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Gentles v. United States

United States District Court, E.D. Missouri, Southeastern Division

June 18, 2018

DAVID LEE GENTLES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by David Lee Gentles, a person in federal custody. On April 29, 2015, Gentles was found guilty of the offense of Receipt of Child Pornography, Use of Internet to Distribute Child Pornography and Use of Internet to Knowingly Attempt to Transfer Obscene Matter to a Minor Individual and, on August 11, 2015, this Court sentenced Gentles to the Bureau of Prisons for a term of 120 months, a sentence within the sentencing guideline range. Gentles' § 2255 action, which is based on several allegations of ineffective assistance of counsel, is fully briefed and ripe for disposition.

         I. BACKGROUND

         A. THE INDICTMENT

         Gentles was indicted by a grand jury on November 15, 2012, and originally charged with one count of transferring obscene matter to an individual less than sixteen years old via the Internet in violation of 18 U.S.C. § 1470. (DCD 1)[1] On May 7, 2014, Gentles was charged in a Superseding Indictment, which clarified that Gentles was being charged with the attempt to transfer obscene matter to an individual less than sixteen years old via the Internet. (DCD 84)

         On March 19, 2015, Gentles was charged in a Second Superseding Indictment with three counts: knowingly receiving images of child pornography in violation of 18 U.S.C. § 2252A(a)(2), knowingly distributing images of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252A(a)(3)(B), and knowingly attempting to transfer obscene matter to an individual less than sixteen years old via the Internet in violation of 18 U.S.C. § 1470.

         B. MOTIONS TO SUPPRESS

         Gentles filed a Motion to Suppress Evidence on October 7, 2013. (DCD 57) After a hearing on that motion, a Report and Recommendation was issued by Magistrate Judge Blanton which denied Gentles' Motion to Suppress Evidence. (DCD 76) Judge Limbaugh issued an Order on March 14, 2014, upholding Judge Blanton's Report and Recommendation, “but only to the extent of the ‘good faith exception' analysis.” (DCD 82) Gentles then filed a Supplemental Motion to Suppress Evidence on September 26, 2014, alleging that Special Agent Logan's involvement in the investigation violated 18 U.S.C. § 1385, known as the Posse Comitatus Act. (DCD 102) After a hearing on that motion, it was also denied. (DCD 121, 122)

         Facts presented at the hearing on Gentles' first Motion to Suppress include the following:

         On May 16, 2012, Captain David Sutton of the Poplar Bluff Police Department (PBPD) received a referral from Lieutenant Mateja of the Missouri Internet Crimes Against Children Task Force that a Naval Criminal Investigative Services (NCIS) Special Agent was concerned that David Gentles of Leeper, Missouri may be involved in the sexual exploitation of a child. (I MTS TR., pp. 8-10) Lieutenant Mateja relayed that in March of 2012, the NCIS Agent (working in an undercover capacity) had posed as a 12-year-old girl (using the screen name “SunnySara12”) and chatted with a person on Yahoo using the screen name “hellosweetdarlin.” (I MTS TR, pp. 9-10) During the chat, “hellosweetdarlin” instructed “SunnySara12” on how to masturbate; “hellosweetdarlin” also stated that he had taught his 14-year-old daughter to masturbate. (I MTS TR., p. 10) Lieutenant Mateja advised Captain Sutton that the NCIS Agent confirmed that the IP address used by “hellosweetdarlin” was assigned to David Gentles of Leeper, Missouri. Id.

         In addition to the referral from Lieutenant Mateja, the information Captain Sutton received concerning the NCIS Agent's on-line chat with “hellosweetdarlin, ” included: a copy of the chat communication between the NCIS Agent acting as “SunnySara12” and “hellosweetdarlin, ” identified at the hearing as Government's Exhibit 2; a disc containing a copy of the video file depicting the March 21, 2012 on-line session of the NCIS Agent that involved “hellosweetdarlin, ” and depicted Gentles masturbating, which was identified at the hearing as Government's Exhibit 3; a copy of a subpoena sent to Windstream Communications from the National Center for Missing and Exploited Children (NCMEC) for information related to 173.186.193.43 (an Internet Protocol (IP) address) on March 21, 2012 at 15:06:39 EDT, identified at the hearing as Government's Exhibits 4 and 4A; and the administrative subpoena response from Windstream Communications indicating that David Gentles was the subscriber of the Internet Protocol (IP) address associated with “hellosweetdarlin, ” identified at the hearing as Government's Exhibit 5. (I MTS TR., pp. 11-18)

         Captain Sutton reviewed the video file depicting the on-line session between the NCIS Agent and “hellosweetdarlin, ” which occurred on March 21, 2012. (I MTS TR., p. 12)

         The information Windstream Communications provided in response to the NCMEC subpoena was faxed on May 8, 2012, and admitted at the hearing as Government's Exhibit 5. (I MTS TR., p. 16) Specifically, Windstream Communications' response included the following details:

a) starting on March 19, 2012 at 22:22:45 and stopping on March 26, 2012 at 22:22:45, IP address 173.186.193.43 was assigned to David Gentles;
b) the user identification associated with David Gentles' account was “fcgc01;”
c) Gentles' “billing address” was P.O. Box 38, Mill Springs, MO 63952;
d) Gentles' “physical address” was Route 3, Box 7292, Hwy 495 in Looper, MO 63957;
e) the account type was DSL, starting September 5, 2008;
f) the status of the account was “Active;” and
g) between May 10, 2011 and May 5, 2012, the bills paid by Gentles ranged from $177.82 up to $230.79.

(I MTS TR., pp. 18-19; Gentles' Add., pp. A9-A12) (emphasis added) Captain Sutton believed the reference to Looper was a typographical error, and should have been to the town of Leeper, Missouri. (I MTS TR., pp. 19-20)

         To investigate the allegations in the referral, Captain Sutton traveled to the Wayne County Sheriff's Department (WCSD) and contacted Sergeant Massa. (I MTS TR., p. 20-21) Sergeant Massa told Captain Sutton that he was familiar with David Gentles and advised that Gentles lived at 103 5th Street in Mill Spring, Missouri. Sergeant Massa added that he believed Gentles lived alone and that Gentles did not have young children. (I MTS TR., p. 20-21) Although the WCSD authorities did not believe Gentles had a teenager living with him, Captain Sutton knew “that sometimes a suspect will try to engage a child in a conversation like this, will pretend to have a child, and they'll talk about how they have done this with . . . children before and that they liked it.” (I MTS TR., p. 51)

         The officers also retrieved information from the Missouri Uniform Law Enforcement System checking for other vehicles and for Gentles' operator's license. That database also indicated that Gentles' address was 103 5th Street in Mill Spring. Captain Sutton subsequently traveled with Sergeant Massa to Gentles' 103 5th Street residence to talk to Gentles, but no one answered the door. (I MTS TR., p. 21)

         The next day, May 17, 2012, Captain Sutton prepared an affidavit and application for a search warrant to search Gentles' residence located at 103 5th Street in Mill Spring, which was issued later that day by the Circuit Court of Wayne County, Missouri.

         The search warrant was executed at Gentles' Mill Spring residence between 3:00 and 3:30 p.m. on May 17, 2012. (I MTS TR., p. 30) No. one was home and the officers entered the residence. (I MTS TR., p. 30) The items seized pursuant to the warrant included a red Gateway laptop computer, a black Fuji Film digital camera, a sheet of paper with notes, and a Maxwell CDR disc. (I MTS TR., p. 31-32)

         Officers took photographs, including pieces of mail addressed to Gentles and other items that Captain Sutton observed in the webcam transmission between “hellosweetdarlin” and “SunnySara12, ” which were admitted at the suppression hearing as Government Exhibits 9-11. (I MTS TR., pp. 32-34)

         On May 23, 2012, PBPD Detective Greg Brainard applied for and received a search warrant to examine the computer related items that had been seized from Gentles' residence. (I MTS TR., p. 37) The search warrant was secured so that Detective Brainard could conduct a forensic examination of the items seized from Gentles' residence. Id. During a search of Gentles' computer, forensic investigators discovered evidence of “hellosweetdarlin” being used as an account, along with an image of the icon for “SunnySara12, ” and several images of child pornography, on Gentles' hard drive.

         C. JURY TRIAL

         On April 28 and 29, 2015, the case against Gentles was tried before a jury. The jury convicted him on all three counts charged in the Second Superseding Indictment. (DCD 155, 160)

         Prior to trial, a discussion was held relative to plea negotiations between the Government and Gentles' attorneys, and plea offers extended by the Government which were rejected by Gentles.

Mr. Hahn: Your Honor, the only other thing at this moment that I can think of is representation or something on the record relative to any offers that were made by the Government for the disposition of this case, which if the court would like to address that.
The Court: Yeah. Why don't you go ahead and make a statement on that issue too.
Mr. Hahn: Yes, Your Honor. When this case was initially charged I think in 2012, at some point the following year the previous prosecutor, now magistrate Judge Abbie Crites-Leoni, made an offer to resolve this case based on a plea to the only count then existing, which was the count of attempting to transfer obscene matter over the internet to someone less than 16 years old.
There was a plea agreement drafted to that effect. And the attorney for Mr. Gentles at that time was the federal public defender Mr. Scott Tilsen. That offer was rejected at that time it is my understanding.
I got involved in the case I think January of 2014. And Mr. Wilson was then in the case after replacing Mr. Tilsen. That same offer that was memorialized in a proposed plea agreement between Abbie Crites-Leoni and Mr. Tilsen was then renewed by the Government, which involved reducing the charge, which is for that kind of charge was 18 U.S.C. 1470 reducing that charge to 18 U.S.C. 1462, which was simply attempting to transfer obscene matter over the internet or charging that. We renewed that offer, and that offer was also rejected.
And since that time that indictment has been superseded with a second superseding indictment adding two counts that are set forth in Counts 1 and 2 on receiving and distributing child pornography. There have been no additional offers from our office to resolve this case.
There has been a discussion with Mr. Wilson in that Mr. Wilson did indicate after the superseding indictment he asked, we discussed would the Government accept a plea offer of 60 months of five years. And my response was I would review that if that offer was made from the defense. If Mr. Gentles was willing to plead to five years. I would review that with my supervisors.
No offer was made by me, but I made it clear that Mr. Wilson on behalf of Mr. Gentles would have to make that offer. And that offer has not been made. It's not been considered by my office.
The Court: Do you was to address this, Mr. Wilson?
Mr. Wilson: Yes, Judge. Everything that Mr. Hahn said I believe is accurate up until the time I got into the case. I was not in this when Mr. Tilsen was, but from what I learned from Tilsen I believe what he has represented here today is accurate.
With respect to the offer of a plea once I got into the case to the single count of attempt to transfer that offer was rejected. There were discussions as recently as I think maybe two months ago about the possibility after the second superseding indictment which contains a potential for a five-year mandatory minimum sentence. There was a discussion, as he represented, where I opened the door and said if Mr. Gentles would accept this would the Government agree to a firm disposition at 60 months.
And, as Mr. Hahn represented he said he'd have to ask his superiors, but that we would need to come back. And I have discussed that possibility with Mr. Gentles. And I did not get back to Mr. Hahn, because I was ...

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