Seventh Circuit Reverses Conviction for Child Porn Defendant After Jury Shown Inappropriate Videos – U.S. v. Loughry

October 24, 2011 by David S. Seltzer

As a Miami-Dade child pornography defense attorney, part of my job is to make sure that juries are not unfairly prejudiced against my clients. This is a challenge in child pornography prosecutions, in which the crime is frequently enough to upset most jurors. However, it’s vital to distinguish between the actual charges and other conduct that he or she is not on trial for, but that may upset the jurors more. That distinction was vital in U.S. v. Loughry, a Seventh U.S. Circuit Court of Appeals decision overturning a conviction for child pornography charges. Roger Loughry was convicted of advertising and distributing child porn, and conspiracy, in his role as an administrator of a relatively soft-core child pornography website. The court said prosecutors should not have been permitted to show the jury harder-core pornography found on Loughry’s computer.

Loughry was a “co-administrator” on a website called The Cache, which specialized in pictures of the genitals of female minors. Pictures of sexual conduct or photos of males were not allowed. Loughry could control content and admit or promote users, and posted on several occasions to praise members who contributed new photos. Thus, he was charged with advertising and distributing child pornography, and conspiracy to do those things. Despite the fact that investigators found non-Cache pornography in his possession, Loughry was not charged with possession of child pornography. None of his charges were based on the non-Cache pornography. Nonetheless, prosecutors showed the non-Cache pornography at trial, over Loughry’s objection. These were harder-core videos involving the rape of prepubescent girls. The jury found him guilty on every count and sentenced him to 30 years in prison. He appealed.

The Seventh Circuit reversed, finding that the choice to show the at-home pornography was not a harmless error. Federal Rule of Civil Procedure 403 limits evidence that might unfairly prejudice the jury, Rule 414 relaxes this somewhat by allowing evidence in child molestation-related trials showing a propensity for such crimes. The Seventh clarified that Rule 414 does not require judges to routinely ignore Rule 403, but judge the risk of prejudice on a case-by-case basis. It went on to rule that because the court had an obligation to follow Rule 403, it should have reviewed the non-Cache pornography before allowing it to be shown to the jury. It further found that the court should have explained its reasoning in making its Rule 403 motion, but did not. Applying its own test, the Seventh found that the value of the evidence in this case did not outweigh the risk of prejudice. Loughry was never charged with possession, nor was the pornography similar to that on The Cache, the court said. The court accused prosecutors of “manufacturing” reasons to bring in hardcore pornography that had “a strong tendency to provoke intense disgust.” Because of this, and because the prosecution’s case was not a slam-dunk, the Seventh reversed and remanded the case.

This case is a good example of why I work hard, as a Fort Lauderdale cyber crime defense lawyer, to keep only the relevant evidence in front of juries. Loughry was on trial for conduct related to The Cache. The other pornography he had on his computer was not directly relevant to those charges, any more than it would be relevant to argue that he’s a bad driver or good at his job. However, the introduction of the irrelevant hard-core pornography evidence was likely to have affected the jury’s decisions — especially since it was apparently introduced right before jury deliberations. With a shocking, difficult-to-watch video still fresh in their memories, jurors were more likely to convict. This is why, as a south Florida child pornography defense attorney, I think at least as hard about evidence I’d prefer to exclude as I do about what to include.

Based in Miami, Seltzer Law, P.A., represents people across the United States who are accused of serious online and technology crimes. If you’re facing cyber crime charges, former cyber crime prosecutor David Seltzer can help. For a free, confidential case evaluation, send us an email or call 1-888-THE-DEFENSE (1-888-843-3333).

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Appeals Court Upholds Search Evidence Despite Violation of Arkansas Law – U.S. v. Kelley

Eighth Circuit Overturns Conviction Because of Flawed Jury Instructions – U.S. v. Johnson Jr.