United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Judge.
On June 10, 2014, Petitioner David Conrad ("Conrad" or "Petitioner"), by counsel, filed the present motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies Petitioner's § 2255 motion and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).
On November 16, 2005, the government filed an information against Petitioner and on January 23, 2007, a federal grand jury returned a Superseding Indictment charging him with eight counts of possessing, transporting, advertising, and distributing child pornography in violation of 18 U.S.C. §§ 2251(c)(1)(A), 2251(d), 2252A(a)(2)(A), 2252A(a)(1), 2252A(a)(5)(B), 2252A(b)(1), and 2252A(b)(2). In particular, the Superseding Indictment charged that on July 12 and 14, 2002, and October 24, 2002, Petitioner advertised, received or distributed, transported, and possessed at least six video images containing child pornography.
On February 5, 2010, after a two-week trial at which fourteen witnesses testified and dozens of exhibits were admitted into evidence, a jury found Petitioner guilty on eight counts of possessing, transporting, advertising, and distributing child pornography. At Petitioner's sentencing hearing in April 2010, the Court concluded that the applicable Sentencing Guidelines range pursuant to the 2009 version of the Sentencing Guidelines was 360 months to life. The Court then sentenced Petitioner to 198 months in prison. Also, based on long-standing Seventh Circuit precedent, the Court rejected Petitioner's argument that the Court should apply the Sentencing Guidelines in effect at the time he committed the crimes. See United States v. Demaree, 459 F.3d 791 (7th Cir. 2006).
Petitioner filed his notice of appeal on April 24, 2010. On appeal, Petitioner argued that the Court erred in denying his motion to suppress evidence recovered from his parent's home and that the Court erred when it applied the Sentencing Guidelines in effect at the time of his sentencing. Relying on Demaree, the Seventh Circuit affirmed Petitioner's conviction and sentence on March 14, 2012. See United States v. Conrad, 673 F.3d 728 (7th Cir. 2012).
On June 10, 2014, Petitioner, by counsel, filed the present motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. On August 21, 2014, after the parties had fully briefed this motion, a grand jury returned an Indictment against Petitioner's defense counsel, Beau Brindley. Mr. Brindley was Petitioner's attorney at trial and on appeal, and also represents Petitioner in the present motion. On September 4, 2014, the Court held a hearing and advised Petitioner that Mr. Brindley had been indicted in the United States District Court for the Northern District of Illinois. Further, the Court advised Petitioner of the potential conflicts that could arise under the circumstances and appointed an attorney with the Federal Defender Program as independent counsel for the conflict consultation. After consulting with independent counsel, Petitioner knowingly and voluntarily waived any potential conflict and agreed to have Mr. Brindley continue representing him in this matter. See United States v. Hubbard, 22 F.3d 1410, 1418 (7th Cir. 1994).
Palos Heights Police Sergeant Michael Zaglifa was conducting an undercover investigation of on-line child pornography distribution on July 12, 2002, and October 24, 2002. During each of those undercover sessions, Sergeant Zaglifa entered a chat room with a name suggestive of child pornography and saw an individual, using the nickname "v^sickboy^v" in July and "EvolDSL" in October, advertising child pornography videos and offering to distribute them from his F-serve in return for additional child pornography. During both undercover sessions, Sergeant Zaglifa made a direct connection with the individual's F-serve and, after uploading encrypted files, downloaded child-pornography from the F-serve to his computer. At trial, an internet-service-provider ("ISP") representative testified that the individual running the F-serve initiated the sessions with Sergeant Zaglifa from the same physical location.
After Sergeant Zaglifa, with the assistance of the ISP, traced the individual's IP addresses for each of the undercover sessions to Rogers Machinery Sales ("Rogers Machinery") - a business that Petitioner's father, Roger Conrad, owned - law enforcement agents obtained a warrant to search Rogers Machinery. On December 20, 2002, one team of law enforcement agents executed the search warrant at Rogers Machinery, while a second team went to Roger Conrad's Geneva, Illinois residence ("Geneva Residence"). When law enforcement agents searched Rogers Machinery, they found no evidence of child pornography or F-serve software.
While, at the Geneva Residence, Petitioner agreed to accompany law enforcement agents to his apartment on Milwaukee Avenue in Chicago. After arriving there, Petitioner signed a waiver of his Miranda rights, consented to searches of his Milwaukee Avenue apartment and computers, and admitted, among other things, that he had used his laptop computer to run the F-serve and had advertised and solicited pornographic movies. Law enforcement agents showed copies of printouts from Sergeant Zaglifa's undercover sessions to Petitioner, who wrote brief statements on them and signed them to indicate that he had been engaged in the activity during the undercover sessions.
Law enforcement agents forensically tested Petitioner's computers in 2003-04 and found on his computer child pornography and text logs in which he had used nicknames that were similar to the nicknames and trigger words that he had used during the undercover sessions. Again, in June 2009, the Government forensically examined Petitioner's computers, this time pursuant to a search warrant. Using superior software than that used in 2003-04, Paul Rettig, a Computer Forensic Examiner with the Chicago Regional Computer Forensics Laboratory, found additional chat logs and child pornography on Petitioner's computers, including one of the charged videos. In addition, Rettig found that the advertisements from the July 14, 2002, undercover session matched the advertisement found in a July 14, 2002, text log from one of Petitioner's computers. Also, Rettig found documents on another of Petitioner's computers indicating that he had used variations of the name "Evol" for his business.
At trial, Petitioner's forensic expert, Tami Loehrs, testified that one of Petitioner's computers could not have been used to run the F-serve containing the child pornography because it had insufficient capacity to hold that many video files, that another user was physically using the computer, and that someone could have gained remote control of Petitioner's computer to run the F-serve. Loehrs also testified that the way in which law enforcement agents handled this computer made the June 2009 testing unreliable. She conceded, however, that there was no evidence that law enforcement agents had planted any evidence on Petitioner's computers or turned back the clocks on the computers. In rebuttal, FBI Special Agent testified that Petitioner had spoken with the government ...