good morning your honour's devon verse and on behalf of mr wynn your honour's in curtain this court on bonk held quote as a matter of law a court does not properly exercise it balancing discretion under rule four zero three when it fails to place on the scales and personally examine and evaluate all that it must weigh the court continued one cannot evaluate any rule for zero three context what one has not seen or read here your honour's is the government concedes the district court had not seen the graphic video and view or read the actual evidence that's the whole point of minute here let's make sure we have the facts as i understand the cork did receive or did have it in front of it and you can argue about whether the co reviewed it exactly what was going to be put in as i understand it as well and you can tell me if i'm wrong the court severely limited what would be played you are you are wrong your honor and respect i say that the government will concede it did not give the images and the video to the government to the court before the court under no circuit is to minute but the digging but before we got to what was actually done the court did limit what it would allow to begin with yes the court had in front of it some if you will written transcript of what would be done  you are arguing they did never look at that then the court did give a cautionary instruction yes i yes you make any allegation that some of the images or videos would be more or less prejudicial let me understand the question your honor are you saying of the three which is the most prejudicial no i'm saying to you make an allegation that some of the images or the videos might be more or less presidential press prejudicial sorry these were not these were not mere images of nudity these three images at the video on the two images were hard core a i understanding just again referring to the facts was that they just record allowed for the three seconds to showing that they were children not engaged in sexual acts and three seconds of a sexual act five seconds of a pretty we need the descriptions already are six seventy seven so i guess the question that as i understand to bake is that would it matter if there was three seconds at in the middle of the video or three seconds at the end of the video of it whereas was there some difference given that the the three seconds where they were to show that it was children engaged in sexual acts yes it would matter because you didn't it's more prejudicial to show for overwhelming that it doesn't matter absolutely not the government in this i'm not why i'm trying to get you to focus on the facts as to what it is you're really fighting about if you're just going to say well judge smith you've got an on bond decision that says if he doesn't look at it it's automatically a bad seed and then you want to throw this out i don't think that's the issue the issue is what are the facts i know i have that decision pleases the court so assuming the court agrees that it's legal or under kirton waters mcalary what happens here and we also have the whole stipulation issue that we haven't touched on but let's just assume for thought for a minute that it's not that it is legal or as we claim so in this context as the court recently made clear and wells we said should begin with a presumption of prejudice and quoting from job the court must reverse unless it's convinced that the error did not contribute to the verdict the government bears the burd can't meet its burden so let's start with the past and then move to the fact i thought the defense theory was that he hadn't downloaded those items so regardless of whether they were child pornography or not i thought the theory of defense was he had juror's mind and what do we have on the other side and so i think really the entry really would judge smith is asking me to get to we have a very close case we have it i've never seen this in another case we have all of mr wins personal devices packard computer his tablet his thumb drive his cellphone all contain no contraband whatsoever it's interesting that when you're trying to define the harmless there you go to the steps that you or the evidence you would argue help your opponent or helps you what about the evidence that your opponent has that otherwise would convict your person and that's why i think judge question is pretty important she stole it out of my mouth defense's argument was not the argument you're now making the defense's argument has a different ring to it and so therefore i'm trying to figure out even if this would have come in even if it's wrong what would have been the harmfulness of it given your theory of the defense ok and i think that this goes to exactly why the district court gave the cautionary instruction that your honor highlighted the very beginning right you don't need a cautionary instruction if you're not worried about this coming in and being used on  fairly common sense and that this court case law all along home if you see these kinds of images you're more likely to hate the person whether or not it goes to the actual facts that's the problem that's the whole reason they want to keep it out in the beginning that's why it's so prejudicial that's why this court uses the word inherently prejudicial because those kind of images are a different sort they are horrific images that strike us as human beings at our core when you see that and then you have a federal prosecutor telling you it's the defendant you are naturally a human being going to look at that defendant with a very very jaundiced view and you're going to ignore the court's instruction and you're going to ignore what the defense is and that's just going to be what you're going to do that's not the standard your honor i ask you is that what's going to happen here my not w look harmless mess here and that's why i mean if in fact i did go down the way you want me to go as to every bit the judge should have done that they did and then the bottom line is is it harmless and that's why i'm asking these are those questions and i understand that and i prefer to getting to the point but the standard legal standard for harmless is did it contribute to the verdict this  instruction was fundamentally flawed for the exact same reason that it was in marino balderrama this court rejected that harmlessness argument there and it said quote the instruction was inadequate on its face the instruction did not tell the jury how it's viewing the films were assisted to determine whether the defendant viewed demmer or otherwise knew that they depicted child pornography that's the same problem here and that really gets back to judge a couldst question about you know the nature of the defen that's the problem this doesn't go to anything judge it doesn't go to that what it does is it inflames the passions of the jury is the classic the only purpose here especially given the stipulations council yes or no it people get stipulations of all sorts and they say i stipulate that's child pornography a lot of people in jurors have probably never seen anything like that and never will so you go back to what congress did in its inception they defined what you have to prove and then the courts come on say well you can't do that because it's just too graphic right what's the prosecutor left to do to try and prove their case you have to see have to have some snippet of that and i you know it's a small amount of time compared to the the volume of these things that people see all the time is in my neck of the woods you have to look at before or you try to look at but a lot of times you're hoping for stipulation or something but you have descriptive words in there about what kind of pornography is a conclusion what were the actual reading being depicted among two people of different ages and so on and so forth and the mere say well that's child pornography a much or a stipulation can go that leaves the government it's a big burden on those two points that are you trying to say if a district court perhaps a showing of child pornography to a jury and that was an error that's per se reversible error like structural error is that your position you know you're on because that's why we were asking about harmlessness and you seem to be saying there there can be no such thing in this context no no your honor there can be harmless er other side of this was very strong the jury deadlocked the alibi evidence was incredibly strong and show he wasn't there when some of this downloading took place there was testimony establishing that multiple people had access to this it's not just two seconds your honor it's you know remember what chief justice roberts wrote last term and buck some toxins can be deadly in small doses that's what this is let's just talk about the third image and i hate to do this in open court get you want to save time for doesn't see your into your mind as a juror then i you know i don't know what else to say  may please the court daniels upon we have the united states your honor of the district court was within its discretion and allowing the united states to play a short clip from one of the videos recovered and two still images this case i  what is it that you were trying to prove by showing the clips in the cases that were cited the clips were being shown to disprove an element of the defendant's defense i didn't know that this was pretty griffey but there was nothing like that in this case because the defendant's theory of defense was i didn't download it i had nothing to do with it it was somebody else so why was it necessary to show personally i think this was child porn he didn't deny that it was child porn what was he supposed to have knowledge of his theory was somebody else downloaded it to the computer i wasn't there i didn't do it well was he supposed to have knowledge of where you are  that he would not stipulate to the fact that he knew that this was sexually explicit conduct and that he knew the age of the victims involved and that's the crux of the matter here we had to prove not that a reasonable  this defendant himself knew the age of these victims he would not stipulate to that and the best most probative evidence of that is for the jury to see it themselves for a brief amount of time  the district court in this case did everything it could to minimize any unfair prejudice from the viewing of these images at the united states began by requesting a place for blank the your thirty second clips of multiple videos i think i two videos over the course of thirty pages of appellate transcript the court walks through the detail notes of what was going to be played and essentially negotiates down to where there was a ultimately a six second clip and two still images was all the jury was allowed to see and then the court gave of all instructions to the jury right around the time before and after was played that they should not be swayed by this and that they should keep their focus on the main issue at trial which is whether it is a defendant but he did not see clips before they were played correct he did not watch the actual video is now gone or did he see the transcript of it it yes if you read the record at the time he suggests and i didn't write down the place in the record that he cited that he didn't look at it i don't think that's a fair characterization of the record it starts around three seventy two and continues for about ten pages the prosecutor begins by saying i have these notes i can hand it up to your honor and then a few pages later the court says i'm looking at it and discusses individual notes about it asks what does this mean when it says one minute two seconds so i think the record is clear that the court had the notes was discussing with the parties what was going to come in and ultimately had by the end said defense should meet with the prosecutor to go over a second by second  explanation of what the united states intends to produce and at that point that the defendant never objected and never said we need the court to view those six seconds before making a ruling so i think are you really saying th that it would certainly be plainer they never objected on those grounds but in any event the cases cited by the defense in this case curtain and others were of the court allowed highly inflammatory evidence in written form to come in  tired stories or anarchist literature to come in without reading any of it it's just simply not the same as this case where we're talking about a very limited six second video the court reviewed detailed notes of what was coming in and then did its best to the limit the prejudicial impact that and ultimately even if it was illogical or implausible for the court to treat this evidence as it did error would have been harmless in this case when the agents executed the search warrant on this defendant's house he was asleep and his bedroom immediately next to a laptop on a stand next to his bed on that laptop were a video file showing that the last ten videos played on that laptop were child pornography videos including one that day before the search warrant was executed the agents had a external hard drive found in the same room that fit into that laptop that contain multiple other images of child pornography on that same laptop or other evidence of that belonged to the defendant including resumes and then there was evidence that the defendant played video games over the course of years using an account linked to his e mail account at the exact same time the child pornography was being downloaded onto that computer so given that evidence that it's actually his room was full of child pornography the computer next to his bed watched the day before any prejudicial impact of these six seconds of video into still images along with the court security of instructions would not have made a difference in the outcome of this trial let me go back to the question i asked your opponent not is do you find it is in this case that oftentimes suggestions that i will stipulate to certain things do not cover  the elements that you have to prove to a jury and therefore the stipulation is somewhat vague it doesn't really cover what you want out of it yes your honor i think for two reasons one the actual element of knowledge as i mentioned before we have to prove that this defendant knew the age of these victims in this video so the statute says that the defendant passed do you know the age of the that involves children because his his claim was he had never seen the videos he had nothing to do with them but by the greens that they were child porn and that they were underage children so why is it that you have to prove that he knew the  subsequently looked at these videos and and agree they were children i i am still struggling with that i but that's in the jury instructions for knowledge on this offense your honor that the defendant had to know the under age the victims depicted but he claims he never saw them so they would have to say the jury would have to determine he had seen the videos and he's already stipulated that they are child poor and so  so once the jury has determined that in fact he did see a download the videos i'm not sure what the fact that they take they get to see the videos themselves and see its children how that makes a difference there's a difference in the real world between sort of a dried legal stipulation and the best evidence to prove an element of the united states has a burden to prove i mean numerous had if they were child porn and in fact he stipulated it was child porn but the be opposing counsel as i understand it is you wanted to show the videos to the jury so they have the defendant would look like a bad person or worse person no your honor i think going to that knowledge element the best evidence that the united states have its position and it was the central aspect of this entire prosecution was that this evidence anyone who viewed this for even a second would know the age of the vick and you think the jury would not have believed it was child porn if it was only relying on the stipulation by the defendant they may have but it's certainly not the best evidence that the united states had in its possession and it wasn't an abuse of discretion it wasn't logical or implausible for the court to say you can put in your best evidence but i'm going to limit it i'm going to cabinet these six seconds and i'm going to exhaust to instruct the jury not to have this ok so so the purpose of introducing it was an actual issue knowledge it was to establish without doubt that it was child porn that was downloaded but he declined to stipulate that he knew that this was child porn or he knew that will he be a character that he knew and then there's multiple cases that have made that that simply saying that a reasonable person would recognize this is a statutory definition of child pornography is not the same as the defendant admitting i personally knew the age of these images the victims in these images but he claims he never looked at it ever looked at  video and the district court will showing the video only proves this child porn it doesn't show that he knows anything well chile proves that child porn which he already stipulated to it it shows well it doesn't show that he knows it but it's the best evidence that anyone that in that statute though that we as a child pornography is sort of a conclusion returned don't you have to show other things within that statute as a certain age and a differential things like that there's a different colloquy with the parties in the court but i think the general stipulation was that a reasonable person would know this is a child porn or something to that so ultimately it's our position the district court did what it could to limit th prejudicial impact of this case it was not illogical or impossible for the court to allow the six seconds and to still images and even if it was an abuse of discretion given the otherwise overwhelming evidence of the defendant's possession in this case your honor sorry i usually have a poker face but i feel a little bit like i'm in the twilight zone it doesn't of the the images don't make it more or less likely that he that is mr will right there saw the child pornography they were done it doesn't go to any element of the offense he just as you said judge a coulda he offered to stipulate that it was a child pornography that is it met the statutory definition and not anybody seeing it would know it his only thing is it wasn't me the images are not probative of that fact whatsoever ok thank you thank you for your argument in the case of united states versus if when is submitted and the next case for argument is united states versus jeffrey