Michael Faucett v. United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2515
MICHAEL D. FAUCETT,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13-cv-01434-TWP-TAB — Tanya Walton Pratt, Judge.
____________________
ARGUED SEPTEMBER 28, 2016 — DECIDED SEPTEMBER 22, 2017
____________________
Before KANNE, SYKES, and HAMILTON, Circuit Judges.
SYKES, Circuit Judge. Michael Faucett possessed large
quantities of child pornography, some of which he produced
himself. His collection included 59 sexually explicit photos
of his five-year-old granddaughter that he took while she
was sleeping. When investigators searched his computer and
found the collection, he initially denied knowledge of it. But
he confessed when they confronted him with the porno-
graphic pictures of his granddaughter. Faucett pleaded
2 No. 15-2515
guilty to three federal crimes: two counts of producing child
pornography, see 18 U.S.C. § 2251(a), and one count of
possessing child pornography, see id. § 2252(a)(4)(B). He is
serving a 30-year prison term.
This appeal concerns Faucett’s collateral attack on his
sentence. In a pro se motion under 28 U.S.C. § 2255, he
claimed that his attorney was constitutionally ineffective for
failing to advise him that involuntary intoxication was an
available defense. In an alternative but overlapping claim, he
alleged that counsel at least should have developed an
argument about diminished capacity as a mitigating factor at
sentencing. The district judge denied the § 2255 motion
without a hearing, reasoning that neither defense strategy
would have had any chance of success as a factual matter.
The judge also ruled that involuntary intoxication is a de-
fense to specific-intent crimes only and child-pornography
offenses are general-intent crimes.
We have not yet had occasion to address the defense of
involuntary intoxication. Limited authority exists in other
circuits, but there’s no clear consensus on whether the de-
fense is available in a case like this one. We have no need to
decide that legal question because Faucett did not articulate
a viable factual basis for the defense even if it applies in this
context. Nor was his counsel constitutionally ineffective for
not arguing diminished capacity as a mitigating factor at
sentencing.
I. Background
Faucett’s five-year-old granddaughter stayed overnight at
his house on March 16, 2010. Just before midnight Faucett
entered the room where she was sleeping, undressed her
No. 15-2515 3
from the waist down, and took 30 pornographic pictures of
her. He repeated this conduct on April 10, when she next
stayed at his house, this time taking 29 pornographic pic-
tures of her. To stage the photos, Faucett posed his sleeping
granddaughter in various sexually explicit positions. In
some of the images, he is seen attempting intercourse or
performing oral sex on his granddaughter.
Faucett uploaded the 59 photos to his computer, adding
them to his stored collection of child pornography—more
than 600 images and videos on three computers. Many of the
images in his collection depicted minor girls being raped by
adult men. Faucett advertised some of this material online.
Investigators tracked the online images to Faucett’s
IP address and obtained a search warrant for his home and
computers. Initial on-site forensic analysis revealed the
pornography collection, including the photos of Faucett’s
granddaughter. Investigators questioned Faucett during the
search, but he initially denied any knowledge of the child
pornography. When they confronted him with the photos of
his granddaughter, he confessed to his crimes and provided
a detailed account of when and how he took the photos.
A federal grand jury indicted Faucett on two counts of
production of child pornography and one count of posses-
sion of child pornography. He pleaded guilty as charged. His
presentence report detailed his struggle with alcoholism and
certain mental-health issues, including ADHD, insomnia,
depression, and anxiety. At various times Dr. Donald
Wagoner of the Wagoner Medical Center had prescribed
several different medications to treat these conditions,
including Adderall, Ambien, Paxil, Xanax, and Abilify.
According to Faucett’s medical records, however, only two
4 No. 15-2515
prescriptions were active between February and April of
2010 when he took the pornographic pictures of his grand-
daughter: Adderall (for ADHD) and Paxil (an antidepres-
sant). Faucett’s attorney submitted a sentencing memoran-
dum addressing his client’s alcoholism and mental-health
issues, but the overall defense strategy at sentencing was to
demonstrate acceptance of responsibility.
At the sentencing hearing, Faucett apologized for his
conduct, expressed remorse, and acknowledged the wrong-
fulness of his actions. The judge noted his remorse and early
guilty plea and awarded a full three-level downward ad-
justment for acceptance of responsibility under U.S.S.G.
§ 3E1.1(b). Still, with an off-the-charts offense level (45) and a
category II criminal history, the guidelines recommended a
sentence of life. The judge imposed a 30-year prison term
followed by a life term of supervised release. Faucett ap-
pealed, but his counsel filed an Anders brief and moved to
withdraw. We granted the motion and dismissed the appeal.
About a year after sentencing, state prosecutors charged
Dr. Wagoner and other employees at his clinic with conspir-
acy to illegally traffic in narcotics and related drug crimes.
The defendants were accused of operating a “pill mill”—
writing illegal prescriptions for drug-seeking addicts, some
of whom later overdosed. Faucett was not listed as a victim
in the probable-cause affidavit. Dr. Wagoner pleaded guilty.
Faucett moved to vacate his conviction and sentence un-
der § 2255, pointing to the Wagoner prosecution and arguing
that his attorney never told him that a defense of involuntary
intoxication was available and that he would not have
pleaded guilty had he been aware of such a defense. Faucett
also claimed that his attorney did not develop an adequate
No. 15-2515 5
argument about diminished capacity as a mitigating factor at
sentencing.
The judge denied relief without a hearing, reasoning that
Faucett’s attorney cannot have been ineffective for failing to
pursue defense strategies that had “no chance of success.”
The judge held that there was no factual basis for a claim of
involuntary intoxication because Faucett had not pointed to
any evidence demonstrating that he was intoxicated at the
time of his crimes. The judge also doubted the legal basis for
the defense. She noted that involuntary intoxication is not an
affirmative defense but rather serves to negate the mens rea
required of specific-intent crimes. She concluded that the
defense was unavailable in Faucett’s case because child-
pornography offenses are general-intent crimes. Finally, the
judge explained that she had thoroughly considered
Faucett’s psychiatric history and alcohol abuse in determin-
ing his sentence, so a sentencing argument about diminished
capacity would not have mattered.
II. Discussion
Faucett continues to maintain that his Sixth Amendment
right to the effective assistance of counsel was violated in
two separate but related ways: (1) his attorney failed to
inform him about the defense of involuntary intoxication,
and (2) his attorney failed to develop an argument about
diminished capacity as a mitigating factor at sentencing. His
fallback argument is a procedural point. He claims that the
judge should have held an evidentiary hearing before ruling
on his § 2255 motion.
We review the denial of a § 2255 motion under a split
standard of review, accepting the judge’s factual findings
6 No. 15-2515
unless they are clearly erroneous and deciding legal ques-
tions de novo. Webster v. United States, 667 F.3d 826, 830 (7th
Cir. 2011). We review the judge’s decision to forgo an eviden-
tiary hearing for abuse of discretion. Martin v. United States,
789 F.3d 703, 705 (7th Cir. 2015).
Under the familiar Strickland standard for claims of inef-
fective assistance of counsel, it was Faucett’s burden to show
that his attorney’s performance was deficient and that he
suffered prejudice as a result. Id. at 706 (citing Strickland v.
Washington, 466 U.S. 668 (1984)). The test is highly deferen-
tial; we presume that counsel was effective and evaluate his
performance under an objective standard of reasonableness.
Id. To establish prejudice, Faucett had to demonstrate a
reasonable probability that but for counsel’s deficient per-
formance, the outcome of the proceeding would have been
different. Id. More specifically, Faucett had to show that he
would not have pleaded guilty but for counsel’s failure to
advise him about the defense of involuntary intoxication or,
alternatively, that he would have received a lesser sentence
had counsel developed a sentencing argument about dimin-
ished capacity.
Faucett’s primary attack on his attorney’s performance
rests on his allegation that counsel should have developed a
defense of involuntary intoxication or at least informed him
that such a defense was available. We agree with the district
judge that the defense was not remotely viable in Faucett’s
case and that it was entirely reasonable for counsel to forgo a
meritless defense strategy.
The defense of involuntary intoxication is rarely used
and has received scant attention from federal courts. Our
circuit has not addressed it. The circuits that have directly
No. 15-2515 7
confronted a claim of involuntary intoxication have treated it
as an affirmative defense akin to temporary insanity. See, e.g.,
United States v. F.D.L., 836 F.2d 1113, 1116–17 (8th Cir. 1998)
(explaining that the involuntary-intoxication defense “re-
liev[es] a defendant of criminal responsibility” and is “essen-
tially the same … as [the] insanity [defense]”); see also United
States v. Bindley, 157 F.3d 1235, 1241–43 (10th Cir. 1998)
(distinguishing involuntary intoxication, which demon-
strates a “lack of culpability,” from voluntary intoxication).
An affirmative defense excuses a defendant’s criminal
responsibility; it does not negate criminal intent. See United
States v. Jumah, 493 F.3d 868, 874 (7th Cir. 2007) (explaining
that “[a]ffirmative defenses of justification and excuse do not
negate criminal intent” but rather “excuse conduct otherwise
punishable without controverting … the elements of the
underlying offense”). If this is the proper way to characterize
the defense of involuntary intoxication, then it does not
matter whether the charged offense is a general-intent crime
or a specific-intent crime. A successful defense of involun-
tary intoxication would excuse criminal responsibility either
way.
Although we have never addressed involuntary intoxica-
tion as a defense to criminal liability, we have on a few
occasions dealt with a claim of voluntary intoxication; each
time we’ve treated it as a “negative” defense to a specific-
intent crime that negates the mens rea of the crime. See United
States v. Nacotee, 159 F.3d 1073, 1076 (7th Cir. 1998) (noting
that a defendant’s “voluntary intoxication, if sufficient to
negate the required intent to aid and abet, would provide
her with a defense”); United States v. Boyles, 57 F.3d 535, 541
(7th Cir. 1995) (“Voluntary intoxication is a negative defense
8 No. 15-2515
to specific intent crimes and a high degree of intoxication
can conceivably, under limited circumstances, render the
defendant incapable of attaining the required state of mind
to commit the crime.” (citing United States v. Fazzini, 871 F.2d
635, 641 (7th Cir. 1989))); United States v. Reed, 991 F.2d 399,
400 (7th Cir. 1993) (noting that “voluntary intoxication[] is a
defense only to specific intent crimes” (citing Fazzini,
871 F.2d at 641)). If involuntary intoxication is understood the
same way, then the classification of Faucett’s child-
pornography offenses as general-intent or specific-intent
crimes does make a difference.
We have not yet had occasion to decide whether produc-
tion of child pornography or possession of child pornogra-
phy are general-intent or specific-intent crimes. Other cir-
cuits generally treat receipt and possession of child pornog-
raphy as general-intent crimes. See, e.g., United States v.
Ballieu, 480 F. App’x 494, 497 (10th Cir. 2012) (reception of
child pornography under § 2252A(a)(2)(A) is a general-intent
crime); United States v. Walden, 478 F. App’x 571, 576 n.2 (11th
Cir. 2012) (reception and possession of child pornography
under § 2252A(a)(2) and (a)(5)(B) are general-intent crimes);
United States v. Larson, 346 F. App’x 166, 168 (9th Cir. 2009)
(possession of child pornography under § 2252A(a)(5)(B) is a
general-intent crime); United States v. Benz, No. 4:13CR3121,
2015 WL 575094, at *1 (D. Neb. Feb. 11, 2015) (receipt of child
pornography under § 2252A(a)(2) and possession of child
pornography under § 2252(a)(4)(B) are general-intent
crimes).
On the other hand, there’s no clear consensus on how to
classify the crime of production of child pornography. Com-
pare United States v. Palomino-Coronado, 805 F.3d 127, 130 (4th
No. 15-2515 9
Cir. 2015) (indicating that production of child pornography
under § 2251(a) is a specific-intent crime), with Klopfenstine v.
United States, No. 2:13-cv-04214-NKL, 2014 WL 4055791, at *4
(W.D. Mo. Aug. 14, 2014) (holding that production of child
pornography under § 2251(a) is a general-intent crime).
The district judge did not separately analyze the posses-
sion and production offenses. Rather, she concluded as a
general matter that because child-pornography offenses are
general-intent crimes, the defense of involuntary intoxication
is legally unavailable.
We do not need to decide whether the judge was right to
characterize the crimes and the proposed intoxication de-
fense in this way. The judge’s alternative factual holding was
entirely sound. She noted that Faucett had not alleged any
facts that would support a viable defense of involuntary
intoxication. An intoxication defense requires evidence
demonstrating that the defendant’s “mental faculties were so
overcome by intoxicants” that he was rendered “incapacitat-
ed.” Nacotee, 159 F.3d at 1076. In other words, simply show-
ing that the defendant was intoxicated is not enough. Id.Here, Faucett alleged no facts tending to show that he was
intoxicated at the time of his crimes, much less that his
mental faculties were so overcome that he was incapacitated.
Faucett’s claim rests primarily on the successful prosecu-
tion of Dr. Wagoner for illegally dispensing narcotics to
drug-seeking addicts. For additional support he points to an
FDA warning that the drug Abilify is linked with compul-
sive behavior and “uncontrollable urges to … have sex.”
FDA, FDA Warns About New Impulse-Control Problems Associ-
ated with Mental Health Drug Aripiprazole (Abilify, Abilify
Maintena, Aristada) (May 3, 2016) (http://www.fda.gov/
10 No. 15-2515
Drugs/DrugSafety/ucm498662.htm). He also cites an FDA-
approved guide for Ambien that contains a side-effects
warning about “complex behaviors while not being fully
awake.” Sanofi-aventis U.S., LLC, Highlights of Prescribing
Information: Ambien at 20 (Rev. Dec. 2016)
(http://www.accessdata.fda.gov/drugsatfda_docs/label/
2016/019908s037lbl.pdf).
None of this matters in light of Faucett’s medical records
and the contents of his confession. His medical records
establish that he did not have active prescriptions for Abilify
or Ambien at any time at or near the commission of these
crimes; his only active psychotropic prescriptions at the
relevant time were for Adderall and Paxil. And Faucett’s
confession defeats any possible defense of involuntary
intoxication. Though he initially denied knowledge of the
child pornography on his computers, he quickly confessed
when confronted with the pornographic pictures of his
granddaughter, providing specific details about how and
when he took the photos and acknowledging that he knew
what he was doing. He also told investigators that he had
been actively pursuing his interest in child pornography for
about a year. Faucett’s attorney cannot be faulted for failing
to explore a futile defense strategy.
For the same reasons, Faucett’s attorney was not constitu-
tionally ineffective for failing to develop an argument about
diminished capacity as a mitigating factor at sentencing.
Refraining from a meritless sentencing argument cannot be
characterized as objectively unreasonable. And here, an
argument about diminished capacity would have under-
mined the defense effort to show acceptance of responsibil-
ity. In any event, Faucett’s attorney discussed his client’s
No. 15-2515 11
history of alcohol abuse and mental-health problems in his
sentencing memorandum, and the judge considered this
evidence when she weighed the sentencing factors under
18 U.S.C. § 3553(a). Additional argument would not have
made a difference.
Finally, we reject Faucett’s argument that the judge
should have held an evidentiary hearing before ruling on the
§ 2255 motion. An evidentiary hearing is required “[u]nless
the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief.” 28 U.S.C.
§ 2255. Faucett alleged no set of facts that would support a
viable defense of involuntary intoxication or an argument
about diminished capacity in mitigation of his sentence.
Accordingly, it was clear from the face of Faucett’s mo-
tion that he was not entitled to relief on his Strickland claim.
The judge was well within her discretion to decide the
motion without an evidentiary hearing.
AFFIRMED.