establish that the defendant's conduct crossed the line between fantasy and criminal conduct there are numerous hole marks in this case that put it on all fours with united states v volley and the same result should follow that mr van i says conviction should be vacated first like involuntary the government and asked the jury to make an irrational an arbitrary distinction between emails that the government deem to be fantasy and e mails that it deemed to establish criminal intent and i think there's one e mail that we highlighted in our briefs calls the repairmen scenario in which the government was challenged on the reality of that e mail because the defense introduced and it ends that showed that it wasn't a realistic scenario well that's only because the i think the sister lives in a building that had a superintendent that would fix things but how would anyone know that i don't know whether i don't know whether there's a superintendent in the apartment house of anybody i know that i guess the point of the argument is that in response to that the government to the jury you know what that in a realistic scenario that was actually that e mail amongst several similar emails was actually just a sexual fantasy it wasn't reality we asked you to consider other in merrill's to be establishing planning and criminal intent but that one was just sexual fantasy so even if your if the government had made that argument that might be one thing but what the government did was leave the jury with no principle basis to establish what was the distinction between these e mails that otherwise acknowledged somewhere fantasy judge card if he was the district court judge in both cases yes that's correct and wrote very carefully and at length drawing the distinctions that he saw between the factual record created in both cases which included such things as in valley numerous dates being set up between people who did not know each other valley and his correspondence didn't know each other they didn't know the real identities they never knew their actual names they never they didn't share information about their actual lives with each other and in contrast here the individuals knew mr van highs they met in person they knew each other's lives they knew about each other's families they were components of reality that suggested an element to that i think judge darn if he found it meant the jury was not just speculating or acting out of fear as they might have in valley where there was a police officer involved there are that the jury was entitled to draw the inference is it true do you think the judge carnes he was wrong in drawing those distinctions between the case you call the materially indistinguishable i call it materially indistinguishable i do think that he was wrong and i do think that there are some of the even factors that you've identified in his analysis are you know twined with some of the conduct that his co yes right otherwise he had no telephone conversations with mr maltz everything was you know each other's actual identities correct yes and i think that some way is that the fact that mr van ice used his name and didn't conceal his name is actually negates the inference that he was trying to do you know actually commit a kidnapping because and i think it actually is the record is clear that mr bin ice was very unsophisticated and didn't take steps to conceal his identity but i think that the content of the e mails is is identical in the fact that the the trenton meaning is the only person mean that took place it took place months by any account months before any concrete discussion of what the government characterized as a concrete plan with respect to specific individuals and during that meeting there was nothing that was discussed that was specific about anybody in the ice family who the government later contended were the specific targets that is actually even more substantial than that took place in in van nuys there is evidence that mr folliot was an asian internet searches that he what what particular would you point to th at made it unreasonable for the jury in this case to draw the inference that there was a real plan and this was not your fantasy well i would say there's two things one that the government basically the jury to disregard evidence about the repairmen scenario is real and said that those emails were were fantasy but other e mails that had the same elements just as involved and were real and they were intended to establish planning and then i would direct about this a meeting mr ash and mr melts discussed it with each other and they said have you heard from mike he still wants to do is wife the response was we have not been on the same time my hours changed he wants to do his wife and sister a lot and who knows who else and still not be suspect the response was he is not in the real world if they continue to talk about that tomorrow and then they play and at the bottom of the email they just completely change the subject into our start talking about another person for the same day they say oh there was a this cross dresser from new york city who told me he wants to come to me on friday to get strangled that's the same day that supposed to be this plot in trenton that these parties are all going to go and meet to kidnap strangle mr b and i says family there was never employed a specific plan there was never a specific date nothing ever happened in this case between any of these people to establish that there was an overt act and for in furtherance of going after members of mr  please the court my name is courtney heavey and i'm an assistant united states attorney for the southern district of new york and i represent the united states in this appeal as set forth in the government's brief this court should affirm the district court's decision as judge guard if he's thorough and thoughtful post trial opinion demonstrates the evidence supporting van high says conviction was abundant both as to his agreement to kidnap and wonder how you can say it's abundant when it when you really have to work to distinguish it from voice which which was insufficient i mean i i'm looking at these e mails and in terms of the fetish elements they seem to be exactly the same the gloating over the same  in the government's trial brief they say quote it is impossible to determine and when exactly the meeting occurred a review of the evidence confirms that it was likely approximately a year or longer before ash st met the undercover in february rd team all the evidence can possibly here there was specifically that what the just your core you didn't argue with in it's not in the in the indictment or the determining factor here is what was put before the jury and what a reasonable jury could have found and the evidence that was put before the jury was in particular ashes record a conversation with an undercover f b i in january th two thousand and thirteen where he discussed that in person meeting with an quote that it occurred about a year ago and your honor that was sufficient evidence from which the jury could have found that that meeting occurred in january to early twenty's that's your you said there were several i mean i'm determining or that is one of the distinguishing factors between this case and bali in the course of the communications that involve an heist discussing kidnapping raping and torturing his family members van huysman he shared their photographs the street they were living on their relationship to him the ages of the children the fact that his wife had mental health issues and had previously tried to commit suicide and the fact that she was pregnant all of that distinguishes this case from valley again you had the coconspirators repeatedly expressing their agreement to engage in in the planned activities  as this court has held conspiracy does not require that the individuals have agreed upon the precise victim and all the precise details and so this meeting was that  st step in where they did discuss murdering kidnapping and dumping a body could you address the vanishing plots issue under stand that when ash tells him that he in meltzer free on october th never responds and there's no follow up at all infalling that happened as well that made plans and then the date came and went and no one showed up or even mention that they had made a plan why isn't that also a signal that this was a fantasy and that the jury overstepped well your honor this this court actually addressed that issue with respect to ash and one of the key factors here is that as you jury to draw was that that that key factor then caused everyone to lay low so this wasn't whereas in valley it was repeated he had they would have entire plans you know the blueprint came of the specific date it came and went and these exact coconspirators are still you know talking with no mention of that plan and that victim what's the evidence that the on his family was discussed at the trenton meeting whenever whenever it took place your honor their record does not reflect that of an high says family members were discussed in that meeting however that  isn't the the conspiracy was to murder them yes your honor however the entire conspiracy did not need to be drawn out in one particular instance so that meeting was the  year gap there was a meeting that did not take place more than a year later at which nothing was and which this was not discussed and it doesn't really i don't want to move to get you there well your honor and this goes back to i think something you had previously said the these part the conversations that these parties had once they started discussing van high says family members they did refer back to that meeting in the context of these conversations and so the parties themselves my sis in law and her and her babies yes when do you think the next time we can meet up is so they were talking they were referencing that meeting in the context of ongoing discussions once they had decided that fans isis family members would be the targets and again i would and again as ash excuse me as this court found in ash the nature of these communications frequently came back to a concern about getting caught and  precisely because it was a real conspiracy that they wanted to be realistic and their planning and avoid getting caught and to the a five hundred and seventy nine that appellant referenced the concern that mouse and ash had was a concern that van high says plans could get them caught it wasn't a concern that van heist didn't actually intend to this to the contrary it was the fact that all of these parties were serious about it were serious about actually committing the crime when they weren't except when the e mails went out they were pure fantasy as the government conceded so sometimes they were deadly serious about murdering people in their own little children other times they were your honor a couple of things st the government in their in their summation was merely indicating that the jury did not need to find that every single e mail was in furtherance of the conspiracy in order to find that there is a conspiracy and that is a legitimate statement of law and as we've already pointed out the repairman's scenario is the only instance that they are pointing to to to say that this was somehow impossible and it is categorically different from  t where he was for example claiming to use a human sized been where he had a specific plan to murder kidnap three different women in three different locations that were thousands of miles apart including india and pakistan that's just simply not the case here you can't take one what the opponent is trying to do is take one repairman scenario which is not facially impossible and there as your honor pointed out there's no there's no evidence that van heist didn't understand or know that or excuse me to the contrary that he did know that there wasn't that it was impossible and he didn't have to be a criminal mastermind with the perfect plan to avoid being detected in order to be guilty of rebuttal i wanted to just address the government's point that they were concerned about mr van ice being too unrealistic and getting caught i think it's critical to note that there has to be a bilateral conspiracy here so to the extent that they're distancing themselves from mr van nuys because he has  additional people the government noted that oh in march two thousand and twelve suddenly there becomes specific talk about the vietnamese family well in the march two thousand and twelve e mail exchange and talk about the there's no address there he responds in a house or in the car and mr be nice response of the car that's it that doesn't have that and nobody said hey what's the address so i can go there and find it that's the distinction between violet and vali somebody asked what the address was and and he didn't provide the address but nobody asked for that here because nobody was ever serious about finding these people right there was no specific address given and i think that that is you know an overstatement of the evidence and i think it's significant in telling the government has to characterize it like that in order to bolster its case when there's no basis for it and in the record how do you distinguish i think ash is distinguishable in numerous ways st of all mr van ice within the context of count one there was additional conduct by ash he started doing internet searches including things like chloroform looking for chloroform how to kidnap a person those are facts that this court relied on in ash to say that there was evidence of specific intent to commit to follow through on a conspiracy there was also the fact that mr ashe and mr meltzer had a much more real real world exchanges peter lee on the phone they met in person so with regard to mr ashes real life encounters with several of these other people his he had more like real world acts that took place than that mr van nuys who is you know escalated after his involvement with mr van nuys and so i would just really urge the court to separate out the conduct of mr ashe and to focus on the sufficiency of the other gets mr van ice because i think one thing the character the court was very careful to do in united states we violate was to try to draw rational distinction between fantasy and reality and i think that if the court finds that mr van i says conduct was criminal and mr vollies conduct w fantasy that line is going to be irrational and discernible but you know i think that there's a real there's a reason why and obviously i didn't read the briefs in the other case and they're not i don't think the ash decision is binding but i do think that there were more