i've presented six issues in my blue brief which i recognize as a lot and i imagine your honour's might have some ideas as to where i should go so i'm certainly happy to take your lead in the absence of that i'd like to start with what i think are the easiest issues and then move on to some of the more difficult ones the first one is the issue of the counterfeit obligations there was insufficient evidence to prove that my client government going to makes its argument that he was working to perfect his craft to get it a little bit better in terms of the successfulness of fake money and that in the context of the case  sending fake money overseas to someone might be more successful with a person not as familiar with american currency it's not an element of the law that you're working to perfect your currency the cur was obviously fake as for the money transfers there's a record that he actually did some real money these are western union transfers he's not going to send fake cash through the mail so i don't think the government there is going lend it much success the government uses the armstrong case and its support but in that case the defendants actually passed counterfeit currency and they with real currency that's a counterfeit obligation case all we have here is somebody printed up some fake money and put it in a cabinet in his basement and let it sit there dusty and thats it as far as the attempted exploitation of a child the attempt to travel to the philippines there was simply no act all bernhardt did was talk a good game and while it's repulsive and unsavory and we don't like it there was no act whatsoever much less substantial step there was simply no attempted exploitation the government there cites various cases spurlock youngling patton but in all of those cases the defendant actually traveled to the location where he thought the minor would be and it was at that location that he was arrested clearly those cases reflect attempted exploitation of children not here when he talks about going to a hotel in the philippines and that's it  the next issue is the and this is probably the most difficult this would be the most difficult for me to win but i think i think it's important his six hundred month sentence was entirely unreasonable the core of this indictment is seven images that bernhardt received and again well this is bad conduct it's unsavory it's disgusting we want to discourage it  throughout this court's case law you've got individuals who possessed many more images individuals who physically abused children and they received much lower sentences this is a life sentence this is to life he was sentenced to six hundred months but it's all the same it was an reasonable i'd like to turn now to this issue of corrupt persuasion when it comes to witness  tampering under the statute there was no other prong of witness tampering that bernhardt could have been convicted of except for this corrupt persuasion there is a circuit split which i believe the government acknowledged i think there's also an interest or could split this court's cases in jackson and thompson seem a little different on the one hand you've got the pharaoh case from the third circuit which every other court definition of group persuasion seems to take from and then of course you've got the supreme court's opinion in arthur anderson both of those cases hold that corrupt persuasion means something more than persuasion to hinder communication to law enforcement or even persuasion to withhold to withholding documents was the jury instruction objected to it was not your honor so we're looking at clear  plainer plain or yes your honor there are two bases for my for my argument here one is the jury instructions were incorrect but one is there was insufficient evidence to prove witness tampering because there was simply according to the definition of crupper suasion that i would like this court to formally adopt if it hasn't done so already there was insufficient evidence to find that bernhardt corrupt persuaded or tried to corruptly persuade the mom in the philippines did me basically telling warner that the police were searching in not to cooperate and under the fair and more importantly under the arthur andersen analysis that's not corrupt persuasion you can ask somebody not to cooperate with police i think when there is coercion involved when you're asking somebody to violate a legal duty hardware where the court the supreme court held that if you go into any of those white owned businesses will crack skulls was seen as mere rhetoric i would turn the court's attention to the recent supreme court case alone us versus united states in which the defendant posted violent rap lyrics online that he created and the supreme court held that they weren't actually true threats because he didn't mean it even though on the surface it sounded like true threats that's what we have here it's one line in a text you don't know me in the context of him essentially telling the mom don't say anything you know i would add a couple things to adopt that view on the other hand of course we have the shots and thompson cases where persuasion is defined as persuasion that is motivated by an improper purpose i think this court has h flirted with that definition if it hasn't actually adopted if it has i would ask that it revisit its decision motivated by an improper purpose is as ambiguous as the term persuasion itself and of course with the arthur andersen case the supreme court probably superseded this motivated by an improper purpose standard holding that more than just asking somebody not to talk to police or even as in the arthur andersen case telling people to destroy documents even with the knowledge that there's a government investigation going on when arthur andersen started to destroy those documents they knew that the securities and exchange commission was fishing for violations regarding and on same situation here i'd move on if i could to the question whether charging bernhardt with two counts of witness tampering is multiplicity each of the sets of texts that constitute the factual basis for the witness tampering occurred very close in time it seemed to me looking at the evidence that they occurred within about twenty three minutes of each other the government says it's seven or eight hours that that might have something to do with the time change between here in the philippines it's a little unclear i suppose but even with the time difference of seven or eight hours the primary thing that this court looks to is the congressional intent to determine what congress thought the unit of prosecution should be what we have here is one person telling another in virtually identical language in a very short period of time to not talk to police both of the requests are identical these are not two separate crimes this is one crime that spanned at most seven or eight hours beyond that this court looks to whether two different sets of facts constitute a different transaction and whether the two sets of facts constitute a distinct imp e it seems to me obvious that there's one impulse here please don't talk to the police there's only one transaction mom please don't talk to the police based on that i think that the both of the charges tried together charge together and convicted together constitute a multiplicity so i would ask this court to reverse at least one of those moving on to the jury instructions we have the problem with the jury instruction attempt attempted exploitation and then we had the problem with the jury instruction on corrupt persuasion as it relates to the tampering charges as far as attempt goes the instruction was fine as far as it said a substantial step is necessary but not necessarily the last act but what it didn't mention is that this court has held that an act and not talk is necessary  were there was not an objection so it absolutely would be plain error but it seems to me that leaving out these incredibly important and relevant to this case instruction would have been plain there on the court's part the court should have caught it whether the trial attorney did or not obviously that attorney did and the court should have caught this this glaring error especially in a case like this  where the the conduct underlying these supposed attempt was just talk and there was no act and then of course the jury instruction krupp persuasion the instruction was to persuade with consciousness of wrongdoing that language comes directly from arthur andersen and feral as i've already mentioned i think those two cases suggest a much more narrow and i would say defendant friendly instruction i have about two and a half minutes left what they got worse they got evidence that there was approximately thirty five thousand counterfeit twenty's and fifty dollar bills that's a large stack of fake money indeed more so than one would have if they were just horsing around in trying to make fake money to  play poker or any other kind of games they also got information in getting that some of the bills used different serial numbers again it was a little step beyond just somebody who was working out horsing around making fake money for some sort of with that same witness also indicated that it appeared to him in his experience that this individual whoever made this money was in a production line trying to perfect the product now i know mr  could have been passed or attempted to be passed in a in a manner to fraud so the jury definitely had sufficient evidence to look at and determining what the intent of mr bernard was with the possessing this particular money was ever going to the philippines that's a question that's math and i will tell you what the what the jury got to hear throughout the trial from the witnesses they got to hear that these communications these weren't just talk these communications by mr barnard to groom will be in a in an effort to sexually exploit her via the internet to get these images but also then to reward her with money money that she needed because she was a very poor child living in a in a slum in the philippines there was a grooming aspect to secondly they got to see that he grew her into this ideal of him traveling to know who he communicated with they were told he was in a come there and he was going to spend some time with her and that when he got there there was go be game sex games in a hotel and that he was going to spend a week with her and that he was going to spend that week with her in a in an environment where anything goes he promised her twenty five thousand p roughly four hundred eighty dollars in united states currency to spend that one week so there's this negotiation and this reward that he says he's presenting to this child misses and where's the proof of a step of actually these these are all steps that you when you combine it together judgment when you look he talks about the hotel he will talk about the twenty times he grooms the mother to allow that type of conduct to occur when you look at  persuading your mother to allow exploitation is sufficient substantial step there's no difference here in that he told the mother i'm coming there to be with you but i want princess to go to the element of his purpose for the trail of what i'm talking about is the proof of the act to travel or travel in that you comes in when one of the witnesses testified that he had talked to somebody in a jail call and indicated that he had done the research he had taken a step to do the research on what it would take to travel to the  detention and trial so we look at it all together he wouldn't have made it he was getting close enough to his two weeks prior to most of the communication with the mother talking about going to the philippines and spending this time with l b in the hotel room was two weeks prior to the search warrant and this whole thing coming to a law enforcement attention when you look at all of that he has taken a substantial step of grooming the child in preparation  using clothes pins he also got to hear about in prior violence prior trial about another individual that was being groomed for victimization in the united states we did not ultimately call that forward there was no need to call or you would have also heard in appears are through p s r about some very significant conduct that he had prior convictions for in the state with some threatening menacing type of instructions that the court used in this particular case as well as us we pennington which this court specifically endorsed that corruptly persuade means to get someone to provide fossil formation well we know what he was doing with the communications and as far as the tone of those judgment be the communications were all caps when people who are very knowledgeable of the internet now know that when somebody uses all caps you're yelling at somebody that's the impression that one gets when they receive such a message so we use the harsh tone in telling jail we don't talk to anybody you don't know me and how would you go she's going to relay that to anybody by nine that she didn't know this individual which would have been a lie then he goes on to tell or you need to make sure j o b doesn't talk to anybody which is the minor victim in this particular case it's continuation of that that that witness tampering and then there's further communications about you need to go to l b s phone take it and delete any images of myself and her from that phone ok so when we talk about the multiplicity innocent you know which is issue for when we look at those particular actions that he took well i would almost an agreed with mr morrison if i would have charged two counts of witness tampering one for l b and one for g o p because there was one action one transaction we talked about don't let  will be talking about you as well but we're talking about two separate crimes we're talking about the tampering of the evidence and the witness tampering we have very different elements in fact the only element that they share together what one another is element number one elements two and three for each of those crimes are vastly different and under blocker it would be two different crimes it's no different then if you are practicing in a major crimes in any country and you have an individual that strikes somebody with a metal pipe and it you get two vastly different things that's don't talk to anybody tell me don't know me tell the jail be or make sure she isn't talking about it now go get rid of the evidence as well as far as the attempt to travel goes if i'm in a relationship with somebody halfway across the globe and i suggest to that person that i will kill them and then i researched how to kill and under the government's interpretation of the law i could be found guilty of attempted murder if i do nothing else that can't be attacked regarding the counterfeit money the government acknowledges accurately that if bernhardt had intended to intermix his fake money with real money that money could be passed so much is true that's the armstrong case but that's not what happened here there was no indication that he ever intended to intermix he never actually really did anything with the money regarding multiplicity i may be misunderstanding the government but it the government seems to be suggesting that the two different crimes were witness tampering of the mom and witness tampering of the daughter maybe that was a bit of rhetoric on the government's part but but that's that's simply not what happened here we have two different witness tampering claims both it seems directed at the mom one one takeaway here regarding multiplicity we've got the way this court approaches multiplicity with the unit of prosecution approach the distinct impulse approach and the different transaction approach beyond all that if that doesn't resolve the issue then we have the rule of lenity and if you look at eighteen u s c fifteen twelve we've got multiple different ways under subsection approaches to multiplicity ending with the rule of lenity you have to find in favor of mr bernhard when it comes to the multiplicity and all that is really all have to say and