proceed yes please good morning morning my name is anna d v d and i am the attorney that represents ralph out bizarre in this case mr opposite our was charged and convicted of possession of child pornography and sentenced to one and reasonable sentence of one hundred forty one thousand four hundred forty four months in prison which is one hundred and twenty years i think this case or this type of case the ends out because it's a case where the court needs to consider the prejudice of everything that's introduced and that's why i want to start with the fact that i believe the court erred in allowing the government to introduce forty years of charged conduct in their case in chief the government did not file notice of four or four b and argue that this evidence even though it was not charged in this conspiracy was somehow intertwined what makes this case pacific in the court has to realize that this is not a case of a drug conspiracy or a fraud conspiracy where case is they did not invent the problem is is that there's this evidence about his use of do we call it aries aries yes or you know he had aries before they you know they have the first seizure they have a discussion about it and then they come back around and he's using it again  it does seem to me that this earlier evidence is necessary to complete the story which i would agree with you that what they found during their first seizure of the computer when they first speak to mr alpizar is part and parcel of the entire evidence in this case but i do believe going outside of that scope and bringing in four years of evidence is completely prejudicial does not does not in any way is is i'm confused right but it's important to note that that software was also used for legitimate purposes it is not a child porn program i mean mr alpizar had numerous numerous downloads of music as a matter of fact i would say that it was more than a sixty forty split in the fact that he had more music than child pornography but then there's a spillover effect they use that same for zero four b or that same extrinsic evidence to come to comprise a summary chart and that summary hold on a minute before you move on to that and i'm confused too i thought that the four years of images that you're talking about were all on the computer or the hard drive at the time of the second seizure as they're all yes but but see they're not images they're more they are more titles of different downloads that mr out bizarre did ok but my point is it was all on the computer at the time of the second seizures and it was it was all on the same computer and that's their argument but our position is that then the spillover effect is that's why they're allowed to do of voluminous summary exhibit chart to be able to say well now we have so much exist we have so much evidence because we're adding on these four years that are not included that now we can show the jury this chart of every download that we believe is child's point because remember a large amount of those were deleted so they were unable to determine whether it was child pornography or not and then they again prejudice mr outputs are closing they do a revise summary exhibit and they use colors that we objected to that were red so basically what they're saying is we believe that this this this in this is child pornography and we're going to show it to you in red so that you're again prejudice and again it shows you just how bad this information is so that's that's that's our first argument i second argument is i want to play the lou would have been all right but you know i think i think it would've been a lot less showy to the jury that it was just discussed the and that and i think we have to start with the fact that i said that and begin to say it again that nobody likes child pornography the more the person sees it the less they like it so there was no reason on an indictment that apologist i didn't find the case until yesterday i filed a supplemental authority it was an unpublished opinion out of the eleventh circuit and i don't know if your honor got it if not i can cite it we got your supplemental ok wonderful  i think this case goes he ended he and with mr alpizar skis i think that the court in that case reversed and remanded because of the on reasonableness of the sentence it's important to note that there's two different aspects was  and reasonable or was it substantially unreasonable first as to the procedural part we're objecting that we do not believe that the evidence that was presented at the sentencing is sufficient for a pattern of activity in here and basically what happened was i'm sure the court is where the introduce a child of a prior marriage to step child to testify about behavior that mr out bizarre he she said happened to her article the court made a credibility finding that she was credible the watch and yes yes she did and our position is that testimony in and of itself because it was so remote in time and it happened twenty years ago could never fall under the pattern of activity it's outside what the what the courts believe is pattern of activity this is something that happened such a long time ago it doesn't connect with this crime allowing this to end he ends mr sentence the way that it did forty fifty years because you're talking about a five year i mean a five point up was just outrageous in addition to that i'm sure the court is aware that the distribution and handsome and recent change after our sentencing and we believe that in the district court give mr apples are the benefit of the forthcoming amendment he did she did but then what she did was at the end she came forward and said well i'm going to find i'm going to give him a reasonable sentence and i'm going to sentence him to one hundred you know one hundred twenty years in jail our position is that the reasonable in this of that there is no reason because there's no way that even if mr alpizar was one years old he could do one hundred twenty years in jail in and of itself it's an reasonable sentence if we look at this court's decision in the case of kimball killen it specifically says that the thirty five fifty three  on the prez based on the president of of prior cases and the thirty five fifty three factors in the book or factors must be considered i filed with the court numerous thirty five fifty three factors including his military service the fact that he had never been arrested before the fact that he lived in this country that he was gainfully employed the fact that he had mental issues the fact that he had x x pensive physical issues none of that was taken into consideration when they sentenced this defendant to a de facto life sentence with the supplemental thirty that you filed today that case was about the factor of an unwarranted sentencing disparity would you talk about that yes absolutely and i sufficiently to mr alpizar also what you have in this case as you have as the sentencing commission has stated in the report that was part and parcel of my sentencing memorandum the the excessive sentencings that are given for these type of offenses and how courts often if not not a large amount of the time lowered the sentences based on these extraordinary sentences so what you have is you have a case that the that  can no court referred to where a defendant who had actually been involved in the actual molestation in the actual touching in the actual acts of such a violent received a thirty five year sentence as a downward departure in this case you have a defendant who's sixty years old his crime did not include distribution he didn't distribute it he definitely did not make this he downloaded and as terrible as that crime is is a reason for him to be sentenced to life in prison because with no chance of ever getting out some of these children were as young as three years old some of the children were free and after after he already knew he was under investigation he continued to download the stuff and that's just like a drug dealer who sells drugs and you arrest somebody goes back out and he sells them again and that defend it does not receive a life sentence with absolutely no priors absolutely no criminal conviction and a lifetime of commitment to this community ok mr please the court my name is quinn land and i represent the united states along with me and counsel table is assistant united states attorney jonathan crypt karpinski who handled the trial case below in front of the district court i would first like to address the defendant argument that the scent tent was procedural or substantively unreasonable the defendant has put forth no valid argument to show that the district court abused is discretion in any way about the and handsome and for the conduct with i think it was a nice twenty years before yes the stepdaughter is there no requirement that the abusive conduct be linked to the the pornography itself no your honor the pattern of activity enhanced meant the plain language states that the court can consider any combination of two or more instances of sexual abuse or sexual exploitation of a minor whether or not the conduct occurred during the course of the offen the same or different victims or resulted in a conviction ok i guess the plain language doesn't and i don't know the law here and i'm just wondering if there is anything that requires whether it in fact three circuits the fifth circuit the ninth circuit and the sixth circuit found no due process rial ations when considering conduct that is either remote from the underlying conviction or doesn't have a factual nexus to the underlying conviction the ninth circuit explained in united states versus garner that section two g two eliminates the need for any temporal or factual nexus between the offense of conviction and any prior act o sexual abuse or exploitation the provision is meant to cast a wide net to draw in any conceivable history of the crime so this would be an open question no it's not an open question in the eleventh circuit because in the eleventh circuit and united states versus turner the court stated that any type of conduct even if it's twenty years prior to the underlying conviction still can be considered when pedraza seventy three that it need not be temporarily close to the offense of conviction yes so therefore there is no issue due process or otherwise when it comes to considering conduct that is either not factually connected or is remote from the conviction itself and also the district court below did not err in making the factual finding that the stepdaughter was sexually abused by the defendant i believe that the district court found the stepdaughter to be extraordinarily credible the stepdaughter testify that the defendant molested her a handful of times she also was past forgiveness for the defendant and she talked extensively about the impact that the defendant's conduct had on her life she had to go to therapy she had trouble with her relationships but she still was able to testify that she forgave the defendant and was remorseful of the fact that he hadn't turned his life around the district court credited that testimony and found that the defendant did indeed  molest this the stepdaughter and that is why the pattern of activity and handsome it was applied in this case the there also is no error for any of the other enhanced mous that were were applied  instance the obstruction of justice of justice enhanced meant there was more than enough evidence in the record to show that the defendant gird before trial there were three medical reports that stated that the defendant intentionally  faked a mental illness and made of alicia no attempt to appear as if he had a mental illness in order to avoid trout the district court also made observations of her own the district court stated that throughout the district court proceedings the defendant pretended as if he didn't know what a boy or girl was pretended as if he couldn't speak english or spanish but then threw out certain hearings he would respond to defense counsel he would respond to the court i believe that the district court said miraculously once trial began the defendant all of a sudden was able to participate in his defense that evidence in the record more than substantiate applying the obstruction of justice and and handsome with the sentence of one thousand four hundred forty months is would you agree that it's a fairly stream outlier even for child pornography offenses no your honor i don't think that it is an outlier in fact this court just recently and united states versus press comes allas ruled that one thousand two hundred month sentence which is equivalent to one hundred years was substantively and procedural reasonable and that case is basically directly on point with what we have here in the press gonzales case like the defendant in this case had thousands of videos and images on of child pornography in his possession he downloaded that over a two year period of time the videos were over to over five minutes long depicted children under the age of twelve engaging in hannah's acts he disseminate it over seven hundred  fifty eight of those videos and images to other users and he was also like out as our hands on abuser of a nine year old child and the court stated that courts must be mindful that possession of child pornography is not a victimless crime a child somewhere was used to produce the images downloaded by the defendant and larch part that's true that's true in every child pornography case yes yes it is but in these particular cases the defendants behavior was particularly agree just because they were hands on abusers and they both obstructed justice let's just take a look at the defendant's conduct in this case he downloaded over seventeen hundred images of child pornography some of the videos depicted children as young as the age of three engaging in bondage he was taken into federal custody by the i and then was released instead of stopping his behavior after he was a notice of what he was doing he went back and downloaded even more child pornography but not only did he do that he installed all sorts of applications on his computer such as dr scrubber to wipe his hard drive clean he also disabled his computers ability to make shadow copies in order to hide his appoint behavior i blamed it on his deceased father then he blamed his conduct on his deceased father who at the time was over eighty years old but it was evident in the record that he was the person who had the experience and the knowledge to do all of these things because he was the one with the electronics technology degree but not only did he continue down low child pornography even after the f b i told him the stop he also was found to be a hands on abuser of his stepdaughter possibly both of his step daughters because there was evidence in the record that he also touched the breast of the witness who testified sr this and also he obstructed justice by feigning mental illness and he never took responsibility for his actions the and then as judge prior stated in his brief blamed his conduct on his father that conduct is particularly agree just and because the court correctly apply all of the enhancements and the got line sentencing range in this case was life a sentence of one thousand four hundred forty four months was within the guy at my range and this court although it doesn't presume it expects for a sentence that's within the got my range to be reasonable i would also like to briefly address the defendant argument that the downloads between december of two thousand and ten through january twenty drives that were found in the spare bedroom she was arguing that it wasn't intertwined i thought you know but this wasn't treated as for or be evidence yes the district court below did treat it as intrinsic evidence the defendant disagrees with the district court's decision it is the government's position that this these downloads were inextricably  intertwined or also completed the story of the crime and also arose out of the same transactions in a rolls out of the same series of transactions because outposts are possessed thousands of videos that range from january tenth i'm sorry december of two thousand and ten all the way up to january twenty four to twenty fifteen on his computers so the downloading history wasn't it was necessary to explain how he amassed that shout pornography collection and also because it would use the same methodology which is the area's peer to peer network it was necessary to complete the story of the crime because it was necessary to rebut the defendant's assertion that he somehow downloaded the child porn pornography by mistake he tried to state or cert that one out of every eight downloads or so when he was downloading downloading music he happened to come across child pornography and then immediately deleted it while the downloading history through heirs belie that assertion is show that he downloaded thousands of videos and also entered into the system around seven thousand ch search terms in order to seek out and get the pernod graphy that he desired to view lastly the defendant argued that the summary exhibit was somehow prejudicial  to the defendant the standard for at marrying summary exhibits is that the content has to be voluminous and it and it cannot be conveniently examined in court and there's no way that the defendant could rationally argue that the jury could have viewed over a thousand videos and images in court in any reasonable way and also the fact that the colors were red green or yellow it just has no bearing on this case not only did the agent who put together the summary exhibit explain that the color coding system was based on nothing but his own opinion there was so much evidence in the record that any error if the court court disagrees with the district court decision would have been harmless because there's more than sufficient evidence in the record to show that it was the defendant who actually committed this crime and if there are no further questions the government will rest on its br baby five minutes please the court just to just i would like to concentrate now on why i believe the sentence was unreasonable as this quite is well aware after booker the guidelines  advisory which means that even if the calculation of the court was correct and mr alpizar scored a life sentence this quite had to consider the thirty five fifty three factors and it had to assure itself that his sentence was appropriate in comparison to other sentencings and that's when the disparity comes in what you have here is you have a sixty year old man with absolutely no prior convictions the government stood before you and compared this case with another case that was ruled on by the circuit where she said herself that there was seventeen hundred seventeen one hundred images that was distributed by that specific defend it it's important to no that mr op as i did not distribute child pornography mr alpizar did not make child pornography and i thought he distributed it because he had one of those file sharing programs right because it's inherent in the program which it is inherent in the program that when you are downloading something you it remains open and someone is allowed to enter into your program because it's an open base and in that he discussed with he has any tribute or excuse me sir he has a distributor right well the judge in i've heard you have using aries complete with the knowledge of how it works well then that would mean that every that all defendants who participate in child pornography sue this type of program are distributors i would venture to argue that a distributor is somebody who is actively providing their downloads to other people the fact that as part of the program you're leaving it open and people can download what you have i i do not agree with the quite that it's per se distribution don't think it's per say distribution it's another thing altogether though when this kind of peer to peer file sharing system which is commonly used by possessors of child pornography to make that pornography available to others for trading purposes  and the expectation that it will then be other pornography will be shared with them and you have a discussion knowing you're under an investigation you have a discussion with law enforcement agents that acknowledges now you understand how this works and then you go back to doing it again that's not your just typical cases and what studies have shown that people that download child pornography has it has been considered an illness and it's an obsession and it is it can be equated to drug addiction and alcohol addiction he didn't go out i think really when you look at his mental illness and the fact that he suffers from p t s d and the fact he was honorably discharged twenty serve this country because he was a missiles analyst and he was actually held in a missile that was under the water for a certain period of time all of these add up to what his mental state is and i think that's why the court did not consider his thirty five fifty three factors with that type of sentence he would have been sent the same amount had he been a mass murderer who just got released from prison and now was sentenced on a child pornography case i think that booker tells courts you have to identify each defendant and sentence him appropriately and in this specific case we find that it  is especially based on the same court decision about the disparity about people that are active abusers people of that and it's important that i bring up a fact when his stepdaughter testif she testified that this happened the most a handful of times so again what we have is the court has found her testimony credible so what we have is an individual saying this happened to me twice when she was questioned as  many times she couldn't even tell the court whether it was five six seven she's talking about a handful of times that are already in here and says this individual thirty forty fifty years in jail on a case that the state of florida found was not truthful and dropped the allegations this is not something of repressed memory this is a person and i know that the court found her credible but it's important to put this all in the correct context this is not a perpetual child abuser this is nobody that had any contact with the child in the last twenty years of his life so based based based on the disparity in sentencing and based on the recent opinion of the eleventh circuit i would say that mr alpizar sentence was unreasonable and we asked the court to remand it lastly the last thing is if we if the court looks at the sentencing judge lehner made it very clear that she believe that this is an appropriate sentence regard list of any decisions by looking at the thirty five fifty three a factors which you've been harping on this morning she would still enter the same sentence that's very helpful to us because it's an alternative holding which courts are can appropriately do and it can save us a lot of time and resources because one of the frustrating things after bowker is how frequently we reversed sentences only to send them back and the district court within its discretion enters the same sentence so we end up having just a lot of litigation for no purpose so there's nothing wrong with that we particularly we've told district what you can do that right yesterday but i believe in closing that out only shows the lack of the court's consideration of the valid thirty five fifty three factors you know you're looking at and in closing i ask the court to consider does a first time offender who is sixty years old deserve to die in prison for