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Conviction Reversed: Roger Loughry Wins FRE 403 Objection Appeal

By Robyn Hagan Cain on October 14, 2011 | Last updated on March 21, 2019

The number of child pornography appeals in the appellate courts is disturbing, and writing about the perpetrators was killing our soul, so we consciously decided to avoid the topic for a while.

This Seventh Circuit Court of Appeals reversal of a child pornography conviction, however, warranted a lapse in our topic moratorium.

Roger Loughry, known online as Mayorroger, was convicted of advertising, distributing, and conspiring to advertise and distribute "lascivious exhibition" child pornography through an online depository. Loughry was not charged with possession of child pornography.

At Loughry's trial, the government offered evidence that Loughry had participated in the depository community since its early stages, and had even acted as an administrator. Then, over Loughry's Federal Rule of Evidence 403 objection, the district court allowed the government to show the jury several uncharged "hard core" pornorgraphy videos from his home. The videos, recovered by police from Loughry's home, showed girls being forced to engage in sexual acts with one another and adult males raping prepubescent girls.

Illegal? Sure. Disturbing? No doubt. Relevant? No.

Keep in mind, the Seventh Circuit described these as "uncharged" videos because Loughry had not been charged with possession of child pornography. Since the videos in question depicted sexual contact, they were prohibited from the depository and outside the scope of the trial.

The Seventh Circuit Court of Appeals concluded 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.

Since these errors were not harmless, the circuit court reversed Loughry's conviction.

When we finish reading child pornography cases, we're usually disgusted with defendant. Today, we're disgusted with the defendant, the prosecutor, and the district judge. It's a bit much on a Friday.

Guess what, prosecutors? Juries want to convict child porn perpetrators, and it seems like you had the necessary evidence against this guy. If you want to show the video, tack on the possession charge and the video will be relevant to the case.

And district judges? Please don't make us read an appeal based on a 403 objection that wouldn't survive a high school mock trial competition. We appreciate your zeal to put this guy away, but overruling Roger Loughry's 403 objection to admit the videos in this case just begs for reversal.

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