United States Court of Appeals 

For the First Circuit 

No. 15-1649 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

FRITZ BLANCHARD, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. Nancy Torresen, U.S. District Judge] 

Before 

Torruella, Lynch, and Barron, 

 Circuit Judges. 

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. 

August 8, 2017 
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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. Background1

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 

 

1 "We rehearse the pertinent facts in the light most agreeable to 

the verdict, deferring some details to our analysis of the issues 

raised on appeal." United States v. Savarese, 686 F.3d 1, 5 

(1st Cir. 2012) (citation omitted). 
-3- 

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.com ("Backpage"), a 

website often used to advertise escort services. Cf. Jane Doe 

No. 1 v. Backpage.com, 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 
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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 

 

2 There was conflicting testimony given as to the reason for this 

trip. Gravely testified that they decided to travel to Boston 

because business was slow in Portland. Philbrook testified that 

the purpose of the trip was actually to go to Miami to pick up a 

woman who had made money for Gravely as a prostitute and that 

Boston was merely a stopping over point. Blanchard testified that 

Gravely was going on a trip and he merely hitched a ride to Boston. 
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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 
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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 
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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. See United States v. Browne, 834 F.3d 403, 409 

(3d Cir. 2016) (starting inquiry into authenticity by first 

examining relevance). 

Evidence of authenticity may consist of "direct 

testimony of either a custodian or a percipient witness." 

Paulino, 13 F.3d at 23; see also Fed. R. Evid. 901(b)(1). This 

evidence is extrinsic to the document or item itself. See, e.g., 

United States v. Appolon, 715 F.3d 362, 371-72 (1st Cir. 2013) 

(employee could authenticate files because she updated and 

maintained them); United States v. Landrón-Class, 696 F.3d 62, 69 

(1st Cir. 2012) (doctor authenticated prescriptions he made 

himself). It can also come from elements of the document itself, 

such as "[t]he appearance, contents, substance, internal patterns, 
-8- 

or other distinctive characteristics of the item, taken together 

with all the circumstances." Fed. R. Evid. 901(b)(4); see also 

Paulino, 13 F.3d at 23. 

The standard the district court must apply in evaluating 

a document's authenticity is whether there is "enough support in 

the record to warrant a reasonable person in determining that the 

evidence is what it purports to be." Paulino, 13 F.3d at 23. 

This standard does "not require the proponent of the evidence to 

rule out all possibilities inconsistent with authenticity." 

Holmquist, 36 F.3d at 168. "Because rulings of this stripe involve 

the exercise of the district court's sound discretion, we review 

them only for mistake of law or abuse of that discretion," Paulino, 

13 F.3d at 23, unless the ruling was unobjected-to below, in which 

case we review for plain error, Savarese, 686 F.3d at 12. 

Mindful of these precepts, we turn to the ads in 

question. The government first mentioned the ads in its opening 

statement when it told the jury that "[y]ou'll see the ad that 

they posted for Alisha Philbrook," and, with regards to M.J., 

"[y]ou'll see the ads they posted." Thus, in the beginning the 

government claimed that it would introduce the actual ads posted 

on March 13 in Bangor, Maine and March 27 in Portland, Maine ("the 

Original ads"). 
-9- 

Ultimately the government introduced two documents 

purporting to be these ads. Government's Exhibit 1 ("Exhibit 1") 

was a Backpage ad for Philbrook that was admitted during Gravely's 

testimony. Gravely identified the exhibit as an ad that Blanchard 

helped him to prepare and post on March 13 in Bangor, Maine. He 

stated that he took the pictures for the ad at the Motel 6 in 

Bangor, after which Blanchard showed him how to post them in an ad 

on Backpage. Defense counsel objected to admission of the ad 

because, although Gravely testified that it was created and posted 

on March 13 in Bangor, Maine, the actual ad the government sought 

to admit into evidence contained information from Backpage 

indicating that it was created on March 23 and posted on March 27 

in Portland, Maine.3 In sidebar the government's attorney stated 

that the government had subpoenaed records from Backpage and that 

Exhibit 1 is the ad that they received. The government's attorney 

told the trial judge that Backpage had explained that "when an ad 

is posted more than one time they don't keep every single iteration 

 

3 The government argues that Blanchard did not preserve an 

objection to the authenticity of Exhibit 1. At trial, Blanchard's 

attorney objected when the government sought to introduce 

Exhibit 1, pointing to the same discrepancies between Gravely's 

testimony and the document itself that he now raises before us. 

"[O]bjections to evidentiary proffers must be reasonably specific 

in order to preserve a right to appellate review." Holmquist, 

36 F.3d at 168. Blanchard's arguments that there were 

discrepancies between Gravely's testimony and Exhibit 1 are 

adequate to preserve his objection. 
-10- 

of the ad."4 The government further argued that Exhibit 1 is 

relevant because it demonstrated that Philbrook was working as a 

prostitute in Maine prior to the trip to Boston and that Blanchard 

facilitated that work by helping post the ad. The government, the 

proponent of the exhibit, therefore appears to have modified the 

claim made in its opening statement and ultimately argued that 

Exhibit 1 was a Backpage ad created and posted in Maine prior to 

the trip to Boston. Accepting this argument, the judge ruled that 

the discrepancy in dates and locations went to the weight the 

evidence should receive rather than its admissibility and admitted 

the ad into evidence. 

Government's Exhibit 2 ("Exhibit 2") was similarly a 

Backpage ad admitted during Gravely's testimony. This ad 

contained pictures Blanchard took of M.J. at the Travelodge in 

Portland, Maine on March 27. Gravely was present both when the 

pictures were taken and when the ad was created that same day. 

Blanchard again objected that there were material differences 

between the physical ad that the government sought to admit into 

evidence and Gravely's testimony -- namely, the date of posting 

(March 27, according to Gravely's testimony, whereas the ad itself 

indicated that it was posted on March 31) and the location of its 

 

4 The government did not present any documentation from Backpage 

to verify this statement. 
-11- 

posting (Portland, Maine, according to Gravely's testimony versus 

Quincy, Massachusetts, according to the ad).5 The district court 

stated that there was an adequate foundation "to establish that 

certainly these pictures are part of the ad that he did post on 

[March 27]." The district court requested a foundation as to the 

text before it would be admitted, but ultimately it again held 

that any discrepancies went to weight rather than admissibility. 

On this basis Exhibit 2 was admitted into evidence. 

We find that it was not an abuse of discretion for the 

district court to admit Exhibit 1 as a Backpage ad that was created 

and posted in Maine prior to the trip to Boston. Moreover, even 

if the discrepancies in Exhibit 1 did sufficiently undermine this 

claim, additional evidence at trial further supported the 

authenticity of Exhibit 1. United States v. Espinal-Almeida, 699 

F.3d 588, 609 (1st Cir. 2012) ("[I]f evidence is admitted 

prematurely, a new trial is not warranted when later testimony 

cures the error."). After Exhibit 1 was admitted, Gravely further 

testified that Exhibit 1 was reposted in Portland on March 27 after 

the trio moved there from Bangor, thus explaining the date and 

location of posting listed on Exhibit 1. In addition, Philbrook 

 

5 The government suggested during cross-examination of Blanchard 

that Exhibit 2 was reposted in the Boston area on March 31, but 

Blanchard was not charged with any offense in connection to this 

and there was no direct testimony to that effect. 
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testified that Gravely took pictures of her in the Motel 6 in 

Bangor, Maine, that the pictures in Exhibit 1 were some of those 

pictures, and that she later saw customers in the Motel 6.6 

Howland testified that during the trip to Boston she saw Philbrook 

and M.J. looking at a webpage that she later realized was Backpage. 

She later found Exhibits 1 and 2 on her phone and showed them to 

a Boston police officer who picked her up at the hotel. Mark 

Keller, a Portland police officer, testified that Howland showed 

him Exhibit 1 on her cell phone when he interviewed her upon her 

return to Portland on March 29. Keller further testified that 

when Howland showed him the ad he recognized it as one he had seen 

in the previous week during one of his daily searches of Backpage 

escort ads. Keller saw that there was a second ad linked to the 

 

6 The defendant argues that Philbrook's testimony that the exhibit 

was not identical to the Original ad, that that one had more 

pictures and a different sales pitch, suggests that the document 

was not properly authenticated. First, we note that the exhibit 

had already been admitted at this point in the trial, so if 

Blanchard wanted to argue that Philbrook's testimony undermined 

the authenticity of the exhibit the best course would have been to 

renew his objection. Having failed to do so we are left to query 

whether it was plain error for the district court to allow the 

evidence to remain admitted after it heard Philbrook's testimony. 

We do not find that it was. Philbrook conceded that Exhibit 1 was 

an ad for prostitution that contained pictures taken of her by 

Gravely in Blanchard's presence on March 13. Moreover, she states 

that the two did create an ad on that date and that as a result of 

the ad she subsequently met with customers at the same motel. 

Therefore the ad admitted into evidence remained relevant and 

authenticated in crucial respects. 
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first and was able to go on Backpage and find Exhibits 1 and 2 

"live" (meaning, anyone searching Backpage, whether police 

officers or potential clients, would find them posted). 

 The duty of the trial court is to determine if a 

reasonable person could decide that the ads are what they purport 

to be (in the case of Exhibit 1, a Backpage ad of Philbrook created 

in Maine and posted prior to the trip to Boston). Holmquist, 

36 F.3d at 164. Gravely's testimony as to the ads' content is 

sufficient to create this foundation. It is for the jury to weigh 

the impact of Gravely's background and cooperation with the 

government in deciding whether the ads were in fact posted on the 

dates and at the locations alleged by Gravely. Id. 

 Exhibit 2 presents a somewhat more complicated fact 

pattern, however, because Gravely could not explain the 

discrepancies between what he knew about when and where the ad was 

created and the date and location of posting evident on the 

exhibit. Indeed, he was directly asked by the government "do you 

know whether [Blanchard] ever reposted the Backpage ad for M.J.?" 

and he responded that he did not know. There was additional 

evidence that Exhibit 2 was originally created and posted in Maine, 

however. Mark Keller, the Portland police officer, testified that 

he recognized the background of the pictures taken in Exhibit 2 as 

being the Travelodge in Portland, Maine. Moreover, Chris 
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Fitzpatrick of Homeland Security testified that included with the 

ads subpoenaed from Backpage were the IP addresses used to post 

the ads. From the IP addresses listed on Exhibit 2 he was able 

to determine that the ad was originally posted from the Travelodge 

in Portland, Maine. Taken together, this testimony provides 

sufficient evidence for a reasonable person to conclude that the 

Exhibit 2 was a Backpage ad that was created and posted in 

Portland, Maine prior to the trip to Boston. Moreover, even 

assuming, arguendo, that there was an error in admitting Exhibit 2, 

the extensive evidence against Blanchard, including the testimony 

of Gravely, Philbrook and Howland corroborated by Keller and 

Fitzpatrick, was sufficient to render the admission of these two 

exhibits harmless. United States v. Ladd, 885 F.2d 954, 957 (1st 

Cir. 1989) ("[A] new trial is unnecessary if it can be said 'with 

fair assurance, after pondering all that happened without 

stripping the erroneous action from the whole, that the judgment 

was not substantially swayed by the error.'" (quoting Kotteakos v. 

United States, 328 U.S. 750, 765 (1946))). 

 Blanchard points to our previous case law finding proper 

authentication, to suggest, inter alia, that someone with 

knowledge of why there were the discrepancies in the ads needed to 

testify in order to authenticate them. Savarese, 686 F.3d at 10-

11; Espinal-Almeida, 688 F.3d at 609-10; and United States v. Ladd, 
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885 F.2d 954, 956-57 (1st Cir. 1989). On the facts of this case 

we are not prepared to say that the government was required to 

produce such testimony. The cumulative evidence concerning the 

ads from Gravely, Philbrook, Howland, Keller and Fitzpatrick 

provided sufficient evidence to authenticate the ads as Backpage 

ads that were created in Maine prior to the trip to Boston. 

 More to the point, unlike the defendants in Saverese, 

Espinal-Almeida and Ladd, who each argued that the evidence in 

question (photocopies of false identifications, a GPS device and 

a blood sample, respectively) was subject to falsification, 

Blanchard makes no such argument here. In fact, he does not 

explain why this court should require expert testimony to explain 

the discrepancies except to state that without such testimony there 

is insufficient evidence that the ads are what they purport to be. 

He does not, for example, make a chain of custody argument, such 

as was made in Ladd or in Espinal-Almeida. 885 F.2d at 956-57; 

699 F.3d at 609-10. Such an argument only applies when the item 

in question is not readily identifiable (such as a vial of blood 

as in Ladd or a GPS device as in Espinal-Almeida). See United 

States v. Luna, 649 F.3d 91, 103 (1st Cir. 2011) ("[E]vidence 

. . . is properly admitted if it is readily identifiable by a 

unique feature or other identifying mark. On the other hand, if 

the offered evidence is of the type that is not readily 
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identifiable or is susceptible to alteration, a testimonial 

tracing of the chain of custody is necessary." (quoting United 

States v. Anderson, 452 F.3d 66, 80 (1st Cir. 2006))). The ads 

here, however, were easily distinguishable such that Gravely could 

point to material differences between his memory of the Original 

ads and Exhibits 1 and 2.7

 

7 Because Gravely was present at the ads' creation and testified 

to their content, this case is distinguishable from those found in 

other circuits where the courts have failed to uphold the 

authentication of digital evidence and renders it more closely 

analogous to those instances where our sister circuits have upheld 

the admission of evidence obtained from the internet. Compare 

United States v. Vayner, 769 F.3d 125, 131 (2d Cir. 2014) 

(overturning admission of a webpage when the government was unable 

to present testimony of anyone with knowledge as to who in fact 

created the webpage) and United States v. Jackson, 208 F.3d 633, 

638 (7th Cir. 2000) (affirming exclusion of website postings where 

there was no evidence presented as to who created the postings), 

with United States v. Needham, 852 F.3d 830, 836 (8th Cir. 2017) 

(holding that "[e]xibits depicting online content may be 

authenticated by a person's testimony that he is familiar with the 

online content and that the exhibits are in the same format as the 

online content") and Browne, 834 F.3d at 408-15 (rejecting as 

self-authenticating Facebook chat logs when relevance turned on 

authorship, but referring to testimony from participants in the 

chats as to their contents as aiding in authentication) and United 

States v. White, 660 F. App'x 779, 783 (11th Cir. 2016) (holding 

e-mails to have been properly authenticated when a witness with 

knowledge testified that they accurately represented an e-mail 

exchange between himself and the defendant) and United States v. 

Barnes, 803 F.3d 209, 217 (5th Cir. 2015) (accepting admission of 

Facebook messages when a witness testified that she saw the 

defendant using Facebook, recognized his account and his style of 

communicating reflected in the messages the government sought to 

introduce) and United States v. Gagliardi, 506 F.3d 140, 151 

(2d Cir. 2007) (finding properly authenticated e-mails and 

transcripts of instant-message chats when a participant in those 

communications testified that they were accurate records of the 
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Given the facts of this case, a reasonable person could 

deem Exhibits 1 and 2 to be Backpage ads created and posted in 

Maine prior to the group's trip to Boston and we do not find that 

the district court abused its discretion in admitting them. 

III. Admissibility of Similar Bad Acts Information 

We now turn to Blanchard's claim that he was denied a 

fair trial because inadmissible information about similar bad acts 

was presented to the jury. In so arguing he evokes Rule 404 of 

the Federal Rules of Evidence, governing when character evidence 

may be presented to the jury. "We review a district court's ruling 

on the admissibility of evidence under Rule 404(b) for an abuse of 

discretion." United States v. Landry, 631 F.3d 597, 601 

(1st Cir. 2011). 

During direct examination, Blanchard, inter alia, denied 

having told Gravely that he could make money through prostitution; 

denied having anything to do with the prostitution Philbrook and 

Gravely engaged in in Bangor, Maine, and, in particular, denied 

having ever participated "in the writing [and posting to the 

internet] of a Backpage advertisement involving Ms. Philbrook" 

either in Bangor or in Portland; stated that it was Gravely who 

invited both M.J. and Howland to join them; denied making or 

 

conversations). 
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assisting in making any Backpage ads in Boston; and testified that 

the phone associated with the number listed in Exhibit 2 did not 

belong to him but rather to Gravely despite containing phone calls 

to Blanchard's mother in its call history. 

During cross-examination of Blanchard, the government 

inquired about a number of alleged acts that occurred after the 

events charged at the trial. Among other things, the government 

asked: (1) whether Blanchard used the phone number given in Exhibit 

2 to call other escorts; (2) whether Blanchard reposted Exhibit 2 

on March 31 in Boston; (3) whether nine days later the same phone 

number was used in a Backpage ad for two more women; (4) whether 

those same women showed up three days later in another Backpage 

ad; (5) whether the pictures for the latter two ads were taken at 

the apartment of a woman named Torrie Mitchell; and (6) whether 

Blanchard and Gravely were prostituting Torrie Mitchell using 

Backpage ads.8

 

8 The government argues that Blanchard did not preserve objections 

as to all of this evidence at trial. During cross-examination on 

the first point Blanchard's attorney objected "to testimony from 

the prosecutor about what numbers go to, who's at the other end of 

the numbers, et cetera." The district court ruled that as long 

as the prosecutor had "a good-faith basis for inquiring of that, 

she can inquire into it." Following the questions that elicited 

evidence on points two through five above, Blanchard's attorney 

requested a sidebar and objected, stating "[t]his is obviously 

extrinsic evidence. This is I believe allegations that postdate 

the allegations in this case, and I would object." The 

prosecutor's response only went to the Torrie Mitchell question, 

but the objection fairly reached all of the evidence identified in 
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Blanchard argues that these are evidence of other bad 

acts and cites Rule 404(b), which provides that "[e]vidence of a 

crime, wrong, or act is not admissible to prove a person's 

character in order to show that on a particular occasion the person 

acted in accordance with the character." Fed. R. Evid. 404(b)(1). 

Blanchard fails to fully grapple with the evidentiary issues raised 

by the timing of this evidence's admission, however.9 It is 

significant that the evidence of Blanchard's other alleged bad 

acts was introduced on cross-examination of Blanchard. In 

particular, Blanchard completely ignores Rule 404(a)(2)(A), which 

states that "a defendant may offer evidence of the defendant's 

pertinent trait, and if the evidence is admitted, the prosecutor 

may offer evidence to rebut it."10 

 This circuit "employs a two-part test to determine 

admissibility of evidence under Rule 404(b)." Landry, 631 F.3d 

 

numbers two through six above. We therefore find that there was 

a preserved objection to all of the evidence. 

9 Indeed, the government argues that because the admitted evidence 

came in during cross-examination the issue is more properly 

evaluated under Rule 611(b) governing the scope of crossexamination rather than Rule 404 as Blanchard asserts. Both rules 

are applicable. Because we find no error under Rule 404 as argued 

by the defendant we need not evaluate whether 611(b) gives the 

government an independent path to admitting the evidence. 

10 "Bad acts committed subsequent to the charged behavior are 

admissible under rule 404(b) as long as they meet the criteria set 

forth in the Rule." Landry, 631 F.3d at 601. 
-20- 

at 601-02. First, the evidence has to have "'special' relevance 

other than establishing propensity," id. at 602 (quoting Udemba v. 

Nicoli, 237 F.3d 8, 15 (1st Cir. 2001)), and second, the evidence 

must not be excludable under Rule 403 "because the danger of unfair 

prejudice substantially outweighs the probative value" of the 

evidence, id. 

This circuit has specifically held that under Rule 

404(b) character evidence may be admitted "to rebut a defense of 

innocent involvement." Id. Indeed, we fail to see how 

Blanchard's case is at all materially different from the situation 

we evaluated in United States v. Rodríguez where we held that it 

was not an abuse of discretion for the district court to admit 

evidence of the defendant's involvement in an uncharged event of 

drug importation because it was presented to counter the 

defendant's claim that he "was innocently caught up with others 

who, if they intended a crime, had not told him their purpose." 

215 F.3d 110, 119 (1st Cir. 2000). By presenting evidence of the 

defendant's involvement in similar bad acts the government gave 

the jury a reason to conclude that the defendant was not an 

innocent bystander but a "knowing and intentional participant in 

the crimes charged in the indictment." Id. 

Similarly, in United States v. Lugo Guerrero we held 

that it was not an abuse of discretion to admit evidence of the 
-21- 

defendant's involvement in prior robberies to rebut his assertions 

that his presence with the other two alleged robbers was innocent. 

524 F.3d 5, 14 (1st Cir. 2008). We specified that the evidence 

of the prior robberies "makes it unlikely that his presence . . . 

was a mere coincidence." Id. Here Blanchard testified that he 

was merely present when Gravely and Philbrook engaged in acts of 

prostitution both in Maine and in Massachusetts and was an innocent 

passenger in their trip from Maine to Boston. The government was 

therefore entitled to present evidence of Blanchard's ongoing 

engagement and contact with individuals engaging in prostitution 

to demonstrate that it was unlikely that his presence with Gravely 

and Philbrook was "mere coincidence." Id. 

Under the second part of the test, whether the evidence 

should have been excluded under Rule 403 because it was more 

prejudicial than probative, we give "great deference" to the 

district court's in-the-moment determination. Landry, 631 F.3d 

at 604 (quoting United States v. Shinderman, 515 F.3d 5, 17 

(1st Cir. 2008)). We have elsewhere held that "it is only unfair 

prejudice which must be avoided." United States v. RodríguezEstrada, 877 F.2d 153, 156 (1st Cir. 1989). We have found unfair 

prejudice when the evidence "invites the jury to render a verdict 

on an improper emotional basis." United States v. Varoudakis, 

233 F.3d 113, 122 (1st Cir. 2000). Nothing in the government's 
-22- 

questions to Blanchard appears to be inviting the jury to render 

a verdict on an "emotional basis." Id. He testified on the stand 

that he had nothing to do with Gravely's prostitution business, 

and, in response, the government presented evidence that he had an 

ongoing engagement with prostitution. This evidence was 

admissible under Rule 404(b) and nothing particular to that 

evidence strikes us as unfairly prejudicial under Rule 403. 

IV. Pro Se Supplemental Brief Issues

Finally, we address the arguments Blanchard makes in his 

pro se brief. Blanchard argues: (1) that evidence of intent was 

insufficient under 18 U.S.C. § 2421; (2) that the trial court's 

jury instructions were erroneous because they failed to require 

proof that the appellant knew in advance that transportation in 

interstate commerce was for an immoral purpose; and (3) that the 

trial court erroneously denied a mistrial motion following the 

alleged introduction of extrinsic evidence that Blanchard had been 

previously convicted of a drug crime. 

We find none of these arguments persuasive. First, the 

witnesses' corroborated testimony provided sufficient evidence 

that before Blanchard left Maine, he intended that the women 

traveling with him to Boston would work as prostitutes. We must 

read the evidence in the light most favorable to the verdict. 

Savarese, 686 F.3d at 5. Read in that light, the evidence showed 
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that in the time leading up to the trip to Boston Blanchard was 

actively aiding Philbrook and M.J. to prostitute themselves. The 

evidence also demonstrated that Blanchard, Gravely and the three 

women travelled together from Maine to Boston and that once in 

Boston they immediately attempted to engage the women in 

prostitution, including attempting to post an ad on Backpage, going 

to "walk the track," and providing advice to Howland on where to 

walk and how to act in order to attract clients. In short, there 

was sufficient evidence of intent for the jury to have convicted 

Blanchard of aiding and abetting the transportation of individuals 

across state lines for purposes of prostitution. See United 

States v. Tavares, 705 F.3d 4, 17 (1st Cir. 2013) (The element of 

intent "requires proof that 'criminal sexual activity [was] one of 

the several motives or purposes . . . not a mere incident of the 

trip or trips, but instead was at least one of the defendant's 

motivations for taking the trip in the first place.'" (quoting 

United States v. Ellis, 935 F.2d 385, 390 (1st Cir. 1991))). 

Second, the trial court's jury instructions clearly 

required the jury to find that Blanchard had the requisite intent 

at the time of the transportation. The trial court instructed the 

jury: 

For you to find Mr. Blanchard guilty of 

[transportation of an individual in interstate 

commerce to engage in prostitution] . . . the 

Government must prove each of the following 
-24- 

things beyond a reasonable doubt: First, that 

Mr. Blanchard knowingly transported an 

individual in interstate commerce; and second, 

that at the time of such transportation Mr. 

Blanchard intended the individual he 

transported would engage in prostitution. 

This instruction demands that the jury find beyond a reasonable 

doubt that at the time of the transportation of the three women 

Blanchard intended that the women would engage in prostitution. 

We find no error in these instructions. 

Finally, the district court correctly denied Blanchard's 

motion for a mistrial made because Blanchard believed that the 

jury heard improper extrinsic evidence about Blanchard's prior 

drug dealing. Gravely testified that when Blanchard arrived in 

Boston Blanchard said "[t]hat he knew a new way to make money 

besides selling drugs." The testimony was ambiguous at best, as 

Gravely had already testified that he himself had multiple 

convictions for selling drugs. It is therefore not at all clear 

that Gravely was testifying to Blanchard's own previous drug 

convictions. Moreover, the trial judge offered to give the jury 

a curative instruction, which defense counsel declined. If there 

was any error at all, it certainly was not of a kind that would 

merit a mistrial, which we have held "is a last resort that is 

only ordered if the demonstrated harm cannot be cured by less 

drastic means." United States v. De Jesús Mateo, 373 F.3d 70, 72 

(1st Cir. 2004). The trial judge offered Blanchard a less drastic 
-25- 

means, in the form of a curative instruction, which he declined. 

He therefore can have no complaint that he was denied a more 

drastic means in the form of a mistrial. 

V. Conclusion 

For the foregoing reasons, we affirm. 

Affirmed.