Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
Thorson v. United States
United States District Court, W.D. Washington, Seattle
August 9, 2019
ROBERT D. THORSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER DENYING PETITION
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
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 and possession of child
pornography. Id. at 1; United States
v. Thorson, No. CR16-277RSM, Dkt. #132 (W.D. Wash. May
12, 2017). The Government opposes Mr.
Thorson's Â§ 2255 Motion. Dkt. #33. After full
consideration of the record and for the reasons set forth
below, the Court denies Mr. Thorson's Â§ 2255 Motion.
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. 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
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
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.
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.
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
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.
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.
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
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 ...
Buy This Entire Record For