United States District Court, D. Arizona
Campbell United States District Judge.
On October 20, 2015, Defendant David Lee Frater was indicted on three child pornography charges, including one count of pandering child pornography in violation of 18 U.S.C. § 2252A(a)(3)(B), one count of distributing child pornography in violation of § 2252A(a)(2)(A), and one count of possessing child pornography in violation of § 2252A(a)(5)(B). Doc. 66. On January 5, 2016, the Court accepted Mr. Frater’s guilty plea to the possession charge under a plea agreement in which the government agreed not to prosecute him on any of the other charges in the indictment. Docs. 75, 91.
On February 16, 2016, Mr. Frater sent the Court a letter requesting to withdraw his guilty plea. Doc. 95. Two days later, Mr. Frater’s attorney, Ashley D. Adams, filed a motion to withdraw from the case at Mr. Frater’s urging. Doc. 97. The Court held a hearing on both motions on February 24, 2016. For the reasons that follow, the Court will deny both motions and proceed with sentencing on April 4, 2016.
I. Motion to Withdraw Guilty Plea.
After the court accepts a guilty plea and before it imposes a sentence, a defendant may withdraw the plea if he shows a “fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “[T]he decision to allow withdrawal of a plea is solely within the discretion of the district court.” United States v. Nostratis, 321 F.3d 1206, 1208 (9th Cir. 2003). The “fair and just reason” standard is applied liberally, but the defendant bears the burden of showing that the standard is satisfied. United States v. Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004). “Fair and just reasons for withdrawal include inadequate Rule 11 plea colloquies, newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea.” Id. (citations omitted). “Erroneous or inadequate legal advice may . . . constitute a fair and just reason for plea withdrawal.” United States v. Bonilla, 637 F.3d 980, 983 (9th Cir. 2011) (citation omitted).
In his letter to the Court, Mr. Frater lists four reasons why he believes he should be permitted to withdraw his plea: (1) at the time he entered the plea agreement, he was under the false impression that § 2252A(a)(3)(B) (the provision underlying the pandering charge) was constitutional, whereas he now believes it to be unconstitutional under Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); (2) at the time he entered the plea agreement, he was under the false impression that a digital file could be an “image” within the meaning of § 2252A(a)(5)(B) (the provision underlying the possession charge), whereas he now believes otherwise; (3) at the time he entered the plea agreement, he was not aware of the Supreme Court’s decision in Brown v. Entertainment Merchants Association, 131 S.Ct. 2729 (2011), which he now believes supports a First Amendment argument against § 2252A(a)(5)(B); and (4) he entered the plea agreement without receiving all of the discovery to which he believes he was entitled. Doc. 95. At the February 24, 2016 hearing, Mr. Frater clarified his discovery objection: he believes the FBI has not adequately explained how it obtained his IP address, and that it could not have done so without breaking the law. He stated one additional reason: he believes that an FBI agent in Denver lied about having a conversation with him.
The Court concludes that Mr. Frater has not established a fair and just reason for withdrawing his guilty plea. Mr. Frater’s first three reasons rest on a misunderstanding of the law, while his remaining reasons rest on factual issues that Mr. Frater was aware of when he entered the plea agreement.
With regard to Mr. Frater’s first reason, there is no merit to his argument that the pandering provision is unconstitutional. As the Court has previously explained to Mr. Frater, the Supreme Court has rejected the exact arguments he seeks to make. In United States v. Williams, 554 U.S. 285 (2008), the Supreme Court held that the pandering provision is consistent with the First Amendment because “[o]ffers to engage in illegal transactions are categorically excluded from First Amendment protection.” Id. at 297. The Court also held that the provision was consistent with the Due Process Clause’s prohibition on vague criminal statutes. The Supreme Court explained that the pandering provision requires the government to show that the defendant believed he was distributing child pornography or that he intended to cause others to so believe. Id. at 306. No vagueness problem exists because “[w]hether someone held a belief or had an intent is a true-or-false determination, not a subjective judgment.” Id. The Court discussed Free Speech Coalition, the case relied on by Mr. Frater, and found it distinguishable. Id. at 303. The decision in Williams, which was rendered after Free Speech Coalition, controls. Utah-Nevada Co. v. De Lamar, 133 F. 113, 120 (9th Cir. 1904) (“later decisions [of the Supreme Court] must govern and control our action.”).
With regard to Mr. Frater’s second reason, there is no merit to his argument that a digital file cannot constitute an “image” under § 2252A(a)(5)(B). That provision makes it a crime to “knowingly possesses, or knowingly accesses with intent to view, any . . . computer disk, or any other material that contains an image of child pornography” if the material has been transmitted in interstate commerce. The term “[c]hild pornography” is defined, in pertinent part, as “any visual depiction, including any . . . computer or computer-generated image or picture . . . of sexually explicit conduct” involving minors. § 2256A(8). “Visual depiction” is defined to include “data stored on computer disk or by electronic means which is capable of conversion into a visual image.” 18 U.S.C. § 2256(5). Given this statutory language, the Court cannot accept Mr. Frater’s suggestion that the child pornography statutes apply only if there is an actual image - such as a photograph - physically residing within a computer box, rather than numeric values stored in the computer’s memory that can be translated by the computer into images displayed on a computer screen. Congress knows how computers work, and its express references to images on a “computer disk, ” “computer-generated image[s], ” and “data stored on computer disk or by electronic means which is capable of conversion into a visual image, ” clearly show that Congress intended the child pornography statutes to reach digital images like those at issue in this case. Mr. Frater’s argument to the contrary is wholly unpersuasive.
Moreover, this issue is not new. Mr. Frater asserted this argument before he entered his guilty plea. He raised it in a handwritten letter to the Court (Doc. 54) and it was discussed in some detail at a hearing on October 20, 2015 (Doc. 69). The Court agreed to have the issue briefed by the parties (Doc. 69), but Defendant entered a plea agreement before it was briefed (Docs. 72, 73).
With regard to Mr. Frater’s third reason, the Brown case does not help him. Brown found that state regulation of violent video games ran afoul of the First Amendment. 131 S.Ct. 2729. But nothing in Brown changed the Supreme Court’s holding that “a statute which proscribes the distribution of all child pornography, even material that does not qualify as obscenity, does not on its face violate the First Amendment.” Williams, 533 U.S. at 288. Indeed, one of the opinions in Brown specifically distinguished depictions of violence from child pornography, nothing that child pornography “automatically fall[s] outside the First Amendment’s protective scope.” Brown, 131 S.Ct. at 2762-63 (opinion of Breyer, J., dissenting). And in a decision delivered three years after Brown, the Supreme Court reaffirmed that child pornography is beyond the scope of First Amendment protection. See United States v. Alvarez, 132 S.Ct. 2537, 2544 (2012) (citing New York v. Ferber, 458 U.S. 747 (1982)).
Thus, the Court concludes that Mr. Frater’s legal arguments do not constitute a fair and just reason for allowing him to withdraw his guilty plea. His arguments are clearly incorrect and he has not shown that he has received defective legal advice. To the contrary, Ms. Adams appears to have given him very accurate legal advice. See Doc. 97.
As already noted, a fair and just reason may include “newly discovered evidence” or any other reason “that did not exist when the defendant entered his plea.” Ortega-Ascanio, 376 F.3d at 883. Although Mr. Frater originally asserted in his letter to the Court that he was denied discovery he should have received (Doc. 95 at 12), he and his counsel clarified during the hearing on February 24 that he was in fact provided all discovery by the government. That discovery includes a 233-page disclosure filed with the Court after the hearing. Doc. 102. The disclosure includes a description of how law enforcement located Mr. Frater’s IP address and later tracked it to his home, where a search warrant was executed. In addition to this document, Mr. Frater’s computer expert talked with the FBI and reviewed evidence at the FBI’s office regarding the investigation of Mr. Frater, including how his IP address was located. Counsel confirmed at the February 24 hearing that the written discovery and the expert’s findings were conveyed to Mr. Frater, and discussed with him, before his change of plea.
Mr. Frater asserted at the hearing that he used the Tor network for his computer communications, and that the Tor network made it impossible for the FBI to track his IP address without breaking the law. This is not new information. Mr. Frater said during the hearing that he has used Tor “for years and years” and is a “contributing member to the website.” Court’s LiveNote Transcript, 2/24/16. He said he used Tor because law enforcement “cannot crack it.” Id. Other cases have addressed use of the Tor network to conceal IP ...