may address may answer that issue your honor also i will leave on the briefing issue number six which is the substantive and reasonable as of the sentencing and i think that the facts are pretty clear and the arguments are pretty clear in the briefing  you know as far as issue number five relating to restitution the government filed a twenty eight j a supplemental letter supplementary in the authority united states versus go on  case and i believe that's it eight zero four fed third twelve eighty seven your honor i believe that case addresses the issues that were raised as far as restitution and  that their district court did not this aggregate the overall restitution or the of all figure of loss and so i believe that reason this case should be remanded but i believe that go on case that came out in november does resolve that issue rather clearly didn't yes you are so i'd like to reserve most of my time for addressing the first or three issues in the first issue is whether or not there was sufficient evidence to convict mr grove of the child exploitation enterprise under twenty two fifty two large a g section  and is our contention that the evidence was sufficient to show that he acted in concert with three or more persons as as required by the statute even if the circuit case and daniel says is that you can aggregate the individuals who are acting in concert in this case i don't believe the evidence is sufficient to show that mr grove acted in concert with more than one person throughout the course of his involvement in the in this bulletin board and in my opening brief i am knowledge as the situation to subscribing to an  online news service where i either pay a subscription fee or you become a member of an online news service and the journalists write articles and post those articles and service in the members of the subscribers have the opportunity to comment or not comment on it the the individuals who are subscribers aren't acting in concert with the person who writes the article acting in concert so and that's exactly what we have with this kingdom of future dreams bulletin board is you have an administrator and you even have maybe multiple administrators and maybe multiple multiple moderators but i looked in the record to see if there was any evidence that mr grove o had knowledge that there was more than one administrator or that there was such things called  moderators and i could not find anything in the record at least from my review that indicated that the government prove that mr grover had knowledge that there was more than one person who was responsible for approving these posts or allowing access to these posts or anything else so i would so i believe that's a significant fact in the in the c c cases whether or not the government indicated was some forty odd individuals so not a huge membership of this bulletin board i'm not sure that just the fact that there are other members of this bulletin board leads to that there's more than one person that's administering this bulletin board i believe that if you're a subscriber to a large online news service that inference may be better when you're talking about a very limited private bulletin board of with very few members you know relatively few members i'm not sure that same an inference applies and i know that the government presented evidence as to what the structure was there's no doubt the government admitted evidence as to what the actual structure was but what i would look in the record for was what evidence was there that mr grover himself knew what that structure was or was he just found this bulletin board allowed to be a member of it and then was at some point according to the evidence allowed to go into the higher levels of the bulletin board where most of the illegal activity was taking place that that but there is no evidence that he knew that more than one person was allowing him to do that or allow in whatever policy he had to be placed in any particular place so so my point is that when mr grow is either posting something to the bulletin board for like posting a notice to go somewhere and see something he's acting alone if somebody is on the other side is approving it he doesn't know there's more than one person involved in this process  with and most of the government says that he posted over three hundred times where he posted comments on several the only the only time i saw him there's only one or two two incidences in the record and i don't have that in front of me that he it is a community honor yeah he knows there's more than one or one other person yes in the garden into a chat room is the kind of that the analogy i'm not familiar with i think it's an analogy i do think the online new subscriber is more akin because you can choose to comment or look or not reader or viewer or whatever i think are the comments that are being made visible readable by others yes in fact th up by the zoo not the comments are being picked by others in this he knows they could be but but again the it's the receipt the distribution or the access to view the child pornography which is the substance of the c e o so when you look at the individual conduct that he's doing when he's doing it he's not acting in concert with anybody i think that's what the and i think that's a good point ron or you do not have to know who the other players of a conspiracy are if you have an agreement but the agreement has to be the understanding that there are other players out there that are doing these things and there's no evidence submitted by the government that mr grover would know there's more is instance of government overreaching and where the government chose to charge mr peterson how they chose to charge him and then how they delineate the proof that they used in in trial of the you there is no connection to montana in this case other then the main administrator mr when wix john asylum in montana that he lives there the government did not present sufficient evidence at trial that any acts on the board to place in montana the global nature heals of the computers in the lead media and he has been there yes but i think why the reason that the government tries to connects him to the case and the conspiracy allegations to montana is a very good reason why they can't because the internet can be accessed anywhere is not sufficient but because it can be could have been anywhere when he was acting in them in the manner that he did on the circumstantial evidence is that he was in montana that he lives there yes but then had his computer and his files there perhaps but there's no way to know that the government they're being stansell over to well i think the venue is a rather usually rather easy thing to prove and the correct questions weren't just were asked  rise to the level necessary to inform and give mr peterson notice of what he was being charged with in order to prevent a double jeopardy that actually i think took place in case but even from the subsequent double jeopardy other charges to be brought later the indictment did not sufficiently protect mr peterson or notify him of what he was being charged with although it does track the language felonies in this case which is important because the c statute requires a series of felony violations and not knowing what those felony violations are c e as well as a count of can advertise a conspiracy and the court found that that indictment was sufficient because the indictment also charged the defendant with three additional felonies so those three predicate felonies could be used to save the count of the sea but that's not we don't have that in this case we have one one additional felony that's the advertising and on the government's own arguing of the delegates already issue they keep those separate so there's not even one predicate felony found in used to that it violates double jeopardy in that sense the advertising is part of the act that could constitute advertising is part of the notice he's me as part of the series of felony violations for the see if the government is allowed to sustain the conviction bell and sentence for advertising in this case and there's nothing to prevent the government from piling on charges and saving three felonies or three x to support a c e charge then you could hand up with advertising possession receipt distribution all separate conspiracies alleged by the government and then  sustained and weier ski is directly on point there and the two issues that and insufficiency of the diamond that we raise and the double jeopardy that we've been allowed to join on mr grove those argument on  is where he is relevant because it goes one way and then another but we are able to distinguish lawyers fees because they're indictment is more particular that particular right than our it ours is for the advertising conspiracy and they see at the end saying that well we don't need these facts for the sea so they go to the advertising enterprise advertising conspiracy we've also raise insufficiency of the evidence both of the c and the enterprise and the advertising conspiracy and i'd like to add that the e again if we are allowed allowing the government to make what happened in this case a c then it really kind of a vis rates any other conspiracies you know anybody that gets on line and looks at this illegal material or consumes it or a producer is a viewer of it then the it makes possession and distribution rather  what my client did in this case with the click of a mouse is distinguished from what another person does with their click of the mouse just that the difference is a fifteen year mandatory minimum then we're looking at  p viewer does then i don't know what is and so making that into a c in an effort to raise a mandatory minimums is an essence of overreaching of the government if there's nothing further i for morning may it please the court my name is sandy peterson i'm an assistant united states attorney for the district of montana and i'm here on behalf of the united states  that's not required knowledge does not go to if you look at the specific elements of the child exploitation enterprise knowing that three or more others is not an element so mr grove o did not have to know the knowing mental part of the statute comes into play with whether he knowingly distributed received or accessed and whether or not he knowingly received or distributed i'm sorry knowingly received distributed or accessed on three or separate incidents that's it so we don't have to prove that's number one number two if you look at the trial exhibits themselves that we put in and specifically with regards to the ones that mr grover was commenting on there are times when there are more than three people that are commenting and are within the same thread so  that talked about how the administrators and the moderators and of themselves were enough to meet the minimum threshold and in this case we put in the record that there was three and at one time possibly four administrators and there were moderators and so it was clear within the membership that there were multiple other people involved and certainly more than the three or more but his knowledge is the relevant so your honor there was also the issue on or not we met our burden with regards to venue and that the government was overreaching and there was the statement made that mr went so which could have been anywhere but he wasn't anywhere he was in montana and again as it relates to  these defendants and mr peterson specifically we put trial exhibits and again we're there to he was directly communicating with mr winslow which so not only was mr once the which acting set up the board created the testimony of agent amos your honor and you know judge i i don't think that you have to know where the other defendants are located in order to get venue at all and so i don't think that's one of the requirements and i i would say we cited to some cases in our brief that discussed telephone calls you don't have to set foot in the state in order to have the state have venue over your criminal actions and i believe that was going solace and so while mr peterson says i've never been to the state of montana that's not the test so we believe that venue was appropriate we believe that we proved it and met our burden in this case i do your honor and i would like to i spend most of my time i do want to hit on restitution but i want to spend most of my time talking about the double jeopardy issue  your honor i don't think it does because of the fact that even though the galen or the gallon case had not come out judge malloy actually addressed desegregation in this particular case and so when you look so he did it your honor at e r six twelve she was citing to the doctor's report that specifically says the doctor's report stating the costs associated with angela's continued treatment and care are at least in part related to the continuing traffic in her image as she is fearful back consumers of pornography in  the object will find her and rape her so he was talking specifically about the consumers as opposed to those that created the original image he also did it at e r six ten where he expressed really reference to desegregation and he said they need to be the damages here need to be separated by the initial abuse or as opposed to other abusers the one thing that could be argued is that the expert reports themselves did not expressly go through and say this is what these are the damages that are related to the original abuse and these are the damages that are related or are attributed to these particular defendants but probably because galen has not had not come out but when it comes to the amount your honor that standard of review is an abus discretion and we don't look at the galen decision to eate an impossible task we think it can be a difficult test of time but not impossible and judge malloy specifically  went through and talked about from this crime going forward he didn't go all the way back to her original damages from day one he talked about the need to separate out the damages cost from the our cause from the original abuse and these viewers and then again he specifically went to the doctor's report talking about the difference in the standard and when he did that he came up with an amount that wasn't trivial it was an arbitrary it  was thoughtfully calculated and so because of that your honor we're requesting that the court affirm the restitution judgment with regards to double jeopardy your honors so there are there are basically two different issues that are sort of provided together in the same argument and the secondary part of it is the double jeopardy issue that's under the blocker test but before you really get to that the defendants have argued that there was just one agreement there was just one conspiracy not two as we have alleged and so the first thing i would say is that if the defendant's burden to prove that there were two charge conspiracies are in fact one agreement and they have to prove that both agreements are indistinguishable in law and in fact and the ninth circuit as well this is the supreme court has specific lee said that just that there's some interrelation in the facts does not make it the same enterprise because of that we charge these separate because when you look at the specific facts of this case and you look at the defendant's conduct they were distinct and it was separate and so i'd like to take a couple minutes just to talk about the board itself because that part of it is really important and the defendants have tried mr grove on mr peterson had tried to say this board was just one great big agreement but it actually wasn't and there are a couple issues with that so when you entered the board there was an upper level and a lower level and there were different rooms within those boards every room had its own set of rules and you have to go in to those separate rooms and agree to those separate rules so you didn't have to go into every room and there were rooms where a child pornography was not on on the board there were and i can give the court some citations to about but there were rooms that were directed only to security how to evade law enforcement there were rooms where they just talked about news and important discussions about what was going on with the motherboards there were rooms that only portrayed the children's faces things of that nature not child pornography at all and if you look at mr peterson's argument in his brief it actually backs up what the the way the government charged because what he says is i didn't join this board to look distribute receive advertised child pornography i got into it because that was modeling and they didn't prove otherwise now we did prove otherwise and we put specific exhibits in that where he was dealing expressly with child pornography but the point is you could have been a member of this board and not not been convicted of the enterprise similarly you could have been a member of the board and not been convicted of the advertising so within one of these rooms it was called the wishing well and when we looked through the specific conduct on the board the wishing well was really completely different than the rest of the board the rest of the board was sort of a place where they were coming in and at least the rooms that were that went to child pornography they were coming in and they were saying here's my child pornography let's share what we have so everybody comes into a room and throws their baseball cards on the table the wishing well was different because the wishing well was a place where the defendants went in and specifically posted the exact images that they wanted so they were seeking specific images that were not there that other people had not eddie voluntarily contributed so in other words instead of saying here's all my baseball cards and we're all looking at him they took a step further and both of these defendants did this and said this is the image that i want somebody go out and get it for me so because of that we thought those two actions were completely distinct and separate it's the wishing well that is the ed the advertisement the conspiracy to advertise mr grove all and mr peterson had to specifically choose to go into the wishing well so if the board is like a building you what just because you walked into the building does not mean that you are conspiring to advertise child pornography just because you walked into the building does not mean that you are engaging in a child exploitation enterprise you walked into the building and you saw a bunch of doors and on every one of those doors were the rules written and you had to read those rules and then you had to choose to go through that door and they did that when they went into the wishing well and so that's why number one we're talking about two separate agreements with two separate facts and the district court specifically found that they were proven with different facts different facts supported each count and that's on our six forty eight stu's me with regard to mr those excerpts the brecker dot is so the argument has been made today and it's made in the brief that really this is just an overall reaching agreement to exploit children and so they're lumping all of child pornography crimes together but that is not supported by the cases and it's specifically not supported by the ninth circuit and over ten and a footnote because that was the case that dealt with double jeopardy and the defendant there was arguing that it was all child exploitation and the ninth circuit said no it's not the same evil to say that it's all child exploitation is is too broad and i would argue that the supreme court did the same thing when they were talking about two conspiracies in the albert now this case that's a drug case but it's a case where they one count was conspiracy to distribute marijuana and one count was conspiracy to import marijuana and the defendants were saying it's all drugs it's the same thing you can't do it you can't if you import you're doing it because you want to distribute and they said no they recognize that there are separate evils involved with these two things and that's what's going on in this particular case it's not the same harm and when you look at these statutes separately there are different societal harms that are being done and and they are specifically two separate agreements that these defendants entered into so that's why we don't think that number one they're the same on other events that were happening in other rooms where there was the distribution and receiving of child pornography and so and that's where i was pointing to the fact that the district court saw that too and we argued it that way in our closing as well that we we put specific exhibits in with regards to threads that went to the enterprise and we put specific ones in specifically the wishing well that went to the advertising so that's sort of the the the first part of their issue is that there really isn't to agreements there's just one agreement and as i said we've we prove that that's not true the second part then is that even if you find that it was the same conduct or that it really is just one agreement then you go into the block for tests which is do  is it does one require proof that the other does not and again when you look at the specific charges they don't i mean they they require different proof and it was possible in this case for m example to be convicted of one and not the other because they do require different elements of proof and so because we have specified different ends we see these as not violating double jeopardy now the third sort of step in that is that if blocker applies and and they don't punish the same offense because we're getting at different harms then the next step is does the legislative history show clear intent to not allow multiple punishments and on that number one i would again point out that the burden is it is it is your honor and it's the defendant's burden to prove that congress did not intend and both the supreme court and the ninth circuit again and overturn said silence does not mean ambiguity so there's different harms we think that the different harms have been proved ok thank your honor with regards to the other issues i think that they we've pretty thoroughly argued them in the briefs i don't want to be repetitive if there's any other questions i'm know i think the key to the double jeopardy issue is that it's the same evidence that goes to prove the agreements and the in concert the members of the who are acting in concert twenty two fifty two big a g says that a predicate offense is any violation of chapter one ten twenty two fifty one he is in chapter one ten it could actually be a predicate for the twenty to fifty one he saw it's the same evidence it goes to prove the number of characters the rutledge case in the conspiracy and then the c c e the right was case the daniel's case and the wires case all cited in all the briefing addressed that very issue and it is absolutely a double jeopardy violation in our opinion the advertisement versus notice i just want to say one thing the franklin case cited by the government and their brief it's seven eighty five said third thirteen sixty  five i just want to the only thing i want to say is the defendant in that case said that both notice an advertisement had to have a public component this case is a lot different has we're saying that the advertisement has to have a public component the notice part doesn't and the government only charge the advertisement so that's the difference  again in regards to double jeopardy the government cited albert adds which is the united states supreme court case and which predated rutledge where and in rutledge the two conspiracies advertising conspiracy that algren as case you had importation and distribution which are on the same level one does not encompass the other there's no clear intent which is why block berger requires that congress intended to punish both the advertising and the c e whereas in exportation or importation of drugs and distribution of drugs in alberta as it was it was clear that that's what