United States District Court, W.D. Washington
ORDER DENYING DEFENDANT'S RULE 33 MOTION FOR A
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Robert D.
Thorson's Rule 33 Motion for a New Trial. Dkt. #115. Upon
full consideration of the record, and for the reasons
discussed herein, Mr. Thorson's motion is DENIED.
October 19, 2016, Mr. Thorson was charged in a two-count
indictment with one count of Production of Visual Depictions
of Minors Engaged in Sexually Explicit Conduct (Count 1), and
one count of Possession of Visual Depictions of Minors
engaged in Child Pornography (Count 2). Dkt. #1. Mr. Thorson
plead not guilty to both counts, and he was detained pending
trial. See Dkts. #7 and #9.
than a month later, on November 10, 2016, the Court held a
status hearing to determine whether to grant Mr.
Thorson's unopposed motion for a trial continuance.
See Dkts. #12, #13, and #15. At this hearing, Mr.
Thorson expressed dissatisfaction with his counsel, explained
he did not think he could get a fair trial if he was
represented by a public defender, and he made a request to
proceed pro se. Dkt. #15 at 4-6. The Court advised
Mr. Thorson of the disadvantages of proceeding pro
se, explained why the Court was granting a continuance,
and offered to appoint someone from the Court's Criminal
Justice Act (“CJA”) panel to represent Mr.
Thorson if he was adamant in refusing representation from a
federal public defender. Id. at 4-12. In response to
the Court's CJA representation offer, Mr. Thorson stated:
“I would like that, because me and Ms. Deutsch, we
argue every time we meet. We cannot agree on anything. And so
it's just a personality conflict that can't be
overcome.” Id. at 12. Because Mr. Thorson
agreed to be represented by CJA counsel, the Court appointed
attorney Stephan Illa to represent Mr. Thorson on November
14, 2016. See Dkt. #14. The pretrial motions
deadline was continued to January 9, 2017, and trial was set
to begin on February 6, 2017. Dkt. #13.
January 24, 2017, the Court held a pretrial conference. At
that conference, the Court ruled on the parties'
outstanding motions in limine. See Dkt.
#46. In one motion, the government sought to preclude Mr.
Thorson from testifying about the government's failure to
introduce photographic evidence of Mr. Thorson's
genitals. Dkt. #26 at 1-4. Id.
Additionally, predicting that Mr. Thorson might try to
introduce a non-testimonial display of his genitals at trial,
the government also moved for an order granting it permission
to photograph Mr. Thorson's genitals. Dkt. #37 at 1-4.
The government reasoned that photographs, not in-court
exposure, would be the proper way for Mr. Thorson to display
any unique markings on his genitals. Id. at 2.
Because Mr. Thorson's counsel indicated he did not intend
to introduce either testimonial or non-testimonial evidence
about Mr. Thorson's genitals, the Court granted the
government's motion in limine (Dkt. #26), and
the government's motion to photograph Mr. Thorson's
genitals was denied. See Dkt. #46.
pretrial conference, Mr. Thorson again requested to proceed
pro se. In response to this request, Mr. Thorson was
told to file his motions through his counsel. After the
pretrial conference, Mr. Thorson filed five motions through
counsel. See Dkts. #48, Exs. A and B, and #49, Exs.
A, B, and D. Although Mr. Thorson did not move to proceed
pro se in any of the five motions, the Court
nonetheless held a Faretta hearing on January 30,
2017. See Dkt. #66. Following questioning by the
Court, Mr. Thorson declined to proceed pro se.
began on February 8, 2017. On the third day of trial, Mr.
Thorson took the stand. See Dkt. #83. While on the
stand, Mr. Thorson sought to exculpate himself by testifying
about a tattoo on his genitals. Because Mr. Thorson's
testimony ran contrary to representations made by his counsel
at the parties' pretrial conference, the government
renewed its request to photograph Mr. Thorson's genitals.
Mr. Thorson did not object to this request, and Mr.
Thorson's genitals were photographed. On the fourth day
of trial, the government sought to reference Mr.
Thorson's prior objections to having his genitals
photographed. Mr. Thorson's counsel objected to this line
of questioning on the grounds that these questions burdened
his post-arrest right to remain silent. Mr. Thorson's
objection was denied. Later that day, near the end of the
government's rebuttal case, Mr. Thorson once again sought
to proceed pro se. This request was denied.
February 13, 2017, the jury found Mr. Thorson guilty of one
count of Production of Visual Depictions of Minors Engaged in
Sexually Explicit Conduct and one count of Possession of
Visual Depictions of Minors engaged in Child Pornography.
of the Federal Rules of Criminal Procedure allows defendants
to move for a new trial after a verdict is rendered. Upon the
filing of this motion, if the interest of justice so
requires, courts may vacate a judgment and grant a new trial.
Fed. R. Crim. P. 33(a). Motions for a new trial are
“directed to the discretion of the district judge,
” and they should only be granted with caution. Charles
Alan Wright & Sarah N. Welling, Criminal 4th Federal
Practice and Procedure § 581 at 436; see United
States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981)
(motions for a new trial should only be granted “in
exceptional cases in which the evidence preponderates heavily
against the verdict” (internal quotation marks
omitted)). Because Rule 33 motions are based on the
presumption that a verdict is valid, defendant bears the
burden of persuasion in moving for a new trial. Charles Alan
Wright & Sarah N. Welling, Criminal 4th Federal Practice
and Procedure § 581 at 437. “[I]f the substantial
rights of the defendant [are] not affected, court[s] should
refuse to grant the defendant's motion.”
Id. at 436.
Thorson bases his motion for a new trial on two grounds. Dkt.
#115 at 1. Mr. Thorson first argues his Fifth Amendment right
against self-incrimination was violated when the government
referenced his state-court objections to having his genitals
photographed. Id. at 1, 10. According to Mr.
Thorson, the government's reference to his prior
objections impermissibly burdened his right to remain silent,
his right to counsel, and his right to make legal objections.
Id. 11-13. Mr. Thorson next argues his Sixth
Amendment right to ...