me please the court counsel burke one on the attorney for appellate ms luke she was convicted of two counts of felony level hipaa violations and that's transmission of information with a specific intent the specific intent had to be either for her personal gain or to perpetrate malicious harm on the patient there's two issues in this case one whether or not at trial there was evidence admitted against her that was irrelevant under for a one for three in particular we're talking about a very violent visceral video of her codefendant forcibly sodomized another individual with a hot curling iron and yelling and read is that and we've seen we've seen the video  it's singularly disturbing yes that is you really making a four three argument or you know that's correct it's a four three argument and then the second argument is whether or not that required severance which is the pin whether or not the evidence was admissible well let me ask you about the severance question i think is how i read your brief as the judge in your view given sufficient if you judge a given sufficient limiting instructions then the failure to sever would have been not not a role he is correct believe so your honor to think even with an appropriate limiting instruction there had to be severance here i believe so your honor in this case that would go fall into the first subsection of four or three where it's super inflammatory and the danger is if you if you were in court in trial real question is had the judge given the judge give appropriate limiting instructions because if he had then it seems to me your separate argument becomes much more difficult and so could you focus for me on why you don't think the instructions of the judge gave were sufficient certainly the court held that your image trial and found that that information was directly relevant and would have been a separate trial on these counts with ms lalo because it pertained to the sensitivity of the information that she transferred that's not an element of the crime information that she was not personally privileged to see that she didn't see she never saw these pictures it would have been relevant at the trial for the same reason the video was relevant at the trial so where is the medical records that she viewed say well he did do they do reflect that the victim was tom rush she is if you read the the government and it's brief reciting it out all of these specific texts but you can tell she's just sort of looking at the electorate this isn't the sort of clipboard that's in a patient's room at the end screen and she's going through the data and she's just reading what's on there in texting intercut if and so she didn't see any of this but let's get back to the why is the limiting instruction in this case insufficient insufficient until the court found that this evidence was directly relevant against her and then issued the same living instruction limiting instruction itself says you're not allowed to consider someone else's verdict or evidence very on their verdict against this separate individual however the court and the government argued that this is a that is was directly admissible against her and would have been a separate trial and so you can judge didn't tell the jury that you know but we can expect a lay jury to make that distinction and decide which evidence is against which defendant when the i believe the government listed other issues but i don't think they were directly pertinent to the video it's the government have the right to put on a full put on the full story background background correct but not over four of three  however in the texts exchanges between your client in the codefendant about what had happened correct and those are all contained in the taxidriver information she transmitted was in the records however the problem is part of that one of the just said it was three days later that are president's account gets replenished well if a new trial a fair trial that evidence could come in that she made a payment also the evidence would come in from the little town that he'd put money on ryan lab lose books useful source for this guy and keep the money flowing there's not evidence connecting this particular transfer of information to any payments that her husband's best bringing that would be a reasonable inference from make maybe if in a fair trial they could argue that but in this case she didn't get a fair trial because we presented all of this other evidence they argue that there is i think they could argue that there if they did they did argue that upon the page why couldn't the just even the knowledge that just reading from the record and convene information about the nature of the condition that lead him to the hospital isn't that sort of conveying malicious malicious because what the government's trying to assume is that she knew that mr sanders solid did this and that he's trying to get information so he can go question but it seems to me she gets a call from a guy she knows is involved in various activities to do records pretty clear on that misdemeanor absolute we're fighting them all right so these are specific intent element so the only the only end three days later money shows up in her husband's account whether it's paid directly for this or with that they continue to make the payments because she's cooperating really isn't relevant it's a tough case for you even without the tapes isn't i don't believe it is it's actually the burden of proof is proof beyond a reasonable doubt if you take out all the implant tory stuff all the stuff they can't show that she knew about you're basically left with her husband's in jail he's best friends with this bad guy she's sending him just that the guidelines were determined with reference to the actual sort of guideline and accessory after the fact it was still with reference to the sexual assault guideline however the court made specific findings the fact that it didn't know if she knew that he did it or not and  them the record though that he could make that finding i don't think these texts themselves he says he didn't do it and you have to assume that she knew he was lying he was lying was plenty of evidence at the trial that he was lying but no evidence that she made clear in terms of remedy let's assume that we agree with you that the judge the judge didn't make the appropriate finding if we think there was enough evidence from which a finder of fact might have made that finding should we send it back for research and seeing him say to the judge you have to make this finding based on c gain and i want to go right to the heart of the matter that your honour's are interested in is this ninety second video that was played once store in trial relevant to those charges and the government's argument is that it was in fact a district court found it was and here is why the government's theory of malicious harm was that ms loudly provided the sensitive confidential information to the assailant of the crime so that he could possibly do further harm to the victims so the government's theory was that he did it and she knew he did it so somewhat so what what is that nobody contests in this case least nobody you don't conten that she knew the details of the crime the only evidence of the details of the crime come in the text and from her looking at the at the medical records correct yes but in looking at those she knew the details of what's ok so what my question is why what does it what factors it make more like with and not with respect to this defendant we know she we know she gave up the information no contested it was sensitive we know that she received a payment for we know what you said at the time she had no idea of the specific details of the crime there's no evidence that she did other than what she heard in the text and saw in her records why is it relevant against her to show this tape of the victim being sodomized for malicious heart we have to prove it again i fear it was he did it and she knew about it so he did it was an intermediate fact of relevancy into her knowing about it for example if he didn't do that and i'm gonna dr an example from the second victim which we haven't talked about which the issue of malicious harmless was modeled there because in that case we didn't have a video of mr savva solid committing the crime doing the shooting and at trial what happened was the person who said he did the shooting was heavily impeached which models the issue of malicious harm if he didn't do it then she really didn't have any reason to believe he did do it or certainly counsel can make that argument that therefore there's no bullishness harm on her part because she is not giving the information to the perpetrator of this crime in this case the victim here yes he would have testified at a separate trial or at this trial of coping with them but that gets back to the point that we started with in this case which is that this is pretty prejudicial evidence whether it's unduly prejudicial so separate issue in the absence of of us you could that's why we sever sometimes it's also why a judge says now you're going to see something pretty awful here it's not relevant at all to whether or not she committed the crime it's relevant to whether he committed the crime judge didn't really say that the judge just said some evidence will be admissible against some defendants are there's a good so there's a new you sorted out jury  that sufficient protection in a case like this i believe it was because the judge properly found a deal wasn't ok let's assume we disagree with you on that i guess is my where i'm starting from let's assume that the video simply isn't relevant to prove the hipaa violations did the judge sufficiently protect against prejudice from that with the instruction i think the judge gave a separate consideration instruction which the jury is presumed to have followed but how would the jury know that they shouldn't consider it against her i think that was overlooked is the words themselves of the video again they mirror the text that ms loudly received this is a woman who was receiving drug proceeds from the organization now the words on the video basically you hear mr go outside and say you know this is what happens when you don't pay words to that effect i'm obviously not quoting the video and what do you hear in the text that matches up almost exactly which latter aswell you're not that heartless though and he explains himself he's all the things necessary to convict her of a crime i'm not i'm not worried about that when i'm worried about is whether or not this other evidence prejudice who's their ability to defend against that i don't believe it does just for the reasons of  instruction i believe it was relevant i believe as the judge probably found even at a separate trial and it would be relevant to show the nature of the injury sustained now again you have to keep in mind this victim was certainly no choirboy he was someone who was impeached on the stand and the best per if of this happening was the video itself he couldn't contest the fact that mr sex all committed this crime whereas the other victim you know there was certainly impeachment issues and that was a necessary element in the evidence and a matter properly provable in the case in that relation a fact to be proved may be ultimate intermediate or ever entry it matters not so long as it is of consequence to determination of the action here this is an intermediate fact that's of consequence to the action i think the judge properly made a four three ruling if there were separate trial without this video or without the in with or with even without the audio part of it could be relatively confident that you'd be convicted again i believe so i believe there were the arrogance of the personal gain aspect of it again that dovetail with the evidence of the conspiracy and certainly evidence some evidence of the fact that there was that she knew exactly on both we argued both theories the jury with the structure of theory exactly could i ask you to address the sentencing issue yes and let me tell you what concerns me about it is i understand it the judge would have to find i think by clear and convincing evidence that th e was an accessory after the fact here and the judge says something like well i don't know exactly what you do i'm not and in order to be an accessory after the fact you have to know the crime was  committed i think there's probably have evidence for him to find that but he didn't say that should we remain for the judge to to make a determination on that issue no judge and the reason for that is i don't think he had to find it ms lott will herself was accessory after the fact what he had to find that her information was provided in furtherance of the crime of being an accessory after the fact whether it's hers or mr separate selling certainly found that mr selby salo was at the very least an the question is the nature of the judge's finding out that not the sufficiency of the evidence is that is the judge's finding there that i'm not sure quite sure exactly what you knew on rephrasing it doesn't that mean that he didn't find it all that he was an accessory after the fact he found by clear crime yes or no he called her up to try to cover it up my question is what's the and i think there's enough evidence here that a judge could conclude that she was an accessory after the fact what i'm struggling with is the judge's statement and will i won't he found that she was an accessory after the fact to this raid of which mr segues hollow certainly a part of so even if it wasn't his it certainly was an accessory after the fact to the rape of the victim so from your perspective it's enough that she knew that the victim was raped she doesn't need to know the rest of the details she knew that the victim was raped and that center salad was somehow part of that at the time she conveyed the information confidential yes nation ok thank you thank you give you a she knew the victim was raped but from the records yet but it's irrelevant to anything against her and certainly the video is not admissible of the court make findings after a trial that it still couldn't tell from the evidence in the record whether she knew or not how could a jury h you know i think i might harmless error which seems to be what some of these questions are about and whether the jury is sure to convict her on the rest of the evidence if we're conflating separate several points there ok well let's go back to what's what  if you just go back to the sentencing for a moment and focus on judge her with this question the government says look the evidence is overwhelming and i think it is that she knew that a rape that occurred and and then in she the evidence is also overwhelming that you knew that this information was being conveyed to somebody to find out whether or not the victim had identified his assailant understood ok no contest any of those points it's kind of unclear from the uncertain who the perpetrator was absolutely not because she has to render materially to someone or to be an accessory after the fact and someone asking questions curious about what's going on it's a pretty strong finish rinse that she knew and she can the information if she's reading it out and texting it she knew that he was raped there's not clearing commits there's no evidence that she knew he'd committed it in fact you'd have to know what i'm saying let's assume that we don't know that mr ashcombe it we just know that it was committed mr x is calling up and saying the victim owed some money and i had an interest in that is that enough to establish especially after the fact even if it's possible that the actual assailant was a different person no because anybody