Thomas Petro was convicted by a jury of one count of coercion or enticement of a minor under 18 U.S.C. § 2422(b) for communicating with a 13-year-old girl, known as MV, on the anonymous app Whisper. Petro argued at trial that he believed MV was an adult and that they were engaging in 'age-play' or role-playing, a defense that turned largely on the credibility of the competing testimonies of Petro and MV. During the government's closing argument, the prosecutor told the jury that their job was to remove the defendant's 'cloak' of the presumption of innocence and declared that the evidence had successfully removed that cloak, stating, 'Thomas Edward Petro now stands before you naked in his guilt.' The prosecutor also displayed a full-body image of Petro naked in the shower to visually reinforce this metaphor. The jury deliberated for less than 40 minutes before returning a guilty verdict, and Petro was sentenced to 140 months in prison. Petro appealed, arguing that the prosecutor's remarks infringed upon his constitutional right to a presumption of innocence.
The Tenth Circuit applied the plain error standard because Petro did not object to the remarks at trial. The court analyzed whether the error affected Petro's substantial rights and seriously affected the fairness of the proceedings. The court held that the prosecutor's statement that the presumption of innocence was 'removed' was a clear misstatement of law, as the presumption is extinguished only upon the jury's determination of guilt. The court found that the timing of the remarks, made at the end of the government's closing, was highly prejudicial because it was one of the last things the jury heard before deliberating. The court also noted that the use of the nude photo to illustrate the 'naked in his guilt' comment compounded the prejudice by creating a visual analogy that undermined Petro's constitutional rights. Regarding the strength of the evidence, the court found it was not overwhelming; the case turned on conflicting credibility assessments between Petro and MV regarding her age and their intent. The court concluded that the jury instructions, which were given only at the start of trial and were generalized, failed to cure the prejudice of the improper remarks. The court determined that the remarks undermined Petro's credibility, which was central to the case, and that the quick verdict suggested the jury may have been swayed by the improper comments. Consequently, the court found that the error affected Petro's substantial rights and seriously affected the fairness and integrity of the judicial proceedings.
The judgment is vacated and the case is remanded to the District Court for the Northern District of Oklahoma for a new trial. The decision clarifies that prosecutors cannot argue that the presumption of innocence has been eliminated prior to deliberations and warns that such remarks, especially when paired with prejudicial evidence like a nude photo, can lead to reversal even in cases with significant evidence of guilt. The court also encouraged trial judges to provide oral jury instructions on the presumption of innocence at the close of evidence to mitigate such risks.