he that often people on the internet even had the f b i agent to admit that often people on the internet are policy and minors when they are in fact adults and he was able to testify regarding of the number and early on which not to let me ask you this is the record clear that his original contact with the person in virginia was with the daughter  please the court john owens for the united states in this case the district court permitted the defendant thomas donnelly to mount a vigorous defense and the question for this panel is whether some of the limits on that the fence require this court to throw out the jury's verdict were minors and that when he met them in person they turned out to be adults and i governments accept the record seventy six through eighty two the defendant talks about his communications with jeannie francesca and michelle now based on these rea the defendant had the fence counsel was able to argue at trial that when he was communicating with ashley in l a which is the subject of this case he thought that she was an adult based on his previous communications th significant difference is there's a third party involved and again if we believe the defendant story the father is involved in cases like dingo and some of the other cases that been cited it's one on one communications and contact and he's first with the the thirteen year old the four we haven't spotted by the government with the seventeen year old there was no negotiation or involvement with a third party and in fact in this case actually there was apparently a fourth party and that the record page thirty nine defense counsel mentions that there was a friend of the father named chris was somehow involved in this as well so actually they thought party again very different than the actions in this case when it was the long one communications francesco jima shell both came into evidence when very strange and only through the testimony and i mean just a minute ago you said well if we believe his testimony and of course that's a question i suppose agree it's whether the jury believes his testimony i suppose the fact that the going on now the defendant was going to offer apparently testimony to kind of flesh out the story so it wasn't merely the e mail that he wanted to or the instant message that he wanted to introduce you also want to introduce some i guess a testimony about it so one who made the phone call but the government may try to develop evidence a sequel who actually did make that phone call for example the defendant at trial testified that he did not go along with his roommate at the time when this relationship was not very good at all very strange that  that's that trial transcript on november twenty second at page one seventy nine all kinds of questions didn't get written by the seventh he said yes there is a phone record that he called virginia child protective services but why did he call the defense in any case well because they're concerned about this child the government might argue why actually he's trying to figure out how to get away with the crime the cost of our evidence of the virginia evidence simply raises more questions than it answers and that's the very reason why judge will close discretion to look to prevent  well there was a hung jury in the first trial so therefore any error requires trial but i don't think that's the proper analysis the proper analysis is that the exclusion of this piece of evidence what impact if admitted would have had on the trial now one of the major things that the defendant in this case was the america online parental controls he testified and spence counsel argued in opening statement and in closing argument that the america online crennel controls made the tenant believe that he would not be communicating with children in these chat rooms that was a big part of the defense being what i thought actually in l a was not all because how if she was a minor how could she get through the parental controls well that's the defense here but if you going to use the virginia evidence or the conover evidence he's saying well i didn't have multiple communications with a child so on the one hand the defense is i never expected to communicate with children therefore i didn't think ashley was a child on the other hand occasionally i did have conversations with children the two simply don't go together the other cut each other quite frankly and so when dressing the issue if you have to reach the harmless error analysis which i don't think you do if you do there was no reversal where on the ground now i'd like to address just can be your questions about that he was going to introduce some testimony about those two accounts but the issue of the specific issue that the government tracked down who these people were or can verify they are adults that was not raised that then during trial at some point i would direct a fact that the f b i actually prove that it did objection sustained there was never anything telling the core and again the core previously you are the reason why it's relevant is not because you go to a state of mind but it goes to corroborate what he was thinking that was never presented to the district motion after motion for reconsideration at any time they could have embraced this argument or just record and they didn't and now to try to do it now i feel for the first time that's why we have clean air review that's why we there's a penalty that the f that the f b i found at the in fact were adults would not cooperate the fact that they were had these online communications then actually would not corroborate what he was thinking it's not like a telescope that years into his mind doesn't support it was not an error that would have made a difference in this case i think it's very important to recognize that in both opening statement and closing argument defense counsel told the jury that these two accounts were adults and i would direct the course attention to do look at the entire picture including opening statements closing argument determine whether there's a reversible error and i'll ask the question any quite more questions about that when i want to but very briefly talk about the rule for a five issue i would just like to point out on the