United States v. Nelson

concurring.

I respectfully concur in the memorandum disposition.

I write separately to highlight certain factors that I believe warrant the conclusion that affirmance is appropriate in this case despite the massive amount of sexually explicit material presented at trial and despite the homosexual nature of some of that material.

Sixty-three year old Henderson Hough-ton and thirty-one year old Glen Nelson both have histories of sexual abuse of children. Nelson had possessed child pornography m 1997.

In 1998, Nelson moved M with Hough-ton. Houghton agreed to permit Nelson’s probation officer to search the common residence. In addition, Houghton permitted Nelson to use Houghton’s computer when Houghton was home. In January of 1999, Nelson admitted to his probation officer that he had inappropriate photographs of children at Ms residence. As a result of this confession, Houghton’s computer was seized. A search of the computer revealed a total of 14,000 pictures on two hard drives and arranged in 474 folders. The vast majority of the images were of a sexual nature. Of these 14,000 images, at least 1,314 constituted child pornography.

Houghton told an agent that he owned the…

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.”

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,…

MEMORANDUM **

Glenn Alan Nelson and Henderson Houghton appeal their convictions and sentences, after a jury trial, for one count each of receiving child pornography and one count each of possessing child pornography. We affirm.

I. Evidence of Pornographic Images

Houghton and Nelson contend that the district court abused its discretion by admitting into evidence about 14,000 thumbnail pornographic images under circumstances where most were adult males and not relevant to charges of receiving and possessing child pornography. We review for abuse of discretion a district court’s decision to admit evidence. Old Chief v. United States, 519 U.S. 172 , 174 n. 1, 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997); United States v. Castillo, 181 F.3d 1129, 1134 (9th Cir.1999), cert. denied, 532 U.S. 965 , 121 S.Ct. 1502 , 149 L.Ed.2d 386 (2001).

Under the Federal Rules of Evidence, evidence must be relevant to be admissible, and its probative value must outweigh potential prejudice. Fed.R.Evid. 401, 403. In this case thousands of thumbnail-size images, the majority of which appear to be adult males, were admitted as a single exhibit. Nelson and Houghton argue that this evidence had little…