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United States v. Blanchard

United States Court of Appeals, First Circuit

August 8, 2017

FRITZ BLANCHARD, Defendant, Appellant.


          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.

          Before Torruella, Lynch, and Barron, Circuit Judges.

          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. Background[1]

         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 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"), a website often used to advertise escort services. Cf. Jane Doe No. 1 v., 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 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 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 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 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. ...

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