good morning in may it please the court my name is trevor riddle i represent the appellant leslie wagner mr wagner's appeal raises six issues for this court to consider but in my short time this morning i would like to address the last of those to those issues the last two of those issues excuse me issues five and six relating to the court's sustaining the government's hearsay objection at trial into the question of these fish and sea of the evidence operation pacifier was an international investigation conducted by the f b i to identify locate and ultimately prosecute individuals who accessed a website known as playpen the f b i employed a sophisticated computer virus to infect the computers of individuals who accessed that particular website that virus caused the accessing computers the computers of these individuals to expose certain identifying information most importantly the internet protocol address or the ip address of the accessing computer one of the thousands of i addresses snagged by the f b i s computer virus led the agency to mr wagner's residence in white city kansas where in the early morning hours of september th two thousand and fifteen agents executed a search warrant interrogated mr wagner while the f b i s sophisticated computer virus was able to reach out to computers all over the world and search for certain identifying information the virus or net as it became known the network investigative technique was unable to uncover the most important bit of information the identity of the person at the controls of the computer that accessed the playpen website this is true of all of the thousands of computers infected by the f b i s virus including the one that paying back to the ip address related to mr wagner's residence by the time then mr wagner's case came to trial the question for the jury was actually fairly simple it was a question of knowledge did mr wagner knowingly receive child pornography and did mr wagner knowingly possess child pornography the government's case was focused on proving the element of no and the defense of course was focused on exposing the reasonable doubt on this particular element unfortunately a seemingly minor evidence here a ruling by the trial court cut the legs out from under the defense's efforts to expose the government's lack of evidence on the issue of not during its case in chief the government introduced into evidence an audio recording of mr wagner's september th two thousand and fifteen interrogation and with the exception of a few minor agreed upon productions the recording constituted a full record of the questions asked of mr wagner by the federal agents and mr wagner's response to those questions the government played this recording than for the juror so that so the jury heard everything that is that is arguably relevant already when they heard the audio the the recording yes the jury heard the recording after it was introduced during the trial the government didn't publish the recording and it was played in court for the jury the relevance of the cross examination question about what mr wagner had told the agent what was the what was the relevance that was given it was the same reason given that the government chose after introducing the statements to the end not move on to a separate subject or to release that particular witness but then ask additional questions related specifically to statements made during interrogation or what they are a fight or to bring to the jury's attention certain aspects of that statement was about a forty eight minute recording will let me ask you this is it him in the turn to argue with you that this is i'll just tell you this by hang up on your  discussion about what would it take in place what had been said during the the interview with the ages and defense counsel says quote it's relevant to the fact that just to make sure that is in fact what he told her it be given as trial counsel i often review the transcript of statements i make during a trial in them i'm shocked that things that i thought i said something and then when i hear it later i think that i really say that court that was not a very eloquent way of stating the rationale for the ability to ask in the off the agent questions related to the statement however the judge the trial judge didn't sustain the objection based on the fact that those the questions that counsel may ask were not relevant to the trial judge sustained that objection of the fact that it was hearsay and the fact of the matter is it was not hearsay that gets to that really gets to the heart of the earlier here if it's if i'm not mistaken relate it once this is hearsay is an adequate state been offered to prove the truth of the matter asserted and the truth of the matter asserted here is the sustained i asked the case agent a series of questions about questions that you asked mr wagner about this subject and mr wagner answered and we didn't get into mr wagner's answers we just kind of said to try to get out the subject matter that would have been the subject of cross examination p t s d was one of those but it was also about who had access to the computer and some of the other thinks so maybe just to highlight what they get the government was allowed to ask on direct examination  what defense counsel was not allowed to ask cross well i just you know are using a lot of time on this but the audience already in evidence right and you wanted to ask about statements that were made that are already in evidence and it's because we can have a debate over whether there's a technical hearsay issue here but it's already en but how can you show if there really was an error in the ruling that it affected your client substantial rights under rule one hundred and three if it's in if it's in you can argue it in your closing argument because it's in evidence why are we spending so much time on this issue and maybe i can address that maybe i can address both questions here by just kind of getting to the heart of what the government asking what the defense what defense counsel was not allowed to ask  into your question judge mathis and particularly that's a good point then on a cold record sometimes that seems the case you know when you're in trial though i would just say this if the government saw that it was some purpose in asking follow up questions for again the government introduced the entire recording and but then didn't say well thank you agent jones the particular witness that this that this recording came in through thank you agent jones for testimony were done or move on to another topic the government then asked specific questions about statements mr wagner made on that recording for instance the government was allowed to highlight to the jury that mr wagner never complained or made reference to any problems with the family laptop computer but because of the court's ruling on here's objection defense counsel was prohibited from clarifying with agent jones that mr wagner noted specifically that computer had no password protection and was accessible to anyone in the home through a single user account and that while he and his wife were to the people who use that computer the couple had had houseguest in their home throughout the years and including in two thousand and thirteen had people who had lived with them and so there was that computer without a password and a single user account was accessible not only to mr wagner his wife but anybody who may have been in the house well this is the the hearsay rule how are you you situated similarly to the government i mean the whole point is there admissions of are you prominent in that government hat was situated under the hearsay rule to explore those admissions because they were exempted from the hearsay rule that didn't  body and that's the that's the interesting question here because i would agree with that analysis if what had happened is the government had only introduced certain statements of mr wagner for instance the statement about not having issues with a computer where the government had only introduced mr wagner statements about struggling previously with a pornography addiction or if the government had only introduced mr wagner statements about  y the day before agents arrived at his home searching for productive if the governor had only introduced those statements and had not introduced the statements that defense counsel then tried to ask about a cross examination much like the by the government you know it's hearsay if the party is offer ringgits so into evidence to prove the truth of the matter asserted defense counsel didn't offer those statements they were already in evidence the recording was already in evidence  other purpose with there be in that context my r and i are still here my argument for this court is that i was not introducing those statements they were already introduced to and that gets to my point that yes the statements have been introduced they've been introduced by a party who had under the hearsay rule the permission to introduce those statements because otherwise they would be hearsay but for the rule which makes some admissions of a party opponent so when you get up you are not using them as admissions of a party opponent in there for one has to say why are you using the number one whether relevant but number two why are you using them and if your using them to prove the truth of the matter certain then how are you similarly situated to the here what statements came in and in that case it's a little bit convoluted but really what happened that case was a redacted version of the defendant's statements came in to evidence and in that case a court ruled that it was proper to exclude to prevent defense counsel from asking questions or cross examinations about the completeness of the statements because the aspects of the statements that defense counsel were asking about were not admitted into evidence but here they were they had arc the statements had already been admitted into evidence and had been played for the jury this really goes to i think judge mathis and your question that is what's the purpose of it well that in the opening of the door the government introduced those statements that they didn't choose to try to redact the recording in any way they introduced the entirety of the statements at that point that becomes proper cross examination ok and to be clear then cross proper cross examination what was your theory of cross examination why were you using those statements because much like the government attempted to use those statements to frame mr wagner's interrogation the same you see made and in inculpatory manner defense was attempting to counter those statements and show that mr wagner statements were in fact exculpatory and you wanted the jury to accept the truth of those those exculpatory statements i wanted the jury to hear those and be directly pointed to those statements yes it's important to note i don't running out of time so i just got to ask you a question because i came in wanting a clarification this isn't different issue on the statements issue when did the interrogation mr wagner become still a deal i i would argue to the court that it was custodial almost from the very beginning it was at seven o'clock in the morning when six  informed law enforcement agents arrived at mr wagner south's mr wagner's house well with having a residential address has a record reflect shows was on the edge of town it was very rule in a setting and a very long driveway as the case agent testified to in both the motions hearing in the trial and there were six agents and at least two cars if not more who pulled up into the driveway confronted mr wagner who didn't have a shirt on at the time at seven am in the morning now agree they told mr wagner he was free to leave and that's when the faculty i guess i just wanted to know if your position was that it was stuck historial from the get go or whether it became custodial during the course of the interview and i'm understanding the argument good morning your honour's brian clark on behalf of the united states and with me at counsel table steve mcallister the united states attorney for the district of kansas may it please the court i'd like to start st with the hearsay objection since that's where mr riddle started and i'd like to start from st principles as as you all did hearsay is defined as an out of court statement offered for the truth of the matter asserted here mr riddell sought to elicit statements by mr wagner from agent jones when she was on the stand and to offer those for the truth of the matter asserted and under that test this was hearsay now even  if judge crabtree was incorrect in sustaining the government's objection we say that that error if there was one is harmless it didn't affect mr wagner substantial rights and there are multiple several reasons for that but i just ask on the hearsay yeah it may be kind of a technical point but if if the defendant had offered the out of court statements in the st instance for the truth of the matter asserted and had argued that while it was the defender made the statement it's a party admission and then there'd be objection well has to be offered against a party opponent the party making the statement doesn't get to rely on that that rule but that isn't what happened what happened here is the government introducers the statements and they come in and once they're in why is there a valid hirsi objection that that point is  there that you have any cases that have addressed that sequence that scenario because it seems that once evidence is in a short a fair game sure and that gets to the opening door opening up the door question that i think you pose i didn't find any cases precisely on that point from this or the closest i found was the mood e o case but the fact of the matter and was that the statements were in the jury was able to hear them to make of them were they wanted to and defense counsel was free to emphasize whatever points he thought necessary in order to make his case this argument is that this one ruling cut the legs out from under the defense but that simply cannot be true because the statements were and there were opportunities to cross examine agent jones not by asking what did mr wagner tell you but just asking for example you know did he have p t s d did you know and asking her just directly  what what he wanted to that particular facts that he wanted to emphasize and i should also mention that even after the hearsay rule lang defense counsel was not an able to emphasize the points that he wanted because then he went on to ask and emphasize the very same points by simply instead of saying did mr wagner say this or did mr wagner say that he just asked agent jones did you ask mr wagner this did you ask mr wagner that will and at that point though had been cut if theoretically if if defense counsel is cross examining and really truly trying to can text realize the discussion you know give you a hypothetical or oh this was what he had a minor or not but you know well you know for example question did he appear to be disavowing that his wife had you know by his tone or did he seem just should rend with your questioning well that wouldn't be calling for hearsay would it i don't think so i think those those questions could have been and so there was a legitimate areas of inquiry that he could have been asking on cross examination  expected exposed to that would necessarily be hearsay i think that's right and i think the judge's ruling therefore didn't preclude him from asking those sorts of questions and effective as i understand it he did do that right correctly and then as you allowed to ask about topics that were that came up in the conversation yes your honor he then attempted to sort of change tactics and try and get at some of those issues and emphasize them in a different way without running again up against a hearsay objection but i agree with you judge bacharach it  may be that perhaps hearsay isn't the best that maybe it's you know just it's not the best evidence to be asking the cape that agent who is doing the interview to characterize or summarize what the statements were made that were out of court but at the end of the day i don't think it really matters to be honest because the evidence against mr wagner was such that whether the ruling went either way the outcome would have been the same and before i get to sufficiency of the evidence issue judge mathis and i wanted to touch on the issue of miranda and when the questioning became custodial and we our position is that it never was custodial and i think the  indicators that this court has looked at to decide whether or when an interaction becomes custodial is one whether the person was informed that they were free to leave and could end the questioning or didn't have to at answer any questions the nd is the tone and the length of the questioning and the last is whether it took place in a context that was dominated by law enforcement with respect to the st one of the st words out of agent jones as mouth after she provided mr wagner with  warrant both to him and his wife was you are free to leave you're not under arrest but we'd like to ask you some questions is that ok yes that's ok the agents then retrieved a couple of personal items f mr wagner i believe a shirt and shoes from the house walked with mr wagner out to a bench on his property and there not with six agents but just two agents agents jones an agent agent daniels ask wagner questions questions about his internet activity about his family about a number of different topics and i guess the best thing i can do is just direct you to the audio that is part of the record in this case and just listen to it it's very low key it's very conversational it's not antagonistic or or anything like that i just have and he won quite i think if i understand the argument on appeal i think it goes to this context question and goes something like this that there were six agents at the home there were two agents doing the interview they separated mr wagner  from his wife there's an arm in the brief that they block the driveway you may want to speak to i guess the inference being that how how could be free to leave if they're blocking the driveway  wasn't really antagonistic i'm not sure the part exactly that you're referring to is that the nd part of the audio when they're in the house viewing the child pornography on the computer it was my understanding things got more aggressive at that point the conversation became more heated at that point but to be clear that portion of the audio what was not played and the jury never heard that and so to the extent mr wagner is saying that evidence should have been excluded because it was a result of  aware of any beyond him saying it is ernie not that i'm aware of and i'm also not aware of any record evidence showing that they were you know denied permission to leave that they ever asked to leave and in any event  they record does show that this house and white city kansas is out in the country there's plenty of room even if mr reiner couldn't have gotten in his car maybe and driven away he could have walked away from the agents and clearly as as the record does show mr wagner understood that he could cut off questioning at any point because he in fact did that when he was confronted with child pornography on his computer he said either read me my rights or get out of my house and they said i'm sorry we're not reading you your rights because you're not under arrest but you're free to go there were no nor are we going to get to your house that's right because they had a valid search warrant for the house and the question of whether the interview was  ultimately question of law yes i think it is and i think if you look at this court cases for example the jones case and that case there were i think between two and four officers i think it might have been it was either three or four officers stop person at a gas station have her get into their car there are officer there's an officer sitting in the passenger she seat and in the back seat with her there's an officer standing outside the car with her and they're questioning her about the activity and they're saying you know we intercepted this package that you ordered that had drugs in it and you know are you going to you know is this yours do you know anything about this and this court held in that jones case that that was not custodial interrogation so if that's not on isolating a person as a basis for finding custodial interrogation most of those cases for example the griffin case are where two people are together one is taken away inside you know a law enforcement center office building in sort of scurried away into a small office where they're faced with you know direct and pretty critical questioning with the you know door close maybe it's open but it's very difficult to see how someone would feel free to leave in that context here the questioning took place at mr wagner's home and when his wife was within eyesight that's my understanding that she was on the porch and they were mr wagner was with the agents on benches  in the yard with in your understanding there was any testimony from the not that i am aware of that that she was within eyesight or that she saw them but they weren't separated by walls or officers or anything like that is my understanding so unless or additional questions on the custodial interrogation i'll i'll hit on the high points of the sufficiency of the evidence so this investigation started as mr riddle indicated with the and i to warrant there was evidence that a person using the name soldier mike had logged into the playpen website and in late february early march of two thousand and fifteen and over about a two week span had spent about nine hours on the site which was  almost exclusively to child pornography that username was then tied to an ip address and also a computer name the computer name was s f was s f c underscore gunner the ip address was and linked to mr wagner's home address on executing the warrant at the home the agents found a laptop computer by the name of s f c underscore gunner on that computer after forensic investigation the it was found that there were more than four thousand dollars images and videos of child pornography that had been compiled over the years and had been viewed as recently as just a week before so with respect to the argument that it could have been anyone doing this it seems hard it seems hard to believe that over that period of time where mr wagner said that no one had been living in their house for a long time that someone had gone into their house the week before to view child pornography and it wasn't mr wagner in addition to that in reviewing the contents of the laptop computer agents found at least three sequences where several usernames were used close in time together suggesting it was the same person using each of those those user names were s f c underscore wagner at yahoo dot com mike jenkins at yahoo dot com which was the e mail address ty to the soldier mike username and then the soldier mike username and so with that in one of the situations the s s f c underscore wagner at yahoo dot com username engaged in a chat looking for images of eight and ten year old girls now i should add at this point mr wagoner's told the agents that he had been in the military and that  when he left the military his rank was sergeant st class s f c is a common acronym st started st class that's ok so that's in the record that he told the agent that yes well nobody's going to make much of that in the trial or otherwise in connection with putting that before the jury that he was a sergeant st class i see my time is up i met matt yes so that was put before the jury i agree that specific point may not have been emphasized but it was  certainly part of the record that he was that was his right because it would have been part would it have been part of the tape that the who was part of the tape that they heard yes or ok so unless there are further questions i'd be happy to sit down thank you for your time o just briefly on the sufficiency of the evidence argument the government was very clear and in the very beginning of its opening its closing statements closing argument to the jury that this was a case about circumstantial evidence now certainly understand convictions can be based on circumstantial evidence but here the circumstantial evidence was really nothing more than speculation and in particular the direct evidence we had from the two government witnesses rickly was agent jones testified that as of september th of two thousand and fifteen when the government came to the house the f b i f b i did not know who was using those computers to access plate and website and even after the forensic analysis by miss amy corrigan she testified on direct both direct and cross examination that she her forensic analysis could not put mr wagner at the controls of that computer at any time that's the evidence that the jury had was that we don't