morning your honors may please the court carolyn we again from mr davenport and from the federal defenders and sacramento as well and i am going to try to reserve two minutes for rebuttal try to keep your eye on the clock and counting down and we will try to help but thank you very much your honour's there are many issues raised in this appeal i was going to try to focus on four of them but i am happy to answer questions about any of them i was going to focus on for the limits on cross examination and the sentencing issue starting with for retta on appeal the government bears the burden of demonstrating that the waiver was knowing and intelligent and this court engages in every reasonable presumption against the waiver but doesn't that doesn't that then infringe is your client's forever right now here i understand i understand why counsel like diligent defense counsel might that because we often try to talk clients out of it but the court has made very clear that your client does have a right to defend himself and we sometimes overturn judgments where courts have been too stingy with the right so how do we how do we balance your client was warmed up one side and down the other about that but the risk he was assuming he was not a stranger to court and it was a bright kid your honor i do agree he was told by the district judge it's almost always a bad idea for someone to represent themselves you know i didn't really brief too deeply the warnings about the statutory minimum in tory the mandatory minimum and the max there was actually some vagueness and confusion about that instruction but the problem i'm focused on is understanding the nature of the charges now we we recognize defendants have a right to enter a guilty plea but it's important to us that the judge explain the nature of the charges before they do so so honoring a right does not mean allowing a person to exercise it without ensuring that it's a knowing and intelligent lever of that right and that's what i would urge the court and tell me your argument is that the warning with respect to forever has to really be the same as the warning with respect to a guilty plea in terms of here all the elements that have been charged here what must be why should if we want to honor his right to ferrata isn't it too much to ask that he also be we ensure that he understand the nature of the charges but i'm not trying to argue that it's exactly the same as guilty plea that you have to list out all of the understood well the district court at a minimum should have asked on the record of the ferretti hearing do you understand the nature of the charges that you're facing and gotten an affirmative answer before moving on judge general question the nature of the charges how could he not have understood the charges i mean the guy had prior sex offender convictions the the actions here work obvious and so clearly over the top that he couldn't have failed to appreciate the seriousness of the charges he was that he was facing i don't dispute he knew they were serious charges i do dispute that the nature of the charges was just arrested i want to read the one claim that was that it was the conspiracy claim and right there we  have had some cases in which we were concerned the conspiracy in of itself was that was sort of a difficult concept to understand and if something's back when we thought that maybe somebody didn't understand the nature of a conspiracy charge right i think in forster this court said we want to be sure that the district judge ensures the defendant has a grasp of the complexity of that charge and here even if we look at what the charges were on the day of the ferretti hearing there was no query into do you understand the grass although mr davenport had priors related to other issues he had never been in a child pornography case certainly never been in federal court you know where come up that are complicated i also would point to harris where the defendant who went pro se was able to cite the the statute he was charged with in a motion he filed pro se but this court pointed out being able to cite that statute doesn't mean you have an understanding of it and they pointed out in harris that the defendant raised some specious jurisdictional issues didn't clearly didn't really get what was presumptions against waiver moving on to shop going i am in the plain error world i think that this case this court has held in the context of both trial and on trial context in federal is not favored by this court tackling chuckling being not favored is not the same as saying that this plane error if the if the district court doesn't well this court's law i less restrictive alternatives would not have sufficed and that the district judge made a reasonable and reasoned decision to shackle here all we have is you're being shackled i don't know reasoning at all my my problems with shackling are not only that it interferes with the presumption against innocence in the eyes of the jury it also causes it also demeans the courtroom one party is chained to the floor the other is  not it also causes pain embarrassment confusion you can imagine in this case mr talbot court had to consider that had he wanted to do a sidebar to any point he would have had to ask the judge to empty the courtroom so there are there are other problems beyond visibility to the jury with shackling you know going to stand it but before your time runs i would like you to address the cross examination confrontation clause question certainly your honor thank you so here we're into novo review because mister davenport tried to ask questions about ms martin's history and the content of child pornography she had now keep in mind at the time of the offense these two people had known each other over the internet and text for two or three weeks maybe a month at the time they were both arrest miss martin had quite a bit of child pornography on her devices mr davenport had only the one video that ms martin made so certainly as to the conspiracy to produce child pornography count  most serious count here mr davenport would have wanted to cast doubt on her testimony that she made that video because of a request from him had he been able to show that that she had a long term history with child pornography that she already had other toddler child pornography images in her possession i think that would have cast doubt on that testimony and what reason if any do we have to suspect based on the record in front of us that the answer had he been permitted to ask the question would have been favorable to him that is to say is there anything in the record that tells us that she if answering truthfully would have said i did this on my own wealth or some version of that we know that she had quite a bit of child pornography when she was arrested we know that she had sent other new pictures of this girl she babysat over a period of years to other people she met on the internet i think you know were and were any of those pictures pictures in which she herself was abusing the child and that was then in the picture in the video well she said the video issue in this case to one or two other people no i understand i don't know if there's pictures of her abusing other toddlers or the toddler at issue here except in this government's theory on conspiracy is that she made this because he asked her to and she said i really didn't want to he kept asking he begged me i finally gave in if we could show that in fact she had made pictures like this with a change of conspiracy charge if you could show that the pictures were preexisting of course that would that would change that would change the conspiracy enormously it would undermine the government's case but if if it if if she's doing this in response to him even if she's willingly produce these things before how does that change a conspiracy charge it casts doubt on the credibility of her testimony that she made it due to a request from him she seems to have been she may have been very willing to do it it may not have been did you know to this willing to do it that somebody is request how does that it has doubt on her very testimony that it was mr davenport's request that triggered i don't i don't understand i don't understand the are because if she already before she knew him made this type of material sure but if she makes this at his request now you can show that she had this preexisting on her phone and just provides it to him i think the government's case is completely undermined you have no such evidence what if she makes this because this is her way of maybe i can help here do what evidence beyond her testimony do we have that he requested this we really don't we have a lot of evidence they talked we have evidence that after he got it he's like this is  he requested it and you're trying to say the jury might well then have believed her blue believed that she's lying when she says he were questioned sure but we have texts between them in which he's telling her what to do and telling her what he intends to do with this little girl when he gets there oh you're on our air those happened after this video is said and the question is did he ask her to make the video or once she sent it to him did he say oh this is her thing i'm going to now you know engage with her on this topic if you look at before the video now there's no texts about making this video before your time right now and i'd like to ask a question about sentencing sure it seems to me that whether we do the guy died range for two thousand and twelve or twenty sixteen the trial court judge under either version sentence within the region range permissible so what difference does it make your honor this court has held and the supreme court has affirmed that the first step of sentencing is to get to the correct guideline range if you had used the two thousand and twelve guidelines then i believe the government agrees with me the offense level would have been forty two and whether she's at criminal history four or five the range is three sixty to life here the judge believes the guideline range was life i could also go into  why i don't think stacking was allowed here but it's enough to say under the two thousand and twelve guidelines he's three sixty to life under two thousand and sixteen which was the romeo so used his life that's enough to send it back correct well the way the sentencing was done in this case all counts were grouped together under three d one point to be an offense level was determined based on that group  it was determined to be forty six and then cut down to forty three under the guidelines had the two thousand and twelve been used it would have been forty two now i understand that i'm talking about the ultimate sentence here sentence i believe once you got to that offense level and then moved into chapter five i believe thirty years was the both the statutory max and the guideline max for count one the most serious count there when we look at five she one point two d which is about can you stack or not it says if the most serious offense if the guideline range is adequate to punish the most serious offense then run your sentences concurrently on accounts if it's not run consecutively i believe that three thirty years would have not been  more or less than the guideline range of three sixty to life so the direction of the guidelines would have been run concurrent now i understand on the judge could have varied from that and not busted through any of the other start maxes but that would good morning your honour's andrea espinosa from the united states may it please the court your honors the record here is sufficient for this court to find that mr davenport knowingly and intelligently waived his right to represent himself at the series of hearings in which his forever waiver was the subject of discussion first there's a fourteen page complaint in this case that supported all of the charges that ended up in this superseding the second supersede excuse me the superseding indictment in this case davenport's initial counsel stated to the court at a hearing where counsel sought to be relieved that he had spoken to mr davenport about that lengthy complaint during approximately twenty meetings  his counsel also stated that they had a disagreement about how to defend the case necessarily implying a discussion about the charges the nature of the charges themselves your honor later in additional hearings first  the first read it was march nineteenth two thousand and fifteen of the district court read the statutory titles to the defendant those titles or are self evident receipt of child pornography distribution of child pornography this court is held in garrett gerritsen that one of the considerations in determining whether a defendant understood the nature of the charges against him is the complexity or simplicity of the charge in that same case this court counseled a pragmatic approach to reviewing a record for to make a determination about a defendant's knowing or intelligent waiver member yes why should we forester this is nasa the complexity defender the nature of the offenses against him however setting that fact aside it may have been a better practice for the district court to list the elements of each offense for the defendant or for the prosecutor to do that but this court has found knowing and intelligent waiver is under forever in instances in which district courts and the prosecutor have not read the elements to defendants gerritsen cites a case that's not in the government's brief united states versus lopez o a at two forty two f third eleven ninety one from two thousand and one in that case the defendant was not advised of the elements of the offense the district court judge asked to defend it do you understand the elements and the defender responded no and instead of reading the elements to the defendant the district court moved on ultimately the defendant was convicted on an illegal reentry charge and on appeal this court found that discussions between the district court were sufficient to make a record upon which the court could find that the defendant had made a knowing and intelligent waiver and that he understood the nature of the charges against him in that case this court also took into consideration consultation between the defendant and his advisory council like those discussions in the record in this case your honor additionally forrester involves two errors in the three  warnings that this court has held should be given to defendants at forever hearings the maximum penalties were not stated correctly in that case and the elements were also not discussed in forster the court made a point to discuss the complexity of the conspiracy charge in that case and indeed in that case there were multiple charge conspiracies associated with the distribution and manufacture of methamphetamine scheme and choose separate complex money  laundering conspiracy charges involving international transfers of funds for promotion of illegal activity and transfers of financial transfers of proceeds of illegal activity none of which is self evident by the title of the statute here by stark contrast conspiracy to produce child pornography is very clear the defendant in that fourteen page complaint that is that it was the initial charging document the granular details of the transactions that multiple failures to appear on previous occasions the charges in this case arose after the defendant cut a electronic monitoring band off of his ankle and fled from parole intending based on the record of text messages between him and his coconspirator to leave california to connecticut so your argument i say i think i can tell you're going that was we're trying to read the mind of the judge he was worried about absconding from the courtroom well your honor not just of scotty from the courtroom but otherwise causing a disruption there is where i'm going but so far you're not described anything that is going to be disruptive behavior you just described came to times your honor in the record there is information that mr davenport had caused disruptions at the sacramento county jail he asked to be moved to another jail facility and the jail actually sent word to the district court which is in the record explain to mr davenport and cause disruptions in the library and elsewhere well you know the this is even though this is playing a review this is different from your ordinary shackling case because he's representing himself if if you've got a defendant who shackled and who just kind of pinned down to the table and there's a curtain in front you don't see it and his lawyer is behaving like a lawyer but this one he is his own lawyer and he can't get up well your honor he was shackled to a cement field bucket underneath counsel table there were black skirts right here i think you're confirming that he can't get up he's got to sit there he could stand both sides ok he can stand but he he can't do the ordinary things for example side bars are really tough he can't approach the the careful to consider the impact of the shackling which indicates that he had thought carefully about his reasons for opposing it your honor no he indicated thought carefully about the result of imposing it that's right and i will note in his are is the case that  question of confrontation it does seem to me that mr davenport was trying to figure out a way to show that she was lying with respect to whether he had requested her to do that and one of the ways to get at them is ok what's your history with this that line of questioning was cut off how do you how do you justify that is it not a violation the confrontation clause or if of violation harmless i mean what's your argument well your honor it's our position that it's not a violation of the conference c e for several reasons first the specific questions at issue eliminate sort of the discussion here question one was approximately how long have you been involved in c p and question two was did you have any other photos or videos of c p involving toddlers first with respect to question two there was evidence in the record both from martin's cross examination direct and direct examination about the and the examination of law enforcement witnesses who analyzed her phone about 'm mike mike at trial the government's objection related to the fact that this area had been developed on on direct examination and by examination of other witnesses  a number of factors go into the determination of whether the error was harmless in this case one of those or one of those factors includes the extent of cross otherwise allowed in the overall strength of the government case in this case cross examination about miss martin's production the video and her delivery to another person who used an e mail address with the term in it ms martin was questioned both on direct and cross about sending the video to this individual she admitted that she did send the video to that person she admitted that she sent other videos to other people and that she sent other images to other people she admitted that she had been in b d s and relationships like the one she was in with mr davenport with many other individuals at the time  and that she had communicated with thousands of other people on social media but but but the question is not that she's been doing other things but the question that i've got in my head is the conspiracy question was she lying when she said he asked me to do it what evidence do we have in the record that he asked her to do it besides her testimony besides in this martin's testimony there is there are text messages contemporaneous text messages and what do those and what did those messages say so first the phone logs back up her testimony that mr davenport made the specific request for a penetration and oral video in with the phone records how d they back it up the fact that there was a phone call made yes they should but there's no transcript of what is said that's correct there's no content in the record about the calls but miss martin testified about the calls in his records showing the call that says no please stay with my question what other than her testimony sells us that he asked her to do this so in addition to those phone logs there are the text messages during that period and what do those text messages say well there's that there's a long series of messages overall there's about nine hundred messages but on the day our august twenty seventh the day that the video was made there are a series of messages in which mr davenport berates miss martin says that she's not being a faithful slave she's not doing what he asked her to approximately three hours before the video was created there's a forty five minute call martin says what she says about davenport instructing her to make the call and then there was a series of forty two approximately forty two text messages between one thirty p it he says i love it and then he instructs her further go back trim your own fingernails and do it again and in the same date range in the conspiracy he also says what are you going to send me images of the older sister i want to see her as well  qualify as sex abuse crime against a minor and therefore the enhanced sentencing penalties are not warranted and the present report has been revised he appears that it wasn't revised and there are additional places where the two thousand and eleven count it so now what do do we your honor that that underlying conviction is is a potential basis for application of the four b one point five repeated dangerous sex offender enhanced but which the court applied here the effect of that enhancement was to raise the criminal history category from four to five in this case as the court's already noted the sentencing range wasn't affected by that increase in the criminal history category it was a life under either good but the p s r says we made a mistake we shouldn't count it and then it goes ahead and counts that anyway looks like it didn't it looks like they just didn't make the conforming change later when they did the actual calculations and it does look like the district court or the government or defense or defense ever solve a problem we started from the wrong we got the wrong calculations that from the beginning part of that may have arisen from the government's initial position that the internal recidivism enhanced mintz in the c p statutes were triggered by the prior conviction the two thousand and eleven california conviction in our original sanity memo we argued that that indeed was the case and that the sentencing escalators applied after review and further consideration of government backed away from that position filed an amended sentencing memo in which the government took the position that those that that underlying conviction may not have triggered those enhanced bans and that the court could reach the sentence the appropriate sentence of six hundred months by imposing consecutive terms ok i mean this is this is sort of the the same the same colloquy that we were having with defense counsel that you just changes it from three sixty to life instead of instead of life that's wrong and so the sentence is still lawful but the government is conceding that the court started from the wrong premise you're right your honor the calculation itself should not have included likely should not have included four b one point five but the outcome would have been the same either way they just record anything under occasionally on something doesn't that almost automatically mean we send him i'm saying sort of the judge has in front of him the appropriate guideline under normal circumstances that may be appropriate but in this case there's no there was no months was the only sentence that would adequately advance the thirty five fifty three factors and protect the public in this case so the result may have been the same like you live in the city thank you would you would you please put two minutes back on the clock thank you council appointed said that he read to mr davenport there were twenty meanings but there was no evidence on the record that mr davenport's initial attorney or mr davenport ever said mr davenport understood the charges i think this court has said the district court should make a record at these forever proceedings that there's an understanding of the charges and we don't have that because we don't know what the content of those meetings were  i disagree that the title of these charges makes it clear what they contain i think especially conspiracy to produce child pornography it's it's not obvious that when you're three thousand miles away and somebody else is taking all of the actions how you're going to become liable just from hearing conspiracy to produce so i think that there had to be a deeper understanding on the record shackling mr davenport did have a failure to appear about fifteen years before the trial for a misdemeanor proceeding in l a i don't think there's any evidence that that was the reason the district judge shackled him in this case he was detained at the sacramento county jail throughout the proceedings before he was brought into court he was in a holding cell there are always marshals in the courtroom there's no evidence that he was chained because the district court was afraid he was going to run away from court he had never done anything like that he could be verbal only difficult but he had never done anything that would suggest violence in the courtroom or violence really even at the jail although he was verbal ie annoying that's not a reason to shackle someone and as far as whether the fact that the jury didn't see the shackles you know from what we can tell from the record matters i was rereading a case docket and it's in my briefs the other night and in that case someone is brought in front of it's a death penalty case if you're over your two minutes so you could wrap ok this so it just goes to there's more than just the jury seeing the shackles at issue unshackling on cross examination there was there was evidence she had other appreciate it thank both sides for their argument the case for united states versus davenport submitted for decision