United States v. Tanguay, WL 6037327 (D.N.H.) November 2013

* This is a district court Judge’s ruling on a motion, which has not yet withstood appellate scrutiny.  However the issue presented is important to capture emerging trends in the field.

Tanguay’s first trial for one count of possession of child pornography ended in a mistrial.   Prior to the second trial, defense moved in limine to exclude certain “other acts” evidence.  The following was found on his computer and was the subject of his motion: 1) stories graphically describing sexual encounters between male adults and male children; 2) sexually suggestive, but not necessarily pornographic photographs of either male children or young-looking male adults; 3) pornographic photographs of an 18 year old male identified as Jared; and 4) bookmarks to websites with names that suggest sexually explicit material featuring male children.

Defendant’s argument was that this evidence was inadmissible under F.R.E. 404(b) and failed the F.R.E. 403 balancing test regardless.   The Judge noted a two-part test to determine admissibility of other acts evidence: 1) whether the evidence in question is offered for any purpose other than solely to prove propensity; and 2) does it survive a 403 balancing test?

The Judge held that defendant’s possession of the additional materials found on his computer is relevant to his knowledge that he possessed the images of child pornography found on that computer (as well as the external hard drive and CD seized from his house).  Because these written findings were done after the trial and ultimate conviction of defendant, the Judge benefited from the trial strategy employed by the defense.  Namely, in its opening statement the defense argued that Tanguay was “innocent…He didn’t put child pornography on any computer…and he didn’t know there was child pornography on any computer or gadget or device…” While the defense may claim on appeal that their trial strategy changed based on the Judge’s ruling on this motion, it will be difficult since they outright claimed innocence.  This defense theory created a key issue of “knowledge” in regards to the possession of the child pornography.  As such the aforementioned evidence sheds significant light on this defense theory.  “Here, the evidence showed that Tanguay was in possession of both the child pornography and the other, similar materials at the same time, and for that matter, on digital storage devices that were all found in the same place.”

The Judge also relied on a number of other courts which have upheld admission of evidence that a defendant facing charges of possessing child pornography also possessed pornographic stories about children, reasoning that it shows the defendant’s knowledge that the images he possessed contained pornography featuring children.

Practitioner Note:  This was a defense motion in limine to preclude admissibility of evidence.  The use of aggressive pretrial motions practice by prosecutors can bear a lot of fruit on these types of issues, as opposed to either relying on the defense to file a motion or worse attempting to bring in information which leads to a mistrial.  There is a lot of case law support for other acts evidence in child pornography cases.  The best arguments seem to be that it is the Government’s burden to prove the “knowing” element; and the fact that the defendant possessed (insert other acts evidence found) supports that element.  If on the other hand this information is initially excluded, wait and see what the defense theory is during trial and then ask the court to reconsider based on the open door theory.

Motion Denied.

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