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United States v. Thorson

United States District Court, W.D. Washington

May 16, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT D. THORSON Defendant.

          ORDER DENYING DEFENDANT'S RULE 33 MOTION FOR A NEW TRIAL

          RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This 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.

         II. BACKGROUND

         On 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.

         Less 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.

         On 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.[1] 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.

         At the 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. Id.

         Trial 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.

         On 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. Dkt. #87.

         III. LEGAL STANDARD

         Rule 33 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.

         IV. DISCUSSION

         Mr. 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 ...


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