USA v. Nekeferoff

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States of America v. Justin Raymond Nekeferoff
Case No. 3:15-cr-00071-TMB-1
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
This matter comes before the Court on pro se Defendant Justin Raymond Nekeferoff’s “Motion
for Evidentiary Hearing” and the Government’s Motion to Continue Trial.1 For the following
reasons, Nekeferoff’s Motion is DENIED and the Motion to Continue Trial is GRANTED
Following conviction by a jury on the charges of Attempted Sexual Exploitation of a Child, in
violation of 18 U.S.C. § 2422(b) (Count 1), and Sexual Exploitation of a Child, in violation of 18
U.S.C. § 2422(a)(4)(B) and (b)(2) (Count 3),2 the Court sentenced Nekeferoff to a 600-month term
of imprisonment.3 Nekeferoff appealed his conviction, and the Ninth Circuit Court of Appeals
reversed and remanded for a new trial.4
A. 	Motion for Evidentiary Hearing
On June 23, 2021, Nekeferoff filed a one-page Motion for Evidentiary Hearing in which he argues
that “the evidence in the instant case is insufficient to support a conviction under Count 1 of the
Superseding Indictment.”5 Nekeferoff states that certain facts—specifically phone calls and text
messages between Nekeferoff and Agent Goeden posing as underage children—demonstrate his
actual innocence.6 Nekeferoff argues that a “[c]lose inspection of all evidence in this case will
show that that minor never assented to sexual activity between herself and Defendant Nekeferoff.”7
Further, Nekeferoff argues that “[t]ravel as a substantial step to committing [a violation of 18
1 Dkts. 244 (Notice of Lodging Pro Se Motion); 244-1 (Motion re Evidentiary Hearing); 245
(Motion to Continue). Following an assertion by Nekeferoff of his right to self-representation, the
Court appointed Nekeferoff standby or “advisory” counsel. Dkt. 230 (Minute Entry); see also D.
Alaska L. Crim. R. 44.2(a)(2) (“In an appropriate case, the court may designate counsel to advise
and assist a defendant who elects to proceed without counsel to the extent the defendant might
thereafter desire.”)
2 Dkts. 72 (Superseding Indictment); 151 (Verdict Form); 220 (Trial Tr.).
3 Dkts. 179 (Judgment); 221 (Imposition of Sentence Tr.).
4 Dkt. 225 (9CCA Mem. Op., Case No. 19-90015).
5 Dkt. 244-1 at 1 (capitalization normalized).
6 Id.
7 Id. (capitalization normalized).
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U.S.C. § 2422] is insufficient as travel is not [necessary] for a violation of the statute to occur” and
that “Nekeferoff could not have” violated 18 U.S.C. § 2422.8
The Government opposes Nekeferoff’s Motion, pointing out that although the Motion is captioned
as a request for an evidentiary hearing it appears to be a motion to dismiss for lack of evidence
Count 1, which charges a violation of 18 U.S.C. § 2422(b).9 The Government notes that the Ninth
Circuit already found that the evidence against Nekeferoff was sufficient to support not only an
indictment, but a conviction.10 The Government argues Nekeferoff’s Motion is barred by the “law
of the case” doctrine, which ordinarily precludes a court from reexamining an issue previously
decided by the same court or a higher court in the same case.11 The Government argues
Nekeferoff’s Motion “would also fail even if the Ninth Circuit had not already addressed his
arguments[.]”12 The Government points out that conviction under 18 U.S.C. § 2422(b) does not
require the Government to prove “actual assent of a real minor,” or travel, or actual sexual
contact.13 Instead, “the facts need only show that the defendant, using the internet, took substantial
steps with the intent of persuading, enticing, or coercing a minor to engage in unlawful sex acts,
which can include asking an adult intermediary to persuade, entice, or coerce a child to have sex
with the defendant.”14 The Government argues the facts of this case are sufficient to establish the
elements and no evidentiary hearing is needed to resolve Nekeferoff’s motion.15
On July 28, 2021, the Court held a hearing and heard argument on both the present Motion and the
Government’s Motion to Continue Trial.16 After consideration of the Parties’ respective
arguments, the Court DENIES Nekeferoff’s Motion for an Evidentiary Hearing.
On appeal, the Ninth Circuit concluded that the Government presented sufficient evidence to
support Nekeferoff’s conviction under 18 U.S.C. § 2422(b).17 Thus, the law of the case bars
relitigating the issues raised by Nekeferoff in the present Motion. Further, as the Government
correctly points out, “[t]he evidence and legal theories the Government intends to present at trial
are comprehensively detailed in the trial transcripts in this case” and “[t]he only questions raised
by [Nekeferoff’s] [M]otion relate to the legal sufficiency of that evidence, so there is no factual
dispute for the Court to resolve” and an evidentiary hearing is unnecessary.18
Accordingly, Nekeferoff’s Motion at Docket 244-1 is DENIED.
8 Id. (capitalization normalized).
9 Dkt. 246 (Opposition).
10 Id. at 2 (citing United States v. Nekeferoff, 843 F. App’x 876, 879 (Feb. 3, 2021)).
11 Id. at 3.
12 Id. at 4–5.
13 Id. at 5.
14 Id. at 5–6.
15 Id. at 6.
16 Dkts. 252, 254 (Minute Entries); 244; 245 (Motion to Continue Trial).
17 Nekeferoff, 843 F. App’x at 879.
18 See Dkt. 246 at 6.
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B. 	Motion to Continue Trial
The Court previously set a new trial date of August 16, 2021.19 On June 25, 2021, the Government
filed a Motion to Continue Trial until October 4 or October 12, 2021.20 The Government notes that
the Court already found the case is complex pursuant to 18 U.S.C. § 3161 (h)(7)(B)(iv) and argues
the “interests of justice and the need for additional time for both sides to diligently prepare for
trial[] also justify the continuance[.]”21 Additionally, the Government asserts that a continuance is
also justified under 18 U.S.C. § 3161(d)(1) because the case was recently remanded following
appeal.22 Further, the Government notes Mr. Nekeferoff intends to file pretrial motions, which will
require response and resolution.23
Although Nekeferoff initially indicated his opposition to a continuance,24 at the July 28, 2021
hearing he agreed that a continuance was necessary to allow him to file additional pretrial motions
and to allow his standby counsel to review the voluminous discovery.25 After hearing from the
Parties, the Court orally granted the Government’s Motion and reset trial in this matter.26 The
Court now memorializes its finding as follows.
This case was previously declared complex.27 Due to the complexity of the case, involving over
4,000 pages of documents and 200 court filings, the Court finds excludable delay under 18 U.S.C.
§ 3161 (h)(7)(A). The ends of justice will be served by granting this continuance and outweigh the
best interest of the public and the defendant in a speedy trial. The Court further finds excludable
delay under 18 U.S.C. § 3161 (h)(7)(B)(i) and (ii). Failure to continue the trial would stop further
proceedings or result in miscarriage of justice and the case is unusual or complex as previously
discussed by the Court. Accordingly, the Court GRANTS the Government’s Motion to Continue
Trial and RESETS the trial date to October 4, 2021.
C. Conclusion
For the foregoing reasons, Nekeferoff’s Motion for Evidentiary Hearing at Docket 244-1 is
DENIED and the Government’s Motion to Continue at Docket 245 is GRANTED.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: August 2, 2021.
19 Dkt. 243 (Minute Entry).
20 Dkt. 245 at 1.
21 Id. at 1–2, 9–11.
22 Id. at 2, 7.
23 See id. at 2, 8–9.
24 See id. at 1.
25 See Dkt. 254.
26 Id.
27 Dkt. 243.
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