good morning and welcome to the th circuit we'd also judge hawkins and i would like to welcome our colleague judge pratt from iowa southern district of iowa sitting with us by designation we have a lot of cases on the calendar as many  been here before no i'm actually pretty flexible but i can't be very flexible today so please watch the clock if you are the appellant and it's yellow that means you have two minutes left and for either of you the read and you will find this surprising red means stop and you have actually run out of your time so let's start with the st case united states versus blick may perceive in opinion named u s p johnston which at least one member of this panel will be familiar with the should i just make a suggestion to you yes and i've made it to other counsel this week you come in with a new site posing council doesn't have it we don't have it had you submitted a twenty eight day letter last night we would have read it so just for future it would be a lot easier for us but pretty proceed thank you your honor i it was yes i mean i know it happens because when you prepare th circuit case it directly deals with the issues in this case multiplicity of convictions double jeopardy issues it was post t which is important to me because i know the government's relying on t to say that the plain error analysis in this case dictates that there is no prejudice to the defendant in my response i believe that both chillon the case cited in my brief and johnston the new case which is a two thousand and fifteen case in teague was a two thousand and thirteen case both of these cases and in fact johnston the new case written by judge mchugh cites i'm sorry the reason i find johnston and chalak important is because both of those cases say that i'm multiplicity in violation of the double jeopardy standard is never  could be charged with either receipt or possession correct i'm sorry your honor the same a vent could be charged with either right yeah the error in this case is not that they were they can be charged the same offense can but the not the same images i believe the multiplicity the double jeopardy violation is if you charge a receipt and possession and then you base it on the exact same conduct in this case there was a samsung tablet and there was a laptop and there were other media devices so the error wasn't that they couldn't be charged take they could be charged separately and in fact they were the different things i mean we reversed that least one count because you basically you couldn't come to the conclusion that they were based on the same conduct but here the tablet images are that work i mean the images charging to were different than the images in count one where they well they were but no now what's the problem maybe i'm having trouble understand yet that they were different well that is the issue one that the indictment that makes clear that they were different the indictment is crystal on that and that's that's the way it should be unfortunately journey instruction that's a revenue no term struction twelve is not crystal clear and that jury instruction twelve did not track the superseding indictment and did not say that the to find the defendant guilty beyond a reasonable doubt of receipt that the images had to be separate from those on the samsung tablet the  box yes what more do you need well they they went through that in opening and closing unfortunately they were also instructed that evidence to the judge instruct but didn't the government witnesses so testify i  mean the prosecutor did make up the closing out of thin air he was reciting where she was reciting what was in the record well that's true your honor but then how is the jury the jury has to be instructed by the court to say these have to be separate images and they weren't they were they were instructed there has to be separate conduct in annapolis generic sense but they weren't instructed these images have to be separate from what's on the samsung tablet and that's why  meaning in this case doesn't that yes it does because because that was not done we do not know what the jury's verdict was based on because and the government again tries to raise this negative implication they call it saying well it says samsun and count in the jury instruction eleven and it says it in count one of the superseding indictment but the problem is jane struction twelve does not say it does not track the indictment and it does not refer to other good morning your honour's and may it please the court i'm till miller on behalf of the united states i can confirm that council did give me a copy of the decision and i had a chance to review it there's a simple way to reconcile davenport through johnston and shalako on the one hand on the other and that's looking at the indictment when the government charges separate conduct and counsel has conceded that we did so here and it was crystal clear that count one applied to images on the samsung tablet and that count two applied to images on the dell computer the laptop and the dropbox account then the inquiry is did the trial evidence marry up to the indictment such that we can be confident that the defendant was convicted for separate conduct and here we can because of a several different reasons one we have a good jury instruction as to count twelve both of the jury instructions the evidence was presented such that there was no evidence of receipt as to the images on the samsung tablet the government did not try to prove receipt instead it relied on the fact that the samsung tablet was manufactured in vietnam and it proved possession and that that you can see at page that the government's effort to show receipt as to the images on the other devices can be seen and sixty six dollars this is an example of the government showing when a file was either created or altered to show receipt and that's what the government used to show receipt and then agent mcfarlane one of the case agents went through exhibit to see which was a list of activity from drop the drop box account and said the show you when these images were created or altered and that's how we're showing receipt that same effort was not made as to the three images that were specifically tied to you know that he says ambiguous but not specific so would you address that because much of what you're talking about really is that the in the end the evidence there's very strong case for each of these counts but what about the ambiguity that the jury might have been left with on instruction twelve so i think teague in footnote three says the jury instruction isn't the only way we can ensure that an indictment the does charge separate  conduct result in a conviction for separate conduct it says that's not the only way so even if you conclude that jury instruction twelve could have been clearer and it could have been because it could have mentioned those other devices that doesn't mean that the double jeopardy clause was violated here but if you think it does mean that you still go to the analysis of prejudice and follow teague and say there was no prejudice here in light of the way the evidence was presented and the arguments and i think the arguments aren't evidence but there are a further way of understanding that the government presented this case presented the evidence in this case the testimony in this case couldn't have led the jury to convict for receipt on the basis of the images on the samsung tablet because we didn't attempt to prove that he received those images or do you make of the use of predator in argument i think in this case it was an accurate description of his conduct it's a strong word and i concede that but he there was evidence the jury saw a number of videos video chats he'd had w fourteen year old girl in california in which he did things like instructed her to call him daddy and called her princess and in those images she sitting in on a bed with stuffed animals we know the evidence shows that he had a  copy of her graduation certificate from middle school from that year so he knew she was quite young and she he convinced her to send him sexually explicit images including an image of herself masturbating and i think that is predatory behavior and  the prosecutor was allowed to call it that but even if you disagree under the plane or analysis and the comment wasn't objected to it it does not give rise to a substantial probability that he would not have been convicted otherwise tablet or otherwise ok and the jury instruction was clear that it only applied to the samsung tablet and the government said you can say that again judge if if there's any room for confusion and the defendant said don't say it again the instruction is clear ok and so he is waived affirmatively waived any argument that that's the jury instruction was insufficiently clear and it wasn't insufficiently clear because it's specified the materials at issue and a jury that went back and looked at it should have understood that ok so that doesn't go in any way to the argument that they misunderstood that they had to base the conviction on separate conduct i don't think so i don't i don't see anything the question that suggests that and even if it did it really only goes to possession and they've conceded that the possession instruction was fine their complaint is about the receipt instruction thank you if the i would like to briefly respond to the the argument about the attorney arguments that writ that issue was also raised in johnston and it was rejected in johnston for the exact same reason that i've argued that it should be rejected here which is that the jury was instructed that that they should not consider arguments either opening closing comments questions etc to be evidence and he does it does provide a construct even though it's not evidence i mean it's a you can organize information correct absolutely your honor but i think the issue in this case and in light of there's a solid solid history with this court starting with well actually before even davenport but since davenport davenport giberson shales shalott in johnston saying we're not going to make the journey engage in subtle sophisticated legal analysis the whole point of jury instructions is that juries are not lawyers and  the court has to give them instruction on what they need to do and join instruction twelve failed to do that and therefore we cannot decide how how how there was also notice that there could have been averted given this case saying in count one you find that the defendant guilty on a tablet p c whatever any count to do you find the guilty defendant guilty based upon a tablet p c images from dropbox whatever again that was not  done and the question that judge can or talked about from the jury again as the government indicated concerning concern to the possession count and jury instruction eleven and it really is not relevant to the to the pellets argument about multiplicity and the failure of instruction twelve  so i actually i must acquit is for the questions i have nothing further to argue thank you thank you again i thank you both for your argument this morning and for the briefing the case of united states versus billick is emitted