United States v. Nelson

KLEINFELD, Circuit Judge,

dissenting.

I respectfully dissent.

The majority memorandum disposition concedes that “there is some force” to appellants’ argument that the 14,000 images should not have been admitted, “at least without a more precise explanation from the prosecutor on need and a plan to minimize prejudice.” 1 The majority nevertheless concludes that any error was harmless, because “hundreds, if not more than one thousand,” of the pictures portrayed “possible minors in sexually suggestive and explicit poses.” 2

My view is that admission of all these pictures was error, and that the error was not harmless. A high proportion of the 14,000 pictures admitted are pornography, but they are male homosexual pornography, not child pornography. The physical disgust likely to have been engendered in some jurors by the prosecutor’s drenching them with gay porn would tend naturally to interfere with their analytic abilities.

We should apply People of the Territory of Guam v. Shymanovitz 3 to this case, and reverse. Shymanovitz held that admission of homosexual pornography was so preju *395 dicial as to outweigh the probative value in a homosexual conduct with children case, because “[generally, ‘[e]vidence of homosexuality is extremely prejudicial.’ ” 4 Shymanovitz held that when evidence of homosexuality is improperly admitted, “[w]e must reverse the defendant’s conviction unless it is more probable than not that the prejudice resulting from the error did not materially affect the verdict.” 5 Shymanovitz arguably could be distinguished because in that case homosexual pornography was used to support an inference of homosexual conduct, and here homosexual pornography was used to support an inference of child pornography. But such a distinction would be unpersuasive, because the inference disallowed under Shymanovitz is not much different, as a practical matter, from the inference suggested here. After all, a collection of Playboy would not suggest that the possessor probably possessed child pornography.

I am unable to conclude that the error probably did not affect the verdict. Jurors, if they could get past their disgust and look, could not have reasonably doubted that there was child pornography on the computer. But to convict either defendant, they had to conclude beyond a reasonable doubt that that particular defendant knowingly possessed the pornography. 6 There was a real issue about this. One person owned the computer, both used it, and each presented evidence implying that the other man was more likely the knowing downloader and possessor of the child pornography. Each blamed the other in closing argument. The logical possibilities were that Houghton knowingly possessed the critical pictures, that Nelson did, or that they both did. Both could be convicted only if the jury could rule out the first two possibilities beyond a reasonable doubt. Had it not been for the flood of highly prejudicial male homosexual pornography, the jury might well have had a reasonable doubt as to Houghton, Nelson, or perhaps even have concluded that it could not be sure which of them was the dirty picture collector. But after concluding that they were both disgusting, as the flood of prejudicial evidence seems designed to have assured, it is doubtful the jurors were in a mood to draw fine distinctions. This error is compounded by the error in admitting lay opinion testimony on age, which afforded the jurors an excuse not to examine the photos and form their own judgments on age.

The prosecutor here faced a common dilemma in the two defendant case: each defendant tried to hang all the blame on the other. Such situations create a risk that the jury will conclude “we’re sure the crime was committed, but we’re not sure which one did it, so we can’t conclude beyond a reasonable doubt that either one did it, though we can conclude beyond a reasonable doubt that one of the two did it.” There are a lot of ways around this dilemma, both fair and foul. Flooding the jury with so much prejudicial evidence that they don’t much care which defendant did it is among the foul ways and denies each defendant a fair trial.

. Majority at 389.

. Majority at 389.

. 157 F.3d 1154 (9th Cir.1998).

. Id. at 1160 (quoting United States v. Gillespie, 852 F.2d 475, 479 (9th Cir.1988)).

. Id. (quoting United States v. Echavarria-Olarte, 904 F.2d 1391, 1398 (9th Cir.1990)).

. 18 U.S.C. § 2252A(a)(5).