it please the court i'm here today on behalf of jason's trooper and in my time with you i'd like to focus on two of the four issues that i raised in the brief pacifically the failure to give the entrapment instruction which was round one and the imposition of unduly restrictive supervised release conditions which is around or i'm not waiving the additional instruction argument in ground two or this efficiency issue and ground three but i will rest on the brief unless the court has specific questions about that turning to the entrapment issue mr stripper was caught in a sting operation and while sting operations may be useful to identify actual sexual predators the danger is that the curious but innocent person may be lured into that net and the entrapment defense and the entrapment instruction protects against of that situation but to war entrapment instruction mr shoop strober simply had to show that there was some evidence that he was induced to commit the crime by government agents and some evidence that he was not otherwise predisposed to commit obviously you don't need to prove that you were entrapped in order to get the instruction and if that were the standard then you would need an instruction because you get a judgement a little and i mention that in part because at the trial the government cited to the court the case of united states versus the on in support of its contention that the instruction wasn't warranted dione is not an instruction case it's a case about whether there was sufficient evidence to show it but courts said well i've looked at the dionne case and i don't think i have to give an instruction that really wasn't the issue in the however at this point the government says well without citing the case well the court got it right anyway and in denying the instruction and obviously we we disagree well wasn't there a fair amount of propensity evidence in this case given how quickly he jumped at this so called opportunity and knowledge juror suggested that he had been involved in training minors and sexual activity before but isn't that enough propensity there that the entrapment really isn't a valid defense in this case i want to say two things about that first of all as as the government's case which i think is probably our mean assuming for the moment that there is inducement starts it's before and as i think one of the court said that's what it's called predisposition so the fact that he enters into this conversation i don't think is necessarily relevant the other thing about he did say during the during the interchange that he'd done this before he also testified in court and suggested that he has you know some learning disabilities and some emotional problems and he denied in his sworn testimony that in fact he ever had had any and the contact with minors now i'm not saying that the jury was bound to believe that but there was certainly evidence before the jury that he wasn't predisposed and had never done this  about the internet search that he performed on the way to the arranged rendezvous would that alone justify the refusal to give the the instruction the internet search where he says he discovered that it was it was not legal for him to know the internet search on the way to the rendezvous where he was looking for other young minors to engage in sexual activity with i guess know we just obviously we we remember the record differently i don't think there was any then there was any evidence that he was looking for it he ran it he did run a search that that certainly i think the search was called very young fuck if i'm not to be too but he just providing an opportunity to break the law is not inducement right that's right so what what is in this record in terms of what the  undercover agent did that would allow a reasonable jury to conclude that this could possibly be inducement what's your best evidence to support that well i think partly you know first of all  the agent most of the ad isn't that just the opportunity though sure i think i think what the standard is is opportunity plus so so if you want to talk about your plus say i do want to get to the opportunity so that's the opportunity i think that i think the plus here is first of all the government agent was the first person to mention sexual activity is that when you're saying birds are you calling birds and bees sexual activity i am i mean i think i think that i think the agent acknowledged that that was what he  meant and and that was certainly how it was taken so i think that's that's part of it and then and then you know went on to say well you know i want someone to train my daughter like my mother trained me and i think you know pretty strongly encourage the continuation of that conversation and so yeah i do think that there is opportunity for us in what the agent did and didn't just sit back and say well i'll wait for mr stroup or suggest everything they were they went back and forth about what you do what and mr stewart said you know i i really don't want to do anything you don't agree with and the mother said well yeah i'll agree with with what you want to do so i do think that there was opportunity plus and that that is enough to get us past the the evidence of inducement now you know as as i've said before you know it that might not have persuaded the jury that there was a newsman but i think that was enough evidence to get him the instruction and  guess the other things that i wanted to say about the lack of predisposition is again turning to what mr burke testified he said you know that when he went to the scene he did not have the intent to  engage in any sexual activity with a minor he just wanted to meet meet the mother and again you know that's a that's a credibility question for the jury but it's also some evidence before the jury that he was not only not predisposed to do this he wasn't even disposed to do it at that point and he did explain his his statements in his in his exchange with the officer about prior activity and denied them the government offered and so i mean i think this is this is i would like to contrast for a minute the case that the government sites which is the united states versus young governments brief and in my reply brief i mean that's really dramatically different that's a case where the defendant reaches out to a decoys spends a good while grooming the supposed minor for it set up and you know a meeting and in this case of course mr strawberry had no contact with the fake daughter you only had contact with the fake mother so it's not like he's interacting with some with a minor mr young reserved a room with a hotel when he gets there he sort of hoots and hollers and cheers and there was evidence of other internet chant chats where he tried to pick up minors so i don't have any quarrel with the court saying that young didn't get an entrapment instruction but i really don't think that's mistress troopergate he was he was drawn into this i think you know pretty innocently by the officer and made some grandiose statements but i don't think there's any evidence that that would have happened but for the for the inducement so it's it's we think that he was entitle to his are problematic and they have to do with computers and contact with minors they weren't objected to i keep telling my friends of the drug or thought object of these but i think they're i think in this case there's plain air there was no explanation at all from the district no individual explanation from the district court for these conditions the closest anyone can come is the judge said i sat through the trial and i reviewed the pre sentence report but all the pre sentence report said was the following special conditions may be appropriate in this case he didn't say the judge this is why we think these conditions are appropriate in mr strew birds and i think the case was pretty clear there have to be individualized i'm dings for this kind of special mission in support of plain error on that issue and supported conditions i filed a twenty eight j letter last night and cited the actually if i can make a suggestion to you i don't know when these cases came out but the twenty day was delivered us about twenty minutes before if you want us to be prepared it would be helpful for we had a few days at a time on my work i will do my best from now on and i thank you at that kind of i have to confess i sent them when i found them and i thought that was better than later but i will i will describe for us to be prepared to work and i know that the government has the opportunity to respond to but i did want to bring them to it anyway the one that has to do with this is united states versus hale and that's all i'm going to say in terms of the computer issue the  troubridge used his cell phone that's the only thing he use the officers didn't even see is his computers and and yet he has a condition that says he can't possess any computer with access to any online computer service which is pretty much all computers these days and see if that nowadays a phone and pretty much a miniature computer you can do pretty much anything from your phone or many people can and that they could do from their computer than just kind of a miniature version of well and you know that in light of his lack of record i just don't think there's anything supporting that and and i mean i don't i mean maybe everybody else only uses their phones i do a lot with my computer and i think most people in this really restricts that also requires him to pay for monitoring software and i just don't think those are are supported by any evidence in this case that would would would make that the operation of liberty proper the the other and that might my second case in that in the twenty a j letters leave it it has to do with that the other set of improper conditions concerns his residence and activities it says he can't have any contact with minors under eighteen without supervision of an adult approved by the probation officer who knows his conviction and he can't live within a thousand feet of schools parks playgrounds public schools or other locations frequented by children and he's barred from places where minors congregate well a couple of problems with that one is that it's pretty vague i mean how does he want to go to wal mart because there are a lot of kids there and i'm sorry to interrupt that's one of my questions i know that you've got i understand one of your arguments to be that there's not been an individualized determination as to whether these particular conditions are appropriate for your client is there also a vagueness argument here or is that just sort of wrapped up in the can in the connection i think there's both and to the extent that i didn't clearly make the vagueness argument i want  it i'd like it considered because you know how are you supposed to know what gives me sort of at the end of a cold here are you supposed to know what a place where children congregate means now i mean mr strober is going to be required by missouri law not to live within a thousand feet of a school or a childcare facility and obviously we don't object to that but this is much broader than that and it's doesn't give the probation officer any any guidance as to what places he might be t but my experience is it is certainly isn't unique to this case and mr mr miller may may know better than i the answer to that but i don't i mean these are these are kind of you know they're kind of plugin some of them even said some of the conditions even said you rather to please the court more than your honour's my name is larry miller i'm here hearing on behalf united states feel i was also a trial counsel in the matter below and i would like to address as you know there's four issues on the appeal and in this carlisle addressed the issue about the court's denial of the request for the entrapment instruction in the supervised release and i will respond to those as the court is aware the issue of entrapment is simply whether or not the government there was evidence of the government in stroup to commit the crime and if so even if that was the case which we argue it really was not whether or not the government showed was the disposed but if it's and your honour's as you i think is judge kelly mentioned inducement as more than just the opportunity commit the crime and in this particular case i think it is very clear that there was no inducement under that legal definition of by the government the undercover officer to use this trooper to commit this crime it started as you're well aware in the facts with the single ad by the undercover single mom needs help from discreet man to help teach daughter no games for am and there's no mention of specific sex at this point except there's an immediate response from mr struve big send number tails and then his response was what you want to teacher and that at that point the undercover answer discipline respect and birds and the stuff from there within an hour mr s stated that he wants to meet the mother and the daughter for them to dress as instructed to take mom take them to the mom's bedroom use a belt on the fourteen year old and have sex with the fourteen year old while the mom and despite i think witnessed for a while stated that detective responded never thought of you having sex with the daughter only talking about him and mr would do with the daughter which were specific sex act he wanted to do it quickly he wanted to do it this week the next day they talk further that he will use condoms  he again the night before he's very specific as to what he wants to do and they set it up for the next day this all happens over just quickly over a three day period they set it up to meet at a hotel he suggest a hotel he suggests the meeting and he actually goes of course to the hotel i know you're quite aware well aware of the fact that it's very interesting to know that prior to this he was specific about saying i've trained girls before he commented about she was young i've trained girls before with or without that and then of course on the day of the event in which he's arrested he goes to the convenience store he's surveilled buying condoms he's also wearing a red shirt and he was told by the undercover acting as a fourteen year old that red was the her favorite color and top that off on the way and doing a search on his phone and judge chris may be referring to this but he does also put in a search for a very very young or at the time which clearly again shows that he was not induced to commit this crime activity mother says she's fourteen what about those initial statements maybe it's not a lot but is it enough to get to a jury to determine let the jury decide clearly have a government agent right right and he's that particular statement is he explained he did not state any specific sexual activity by this and his description was about talking to her about the birds and the bees and that's where it left and after that he never ever the undercover suggested what they would do when they would do it how they would meet as a matter of fact as i mentioned and i know you're familiar with the record he specifically says when mr burke comes comes out with all these items and all these specific sexual acts that he wants to do the response from the undercover is it's not it's not hey that's great it's ok i never thought about you having sex with her only talking to her about it so he just takes it to a whole nother level so ever the only evidence that he didn't have any intent was his statement on his direct examination that he didn't tend to have sex obviously it's our position that the evidence was so overwhelming of his intent given all the things he had stated the fact that he showed up the fact that he bought condoms the fact that he's doing the search for very very young blank on his way to the hotel to meet the mother and the daughter is clear clear evidence that  his intent obviously that goes to this efficiency argument that she raises on the intent issue so for that matter i think that the evidence is just very very clear that there is no was no inducement and there clearly was her testimony and that her testimony been the jail calls about haven't you learned your lesson before she mentions other females so clearly that is is further evidence that he has obviously some involvement not saying those are minors by any means but squarely that's part of the record here but again the really telling thing are all the very explicit and it's all there there's really no issue about what was  said by anyone here it's all on tax the very specific things that he had done how he had done it before how he done it before and had done something similar and it hadn't gone well for him but he was very much in tune to meet this young lady and to have very explicit sex with her your honor has to be a supervised release issues the conditions first of all this was not as you know this was not objected to a trial so this would be reviewed for a plain air analysis both at the sentencing mr schrieber ghana's counsel or ask if they had any objections and neither of neither one of them  know is these conditions have to be reason the relevant the liberty deprivation should be reasonable no more than necessary and consistent with the sentencing guidelines are sensing standards and i know there's an individual assessment but judge why i'm said that you know he was there for the trial and i'm quoting here and you try to entice a minor so i know that wasn't a long explanation but i think that was clearly very sustained very telling as to his concern about mr struve berger and then as far as the conditions that were sat i think that there they are appropriate i do apologize because on the letter that she submitted i have not seen that i didn't check the filing this morning so i should have checked that so i don't know about the twenty eight day ladder so i know you can respond to a few i really appreciate it i will absolutely look at that and that's why i would like to have you address special condition if you could and tell me whether or not you can not distinguish this case from the special condition that was unless unless written sin is granted by the probation that correct well i think on bender that it's my understanding on that one that the district court not only failed to make individualized findings which i think in this case given the fact that what judge would wind stated about the fact that he tried to have sex with a fourteen year old and this would be anybody under eighteen clearly would address that but i think that in that case i think the court if i recall on bender is that they consider the defendant part of a class of defendant versus as an individual and i think that judge winds again i know it was a short statement but the fact that he specifically said you tried to have sex with a fourteen year old fourteen year old took that out of that i think that makes it more personal and specific to mr stroup or as opposed to bender what about the condition that uses the word congregate it's one thing to identify particular places schools playgrounds that are identified daycare centers it's another to say congregate how is that individual supposed to appreciate where children might be congregating and frankly what's a congregation of of children  and i appreciate your question because i know you're i think you would you touch base on the vagueness issue with that or the vagueness concern with that and i think that  i think that that i do think that that term and i haven't looked at every supervised release condition that's been issued in our district in a similar case but i think that that is a term that has been used and i'm not aware of that coming up before but i think that it's that common sense term congregate meaning the typical traditional places like schools that that sort of nature obviously you could have people congregate at a party at a house and i understand that but i think that that's what the focus is of that in terms of the traditional places where the young people of that age might assume you know if we're having to have a conversation about this were it is is it is it too troubling to expect an individual to know how to abide by that particular condition your own i don't think that based upon the comments without defining congregate i think that based upon the traditional common knowledge of work children would congregate i don't i don't i think that that's a sufficient description could it be better i'm sure we could argue you know it could be better but i  don't think it's so vague that oh my gosh where would this be i think it's pretty much tradition or stood that it would be areas of schools and other meeting places churches whatever that might have them congregate you know of a basketball game a sporting event and you know things like that where you'd have you know for young people where that would would be the issues so i appreciate your question and again it could be better to find i certainly we could we could argue that but i think it's sufficient given additional ok well first of all i found the search we were talking about it's on it's in volume two page one fifty five it is if you look at its u r l it is a search for for videos so i think there is nothing  the record to suggest that he had visited a site that would allow him to look for other miners so i did want to i did want to clarify that wouldn't it though show his predisposition to have interest in sexual activities with minors well maybe but interest in sexual activities with minors is one thing and the predisposition to seek them out is really quite another and he's accused here of not not of be looking at at pornography i think there's person pretty good case law of the just because you look at pornography doesn't mean that that means that you're that you know that's not the same thing as as said as doing what's what suggested here and i say one more thing very quickly ok i just don't think you tried to entice a minor is an individual i was finding that was what he was charged with and it doesn't say anything very specific about him so that's my other argument about surprised release thank you very well was carlisle accord appreciate your accepting the appointment and we appreciate both counsel's arguments today the case is submitted and will be decided in due course