United States District Court, D. New Hampshire
For Jonathan Tanguay, Defendant: Behzad Mirhashem, LEAD ATTORNEY, Jeffrey S. Levin, Federal Defender's Office, Concord, NH.
For USA, Plaintiff: Nick Abramson, Seth R. Aframe, U.S. Attorney's Office (NH), Concord, NH.
Joseph N. Laplante, United States District Judge.
A jury in this court recently found the defendant, Jonathan Tanguay, guilty of
one count of possessing child pornography. See 18 U.S.C. § 2252A(a)(5)(B). After receiving a report from a visitor to Tanguay's home tat Tanguay had displayed images of child pornography on his laptop computer, the New Hampshire State Police secured a warrant to search the home for those materials. This search allegedly turned up images of child pornography on the computer's hard drive, as well as on an external hard drive and a compact disc also seized from Tanguay's home. See United States v. Tanguay, 907 F.Supp.2d 165 (D.N.H. 2012) (denying Tanguay's motion to suppress the fruits of the search).
This court conducted two jury trials on the charge against Tanguay: one in October 2013, which ended in a conviction, and an earlier trial in March 2013, which ended in a mistrial. Prior to the first trial, Tanguay filed a motion in limine seeking to exclude various items of evidence. See L. Cr. R. 12.1(c). This court granted the motion in part and denied it in part in a written order. United States v. Tanguay, 895 F.Supp.2d 284, 2012 DNH 197 (the " Prior Order" ). Before the second trial, Tanguay filed two more motions in limine, seeking to exclude various other items of evidence, much of which the prosecution had not sought to introduce in the first trial. This evidence consisted principally of other materials allegedly found on Tanguay's computer, including (1) stories graphically describing sexual encounters between male adults and male children, (2) sexually suggestive, but not necessarily pornographic, photographs of either male children or young-looking male adults, located in a folder called " On-Line Friends," (3) pornographic photographs of an 18-year old male identified as " Jared" that Tanguay had shown to a witness who testified at trial, and (4) " bookmarks" to websites with names that suggest sexually explicit material featuring male children. 
Tanguay argued that, because his possession of these materials amounts to " other acts," this evidence is inadmissible, Fed.R.Evid. 404(b)(1), and that, in any event, its probative value is substantially outweighed by the danger of unfair prejudice, Fed.R.Evid. 403. The prosecution, however, argued that this evidence was admissible to show, among other things, Tanguay's knowledge that he possessed the child pornography allegedly found on his computer, Fed.R.Evid. 404(b)(2), and that its probative value on that point--which was a crucial issue at trial--outweighed any risk of unfair prejudice under Rule 403.  The court heard oral argument on Tanguay's motions prior to trial, then announced its rulings from the bench during a break in the proceedings before the jury, just after trial had commenced. This written order serves to explain those rulings in greater detail.
Under Rule 404(b), " [e]vidence of a crime, wrong, or other act is not admissible to prove a person's character to show that on a particular occasion the person acted in accordance with the character," but " may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." And Rule 403 allows the court to " exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice."
Synthesizing these rules, the Court of Appeals has " adopted a two-part test to determine the admissibility" of evidence of the defendant's other acts. United States v. Aguilar-Aranceta, 58 F.3d 796, 798 (1st Cir. 1995).
First, the trial judge must determine whether the evidence in question is offered for any purpose other than solely to prove that the defendant had a propensity to commit the crime in question[,] [t]hat is, . . . has some 'special' probative value. Prior bad acts may be 'specially relevant' if they are probative of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
If the judge is satisfied that the proffered evidence has 'special relevance,' the focus shifts to the second part of the test, which applies Rule 403 to determine whether the probative value of the evidence is ...