USA v. Jonathan Tanguay CR-11-173-JL 12/7/12 P
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. ll-cv-173-JL Opinion No. 2012 DNH 197 Jonathan Tanguay
MEMORANDUM ORDER
Defendant Jonathan Tanguay has filed motions in limine, see
L. Cr. R. 12.1(c), seeking rulings on the admissibility of
evidence at his upcoming trial on one 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, Joshua Wiggin, that
Tanguay had displayed images of child pornography on his
computer, the New Hampshire State Police secured a warrant to
search the home for those materials. This search allegedly
turned up child pornography on the computer. See United States
v. Tanguay, ___ F. Supp. 2d ____ , 2012 DNH 187 (denying Tanguay's
motion to suppress the evidence allegedly seized in the search).
Tanguay has filed three separate motions in limine dealing
with various items of anticipated evidence at trial. First,
Tanguay seeks to preclude, as untimely disclosed expert
testimony, anticipated testimony by a prosecution witness about
"digital photography and video and the process by which a virtual
image or video might be made." Second, Tanguay also seeks to preclude, as irrelevant or overly prejudicial, evidence of (a)
his sexual orientation, (b) other sexually suggestive materials
allegedly found in his possession, and (c) the fact that the
police seized the alleged child pornography pursuant to a search
warrant. Third, Tanguay seeks to preclude testimony by the
prosecution's designated forensic expert about findings made by a
different forensic examiner, arguing that such testimony is
inadmissible hearsay and would violate the Confrontation Clause.
Fourth, Tanguay seeks to prevent the prosecution from referring
to the fact that his counsel has had access to the forensic
evidence in the case, arguing that this would improperly suggest
that Tanguay should have come forward with his own expert
analysis of that evidence. Fifth, and finally, Tanguay seeks to
admit a statement that an Assistant United States Attorney
formerly assigned to this case made about a potential witness.
After the prosecution filed its objections to Tanguay's
motions, the court heard oral argument on them following the
final pretrial conference in this matter. The court now makes
the following rulings on the motions in limine. These rulings,
of course, are subject to reconsideration in light of
developments at trial.
2 1. Testimony about creating virtual images
a. The rule
"The prosecution must prove beyond a reasonable doubt that
the image is of an actual child in order to establish guilt" on a
federal child pornography charge. United States v. Rodriguez-
Pacheco, 475 F.3d 434, 439 (1st Cir. 2007) ^ In January 2012,
the prosecution provided defense counsel with a report by one
John Madama, expressing his opinions that certain pornographic
materials allegedly found in Tanguay's possession depicted real
children, and setting forth the methodology he used to reach
those opinions. But, as the prosecution acknowledges, it did not
provide defense counsel with a copy of Madama's curriculum vitae,
or anything else describing his gualifications, until November
20, 2012, which is less than 30 days before the upcoming trial
(in which the jury was selected on December 5, 2012, and evidence
is scheduled to commence on December 12, 2012) .
Under Rule 16(a)(1)(G) of the Federal Rules of Criminal
Procedure, "[a]t the defendant's reguest, the government must
give to the defendant a written summary of any testimony that the
1This is so because the Supreme Court has held that the former version of the statute under which Tanguay is charged was unconstitutionally overbroad insofar as it prohibited "virtual child pornography," i.e., pornography created without using actual children in the production process. Ashcroft v. Free Speech Coal., 535 U.S. 234, 250-57 (2002) (invalidating former version of 18 U.S.C. § 2256(8) (B)).
3 prosecution intends to use under Rules 702, 703, or 705 of the
Federal Rules of Evidence during its case-in-chief at trial."
This summary "must describe the witness's opinions, the bases and
reasons for those opinions, and the witness's qualifications."
Id. This court's Local Rules require this disclosure to occur
either within 14 days of the arraignment or, if the expert
witness is not at that point known to the prosecution, no later
than 30 days prior to trial. L. Cr. R. 16.1(b)(3).
Tanguay argues that the prosecution missed this deadline by
not giving his counsel a copy of Madama's curriculum vitae until
15 days before jury selection and that, as a result, the
prosecution should be prohibited from introducing Madama's
testimony at trial. The prosecution maintains that, because
Madama's proffered testimony does not amount to expert testimony
under Rule 702 of the Federal Rules of Evidence, it had no duty
to make any Rule 16(a)(1)(G) disclosures as to Madama's
testimony. The court disagrees.
Under Rule 702 of the Federal Rules of Evidence, "[a]
witness who is qualified as an expert by knowledge, skill,
experience, training or education may testify in the form of an
opinion or otherwise," provided, among other things, that the
expert's "specialized knowledge will help the trier of fact to
4 understand the evidence or to determine a fact at issue." The
prosecution explains that Madama
has experience in the area of digital photography. He will provide background information on digital photography and video and the process by which a virtual image or video might be made, including describing the complexity and cost of such an endeavor. He will also describe certain features in the images and video (including skin appearance, hair appearance, light and shadow placement and the depiction of expressive features) that the jury should consider in reaching its conclusion on whether a particular image or video depicts a real child.
This description of Madama's anticipated testimony makes it
abundantly clear that his testimony will impart his "specialized
knowledge" of digital photography and video and is therefore
testimony by an expert witness under Rule 702.
The prosecution nevertheless argues that Madama will offer
not expert testimony under Rule 7 02, but "lay testimony" under
Rule 701, arguing that the comment to Rule 701 "makes clear that
lay testimony is permissible when the opinion is based on a
layperson's personal knowledge gained through experience." But,
in limiting permissible lay opinions to those "not based on
scientific, technical, or other specialized knowledge within the
scope of Rule 702," Fed. R. Evid. Rule 701(c), Rule 701 in fact
"makes clear that any part of witness's testimony that is based
upon scientific, technical, or other specialized knowledge within
the scope of Rule 702 is governed by the standards of Rule 702
5 and the corresponding disclosure requirements of the Civil and
Criminal Rules," i d . advisory committee's note (2000).
The dividing line between lay opinion testimony under Rule
701 and expert opinion testimony under Rule 702, then, is marked
by whether the opinion is based on the witness's specialized
knowledge--rather than, as the prosecution suggests, whether the
witness came by the knowledge "through experience" as opposed to
training, education, or the other ways that a witness can qualify
to give expert testimony. Indeed, the advisory committee's note
explains that "the distinction between lay and expert witness
testimony is that lay testimony results from a process of
reasoning familiar in everyday life, while expert testimony
results from a process of reasoning which can be mastered only by
experts in the field." I d . (quotation marks omitted). The
process of creating virtual images, and discerning whether that
process has been employed in creating a particular image, is not
"familiar in everyday life" like the subjects of permissible lay
testimony recognized in the advisory commitee's note. See i d .
This includes whether a particular substance appears to be a
narcotic based on the witness's familiarity with that narcotic,
see i d ., to which the prosecution attempts to analogize Madama's
proffered testimony. The "process of reasoning" employed in
concluding that a substance is cocaine because it looks and
6 tastes like the cocaine the witness has used in the past, see
United States v. Paiva, 892 F.2d 148, 157 (1st Cir. 1989), is
familiar to laypeople and, indeed, self-evident. It is like the
reasoning employed in concluding, for example, that a firearm has
traveled in interstate commerce because it was found in Puerto
Rico but manufactured in Massachusetts. United States v. Colon
Osorio, 360 F.3d 48, 52-53 (1st Cir. 2004) (ruling that this was
permissible lay opinion testimony under the "familiar process of
reasoning" test). In contrast, the "process of reasoning"
employed in explaining why an image depicts an actual child
rather than a virtual one is unfamiliar to laypeople and reguires
precisely the kind of explanation the prosecution wants Madama to
offer the jury--presumably because, again, that process is
unfamiliar to laypeople. Madama's proffered testimony is expert
testimony under Rule 702.
b. The remedy
The prosecution argues that the court should nevertheless
allow Madama's testimony because the prosecution timely disclosed
all of the information as to that testimony reguired by Fed. R.
Crim. P. 16(a)(1)(G) aside from his curriculum vitae, and even
that was disclosed just 15 days late. If a party fails to comply
with Rule 16, the court may (A) order it to permit the withheld
discovery or inspection, (B) grant a continuance, (C) prohibit it
7 from introducing the undisclosed evidence, or (D) enter any order
that is just under the circumstances. Fed. R. Crim. P. 16(d)(2).
This court thus "has broad discretion in handling non-compliance"
with criminal discovery obligations, with the remedy to "vary in
proportion to the seriousness of the violation and the amount of
prejudice claimed by the defendant." United States v . Osorio,
929 F .2d 753, 762 (1st Cir. 1991).2
Here, the violation was not at all serious: defense counsel
timely received all of the discovery reguired by Rule
16(a)(1)(G)--including Madama's opinions and the bases and
reasons for them--except for his curriculum vitae, which was
supplied just 15 days late. Courts have generally deemed
preclusion of expert testimony too harsh a sanction for such
2In arguing that the court should not preclude Madama's testimony even if it was not properly disclosed under Rule 16, the prosecution relies exclusively on Esposito v. Home Depot U.S.A., 590 F.3d 72 (1st Cir. 2009), a case considering whether precluding late-disclosed expert testimony was an appropriate sanction under Rule 37(c)(1) of the Federal Rules of Civil Procedure. But the body of law that has developed under Rule 37(c)(1) of the civil rules differs markedly from the body of law that has developed under Rule 16(d) (2) of the criminal rules: because Rule 37(c)(1) specifically provides that a party "is not allowed to use" information that has not been properly disclosed "unless the failure was substantially justified or is harmless," in civil cases, "the baseline rule is that the reguired sanction . . . is mandatory preclusion" of late-disclosed information. Harriman v. Hancock County, 627 F.3d 22, 29 (1st Cir. 2010) (guotation marks and bracketing omitted). Rather than relying on Esposito, then, this court relies on circuit cases specifically applying Rule 16 of the criminal rules in deciding whether preclusion is the appropriate remedy here. minor violations of the prosecution's expert disclosure
obligations. See, e.g.. United States v. Camacho, 555 F.3d 695,
704 (8th Cir. 2009) (prosecution provided "a proposed stipulation
as to the expert's testimony and copies of lab results" but
failed to timely notify defense counsel it intended to present
that testimony at trial); United States v. Charley, 189 F.3d
1251, 1262 (10th Cir. 1999) (prosecution failed to provide
summaries of experts' testimony, but provided "all medical and
counseling records from which [they] would be testifying").
Furthermore, the court of appeals has instructed that, when
"exercising its discretion to control discovery rule violations"
in criminal cases, "the district court must inguire into the
surrounding circumstances to determine whether the violating
party has acted in bad faith." United States v. Tajeddini, 996
F.2d 1278, 1287 (1st Cir. 1993). It is exceedingly difficult, if
not impossible, to draw an inference of bad faith here, where the
prosecution provided defense counsel with a report from Madama
nearly a year ago. Tanguay emphasizes the fact that the
prosecution did not tell defense counsel that it might seek to
present Madama's conclusions as expert opinion testimony under
Rule 702, and instead took the position that they were lay
opinion testimony under Rule 701, but that is not persuasive
evidence of bad faith either. While, as just discussed, the court disagrees with the prosecution's view, it is not patently
incorrect by any means. Moreover, the court can discern no
unfair tactical advantage the prosecution could have hoped to
gain by taking this position, since it provided defense counsel
with a report of Madama's analysis nearly a year ago.
Indeed, Tanguay does not articulate any prejudice he
suffered from the violation of Rule 16(a)(1)(G), aside from a
single statement in his reply brief that he "cannot overcome the
adverse effects of the late disclosure" because "if Madama is
going to testify as an expert the defendant would seek a Daubert
hearing and would need to hire his own 'digital imaging
specialist' to review Madama's methods." But Tanguay does not
explain why defense counsel could not have taken these steps
based on the disclosure of the substance of Madama's anticipated
testimony they received in January 2012, which put them on notice
that, at a minimum, a digital imaging specialist working for the
prosecution concluded that the pornographic material allegedly
found on Tanguay's computer included real images of children.
More importantly, Tanguay has known that the prosecution
intended to call Madama as a witness since at least November 20,
2012 (when the prosecution wrote to defense counsel announcing as
much), yet has not asked the court to hold a Daubert hearing on
Madama's testimony nor to continue the trial so that the defense
10 may explore retaining its own digital imaging expert.3 The court
of appeals has held that, in general, a defendant who does not
reguest a continuance in response to the prosecution's belated
compliance with its discovery obligations cannot claim prejudice
from the late disclosure, since the lack of such a reguest
justifies the assumption "that counsel did not need more time to
incorporate the information into the defense's game plan."
United States v. Beras, 183 F.3d 22, 27 (1st Cir. 1999)
(guotation marks omitted).
The court of appeals has also warned against remedying Rule
16 violations by precluding evidence where that sanction "is
grossly disproportionate both to the prosecutor's nonfeasance and
any prejudice to the defense." United States v. Candelaria-
Silva, 162 F.3d 698, 703 (1st Cir. 1998) (guotation marks
omitted). Thus, without any persuasive indication of
prosecutorial bad faith or prejudice to Tanguay, this court
cannot sanction the prosecution for its belated disclosure of
Madama's curriculum vitae by suppressing his testimony. If
Tanguay wants any other relief under Rule 16(a) (1) (G), he shall
furthermore, without prejudging the merits of any Daubert challenge to Madama's anticipated testimony, the court notes that as reflected in materials submitted by Tanguay himself, Madama has testified as an expert witness (and presumably been found gualified to do so) in two dozen criminal cases.
11 promptly notify the court by filing an appropriate motion. His
motion to preclude Madama's testimony, however, is denied.
2. Irrelevant or overly prejudicial evidence
a. Tanguay's sexual orientation
Tanguay argues that any evidence of his homosexuality is
irrelevant, see Fed. R. Evid. 401, 402, or, in the alternative,
that any probative value it has is outweighed by its prejudicial
effect, see Fed. R. Evid. 403. In response, the prosecution
maintains that Tanguay's sexual orientation tends to make it more
likely that he knowingly possessed the child pornography
allegedly seized from his computer, which "all depict male on
male sexual conduct." The prosecution also argues that, since it
intends to call two of Tanguay's former live-in romantic
partners--both male--as witnesses, his "homosexuality will be
disclosed, at least by inference." This seeming inevitably makes
it unnecessary for the court to consider, at least at the moment,
the prosecution's argument that Tanguay's homosexuality makes it
more likely that he knowingly possessed child pornography
depicting homosexual conduct and, if so, Tanguay's argument that
his homosexuality is "extremely prejudicial" so that it should be
excluded in any event.
Of course, Tanguay's former live-in partners can be
instructed not to mention the sexual or romantic aspects of their
12 relationships with him during their direct testimony. At oral
argument on the motions in limine, however, defense counsel did
not dispute the prosecution's suggestion that Tanguay would very
likely use his cross-examination of those witnesses to show that
they were now biased against him because their romantic
relationships with him have ended. Nevertheless, in an abundance
of caution, and without definitively resolving Tanguay's Rule 403
objection, the court will rule at the moment that the prosecution
shall not mention Tanguay's homosexuality, and shall instruct its
witnesses not to do so either. If defense counsel guestions
Tanguay's former live-in partners about their romantic or sexual
relationships with Tanguay, he will have opened the door to
evidence of his homosexuality; in the unlikely event defense
counsel chooses not to pursue this line of cross-examination, and
the prosecution still wishes to present such evidence, it shall
notify the court and defense counsel outside the presence of the
jury, and the court will then rule on the admissibility of
Tanguay's sexuality, as well as whether to issue an appropriate
limiting instruction, see Fed. R. Evid. 106. For the moment,
then, Tanguay's motion to exclude that evidence is granted
subject to developments at trial.
13 b. Other sexually suggestive materials
Tanguay seeks to preclude, as irrelevant and unfairly
prejudicial, evidence of any sexually suggestive or pornographic
materials found on his computer, aside from the alleged child
pornography. According to the prosecution, these materials
include "numerous images of and videos of sex between young
looking males," as well as "bookmarks for sexually explicit
websites" with domain names suggesting that they contain similar
material (e.g., "Teen Boy Paradise," "Cute Gay Boys Place"). The
prosecution argues that, while these materials do not constitute
child pornography, their presence on Tanguay's computer tends to
show that he knowingly possessed the child pornography allegedly
found there, negating any possibility, for example, that it was
placed there by someone else without Tanguay's knowledge.
Courts have recognized that a defendant's possession of
pornography featuring subjects who appear young--even if they are
in fact adults--is relevant to show that he knowingly possessed
other pornography featuring subjects who are in fact children.
See United States v. Goff, 155 Fed. Appx. 773, 776 (5th Cir.
2005); United States v. Layne, 43 F.3d 127, 134 (5th Cir. 1995).
Tanguay himself cites a similar case. United States v. Harvey,
991 F.2d 981, 995 (2d Cir. 1993), ruling that a district court
properly admitted what it called "simulated child pornography,"
14 i.e., pornography with subjects "over the age of 18 dressed to
look younger than they really are," as rebutting a defendant's
entrapment defense to a charge of receiving child pornography.4
Relatedly, courts have recognized, as the prosecution argues,
that evidence that a defendant viewed or downloaded adult
pornography on his computer is admissible to negate the
suggestion that the defendant "was ignorant about the child
pornography" found there. United States v. Hatfield, 358 Fed.
Appx. 692, 695 (7th Cir. 2009); see also United States v. Durbin,
ACM 36969, 2008 WL 5192441, at *4-*5 (A.F . C t . Crim. A p p . Dec.
10, 2008); Arizona v. Coghill, 169 P.3d 942, 946-47 (Ariz. C t .
App. 2007). So evidence that Tanguay's computer contained
pornography with young-looking, if in fact adult, subjects, and
bookmarks for websites with names suggesting that they offered
such material, is relevant. See United States v. Sanchez, 59
M.J. 566, 570 (A.F . C t . Crim. App. 2003) (relying on defendant's
4Harvey also ruled that district court had erred in admitting evidence that the defendant possessed materials aside from "those that involved child pornography and simulated child pornography," including videotapes of "people performing gross acts involving human waste, and people engaging in bestiality and sadomasochism." 991 F.2d at 995-96. The circuit court ruled that these materials were irrelevant to whether the defendant had knowingly possessed child pornography, or was entrapped to do so. I d . This aspect of Harvey is inapposite here, where the material the prosecution seeks to introduce (so far as the court understands it at present) is not of this particularly inflammatory nature.
15 subscriptions "to numerous e-groups described as nude teen sites"
in rejecting his claim of insufficient evidence that he knowingly
possessed child pornography found on his computer ) , rev'd in part
on other grounds, 60 M.J. 329 (C.F.A.A. 2004).
This is not to say, however, that the prosecution can
introduce all, or particular items, of the adult pornography
itself. Courts have recognized that, under Rule 403, the
prejudicial effect of the adult pornography found on a
defendant's computer can outweigh its probative value as to his
knowledge of the child pornography there. See, e.g.. United
States v. Caldwell, 586 F.3d 338, 346 (5th Cir. 2009). That Rule
403 analysis, however, depends on the specific nature of each of
the pornographic images allegedly found on Tanguay's computer, as
well as, potentially, where on the computer it was stored and
when and how it was put there. See i d . The court does not have
any of that information at present.
Accordingly, the prosecution shall not seek to introduce any
of the adult pornography allegedly found on Tanguay's computer
without first, outside the presence of the jury, making a
detailed proffer as to the nature of the material and how and
where it ended up there. The prosecution may, however, introduce
evidence that Tanguay's web browser contained the bookmarks
listed in its objection to his motion in limine. Again, the
16 presence of those bookmarks is probative as to Tanguay's
knowledge of the contents of his computer, and there is little
danger of unfair prejudice from the names of the bookmarked
websites (as opposed to the contents of those websites, which the
prosecution shall not try to introduce without first making the
proffer just described).
c. Issuance of the search warrant
Tanguay also seeks to preclude, again as irrelevant or
unfairly prejudicial, "any facts relating to the issuance or the
existence of the warrant" to search his home for child
pornography--the very search that allegedly turned up the child
pornography that Tanguay is charged with possessing. The
prosecution responds that, while it will not seek to introduce
any of the facts leading to the issuance of the warrant, it
should be allowed "to elicit that the police were at the
defendant's residence pursuant to a warrant."
As the prosecution points out, "'officers should not be put
in the misleading position of appearing to have happened upon the
scene and therefore should be entitled to provide some
explanation for their presence and conduct'" during their trial
testimony, so long as they do not "'relate historical aspects of
the case, such as complaints and reports of others containing
inadmissible hearsay.'" United States v. Maher, 454 F.3d 13, 20
17 (1st Cir. 2006) (quoting 2 Kenneth S. Broun, et a l ., McCormick on
Evidence § 249, at 103 (5th ed. 1999)). The prosecution's
intended approach here--to introduce the fact that the police
entered Tanguay's home pursuant to a search warrant, without
introducing any of the facts that led to the issuance of the
warrant--is perfectly consistent with this hornbook law. While
Tanguay says that admitting the mere fact of the warrant's
issuance creates the risk "that the jury could decide the
elements of the offense based on something other than the
evidence introduced at trial," such as "the knowledge and
prestige" of the issuing judge or "speculation" as to the reasons
the warrant issued, Tanguay provides no authority recognizing
that risk as a basis for excluding the fact that a search warrant
issued from a subsequent trial.5 To the extent Tanguay is
worried about any such risk, it can be mitigated through an
appropriate limiting instruction. See Fed. R. Evid. 105. The
prosecution shall be permitted to introduce the fact that police
5Instead, Tanguay cites cases ruling that it was error to admit hearsay statements related by an officer in explaining why he took certain steps during an investigation. United States v. Lamberty, 778 F.2d 59, 61 (1st Cir. 1985) (agent's testimony that he had received information that defendant was stealing from the mails); United States v. Brown, 767 F.2d 1078, 1084 (4th Cir. 1985) (agent's testimony as to numerous hearsay statements he received during his investigation that inculpated defendant). The prosecution does not seek to elicit such testimony here, so these cases are inapposite.
18 entered Tanguay's home and seized materials from it pursuant to a
search warrant.
3. Testifying expert's reference to non-testifying expert's findings
Tanguay seeks to exclude any testimony by the prosecution's
designated forensic computer examiner, Mark Dumas, about findings
made by the forensic computer examiner initially assigned to the
case, Mitchell Gove. Tanguay argues that such testimony would
amount to inadmissible hearsay, see Fed. R. Evid. 802, and would
also violate the Confrontation Clause, because the prosecution
does not intend to call Gove as a witness at trial. In response,
the prosecution points out that it has offered not to introduce
any evidence about Gove's findings so long as Tanguay stipulates
"that the Gove examination did not contaminate any of the
evidence that was reviewed by [] Dumas." At oral argument, the
prosecution elaborated that, if Tanguay does not agree to such a
stipulation, then it plans to introduce evidence--in the form of
testimony by either Dumas or Gove--that the allegedly
pornographic images Gove reviewed had the same "hash values" as
the allegedly pornographic images Dumas reviewed (meaning, the
prosecution explained, that they had not been altered between the
time Gove analyzed them and the time Dumas analyzed them).
19 In light of this explanation, it is not at all clear how
Dumas might testify to any "finding" by Gove, let alone how that
testimony would violate the hearsay rule or the Confrontation
Clause. Tanguay seems to be arguing that, in identifying the
images' "hash values," Gove was making a "statement" that the
prosecution will impermissibly seek to introduce at trial for its
truth, through the testimony of Dumas. The court cannot rule on
this argument without a better understanding of it and the
underlying facts--including, importantly, what Gove's purpose was
in identifying the "hash values" of the allegedly pornographic
images, and how that is done. Moreover, the argument will be
moot if the prosecution calls Gove as a witness at trial (as it
suggested it was prepared to d o ) . Accordingly, at the
appropriate time during the trial, the prosecution will notify
the court and defense counsel, outside the presence of the jury,
whether it intends to have Dumas testify as to Gove's
identification of the "hash values" on the images allegedly
seized from Tanguay's computer, and the court can take up any
hearsay or Confrontation Clause objection at that point.
4. Defense counsel's access to forensic evidence
Tanguay, who does not intend to call his own forensic
computer examiner at trial, seeks to exclude any evidence that
his counsel had access to the forensic evidence collected during
20 the investigation of this case. He argues that this could give
rise to the inference that, because he did not present any expert
testimony at trial analyzing the forensic evidence, "the
prosecution's experts must have performed flawlessly"--and that
this amounts to an impermissible inference of guilt from a
criminal defendant's decision not to present evidence. In
response, the prosecution agrees not to introduce evidence of, or
comment on, defense counsel's access to the forensic evidence
unless the defense at trial "calls into guestion the accuracy of
the forensic examination" by the prosecution's expert. In that
case, the prosecution argues, it can put on evidence and comment
on the fact that the defendant could have called his own forensic
expert, but did not, under the "invited response" doctrine.
While a prosecutor's comments on the defendant's failure to
present evidence can amount to impermissible burden-shifting if
" [u]nprovoked," courts generally recognize that a prosecutor is
free to offer a "fair response" to defense arguments, and that,
depending on the nature of those arguments, such a response can
include commenting on a defendant's decision not to call certain
witnesses. United States v. Adams, 305 F.3d 30, 37-38 & n.2 (1st
Cir. 2002) (citing cases). In Adams, for example, the court
ruled that it was permissible for the prosecutor to state in his
rebuttal argument "that defense counsel knew of the informant
21 before trial and could have called him if they wanted him" after,
in his summation, defense counsel had "pointed to the
prosecution's failure to call the informant, saying: 'He's not a
witness here, and we don't know why.'" I d . at 37-38 (further
quotation marks and bracketing omitted).
It does not follow, however, that defense counsel invites
the prosecutor to comment on a defendant's decision not to call
witnesses on a particular subject merely by cross-examining the
prosecution's witnesses on that subject. Generally, where courts
have ruled that the prosecutor permissibly commented on a
defendant's failure to conduct his own testing of the evidence,
they deemed it a fair response to defense counsel's argument
attacking the prosecution's testing. See United States v.
Rogers, 423 Fed. Appx. 636, 639 (7th Cir. 2011) (defense counsel
"emphasized" alleged flaws in the prosecution's testing); United
States v. Wimbley, 553 F.3d 455, 461-62 (6th Cir. 2009) (defense
counsel argued that the police's failure to test for DNA or
fingerprints "was a fatal flaw in the prosecution's proof."). It
is possible, then, that defense counsel's closing argument will
invite the prosecution to comment on the fact that Tanguay had
access to the forensic evidence against him but chose not to call
his own expert witness analyzing that evidence. Unless and until
that happens, however, the prosecution shall not introduce any
22 evidence, or comment upon, defense counsel's access to the
forensic evidence.
5. Statement by the former prosecutor assigned to the case
Finally, Tanguay seeks a ruling that he can introduce, as an
admission by the prosecution, a statement in an assented-to
motion that Tanguay filed in April 2012. In this motion, which
sought the in camera production and review of (among other
things) Wiggin's medical records, Tanguay stated:
Based on information recently received from the U.S. Attorney's Office, Mr. Wiggin met with AUSA Helen Fitzgibbon, [a federal criminal investigator, and a state criminal investigator] sometime in the past twelve months to discuss his potential testimony against the defendant. Mr. Wiggin reportedly stated that, sometime subseguent to February 2012, when he gave his initial statement against the defendant, he had been hospitalized . . . for a seizure disorder, and while in treatment was placed in a medically induced coma from which he ultimately awoke with no memory of witnessing the defendant looking at child pornography, or of anything past childhood for that matter.
Tanguay argues that, because this statement was set forth in a
motion to which the prosecution assented, it amounts to an
adoptive admission by a party-opponent that he can use at trial.
The prosecution objects on a number of grounds, including that
its assent to the relief sought by the motion does not amount to
its adoption of all of the statements set forth in the motion.
As an initial matter, this issue is very likely moot
because, at the off-the-record portion of the final pretrial
23 conference, the prosecution stated unequivocally that it will not
call Wiggin during its case-in-chief. That makes any evidence of
Wiggin's claimed lack of memory of the events giving rise to this
case irrelevant--unless, potentially, Tanguay chooses to call
Wiggin as a witness.
In any event, the court agrees with the prosecution that the
statements in Tanguay's motion are not its "adoptive admissions."
The Federal Rules of Evidence exclude from their definition of
hearsay a statement which "is offered against an opposing party"
and "is one that the party manifested that it adopted or believed
to be true." Fed. R. Evid. 801(d)(2)(B). This court has great
difficulty with the notion that, by assenting to a motion filed
by its adversary in litigation, a party is manifesting that it
adopts or believes to be true all of the statements in the
motion--such that all of those statements could subsequently be
used against the assenting party at trial. Were that the case,
deciding whether to assent to a motion seeking even the most
routine relief would become an involved exercise similar to
answering a complaint or responding to a set of requests for
admissions, see Fed. R. Civ. P. 36, requiring the party to admit
or deny every single statement in the motion. It is safe to
assume that few lawyers approach the decision to assent to a
motion that way and, indeed, Tanguay has not come forward with--
24 nor was this court able to find--any case law treating a party's
assent to the relief sought by a motion as its adoptive admission
of all of the statements in that motion. So the court declines
to treat the statements in Tanguay's motion as to Wiggin's
meeting with the investigators as the prosecution's "adoptive
admissions" such that Tanguay can introduce those statements at
trial.6
This is not to say, of course, that the prosecutor's
statements set forth in the motion are not themselves admissions,
such that Tanguay could seek to offer them through the testimony
of a witness who heard the prosecutor say those things. The
government disagrees with even that view, however, and the court
need not resolve that disagreement at present: Tanguay has
disclosed no intention to try to introduce the statements in that
fashion, and, as just noted, it seems highly unlikely that Wiggin
will testify in any event. If he does, Tanguay can seek (through
argument and proffer made outside the presence of the jury) to
introduce the prosecutor's statements about Wiggin's claimed
memory loss at that time. For the moment, however, Tanguay's
6Nor can the court, as Tanguay urges, take judicial notice of the motion under Rule 201 such that Tanguay can introduce the contents of the motion at trial. The court could probably take judicial notice of the fact that the government assented to the motion, but that is not the same as judicial notice of the statements in the motion (which is the evidence Tanguay seeks to introduce).
25 motion to admit them as the prosecution's adoptive admissions of
the statements set forth in the assented-to motion for in camera
review is denied.
For the foregoing reasons, Tanguay's motion in limine to
exclude Madama's testimony7 is DENIED, Tanguay's omnibus motion
in limine to exclude evidence8 is GRANTED in part and DENIED in
part, and his motion in limine to admit evidence9 is DENIED.
SO ORDERED.
Joseph N. Laplante United States District Judge
Dated: December 7, 2012
cc: Donald A. Feith, AUSA Seth R. Aframe, AUSA Behzad Mirhashem, Esg. Jeffrey S. Levin, Esg.
7Document no. 70.
8Document no. 71.
9Document no. 72.