In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2967

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROGER LOUGHRY, also known as MAYORROGER,

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.

ARGUED MAY 5, 2011—DECIDED OCTOBER 11, 2011

Before MANION, WOOD, and WILLIAMS, Circuit Judges, 

WILLIAMS, Circuit Judge. Roger Loughry was convicted of

advertising, distributing, and conspiring to advertise and

distribute child pornography through an online depository called the “Cache.” Only “lascivious exhibition”

pornography, which included the exhibition of

girls’ genitals, was permitted on the Cache. Images depicting 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 admitting the evidence even though it was highly inflammatory and had only minimal probative value. These

errors were not harmless. Therefore, we reverse.

I. BACKGROUND

This case involves defendant Roger Loughry’s participation 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 cont ends inc luded 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 areas. 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 pornography consisting of the lascivious exhibition of the genitals of

minor girls.

In early September 2008, law enforcement agents executed 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 “bookmarks” 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 interested 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 evidence 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 “operating 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 articulating 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 possession 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 prejudice . . . 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 evidence of prior bad acts is not admissible to show a defendant’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 confusion 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 determinations 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 otherwise 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 continues 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” pornography 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 relevant. 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 disadvantage 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 exercising 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 defendant’s argument that the district court “merely

conducted a superficial review” of the challenged evidence, 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 government . . . 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 challenged 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. GonzalezFlores, 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 government told the court: “[Loughry] defined child 1

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.”

the parties’ descriptions was insufficient. Few, if

any, details were provided to the court when it

was deciding whether to admit the evidence. The government’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. Based on that vague descrip- 1

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 argument, the s lightly mo re detailed narrativ e

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.
No. 10-2967 13

The challenged videos include the kind of highly reprehensible 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 photographs 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 explanation, 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 prejudice. See id.

4. Probative Value Substantially Outweighed by

Risk of Unfair Prejudice

Loughry also contends that the district court substantively 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 personal 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 home was

somewhat reduced because the government charged

him with distribution, and not possession, of child pornography. 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 distributing or posting any of the pornography found in his home.

The probative value of the “hard core” child pornography, 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 pornography 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” pornography 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 pornography.” 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 statements 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 discovered 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” pornography 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 substantial. 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 defendant stipulated to the movie’s contents and the government 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 Harmless 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 (discussing the Rule 403 prong of Rule 404(b)). And although

a limiting instruction may in certain cases cure the prejudice 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 indictment. 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 “overwhelming,” 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 distribute 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 REMANDED for further proceedings consistent with

this opinion.

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