impeachment it was it was not offered it was offered on direct and more importantly the type of evidence that was being offered concerning these of course were very prejudicial in the sense that they were dealing with the the hate crimes that was a four or three type case it's it's for ever been a rule in the circuit that impeachment evidence is admissible entourage so why wasn't this useful as it  of what all what we have known as the first amendment type protections dealing with fiction and the distinctions that were made as to the other types of cases where there was alan or the other type of cases which brought in other types of literature dealt other materials whether they be nonreligious your peers that it was not in literature in allen as well as pictures of the defendants themselves in gauging these types of hate crime situations so that if there is a difference i'm al primary job is to make these calls your honor your honor the important thing here is the fact that it was shown by his own admission in the record that he didn't read all of these stories and so is to make that decision because you've got to make those decisions in the context of a trial in the dynamics of a trial and of the concern down the road in terms of what happens with this particular case if in fact you have a situation where it's a robbery and you would be able to bring in if an individual have a dark day afternoon or if it was a situation where it was a rape in high plains drifter w have back in the fifty's people used to keep leftwing books turned with the spying and so that visitors to the house would see the title but i would imagine that if they ever got searched those might be used to show some if in fact you have to prove as an element of the crying that in fact an individual has racial animus that it's important to look at these types of things and once again those are on fiction situ a mother and that's what the government wanted to prove good kind of go back and forth there was a period where there were these stories that were underlying the words were going to be used to show there was a similarity with the issues that came out of those e mails or the e mails or the  there are elements of these stories that difficult for mainstream people to read and to deal with from a literary standpoint and the senses that he's a bad person  i wonder if the admission of the evidence mattered the defense seemed so outlandish to me just right my thought frankly i'm reading the record was so you keep the stories out so what the guy get convicted anyway well they had it's e mails  is emails are really pretty impressive that showing that his intention was to travel across state lines to have sex with a fourteen year old and then he spots the woman and she's obviously twice the age of the prior bad act however since we're now sitting bang that alternative holding is on the table is there a reason in your view why we should not receive from that alternative hol children is there anything in those stories the fact that you have a bunch of stories whether it's on your p t a or in your bookshelf or on your computer is there anything in the the content of the stories he utilized and he incorporated them into his chats and into his acts and in specific he the stories of many of the stories talked about little girls when they get their periods whether they can get pregnant and his chance on each thirty seven of the supplemental excerpts of record he said to the girl may i ask you a personal question do you have periods yet one of the stories that we entered into evidence also talked about and that yes what if we show up show up in a room with a knife in our belt well so you know what i want to know is what explains the government's judicious attempt to introduce all one hundred forty stories as you can tell i read every word of this trial a couple of times and that turn this thing into a train wreck why does the government try to put in one hundred forty stories where most of them aren't relevant instead of just the five that ended up going and what your honor initially we were talking about in trying to twenty one of them and the judge and let me lay them out so you can explain why i am taking one is there's a difference between fantasy and chance my guess is that a lot of people have sexual fantasies that they themselves disapprove of and would never do the second concern that i have this it's a different thing to say the fantasy that you need to prove is sex with underage girl and the fantasy that the story is going to prove if this is if you assume the fantasy and then through the same thing are incest different kind of misconduct and i'm wondering fantasy as opposed to reality i said fantasy as distinguished from intent people may think this is all if somebody really does you wrong in your office you may fantasize running them over with your car  is similar to the crime you're charging but this literature the content in the literature is similar apart from the incest there was also significant talk about the children right to show us about what we think of the next change he incorporate this is not a use of your possession this is accused of content as well he incorporated and he adopted the content into his ass and to his chats and more importantly the trial judge exercise discretion went through several hearings and we summarized the evidence he read he read one story he read the part of the second story and then he read all of the highlighted portions now at the time that michael highlighted fortunes that's what he thought was going to the jury he thought that the stories with highlighted portions and he talked about having an agent testify will these highlighted portions are what's relevant and that's when he read that but i don't know what happened the whole story that's right because that was the defense's request the defense's request and that is why any of this has to do with four of four of the in the first place to go back to one of the earlier examples if there were well let's say there were a possession of precursors to manufacturing position on the alternative holdings rather than just the intent which was from thoroughly the way as explained by the dissent and in the panel decision when the court says there are even more fundamental reasons why stroke magazines and fictional articles with invisible that's an alternative language holding and that's after the dissent discussion and then the court goes in as judge kozinski indicated on his for a one analysis indication that they're not relevant at all and then points out it tended to show that he looks that he reads but that he didn't factually do so that there was a holding by the court under very similar facts that there are relevant see and then goes on in another holding that it's you can't use it for four hundred four b because it's not a bad act and the materials are very similar to that and then not only it goes on to make and third alternative holding that even if it were otherwise it would be improper under for all three because it's simply too prejudicial and of course that is important because in this case even the district judge had a tough time getting through the story and i have and i've read all the stories that you admitted and i can understand why he didn't it's another question whether he should have kept them out without fully reading that's another point i think i'd be very help if you could take all three of these alternative holdings and indicate how the government just buys those because if any one of the alternative holdings holds up then i think well my understanding a for a for b is that it's not admitted for character propensity but it is admitted to show certain other things including intent as far as for a y n goes this and this evidence was clearly relevant read it the judge asked us the trowsers asked us that question as well so we had to show and we did show by tracing through computers that he had to go on the internet and search out these stories after he did that he had to download them first to think you understood the distinction i was trying to drum i'm thinking a lot of people want adventure movies like rambo and they fantasize about being rambo but they have no intention whatsoever of  however it might be used with the crime and for a for b this is quite distinct first you have to know what is the prior art and then you figure out if you're using that to prove intent is it similar to the one down the road so what the defendant had a prior intent to engage in sex with children was admitted that it was improper and although it was the case where the government kept telling him to have sex with my daughter you know he kept saying i don't want to do it and the government they just kept saying oh you not clear on what you're asking your honor i argue our discussions so far have florida really gone on the alternative holding suppose we decide that alternative holding is not going to be the law of the ninth circuit all we have left is the intent argument that was outlined by judge try in his dissent my question is do you have a response can you show where he was wrong on his intent analysis the  and i think ultimately that is what the court said in the opinion and it's a for a one issue on relevancy you know even if it's in print and so you still have to go through that analysis to know whether it's more prejudicial program i think clearly the district counsel counsel of government knew what your defense was to the right well they were anticipating of based upon the statement that been made by our client yes or and your briefs and your briefs ye