case number one five dash five seven four six usa lindo luck or arguments not to exceed fifteen minutes per side mr jeffrey b lancer it's for the defendant appell jeff lazarus and from the federal public defenders on behalf of mr locke like reserve for minutes rebuttal if i may may please the court your honor in this case the district court committed reversible error by failing to accept the defense request for a stipulation in this case in violation of evidence rule four zero three and the supreme court's holding in old chief first as united states and old chief of the supreme court entire relied entirely on evidence rule for three and allowed a stipulation because the prejudicial effect of a defendant's prior conviction so just is a categorical rule isn't it it's a categorical rule about whenever you have a prior felony you know you're always going to say the rule for a three balancing leads to too much prejudice right went to when the idea is to put in evidence about the prior felony but i would call that a categorical balancing in other words in chief they said we're doing it this way in all cases that's correct ok so you try and make the same argument here that in all sex offender cases it's always categorical balancing are you saying no no no this is a case where these images violated for all three not necessarily these images and not a categorical rule in all cases however i don't  allegations we have to look at the facts in this case in this case we have a defendant who does not contest that the images in the case were child pornography if mr locke was saying that these images do not constitute child pornography under the federal guy under the federal statute then it would obviously be an issue of fact and it could be stipulated to if that was his argument so because he is stipulating or agreeing that the images do constitute child pornography he is reducing the relevancy and making the rule applicable cheap applicable here  in all cases where a defendant in your client's shoes does that will old chief require keeping it out we don't believe so your honor we're not asking the court to accept that isn't that just means it's a rule for us three abuse of discretion case in looking at four o three and looking at old chief justice souter relied on the phrase that there might be a less risky alternative a less risky alternative in this case we don't only have the stipulation or the agreement that these are images are child property but we also have the filenames that were previously read into the record by the agent in trial so the agent reads the names of the images into the record and tells the jury what they are and these images names all contain indicators that they are child pornography they have sexually explicit words and they refer to children as minors in the names because we are stipulate we are allowing that it is a less risky alternative so the main mission that these are child pornography coupled with the fact that the image names demonstrate or further to the jury it reduces the probative value of showing the actual images to the jury but the images themselves have such an emotional response in this case that is merely the purpose is to elicit an emotional response and the probative value of showing the actual images is very low so we're looking at that for three balancing in this case not as a general matter and all child provocations but in this case with all these circumstances the four zero three balancing favors mr locke and the district court aired under the rules of all chief this court has twice or a murder or kidnapping or something as low level as a felony theft the supreme court has said we're taking that nature away from the jury we don't want them to consider what it was because we're afraid that if it is too prejudicial that it would prejudice the defendant and harm them and we don't want to do that just like in this case it's child pornography whether these images are relatively innocuous compared to some or relatively heinous compared to others mr lucky simply ask under these circumstances in which we have a less risky alternative that the court that the jurors and the need not be concerned with the specific content of these images you know right isn't it true that the worse the child pornography the more the pictures would be kept out more likely the pictures would be kept out other words the more egregious the child pornography the more outrageous it is the more likely under your chest it would be kept out and that scene perverse well i think that it could be but that again goes to the balancing  that's the problem right the worse it is the more likely the balance favors the defendant and so i'm just saying it seems very strange to me the more innocent forms of child pornography are going to get to jurors it all is it always is going to hurt the defendant for the jurors to be seeing this i think we have to agree to that but i the worse it is the more likely it doesn't get in front of the jurors how strange but again we could still present to the jurors the fact that these were pictures versus movies without getting into the content the government could present  number of images so there are ways in which the government could present this case as more heinous or more reprehensible without actually showing the movies in a case where the defendant doesn't contest the substance of the child pornography itself so while th government can get around then they can present their case as they see fit we're just saying that in a case like this in which the judge defendant doesn't contest and there is a less risky alternative that these images are clearly indicative of child pornography  ruling now the evidence was admitted in the ninth circuit overruled or vacated that finding an order new trial and the use of discretion grounds yes and find the following specifically the dictates of all chief and saying that in that case showing the jurors there were because there was a less risky alternative that the judge erred in not properly conducting the fourth rebalancing and i would further add in that case the district court did give a cautionary instruction when showing the images the district court gave a caution or instruction and it's laid out in the opinion detailing that these images are troubling and this just the jury should consider them just for what they are and not consider the nature of them nine which both your honor judge griffin and judge sutton want which is a case i believe called melis in which the court said in which your honor said the following caldwell and not extending all chief these are unpublished opinions but i would put distinguish those cases factually with this less risky alternative in the melis case the defendant had i think it was forty seven c d s and there's no indication as to whether they are marked they're just simple c d s the jury looking at the cd there's no specific indicator that these the child pornography is contained on there we're offering a less risky alternative with the file names themselves at the file names show what c d s do not that there is a child pornography indicator on those files now the government takes the position that well these file names can be manipulated can be changed and it could be something innocuous and that the jury should know what is on there but that defeats the purpose of having a stipulation by the defense stipulating to the fact that these files are these files and they're named these files that's not in contest so it only furthers the idea that the probative value is already there that the images have already been proven and the defense is not contesting this i like to move to my second point which is the keeping out the other four or three analysis in which the judge did not allow my client's mother to testify about the circumstances that affected him in terms of his cognitive functioning and his mental health issues the grab them in as stated by the defense counsel in this case of this case is that mr locke may have given an improper confession he has mental health issues cognitive issues that stem back to him receiving leave leukemia treatment from thirteen years before and it left him with severe issues that rendered him susceptible to questioning the defense's case in chief centered around the idea that while mr locke did give a confession that it was in might have been coerced by the pry the agents in this case you know you don't really offer a medical diagnosis physician as to the effect of these things on him in terms of is content of functioning use is that true or not true there was no doctor presented but his mother was going to testify as to the diagnosis he had which was the acute s an issue of fact for the jury as to whether the defendant did properly confess and whether the jury accepts that well whether the jury accepts that as as a free product of the defendant's own own free will so that is an issue of fact as to whether his because his statements were such a part of the government's case in chief whether those statements were actually true and whether they'd actually been gotten from the defendant during the course of the interview this is a separate issue from the suppression you have a brand issue  you argue that the miranda warning should have been given and also with involuntary scores the judge ruled against you there you feel that that's correct but now you're also saying that the jury can second guess those determinations of trial and basically overrule the judge and say the confession should not come in while the confession is a constitutional issue as to whether it was proper on the constitutional safeguards and standards and even if the  credibility terminations of the agent are in dispute and it's something that the juries do that i think we do that all the time with witnesses jurors have the ability to judge the credibility of witnesses and if they feel that the officers were lying or making this up or were too heavy there's no instruction to that but this court has a pattern instruction about the credibility that the that the jurors have the duty and the opportunity to assess the credibility to determine whether what the agency is truthful and if they say that we did not coerce them and the jurors find that to be improper they can reject that thank you rogers thank you j policy and stipulations when it comes to child porn is it or is it just office by office a u s a by usa how does that work and i'm not aware of any policy your honor and what's the norm is the norm to refuse to allow stipulation i can't speak for every office but i would imagine it is yours your experience i'm asking you're in our experience no question it would be to refuse a stipulation the reason being as this court in the supreme court an old chief has held we get to prove our case how we want the defendant does not get to sanitize the case or stipulate the case a way justice souter's opinion i mean the old chief is a case we lost but frankly old chief is a very helpful case for us and it's chock full of great language about why concrete tangible evidence is crucial to having the jury do the duty that we are charging the jury to do and this case this court excuse me and millions in caldwell has refused to extend that principle that court to carve out that very narrow exception for felon possession cases to extend that carve out these types of cases it shouldn't do so here all the public opinion they are you're on a case th at should be published there is no reason that i think that might make some sense your honor this is obviously come up a few times and i think it's it is something to my in in my experience that has come up in child pornography cases in our district to some degree so it no court has extended old chief to this context we would submit that the ninth circuit's merino balder rama case is different for a couple of reasons first they were really ruling on whether or not to show these movies in that case to the jury and there was no proof in that case that the defendant was a able to ever see those movies in fact the proof tended to show as i understand it that he couldn't see these these were actual films like tangible films like the old films and he was unable to see those things and so the the court said well if you can't show even saw these then we're not going to let you or  the trial judge should not have let them be shown to the jury and then secondly there was also the cover of those films had a picture image job point of child pornography on on the box and so there was this this substitute regardless that case is obviously not binding on this court but to the to the degree it has persuasive value it's distinct it's distinguishable on those two points here i do want to respond to this point that there is some sort of valid substitute to the evidence there's not and this court in belize and caldwell there's nothing in though those cases to indicate that the format of the child pornography the images or the videos at issue is meaningful in any way and in fact case were explicit just like the names in this case and this court held that the you can't force the government to stipulate that away and that it was not an abuse of discretion to introduce that evidence similar defense i should say that you know some other person was the one in the household downloading the images and putting them on the c d s so it's the same case and no court has that has truly extended all cheap this court should not the princip chief again the bottom the bedrock principle from which they carved out this exception is that the government has has the ability to prove its case how it  i do want to note since it was mentioned there the district court in this case also gave a limiting limiting instruction about the images before the images were first published to the jury and that's the last actually comparison i'll make to mel is that we actually only introduced around ten i'm sorry only published around ten images to the jury in this case it was one hundred fourteen we only introduced thirty admitted thirty to thirty five  images in this case it was sixteen hundred this court approved the court's decision not to force the stipulation in that case should do the same here all touch on the issue of the childhood illness evidence a couple things i want to say about that i guess the theory if i understood to respond to your line of questioning judge griffin the theory a trial was that as i understood the defense's theory was not that they were challenging the admissibility of the confession but it was more what weight the jury should put on it so you know district court had a obviously ruled pretrial that it could all come in it was not course there was no fourth amendment or constitutional violation  but so there they're trying to argue well you can't really rely on that confession that's now in evidence because he was in a daze or he was drowsy didn't it's important to note the court did admit evidence that he was in a daze that he was drowsy there was evidence that he took this been a drill and melatonin and did it on a regular basis and did it the night before this encounter that all came into evidence it was when miss luck said something about childhood illness that the objection was made and then there was this proffer outside the presence of the jury and i do want to note that the information cited in the in the briefs on the other side in this case about this childhood illnesses and how it related to his ability to think through things at the time of this encounter they're actually citing to the p s r in the suppression hearing transcript the proffer that was made at trial which is you know the prompted the ruling that this now under review by this court was was fairly it was fairly limited in was a very attenuated presentation there were certainly no medical diagnosis given it was a very attenuated connection between chemotherapy over ten years before that led to some sort of pain in knees and ankles that led to sleeping problems that led to him taking been a drill and just a really we would say flimsy basis on which to admit this evidence it was not relevant district court seem to think there was some sort of marginal relevance in our view wasn't even relevant for the reasons i just explained there was no medical diagnosis but even if it were relevant we're talking about a potential prejudice and risk of jury confusion that was quite high there's just no abuse of discretion that can be shown in that ruling if there are no questions on the other issues will rest in our briefs thank you thank you thank  asked for one the defense asked for one no no they did not they tried to keep the stipulation out and i point the court to pages nine hundred ninety and twenty forty three of the record which are the page id numbers in which the images were shown and there is no limiting instruction so the marina balderrama case is the only published opinion that we can find that is really dispositive on this issue and it sets forth the standards and it applies old chief specific to this context just told us the case was one where it wasn't clear that the defendant had seen the movies the issue of c enter was a question that was the issue before the change the rule for a three day manik if anything it helps us that in that case marina balderrama was saying i didn't know that these images were child pornography it's my understanding that the mens rea it was the specific issue i thought the question was he wasn't clear he even saw the movies that the government wanted to put in front of the jury that's what they say just said i'm not sure if it's whether he saw the specific movies or whether he was transporting them and he didn't know was on the films or that would mean he didn't see them that's the point so wouldn't that affect it seems really serious qualifier when it comes to what that case stands for but in a case like that if he hadn't seen them in our case the question i would you let the jury see him if he hadn't seen them that would be a matter for him his counsel all i know is that in our case the probative value  it wasn't being contested and if anything because our client was aware at least the allegations are that the that our client was aware with the films actually were it reduces the probative value and only increases the prejudicial nature so in fact compared to that are four or three balancing is even more great and more in our favor in this case is the one case that really is a public opinion throughout this country that really goes to this analysis and i ask the court to follow that