United States District Court, D. South Dakota, Central Division
OPINION AND ORDER DENYING DEFENDANT'S MOTIONS FOR NEW TRIAL
ROBERTO A. LANGE, District Judge.
A jury, after a five-day trial, found Defendant Michael Heath Thetford (Thetford) guilty of charges of Felon in Possession of a Firearm, Impersonating a Federal Officer, Interstate Stalking, and Tampering With a Witness. On November 17, 2014, Thetford filed three separate motions. Through his court-appointed counsel, Thetford sought a new trial arguing newly discovered evidence, based on the United States Court of Appeals for the Eleventh Circuit reinstating Thetford's § 1983 claim challenging conditions of confinement at the Hoover City Jail, where he was confined when awaiting disposition of separate federal charges in the Northern District of Alabama. Doc. 149. Though represented by counsel, Thetford filed pro se a Motion for Judicial Notice of United Nations Treatys [sic], Doc. 151, and Defendants [sic] Pro Se Motion for a New Trial, Doc. 152, asserting various additional arguments. For the reasons explained, Thetford's motions are denied.
A. Procedural History
Thetford initially was indicted in the District of South Dakota on December 14, 2011. Doc. 4. Thetford however first faced criminal charges in two cases in the United States District Court for the Northern District of Alabama. United States v. Michael Heath Thetford, 11-C00495-KOB-HGD and 12-CR-00349-KOB-HGD. During the pendency of the charges in the Northern District of Alabama, Thetford was confined in various facilities, including an extended stay at the Hoover City Jail. Thetford was dissatisfied with two court-appointed Alabama attorneys, discharged those attorneys, and represented himself for part of the time in the proceedings in the Northern District of Alabama. Ultimately, with the assistance of attorney Kevin Butler, the Federal Public Defender for the Northern District of Alabama, Thetford entered into plea agreements to plead guilty to counts of sexual exploitation of children and receipt of child pornography in 12-CR-00349-KOB-HGD, and to counts of felon in possession of a firearm and wire fraud in 11-CR-00495-K0B-HGD in the Northern District of Alabama. Trial Exhibits 152, 153. Those plea agreements were binding under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, contemplating that Thetford would receive a sentence of 318 months total, with time on each of the counts to be served concurrently. Thetford also negotiated a plea agreement to plead guilty to one count in the District of South Dakota and to receive a sentence that would run concurrently with the 318-month sentence received from the Northern District of Alabama. Thetford pleaded guilty in the Northern District of Alabama and received a 318-month sentence, but chose not to plead guilty in South Dakota.
In this Court and on appeal to the Eleventh Circuit, Thetford contended that his plea in the Northern District of Alabama was not voluntary and knowing. The Government in the District of South Dakota then presented additional evidence to a grand jury and obtained a superseding indictment charging Thetford with five counts: (1) Felon in Possession of a Firearm; (2) Impersonating a Federal Officer; (3) Interstate Stalking; (4) and (5) two counts of Tampering With a Witness. Prior to trial, this Court merged the tampering with a witness counts, Doc. 137, so that Thetford faced four charges during the jury trial in the District of South Dakota. That trial occurred from October 20 through October 24, 2014, and the jury found Thetford guilty on all four charges. The evidence of Thetford's guilt on each count was overwhelming. To demonstrate why none of the grounds urged by Thetford merit a new trial and in anticipation of forthcoming pro se motions from Thetford challenging his conviction, this Court summarizes the facts in some detail now.
B. Evidence at Jury Trial
1. Thetford's Conduct and Events in South Dakota
a. Mysterious Visit of "Agent Russ" to South Dakota
On May 25, 2010, Thetford flew from Birmingham, Alabama, to Pierre, South Dakota, on Delta Airlines. Trial Exhibit 104. Thetford rented a gold Chevrolet Impala using a credit card for his business, Innovative Land Development, LLC, and listed his name on the rental agreement as Michael Heath, 156 Treymoor Drive, Alabaster, Alabama. Trial Exhibit 105. Thetford stayed at the Capitol Inn and Suites in Pierre using his own name and again listing his 156 Treymoor Drive address. Trial Exhibit 106. Thetford was in South Dakota on May 28, 2010, Trial Exhibit 106, and flew back to Alabama on May 29, 2010, Trial Exhibit 104. Thetford told his friend Timothy Lewis, who transported Thetford to and from the Birmingham airport for this trip, that Thetford's intention was to go to South Dakota, pose as a federal agent, and convince a couple who had assets in Alabama not to return to Alabama. That couple, who expressed deep fear about being stalked and having their identity stolen, will be referred to in this Opinion and Order as Jack and Shirley.
On May 28, 2010, Jack and Shirley were living in a community outside of Pierre, South Dakota. Jack and Shirley previously had lived in Alabama, still owned a lake home near Shelby, Alabama, owned a building that Jack had used as a millwork shop in Bessemer, Alabama, and owned other property in Alabama including boats, airplanes, and jet skis. Jack and Shirley had purchased property in South Dakota in 1999, had built a home on the property, and had chosen around 2007 to stay permanently in South Dakota, although they had not abandoned their personal or real property in Alabama.
Thetford had an interest in aviation and learned that Jack and Shirley rented an airplane hangar in Alabama but were behind on payments. Thetford discovered that Jack and Shirley owned a lake house and business as well as airplanes. Thetford divulged to Lewis that he had gotten into the hangar, saw an airplane of Jack and Shirley's, and thought he could sell it. Thetford and Lewis twice went to Jack and Shirley's lake house and saw a boat and jet ski there.
On May 28, 2010, Thetford arrived in his rental car to the rural home of Jack and Shirley. Thetford was dressed in a suit and tie and was wearing sunglasses when he approached Jack and Shirley. Thetford had a gun in a holster on his hip, which was visible to Jack and Shirley. Jack and Shirley did not know Thetford. Thetford showed Jack and Shirley bogus FBI credentials and identified himself as either Agent Russ or Agent Russell. Shirley saw the FBI identification listing "Agent Russ" and also saw a United States Marine Corps identification in Thetford's wallet. Thetford never provided Jack and Shirley his real name, and both knew this person as "Agent Russ." Jack likewise saw the FBI identification and recognized, from Jack's experience as an amateur gunsmith, Thetford's gun as a Sig Sauer 226 model.
"Agent Russ" told Jack and Shirley that he was an FBI agent investigating them for money laundering and methamphetamine distribution. "Agent Russ" informed Jack and Shirley that their shop in Bessemer was being used to produce methamphetamine and questioned Jack whether he, as a licensed pilot, was transporting methamphetamine. "Agent Russ" said that Jack's brother Pete had "dirty hands." Jack and Shirley questioned whether "Agent Russ" was serious, and Thetford posing as "Agent Russ" became more assertive with Jack and Shirley.
"Agent Russ" revealed to Jack and Shirley that he knew a great deal about them and their Alabama assets. "Agent Russ" told Jack and Shirley that he wanted their computers and for them to come with him to the FBI office in Sioux City, Iowa,  to take a polygraph examination to clear their names. Jack and Shirley cooperated with "Agent Russ" believing him to be an FBI agent, collected their computers, and got into the backseat of a car that they variously described as being champagne or silver in color, consistent with the gold Chevrolet Impala that Thetford had rented upon his arrival in Pierre. "Agent Russ" referred to Jack and Shirley as "suspects." "Agent Russ" told Jack and Shirley that they were not being handcuffed out of courtesy, although he showed them that he had handcuffs at the ready. Jack and Shirley were very upset, scared, and tearful.
While driving toward Sioux City, "Agent Russ" engaged Jack and Shirley in discussions concerning his purported investigation, guns, and hunting. "Agent Russ" asked Jack and Shirley when they were last in Alabama and if they planned to return to Alabama. "Agent Russ" mentioned that his mother was Russian, that he had lived in Florida previously, and that he had a cat at his home.
Before reaching Sioux Falls and within two hours of Sioux City, "Agent Russ" stopped the car at a gas station in Humboldt, South Dakota. "Agent Russ" then got out of the vehicle and appeared to Jack and Shirley to be on a cell phone call. Upon returning to the vehicle, "Agent Russ" told Jack and Shirley that he had good news, that they had been cleared, and that he would take them home. "Agent Russ, " Jack, and Shirley stopped on the way back for dinner in Mitchell at a Ruby Tuesday restaurant. "Agent Russ" drank beer, even though he was posing as an FBI agent, which caused Jack and Shirley to question him. Jack and Shirley asked why, if he was from Sioux City, he had a Hughes County license plate. "Agent Russ" explained that the FBI used such plates to blend in. "Agent Russ" paid for the dinner, with Jack and Shirley believing that "Agent Russ" used a credit card although later investigation revealed no credit card receipt from Ruby Tuesday that night that appears to correspond with the meal.
On the drive back, "Agent Russ" began talking about wanting to shoot jackrabbits and prairie dogs in South Dakota. Jack and Shirley directed "Agent Russ" to a prairie dog town near North Bend. Upon arriving back to Jack and Shirley's residence, "Agent Russ" let them out of the vehicle and allowed them to take their computers. Jack and Shirley noticed in the front of the vehicle something referring to Kansas City on a road atlas. "Agent Russ" followed Jack and Shirley inside their home and talked about wanting the trigger of his gun to be lighter so that he might be able to shoot prairie dogs with it. "Agent Russ" gave his gun to Jack and asked Jack to see what he could do with the trigger. Jack immediately unloaded the gun and laid the clip down. "Agent Russ" then said that he would return under better circumstances for the gun and be in contact with them in the future.
b. Jack and Shirley's Reports on "Agent Russ"
After "Agent Russ" left, Jack and Shirley were concerned about having the gun of an FBI agent in their possession. In the days that followed the mysterious visit of "Agent Russ, " Jack and Shirley contacted the FBI offices in Sioux City and then in Kansas City about the visit from "Agent Russ." Neither the FBI office in Sioux City nor the one in Kansas City took seriously what must have seemed a bizarre report-FBI "Agent Russ" arriving near Pierre, transporting Jack and Shirley two-thirds of the way to Sioux City for a polygraph examination, turning around to take them back home, treating them to dinner and drinking beer during dinner, and leaving his gun with them.
On June 4, 2010, Jack and Shirley received an email message from "Gary Beck" at the email address firstname.lastname@example.org with the subject being "It's Russ." Trial Exhibit 107. The email uncorrected of spelling and grammatical errors stated:
Hey Guys, it's Russ. Just finally found a little time to check in and let you guys know that we made an arrest. I can't give any more details at this time. 1 did put your names an on the victims compensation fund (like I said I would) if convicted, you will recieve a notice in the mail.
Enough about work!!! I'm dying to get back to see you guys and do some shooting!
How is everything? How are the dogs doing? Got to run.... get back to me when you get a chance.
Trial Exhibit 107. Jack and Shirley noted the unusual email address and did not know whether "Agent Russ" was an actual FBI agent.
In December of 2010, Jack and Shirley reported the encounter with "Agent Russ" to the South Dakota Division of Criminal Investigation (DCI) by calling Agent Brian Gortmaker. Jack and Shirley provided to Agent Gortmaker the gun, clip, and ammunition received from "Agent Russ" and forwarded the June 4, 2010 email. Agent Gortmaker asked the Bureau of Alcohol, Tobacco, and Firearms (ATF) to conduct a records search regarding the gun. The ATF was able to trace the gun to an Alabama gun shop, which had sold the gun in 2005 to David Hobbs. Agent Gortmaker found no information that the gun had been used in any crime and returned the gun to Jack and Shirley.
Gortmaker interviewed Hobbs who recalled (and so testified at trial) that he bought a Sig Sauer pistol, which he later traded to Mike "Thadford" for a small rifle after "Thadford" did some survey work for Hobbs. Hobbs knew the gentleman he recalled as being Mike "Thadford" from work and had seen him at a Birmingham gun show. At trial, Hobbs identified the Sig Sauer pistol that Jack and Shirley ultimately provided to the FBI as the one that he had sold to the person he knew as Mike "Thadford."
Unsatisfied with DCI Agent Gortmaker returning the gun to them, Jack and Shirley then called the Minneapolis office of the FBI. The Pierre FBI office is within the Minneapolis region. FBI Special Agent Megan Breining, together with another Pierre FBI agent, interviewed Jack and Shirley separately. Jack and Shirley both were very skeptical initially that Agent Breining and her fellow agent were in fact FBI agents. Agent Breining collected the Sig Sauer pistol, clip, and ammunition.
Agent Breining received the lead from DCI Agent Gortmaker about a Mike "Thadford" having purchased the Sig Sauer pistol from David Hobbs. Agent Breining learned that there was a Michael Heath Thetford, but no Mike Thadford in the area of Alabaster, Alabama, where Hobbs had sold the gun. Agent Breining in time obtained the Delta flight records, the rental car records, and the lodging records showing that Thetford was in Pierre at the time "Agent Russ" visited Jack and Shirley. Agent Breining attempted to find video surveillance from the places in Humboldt and Ruby Tuesday where "Agent Russ" had taken Jack and Shirley, but such video surveillance was unavailable and no receipt from Ruby Tuesday could be found for a credit charge by Thetford. Agent Breining learned that Thetford had felony burglary convictions ...