the supreme court made it clear that the confrontation clause guarantees in court face to face confrontation and that's really the essence of the clause and it cited a very rich historical  recitation of the confrontation clause so it's only in extraordinary circumstances that that right can be i guess compromised in maryland versus craigs the supreme court held that in certain unusual circumstances for sort of the medical necessity of a witness that that right can be compromised by video testimony that can be a substitute for in court face to face confrontation the cases that have sort of interpreted that principle have all come out before crawford versus washington and it's arguable that the circumstances in the landscape are now different after crawford but even under those older cases we believe that they were not specific they were not sufficient circumstances to justify the video testimony in this case we have a situation here where the witness was pregnant perhaps there would have need to be a delay of about eight to ten weeks until her pregnancy was finished and she could travel a few court to testify given that relatively short duration there was no reason why the trial couldn't be continued or these two counts as this particular victim couldn't have been severed to a comedy mr carter's confrontation clause rights particularly this witness was a critical witness in the case and in the cases that have generally allowed a witness to testify by video have usually involved witnesses that were not critical they perhaps were testifying about a point that really wasn't disputed at the trial or they were maybe a secondary or tertiary type witness this was the most important when this in the case as to those two counts does it matter that in this case the video was was like this it's live video both ways we get to see the individual that we're talking to they get to see the witness the witness got to respond it's not a one way video like it was in the greg well i certainly think on a scale of things telephone of testimony one way video to a video to a video is certainly the best of those three but one of the problems that the two way video didn't allow for the face to face confrontation with the defendant and that's really what the the richest oracle tradition of the confrontation clause it comes down to the fact that the defendant has the right to in the same room i be i with the witness and have that witness testify right there in front of the and the emotional trauma that would have been inflicted on that witness we don't know whether it would have been one year two years five years until that when this would have been able to sustain that trauma and testify in court here we're talking about eight to ten weeks perhaps for the witness to be ready to come into court and testify and i think that's a significant difference i mean a court can't indefinitely continue a trial for years to wait and see perhaps the witness maybe in two years or four years will be able to testify in court here we know this pregnancy is going to end relatively soon and then of course there might be a short period of recovery after the pregnancy but this witness could be in court in eight to ten weeks give or take and in addition these counts could have been severed there was no reason  quick question could the government have taken the deposition of this witness and avoided the the confrontation clause issue i don't think so i think it comes back down to the same the same issue which is still the confrontation clause guarantees the witness to be in court to testify both in front of the defendant and in front of the jury live and i don't think the video a videotape deposition would have been an adequate substitute again the i think the cases suggest that in this situation the reasonable and proper course is just to delay the trial briefly or to sever the counts in this case to allow the witness to come in the court so i don't think the deposition  is that you segregate out the witnesses testimony and then you look at what's left and in this case the government has some circumstantial evidence through documents step perhaps mr carter was involved in the travel this witness from minnesota to california and perhaps in some advertisements for you know prostitution related offenses but they don't have really enough evidence to connect him to what exactly happened how this witness reasonable doubt which of course is the highest a harmless error standard what do you want to do with the with respect to the scales we would like the court to reverse these two counts of conviction that would also we'd also ask the court to reverse the sentence because these two counts were the ones that carried the highest guidelines we reversed the count out outright and that's the end of it or they were going to try to try a new trial certainly the government could go forward with a new trial so we'd ask for the reversal of those counts and then the reversal of the sentence as well for assuming the other counts stayed that does bleed into my statue of limitations argument that i didn't want to address and one thing i did want to say is related to the confrontation clause claim is that i there is an issue about preservation as the statue of limitations and one thing i think the court could do is that if the court vacated the judgment because counts thirteen and fourteen are reversed the court could send the case back to the district court for consideration number one of the statute of limitations in the first instance because the judgment will now be vacated and number two the supreme court is about to decide it in a very important double jeopardy case which is important in this case as well and therefore the court could vacate the judgment send the case back down for consideration of both statute of limitations and double jeopardy once the supreme court decides gamble which you will likely do in the fall or perhaps later next term counsel to schools on the gamble issue don't we normally follow supreme court presidents until they choose to change them so that mean the fact that the there's a case  have to follow the existing precedent then if the court changes that i'm sure you'd be able to get a certain position grant well i guess i agree with your honor that obviously the court takes the law as it exist rule based on the current state of dual sovereignty knowing that the supreme court's going to be deciding this case very soon then have me take a petition to the supreme court and then for them to send it back down for reconsideration in light of gamble what is done g d r is done all the have to wait for that decision from the supreme court before it i think that would be the best course i think that we all want to know what the supreme court's going to say and you know by the time that mr carter is brought back he's in i think he's in terre haute indiana right now by the time is brought back to california and the whole process unfolds i think will probably be pretty close to a two decision from the supreme court anyhow so i don't think it's going to that much delay but the bottom line is that he's in custody i don't think it prejudices the government he's in custody so if the court waits until the supreme court decides where this court waits until the supreme court decides i don't see the prejudice in doing so in fact it seems to me to be the most efficient route take in this in these circumstances all that being said i did want to just spend a couple minutes on the statue of limitations argument if the court wasn't inclined to just remain on this for consideration in the first instance it's our position that at the very least under those counts all occurred before section thirty two ninety nine was enacted in two thousand and six it's our position that based on united states versus richardson which is a third circuit case that the statute of limitations provision does not apply retroactively to cases or a conduct that occurred before the limitations provision was enacted in addition to the third circuit case there's also when congress has intended for limitations provision to problem is if these two counts constitute sexual abuse of a minor is that term is defined in thirty two eighty three again we've cited a supreme court case called bridges which makes clear that it's a categorical approach that applies in the in th circumstance and these two specific statutes do not categorically require sexual abuse of a minor in fact they don't require any sex act at all based on the precedent so for those reasons we we believe that counts exactly what this court did in lieu it entertained in that case the defendant didn't even file a delay motion any motion whatsoever and this court still held that it could on direct appeal make a finding  because the statute mutations was violated the defendant clearly suffered prejudice and it would be deficient performance to fail to file a with what he did with our case i'm sure chief short chief addressed a different issue we did not address thirty two ninety nine and it simply the defend in that case made a somewhat circular but very creative repeal by implication argument and we're not making that argument at all if the leo short chief did not address the three hundred ninety nine it's not address  good morning your honor may please the court jeffrey chemerinsky on behalf of the pelly the united states i'll be addressing the challenges to the defense conviction my co counsel says he and his attorney jeff mitchell be addressing any questions regarding the challenges to defend sentence the majority of defendants claims were never raised before the district court and are therefore waived those that were not waived to reviewed for plain error the standard the defendant cannot meet finally those claims that were raised before the district court held that the statue limitations is an affirmative defense it's not a jurisdictional bar if not raised before the district court it's waived here it's clear that if and to not raise the statue imitations defense at no point was a special impatiens issue brought before the district court the pleadings on this matter then exclusively cite docket number two of six which is in the exit governs excerpts of record pages thirty seven th forty two at no point in that pleading disadvantage mention the special notations the district court's ruling on the defense delay motion in no way invoked the statue of limitations and no point was the court district court called upon to rule on the applicability of ease either section thirty two ninety nine or section thirty two eighty three and the retroactivity to this to the defendant's conduct and some this issue was never raised before the district court and under the clear ruling a massage overthe united states this issues waived i'm happy to address that because billet of thirty two ninety nine retroactively i'm also happy to move to the confrontation cla should be a mechanism for reviewing the special occasions in lieu ineffective since the council's clearly raised from the very start of the briefing before the ninth circuit it was clearly presented to the ninth circuit as the primary issue for the statue limitations here in effective assistance of counsel isn't addressed at all until the defendant's reply brief and under clear ninth circuit precedent dating back to everly vs city of anaheim in issue raised for the first time on a reply is generally not considered by the court there is no record on the fifth ineffective assistance of counsel claim the government has not been provided an opportunity to address this claim and the court does not have the full record on which to rule on this issue even if the court word of reached this issue thirty two ninety nine provides a mechanism under which thirty nine should be found to apply retroactively and defend the counts against the defendant would be timely under this statute for three reasons first the inclusion of the notwithstanding provision within thirty to ninety nine makes clear congress's intent to override all other provisions in says nero's versus alpine ridge site in the government's brief the court the supreme court said the use of such a notwithstanding clause clearly signals the drafters intention that the provisions of the notwithstanding section override conflicting provisions of any other section of the supreme court also said a clear statement is difficult to imagine here the inclusion of such a notwithstanding clause clearly indicates congress's intent to override all other statutes second as this court has said and blackwell is wells other circuit courts have said the statute of limitations is a procedural issue and therefore it's found to apply retroactively although blackwell defense or defense counsel argues with the civil case other courts have apply that principle to criminal cases as well and united states versus nip for example the sixth circuit that cases nine six three thirty eight thirty nine reason that the statue impatience doesn't go to either the elements or the internal structure of the offense and therefore it's merely a procedural rule the third reason the court should find thirty two ninety nine applies retroactively i'm happy to address other questions regarding third to ninety nine or to move to the confrontation clause clean of the competition clause the fence confrontation clause claim on appeal is relatively narrow he argues that the witness was not unavailable because the court could have granted a continuance or severed those two counts none of those arguments were presented before the district court defendant never argued never requested a continuance of these cat of any ask that he be permitted to attend a deposition in minnesota that's your honor that's not entirely correct there were two filings from defense counsel regarding the confrontation clause issue there governs excerpts of record for zero five and for seventeen the very first one was raised in response was filed in response to the government's motion to either take a deposition or do you live way too big to a video testimony defense response which is government's excerpts of record four zero five express the clear preference for live to a video testimony defense counsel stated that a deposition would present a hardship and would not be manageable under the circumstances and defense counsel express that they say why did they say that they were worried that they would be only getting there yes your honor that he said that the logistics of getting him there were difficult would be difficult the it came up as the government learned of the various health concerns right and how how how many days before the start of trial was this like a week right a lot of progress i believe it was a week to two weeks so that would count although the government presented opportunity would have been willing for example to go mid trial to minnesota that was certainly an option that was possible the logistics of the how the trip to minnesota could've been worked out had defense counsel not said no i prefer life to a video testimony defense counsel didn't say we can do a deposition but here are the ways we can do it defense counsel sensually ended that discussion and said i want to a video testimony instead is that what they said certainly the defense counsel said of the two he preferred life to even this and he raised the issue that my confrontation rights are being violated correct he did raise that but certainly the two way video conference in this case was as i think ordinarily recognized much credit created greater safeguards and even what the supreme court allowed in maryland vs kreg the two way video testimony in this case dilemma trying to reconcile craig and cause i because quite makes pretty clear it's a confrontation between the witness and the defendant not not the defendant's ability to see the witness you're giving testimony yes  it up but i actually don't think this is the issue defense counsel even raises on appeal first of all i think that his issue on appeal is merely about the un availability in the remedies it's not about whether the video conference efficiently protected the defendant's rights however and if it was a two way video conference of the witness could see into the courtroom much like is i think the court has recognized judge cool can see here so it did provide the witness in an opportunity to observe the court proceedings as well as it wasn't simply a one way video conference but again i don't think this is the issue defense counsel raises in his briefing i think the issue in his briefing is a much more narrow question dealing with an availability in the remedies which was never raised before the district court and the court's attention the and availability of this witness is consistent with what this court held in the choir in which a witness was similarly seven months pregnant is wealth the unability an availability showing is even greater than what the fifth circuit held was sufficient ecker versus united states obligation to satisfy the confrontation clause with regard to the evidence there submitting on their case yes your honor but i'd say first of all it's defense counsel obligation to raise a specific objection that puts the issue directly before the district court the objections that the defense counsel did raise before the disc district court were addressed th your court followed the defense counsel's preference for live video testimony over a deposition in the district court provided every possible protection you can through video print conference had defense counsel raised a specific objection to either of the two remedies those could have been addressed by the district court as well at this point the ninth circuit is writing truly on a blank slate regarding whether those or even remedies the defendant would have wanted at the time of trial there they were never raised the district court never had an opportunity to address them the government had never never had an opportunity to respond and so i think it is important that there be a contemporaneous objection with such specific under such with such specific requests so from your perspective simply saying i have jacked i want to be able to confront my accuser is not enough that what you're suggesting is the defense would have to say i want to have the ability to confront my cues or and here's why the remedies that are suggested aren't good enough as well what i'm saying is that the issue has to be presented real fifty two b which is the rule about plane air talks about issues being brought to the tension in the district court i think certainly the question about the two way video conference was brought to the attention the district court i don't think the issue of whether a continu a severance was appropriate were ever in any form brought before the district court and it's not you for all the reasons that there's a contemporaneous objection rule those should apply here the district court with such a specific  it's comes up slightly different but even if the court doesn't find that clear applies the court would still find that this is harmless beyond a reasonable doubt the evidence as to victim jaycee this is extremely strong included the bus ticket by which the victim traveled from minnesota to los angeles which had buried the defendants names the purchaser of the ticket it included the back page advertisements on which the essentially the solicitation advertisement for the victim that back page advertisement traced directly back to the defendant in a number of ways if you're down to your last second states in order to succeed on these sensitive issues defendant must show that the district court plainly erred on both sentencing issues if he fails to prove both his total remains unchanged at forty three and his reply brief he has invited this court to exercise his discretion and to review the novo but the questions here are not questions purely of law for instance alleges that his two thousand and ten conviction in value was a prior sex offense in order to determine that it would require a review of the nevada statute the elements within the statute the charging documents and the conviction darkness to determine whether or not they follow the qualifying offenses within four b one point five and eighteen u s c twenty four twenty six however this court has declined to exercise the same type of discretion to review to novo in united states versus consults appreciate a case the defendant cites and for this exact same reasons because it would require review of those conviction documents and counsel just go to if i could ask this so mean for sake of argument that we were to decide to vacate the conviction on the counts involving the confrontation does that mean i think it's a reasoned single but to magically know your honor i don't believe that does those the conduct underlying those counts regardless of whether or not the conviction stands will still be considered as part of relevant conduct and in order to succeed on appeal on the sentencing issues he still must prove that the district court erred on both sentencing issues so in addition to vacating on counts thirteen and fourteen that this court would have to find that the district court erred on the expos facto clause and the four b one point five analysis so all three factors i believe would have to kind of fall in defendant's favor in order to have an effect thank you counsel and under playing air review defendant cannot show that the nevada conviction is a prior sex offense conviction as defined by four b one point five the p s r indicates that he was convicted of pandering not pandering by force not pandering of a minor but just plain pandering and that is not a qualifying offense under the  before talking about the merits on the confrontation clause i did want to address this last point about the remedy and whether the sentence would have to be vacated the government i think has now made a new argument that somehow it counts thirteen fourteen or vacated that sentence would not have to be vacated and the relevant conduct argument that you've just made for the first time right now is incorrect the problem is that when counts thirteen fourteen if they were to go those were the said carry the highest guidelines and set the basis for the grouping increases that follow so basically under united states versus and ya know which is what we said in our briefs the sentencing package becomes on b happened other government is i think faulting the quality of the objections below and therefore arguing that these issues are preserved and they've made some points about my brief which i want to address but the way this needs to be looked at is the trial was about to begin in and sixteen on the eve of trial the government supersedes the indictment adds several new charges new victims so the trial gets postponed to april nineteenth now that their new counts the defense filed a motion to sever the counts based on that first superseding indictment district court denies the motion to sever then after the district court denies the motion to sever the government file superseding indictment on march april fourteenth the defense files an objection citing the confrontation clause saying i object based on the confrontation clause he's had less than twenty four hours to object at this point and that very same day the judge signs  order without a hearing saying i grant the motion for video testimony without any oral argument on the motion just on the papers alone then in the trial he files another written submission objecting on the basis of the confrontation clause and for the government to say with all of the last minute things that are better being done that somehow the defense has forfeited a confrontation clause claim and has an obligation to run through every different thing that the court should do they have you know i cited coy versus i won my opening brief i articulated that the requirement of the confrontation clause is live in court testimony so for the government to say that somehow i didn't raise that i'm not sure where that's coming from of and then finally on  of limitations issue he said that i do know raising effective assistance of counsel until the reply brief well that's because our position is that the claim is preserved that the motion to delay motion below preserve the claim when the government said in their response we know we don't think that was sufficient to preserve it