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Biron v. United States

United States District Court, D. New Hampshire

October 2, 2017

Lisa Biron
United States of America Opinion No. 2017 DNH 211


          Paul Barbadoro, United States District Judge.

         Lisa Biron was convicted in this court of transporting a minor with intent to engage in criminal sexual activity, sexual exploitation of children, and possession of child pornography. The sole victim of her underlying crimes was Biron's 14 year-old daughter. Biron was subsequently sentenced to 480 months in prison. She now moves to vacate her sentence pursuant to 28 U.S.C. § 2255, claiming ineffective assistance of counsel. For the reasons that follow, I deny Biron's motion.[1]

         I. BACKGROUND

         On January 3, 2013, a federal grand jury returned an eight-count superseding indictment against Biron. The indictment charged Biron with one count of transportation of a minor with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a) (Count 1); six counts of sexual exploitation of children in violation of 18 U.S.C. § 2251(a) (Counts 2-7); and one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 8). The charges were based on several videos and one photograph recovered from Biron's computer that depict R.B. while engaged in sexually explicit conduct with either Biron or one of two young men: Kevin Watson or Brandon Ore.

         A. Kevin Watson - Counts One through Five

         The events giving rise to Counts One through Five took place during a trip to Canada in May 2012, where Biron and R.B. spent the weekend with Kevin Watson.[2] Watson was then a nineteen year-old Canadian national, whom R.B. and Biron initially encountered on the internet. Initially, both Biron and R.B. engaged in sexual activity with Watson over the internet on a daily basis, through the use of webcams. Later, Biron arranged for the three of them to meet in person at a hotel in Niagara Falls, Ontario, so that both Biron and R.B could have sex with Watson. At trial, Watson testified that Biron had told him prior to the meeting that they “could make a porno” once in Niagara Falls. See Trial Doc. No. 52 at 58-59, 16-25; 59, 1.[3]

         On May 25, 2012, Biron flew to Buffalo with R.B., rented a car, and drove to Canada to pick up Watson at his mother's house. Biron then drove Watson and R.B. to a hotel in Niagara Falls, Ontario, where the three would stay together in a room through Monday, May 28, 2012. Once in their hotel room, they began to drink alcohol and smoke marijuana. Soon thereafter at Biron's insistence, Watson had sex with R.B. and Biron proceeded to film it. Over the next four days, Watson and R.B. had sex on several more occasions, and Biron again captured their activity on video at least twice. Those video recordings were later recovered from Biron's computer during the government's investigation. The government also recovered a digital photograph from Biron's computer that depicted Biron and R.B. in bed with Watson while positioned around Watson's nude, erect penis.

         At trial, the three videos and the photograph were shown to the jury and authenticated by Watson. The three videos clearly depict Watson and R.B. engaged in sexual intercourse, and Biron can be heard commenting and laughing throughout two of them. Biron's trip to Canada served as the basis for Count One, transportation with intent to engage in criminal sexual activity. The theory on which Biron was convicted on that count was that the purpose of the trip to Canada was to produce child pornography. The three videos of Watson and R.B. served as the primary support for Counts Two through Four. The photograph of Watson, R.B. and Biron in bed served as the basis for Count Five.

         The government presented several other witnesses in addition to Watson to support its contention that Biron intended to produce child pornography. Among the government's witnesses were Robert Hardy, Brandon Ore, and Lisa Brien, who were all former friends or acquaintances of Biron. All three testified as to instances in which Biron discussed with them her own plan to film R.B.'s first time having sex.[4] All of their discussions occurred after Biron and R.B.'s trip to Canada, and both Hardy and Ore testified that the discussions took place while viewing one of the videos of R.B. and Watson having sex.

         B. Brandon Ore - Count Six

         The events giving rise to Count Six took place during the summer of 2012, at the Biron residence in Manchester, NH. They involved eighteen year-old Brandon Ore. At trial, Ore testified that he first became acquainted with Biron in July 2012 after responding to a Craigslist advertisement that Biron had posted. According to Ore, the advertisement read: “two girls looking to party, 18, 33.” See Trial Doc. No. 52, at 122, 1-2. After exchanging several emails, Ore and Biron met at Biron's home and had sex. Upon leaving the next morning, Ore was told by Biron to come back sometime and bring a friend.

         A few days later, Ore returned with a male friend. The two were greeted by Biron and introduced to R.B., who Biron identified as her roommate. That night, Ore had sex with R.B., and Biron had sex with Ore's friend. This arrangement was repeated over the next few weeks on five or six occasions. Eventually, Ore moved in with Biron and R.B., and began dating R.B.

         Ore further testified that Biron was supportive of his sexual relationship with R.B. during this time, and even “encouraged” it. On one particular occasion, as he recounted at trial, Biron “suggested” that R.B. and Ore have sex on the living-room couch in front of Biron. R.B. and Ore agreed, and Biron proceeded to film the two with her iPhone. At trial, the video was played for the jury, and it clearly depicted Ore and R.B having sex. Biron can be heard in the background conversing with Ore. Both the video and Ore's testimony served as the basis for Count Six, which charged Biron with sexual exploitation of R.B.

         C. Biron - Counts Seven and Eight

         Count Seven was based on a video depicting Biron performing oral sex on R.B. and Count Eight was based on Biron's possession of the previously mentioned videos and photograph.

         The events giving rise to Count Seven took place in Biron's own living room on May 18, 2012. At trial, portions of the video were played for several witnesses for authentication purposes, and then showed to the jury. The video began with a shot of an empty living room, and eventually two female voices could be heard in the background. Michael Biron, who is R.B.'s father and Lisa Biron's estranged husband, first identified the two female voices in the video as belonging to his ex-wife and his daughter. He then identified the setting depicted in the video as being the Biron residence in Manchester, NH. The video was then played for the jury, and depicted one female performing digital penetration and then oral sex on the other in the setting first identified by Michael Biron as Biron's home. The government presented additional evidence to identify Biron as the female performing the oral sex, and R.B as the female receiving it.

         Furthermore, Jim Scripture, a forensic computer examiner with the F.B.I., testified that he extracted this video from an iPhone backup folder located on Biron's computer. By reading the data associated with the file, Scripture testified, he was able to determine that the video was filmed with an iPhone, on May 18, 2012, at Biron's address in Manchester, NH.

         D. Biron's Defense

         Attorney James Moir represented Biron at trial. Biron's defense to Count One, the transportation charge, was that she lacked the required criminal intent. Moir argued that the government had failed to prove that Biron traveled to Canada for the purpose of creating child pornography. He argued that the video recordings of R.B. were merely incidental to the trip, rather than its object, and they were the product of an impulsive act rather than a preconceived plan. See Trial Doc. No. 53 at 61, 4-15; 66, 8-11. In supporting his argument, Moir addressed the testimony of Ore, Watson, Hardy, and Brien, all of whom had apparently testified to Biron's alleged plan to film R.B. having ...

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