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Jacobs v. United States

United States District Court, D. New Jersey

September 15, 2017

DENNIS JACOBS, Petitioner,


          FREDA L. WOLFSON, U.S.D.J.


         This § 2255 motion arises out of Dennis Jacobs's (“Jacobs”) conviction and ten-year sentence for possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5) and (b)(2). Pursuant to Fed.R.Civ.P. 78, upon review of all submissions, this matter is decided without oral argument, and for the reasons stated below, the Court denies the Motion and denies a certificate of appealability.


         a. Jacobs's Arrest

         On September 9, 2011, New York/New Jersey Port Authority Police Department (“Port Authority”) detectives received information from an individual named Claudia Richardi (“Ms. Richardi”) that the father of then-17-year-old M.E. was concerned for his son, who had left his home in Italy and was due to arrive later that day at Newark Liberty International Airport (“Newark Liberty”) on a flight from Rome. (Ex. A.[2]) M.E.'s father had called a friend, Venanzio Pasubio, to tell him that M.E. had run away from home and was to be picked up at the airport by Jacobs. (Id.) Jacobs had given M.E. a specific address in Ewing, New Jersey, which M.E. had relayed to his father. (Id.) Ms. Richardi, who was Mr. Pasubio's girlfriend, contacted law enforcement after discovering on the internet that Jacobs was a registered sex offender. (Id.)

         The Port Authority officers sought to corroborate the information that Ms. Richardi provided. A computer check revealed that Jacobs was, indeed, a registered sex offender in the State of New Jersey. (Ex. A.) Jacobs had been convicted in 1988 of sexually assaulting his adopted minor daughter, in violation of N.J.S.A. 2C:14-2(a)(2)(c), and had been sentenced to 15years in prison. (Ex. C, ¶¶ 52-62.) Jacobs then was convicted in 2000 for attempted sexual assault, in violation of N.J.S.A. 2C:14-2 and 2C:5-1, after he was caught attempting to rendezvous with a 15-year-old male whom he had met in an online chat room-in reality an undercover police officer-and was sentenced to six years in prison. (Id. ¶¶ 63-68.) Based on these convictions, Jacobs was subject to community supervision for life and, as a result, he was prohibited from having any contact with minors and from accessing the internet. (Id. ¶¶ 63, 68-70.)

         Having confirmed that Jacobs was a registered sex offender, Port Authority detectives then confirmed that M.E. was due to arrive in Newark on September 9, 2011 on an inbound flight from Rome. They also learned from United States Customs and Border Protection that M.E. previously had entered the United States on July 17, 2011, and had remained in the United States until August 9, 2011. (Ex. A.) In connection with that visit, M.E. had listed Jacobs's Ewing address-the same address that he had given his father for the second visit-as his destination. (Id.) Based on this information, Port Authority detectives established surveillance at Newark Liberty in anticipation of M.E.'s arrival from Rome. (Id.) They observed a vehicle (registered in Jacobs's name) pull into the short-term parking lot for the international terminal at the airport. (Id.) The detectives saw Jacobs get out of his car, go inside the terminal, and meet M.E. in a passenger greeting area. (Id.) The officers observed Jacobs and M.E. kiss in the greeting area, and together walk back to Jacobs's vehicle in the parking lot. (Id.) At that point, the detectives approached Jacobs, placed him under arrest, and read him his Miranda rights. (Id.) The officers asked Jacobs if he would consent to a search of his car, and he declined. (Id.) The officers then placed Jacobs in the back of a patrol car, at which time Jacobs “stated that he would consent to a search of his vehicle because there was a computer in the vehicle [that] had evidence on it.” (Id.) The officers did not, however, search the vehicle at that time. (Id.)

         After arresting Jacobs, law enforcement officers interviewed M.E. at Newark Liberty. (Exs. A, B.) During the detailed interview, M.E. told the officers that he had met Jacobs on the internet in late January 2011, when M.E. was 16 years old. (Ex. B.) M.E. stated that he and Jacobs sent e-mails and chatted every day with each other on the internet. (Id.) They traded sexually explicit photographs of each other and filmed themselves nude in front of a webcam and masturbated for each other. (Id.) M.E. and Jacobs also engaged in sexually explicit chats over the internet. (Id.) M.E. said that Jacobs told him that he kept all of the photographs and videos of M.E on compact discs (“CDs”) at his house so he (Jacobs) could look at them. (Id.) M.E. also told law enforcement that he had told Jacobs initially that he was 18 years old but, in May 2011, M.E. informed Jacobs that he was actually 16 years old. (Ex. B.) M.E. also confirmed that he had visited Jacobs once before. (Id.) M.E said that he had flown in from Italy in July 2011 and that Jacobs had picked him up at Newark Liberty. (Id.) M.E. stayed with Jacobs at his address in Ewing, New Jersey, until August 9, 2011. (Id.) M.E. stated that during this visit, Jacobs engaged in anal and oral sex with him approximately six or seven times. (Id.) M.E. said that Jacobs also showed him photographs of other young, naked males during the visit. (Id.) Finally, M.E. told law enforcement that after he had returned to Italy in August 2011, he told Jacobs that he wanted to return to New Jersey. (Exs. A, B.) Jacobs instructed M.E. to change the date on his birth certificate so that Jacobs would not get into trouble. (Id.) M.E. had a friend do so, and afterward M.E. sent the altered birth certificate to Jacobs so that Jacobs could see if the certificate “looked good.” (Id.)

         Jacobs was charged under state law with knowingly exhibiting obscene material to a person under the age of 18, in violation of N.J.S.A. 2C:34-3B. (Ex. D.) Two days later, after admitting to his parole officer that he had accessed a computer and the internet, he was charged with knowingly violating the terms of his community supervision for life, in violation of N.J.S.A. 2C:43-6.4D, and an arrest warrant issued.[3] (Id.)

         b. The State and Federal Search Warrants

         On September 10, 2011, the day after Jacobs's arrest, law enforcement officers sought and obtained search warrants, under New Jersey law, for Jacobs's residence and vehicle. (Ex. E). Port Authority Detective Lawrence Mays's affidavit in support of the search warrants set forth the information obtained during the investigation-including the information received from Ms. Richardi, law enforcement's investigation and physical surveillance, law enforcement's observation of M.E.'s arrival at Newark Liberty and his kiss with Jacobs at the terminal, Jacobs's voluntary statement from the back of the patrol car, and M.E.'s statements during his interview with law enforcement. (See id.) The officers executed the searches of Jacobs's residence and vehicle on September 10, 2011 and September 13, 2011, respectively. Pursuant to those searches, law enforcement seized a laptop, portable disc drives, media discs, digital cameras, a cellular phone, gay male pornography, sex toys, and other miscellaneous items. (Ex. C, ¶ 17.)

         On October 7, 2011 and October 12, 2011, law enforcement officers sought and obtained communications data warrants, again pursuant to New Jersey law, to search the electronic and computer media that had been recovered from the search of Jacobs's residence and vehicle, as well as M.E.'s laptop computer, which law enforcement also had seized. In his affidavits in support of the communications data warrants, Detective Gary M. Wasko of the Mercer County Prosecutor's Office explained, among other things, that probable cause existed because M.E. had stated in his interview that he and Jacobs had sent each other naked pictures over the internet and that Jacobs saved the images on CDs. (Ex. F.) Detective Wasko also explained that, based on his training and experience, individuals who possess child pornography usually do so using computer or other electronic media. (Id.)

         Pursuant to the communications data warrants, law enforcement conducted a forensic examination of, inter alia, M.E.'s netbook computer and the laptop found in Jacobs's vehicle. (Ex. C, ¶ 20.) The forensic examination identified, among other things, electronic instant messages between M.E. and Jacobs. (Id.) In one of those messages, M.E. told Jacobs during a chat message on May 13, 2011 that he was 16 years old. (Id. ¶ 22.) Jacobs responded by stating that “[i]t could possibly put me in jail” and that “I thought you could be younger than 18 because of how sweet and loving you are with me all the time.” (Id. ¶ 22.)

         On March 13, 2012, a federal Magistrate Judge authorized a federal search warrant for Jacobs's residence and a storage unit located at the residence. (ECF No. 18-1, Corrected Ex. H.[4]) The search warrant authorized law enforcement to search for child pornography and related items on, inter alia, any of the computer devices, cameras, images, and documents located in Jacobs's home or the storage unit. (Id.) In his affidavit in support of the warrant, Special Agent Mark Lubischer of U.S. Homeland Security Investigations set forth the information obtained during the investigation-including the information received from Ms. Richardi, law enforcement's investigation and physical surveillance, law enforcement's observation of M.E.'s arrival at Newark Liberty and his kiss with Jacobs at the terminal, Jacobs's voluntary statement from the back of the patrol car, M.E.'s statements during his interview with law enforcement, and the results of the prior searches. (See Id. at ¶¶ 16-27.) Mr. Lubischer then explained that in December 2011, law enforcement officers interviewed the property manager of Jacobs's residence, who indicated that Jacobs maintained a storage unit at the residence that had not been searched during the initial search. (Id. ¶¶ 28-31.) The property manager also told law enforcement that after the state search warrant was executed in September 2011, he had entered Jacobs's apartment to work on the heating system, and noticed a number of CDs and a flash drive still in the apartment. (Id.) After learning this information, law enforcement then spoke with a detective from the Mercer County Prosecutor's Office who had been present during the September 2011 search of Jacobs's residence. (Id.) The detective noted that at the time of the original search, not all computer media had been seized, and that law enforcement had been unaware at the time that Jacobs maintained a storage unit at the residence. (Id.)

         The search pursuant to the federal search warrant yielded two hard drives, one flash drive, and one netbook from the residence and storage unit. A forensic review of those items identified a total of 28 of pornographic images of M.E. In addition, a video of M.E. bathing nude was identified on multiple media as well. (Ex. I.) Law enforcement also located approximately 297 sexually explicit chats between Jacobs and M.E.[5] (Id.)

         c. The Federal Complaint, Appointment of Counsel, and Plea Negotiations

         On September 28, 2012, Jacobs was charged in the District Court for the District of New Jersey with one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). (Ex. J.) In addition to § 2252A, the complaint also included an allegation that Jacobs was criminally liable under 18 U.S.C. § 2, the federal aiding and abetting statute. (Id.) Jacobs was transferred from state to federal custody on January 8, 2013, and he had his initial appearance before the Magistrate Judge that day. The Court appointed David E. Schafer, Esq., who had been an Assistant Federal Public Defender for approximately 28 years, to represent Jacobs. (Ex. K (Affidavit of David E. Schafer (“Schafer Aff.”), ¶ 3.)

         Shortly after Jacobs's initial appearance, Assistant United States Attorney (“AUSA”) Nelson S.T. Thayer, Jr. made a written plea offer to Jacobs, which contemplated a plea to distribution and/or receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1).3 (Schafer Aff. ¶ 9.) Given Jacobs's two prior convictions for sex offenses involving minors, the initial plea offer would have subjected Jacobs to a statutory mandatory minimum of 15 years in prison, and a maximum prison sentence of 40 years. (See Exs. N, Q.) See also 18 U.S.C. § 2252A(b)(1). AUSA Thayer also provided Mr. Schafer a packet of early discovery. (Schafer Aff. ¶ 4; Ex. L.)

         During the initial plea negotiations between the parties, the government intended to require Jacobs to plead guilty to receipt or distribution of child pornography, an offense carrying a statutory mandatory minimum term of 15 years' imprisonment. See 18 U.S.C. § 2252A(a)(2), (b)(1). AUSA Thayer also indicated to Mr. Schafer that, in addition to a receipt/distribution offense, the government would pursue a charge of production of child pornography if a pre-indictment resolution could not be reached.[6] (Schafer Aff., ¶ 10.) Plea negotiations continued for several months. (Schafer Aff. ¶¶ 11-12.) On May 2, 2015, AUSA Thayer made a second written plea offer to Jacobs (the “May 2 plea offer”), which called for Jacobs to plead guilty to possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5) and (b)(2), rather than the more serious distribution/receipt charge that the initial plea offer had contemplated. (Ex. R.)

         By letter dated April 11, 2013, Mr. Schafer updated Jacobs on the status of the plea negotiations, advised him that M.E.'s testimony would not be necessary for the government to prove Jacobs guilty of possession of child pornography, advised him about a possible plea agreement for possession of child pornography rather than one contemplating a charge of receipt/distribution of child pornography, and cautioned him about the risks of rejecting a plea agreement to a possession charge:

If and when I receive a proposed plea agreement for possession- which they can prove with only law enforcement witnesses and need not bring anyone over from Italy-I will come to the jail and review it with you. At that time, you can either accept the plea or decide to go to trial, which could result in convictions for receipt and production, which carry much longer sentences than possession.

(Ex. M.)

         After receiving the May 2 plea offer, Mr. Schafer enclosed the plea agreement along with a letter to Jacobs dated May 7, 2013. (Ex. N.) In that letter, Mr. Schafer explained that “the Government ha[d] compromised from its original position that [Jacobs] must plead guilty to distribution of child pornography, ” and that it would accede to a possession charge only. (Id.) Mr. Schafer noted that the revised plea offer was “the result of months of negotiations and [was] the ‘best' and final offer the Government will make.” (Id.) Counsel then outlined the relative sentencing considerations for his client: If Jacobs pleaded guilty, counsel believed that, given his age and the circumstances of the case, Jacobs had a “good chance” of receiving the mandatory minimum sentence of ten years. (Id.) By contrast, if Jacobs proceeded to trial, Mr. Schafer explained that he believed Jacobs had “no chance of being acquitted of the possession or distribution charges.” (Id.) Mr. Schafer also noted that he did not believe that there were any Fourth Amendment issues with the searches of Jacobs's residence, vehicle, or computer equipment, because although the investigation had been initiated from information provided by Ms. Richardi, that information then had been corroborated by law enforcement officers' own investigation and observations. (Id.). Mr. Schafer advised his client that he had a choice: Jacobs could plead guilty to a statutory mandatory minimum sentence of ten years, or risk serving a mandatory minimum of at least 15, and perhaps 35, years if he went to trial on charges of distribution and production of child pornography. (Id.) He reminded Jacobs that “that a loss at trial would probably quadruple your imprisonment time.” (Id.)

         By letter dated May 16, 2013, Mr. Schafer sent Jacobs some of the instant messages that the government had recovered, which showed Jacobs's knowledge of M.E.'s age. (Ex. O.) In the accompanying letter, Mr. Schafer explained that Jacobs's messages to M.E. would be admissible at trial under Federal Rule of Evidence 801(d)(2)(A), and that M.E.'s responsive communications to Jacobs likely would be admissible under a hearsay exception. (Id.)

         Jacobs and Mr. Schafer signed the plea agreement on May 20, 2013. (Ex. R.) The plea agreement included a stipulation of facts and a limited waiver of direct appeal and collateral attack based on sentencing error with respect to the stipulation. (Id. at 7.) Thereafter, Jacobs requested changes to the factual stipulations in the agreement to address the timeframe during which Jacobs discovered M.E.'s actual age. The proposed revision would state that when Jacobs and M.E. first made contact via the internet in January 2011, M.E. was sixteen years old but had informed Jacobs that he was eighteen years old, and that M.E. did not admit to Jacobs that he was sixteen years old until May 13, 2011. (See Ex. P at 4.) By letter dated May 30, 2013, Mr. Schafer informed Jacobs that he had sent an email to AUSA Thayer with the requested changes, which AUSA Thayer apparently rejected.[7] (Id.)

         In the May 30 letter, Mr. Schafer also, among other things, again advised Jacobs of the risks of not proceeding with a guilty plea pursuant to the plea agreement. Counsel noted that if AUSA Thayer “has to go before the Grand Jury to get an indictment, the possession deal will be off the table and the indictment will include counts of production and distribution that will not be dismissed.” (Id.)

         On August 15, 2013, Mr. Schafer sent a letter to Jacobs summarizing the events of the case, the negotiations with the government, and his legal advice to date. (Ex. Q.) Mr. Schafer again discussed the benefits of pleading guilty: While the government's initial plea offer would have carried a sentence of 15 to 40 years, under the May 2 plea offer, Jacobs would plead guilty to a crime carrying only a ten-year mandatory minimum sentence, which counsel believed Jacobs would receive. (Id.)

         In the August 15, 2013 letter, Mr. Schafer also addressed several defenses that Jacobs apparently had put forth. Specifically, counsel addressed Jacobs's argument that the government lacked probable cause to arrest him, and Mr. Schafer cited case law supporting his analysis. (Id.) Mr. Schafer also explained that law enforcement's search of Jacobs's ...

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