i represented had it scott smith after a jury trial mr smith was convicted of both receipt of possession of child pornography and acquitted of distribution of child pornography mr smith raises several challenges on his appeal  challenging both his conviction and sentence today i will focus on the double jeopardy challenge as well as the jury instruction challenge first mr smith's convictions for both receipt and possession of child pornography violate the double jeopardy clause the district court erred and failing to either instruct the jury that could not rely on the same kind that or receipt possession or alternatively providing the jury with a special interest of tory to ensure that it did not rely on the same conduct for each did you ask for both those that when the government relies on the same conduct for both how and when there is overlapping in the indictment that would allow the jury to rely on the same conduct for so forth counts if i lights double jeopardy this court most recently arguing the presented the presenting the evidence blurred which conduct supported receipt and which conduct supported possession that's exactly what happened here and the indictment there was overlapping dates although they did not completely overlap the indictment did not provide any more specificity as to what conduct supported possession and what conduct supported receipt there was no possession is based off of images that might be on a thumb drive and receipt is based off images found on a computer there was no distinction like that in the indictment the government in fact conceded before the district court when there was a discussion of these double jeopardy concerns but there was overlap but some of the same conduct supported each image the government that after the conclusion of the testimony during closing arguments argued to the jury that it could rely on the same conduct three chip which it relied on the same videos to argue for both  that's the really your honor and to address our government's waiver argument argument is not waived the defense counsel raised a pretrial motion that this violated double jeopardy and then again when discussion of the jury instructions stated but the building blocks and the analysis are there from the u s supreme court decision but what about but of a myriad of cases where where there's there's a general verdict if you will and the argument is the verdict as but what's important to keep in mind is that jury unanimously cannot be waived it's an incredibly important principle of protection under the constitution and the problem in this case why it is effected a substantial rights and requires there was not even to distinguish any distinguishing between possession and receipt there was lots of the element of attempt was charged attempt was explained it's unclear because of how the elements were marshal and the verdict form it refers to the indictment and then the jury instructions the indictment lists a tap but then when looking at just the marshalling instructions the elements of the facts attempt is not mentioned so the substantial element aspect is not for the real test as you know and that this is also your screen go to jury confusion do we think the jury was confused or not i doubt you're ok now what what evidence can you give us to say that they were confused i don't have to say anything from the jury to indicate that they were confused but i would note that even in closing arguments defense counsel when arguing to the jury noted i don't know what they're arguing my client possess received i'm not sure what the evidence is that they're relying upon and that's consistent with how the government presented the other is that it's not clear what's on the tab it's not clear was completed offense there was no clear structure for the jury to provide them that guidance and here the jury instructions only further added to that confusion and that in the elements attempt isn't mansion but then there is an instruction attempt the verdict form doesn't discuss contempt but refers back to the indictment which does discuss  states i'm going to confine and i just i just start if if the indictment and closing argument are as opposing counsel has described this morning why don't you concede more severe because there is no more  where i was no there was no instruction you can't you can't convict to both on the same evidence and the clothes and the government's closing argument muddied the water that didn't happen the government's argument closing argument the not muddy the water and i'd be happy to tell you what happened in the record in this case this case what trent you just let us read the record and then just knife and see the point why did why if the i think if the only thing is to vacate under it is to grant the relief under morsi i don't understand why the government wants to make such an issue of them except you didn't you didn't cite morsi maybe morsi didn't exist when you wrote your brief i don't know if it existed or not your honor i helped work a little bit on the morsi brief  was three days before morsi came down ok you'll be pleased to hear and i'm just going to say the district court didn't really have morsi but boy if the district court had morsi i don't think the district court would have hesitated i disagree with speculating on or that there's a whole line of cases that this court has decided on the question as to whether or not the crimes of receipt and possession of child pornography implicate or violate the double jeopardy cla so i'm sure that i'm sure that the attorneys in your office will will comply with morsi in the future and yet we have other serious issues here i was just asking for a quick quick answer and you want to spend a third t if you don't think you need to hear the panel doesn't think it needs to hear any question i think it's an important issue but it's not that important it's it's not as important as the attempt argument reluctant as a matter of due respect around your question is why the united states is defending the decision of the district court to proceed as a dad and we are doing that because we think  court made the correct decision in this particular case the indictment in this case and it probably didn't before morrisey indictment in this case charged three crime t charge distribution of child pornography the defendant was acquitted on that charge the receipt of child pornography and it church possession of child pornography what this court's precedent if you look at all of it and not just morsi your honor charges whether or not the crimes are in fact the same are they in fact the same what we had in the vestey we had a different dates that were involved and that's a clear distinction in this case documents that mr smith received in the download folder the dates in government exhibit nine are between july of two thousand and twelve and july twenty third teen they are the exact dates and exhibit nine that match up with the receipt count the possession dates the date range we charge march fifteenth two thousand and thirteen through august first of two thousand and thirteen cluing the other one yes but what the evidence showed that two different things happened on those particular dates on march fifteenth the evidence showed that we downloaded child pornography using the aires round up law enforcement program from the defendant's peer to peer program we downloaded five maintained in his shared folder saw the march fifteenth of august first dates that match up to the possession counts are all related to child pornography that was in the shared folder in the date range july of tw twelve through july of two thousand and thirteen that relates to the receipt and attempted receipt count all relate to child pornography files that were downloaded to mr smith's download folder on the file sharing program so just we indictment up following the vesti following the instructions of s t and made sure we drew a distinction with the dates and the conduct so the receipt count relates to when he received things in the incoming folder if he did the government proposed instructions both parties had the opportunity to submit proposed instruction and whether there was an opportunity i asked did you do it yes why didn't you just suggest to the obviously the easy instruction you can't you can't convictable on the same evidence and then and then it's a non problem we submitted the proposed jury instructions based on the circuit pattern structure and then of that just anything that we specifically in our arguments to the jury talked about the distinction talked about exhibit number nine talked about the difference between the incoming folder in the documents folder so we made an effort to meticulously try and draw that distinction for the jury so they were not confused  particular case was playing that effect in substantial rights and based on the research that we were able to do and preparation for our brief and for argument there is no  record to support that as far as this particular jury was concerned as i've told you as ms quick told you this indictment which are to defend it with three particular counts the jury was able to distinguish between the evidence and actually acquitted him on count one the distribution account he's charged with knowing just your view sion of child pornography on march fifteenth the twenty thirteenth the jury didn't have any problem with going through the evidence parsing out the evidence and and recording him on that but the other thing we know about the jury and its deliberations the jury did have one question the question was that i think the jury asked whether it could see the user interface which is what the screen shows when files are being downloaded it didn't have any questions about receipt or possession  or tap the defense does not challenge the instruction number seven which of the elements of receipt instruction number nine the elements of rick's possession instruction number eleven the elements of  involved actually child pornography statute involved eighteen us code twenty two fifty one the production statute this is twenty two fifty two boy it was charged with both attempt of attempted production and production and the defense made a similar argument to what we're hearing here today and the court said there's no evidence that the jury was confused and even if it was confused it generally can anybody instruction is sufficient and as far as the verdict form is concerned i don't think the i don't recall the defense asking for a specific verdict form that asked the jury to make any specific findings but boil basically also stands for the same proposition that a general verdict form is in the same crime but the supreme court has said yeah but it's a little different so if you if you say if you're if you're a defense if defense counsel requests an instruction where the evidence is as these child porn cases are are good example where where you know downloading them can be just possession or it can be a receipt or it can be part of this tribute so of counsel says i would like an instruction that answer which i'm hearing you say is it well it depends on the evidence and so unless you have a specific evidence with a specifically worded proposed instruction you can't really address the abuse of discretion and  instructions a little bit different we don't enjoy having these issues come up and certainly for example the vesti i took this court's guidance ins of ascii when i drafted the indictment and presented the evidence in this case so we learn from what happened before us and that's why you asked why i'm arguing to try and preserve the two counts and face the double jeopardy challenge because of the united states read what this court decided ins of asking we crafted what we believe is in conformity with that and we think both both churches are sufficient and they do not violate the double jeopardy clause we believe the jury instructions and verdict forms were correct and we would ask the court to affirm  must i think the government is prudent and wise in in not wanting instruction there and paying attention to the president as you're doing and so my question was from the standpoint of those who create  i'd like to circle back to some of the discussion earlier and the idea that if it is a lesser included or if they have the same penalty those questions are more relevant to whether an indictment is duplicitous on its face but the cited in our brief indicate that that doesn't answer the question of whether the jury unanimously is required d'amico involved attempted extortion completed extortion there the court determined that it was a lesser included offense but noted  if there are no further questions i would ask that this court either reversed and remanded for a new trial based on the jury instruction err or alternatively reverse merman for sentencing re sentencing under the sentencing arguments that are