United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
Barbadoro, United States District Judge.
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.
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.
Kevin Watson - Counts One through Five
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. 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.
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.
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.
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
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.
Brandon Ore - Count Six
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.
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.
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.
Biron - Counts Seven and Eight
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.
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
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.
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 ...