i believe that the facts are that there are two sets of facts here one are the facts that were presented in the text messages that were interpreted by the cooperating quote could it and it i'm going to sort of back up i don't believe that you are biased i do believe that there is an interpretation of the facts and i in the last couple of days the white house has been using the word colorful more salient for the court i mean those kind of what those arguments underlie the denial of the motion for a new trial which was denied without an evidentiary hearing it went out the trial court rich quick using herself which i think would was appropriate under the circumstances both for her comments and for her relationship to the case as a fact witness that her as her relationship to trial counsel i'm happy t liberty mark thompson who is charged as you know with attempting to produce a prohibited porn pornographic image of a child and with attempting to solicit that child through her mother at trial the compulsively engaged in accelerating sexual fantasies with brutally door analysis and if we had been able to put on a mental health expert i think those would have been put into the context of that there are people who engage in that sort of behavior who are not pedophiles but who engage in that sort of behavior as a symptom of mental illness and to avoid trauma we're talking about the e mails or the actual sexual activity you had with the victim's mother so there's you focused on right now i'm focused on the taxman i'm focused on the text messages i think that the the  discussions between the two of them there were things that were acted out there were a lot of fantasies that were discussed there were a lot of things that were brought up by rosalie door analysis herself as fantasies which were to home that home make this a little more concrete in terms of the time you have i personally speaking for myself not at all persuaded mr thompson to expert witness should have been allowed to testify since the american psychiatric association or whatever it is removed sexual what what in an older day we would have called perversions from  characterization is mental illness and i don't see how the underdog or the district court abused her discretion in accepting that peer reviewed conclusion on the other hand i investigating officer the director police where resolutely during alice said this was all fantasy he would not have had sex with my daughter and that statement was disclosed to the defense six months later with her attorney and with the psychologist dr hosh apparently she made a very similar statement to say that this was all fantasy that she would not have acted upon that statement was not disclosed to the defense until well after conviction into well after we were in the midst of a direct appeal during during when that when that statement was disclosed i moves for a stay of the briefing schedule and be an end to the trial court for a motion for a new trial at the plea the government responded in their response to the motion for new trial well we told you that rosalie had maintained that this was all fantasy for quite some time and in fact she maintained that position after she became again cooperat after she had pled guilty and agreed to cooperate with the government and that was interviewed apparently several times by the government about the charges and made similar statements all of which to  still have not been turned over to the defense so it appears that not only did the cooperating codefendant make this statement but she made it six months later to a psychologist and the presen defense lawyer in direct contradiction of her trial testimony that she lied to the police that one time in a completely different context after she'd been advised by counsel after she and mark thompson had both been fact she never did you know her testimony and she was vigorously cross examined sume on having made statements about the fantasy etc etc etc so again i'm not saying the argument was december twenty third team before she was arrested she made a statement to the director police that statement was turned over at trial she was cross examined vigorously about that statement and i would argue that that was not effective in the way that she had actually been prepared to say i did lie when i went to the director just i live at that time because i was covering for mark thompson and i'm no longer covering for mark thompson and i'm telling the truth now he in fact wanted to have sex with my daughter and she repeated that i would say fifteen times and incredibly damaging to every question i was asked for that was her direct testimony so not only so she was cross examined about that one statement and i think she was successfully rehabilitated on that one statement because the prosecution was in fact able to argue look how credible she is she admitted that she lied she admitted that one is taking the photo which they did which she did she did it his behest and arg and second grooming you know taking preparatory steps to have sex with her daughter and could the jury look at i mean i know materiality it's always an issue here but could the jury look at what happened with the photo and extrapolate from  that as sufficient part of the same fish proof on the on the grooming so this is how the evidence preceded with respect to the taking of the photograph there was  text messages between rosalie and mark thompson and that discussed her daughter following that there were text messages that said  i don't want a picture forget the picture you're confused and what rosalie doing now is testified about it was that in the phone conversations what mark thompson was saying was i need to photograph any of the photographs that she took the photograph at his behest but the materiality of her being impeached both on the statement when she believed it was off fantasy and on her mental health information which i believe would have given context to context to her confusion about what what the actual intent was i think that those things w impeached her credibility as to the content of the telephone conversations rosalie during the house was such a critical witness for the government because she testified about there was documented text messages and there were documented hours of phone conversations and even the judge said that one point are we going to hear what the content of these phone conversations are and we need to hear what the content is and rosalie dormouse was the witness who testified as to what forget the photo i don't want a photo you're confused about why you love me if you think this photo his testimony that he never actually one of the photo it was this was all part of fantasy so it was her testimony saying no in fact he wasn't saying what he said on those text messages he was telling me something different in person than what he was saying on the text messages that was what was so critical to the government's case and it goes to both counts with respect to she was the person who provided the evidence about what mark thompson's intent was because taken on their face she also in a lot of conversation that was very often aware that they these two people actually only met in person five times over that's nearly a year along the way ship and so the primary fault of it was these thousands and thousands of text messages and telephone calls but with out rosalie door analysis testimony in the prosecutor even said that in closing if you believe rosalie alice mark thompson is guilty she was in on the fact the government's case not saying to discount the text messages but she was the person who interpreted the intent behind the text message to the jury got a little off track but that that the other issue that really came to the fore i think that also goes to her credibility and i think that these errors have to be  looked at if way which is that she told the jury multiple times in a very emotional way that she faced fifteen to thirty years that she was convicted that she didn't understand terms of her plea agreement that she didn't think that she could get a downward departure and this is someone who's guidelines actually put her very high up new objective objects to testimony they say that you that the play agreement was in the record or available to depends council it was i think that the prosecution had an independent obligation well that may be the case but was there no objection there was an objection to being curtailed by the district court disappear it was very involved in the questioning of witnesses and there was an objection when defense counsel was questioning mr nelson trying to pin her down both on when she had lied and spent and when she had stopped calling this a fantasy and to her statements about her sentence of fifteen to thirty years and the district court stepped in and said this is  cross examined and nothing from that report or any conduct in the government had a reasonable probability of affecting the outcome because mr thompson's other claims also have merit this court should affirm now starting with the h that is not material evidence and here the defendant has made clear in his opening brief and the court has discussed that don't know it was extensively impeached at trial edition only getting to a point the judge clement raised you also look at the material the analysis in light of the other evidence that was presented during the course of the trial in closing argument the government's primary argument was look at the text messages the text messages speak for themselves and they are the ones the text messages the skype and viber messages they tell you what the defendant's intent was here now the passages that were quoted today the government made those arguments in rebuttal closing after the defense gets up and attacks journalists in its own closing arguments but the bank remains the same place you think the the primary thrust of the government's of events was those text messages now about the investigation there was the daughter of mr nel us who spoke about her direct conversations but be only person really say this you can introduce the text messages and you could've made the case for that door no lies the problem was the witness for whom there was the violation was the only source of information on the relevant aspect of proof here the intent of mr thompson to get the text messages here or strong and in fact we believe stronger evidence of what mr thompson's intent was now i so want to clarify a couple of i think factual problems here with with mr thompson argument one is we make this point in our police when mr nel us meets with dr hotshots six months after the initial statement she still hasn't begun cooperating with the government and so her state which is far less definitive than her it was clearly fantasy he never intended to do this her statement i think it was perhaps fantasy i don't think he would have gone through with it was itself entirely consistent with her continuing to cover for that part of it was fancy fantasy so that's an argument that the is made impassively in the reply brief i'm not clear with where that is in the record again i was not trial counsel but as far as the record going forward and the only time that we hear about her saying actually you know what i think if he had the chance he would have had sex with my daughter that came out of a trial itself there's no indication that the government ever discussed whether was originally from the philippines not a native english speaker had a number of communication problems and frankly the government's meetings with with mr nel us were simply to understand what had happened and to place those text messages in context now citations to the record about mr analysis repeated statements it was not fifteen it was about six or so that i think thompson would have in fact had sex with my daughter those were not statements that were elicited in direct examination all of the statements are in there from the cross examination now if it was so important for the government to get during nelson's view on what thompson's intent was one would think that that would be the kind of thing that the government with elicited and then argued in closing now the government didn't argue it in closing in again all of the citations and in the defendant's brief are to the cross examination testimony i reviewed the direct i don't believe the government ever  elicited it which would be with the government not seeing this is a particularly important piece of evidence during ellis is there to provide context to the communications but she's not there to opine on what the defendant's intent was that is provided by the defendant's own she was asked about this on cross examination seemed genuinely confused about what her plea agreement entailed the judge said can we use the government willing to get up and stipulate that it has made a motion and would  below fifteen years the government said yes we'll get up and stipulate to that so that there is no confusion about what the defendant what mr nel us is facing mr thompson scoundrel objected to that and said i won't stipulate to the government making that  statement on the record i don't know why but that's what happened and then in closing argument mr thompson's counsel extensively said i don't believe mr analysis testimony she's she's got to be lying  she doesn't understand this fifteen years that she can receive a sentence below the fifteen year maximum the concern in the pew is that the government is either actively eliciting false testimony or is allowing false testimony to kind of go through it's to come out without correcting it so that the jury is sort of unaware that in fact a witness has some incentives that is not not  disclosed here that was fully disclosed the government took efforts to i mean perhaps we could have done a better job on redirect making that point more clearly but the point was fairly clearly made that mr no us could receive a sentence below fifteen years and it was a point argued 'm happy to to well let me make another point i think judge jones you raised the question about whether the evidence in support of count one could be used to also support the defendant's intent on count t i think the answer to that is yes but i also think there's another important point in terms of thinking about the two counts which is that on the brady materiality question all of this question about whether or not the defendant would have wanted to have sex with mr no less that's relevant for count two that's what charges his interest story his attempt to induce mr analysis daughter to engage in a lawful sexual activity count one charged the making of dispute about that and i think there's certainly no evidence here argument but we think the evidence is quite strong the exchange of pickett's pictures is in the record so even if this court has some discomfort on the materiality question with respect to you know whether whether the information should have been turned was these people turn to under age minors on a three about a three month spree prostitute in the multiple times five or six seven days a week and the leader of that him i mean i just i'm not sympathetic with these kinds of situations but i do wonder why they have more severe sentences than the  some of that may well have to do with the way congress has set out the sentencing schemes a lot of that is is probably a function of the guidelines themselves and how they pegged different offenses i think the sentence that mr thompson received was certainly a very stringent one but i don't think it's unfair and perhaps the fact that there's been no there challenge to it suggests this to thompson doesn't have doesn't feel too strongly about that either i grant that when you look at other offenses there are times when start four hundred eighty months whatever that would be forty years and no i don't think oh i don't remember so i know that one of the problems was it was this kind of consecutive sentences i believe the ultimate sentence was was four hundred eighty years and of course this court accorded to sentencing judges i think that this falls and is a is a procedurally and substantively reasonable sentence which again hasn't been otherwise to i know there are other there are other issues about to the proposed expert testimony and some of these others i'm happy to answer any of the questions related to those i'm equally happy to give back the rest of my time to the court to the director police i just want to emphasize that at trial mr analysis was extensively class soon about the fact that she lied to the director police or that's what she said that she lied to the d police and she was affectively able to overcome having said that she but she lied she was effectively able to overcome that by saying yeah i lied then this is the reason i was still under the influence of mark thompson but now things have changed and now i've realized the influence he had over me but he didn't did they ever engage in sexual activity in or i think what the law says is when the credibility of a witness is under siege the issue is whether the withheld statement puts it in a cast it in a wholly different light and i would submit to the court that this new statement to d hotshot it wholly different context after she had been indicted after mark thompson had been indicted after neither of them were speaking to each other does cast what her testimony was in an entirely different light with up her understanding of her plea agreement this is a woman who at this point had had counsel for over a year had entered a plea of guilty and had presumably b who had waived her rights to give a statement at the door at a police department had gone through all sorts of legal interactions and waiving rights and agreeing to certain things it was implausible that she did not understand the terms of her plea agreement particularly when her plea agreement was a significant departure she received five years she did not have a protective order in spite of the fact that she is the one that took the video of her child there was no protective order against her children her children were able to visit her and she is not subject to the mandatory period of supervised release she got a very sweet deal in exchange for her testimony and the offer to stipulate came in the midst of defense counsel attempting to question her and confront her about her understanding and that's why he refused to offer the stipulation because right after the trial court said government will you stipulate that she can have a sentence reduction trial counsel said no i'm trying to question her and the trial court at that point cut him off of questioning her further and in my impression was that the jury was left with the impression that it's and for good reason it's a very high standard to establish that bias actually affected the outcome of the child in the bias section i did raise the severity of mark thompson sentence as  fair minded person and this just may not be the case for you i think that this judge had she been and question and as a juror would have been subject to it for cause challenge based on list based on not being able to tolerate the subject well you know it is where it is i guess i would just say side of the if you are making the point poignantly as you are about the judges bias more traction if it was tacked to the severely or the same prejudice as evidence of the prejudice that was caused by the bias so if bias if there's bias but there's no prejudice to the defendant to the bias that the bus is really harmless err right but that the prejudice part of it was the rule it was i believe part of it was not disclosing and this would be no it's a difficult case to put it mildly on the facts and so on so we do appreciate the briefing an argument in case an otherwise the case would be submitted thanks for your brief an argument counsel w