United States v. Loughry, 2013 WL 6668015 (C.A.7 (Ind.)), December 2013

I like this case because of the novelty of the issue raised.  That is to say, at what point does properly admitted evidence become unfairly prejudicial if it goes back with the jury during deliberations?

Appellant was previously convicted on sixteen counts of various child pornography offenses related to his involvement in an online bulletin board site (called The Cache), which distributed child pornography; as well as his personal collection of images and videos.  In his first trial the Government admitted into evidence certain images which were considered “hard core” from Appellant’s home computer.  The appellate court found that the district court erred in admitting them under F.R.E. 403 because the images from Appellant’s home computer were substantially more “hard core” than the images related to the bulletin board site (which they were ostensibly admitted to prove the relationship between). 

Facts: “The U.S. Postal Inspection Service USPIS inspectors seized the Cache’s contents and began looking into the activities and identities of the site’s administrators.  Investigators learned that a user named “Das”—later determined to be Delwyn Savigar—was one of the Cache’s two head administrators. Below Savigar on the Cache’s organizational chart were three co-administrators. USPIS’s investigation revealed that one co- administrator, a user named “Mayorroger,” was Loughry. As a co-administrator, Loughry managed content, added members, and deleted other Cache members who may have been compromised by law enforcement.”

“The Cache was organized as a collection of topic areas. One such area, the “LS and BD Galleries,” contained child pornography images downloaded from a pair of (now defunct) commercial child pornography websites, Lolita Studios (“LS”) and Branded Dolls (“BD”). In May 2006, the head administrator of the Cache, “Das,” or Savigar, posted a series of child pornography images entitled “Little Virgins” in the “LS and BD Galleries” area. In a caption accompanying his post, Savigar wrote, “Now open with a huge thanks to Mayorroger.” Months later, “Mayorroger,” or Loughry, replied to Savigar’s initial post, “I can’t take any credit here. Das did it all. I love to give.”  In late 2008, federal law enforcement agents executed a search warrant of Loughry’s residence and seized his computer and various compact discs. Loughry’s hard drive and compact discs contained images and videos similar to those found on the Cache. For example, one video on Loughry’s hard drive was from Lolita Studios, the same defunct child pornography site whose images populated the “LS and BD Galleries” area of the Cache. Moreover, the computer’s hard drive was registered to Loughry and contained a user account under the name “Mayorroger.” Agents also discovered bookmarks on the computer that provided quick access to specific pages on the Cache including its administrator control panel.”

After the reversal, the Government did not admit the “hard core” photos during the second trial.  Rather they admitted similar (in nature) photos from Appellant’s home collection to prove that Appellant was Mayorroger.   The District Court reasoned that “the evidence was probative of ‘the identity of defendant [as] Mayorroger,’ the user who advertised and distributed child pornography on the Cache. Moreover, the court concluded that Rule 403 did not require the exclusion of the evidence from Loughry’s residence. Given the similarity between Loughry’s personal collection and the images commonly distributed on the Cache, the court ruled that the materials from Loughry’s home had a great deal of probative value that outweighed any danger of unfair prejudice.”

The Government had various binders of child pornography evidence.  It distinguished The Cache evidence from Appellant’s home computer evidence by putting the home evidence in a red-binder (vice the white-binder for the other).   Appellant objected at trial to sending the red-binder of evidence back with the jury for fear they would misuse the evidence or that it was too prejudicial.   That objection was overruled.

Law: Here now on appeal, Appellant does not contend that the red-binder of evidence was improperly admitted at trial.  Rather he argues that it should not have gone back with the jury during deliberation.  “Generally, it is within the trial court’s discretion to determine which exhibits are provided to the jury during deliberations; we review this decision only for a clear abuse of discretion.” Deicher v. City of Evansville, 545 F.3d 537, 542 (7th Cir.2008).  We recognize that jurors are generally entitled to examine exhibits that are properly admitted into evidence. United States v. Carrillo–Figueroa, 34 F.3d 33, 39 n. 5 (1st Cir.1994).  “In certain situations, the district court may exercise its discretionary authority over the jury room to exclude even properly admitted exhibits. Exclusion may be justified for a number of reasons. For example, judges can prevent deliberating jurors from viewing ‘exhibits that neither party has relied on, that have no relevance to any of the issues central to the case, or that are cumulative, prejudicial, confusing, or misleading.’Deicher , 545 F.3d at 542; see, e.g., United States v. Gross, 451 F.2d 1355, 1358–59 (7th Cir.1971).”  When deciding whether an admitted exhibit should go to the jury room, the court may weigh its probative value “against possible prejudice that may result if the exhibits are sent to the jury.” United States v. Parker, 491 F.2d at 521; see generally United States v. Petty, 132 F.3d 373, 379 (7th Cir.1997) (noting that decision to send prosecution “evidence into the jury room can reinforce its harmful effect on the defendant’s case.”).

Holding: “That evidence may be highly prejudicial does not compel its exclusion; the evidence must be unfairly prejudicial.” United States v. Chambers, 642 F.3d 588, 595 (7th Cir.2011). To determine whether an exhibit is unfairly prejudicial, we use “a sliding scale approach: as the probative value increases, so does our tolerance of the risk of prejudice.” United States v. Earls, 704 F.3d 466, 471 (7th Cir.2012). The evidence recovered from Loughry’s home possessed a great deal of probative value. Loughry’s home computer contained images and videos that had many of the same properties as those found on the Cache. This similarity was strong evidence of Loughry’s identity as The Cache user “Mayorroger” who advertised and distributed child pornography on the site.


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