United States v. Blanchard

United States Court of Appeals
For the First Circuit

No. 15-1649

UNITED STATES OF AMERICA,

Appellee,

v.

FRITZ BLANCHARD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Nancy Torresen, U.S. District Judge]

Before

Torruella, Lynch, and Barron,
Circuit Judges.

Mary A. Davis, with whom Tisdale & Davis, P.A. was on brief,
for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.

August 8, 2017
 TORRUELLA, Circuit Judge. Following a jury trial in

the United States District Court for the District of Maine, Fritz

Blanchard was convicted of one count of aiding and abetting the

interstate transportation of three victims for purposes of

prostitution, in violation of 18 U.S.C. §§ 2421 and 2422. On

appeal, Blanchard argues that the court erred by allowing

unauthenticated exhibits into evidence and that he was denied a

fair trial because information concerning similar bad acts was

presented to the jury via cross-examination when he took the

witness stand on his own behalf. Blanchard also submitted a pro

se supplemental brief that raises sufficiency of the evidence and

inadequate jury instruction claims as well as challenges the

district court's denial of a motion for a mistrial. Unpersuaded

by these arguments, we affirm.

I. Background1

In March of 2013, Blanchard joined his childhood friend

Samuel Gravely and Gravely's romantic partner, Alisha Philbrook,

on a trip to Bangor, Maine. Philbrook and Gravely had previously

agreed to begin prostituting Philbrook. Gravely (a cooperating

witness who had already pled guilty to transportation in interstate

1 "We rehearse the pertinent facts in the light most agreeable to
the verdict, deferring some details to our analysis of the issues
raised on appeal." United States v. Savarese, 686 F.3d 1, 5
(1st Cir. 2012) (citation omitted).

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commerce for purposes of prostitution at the time of Blanchard's

trial) testified that Blanchard was the one who suggested

prostitution to him as a means of making money and that prior to

March 2013 Blanchard was himself already profiting from

prostitution. On March 13, 2013, Gravely, Philbrook, and

Blanchard drove to Bangor, Maine, where Gravely rented a room in

a Motel 6. There, Gravely took Philbrook's picture and, with

Blanchard's help, posted an ad on Backpage.com ("Backpage"), a

website often used to advertise escort services. Cf. Jane Doe

No. 1 v. Backpage.com, LLC, 817 F.3d 12, 16-17 (1st Cir. 2016).

Between March 13 and 14, Philbrook saw clients in the hotel room

while Gravely and Blanchard waited in the parking lot. She gave

all the money she earned to Gravely. Afterwards the three returned

to Presque Isle, Maine, where they were living.

On March 25, the trio returned to Bangor, Maine and

Philbrook again made money from prostitution, which she gave to

Gravely. On March 26, deciding that business in Bangor was slow,

the three traveled together to Portland, Maine. On March 27 they

rented a room at a Travelodge in Portland, where Philbrook saw

customers.

At some point while in Portland, Gravely and Blanchard

went out to get food and met a female minor only identified on the

record as M.J. Gravely, Blanchard, and M.J. went back to the

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Travelodge where Blanchard took pictures of M.J. and posted another

ad on Backpage. Gravely testified that M.J. began seeing

customers with Blanchard's coaching on how to talk to them on the

phone and how much money to charge. M.J. saw clients at the

Travelodge while Gravely, Blanchard and Philbrook waited in the

car.

Sometime between the evening of March 27 and the morning

of March 28 the group decided to travel to Boston, Massachusetts.2

Before they left, however, Gravely and Blanchard met a woman named

Kaylee Howland and invited her to go along with the four of them

to Boston. Howland agreed and the three returned to the Travelodge

to pick up Philbrook and M.J.

Gravely drove the group to Boston. On the way there,

Blanchard booked and paid for a room at the Midtown Motel in

Boston. Howland testified that during this trip Philbrook and

M.J. used an iPad to look at a webpage that she later recognized

was Backpage. When they arrived in Boston, Gravely and Blanchard

dropped the women off at the hotel and the two of them continued

2 There was conflicting testimony given as to the reason for this
trip. Gravely testified that they decided to travel to Boston
because business was slow in Portland. Philbrook testified that
the purpose of the trip was actually to go to Miami to pick up a
woman who had made money for Gravely as a prostitute and that
Boston was merely a stopping over point. Blanchard testified that
Gravely was going on a trip and he merely hitched a ride to Boston.

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to Blanchard's mother's home in Dorchester. There, they tried to

post another ad on Backpage for M.J. and Philbrook, but they did

not have a credit card to pay for it.

Unsuccessful in their attempt to advertise the women on

Backpage, Gravely and Blanchard returned to the hotel. Blanchard

wanted to walk "the track," an area in Boston where prostitutes

walk the streets. Gravely dropped Howland, Philbrook, and

Blanchard off in the area of the track. Philbrook testified that

Blanchard told her to show Howland "how to do it, to walk around

and get in a vehicle and show her how to proceed." Philbrook

testified that she did not do this, at which point Blanchard

himself began talking to Howland. Howland testified that

Blanchard told her to watch Philbrook and gave her tips on how to

be an escort. After some time she told Blanchard she was sick as

a pretext because she wanted to return to the hotel.

Gravely returned to pick up the trio. They all went

back to the hotel room and Blanchard left with M.J. Howland told

Philbrook that she wanted to return to Maine. She got her

belongings and went to the front desk. Howland, in tears, told

the front desk staff that she wanted to go home. The hotel staff

put her in a back room where she spoke to the head of hotel security

who then called the police. When the police arrived they went up

to the room rented by Blanchard. Gravely was permitted to leave

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but Philbrook, Howland and M.J. were taken by the police to the

police station. Gravely found Blanchard and the pair returned to

Maine.

Blanchard was subsequently convicted of aiding and

abetting the interstate transportation of three victims for

purposes of prostitution, in violation of 18 U.S.C. §§ 2421 and

2422, and sentenced to 46 months of imprisonment.

II. Authentication of Evidence

On appeal, Blanchard argues that the Backpage ads of

Philbrook and M.J. were not properly authenticated, that they

therefore should not have been admitted, and that he was prejudiced

by their admission. As part of this argument he asserts that the

government should have submitted expert testimony from Backpage

explaining discrepancies between the ads the government sought to

admit into evidence and the testimony of the government's

authenticating witness, Gravely. To authenticate evidence "the

proponent must produce evidence sufficient to support a finding

that the item is what its proponent claims it is." Fed. R. Evid.

901(a). Blanchard asserts that the ads were not what the

government purported them to be because key features -- namely,

the date and place of creation -- differed from the testimony of

the authenticating witness. The district court admitted the two

Backpage ads over Blanchard's objections, asserting that any

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discrepancies between the ads themselves and the testimony about

them "goes to the weight and not the admissibility."

It is axiomatic that documentary evidence must be

authentic. United States v. Holmquist, 36 F.3d 154, 167

(1st Cir. 1994) ("It cannot be gainsaid that documentary evidence

must be authentic."); United States v. Paulino, 13 F.3d 20, 23

(1st Cir. 1994) (stating that documentary evidence must be

authentic and that authenticity is a condition precedent to

admissibility). Authenticity is closely related to relevance, for

if an item is not what it purports to be then it may not be relevant

to the inquiry. See United States v. Browne, 834 F.3d 403, 409

(3d Cir. 2016) (starting inquiry into authenticity by first

examining relevance).

Evidence of authenticity may consist of "direct

testimony of either a custodian or a percipient witness."

Paulino, 13 F.3d at 23; see also Fed. R. Evid. 901(b)(1). This

evidence is extrinsic to the document or item itself. See, e.g.,

United States v. Appolon, 715 F.3d 362, 371-72 (1st Cir. 2013)

(employee could authenticate files because she updated and

maintained them); United States v. Landrón-Class, 696 F.3d 62, 69

(1st Cir. 2012) (doctor authenticated prescriptions he made

himself). It can also come from elements of the document itself,

such as "[t]he appearance, contents, substance, internal patterns,

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or other distinctive characteristics of the item, taken together

with all the circumstances." Fed. R. Evid. 901(b)(4); see also

Paulino, 13 F.3d at 23.

The standard the district court must apply in evaluating

a document's authenticity is whether there is "enough support in

the record to warrant a reasonable person in determining that the

evidence is what it purports to be." Paulino, 13 F.3d at 23.

This standard does "not require the proponent of the evidence to

rule out all possibilities inconsistent with authenticity."

Holmquist, 36 F.3d at 168. "Because rulings of this stripe involve

the exercise of the district court's sound discretion, we review

them only for mistake of law or abuse of that discretion," Paulino,

13 F.3d at 23, unless the ruling was unobjected-to below, in which

case we review for plain error, Savarese, 686 F.3d at 12.

Mindful of these precepts, we turn to the ads in

question. The government first mentioned the ads in its opening

statement when it told the jury that "[y]ou'll see the ad that

they posted for Alisha Philbrook," and, with regards to M.J.,

"[y]ou'll see the ads they posted." Thus, in the beginning the

government claimed that it would introduce the actual ads posted

on March 13 in Bangor, Maine and March 27 in Portland, Maine ("the

Original ads").

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 Ultimately the government introduced two documents

purporting to be these ads. Government's Exhibit 1 ("Exhibit 1")

was a Backpage ad for Philbrook that was admitted during Gravely's

testimony. Gravely identified the exhibit as an ad that Blanchard

helped him to prepare and post on March 13 in Bangor, Maine. He

stated that he took the pictures for the ad at the Motel 6 in

Bangor, after which Blanchard showed him how to post them in an ad

on Backpage. Defense counsel objected to admission of the ad

because, although Gravely testified that it was created and posted

on March 13 in Bangor, Maine, the actual ad the government sought

to admit into evidence contained information from Backpage

indicating that it was created on March 23 and posted on March 27

in Portland, Maine.3 In sidebar the government's attorney stated

that the government had subpoenaed records from Backpage and that

Exhibit 1 is the ad that they received. The government's attorney

told the trial judge that Backpage had explained that "when an ad

is posted more than one time they don't keep every single iteration

3 The government argues that Blanchard did not preserve an
objection to the authenticity of Exhibit 1. At trial, Blanchard's
attorney objected when the government sought to introduce
Exhibit 1, pointing to the same discrepancies between Gravely's
testimony and the document itself that he now raises before us.
"[O]bjections to evidentiary proffers must be reasonably specific
in order to preserve a right to appellate review." Holmquist,
36 F.3d at 168. Blanchard's arguments that there were
discrepancies between Gravely's testimony and Exhibit 1 are
adequate to preserve his objection.

-9-
of the ad."4 The government further argued that Exhibit 1 is

relevant because it demonstrated that Philbrook was working as a

prostitute in Maine prior to the trip to Boston and that Blanchard

facilitated that work by helping post the ad. The government, the

proponent of the exhibit, therefore appears to have modified the

claim made in its opening statement and ultimately argued that

Exhibit 1 was a Backpage ad created and posted in Maine prior to

the trip to Boston. Accepting this argument, the judge ruled that

the discrepancy in dates and locations went to the weight the

evidence should receive rather than its admissibility and admitted

the ad into evidence.

Government's Exhibit 2 ("Exhibit 2") was similarly a

Backpage ad admitted during Gravely's testimony. This ad

contained pictures Blanchard took of M.J. at the Travelodge in

Portland, Maine on March 27. Gravely was present both when the

pictures were taken and when the ad was created that same day.

Blanchard again objected that there were material differences

between the physical ad that the government sought to admit into

evidence and Gravely's testimony -- namely, the date of posting

(March 27, according to Gravely's testimony, whereas the ad itself

indicated that it was posted on March 31) and the location of its

4 The government did not present any documentation from Backpage
to verify this statement.

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posting (Portland, Maine, according to Gravely's testimony versus

Quincy, Massachusetts, according to the ad).5 The district court

stated that there was an adequate foundation "to establish that

certainly these pictures are part of the ad that he did post on

[March 27]." The district court requested a foundation as to the

text before it would be admitted, but ultimately it again held

that any discrepancies went to weight rather than admissibility.

On this basis Exhibit 2 was admitted into evidence.

We find that it was not an abuse of discretion for the

district court to admit Exhibit 1 as a Backpage ad that was created

and posted in Maine prior to the trip to Boston. Moreover, even

if the discrepancies in Exhibit 1 did sufficiently undermine this

claim, additional evidence at trial further supported the

authenticity of Exhibit 1. United States v. Espinal-Almeida, 699

F.3d 588, 609 (1st Cir. 2012) ("[I]f evidence is admitted

prematurely, a new trial is not warranted when later testimony

cures the error."). After Exhibit 1 was admitted, Gravely further

testified that Exhibit 1 was reposted in Portland on March 27 after

the trio moved there from Bangor, thus explaining the date and

location of posting listed on Exhibit 1. In addition, Philbrook

5 The government suggested during cross-examination of Blanchard
that Exhibit 2 was reposted in the Boston area on March 31, but
Blanchard was not charged with any offense in connection to this
and there was no direct testimony to that effect.

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testified that Gravely took pictures of her in the Motel 6 in

Bangor, Maine, that the pictures in Exhibit 1 were some of those

pictures, and that she later saw customers in the Motel 6. 6

Howland testified that during the trip to Boston she saw Philbrook

and M.J. looking at a webpage that she later realized was Backpage.

She later found Exhibits 1 and 2 on her phone and showed them to

a Boston police officer who picked her up at the hotel. Mark

Keller, a Portland police officer, testified that Howland showed

him Exhibit 1 on her cell phone when he interviewed her upon her

return to Portland on March 29. Keller further testified that

when Howland showed him the ad he recognized it as one he had seen

in the previous week during one of his daily searches of Backpage

escort ads. Keller saw that there was a second ad linked to the

6 The defendant argues that Philbrook's testimony that the exhibit
was not identical to the Original ad, that that one had more
pictures and a different sales pitch, suggests that the document
was not properly authenticated. First, we note that the exhibit
had already been admitted at this point in the trial, so if
Blanchard wanted to argue that Philbrook's testimony undermined
the authenticity of the exhibit the best course would have been to
renew his objection. Having failed to do so we are left to query
whether it was plain error for the district court to allow the
evidence to remain admitted after it heard Philbrook's testimony.
We do not find that it was. Philbrook conceded that Exhibit 1 was
an ad for prostitution that contained pictures taken of her by
Gravely in Blanchard's presence on March 13. Moreover, she states
that the two did create an ad on that date and that as a result of
the ad she subsequently met with customers at the same motel.
Therefore the ad admitted into evidence remained relevant and
authenticated in crucial respects.

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first and was able to go on Backpage and find Exhibits 1 and 2

"live" (meaning, anyone searching Backpage, whether police

officers or potential clients, would find them posted).

The duty of the trial court is to determine if a

reasonable person could decide that the ads are what they purport

to be (in the case of Exhibit 1, a Backpage ad of Philbrook created

in Maine and posted prior to the trip to Boston). Holmquist,

36 F.3d at 164. Gravely's testimony as to the ads' content is

sufficient to create this foundation. It is for the jury to weigh

the impact of Gravely's background and cooperation with the

government in deciding whether the ads were in fact posted on the

dates and at the locations alleged by Gravely. Id.

Exhibit 2 presents a somewhat more complicated fact

pattern, however, because Gravely could not explain the

discrepancies between what he knew about when and where the ad was

created and the date and location of posting evident on the

exhibit. Indeed, he was directly asked by the government "do you

know whether [Blanchard] ever reposted the Backpage ad for M.J.?"

and he responded that he did not know. There was additional

evidence that Exhibit 2 was originally created and posted in Maine,

however. Mark Keller, the Portland police officer, testified that

he recognized the background of the pictures taken in Exhibit 2 as

being the Travelodge in Portland, Maine. Moreover, Chris

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Fitzpatrick of Homeland Security testified that included with the

ads subpoenaed from Backpage were the IP addresses used to post

the ads. From the IP addresses listed on Exhibit 2 he was able

to determine that the ad was originally posted from the Travelodge

in Portland, Maine. Taken together, this testimony provides

sufficient evidence for a reasonable person to conclude that the

Exhibit 2 was a Backpage ad that was created and posted in

Portland, Maine prior to the trip to Boston. Moreover, even

assuming, arguendo, that there was an error in admitting Exhibit 2,

the extensive evidence against Blanchard, including the testimony

of Gravely, Philbrook and Howland corroborated by Keller and

Fitzpatrick, was sufficient to render the admission of these two

exhibits harmless. United States v. Ladd, 885 F.2d 954, 957 (1st

Cir. 1989) ("[A] new trial is unnecessary if it can be said 'with

fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error.'" (quoting Kotteakos v.

United States, 328 U.S. 750, 765 (1946))).

Blanchard points to our previous case law finding proper

authentication, to suggest, inter alia, that someone with

knowledge of why there were the discrepancies in the ads needed to

testify in order to authenticate them. Savarese, 686 F.3d at 10-

11; Espinal-Almeida, 688 F.3d at 609-10; and United States v. Ladd,

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885 F.2d 954, 956-57 (1st Cir. 1989). On the facts of this case

we are not prepared to say that the government was required to

produce such testimony. The cumulative evidence concerning the

ads from Gravely, Philbrook, Howland, Keller and Fitzpatrick

provided sufficient evidence to authenticate the ads as Backpage

ads that were created in Maine prior to the trip to Boston.

More to the point, unlike the defendants in Saverese,

Espinal-Almeida and Ladd, who each argued that the evidence in

question (photocopies of false identifications, a GPS device and

a blood sample, respectively) was subject to falsification,

Blanchard makes no such argument here. In fact, he does not

explain why this court should require expert testimony to explain

the discrepancies except to state that without such testimony there

is insufficient evidence that the ads are what they purport to be.

He does not, for example, make a chain of custody argument, such

as was made in Ladd or in Espinal-Almeida. 885 F.2d at 956-57;

699 F.3d at 609-10. Such an argument only applies when the item

in question is not readily identifiable (such as a vial of blood

as in Ladd or a GPS device as in Espinal-Almeida). See United

States v. Luna, 649 F.3d 91, 103 (1st Cir. 2011) ("[E]vidence

. . . is properly admitted if it is readily identifiable by a

unique feature or other identifying mark. On the other hand, if

the offered evidence is of the type that is not readily

-15-
identifiable or is susceptible to alteration, a testimonial

tracing of the chain of custody is necessary." (quoting United

States v. Anderson, 452 F.3d 66, 80 (1st Cir. 2006))). The ads

here, however, were easily distinguishable such that Gravely could

point to material differences between his memory of the Original

ads and Exhibits 1 and 2.7

7 Because Gravely was present at the ads' creation and testified
to their content, this case is distinguishable from those found in
other circuits where the courts have failed to uphold the
authentication of digital evidence and renders it more closely
analogous to those instances where our sister circuits have upheld
the admission of evidence obtained from the internet. Compare
United States v. Vayner, 769 F.3d 125, 131 (2d Cir. 2014)
(overturning admission of a webpage when the government was unable
to present testimony of anyone with knowledge as to who in fact
created the webpage) and United States v. Jackson, 208 F.3d 633,
638 (7th Cir. 2000) (affirming exclusion of website postings where
there was no evidence presented as to who created the postings),
with United States v. Needham, 852 F.3d 830, 836 (8th Cir. 2017)
(holding that "[e]xibits depicting online content may be
authenticated by a person's testimony that he is familiar with the
online content and that the exhibits are in the same format as the
online content") and Browne, 834 F.3d at 408-15 (rejecting as
self-authenticating Facebook chat logs when relevance turned on
authorship, but referring to testimony from participants in the
chats as to their contents as aiding in authentication) and United
States v. White, 660 F. App'x 779, 783 (11th Cir. 2016) (holding
e-mails to have been properly authenticated when a witness with
knowledge testified that they accurately represented an e-mail
exchange between himself and the defendant) and United States v.
Barnes, 803 F.3d 209, 217 (5th Cir. 2015) (accepting admission of
Facebook messages when a witness testified that she saw the
defendant using Facebook, recognized his account and his style of
communicating reflected in the messages the government sought to
introduce) and United States v. Gagliardi, 506 F.3d 140, 151
(2d Cir. 2007) (finding properly authenticated e-mails and
transcripts of instant-message chats when a participant in those
communications testified that they were accurate records of the

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 Given the facts of this case, a reasonable person could

deem Exhibits 1 and 2 to be Backpage ads created and posted in

Maine prior to the group's trip to Boston and we do not find that

the district court abused its discretion in admitting them.

III. Admissibility of Similar Bad Acts Information

We now turn to Blanchard's claim that he was denied a

fair trial because inadmissible information about similar bad acts

was presented to the jury. In so arguing he evokes Rule 404 of

the Federal Rules of Evidence, governing when character evidence

may be presented to the jury. "We review a district court's ruling

on the admissibility of evidence under Rule 404(b) for an abuse of

discretion." United States v. Landry, 631 F.3d 597, 601

(1st Cir. 2011).

During direct examination, Blanchard, inter alia, denied

having told Gravely that he could make money through prostitution;

denied having anything to do with the prostitution Philbrook and

Gravely engaged in in Bangor, Maine, and, in particular, denied

having ever participated "in the writing [and posting to the

internet] of a Backpage advertisement involving Ms. Philbrook"

either in Bangor or in Portland; stated that it was Gravely who

invited both M.J. and Howland to join them; denied making or

conversations).

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assisting in making any Backpage ads in Boston; and testified that

the phone associated with the number listed in Exhibit 2 did not

belong to him but rather to Gravely despite containing phone calls

to Blanchard's mother in its call history.

During cross-examination of Blanchard, the government

inquired about a number of alleged acts that occurred after the

events charged at the trial. Among other things, the government

asked: (1) whether Blanchard used the phone number given in Exhibit

2 to call other escorts; (2) whether Blanchard reposted Exhibit 2

on March 31 in Boston; (3) whether nine days later the same phone

number was used in a Backpage ad for two more women; (4) whether

those same women showed up three days later in another Backpage

ad; (5) whether the pictures for the latter two ads were taken at

the apartment of a woman named Torrie Mitchell; and (6) whether

Blanchard and Gravely were prostituting Torrie Mitchell using

Backpage ads.8

8 The government argues that Blanchard did not preserve objections
as to all of this evidence at trial. During cross-examination on
the first point Blanchard's attorney objected "to testimony from
the prosecutor about what numbers go to, who's at the other end of
the numbers, et cetera." The district court ruled that as long
as the prosecutor had "a good-faith basis for inquiring of that,
she can inquire into it." Following the questions that elicited
evidence on points two through five above, Blanchard's attorney
requested a sidebar and objected, stating "[t]his is obviously
extrinsic evidence. This is I believe allegations that postdate
the allegations in this case, and I would object." The
prosecutor's response only went to the Torrie Mitchell question,
but the objection fairly reached all of the evidence identified in

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 Blanchard argues that these are evidence of other bad

acts and cites Rule 404(b), which provides that "[e]vidence of a

crime, wrong, or act is not admissible to prove a person's

character in order to show that on a particular occasion the person

acted in accordance with the character." Fed. R. Evid. 404(b)(1).

Blanchard fails to fully grapple with the evidentiary issues raised

by the timing of this evidence's admission, however. 9 It is

significant that the evidence of Blanchard's other alleged bad

acts was introduced on cross-examination of Blanchard. In

particular, Blanchard completely ignores Rule 404(a)(2)(A), which

states that "a defendant may offer evidence of the defendant's

pertinent trait, and if the evidence is admitted, the prosecutor

may offer evidence to rebut it."10

This circuit "employs a two-part test to determine

admissibility of evidence under Rule 404(b)." Landry, 631 F.3d

numbers two through six above. We therefore find that there was
a preserved objection to all of the evidence.
9 Indeed, the government argues that because the admitted evidence
came in during cross-examination the issue is more properly
evaluated under Rule 611(b) governing the scope of cross-
examination rather than Rule 404 as Blanchard asserts. Both rules
are applicable. Because we find no error under Rule 404 as argued
by the defendant we need not evaluate whether 611(b) gives the
government an independent path to admitting the evidence.
10 "Bad acts committed subsequent to the charged behavior are
admissible under rule 404(b) as long as they meet the criteria set
forth in the Rule." Landry, 631 F.3d at 601.

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at 601-02. First, the evidence has to have "'special' relevance

other than establishing propensity," id. at 602 (quoting Udemba v.

Nicoli, 237 F.3d 8, 15 (1st Cir. 2001)), and second, the evidence

must not be excludable under Rule 403 "because the danger of unfair

prejudice substantially outweighs the probative value" of the

evidence, id.

This circuit has specifically held that under Rule

404(b) character evidence may be admitted "to rebut a defense of

innocent involvement." Id. Indeed, we fail to see how

Blanchard's case is at all materially different from the situation

we evaluated in United States v. Rodríguez where we held that it

was not an abuse of discretion for the district court to admit

evidence of the defendant's involvement in an uncharged event of

drug importation because it was presented to counter the

defendant's claim that he "was innocently caught up with others

who, if they intended a crime, had not told him their purpose."

215 F.3d 110, 119 (1st Cir. 2000). By presenting evidence of the

defendant's involvement in similar bad acts the government gave

the jury a reason to conclude that the defendant was not an

innocent bystander but a "knowing and intentional participant in

the crimes charged in the indictment." Id.

Similarly, in United States v. Lugo Guerrero we held

that it was not an abuse of discretion to admit evidence of the

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defendant's involvement in prior robberies to rebut his assertions

that his presence with the other two alleged robbers was innocent.

524 F.3d 5, 14 (1st Cir. 2008). We specified that the evidence

of the prior robberies "makes it unlikely that his presence . . .

was a mere coincidence." Id. Here Blanchard testified that he

was merely present when Gravely and Philbrook engaged in acts of

prostitution both in Maine and in Massachusetts and was an innocent

passenger in their trip from Maine to Boston. The government was

therefore entitled to present evidence of Blanchard's ongoing

engagement and contact with individuals engaging in prostitution

to demonstrate that it was unlikely that his presence with Gravely

and Philbrook was "mere coincidence." Id.

Under the second part of the test, whether the evidence

should have been excluded under Rule 403 because it was more

prejudicial than probative, we give "great deference" to the

district court's in-the-moment determination. Landry, 631 F.3d

at 604 (quoting United States v. Shinderman, 515 F.3d 5, 17

(1st Cir. 2008)). We have elsewhere held that "it is only unfair

prejudice which must be avoided." United States v. Rodríguez-

Estrada, 877 F.2d 153, 156 (1st Cir. 1989). We have found unfair

prejudice when the evidence "invites the jury to render a verdict

on an improper emotional basis." United States v. Varoudakis,

233 F.3d 113, 122 (1st Cir. 2000). Nothing in the government's

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questions to Blanchard appears to be inviting the jury to render

a verdict on an "emotional basis." Id. He testified on the stand

that he had nothing to do with Gravely's prostitution business,

and, in response, the government presented evidence that he had an

ongoing engagement with prostitution. This evidence was

admissible under Rule 404(b) and nothing particular to that

evidence strikes us as unfairly prejudicial under Rule 403.

IV. Pro Se Supplemental Brief Issues

Finally, we address the arguments Blanchard makes in his

pro se brief. Blanchard argues: (1) that evidence of intent was

insufficient under 18 U.S.C. § 2421; (2) that the trial court's

jury instructions were erroneous because they failed to require

proof that the appellant knew in advance that transportation in

interstate commerce was for an immoral purpose; and (3) that the

trial court erroneously denied a mistrial motion following the

alleged introduction of extrinsic evidence that Blanchard had been

previously convicted of a drug crime.

We find none of these arguments persuasive. First, the

witnesses' corroborated testimony provided sufficient evidence

that before Blanchard left Maine, he intended that the women

traveling with him to Boston would work as prostitutes. We must

read the evidence in the light most favorable to the verdict.

Savarese, 686 F.3d at 5. Read in that light, the evidence showed

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that in the time leading up to the trip to Boston Blanchard was

actively aiding Philbrook and M.J. to prostitute themselves. The

evidence also demonstrated that Blanchard, Gravely and the three

women travelled together from Maine to Boston and that once in

Boston they immediately attempted to engage the women in

prostitution, including attempting to post an ad on Backpage, going

to "walk the track," and providing advice to Howland on where to

walk and how to act in order to attract clients. In short, there

was sufficient evidence of intent for the jury to have convicted

Blanchard of aiding and abetting the transportation of individuals

across state lines for purposes of prostitution. See United

States v. Tavares, 705 F.3d 4, 17 (1st Cir. 2013) (The element of

intent "requires proof that 'criminal sexual activity [was] one of

the several motives or purposes . . . not a mere incident of the

trip or trips, but instead was at least one of the defendant's

motivations for taking the trip in the first place.'" (quoting

United States v. Ellis, 935 F.2d 385, 390 (1st Cir. 1991))).

Second, the trial court's jury instructions clearly

required the jury to find that Blanchard had the requisite intent

at the time of the transportation. The trial court instructed the

jury:

For you to find Mr. Blanchard guilty of
[transportation of an individual in interstate
commerce to engage in prostitution] . . . the
Government must prove each of the following

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 things beyond a reasonable doubt: First, that
Mr. Blanchard knowingly transported an
individual in interstate commerce; and second,
that at the time of such transportation Mr.
Blanchard intended the individual he
transported would engage in prostitution.
This instruction demands that the jury find beyond a reasonable

doubt that at the time of the transportation of the three women

Blanchard intended that the women would engage in prostitution.

We find no error in these instructions.

Finally, the district court correctly denied Blanchard's

motion for a mistrial made because Blanchard believed that the

jury heard improper extrinsic evidence about Blanchard's prior

drug dealing. Gravely testified that when Blanchard arrived in

Boston Blanchard said "[t]hat he knew a new way to make money

besides selling drugs." The testimony was ambiguous at best, as

Gravely had already testified that he himself had multiple

convictions for selling drugs. It is therefore not at all clear

that Gravely was testifying to Blanchard's own previous drug

convictions. Moreover, the trial judge offered to give the jury

a curative instruction, which defense counsel declined. If there

was any error at all, it certainly was not of a kind that would

merit a mistrial, which we have held "is a last resort that is

only ordered if the demonstrated harm cannot be cured by less

drastic means." United States v. De Jesús Mateo, 373 F.3d 70, 72

(1st Cir. 2004). The trial judge offered Blanchard a less drastic

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means, in the form of a curative instruction, which he declined.

He therefore can have no complaint that he was denied a more

drastic means in the form of a mistrial.

V. Conclusion

For the foregoing reasons, we affirm.

Affirmed.

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