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United States v. Penoncello

United States District Court, D. Minnesota

February 6, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SEAN GERALD PENONCELLO, Defendant.

          Katharine T. Buzicky, UNITED STATES ATTORNEY'S OFFICE, for plaintiff.

          Robert D. Richman, for defendant.

          ORDER

          Patrick J. Schiltz United States District Judge

         Defendant Sean Penoncello was convicted after a jury trial of two counts of producing child pornography and one count of possessing child pornography. He was sentenced to 400 months' imprisonment. The United States Court of Appeals for the Eighth Circuit affirmed Penoncello's sentence on direct appeal. United States v. Penoncello, 671 Fed. App'x. 399 (8th Cir. 2016).

         This matter is before the Court on Penoncello's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Penoncello argues that he received ineffective assistance of counsel prior to trial-and that, had he received effective assistance, he would have accepted the government's original plea offer, pleaded guilty to one count of producing child pornography, and received a shorter sentence. The Court agrees, grants Penoncello's § 2255 motion, and orders the government to again offer the original plea deal to Penoncello.

         I. BACKGROUND

         Penoncello was indicted on a single count of production of child pornography on April 15, 2015. ECF No. 10. The details of the crime were horrific: The government alleged that a girlfriend of Penoncello's (N.T.) had visited his home on September 15, 2012, with her seven-year-old son (A.M.), her five-year-old daughter (A.L.M.), and an adult friend (S.H.). After N.T. was bitten by Penoncello's dog, S.H. drove her to an emergency room, and the children were left in Penoncello's care. Penoncello took advantage of the unsupervised access to A.L.M. by sexually assaulting her, recording the sexual assault for his viewing pleasure, and distributing images of the sexual assault over the Internet, where they will forever be available for the viewing pleasure of other pedophiles. Two years later, law-enforcement officers discovered images of A.L.M.'s assault on the computer of a suspect in Dayton, Ohio. After an extraordinarily careful and thorough investigation, Special Agent Craig J. Heidenreich of the Federal Bureau of Investigation was able to identify A.L.M. as the victim and Penoncello as the perpetrator.

         Attorney Craig Hunter was appointed to represent Penoncello. ECF No. 9. On May 6, 2015, Hunter sent a letter to Penoncello advising him that, if he was convicted of producing child pornography as charged in the indictment, he would be facing a mandatory minimum sentence of 15 years' imprisonment. ECF No. 144-1. That was true. See 18 U.S.C. § 2251(e). Hunter also advised Penoncello that the United States Sentencing Guidelines would recommend a sentence of life in prison. ECF No. 144-1. That was not true. Because of the statutory maximum, the Guidelines would actually recommend a sentence of 30 years' imprisonment. See 18 U.S.C. § 2251(e); U.S.S.G. § 5G1.1(a). (Penoncello was 41 years old at the time.)

         Six days later, on May 12, 2015, Hunter met with Penoncello. ECF No. 162 at 11. Hunter testified that he again advised Penoncello about the 15-year mandatory minimum and the Guidelines' recommendation of “life, ” but Hunter admitted that he had no recollection of advising Penoncello-at this meeting or at any other time-about the statutory maximum. Id. at 11-12. Hunter also warned Penoncello that if he did not plead guilty, he “would not get the three-point reduction for acceptance of responsibility and would likely have a much harder time convincing the Judge he should impose only the [15-year] mandatory minimum.” Id. at 12-13.

         For his part, Penoncello testified that Hunter never informed him-during their initial meeting or at any other time-about the 30-year statutory maximum. Id. at 46-47. Penoncello further testified that, during their initial meeting, Hunter told Penoncello that he had recently been successful in winning the acquittal of a defendant at trial. Id. at 44. Hunter conceded that Penoncello's testimony on this last point “may” be correct. Id. at 13. (It is difficult to know how Penoncello would know of that acquittal if Hunter had not told him.)

         On May 26, 2015, Assistant United States Attorney Katharine Buzicky advised Hunter that Penoncello had until June 3, 2015 to plead guilty to the pending indictment. ECF No. 144-2. Buzicky warned that, if Penoncello did not do so, the government would seek a superseding indictment that would add a second count of production of child pornography and a count of possession of child pornography. Id. The second production-of-child-pornography count was based on newly discovered evidence that, months before he recorded himself sexually assaulting A.L.M., Penoncello had recorded himself engaging in sexual intercourse with his son's babysitter (A.O.)-a troubled 14- year-old girl. Penoncello's face does not appear in the videos, but Penoncello's voice is heard, A.O. is heard referring to him as “Sean, ” and Penoncello's son appears in a portion of one video. The new possession-of-child-pornography charge was based on a large cache of child pornography that law-enforcement officers found at the time of Penoncello's arrest on two thumb drives that had been hidden in a vent in Penoncello's home. Those thumb drives not only contained images and videos of Penoncello's sexual abuse of A.L.M. and A.O., but numerous other images and videos of child pornography. Images and videos of Penoncello's sexual abuse of A.L.M. and A.O. were also found on Penoncello's password-protected smartphone, which he was carrying at the time of his arrest.

         That was not all. Penoncello had been employed as a janitor at the AmericInn in Virginia, Minnesota. At the time of Penoncello's arrest, law-enforcement officers found in his vehicle a video-recording device disguised as an outlet cover. An examination of that video-recording device and the thumb drives found in Penoncello's home revealed that Penoncello had installed the device in a changing room near the pool at the AmericInn and surreptitiously recorded women and girls as they undressed. The first recording on the device was actually a video of Penoncello installing the device; although Penoncello's face cannot be seen, the man installing the device is wearing two distinctive articles of clothing that were found in Penoncello's home. The government did not charge Penoncello with any crimes in connection with his recording of the unsuspecting women and girls at the AmericInn, but there was no doubt that the government would attempt to introduce evidence of Penoncello's conduct at trial.

         After being told by Buzicky that Penoncello had to plead guilty by June 3, 2015 if he wanted to avoid a superseding indictment, Hunter met with Penoncello on May 26, 2015, and then again on June 1, 2015. ECF No. 144 at 2. The two discussed the discovery of the recording of A.O. and the possibility of Penoncello accepting a plea deal. Id. Echoing his earlier advice, Hunter again told Penoncello that he faced a 15-year mandatory minimum and a Guidelines recommendation of life. ECF No. 162 at 14-19. This, again, was incorrect. Because of the statutory maximums, the Guidelines range was 30 years under the original indictment (one count of production with a 30- year maximum) and would become 80 years under the superseding indictment (two counts of production with 30-year maximums and one count of possession with a 20- year maximum). See 18 U.S.C. §§ 2251(e), 2252(b)(2). Hunter testified that he had no recollection of ever advising Penoncello about any of the statutory maximums for the crimes charged in the original or superseding indictments. ECF No. 162 at 14-22. Penoncello testified that Hunter in fact never informed of him of the maximums, and thus, as far as Penoncello was concerned, his exposure would be the same whether he pleaded guilty to the original indictment or was convicted of all of the charges in the superseding indictment: Either way, he would be looking at ¶ 15-year mandatory minimum and a Guidelines recommendation of life. Id. at 46-47.

         Penoncello did not plead guilty to the original indictment, and on June 9, 2015, the promised superseding indictment was returned against Penoncello. ECF No. 27. At this point, Penoncello found himself charged with two counts of producing child pornography (for recording his sexual abuse of A.L.M. and A.O.) and one count of possessing child pornography (for possessing a large collection of child pornography on the thumb drives found in his home). Two months later, on August 9, 2015, Buzicky offered another plea deal to Penoncello through Hunter, this one requiring Penoncello to plead guilty to one count of production of child pornography and one count of possession of child pornography. ECF No. 144-3. Buzicky said that Penoncello could still receive the three-point reduction for acceptance of responsibility, but she warned that after August 31, 2015, the government would not agree to any plea deal, so if Penoncello wanted to plead after August 31, “he would have to plead straight up.” Id.

         Hunter again met with Penoncello to discuss his options. ECF No. 149 at 3. Hunter testified that, once again, he advised Penoncello that he was facing a 15-year mandatory minimum and a Guidelines recommendation of life. ECF No. 162 at 19-22. Hunter also testified that, once again, he had no recollection of advising Penoncello about the statutory maximum (50 years under the government's latest offer). ECF No. 162 at 19-21; 18 U.S.C. §§ 2251(e), 2252(b). Penoncello testified that he continued to be ignorant of the statutory maximums and knew only that, if he pleaded guilty, he would be subject to a 15-year mandatory minimum, and the Guidelines would recommend a sentence of life. ECF No. 162 at 46-47.

         Hunter also testified that he had no memory of discussing with Penoncello any of the other negative consequences that Penoncello could suffer if he went to trial, with one exception: Hunter told Penoncello that, if he went to trial, he would “have a much harder time convincing the Judge [to only impose] the mandatory minimum.” ECF No. 162 at 26. But Hunter did “[not] recall specifically discussing [anything] . . . beyond that.” Id. In particular, Hunter testified that he “[could not] say” that he ever told Penoncello “that the best way to achieve the best sentence would be to plead guilty and accept responsibility.” Id. Hunter further testified that he never told Penoncello that taking the stand and perjuring himself at trial could result in the judge imposing a longer sentence. Id. at 27.

         Penoncello testified that, far from warning him of the negative consequences of going to trial, Hunter actually told him that no one would much care if he opted to go to trial. Specifically, Hunter told Penoncello “that the prosecution would chalk it up as training and that there would be no penalty for going to trial.” Id. at 45. Hunter did not dispute Penoncello's claim.[1] Finally, Hunter testified that while he personally believed that the evidence against Penoncello was overwhelming and that it was in Penoncello's best interest to plead guilty, Hunter “[could not] say” that he ever mentioned this to Penoncello. Id. at 27. Hunter explained that the reason why he never informed Penoncello of the advantages of pleading guilty was “because [Penoncello] steadfastly denied that he had committed the offense, ” and thus Hunter believed that “[t]here was no basis for a plea.” Id. at 26.

         Penoncello went to trial on September 21, 2015. ECF No. 69. The prosecution introduced a mountain of evidence that Penoncello had sexually abused A.L.M., recorded the sexual abuse, and distributed images of the sexual abuse via the Internet; that Penoncello had sexually abused A.O. and recorded it; that Penoncello had maintained a large collection of child pornography in his home and on his smartphone, including depictions of his sexual abuse of A.L.M. and A.O.; that Penoncello had secretly recorded women and girls undressing in the changing room at the AmericInn; and that Penoncello had lied repeatedly when interviewed by law-enforcement agents before and after his arrest. Both N.T. (A.L.M.'s mother) and A.O. gave credible and moving testimony. The evidence left no doubt that Penoncello was guilty of the crimes charged.

         Penoncello defended himself by taking the stand, insisting that he was innocent of any crime, and presenting the theory that he had been framed by a man named “Jesse”-whom, Penoncello said, had been his rival for the affections of a woman (although Penoncello had never actually met Jesse). See ECF No. 114 at 211-39; ECF No. 118 at 7-33. Penoncello's theory was that, in order to get back at him for something or other, Jesse had sexually assaulted A.L.M. in Penoncello's home during the brief window of time on September 15, 2012 when N.T. was at the emergency room, [2]recorded the assault using the same type of smartphone that Penoncello owned at the time, circulated images of the assault on the Internet, and two years later planted photographs and video of the assault on Penoncello's new (password-protected) smartphone. And, apparently fearing that he had not done enough to get Penoncello in trouble, Jesse also managed to persuade the 14-year-old babysitter of Penoncello's son to have sex with Jesse and allow him to record it-and, during the recording, Jesse pulled off a convincing imitation of Penoncello's voice, got A.O. to call him “Sean, ” and even recorded Penoncello's son at play in his own house. (Nearly three years later, Jesse also planted photographs and video of his encounter with A.O. on Penoncello's new smartphone.) Just in case that was not enough, Jesse also took the time to amass a large collection of child pornography, download it to two thumb drives, add images and video of A.L.M. and A.O., and hide the thumb drives in a vent in Penoncello's home. And to put the icing on the cake, Jesse stole some of Penoncello's clothing, wore it while installing a hidden video camera in the women's changing room at the AmericInn (Penoncello's employer), returned the clothing without Penoncello noticing that it had been missing, recorded women and girls taking off their clothes, removed the video camera, copied the recordings to the thumb drives that he later hid in Penoncello's home, and stashed the video camera in Penoncello's vehicle shortly before the police arrested him.

         That was Penoncello's defense-as preposterous a defense as was ever presented in a federal courtroom. After three days of trial (and to the surprise of absolutely no one), the jury convicted Penoncello of all charges after a brief deliberation. ECF Nos. 73, 78.

         Penoncello appeared before the Court for sentencing on March 10, 2016. ECF No. 99. Hunter requested a downward variance and a sentence of 15 years' imprisonment (the mandatory minimum). ECF No. 89. The government sought a sentence of 480 months' imprisonment. ECF No. 90. The Court sentenced Penoncello to a total of 400 months' imprisonment. ECF No. 99. The Court acknowledged that this was “an extremely long sentence, ” but found that such a lengthy sentence was warranted because “Mr. Penoncello committed some of the worst crimes that [the Court had ever] seen, and [then] refused to take any responsibility for those crimes.” ECF No. 119 at 20-21. The Court said that “[t]he evidence against Mr. Penoncello was overwhelming” but that, “[i]nstead of admitting to [his] crimes . . . Mr. Penoncello told pathetic lies to investigators and then, at trial, took the stand and perjured himself by telling a preposterous story about a frame-up that was so complicated that not even the CIA could've pulled it off.” Id. at 23-24.

         Penoncello appealed his conviction and sentence in an Anders brief filed by Hunter. Brief for Appellant, United States v. Penoncello, 671 Fed. App'x. 399 (8th Cir. 2016) (No. 16-1711). The Eighth Circuit rejected all of Penoncello's arguments. See United States v. Penoncello, 671 Fed. App'x. 399 (8th Cir. 2016).

         Now before the Court is a § 2255 motion filed by Penoncello alleging ineffective assistance of counsel in numerous respects. See ECF Nos. 140, 141, 142. The Court scheduled an evidentiary hearing on Penoncello's petition and appointed Robert Richman to serve as counsel.[3] ECF Nos. 147, 148. At the evidentiary hearing, Penoncello withdrew all of his claims save two: a claim that he received ineffective assistance during the plea-bargaining process, and a claim that he received ineffective assistance at sentencing because Hunter did not present any mitigating evidence. ECF No. 162 at 3-6. The Court needs to address only the first of those claims.[4]

         II. ANALYSIS

         To establish ineffective assistance of counsel, Penoncello must satisfy the familiar two-part Strickland standard, establishing both deficient performance and prejudice. Lafler v. Cooper, 566 U.S. 156, 162-63 (2012); Strickland v. Washington, 466 U.S. 668, 687 (1984). That is, Penoncello must show both that his “counsel's representation fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for ...


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