United States v. Loughry

738 F.3d 166, 93 Fed. R. Serv. 181, 2013 WL 6668015, 2013 U.S. App. LEXIS 25166
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 18, 2013
DocketNo. 13-1385
StatusPublished
Cited by4 cases

This text of 738 F.3d 166 (United States v. Loughry) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Loughry, 738 F.3d 166, 93 Fed. R. Serv. 181, 2013 WL 6668015, 2013 U.S. App. LEXIS 25166 (7th Cir. 2013).

Opinion

WILLIAMS, Circuit Judge.

This is Roger Loughry’s second visit to the Seventh Circuit. In his first appeal, we reversed his convictions for various child pornography offenses because the district court erred in admitting certain “hard core” child pornography videos found on Loughry’s computer. United States v. Loughry (“Loughry I ”), 660 F.3d 965, 973-75 (7th Cir.2011). Following our decision, the government re-tried Loughry without introducing the unduly prejudicial videos at issue in Loughry I. At the conclusion of his second trial, Loughry was again convictéd of sixteen child pornography offenses. ' -

Loughry contends that his most recent convictions should be reversed because the district court sent to the jury room a binder containing properly admitted evidence of child pornography collected from his residence. According to Loughry, the evidence recovered from his home was simply too prejudicial for jurors to examine dur[168]*168ing their deliberations. While there maybe some special circumstances in which a district court would abuse its discretion by failing to exclude properly admitted evidence from the jury room on this basis, Loughry’s case does not fit the bill. The challenged exhibit was not unfairly prejudicial because the images and videos from Loughry’s personal collection were highly probative of his identity as the internet user “Mayorroger” who advertised and distributed child pornography on a site called “the Cache.” The similarities between Loughry’s own child pornography and that found on the Cache made Lough-ry’s personal collection highly probative and justified the court’s decision to allow jurors to inspect it during deliberations. We affirm.

I. BACKGROUND

In 2007, United States Postal Inspection Service (“USPIS”) inspectors discovered that an internet bulletin board site called “the Cache” was providing users with access to images and videos depicting child pornography. After obtaining a search warrant, 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. US-PIS’s investigation revealed that one co-administrator, a user named “Mayorro-ger,” 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 Mayor-roger.” 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. Lough-ry’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 “Mayorro-ger.” Agents also discovered bookmarks on the computer that provided quick access to specific pages on the Cache including its administrator control panel.

Loughry was ultimately indicted on twelve charges of advertising child pornography, two counts of distribution of child pornography, one count of conspiracy to advertise child pornography, and one count of conspiracy to distribute child pornography. After a jury trial, Loughry was convicted on all sixteen counts. On appeal, we reversed his convictions because the district court erred in admitting certain videos found on Loughry’s computer which depicted “hard core” child pornography. See Loughry I, 660 F.3d at 978-75. We reasoned that the probative value of the [169]*169hard core child pornography found on the videos was slight “because it was unlike the pornography that was displayed in the Cache.” Id. at 973. In light of “the highly inflammatory content of the ‘hard core’ pornography in comparison to its slight probative value,” we concluded that the district court abused its discretion in concluding that the videos were admissible under Federal Rule of Evidence 403. Id. at 974.

For Loughry’s second trial, the government did not attempt to introduce the hard core child pornography videos into evidence. Instead, the government only sought to present other types of images and videos from Loughry’s residence that were similar to the images he was charged with advertising and distributing through the Cache. At trial, the district court ruled that the images were admissible under Federal Rules of Evidence 404(b) and 414. After noting that it had reviewed all of the images, the court concluded that they were “very similar to the images' ... that w[ere] distributed by the co-eonspira-tors, including the defendant, in conjunction with The Cache bulletin board.” With respect to its Rule 404(b) ruling, the court reasoned that the evidence was probative of “the identity of defendant [as] Mayorro-ger,” 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.

At the conclusion of the trial, the district court sent all admitted evidence, including the child pornography .from Loughry’s home, into the jury room during deliberations. Loughry objected to placing the evidence in the jury room “because of the inflammatory nature of the evidence .-.. [I]t’s subject to misuse and abuse by sending it back to the jury room.” The district court overruled the objection:

Okay. I hear your objection, but that’s the nature of the case. It’s the res gestae. It is the evidence of the offense, and the jury has to review it; it has to be able to review it. They’ll have to decide how much they can take, I guess, personally, but they have to have access to it.

Following the court’s ruling, the court provided jurors with an exhibit binder of child pornography images collected from Lough-ry’s residence for use during deliberations. The images (as well as still shots from some of the videos) were assembled in a red binder in order to distinguish them from the white binders containing images found on the Cache.

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Cite This Page — Counsel Stack

Bluebook (online)
738 F.3d 166, 93 Fed. R. Serv. 181, 2013 WL 6668015, 2013 U.S. App. LEXIS 25166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-loughry-ca7-2013.