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Date: 09-01-2021
Case Style:
United States of America v. Gregory Bogomol
Case Number: 18-11486
Judge: Before Dennis, Elrod, and Costa, Circuit Judges.
Per Curiam
Court: United States Court of Appeals
for the Fifth Circuit
Plaintiff's Attorney:
Defendant's Attorney:
Description:
New Orleans, LA- Criminal defense lawyer represented defendant with o two counts of producing child pornography charges.
IIn 2013, the Department of Homeland Security received information
that a minor male had been induced to send nude photographs of himself to
a person presenting as a minor female named “Crystal Williams.” When the
minor declined a request to send a full-body picture, “Crystal Williams”
threatened to send the minor’s nude photographs to the minor’s friends if he
did not comply.
Investigating agents discovered that the phone number and e-mail
used by “Crystal Williams” was associated with a credit card belonging to
Gregory Bogomol and a physical address associated with Bogomol’s father’s
name. The agents also determined that Gregory Bogomol was a public-highschool teacher living in Fort Worth, Texas. Concluding that they lacked
probable cause to conduct a search, the agents went to Gregory Bogomol’s
residence and knocked on the door.
When Bogomol’s wife answered the door, the agents introduced
themselves as Department of Homeland Security agents and “stated that
[they] were investigating a matter that someone was possibly using [the
Bogomols’] identity on the Internet.” Bogomol’s wife invited the agents
inside. Once inside the house, the agents encountered Bogomol and sat down
at a table with Bogomol and his wife. At that point, the agents “explained
that [they] conduct investigations related to child exploitation” and that
“[the Bogomols’] name and address [were] associated with the
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3
investigation.” The Bogomols then stated that they worked in education and
would be happy to assist the agents.
Bogomol consented to a search of his phone. One of the agents, upon
viewing the phone, opened an application and saw numerous pictures of
young males in different stages of undress. The agent told Bogomol that they
needed to talk about the pictures, but that he was not “under arrest or being
detained in any way,” and that “he did not have to answer any of [the]
questions.” Bogomol responded that he wanted to speak about it in private,
at which point the agents “gave him the opportunity to take a ride with
[them] in” the agents’ vehicle. After telling his wife that he was going with
the agents to fill out some paperwork, Bogomol went with the agents in their
vehicle.
Once in the vehicle, the agents again questioned Bogomol about the
pictures, and Bogomol confessed to using the online persona of a minor
female to entice minor males to produce pictures of their genitals. He
admitted that he spent two to three hours per day soliciting nude photographs
of minor males, including students at the high school he taught at, and that
he would attempt to blackmail victims with their nude photographs if they
failed to comply with his demands. The Department of Homeland Security
subsequently secured a search warrant for Bogomol’s cell phone and found a
large number of pornographic images of minors on it.
A federal grand jury indicted Bogomol on two counts of production of
child pornography under 18 U.S.C. § 2251(a). Bogomol’s defense counsel
did not advise him of any potential suppression issues, and Bogomol pleaded
guilty pursuant to a written plea agreement. He was sentenced to two
consecutive sentences of 360 months’ imprisonment.
On direct appeal, Bogomol argued that his conviction was flawed
because had “did not admit that the images would move across state lines.”
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United States v. Bogomol, 623 F. App’x 219, 220 (5th Cir. 2015). This court
affirmed his conviction, see id. at 221, and the Supreme Court denied his
petition for certiorari, see Bogomol v. United States, 577 U.S. 1229 (2016).
Almost a year later, Bogomol filed the instant motion to vacate his
sentence under 28 U.S.C. § 2255 in the United States District Court for the
Northern District of Texas. He asserted a single claim in the motion: that his
defense counsel provided ineffective assistance by failing to file a motion to
suppress and failing to advise him of the potential suppression issues prior to
the entry of a guilty plea. He argued that the agents induced his consent to
their search by giving him and his wife the impression that the agents were
investigating identity theft, not child pornography. In support of this
assertion, Bogomol attached what he alleged were defense counsel’s
contemporaneous notes from his intake interview; the notes apparently
relayed Bogomol’s statement to defense counsel that the DHS agents “said
[they were] here for identity theft.” That alleged misrepresentation, argued
Bogomol, vitiated his consent and made the search unconstitutional under
the Fourth Amendment.
The district court denied the § 2255 motion without an evidentiary
hearing. It concluded that “no misrepresentation occurred that would have
overcome Bogomol’s will.” As to the intake notes, the district court
concluded that (1) the agents’ statements about their investigation were not
an “affirmative misrepresentation” or “a deliberate attempt to deceive”
because “the record shows that agents were present regarding an ongoing
child-exploitation investigation that was associated with Bogomol’s identity”
and (2) that the statement in the notes was unreliable because it was not
supported by affidavits or meaningful context. Finally, the district court
determined that Bogomol could not show that he had been prejudiced by any
potential failing by defense counsel because his plea agreement stated that he
had “thoroughly reviewed all legal and factual aspects of this case with his
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5
lawyer” and was “fully satisfied with that lawyer’s legal representation.”
The district court declined to grant a certificate of appealability.
Bogomol then moved for a certificate of appealability in this court.
The motion was granted on the following issue:
Whether the district court abused its discretion in denying,
without conducting an evidentiary hearing, his ineffective
assistance claim based on counsel’s failure to investigate or
advance the claim that Bogomol’s consent to search his
electronic devices was involuntary because it was based on false
or pretextual representations or to advise Bogomol as to the
possible merit of the suppression issue.
II
On an appeal from a denial of a § 2255 motion, we review the district
court’s factual findings for clear error and its legal conclusions de novo.
United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008). We review a
district court’s refusal to grant an evidentiary hearing on a § 2255 motion for
abuse of discretion. Id.
To warrant an evidentiary hearing, the petitioner must “produce[]
independent indicia of the likely merit of [his] allegations.” United States v.
Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (quoting United States v.
Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998)). “Once such independent
evidence is presented, ‘[a] motion brought under 28 U.S.C. § 2255 can be
denied without a hearing only if the motion, files, and records of the case
conclusively show that the prisoner is entitled to no relief.’” Cavitt, 550 F.3d
at 442 (quoting United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992)).
When “the files and records of a case make manifest the lack of merit of a
Section 2255 claim, the trial court is not required to hold an evidentiary
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hearing.” United States v. Hughes, 635 F.2d 449, 450 (5th Cir. Unit B Jan.
1981).
1
III
Bogomol asserts that his counsel’s assistance violated his Sixth
Amendment right to effective assistance of counsel because his counsel did
not investigate or object to the evidence obtained from the search of his
phone. To prevail, Bogomol must prove both (1) that his counsel’s
performance “fell below an objective standard of reasonableness” “under
prevailing professional norms” and (2) that “the deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687–88. Under the
deficiency prong, there is “a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Id. at 689. In
the context of a guilty plea, counsel’s performance is deficient when
counsel’s advice leaves the defendant unable “to make an informed and
conscious choice to plead guilty.” Cavitt, 550 F.3d at 441. Under the
prejudice prong, the petitioner must show “a reasonable probability that, but
for counsel’s errors, [he] would not have pleaded guilty and would have
insisted on going to trial.” United States v. Green, 882 F.2d 999, 1002 (5th
Cir. 1989) (quoting United States v. Smith, 844 F.2d 203, 209 (5th Cir. 1988)).
Because Bogomol’s ineffective-assistance claim rests on the viability
of his forgone Fourth Amendment claim (that the search of his phone was
unconstitutional), our “inquiry . . . entails an assessment of [that] putative
Fourth Amendment claim.” Cavitt, 550 F.3d at 435.2 Bogomol’s primary
1 See also Hughes, 635 F.2d at 451 (“A motion to vacate judgment and sentence filed
pursuant to 28 U.S.C. § 2255 does not automatically mandate a hearing.”).
2 See also Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (“Where defense
counsel’s failure to litigate a Fourth Amendment claim competently is the principal
allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment
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argument is that his consent to the agents’ search of his phone was
involuntary. Whether Bogomol’s consent was voluntary is a question of fact,
reviewed for clear error. United States v. Tompkins, 130 F.3d 117, 120 (5th
Cir. 1997). Voluntariness is evaluated “from the totality of the circumstances
surrounding the search.” Id. at 121.3
In examining the totality of the circumstances of the search, we weigh
six factors:
(1) the voluntariness of the defendant’s custodial status;
(2) the presence of coercive police procedures; (3) the extent
and level of the defendant’s cooperation with the police;
(4) the defendant’s awareness of his right to refuse to consent;
(5) the defendant’s education and intelligence; and (6) the
defendant’s belief that no incriminating evidence will be found.
Id. (quoting United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir.
1988)).
Although “no single factor is dispositive or controlling of the
voluntariness issue,” we have held that “‘[c]onsent’ induced by an officer’s
misrepresentation is ineffective.” Id. (quoting Olivier-Becerril, 861 F.2d at
426); Cavitt, 550 F.3d at 439.4 “The issue to be decided is whether, looking
claim is meritorious and that there is a reasonable probability that the verdict would have
been different absent the excludable evidence in order to demonstrate actual prejudice.”).
3 The dissenting opinion contends that we have inverted the standard of review.
Not so. This case presents two layers of deference to the district court’s determination,
with the first being our review of its denial of an evidentiary hearing. That standard is abuse
of discretion. Cavitt, 550 F.3d at 435. The second layer is our review of the district court’s
determination that Bogomol’s consent was voluntary. That standard is clear error.
Tompkins, 130 F.3d at 120. We follow this two-layer approach, as required by our
precedent.
4 See also United States v. Tweel, 550 F.2d 297, 299 (5th Cir. 1977) (“It is a well
established rule that a consent search is unreasonable under the Fourth Amendment if the
consent was induced by the deceit, trickery or misrepresentation of the [government].”).
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at all of the circumstances, the defendant’s will was overborne.” United
States v. Davis, 749 F.2d 292, 294 (5th Cir. 1985).
Other than a one-sentence assertion that he was never told that he
could refuse to give consent to the search, Bogomol focuses entirely on the
second Tompkins factor and argues that the agents used coercion by
“tricking” him into giving his consent.5 He contends that his wife was
tricked by the agents telling her at the front door that someone was “possibly
using [the Bogomols’] identity on the internet” and by the agents allegedly
asking him a question about whether his credit card had been stolen.6
Bogomol also directs us to our decision in United States v. Tweel, 550
F.2d 297 (5th Cir. 1977). There, the defendant wanted to determine whether
an IRS investigation was a criminal one, so he asked the IRS whether a
“special agent”—the type of agent that normally conducts criminal
investigations—was involved in the investigation. Id. at 298. The IRS
truthfully responded that no special agent was involved, but did not mention
that the investigation had been initiated by the Organized Crime and
Racketeering Section of the DOJ. Id. The defendant, believing from the
IRS’s answer that the investigation was not criminal, voluntarily provided the
5 Bogomol does not specifically argue that the agents intended to deceive him.
Instead, he argues that he and his wife were in fact deceived by the agents’ alleged
“misrepresentations.”
6 The dissenting opinion is incorrect that this case presents conflicting evidence.
To the contrary, the parties agree about what was said and when it was said. Moreover, the
fact that Bogomol’s wife may have been under the impression that the agents were only
investigating identity theft does not create a fact dispute on whether she was tricked or not.
Voluntariness of consent is an objective inquiry that asks “what would the typical
reasonable person have understood by the exchange.” Florida v. Jimeno, 500 U.S. 248, 251
(1991). Thus, the subjective impression of Bogomol’s wife or how she felt is not
relevant. As we have explained above, there was indeed evidence of possible identity theft
and the agents told Bogomol’s wife that at the front door. The agents never stated that
identity theft was the only reason for their visit.
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IRS with documents that led to criminal charges against him. Id. This court
held that this counted as the sort of “sneaky deliberate deception” that
vitiated voluntariness. Id. at 299. Bogomol argues that the government also
used sneaky deliberate deception against him and that he therefore did not
provide voluntary consent to the search.
In response, the government argues that the agents did not use
coercion to gain Bogomol’s consent. The government’s principal argument
is that, far from being deceptive, what the agents told the Bogomols was in
fact true. The government contends that what was told to Bogomol’s wife at
the front door was true—that they thought that someone was “possibly using
[the Bogomols’] identity on the internet.” (As explained above, the name on
the account that solicited the child’s photo was Crystal Williams, Bogomol’s
phone number was associated with the credit card on the account, and
Bogomol’s father’s name was also associated with the credit card.) In
addition, once inside the house with both Bogomols, the agents explicitly told
the Bogomols that they investigated “child exploitations,” which was also
true.
Citing our decision in Davis, the government also contends that
Bogomol’s consent was voluntary because the agents did not “intentionally
deceive[]” Bogomol. 749 F.2d at 297. In Davis, law enforcement officers
gained entry to the defendant’s home and consent to search it based on the
officers’ statement that they were looking for an illegal machine gun. Id. at
293. The officers did not find a machine gun, but they did find other guns in
the house and charged the defendant with being a felon in possession of a
firearm. Id. at 294. We held that the defendant’s consent was voluntary
because “[t]he mere failure of the officers to give an encyclopedic catalogue
of everything they might be interested in does not alone render the consent
to search involuntary.” Id. at 295. Here, the government notes that the
agents never “assured” Bogomol that the conversation and subsequent
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search “would be used only” to dispel identity theft. Id. at 297. And the
government argues that “there is no evidence in the record of any intent to
deceive.” Id. The government argues that the agents were required only not
to affirmatively misrepresent. Cavitt, 550 F.3d at 439.
As for Bogomol’s argument that he did not know that he could refuse
consent to the search of his phone, the government argues that he must have
known that because he “disappeared” from the room during the agents’
discussion with him and his wife and came back only after being called for by
the agents. But our precedent teaches that, on this Tompkins factor, we look
to what the law enforcement officers told the defendant: “An officer’s failure
to inform a suspect that he has a right to refuse to consent to a search militates
against voluntariness.” United States v. Soriano, 976 F.3d 450, 457 (2020).
Because the agents did not tell Bogomol that he could refuse consent, the
fourth Tompkins factor weighs in Bogomol’s favor.
Bogomol makes no argument as to the four other Tompkins factors,
and the government contends that all of those weigh against him. On the
custody factor, the government notes that Bogomol was in his own home and
not in custody. On the cooperation factor, the government notes that
Bogomol and his wife indicated that they were “happy to assist” the agents,
that Bogomol handed over his computer and phone, and that Bogomol told
the agents that he would talk with them about the photos found on his
phone—as long as he could do so away from his wife. On the intelligence
factor, the government notes that Bogomol has two bachelor’s degrees and
was employed as a teacher. Finally, the government argues that the sixth
factor also weighs in its favor, as it is likely that Bogomol (wrongly, as it
turned out) believed that no incriminating evidence would be found on his
phone, as he had deleted the application that he had used to communicate
with the minor.
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On this record, we cannot say that the district court clearly erred in
determining that Bogomol’s consent was voluntary. The first step in figuring
out if Bogomol was actually “Crystal Williams” was to determine whether
someone was “possibly using [the Bogomols’] identity on the internet”—
which is precisely what the agents told Bogomol’s wife that they were there
to investigate.7
That was not a misrepresentation. And neither was the
statement told to both of the Bogomols once the agents were inside the house:
that they investigated “child exploitations” and that “[the Bogomols’] name
and address [were] associated with the investigation.” The government did
not “materially deceive[]” Bogomol, and Bogomol does not argue that the
government intended to deceive him. Tweel, 550 F.2d at 300. On the facts
of this case, we cannot say that Bogomol’s “will was overborne” such that
his consent was involuntary. Davis, 749 F.2d at 294.
As for Bogomol’s comparison of his case to Tweel, that comparison is
inapposite. In Tweel, the government agent knew that the defendant believed
that the investigation was a civil one, and the agent knew that the defendant’s
belief was completely false. Tweel, 550 F.2d at 299. Under the facts of that
case—where government agents had “mask[ed]” the nature of the
investigation and “materially deceived” the defendant—we held that the
government agent had a duty to correct the false impression held by the
defendant. Id. at 300. In this case, there have been no material deceptions.
Bogomol alternatively argues that the agents violated his Fourth
Amendment rights long before searching his phone, by knocking on his door
and entering his house as part of their attempt to criminally investigate him.
But officers can generally employ “a ‘knock and talk’ strategy where [they]
seek to gain an occupant’s consent to search.” United States v. Gomez7As noted above, both Bogomol’s name and his father’s name were associated with
the cell phone and e-mail address that solicited photos from the minor.
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Moreno, 479 F.3d 350, 355 (5th Cir. 2007), overruled on other grounds by
Kentucky v. King, 563 U.S. 452 (2011); see also Westfall v. Luna, 903 F.3d 534,
545 (5th Cir. 2018) (“We have recognized the knock-and-talk strategy as ‘a
reasonable investigative tool when officers seek to gain an occupant’s consent
to search or when officers reasonably suspect criminal activity.’” (quoting
United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001))). Officers exceed
their customary license to approach a home and knock only in unusual
circumstances, such as when they knock outside normal waking hours or look
through the windows of the home. Westfall, 903 F.3d at 545.
Bogomol’s trial counsel’s performance did not “f[a]ll below an
objective standard of reasonableness” by failing to investigate or move to
suppress the evidence, so the district court rightly rejected his ineffectiveassistance-of-counsel claim. Strickland, 466 U.S. at 688. And, because the
district court had all the evidence it needed to conclusively determine that
Bogomol’s ineffective-assistance-of-counsel claim lacked merit, it did not
abuse its discretion in not holding an evidentiary hearing. See Cavitt, 550
F.3d at 442.
Outcome: The judgment of the district court is AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments: