United States District Court, D. Minnesota
M. Provinzino, Benjamin F. Langner, and Katharine T. Buzicky,
UNITED STATES ATTORNEY'S OFFICE, for plaintiff.
D. Richman, for defendant.
Patrick J. Schiltz United States District Judge
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).
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.
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.
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.
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.)
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.
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
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.
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.
Hunter said such a thing to Penoncello,  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. §§
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,  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. 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.
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.
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,
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.)
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.
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.
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.
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.
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
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 ...