In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1385
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ROGER LOUGHRY,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:08‐cr‐00132 — Sarah Evans Barker, Judge.
____________________
ARGUED OCTOBER 28, 2013 — DECIDED DECEMBER 18, 2013
____________________
Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
WILLIAMS, Circuit Judge. This is Roger Loughry’s second
visit to the Seventh Circuit. In his first appeal, we reversed
his convictions for various child pornography offenses be‐
cause the district court erred in admitting certain “hard
core” child pornography videos found on Loughry’s com‐
puter. United States v. Loughry (“Loughry I”), 660 F.3d 965,
973‐75 (7th Cir. 2011). Following our decision, the govern‐
ment re‐tried Loughry without introducing the unduly prej‐
2 No. 13‐1385
udicial videos at issue in Loughry I. At the conclusion of his
second trial, Loughry was again convicted of sixteen child
pornography offenses.
Loughry contends that his most recent convictions
should be reversed because the district court sent to the jury
room a binder containing properly admitted evidence of
child pornography collected from his residence. According
to Loughry, the evidence recovered from his home was
simply too prejudicial for jurors to examine during their de‐
liberations. While there may be some special circumstances
in which a district court would abuse its discretion by failing
to exclude properly admitted evidence from the jury room
on this basis, Loughry’s case does not fit the bill. The chal‐
lenged exhibit was not unfairly prejudicial because the im‐
ages and videos from Loughry’s personal collection were
highly probative of his identity as the internet user “Mayor‐
roger” who advertised and distributed child pornography
on a site called “the Cache.” The similarities between
Loughry’s own child pornography and that found on the
Cache made Loughry’s personal collection highly probative
and justified the court’s decision to allow jurors to inspect it
during deliberations. We affirm.
I. BACKGROUND
In 2007, United States Postal Inspection Service (“USPIS”)
inspectors discovered that an internet bulletin board site
called “the Cache” was providing users with access to imag‐
es and videos depicting child pornography. After obtaining a
search warrant, USPIS inspectors seized the Cache’s contents
and began looking into the activities and identities of the
site’s administrators. Investigators learned that a user named
“Das”—later determined to be Delwyn Savigar—was one of
No. 13‐1385 3
the Cache’s two head administrators. Below Savigar on the
Cache’s organizational chart were three co‐administrators.
USPIS’s investigation revealed that one co‐administrator, a
user named “Mayorroger,” was Loughry. As a co‐
administrator, Loughry managed content, added members,
and deleted other Cache members who may have been com‐
promised by law enforcement.
The Cache was organized as a collection of topic areas.
One such area, the “LS and BD Galleries,” contained child
pornography images downloaded from a pair of (now de‐
funct) commercial child pornography websites, Lolita Studi‐
os (“LS”) and Branded Dolls (“BD”). In May 2006, the head
administrator of the Cache, “Das,” or Savigar, posted a series
of child pornography images entitled “Little Virgins” in the
“LS and BD Galleries” area. In a caption accompanying his
post, Savigar wrote, “Now open with a huge thanks to
Mayorroger.” Months later, “Mayorroger,” or Loughry, re‐
plied to Savigar’s initial post, “I can’t take any credit here.
Das did it all. I love to give.”
In late 2008, federal law enforcement agents executed a
search warrant of Loughry’s residence and seized his com‐
puter and various compact discs. Loughry’s hard drive and
compact discs contained images and videos similar to those
found on the Cache. For example, one video on Loughry’s
hard drive was from Lolita Studios, the same defunct child
pornography site whose images populated the “LS and BD
Galleries” area of the Cache. Moreover, the computer’s hard
drive was registered to Loughry and contained a user ac‐
count under the name “Mayorroger.” Agents also discovered
bookmarks on the computer that provided quick access to
4 No. 13‐1385
specific pages on the Cache including its administrator con‐
trol panel.
Loughry was ultimately indicted on twelve charges of
advertising child pornography, two counts of distribution of
child pornography, one count of conspiracy to advertise
child pornography, and one count of conspiracy to distribute
child pornography. After a jury trial, Loughry was convicted
on all sixteen counts. On appeal, we reversed his convictions
because the district court erred in admitting certain videos
found on Loughry’s computer which depicted “hard core”
child pornography. See Loughry I, 660 F.3d at 973‐75. We rea‐
soned that the probative value of the hard core child pornog‐
raphy found on the videos was slight “because it was unlike
the pornography that was displayed in the Cache.” Id. at 973.
In light of “the highly inflammatory content of the ‘hard
core’ pornography in comparison to its slight probative val‐
ue,” we concluded that the district court abused its discre‐
tion in concluding that the videos were admissible under
Federal Rule of Evidence 403. Id. at 974.
For Loughry’s second trial, the government did not at‐
tempt to introduce the hard core child pornography videos
into evidence. Instead, the government only sought to pre‐
sent other types of images and videos from Loughry’s resi‐
dence that were similar to the images he was charged with
advertising and distributing through the Cache. At trial, the
district court ruled that the images were admissible under
Federal Rules of Evidence 404(b) and 414. After noting that it
had reviewed all of the images, the court concluded that
they were “very similar to the images … that w[ere] distrib‐
uted by the co‐conspirators, including the defendant, in con‐
junction with The Cache bulletin board.” With respect to its
No. 13‐1385 5
Rule 404(b) ruling, the court reasoned that the evidence was
probative of “the identity of defendant [as] Mayorroger,” the
user who advertised and distributed child pornography on
the Cache. Moreover, the court concluded that Rule 403 did
not require the exclusion of the evidence from Loughry’s res‐
idence. Given the similarity between Loughry’s personal col‐
lection and the images commonly distributed on the Cache,
the court ruled that the materials from Loughry’s home had
a great deal of probative value that outweighed any danger
of unfair prejudice.
At the conclusion of the trial, the district court sent all
admitted evidence, including the child pornography from
Loughry’s home, into the jury room during deliberations.
Loughry objected to placing the evidence in the jury room
“because of the inflammatory nature of the evidence … [I]t’s
subject to misuse and abuse by sending it back to the jury
room.” The district court overruled the objection:
Okay. I hear your objection, but that’s the nature of
the case. It’s the res gestae. It is the evidence of the of‐
fense, and the jury has to review it; it has to be able to
review it. They’ll have to decide how much they can
take, I guess, personally, but they have to have access
to it.
Following the court’s ruling, the court provided jurors with
an exhibit binder of child pornography images collected
from Loughry’s residence for use during deliberations. The
images (as well as still shots from some of the videos) were
assembled in a red binder in order to distinguish them from
the white binders containing images found on the Cache.
6 No. 13‐1385
After deliberating for approximately three hours, the jury
found Loughry guilty of all sixteen charges. Loughry now
appeals.
II. ANALYSIS
Loughry argues that the district court erred by sending
the child pornography found in Loughry’s residence into the
jury room during deliberations. Loughry has not asserted
that the trial court improperly admitted into evidence the
child pornography images recovered during the search of
his home under Federal Rules of Evidence 403, 404(b) or 414.
Loughry’s sole challenge relates to the district court’s deci‐
sion to send this evidence to the jury room.
“Generally, it is within the trial court’s discretion to de‐
termine which exhibits are provided to the jury during de‐
liberations; we review this decision only for a clear abuse of
discretion.” Deicher v. City of Evansville, 545 F.3d 537, 542 (7th
Cir. 2008). “We defer to the district court’s handling of exhib‐
its admitted into evidence but must ensure that the district
court has exercised its discretion in a reasonable manner.”
Baugh ex rel. Baugh v. Cuprum S.A. de C.V., 730 F.3d 701, 705
(7th Cir. 2013) (internal quotation marks omitted). “If a party
argues that properly admitted exhibits had some sort of im‐
proper influence on the jury, reversal also requires a show‐
ing of prejudice.” Id.
As Loughry tells it, the district court abused its discretion
by allowing jurors to view the red binder of images from his
home because the exhibit posed too great a danger of preju‐
dice. The depictions of young girls engaging in sexually ex‐
plicit conduct found on his computer would, Loughry ar‐
gues, inflame jurors’ emotions and preclude them from ra‐
No. 13‐1385 7
tionally evaluating Loughry’s guilt. See generally Old Chief v.
United States, 519 U.S. 172, 180 (1997) (defining unfair preju‐
dice as “an undue tendency to suggest decision on an im‐
proper basis, commonly, though not necessarily, an emotion‐
al one.”).
We recognize that jurors are generally entitled to exam‐
ine exhibits that are properly admitted into evidence. United
States v. Carrillo‐Figueroa, 34 F.3d 33, 39 n.5 (1st Cir. 1994);
United States v. DeCoito, 764 F.2d 690, 695 (9th Cir. 1985);
United States v. Parker, 491 F.2d 517, 521 (8th Cir. 1973); Dal‐
lago v. United States, 427 F.2d 546, 553 (D.C. Cir. 1969); but see
Deicher, 545 F.3d at 543‐44 (holding that district court abused
its discretion in refusing to send properly admitted exhibit to
jury during deliberations in response to request from plain‐
tiff). But the court need not always provide the jury with
every exhibit received into evidence. In certain situations,
the district court may exercise its discretionary authority
over the jury room to exclude even properly admitted exhib‐
its. Exclusion may be justified for a number of reasons. For
example, judges can prevent deliberating jurors from view‐
ing “exhibits that neither party has relied on, that have no
relevance to any of the issues central to the case, or that are
cumulative, prejudicial, confusing, or misleading.” Deicher,
545 F.3d at 542; see, e.g., United States v. Gross, 451 F.2d 1355,
1358‐59 (7th Cir. 1971) (affirming district court’s decision to
deny defendant’s request to send portion of booklet contain‐
ing “a mass of conflicting ordinances and statutes which
bore no relevancy whatever to the issues being tried”). When
deciding whether an admitted exhibit should go to the jury
room, the court may weigh its probative value “against pos‐
sible prejudice that may result if the exhibits are sent to the
jury.” Parker, 491 F.2d at 521; see generally United States v. Pet‐
8 No. 13‐1385
ty, 132 F.3d 373, 379 (7th Cir. 1997) (noting that decision to
send prosecution “evidence into the jury room can reinforce
its harmful effect on the defendant’s case.”).
Although Loughry makes valid points concerning the
prejudicial effect of the child pornography from his home,
we see no abuse of discretion in allowing the jury to view
this evidence during deliberations. “That evidence may be
highly prejudicial does not compel its exclusion; the evi‐
dence must be unfairly prejudicial.” United States v. Chambers,
642 F.3d 588, 595 (7th Cir. 2011). To determine whether an
exhibit is unfairly prejudicial, we use “a sliding scale ap‐
proach: as the probative value increases, so does our toler‐
ance of the risk of prejudice.” United States v. Earls, 704 F.3d
466, 471 (7th Cir. 2012). The evidence recovered from
Loughry’s home possessed a great deal of probative value.
Loughry’s home computer contained images and videos that
had many of the same properties as those found on the
Cache. This similarity was strong evidence of Loughry’s
identity as the Cache user “Mayorroger” who advertised
and distributed child pornography on the site. For example,
one of the videos from Loughry’s stash was from a child
pornography site called Lolita Studios. This was the same
site whose images populated the “LS [for Lolita Studios] and
BD Galleries” area of the Cache. It was in this area that Savi‐
gar posted a series of child pornography images and credit‐
ed Mayorroger for his help in distributing the images. Given
the highly probative nature of the evidence, the district court
acted within its discretion in concluding that the risk of prej‐
udice to Loughry did not warrant its exclusion from the jury
room.
No. 13‐1385 9
III. CONCLUSION
The judgment of the district court is AFFIRMED.