three be characterized as a fulsome request to stipulate that the five images in the five videos of the government then sought to offer in its case she trial constituted sexually explicit content minors and most importantly was willing to allow the government's testifying case agent to provide a detailed narrative of everything that occurred in those images and it is never is the author of the narrative the one thing that distinguishes your case from other cases that have allowed the admission of a limited number of videos or images i think it's the key distinguishing characteristic you are but not the only one for example in this court's opinion and no the court noted that it was significant that the district court had given a cautionary instruction was an instruction given here it may not have been targeted to child pornography but the court certainly did give an instruction  that the jury had to be impartial that the jury could not be swayed by passion or bias and sympathy it did give that very right it did give that in its final instructions before the jury but there was one juror who admitted that he felt uncomfortable everybody feels uncomfortable watching these images or even hearing narratives about them that cannot be the test for a juror who also said but i can be impartial i'm not going to like it but i can set that aside and we haven't made a specific implicit bias argument regarding the juror what we're saying is that within the overall panoply of factors here that is something the court should consider but most importantly as your honor st noted it was the the detailed narrative stipulation lation that mr walsh was willing to allow the government to give that detailed factual narrative regarding what occurred in the images and videos that itself if the court had accepted this give descriptions approach what would have happened with the file names so i understand that the discussion was could we describe what it looks like on the video instead of showing the video but what about the filenames that was there discussion about whether the jury would see like what the files looked like on the outside of them and their names i don't think there was a specific just discussion or regarding whether screenshots of the phone names would be shown but the testifying agent did read several instances of the file names in the record and you know without repeating them in open court i don't think they leave much to the imagination recording what was depicted in  and what if we disagree about that i mean it seems like some of the names only are so informative if you understand what these abbreviations mean which i'm not sure everyone would so i so i'm trying to figure out whether like was this description that  be given instead of showing the files going to include some description of the names or was the name issue going to be handled a different way well the it's not certain your honor because the government was unwilling gave his opinion under rule seven or one regarding what those meant within the context of his general knowledge his experience in this investigation so the jury definitely had context as to what those filed titles men and you think that would have happened even if the stipulation had been pursued that's correct your honor i think that the way the government conducted its trial would not have been affected in the slightest but for not being able to publish the images and videos to the jury that's the only part of the government's case that would have changed but because those images and videos are so emotionally toxic it overwhelms everything else that the government but that's my god i have two questions about early on or st question is in your reply brief you appear to argue that the stipulation included a stipulation that no person including your client could have seen any of the contents without realizing that they were child pornography where will we find that in the record other than in your involving a brief statement that mark the trial attorney made he said we are willing to stipulate and allow their expert to basically read into record descriptions and descriptions are vile enough i don't think they need to see the photos and so on and so i did this so on and so forth say and we stipulate that no reasonable person including the defendant could have seen any of these without realizing that they were child pornography he didn't so stipulate your honor but that matter but here you know unlike goodnow which was a mistaken download case in which the defendant claimed he had had downloaded legal pornography my client claimed that he never saw any of these images any of these vit whatsoever i understand but the government's theory i mean your client's theory was it must have been somebody else the nasty stepson or his somewhat perverted friends that's correct who i gave the password to but had no idea what they were doing and even though i extensively used the computer myself i never saw any of this stuff and the government's theory as i understand it was yeah you use this computer so extensively and so exclusively that  yours and therefore the jury could draw the inference from the evidence that your client saw the images and i guess my question to you is without the stipulation that anybody who saw any of the images would immediately realize what they involved without stipulating that your client would have been in that category it would have been the c p lation was properly rejected within the discretion of the court given the limiting steps the court otherwise  circumstantially refer to knowledge you know are the crux of argument of course is that the evidence that the district judge ultimately allowed the jury to consider just so overwhelmingly emotionally overwhelming that they couldn't properly sit back and make that this passionate analysis doesn't matter because the government is fairly referred to these not only were they very short and limited but the government after that barely referred to them doesn't that make a difference in terms of the cabin ing the toxic effect i know that your honor but i also know that it's it goes to show that despite the government's proffer during the motion hearing that it intended for these images and videos to go to my client's knowledge it didn't anyway make that argument during the opening statement or in the closing arguments so it only used as evidence to demonstrate the statutorily acquired element  of sexually explicit content valving minors so so if anything i think your honor it cuts the other way they didn't they didn't try to mostly inflame the jury during the opening statement in closing arguments but also didn't tie it into knowledge i'd be a little bit troubled by the fact that if they had been more fulsome in their references during argument or in other witness questioning about the content and its nature that you would have been challenging that as a our you know it is a fine line but it also goes to show that the government engaged in evidence or overkill it simply didn't need to because of the circumstantial case it was presenting it didn't need to present these emotionally toxic images of it is to the jury so this is different from old chief in my my view i think because in old chief the issue was other crimes and other crimes are the type of thing that you might punish the defendant for whether or not they did the current crime but here your defense was it wasn't me so i don't understand how seeing a really inflammatory videos would make it more likely to convict your defendant because of the jury believed it was someone else then they just get mad at that other person and it's not  where it is the crime of this person one way or the other but i would refer your honor to this court's opinion marino valderrama which posted it all chief applied all chief and determined that it was not appropriate under all she said there it was undisputed that the person had not seen the whether there's just no relevance at all to showing the videos because no one had seen and they did show the covers because the theory was that it had said you had seen them in fact but it was undisputed that he was not the one who understood what they contain to either them with the the there wasn't a there wasn't a written narrative stipulated to it was it was simply a wrote stipulation regarding the content and b there was there actually was a cautionary instruction given and this court determined that it was insufficient under the circumstances  i understand your your honour's points about some of those distinguishing characteristics but the overall import i would draw from valderrama is that when you have emotionally charged emotionally overwrought material of this sort the cents i do not read that stipulation and i don't think the argument was advanced until the reply brief that that stipulation actually included a narrative description of the child pornography and so  essentially the defense counsel is just saying that that's an option available to the government it can read these descriptions at trial but of course that has no evidentiary force in and of itself that's not the same as a stipulation and so i think here we're in the exact same situation that we were in going no which is you have at best a stipulation that anyone who saw this material would know that it was child pornography and then you link that to the your argument that it was shown beyond a reasonable doubt that he was the guy who did the access and who ordered it downloaded it viewed it and they did available for sharing that's right yes and that was going through independent evidence and i tell me what that link is where in the record will i find that link showing that he was the one who viewed it that showing the actual video excerpts in images look at it is they were helped the link that he was in fact the one who did it oh i see sure so i think there are two reasons one is the kind of general reason that many of the cases other than going to focus on which is that showing the material itself simply makes it more likely that the defendant knew about that material because this is not the sort of stuff that just surreptitiously or coincidentally a peters on your computer the nd is the more targeted reason identified and you know which is that when you have i have material that has explicit titles and that has ambiguous titles but it's all categorized and filed in the very same folder showing both sets of material help show that the defendant actually viewed it because he knew to put it in the same folder but it doesn't show that it was him as opposed to his son or stepson here i think it at least help show that because the material was all placed in a folder on the external hard drive that had the names of  walsh's wife his children so if this is a folder that's specific to him and he knew to take the ambiguously titled files and put those in that same training folder alongside the explicitly titled files and so showing those clips then there were ambiguously title clips that were shown that help show that all of those files were viewed and the forensic evidence showed that he had access to those files on various occasions yes there was evidence i believe it begins at page four hundred and fifty five dollars of the record if i have that right for forty five dollars that these files were in fact viewed showed that wally's by his password well yeah that's right his log in was used to access the computer is emails were accessed from the computer his facebook was accessed from the computer turbo tax that was linked to his email was downloaded turbo tax than he said he downloaded turbo tax but his son did the taxes and then he said actually i did the taxes so it was sort of evolving story but suffice it to say given all of that use of e mail and social media  e pervasive downloads of child pornography simply couldn't have been explained by an incidental use here or there of a son or a neighbor because keep in mind the spanned four months three hundred and seventy five downloads fifty five uses of lime wire six thousand five hundred and sixty one uses of bit torrent and so i think at best the defense was well a neighbor or my son or my son's friend could have had access to the computer here or there that simply would not account for that pervasive use of the computer and so i think and this is sort of shifted into what would be a harmless error argument but that's right and so i think this was tied to walsh's use and therefore putting the information in was helpful to show not only the contents but his knowledge but even if this court were to find error given that overwhelming evidence that he was the only one using the computer and that you had this pervasive use in here would be harmless do you think the soula decision in the th circuit goes too far like here could the judge have within his or her discretion accepted this offer of and description so if there were actually an offer to stipulate to the descriptions as opposed to just saying essentially i want to object if you put them in it's possible the court would have discretion and again this court has said that  the discretion to admit or deny evidence under four o three is extremely broad so it's possible that it wouldn't have been an abuse of discretion to keep out the evidence there is no case law  facts here so i don't know that the court really needs to reach that why does your brief contain discussion of unrelated acts like cameras in bathrooms and things that seem completely irrelevant here so i think it's  because it shows just how broad the universe of material was that the government could have sought to admit and i think that underscores how narrow the subset of the information that actually got in was because we had about a minute and sixteen seconds worth of material that came in and five images and you think any of that cameras in bathrooms plausibly could have been admitted at this trial the district court said that much of that information would not have been admissible there could have been some purposes certain impeachment purposes or others where it may have come in a narrow circumstances basically the district court same to a trial lawyer from air i don't think the government ultimately sought to admit any of that was something that was considered it never ultimately sought to admit any of it was in your brief that's correct and again i place that there simply to underscore this is really a narrow subset of the total universe of evidence that was available it wasn't admissible evidence so it seems really kind of wasting our time and everyone's time for you to have had it in your brief to ask well sir and again i want to emphasize that the court did say some of this information would have been admissible for a limited purposes and it wasn't an distinction it's that it was undisputed that the defendant didn't see that evidence the nd is that it was an early tailored subset it was over two and it's in the final is that it was in for size at trial in the closing over ten times  none of those factors are present here so i think lee i simply don't think marino battled romack gets us very far now the final point i'll make there was one other distinction between this case and again no that was offered which is that that was a mistake download case whereas this is the argument here is that the evidence was just never seen by the defendant he wasn't the one who did it that's actually not the correct characterization of god no and you know the defendant put on three witnesses to try and prove that someone else was the one using the computer and the defendant never actually used the computer it turned out that that person that they were saying use the computer was fictitious but that was the defense so the defense there was the same as the defense here now there were some suggestions that if the defendant had seen the titles he might not have recognized that they were child pornography but the primary defense was the same and of course here i think you also had that those undertones of that same secondary defense because of course walsh admitted that he downloaded bittorrent he downloaded lime wire he downloaded a movie on line wire and the evidence showed that that movie was watched on the bielski media player so in other words he would have had to have been using the same software that had all the titles of those files on them so it helped the government to show that those titles were in fact explicit material just the way that it helped  some sixty three tests is whether in the evans likely create an emotional impact the river influence the verdict and therefore significantly reduce any possibility that the jury would have put the defendant so now that standing the circumstantial evidence that the government points to our position is that the nature of these images and videos was such that any jury not having seen anything remotely like this would have been emotionally overwhelmed  as mark carlos the trial counsel my client noted during his closing argument the jury had teared up during the publication of these images and videos and the district court posed verdict offered free psychological counseling services to the jury so charged should not have been shown to the jury in marino valderrama would be the one that we would initially say to your honor we also think that when you look do a careful analysis of can know many of the factors that can no