by Dale Chappell

The U.S. District Court for the Southern District of Indiana overturned the conviction of Russell Taylor, a person linked to Jared Fogle’s child pornography case, finding that Taylor’s counsel failed to advise him that “the government never really had a case” with some of the charges it filed, before advising him to plead guilty, the Court said.

Taylor pleaded guilty in 2015 to 12 counts of producing child pornography and one count of possessing child pornography, after a woman told Indiana State Police that during a sex chat Taylor suggested to her he had images of “young girls.” Based on this information, law enforcement obtained a search warrant and found that Taylor had hidden cameras in his house that had captured images of minors showering and changing clothes. Authorities also found that Taylor had sent some images to Fogle, the longtime pitchman for Subway and founder of the Jared Foundation. Taylor worked closely with Fogle as the head of his foundation.

Fogle was also arrested and charged with receipt of child pornography and further charged with traveling to engage in sexual conduct with minors for going to New York City to have sex with two underage prostitutes. He pleaded guilty and sentenced to just over 15 years in prison; Taylor received 27 years.

Taylor filed a motion to vacate his conviction under 28 U.S.C. § 2255 in December 2016, claiming ineffective assistance of counsel (“IAC”) for (1) failing to seek suppression of an unconstitutional search warrant and (2) failing to notify him that the Government could not prove the elements of three of the child production charges before advising him to plead guilty. The Court ordered the Government to respond, and after filing an improper response, the Government finally filed a corrected response almost a year and a half later. But not before the Court nearly granted Taylor default judgment because of the Government’s delays and actions that “disturbed and disappointed” the Court. Taylor v. United States, 2018 U.S. Dist. LEXIS 197295 (S.D. Ind. 2018) (order on Taylor’s motion for default judgment and denying search warrant claim).

Taylor claimed that his guilty plea was not knowing and voluntary because his lawyer never told him that the Government could not prove its case for the three charges, since it was missing a crucial element to convict him, viz., “sexually explicit conduct.” Three of the charges were based on videos captured of the minors who were merely getting dressed, and there was never a focus on the genitals. Taylor argued that had counsel investigated the evidence, and the law for that matter, he would not have pleaded guilty to those charges.

At the evidentiary hearing, counsel admitted that Taylor’s was his first federal case and that he researched the law using Google, papers on the charging statute, and by talking to the federal public defender’s office. It was uncovered that counsel never researched case law to understand the specific elements of the offense that the Government had to prove. All of his research was focused on sentencing.

Counsel’s lack of diligence in researching the law likely came from his desire to secure a plea agreement with the Government, the Court surmised. Less than five hours after he filed his notice of appearance, counsel emailed the prosecutor asking about a plea agreement. Counsel admitted he wanted to reach a “global” resolution to the case with a favorable sentence. When Taylor told him he didn’t want to plead to the three charges, counsel advised him it was all or nothing, that he would “be much worse off in terms of sentencing” if he challenged those charges.

For the first time in the case, the prosecutor submitted the three videos in question to the Court. After reviewing them, the Court said: “The Court has determined as a matter of law that those videos do not depict sexually explicit conduct and that they do not support counts 9 through 11.” The Court also found that because of the Government’s deficient filings in response to Taylor’s motion it had waived its argument on this point.

Therefore, Taylor’s motion, the Court said, “narrowed to what measures [counsel] took to learn about the law and evidence underlying counts 9 through 11 and how he advised Taylor with respect to those charges.” The Supreme Court has explained that “an attorney’s ignorance on a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.” The Court held in Strickland v. Washington, 466 U.S. 668 (1984), that counsel is constitutionally ineffective when his errors affect the outcome of the proceeding.

Under 18 U.S.C. § 2251, the Government must prove that a person has induced, enticed, or coerced a minor to engage in “sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” The Seventh Circuit has held that “more than nudity is required to make an image lascivious; the focus of the image must be on the genitals or the image must be otherwise sexually suggestive.” United States v. Griesbach, 540 F.3d 654 (7th Cir. 2008).

The Court concluded that counsel did not do the “basic research” required of him to understand the elements of § 2251 to properly advise Taylor on whether to plead guilty. A criminal defendant “counts on his attorney to evaluate evidence under applicable law, understand how it supports or detracts from the government’s case, and use it to advocate for him,” the Court stated.

The Court also rejected the Government’s argument that Taylor’s counsel’s bad advice was cured by the stipulation in the plea agreement that the images and videos in every count contained “sexually explicit conduct” and by his statements at the plea hearing that he understood the charges. “It is correct, after all, that the statements a criminal defendant makes while pleading guilty in open court are generally presumed true,” Judge Tanya Walton Pratt said in her earlier order denying the search warrant claim. “But the government again focuses its argument on irrelevant facts and ignores the central issue. A plea entered without the effective assistance of counsel is not knowing and voluntary and therefore not valid.... A defendant’s statements in court do not have the power to rewrite the law. They do not expand the reach of a statute and criminalize conduct falling outside its definition.”

The Court therefore vacated Taylor’s conviction and sentence and directed the clerk to reopen the criminal case. It also left Taylor with some advice: “Taylor could have proceeded to trial, where he would have had a strong case (indeed, a strong motion for judgment of acquittal on counts 9 through 11).” See: Taylor v. United States, 2020 U.S. Dist. LEXIS 34341 (S.D. Ind. Feb. 28, 2020).

Writer’s note: Taylor’s postconviction lawyers, Brandon Sample and Zachary Taylor, said the following about his win: “The Court’s ruling vindicated Mr. Taylor’s long-standing assertion that his plea was the product of ineffective assistance of counsel. Mr. Taylor is excited to fight to clear his name in court.”

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