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United States v. Penoncello

United States District Court, D. Minnesota

August 30, 2019

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

          Laura M. Provinzino, Benjamin F. Langner, and 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.Appx. 399 (8th Cir. 2016).

         Penoncello then filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Penoncello argued 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 appointed attorney Robert Richman to represent Penoncello, and the Court conducted an evidentiary hearing at which Penoncello and his original trial counsel testified. Following that hearing, the Court held that Penoncello had indeed received ineffective assistance of counsel, granted his § 2255 motion, and ordered the government to re-offer its original plea agreement. The government did so, Penoncello accepted the government's offer, and the Court held a change-of-plea hearing at which Penoncello pleaded guilty to one count of production of child pornography.

         Shortly before Penoncello was to be re-sentenced, the government informed the Court of the existence of recordings of telephone calls made by Penoncello while he was awaiting trial and being detained at the Douglas and Sherburne County Jails. According to the government, those conversations clearly contradicted the testimony that Penoncello gave under oath at the evidentiary hearing on his § 2255 motion-testimony that was the basis for the Court's conclusion that Penoncello received ineffective assistance of counsel. The Court postponed Penoncello's re- sentencing so that it could listen to the recordings of Penoncello's telephone conversations. After reviewing all recorded calls (and not just the calls cited by the government), the Court finds it likely that Penoncello committed perjury at the evidentiary hearing and that the testimony on which the Court relied in granting Penoncello's § 2255 motion was false. The Court therefore orders Penoncello to show cause why the Court should not vacate its order granting his § 2255 motion.

         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, and distributing images of the sexual assault over the Internet. 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-after reviewing the government's original plea offer-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. See 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. See 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). (For some defendants, there is no practical difference between 30 years and life, but Penoncello was only 41 years old at the time.)

         At the evidentiary hearing on Penoncello's § 2255 motion, Penoncello swore that all of the advice that he received from Hunter-whether in person or in writing-was consistent with the advice contained in Hunter's May 6, 2015 letter. In other words, Penoncello testified that Hunter consistently informed him that the minimum term of imprisonment was 15 years and that the maximum term of imprisonment was life. See, e.g., ECF No. 162 at 44-48. Penoncello swore that he was never told that, in fact, his maximum term of imprisonment was 30 years. Id. at 47. For his part, Hunter testified that he had no recollection of ever advising Penoncello that the longest sentence that he could receive was 30 years. Id. at 12, 14.

         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. Buzicky also warned that, after June 3, any plea deal would require Penoncello to plead guilty to one count of production of child pornography and one count of possession of child pornography. Id.

         The new charges that the government threatened to bring against Penoncello were based on newly discovered evidence. Specifically, the second production-of-child- pornography count was based on 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.

         Hunter met with Penoncello on May 26, and then again on June 1, to review the evidence and discuss whether Penoncello should accept the government's offer. ECF No. 144 at 2. At the evidentiary hearing on his § 2255 motion, Penoncello swore that, at these meetings, Hunter told him that whether he took a plea deal or not, he would face the same 15-year mandatory minimum and the same maximum sentence (and Guidelines recommendation) of life. ECF No. 162 at 45. In other words, according to Penoncello, Hunter told him that he had nothing to lose by going to trial: His sentencing exposure would be the same-a minimum of 15 years and a maximum (and a Guidelines recommendation) of life-whether he accepted the government's first plea offer, accepted the government's second plea offer, or rejected both plea offers and went to trial. Id. at 45-47.

         Had Hunter said such a thing to Penoncello, [1] Hunter would have been badly mistaken. Because of the statutory maximums, Penoncello's maximum sentence would be 30 years under the first plea deal (i.e., plead guilty to the one production count in the original indictment); 50 years under the second plea deal (i.e., plead guilty to one production count and one possession count in a superseding indictment); and 80 years if he went to trial and was convicted of the two production counts and the one possession count in the threatened superseding indictment. See 18 U.S.C. §§ 2251(e), 2252(b)(2).

         To make matters worse, Penoncello testified that not only did Hunter wrongly advise him that his sentencing exposure would not increase if he went to trial, but Hunter never warned him about any of the other negative consequences that would result from going to trial. In fact, Penoncello swore that Hunter told him “that the prosecution would chalk it up as training and that there would be no penalty for going to trial.” ECF No. 162 at 45. Hunter did not dispute this claim of Penoncello's, [2] and testified that he could not “specifically” remember ever telling Penoncello that there were any material benefits to pleading guilty (or material detriments to going to trial). Likewise, Hunter testified that he had no “specific” recollection of telling Penoncello that the evidence against him was overwhelming, that he was certain to be convicted, or that, after he was convicted at trial, he would likely face a much longer sentence than if he had pleaded guilty. See ECF No. 162 at 25-28.[3] Penoncello swore that, because Hunter told him that he had absolutely nothing to lose by going to trial, Penoncello rejected the government's plea offers. See, e.g., ECF No. 162 at 46, 49.

         Penoncello's trial started on September 21, 2015. 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 where he worked; 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, [4]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 password-protected 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-a defense that this Court has previously said was “as preposterous a defense as was ever presented in a federal courtroom.” United States v. Penoncello, 358 F.Supp.3d 815, 821 (D. Minn. 2019). 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. The Court sentenced Penoncello to 400 months' imprisonment. ECF No. 99. Penoncello appealed his conviction and sentence, and Hunter filed an Anders brief on Penoncello's behalf. Brief for Appellant, United States v. Penoncello, 671 Fed.Appx. 399 (8th Cir. 2016) (No. 16-1711). The Eighth Circuit rejected all of Penoncello's arguments and affirmed his conviction and sentence. See United States v. Penoncello, 671 Fed.Appx. 399 (8th Cir. 2016).

         Penoncello then filed the instant § 2255 motion, arguing that, for several reasons, he had not received effective assistance of counsel from Hunter. See ECF Nos. 140, 141, 142. After conducting an evidentiary hearing, the Court granted Penoncello's § 2255 motion based on the Court's holding that Penoncello had received ineffective assistance from Hunter during the plea-bargaining process when Hunter failed to advise him of the statutory maximum penalties he faced and failed to advise him of the benefits of pleading guilty. The Court's holding was based almost entirely on Penoncello's testimony at the evidentiary hearing, as the documentary evidence was scant, and as Hunter had little to say other than that he did not have a specific recollection of most of his conversations with Penoncello.

         The Court now turns to the question of whether the recordings of Penoncello's calls from jail as he awaited trial demonstrate that the testimony that Penoncello later gave at the evidentiary hearing was false.

         II. ANALYSIS

         As noted, the Court's holding that Penoncello received ineffective assistance of counsel was grounded on two findings: first, the finding that Hunter never provided Penoncello accurate information regarding his sentencing exposure, and second, the finding that Hunter never advised Penoncello of the material advantages of accepting the initial plea offer. It now appears that both of the Court's findings are belied by Penoncello's recorded jail calls.[5]

         A. Sentencing Exposure

         As the Court explained in its prior order, defense counsel has the duty to provide a client with sufficient information about the client's sentencing exposure to allow the client “to make a reasonably informed decision [regarding] whether to accept a plea offer.” United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992) (citations omitted); see also United States v. Herrera, 412 F.3d 577, 580 (5th Cir. 2005) (defense counsel has an obligation to “[a]ppris[e] a defendant about his [sentencing] exposure under the sentencing guidelines”); Smith v. United States, 348 F.3d 545, 553 (6th Cir. 2003) (“A criminal defendant has a ...


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