hear out of this there and if you would please just speak a little bit louder for me i'd appreciate it must be old age whatever to begin with i want to start with the judge's ruling on  fourteen rule and the court said that it couldn't it couldn't rule pullum narrowly and i believe it was within the time frame before the trial that  crew he couldn't rule pullum narrowly especially as to the th factor and limaye and that he would wait until the government has introduced other evidence at trial and then the court went on to say a few moments later that the government may make and make an application to the court to admit the prior conviction after it has introduced its other evidence at trial or at any is understand at the court ruled before trial started correct contrary to what it had previously said it would do can you help me what information had been provided to the court between the original no because they are conviction was allowed in they stood on the fact that the court had excluded the voice message and pictures outside of the indictment so those are nothing new had had been provided to the court to my knowledge no so based on that now i guess the next question that i ask  how would then the district court's analysis for the th of may factor have changed if the corded waited until the close of the government's our case i mean i looked at what was in front of the district court at the time they gave this this ruling written ruling that you talk about i didn't find anything at the time to change that ruling the very next day then i looked at what happened during the trial and i'm saying what would have happened to the court's analysis given what happened to trial if he to waited until the close of the crile was there anything that was new or different or on thought of or came out of the blue that the court would not have any idea was going to be there because i didn't find any so i'm really asking for you to help me because i understand what the flume a factor is about but i'm trying to say if the evidence produced by the government essentially was the same as the evidence that the parties represented that the district court would have been produced then what was the  listen to testimony well i understand that's why i said what was different because i'm not suggesting to myself that the letting it in wasn't prejudicial what i'm suggesting by my question is i looked at what the just record said to begin with i looked at the changes judge thomas tried to point out what came it cause this change i couldn't find  so then i said ok let's look at the trial did that change anything that the district court out of me had in front of it when it made this decision i mean it had all the testimony it had what it was going to get it wasn't given the way it was going to be given because questions and answers caused different things to happen but in this particular case i couldn't even find that the questions and answers that were given gave a different flavor than what it already been presented to the court when he made the decision and therefore so there's a or why is that a harmless error that's my question absolutely correct because if you look at the testimony of the agent he testified that mr thornhill admitted to owning the phone then at the time of the interview he admitted that he wrote the list of web addresses but his defense was the hit that stuff was on the phone before he got it that's exactly what the district court based its determination on right that it was there any error and not waiting to hear testimony i think that was just as a question well i'm glad judge you could ask that maybe for maybe clear better of that i'm just trying to make sure that you understand that's why i'm glad she ask you that because i don't think you answered my question i believe you're asking me to explain the prejudice from not only her admitting him admitting it before trial but why did it come in at all how was it prejudicial no no no i think the i think the question is would the analysis have been any different if the court had waited until actually hearing the testimony that was proffered before making the ruling and i think what we're suggesting in our questioning is we can't see how the decision would have been any different whether it was made the day before the jury was impaneled or after all of the government's proof  doesn't necessarily entail the government the judge adopting maybe please reports or interview records of what the agent is going to say before he testifies under oath because when he testified he testified about the fact that the defendant admitted owning the phone writing the list that he didn't own the phone when the things were time even if we agree that was a procedural error in what the court did how does that affect the ruling was the ruling affected because i would there be a different ruling she had caught him once masturbating in front of a picture of a young boy yes the boy was clothed and the court said in that case that st off look at pictures is entirely different from actual contact and then it also said that incest is particularly or particularly egregious to put before a jury of a defendant who the district court judge found the all five of those factors were either neutral or favored admission i don't believe there's any real challenge to the substance of his decision with respect to any of those five factors well i think she just argued i think she did challenge  error case it wasn't just focusing on this you're saying that that error with require reversal well the problem comes and i guess i'm going to ask you the same question that they have to follow up so you know what i'm at i'm glad to let them do it but if i read the th of may factor it say plainly says that you consider them it says of the of the evidence beyond testimonies already offered  nothing had been offered at trial no one thing and they made a ruling on the th limb a factor which seems without question a nate and that he ignored the th factor now my question is that why didn't you object your honor there are three reasons why i don't think that that would require reversal in this case the st is it's not just that the prosecutor didn't object the defense attorney also didn't object i know and i'm asking you why did the prosecutor object it's absolutely clear reading i'm a what has to be it seems to me the prosecutor should have objected that's the prosecutor byrd has the if you will attorney for the people so your honor i would respectfully disagree that  limit but it seems to me that when you focus in and i'm not sure that the focusing in any of those cases you've talked about before there was a focus when that may putting the language dead on as to what needed to happen and it didn't happen here well in limaye that language is offered as a quotation from another case where it also didn't happen there may be cases and that is what happened in  the judge do you have the referee evidence that there's nothing that changed between the st and nd days of trial the st decision when the district court made the written decision the nd day he just absolutely said it's and that doesn't seem to mean anything else happened between those two days do you agree with that i do not agree that nothing a child at what happened what changes the parties had reached a series of evidentiary stipulations they narrowed what the evidence was going to look like they reached a point where essentially they'd agreed that this was going to be a one witness case with otherwise evidence that was stipulated to or on which the district court had ruled about at civility to allow the chord to make this decision without hearing any testimony i think there are cases where it would not be enough i think in this case it was enough and i think there are cases where a judge might have to reconsider that decision after the evidence had been presented after seeing what the case looked like but that's not what happened here the evidence came out through the one witness exactly the way everybody thought it would when this ruling was made as far as i can tell there was only one objection that was offered during the testimony it was to the form evidence i looked at the evidence i don't think it was that overwhelming in terms of whether this evidence came in or not if i don't come in i don't think you would have been able to prove you set of facts i mean i'm saying there was no overwhelming evidence besides this conviction it was a major stroke in this trial you are i inflammatory and prejudicial so we're back to it was or the district court erred in not having heard the evidence before we let it in your honor i do not agree that this was prejudicial or inflammatory i agree it was reasonably necessary to the states that she's been to the government's case i don't and that evidence to convict without it i think all me why there is your honor i i think there was evidence certainly a facially sufficient prima facia case without this i don't think i could argue that it didn't appreciably affect the verdict seems to me like then it's inflammatory and prejudicial you think that it had a potential for prejudice is this court has recognized the sort of evidence always does also has a potential to be extremely provocative and in fact because it was so proto that's why i don't think a harmless error argument is necessarily available here that would not be readily accessible that he had a list of websites where this child pornography was available and he admitted to the f b i that he had searched for i think naked kids was the word that he used and and his defense was it was download to his phone when he was somewhere else right that that's that's correct that somehow somebody else must who had access to the phone and i think the evidence at least allowed for the possibility that there could have been such people do think in light of the overall evidence that was practically necessary in terms of let me say the point that the jury heard he previously convicted of child molestation involving his daughter that was the extent of it the jury effect that's all the jury that is all the jury heard and that the judgment was actually attached to this the prosecutor's motion seeking to admit it so the judge had heard what this evidence actually was going to look like when he made his  so the rd reason why i don't think the reversal would be warranted based on any procedural irregularity that that might be found in addition to the fact that i don't think the judge was actually required to do that in addition to the fact that the procedural regularity as opposed to the substantive decision was harmless in the light of the way that this evidence came in and led the way the case was litigated then maybe would be an argument that had the defense attorney  said your honor you should defer your decision until you see what the evidence should look like that's what the mainlander say that the judge is required to do that the defense attorney didn't say that and i think it's entirely reasonable heard if i ask you the question why did the prosecutor  prosecutor i'd just as much duty to do it as did the defendant prosecutor reed slim a prosecutor knows what the th factor is there well your honor as i said i mean you're trying to cast all the burden on the defen yet the question is very clear what should you do with the room a factor the th when should it be admitted so not it's not known to the prosecution prosecutor you are i see over time but if i can answer that question i think there are cases where attorneys prosecutors and defense attorneys can reasonably choose to have this question answered before the trial begins so that they can strategize their case accordingly that's what happened in this case the defense attorney actually asked for an opportunity to revise her opening statement and then in the government's supplemental excerpt of record pages sixty eight and sixty nine she actually objected and said the judge should have ruled even earlier than well that was very interesting because he actually made a point for me the government said that the park conviction only said sexual abuse but in trial the agent said he believe sorry he did not apparently did not know that and that is where the prejudice comes in and in the pression case clearly said that incest has the power to discuss and when this jury heard that it was his minor daughter we cannot say they were not swayed by that we do not know how much that swayed them but it had the potential to inflict prejudice on the defendant and had the government not have been able to admit that whether they could have convicted him on the list on the photos is