Federal Corner: FRE 403 Trumps FRE 414. The Defendant Wins. – By F. R. Buck Files Jr.

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Federal Rule of Evidence 403 can be the barrier that keeps the government from introducing that evidence against your client that will virtually guarantee a conviction.

Roger Loughry was convicted of advertising, distributing, and conspiring to advertise and distribute child pornography through an online depository called the “Cache.” Because Judge William T. Lawrence of the United States District Court for the Southern District of Indiana abused his discretion by failing to review videos that were challenged by the defense and to conduct a Rule 403 balancing test before they were admitted into evidence, a panel of the Seventh Circuit (Manion, Wood, and Williams, Circuit Judges) reversed Loughry’s conviction and remanded the case for further proceedings. United States v. Loughry, ____F.3d____, 2011 WL 4790540 (7th Cir. 2011).

Judge Williams authored the opinion of the Court which includes, in part, the following:

[The Cache]

The Cache had 536 users, about 100 of whom used the site to advertise and distribute child pornography to each other and to other users. Most of the remaining users (be­tween 400 and 450, according to the government’s estimate) viewed, but did not post, child pornography. In addition to pornography, the Cache also featured online games. Loughry joined the Cache the day after it went online, on November 12, 2005, using the name “Mayorroger.”

      Cache participants were separated into tiers. The top tier had two administrators, “Das” and “Devil.” The next tier was composed of co-administrators, which the government contends included Loughry as “Mayorroger, and two other people, “Dublhelix” and “Aurthurgery.” The five administrators had access to the administrative control panel and could admit, promote, or demote other members, as well as control content on the Cache. Lower in the hierarchy were moderators, masters, and trusted members.

      The site was divided into sub-forums and topic areas. There was a non-nude gallery area and a nude gallery area, which was subdivided by ages into “18 and over nude,” “13–18 nude,” and “under 13 nude” categories. The Cache’s rules prohibited posting any images depicting sexual contact, masturbation, penetration, boys, or men. According to several witnesses, the purpose of the Cache was to provide its members with access to child pornography consisting of the lascivious exhibition of the genitals of minor girls.

[The Search of Loughry’s Home]

In early September 2008, law enforcement agents executed a search warrant of Loughry’s home. The agents seized Loughry’s computer and various CDs. The computer’s primary hard drive was registered to Loughry and contained a user account under the name “Mayorroger.” There were also multiple “bookmarks” or “favorites” to provide expedited access to specific pages on the Cache, including a link to the administrative control panel. The government also found files containing child pornography in the computer’s Mayorroger account, in other folders within the computer, and on the CDs.

[The Indictment]

On September 9, 2008, a federal grand jury indicted Loughry on charges of advertising and conspiracy to advertise child pornography in violation of 18 U.S.C. § 2251(d)(1)(A), and of distributing and conspiracy to distribute child pornography in violation of 18 U.S.C. § 2252(a)(2) and 18 U.S.C. § 2252(b)(1). A superseding indictment charged sixteen counts, one of conspiracy to advertise child pornography, one of conspiracy to distribute child pornography, twelve of advertising child pornography, and two counts of distribution of child pornography. Loughry was not charged with possession of child pornography.

[The Trial]

During trial, the government introduced evidence that Loughry responded to several postings on the Cache. For example, the link to a series called “Little Virgins” stated “by Das, on May 17, 2006, with a huge thanks to Mayorroger.” Several months later, after a series of replies thanking both “Das” and “Mayorroger” for the set of images, Loughry posted, “I can’t take any credit here. Das did it all. I love to give.” Another example was Loughry’s response to a “school passion” posting by Cache member “Loman 16,” where Loughry wrote, “totally awesome, guys. Great work. Many, many thanks for these cuties.” There were other similar replies from Loughry thanking other members for their postings. Loughry also posted a message saying that he was interested in images of prepubescent girls. But none of the images Loughry was charged with distributing or advertising were posted by him.

      The government also introduced evidence that Loughry performed several administrative activities within the Cache. These included making “Dublhelix” a co-administrator, promoting and deleting members, and creating multiple new member accounts. One witness testified that Loughry discussed demoting one member for failing to maintain a sufficiently active level of participation in the Cache.

[The “Hard Core” Pornography]

During the testimony of its final witness, the government introduced several photographs and videos of child pornography discovered on Loughry’s home computer. Some of the images were similar to those displayed in the Cache. But others, including videos of girls being forced to engage in sexual acts with one another and of adult males raping prepubescent girls, were more inflammatory and were prohibited by Cache “rules.” The government did not charge Loughry with distributing, advertising, or possessing any of that pornography. Over Loughry’s objection, the court admitted the evidence from Loughry’s home computer.

[The Verdict and Sentence]

The jury eventually returned a guilty verdict on all sixteen counts, and Loughry was sentenced to concurrent prison terms of 360 months on each advertising-related count and 240 months on each distribution-related count.

[The Appeal]

Loughry now appeals the district court’s decision to admit the “hard core” pornography the government discovered on his home computer.

      The district court found that the pornography discovered in Loughry’s home computer was admissible under Federal Rule of Evidence 414. The government’s stated reason for introducing the pornography found in Loughry’s home computer was that it anticipated Loughry would argue that he was “only an administrator of an adult porn game board.” The government wanted to show that Loughry had a “long-standing persistent pattern of collecting [pornography]” and was not “operating by mistake or lack of knowledge” but “actually [had] the intent and motive” to join the conspiracy to distribute child pornography through the Cache. Loughry’s counsel objected on relevance and Rule 403 grounds because, he argued, the government was trying to convince the jury that Loughry “is a bad guy, and so, he has got to be guilty of this other stuff as well.” Loughry now argues that the district court committed several errors when it admitted the evidence, including not reviewing the “hard core” pornography found in Loughry’s home computer before admitting it, not articulating its reasoning under Rule 403, and ultimately striking the wrong balance in its Rule 403 ruling.

      Rule 414(a) provides that, “in a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant’s commission of another offense . . . of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.’” Fed.R.Evid. 414(a). The term “child molestation” encompasses prior or different conduct involving the distribution, advertising, or possession of child pornography. See Fed.R.Evid. 414(d).

      Rule 403 requires the exclusion of relevant evidence when its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . .” Fed.R.Evid. 403. “Unfair prejudice . . . means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Advisory Committee’s Notes on Fed.R.Evid. 403, cited approvingly in Old Chief v. United States, 519 U.S. 172, 184-85, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).

***

There should therefore be no question that although evidence cannot be excluded under Rule 403 simply because it tends to show that the defendant has a propensity to commit a sex offense, Rule 403 continues to rigorously apply to Rule 414 evidence. [Emphasis added.]

[Loughry’s Contention and the Court’s Response]

Loughry contends that it was error for the district court to fail to review the videos discovered in his home before admitting them into evidence. The court acknowledged that not having first-hand knowledge of the contents of the contested evidence was problematic. The court stated: “I guess I am at somewhat of a disadvantage not knowing exactly what items and depictions, if you will, are on Government’s [exhibits].” But instead of examining the photographs and videos for itself, the court relied on the government’s description of the contested evidence in making its decision under Rule 403.

      At least one circuit has held that a district court’s failure to review challenged evidence when considering whether such evidence should be excluded under Rule 403 is error as a matter of law. See United States v. Curtin, 489 F.3d 935, 958 (9th Cir.2007) (en banc) (“[W]e hold as a matter of law that a court does not properly exercise its balancing discretion under Rule 403 when it fails to place on the scales and personally examine and evaluate all that it must weigh [referring to stories of adults engaging in sexual acts with children found on the defendant’s computer]. Relying only on the descriptions of adversary counsel is insufficient to ensure that a defendant receives due process and fair trial to which he is entitled under our Constitution.”) [Emphasis in original.]

      Our cases also emphasize that a district court, in exercising its discretion under Rule 403, must carefully analyze and assess the prejudicial effect of challenged evidence. United States v. Williams, 216 F.3d 611, 614–15 (7th Cir. 2000)

***

There may be cases where the probative value of the evidence is so minimal that it will be obvious to the court that the potential prejudice to the defendant substantially outweighs any probative value the evidence might have.

***

The safest course, however, is for the court to review the contested evidence for itself. In this case, relying on the parties’ descriptions was insufficient. Few, if any, details were provided to the court when it was deciding whether to admit the evidence. The government’s only description of the various challenged exhibits was that some of them depicted pornography that was similar to that on the Cache and that others depicted “hard core” pornography. Based on that vague description, the court could not have properly weighed the prejudicial impact of the challenged evidence against whatever probative value the court believed the evidence had.

      Contrary to the government’s contention at oral argument, the slightly more detailed narrative description provided by the government’s witness before the videos were shown to the jury (and after the court had already decided to admit the evidence) did not suffice either. For example, the government’s witness stated that one of the videos depicted “[an] adult male performing a sex act on [a] female minor.” That explanation does not tell the court which acts are shown in the video. While all depictions of an adult engaging in sexual acts with a young child are bound to be repulsive, the impact on the jury will depend upon the nature and severity of the acts depicted.

      The challenged videos include the kind of highly rep­rehensible and offensive content that might lead a jury to convict because it thinks that the defendant is a bad person and deserves punishment, regardless of whether the defendant committed the charged crime. Given the inflammatory nature of the evidence, the district court needed to know what was in the photographs and videos in order for it to properly exercise its discretion under Rule 403. Without looking at the videos for itself, the court could not have fully assessed the potential prejudice to Loughry and weighed it against the evidence’s probative value. See Curtin, 489 F.3d at 958 (“One cannot evaluate in a Rule 403 context what one has not seen or read”). We therefore hold that, in light of the evidence in this case, the district court abused its discretion under Rule 403 when it failed to review the challenged videos before they were admitted in evidence.

The Rest of the Story

  • In his opinion, Judge Williams goes on to discuss the inadequacy of Judge Lawrence’s Rule 403 explanation;
  • That the probative value of the videos objected to were sub­stantially outweighed by the risk of unfair prejudice; and,
  • That the admission of “hard core” pornography was not harmless error.

My Thoughts

  • Loughry was a lucky defendant with a good lawyer. Why would the Government not include a possession count in the indictment when it had all the evidence it needed to sup­port a conviction? Why would a judge not view the evi­dence and conduct a balancing test before ruling on a Rule 403 objection?
  • The case is instructive on the tension between FRE 414 and 403. The lesson: Always make the Rule 403 objection.
TCDLA
TCDLA
F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a member of TCDLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TCDLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. This is his 250th – and last – column; however, he will continue to write for The Voice on an irregular basis. He practices in Tyler with the law firm of Bain, Files and Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a member of TCDLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TCDLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. This is his 250th – and last – column; however, he will continue to write for The Voice on an irregular basis. He practices in Tyler with the law firm of Bain, Files and Harrison, P.C., and can be reached at or (903) 595-3573.

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