Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Thornhill

United States Court of Appeals, Ninth Circuit

October 15, 2019

United States of America, Plaintiff-Appellee,
v.
Jim Wayne Thornhill, Defendant-Appellant.

          Argued and Submitted August 7, 2019 Anchorage, Alaska

          Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, Chief District Judge, Presiding D.C. No. 1:16-cr-00008-TMB

          Darla J. Mondou (argued), Marana, Arizona, for Defendant-Appellant.

          Andrew J. Klugman (argued) and Jack S. Schmidt, Assistant United States Attorneys, United States Attorney's Office, Anchorage, Alaska, for Plaintiff-Appellee.

          Before: Richard C. Tallman, Sandra S. Ikuta, and N. Randy Smith, Circuit Judges.

         SUMMARY [*]

         Criminal Law

         Affirming a conviction for receipt of child pornography, the panel held that the district court did not abuse its discretion when it admitted evidence of the defendant's prior Alaska state conviction for sexual abuse of a minor in the second degree.

         The panel held that the prior conviction was within the scope of Fed.R.Evid. 414 because (1) the term "child molestation" encompasses both the crime for which the defendant was previously convicted and the present charge of receiving/possessing child pornography, and (2) the prior conviction was relevant as it tended to prove the defendant's sexual interest in children and that he used the terms on a handwritten list to knowingly receive the child pornography.

         Applying the balancing test of Fed.R.Evid. 403 to the Rule 414 evidence, and the factors set forth in United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001), the panel held that the probative value of the prior conviction was not substantially outweighed by its unfair prejudice. With regard to the district court's finding that the prior conviction was helpful/practically necessary to the government's case, the panel held that the district court did not err in rendering this evidentiary decision before all testimony had been presented at trial.

          Concurring, Judge N.R. Smith wrote that the district court and the majority ignored the plain language in LeMay requiring trial judges to reserve judgment as to the necessity of the proffered evidence until after the other testimony has been offered, but that the error is harmless.

          OPINION

          TALLMAN, Circuit Judge.

         Jim Thornhill appeals his jury conviction for receipt of child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1). The question before us is whether the district court abused its discretion when it admitted evidence of Thornhill's prior Alaska state conviction for sexual abuse of a minor in the second degree. We conclude that it did not, and we affirm.

         I

         In October 2015, the FBI received a "report of harm" related to a graphic voicemail left on a dating site, which indicated that the caller was sexually abusing a 10-year-old girl. The FBI traced the call to a cannery in Juneau, Alaska.

         At the cannery, Special Agent Anthony Peterson ("Agent Peterson") played the voicemail to other employees, who identified the voice as Thornhill's. Employees later found a Nokia cell phone at Thornhill's desk, along with handwritten lists of graphic search terms commonly associated with child pornography. Agent Peterson subsequently interviewed Thornhill and obtained a search warrant for the items found at his work desk. Forensic analysis of the phone ultimately revealed that over 100 images of child pornography were received and stored in various file paths on the phone between November 3, 2014, and December 25, 2014.

         Thornhill was indicted on April 20, 2016, for one count of receipt of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1). Before trial, the government notified Thornhill that it intended to introduce evidence of his prior Alaska state conviction for sexual abuse of a minor in the second degree under Federal Rule of Evidence ("Rule") 414. Thornhill had previously pleaded guilty and was convicted of sexually abusing his 11-year-old daughter in February 2008. Details of the offense included Thornhill inappropriately touching his daughter over and under her clothing while she was sleeping on several occasions between 2004 and 2007. The district court initially "reserve[d] ruling on this motion until after the Government [] introduced its other evidence at trial."

         After jury selection, the parties agreed to the following stipulations:

• That each image was produced involving the actual use of minors engaged in sexually explicit conduct and was produced outside of the State of Alaska;
• That Thornhill resided at The Glory Hole, a homeless shelter in Juneau, Alaska, from September 14, 2014, through February 18, 2015; and
• That Thornhill owned the black Nokia 520 cell phone and authored the handwritten lists found at his desk.

         Because of these stipulations, many of the witnesses the government had intended to call were excused from testifying, and, as a result, the government called only one witness, Agent Peterson, in the prosecution's case-in-chief.

         Before opening statements, the district court ruled that Thornhill's prior conviction for sexual abuse of a minor was admissible applying the factors we articulated in United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001).

         During Agent Peterson's testimony, the government introduced Thornhill's prior judgment of conviction, and it was admitted into evidence. Agent Peterson identified the prior victim as Thornhill's 11-year-old daughter. Immediately following the introduction of the prior conviction (and again at the end of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.