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Thorson v. United States

United States District Court, W.D. Washington, Seattle

August 9, 2019

ROBERT D. THORSON, Petitioner,




         This matter is before the Court on Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 Motion”). Dkt. #1. Petitioner Robert D. Thorson (“Mr. Thorson”) challenges his concurrent 324-month and 240-month sentences imposed on him by this Court following his jury-trial convictions on charges of production of child pornography[1] and possession of child pornography.[2] Id. at 1; United States v. Thorson, No. CR16-277RSM, Dkt. #132 (W.D. Wash. May 12, 2017).[3] The Government opposes Mr. Thorson's § 2255 Motion. Dkt. #33. After full consideration of the record and for the reasons set forth below, the Court denies Mr. Thorson's § 2255 Motion.


         The Government presents the factual background of this case as it was presented to the Ninth Circuit Court of Appeals in Mr. Thorson's direct appeal.[4] The Court notes that Mr. Thorson did not object to the Government's factual background and that Mr. Thorson's factual background, as laid out in his § 2255 Motion, is not entirely inconsistent with the Government's. The Court therefore adopts the Government's factual background as provided and will consider any contested facts in the context of the arguments.

A. The Trial Evidence.
This case involves child pornography found in the home of Becky Luksan in May 2016. At that time, eleven people lived in Luksan's five bedroom house. Six were adult family members: Luksan; Thorson (Luksan's boyfriend); Angela Romero (Luksan's daughter); Jose Romero (Luksan's son-in-law); Frederick Williams (Luksan's grandchild); and Diego Castaneda (Luksan's grandchild). ER_443-44, 446, 450-51, 587-89.5 Three were Luksan's minor grandchildren: B.C. (fourteen years old), E.C. (eight years old), and C.C. (five years old). ER446, 448, 588-89. The last two occupants-Elogio Velasquez Mendoza and “Bertie”-were adult male friends of Angela and Jose Romero. ER_445, 590.
Luksan and Thorson shared one bedroom, which also had a recliner on which C.C. and E.C. sometimes slept. ER_445, 459-60, 521. Angela and Jose Romero shared another bedroom; Williams and Castaneda shared a bedroom; and B.C., C.C., and E.C. shared a bedroom. ER_445-46, 520-22, 589. Velasquez Mendoza slept in the fifth bedroom, and Bertie slept in an open area near the furnace and water heater. ER_523-24, 590.
1. The Child Pornography Found on Thorson's Cellular Telephone.
On May 30, 2016, while Thorson was at work, Luksan picked up a table she had purchased using Thorson's OfferUp account (OfferUp is an online marketplace for used goods). ER_453-54. Because she had used Thorson's OfferUp account, Thorson left Luksan his cellular telephone so that she could communicate with the seller via the OfferUp application on that phone. ER_455-56.
After returning home, Luksan began “playing with his phone, ” and she found some text messages between Thorson and another woman, as well as a folder labeled “me.” ER_455-57. Luksan opened that folder and viewed a video. ER_457, 516. This video depicted E.C. sleeping on a recliner in Luksan's living room; E.C. was covered with a polka-dot blanket, and the video showed a white man's erect penis pushing up against E.C.'s mouth; the man was also wearing a blue-and-white striped shirt. ER_466, 530; Gov't Exh. 1B (video recovered from Thorson's cellular telephone). Luksan “recognized” the man in the video and “just knew” he was Thorson (Thorson and Luksan had a sexual relationship). ER_451, 457, 514-15, 531. She also recognized a black shoe the man was wearing as belonging to Thorson. ER_516-17.
Luksan then called out to Angela Romero, who immediately called the police. ER_457, 593-94. A responding officer viewed the video of Thorson and E.C., after which the phone was seized. ER_483-84, 486-90, 516. The officer also took statements from Luksan and Angela Romero. ER_484, 490, 594. Thorson returned home while this investigation was being conducted, whereupon he was arrested. ER_484-85, 487-88.
2. The Search of Luksan's Home and Thorson's Computer and Cellular Telephone.
On June 2, 2016, a search warrant was executed on Luksan's home. ER413-14. In the bedroom Luksan and Thorson shared, the police recovered a Dell computer that belonged to Thorson, along with three USB drives and a ScanDisk memory card that were connected to that computer, and that also belonged to Thorson. ER_416-18, 428-29, 461-62, 470-71. Elsewhere in the bedroom, the police found additional USB drives and some CD-ROMs and DVD-R discs. ER418-19, 437-38. The police also seized a polka- dot blanket from that bedroom, a blue-and-white striped men's dress shirt from Thorson's side of the closet, and a pair of black loafers. ER_416-17, 419-20, 423, 428, 430-32, 460-61; Gov't Exh. 21G (search warrant return). That striped shirt was the one Thorson was wearing in the video he took of E.C.; the recovered polka-dot blanket was also visible in that video, as was a carpet in Luskin's living room. ER_466, 680-81.
The following items were forensically examined: Thorson's cellular telephone; Thorson's computer; two USB drives that were attached to that computer (one manufactured by PNY, the other by Verbatim); and three DVD-R disks-including one labeled “Little” and another labeled “Chub”-found in Thorson's dresser. ER_419, 637-39, 676-77. The video of Thorson placing his penis on E.C.'s mouth while she was sleeping was found on Thorson's phone, as were other pornographic still images of E.C. and Z.G. (Thorson's twelve-year-old second cousin). ER_609, 616, 641-43, 654-60, 678-79, 681-82; Gov't Exhs. 1B-1E (video and still photographs recovered from Thorson's cellular telephone). The photos of E.C. were images of Thorson inserting his penis into E.C.'s mouth while she slept on a different occasion than depicted in the video (Luksan again identified Thorson's penis based on their “sexual relationships”). ER_468-70, 596, 642, 681-82; Gov't Exh. 1D (photos of E.G. found on Thorson's cellular telephone). The photos of Z.G. depicted her sleeping in a tank top and shorts, with Thorson's hand pointing to Z.G.'s vagina. ER_611, 616-18, 643; Gov't Exh. 1E (photos of Z.G. found on Thorson's cellular telephone).
On Thorson's PNY USB drive, several videos were found that had been taken from a camera hidden in one of Luksan's bathrooms. ER_472, 497, 499-500, 644-45. These videos showed B.C., C.C., and E.C. variously entering and exiting the shower while nude. ER_471-80, 492-97, 685-88; Gov't Exhs. 3B, 4A, 5A, 6A, 7A (videos recovered from Thorson's PNY USB drive). Thorson was captured on some videos setting up and removing the hidden camera (ER_472, 475-77, 479, 496-97, 687-88), and his voice was heard on others. ER_473, 476, 480. In one video, Thorson was filmed wearing a Mickey Mouse shirt Luksan gave him that said, “Don't Mess with the Mouse.” ER_478-80, 501. That shirt was recovered from Luksan's home. ER688. Another video depicted Thorson's tattooed arm (ER495, 689), which was photographed after his arrest. ER389-91.
On Thorson's Verbatim USB drive, the police found still photos of Z.G. taken with Thorson's cellular telephone. ER_647, 666; Gov't Exh. 8B (photos of Z.G. found on Thorson's Verbatim USB drive). These were the same lascivious photos of Z.G. that were found on Thorson's cellular telephone. ER_655, 691-92. A still photograph of the hand pointing at Z.G.'s vagina was submitted for fingerprint analysis, and after enhancing the image the analyst determined the visible ridges on one finger matched Thorson's fingerprint. ER_390-92, 542-44, 548-55, 558-59, 562-65, 568-70, 691-94.
On a DVD-R found in Thorson's dresser, the police found a clip from the “Baby J” child pornography video; this is a four-hour video filmed in Georgia that depicts a young girl (less than six years old) being repeatedly raped over a two-year period. ER_362-66, 647-48, 690; Gov't Exh. 9B (clip from “Baby J” video found on Thorson's DVD-R). On Thorson's computer, images from the “Sisters” child pornography series were found; these images depict three young girls (one no older than five years old) being sexually abused in New Hampshire and Florida over a four-year period. ER_372-75, 443, 653; Gov't Exh. 2F (images from “Sisters” series found on Thorson's computer). Images from the “Valentine” child pornography series were also found on Thorson's computer; these images depict a young girl (no older than five years old) being sexually abused in Oregon over a nine-month period. ER378-83, 643, 653; Gov't Exh. 2E (images from “Valentine” series found on Thorson's computer). Images of Z.G. sleeping in a tank top and shorts-the same images found on Thorson's cellular telephone and the Verbatim USB drive-were also found on his computer. ER_616, 618-19, 648-50; Gov't Exh. 2C (photos of Z.G. found on Thorson's computer).
3. Thorson's Post-Arrest Efforts at Witness Intimidation.
After his arrest, Thorson sent Luksan two letters from jail trying to dissuade her from cooperating with the authorities. In the first letter, Thorson told Luksan that she needed to “change her statement, ” and that he wanted Luksan to tell the state prosecutor: “after thinking about it a bit, you are not sure that it is me, as I cannot sustain an erection very long without a lot of manual stimulation, and I don't even like blow jobs, as I was molested as a child.” ER_504. Thorson threatened that if Luksan did not recant by June 16, 2016, he would “take action of my own” and “destroy everyone's life” by making all sorts of allegations against Luksan, such as accusing her of abusing and neglecting her grandchildren, harboring illegal aliens, and defrauding the IRS. ER_505-08, 525-26. Thorson also said that if Luksan took his letter to the authorities, she would be arrested based on his allegations. ER_507. Thorson told Luksan to destroy the letter to ensure prosecutors did not find it, warning that he was “fighting for my life and I will do what I have to.” ER_507.
In a second letter, Thorson again threatened to accuse Luksan of abusing and neglecting her grandchildren, as well as reporting her to the IRS. ER_510-11, 527-28. Thorson told Luksan, “If you don't back off on me, I will toss your family tree into the wood chipper, ” and said he would tell the authorities that Luksan and others engaged in all manner of sexual impropriety, including with children. ER_513. Thorson told Luksan that she should leave town if his case went to trial, and said that if she did not provide a statement exonerating him and stop cooperating with the authorities by June 16, 2016, he would “cut loose the dogs of war and destroy everything.” ER_511-12.
B. The Defense Case.
1. Thorson's Testimony Denying Guilt.
Thorson testified that, in addition to the adult men who lived in Luksan's house, Luksan's brother Charles frequently stayed in an adjacent camper. ER_702-04, 707-08. Thorson said that when Charles stayed there, he would “[g]enerally” let Charles use his cellular telephone while he (Thorson) was at work. ER_724-25. Thorson also let Luksan borrow his phone occasionally. ER_725. For a time, Thorson had his phone password-protected-though he told “everybody” in the house the password-and he later stopped using the password protection feature. ER_724-25.
Regarding his computer, Thorson said it was not password protected and that Charles and the children also used it. ER726, 763. Thorson denied plugging in the Verbatim USB drive that had the images of Z.G., but admitted that the other connected USB drives were his-including the PNY USB Drive-which he claimed were used as extra memory to speed up his video games, and for storing some documents and old photographs. ER_731-34, 763. Thorson denied owning any of the DVD-R discs founds in his and Luksan's bedroom, and indicated they were likely Luksan's. ER_736-37, 763, 771. Thorson also denied ever wearing the Mickey Mouse shirt seized from his bedroom. ER_763-64, 766. Thorson did acknowledge that the striped shirt seized from his bedroom looked “similar” to the shirt the man wore in the video found on his cellular telephone, but said that Luksan's brother “often wore my clothes” and that Charles “may have been wearing it.” ER_765.
Thorson testified that every bedroom in Luksan's house had its own lock; that a room's occupants had keys to their individual room; and that only Luksan had keys to every bedroom. ER_710-11. Thorson also said there was a security camera that captured the living room and the area in front of the upstairs bedrooms, and that this data was backed up on an offsite server that only Luksan could access (the camera also maintained a small amount of data on an internal S.D. card). ER_712-24, 774-75, 791-93. Thorson also suggested that Luksan installed a hidden “nanny cam” in the bathroom. ER_728-31.
Thorson denied any interest in child pornography, and said he was unaware of the child pornography found in his bedroom and on his computer and cellular telephone. ER_737, 767-70. Thorson said someone else was responsible for creating the child pornography found on his electronic devices, and suggested Angela Romero and/or Luksan “was setting me up.” ER_737-39, 770-71, 776. Thorson admitted sending the threatening letters to Luksan after his arrest, and said he reacted that way because he “was being set up” and he wanted Luksan “to back off” and “tell the true story.” ER_738-39, 771-74, 790-91.
According to Thorson, the backup data from Luksan's security camera would reveal the true perpetrator. ER739-40. Thorson said he could not be the man in the video found on his phone because he was impotent and “cannot obtain an erection.” ER740, 772, 790. Thorson also said the penis in that video could not be his because his penis has a tattoo, while the one in the video does not. ER740-41, 777, 790. Thorson said that on his wedding night in 1988, he tattooed a blue “A” on the head of his penis (“A” being his deceased wife's first initial). ER733, 747, 776-77, 786-89, 843-44, 846; Gov't Exh. 33A (photographs of Thorson's penis).
2. Thorson's Testimony about His Prior State Court Prosecution.
Thorson was originally charged in state court with various offenses stemming from the child pornography found on his electronic devices. ER_777, 844. During that prosecution, the state court ordered that Thorson's penis and tattoos be photographed. ER_777. Thorson wrote a letter to the state judge, complaining that this order required him “to provide evidence against myself in a criminal proceeding.” ER_781; SER2. Thorson also directed his attorney to appeal that order because, in his view, any such photography would “totally be incriminating” and would amount to providing evidence against himself. ER_782-83. Thorson also said he objected to being photographed in front of women (the state prosecutor and his attorney were both women). ER_782-84.
Because of that appeal, Thorson's penis and tattoos were not photographed before his case was accepted for federal prosecution (this resulted in the dismissal of the state prosecution and his pending appeal). ER_779, 784. Thorson's penis was not photographed until after he testified about his tattoo on direct examination. ER_784-86.
C. The Government's Rebuttal Case.
The government called a Washington state appellate prosecutor, who discussed Thorson's appeal of the state court order requiring that his penis and other body parts be photographed, and the stay of that order that resulted from the appeal. ER795-803. The government also called a federal agent who was supposed to assist state officials in taking those photographs, who explained that no women were to be present when Thorson was photographed. ER_804-06. An agent with the Bureau of Prisons testified that while tattoo materials are prohibited in federal correctional facilities, inmates often fashion homemade tattoo materials and it is “[v]ery possible” to get a tattoo while incarcerated. ER_826-28, 835-36. It is even possible for a federal inmate ...

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