Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:08-cr-00132-WTL-KPF-5-William T. Lawrence, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge.
Before MANION, WOOD, and WILLIAMS, Circuit Judges,
Roger Loughry was convicted of advertising, distributing, and conspiring to advertise and distribute child pornography through an online deposi-tory called the "Cache." Only "lascivious exhibition" pornography, which included the exhibition of girls' genitals, was permitted on the Cache. Images depicting sexual contact or other sexually explicit material were prohibited. Over Loughry's Federal Rule of Evidence 403 objection, the district court allowed the government to show the jury several uncharged videos depicting "hard core" pornography discovered in Loughry's home. We conclude that the district court erred in admitting the "hard core" pornography without examining it, in not explaining its reasoning under Rule 403, and in admitting the evidence even though it was highly inflammatory and had only minimal probative value. These errors were not harmless. Therefore, we reverse.
This case involves defendant Roger Loughry's participation in an online depository called the "Cache." The Cache had 536 users, about 100 of whom used the site to advertise and distribute child pornography to each other and to other users. Most of the remaining users (between 400 and 450, according to the government's estimate) viewed, but did not post, child pornography. In addition to pornography, the Cache also featured online games. Loughry joined the Cache the day after it went online, on November 12, 2005, using the name "Mayorroger."
Cache participants were separated into tiers. The top tier had two administrators, "Das" and "Devil." The next tier was composed of co-administrators, which th e govern m en t c o n t e n d s i n c lu d e d Lou gh ry as "Mayorroger," and two other people, "Dublhelix," and "Aurthurgery." The five administrators had access to the administrative control panel and could admit, promote, or demote other members, as well as control content on the Cache. Lower in the hierarchy were moderators, masters, and trusted members.
The site was divided into sub-forums and topic areas. There was a non-nude gallery area and a nude gallery area, which was subdivided by ages into "18 and over nude," "13-18 nude," and "under 13 nude" categories. The Cache's rules prohibited posting any images depicting sexual contact, masturbation, penetration, boys, or men. According to several witnesses, the purpose of the Cache was to provide its members with access to child pornography consisting of the lascivious exhibition of the genitals of minor girls.
In early September 2008, law enforcement agents executed a search warrant of Loughry's home. The agents seized Loughry's computer and various CDs. The computer's primary hard drive was registered to Loughry and contained a user account under the name "Mayorroger." There were also multiple "bookmarks" or "favorites" to provide expedited access to specific pages on the Cache, including a link to the administrative control panel. The government also found files containing child pornography in the computer's Mayorroger account, in other folders within the computer, and on the CDs.
On September 9, 2008, a federal grand jury indicted Loughry on charges of advertising and conspiracy to advertise child pornography in violation of 18 U.S.C. § 2251(d)(1)(A), and of distributing and conspiracy to distribute child pornography in violation of 18 U.S.C. § 2252(a)(2) and 18 U.S.C. § 2252(b)(1). A superseding indictment charged sixteen counts, one of conspiracy to advertise child pornography, one of conspiracy to distribute child pornography, twelve of advertising child pornography, and two counts of distribution of child pornography. Loughry was not charged with possession of child pornography.
During trial, the government introduced evidence that Loughry responded to several postings on the Cache. For example, the link to a series called "Little Virgins" stated "by Das, on May 17, 2006, with a huge thanks to Mayorroger." Several months later, after a series of replies thanking both "Das" and "Mayorroger" for the set of images, Loughry posted, "I can't take any credit here. Das did it all. I love to give." Another example was Loughry's response to a "school passion" posting by Cache member "Loman 16," where Loughry wrote, "totally awesome, guys. Great work. Many, many thanks for these cuties." There were other similar replies from Loughry thanking other members for their postings. Loughry also posted a message saying that he was interested in images of prepubescent girls. But none of the images Loughry was charged with distributing or advertising were posted by him.
The government also introduced evidence that Loughry performed several administrative activities within the Cache. These included making "Dublhelix" a co-administrator, promoting and deleting members, and creating multiple new member accounts. One witness testified that Loughry discussed demoting one member for failing to maintain a sufficiently active level of participation in the Cache.
During the testimony of its final witness, the government introduced several photographs and videos of child pornography discovered on Loughry's home computer. Some of the images were similar to those displayed in the Cache. But others, including videos of girls being forced to engage in sexual acts with one another and of adult males raping prepubescent girls, were more inflammatory and were prohibited by Cache "rules." The government did not charge Loughry with distributing, advertising, or possessing any of that pornography.
Over Loughry's objection, the court admitted the evidence from Loughry's home computer. The jury eventually returned a guilty verdict on all sixteen counts, and Loughry was sentenced to concurrent prison terms of 360 months on each advertising-related count and 240 months on each distribution-related count. Loughry now appeals the district court's decision to admit the "hard core" pornography the government discovered on his home computer.
A district court's interpretation of the rules of evidence is reviewed de novo and its decision to admit or exclude evidence is reviewed for an abuse of discretion. United States v. Rogers, 587 F.3d 816, 819 (7th Cir. 2009).
A. District Court Abused its Discretion
The district court found that the pornography discovered in Loughry's home computer was admissible under Federal Rule of Evidence 414. The government's stated reason for introducing the pornography found in Loughry's home computer was that it anticipated Loughry would argue that he was "only an administrator of an adult porn game board." The government wanted to show that Loughry had a "long-standing persistent pattern of collecting [pornography]" and was not "operating by mistake or lack of knowledge" but "actually [had] the intent and motive" to join the conspiracy to distribute child pornography through the Cache. Loughry's counsel objected on relevance and Rule 403 grounds because, he argued, the government was trying to convince the jury that Loughry "is a bad guy, and so, he has got to be guilty of this other stuff as well." Loughry now argues that the district court committed several errors when it ...