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Jacobs v. United States

United States District Court, D. New Jersey

May 10, 2018

DENNIS JACOBS, Petitioner,


          FREDA L. WOLFSON, United States District Judge


         Petitioner, Dennis Jacobs (“Jacobs”), commenced this proceeding by filing a Motion to Vacate, Set Aside, or Correct his criminal sentence, under 28 U.S.C. § 2255. (Mot., ECF No. 1; Am. Mot., ECF No. 6.) The Court denied his motion on September 15, 2017. (Op., ECF No. 23; Order, ECF No. 24.) Presently before the Court is a motion by Jacobs seeking relief from that Opinion and Order, under Federal Rule of Civil Procedure 60(b), which the Court also construes as a motion for reconsideration, in the alternative. (ECF No. 25.) Under Federal Rule of Civil Procedure 78, this motion is decided without oral argument, and, for the following reasons, the motion is DENIED.


         As the Court's prior Opinion recited the underlying facts and procedural history in detail, only the most pertinent facts are repeated. In September 2011, the Police Department of the Port Authority of New York and New Jersey received a tip that M.E., a 17-year-old boy, had run away from his home in Italy, and was to be picked up at Newark Liberty International Airport by Jacobs, a convicted sex offender. (Ans., Ex. A, ECF No. 14-2.) It was confirmed that Jacobs had two felony convictions for aggravated sexual contact with minor children; as a result of these convictions, he was subject to community supervision for life and was prohibited from having any contact with minors and from any internet access. (Id.) Police officers and FBI agents observed Jacobs meeting M.E. at the airport, whereupon they kissed and walked out to Jacobs's car together. (Id.) Jacobs was then arrested and M.E. was taken into custody by Customs and Border Patrol. (Id.) Although Jacobs initially declined consent to search his car, he subsequently relented, stating that it contained a computer with “evidence” on it. (Id.)

         In an interview with agents, M.E. indicated that he had met Jacobs online and that they had exchanged sexually explicit photographs of themselves. (Id.) He explained that when they first began chatting, in February 2011, he told Jacobs that he was 18 years old, but that, in May of that year, he admitted that he was, in fact, only 16. (Id.) M.E. had previously come to visit Jacobs in July 2011, and he stated that they had engaged in oral and anal sex six or seven times during that visit. (Id.) M.E. alleged that, when he had proposed another visit, Jacobs had instructed him to alter the date on his birth certificate in an effort to avoid trouble. (Id.)

         The following day, officers obtained search warrants for Jacobs's car and home. (Ans., Ex. E, ECF No. 14-6.) Upon executing these warrants, they seized a laptop computer, disc drives, media discs, digital cameras, and a cellular phone, among other things. (Ans., Ex. C.) Searches of these devices and discs, executed under communications data warrants, revealed instant messages between Jacobs and M.E. (Id.) A subsequent search of a storage unit, executed under a federal warrant, produced an additional computer and storage discs, and review of these items revealed 28 pornographic images of M.E., a video of him bathing, and 297 sexually explicit chats between Jacobs and M.E. (Ans., Ex. I, ECF No. 14-10.)

         Jacobs was charged, in a federal criminal complaint, with one count of possession of child pornography, under 18 U.S.C. § 2252(a)(5)(B) and (b)(2). (Ans., Ex. J, ECF No. 14-11.) The government offered an initial plea deal of distribution and/or receipt of child pornography, which would have carried a mandatory minimum sentence of 15 years imprisonment, but indicated that, if no plea deal was reached, the government would pursue a charge of production of child pornography, which, given the circumstances, could have resulted in a 35-year mandatory minimum sentence. (See Ans., Ex. K, ECF No. 14-12.) After months of negotiations, the government made a “best and final” offer of a plea to possession of child pornography, which carried a mandatory minimum sentence of only ten years. (Ans., Ex. N, ECF No. 14-15.) Jacobs's counsel, David Schafer (“Schafer”), advised Jacobs by letter that there was “no chance of being acquitted of the possession or distribution charges at trial” and that he did not perceive any Fourth Amendment violations arising from the underlying searches and seizures. (Id.) In a subsequent letter, Schafer addressed Jacobs's expressed concerns over the propriety of the arrest and again advised Jacobs that it would be a disservice if he advised that there was “any chance whatsoever of having any of the evidence gathered against you suppressed, or to be acquitted at trial.” (Ans. Ex. Q, ECF No. 14-18.) Jacobs appeared before Judge Joel A. Pisano on September 13, 2013, and accepted the plea deal. United States v. Jacobs, Crim. No. 13-601, ECF Nos. 18 & 27.

         Jacobs filed his Motion to Vacate, Set Aside, or Correct his sentence on June 30, 2015, alleging that he received ineffective assistance of counsel. (ECF No. 1.) He filed an Amended Motion shortly thereafter. (ECF No. 6.) Jacobs primarily asserted that Schafer should have (1) sought suppression of evidence obtained in connection with his arrest, (2) sought suppression of evidence obtained via warrants, and (3) negotiated a conditional plea deal. (See Id. ¶ 12.)

         In addressing Jacobs's arguments, the Court found that Schafer was not ineffective by failing to argue for suppression of evidence, as the arresting officers had probable cause to arrest Jacobs and, in any case, the central evidence against him could not have been suppressed as “fruit of the poisonous tree.” (ECF No. 23 at 17-20.) The Court further found that the search warrants were properly based on corroborated statements, law enforcement observations, and the victim's own statements. (Id. at 21-23.) As the Court concluded that any suppression motion would have failed, it found that Jacobs could not meet the prejudice factor required for ineffective assistance of counsel. (Id. at 20, 23.) The Court further found that Jacobs suffered no prejudice from Schafer's failure to seek a conditional guilty plea as the proposed suppression motions were meritless and, furthermore, there is no indication that the government would have agreed to a conditional plea. (Id. at 23-24.) Construing the Amended Motion as including an allegation that the plea was involuntary, the Court found no evidence that Schafer had coerced Jacobs into accepting the deal, noting that Schafer's correspondence emphasized that the choice was Jacobs's and that Jacobs gave a sworn statement at the plea hearing before Judge Pisano that the plea was knowing and voluntary. (Id. at 24-27.) Finally, the Court found no resulting prejudice from an alleged failure by Schafer, during the plea colloquy, to correct factual inaccuracies concerning when Jacobs learned M.E. was a minor. (Id. at 27-28.)


         Shortly after the Court issued its Opinion and Order denying Jacobs's § 2255 motion, Jacobs filed the motion presently pending before the Court, which seeks relief from the final order under Federal Rule of Civil Procedure 60(b). (ECF No. 25.) The gist of the motion is that Jacobs's argument that the Court should have held an evidentiary hearing concerning whether Schafer provided ineffective assistance. (See ECF No. 25 at 4, 6, 11-12.) As in his original motion, Jacobs argues that Schafer was ineffective by ignoring Fourth Amendment issues and failing to seek suppression of evidence. (See Id. at 3-8.) Jacobs contends that Schafer's “only concern was to get a favorable guilty plea for all sides concerned to get a prior sex offender's criminal record of twice encountering minors off the street away from society[;] Regardless of his clients rights.” (Id. at 5.)

         Jacobs additionally argues that no evidence was submitted to the Court showing that M.E. was in fact a minor or establishing that the person interviewed was actually M.E. (Id. at 8- 9, 10-12.) Jacobs argues that Schafer was incompetent by failing to prove M.E.'s identity and age, and he seems to suggest that Schafer should have hired investigators to determine whether “M.E. could have been an adult impersonating as a minor.” (Id. at 11.) He further alleges that Schafer failed “to go to the scene of the crime and locate potential witness[]es.” (Id.)

         In response, the government argues that Jacobs improperly uses his motion simply as an attempt to reargue the issues already resolved by the Court. (ECF No. 26, at 1.) It contends that, as the Court has already considered and ruled on Jacobs's various arguments, any issue he has with ...

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