United States v. Strausbaugh
| Decision Date | 21 May 2019 |
| Docket Number | CRIMINAL NO. 1:11-CR-96 |
| Parties | UNITED STATES OF AMERICA v. MICHAEL STRAUSBAUGH (1), Defendant |
| Court | U.S. District Court — Middle District of Pennsylvania |
(Chief Judge Conner)
Defendant Michael Strausbaugh ("Strausbaugh") was sentenced to 45 years' imprisonment after being convicted of multiple offenses involving child sexual exploitation and possession and distribution of child pornography. Strausbaugh moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 212). We will deny Strausbaugh's motion.
In March 2011, a grand jury returned a three-count indictment charging Strausbaugh with sexual exploitation of a child in violation of 18 U.S.C. § 2251(a) and (e) (Count I); distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b) (Count II); and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count III). Less than two months later, a grand jury returned a superseding indictment charging two additional counts of sexual exploitation of a child under 18 U.S.C. § 2251(a) and (e) (Counts IV and V). Strausbaugh's wife, Rebecca Strausbaugh, was also charged in Count I of the original indictment and in Counts I, IV, and V of the superseding indictment. The superseding indictment included forfeiture allegations under 18 U.S.C. § 2253.
In October 2011, a three-day bench trial was held before the Honorable William W. Caldwell. Strausbaugh and his wife were convicted on all counts. Judge Caldwell sentenced Strausbaugh to an aggregate term of 540 months' imprisonment, consisting of 360 months on each of Counts I, IV and V, to run concurrently; 120 months on Count III, to run concurrently to Counts I, IV and V; and 180 months on Count II, to run consecutively to all other counts. The Third Circuit Court of Appeals affirmed Strausbaugh's conviction and sentence. United States v. Strausbaugh, 534 F. App'x 178, 180 (3d Cir. 2013) (nonprecedential). The United States Supreme Court subsequently denied Strausbaugh's petition for a writ of certiorari. Strausbaugh v. United States, 135 S. Ct. 99 (2014) (mem.).
Strausbaugh timely filed a pro se motion under 28 U.S.C. § 2255, asserting 21 grounds for relief. He thereafter supplemented his motion to raise three additional claims. Judge Caldwell determined that a hearing was required on the motion and appointed counsel for Strausbaugh. This case was then transferred to the undersigned due to Judge Caldwell's retirement. We convened an evidentiary hearing on December 21, 2017, during which Strausbaugh, through counsel, withdrew grounds 13, 14, and 21 related to ineffective assistance of appellate counsel.1 (Hr'g Tr. 3:22-5:5). The parties have filed two rounds of post-hearing supplemental briefing, and Strausbaugh's Section 2255 motion is now ripe for disposition.
Under 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct the prisoner's sentence. 28 U.S.C. § 2255. Courts may afford relief under Section 2255 on a number of grounds including, inter alia, "that the sentence was imposed in violation of the Constitution or the laws of the United States." 28 U.S.C. § 2255(a); see also 28 U.S.C. § 2255 Rule 1(a). The statute provides that, as a remedy for an unlawfully imposed sentence, "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b). The court accepts the truth of the defendant's allegations when reviewing a Section 2255 motion unless those allegations are "clearly frivolous based on the existing record." United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005). A court is required to hold an evidentiary hearing when the motion "allege[s] any facts warranting § 2255 relief that are not clearly resolved by the record." United States v. Tolliver, 800 F.3d 138, 141 (3d Cir. 2015) (quoting Booth, 432 F.3d at 546).
Strausbaugh's Section 2255 motion, after supplementation and withdrawal of several claims, contains 21 grounds for relief. To the extent possible, we will group these claims rather than address them in numerical order. We begin with Strausbaugh's independent claims (grounds 15, 16, 17, 22, and 24) before turning to those sounding in ineffective assistance of counsel (grounds 1 through 12 and 23) and related cumulative error (grounds 18, 19, and 20).
Strausbaugh asserts five claims that have no relation to ineffective assistance of counsel. We take these claims seriatim.
Strausbaugh claims that his Fifth Amendment right to due process was violated when he was convicted under Section 2251(a) and Section 2252A(a)(5)(B) without the United States proving a sufficient nexus to interstate activity. This ground for relief reflects a constant refrain from Strausbaugh that the federal government overstepped its constitutional authority when it prosecuted him for purely intrastate activity by improperly utilizing one of the "jurisdictional hooks" in those statutes.
A jurisdictional hook is "a clause that purports to ensure that the law only covers activity that has a substantial effect on interstate commerce" so as to remain within Congress's enumerated powers under the Commerce Clause. United States v. Rodia, 194 F.3d 465, 468 (3d Cir. 1999). In the child sexual exploitation and possession of child pornography statutes at issue, Strausbaugh focuses on clauses regarding child pornography produced or transmitted "using materials that have been mailed, [or] shipped, or transported in or affecting interstate or foreign commerce by any means[.]" 18 U.S.C. §§ 2251(a), 2252A(a)(5)(B) (emphasis added). Strausbaugh contends that the government should have been required to prove that he had entered interstate commerce by voluntary affirmative acts and that his illegal conduct had a substantial effect on interstate commerce. This attack, though characterized as an as-applied due process challenge, is really a repackaged form ofthe Commerce Clause argument Strausbaugh raised on direct appeal and that is found in his first ineffectiveness claim (ground 1). This challenge, in all its iterations, is meritless.
The Third Circuit has repeatedly upheld as constitutional the federal prosecution of child pornography and sexual exploitation offenses for child pornography "produced using materials" that have traveled in interstate or foreign commerce. In Rodia, the defendant challenged his conviction involving an almost identical jurisdictional foundation in a former version of 18 U.S.C. § 2252(a)(4)(B). Rodia, 194 F.3d at 468. The panel rejected that challenge, finding that "Congress could rationally have believed that intrastate possession of pornography has substantial effects on interstate commerce." Id. at 468-69, 482. Likewise, in United States v. Galo, 239 F.3d 572 (3d Cir. 2001), the Third Circuit rejected a constitutional challenge to another nearly identical jurisdictional element, this time in Section 2251(a), by invoking the rationale set forth in Rodia. Galo, 239 F.3d at 574-76 (citing Rodia, 194 F.3d at 468, 471, 473). Strausbaugh has neither identified authority overruling Rodia and Galo nor challenged the sufficiency of the evidence regarding the jurisdictional hooks at issue. We therefore conclude that Strausbaugh's federalprosecution and conviction on Counts I, III, IV, and V did not run afoul of the Commerce Clause or violate his due process rights under the Fifth Amendment.2
Strausbaugh claims that his sentence violates due process because the government did not show any actual harm to the victim. He argues that the sentencing judge was compelled to speculate as to the victim's injuries, devolving to harm suffered in the "ordinary case." (Doc. 213-1 at 97-98). Strausbaugh asserts that he caused minimal harm to the victim because she was only eight months old at the time and could have no lasting memory of the events. He maintains that he should not have received the statutory maximum sentence of thirty years—apparently a reference to the statutory maximum sentence on any of the production counts—when others have caused far greater injury.
Strausbaugh's argument relies on out-of-context quotations from Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015). That reliance is misplaced. The Supreme Court in Johnson addressed a vagueness challenge to the constitutionality of the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The ACCA compels a 15-year mandatory minimum sentence for personsconvicted under 18 U.S.C. § 922(g) who have acquired three prior, adult convictions for a "violent felony" or a "serious drug offense." 18 U.S.C. § 924(e)(1). The ACCA defines "violent felony" to include three categories of offenses: (1) crimes having "as an element the use, attempted use, or threatened use of physical force against the person of another"; (2) crimes of burglary, arson, or extortion, or which involve use of explosives; and (3) crimes which "otherwise involve[] conduct that presents a serious potential risk of physical injury to another." Id. § 924(e)(2)(B)(i)-(ii). In Johnson, the Supreme Court invalidated the third category of offenses, known as the "residual clause," as unconstitutionally vague. Johnson, 135 S. Ct. at 2557.
Strausbaugh's due process claim in ground 16 has nothing to do with Section 922(g), the ACCA, the now-unconstitutional residual clause in Section 924(e)(2)(B)(ii), or a similarly phrased provision. Johnson thus has no relevance to the case sub judice. Strausbaugh has failed to present any record evidence or relevant case law to support this due process claim. We will therefore deny it.
In supplemental ground 22,...
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