doc. 1652 at 46-64. The defense withdrew the objection to the photographs of Stewart and his ex-wife engaged in sexual activity. Id. at 56. 2. Stewart's Second Jury Trial
On August 17, 2015, a new jury was selected, and after a four-day trial at which both Stewart and C.T. testified, the jury found Stewart guilty on all counts. Docs. 118, 125, 165.
The final Presentence Investigation Report (“PSR”) grouped the four counts of conviction for guidelines calculations purposes. Doc. 130, PSR ¶ 34. Stewart's base offense level was 32. He received a two-level adjustment because the victim was under the age of 16; a four-level adjustment because the offense involved the commission of a sexual act; and a two-level adjustment because the minor victim was in his custody, care, or supervisory control. Id. ¶¶ 37-39. Thus, his total offense level was 40. Id. ¶ 46. Stewart's criminal-history category was IV due to prior convictions for burglary and domestic violence. Id. ¶¶ 56-62.
On December 7, 2015, Judge Walker sentenced Stewart to 720 months of imprisonment and a lifetime term of supervised release. Docs. 133, 134, 156. The sentence of imprisonment consisted of concurrent 360-month terms on Counts One and Two, followed by a consecutive 360-month term on Count Three. Count Four, possession of child pornography, was dismissed on the government's motion. Doc. 132. D. Stewart's Appeal
On appeal, Stewart's appointed counsel, Ryan Thomas Truskoski, raised two issues. Docs. 173, 198-1. First, he challenged Judge Walker's decision to admit into evidence the sampling of fifteen photographs discovered on Stewart's cell phone, which depicted provocatively-posed girls who appeared to be under the age of 18 years. Second, Truskoski challenged the procedural and substantive reasonableness of Stewart's sentence. On August 22, 2017, the Eleventh Circuit affirmed Stewart's conviction and sentence. United States v. Stewart, 704 Fed.Appx. 855 (11th Cir. 2017). On January 8, 2018, the Supreme Court denied Stewart's petition for a writ of certiorari. Doc. 179.
E. Stewart's Section 2255 Motion
On January 7, 2019, Stewart timely filed his original motion to vacate. Doc. 182 at 58. Stewart's second amended section 2255 motion, docketed on June 3, 2019, is now before the District Court, along with the government's response, and Stewart's reply. Docs. 194, 198, 207.
In the section 2255 motion, Stewart asserts that: (1) appellate counsel was constitutionally ineffective; (2) trial counsel was constitutionally ineffective; (3) his sentence was illegal; (4) the government suppressed and withheld material evidence and knowingly used perjured testimony; and (5) newly discovered evidence supports his claim of innocence.
On April 7, 2014, 15-year-old C.T. reported to Jackson County Florida, Sheriff's Office (“JCSO”) deputies that Stewart, her then-stepfather, forced her to perform oral sex on him. Doc. 130, PSR ¶ 11. But during another interview on April 9, 2014, conducted by a Child Protection Team (“CPT”) from the State of Florida Department of Children and Families (“DCF”), C.T. denied she had ever been touched inappropriately. Id. ¶¶ 14-15.
On May 7, 2014, a DCF investigator contacted the JCSO and advised that C.T. wanted to speak to the police again. On May 8 2014, C.T. told the police that...
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