United States v. Robert Thorson

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 11, 2018
• Docket: 17-30100
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 11 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30100

Plaintiff-Appellee, D.C. No. 2:16-cr-00277-RSM-1 v.

ROBERT D. THORSON, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, Chief Judge, Presiding

Submitted December 6, 2018** Seattle, Washington

Before: GRABER, McKEOWN, and CHRISTEN, Circuit Judges.

Defendant Robert D. Thorson appeals his conviction, after a jury trial, for

producing and possessing child pornography in violation of 18 U.S.C. § 2251(a),

(e) and 18 U.S.C. § 2252(a)(4)(B), (b)(2). We have jurisdiction pursuant to 28

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). U.S.C. § 1291, and “[w]e review de novo whether any prosecutorial misconduct

occurred.” United States v. Flores, 802 F.3d 1028, 1034 (9th Cir. 2015). We

affirm Thorson’s convictions.

1. Thorson contends that the prosecutor did not have a good faith basis

to impeach Thorson’s testimony about his allegedly exculpatory tattoo. However,

substantial evidence in the record shows a good faith basis to suspect that Thorson

obtained his tattoo after his arrest, including: (1) prior to the trial in federal court,

the prosecutor knew that Thorson resisted the state court’s order that his genitals be

photographed; (2) during pretrial conference, defense counsel stated that he had no

intention of offering proof regarding the physical characteristics of Thorson’s

genitals; (3) before the prosecutor cross-examined Thorson, he learned that

Thorson had argued to the state judge that the ordered photography would “compel

me to provide evidence against myself”; (4) before the prosecutor cross-examined

Thorson, he obtained the relevant photographs and believed that a comparison of

these photographs against the video in question showed that, with the exception of

the tattoo, the images were almost certainly of the same person; and (5) the

prosecutor knew that inmates are capable of obtaining a tattoo while in custody,

even when a prisoner is housed in SHU.

2. Thorson next argues that the prosecutor violated his Fifth Amendment

2 right to remain silent by discussing his resistance to the state court’s order that his

genitals be photographed. But Thorson did not remain silent; he wrote to the state

court and complained that the order was “an unconstitutional order to compel me

to provide evidence against myself” and then testified in his federal trial,

inconsistently, that he had an exonerating tattoo that proved it was not him in the

video. If a defendant testified to facts inconsistent with post-arrest statements, the

prosecutor may question the defendant about that inconsistency to show that the

defendant is not credible. Anderson v. Charles, 447 U.S. 404, 408–09 (1980) (per

curiam); United States v. Makhlouta, 790 F.2d 1400, 1404–05 (9th Cir. 1986).

Because Thorson’s statements to the state court were inconsistent with his

testimony during his federal trial, the prosecutor was entitled to argue that

Thorson’s earlier statements called into question the believability of his testimony

about the age of his tattoo. The prosecutor’s cross-examination of Thorson and the

closing argument were properly focused on Thorson’s credibility and did not

amount to assertions that Thorson’s resistance to the order was substantive

evidence of his guilt. See Anderson, 447 U.S. at 408 (noting that cross-

examination cannot “be bifurcated so neatly” and courts should look to “[t]he

quoted colloquy, taken as a whole”).

3. Thorson similarly contends that the prosecutor violated his Sixth

3 Amendment right to counsel and right to present a defense by arguing that his

“counsel’s resistance to the state court order implied guilt.” As discussed, the

prosecutor never argued that Thorson’s opposition was substantive evidence of his

guilt; the prosecutor merely argued that Thorson’s objections were inconsistent

with his testimony claiming to have an exonerating tattoo.

AFFIRMED.