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bookmark_borderScorched Earth I Go

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So, I’m filing this on Friday…

PRELIMINARY STATEMENT

Petitioner, Kirk Cottom (“Cottom”), previously petitioned this Court (Case No. 22-2050 & 23-3131) asserting that he was illegally prosecuted by DOJ Trial Attorney Keith A. Becker (“Becker”) from November 10, 2014 to now (as the DOJ’s disclosure obligations are “on-going”). When objectively analyzing the briefs & exhibits for Cottom’s previous petitions, there is a clear disconnect between the OBJECTIVE FACTS of the case and the FICTION the government keeps illegally promoting.

This petition will focus on reiterating – with newly discovered evidence obtained from FOIA litigation – that it is irrefutable that Cottom’s 23-3131 petition presented this Court with irrefutable and objective evidence that the prosecution of this case violated Cottom’s Constitutional rights per Napue v. Illinois, 360 U.S. 264 (1959), Brady v. Maryland, 373 U.S. 83 (1963) & United States v. Cronic, 466 U.S. 648 (1984); BUT, instead of GRANTING that petition – the Court apparently accepted the AUSA’s (TESSIE L.S. SMITH. #25828) knowingly false factual arguments against the merits of Cottom’s petition without skepticism. 

This petition will present the Court with indisputably “newly discovered evidence” obtained during a FOIA lawsuit in the Western District of NY (Case No. 23-CV-6307) that confirms that Cottom’s Defense Counsel (Gross, Howard & Slawinski) and Cottom’s Defense Experts (Podhradsky, Miller & Stroschein) joined Becker’s conspiracy to conceal TB2’s totally fabricated logging system. In other words, the cumulative effect of the misconduct perpetrated by the government’s attorneys (Becker, Norris & Smith), with the assistance of Cottom’s counsel (Gross, Howard & Slawinski) and Cottom’s experts’ (Podhradsky, Miller & Stroschein) in 2015 requires VACATING Cottom’s conviction for egregious due process violations.

ISSUES PRESENTED

  • Whether the newly obtained FOIA pages – produced only after litigation compelled their disclosure – constitute “newly discovered evidence” within the meaning of 28 U.S.C. §2255(h)(1) where the Department of Justice previously withheld them despite a clear duty to produce them when replying to Case Number 23-3131.
  • Whether the newly discovered FOIA materials establish that Becker knowingly relied on falsified digital evidence (the FBI created “visitors” table) and concealed that falsification from Cottom in violation of Brady v. Maryland, 373 U.S. 83 (1963).
  • Whether Becker’s knowing use—and failure to correct—fabricated evidence violated Napue v. Illinois, 360 U.S. 264 (1959), and thereby renders the conviction constitutionally invalid.
  • Whether newly obtained evidence proving that Joseph Howard; 1) allowed improper communications between Becker and Podhradsky’s team regarding the concealment of falsified evidence, 2) failed to disclose those improper communications to the Court or Cottom, and 3) coerced Cottom into an uninformed plea – constitutes a constructive denial of counsel under United States v. Cronic, 466 U.S. 648 (1984), thereby presumptively violating the Sixth Amendment.
  • Whether, viewed in light of the entire record, the newly discovered evidence and the proven collapse of the adversarial process establishes by clear and convincing evidence that no reasonable fact finder would have found Petitioner guilty, as required by §2255(h)(1).

INTRODUCTION

Thanks to Cottom’s FOIA litigation (2023 – 2026) – currently in the “summary judgment phase” – Cottom now has NEW evidence that his NE CJA counsel (Joseph Gross & Joseph Howard) and his NE CJA experts (Ashley Podhradsky, Matt Miller & Josh Stroschein) colluded with Becker to deliberately suppress case dispositive technical evidence (Brady/Napue material) that would have totally destroyed Becker’s case against Cottom et al (NE Case No. 8:13CR108). 

Becker, with the help of all expert witnesses (prosecution & defense) illegally omitted (perjury by omission) case dispositive evidence from the pre-trial Daubert hearing – held on August 3, 2015; because, it would have proved that Becker’s technical narrative, regarding TB2’s native data, was criminally FALSE. Becker’s perjurious conspiracy began on November 10, 2014 (Exhibit D) – when he began to actively suppress that TB2’s log was FABRICATED  and populated with knowingly FALSE information.

In other words, the Court must agree that fabricating evidence and presenting it as authentic to a Court is a case ending due process violation. New FOIA documents prove that Becker went a step further and created a textbook Cronic situation, when he persuaded Cottom’s defense team to help him conceal his due process / prosecutorial misconduct. 

This petition will prove that egregious due process violations have occurred in this case. The newly discovered evidence proves that Becker orchestrated the complete breakdown of the adversarial process. Exhibit H proves collusion between Becker and Cottom’s defense team. Exhibits D, H, J, L, M & N also proves that Cottom’s CJA attorneys and experts played an active / permissive role in the complete breakdown of the adversarial process. Those intentional constitutional violations require the Court to VACATE Cottom’s conviction with prejudice. 

APPELLATE HABEAS PROCEDURAL BACKGROUND

Case No: 22-2050

On May 19, 2022 Cottom filed a MOTION FOR PERMISSION TO FILE A PETITION FOR A SECOND OR SUCCESSIVE §2255. AUSA Michael P. Norris responded perjuriously, as he had access to (and should have reviewed) the new FOIA evidence included with this petition. Specifically, Norris lied when he stated “TB2 retained its functionality through discovery to include the ability to follow where his IP and browser navigated while on TB2”. Norris knew (or should have known) that TB2 had no such native functionality. Norris also lied many times in his Cottom Cannot Show Innocence section. For example, Norris said: “The government’s evidence comes from those logs, including apache logs which were addressed during the Daubert hearing.” This specific lie is proven by Exhibit G, where Becker states: “As we previously informed you via e-mail on June 16, 2015, Apache logs were not utilized to correlate website and NIT data” (emphasis added). Norris cannot claim that he didn’t have access to Exhibit G. Since that false statement was “objectively material”, the Court must rule that it was perjury. Norris also made a ridiculous claim about a REKONQ browser having navigated TB2. Norris should have known that a user agent string (in this case REKONQ) is not an identifier; because, it is trivial to spoof, is not unique, has no chain of custody and is not tamper proof. SO, it was legally indefensible for Norris to indicate to this Court that the REKONQ agent string provided any evidence in favor of upholding Cottom’s conviction. Worse, as will be discussed below, Norris was required to know that TB2’s visitors table was completely fabricated by an FBI contractor named Dr. Matt Edman (“Edman”) and thus was fraudulent. Therefore, it was Brady/Napue material and he was required to admit it was fraudulent.

Case No: 23-3131

On September 21, 2023 Cottom filed another MOTION FOR PERMISSION TO FILE A PETITION FOR A SECOND OR SUCCESSIVE §2255. This time the government dropped the completely incorrect factual arguments Norris proffered BUT kept the same headings (i.e evidence is not new and Cottom cannot show innocence).

While making those new factual arguments under the same headings, AUSA Tessie Smith (“Smith”) had access to (and was required to review) the FOIA obtained documents included with this petition. Therefore, she objectively committed perjury when she stated that the 2016 academic report (Exhibit E) was “mere impeachment evidence” against Cottom’s experts. 

In sum, AUSA Smith knowingly mischaracterized the fundamental flaw of fabricating evidence against Cottom as “impeachment evidence”. AUSA Smith was required to know that there is a huge difference between impeachment evidence and fraudulent evidence. In other words, AUSA Smith made this knowingly false statement: “the expert’s 2016 report contradicts their 2015 report, but that just means that the experts were unreliable, not that the government’s evidence was invalid.”

ASUA Smith was legally required to read and understand Exhibits C – E, forcing her to admit that Tinyboard’s (TB2) logging system was a fraud. She was REQUIRED to admit that Exhibit C proved beyond a reasonable doubt that Tinyboard’s source code didn’t issue session ids to clients and didn’t have a visitors table. Therefore, the issue of TB2’s log was not interpretive or a typical matter of expert opinion; it concerned the objective, factual and binary (YES/NO) answers to three questions: Does Tinyboard issue session ids? NO. Does Tinyboard have a visitors table? NO. Does Tinyboard track visitor activity in any way? NO. 

SUMMARY OF ARGUMENT

This habeas petition isn’t about expert opinion or expert mistakes. This is about the government (and all the experts) specifically making knowingly false statements about TB2’s log that egregiously violated Cottom’s constitutional right to a fair trial.

It is undeniable that under Napue v Illinois, the government may not knowingly use false testimony or allow it to go uncorrected. The false testimony committed by Becker and the experts about TB2’s log is material because that fake log was used to identify and attribute criminal activity on TB2 to Cottom. The exhibits prove, beyond an reasonable doubt, that Becker and the experts knew that Tinyboard (TB2) did not have a visitors table. Therefore, they chose to falsely declare that TB2 had a native visitors table and issued real session ids. That means that Becker and the experts committed perjury on August 3, 2015 (at the Daubert hearing).

It is indisputable that the government’s habeas attorneys (MICHAEL P. NORRIS (Case No. 22-2050) & TESSIE L.S. SMITH (Case No. 23-3131) had clear and unequivocal obligations under Brady v. Maryland, Giglio v. United States, Napue v. Illinois and DOJ policy to admit that TB2’s log was FAKE, even though Becker corruptly (See Exhibits H – J) got Cottom’s defense counsel to narrow the Daubert motion’s “scope” to the FALSE premise that the NIT was just a Flash Application on TB2 (See Exhibit A ¶ 19-31).

ARGUMENT

A.TB2’s fake session ids were made to resemble Pedoboard’s to deceive laypersons

Exhibit C (previously submitted as an Exhibit in Cottom’s 22-2050 & 23-3131 petitions) still proves beyond a reasonable doubt that Tinyboard (the software that ran TB2) didn’t natively issue session ids to visitors, didn’t have a visitors table and didn’t log visitor activity in any way. That means that Becker (and ALL subsequent AUSAs) allowed the FACT that Edman inserted a “visitors” table into Tinyboard’s MySQL database to go (illegally) “uncorrected”. In other words, Becker and the AUSAs have perjuriously allowed Edman’s visitors table to be presented as a native TB2 log to the Court(s) – Brady/Giglio/Napue forbids that.

Specifically, Edman’s fabricated visitors table had the following columns that contained falsified evidence: “session_id” , “request_uri” & the “request_headers” referer. Those columns contain false evidence/data because Edman coded a php script (gallery.php) to populate two of those columns (session_id & request_uri) with totally FABRICATED information. The fake information Edman programmatically inserts into the request_uri column causes the actual referring page to be DELETED and replaced with a FALSE entry (i.e evidence tampering). 

Worse, Edman coded gallery.php to generate FAKE session_ids that deliberately looked like PHPBB’s (Pedoboard’s software). He achieved that deception by generating a random 32 character hex string. Edman also loaded gallery.php with a query string that falsified the data in the request_uri column. Those two intentional forgeries forensically invalidated the entire visitors table and made any testimony concerning the veracity of those columns perjury.

Therefore, Edman’s fabrications constitute deliberate evidence forgery. The Court must not allow the government’s responding AUSA to ignore this FACT again. This WAS NOT a “misleading interpretation” or similar “harmless” error. Edman’s TB2 log was an intentional creation of false digital evidence to fabricate evidence of criminal activity.

In sum, Edman didn’t code those fake session_ids to look like real PHPBB session ids by accident. Edman did it to make sure that TB2’s session_ids looked similar to Pedoboard’s session_ids. Edman did that to create the illusion that the sessions_ids on both websites were evidentiary equivalents, that could be used to link website activity to the IP addresses revealed by the identical Flash applications. Thus, the fake session ids on TB2 prove that Edman crafted that illusion on purpose. That means his deception was achieved via “technical sophistication” – with the specific intent to deceive the Court, the Grand Jury and the TB2 defendants about the veracity of TB2’s log.

The government’s ongoing and deliberate concealment of Becker’s FAKE visitors table requires VACATING Cottom’s conviction; because, their knowing concealment of falsified records (by itself) is a case dispositive offense. However, it gets much worse. The misconduct uncovered by the newly discovered e-mails (Exhibits H, J & M) will shock the conscious of this Court.

B. Joe Gross (“Gross”) & Joe Howard (“Howard”) were egregiously disloyal to Cottom

Exhibit J (pp. 7-8) provides newly discovered evidence that – on October 8, 2014 – Gross was loyally advocating for Cottom when he wrote: “Keith, I am preparing a motion under Daubert to challenge the admissibility of the technology supporting the NIT and do not want to make unnecessary work for either of us. Here, I am talking about formal discovery requests … Please provide or produce the following information…”. As explained above, this discovery request – if Becker responded truthfully – would have ended the case against Cottom, so Becker lied (See Exhibit D). 

Exhibit J also proves that (after October 8th) Becker embarked on a persuasion campaign to convince a technologically ignorant Gross intothinking (wrongly) that the NIT on TB2 was just a Flash application (Debunked by Mercuri – See Exhibit N). Becker also introduced a red herring argument to distract Gross from the TB2 fraud. Becker’s distraction consisted of claiming that they had found contraband on Cottom’s Linux computer. However, Becker knew (in 2014) that the NIT on TB2 wasn’t just a Flash application and that they hadn’t found any contraband on Cottom’s Linux computer that could be attributed to him. (Note: Becker deceptively uses the NIT as an alias for the Flash Application (gallery.swf) repeatedly. See Exhibit A ¶ 28-30)

The newly obtained emails prove that Becker had lied so much after October 8, 2014 until December 31, 2014 that Gross now “trusts” Becker to help him “understand the evidence” that the government had against Cottom. That unethical betrayal had grown so egregiously inappropriate over those two months that Gross felt it was OK to write this ridiculously disloyal message about Cottom to Becker on December 9, 2014; “Keith, Thanks for the email yesterday. I was out of the office … Otherwise, I’d have expressed appreciation yesterday. I spoke with Dan Meinke this afternoon and he’s located a few but not all of the images. He explained that what he has found is not in thumbnail format so I continue to build a stronger basis of facts hopefully to direct and control my client. Really appreciate your help (emphasis added – Exhibit J p. 1).”

The Court must agree that the images Becker erroneously claimed to have been on Cottom’s device were an irrelevant distraction. Becker inserted it into the discovery process to distract Gross from the case dispositive problem of TB2’s log (visitors table) being FAKE. Furthermore, there was substantial circumstantial evidence that the cache files (that must be carved to be viewed) were planted by the FBI’s triage tech on April 9, 2013 (AUSA Norris admitted that SA Couch’s warrant execution was improper in his 22-2050 reply brief, but argued that it didn’t warrant suppression). Cottom had also asked the government (through Gross) for the triage X-Ways log file (that Cottom knows should have been generated by default on April 9, 2013). Gross told Cottom that Norris said it didn’t exist. But Norris had persuaded Gross not to challenge it; because, they were only going to use the NIT evidence (at that time undefined) at trial. That turned out to be another lie, as Becker used this knowingly dubious evidence to obtain a second indictment in the WDNY in April of 2015. Cottom believes that the Court should make an adverse inference about the WDNY indictment within this context. It should see it as Becker’s corrupt – and pathetic – attempt to coerce Cottom into dropping his Daubert challenge to the NIT on TB2. 

Regardless, Exhibit I proves that Gross joined Becker’s team after Exhibit J’s email chain. To that unconstitutional end, Gross secretly hired (without the advice or consent of Cottom) Podhradsky’s team to examine the NIT based on Becker’s lies about it just being a Flash Application.

It is clear why Gross didn’t inform Cottom that he had hired Podhradsky’s team to “reverse engineer” the NIT until they were on their way to the FBI facility in Omaha in January of 2015; because, he knew that Cottom vehemently opposed reverse engineering the NIT (aka Flash Application). Gross refused to understand why (See Exhibit N); because, Becker had convinced an ignorant Gross into thinking that the NIT was “just” a Flash Application. However, Cottom (and Mercuri) knew Becker’s assertion was objectively false (See Exhibit A ¶ 19-21).

When Cottom got their first report, he immediately noticed that it was for the wrong server (Pedoboard) and parroted Becker’s nonsense about the NIT just being a Flash application. Bottom line, Cottom was furious with “his” CJA team (See Exhibit I). They had deliberately & corruptly accepted Becker’s nonsense about the NIT just being a Flash Application despite direct and indisputable evidence to the contrary. That was a MAJOR ACT OF SABOTAGE; because, accepting that FALSE premise allowed them to completely ignore the fraudulent log on TB2 for their first report (January 2015). After realizing their intentional sabotage of Cottom’s case dispositive defense strategy, he requested that Gross be removed as his CJA so that Podhradsky’s corrupt team could be fired with him.

Howard was appointed as Cottom’s new CJA in February of 2015. Cottom ordered him to fire Podhradsky’s team for examining the wrong sever on purpose and parroting Becker’s Flash Application nonsense. Howard ignores Cottom’s requests from February to April 2015. Since Becker didn’t know if Podhradsky’s corrupt team would remain on the case, he fraudulently obtained a backup indictment. After Becker obtained the WDNY backup indictment, he immediately contacts Howard (instead of WDNY counsel Steven Slawinski) requesting to transfer it to NE and begin plea negotiations. Cottom refuses both requests and tells Howard that Becker got the WDNY indictment because he’s afraid Podhradsky corrupt team will be fired. Cottom again orders him to fire her team and hire Dr. Mercuri’s team – who agreed to work for less money and had more criminal experience (See Exhibit N). Howard refuses and tells Cottom that he’ll have to use Podhradsky’s team to examine TB2. Newly obtained emails prove that Howard then knowingly facilitated the complete breakdown of the adversarial process (See Exhibit H) in direct violation of Cottom’s constitutional rights.  

C.Howard & Podhradsky’s Team Ensured that No Adversarial Testing Occurred

Exhibit Hshows a criminally improper email chain between Podhradsky’s team and Becker’s team in June of 2015. For Context, on Friday June 5th Podhradsky’s team was hosted by FBI Special Agent Jeffrey Tarpinian to examine TB2’s server. The improper email chain began on Monday June 8th. It was mostly blacked out, so it isn’t included in Exhibit H; it read:

From: Podhradsky, Ashley [(b)(6) (b)(7)(C)]@dsu.edu 

Sent: Monday, June 08, 2015

To: Joseph Howard; [(b)(6) (b)(7)(C) (b)(7)(E) per FBI] (OM) (FBI) 

Subject: Fwd: 060515 USA v Cottom et al

Hi [(b)(6) (b)(7)(C) (b)(7)(E) per FBI]

Thanks for hosting us on Friday. As we work though our work and write the report a few questions have come up. Are you able to respond to them below?

Thanks Ashley

A few questions for the FBI.

[A full page of black out follows – redacted 7E per FBI]

This email was criminally improper because they couldn’t have had any legitimate adversarial questions for the FBI AFTER they examined TB2’s server. In other words, they were not discussing permissible things like logistics or scheduling AFTER they examined the server. To be blunt, the only thing to discuss was TB2’s FAKE logging system.

The next email in this criminal chain occurred at 11:16AM EDT on June 9th. It’s From: Becker and To: Howard with Podhradsky CC’d. As anyone can see, everything about this message is constitutionally improper. The next message From: Podhradsky To: Becker occurs at 12:26PM and includes references to missing correspondence where Matt (a member of Podhradsky’s team) has improperly answered FBI questions. Direct evidence of this improper communication comes from Podhradsky clearly writing: “Below are responses to the questions posed by the FBI team…” (emphasis added).  This criminal chain ends around 9PM with Becker declaring “Thanks for the clarifications…  Let us know if you have any issues with that.”

To understand how egregiously criminal this email chain was, you have to understand the context. These emails occurred AFTER Podhradsky’s team examined TB2’s server, WHILE they were writing their report about it. There were no adversarial questions Podhradsky’s team and the FBI team could have been asking each other at this time. While it may seem complex to laypersons, the analysis at this time was straightforward. They had already determined how the Flash Application worked in January of 2015, so the only question at this time was the legitimacy of the logging system. As explained above, TB2’s log (visitors table) was FAKE. Therefore, this email chain confirms Becker’s conspiracy to hide that FACT from the Court. Specifically, Cottom dares the responding AUSA to argue otherwise, as this is an objective FACT, not argument. This email chain is the “smoking gun” for a textbook Cronic violation. It was perjury when they presented TB2’s log in their June 2015 “Court Report”; AND, it was scientific misconduct when they presented Figure 12 in Exhibit E, knowing the log was fake.

D. Keith Becker, Michael Norris & Tessie Smith knowingly violated Brady/Giglio/Napue

  All of the government attorneys involved in Cottom’s §2255 litigation had a constitutional, ethical and professional obligation to proactively admit that Edman fabricated the logging system on TB2. 

Failure to admit that, especially after Cottom specifically flagged the fraudulent nature of TB2’s log in ALL his §2255 petitions, constitutes Brady/Giglio/Napue violations so severe that it requires the Court to VACATE Cottom’s conviction with prejudice; because, all the government’s attorneys have engaged in willful misconduct to preserve the illegally obtained conviction of Cottom. This Court must rule that AUSAs Michael Norris & Tessie Smith willfully engaged in conduct involving dishonesty, fraud, deceit and misrepresentation in their respective briefs to this Court. As this Court knows, a prosecutor has a heightened duty of candor to the Court. This petition presents this Court with irrefutable evidence that Becker and both habeas AUSAs egregiously violated their duty of candor while also criminally ignoring their constitutional obligations.

As the Court can see in Exhibit G, Becker wrote the following (facts in []):

As we previously advised you via e-mail on May 26, 2015, you appear to misunderstand some of the data on the NIT report that was provided in discovery. The NIT report merely contains a summary of information collected from the TB2 server [fake visitors table] and data provided by the NIT [Flash Application] to the collection server [destroyed], which was compiled after TB2 was taken offline, for purposes of discovery in this case. We have provided or made available the source of the data in that report.

Therefore, the Court must rule that Becker knowingly violated Brady/Giglio/Napue by not admitting that TB2 didn’t have any native data to collect. In other words, Becker was required to admit that TB2’s log data was created / fabricated by Edman.

CONCLUSION / REQUESTED RELIEF

  1. Cottom requests sanctions against the government if they oppose this petition

Tessie L.S. Smith violated ABA Model Rule 3.3, 3.8, 8.4 when she submitted the “UNITED STATES’ RESPONSE TO PETITIONER’S MOTION FOR PERMISSION TO FILE A SUCCESSIVE PETITION” on October 25, 2023 (Case No. 23-3131). Specifically, she knew or should have known that this paragraph was perjurious:

Cottom’s claim that the experts’ academic publication proves that the experts “lied” and colluded with the government by “deliberately omit[ing] or concealing] case dispositive information” is without merit. The minute differences between the experts’ court report and their academic publication cannot establish that no reasonable fact finder would have found Cottom guilty. Indeed, the academic report substantiates and supports the reliability and validity of the FBI’s NIT and forensic evidence which formed the basis of Cottom’s conviction. To the extent that this publication would have conflicted with the testimony of any trial witnesses, it would be a matter of credibility for the jury to decide, not the complete exoneration Cottom alleges it to be. In summary, the May 2016 publication offered by Cottom does not go directly to the disproving the elements required for his conviction but merely to the weight and credibility of the evidence that would have been presented at trial regarding the NIT.

The Court must agree that AUSA Smith had access to and thus was required to know and understand the contents of Exhibits B – K submitted with this petition. Under ABA rules, Smith was not allowed to deliberately avoid facts in the DOJ’s possession that totally obliterated her factual arguments. (Again, just to reiterate, it is an objective FACT that TB2’s log was FAKE.)

Specifically, Smith was required to know that Becker had colluded with Cottom’s counsel and experts as proven by Exhibit H – newly obtained from FOIA litigation. This is especially true since she was able to view the un-redacted copy of that exhibit. Exhibit H’s dialog is not ambiguous or open to interpretation. When combined with the FACTS in Exhibits C & E, it provides direct proof of an illegal collaboration between Cottom’s experts and Becker to conceal Brady , Giglio & Napue exculpatory evidence. 

As explained above in Section C, TB2’s log is not an expert opinion / interpretation issue about the NIT code on Pedoboard and TB2. It’s Becker (the government) deliberately lying about a material piece of evidence (TB2’s log) and procuring the help of Podhradsky’s team to keep that case dispositive lie concealed. 

Therefore,Becker made material and knowingly false statements and omissions in HIS July 20, 2015 memo [Exhibit G] that Smith was required to read and understand within the context of Exhibits C & E. AUSA Smith was also required to know that the Court Report was dated June 5, 2015 but wasn’t finished until June 17, 2015; because, (as Exhibit H proves) Becker illegally helped them write the Court report. Becker dishonestly wrote in Exhibit G: 

“Rather, the publicly-available code was configured to work properly on the pertinent websites and to return the specific information permitted in the search warrant authorizing the deployment of the NIT. Your speculation as to whether additional features or functionality existed or that there may be further information to contradict your experts’ findings amounts to a fishing expedition and does not entitle you to any further information. We are aware of our obligations with respect to Brady and Giglio as to these questions.” (See Exhibit G) 

When Becker wrote that, he knew that he had persuaded Podhradsky’s team to confirm TB2’s fake logging system.  In other words, he wrote that memo knowing that the only thing linking Cottom’s IP address to TB2 were Edman’s FAKE session_ids and his FAKE “visitors” table that Edman populated with mostly fraudulent information. So while being aware of his obligations, Cottom has proven with this petition that Becker criminally ignored them.

Therefore, if the government responds to this petition with anything other than words to the effect of “In light of the new evidence and in the interest of justice, the government does not oppose VACATING Cottom’s convictions”; Cottom requests the sanction of a “judicial finding of prosecutorial misconduct” and a referral of the responding AUSA to the Office of Professional Responsibility.

  1. Cottom requests granting this petition

Per the arguments stated above, Cottom respectfully requests that the Court grant this PETITION and order the District Court to VACATE Cottom’s conviction with prejudice.

bookmark_borderSummary Judgement Filed

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So, I filed my Cross-Motion for Summary Judgement as it’s called. I mailed it yesterday and USPS says that it was delivered today @ 11:17AM. So now the government has until April 17, 2026 to respond to my cross-motion.

In other news, Howard (my Nebraska CJA) still hasn’t provided a single page from my case file and the Nebraska Council for Discipline hasn’t indicated what they’re doing. The complaint that I sent to Iowa’s Attorney Disciplinary Board was “declined”. They told me to complain to the Nebraska Board (I told them that I had complained to them and they didn’t do anything, so I sent a complaint to them… <huge sigh>)

Anyway, as I mentioned before I’m trying to get in touch with my §2255 attorney (Megan Lutz-Priefert). Her former employer Bressman, Hoffman, Jacobs & Quandt refused to help me in any way. I sent them a letter (via certified mail after they basically ignored my other correspondence) and I got this bizarre reply:

Dear Mr. Cottom, Thank you for reaching out to our office. Currently, we are unable to offer representation. Regarding Ms. Lutz-Priefert’s email correspondence, those were maintained directly between Ms. Lutz-priefert and you, and therefore we are unable to release them. Additionally, locating and recovering the specific email at this point would not be feasible.

I thought their response was peculiar since I didn’t ask them to represent me or for emails between myself and Megan. I asked for specific emails between Howard and myself on July 30, 2015. Specifically, I wanted to know if Howard had included, the morning emails where I told him to prepare for trail with the file he gave Megan in 2018.

Bottom line, there is definitely a conspiracy going on… ChatGPT finds everyone’s behavior to be in violation of ABA rules and general legal ethics. This shit is CRAZY!

bookmark_borderSummary Judgement Time

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It’s time for summary judgment. On Tuesday (2-24-2026) I got the government’s Motion for Summary Judgement, claiming that they have met their obligations under FOIA law to respond to my requests. It consists of a large amount of paper that cost them $10 to mail to me, instead of providing a link to an attachment (making it harder for me to review).

I’ve spent the past two days reading it and have determined that it is legally insufficient. Thus, I now need to submit my Cross-motion for Summary Judgement. The crux of their argument takes the form of 3 declarations (provided under penalty of perjury) claiming that the searched for and provided all the information that they were required to, under the law. I will argue the opposite.

Two declarations were authored by an FBI employee named Amie Napier and the other was authored by a DOJ employeee named Korrine Super (seriously?). Amie’s first declaration is 42 pages of boilerplate nonsense, but her second declaration is 16 pages of interesting prose, as it contradicts the first.

In sum, Amie’s first declaration asserts that the NIT Reports that I asked for “were not found” and that all the redactions that they authorized for the DOJ to put on the 297 released pages were carefully analyzed and are totally justified (the redactions in the released documents say Exemption 7E per FBI). Thus, her first declaration is total bullshit. Her second declaration, included as the last exhibit of her first declaration, is a Glomar response for the NIT Reports. I LOL’d at that because it’s an obvious contradiction, either you cannot find the documents (asserting they don’t exists) or you can state “we can neither confirm nor deny” their existence. It doesn’t take a legal expert to determine that her second declaration was inserted because I have one of the documents I requested! Therefore, it’s a “bad faith” hedge allowing them to argue that the “NIT Reports” are a matter of national security when I point out that inconvenient FACT to the Court. LOL In other words, they’re going fight to the death to keep my from seeing those other NIT Reports….

Korrine’s declaration is a boilerplate document that is legally insufficient to win summary judgement with, IMO. Korrine provides the Court with 37 pages of generic definitions for the 118 page Vaughn Index. Her Index is insufficient for the same reason as her main declaration, it consists of 2000+ copy & paste unspecific boilerplate justifications that were outlawed in 2016. In paragraph 103, she actually asserts a forbidden augment. “It is foreseeable that disclosure of such information could allow…” “Could allow” is conclusory and was outlawed in 2016… SMDH.

In sum, I expected Korrine’s disingenuous declaration (as it’s standard “bad faith” DOJ operating procedure – see the Epstein files…). BUT, I was shocked by Amie’s willingness to commit perjury when she knew (or shouldn’t have known) I HAVE A NIT REPORT!

Anyway, I’m composing my motion now. I’ll let you know when I submit it sometime next month. As I gotta proof read and research it carefully. I want the court to completely un-redact two “bombshell” documents released to me so that my next motion to VACATE my conviction is a “slam dunk”.

Wish me luck.

bookmark_borderSo I Caught them

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Since my FOIA litigation started, they have been claiming that they couldn’t find the NIT Reports I’ve requested. As I indicated in a previous report, I challenged that lie in a reply to their request for more time.

The government’s response made me LOL, they actually argued that it was OK to lie because it wasn’t material to the motion to extend the deadline. IOW, it was just procedural – LMAO. But who knows, maybe the Court will buy it. (Like most Americans, I have little trust in any of our institutions.) But, the argument is so absurd on its face the Court would have to get creative to buy it as AUSAs have a duty of candor to the Court. That means they’re not allowed to lie to the Court about anything, EVER! As AUSAs are (wrongly IMO) given a presumption of regularity.

Nothing else to report about the FOIA case at this time, as I wait for the Court to rule on their extension motion and my counter motion to sanction them for lying about the NIT Reports. You’ll know more when I do…

In other news, Howard still hasn’t provided a single page from my case file. So, I sent a letter to Ryan’s law firm (they represented me for my first Habeas petition back in 2018). I’m trying to get them to answer some questions about the file Howard gave to them. Specifically asking about pages I got from FOIA and from the WDNY public defenders office to see if they’re in the file he gave Megan. If they’re not there, then I know (beyond a reasonable doubt) that Howard was/is corrupt.

Out of desperation, I sent a bar complaint to IOWA’s Bar (Howard is licensed there too) to see if they’ll do anything about his noncompliance. Wish I knew how damaging those emails were when I sent them in July of 2015 (but I that time I had no idea Howard was working with Becker to railroad me). In other words, I got played…

Update 2-4-2026

Well, the Court got creative <smdh>

Here, Plaintiff presents no evidence to affirm his assertion that Defendant lied in stating that the FBI could not locate documents responsive to his FOIA request. Plaintiff provides no substantiating proof that his attached exhibit was generated by the FBI in connection with “Operation Torpedo” or that it served as the basis for his criminal indictment in 2013 and is responsive to his FOIA request. (Dkt. 48 at 1). Plaintiff also does not argue that Defendant’s statements were made to harass him or delay these proceedings. See Liebowitz v. Bandshell Artist Mgmt., 6 F.4th 267, 286n.22 (2d Cir. 2021) (“A] showing of bad faith by clear and convincing evidence is a prerequisite to imposing sanctions under both § 1927 and the district court’s inherent authority[.]’). Thus, the Court declines to award Plaintiff sanctions pursuant to § 1927 or its inherent authority.

Regarding his remaining requests, Plaintiff provides no legal basis for the Court to order production of NIT Reports, operational methodology, or internal communications related to such NIT Reports. (See Dkt. 48 at 3). Plaintiff has presented no concrete evidence that defense counsel’s statements are untrue. Absent such evidence, the Court is entitled to rely on representations made by defense counsel that the FBI failed to identify records responsive to Plaintiff’s FOIA request. See Greer v. Carlson, 1:20-CV-05484-LTS-SDA, 2020 WL 7028922, at *3 (S.D.N.Y. Nov. 29, 2020)

BUT, the Court also ruled that the government must file their Motion for Summary Judgement by 2-20-2026 – so I should get a nice Birthday Present… Apparently, I’ll need to supply supporting documents for my exhibits because the Court will just believe anything the AUSA says. IMO, Our institutions are hopelessly corrupt!

bookmark_borderThe Cookie Jar Analogy

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As I note on my updated About Me page (link above) – I ask you to imagine that you were accused of stealing a cookie from a jar, but the only evidence was created by the police. That’s what happened to me and my FOIA litigation is proving it…

Here’s how it went down (according to newly discovered emails)

  1. The FBI seized two secret websites on the Internet (like hidden corners)
  2. Website 1 had real logs that tracked who visited – like a guestbook
  3. Website 2 was just a simple image board with no guestbook
  4. Instead of just watching Website 2, the FBI created a fake guestbook and populated it with falsified data
  5. Keith A. Becker then used the real guestbook from website 1 and the fake guestbook from website 2, to indict real people.
  6. I, Kirk Cottom, noticed – immediately – that the guestbook for Website 2 was fraudulent.
  7. Joe Gross, my first CJA hired experts behind my back that lied and said “Website 2 had a native guestbook, just like Website 1”
  8. I, Kirk Cottom, said “they’re lying” and convinced the judge to remove Joe Gross, so I could fire the corrupt experts.
  9. Becker then flew to my state to indict me again for the same crimes, a pathetic attempt to coerce me to drop my challenge to his fraudulent Website 2 evidence.
  10. Joe Howard refused to fire the corrupt experts and thus joined the team to railroad me (FOIA emails confirm this) for visiting Website 2
  11. After lying to the Court in 2015, the experts publish another report in 2016 exposing some of the lies they told in 2015. Basically saying “Yeah, the system on Website 2 was fake and anyone could trick it”.

That’s what happened in simple terms… still waiting for the Vaughn Index.

bookmark_borderFOIA Litigation Update

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So on Monday I got a response to my letter to the Clerk of the Court. It noted that the Judge (likely upon seeing my letter to the Clerk) ordered the government to file their motion for summary Judgement on January 8, 2025…

Of Course on Tuesday I receive a NOTICE OF MOTION from the government requesting an extension to February 27, 2026. I, of course, filed a MOTION IN OPPOSITION. I also noticed for the first time (legally – I always saw it was written, but didn’t fully comprehend its significance until now) that the AUSA invokes 28 U.S.C §1746 for his DECLARATION(s). I did some research and determine that his paragraphs #5 & 6 are knowingly incorrect.

I know these “declarations” are “knowingly” incorrect; because, #5 states “By Letter dated December 22, 2022, the FBI determined that we were unable to identify records subject to the [FOIA] that are responsive to your request.” Then in #6 he asserts that the FBI’s letter ends the dispute over the requested NIT Reports. His assertion is knowingly incorrect because; A) a simple “letter” isn’t a sworn affidavit and thus is not sufficient to prove that an adequate search was performed and B) I have a NIT Report (Mine), so I can prove that at least one exists and was printed from a DOJ S: drive.

ChatGPT explains this S: drive succinctly:
1. It is an agency record system
Documents stored there are almost certainly “agency records” under FOIA.
2. It can trigger search obligations
If emails indicate responsive records were stored on the S: drive, a reasonable FOIA search may need to include:
+ The relevant S: drive directories
+ Not just email or individual H: drives
3. It can undercut “no records” or limited-search claims
Especially if:
+ Custodians refer to the S: drive as the primary storage location
+ Records were moved there from email
+ Multiple custodians had access
4. It may preserve older or “orphaned” files
S: drives often retain documents long after individual users leave or clean up their inboxes.

Since all the above applies, I filed a motion to challenge the AUSA’s assertion today. I’ll let you know what the Court says when I know.

bookmark_borderAnalogy and Update

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Perhaps an analogy will help people understand how ridiculous the case against me was.

Imagine that the FBI searches two houses next to each other. House A has a security system with cameras that put timestamps on the video. House B has no security system or cameras, but during the search of House B, the FBI installs a security system with cameras and then fabricates video with timestamps mimicking House A’s using artificial intelligence.

A Prosecutor then uses the fake video from House B to indict a masked John Doe in the video with robbing House B. Prosecutor claims masked John Doe is a specific individual who lives in the neighborhood. The accused asks his experts to examine House B’s security system and video. Experts produce a report that says House A’s security system and cameras work fine. Accused tells his attorney “But I’m accused of robbing House B, how is House A relevant?” Attorney responds “Experts say security system and cameras are reliable — case closed —you should take a plea deal”.

Update: So I was supposed to get the Vaughn index and summary judgement brief from the government on November 26, 2025 BUT they asked for a STAY due to the government shutdown. I never got a ruling on their request, so I’m sending a letter to the clerk now to see if we have a new schedule. ALSO, Howard and the Nebraska Counsel for Discipline continue to ignore me. TYPICAL!

bookmark_borderSO then this happened

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I filed a complaint with the “bar” in Nebraska against Joseph Howard because he ignored several of my requests for my file since August 2025. Lets break this down:

  • My Guilty Plea was based on fundamentally false evidence; because, the conviction rested entirely on a fabricated MySQL table that was created and populated by an FBI contractor. That means that the core evidence was not merely flawed, it was entirely manufactured.
  • Dr. Podhradsky’s team knew that this database table was nonexistent in the website’s online code base repository, yet their June 2015 report claims that this database table was part of that website’s code base. That’s perjury.
  • That means that my plea wasn’t just “uninformed” – it was induced by evidence that never really existed. That rules out that their perjury was caused by incompetence and proves that they lied on purpose to help the prosecution hide the fatal defect in their case against me.
  • Defense counsel (Jospeh Howard) actively helped them (Podhradsky’s team) obscure the truth before and after my conviction. (FOIA documents prove that Howard allowed Podhradsky’s team to collude with Becker.)

Thus we shouldn’t be surprised that Howard is actively obstructing my efforts to get answers to my questions. A few weeks after my complaint was filed, Howard sent me this letter:

Dear Mr. Cottom:

I write in response to your recent correspondence requesting materials from your case file. I will send you all documents from my files that I still have and that I am legally permitted to provide.

With respect to discovery produced by the government in the criminal matter, any items that constitute government discovery will need to be obtained from the government.

Please be advised that emails from over six years ago may no longer be available; our routine retention practices may not have preserved email beyond that period.

I will review my archived and legacy files and will transmit to you what I am legally allowed to share.

Good luck with your ongoing matters.

bookmark_borderWhy no-one is talking

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So my FOIA has produced some gems that confirm Keith A. Becker knew the case against me was over on November 10, 2014 when he lied to a direct question in relation to the NIT. In response to our question (why are the session ids different) Keith lied because the truth is they were fabricated by LE code, then place in a LE database. What they told the court was only true for the other websites. They said they added a flash file to the website that downloaded with each page. As I explained before TB2 fake visitors table is inadmissible at trial. I’ll let ChatGPT explain why:

conspiracy

bookmark_borderTime is up

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UPDATE: USPS reports that “Your item was delivered to the front desk, reception area, or mail room at 10:18 am on October 22, 2025 in LINCOLN, NE 68504”.

DECLARATION OF Kirk J Cottom to Nebraska Counsel For Discipline

I, Kirk J Cottom, being of sound mind and over the age of 18, declare the following under penalty of perjury pursuant to 28 U.S.C. § 1746: 

RE: Joseph L. Howard of 1403 Farnam Street, Suite 232 Omaha, Nebraska 68102:

I. Overview

This declaration summarizes the extensive and layered constitutional violations, misconduct, and structural defects that occurred during my prosecution and post-conviction process, including the use of fabricated digital evidence, expert misconduct, prosecutorial collusion, ineffective assistance of multiple court-appointed attorneys, and the obstruction of my right to access my own case materials that contains evidence of all these violations.

II. Fabricated Evidence Introduced by the Prosecution

1. The central piece of evidence against me was a MySQL database table allegedly showing visitor traffic and session data related to an illegal website the government seized on November 15, 2012.

2. This “visitors” table was claimed to be a part of Tinyboard’s system (a PHP Website Program) — one of three servers involved in the case used. In 2013, the government claimed the table had logged user visits with PHP session IDs and in 2015 Podhradsky, Miller and Stroschein concurred in their reports.

3. Upon receiving this table in late 2013 discovery, I immediately noticed two technical defects:

  • The session_id values changed with every page load, which is inconsistent with PHP’s session_start() behavior.
  • The referer and request_uri fields were identical for each entry, a pattern inconsistent with normal web traffic and indicative of fabricated entries.

4. These anomalies strongly indicated that the data was a forgery — In other words, it was clear the data in the visitors table did not occur from any normal website functions.

III. Podhradsky, Miller and Stroschein’s Fraudulent Role

5. Podhradsky, Miller and Stroschein were retained by Attorney Joseph Gross to examine Tinyboard’s server, where the alleged MySQL table was stored.

6. Podhradsky, Miller and Stroschein inspected Pedoboard’s Server instead — a server that never contained the table in question.

7. In their January 2015 report, Podhradsky, Miller and Stroschein:

  • Claimed the session logic used was standard,
  • Did not find any anomalies (because the server they examined had no “visitors” table),
  • But inadvertently showed that that session IDs would not behave the way shown in the prosecution’s fabricated table (i.e Code showed the use of session_start).

8. When I confronted them with this error, Podhradsky, Miller and Stroschein admitted they had examined the wrong server.

9. Despite this, Joseph Gross used the report for the incorrect server to dismiss my objections and declined to challenge the authenticity of the visitors table, which at this point was being actively hidden by the government & Podhradsky, Miller and Stroschein.

10. Upon this disagreement Mr. Gross agreed to file a motion to remove both himself and Podhradsky, Miller and Stroschein, citing a total breakdown of communication.

IV. Joseph Howard’s Appointment and Continued Obstruction

11. The court granted the motion and appointed Joseph Howard.

12. I requested that Mr. Howard:

  • Terminate Ph.D Podhradsky, Mr. Miller and Mr. Stroschein
  • Hire Ph.D Rebecca Mercuri, who was less expensive
  • Properly examine Tinyboard’s Server.

13. Joseph Howard refused all requests, insisting on reusing Podhradsky, Miller and Stroschein, even though:

  • They had been discredited,
  • They had examined the wrong server (Pedoboard running on PHPBB),
  • They had already – likely – collaborated with the prosecution because the servers were clearly labeled, making their choice to avoid Tinyboard inexplicable.

14. Podhradsky, Miller and Stroschein then wrote their June 2015 report, now addressing Tinyboard, but:

  • Presented the fabricated MySQL table as legitimate,
  • Ignored publicly available website source code that contained no session logic and no visitors table schema for Tinyboard (the software that ran TB2),
  • Repeatedly misrepresented technical facts, like claiming actual PHP session id was used when they knew it was not.

V. Ex Parte Collusion Between Keith A. Becker and Podhradsky, Miller and Stroschein

15. Through 2025 FOIA litigation, I obtained heavily redacted emails showing that:

  • Podhradsky, Miller and Stroschein and the prosecutor were communicating directly while they were preparing their second report (that was full of lies that only benefitted the government),
  • The prosecutor was influencing the contents of what was supposed to be a defense expert report,
  • Joseph Howard was cc’d on these emails, but did not object or disclose the extent of the collusion to me or the court.

16. These heavily redacted emails confirm that their second expert report — the only one submitted to the court on my behalf — was in fact jointly crafted by the prosecution and the experts, with the silent approval from defense counsel.

VI. Post-Conviction Discovery of Fraud and Obstruction

17. After release from prison, I hired Mindfire Technology to independently examine Tinyboard’s software.

18. Mindfire Technology confirmed in a detailed report that:

  • No “visitors” table existed in Tinyboard’s Database Schema,
  • The website had no code to issue PHP session IDs or log visitor’s activities in any way,
  • Concluded that the visitors table was not a part of Tinyboard’s code base.

19. I attempted to share this report with Podhradsky, Miller and Stroschein and asked them to explain how they missed this case dispositive fact.

20. Podhradsky, Miller and Stroschein refused to engage, and Miller cc’d Joseph Howard in on his email rejecting my request to explain.

21. This further confirms that Podhradsky, Miller and Stroschein never worked for the defense — only for the prosecution — and that Joseph Howard continued to shield them even post-conviction, after conclusive evidence of the fabricated “visitors” table emerged.

VII. Joseph Howard’s Continued Stonewalling and Denial of Case File Production

22. On September 23, 2025 the request for my case file arrived by certified mail at Joseph Howard’s front desk. I requested my complete case file, including all communications and work product.

23. As of Noon on October 14, 2025 – Joseph Howard has refused to respond and has not provided the file — a violation of ethical duties and my constitutional right to access the record for post-conviction litigation – I currently have a FOIA case in progress that is producing bombshell after bombshell.

24. Joseph Howard also refused to answer basic questions such as:

  • Why he refused to fire Podhradsky, Miller and Stroschein,
  • Why he didn’t act on the anomalies identified by William Laubenheimer,
  • Why he and Steven Slawinski went against my orders to prepare for trial and instead negotiated a plea deal behind my back then coerced me into taking in the evening of July 30, 2015,
  • Why he allowed the prosecution and expert to coordinate behind my back.

VIII. Summary of Violations

Based on the above, the following constitutional violations and structural defects occurred:

1. Structural Sixth Amendment error under United States v. Cronic:

  • I had no adversarial testing of the prosecution’s key evidence (visitors table).
  • My “defense expert” co-authored a report with Keith A. Becker (sometimes quoting him directly while answering my questions in their second report).
  • My attorney allowed it, did not object, and blocked me from replacing the experts, knowing that’s why I had Joseph Gross removed.

2. Ineffective assistance of counsel (Strickland v. Washington):

  • All attorneys failed to investigate, challenge fabricated evidence, or act on exculpatory facts.
  • They obstructed my post-conviction efforts by failing to release exculpatory facts in my file to other attorneys working on my §2255 motion.

3. Denial of expert assistance (Ake v. Oklahoma):

  • I was never allowed to acquire an independent expert, even though several were available.
  • Joseph Howard forced me to rely on experts that were clearly working with the prosecution.

4. Due process violations:

  • Government used fabricated evidence (Mooney v. Holohan).
  • Knowingly false expert testimony (Napue v. Illinois).
  • Suppression of impeachment evidence (Giglio v. United States).
  • Denial of access to courts (Lewis v. Casey), by withholding my file.

5. Actual innocence:

  • Mindfire Technology’s forensic report proves the “visitors” table was placed there by the government and a subsequent report (made for an academic conference) by Podhradsky, Miller and Stroschein contains the actual code and proves everything stated above. The Visitors table was fabricated and populated with false data generated by a government coded php script.
  • The website’s code shows that Tinyboard never issued sessions or tracked visitors.
  • The prosecution’s central evidence (used to obtain TB2 indictments) was entirely fabricated.

IX. Conclusion

This case did not involve a fair trial, an honest expert, or an adversarial defense. I was convicted based on knowingly fabricated digital evidence, court-appointed experts who worked for the prosecution, and attorneys who blocked my ability to expose the truth even after the evidence of my innocence was clear.

I respectfully request the Counsel for Discipline to investigate these claims and order Joseph Howard to provide Kirk Cottom with his entire case file including all e-mails sent and received in this matter from January 2015 to October 2025.

____________________________

Kirk J Cottom