our fourth case this morning is united states versus cos false testimony for the other three issues we stand on the arguments as we've made in our brief we're happy of course to address any questions posed by the court on the other three issues the government's evidence was insufficient to convict cost of for continuance and one of the reason it's a district court did so was taking into consideration the impact on the minor victims in this case all of the victims with respect to the charges in it shouldn't be the decisive size of problem of the tax the victim the impact on the victim certainly doesn't outweigh the time available for preparation for trial or the likelihood of president approaches i'm sorry or the defendant's role  counsel had two other trials had a short amount of time to prepare as you get additional evidence for this trial should the fact that the victims were minors and given the nature of the charges have that extra weight in terms of denying a continu was in september a seventeen so on the on the continuance points what's the best argument you can they added at every level of particularity in specificity with respect to prejudice because in your in the reply briefs you know which are well done in there are clear and all that they don't get all that particular with respect to the prejudice well for example your honor discover misconduct may have been able to better prepare and brief the cell phone issue or she may have been able to better prepare or brief the dismissal for count three but the fact that she had to look at this boat lease what she describes as mound of evidence a lot of which was only available to her at the government's office building after the trial had been pushed back is what made difficult for her to anticipate a lot of these issues that could come up the trial is there's there's mention in the record i just want to get your view on whether it's accurate not that what was really you know new quote unquote in the discovery productions that were made was really what fifty or seventy five pages something like that it wasn't you know thousands of pages that were turned over and the transcript refers to it as a list of at least i a couple of bankers box words of paper i don't know how much that equals two but enough that she felt that it was substantial i come to the transcript said that she anticipated getting that amount but that she actually only received roughly fifty new photographs from the search warrant and i think i remember at least a hundred pages on the trip and the time line on august eleventh seventeen the government alerts her additional forthcoming discovery of at least one hundred pages argument at the time that she was asking for the continuance was that she was anticipating a lot of discovery but the briefs talked about her just getting the smaller amount whether it's fifty or one hundred but mostly photographs from t engage in sexual activity for two reasons first the government failed to prove beyond a reasonable doubt because these mens rea has the requisite intent coincided with the actus reus action of crossing state lines second the sexual activity that occurred after the return trip to indiana despite what the trial judge said was not the dominant justification for the travel and therefore is not violet is twenty four twenty three a different the difficulty that i have that would be helpful with your reaction to is that the only relationship that the defendant had with the victim that we're talking about here you know his dad you know sadly pimped a prostitute there was no other there were in the relationship was entirely grounded in prostitution and you know if there is anything that suggests that that's not right and in light of that text message exchange about text message that was sent on february twelfth i mean how is that not sufficient for a rational jury to convict on that count three or two responses to your question on a first is worth noting that yes those there's nothing to suggest that they had any other relationship apart from the one that you described but there's more evidence than just that we know that on a daily return back to indiana that the miner had informed john of her age and her status of the job was upset that the mili fled back to hammond indiana where all three parties live and that that that evidence that chain of events is very important because it proves we really know that all three parties live there so they would have returned to him in confirmed hours after they returned to indiana that they were set for thursday in light at the feb twelfth text asking for something next week again well i think that's important for the intent piece and tent before they left illinois but as i said in their brief in the state again today that's not the way intent works has to be before crossing state lines not after that's that's consonant with the plain reading are you saying that you can't use evidence from after the fact to prove intent before only the plain reading know your honor only that the plane reading of the statute is that the men's room must come before or during the quote the trip and so the government had to prove that he either had it before or that it was second the government had knowledge about asia and aus false testimony and third this false testimony in fact is the truth seeking process of the trial such that it created a reasonable likelihood of affecting the judgment of the jury testimony cured through what the district court did once the court learned of the the false or inaccurate testimony namely that agent was recall and they were allowed to impeach or so the jury heard the fact that she did not give this additional information about her involvement in the case up front yes your honor in this case agent landau did come before the jury again six days later and it's our position that that extended time gap of six days i not sufficient to cure the false testimony and for that be analogized united states versus freeman in freeman there was a twelve day gap between when the false testimony was presented to the jury and when the prosecution team stipulated to the false evidence and in that case the district court determined that was a due process violation which the second circuit agreed and in this case we find that to be similar that this six a gap simply could not cure the false testimony because that false testimony informed how the jury not only lewd agent landau's credibility but also the credibility of the victims as well why wasn't it a jury issue at that point six days later they heard the difference and testimony why wasn't it a jury issue to determine if it was just an honest mistake or if it was intentional or something that would impact your credibility yes your honor in this case the district court did note that the jury would be able to determine that however it's our position here that this false testimony because it happened so late it did still have the reasonable likelihood of affecting the judgment of the jury because at the beginning of trial presented herself as a completely detached and unbiased witness which gave her a heightened sense of credibility but then this credibility by her creating this narrative scheme of these prostitution practices was really the glue for the entire trial and so in the subsequent victims testified their testimony also received a heightened sense of credibility and so at this point in time with the six day lapse it's simply too late for the jury to take all of this into account when they have relied on agent landau titan since the testimony from the very beginning once they heard that bell ring it's simply possible for them to on hear that bell additionally your honour's as for the false testimony itself it's important to note that in freeman and boyd these cases indicate that the false testimony may not rise to the level of perjury rather it's sufficient that the jury would like me to understand this evidence as something the prosecution team knew to be false which is precisely what we have here and out indicated that she had absolutely no involvement in the case and knew no knowledge of the facts of the case however reports indicate that this information was false what impact i shouldn't have on the court given the nature of her testimony what she did not disclose the first time she testified was not really that much involvement in the case she had gone with the case agent to the hotel to get some video footage and registration and that was it in she wasn't involved in more afterwards so she was she wasn't actively investigating the defendant she didn't meet with the victims it's in the scheme of things somewhat inaccurate what impact should that have a hard decision it's our position that her expert testimony witness should have a high impact on this level of false testimony because even though the false testimony went to her participation in the investigation of mr coffey this credibility issue that she presented to the court is something that the supreme court in nappies has recognized is grounds for a false testimony claim and this case her hiking testimony made her expert testimony seem even more credible but we shouldn't view that in isolation of agent land herself but the impact that her heightened credibility had on the victim's credibility as well she was kind of the glue for the entire trial because when the jury heard the victim's testimony their story fit into that narrative that agent landau had previously created so this credibility issue infects the entire trial not just a gently endows testimony i just know your honour's the government's use of knowing it tells testimony should not rewarded by this court the failure to grant a mistrial sends a message that the government can get away with not correcting false testimony for the foregoing reasons your honor we respectfully request that this court reversed the decision of the lower court thank you thank you this conviction the court started on the continuance issue and the district court here propre only balance the all of the factors in this case and it did not abuse its discretion in any way in weighing those factors where the victim still minors at the time of trial two of the victims were minors yes your honor at the time of trial a c and t l were both well a c certainly was still minor at the time of trial and i believe it was seventeen i think in fact it might even have been like her birthday or right after her birthday so they were still minors at the time of trial so if the third victim g p who was already an adult the time of the offense she was not but you know regardless of the reasons you oppose the continuance is g actually in prison and on a material witness warrant correct that was one of the reasons yes and also the impact on the other minor victims one of whom was he could be taking some like community college courses and the other if he really wanted to get on with her life as well as the statutes provide special and heightened concern to minor victims but eighteen u s c thirty seven seventy one a seven applies to all the times minors and adults alike and under the justice for all act provides that all the dims have a right to avoid on reasonable delay this is always a balancing act it's all i mean i think the district court itself even said there's never going to be a case where a defense attorney is important or a government that is going to take if i had more time i would do this better we all could benefit from more time that said these things have to be balanced and the district court has to cut the cord at some point and and the district court really decided that five continuous was enough there was two and a half years here and there was plenty of time judge same to your question there is no specific i don't if occasion the record at the exact amount of time of of evidence was in fact turned over what was represented in what's in the government's letter is there was fifty pages which was mostly search warrants of new evidence that was never before available to the defendant the defendant really never made it has made any claim that you know a month or or month and a half that they were had is not enough time to amass fifty pages of discovery as to exactly what number of bankers boxes the rest of the evidence took out i don't think the answer that question is clear what is clear from the record what was clear in footnote two of the government's letter is all of this information is evidence that's been available to you and to bolt your second and third prior warrior's sense i believe it's december at least december twenty sixth seen if not earlier and what the government did is said look with their the way that these electronic searches work of course as we all know these data can accumulate is that these would now printing out take up half of the room to do it all the data just on one individual cell phone but we went through and we found evidence were actually going to admit a trial and then we printed out that evidence and we gave the defendant that evidence and said hey here's what we're actually going to use you haven't come by to check out our evidence yet but you may want to look at this because this is the exhibits it's going to be in a trial or maybe in a trial so i mean a good estimate would probably be whatever it be it might well have been a banker's box but it would have been what was stacked up in front of the jury as exhibits a trial which often includes pages and pages of computer lines and and code that then other witnesses interpret and tell you what that means or says well this is the code and here's the picture of course the picture of what matters mr hall and you make up or you made that production i thought i saw a reference to trial counsel right shortly after her appointment yes yes and the letter is included in our appendix it's government appendix twenty five through thirty and that letter was sent on december eighth of two thousand and sixteen so this is notifying them of all of the data we have the data we've looked at the data we haven't looked at i mean it's a very comprehensive letter setting forth what all of the evidence is and and you know at the end of the day though this still goes back to standard review the district court consider all of the factors every factor that this four has ever said the four should consider consider it considered the victims should consider the need for counsel to have more time to consider all of these things it made factual finding defended appendix ten very little of the recent production is there actually new defendants appendix eleven th impact on the victims of the sex trafficking charges weighs heavily against further delay appendix nine of the ample time for trial preparation since defense counsel was appointed last november and appendix eleven on balance a continuum that could not be in the interest of justice those  factual findings district courts not abuse its discretion in making any of them turning to count three the sufficiency question again your are there's a reason that we don't try these kinds of fact questions in the court of appeals the jury could sit there in the jury could make these determinations and pulling back the defendant's only relationship with any of these miners was pimping up as you pointed out such stuff or with with a c she came over initially thinking she was going to be a child prostitute he illinois the jury could reasonably infer having heard these three girls having heard what was going on she would have gone she had been gone the jury could reasonably infer no he had an ulterior motive the only reason that he had her around was to continue to prostitute her and that the text message evidence with the john who wanted the same girl that that straddles the travel yes it does and the state line straddles the state line some of it happened before yes so it so i mean my point is correct that the only texts that occur well when the c e o only backup a second so there's lots of techs that occur you know the techs are from pages sixty three to sixty nine so really the relevant texts are pretty much on page sixty seven so there's all these texts on thursday february twelfth when they're still in the am when when i think a reasonable jury could have for that there is a sex act that occurs between cool and t l and then they say i'm going to i'm going to wait til next week ok and he says ok that's on february twelfth at six thirty pm ok then they go to illinois way and here in illinois and she's processed to do about fifteen people over fifteen men over four days and then on february sixteenth the cool texts at twelve fifteen pm you've got me set for thursday right and he and cosby immediately responds yes now my parents claim is there back in indiana by now i don't think we know the answer that question normal check out time i believe was eleven am there's really no evidence as to exactly when they checked out when they made it back to indiana there just wasn't any testimony on that point but all that the question here is simply was there sufficient evidence from which the jury could find that cost me his motive in driving her back to indiana was to continue to pimp her and the answer is yes they have made it they've essentially said on on thursday february twelfth we're going to continue to do this within i mean even taking the evidence in his the light most favorable to him which is not standard that at ten thirty they cross back over the fact that an hour later when the when the when the john says you got me separate thursday right because the texts back one minute and six seconds later yeah strongly suggests that he had the motive an hour earlier it just didn't come to him in his mind like a good idea so this is a jury question the jury could you could listen to these girls testify they could listen to coffee testify since he chose to testify they could look at all of the other evidence in this case and they could assess for themselves whether it was more likely than not whether i'm sorry whether it was true beyond reasonable doubt that he did have that motive in his mind and it doesn't have to be the sole purpose we use the word dominant but the court the cases are clear even though the snow decision from justice stevens when he was on  court as well as the mcguire case that it just has to be a purpose and efficient purpose a compelling purpose a reason the transportation happened the way it did i mean it is certainly the case that caused and lived in indiana and at some point when he ran out of money and only he would have come back across the state line but the jury could find the reason this happened the way it did the reason they came back together the reason that he took her to his girlfriend's house and she stayed with his girlfriend was for that reason i mean he testified in his in his own testimony he also had a side job as a snowplow driver and that's during parts of these times he was out plowing snow so the fact that he left her with his girlfriend to keep an eye on her doesn't necessarily mean when he's out box no it is necessarily mean that he didn't have the purpose of continuing the freman case which is the primary case on which they rely was a government appeal the district court in that case determined that what in our view was a former serious act of misconduct occurred and determined that in that case the jury would be able to put it out of its out of its mind  that that it therefore a new trial was necessary that having heard the testimony having heard the trial having heard everything that this just didn't cure it the district court here came to the opposite conclusion and the scorcher from both of just like it didn't premature from here what was do that describes everything she ever did in this case which is essentially so stepping back seal of course is recovered from because these neighbor's house where he's now stashed her and costumes out he's not present at the time of that so they interview and t l says i was at this motel in illinois and lansing illinois that's not in indiana well it's actually very close by and agent to duty who operates in indiana somehow learns that agent landau who's an f b i agent  homeland security agent that agent landau has frequently does these cases doesn't best to geisha is the answer hotels are oreo's for being sites of child prostitution and he's never done a child prostitution case in illinois he makes a call her they don't even know they don't even know cousin's name they don't even know who he is yet she knows someone at the hotel manager or someone who's got a property interest in the motel and there's an arrangement made after hours on feb nineteenth is to twenty fifteen to meet there they meet there and then you know the entirety of of her involvement is essentially on page seventy three of the government's appendix they met at the hotel they and their investigation so this does not stick out in her mind in any way as oh i'm involved in this case she never even knew the defendant's name at that time then she gets brought in as the expert how did i realize that this this is the government when putting agent land the stand the case agent had testified that he told the government this it's in the reports how did the government miss this and not bring it down you know i'm not sure i did there's nothing in the record that explains how the government there's always a lot going on before trial there were two trial attorneys in this particular case true but prepping their witnesses and making sure that you're bringing out what you should the certainly key thing oh i think we are we are trying to excuse this that this happened in any way i'm just i mean as to why it happened i think there may have been miscommunications as to we don't know exactly what educated he said to the usa you know she let me know that at this hotel and the guy and lansing is a far different cry from she was actually there present she was there while this was going on she was there while that was going on and if the if the answer was a she told me with the address it was the hotel in lansing that may have seemed so insignificant that it wasn't something that even rose to the level of participation it should have happened in the government like i said as a defendant that it did happen but that said the question for this court is did the district court abuse its discretion when it found out that happened in the district court bend over backwards to say look there were some participation of some involvement here she said there wasn't it inaccurate let's go in clarify this and there was tons and tons of testimony about that a few days later in the trial of the jury understood all of that the jury heard what was going on and in reality so that the testimony is related to the co conviction her testimony was it was it didn't infect the trial i mean that there was this fairly basic testimony about what a pimp is about what a prostitute is about what johns are that these things occurred hotels that kind of nature in this case turned on  you know the testimony of ac the testimony of t l that that he took these sexually explicit pictures of me he prostituted me out to the extent her testimony was expert was truly expert in nature what we sort of think of as more maybe more first case expertise  that related mostly to the to the count related to g p about how process how pimps use heroin and use drugs and use these things to work people and how they play mind games with people because for the adult count we had to prove forc through the drugs and the adult victims but it how you think you do this role and some of the psychological games they play and how they keep them under control so they don't want to leave cetera that is true but i don't think the district court abuse cause me said that's not her that's somebody else i don't think any of the expert testimony in this case had anything to do with why the jury picked the victim's story over mr costin's on those kinds of court has no questions on the other issues we would ask the court three very brief points are about all your honor's first two on the motion for continuance and want to count three first as the record states on august eleventh two thousand and seventeen the government alerted the defense counsel trial counsel of additional forthcoming evidence of at least  hundred pages that's his exact same day that she sought the motion for fifteen minutes there's no way for her to know at that day that she saw the motion for continuance that did the full extent of the production and it could be more or less than what she ended up receiving on the second point on the motion for continuance is that the fact that too late teenagers are involved in this case is tragic but it should not be sure and should not weigh the fact mr cosby is facing a life sentence and that his attorney was so believer on the she was she thought she hammond mr coffey testified that he left immediately after the checkout times eleven and we know the trip between lansing and hammond it's been eleven minutes so there's no way he received those text messages whether it was the week of the twelfth of the week of the nineteen behalf of your client and the court case