if it please the court good morning my name is richard cornell i represent the felon straighter and reading this cold record i would like to think that any reasonable jury of twelve would have concluded that the government's activities in this case for you are not necessarily related to the facts of the entrapment issues as to why they didn't number one the jury was given a jury instruction on an entrapment and it was a correct instruction however counsel defended th case on two theories and the one that he really honed in on with the honest reasonable mistake of fact on mr street as part of what that did was it enabled the government to hone in on in the jury to hone in on the actual literal words that mr streeter used in the internet chat rather than the bigger question of what did the government do to induce those words the second issue is why i mean why now i think goes directly to the second trial here issue that we've alleged and that is this under the test of norris and was leadin we submit the appellant's presumption of innocence was wrote it when the jury suddenly saw a huge group of seventeen year olds in the courtroom during the most critical fortune in the government's case in chief and as it turned out the trial court didn't do anything to correct prejudice and now i understand their response which is that the government excuse me the trial judge proposed an instruction but i see three problems there first is the problem that trial counsel bought out in bringing on that kind of a limiting instruction it really has the extreme danger of saying pay no attention to the blue elephant in the living room and there is case to laws that would support situations where that type of instruction won't work eight quote curative instruction was offered and refused right now the second with the defense that you tried you know i'm i'm a pelican the different the trial counsel proposes an alternate instruction no trial counsel's position was there was simply no instruction that could be given that we would cure the problem the second problem is that the instruction that the court proposed read as follows and i'm reading from ph twenty four of the excerpt the jury observed a considerable group of high school students come into the courtroom just before we recess this morning the students were on a tour of the courthouse and were here very briefly to observe the trial the students were all seniors in high school that says nothing about the presumption of innocence that says nothing about you do not in the presumption of innocence is attending right now and it doesn't get removed until you're it in fact in effect this instruction basically says there wasn't blue elephant in the living room to if you want something oh my and the instruction that was in there and then you can ask for it but apparently the conclusion of if the district judge told the high school students that they were barred from the court and let's let's take it up to move where we have some case law suppose new tells the press you're barred from a court a public holiday but you can walk in certain but if he in fact the trial judge excused this group of high school students and didn't tell the jury why he was doing it the jury had every reason to believe that they were there on the support of the government which they work it was the unfortunate mistake if you will an innocent thing the court had invited high school senior class from a local high school to the court and there is no child ever involved having a group of teenagers there i submit brings it right back to the square these are the body of people that we're really protecting even though this case doesn't have anybody and it really who looks like th is now the third problem i submit is what should have happened in this case is that the jury actually should have been canvassed or in that case if the trial counsel said no i don't want to do that either then and then find you've withdrawn your motion for mistrial but that didn't happen either and when you take all of that out of the mix and you look at the facts in the light most favorable of the government here's what's left and here's what really bothers me about this case first off the scientists of this crime where the words my client uttered were uttered was an adult romance chat room in god in which the person on the other end of the line told your client that she was fifteen years old not quite fifteen years correct and your client's explanation for that was i thought she was kidding i really didn't think she was fourteen or fifteen years old i thought she was older than that and the jury heard both juror and concluded that it's as they're entitled to to believe the government's side of the case and not the defendant's truth if this is the type of sting operation that the court will tolerate than that all of that is true and that's where and where i'm going is this the type of sting operation that the court should tolerate pornography when the government chooses to go on an adult romance chat room what are they doing there they're going after people in the first place who go there with a reasonable expectation that they're talking to an adult to begin with if there was evidence in this record that child molesters regularly frequent adult romance chat rooms looking for children who have gotten on there contrary to the rules of yahoo dot com that would be one thing there is no such evidence in this record basically the government went on an adult romance chat room looking for stalkers if you well and they found one in mr straight or in the quite the bigger question i have is should that be permitted and particularly on an adult romance chat room because as it is in the record people on the adult room in this chat rooms fantasize all the time they pretend to be somebody they're not the second problem that i have is  the government downloads and forwards an old photograph to mr straighter mr straighter and his friend who was looking over his shoulder both thought that the photo was not of somebody was a  teenager now obviously as as an advocate i'm going to say what i'm going to say that is objective please i can say so when looking at these twenty six of the supplemental excerpt of record i agree that does not necessarily look like somebody is a teenager and it seems to me that if the government is going to be able to do these things they should at least have a photograph of somebody that clearly looks under age when they send the house with merissa saying in an adult romance chat room they are what they doing is they're creating a great amount of confusion child or adult the fourth problem that bothers me about this is the government it's the government who injects the under age talk and they do they had at the top point when the talk becoming intimate in a realm of fantasy it isn't mr straight are saying are you under age it's the government's turning them out at the point when they're talking adamantly the fifth thing that brothers me about this is the language in the phrase ology in the syntax it's been used it's not the kind of stuff that teenagers use these days we have the agent talking about playing monopoly we have the agent talking about the boston strangler and we have the agent giving specific street directions to mr straight or from north like the hotel shopping center in sparks teenagers people who don't drive don't normally do that sort of things he creates ambiguity in confusion not in the mind m of any reasonable person who would be there looking at this and then finally maybe not finally but the thing that i know the finally because you're out of time oh my god i haven't wrapped up the thing that really bothers me about this a platinum blonde who's twenty six years old who doesn't look anything like going to dealt mr straight or never said anything about her being fourteen and said are you the one in the picture yes i am let's go boom he's arrested and now he's looking at five years mandatory minimum in prison and finally there's no history of this mean and being a child molester he has no criminal history they have no knowledge that he's involved in child crimes there's no evidence of predisposition and fan sounds to get involved with children sexually basically what happened here with the police went on an adult romance chapter looking for a sucker and they found one and i believe the courts should intervene i think this is the wrong kind of i'm actually are going to space on behalf of mr craig any who wrote the brief and tried this case one of things i do want to point out to the case is that the picture that he referred to is an actual picture of a fourteen year old the picture that was discussion of sex by law enforcement he initiated immediately are you sexual when when the officer informs person i'm almost fifteen then it keeps going are you a v what have you done would you like to try it with me he initiated all of that she did not induce him to see anything in fact the defendant i believe conceded in his reply brief that there was no i guess egre ous inducement by the government as far as the high school kids coming into the courtroom during the proceeding they were there only for a short amount of time it was an open courtroom the defendant never moved to sill the courtroom the these high school students were seniors in high school not younger kids they were not government supporters they were not wearing buttons they did not have pictures on their shirt they were not a core part of a political group or an interest group with a cause some of the examples that were given in the cases where the mothers against drunk driving were serving refreshments outside and outside in the hallway of the court room and that is prevalent in this case this isn't the  told the jury at minimum that the presence of these individuals was inadvertent not related to either side and should have no impact on their deliberations in this case i believe the core offer that opportunity by asking would you like a limiting instruction the as as the language i just gave you is not in what was proposed right correct correct it was not and that's not what what was proposed but there was there was no offering as here's a courtroom and they basically by by asking the court to canvass a jury you're asking to invade their province you're asking for that blue elephant to come back in the courtroom and do it that dance in front of them basically further highlighting it and if the sizing any sort of basically creating further air in this in this case the high school students came in sat briefly council can't council meet made their objections up off to the side jury was excused they asked for what what what the remedy would be defense counsel wants mr trial how about an instruction no use only your only want to emphasize the fact tell the students go ahead and leave jersey called back in and no one is to the wiser so if there is any if there isn't any i guess prejudice it would be in big strongly small and i think if we tried to if you were to canvass a juror one by one and only would you be invading the province you'd be into sizing that we just had a bunch of high school students that came in here in this case these are high school seniors just doing a tour of the courthouse not even there as a support group or an interest group  defendant you know what do you want me to wear what why don't you fix up your hair and try to look older there were there were there was concern about that he also emphasized the sexual conduct all the way through from top to bottom it was not the government's actions it was not the government inducement it was it was all very anything it was done is what goldman talked about had the government may had  had responded enthusiastically that would have been proper in this case the government being responded to z as tickly in fact the conversations in the chat room that are attached to the record are are somewhat are somewhat  not only did he make it on time he's got a motel room ready and he's got free condoms with thing so as far as you know time is obviously of the essence for this individual who is obviously motivated to meet this person i the person who's actually working in the computer is a sheriff's deputy the picture of the photograph comes from a sheriff's deputy but the cooperation is through the f b i and basically they present the cases  so bring up for us i doubt it was it was pointed out that the the screen name of the alleged fourteen year old was st pub eighteen that is something that usually an individual doesn't have control over for example if i want to buy something on e bay and i want to choose my name i give them my option and usually they have time in signing one for example i want to be babied on but they're going to say you're going to be babied on fifty two for it so really a screen name really has is something that can be assigned to you secondly going into an adult chat room which is what you just described in the record excuse me but no no your honor i think that that was never really that was never things like that that those children the children that also have to be concerned about are the same children of the same age that are trying to sneak into the bars and clubs and they get in and they deserve to be protected as well as far as their age from statutorily raped and things of that nature in this case here's someone who stand there fourteen getting into an adult chat room just as somebody who is nineteen trying to get into a bar they both deserve to prevent protections or excuse me i guess  fourteen getting into a bar they were able to get in basically by lying whether be checking a box hang i'm an adult or a teen or by showing a false i d card at a bar in this case we have basically an unsupervised person the disney chat rooms they need to go to the places where teenagers are often likely to go they want to go where the where the adults are where the dolls have the money the jobs and take them in take them snowboarding at lake tahoe as as was this individual in this case i think i understand your argument in your point has to start with will be submitted for decision will proceed to the last case on the calendar which is the united states versus just look at