we are joined this morning by judge joe flacco who's president about speakerphone and participating in the decision of all of these cases and i can tell you from yesterday's conference a very active good morning and may it please the court i think the problems with this case are best reflected in the series of questions that are laid out in our brains at page six those questions are which pictures and our videos were presented to the at each of those materials come from the same transfer you have any evidence that they weren't the same pictures and videos presented to the grand jury we don't know what pictures were presented to the grand jury you don't know a lot about what goes on the grand jury but that doesn't mean we presume there are from what we can look at the indictment and then dykeman as i think that's sort of gets to the heart of the issue which is that the indictment is not specific enough to tell us what was presented to the grand jury  often doesn't tell you so if the indictment where properly tailored if it were if it made that if it met the standards that were articulated and i agree i thought your argument in the district court was that we don't know  jury the pettitte jury unanimously agreed on which photographs were obscene that's one of our arguments and i think that's a no no we simply don't use the president ok i thought what you argued in the you to show a reasonable probability of a different result in the trial because of the alleged playing error and you can't possibly show that because you've conceded with me in the opening questions and answers error is preserved and plain or if it is not is the burden and the burden requires on planar that the defendant who is appealing show a reasonable probability of a different result but for the alleged er you have agreed with me that we don't know and therefore you can't show a reasonable probability of a different result i think that's not the only harm that we have that's not the only harm that we can show that there's a difference between like what was presented to the grand jury and what the jury may have convicted him home on the other harm is that the jury could have convicted him without being unanimous yes i'm stand that what i'm trying to tell you is when you say the other harm there was this harm you haven't shown that it was harm because you have not shown it effected the defendant in any way you have not shown that the grand jury wouldn't have indicted for example i think the error covers all four prong i think so your honor and i don't think i'm not aware of any precedent from this court setting and on bond or any pressure and any president from the supreme court saying the ad gets and was wrongly decided or indicating that a consent was wrongly what i did it doesn't have to indicate because i think that if if and subsequent on a later on bach or supreme court decision holes squarely that you've got to show that and they held in that case in fact that there is a reasonable probability of different result because the huge number of overt acts and we don't know which ones the jury put together the question then would be whether this is sufficiently distinguishable from that c i don't think and i'm going to promise i'm a hunch but i don't think that adkins and said that whenever you fail to give a unanimity instruction it's always when you have multiple possibilities of conviction on the count single counts and you don't give  instruction that tells them they've got to pick and choose within that count and agree on one within that count it's plain it's a substantial likelihood of a different result i think  account and the same issue was presented there and i think that's pretty similar to what we have here and the harm that we can show is what i was indicating earlier which is if you look at each of the images they don't necessarily reached our meet the definition of definition but that's the whole problem we don't know which of the jurors were basing their decision on the video that the district court set aside and so you do also have the screenshots of the images and  is there any issue on obscenity on the screen shot whether or not that the screen shots constitute i think that goes to i think maybe the rd issue may have misspoken earlier the rd issue about the  whether or not like what evidence is required to meet the definition of obscenity and so and miller it talks about the whole idea that the images are the videos the material that has to be obscene has to be taken as a whole and so when you just introduce the screenshots of those things you can't show that taken as a whole they are obscene for example if you had a video so if i mean there are i think well known works of art that it involved a pit nudity there are movies that are deemed to have artistic value that have explicit sex scenes and if you look only if you are presented only with a screen shot of that scene you may very well think well that may meet the definition of obscenity but if you take it in context and you look at the entire movie then it doesn't meet that definition and so that's the problem with introducing the screenshots  and here we also think that the agent rings testimony as to as to the content of the video was also improper for the reasons race in our brief but i know my time good morning in may it please the court i'd like to begin by talking about atkinson which the chief judge sent a fair amount of time talking about in his reply brief mr gleason relies heavily on this court's decision and by extension the former th circuit's decision gibson to bolster the argument that the grant district courts jury instructions were plainly erroneous decent reliance on these cases is misplaced atkinson for one is factually and legally distinguishable as a matter of fact atkinson dealt with a basic bank fraud case that arose out of allegedly false statements and misrepresentations that were made to procure loans and over the course of the early stages of the prosecution this court described it as mutating into something quite different where the government was attempting to charge a broad conspiracy involving wire mail and tax fraud and the interstate transportation of money the issue of ak and sin as it related to counts two dollars and three dollars of the indictment which charge the defendants there with  bank fraud is that they didn't actually charge the defendants with executing a scheme to commit bank fraud and as the court pointed out in ak and sen there was an essential element of the offense missing now mr dixon concedes that the indictment here charged him with all of the essential jury and by having all of those redactions it was impossible to know what the jury was relying upon to find the underlying scheme to commit bank fraud and i would point out also to your honor's earlier question about whether anon decision has subsequently cast into doubt whether reliance upon gibson is necessarily appropriate and that case would be this court's decision united states vs and i may mispronounce the appellant's name very very court it was a panel decision i will be quick to add it wasn't on bob but they rejected the date defendant's argument that the district court somehow committed plainer essentially the same argument the mr jackson is making here by failing to instruct the jury suicide that they need to unanimously agree on what earlier theories they were relying upon for their verdict and this court furthers emphasize that the former th circuit's one thousand nine hundred and seven decision in gibson has been discredited by the supreme court in the case we previously discussed with arizona and as a result the court there found  reliance upon atkinson i think doesn't get mr pease in the result he wants and i would also point out that what mr dixon was charged with was the attempted transfer of obscene matter to a minor the offense of attempted transfer of obscene matter to a minor that's at issue turns on the act the criminal act of the transfer it doesn't turn on the number of images that mr decent chance for to who we believe to be a fourteen year old girl have a cheat he asked her transferred same matter i guess a jury didn't agree we could not be looked at in the three part miller test couldn't be applied to now of course the miller obscenity test requires and they could all be looked at and the test applied to it just jurors disagree about have the task came out after applying it to but there is no look at the material taken as a whole it doesn't require the jury to look at the material from beginning to end and again here i'm referencing the three videos involved which doug branch asked about the one thousand dollars screenshots that were submitted to the jury essentially what the supreme court has done as a functional matter is that you need to look at and not it's not fair to a defendant to look at an isolated excerpt where you might be depriving them of surrounding context that would give some evidence that it was indeed not obscene or doesn't appeal to the period interest but here there is no more that the jury needed to look at that would have cast any doubt on their verdict they saw all they needed to say all that they needed to see was presented into evidence and it formed the basis for a valid jury verdict of guilty on all count obscene yes i'm sorry suppose he sent twelve pitchers and a video in the same transmission the jury doesn't have to look at the twelve pictures and the video is viewed in its entirety they could convict based on that could they not if they were unanimous yes but again in that example your honor what they're doing is they're looking at everything which is exactly what the government says is what happened here they have looked at the images in your honour's example as well as the video and while they might find they i don't think know of requires that that if since for videos the jury has to look at all four of them to determine that there whether collectively they were obscene or not the jury could determine that video a is obscene but b c and d are not and convict could they not theoretically they call right their argument is we don't know that they didn't do that therefore we don't know that they unanimously agreed on the same one therefore there's error right and as you pointed out in discussions with opposing counsel with th sort of rises and falls on and whether or not introducing can show an actual harm so even if they are radically we can speculate as to what the jury may or may not have done in the jury room there is no evidence that any of these issues were in fact tainting the jury's deliberation would depending on the record if she had preserved her objection the district court had been given an opportunity to explore this issue and potentially inquire further just simply said overruled you would lose because he burned his own would then be course would argue as this court of subsequently held that it's not actually on point that in fact it's distinguishable so reliance upon atkinson does not get mr g s the result he seeks in this case because he cannot establish an error that is plain under is not plain unless it is contrary to explicit statutory provisions or on point improper precedent in this court where the supreme court and because i consent is not squarely on point and because the case upon which it relied has subsequently been called into question by the supreme court and this court in more recent panel decisions atkinson's doesn't control here if i may i'd like to take a moment and talk about the videos that form the basis accounts of in themselves and whether or not the jury had enough information to determine that they were in fact obscene matter i think as the district court thoughtfully and thoroughly explained in the rule twenty nine in the order to nine mr gleason's rule twenty nine motion the jury and all that they needed to see about these videos the jury had both agent rings testimony about what the videos displayed when agent ring viewed them all after being sent to him by mr decent they had the titles of the videos which were certainly obscene they had the fact that the videos were links to the web site pornhub which traffics exclusively almost exclusively to my knowledge in obscene matter dollars still images of the videos themselves that showed the beginning the middle and the end they also had mr decent contemporaneous descriptions of things that were transpired in the videos with who he believed was a fourteen year old girl which bears out that the government did not in fact take screenshots of the most salacious aspects of the video but rather took a fair not presented of depiction of the beginning and middle of and of each video so to say that the jury didn't have enough information to determine whether in  fact the three videos that form the basis for count seven qualified as obscene matter is simply that simply beggars belief they had more than enough information and as a district court found the evidence was sufficient judges questions about a lot of that case was actually decided by the supreme court in one thousand nine hundred and three so that predates at atkinson i would also point the court to a decision i think the government has talked about the supreme court's decision and shabby arizona continuing criminal enterprise statute and the supreme court held that when you that the governor and the the and i'm in my specifically allege the three prior incidents that would be would constitute the continuing criminal enterprise so i think that also helps establish the fact that this error that we have alleged on appeal constitutes plain error they were court was asking some questions about if the if the jury had to look at all four are author you videos and determine whether they collectively meet the obscenity statute but here almost all of the images would certain  sent separately so there was one e mail with one link to one video one e mail with one picture and so on there were some e mails i think that did contain multiple images and so the jury had to be unanimous about which of the which of those transfers and therefore which of those images constituted obscene material the government has also indicated there are factual distinguishment artists that  atkinson does not control because the facts were different the statute charge were different but achatz and self help but it was plain error based on gibson when those two cases involved drastically different things so i think the same principle can be applied here