court my name is of your across and i along with my gold represent the defendant jeffrey parker's the government's call was improper their evidence was incompetent their method impermissible the result and unfair trial polluted with errors and misconduct such that the verdict cannot stand the government's improper goal was to attempt to argue to the jury that mr parker's had the alleged propensity to commit the crime charge that he was a child predator now the government admits that their closing argument was somewhat inflammatory when they argued to the jury that mr parker's coke to manipulate children that he preyed on the vulnerability of children on cross examination the government violated black letter law when they used extrinsic evidence to try to prove prior instances of cause of now they did so by reading off of e mails that were never admitted into evidence that were not the subject of any stipulation in an attempt to prove that mr parker's not that he was a liar that he was a child predator you know their actions went one step further into misconduct when on cross examination of mr parker's the prosecutor got up and asked the question that every trial learn american knows you can't ask she said mr expert but he wasn't on the stand and hunter if he was an individual that mr parkhurst was alleged to have communicated with again he wasn't on the stand that question violence that there's violated the confrontation clause defense counsel objected and the district court ordered that question stricken and ordered the jury to disregard it but a jury can't disregard that which keeps being repeat them although juries are presumed to follow instructions as this court has held in barber v city of chicago sometimes common sense has to carry the day for a jury can hear that which is being repeated to them and in rebuttal argument the government got up and argued that very same stricken evidence that they had been told to disregard they argued that the  mr parker's had been talking to hunter who was fifteen years old again in violation of the confrontation clause this was misconduct for its part the district court erred in allowing the government's purported expert detective castor the investigating detective to testify to improper opinions these are the so called candy opinion and the so called eighteen or slightly older  now in order for any expert to be allowed to testify their testimony has to be helpful to the jury here detective caster was improperly a pining on the meaning of plain words and he was under age mr parker's attempted to entice him to have sex and anyway not only was that testimony not relevant it was improperly admitted over objection casual conversation because he was lonely and looking for a conversationalist as he testified in his defense that's correct your honor which is why it's that much worst that the expert purported to testify to that intent which the government had to prove beyond a reasonable doubt and which was for the jury to determine based on the view they needed the officer did not give an opinion about intense the officer what customarily happens in these online chat rooms right no your honor the detective testified specifically to the words of this ad to the specific words of mr parker's ad and what those specific words meant in the context of what they were in which they were being used in the on line context based on his training and experience that this is grooming behavior no your honor hi testimony went beyond any kind of grooming behavior testimony specifically to what mr parkhurst meant by his words because that testimony went to mr parker specific intent the cases which the government's side that generally it's testimony about intent does not apply as such because of the district courts are and the government's misconduct mr parkhurst request respectfully request that this court overturned his judgment  good morning may please the court helpful greg walters on behalf of the united states this was not a perfectly tried trees and i think it's an example of when and if the government over tries a case that there are potential issues that arise that a trial results and long briefs as we admitted in our in our brief the question specifically about hunter that he was discovered and he was six fifteen years old was an improper question did we go forward and say well under the confrontation clause no but when it does implicate a trial rights such as the sixth amendment in this question dead and the question is whether or not that error is harmless beyond a reasonable doubt and so that's the standard we did apply in addressing that question and we submit to the court that based on the evidence in the case which the defense largely ignores and addressing the arguments that the evidence in this case is very strong as to what exactly mr parker first wasn't tending to do along with his admission that he assumed that who he was talking to was fourteen or fifteen years old and that's an exhibit twelve one for his own statement how old did you think this person was you're talking to i assumed he was fifteen or sixteen years old and then added to that text message about i may want to try to suck you i've studied how not to hurt you to take a shower because i will know the later if you are clean wanted to know whether or not when his mother would be home and then added to that the substantial step of driving from springfield to cater that irrespective of that air that that air that question which was think our point is that a defendant can get on the stand on the one hand put in evidence that appears favorable to him but then on the other hand i have a different question yes ever qualified to testify as an expert he was sure that he was there but there was a hearing under rule for oh no there there was not a creed hearing d'albert here so you think he was qualified but the district judge did not rule that he was qualified to testify as next other than a trial when we offered him as an expert in the defense and no objection and the judge your or your appellate brief says that he was in part of les fact witness and in part an expert was the jury told how to distinguish those different aspects now they were not and we we have said in the garrett case and some others that there's a serious risk of prejudice when a single person testifies as both a lay fact witness and an expert and the district judges must instruct the jury to keep those rules straight and yet you didn't ask the judge to do that the judge seems not to rea our opinions about that subject is a pretty serious problem i had when he told us regardless what they must do something we expect them to do it we expect the parties to help them draw their attention to it so they can do i argument for the first time in reply and there are opinions repeatedly united states versus your side in two thousand and nine and opinions leading up to that that it is it is a problem to seamlessly go back and  forth but and united states vs moral in which we cite in our brief this court has also said telling the jury that a witness is both that way witness and an expert witness and will be alternating between the two roles as potentially confusing and subject i don't dislike can't disagree judge here you're right it wasn't it was addressed in the trial court but for purposes of appeal it also was not an issue that they raised in their opening brief and they come back with their york argument in reply brief and so had that issue been raised in the opening brief we would have we would have addressed and the plainer standard since there was no objection to what could be viewed as seamlessly going between expert testimony and fact witness testimony although i would like to note that the the opinion regarding the at the foundational question i think is clear that is this based on your experience and training the objection to that was speculation not reliability not whether he had the ability to give that opinion but based on speculation and so that was even a preserved objection and then when it comes later on to the opinion about the team and the evidence that testimony about the about the communication between the undercover persona casey and mr parker first began at page one forty nine of the trial transcript it continues through page one eighty six and i think the context there is clear that what the witnesses testifying about is his rational perception of what mr parker's meant and we see other examples of that beyond clean cut or uncut he testified that he understood casey or he was asking if casey was circumcised or uncircumcised no objection about that rational perception coaster was asked what he understood to mean may like to try and suck you if you're interested and he testified without objection he was offering my undercover fifteen year sex or about the showering what did you understand that to me that is going to see me naked know if i'm clean or not and judge sykes i think you are correct that he did not testify t mr parker's ultimate intent when he testified about that ad if we look at the exact testimony he says regarding that the age eighteen or slightly older younger the better what detective coaster then says that's a way for people to get around the craigslist terms and conditions he's not speaking how does he know that was that part of his lay testimony part of his expert testimony while if you look at the foundational question right before that judge easterbrook that says based on your education or experience and training that which they had just just hot air my question i have two parts of this question one how does he know that just talking you know your experience doesn't answer the hot question and the other is was this way testimony or expert testimony this is one of the very things on which the jury might well be seriously confused well is first if you're not you know you seem reluctant to tell me whether it's way or expert testimony i'm not at all i pad i believe it's expert testimony based on the foundational question and the question today show question didn't ask him how we know something no i did not nor did the objection say foundation it was speculation well all right so basically the answer in this record is we have no clue how he knows that we have no clue whether it's right or wrong there is testimony that preceded this when qualifying him as an expert that he's been involved in twenty five online investigations that he's taking training and in online investigations and and all we know is training on online investigations is just full of rumor and innuendo false facts they are now called is there some way to test this against the world that is is there an empirical literature about this question any kind of scholarly literature about that question i think knows or scholarly literature about so and i were well would call it double speak somebody gets on the stand and says a note requesting somebody over eighteen means under eighteen ok maybe people mean the opposite of what they say but we need to have a reason to believe that that's true other than i say so i say strip i agree and i think part of it though is what had state's beginning what is potentially problematic is over trying her case because which enter that self is not near but it does raise potential problems for air i think it was apparent from the evidence as a whole what he was trying to do i think it's apparent from the ad followed up with can you keep a secret of what he was trying to do when they just when the undercover persona respond that i'm fifteen years old is that too young and the response is can you keep a secret so i don't i don't understand that there was quite sufficient evidence in this case to convict without this other stuff but it wasn't tried with this other stuff no it was not and that's why we've made the argument as i think we appropriately need to that if there was air it wasn't prejudicial under the plane your standard or to the extent it was preserved it was harmless correctly and well and we did not do that but ultimately the question this court has to answer is as a reversible error because if they want to use the prosecutorial misconduct framework for a lot of this  we're looking at first was there impropriety and then secondly prejudice and ultimately we suggest to the court that the prejudice is not there the question about hunter was improper but going even to the closing argument wisdom would have told the government to completely stay away from the word hunter and fifteen years old based on the stricken testimony but there was a basis beyond that stricken testimony for the government to address hunter based on confrontation with that exhibit before hand on pages three fifty eight through three fifty nine of the transcript in which he was confronted with that exhibit and it was a purported fifteen year old and that purported fifteen year old's name was hunter and i think that's what counsel was referring to and rebuttal argument by the way in response to the defense's argument that their exhibits thirteen through sixty nine were all communications with individuals over the age of eighteen so it was in response to that argument and wisdom have since you weren't that's why i asked about rule four fourteen because it looked like some of this evidence might come in or rule for fourteen and but it wasn't discussed in the district court has been discussed here no but i also think there's another basis for its admissibility your honor which is he can't get on the stand and say i have no interest i'm looking for any someone only over the age of eighteen when there exhibits his own words that fly in the face of that that's impeachment by contradiction and that's completely appropriate and when it's central to the case it's appropriate to use ex and so the judge's ruling and are not clarifying it there was confusion added on the one hand saying you can use the exhibits you can confront him with the exhibits which arm themselves extrinsic but on the other hand saying you can't use extensive evidence now they've at they've asked you this under the lens of prosecutorial misconduct there has to be one of two theories one we violated the court's work well we would say that judge bruce's statement following our cross examination that we handled it properly goes a long way and says showing that we didn't violate the court's order whatever understanding of that order there was and then to be honest i've not seen where and when there is something central to the case such as his statement that i have no interest in any one of the eight age of eighteen which goes to the heart of this case then extrinsic evidence is is admissible to contradict that so this isn't some collateral matter of whether the car was yellow or red and it is not essential that the case by which these extrinsic evidence but he is putting out there are central to the case this is what i expected or this is what i wanted someone under the age of someone over the age of eighteen and by doing that he left the jury with only his impressions in the face of contradictory evidence which by the way he was on notice of before he ever took the stand and so ultimately were there problems in this case yes but is it reversible error we suggest to the court based on the weight of the evidence his own words in his text messages in his e mails and then even in his post arrest a bit when he said i assumed he was fifteen or sixteen added with that the substantial step that despite the years the prejudice is not there  even if he later went on to say that it was appropriate that was an error on his part now the government argues that the expert testified both as a lay witness and as an expert witness and we didn't address that in our opening brief but simply because there was no indication from the right heard that this individual was testifying as anything other than as an expert and there were no instructions to the jury as to that regard now case law tells us that when the the government wants to try and say that this was just impeachment but it's clear you cannot prove specific instances of conduct for extrinsic evidence you have to live with the and certain you get that's what this court has held in barber v city of chicago and that is black letter law as stated in united states the were brought up even if there was another rule which would allow this kind of behavior the government's own  was a liar but that he was a child predator that's not allowed the government wants to get up here and say that mr parker's wasn't allowed to get on the stand and testify a certain way but what's clear and what the government admi