dads thirty one to two united states versus mobley we will proceed with allowing counsel of three minutes of uninterrupted time to begin again you need not take that full time and you may invite questions but otherwise it is your time  also disqualify himself when he has a personal bias or prejudice against concerning a party children are back in us or not but i hope everyone realizes that once sentencing is pronounced on that date there is no authority to change or modify a scientist later even if positive developments occur thereafter and we all know how common it is for defendants and their families to send letters to chambers this is the reality of our practice but it not common is a judge responding directly to those communications and giving a condition upon which i'm thankful he ordered in every case i've worked on where to find it has contacted chambers two things that happened either the case manager or the court and deputy response and copy counsel informing defendant that they must go through the attorneys or the letter added under seal as part of the record and attach the charges but the request that they remind their client not to contact chamber directly neither of which occurred in this case the government seems to say and it's briefed that by sending letters to the court ms mobley invited the ex parte communication and therefore it's on her however this surely cannot be the case and all times and a manner that promotes public confidence in the integrity and impartiality of the judiciary proposed a new condition precedent upon which a defendant sentence will be lessened especially when that condition was not requested or invited by the initiator of the communication more difficult for her to get the children back from russia that that's not answering the question i mean made to the extent that i mean it seems to me to the extent that we're focused on the substance of the communication what we need to  he did something that has bias against made escape communications that were presented by the government they knew they constituted lines of argument that were contained in longer communication and didn't carry pattern instructions and if nobody had to actually convey a threat to kidnap when in fact nobody was sets of those city of the indictment and that that was the grove of many of your concern about the indictment in the brief there were some reference to whether the indictment had a truth or it in it or are you actually that the indictment in my argument against indictment and stating that it does not specify which communications are supposedly threats to that for example when it references and comes to in count three the exact same counts that i was just reading the quote from regarding the child support though they're not true threats directing the child outside of the country ok so let me be clear now what you are saying is that being done meant did not august th that they did not that the count did not specify the specific statements that were at issue yes form of ok so you're not making an argument that the statements themselves because of statements hart are you ready to proceed i am please in the court i'm sorry go ahead and you can say please proceed please the court the united states appears by answer jason hart assisting united states attorney for the district of kansas i'm going to pick up not where the defendant left off but where the defendant appellant started regarding the recusal motion i think the court here keyed in on the fact that judg promise a sentence in his communication i think it's also important to note from the record that this subject of letter writing is a thing that the defendant had engaged in repeatedly the subject matter that judge miller and communicates them being that bring the children would need to occur at a certain point it's important to understand that the promise of bringing the children was an issue that the defendant repeatedly raised from the outset of the case as far back as her initial appearance and request to be released from detention and so when the court is advising ms phillip you who had  been identified as representative of the defendant had been engaged in requesting medical records and so forth even while the defendant was in comps evaluation status when this is being inquired of and the court is saying it needs to happen before sentencing imposed that is a procedural clarification and the court says it needs to happen before i pronounce sentence that part is procedural it's not simply that hey syncing is on this date at this time and i've received this letter that's not the only components that are procedural when he says i cannot do a thing later in the context of this case that is  i would know that the attorneys had been told several times that syncing would go differently as the trial attorney and i had communicated that with the attorneys and i know that the attorneys understood that and communicated that to the court and some of their representations about their need for delays is that they're working on getting the kids back because that would help with sentencing and i think the court is correct to know that there's no prejudice that the different experiences by virtue of the communication and even if the court doesn't go down the road of invited error i think the court can resolve it with the fact that there is no prejudice suffered by the defendant with regard to the sufficiency of the evidence arguments we outline the the threats as they as they were communicated in our briefing specifically it's exhibit thirty five a and exhibit thirty five before counts two and three respectively the court's questions to the defense to the appellant about whether this is a specificity argument or a true threat argument i remain unclear as to exactly what the argument that defense counsel is raising i would advise and submit to the court that the true threat argument is this both waived and forfeited for the reasons that we outlined in our brief it was not raised to the district court in the motion to dismiss the indictment it has only been rains for the st time on appeal at the time of the motion and at the time of here in the motion itself at the time of hearing defense counsel it's clear that this related to specificity and as it relates to that issue when the court when judge milgram made inquiry of the defense whether they had any questions about what the nature of the charges w defense counsel unequivocally stated we've been provided discovery we know but we also are prepared to proceed and then there's no point doing a bill of particulars because we've been provided all the scope of discovery and trial counsel mr hurd has been very forthcoming with directing us to the salient parts and so the court resolves that question that motion with a denial because they've acknowledged that the defendant is actually on notice has been provided fair notice but is actually on notice of the charges and that are yes this judge phillips you say salient portions is any of the discussion about you can with the children does it matter for either of these charges because it's that's not a kidnap that's and you speak on skype system isn't a well the that can speak with the kids i think the way that the the way that we initially charge this is that it is denial of access which relates to custody and visitation so when we talk about custody it's not simply the physical i have possession of the children it is also the  communication side of things the visitation now i think the jury resolved it based upon the arguments and closing arguments at trial the jury resolved on the issue of well do those threats to munich aid a intent to withhold the children from physical contact and both of the charges that they the jury determined convicted to the defendant on communicated that physical component of i'm not giving the kids to you in poland or i'm not returning to the us to a place a physical place until x y or z happens and those things were either the provision of property or money a kidnap which sounds like something in the future and kidnap should be interpreted under that statute the way that statute is written should it not least classic kidnapping if you look at black's law dictionary of twelve online is not one parent taking a child who is not under duress or compulsion or anything else it's a child with the parent tell me why twelve o four fits with then section eight  i don't know that there's that i would attribute any significance to it because the the the what eight hundred and seventy five is getting at is the threat to take someone's kids and in this particular context and it's not the threat to take someone's kids under twelve a one because if they had intended it to be specifically a twelve a one kidnapping i think i think our our case law in our  let me i'm i'm sorry i'm pulling up the statute and doing it in my hand but i think the identification of the statute as kidnapping twelve for as kidnapping  drivers but when we talk about kidnapping generally and i think what the court's question is is well what did congress intend for this when when twelve o four is an act you know less money question is taxed one i don't want to get past taxes more as intentional close ok well in terms of the text kidnapping as it is an eight hundred and seventy five does not reference specifically twelve or one it doesn't talks about unlawfully seizing confining in vegas decoy ducks and carries away kidnapping appears as a word in that long list of things but it's talking about unlawful carrying away a person now the title kidnapping for that statute it's in the title that it says this particular statute doesn't involve parental kidnapping but within that same area that same chapter chapter fifty it identifies this type of conduct is parental kidnapping and so what we have is we have congress identifying and placing with with the kidnapping statute which includes all of that language unlawfully seizing and so forth that this is a type of kidnapping this is a this is a different type of kidnapping and so when we look at eight hundred and seventy five what it's trying to get at is kidnapping generally it's bringing him back to the united states right correct and threat to detain their already detained there in russia they're not coming home well in the kidnapping there's also in the is the sort of generic definition and i hesitate strongly to engage in any sort of categorical approach on that well when law dictionary would say compulsion against your will with regard to the kidnapping there's also the holding side of it is not simply the carian taking away but would also be the holding and retaining or detaining of that person over time it's not simply the as you say it's continuing crime and i agree with that but are you saying that you can make it a new count for every day that the kidnap person or the internet or the parentally detain the person has the child every single day is a separate no no i would but i would be for kidnapping and international parental kidnapping it is a continuing offense now with the extortionate threat those then are as part of the continuing offense those would be threats specific so when a person says hey i need i'm going to do this on this day or i'm going to do this on this other on this other occasion those would be two separate instances though they would be part and related to the continuing underlying offense restitution issue what's your understanding i have the least two questions what's your understanding what provision the court was using and imposing restitution was it three thousand six hundred and sixty three or the mandatory victim witness restitution that connection with the prosecution of this matter did i affirmatively ask him to incur legal fees that met and all right and what and how would the recovery of the children  involved with the department of state trying to secure and identify and locate the kids as to the court's earlier question of whether we specifically asked mr mobley to incur attorney's fees  ask him to but we knew that he was going to that he was going to try to go over there to get the kids ok he knew he was going to do that but my point is what and what a criminal prosecuti prosecuted to secure a conviction of a defendant how does the children i mean it may be in a nice thing for you to try to get the children back but how is that within the prosecution itself that the in this particular instance the children are also victims and so it's not simply mr mobley who is a victim but also the child in the unborn child would be view victims of the defendant's crime and so making them whole which is to reintegrate the family is i think part and parcel of any criminal prosecution restitution then is the financial side of that which is to re compound search again the economic remuneration back for costs incurred as part of participating in the investigation or participating in the prosecution and in this particular case as we outlined in our brief those costs are considerably different than those that were identified in law goes this is much more like cummings because they're part they're incurred during the prosecution and with an aim oriented towards bringing those kids back unless you have additional questions i believe amount of time i do but i'll leave  and they were unable to at the table or worked out so that she could receive a u s passport so she could come to this state the fact that this is now coming up after come the prosecution trying to get the girls back is not part of something that was