the court the defendant kevin morsi was convicted after a jury trial of possession and receipt of child pornography at the beginning of the trial the prosecutor's theory or position as to what conduct was the basis for each charge appeared clear the possession count was based on the seagate hard drive that was found in the chicken coop on the defendant's property the receipt charge was based on the dell laptop and images that were a legit child pornography received during the day when mr morsi lived in the state of iowa but as this trial progressed these distinctions got blurred because of this blurring mr morris he was potentially convicted of conduct but didn't occur in the state of iowa that was different from conduct in the grand jury indicted him for and he was also potentially convicted of two counts based on the same images and this blurring is the basis for most of the arguments on appeal today i will focus on the constructive amendment requests for a venue instruction or how was flat issue raised in a trial it wasn't raised at trial so initially and i acknowledged at the beginning of trial defense counsel was asked about offense counsels indicated that he thought it wasn't an issue and the case law indicates that that statement in the beginning is not problematic and doesn't prevent this court from reviewing because the problems with venue didn't come brains that i think the kelly case indicates that the failure to ask for an instruction would just result in plainer view it's not waived and also a defense defendant is not held accountable or it's not prevented from review if it's not clear from the very beginning that there's going to be problems with venue and here it wasn't clear from the very beginning even from the prosecutor's opening statement it seemed like everyone was on the same page that the basis for these charges was that conduct that occurred when mr mor was living in iowa and conduct and images that were found in this home so what those black cloud also from the circuit acknowledges is that it can be raised at the end of trial the failure to raise of a beginning of trial is not problematic matches you're right and it really it was a harm that in this case especially because the defendant testified and testified under the assumption that that was the basis for the charge what he was indicted for and what was the prosecutor's theory of the case and so the defendant testified in this case had knowledge ing he had this part conviction acknowledging that he used to view and obtain child pornography and then when that evidence came in and that occurred while mr morris who still lived in washington state during closing argument the prosecutor seized on both the images that were downloaded in washington state allegedly and mr morsy testimony and this part conviction to them blur that distinction and make it so that the defendant was potentially convicted for conduct that occurred while he was in washington state and in this case the record makes clear that that conduct by the prosecutor had an impact on the jury and that the first jury question the jurors asked how far back can this date go for the receipt charges that didn't specifically discussed the receipt count but the receipt in the indictment as the one that stated  date and that indicates that the jurors were looking at these prior dates were considering that prior conduct and made it so that mr morsy was likely convicted for conduct that did not occur in state of iowa but instead occurred in washington state when some of the images on the on the laptop were allegedly downloaded and he had a prior conviction for possession of child pornography i'll turn to the introduction of the next spread sheet this exhibit seven dealt with all of the images that were found on the hard drive itself and also on the dell laptop and it laid out the image locations that image names and also created accessed unmodified dates what was problematic and requires reversal in this case is that there was a column that indicated whether that image w confirmed by the national center for missing and exploited children to being from a known series of child pornography and here the same that those statements are hearsay because they're out of court statement offered for the truth laptop there was no testimony from anyone who had personal knowledge or had investigated or worked with nick nick that he did it over a hearsay objection there was no objection which is why it's under planar review your honor there was no specific testimony as to any images from the dell laptop but on exhibit seven there is an indication that one of the images that was found was a hit from nick nick and that was confirm child pornography even making this more problematic that image was not introduced to the jury so as the plain language of the rule and the cases indicate this statement being that there's confirmed child pornography kind of shows why the government chose certain images or did what it did but that is a one eighty from how the prosecutor used this spread sheet during trial closing argument defense counsel argued that based on the dell laptop and i don't think it was disputed that there was if you found on the speaker a hard job but it was heavily disputed whether the images on a laptop or child pornography and in closing argument defense counsel argued there's no confirmed child pornography no one came in testified and told you that that was confirmed to be child pornography and argued while those images did not meet the definition of child pornography to have the images been presented to the jury not the one that was confirmed to be child pornography there were other images that were presented to the jury from that laptop but then on rebuttal the government stands up and says that's not true you see exhibit number seven you see that there is an image that was found on the laptop that was confirmed by nick nick to be child pornography so it absolutely was offered for its truth and argue that it could be considered for its truth and the record again makes clear that the jury considered it for its truth the jury asked i think it's the second jury question asked what can we do with government's exhibit seven is it enough for us to consider that there was child pornography or do we need the actual amaj and the government and the defense counsel at that point objected and said no this is can't be offered support truth and the district court's response said it's up to you to determine the evidence and whether the government has met its burden which allowed the the jury to then consider this he hearsay exhibit seven for its truth and it also violates the confrontation clause because statements made by individuals specifically those who are involved with nick who had made the determination that this stated there was no testimony as to that dell laptop whether any of the images were confirmed to be child pornography and it affects both counts because there's an indication that the jury relied be harmless as to the possession count because in the verdict form the jury indicated that there was no victims under the age of twelve for the possession count and it was kind of clear as day that some of the images on th e hard drive had victims up to the age of twelve so that indicates that the jury rejected the use of a hard drive for the possession count and it's likely that they did that because during closing argument the prosecutor told the jury that they could do that the prosecutor made arguments of ok there's our us about the seagate hard drive that he didn't have it but you can reject that because it's all on the dell laptop and there was no struction from the district court that the jury couldn't base both counts on the same images and there's no special interest to try to indicate that that's not what the jury did and said the indication we have from the record is that the district or that the jury didn't pay attention or use the secret hard drive for that possession count so it was incredibly damaging evidence and it did impact both convictions in this case and apparently addressed the waiver argument but even so there's no indication that defense counsel was aware that he was just giving up the subject which is required for a waiver and said it's just a failure to object or to request any kind of limiting instruction and it reputation of judicial proceedings the defendant counsel in this case tried the case strategically the defendant one of the jury to believe certain things and to ignore other and so the fighting issue at trial was about knowledge the defense counsel objected to hearsay when it suited him but not when it played into the theory of the defense which is fine but that doesn't make plain error and at the end of the day the sufficiency of the evidence here was overwhelming and the jury simply didn't believe the story that counsel wanted them to believe explained further his his attraction to minor boys who are fourteen fifteen or sixteen years old he told the jury that he was living in oakland california in the residence in may  fifteen december of fifteen in january sixteen when a number of the images on the laptop were downloaded he admitted he built computers he admitted he had access to that dell laptop in the home and used the internet on it  on the very same hotspot the u n x dollars ninety nine five three that was encountered by officers when they when they searched the home and if the court looks at government exhibits to j and to am alone effect is substantial rights and that that as i said seriously affects the fairness integrity or public reputation of judicial proceedings and he cannot do so and it has very much to do with the defense theory of the case and i'll try to take some of the arguments in turn beginning to track counsel's presentation here the defendant cannot show constructive amendment because he cannot show substantial likelihood that he was convicted of an  actual prejudice in order to reverse on that and the prosecutor's comments here go to knowledge the defense the government's admits that a close reading of the transcript in particular the cross examination of deputy c shows that it's defense counsel who appropriately for him is trying to confuse the issues of what media was received and possessed when trying to trying to confuse the jury as  distinction between the receipt in the possession taking and just a look at the seagate hard drive all those dates were two thousand and two and so it's impossible that there's no evidence  that there was any receipt job or not graffiti on the c good hard drive it simply all had to do with a dell laptop and defense counsel of course had to discovery knew the dates and i would submit based on the record tailored his argument accordingly the argument went like this my client used to be an addict a child not used to be an avid collector and downloader of child pornography and was convicted of possessing it but now he just likes to look for smooth young boys on the internet not for child pornography and you should believe ladies and gentlemen the jury that all of those dates back in two thousand and two on the seagate hard drive are in the chicken coop should be ignored because that's from back before he was getting therapy and by the way i'm not going to object to the nick nick  because i'm going to argue later in closing as he does that there aren't nicknack hits for the laptop there are only nicknack hits for the two thousand two seagate hard drive images so that that the fact that the that spreadsheet in fact he borders deputy cava extensively on it and there's a record of this you can see whether he's he's trying to decide whether to object to this but deputy cava comes off in his view based on the record as submit that a close reading of the record shows this this theory playing out and when the question comes back from the jury the objection is not made then either as to venue judge moore was asking about venue venue is is waived period it was not raised at the beginning of trial when it could have been fter trial it could have been raised then and it wasn't even if it was only evident after the close of the evidence and and well into jury instructions when the jury asked the question to each one of these issues that are raised there simply has been no showing on this record of air that affected substantial rights and the cigs exhibit seven how many of the images that were taken off the dell laptop were identified as child pornography my understanding of the record judge is that there was a claim that there was one and i think that had to do with identified by nick nick yes i believe my understanding is that there was one and that comes from this discussion in in the close i have printed and attempted to view that exhibit and frankly the print is very small  but i think there was one and and that i think the court would know there was objection about because that was inconsistent with counsel's theory which is the government can't show any child porn authoritative nick nick hit child porn on the laptop but then there was argument oh well there is one now the jury asks a question about that and so the defense counsel objects says well that's not in evidence you know that shouldn't go back because that was inconsistent with the defense theory and i think a close reading of the record shows that that it was that the case was tried strategically as it should be but that strategy cannot and should not and is not be a basis for plain error reversal on these facts on this record if there aren't further questions the government believes that start with the venue assertion that it could have been raised later our position is that it couldn't have because the problems with venue and it getting blurred didn't occur until really closing argument and there's two arguments that are very related that go to venue first being the failure to instruct and second just plain old sufficiency of the evidence now this argument that well you could request the instruction later the discussion on jury instructions on objections and what needs to go in was done before closing and in fact some of the instructions were read before closing started and then there are a manger were read at the end and that's all again occurred before the supplemental instruction so it's win win was the realisation i think it was a combination of things and it really came to fruition with that final supplemental instruction but the major problems did occur during closing that at that point in time there wasn't and which is why i think it's plain air and i think it's also reasonable to see why it is plain erika's maybe in the heat of that moment you're in closing arguments are getting right guestimate the jury when you're just trying to go back and forth to make arguments of the on the evidence you're not maybe thinking clearly of oh wait is this really proper  indicated the court did not want to hold counsel for not predicting what would happen at trial prediction that the problems would occur and that it would be a lot better argument a stronger case if it were preserved if that instruction were requested which makes it an additional burn to overcome a plane or review but it doesn't establish a waiver nothing establishes that defense counsel realized at the end all there's a there's a venue problem here but i'm not going to bring it up or i'm not going to request an instruction there's no intentional relinquishment of a known right now turning to the sufficiency challenge there's no  challenge to venue in the motion for judgment of acquittal and the circuit has been dressed whether this was required but most other circuits to address it have found that it's not that when a defendant makes a general motion for judgment of acquittal as was done in this case that that is sufficient to challenge the sufficiency of the evidence for venue there is not an issue with that or preservation of that in this case as the majority of circuits have found what defense counsel did w image where the hit was indicated was not introduced is not one of the i believe ten images that came from the dell laptop so none of the actual images that were alleged child pornography that came from that laptop were any that had even from the spreadsheet nick mick report and there was no in court testimony from a law enforcement officer that those were confirmed images of child pornography and it was hotly contested at trial whether these not only were knowingly received but whether they met the definition of child pornography and defense will try to mitigate and use it to make a stronger case and a stronger for defense which is just what defense attorneys do all of the time but nothing about that conduct indicates a waiver or i think this exhibit which states that the images are conclusively child pornography is beneficial to me so i'm going to use it to my benefit point when the during closing argument when the government and robot will argue that this could be after all it could be considered for its truth could be considered for the fact that there was confirmed child pornography on that clearly a waiver of this objection i mean to me that's different from a situation where you object you lose the objection and so ok now i've got to make the best of it now and and try to minimize the damage but here without an objection an opportunity for the court to exclude the evidence how can now be erased the then must ignore it to be able to raise us playing or review this conduct of discussing it trying to mitigate it trying to point out problems with it is just an attempt to put on a defense but nothing about that conduct indicates that defense counsel was aware i think this was hearsay and it shouldn't have come in and i just didn't do it for strategic reasons or i just decided not to do it nothing indicates that defense counsel was aware and all the indication is that it was just a mess and there was just a failure to object to this exhibit because it is very damaging evidence and it obviously had a major impact on the jury as indicated by their question they wanted to rely upon that substantive proof that the dell laptop had confirmed child pornography and the district court response which in that use again there was also an objection that the jury should be instructed that it can't be considered for it truth but the district court's response allowed the the jury to do just that and there's an indication of how they felt at the verdict form but they relied on that laptop and they relied on that hearsay spreadsheet for both counts because there was not a finding of under twelve under the possession count and that evidence was pretty much undisputed that there was child pornography and there was strong evidence that the victims were under the age of twelve but there are no furthe