deal with count one the exploitation the conspiracy to exploit a minor and that had to do with the jurisdictional issue the government never approved the elements and there's three elements in terms of exploitation of a minor one of the elements the device used to take the photos to take the videos was made out of state the government attempted to through a police officer to say that a camera found in the bedroom was the one that took the videos in this particular case well i objected his lack of foundation there was no basis for the officer to state that this was the actual camera that took the videos the judge sustain the objection and struck all of the evidence as to whether or not this device had made those videos and without without any evidence of interstate license involved in this case there is no jurisdiction basis for that for the court to proceed and to determine that there was enough evidence to show all the elements of the crime you know there's got to get this this isn't what i was thinking about when i came in to hear this argument nineteen i think it's in a reply brief page one thousand was brought up a trial is in the reply brief but we may not have to pay attention to it i want to know where in the opening grief there's issues raised in the opening brief you objected to  misconduct argument you raised that if some of the comments that the prosecutor made about this issue but you didn't independently say that there was insufficient evidence of the bandit on it and i did argue there was insufficient evidence i count  were more of a voyeur ism rather than child exploitation to show child exploitation in the steam case you must be pic sexually explicit conduct none of that was here in this particular case we have the  snapshots of the bedroom and that's with the defendant's wife having a minor in your having or putting on different corsets and bras and things of that nature it doesn't amount to anything like the cases that w assume that you are right with respect to the images that were actually produced right the charger was conspiracy understand and why isn't it a reasonable inference given the placement of the camera has no obvious interest in the images that were captured of the minor why isn't it a reasonable inference that the object of the conspiracy was to sexually exploit the victim because you have even if he even if he didn't even if we assume that he  failed to do that and that's the government's argument this is a conspiracy not child exploitation but it is a conspiracy to commit child exploitation now what was the agreement between the two we have no idea there's a camera set up in a plant tied up all of the photos that were taken were from the waist up the only time that after a shower the victim got out of the shower and was drawing herself off goes a short maybe a nd and a half in the video in a snapshot of her totally nude but there's no sexual activity there's no expectation there's a picture there's no question about that i don't know where that comes in to be child exploitation or an agreement to to tell us what went when i was a kid and that was a long time ago and the early days of playboy magazine and one of my friends had a father who had playboy he'd smuggle them out and the pictures that they showed in those days were pretty much limited to what you just described it's not hard to infer that those pictures were intended to be sexual i guess i couldn't say exploitation but to generate sexual responses so if a jury in this case has decided based on the evidence that these pictures may not be graphic like what we've come to find much more common and are current day they were enough for their purposes to conclude that yes this defendant was guilty of conspiracy to sexually exploit this minor but then why why isn't the evidence sufficient for that because when you have the ferber case that says nudity by itself is not pornography and it's not child pornography that's why the law is explicit on that but it doesn't say that nudity can't be true well that's what we got and so this jury had an opportunity to consider the evidence here and besides this isn't one of those pictures that's hanging on the wall of the metropolitan museum this is somebody who's trying to exploit the young girl who's in the bathroom i don't think these pictures matched the description of other cases that  say specially especially to get it over to in case of adults factors you have to have someone telling them what to do we kind of do with the mother or the wife telling her of stand this why do this but all of you do see a partial partial picture of a bosom in the bedroom pictures the only picture and i'll get to this exhibit that shows the victim make it at that one snapshot that was not given to us let me move on to the the issue of  every time we went into court and it was district judge that was handling this we went in each time and i said how many snapshots are there the response was always ten steps us ten from the bedroom to from the bathroom all the way up till trial we get in the trial there's now thirteen snapshots the th one was supplied to the defense friday before that they have trial on tuesday and i didn't catch that until the government tried to introduce it well we have a factual finding from the district court and i don't see is in dispute is clearly erroneous that says it was actually made available to defense a long time before the problem identification or the apparent inability to identify who was in that picture that's what came out like came out two weeks before trial the detective going prepared for trial two weeks before trial right and so what so we're looking at this two week period now when within that two week period was defense advice or days before trial in an exhibit of over i think a one hundred dollars exhibits and didn't even pay attention to it until it was introduced and i go i object your honor one dollar of those come from it and when we presented what the judge does as well that's not even the victim that the officer came in and testified how he found us to be the victim so it was something that  would i think played played upon us at the very end up just to what degree was that additional photo naming any more than the other photos well the other photos really didn't show any genitalia at all this one did i see yeah ok ok and it was a quick photo of it that was it in the video but what authority would you say i mean this is this is not a question of the photograph not being produced it's a question of the significance of the photograph not becoming apparent until a short time before trial and then you're being advised some time after that's what precedents we look to for that's i'm just like is due process getting hit with that at the end were surprised without  due process of a vague is there any she's already that that speaks to that kind of situation things come up late and i don't think there's a rule that says the fact that evidence doesn't surface until late so that even the prosecutor doesn't know about it means it can never be used so what is it tells us that there's a violation of due process to wait until four days before trial to provide the the key piece of information i had to file the limit emotions i had to present to the court what i want  is case why didn't the u s attorney come in and present this motion presented eliminate motion saying judge we just found this we want to introduce into evidence and maybe had a hearing outside the presence of the jury to determine whether or not that was a picture of the victim this case at the time of trial we were surprised we didn't have a lot of time to cross examine on the other issue that i think is very important this case is a testament of the c p s officer the c p s officers to raise and house one in september two thousand and thirteen state charges are filed against client he goes to court pleads not guilty has an attorney a month two months later november two thousand and thirteen the agents come in again but this time bring the c p s officer with him this is p s officer meet with them before the search goes through all of the search directions and what they're supposed to do police come into the house with their guns approach my guy put him under arrest handcuffed him sit him in a chair and vice and is miranda rights i want my lawyer i have a lawyer so they back off c p s comes in and starts asking him about child pornography and how with the children is involved in this to me he is acting as a police officer and is dealing with as a state agent with all these other officers the court said no he's not law enforcement he is acting not acting in concert law enforcement he's not interrogating he's conversing with the defendant and h well there's quite a few case cases but my argument is telephone focus on the rebuttal witness part i'm sorry please focus on the rebuttal witness part because that seems to me to be that i hear the biggest distinction from the  instruction when that rebuttal witness testified that you request an instruction i did not but i did not so there is there any authority that says the failure of the district court to come up with such a destruction on a known on its own w requested is here i think the case i cited was not the ortega but the harris was his new yorker one of the two with cited that yes this could be use of rebuttal evidence but there must have been it was the or take a case that evidence could be allowed but there wife was the one who was doing most of this or all of it he did not knowing this was going on and then he testified to that the opening statement that i was the final argument for that but the thing that comes in is this comes and undermines everything that this the fence had pursued too out this entire trial but even with a limiting instruction that would be ok right the limiting instruction would have said it's just you can't consider this as affirmative evidence of guilt but you can consider it to discussion the jury didn't get to consider whether or not this dealt with the credibility of the defendant there were so much evidence here of the wife's involvement indeed all of the pictures in the bedroom is the wife in the minor nothing to do with the husband and yet all of these were brought in the other part in the final argument i just have a minute left real quick the final argument is when the u s attorney argues what a great attorney i am what a great job i did how my job is to give alternative facts to bring up facts that are not true and  on with that i didn't jacked tried a lot of cases and i found if you object too much of your turns against you but then the government went on even more in the eliminate emotions the court said adult pornography is not to be part of this case well what happened just before trial is a new judge came i just been appointed he was given this case and we for trial in the final argument the government argues look at all the adult pornography here you can look at this any way you want some people don't like it that's your choice ladies and gentlemen this man was going from adult pornography to child morning your honour's may please the court david gappah for the united states i was one of the prosecutors who presented the case in the district court the district court did not abuse its discretion when it denied the defendant's motion f mistrial or for a new trial based on the brief rebuttal testimony from the child protective services officer antonio rescan the court found that that officer was a social worker not a law enforcement officer was at the search scene when the federal agents arrived and there for a different purpose not acting in concert with law enforcement although he had attended a briefing with law enforcement the record is clear that  with the law enforcement officers they had secured the residence the scene had advised the defendant of his miranda rights the defendant had invoked the miranda rights decided he didn't want to speak with the detectives they moved on and focus except for purposes of rebuttal and are you on that basis would you please yes then the only potential problem would have been the lack of a limiting instruction but that was as this court has noted not requested it was given however there was a general instruction by the court on the joint instructions that credibility should be determined by looking at various factors and it would be up for the jury's consideration to determine how much weight if any to give risk is testimony it's important also to note that the government did not reference risk as testimony in its closing argument nor did it reference it in the rebuttal closing argument so the government went out of its way after it saw the defense concern on that issue or not to in any way highlight that and so we don't believe that it would meet the standard for reversal of the conviction what evidence was there of the defendant's involvement and therefore evidence of conspiracy except for his statement to the social worker there was abundant evidence your honor and it includes there were videos that they actually recorded of themselves in the residence installing the cameras and there were different cameras that were used the cameras were strategically placed to capture the best of the videos of the two of them putting the cameras ok what other evidence there were there was evidence then of the defendant  rummaging through some of the clothing of the fourteen and fifteen year old victim defendant blower all you say of the defend the only defendant here mr henry that he was the only defendant charged in the conspiracy his wife was and is being prosecuted in the state in stanislaus county but he held up her undergarments her underwear and articles of clothing after she had been in the bathroom after he presumably would have had access to see the what she had done in terms of changing clothing and putting on a bathing suit there was that there was evidence on the computers that he had access to he had set up not only the work network but he had also set up the home network and on the network attached storage device which is a computer or different partitions there was a password protected side which he said only he had access to that's where the child pornography was found and there were also the images of this minor victim on that side and he had organized that you know way consistent with how previous organization had been done on other computers there was use of well as his testimony was that his wife had no access to the password protected side he had told that to detective high fully only he adam henry had access to that right partition that it was password protected and he did not share that password with her now at trial he wanted to say and he actually did testify well i told detectives highly that i had the pass but he never came out and said that he had told detectives highly that he had provided the password in fact the  testimony from detective highly and it was recorded was the defendant statement that he did not share that password he also had stated that he did not share the work network password and that supports the idea that it was the defendant and not his wife who had downloaded the child pornography on the work computer because there were four devices on which child pornography was found that was the lock and stitch hard drive and that was material downloaded with the file sharing program there was material on the network attached storage device the home network on the partition that was password protected which he said only he had access to and at trial the government was able to read the testimony of detective highly to show that there was a remote access program which will allow a user such as adam henry who would set up both networks to remotely log in to lock and stitch that work download files transfer them to the home network and that's exactly what happened on the morning of the nd search there were files that had been transfer child pornography that had been transferred from the home i'm sorry from the  home network so was that out of ends there was evidence of child pornography that had been downloaded with a file sharing program on an old computer that had been last used perhaps in two thousand and ten that was in the garage and the government's evidence suggested in prove that defendant's wife did not use that computer that was a computer that he had set up had used at one time and then after it was no longer of value to him because he had newer faster better computers that one went into the garage so that was a reasonable and that the defendant was the one who was responsible but in addition to that there were also text messages between adam henry when he's at a minor league baseball game and he's taking photos of young girls and sending those to angel henry with comments and there was reference to she looks like she's in that category that we had talked about there were comments redheads needed topless at the house and so there were communications that showed that they both had an interest in this particular victim but only defendant had the interest in child pornography there were also search terms that were used on the work computer so there was abundant evidence in response to the court's question of what else was there so we think putting all of that in its contacts that there's very little chance that the jury couldn't have concluded both that there was a conspiracy which is the essence of the charge and on that point we just know that that is a superseding indictment which clarified that it was a conspiracy the initial indictment referenced attempt or conspiracy but the superseding indictment said simply conspiracy we try to make that more clear that it was a conspiracy and this defendant was which charge with that and as the court has no understands the essence of that is in agreement so it's just that there were two more persons the defendant and his wife and they had the intent to sexually exploit that this record seemed to have either some skepticism or confusion of why it wasn't also charged as the actual sexual exploitation because he thought it appears that some of the material met that threshold the particular image that defense had the available except the significance of it wasn't and then a fight that's correct so when was defense told that there had been this slated benefit cation of the victim as the person in that photograph well there are a couple points i don't know there was ever a specific communication that said here is exhibit twenty eight point one three and it relates to what you've been provided throughout in the discovery for years in different reports untitled eleven because there's reference to ten snapshots ten still images one through ten on title one through untitled ten they were actually always in these reports reference to maybe hidden in plain sight it was ok so at some point in time at the time line we were given by the defense was that approximately two weeks before trial an agent figures out gee this one's relevant because it's a victim your office is informed and then we were told maybe four days before trial amongst other things that photograph was included but it wasn't we were told until the trial itself and the effort to introduce that photograph  defense says any reason to think that photograph makes any difference is that timeline correct not entirely because practically seven to ten days before trial the deadline had come for the defense i'm sorry for both sides but particular for that if the government to provide its exhibits so that how many exhibits were there there was no the exact number but it was unsecured and the question is is it hidden in plain sight it's  in there but the significance is probably not going to be apparent unless you know what you're looking for so at what point did a defense attorney have reason to understand what it was that was going to be presented and offered as evidence during the trial probably approximate one week before the trial when the binders were provided so in the binder if they could figure out that in the binder as opposed to and how was that photograph identified was had it been it was included as part of that series of twenty eight one thousand three hundred and twenty eight point one three so i don't know that was an explicit statement that here are thirteen as opposed to twelve still images m my concern you can have such a thing is hidden in plain sight and it sounds to me like a really defense shouldn't panic specter to understand what it was going to have to deal with until like the time it was presented at trial or if it was doing a lot of detective work and surely would have looked at the exhibits but i'm not sure going through what was a thick binder of exhibits the significance is going to be apparent so why isn't that a concern well i think the court as when you read the record will know that the defense filed a post trial motion for discovery and then there was a hearing and at that hearing the government had laid out all of the discovery that had been provided in the timeline and showed copies of reports with that particular image had been identified or here were there's one thing i see the district court has made if  finding which is clearly not clearly erroneous with regard to it having been made available literally years before but i'm working on this the other part of that the significance of it and it's not as clear to me although i might have missed it when i was looking at the district court said that there is a finding as to when defense counsel was advised about the key information which is that this depicts the victim is there a finding on that question to my memory so i guess i'm still grasping so where are we are you offering up as a factual defense something that the district court apparently didn't make a finding on that is when it was that information was given to the defense are you offering up a legal argument that says doesn't matter he's got the photograph it's not my problem as to whether he understands what it's about and what what's the basis for me to set aside the defense objection sir the couple points one there was the finding by the district court that the material in particular that image had been provided years advance and there was reference to even as exhibit twenty eight point one three that having been provided prior to trial probably seven dollars to ten dollars days but then in addition it would have more significance not that it's not significant it would have more significance if the charge were the twenty dollars to fifty one dollars sexual exploitation of a minor and that were the basis for the charge that would be much more significant but because this is a conspiracy the essence of that charge is the agreement and whether or not any of those images still images or the videos from which they were produced met the standard of a minor and i hear that distinction but you still have the sexually exploited element and this photograph at least as been described i confess i haven't spent that much time actually looking at photographs but as described to me this photograph is different it is the one that shows the full frontal nudity of that victim and it was taken from a video so if the defendant saw that video had edited the video and froze it at that particular moment just as he had done for arguably the most explicit scenes from the bedroom video which the defendants wife had created so we did have some difference from the guidelines is below the guideline range the low end of the range was two hundred and sixty two months and so judge throws under the three thousand five hundred and fifty three factors very downward and and and the conviction was distribution of child pornography five year minimum twenty year maximum that's a hit up with a maximum on count two concurrent with closer to the minimum on count one ok but you think you would you put the two minutes on the clock p items manufactured outside the state of california which he argued which is important for jurisdictional basis so i did want to point that out to you the next comment by me was there was no evidence ever produced as to which device recorded the videos  and all of this comes under a heading government's comments in the final argument were improper and highly prejudicial that i have and i you know i think that makes an argument that the conviction should be set aside because the interstate element wasn't proven the evidence was ever produced as to which device recorded the video in this case in count one and then expanded on that in their reply brief i was running out of pages and and that's the argument you start with an oral argument i don't think that help it's not teed up in the opening and it wasn't heat up in the opening ok what i want to point out the other issues here is that there were ten thousand pictures ten thousand videos and pictures in this case for that one picture to be discovered by the defense i think is is is required quite a bit from our perspective when every human limit emotion every discovery motion we asked for said there were ten snapshots in the bedroom two from the  bathroom and the government has argued that the defendant took these snapshots there was no evidence that he actually did that all we're asking for is the court to reverse a rematch and this gives a chance for another trial and thank you for allowing me to argue thank you really think i think both sides for there are helpful arguments in this case united states versus henry now submitted for a decision