USA v. Jonathan Tanguay

USA v. Jonathan Tanguay                  CR-11-173-JL 12/7/12         P

                     UNITED STATES DISTRICT COURT
                       DISTRICT OF NEW HAMPSHIRE


United States of America

     v.                                      Criminal No. ll-cv-173-JL
                                             Opinion No. 

Jonathan Tanguay


                           MEMORANDUM ORDER

     Defendant Jonathan Tanguay has filed motions in limine,         see

L. Cr. R. 12.1(c),    seeking rulings on the admissibility of

evidence at his upcoming trial on one count of possessing child

pornography,    see 18 U.S.C. § 2252A(a)(5)(B).   After receiving a

report from a visitor to Tanguay's home, Joshua Wiggin,      that

Tanguay had displayed images of child pornography on his

computer,    the New Hampshire State Police secured a warrant to

search the home for those materials.     This search allegedly

turned up child pornography on the computer.       See United States

v. Tanguay, ___ F. Supp. 2d ____ , 

     (denying Tanguay's

motion to suppress the evidence allegedly seized in the search).

     Tanguay has filed three separate motions in limine dealing

with various items of anticipated evidence at trial.       First,

Tanguay seeks to preclude,    as untimely disclosed expert

testimony,    anticipated testimony by a prosecution witness about

"digital photography and video and the process by which a virtual

image or video might be made."     Second,   Tanguay also seeks to
preclude,    as irrelevant or overly prejudicial, evidence of    (a)

his sexual orientation,    (b) other sexually suggestive materials

allegedly found in his possession,     and   (c) the fact that the

police seized the alleged child pornography pursuant to a search

warrant.     Third, Tanguay seeks to preclude testimony by the

prosecution's designated forensic expert about findings made by a

different forensic examiner,    arguing that such testimony is

inadmissible hearsay and would violate the Confrontation Clause.

Fourth, Tanguay seeks to prevent the prosecution from referring

to the fact that his counsel has had access to the forensic

evidence in the case, arguing that this would improperly suggest

that Tanguay should have come forward with his own expert

analysis of that evidence.     Fifth, and finally,   Tanguay seeks to

admit a statement that an Assistant United States Attorney

formerly assigned to this case made about a potential witness.

     After the prosecution filed its objections to Tanguay's

motions,    the court heard oral argument on them following the

final pretrial conference in this matter.       The court now makes

the following rulings on the motions in limine.       These rulings,

of course,    are subject to reconsideration in light of

developments at trial.




                                   2
1.   Testimony about creating virtual images

a.   The rule

     "The prosecution must prove beyond a reasonable doubt that

the image is of an actual child in order to establish guilt" on a

federal child pornography charge.      United States v. Rodriguez-

Pacheco, 

    (1st Cir. 2007) ^   In January 2012,

the prosecution provided defense counsel with a report by one

John Madama, expressing his opinions that certain pornographic

materials allegedly found in Tanguay's possession depicted real

children,    and setting forth the methodology he used to reach

those opinions.     But, as the prosecution acknowledges,   it did not

provide defense counsel with a copy of Madama's curriculum vitae,

or anything else describing his gualifications, until November

20, 2012, which is less than 30 days before the upcoming trial

(in which the jury was selected on December 5, 2012, and evidence

is scheduled to commence on December 12, 2012) .

     Under Rule 16(a)(1)(G) of the Federal Rules of Criminal

Procedure,    "[a]t the defendant's reguest,   the government must

give to the defendant a written summary of any testimony that the



     1This is so because the Supreme Court has held that the
former version of the statute under which Tanguay is charged was
unconstitutionally overbroad insofar as it prohibited "virtual
child pornography," i.e., pornography created without using
actual children in the production process.  Ashcroft v. Free
Speech Coal., 

 (2002) (invalidating former
version of 

(8) (B)).

                                   3
prosecution intends to use under Rules 702, 703, or 705 of the

Federal Rules of Evidence during its case-in-chief at trial."

This summary "must describe the witness's opinions,            the bases and

reasons for those opinions,    and the witness's qualifications."

   This court's Local Rules require this disclosure to occur

either within 14 days of the arraignment or, if the expert

witness is not at that point known to the prosecution,            no later

than 30 days prior to trial.    L. Cr. R. 16.1(b)(3).

      Tanguay argues that the prosecution missed this deadline by

not giving his counsel a copy of Madama's curriculum vitae until

15 days before jury selection and that, as a result,            the

prosecution should be prohibited from introducing Madama's

testimony at trial.    The prosecution maintains that, because

Madama's proffered testimony does not amount to expert testimony

under Rule 702 of the Federal Rules of Evidence,         it had no duty

to make any Rule 16(a)(1)(G) disclosures as to Madama's

testimony.    The court disagrees.

      Under Rule 702 of the Federal Rules of Evidence,           "[a]

witness who is qualified as an expert by knowledge,            skill,

experience,   training or education may testify in the form of an

opinion or otherwise," provided,         among other things,    that the

expert's "specialized knowledge will help the trier of fact to




                                     4
understand the evidence or to determine a fact at issue."      The

prosecution explains that Madama

     has experience in the area of digital photography.   He
     will provide background information on digital
     photography and video and the process by which a
     virtual image or video might be made, including
     describing the complexity and cost of such an endeavor.
     He will also describe certain features in the images
     and video (including skin appearance, hair appearance,
     light and shadow placement and the depiction of
     expressive features) that the jury should consider in
     reaching its conclusion on whether a particular image
     or video depicts a real child.

This description of Madama's anticipated testimony makes it

abundantly clear that his testimony will impart his "specialized

knowledge" of digital photography and video and is therefore

testimony by an expert witness under Rule 702.

     The prosecution nevertheless argues that Madama will offer

not expert testimony under Rule 7 02, but "lay testimony" under

Rule 701, arguing that the comment to Rule 701 "makes clear that

lay testimony is permissible when the opinion is based on a

layperson's personal knowledge gained through experience."      But,

in limiting permissible lay opinions to those "not based on

scientific,   technical,   or other specialized knowledge within the

scope of Rule 702," Fed. R. Evid. Rule 701(c), Rule 701 in fact

"makes clear that any part of witness's testimony that is based

upon scientific,   technical,   or other specialized knowledge within

the scope of Rule 702 is governed by the standards of Rule 702



                                    5
and the corresponding disclosure requirements of the Civil and

Criminal Rules," i d . advisory committee's note    (2000).

     The dividing line between lay opinion testimony under Rule

701 and expert opinion testimony under Rule 702, then,        is marked

by whether the opinion is based on the witness's specialized

knowledge--rather than, as the prosecution suggests, whether the

witness came by the knowledge "through experience" as opposed to

training, education,   or the other ways that a witness can qualify

to give expert testimony.     Indeed,   the advisory committee's note

explains that "the distinction between lay and expert witness

testimony is that lay testimony results from a process of

reasoning familiar in everyday life, while expert testimony

results from a process of reasoning which can be mastered only by

experts in the field."     I d . (quotation marks omitted).    The

process of creating virtual images,      and discerning whether that

process has been employed in creating a particular image,        is not

"familiar in everyday life" like the subjects of permissible lay

testimony recognized in the advisory commitee's note.         See i d .

     This includes whether a particular substance appears to be a

narcotic based on the witness's familiarity with that narcotic,

see i d ., to which the prosecution attempts to analogize Madama's

proffered testimony.     The "process of reasoning" employed in

concluding that a substance is cocaine because it looks and



                                   6
tastes like the cocaine the witness has used in the past,            see

United States v. Paiva, 

    (1st Cir. 1989),    is

familiar to laypeople and, indeed,      self-evident.     It is like the

reasoning employed in concluding,      for example,    that a firearm has

traveled in interstate commerce because it was found in Puerto

Rico but manufactured in Massachusetts.          United States v. Colon

Osorio, 

    (1st Cir. 2004)      (ruling that this was

permissible lay opinion testimony under the "familiar process of

reasoning" test).   In contrast,   the "process of reasoning"

employed in explaining why an image depicts an actual child

rather than a virtual one is unfamiliar to laypeople and reguires

precisely the kind of explanation the prosecution wants Madama to

offer the jury--presumably because,      again, that process is

unfamiliar to laypeople.     Madama's proffered testimony is expert

testimony under Rule 702.


b.   The remedy

      The prosecution argues that the court should nevertheless

allow Madama's testimony because the prosecution timely disclosed

all of the information as to that testimony reguired by Fed. R.

Crim. P. 16(a)(1)(G) aside from his curriculum vitae,         and even

that was disclosed just 15 days late.       If a party fails to comply

with Rule 16, the court may    (A) order it to permit the withheld

discovery or inspection,    (B) grant a continuance,      (C) prohibit it


                                   7
from introducing the undisclosed evidence,    or   (D) enter any order

that is just under the circumstances.     Fed. R. Crim. P. 16(d)(2).

This court thus "has broad discretion in handling non-compliance"

with criminal discovery obligations, with the remedy to "vary in

proportion to the seriousness of the violation and the amount of

prejudice claimed by the defendant."     United States v . Osorio,

929 F .2d 753, 762   (1st Cir. 1991).2

     Here, the violation was not at all serious:      defense counsel

timely received all of the discovery reguired by Rule

16(a)(1)(G)--including Madama's opinions and the bases and

reasons for them--except for his curriculum vitae, which was

supplied just 15 days late.    Courts have generally deemed

preclusion of expert testimony too harsh a sanction for such



     2In arguing that the court should not preclude Madama's
testimony even if it was not properly disclosed under Rule 16,
the prosecution relies exclusively on Esposito v. Home Depot
U.S.A., 

 (1st Cir. 2009), a case considering whether
precluding late-disclosed expert testimony was an appropriate
sanction under Rule 37(c)(1) of the Federal Rules of Civil
Procedure.  But the body of law that has developed under Rule
37(c)(1) of the civil rules differs markedly from the body of law
that has developed under Rule 16(d) (2) of the criminal rules:
because Rule 37(c)(1) specifically provides that a party "is not
allowed to use" information that has not been properly disclosed
"unless the failure was substantially justified or is harmless,"
in civil cases, "the baseline rule is that the reguired sanction
. . . is mandatory preclusion" of late-disclosed information.
Harriman v. Hancock County, 

 (1st Cir. 2010)
(guotation marks and bracketing omitted). Rather than relying on
Esposito, then, this court relies on circuit cases specifically
applying Rule 16 of the criminal rules in deciding whether
preclusion is the appropriate remedy here.
minor violations of the prosecution's expert disclosure

obligations.       See, e.g.. United States v. Camacho, 

   (8th Cir. 2009)      (prosecution provided "a proposed stipulation

as to the expert's testimony and copies of lab results" but

failed to timely notify defense counsel it intended to present

that testimony at trial); United States v. Charley, 

   (10th Cir. 1999)   (prosecution failed to provide

summaries of experts'        testimony, but provided "all medical and

counseling records from which        [they] would be testifying").

        Furthermore,     the court of appeals has instructed that, when

"exercising its discretion to control discovery rule violations"

in criminal cases,        "the district court must inguire into the

surrounding circumstances to determine whether the violating

party has acted in bad faith."         United States v. Tajeddini, 

   (1st Cir. 1993).   It is exceedingly difficult,   if

not impossible,        to draw an inference of bad faith here, where the

prosecution provided defense counsel with a report from Madama

nearly a year ago.         Tanguay emphasizes the fact that the

prosecution did not tell defense counsel that it might seek to

present Madama's conclusions as expert opinion testimony under

Rule 702, and instead took the position that they were lay

opinion testimony under Rule 701, but that is not persuasive

evidence of bad faith either.        While,   as just discussed,   the
court disagrees with the prosecution's view,        it is not patently

incorrect by any means.       Moreover,   the court can discern no

unfair tactical advantage the prosecution could have hoped to

gain by taking this position,      since it provided defense counsel

with a report of Madama's analysis nearly a year ago.

       Indeed,    Tanguay does not articulate any prejudice he

suffered from the violation of Rule 16(a)(1)(G), aside from a

single statement in his reply brief that he "cannot overcome the

adverse effects of the late disclosure" because "if Madama is

going to testify as an expert the defendant would seek a Daubert

hearing and would need to hire his own 'digital imaging

specialist'      to review Madama's methods."    But Tanguay does not

explain why defense counsel could not have taken these steps

based on the disclosure of the substance of Madama's anticipated

testimony they received in January 2012, which put them on notice

that, at a minimum,      a digital imaging specialist working for the

prosecution concluded that the pornographic material allegedly

found on Tanguay's computer included real images of children.

       More importantly,    Tanguay has known that the prosecution

intended to call Madama as a witness since at least November 20,

2012   (when the prosecution wrote to defense counsel announcing as

much), yet has not asked the court to hold a Daubert hearing on

Madama's testimony nor to continue the trial so that the defense



                                     10
may explore retaining its own digital imaging expert.3          The court

of appeals has held that,   in general,   a defendant who does not

reguest a continuance in response to the prosecution's belated

compliance with its discovery obligations cannot claim prejudice

from the late disclosure,   since the lack of such a reguest

justifies the assumption "that counsel did not need more time to

incorporate the information into the defense's game plan."

United States v. Beras, 

       (1st Cir. 1999)

(guotation marks omitted).

     The court of appeals has also warned against remedying Rule

16 violations by precluding evidence where that sanction "is

grossly disproportionate both to the prosecutor's nonfeasance and

any prejudice to the defense."    United States v. Candelaria-

Silva, 

    (1st Cir. 1998)    (guotation marks

omitted).   Thus, without any persuasive indication of

prosecutorial bad faith or prejudice to Tanguay,       this court

cannot sanction the prosecution for its belated disclosure of

Madama's curriculum vitae by suppressing his testimony.           If

Tanguay wants any other relief under Rule 16(a) (1) (G), he shall




     furthermore, without prejudging the merits of any Daubert
challenge to Madama's anticipated testimony, the court notes that
as reflected in materials submitted by Tanguay himself, Madama
has testified as an expert witness (and presumably been found
gualified to do so) in two dozen criminal cases.

                                  11
promptly notify the court by filing an appropriate motion.          His

motion to preclude Madama's testimony, however,      is denied.


2.   Irrelevant or overly prejudicial evidence

a.   Tanguay's sexual orientation

     Tanguay argues that any evidence of his homosexuality is

irrelevant,    see Fed. R. Evid. 401, 402, or, in the alternative,

that any probative value it has is outweighed by its prejudicial

effect,   see Fed. R. Evid. 403.   In response,   the prosecution

maintains that Tanguay's sexual orientation tends to make it more

likely that he knowingly possessed the child pornography

allegedly seized from his computer, which "all depict male on

male sexual conduct."     The prosecution also argues that,   since it

intends to call two of Tanguay's former live-in romantic

partners--both male--as witnesses, his "homosexuality will be

disclosed,    at least by inference."   This seeming inevitably makes

it unnecessary for the court to consider,     at least at the moment,

the prosecution's argument that Tanguay's homosexuality makes it

more likely that he knowingly possessed child pornography

depicting homosexual conduct and, if so, Tanguay's argument that

his homosexuality is "extremely prejudicial" so that it should be

excluded in any event.

     Of course,    Tanguay's former live-in partners can be

instructed not to mention the sexual or romantic aspects of their

                                   12
relationships with him during their direct testimony.          At oral

argument on the motions in limine, however,         defense counsel did

not dispute the prosecution's suggestion that Tanguay would very

likely use his cross-examination of those witnesses to show that

they were now biased against him because their romantic

relationships with him have ended.     Nevertheless,      in an abundance

of caution,    and without definitively resolving Tanguay's Rule 403

objection,    the court will rule at the moment that the prosecution

shall not mention Tanguay's homosexuality,      and shall instruct its

witnesses not to do so either.     If defense counsel guestions

Tanguay's former live-in partners about their romantic or sexual

relationships with Tanguay, he will have opened the door to

evidence of his homosexuality;    in the unlikely event defense

counsel chooses not to pursue this line of cross-examination,            and

the prosecution still wishes to present such evidence,         it shall

notify the court and defense counsel outside the presence of the

jury, and the court will then rule on the admissibility of

Tanguay's sexuality,    as well as whether to issue an appropriate

limiting instruction,    see Fed. R. Evid.   106.     For the moment,

then, Tanguay's motion to exclude that evidence is granted

subject to developments at trial.




                                  13
b.   Other sexually suggestive materials

     Tanguay seeks to preclude,     as irrelevant and unfairly

prejudicial,    evidence of any sexually suggestive or pornographic

materials found on his computer,     aside from the alleged child

pornography.    According to the prosecution,    these materials

include "numerous images of and videos of sex between young

looking males," as well as "bookmarks for sexually explicit

websites" with domain names suggesting that they contain similar

material   (e.g., "Teen Boy Paradise," "Cute Gay Boys Place").        The

prosecution argues that, while these materials do not constitute

child pornography,     their presence on Tanguay's computer tends to

show that he knowingly possessed the child pornography allegedly

found there, negating any possibility,     for example,   that it was

placed there by someone else without Tanguay's knowledge.

     Courts have recognized that a defendant's possession of

pornography featuring subjects who appear young--even if they are

in fact adults--is relevant to show that he knowingly possessed

other pornography featuring subjects who are in fact children.

See United States v. Goff, 

        (5th Cir.

2005); United States v. Layne, 

   (5th Cir. 1995).

Tanguay himself cites a similar case. United States v. Harvey,

   (2d Cir. 1993), ruling that a district court

properly admitted what it called "simulated child pornography,"



                                    14
i.e., pornography with subjects "over the age of 18 dressed to

look younger than they really are," as rebutting a defendant's

entrapment defense to a charge of receiving child pornography.4

Relatedly,     courts have recognized,       as the prosecution argues,

that evidence that a defendant          viewed or downloaded adult

pornography on his computer is admissible to negate the

suggestion that the defendant "was ignorant about the child

pornography" found there.           United States v. Hatfield, 

    (7th Cir. 2009); see also United States v. Durbin,

ACM 36969, 

,          at *4-*5   (A.F . C t . Crim. A p p . Dec.

10, 2008); Arizona v. Coghill, 

 (Ariz. C t .

App. 2007).      So evidence that Tanguay's computer contained

pornography with young-looking,          if in fact adult,     subjects,    and

bookmarks for websites with names suggesting that they offered

such material,       is relevant.     See United States v. Sanchez, 

        (A.F . C t . Crim. App. 2003)   (relying on defendant's




      4Harvey also ruled that district court had erred in
admitting evidence that the defendant possessed materials aside
from "those that involved child pornography and simulated child
pornography," including videotapes of "people performing gross
acts involving human waste, and people engaging in bestiality and
sadomasochism."    

. The circuit court ruled
that these materials were irrelevant to whether the defendant had
knowingly possessed child pornography, or was entrapped to do so.
I d . This aspect of Harvey is inapposite here, where the material
the prosecution seeks to introduce (so far as the court
understands it at present) is not of this particularly
inflammatory nature.

                                        15
subscriptions "to numerous e-groups described as nude teen sites"

in rejecting his claim of insufficient evidence that he knowingly

possessed child pornography found on his computer ) , rev'd in part

on other grounds, 

    (C.F.A.A. 2004).

     This is not to say, however,      that the prosecution can

introduce all, or particular items, of the adult pornography

itself.   Courts have recognized that, under Rule 403, the

prejudicial effect of the adult pornography found on a

defendant's computer can outweigh its probative value as to his

knowledge of the child pornography there.       See, e.g.. United

States v. Caldwell, 

      (5th Cir. 2009).     That Rule

403 analysis, however,   depends on the specific nature of each of

the pornographic images allegedly found on Tanguay's computer,         as

well as, potentially, where on the computer it was stored and

when and how it was put there.    See i d .   The court does not have

any of that information at present.

     Accordingly,   the prosecution shall not seek to introduce any

of the adult pornography allegedly found on Tanguay's computer

without first, outside the presence of the jury, making a

detailed proffer as to the nature of the material and how and

where it ended up there.    The prosecution may, however,       introduce

evidence that Tanguay's web browser contained the bookmarks

listed in its objection to his motion in limine.       Again,    the



                                  16
presence of those bookmarks is probative as to Tanguay's

knowledge of the contents of his computer,    and there is little

danger of unfair prejudice from the names of the bookmarked

websites    (as opposed to the contents of those websites, which the

prosecution shall not try to introduce without first making the

proffer just described).


c.   Issuance of the search warrant

     Tanguay also seeks to preclude,    again as irrelevant or

unfairly prejudicial,    "any facts relating to the issuance or the

existence of the warrant" to search his home for child

pornography--the very search that allegedly turned up the child

pornography that Tanguay is charged with possessing.     The

prosecution responds that, while it will not seek to introduce

any of the facts leading to the issuance of the warrant,       it

should be allowed "to elicit that the police were at the

defendant's residence pursuant to a warrant."

     As the prosecution points out, "'officers should not be put

in the misleading position of appearing to have happened upon the

scene and therefore should be entitled to provide some

explanation for their presence and conduct'" during their trial

testimony,    so long as they do not "'relate historical aspects of

the case,    such as complaints and reports of others containing

inadmissible hearsay.'"    United States v. Maher, 

, 20


                                  17
(1st Cir. 2006)   (quoting 2 Kenneth S. Broun, et a l ., McCormick on

Evidence § 249, at 103   (5th ed. 1999)).     The prosecution's

intended approach here--to introduce the fact that the police

entered Tanguay's home pursuant to a search warrant, without

introducing any of the facts that led to the issuance of the

warrant--is perfectly consistent with this hornbook law.           While

Tanguay says that admitting the mere fact of the warrant's

issuance creates the risk "that the jury could decide the

elements of the offense based on something other than the

evidence introduced at trial," such as "the knowledge and

prestige" of the issuing judge or "speculation" as to the reasons

the warrant issued,   Tanguay provides no authority recognizing

that risk as a basis for excluding the fact that a search warrant

issued from a subsequent trial.5       To the extent Tanguay is

worried about any such risk,   it can be mitigated through an

appropriate limiting instruction.       See Fed. R. Evid.   105.    The

prosecution shall be permitted to introduce the fact that police




     5Instead, Tanguay cites cases ruling that it was error to
admit hearsay statements related by an officer in explaining why
he took certain steps during an investigation.  United States v.
Lamberty, 

 (1st Cir. 1985) (agent's testimony that
he had received information that defendant was stealing from the
mails); United States v. Brown, 

 (4th Cir.
1985) (agent's testimony as to numerous hearsay statements he
received during his investigation that inculpated defendant).
The prosecution does not seek to elicit such testimony here, so
these cases are inapposite.

                                  18
entered Tanguay's home and seized materials from it pursuant to a

search warrant.


3.   Testifying expert's reference to non-testifying expert's
     findings

     Tanguay seeks to exclude any testimony by the prosecution's

designated forensic computer examiner, Mark Dumas,      about findings

made by the forensic computer examiner initially assigned to the

case, Mitchell Gove.     Tanguay argues that such testimony would

amount to inadmissible hearsay,    see Fed. R. Evid.   802, and would

also violate the Confrontation Clause, because the prosecution

does not intend to call Gove as a witness at trial.       In response,

the prosecution points out that it has offered not to introduce

any evidence about Gove's findings so long as Tanguay stipulates

"that the Gove examination did not contaminate any of the

evidence that was reviewed by    [] Dumas."   At oral argument,   the

prosecution elaborated that,    if Tanguay does not agree to such a

stipulation,   then it plans to introduce evidence--in the form of

testimony by either Dumas or Gove--that the allegedly

pornographic images Gove reviewed had the same "hash values" as

the allegedly pornographic images Dumas reviewed       (meaning, the

prosecution explained,    that they had not been altered between the

time Gove analyzed them and the time Dumas analyzed them).




                                  19
     In light of this explanation,     it is not at all clear how

Dumas might testify to any "finding" by Gove, let alone how that

testimony would violate the hearsay rule or the Confrontation

Clause.    Tanguay seems to be arguing that, in identifying the

images'   "hash values," Gove was making a "statement" that the

prosecution will impermissibly seek to introduce at trial for its

truth, through the testimony of Dumas.        The court cannot rule on

this argument without a better understanding of it and the

underlying facts--including,    importantly, what Gove's purpose was

in identifying the "hash values" of the allegedly pornographic

images, and how that is done.     Moreover,    the argument will be

moot if the prosecution calls Gove as a witness at trial       (as it

suggested it was prepared to d o ) .   Accordingly,   at the

appropriate time during the trial, the prosecution will notify

the court and defense counsel, outside the presence of the jury,

whether it intends to have Dumas testify as to Gove's

identification of the "hash values" on the images allegedly

seized from Tanguay's computer,    and the court can take up any

hearsay or Confrontation Clause objection at that point.


4.   Defense counsel's access to forensic evidence

     Tanguay, who does not intend to call his own forensic

computer examiner at trial,    seeks to exclude any evidence that

his counsel had access to the forensic evidence collected during


                                  20
the investigation of this case.      He argues that this could give

rise to the inference that, because he did not present any expert

testimony at trial analyzing the forensic evidence,       "the

prosecution's experts must have performed flawlessly"--and that

this amounts to an impermissible inference of guilt from a

criminal defendant's decision not to present evidence.           In

response,    the prosecution agrees not to introduce evidence of, or

comment on, defense counsel's access to the forensic evidence

unless the defense at trial "calls into guestion the accuracy of

the forensic examination" by the prosecution's expert.           In that

case, the prosecution argues,     it can put on evidence and comment

on the fact that the defendant could have called his own forensic

expert, but did not, under the "invited response" doctrine.

     While a prosecutor's comments on the defendant's failure to

present evidence can amount to impermissible burden-shifting if

" [u]nprovoked," courts generally recognize that a prosecutor is

free to offer a "fair response" to defense arguments,       and that,

depending on the nature of those arguments,     such a response can

include commenting on a defendant's decision not to call certain

witnesses.    United States v. Adams, 

, 37-38 & n.2        (1st

Cir. 2002)    (citing cases).   In Adams, for example,   the court

ruled that it was permissible for the prosecutor to state in his

rebuttal argument "that defense counsel knew of the informant



                                   21
before trial and could have called him if they wanted him" after,

in his summation,   defense counsel had "pointed to the

prosecution's failure to call the informant,          saying:     'He's not a

witness here, and we don't know why.'"           I d . at 37-38   (further

quotation marks and bracketing omitted).

     It does not follow, however,          that defense counsel invites

the prosecutor to comment on a defendant's decision not to call

witnesses on a particular subject merely by cross-examining the

prosecution's witnesses on that subject.           Generally, where courts

have ruled that the prosecutor permissibly commented on a

defendant's failure to conduct his own testing of the evidence,

they deemed it a fair response to defense counsel's argument

attacking the prosecution's testing.           See United States v.

Rogers, 

   (7th Cir. 2011)      (defense counsel

"emphasized" alleged flaws in the prosecution's testing); United

States v. Wimbley, 

          (6th Cir. 2009)     (defense

counsel argued that the police's failure to test for DNA or

fingerprints "was a fatal flaw in the prosecution's proof.").                It

is possible,   then, that defense counsel's closing argument will

invite the prosecution to comment on the fact that Tanguay had

access to the forensic evidence against him but chose not to call

his own expert witness analyzing that evidence.            Unless and until

that happens, however,   the prosecution shall not introduce any



                                      22
evidence,    or comment upon, defense counsel's access to the

forensic evidence.


5.   Statement by the former prosecutor assigned to the case

     Finally, Tanguay seeks a ruling that he can introduce,       as an

admission by the prosecution,    a statement in an assented-to

motion that Tanguay filed in April 2012.     In this motion, which

sought the in camera production and review of    (among other

things) Wiggin's medical records, Tanguay stated:

     Based on information recently received from the U.S.
     Attorney's Office, Mr. Wiggin met with AUSA Helen
     Fitzgibbon, [a federal criminal investigator, and a
     state criminal investigator] sometime in the past
     twelve months to discuss his potential testimony
     against the defendant.  Mr. Wiggin reportedly stated
     that, sometime subseguent to February 2012, when he
     gave his initial statement against the defendant, he
     had been hospitalized . . . for a seizure disorder, and
     while in treatment was placed in a medically induced
     coma from which he ultimately awoke with no memory of
     witnessing the defendant looking at child pornography,
     or of anything past childhood for that matter.

Tanguay argues that, because this statement was set forth in a

motion to which the prosecution assented,    it amounts to an

adoptive admission by a party-opponent that he can use at trial.

The prosecution objects on a number of grounds,    including that

its assent to the relief sought by the motion does not amount to

its adoption of all of the statements set forth in the motion.

     As an initial matter,    this issue is very likely moot

because,    at the off-the-record portion of the final pretrial


                                  23
conference,    the prosecution stated unequivocally that it will not

call Wiggin during its case-in-chief.      That makes any evidence of

Wiggin's claimed lack of memory of the events giving rise to this

case irrelevant--unless, potentially,     Tanguay chooses to call

Wiggin as a witness.

     In any event,    the court agrees with the prosecution that the

statements in Tanguay's motion are not its "adoptive admissions."

The Federal Rules of Evidence exclude from their definition of

hearsay a statement which "is offered against an opposing party"

and "is one that the party manifested that it adopted or believed

to be true."     Fed. R. Evid.   801(d)(2)(B).   This court has great

difficulty with the notion that, by assenting to a motion filed

by its adversary in litigation,     a party is manifesting that it

adopts or believes to be true all of the statements in the

motion--such that all of those statements could subsequently be

used against the assenting party at trial.       Were that the case,

deciding whether to assent to a motion seeking even the most

routine relief would become an involved exercise similar to

answering a complaint or responding to a set of requests for

admissions,    see Fed. R. Civ. P. 36, requiring the party to admit

or deny every single statement in the motion.        It is safe to

assume that few lawyers approach the decision to assent to a

motion that way and, indeed,     Tanguay has not come forward with--



                                    24
nor was this court able to find--any case law treating a party's

assent to the relief sought by a motion as its adoptive admission

of all of the statements in that motion.       So the court declines

to treat the statements in Tanguay's motion as to Wiggin's

meeting with the investigators as the prosecution's "adoptive

admissions" such that Tanguay can introduce those statements at

trial.6

     This is not to say, of course,      that the prosecutor's

statements set forth in the motion are not themselves admissions,

such that Tanguay could seek to offer them through the testimony

of a witness who heard the prosecutor say those things.          The

government disagrees with even that view, however,      and the court

need not resolve that disagreement at present:       Tanguay has

disclosed no intention to try to introduce the statements in that

fashion,   and, as just noted,   it seems highly unlikely that Wiggin

will testify in any event.       If he does, Tanguay can seek    (through

argument and proffer made outside the presence of the jury)            to

introduce the prosecutor's statements about Wiggin's claimed

memory loss at that time.    For the moment, however,    Tanguay's



     6Nor can the court, as Tanguay urges, take judicial notice
of the motion under Rule 201 such that Tanguay can introduce the
contents of the motion at trial.   The court could probably take
judicial notice of the fact that the government assented to the
motion, but that is not the same as judicial notice of the
statements in the motion (which is the evidence Tanguay seeks to
introduce).

                                    25
motion to admit them as the prosecution's adoptive admissions of

the statements set forth in the assented-to motion for in camera

review is denied.

        For the foregoing reasons,   Tanguay's motion in limine to

exclude Madama's testimony7 is DENIED,     Tanguay's omnibus motion

in limine to exclude evidence8 is GRANTED in part and DENIED in

part,    and his motion in limine to admit evidence9 is DENIED.


        SO ORDERED.




                                 Joseph N. Laplante
                                 United States District Judge

Dated:     December 7, 2012

cc:     Donald A. Feith, AUSA
        Seth R. Aframe, AUSA
        Behzad Mirhashem, Esg.
        Jeffrey S. Levin, Esg.




        7Document no. 70.

        8Document no. 71.

        9Document no. 72.

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