USA v . Jonathan Tanguay CR-11-173-JL 11/7/13 P

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal N o . 11-cv-173-JL Opinion N o .

Jonathan Tanguay

MEMORANDUM ORDER

A jury in this court recently found the defendant, Jonathan

Tanguay, guilty of 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 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,

(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 . C r . R. 12.1(c). This

court granted the motion in part and denied it in part in a written order. United States v . Tanguay,

(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

1 Tanguay also sought to exclude photographs, also found in his possession, of a trial witness--who was involved in an amorous relationship with Tanguay between late 2008 and late 2009--at the witness’s senior prom. The prosecution did not seek to introduce those photographs at trial. Tanguay further sought to exclude evidence of this witness’s age, objecting that it was unfairly prejudicial because he was only 18 years of age at the time the two began their relationship, but the court denied that motion based on the prosecution’s agreement to adduce the witness’s age only at the time of the trial, rather than at the time he became romantically involved with Tanguay. While Tanguay maintained that even the witness’s age at the time of trial was unfairly prejudicial, the court disagreed.

2 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.

Under Rule 404(b), “[e]vidence 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,

2 Importantly, the evidence the prosecution sought to adduce was not admissible under either Rule 413 or Rule 414 of the Federal Rules of Evidence, because Tanguay was not accused of “sexual assault” or “child molestation” as those terms are defined by those rules.

3 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,

(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 i s , . . . 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.

(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

4 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 t o , for

example, whether the images constituted child pornography, or

whether they, or the devices that held them, had traveled in

interstate or foreign commerce).

5 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,

(footnote omitted). In such

cases, the court has recognized,

the 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 . . . unwitting participants. Where the evidence is susceptible to the explanation that the acts alleged to constitute the crime were innocently performed and the crucial issues of intent and knowledge are keenly disputed, . . . it is within the judge’s discretion to permit the government to introduce evidence of . . . similar offenses to demonstrate the unlikeliness that the defendant was merely an innocent and unknowing bystander.

That description fits this case to a “T,” and makes evidence of

the other materials found on Tanguay’s computer “specially

relevant” to his knowing possession of the child pornography also

found there.

Contrary to Tanguay’s objection, the logical connection

between his possession of the other materials found on his

computer and his knowing possession of the child pornography

found there, or on other digital storage devices in his home, is

not based on an impermissible inference about his character,

i.e., his possession of the other materials makes him the type of

person who would be more likely to possess child pornography.

6 “Rather, the probative value emanates from the law of

probabilities,” i.e., “‘it does seem unlikely that the same

person could be [repeatedly] victimized’” by the placement of

such materials on his computer without his knowledge.

at 799

(quoting 22 Charles A . Wright & Kenneth A . Graham, Jr., Federal

Practice & Procedure § 5245 (1978) (formatting altered)).

This theory of admissibility is known as the “doctrine of

chances,” and it “has been embraced by the large number of courts

and commentators.” David P. Leonard, The New Wigmore: Evidence

of Other Misconduct and Similar Events § 6.3.1, at 393 (2009).

The doctrine of chances “is founded on a logical inference

deriving not from the personal characteristics of the actor but

from the external circumstances themselves . . . that operates by

virtue of a commonsense assumption that, under certain

circumstances, the facts of the uncharged and charged incidents

make an innocent state of mind highly unlikely.” Id. at 392.

Here, the circumstances the prosecution sought to

demonstrate are that Tanguay possessed both illegal child

pornography, consisting of images of male children engaged in

sexually explicit conduct, and other similar materials which,

though legal, either described male children engaged in sexually

explicit conduct (the stories and the bookmarks) or depicted

youthful-looking male adults in sexually suggestive or explicit

7 poses (the photographs, including those of “Jared” that Tanguay

had shown to the witness). 3 Under the doctrine of chances,

evidence that Tanguay possessed the latter category of items

makes it less likely that he possessed the former category of

items (the child pornography) without knowing that he did so--the

same way that, for example, a defendant’s possession of a cocaine

spoon and sifter-grinder in the trunk of his car makes it less

likely that he drove the car to various places without knowing

that he was participating in a conspiracy to distribute the drug,

United States v . Rivera-Rodriguez,

(1st Cir.

1986) (affirming the admission of such evidence as probative of

knowledge under Rule 404(b)).

Moreover, such an “inference can be particularly strong if

the charged and uncharged acts occur simultaneously.” 1 Edward

Imwinkelried, Uncharged Misconduct Evidence § 5:28 (1984 & 2013

supp.). Here, the evidence showed that Tanguay was in possession

of both the child pornography and the other, similar materials at

the same time, and for that matter, on digital storage devices

that were all found in the same place (the prosecution presented

evidence, in fact, that the computer had previously been used to

3 While the prosecution acknowledged that “Jared” was 18 at the time the photographs were taken, it expressly did not concede that all of the subjects of the other photographs were 18 when those photographs were taken.

8 access some of the contents of both the external hard drive and

the C D ) . As just discussed, there is also no question that the

other materials in Tanguay’s possession are in fact “similar” to

the child pornography in his possession, and “similarity between

the [other] act and the current charges is often the predominant

factor in the test for special relevance as to defendant’s

knowledge.” Aguilar-Aranceta,

. Indeed, as the

prosecution emphasized, two of the photographs of the 18 year-old

“Jared” show him in poses (one, with his hands bound behind his

back, the other, focused on his erect genitalia) that are

strikingly similar to the poses of the children in two of the

images of alleged child pornography, and the stories, like

several of the other images or videos of child pornography,

depict male children engaged in sex acts with male adults.

As the prosecution also pointed out, a number of courts have

upheld the admission of evidence that a defendant facing charges

of possessing child pornography also possessed pornographic

stories about children, reasoning that it shows the defendant’s

“knowledge that the images he possessed contained pornography

featuring children, and [are] thus admissible under Rule 404(b).”

United States v . Phipps,

9 8 , 500 (9th Cir. 2013);

see also United States v . Flocker,

3 7 , 639 (9th

Cir. 2013); United States v . Grimes,

(5th Cir.

9 2001); United States v . Miller, N o . 09-30136,

, at

*2 (S.D. Ill. Jan. 1 9 , 2011); c f . United States v . Garot,

(10th Cir. 1986) (upholding admission of

images of child pornography found in defendants’ home, which were

not the basis for the charges against them, to show their

knowledge that a package they received contained additional

images of child pornography, which was the basis of the charge).

As noted in this court’s Prior Order, courts have applied

the same reasoning to evidence of “a defendant’s possession of

pornography featuring adults who appear young--even if they are

in fact adults.” Tanguay,

9 7 , at 14 (citing United

States v . Goff,

(5th Cir. 2005) and

United States v . Layne,

2 7 , 134 (5th Cir. 1995)); see

also United States v . Presley, N o . 07-5058,

, at *2

(W.D. Wash. Jan. 1 6 , 2008) (admitting evidence that defendant

possessed “‘child erotica,’ or pornography featuring adult women

advertised as ‘barely legal’” to show, among other things, his

knowing possession of child pornography, because “the act of

possessing child erotica is sufficiently similar to the act of

possessing child pornography”). Under Rule 404(b)(2), then,

evidence that Tanguay’s computer contained the stories,

photographs, and bookmarks challenged by his motion in limine was

10 admissible to show his knowledge that his computer, and the other

digital storage devices in his home, contained child pornography.

Rule 403

After determining that evidence of a defendant’s uncharged

misconduct is admissible under Rule 404(b), the court must

proceed to consider whether the risk of unfair prejudice from

that evidence substantially outweighs its probative value so as

to make it inadmissible nonetheless under Rule 403. See, e.g.,

Aguilar-Aranceta,

. The Court of Appeals has

observed, however, that “the phrasing of Rule 403 makes it clear

that the discretion to exclude does not arise where the balance

between the probative worth and the countervailing factors is

debatable; there must be a significant tipping of the scales

against the evidentiary worth of the proffered evidence.”

(bracketing and quotation marks omitted). Furthermore, it is

not any prejudice, but “only unfair prejudice which must be

avoided” under the rule.

(quotation marks omitted).

As just discussed, evidence that Tanguay’s computer

contained stories describing sexual encounters between male

children and male adults, sexually suggestive photographs of

youthful male subjects, and bookmarks to websites with titles

11 indicative of similar material4 is probative as to whether he

knew that the computer, and other digital storage devices in his

home, also contained child pornography. As also just discussed,

this probative value inheres in the similarity between the child

pornography and the other materials, as well as the simultaneity

of Tanguay’s possession of the child pornography and the other

materials (and, again, all of the child pornography and the other

materials were found either on the same computer or on external

devices that had previously been connected to i t ) .

Tanguay nevertheless maintained that his possession of these

other items lacked any probative value. This argument, however,

rested almost entirely on the premise that “there is no logical

link between the existence of the [items] and the knowing

possession of the charged images”--a premise which, based on the

foregoing analysis and authorities, this court rejects.

Tanguay also suggested that, because the other materials are

“constitutionally protected” and, therefore, legal, they have

“nothing to do with whether he knowingly possessed pornographic

images of young children,” which are illegal. Again, though, a

number of courts have ruled otherwise, upholding the admission of

pornographic materials that were legal (either because they were

4 The titles of the bookmarked web pages included “Schoolboy Secrets” and “CumFilledBoys.”

12 textual, rather than graphic, depictions of children engaged in

sex acts, or because they depicted subjects just over the age of

17) to prove the defendant’s knowing possession of illegal child

pornography. Tanguay provided no authority to the contrary.

That is unsurprising, because to constitute probative

evidence of the defendant’s knowledge under the doctrine of

chances, the uncharged acts need not be identical, but only

“roughly similar,” to the charged crime. 1 Imwinkelried, supra,

§ 5:28; see also, e.g., United States v . Gordon,

0 2 ,

908-09 (2d Cir. 1993) (“There is no necessity for synonymity,”

just “sufficient similar[ity]” (quotation marks omitted;

formatting altered)). Again, the pornographic stories are

similar to at least some of the pornographic images in that they

both depict male children engaged in sex acts with male adults;

the photographs of “Jared” and the “On-Line Friends” are similar

to some of the other pornographic images in that they both depict

youthful male subjects in sexually explicit poses; and the

bookmarks are similar to the child pornography because they

archive web pages with titles suggesting that they contain child

pornography featuring male children.5 Moreover, all of the child

5 Tanguay protested that “[o]ther than the names of the websites, there has been no evidence proffered that the websites contained images of child pornography” at the time the bookmarks were created. But it is the names of the websites (e.g., “CumFilledBoys”) that appeared as bookmarks on the web browser on

13 pornography, and all of the other materials, were found at the

same time, and in the same geographic location, either on

Tanguay’s computer or external devices that were previously

connected to i t .

As already explained, these similarities between the child

pornography and the other materials make it less likely that

Tanguay knowingly possessed the latter but not the former, in

turn making evidence that he possessed those materials probative

of his knowledge under the doctrine of chances. (It should be

noted that there was additional evidence, beyond their discovery

on his computer, that Tanguay knowingly possessed the stories and

photographs: a witness testified to having received letters from

Tanguay that were saved to the same folder as the stories; that

same witness testified to having been shown the photographs of

“Jared” by Tanguay.) The sole difference that Tanguay

identified--that the other materials are legal while the child

pornography is not--does not meaningfully diminish the force of

Tanguay’s computer, and, as he appears to acknowledge, those names suggest that the sites contain child pornography--and the presence of bookmarks to sites with such names on Tanguay’s computer suggests, again, that Tanguay was also aware of the presence of child pornography on his computer. See United States v . Sanchez,

(A.F. C t . Crim. App. 2003) (relying on defendant’s subscriptions “to numerous e-groups described as nude teen sites” in upholding the sufficiency of the evidence for his conviction for knowingly possessing the child pornography also found on his computer), rev’d in part on other grounds,

(C.A.A.F. 2004).

14 this reasoning nor, in turn, the probative value of evidence that

he possessed those other materials. Indeed, it is hardly unusual

that a defendant’s possession of legal material, such as

instructional literature, is used as evidence of his knowledge

that he was engaged in illegal activity, see, e.g., United States

v . Brown,

0 , 26-27 (1st Cir. 2012) (citing additional

cases), and, again, a number of courts have specifically upheld

the use of a defendant’s possession of legal pornography

depicting either children or young-looking adults as evidence of

his knowing possession of child pornography.

Tanguay also argued that evidence he possessed the other

materials carried with it an unacceptable risk of unfair

prejudice. As an initial matter, however, this court perceives

little risk that the stories, photographs, and bookmarks could

have caused any prejudice to Tanguay beyond that he already

suffered--and unavoidably so--from the introduction of the child

pornography itself.6 See United States v . Ebersbach, 489

6 While Tanguay also moved to exclude the images of child pornography that the prosecution intended to introduce, and offered to stipulate that they constituted child pornography, the prosecution rejected that offer, and the court ruled that the images were admissible based on law from this Court of Appeals and others that, in child pornography cases, a district court need not “scrub the trial clean of all evidence that may have an emotional impact, where the evidence is part of the [prosecution’s] narrative.” United States v . Morales-Aldahondo,

(1st Cir. 2012); see also, e.g., United States v . Caldwell,

3 8 , 343 (5th Cir. 2009). Moreover, as the

(4th Cir. 2012) (finding a minimal risk of

unfair prejudice from the introduction of material that was not

child pornography in a child pornography case, given the

“introduction of numerous pornographic images that formed the

basis of the indictment”); Bolles v . Texas, N o . 07-08-0304,

, at *5 (Tex. C t . App. Feb. 1 6 , 2010) (similar).

In any event, Tanguay identified nothing in particular about

the stories, photographs, or the bookmarks that convincingly

presented any risk of unfair prejudice. While, at trial, Tanguay

objected to the stories as “lengthy documents describing sexual

assault of children,” the prosecution, in response, offered just

one of the stories into evidence (though a list of the titles of

all of the stories, many of which were sexually suggestive, was

also introduced in the form of a screen shot of the contents of

prosecution explained during oral argument on the motions in limine, each of the images of child pornography that it introduced had evidentiary value beyond the fact that it was child pornography found in Tanguay’s possession, e.g., the image was found in more than one place, or (based on the forensic analysis of Tanguay’s computer) had been recently viewed there.

The court also reviewed the images, both during the first trial and again prior to the second, and, while they were indeed disturbing, they did not depict “depraved and violent sexual acts” so that “[e]ven in the cesspool of evidence” typically presented in a child pornography case, the images “st[ood] out.” United States v . Cunningham,

7 2 , 390 (3d Cir. 2012) (ruling that it was error to admit such images). Accordingly, this court ruled that the probative value of the images of child pornography was not substantially outweighed by the risk of unfair prejudice. Fed. R. Evid. 403.

16 the folder from Tanguay’s computer). Evidence that Tanguay

possessed a story describing the sexual assault of a child by an

adult--presented as the adult’s sexual fantasy--is no doubt

prejudicial, but not unfairly s o , particularly in light of the

other evidence that Tanguay possessed actual images of the sexual

assault of children by adults.

As to the photographs, Tanguay argued at trial that evidence

that he had taken the pictures of “Jared,” and therefore “was

manufacturing” pornography, carried a particular risk for unfair

prejudice. In response, the court excluded evidence that Tanguay

had taken the photographs, but allowed the prosecution to

introduce the photographs themselves--as well as testimony from

the witness that Tanguay had displayed them--because, again,

Tanguay failed to identify anything about that particular

evidence that carried a risk of unfair prejudice.

As to the photographs in the “On-Line Friends” folder,

Tanguay offered only the assertion that these amounted to

“evidence that he was an on-line predator,” but that is not a

fair characterization of that evidence. The “On-Line Friends”

folder, which consists of a small collection of thumbnail images

depicting youthful males in sexually explicit poses, contains no

indication that Tanguay was actually in contact, “on-line” or

otherwise, with any of the subjects, nor was any other such

17 evidence introduced. Furthermore, the folder had additional

probative value in that it was located on both the laptop

computer and the external hard drive, though, in the version on

the external hard drive, some of the names of the image files had

been changed (e.g., from “Wild2” to “HanoverBoy2”)--suggesting

that the pornographic images had been intentionally, rather than

accidentally, copied from the laptop to the external drive.

Indeed, courts have recognized that evidence of a defendant’s

“cyber-fingerprints on all the seized computer materials” is

admissible to rebut a defendant’s claim (like Tanguay’s in this

case) that “he was ignorant about the child pornography on his

computer equipment and storage media.” United States v .

Hatfield,

9 2 , 695 (7th Cir. 2009) (citing

additional like cases).

In short, any risk of unfair prejudice from Tanguay’s

possession of the stories, photographs, and bookmarks did not

affect the “significant tipping of the scales against the

evidentiary worth of the proffered evidence” to justify its

exclusion under Rule 403. Aguilar-Aranceta,

.

Moreover, at Tanguay’s request, the court also gave the jury--in

writing, with the other instructions given at the close of the

case--a limiting instruction that they could not use the evidence

of “stories with sexual themes, bookmarks to websites, and

18 photographs in a folder labeled ‘Jared’ . . . against the

defendant because you disapprove of such items, or as a basis to

conclude that the defendant is the kind of person who is more

likely to unlawfully possess child pornography.” The Court of

Appeals has recognized that such an instruction serves “to guard

against any improper use of” evidence admitted under Rule 404(b).

United States v . Williams,

5 , 43 (1st Cir. 2013). The

limiting instruction, then, served to limit any risk of prejudice

that the evidence created.

Based on the foregoing reasons, and the additional ones

stated on the record at trial, Tanguay’s motions in limine were

DENIED (except to the extent they sought to exclude the witness’s

prom pictures, see note 1 , supra).

SO ORDERED.

K y^jV^TS^ Joseph N. Lapl'ante United States District Judge

Dated: November 7 , 2013

cc: Seth R. Aframe, AUSA Nick Abramson, AUSA Behzad Mirhashem, Esq. Jeffrey S . Levin, Esq.

19