United States District Court, E.D. Kentucky, Northern Division, Covington
L. BUNNING, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Michael B.
Clark's Motion for a New Trial. (Doc. # 63). The
government having responded, (Doc. # 65), and the time for
Defendant to reply having expired, see LCrR 12.1(d),
the motion is now ripe for the Court's review. For the
reasons set forth herein, Defendant's Motion for a New
Trial, (Doc. # 63), is denied.
FACTUAL AND PROCEDURAL BACKGROUND
November 8, 2018, a federal grand jury indicted Defendant
Clark. (Doc. # 1). The Indictment charged Defendant with
twelve counts of distributing child pornography. Id.
A Superseding Indictment was returned on April 11, 2019,
charging the same conduct, but reducing the number of counts
from twelve to five. (Doc. # 32). The case went to trial,
during which Defendant argued that some other individual,
without the Defendant's knowledge, had downloaded and
distributed the child pornography found on Defendant's
computers. See (Doc. # 58 at 19). The “heart
of the defense” was that Cody Thierauf, a friend of the
family, “had the knowledge and ability to illegally
access the Defendant's computers for illegal
purposes.” (Doc. # 63 at 1). At the conclusion of the
four-day trial, the jury convicted Defendant of all five
counts. (Doc. # 56).
September 24, 2019, Defendant moved for a new trial, claiming
new evidence had come to light. (Doc. # 65 at 1). In support
of his motion, Defendant submitted a thumb drive containing a
video narrated by Defendant's daughter, Erica Atwood,
showing a Pinterest page allegedly belonging to Mr. Thierauf.
(Doc. # 63). The video is timestamped September 20, 2019.
Id. The video shows that on Mr. Thierauf's
Pinterest page in a folder labeled “Stuff” there
is a graphic titled “Everything You Wanted to Know
About Tor and the Deep Web.” Id. The graphic
explains what the deep web is and how to access it.
Id. Defendant claims that the discovery of this
Pinterest page warrants vacating the jury's verdict and
setting this matter for a new trial. (Doc. # 65 at 1).
trial may be granted pursuant to Rule 33 of the Federal Rules
of Criminal Procedure “if the interest of justice so
requires.” Fed. R. Crim. P. 33. New trial motions
“are disfavored and should be granted with
caution.” United States v. Willis, 257 F.3d
636, 645 (6th Cir. 2001). To succeed on a motion for a new
trial based on newly-discovered evidence, “the
defendant must show that the evidence (1) was discovered only
after trial, (2) could not have been discovered earlier with
due diligence, (3) is material and not merely cumulative or
impeaching, and (4) would likely produce an acquittal if the
case were retried.” United States v. Barlow,
693 F.2d 954, 966 (6th Cir. 1982). The defendant bears the
burden “of demonstrating the need for a new
trial.” United States v. McLain, 9 Fed.Appx.
463, 465 (6th Cir. 2001).
Defendant has not made the necessary showing to warrant a new
trial. Even if the Court accepts Ms. Atwood's claim that
she discovered Mr. Thierauf's Pinterest page after the
trial, (Doc. # 63), Defendant has not satisfied the remaining
Barlow factors. First, Defendant does not explain
why the Pinterest page “could not have been discovered
earlier with due diligence.” Barlow, 693, F.2d
at 966. Second, Defendant does not show how the Pinterest
page is “not merely cumulative or impeaching”
evidence. Id. In his testimony at trial, Mr.
Thierauf already “admitted being proficient with
computers and boast[ed] about his skills.” (Doc. # 65
at 3). This newly-discovered Pinterest page is merely
additional evidence of Mr. Thierauf's computer knowledge.
Finally, Defendant does not demonstrate how presenting the
Pinterest page would “produce an acquittal if the case
was retried.” Barlow, 693, F.2d at 966. At
trial, the jury heard evidence of Mr. Thierauf's computer
skills, of the files indicative of child pornography found on
multiple devices at Defendant's home, and of
Defendant's fabrication of evidence. (Doc. # 65 at 3).
When considered in context with the all the evidence
presented against Defendant at trial, one graphic about the
deep web on a Pinterest page allegedly created by Mr.
Thierauf is not enough to prove that there would likely be an
acquittal if the case was retried. Simply put, Defendant has
not met his burden of proof to show that a new trial is
warranted. Therefore, Defendant's Motion for a New Trial,
(Doc. # 63) is denied.
for the reasons stated herein, IT IS ORDERED
that Defendant's Motion for a New ...