In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2967
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R OGER L OUGHRY, also known as M AYORROGER,
Defendant-Appellant.
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.
A RGUED M AY 5, 2011 —D ECIDED O CTOBER 11, 2011
Before M ANION, W OOD , and W ILLIAMS, Circuit Judges,
W ILLIAMS, Circuit Judge. 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 depict-
ing sexual contact or other sexually explicit material
2 No. 10-2967
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 admit-
ting the evidence even though it was highly inflamma-
tory and had only minimal probative value. These
errors were not harmless. Therefore, we reverse.
I. BACKGROUND
This case involves defendant Roger Loughry’s participa-
tion 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
the government contends included Loughry
as “Mayorroger,” and two other people, “Dublhelix,”
and “Aurthurgery.” The five administrators had access
to the administrative control panel and could
No. 10-2967 3
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 ar-
eas. 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 pornogra-
phy consisting of the lascivious exhibition of the genitals of
minor girls.
In early September 2008, law enforcement agents exe-
cuted 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 “book-
marks” 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.
4 No. 10-2967
§ 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 inter-
ested 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
No. 10-2967 5
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 evi-
dence 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.
II. ANALYSIS
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).
6 No. 10-2967
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 “operat-
ing 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 admitted the evidence, including
not reviewing the “hard core” pornography found in
Loughry’s home computer before admitting it, not articu-
lating its reasoning under Rule 403, and ultimately striking
the wrong balance in its Rule 403 ruling.
Rule 414(a) provides that, “in a criminal case in
which the defendant is accused of an offense of child
molestation, evidence of the defendant’s commission
of another offense . . . of child molestation is admissible,
and may be considered for its bearing on any matter
to which it is relevant.” Fed. R. Evid. 414(a). The
term “child molestation” encompasses prior or different
No. 10-2967 7
conduct involving the distribution, advertising, or posses-
sion of child pornography. See Fed. R. Evid. 414(d).
Rule 403 requires the exclusion of relevant evidence
when its “probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury . . . .” Fed. R. Evid. 403. “Unfair preju-
dice . . . means an undue tendency to suggest decision
on an improper basis, commonly, though not
necessarily, an emotional one.” Advisory Committee’s
Notes on Fed. R. Evid. 403, cited approvingly in Old Chief
v. United States, 519 U.S. 172, 184-85 (1997).
Rule 414 constitutes an exception to the rule that evi-
dence of prior bad acts is not admissible to show a defen-
dant’s propensity to commit the offense charged.
See Rogers, 587 F.3d at 822-23 (discussing analogous
Rule 413). We recognize that there has been some confu-
sion regarding the application of Rule 403 to propensity
evidence that is admissible under Rule 414. See id.
But contrary to the government’s suggestion to the
district court, we have never intimated that Rule
403 applies in a “relaxed form” to admissibility determina-
tions under Rule 414.
What we have said is that Congress has determined “that
in a criminal trial for [a sexual offense], it is not improper
to draw the inference that the defendant committed this
sexual offense because he has a propensity to do so.” Id.
at 822. But “[e]ven if the evidence does not create unfair
prejudice solely because it rests on propensity, it may
still risk a decision on the basis of something like passion
or bias —that is, an improper basis.” Id. To mitigate
that risk, after a Rule 414 analysis, the district court
8 No. 10-2967
must carefully consider whether prior bad acts evidence
should be excluded pursuant to Rule 403. Id.
Along with several other circuits, we have stressed that
“Rule 403 remains an important safeguard against the
admission of prejudicial evidence” that is other-
wise admissible under Rule 414. Id. at 823; see also
United States v. LeMay, 260 F.3d 1018, 1026 (9th Cir.
2001) (“[T]here is nothing fundamentally unfair about
the allowance of propensity evidence under Rule 414 . . .
[a]s long as the protections of Rule 403 remain in place
to ensure that potentially devastating evidence of
little probative value will not reach the jury.”); United
States v. Castillo, 140 F.3d 874, 883 (10th Cir.
1998) (“[A]pplication of Rule 403 to Rule 414
evidence eliminates the due process concerns posed
by Rule 414.”). There should therefore be no question
that although evidence cannot be excluded under Rule
403 simply because it tends to show that the defendant
has a propensity to commit a sex offense, Rule 403 contin-
ues to rigorously apply to Rule 414 evidence.
1. Loughry’s Rule 403 Objection Preserved
We initially dispose of the government’s suggestion in
its brief that Loughry did not do enough to preserve
his Rule 403 objection to the “hard core” porno-
graphy found in his home. Loughry objected specifically
on Rule 403 grounds to all of the government’s
exhibits, including those exhibits that contained
“hard core” pornography. And the government
No. 10-2967 9
agreed during trial that Loughry had preserved his
Rule 403 objection:
[Loughry’s counsel]: One last point . . . [h]ow
would the Court prefer I preserve my objection?
The Court: You are . . . going to object to any
publication of the content of [several numbered
exhibits of pornography found in Loughry’s
home]; are you not?
[Loughry’s counsel]: Among other things.
...
[Government’s counsel]: [W]e will agree, Your
Honor, that he objected to the admission of the
child pornography contained on the computer at
the residence . . . the vids [sic] plus CD . . . [and
several other exhibits] to the extent that it is rele-
vant. Without needing to continue to do so, I think
he has laid that objection.
[Loughry’s counsel]: As long as I am covered, then
that is fine.
The government’s contention on appeal that Loughry
did not do enough to preserve his Rule 403 objection
has no merit.
2. Review of Evidence
Loughry contends that it was error for the district
court to fail to review the videos discovered in his
home before admitting them into evidence. The
10 No. 10-2967
court acknowledged that not having first-hand knowledge
of the contents of the contested evidence was problematic.
The court stated: “I guess I am at somewhat of a disadvan-
tage not knowing exactly what items and depictions, if
you will are on Government’s [exhibits].” But instead
of examining the photographs and videos for itself,
the court relied on the government’s description of
the contested evidence in making its decision under Rule
403.
At least one circuit has held that a district court’s failure
to review challenged evidence when considering
whether such evidence should be excluded under Rule
403 is error as a matter of law. See United States v.
Curtin, 489 F.3d 935, 958 (9th Cir. 2007) (en banc)
(“[W]e hold as a matter of law that a court does
not properly exercise its balancing discretion under
Rule 403 when it fails to place on the scales and
personally examine and evaluate all that it must
weigh [referring to stories of adults engaging in sexual
acts with children found on the defendant’s computer].
Relying only on the descriptions of adversary counsel
is insufficient to ensure that a defendant receives
due process and fair trial to which he is entitled under
our Constitution.”) (emphasis in original).
Our cases also emphasize that a district court, in exercis-
ing its discretion under Rule 403, must carefully
analyze and assess the prejudicial effect of challenged
evidence. United States v. Williams, 216 F.3d 611, 614-15
(7th Cir. 2000) (noting that the district court “engaged
in a careful analysis of the evidence the government
No. 10-2967 11
proffered”); United States v. Asher, 178 F.3d 486, 491-92
(7th Cir. 1999) (explaining, in response to the defen-
dant’s argument that the district court “merely
conducted a superficial review” of the challenged evi-
dence, that the court “took great care to analyze each
piece of proffered evidence . . . and clearly articulated its
reasoning for admitting certain evidence and
refusing other evidence”); United States v. Liefer, 778
F.2d 1236, 1241 (7th Cir. 1985) (“The trial court
must carefully assess all evidence offered by the govern-
ment . . . to ensure . . . [that it] has probative value that
is not substantially outweighed by the danger of
unfair prejudice to the defendant.”); United States v.
Brown, 688 F.2d 1112, 1117 (7th Cir. 1982) (explaining
that, contrary to the defendant’s contention that the
trial judge permitted “the wholesale admission” of chal-
lenged evidence, the “record show[ed] that each piece
of proffered evidence was carefully analyzed and
admitted only when it was found to be relevant”).
There may be cases where the probative value of
the evidence is so minimal that it will be obvious to
the court that the potential prejudice to the
defendant substantially outweighs any probative value
the evidence might have. See United States v. Gonzalez-
Flores, 418 F.3d 1093, 1098 (9th Cir. 2005) (“Where
the evidence is of very slight (if any) probative value,
it’s an abuse of discretion to admit it if there’s even
a modest likelihood of unfair prejudice or a small risk
of misleading the jury.”) (citation omitted). The
safest course, however, is for the court to review
the contested evidence for itself. In this case, relying on
12 No. 10-2967
the parties’ descriptions was insufficient. Few, if
any, details were provided to the court when it
was deciding whether to admit the evidence. The govern-
ment’s only description of the various challenged exhibits
was that some of them depicted pornography that
was similar to that on the Cache and that others depicted
“hard core” pornography.1 Based on that vague descrip-
tion, the court could not have properly weighed
the prejudicial impact of the challenged evidence
against whatever probative value the court believed
the evidence had.
Contrary to the government’s contention at oral argu-
m ent, the slightly more detailed narrative
description provided by the government’s witness
before the videos were shown to the jury (and after
the court had already decided to admit the evidence)
did not suffice either. For example, the government’s
witness stated that one of the videos depicted “[an]
adult male performing a sex act on [a] female minor.”
That explanation does not tell the court which acts
are shown in the video. While all depictions of an
adult engaging in sexual acts with a young child are bound
to be repulsive, the impact on the jury will depend
upon the nature and severity of the acts depicted.
1
The government told the court: “[Loughry] defined child
pornography as hard core stuff, sex acts. Well, guess what? He
has that stuff too. We need to be able to show that he has
stuff even he defines is illegal, because we have hard core videos
that are child pornography under his definition.”
No. 10-2967 13
The challenged videos include the kind of highly repre-
hensible and offensive content that might lead a jury
to convict because it thinks that the defendant is a
bad person and deserves punishment, regardless
of whether the defendant committed the charged
crime. Given the inflammatory nature of the evidence,
the district court needed to know what was in the photo-
graphs and videos in order for it to properly exercise
its discretion under Rule 403. Without looking at the videos
for itself, the court could not have fully assessed the
potential prejudice to Loughry and weighed it against
the evidence’s probative value. See Curtin, 489 F.3d at
958 (“One cannot evaluate in a Rule 403 context what
one has not seen or read.”). We therefore hold that, in
light of the evidence in this case, the district court
abused its discretion under Rule 403 when it failed
to review the challenged videos before they were admitted
in evidence.
3. Inadequacy of Explanation
The district court also erred in failing to explain how
it balanced the Rule 403 factors. During trial, the
court explained its decision not to exclude the
evidence under Rule 403 as follows: “[t]he Court does
look at the balancing test under 403 and finds that
even under that, [the challenged exhibits] indeed
[come] in.” The court later memorialized its decision in
a written order, but did not offer any additional explana-
tion, stating only: “the Court conducted the Rule
403 balancing test and concluded that the probative
14 No. 10-2967
value of the Government’s evidence was not substantially
outweighed by the danger of unfair recitation.”
A pro-forma recitation of the Rule 403 balancing test
does not allow an appellate court to conduct a
proper review of the district court’s analysis. In United
States v. Ciesiolka, we held that a district court erred
when it failed to articulate its reasoning in considering
a Rule 403 challenge. 614 F.3d 347, 357 (7th Cir. 2010).
We said:
[T]he district court abused its discretion in failing
to propound reasons for its conclusion that the
probative value of the [disputed evidence] was not
substantially outweighed by the risk of unfair
prejudice. We have reviewed the transcript . . . but
could find no portion within it where the court
explained its bare-bones conclusion that “the
probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice.”
Id. Here, similarly, the court erred in not explaining why
it believed that the probative value of the challenged
exhibits was not outweighed by the risk of unfair preju-
dice. See id.
4. Probative Value Substantially Outweighed by
Risk of Unfair Prejudice
Loughry also contends that the district court substan-
tively erred in finding that the challenged evidence’s
probative value was not substantially outweighed by
the risk of unfair prejudice. Loughry concedes that
No. 10-2967 15
the pornography found in his home had some probative
value. The government explained to the court that
it anticipated Loughry would claim that he was
only interested in the adult pornography displayed in
the Cache. We agree that Loughry’s possession of a per-
sonal collection of child pornography in his home
was relevant to show that his real purpose for joining
the Cache was to access child pornography and not
adult pornography. Rogers, 587 F.3d at 821 (explaining
in the context of analogous Rule 413 that, “[p]rior instances
of sexual misconduct with a child victim may establish
a defendant’s sexual interest in children and thereby
serve as evidence of the defendant’s motive to commit
a charged offense involving the sexual exploitation
of children.”) (internal quotation marks and citation
omitted).
However, as Loughry points out, the probative value
of the pornography found in his hom e was
somewhat reduced because the government charged
him with distribution, and not possession, of child pornog-
raphy. That Loughry joined the Cache to access
child pornography only weakly supports the inference
that he intended to also distribute that pornography.
This conclusion is underscored by the fact that only 100
of the 536 users of the Cache ever advertised or distributed
child pornography. Moreover, none of the images
that Loughry was charged with distributing were
posted by him, and Loughry was not accused of distribut-
ing or posting any of the pornography found in his home.
The probative value of the “hard core” child pornogra-
phy, in particular, was further diminished because it was
16 No. 10-2967
unlike the pornography that was displayed in the Cache.
Cf. United States v. Lloyd, 71 F.3d 1256, 1264 (7th
Cir. 1995) (“[W]hen evidence is offered to prove intent,
the degree of similarity is relevant only insofar as
the acts are sufficiently alike to support an inference
of criminal intent . . . .”) (quoting United States v. York, 933
F.2d 1343, 1351 (7th Cir. 1991); see United States v.
Guardia, 135 F.3d 1326, 1331 (10th Cir. 1998) (noting
that “the similarity of the prior acts” to the acts at issue
in the case is a factor to be considered in determining
their probative value). The scope of the conspiracy in
this case was limited to the distribution of child pornogra-
phy found in the Cache. Since the Cache had
rules specifically banning “hard core” pornography
and the government does not suggest that these rules
were violated, Loughry’s possession of such pornography
was only marginally, if at all, relevant to whether he
intended to join a conspiracy to distribute the kind of
pornography displayed in the Cache.
During trial, the government explained to the judge
that Loughry had stated that he would leave other
boards when he realized that they contained “hard core”
pornography. So, the government argued, it wanted
to show that Loughry also possessed “hard core” pornog-
raphy because “we need to be able to show he has
stuff even he defines as illegal.” But Loughry never made
this argument at trial. Loughry’s statement, made at
the time of his arrest, was that “his only function on
the Cache was banning people for posting child pornogra-
phy.” Loughry also told a government agent in response to
the question, “How do you define ‘child pornography’?”
No. 10-2967 17
that he thought child pornography consisted of “images
of young kids, male and female, naked, doing sexual
acts, under the age of 18.” The jury heard those state-
ments only because the government introduced them over
Loughry’s objection.
For the government to tell the jury about Loughry’s
statements over his objection and then argue that the
“hard core” pornography was necessary to rebut those
statements appears to be nothing more than a backdoor
attempt to bring in the uncharged “hard core” child
pornography by manufacturing a relevant purpose for
it. Even taking the government at its word, it did not
need the “hard core” pornography because the “lascivious
exhibition” pornography Loughry was charged
with distributing is plainly illegal. Loughry did
not attempt to argue otherwise to the jury. Loughry’s
“personal” definition of “child pornography” simply
had no bearing on the case. If the government wanted
to hold Loughry accountable for possessing “hard core”
child pornography, then it should have charged him
with possession of the videos and photographs it discov-
ered in his home, instead of trying to bring in that evidence
in its case for distribution of the “lascivious exhibition”
pornography found in the Cache.
The minimal probative value of the “hard core” pornog-
raphy was further reduced because the government
had available to it a substantial amount of pornography
from Loughry’s home that was similar to the “lascivious
exhibition” pornography Loughry was charged
with distributing. See Old Chief v. United States, 519 U.S.
18 No. 10-2967
172, 182-84 (1997) (availability of other means of proof is
an appropriate factor to consider in determining the
relevance of an item of evidence).
In contrast, the risk of unfair prejudice to Loughry from
the admission of the “hard core” pornography was sub-
stantial. Evidence is unduly prejudicial if it creates
a genuine risk that the emotions of the jury will be excited
to irrational behavior, and the risk is disproportionate
to the probative value of the offered evidence.
See Gonzalez-Flores, 418 F.3d at 1098. The “hard core” video
excerpts shown to the jury in this case displayed
men raping and ejaculating in the genitals of prepubescent
girls, as well as young girls engaging in sexual acts
with each other. Such displays have a strong tendency to
produce intense disgust. See Curtin, 489 F.3d at
964 (Kleinfeld, J., concurring) (“Perverse sexual fantasies
generate . . . intense disgust.”). The highly disturbing
content of the videos would unquestionably have
made Loughry appear more despicable to the jury than
the “lascivious exhibition” pornography that Loughry was
charged with distributing. See id. at 957 (stories of child
engaging in oral copulation and masturbation with dog
were “dangerously prejudicial”); United States v.
Grimes, 244 F.3d 375, 384-85 (5th Cir. 2001) (introduction
of narratives of violent rape involving young girls was
unfairly prejudicial because the defendant had been
charged only with possessing non-violent “lascivious
exhibition” child pornography and the government
had other “lascivious exhibition” pornography it
could have used); United States v. Merino-Balderrama,
146 F.3d 758, 763 (9th Cir. 1998) (allowing the jury to
No. 10-2967 19
view more than ten minutes of a film of children engaged
in graphic sexual conduct with other children and
with adults was unfairly prejudicial given that the defen-
dant stipulated to the movie’s contents and the govern-
ment could have shown the jury the movie’s cover);
United States v. Harvey, 991 F.2d 981, 996 (2d Cir.
1993) (admission of testimony about videos depicting
people “engaging in bestiality and sadomasochism”
created “disgust and antagonism” toward the defendant
and resulted in “overwhelming prejudice” against him).
Further increasing the risk of prejudice to Loughry, the
government introduced the “hard core” pornography
during the testimony of its final witness, shortly before
the jury was excused to deliberate. The jury therefore
entered its deliberations under the emotional impact of
the uncharged videos, which were much worse
than anything in the Cache. Given the highly inflammatory
content of the “hard core” pornography in comparison
to its slight probative value, we find that the district court
abused its discretion in concluding that its probative
value was not substantially outweighed by the risk of
unfair prejudice.
B. Admission of “Hard Core” Pornography Not Harm-
less Error
“The test for harmless error is whether, in the mind
of the average juror, the prosecution’s case would
have been significantly less persuasive had the improper
evidence been excluded.” United States v. Blanchard,
542 F.3d 1133, 1151 (7th Cir. 2008) (quoting United States
20 No. 10-2967
v. Emerson, 501 F.3d 804, 813 (7th Cir. 2007)). “An error
is harmless if the untainted incriminating evidence
is overwhelming.” United States v. Macey, 8 F.3d 462,
467 (7th Cir. 1993) (quoting United States v. Manganellis,
864 F.2d 528, 539 (7th Cir. 1988)).
We recently stated that “a [district court’s] ‘perfunctory’
consideration of [the Rule 403 test] . . . may in itself be
grounds for reversal.” Ciesiolka, 614 F.3d at 357 (dis-
cussing the Rule 403 prong of Rule 404(b)). And although
a limiting instruction may in certain cases cure the preju-
dice to a defendant, see id. at 358, in this case neither
party asked for an instruction when the objectionable
videos were introduced, and the district court did
not provide one. The court gave a limiting instruction
during its charge to the jury, but that instruction
was boilerplate and did not remind the jury that it
could convict only for the offenses charged in the indict-
ment. In light of the highly prejudicial nature of the
“hard core” pornography and its minimal probative value,
we cannot conclude that the prejudice to Loughry was
cured by a single, bare bones instruction. See id. at 358-
59 (prejudice not cured by single boilerplate limiting
instruction).
Further, while there may have been enough evidence
to convict Loughry, the evidence was far from “over-
whelming,” as the government contends. The government
obtained a lot of evidence from the Cache,
including several written posts from Loughry thanking
other members for posting images of child pornography.
Even so, the government could not identify a single
No. 10-2967 21
image of child pornography actually posted by Loughry.
Since only about 100 of the Cache’s 536 members
actually advertised or distributed child pornography,
the jury could have concluded that Loughry
merely downloaded pornography posted by others.
And while Loughry’s status as an administrator of
the Cache helps to suggest that he also intended to distrib-
ute child pornography, the government does not argue that
being an administrator on such a site necessarily
means that a person is guilty of distributing or advertising
child pornography or of conspiring to do so. In light
of the nature of the government’s case and the highly
inflammatory nature of the “hard core” pornography,
the admission of the “hard core” pornography was not
harmless.
III. CONCLUSION
The judgment of the district court is REVERSED and this
case is R EMANDED for further proceedings consistent with
this opinion.
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