good morning may it please the court robert culp assigned counsel for appellant paul archambault i'm going to try to touch on aspects of my first three points in the brief just aspects of them not everything i'm saying of course i don't have enough time for that i was not counsel below in fact as the court knows mr archambault was hearing you would hearing to your point that he did not get appropriate advice with respect representing himself i know that your you wrote your first brief without being aware of pages one through eleven and you made some statements in the brief that he the court never addressed him personally which turned out to be untrue when you when you when you learned about the july twenty third proceeding are you still arguing that i'm not hearing through it but i'm certainly modified my argument your honor the you're right i  did not know about that proceeding that was that's understandable since it hadn't been docketed that it had been docketed correct the court did address him pretty directly but it said you know this is really a lousy idea i don't see how you can possibly do as good a job as a lawyer would do and the rules of evidence are very complicated you can't possibly understand them i'm really telling you this is a terrible idea and you realize how many years you potentially face the court said all of those things to him what the court said all of those things you certainly it's a night and day proceeding compared to the one that i analyzed in my first brief but as i say in reply and i think it is the eight hundred pound gorilla in the room in this case is it's the issue of what w standby counsel to be doing and here's here's my my question does a court on very very particular fa says are here have a duty to reconsider what was an adequate because it certainly was an adequate hearing at the beginning at which a person said i don't want counsel i want to defend myself does a court have some duty to reconsider that when it is apparent or might be apparent to it i don't know if it would be that the person would not have done it if he had any idea of how little standby counsel has to do because of his prior experience in the northern district and then i've never seen a case like that and kind of like to think about that as a possible each shoe is a very a duty in a very particular case to go back and ask do you still want or did that happen because i'm not even clear then what happened i mean what one might do is go back and see if there was a vet situation i didn't find that case your honor either but i certainly agree with you that there it should be considered an ongoing thing and this is an unusual case in the sense i coined a phrase for this argument  my client's a forever recidivist he actually did this twice charge of the same thing twice and both times chose to represent himself the first time it actually apparently worked out pretty well for him but he did he did have that that background in and the person says i don't like stand by counsel that the court goes back and we address it that is i think you have to get to make your case you have to argue that there is something so specific about this situation the prior stand by and everything and what he said that makes it a case it's out of your married that's what you have to do i am arguing that and and i'm also saying that even though my client can't complain about in effect of assistance of standby counsel he can complain about lack of assistance he did have the right to assistance in the sense of help with subpoenas and so forth and other things that he can't do in prison but i still don't think it's that much of a burden on a court in a situation to say to the person who is waving this drum this important right look i'm going to appoint standby counsel on here's what he or she is going to do or not do in this case that didn't happen it was left completely open ended and of course my client bought into this case some memories of the prior case and how much assistance he was given then so i don't think it's a rather than an argument that you say there's something unique and exceptional about this case well i think this case is unique and exceptional but but i imagine there are other forever a set of us out there there are other situations like this where someone comes in if every case can happen again this is it this is a mighty unusual one in many particulars including your particular who is i don't disagree with you judge just to make sure i'm being clear that this should be a kind of an ongoing review type situation i'm just saying that i also understand why it can't be made clear up front i've cited some cases in my reply brief where the  include details about what standby counsel was going to do now be the first to tell you that those cases do not hold that this is what you're supposed to do in these cases that's what i'm asking this court to do but but that there is there are cases where the judges have gone into it at that level of detail and i think it's a good idea for standby counsel the same lawyer who he rejected as his see as his of appointed counsel yes yes he had a  prior lawyer from the federal defenders office who got conflict it out for some reason then he got appointed a siege a lawyer a lawyer and he was on with them dissatisfied with asked and which is one of the reasons why he asked for to represent himself and it didn't even seem to recognize you yes yes dressed as a limitation on the you're about your client's ability to cross examine the victim's testimony the argument about  twelve motion to protect the examination sexual history and so forth and so on and and mr archambault objected and wanted to get into the fact that the complaining witness had misrepresented her age on other occasions on other websites and so forth you ordered and you ordered and preclude him from bringing out that she had misrepresented her age the order your order said you can't get into her sexual history can your sexual history but also you are limited him to the contradiction on that is me that is exactly the point in terms of the difference between counsel stand by coun he says he thought he was barred from asking vs and had he had counsel he would have known that the order in fact allowed him to do just that that is an important point because it may go to whether this fact of not having was harmful or not and that that that is not your favor that that in fact the order allowed him to do what he wanted to do but didn't realize he could do that that is an important point your honor but i want to be clear to judge in the halls question the there was information discovery that the complaining witness had misrepresented her age on other sort of social media type websites and judge or karen in this case limited the defendant to the instance that he was involved in his interaction with her there was a discrepancy in the age apparently and once that part of the profile said she was eighteen another part of the profile it says she was sixteen he was forbidden from getting into these other instances of age misrepresentation now i think to the judge you say to the judge understand that i'm not allowed to get into or sexual history all i want to bring out is that she represented herself as being eighteen years old and i think i don't think he put it quite that way your honor i think to judge his point it would have been good to have someone to make that point but i think it was his choice not to have counsel i was a robot he wasn't thing to do but but he's entitled to do it but he wasn't standing rock solid and i have to go with the sexual history his point was about the age lying about the age it would have been very easy for this district court to craft an award and say you are not to get into any of the substance of discussions with other men or anything like that none what so however the only thing i'm going to let you get into is whether she misrepresented her age on other occasions to other people it could have been left that narrow he had represent itself to be eighteen years old on the website where the chat room but not on the other occasions and i've made the point to clean my reply brief that there is no quote out on the impeachment of a witness especially a witness this important limiting them to one occasion does not satisfy the constitutional right to confrontation your honor in it and i think that was a an abuse of discretion and i think it would've been very easy to reconcile the balance the protection of the  of the the witnesses and from going into their sexual history i totally support that but but the misrepresentation particularly one that was an a defense to three of the four counts in this case is very significant issue in this case but i mean i mean it's something clear are are you saying that that the judge's order that any aspect of the judge's order or ruling on this was reasonably understood by the defendant as saying you're quite see it as probative because your defense was that your client believed she was an adult and so allowing your client to elicit what she had told him would be extremely important but which she had told other somewhat less so it's only through a propensity and inference that that becomes relevant right yeah i guess it is a propensity argument but but i have never heard of a case that says that you only get one shot at that in cross examining a witness i him i mean i don't quite see how that goes to her credibility it may go somewhat to his credibility when he said i fought but that's a not saying that it wouldn't have been very good for him to have had that evidence in you know i think it would have been good for him to have had that evidence in and then we that brings us back to the whole question of whether good morning may please the court mary katherine baumgarten for the united states if i may go right to the for twelve argument follow up where the court just left off with opposing counsel the judge carries a you've hit the point the point is not the credibility of the victim it's the defendant's articulated defense throughout the progress of the case it was an absence of mistake of the victim's age he clearly was able to i put in before the jury that he was permitted whether he was able he was permitted to and did introduce evidence of the inconsistency in the two different locations within the victim's meet me dot com website actually if you look back at the victim's original testimony her last name assaulters the victim the government elicited it specifically the prosecutor elicited and introduced into evidence as governments i believe it was exhibit  one the meet me dot com profile that highlights the eighteen year old age that the victim includes at one point and then she says hi she gives her name i'm sixteen years old i attend bennett high school i'm awesome i think is the word at video games and things and i live with my mom there there it is squarely put in front of the jury in the government's case sixteen years old or eighteen years she says both judge she says eighteen at one point and then she says i'm sixteen years old i go to high school in that was elicited during the direct testimony and the actual exhibit put up on the overhead screen or whatever they call them the jury saw all that the defendant actually also during his cross examination of the victim asked her about their specific communications and that's the balancing the judge or kara did in this particular instance to address specifically leading into impermissibly the sexual history because the other girl if you will the girlfriend she actually was their term is not just a friend she was a girlfriend to the sixteen year old victim that goes to the hotel room with archambault and so that's what he was trying to also explore and he says it during the earlier proceedings he wants to bleed into the nature of their relationship to further present a certain viewpoint of the victim the sixteen year old victim and her exploration sexually so it's out there it's very clearly in front of the jury this does go  it was brought out that there was a sexual relationship between the two young women now i'm sorry when i said it was out there i meant that the issue with the inconsistency between the victim's age in her meet me dot com account and specifically the communications that existed between the defendant and that victim judge or kara did not limit that that was his balancing because he wanted to ensure under the  exception of four fourteen and before twelve that he would be in a position to put in all the evidence that didn't run afoul of four twelve in support of that defense so he the defendant does get that opportunity to explore all of that he is permitted to do it i have a completely different thing and that is i take it that it is law that when a person takes a picture of a sexual act between him her and another person who is below eighteen just a picture for his own that that is the production of child pornography correct it doesn't have that is so awful yes i'd like to know how frequently the government if you know in cases of that sort brings charge under production of child pornography goes you know it seems to me just speaking aside from precedence vet self portrait consensually photograph of a sexual act between somebody say who is a teen in somebody who is seventeen is something that may happen and is wildly different from the production of child pornography all sorts of other implications now again this is a very particular cases is a very sick or something person but it is vis a kind of thing that is a production of child pornography which if done twice gets a twenty five year minimum well and in fact situation is it appropriate to go beyond what is required when after all had the prosecution if in most cases you wouldn't even bring a case like that i'm just you know i don't know but this is this is troubling to me because it seems to put two  all of which are dead wrong mind you but they're very different kinds of things in the same basket without dong the on the record what you're asking me sort of if i can distill it down to make sure i understand it that is a very difficult argument to make and the other hand one of the reasons that we have guidelines and we have who are to have discretion and then we have discretion is because prosecutors have discretion and courts have to look to help the prosecutors exert their discretion and we have to look at help the court does it's a way of saying is case being treated in the way that these cases are  think we can all agree that he got a very light sentence with i think doctor cares term is strikingly similar conduct yes and then he commits this conduct within two weeks excuse me two months after he absconds from the northern district after essentially getting a thirty six month case on a production case it's hard for me to answer hard it is hard to imagine a more self destructive person from beginning to  because in you know this is a case where the as i said do you know the reasons why the judges just record in the northern district believe the defendant's protestations that this is one and done i made a graphic or terrible error i will  i think that the that bleeds right into the court's recognition that the district court here many different ways strongly encouraged mr archambault not to proceed pro se i don't  furthered by the fact that after the case proceeds mr archambault has some difficulties bringing himself to sentencing mr malloy continues to represent mr malloy meets with mr ar to intercede on his behalf and speak and you know specifically with respect to sentencing i also scoured the record to try to locate any record of events to support any specific claims that mr archambault may have made of a deficiency of mr moyes conduct there's two things that jump out at me and i've noted them specifically in the brief i've given you appendix citations for those they relate specifically to the failure to subpoena mr  charge with was not the production of child pornography that they had i can i can speak to without being extra record having handled some of these i see that my time has handled some of these matters we often it's a was but it would have been below the mandatory minimum it must have been not a charge of production of child pornography second in it could have been often the way i would be over any number of charges or in a way that might have empathy to those guidelines without implicating the mandatory minimum and i just asked one question on another subject the cell phone and that came from a mother in the district court ruled that there was a parent authority to search what does the record reflect about whether the portion of the phone that the defendant had been using was password protected you know that's interesting he makes the claim i don't see any record support that establishes that in fact it actually was what occurred i can speak to the record at trial they at how mr archambault was mom received the phone is through mr bones wife's sister and so however it is it gets dropped off to  mister from her and she's able to access it his mom is and and she does it in fact and gives it to his half brother who's ten years old she buys the phone she puts on the her cell phone plan maintained it is locked i think that comes directly from him in the post trauma ocean number two or three whichever one it was you asked about the offer i don't believe the specifics of the offer on the record but since counsel said it was much more favorable i'm going to counterbalance that based on my knowledge that it wasn't that favorable and mabel will be an echo pose there but i think i can say this that if it didn't do anything about that twenty five year mandatory minimum i forgive me for going a little bit outside the record but i wanted to join opposing counsel that way and kind of a reconcile that  the complaints about prior council was mentioned it's all over the record it's it's she she chewed up here it's there's multiple complaints about prior coun there's multiple complaints asking for to a drum the trial which bleeds into that there's there are three or four instances i got them all in the appendix and i cite them in the in the briefs the one thing i mentioned it's fair that it's long on when mr archambault is sending these handwritten complaints in it's a little long on on on rhetoric and a little it's that it doesn't contain the specifics that we you expect lawyers to proffer that this is the person i'm trying to subpoena he does get into it a little bit more in his post trial motion which i commend to your attention that it ain't one ninety one to ninety nine of the of the record it is fair to say that he's not terribly specific in his complaint he says that mr standby counsel is not visiting me he's not helping me with subpoenas he doesn't say i'm trying to subpoena this bank or this hotel or whatever it's low on specifics my response to that  if you permit me it's in the reply brief is that this is the world of ferrata we are we let people commit legal suicide in front of us in courtrooms under forever but we do insist that this is more th want then i want to reconsider whether i defend myself i need your help on that judge i mean he doesn't say that i don't think he says that every knows word that involves reverse he is complaining over and over again about my my it's it's clear to me that even if we take these cases specifically that that would be going too far but is very nuff said but it might make sense to remain a district court for consideration of whether that he had that power he could consider saying you know you can have counsel now is very nuff at least to get to that but it's it's i think there's grounds for that it's pretty clear that and it goes back to his lack of specificity in part it's pretty clear the district court doesn't know what he's talking about when he's making these complaints at one point he says i don't understand what you're saying and then standby counsel says well go bring the file to was yes he hadn't been moved from one facility the next i'll go bring the file over there and that was kind of the end of it i don't think there's a there's any kind of scrutiny here of these complaints that's certainly what i'm saying i didn't get a chance to talk about the the subset of unreasonableness argument which came up in your column and i'm not going to go into it commended to my briefs which i do go into it at length i recognize it's an uphill task but i would like to point out that that this is behavior however critical it is to to to do this thing get sent to jail to do it again it is behavior that is legal in many states and when you turn it into a production of child pornography which to me is a look at the underlying behavior and i understand that photograph is not when you turn it into a production of child pornography which it isn't it's it's statutory rape is what it is it's sex with a minor it's not production of child pornography but that gives them all of the leverage in terms of the twenty five to fifty and the guidelines and so for that i do think it's inappropriate i don't know i'm not sure what i can do about it i think  counsel was correct in saying that technically that is production of child pornography when you take a picture while you're having sex but i don't think it is in any meaningful way i think the court for its indulgence of my argument thank you thank you very well argued by both sides frank you