organization ministration the pretrial services statute as we outlined in our brief your honor is the district court's interpretation conflicts with the text of the statute the history of the statute and the policy underlying the statute each of those the text the history of the policy makes pretty clear the congress wanted to create a system of trust between pretrial services and a defendant and in the central element of that trust it's keeping conversations between the defendant and pretrial services co i do think it's important right off the back to make sure that we're all sort of on the same page about what statements are already issued the government's brief cites a series of cases that make this appear to be a case of prior inconsistent statement as i hope we outlined in our reply brief those are the just those are the statements being challenged here we are specifically challenging those statements made during the pretrial services interview by the defendant and that were later used to impeach uncle eddie ramos that is made clear from the questions from the statements and the questions that we cite in the record as well as the district court's instruction to jurors that the statements of the defendant  used to affect the credibility of uncle addie if i can return then particularly to the tax the district court rely primarily on one law and in the statute that discusses information made competent to order the paragraph cannot be used it to determine an issue of guilt there are three reasons why i believe that that reading of the statute is incorrect the st is if bill is to look at the statute as a whole as i said the organization administration of pretrial services statutes speaks in terms of pretrial services a one talks about the subject of a one is the proof that the cheap pretrial services two is the cheap pretrial services officer and and three talks in particular about the been the chief probation officer what i think is important here is that the district court relied upon c c three but the bill to look at c two which specifically says a pretrial services can make a series of exceptions and i think the proper interpretation of c three therefore is that this acts as a constraint upon pre trial services ability to make exceptions the nd reason i think that that's incorrect is the court as the panel no doubt knows a standard rules that a tory interpretation is that the text cannot conflict with the either the clear claim the language or the statute cannot conflict with the clear policy that underlies the statute that's a pretty shaky argument i gotta say i thought your better argument were if you want to argue that the text can be contradicted by the purpose you're going to run into trouble since we know that no i mean virtually every statute we have set off from the supreme court is sort of an compromises and the statute reflects compromises between competing purposes i thought your better argument was that the supreme court in exclusionary rule cases and other statutes who said yeah you can you can impeach the defendant with his own prior statements even if they were made dies or otherwise run lawful but you can't under james against illinois extend that to all potential defense yes and i agree on and if i could ask you about the about just how this works in practice defense counsel newly assigned to a defendant just taken into custody pretrial services needs to work work up the case a very fast right yes and so defendant turns was a lawyer and says what do you want what should i do it should i answer the questions or not you've got all these miranda warnings what do i do counselor how does your advice differ depending on whether he could be impeached with he could be impeached with his own statements versus any defense  lower the same way as if there had been a an emory and i's confession the counsel would perhaps the counsel at the time of trial would would engage in the calculus that your honor suggests i think the the better position probably if i were counsel would be advise mike to advise my client in the case that the client's own word could be used to impeach to be truthful and to end and to participate in the pretrial services interview but to handle that down the line now if i'm an impeachment down the road if it it would be you'd have to know what your defense theory was going to be at the time of the pretrial services interview right you would get so that would seem to me to really discourage the trust that you've talked about or at least the the the candor that the courts count upon to make sound counsel let me ask you about what prejudice let's assume that it was an heir to introduce the statement to be impeach uncle any he had other credibility problems mean to but that really have affected you know that that one statement to you truly think given you know his prior conviction and the convenience of his story that the jury would have believed him saying i think there's two issues is issues there your honor that the  is as as we said in our apply very anytime that you end up using the defendant's own words against them in any type that you some type of confession it has a disproportionate and harmful effect upon the jury so i don't know if we can just look at it in terms of in isolation in those the nd point that i guess i would raise your honor is as we i hope outline in our insufficiency there was very little evidence tying the defendant shoes that the that the circumstantial it was certain to well there was there was very little evidence tying him to the house two years earlier there was circumstantial evidence to set that that was his room at the time of the search but the record is almost completely devoid of any indication that he was there two years earlier and so by the government specifically asking you know did he say where he was two years ago which is  of what happened i do believe that it actually ended up helping further and further the government's case that he was there at the time which is what they needed because that computer in that room had been turned on for a very long time x eighty five the evidence is fairly thin about that actually ties mr chopra to the other parties don't dispute that that the phone was a mystery shopper at the time but what makes it interesting is the phone was not password protected the torrent that was used on the phone was not password protected and during the course of their search the government or the government's own witness testified that indeed there was only one phone found in this report the testimony or at least in this option that this was a shared device the government seemed at many times to to be fairly specific that they didn't have to eliminate every single person in the home i'd also like to start returning back to issue number two the services statute one thing that i do also think it's fairly important here is this case is fairly unique from all the other cases that been cited in the sense that we actually h pretrial services in this case the pretrial service officer let's call and offered the official position that that the statements made by the defendant should not be introduced at any point during the trial and that's a that's an element that doesn't appear in any of the other cases that that appear in the that the government sites on the record  a issue of st impression nationally that the pretrial services statute i can we can find no other case where the defendant's words were used to in each of their party witness the government's brief is correct that if if the forty's is to be this is a crime or inconsistent statement case there are several circuits that that have decided that under those circumstances using those statements or pietschmann is appropriate but i  trial and later in the briefs a lot of statements to be used for impeachment in this case they've allowed the the defendant's words to be used to impeach the defendant could you address the james against illinois issue i understand your honor and which i don't think is mentioned in your brief know it is the way this played out in the trial was that the district court approved the testimony of mr wheatley based on authorities that it found it to go to griffith case from nd circuit print correct then the court written instruction of the instruction was drafted by the government submitted to the court it was provided to defense counsel defense counsel as asked by the district court if he had any objections he said no he embraced the language of the and then mr wheatley was called to testify during the directors of the defense never consented they didn't relieve the root of their objection is examination and at that point it only asked about the statements of the defendant and i can understand why the defense says argued that there was perhaps bad faith on behalf of the governor but i ask the court to go on and look at then the cross examination of the defended of mr wheatley and then the redirect by the government and here's why the cross examination was broad enough for the government to come back on redirect and ask mr whately whether he had spoken to mr ramos and bring up the impeachment of mr r prior statement so both of them or there but there's nothing in the cross examination that compelled the government to go there i think a fair reading of the record is that the government made a mistake in terms of stopping too soon and it's a direct examination but clarified that and minimized any potential prejudice by going forward and in the redirect bringing out mr statement which by the way your honor did not differ from the defendant statement it was the same so the defendant didn't add anything and the government then never argued anything about guilt its only argument had to do with the credibility of can you direct us to any other prosecutions around the country where a defendant's statements to pretrial services on the initial interview have been used to understand how in a particular trial the belief that uncle eddie is lying and you can prove it would lead you to want to seek this impeachment and the district judge be inclined to go along with that my concerns here are much more systemic about how the courts can deal with pretrial detention and other pretrial services issues quickly in what incentives defense counsel and defendants will have if we approve of this impeachment of the defense witness could you address that i understand the systemic problems  court addressed earlier questioning of counsel i can only say that there are but a handful of cases around the country that talk about this issue or bring up the issue of pretrial services officers testify and with a few instances i find it hard to believe that it will create in fact and it pediment to defense counsel and clients at their early  meetings in general deciding that they just can't cooperate with pretrial services because it might be used against the metal leaders i find it difficult to do why i would have don't why do you are you so confident about that because these are exceptions because these cases these cases are exceptions it's not it's not a general practice of defendants to testify that often so the cases permitting defendants to be impeached i think i mean i think if we held that witnesses could be impeached with defendants pretrial statements then that it's difficult to ask the court to take that step in this i would ask the court though to consider the circumstances in this case in particular and what was shown by the testimony of the pretrial services officer was that the defendant had made statements to him about where he lived the pretrial services officer then confirmed those statements with mr ramos at the time in trial the record can be read to show that it would have to ask the pre trial services did you confirm where he lived without any idea of what the original statement was that was being confirmed would have been difficult is it possible in h assume that this was an air about prejudice i think there's a lack of prejudice your honor because a there was an instruction and the instruction specifically dealt with not considering the testimony or any statements of the defendant except for credibility of mr ramos secondly mr ramos prior inconsistent statement was a prior consistent inconsistent statement it was the same as the defendant so it the fact that the defendants came in and didn't really add anything enlarge the idea about where the defendant lived but there is time to but if i understood what you told us at the beginning though the impeachment of ramos began with what defendant  correct your honor ok and that and i stand by that in terms of in terms of bad faith and i would ask again the court to look at that the way that played out in the direct cross and redirect i don't think the cross examination compel the government to cure a problem but it did help how would this work in for example you're an experienced prosecutor in immunize proffer session you can use proffer session statements later to impeach can't you sometimes yes sure can you use them to impeach any witnesses other than the proffering defendant no particular circumstances that we w that would that would i do that would make it much much more dangerous to try to proffer right i agree or how different is this just the scope of the discussion pretrial services or in this case your honor i  i really have to take that extra step and say it's different because it really went to the credibility of mr ramos as opposed to the defendant statement being used as it as a and incriminating statement which it was not used it's out there but it's not used that way by the government and certainly not argued that way in closing be hard for the jury to miss the significance of those are the kinds of limited instructions that we don't have that much confidence in right and it was part of a limit the defendant's confession to the issue of credibility is going to be like key fact it was pretty explicit though judge on that specific point y well with regard to the sufficiency of the evidence there was sufficient evidence to support the jury's verdict in this case there were three devices involved when you look at the evidence on each of those devices or evidence about those devices collectively the evidence about each device supports the conclusion that not only that device was used by the defendant who made a crime but that the other devices were used by the defendant to commit a crime the defendant is the only person across the three devices the only person in common with those three devices  a file sharing program was used or had been used on all three devices in fact on two of the devices the hard drive and the computer that was used for the downloads to the undercover officers there was a an unusual version of bittorrent called pic sati which the undercover agent testified was he hadn't seen it in hundreds of investigations so it was it was rare based on his experience but i also can go through the  individual items starting with the hard drive this is perhaps the clearest the defendant's username with the username was a variation of michael it was mikey but with a instead of an eye it was the numeral one and that and it was password protected it had been used for searches for child pornography torrents the torrent is the name given to files that are shared on the torrent network searches were done on that computer for child pornography terms child porn was the specific words were in the name of a torrent file and when that file was open it was that name child porn would have appeared on the screen there was a directory created by the user that was web video collection slash pre teen and the defendant or the users and in this case the defendant knowledge with regard to bittorrent was sufficient enough so that the default settings for the bittorrent program that were on that computer had been changed so it wasn't just downloaded used as is default setting had somebody had to go in and affirmative change those default settings the phone was found on the defendant's person now the evidence focused on of november  th and i would cite government exhibits two hundred and twelve and two hundred and thirteen which have a list of the uses of the phone on that date from approximately nine in the morning until about one o'clock in the afternoon and they start off with searches for child pornography websites in general searches for child pornography then a viewing of four separate child pornography images and finally a text on that very same day from mike to another person with regard to the rd device the device from which the undercover stood there download there  its title it was a very long titles of just refer to it as eight hundred and seventeen there were remnants of that same torrent on the hard drive in an allocated space but remnants of it nonetheless so it had been on that hard drive at one time and finally on the shelf in the defendant's bedroom was found and empty gateway laptop box and with the pictures from the search that the serial numbers and model etc on that laptop box were visible and there was testimony that no computer with that serial number model number was found during the search so there was a missing computer in a and he's collectively those things and they are intertwined with regard to the three devices they have some individual separate evidence about them but they are intertwined t perhaps the best places to call it is beginning with the insufficiency i heard the government repeatedly say in the cases are intertwined and i think that's largely because no count on its own really hold  there happened to be a text message on there but the government's evidence really didn't show it really didn't disprove that it could have belonged to somebody else as i said there was only one phone found the government searched the government set up at the lap on the side they started many many of the devices on there the record is clear they seize that they secure the family and then they went around the home look of all internet ready devices and that produced the search the testimony is  phone that phone was not password protected and the some of the cases make clear that we side in the record neither the phone was protected nor was the torrent software used protected the government identifies that this was a unique type of a torrent but let's be clear the testimony from the experts about what a target is says that it is it that turns are generally available devices used to share information examples of the government's expert use for example was people use it to download wonder woman was the so there's nothing particularly new areas about at least according to the government's witness about actually having a bit  f likewise for count three the record is that there had once been a torrent and illegal images on there but that those images had been deleted so the government was really looking at what they  called shell bags are deleted folders yes there was a username but once again there is nothing really to discount the possibility that these were shared devices which is a disproving that is  suppose for a moment that we agreed with you that using the defendant's statements to impeach mr ramos was an error suppose we also thought that it was ok to impeach mr ramos with his own prior statements if the content of his prior statements and defendant's for statements was essentially the same how much harm would there have been