United States District Court, D. Columbia.
FRANK B. LOMBARD, Petitioner,
UNITED STATES OF AMERICA, Respondent
[Copyrighted Material Omitted]
For Frank M. Lombard, Defendant: Anitha W. Johnson, LEAD ATTORNEY, ODELUGO & JOHNSON, LLC, Lanham, MD; Chris Peter Kokkinakos, PRO HAC VICE, Southfield, MI.
Gladys Kessler, United States District Judge.
Petitioner Frank Lombard (" Lombard" or Petitioner) has filed a Motion to Vacate his criminal sentence pursuant to 28 U.S.C. § 2255 [Dkt. No. 34]. Lombard argues that his sentence of 327 months imprisonment for sexual exploitation of a minor should be vacated because his attorney rendered ineffective assistance during plea negotiations with the Government, at sentencing, and on direct appeal. Upon consideration of the Motion, Opposition [Dkt. No. 48], Reply [Dkt. No. 51], Petitioner's Response to the Court's April 25, 2014 Order [Dkt. No. 54], the Government's Response to the Court's Order [Dkt. No. 55], and the entire record herein, and for the reasons set forth below, Petitioner's Motion shall be denied.
A. The Offense and Plea Agreement
On December 17, 2009, Lombard pleaded guilty to one count of sexual exploitation of a child in violation of 18 U.S.C. § 2251(a). See Plea Agreement [Dkt. No. 16]. The Statement of the Offense, which Lombard signed and agreed " fairly and accurately describe[d] [his] actions," stated that he sexually molested his five-year old adopted son on several occasions over a period of two years. Statement of the Offense ¶ ¶ 5, 8 [Dkt. No. 17]; see also Plea Agreement ¶ 5. It further stated that he broadcast webcam videos of these activities to other pedophiles in Internet chat rooms using the moniker " perv dad for fun" and, on at least one occasion, invited other Internet pedophiles to come to his home to molest his son as well. Statement of the Offense ¶ ¶ 6, 8. It also indicated that Lombard told the undercover officer investigating the offense that " the abuse of the child was easier when the child was too young to talk or know what was happening," and that, as the child grew older, he " had drugged the child with Benadryl during the molestation" to make it easier. Id. I 4.
In exchange for Lombard's admission of guilt, the Government promised that, at Lombard's sentencing, it would advocate for a sentence in the " low end" of the Sentencing Guidelines range, which the parties agreed was 262-327 months. However, the Plea Agreement expressly stated that the Government's sentencing position would not be binding on the Court. Plea Agreement at 4. The Agreement emphasized that Lombard's sentence would be " determined solely by the Court," and that " [t]he Government cannot, and does not,
make any promise or representation as to what sentence [Lombard] will receive." Id. In signing the Agreement, Lombard represented that he had read the Agreement in its entirety, agreed that the facts set forth in it were accurate, discussed it with his attorney, fully understood it, was satisfied with the legal services provided by his attorney, and was acting voluntarily and of his own free will. Id. at 8.
B. Sentencing Submissions
In advance of Lombard's sentencing, both parties submitted sentencing memoranda and the Probation Office prepared a Presentence Investigation Report (" PSR" ), which included a detailed account of Lombard's criminal conduct and his personal and familial circumstances, education, professional background, and mental health history. See generally PSR ¶ ¶ 1-58.
The PSR stated that Lombard was a licensed clinical psychologist with a bachelor's degree in psychology and a Master of Social Work, and that, at the time of his arrest, he worked as an Associate Director for the Center for Health Policy at Duke University; that he was in a long-term relationship with a committed partner who was unaware of his criminal activities; and that he had two adopted sons, ages five and thirteen (the younger of which was the victim of Lombard's offense). PSR ¶ ¶ 45, 54-58. The PSR further indicated that Lombard reported having had loving parents and " a good childhood in which all of his material/emotional needs were met." PSR 1 42. However, he told the probation officer that, during his adolescence, he was sexually molested by a teacher on one occasion and raped by two older men on another occasion, neither of which he ever reported to his parents or law enforcement. PSR ¶ ¶ 43-44.
The Government filed a Sentencing Memorandum acknowledging that Lombard had taken responsibility for his criminal conduct and that it had agreed to cap its sentencing allocution to the " low end" of the Sentencing Guidelines range. See Gov't's Sent. Mem. ¶ ¶ 1, 16 [Dkt. No. 27]. The Government later submitted a Supplemental Sentencing Memorandum for a Downward Departure under Section 5K1.1 of the Sentencing Guidelines based on Lombard's assistance to law enforcement authorities. Nevertheless, the Government emphasized its view that Lombard had " betrayed the trust of his adopted child in the most deplorable way imaginable" and " [n]othing in [his] background justifies the indignity to which he subjected his child." Id. at 9.
Lombard filed a Sentencing Memorandum asking the Court to impose the statutory minimum sentence of 180 months in light of his acceptance of responsibility, cooperation with authorities, lack of any prior criminal record, and the fact that he himself had been a victim of child sexual abuse. See Def.'s Request for Imposition of a Sentence Outside of the Sentencing Guideline Range at 1 [Dkt. No. 23]. Lombard also submitted letters from both of his parents.
C. The Sentencing Hearing
Lombard's sentencing hearing took place on March 29, 2010. At the outset, the Court stated that it had read and closely considered all of the materials submitted by the parties and the probation office. Transcript of Sentencing Hearing (" Tr." ) 4. Counsel for the Government then summarized the evidence of the offense, which included the reports of an undercover officer and a confidential source, Internet chat session logs, archived computer images, and the Petitioner's own admissions. Tr. 7-9.
In response to questioning from the Court, counsel for the Government confirmed
that Lombard's activities formed a " pattern of conduct" that had persisted for well over a year. Tr. 12. He also explained that the harm to Lombard's adopted son was especially pernicious and long-lasting because " once someone has distributed a child['s] pornographic picture or video over the internet, there is no getting it back. . . . [I]mages can simply be traded, and traded, and traded . . . . It is just out on the Internet, and tradable, distributable, and viewable to whoever comes across it." Tr. 10.
Lombard's attorney, Christopher Shella, argued that Lombard should receive a lenient sentence because he " took responsibility for this case from day one when he was first arrested" and " immediately spoke to the investigators, gave them information [and] was willing to do what was required, what was right in this case." Tr. 15-16. Sheila emphasized that Lombard was still available to render such assistance to law enforcement. Tr. 16. He also pointed out that Lombard had been sexually abused himself and recently had been diagnosed with bipolar disorder. Tr. 18. Sheila further stated that he firmly believed Lombard had come into a " self-realization" of his wrongdoing and had accepted responsibility for it. Tr. 17-18.
Lombard addressed the Court, acknowledging that his actions were " reprehensible," and that he had hurt his " kids," parents, siblings, neighbors, church, co-workers, and " really everyone that I have ever cared about." Tr. 19-20. Lombard indicated that he was in psychiatric treatment, which had helped him see that, although he could not undo his conduct, he could " try to make sure that I never do it again," and he promised that, " if I get out of prison I won't ever hurt anyone again." Tr. 21.
The Court then made its findings. It agreed with the parties that the recommended range of prison terms under the Sentencing Guidelines was 262 to 327 months and the mandatory minimum sentence was fifteen years. Tr. 21. Turning to the factors outlined in 18 U.S.C. § 3553(a), it remarked that there was no " need to go through in the record right now all of the sordid details of this offense" because Lombard had agreed with the facts contained in the Plea Agreement, all of which were " very explicit and very specific" and there was " no reason not to accept all of those facts as true." Tr. 22.
The Court stressed that it was not dealing with " one incident or two incidents," but rather with carefully planned conduct spanning a period of more than a year, which it could not attribute to Lombard's " recent diagnosis of bipolar disorder."  Tr. 27. The Court also explained that it found Lombard's extensive training in psychology and social work to be significant, because " Lombard doesn't have the excuse that he didn't realize what was happening. He . . . had to have known that what he was doing was sick, that it would horribly impact the little boy[.]" Tr. 25.
The Court observed that Lombard had a duty " to love and protect" his son, which was violated in the most " depraved and perverted" way when he sexually abused the child, filmed the abuse with knowledge that the " images are going to be out on the Internet forever," and solicited others to molest his son as well. Tr. 25. The Court reflected that this conduct must have gravely impacted, not only the younger son, but also Lombard's older son and parents. Tr. 24, 27.
The Court considered the requirement, under 18 U.S.C. § 3553(a), that its sentence
both adequately protect the public and also serve the goals of specific and general deterrence, and it concluded that it could " not in good conscience" sentence Lombard at the bottom or middle of the Guidelines range. Tr. 29. It stated that, " after many, many years on the bench, this is one of the worst offenses I have ever seen," Tr. 25, and explained that the 20-year sentence requested by the Government would result in Lombard being released " somewhere between the age of 57 or 58 . . . maybe even younger," at a time when there was " [n]o question in my mind that he would still be a great danger to the public." Tr. 27-28. Based on these considerations, the ...