defendant is the kind of person who commits a charged offense and that his instant conduct conformed with that propensity unfortunately that is precisely how the government used the jane doe evidence in this case the trial prosecutor characterize that evidence as a prior instance of the to of attempted enticement the very offense with which mr months of lies was charged and the prosecutor urged the jury to rely are you talking about closing argument yes your honor we are and there was no objection no your honor not on the basis of prosecutorial misconduct we have ject it strenuously throughout the several pretrial conferences in the record to this evidence as both irrelevant and unduly prejudice you didn't object when you said that during both in order to know your honor and i don't think that for the purposes of our analysis here of the court's analysis here that it was necessary evidence to directly argue propensity is relevant to the prejudiced prong of the four o before for b analysis and it's relevant in the harmlessness analysis so the court could of course take into account that there was no objection there but i don't think that that factor weighs heavily in favor of the government here at best it's a push because there is a strategic value to not wanting to emphasize evidence that we strenuously believe was unduly prejudicial we argued to the district court on multiple occasions that this evidence was made it would mislead the jury that it was going to confuse them and that it was  the mind advance month of august has i didn't believe he was a minor just to clarify i don't take the government's argument in its brief to actually assert the modus operandi well the plan right your honor so just just so we're all in the same terms the modus operandi this court's case is made clear in that comment will strike my use of modus operandi it's a play on a problem judge who are still so as to plan i think we've sufficiently address and debunked that theory in our briefing this court's opinion in chris dorm is very clear and subsequent opinions are very clear that the planned rationale is only implicated in a case where the extr activity is part of the conduct that is used to show the plan to commit the actual charge defense so in this case that would mean that the discussion with jane doe was part of the overarching goal a larger goal of entice ing agent williams fictional personality area and so that's that's the difference that's why i plan in fact i'd like to know it's not part of getting the second person so it can't be planted evidence and it can't be modus operandi because it's not like a distinct method of something that's you know you wear the blue shirt and you do this and that the record of series of events that's a a method to do something it's there's not anything specific like that that's right judge all right we would certainly contest modus operandi on on the substance in terms of this wasn't you know enough or similar enough to demonstrate the handiwork of the accused which is are the signature quality of an offense but even regardless of that identity simply wasn't issue here is it abs court specifically rely upon in this analysis the district court that not only have to pick the district court did not specifically embrace an analysis is is in fact to give the district court credit the district urged the trial prosecutor not to inject any four or four b in this case i didn't notice that when i was going back through the record and i didn't put it in next stress that my briefing so i'd like to point the court to the record at page two seventy one in page two eighty one and eighty two where the district court explains to the prosecutor look this is a straightforward case we don't need for a for be it's going to muck it up why don't we just try this straight up well he the government had three types of get this evidence in and he finally caves and doesn't give up counsel your right eye and i didn't mean to imply any anything about judge occasion in this case i think judge kazan was correct in his initial instinct that this evidence really isn't necessary in this case and the government persisted and so here we are so what is the basis what is the legitimate basis i guess i should ask the government but i think we can i think from the record it's pretty clear to infer that what the government was using this evidence for or thought the evidence was relevant for was intent the intent delavan of section twenty four twenty two b which in an attempt case like this requires the defendant to specifically intend to sexually entice a person he actually believes is a minor it's not enough as the court's jury instructions pattern instruction make clear that he just suspect that he's talking to a minor he would be entitled to a verdict of not guilty if that's all the evidence could reasonably show he has to actually believe and that was a hotly disputed issue in this case and that was in fact the only disputed issue in that was you know it's very clear from the government or from the trial prosecutor statements to the district court and particularly in the closing argument that the evidence he was using the evidence to demonstrate th same script theory of the case that mr munson vyas is an individual who entices children by laying a trap with the same script he did it before and that's why you should find him guilty here and that is that is the exact core purpose that rules for a for be in for three exist to prevent is is asking the jury to infer guilt from propensity and that's what separates mr monk surprises case from other four or four beat cases and that's why we think that this is one of those rare instances and it is rare where a diff where the wrongful admission of on to multiple of those different prongs so i'll try to take it back and go through it if at the first step the court looks to whether the extrinsic activity was sufficiently proved in the sense that the relevant aspect of the of the extrinsic activity here as as we discussed the government offered the extrinsic activity demonstrate mr munson vices intent specific intent to entice and actual belief in a minor  looks at whether or not the at the jury could find that the defendant acted with the same intent in the extrinsic offense as is required to prove the substantive charge defense in this case that would be the specific intent and as the government candidly acknowledged in its brief the evidence before the jury in this case simply was not sufficient to find that mr months of us engaged in the jane doe conversation with the same intent as i rod is that it's not specifically sexual so there's no basis for that inference that the defendant is has intended or has a sexual desire for minors and that's the common theme that we pointed out in our briefing was present in all the reported cases that we were able to find that involve section twenty four twenty two the prosecution and the admission of a prior  communication with between the defendant and a minor or even between the defendant and another adult such as emails where the content is sexually explicit and refer in reference to mine well the as i recall from the  this first sentence with if you refer to jane doe they were having i don't know why but the conversation would be broken up and then a long period later the conversation would resume its ret maybe he maybe he didn't get into the sexual aspect of it simply because of communication players or whatever i don't know but i question that if he doesn't dot every i and cross every t you still can see that is part of the character well i understand but he was also having currently problems with i don't know why maybe they had celery of something i don't know that might be true judge barksdale but that is precisely the reason why this evidence was so proof of the actual offense and if you're doing that if you need to if the jury has to believe the press the actual offense occurred in order to believe the strands of difference occurred then the extrinsic offense isn't being used to make it more likely that the actual offense occurred any more it's just simply being used to show repetitive conduct you are starting to talk to support cases and you did mention beecham doesn't support the prosecution is that your best case or is there some other case that you would say we should really study like this one if we're at the first step when we're talking about the analysis that should happen when whether or not the offense was proved because of the similarity  it moving on to for three balancing even if we assume the change the evidence cleared the first hurdle in this case it should readily have been excluded because of its present is its prejudicial potential overwhelmed  the probative value in this case we cited multiple factors in our briefs that decrease probity increase prejudice but i'd like to fact especially now at the time i'd like to really drill down on two of those first is the prosecutor's use of the evidence in this case was to directly argue propensity it's it is repeated and it is pervasive and it is the last thing that the prosecutor left with the jury in fact the jury said because this is what he does you should find him guilty and he was referring to the extrinsic offense not to the actual offense charged and the second is the biggest problem that beechen recognize with this type of evidence when there's and when it's uncharged is the potential for the jury to want to convict the defendant even if he's not guilty because they're upset about the charge defense are extrinsic offense and that was a huge possibility here because the character of the evidence they basically replaced the agent with an actual victims if they knew that that agent was the agent in the real case right and then they also knew it was a real girl and the other situation yes your honor and i would like to beg the courts ind yes judge barksdale no problem you normally don't let you bring up things on rebuttal you didn't cover on your opening argument you're right judge bar still much time you want there's a lot of two minutes fine there's a lot of moving parts in this case and i really want to make sure i answer the court questions as to particularly the relevance problem when we turning to the final court the harmlessness this court's twenty thirteen opinion and hamilton makes clear that reversal based on four or four b error is appropriate when there is a reasonable possibility that the improperly admitted evidence contributed to the defendant's conviction we think for three main reasons that test is satisfied here first the evidence of the guilt was not overwhelming certainly not enough to render the idea that the jury would embrace the invitation for propensity to be on reasonable at best the evidence was mixed with respect to the crucial disputed element belief that aaron the agent was actually a minor mr munson vice presented a plausible defense about to believe the photos of the agent were a female agent in her twenty's mr monsour vice repeatedly responded to the pictures by commenting that this woman looked well above eighteen similar circumstances that agents when an agent uses pictures like that it does create a reasonable at least offense that the defendant maybe did believe that this person was altered despite the representations that they were a minor second there were no jury instructions in this case in a limiting instructions that would alleviate the prejudice and finally and you didn't request one no your honor we're not required to under a little pointing out you did not request one it's your honor in the prosecution didn't either the prosecution promised to alleviate prejudice and if pretrial filings by asking for an instruction it didn't work and the court in essence gave one i don't think it did your honor for the reasons we explained in our brief and finally the prosecutors use this is just like fortenberry and just like the ninety five brown decision the prosecutor actually argued propensity and that substantially increase the like a script and a lure that months of eyes used with people that he believed to be under eighteen it's almost the exact as judge barksdale noted for bait him script when you compare the dialogue with aaron thirteen and with jane doe he starts off with hi how are you then he tells them i drive a big truck for a living then he thing shock and surprise me finds out are twelve and thirteen then he follows up with the lure and the lure is the script of his twelve year old stepdaughter boy if i got a story for you let me tell you about my twelve year old stepdaughter the two in occurred very close in time which is also relevant under four of four beat the air in thirteen chats occurred on march thirty first of april first of twenty sixteen the jane doe chats occurred on march twenty ninth and we know there were also in two thousand and sixteen if the court looks at the chat log in exhibit eight with jane doe he tells her boy you look like you're eighteen nineteen or twenty and she tells him l o l check my profile government exhibit eight a which is also referred to as sixteen on the physical document itself is the facebook profile and on the facebook profile it says that it was updated on march twenty fifth and in the bottom hand corner it says facebook twenty sixteen so we know that they're close in time but what did the government say it wasn't sufficient to show it because it doesn't have the sexual element we did not say that you are on a reset that it was relevant to show under beecham that it was a pattern of grooming that it was a script that it was a lure he used with children and it was almost so identical do you think it is i think it's definitely enough under beecham under the first prong for the pattern and under the second prong your honor under the balancing judge kaizen performs the beecham balancing to the letter because he excluded even more damaging evidence under four o four b and what was that there was evidence on one survives phone of an interaction with an adult named hottie jennifer where he specifically requested pictures of really young ones in addition in his post arrest all you also mind about this defendant's predisposition to want to have sex with children i don't think you need to go any further without the use of yes the word predisposition is exactly pretty propensity you know the honest mistake may not be the second part that the person said but the first part was not appropriate that's not a the predisposition is the same thing is produced propensity let me point out your honor first of all that it was not the united states that brought up the four a four b in closing the prosecutor never mentioned it in his opening closing on his act you know what i'm asking i'm asking do you agree with that soon it's was not appropriate i in the context of the prosecutor responding to the raising of the four zero four be evidence a prosecutor was entitled to bring up why it was relevant and it was relevant to show  very not relevant to show predisposition and or any circumstances it's not relevant to show predisposition and that's the word the prosecutor i just it it doesn't mean it's reversible error just it to want to have sex is exactly what you're not allowed to do you agree to actually say that yes ok but getting back to the balancing of the harmlessness as i said educated and just perfect job under beecham under record six ninety he specifically said i'm trying to balance and give the guy the benefit of the doubt so he excluded all the other four o four b evidence and he kept in the one that most judge kazan did give a cautionary instruction in the jury instructions even though no limiting instruction was requested and the jury was fully aware that there was no sexual overtures and the jane doe evidence there is overwhelming evidence to support this jury's verdict monts of eyes initiated the very graphic sexual conversations and meeting logistics with aaron thirteen is detailed in our brief the jury listened to the audio tape where he consistently referred to and thirteen as a little girl and he admitted that if he had truly believed he was talking with a twenty year olds a twenty year old would have found perverse a story about this twelve year old stepdaughter he also tells agents amadeo i made a mistake i'm glad you caught me given the government's evidence in the form of mr bone mr months of ace chat history with aaron which is extensive in explicit in the fact that nothing came of the chat with age with with jane doe or whatever her calling the unknown minor how is mr months votes short conversation with jane doe a minor and not the undercover pattern and these cases are progression and most of the cases the defendant doesn't outright say would you like to have sex initially it starts off with the progression of conversation and some of those cases take in  because of the reasons that i gave that it is again relevant to the patent is not prejudicial because the jury knew that it didn't have any sexual overtures it was just ok i didn't i didn't say it was ok that's that's ok that's what you do if you're trying to win the four or three balancing is lost look work for be balancing has my understanding is that you start with what it's relevant to you and where are getting it's eyes cell phone just to give the court a little background on not the day before trial defense counsel informs the court and the prosecutor that he had searched facebook and actually found the real jane doe and  going to introduce the evidence a child that's a record page's twelfth or thirteen six eighty seven six eighty six seven twenty seven twenty four and seven twenty five so that might the agent search search space book and exhibit eight in the chat log where he refers to her age and the reason the government show that picture to the jury is because it's a clear and sharper image even defense counsel of record two thirty three noted that when you try to enlarge these thumbnail photographs the pixels distort the image and again we did not show it as just propensity to talk to children but we showed it as a pattern of grooming a script and a lure and jane doe is clearly a child if there's no further questions i respectfully request that the court from the judgments you know want to talk about the god learn plainer well your honor as you mentioned if the appellant does not raise it initially then you can certainly talk about it usually ok if you'd like me i don't care whether you do or not well i'd like for you to say ok since it's been brought up now ok we we recognize that judge kazan did misapply the guidelines in not considering the a fact of the a general attempt to axe one point one but even if to its case and had considered it under plain error review mo completed all the acts he believed necessary for successful completion of the substantive offense and he is not we have to charge attempts because we don't really have actual minor but the these guidelines states that the you have to look at the substantive offense and the substantive offense in this case is the intent to persuade someone under the age of the eighteen to engage in a sexual act and so here we look to see whether he completed all the he believed necessary in the first one is the intent to persuade and this court has recognized in notes six of both broussard and barlow that there's a consensus among the circuits that congress intended to criminal the persuasion and the attempts to persuade itself not the criminal not the act of sexual activity itself to prevent this exact type of scenario that is happening in this case and the inten persuade aaron thirteen is pervasive throughout this case he initiated the overtly sexual images that's the round case the messages excuse me he has a pattern of grooming that's the howard case he taught tells the story of the twelve year old stepdaughter he also tells her that he's still friends with the step daughter he compliments her he gives her affectionate emoticons he promises are flowers he tells her that that she will be safe with him and he took the acts that were necessary to make the offense complete and those acts he made arrangements and he actually traveled to the meeting place so that this picket fence could happen if we don't agree with his prong three satisfied no your honor it's not satisfied because had the court actually consider a two x one point one the sentence could be potentially even higher than if the court had just considered t g one point three in the reason is the court would start with one point three the guideline for the substantive offense as it did and if it referred to two x one point two season two x one point one the attempt guideline same intent in the extrinsic offense as the charge defense that is black letter fifth circuit law so we cannot infer intent out of a pattern of activity in fact pattern activity is not a relevant purpose under for a for b it is literally propensity in united states versus goodwin this court explained very clearly that the difference between plan and propensity is that plan goes towards the overarching goal to commit the charged offense it is never ok to use it to show that this is the sort of crime that the defendant does meaning repeated similar conduct it's just simply not relevant and as to the balancing the government over reach is there in talk and explaining the balancing was satisfied by balancing different extrinsic evidence balancing is required to be done for each individual piece of evidence probity against its prejudice and in this case the fact that those other evidence those other pieces of evidence were kept out given tells us nothing as to whether or not it was too prejudicial to let in the jane doe evidence with respect to the response argument this was not a response a attended response of the jane doe evidence was a calculated trial struck by the government it was the last piece of evidence the government put in the surprise picture was a surprise it was not gotten intil the day of after jury selection taken in the night in between trial and it wasn't even disclosed to the government or to the to the defense or the district court until it was put on the elmo and  inculpatory aspects of the conversation in this case were not enough to demonstrate that it's overwhelming evidence this is basically a credibility determination the government is the party that introduced mr munson vice is statements denying belief so there was a credibility choice here and that is sure it's sufficient but that doesn't necessarily make the evidence overwhelm and lastly extrinsic evidence has to be probative in a way not linked to propensity  here it was the government admits that the predisposition was problematic but that's the least inflammatory argument the government made in fact the government even suggested mr vance advice was a predator and that he had quote a script