United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
NEW TRIAL (DKT. 83)
TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE
T. Herbert Felton, Jr. was convicted after a five-day jury
trial of Interstate Transportation of Minor to Engage in
Criminal Sexual Activity (Count 1 - 18 U.S.C. §
2423(a)); Use of Facility of Interstate Commerce to Entice a
Minor (Count 2 - 18 U.S.C. § 2422(b)); three counts of
Manufacturing Child Pornography (Counts 5, 7 & 9 - 18
U.S.C. § 2251); three counts of Receipt of Child
Pornography (Counts 6, 8 & 10 - 18 U.S.C. §
2252A(a)(2), 18 U.S.C. § 2252A(b)(1)); and one count of
Possession of Child Pornography (Count 11 - 18 U.S.C. §
2252A(a)(5)(B), 18 U.S.C. § 2252A(b)(2)). The guilty
verdict was filed by the Clerk on June 23, 2017.
November 15, 2017, Defendant filed a motion for a new trial
(Dkt. 79). The main argument presented in
Defendant's motion is that the Government improperly
withheld certain potentially exculpatory evidence. Defendant
also argues that cumulative errors deprived him of a fair
Government filed a response to Defendant's motion (Dkt.
89), and the Court held a hearing on February 23, 2018. For
the reasons set forth below, Defendant's motion for a new
trial is DENIED.
following facts were established at trial. On May 7, 2014,
P.W., then a 14-year-old boy living in Tilton, Illinois was
reported missing (Dkt. 1, Compl. ¶ 1). Video from a
nearby bus station showed him boarding a bus sometime after
11:45 a.m. Id. P.W.'s father obtained his
son's cell-phone records, and noticed that they contained
calls with an unfamiliar out-of-state number with an
“810” area code. Id. ¶ 2. On May 8,
2014, P.W.'s father travelled to Michigan, and met with a
police detective. Id. The detective was able to
trace the unknown 810 telephone number to Defendant, who was
living in Flint, Michigan. Id. Around midnight that
same day, police arrived at Defendant's home, and located
both Defendant and P.W. Id. Defendant was arrested,
and P.W. was interviewed by local police. This interview was
summarized in written notes. The next day, May 9, 2014, P.W.
was interviewed at the Genesee County Sheriff's Office.
This interview was video-taped. Defendant was also
interviewed by the police, and made a number of admissions.
investigation revealed illicit images of P.W. on
Defendant's cell-phone. This discovery led to additional
charges in a superseding indictment for manufacturing,
receipt, and possession of child pornography (Dkt. 53). This
case was tried before a jury, beginning on June 16, 2017. At
trial, eleven witnesses testified. These witnesses included
P.W.'s father, two officers from the Gen-esee County
Sheriff's Department (who interviewed Defendant and
P.W.), a nurse from Hurley Hospital (who examined P.W.
shortly after he was located), P.W. himself, two lab
technicians from the Michigan State Police (who testified,
among other things, about DNA evidence that suggested sexual
contact between Defendant and P.W.), FBI Special Agent Henrik
Impola, and a Michigan State Police forensic examiner (who
testified about the electronic data recovered from
Defendant's cell phone). P.W. testified that he met
Defendant online and over a period of time sent Defendant a
number of sexually explicit images of himself and that the
two of them engaged in “phone sex.” Eventually,
P.W. testified, Defendant traveled to P.W.'s town in
Illinois, met him and took him by bus and train to
Defendant's home in Flint, Michigan, where Defendant then
provided P.W. with alcohol and marijuana and they engaged in
sexual intercourse. Defendant was convicted on all counts.
motion for a new trial, Defendant argues that “[a]fter
the [Presentence Report] PSR was generated, the Defense
discovered it contained information, previously unknown to
the Defense, that P.W. used ‘Naughtymeetings.com'
to initially communicate with Mr. Felton.” (R. 83:
Defendant's Brief at p. 8). The Government correctly
points out, however, that this information was initially
disclosed on June 5, 2014, in the affidavit filed with the
criminal complaint. Paragraph 7 of the affidavit provides in
part that “the chat rooms PW and Felton communicated in
were rooms associated with sexual encounters, i.e.
‘naughtymeetings.com'” (Dkt. 1: Complaint).
next complains that he should have received a copy of
“police reports” prepared by FBI Special Agent
India Jones. He claims that the reports contain newly
discovered evidence including: (1) details of dating websites
(naughtymeetings.com, discussed above); (2) a statement by
P.W. that he lost his phone in Illinois, (which contradicted
P.W.'s trial testimony that Defendant threw P.W.'s
phone off of a train in Michigan); and, (3) that P.W. sent
sexually explicit messages and child pornography to another
individual. Finally, Defendant contends that certain other
“cumulative” errors deprived him of a fair trial.
Standard of Review
motion for a new trial is brought under Federal Rule of
Criminal Procedure 33. That rule provides:
(a) Defendant's Motion. Upon the defendant's motion,
the court may vacate any judgment and grant a new trial if
the interest of justice so requires. If the case was tried
without a jury, the court may ...