United States v. Tanguay

982 F. Supp. 2d 119, 2013 DNH 147, 92 Fed. R. Serv. 1117, 2013 WL 6037327, 2013 U.S. Dist. LEXIS 162145
CourtDistrict Court, D. New Hampshire
DecidedNovember 7, 2013
DocketCriminal No. 11-cv-173-JL
StatusPublished
Cited by2 cases

This text of 982 F. Supp. 2d 119 (United States v. Tanguay) is published on Counsel Stack Legal Research, covering District Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Tanguay, 982 F. Supp. 2d 119, 2013 DNH 147, 92 Fed. R. Serv. 1117, 2013 WL 6037327, 2013 U.S. Dist. LEXIS 162145 (D.N.H. 2013).

Opinion

MEMORANDUM ORDER

JOSEPH N. LAPLANTE, District Judge.

A jury in this court recently found the defendant, Jonathan Tanguay, guilty of [120]*120one count of possessing child pornography. See 18 U.S.C. § 2252A(a)(5)(B). After receiving a report from a visitor to Tanguay’s home that Tanguay had displayed images of child pornography on his laptop computer, the New Hampshire State Police secured a warrant to search the home for those materials. This search allegedly turned up images of child pornography on the computer’s hard drive, as well as on an external hard drive and a compact disc also seized from Tanguay’s home. See United States v. Tanguay, 907 F.Supp.2d 165 (D.N.H.2012) (denying Tanguay’s motion to suppress the fruits of the search).

This court conducted two jury trials on the charge against Tanguay: one in October 2013, which ended in a conviction, and an earlier trial in March 2013, which ended in a mistrial. Prior to the first trial, Tanguay filed a motion in limine seeking to exclude various items of evidence. See L. Cr. R. 12.1(c). This court granted the motion in part and denied it in part in a written order. United States v. Tanguay, 2012 DNH 197, 895 F.Supp.2d 284 (the “Prior Order”). Before the second trial, Tanguay filed two more motions in limine, seeking to exclude various other items of evidence, much of which the prosecution had not sought to introduce in the first trial. This evidence consisted principally of other materials allegedly found on Tanguay’s computer, including (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, located in a folder called “On-Line Friends,” (3) pornographic photographs of an 18-year old male identified as “Jared” that Tanguay had shown to a witness who testified at trial, and (4) “bookmarks” to websites with names that suggest sexually explicit material featuring male children.1

Tanguay argued that, because his possession of these materials amounts to “other acts,” this evidence is inadmissible, Fed. R.Evid. 404(b)(1), and that, in any event, its probative value is substantially outweighed by the danger of unfair prejudice, Fed.R.Evid. 403. The prosecution, however, argued that this evidence was admissible to show, among other things, Tanguay’s knowledge that he possessed the child pornography allegedly found on his computer, Fed.R.Evid. 404(b)(2), and that its probative value on that point — which was a crucial issue at trial — outweighed any risk of unfair prejudice under Rule 403.2 The court heard oral argument on Tanguay’s motions prior to trial, then announced its rulings from the bench during a break in the proceedings before the jury, just after trial had commenced. This written order serves to explain those rulings in greater detail.

[121]*121Under Rule 404(b), “[ejvidence of a crime, wrong, or other act is not admissible to prove a person’s character to show that on a particular occasion the person acted in accordance with the character,” but “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” And Rule 403 allows the court to “exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice.”

Synthesizing these rules, the Court of Appeals has “adopted a two-part test to determine the admissibility” of evidence of the defendant’s other acts. United States v. Aguilar-Aranceta, 58 F.3d 796, 798 (1st Cir.1995).

First, the trial judge must determine whether the evidence in question is offered for any purpose other than solely to prove that the defendant had a propensity to commit the crime in question[,] [t]hat is, ... has some ‘special’ probative value. Prior bad acts may be ‘specially relevant’ if they are probative of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
If the judge is satisfied that the proffered evidence has ‘special relevance,’ the focus shifts to the second part of the test, which applies Rule 403 to determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.

Id. (footnote and further quotation marks omitted).

Applying this test, the court ruled at trial that Tanguay’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 on the external hard drive and the CD also seized from his home). Fed.R.Evid. 404(b)(2). The court also ruled that any risk of unfair prejudice from Tanguay’s possession of these other materials did not outweigh the evidence’s probative value. Fed.R.Evid. 403.

Rule 404(b)

To find a defendant guilty of possessing child pornography, the jury must find, among other things, that the defendant “knowingly possesse[d] ... material that contains an image of child pornography.” 18 U.S.C. § 2252A(a)(5)(B). In his opening statement, counsel for Tanguay focused on this element of the alleged offense, proclaiming that his client 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 that the government will put here before you.” Counsel for Tanguay also stated that “[t]he evidence in this case may not tell you everything about how child pornography ended up on some storage device or some hard drive, but it’s not going to tell you that Jon Tanguay did this because he didn’t do it.” As these comments suggest, a key issue in the case was whether Tanguay knowingly possessed the images of child pornography found on the computer, external hard drive, and CD (as opposed to, for example, whether the images constituted child pornography, or whether they, or the devices that held them, had traveled in interstate or foreign commerce).

Rule 404(b), of course, expressly provides that evidence of a defendant’s other acts may be admissible to prove knowledge, and the Court of Appeals has upheld the use of the rule to admit such evidence “[i]n prosecutions for ‘possession’ offenses.” Aguilar-Aranceta, 58 F.3d at 798 (footnote omitted). In such cases, the court has recognized,

[122]*122the central issue is often whether the defendant was in knowing possession. The knowledge element is difficult to prove, and defendants commonly claim that they were merely ...

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Bluebook (online)
982 F. Supp. 2d 119, 2013 DNH 147, 92 Fed. R. Serv. 1117, 2013 WL 6037327, 2013 U.S. Dist. LEXIS 162145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tanguay-nhd-2013.