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United States v. Fuller

United States District Court, E.D. Michigan, Southern Division

October 11, 2017

United States of America, Plaintiff,
v.
Justin D. Fuller, Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR A NEW TRIAL [244]

          JUDITH E. LEVY UNITED STATES DISTRICT JUDGE

         The Court held a jury trial in the above-captioned case from March 28, 2017, to April 13, 2017. On April 13, 2017, the jury reached a verdict finding defendant guilty of all fourteen counts for which he was indicted, including one count of child exploitation enterprise, multiple counts of conspiracy to commit child exploitation crimes, and multiple counts of production of child pornography and enticement of a minor. Defendant now moves under Fed. R. Crim. P. 33(a) to have the Court vacate the judgment against him and grant a new trial. (Dkt. 244.) For the reasons set forth below, defendant's motion is denied.

         I. Background

         On November 16, 2015, an individual by the name of Virgil Napier was arrested in Waterford, Michigan. (Dkt. 260 at 33.) Subsequent to his arrest, investigators learned that Napier was part of a coordinated group that worked together to find young girls, invite them into secure chat rooms, and entice them to perform sexual acts. (Id. at 34-35.) In an effort to identify other members of the group, an FBI agent named Adam Christensen received permission to assume Napier's online identity for a twenty-one day undercover operation. (Id.) During the course of the undercover operation, Christensen observed and recorded hundreds of hours of online activity - both text chat and video - within the secure chat rooms. (Id. at 35-46.)

         During the operation, Christensen learned the KIK online messaging system usernames for other members of the group, including two accounts associated with an individual who used the name “Yep” in his activities within the private group chat rooms. (Dkt. 261 at 25-26.) The FBI subpoenaed KIK in order to determine the IP address associated with those usernames, and from that information, determined the physical address of the internet subscriber using the KIK accounts. (Id. at 35.) This was the Modesto, California residence of defendant Fuller. (Id.)

         When law enforcement executed a search warrant at Fuller's home, they recovered numerous electronic devices including a desktop computer, an external hard drive, an iPhone, and a laptop computer. (Id. at 46.) The forensic examination of those devices, which was approximately twenty-eight percent complete at the time of the trial, identified approximately 2, 700 saved child pornography videos. (Id. at 75 and 77.)

         On the day the search warrant was executed, Fuller gave a recorded confession at his home. (See, e.g. Dkt. 263 at 143-45.) He later gave a second recorded confession (Dkt. 264 at 34-36) and signed a written confession in which he admitted to misconduct including “watching minors undress and perform sexual acts, such as rubbing their genitals, ” “record[ing] this conduct and sav[ing] the recordings on [his] personal computer, ” and “convincing these females to remove their clothing and rub their genitals by ‘looping' another teenage male's video and telling the female that [he] was the person in the ‘looped' video.” (Id. at 39.)

         In addition to the evidence described above, the three-week trial included testimony from co-defendant Virgil Napier, testimony from one minor victim, and testimony from nine mothers of identified minor victims.

         II. Legal Standard

         “Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). Such a motion should generally only be granted “in the extraordinary circumstances where the evidence preponderates heavily against the verdict.” United States v. Hughes, 505 F.3d 578, 593-94 (6th Cir. 2007). “A district judge, in considering the weight of the evidence for purposes of adjudicating a motion for new trial, may act as a thirteenth juror, assessing the credibility of witnesses and the weight of the evidence.” Hughes, 505 F.3d at 593 (citing United States v. Lutz, 154 F.3d 581, 589 (6th Cir.1998)).

         III. Analysis

         Defendant moves for a new trial on four grounds: (1) prosecutorial misconduct tainted the trial; (2) the Court erred in limiting cross-examination of co-defendant Virgil Napier regarding sentencing benefits he stood to gain in exchange for his testimony; (3) the Court erred in denying the suppression of evidence or a Franks hearing on certain evidence; and (4) defendant's Confrontation Clause rights were violated by the admission into evidence of co-defendant John Garrison's video file naming convention.

         a. Prosecutorial Misconduct

         Defendant contends that a variety of inflammatory statements tainted the prosecution's closing argument and rebuttal. (Dkt. 244 at 6.) When a defendant contends that prosecutorial misconduct justifies a new trial, the misconduct “must be so pronounced and persistent that it permeates the entire atmosphere of the trial.” United States v. Mahar, 801 F.2d 1477, 1503 (6th Cir. 1986) (further citations omitted). The Court conducts a two-part analysis to determine whether prosecutorial misconduct warrants a new trial. First, “a court must first consider ...


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