good morning your honour's mates please the court my name is molly carla and i'm going to start federal public defender in the district of arizona and i represent the appellant brian russell and now this case was about one thing oh excuse me i'd like to reserve three desktop computer and there were unconcealed obvious links to child pornography right on the family desktop and right on his mother in law's laptop and it didn't he present he was able to present evidence that he thought others were responsible for accessing that are downloading it well he did testify to that himself however the government put on his wife's hearsay statement that well let's precluded the defense from asking mrs rusk whether anyone else had been in the house then on cross the government introduced her prior statement which suggested that nobody else could have had access so the government actually put itself in a better position than if she had never been called well but there was a cure there was a cure a curative instruction on that as well as well i guess the cured of instruction came in the in the in the closing but but they did allow recross redirect so that the defendant was allowed to clarify that ms as i understand it was the testimony ended up being clear that stephanie resnik did not testify as to what anything about whether other people came over but only said these are the people who are residing at the home that's true your honor but the statement nonetheless suggested that her present testimony was that nobody else could have access whether or two statements and she was allowed to clarify one of them but not the other is that right that's right one of the statements was she had no idea how anybody could have done something to that that's right and the other wasn't nobody else stayed in the house that's right and she was allowed to clarify what she meant by staying in the house but she wasn't allowed to clarify the other the whole thing was exceeded material then that that witness effectively become the i want to say became the government's which showed that in that respect the witness is treated as having been put on by the  right and the key point there as with confrontation clause is that the government was able to create a false impression and so the jury was left with what what was the false impression was the false impression that no one stayed at the home or was the false impression that well i just really didn't think anyone had the ability to access the child pornography on these computers well i think it's bull judge nelson and that's because she would have said yes that's what i thought at the time i had maybe i hadn't really given any thought to who else could have had access but now i've had the opportunity to do so and you said i mean this strikes me as an odd argument where this isn't just one computer that there was one accessed it pornography child pornography accessed one time you have a computer at least four different computers by my count thirty three different computers thank you for clarifying that for me so we've got three different computers and at least one of them it was accessed and downloaded in two thousand and ten something else was revised into look at i'm not sure what that means in two thousand and thirteen modified i think was the term that was used and i don't know what evidence there is about the last time it was accessed but this is it doesn't seem like that far of a stretch here if if the defendant if the only evidence here was that there was one instance you know where even a couple of instances it seems like you would have your client would have a better argument for prejudice but here considering all the evidence i don't it just doesn't seem like that much of a stretch for the jury to think it's highly unlikely that someone else accessed all of this could have been unlikely your honor but i do think it prejudiced the defendant that is governments bringing out her prior statement and then not allowing for redirect on that point because instead of just having his testimony that other people had access particularly sergeant chamberlain you had his wife gutting his defense effectively by saying you know i don't i told the f b i that nobody else i didn't think of that but that's a true statement that's what she did tell the f b i correct that is but that was hearsay i understand that it's we'll let have the government explain why they didn't admit that in an inappropriate way but but at the end of the day it wasn't a false statement it's not like there was testimony that couldn't have conceivably come in in another way i'm not sure you mean by what what other way it could have what you write your honor could have come if either if the government had had called her on then presumably she would have testified yes after they could have just brought in the police record itself that the couldn't that couldn't the government of brought the police officer in and but in the record  itself no you're one of the record still haven't heard of them here and right it still would have been hearsay i know the government didn't have to do this there were two ways the government could have brought this in permissibly one the government could have called her even knowing that her her testimony presently was going to be to appear to be different and then it could have impeached her with her prior statement or the defense could have had the opportunity either in his either in the direct exam or the redirect exam to clarify that hearsay and explain what bring out what her present testimony was what was but you haven't mentioned yet anything about the closing argument is that part of your argument yes your honor and there are two points  the closing argument that are critical and really were but are related to the same problem sorry but related to the same problem right st the government violated its agreement not to comment on that he's testimony was uncorroborated not only did it go there but it said effectively her testimony contradicted his he had no defense left and i want to point the court to the circus decision  opening brief in that case the court in the th circuit found both a due process violation and a confrontation clause violation where the defense witness was not allowed to correct a false impression in that case there the defense witness was another girl who had accused the defendant of molesting her except this girl had recanted now the government put on an officer whose testimony indicated that she had accused the defendant but new agreement with regard to discovery and this was essentially a sanction for violating the discovery agreement by putting her on it all so your arguments have to account for the fact that there i suppose that the dish a court could have just not said you can put her on or all that actually would have been better that would have put the defense in a better position it would have just well they didn't have to put her on well that's true but the defense but there was a quick button but what you're saying is yes bush was p the structures weren't followed that's exactly right your honor and i want to comment also briefly on the government's comment in closing saying that the defense theory what the defendant wants you to believe is that his friend who he still friends with went on his computer within reach of his baby looked at child porn and did whatever he was going to do and this was really damaging because but it's sort of i mean it's sort of a true reflection or at least a fair reflection inference of the evidence if if you were going to accept his position that someone else accessed that that's actually not the case you're because the baby there was no evidence that the baby was it was the it was accessed while the baby was in the room is that the suggestion right or even that it was ever accessed in that room because you know we don't know the minimum at a minimum what we know is there was a computer if he believed that someone else has access he made there was child pornography on his computer that computer was accessible to anyone that would a sat there and it was in a room with the child so it seems like you were kind  of straining at gnats here a little bit well your honor i think well that's all true what the government said in its closing was what the defendant wants you to believe in other words jury if you don't believe this then you can't accept the defense theory when that wasn't true at all because there was and i don't honestly i don't even understand why that suggestion is you know worst in the whole of the knowledge situation if in fact there i mean why exactly doesn't matter whether he was using a computer next to a baby or not next to a baby is the baby sleeping it's a baby the baby cyclicity the point of her thing you're i think of a really damaging part of that is that the government said reminded the jury which was true that the defendant said he still friends with cheney well that's i had that but that's not really i mean that's true he did say that that's so that part of it is not a problem that's true but i think it would make him you know look like a pretty bad parent if he says hey i'm still friends with this guy who i think was well but that was really i mean he did say he was still friends with the guy that's true that he does have two children that so that part's true that is true but there is no evidence that would say that the jury has to believe that he that mr chamberlain did that near else that's true but  what i'm saying is the part about him still being friends with him is unobjectionable that's a true statement that's a true statement right so the objection part apparently is that the he was watching that maybe i just don't have the right sensitivities but to me just doesn't seem like such a terrible thing to say i mean if you think somebody is watching pornography in your house with two kids what's the difference of us next to the crab or not next to the crib i'm running out of time you're on but just to nondisclosure of mrs ross next proposed testimony was for the purpose of gaining a tactical advantage and as the supreme court held informal and everything else a lawyer and a trial is for a purpose of a tactical advantage right the question is whether it's permissible as well as a summary of testimony that was not already included in the notes reports and in this particular case he chose not to do it and clearly not just because he thought the guy who was going to put on and that's really what happened she was and i mean stephanie back was on the government's witness list so it's not i mean this is a different case you're right that the defendant said i'm not going to call any witnesses i'm just going test by myself but it's not total surprise that the at that point the government had been made aware that she was going to say something else however mrs rusk refused to tell the government what the change in her testimony was going to be the government specifically asked her who she was going to name as this rd party when she had maintained all along that nobody else had access and not only did he refuse to tell them but she referred them to defense counsel right here for me so i don't think there's really a question ultimately that the government was put in you know any improper position here however is seems as if the government exacerbated that a bad on the cross examination these are some pretty basic violations that happened here and i'd be interested to know did you agree that the government went be on  solicited hearsay testimony which could have theoretically been brought in in another way but setting that aside the point is they solicited hearsay testimony they knew was going to be hearsay testimony and they did that  beyond the scope of the direct examination do you agree with both those statements no ok go ahead in this case the defense counsel when this whole issue of mrs wrist next of this change in testimony came  and defense counsel at that point blame the government for not knowing about this rd party information claiming that the government didn't do sufficient investigation and i'm paraphrasing what he said and at that point the evidence would be admissible t show the effect of the statement on the rd party to defend against what we believed was going to be a clean that the government didn't invest investigative piece properly but stephan rossner i can testify that that is correct all right so agree that it's error so explain to me why i mean why doesn't this affect a fund has caused you know his constitutional rights or what why shouldn't we find that this is an error warrant in reversal specifically standard which the government did mention in their brief whether or not it was harmless beyond a reasonable doubt and in doing so the government or the court would have to decide what was the effect on the verdict did this one little patch of testimony affect the verdict and in ion and without them being instructions from the court at that point but the the original agreement as i understand it was that they weren't going to saying closing argument that she was  that his statement wasn't corroborated and they said exactly that actually what the government said what the agreement was is the government would not argue that there was no corroboration of a different statement and what the government argued was that her statement contradicted it and then still that's and in this case had defense counsel been allowed to bring out what they claim now was only going to be other people were at the house or even more specifically mr chamberlain had a lot of access to the stated they're still together she still loves them and is clearly biased and has absolutely no information other than her own testimony to say that other people were the house but even so the court did allow redirect and allow the i that she she said that that she didn't corroborate or more exact i don't remember exactly what the statement was but it was to the effect that she agreed there was nobody in the house well she did make that statement that statement was all about the supervised release conditions and i mean i gather you agree that they have to be read john but subsequently the provision about him not access any thing to do with any children or eighteen except with probation green is isn't that a little over the top for history of molesting children are actually danger i know there is one report that the government relies on all the time but my understanding and i and tend to go back and look at this and it hasn't really been breathed is that the weight of  correct me if i'm wrong i have special conditions two through eight need to be remanded to conform the world to the written statements and then as to five dollars and eight dollars they need to be reconsidered substantively is that is that an accurate state of the record  do you want to address the the other side address questions the suspicion the search is substantively the special condition number seven so i take it the government's position is no that suspicion this is the type of evidence on a computer that is not readily seen in plain view so therefore the courts have held that it's not necessary to how reasonable suspicion given the type of offense and the need to make sure that he's not fully back i mean that's the nd problem which is whether this just ends had any chance of succeeding i mean as to and now you're right that it depends it may well depend on what standard of review we apply choice but if we were looking at it as plain error and there burn no new was to demonstrate that the notion i mean it as suspicious specially given the vagueness with which she was going to testify even if she did testify which was something to the effect of there were more people in the house who you know maybe appeared on the computer to begin with so there would have to be somebody whole was accessing all three computers and putting this clear clean clean up app on it and doing it over a four year period of time i mean is that basically accurate that my time is really go ahead your honor i think the fact that it's on three computers including his mother in law's computer and the family computer actually cuts the other way and when the government brought out this idea of again there's another way as to search chamberlain it could cut the other way perhaps as to someone else in the house which is a pretty limited number of people his wife his baby maybe the baby crawled out of the either he was trying to conceal the evidence or he wasn't and the fact is that the or maybe those who accessed child pornography are not always as careful as they want to be that might be your honor but that cut against the i'm sorry i don't understand how the fact that it's on three computers cuts against the notion that it had to be somebody who was there an awful lot and who had access to not just one computer but three computers that's true your honor there is no evidence that  any of the computers were unavailable to visitors and the defendant to testify that certain chamberlain and others but especially starting chamberlain was over frequently could have had access did in fact  n go on the defendant's computer and this so although it maybe wasn't the best defense it did leave the possibility that the jury could have concluded look somebody else had access and that it wouldn't have met the reasonable doubt standard is that you're saying if we thought there was not playing there and if we thought it was a confrontation clause problem we would therefore do it on a down harmless error and might meet that's right your honor of that i for the reasons i stated i think it satisfies the plane or a standard particularly because her testimony contradicted ok thank you very much