please the court my name is emily copeland i represent the appellant tommy lee jones and i reserve five minutes rebuttal i graduated from law school in one thousand nine hundred two and i went to work for perhaps the most contentious district judge in the entire world this appeal pains me because i have a soft spot for containers district judges but this appeal comes on the heel of daniels in two thousand and fifteen when the court reversed this district judges conduct of a trial smith in two thousand and seventeen where it didn't reverse but it found comments very troubling especially about threatening the defendant with contempt if he testified and now i'm standing before you today raising among other things a bias claim on this case in this case the most important witness presented by the government was f b i agent nichols nichols was called twice he was so important this case demonstrates that the government was allowed to question repeatedly agent nichols without redirection or without an error in eruption in the first go around the government made it through seventy two pages in about an hour and a half of questioning without any interruption by the district judge the thirteen pages into cross examination about peer to peer software in the genesis of some time and date stamps on exhibits shown by the government the district court in iraq's the interruption requires the defendant to proffer why he is asking these questions why these questions are relevant the judge says he doesn't know how any of these questions are relevant besides this witness has been very knowledgeable and very forthcoming but this was not done by any objection to the government there is no objection that this was irrelevant there is no objection at all this is just an interruption by the district court thirteen pages into cross examination my track your cohort ask for a sidebar instead of doing this in front of the presence of the jury and the district court says no thirteen pages after that interruption the district court says we will need a break soon in the defendant a few pages letters as well this is a good time for a break in front of the jury the court says again we're wasting the jury's time on a lot of this meaning the entire defense cross examination of the government's most important witness later on even still the court says we're spending a lot of time doing something that isn't necessarily clear to me and this is again directed at defense counsel during the cross examination of these parts are the use with respect to the photo there's a lot of back and forth about the admission of a photo and arguing about the photo of the unnamed man in the unnamed woman judge because there is so much contention because there's so much else in the record i have not detailed any anything about the photograph of courtney jennings to date in my oral argument i am willing to let that remain in the brief that was the basis of dismiss count number one but so the events that you're complaining about have nothing to do with the photo or that were argument today but in my brief no i do very much complain about the photos but the governor but can virtually converse what i'm asking is the events that you're complaining about because part of the government's response as i read their brief is that yes the judge was cantankerous but the reason he was contained chris because you kept bringing up her counsel kept bringing up this photo and that's why i'm trying to focus on whether the thirteen pages and thirteen pages you're talking about relate to that or don't relate to that they do not relate ok that's my i do not relate to that there is a discussion about search warrant photos that have nothing to do with this photograph of courtney jennings that is the subject of so much dismay and discussion the search photos were taken the government has unfettered access to question agent nichols about's search warrant photographs but mike trout counterpart does not five questions into his own cross examination of agent nichols about these same photographs the court interrupts again the court tells trial counsel we're wasting time you need to proffer why these photographs are helpful the defendant proffers a reason given by the government but is not good enough for defense counsel the defendant then says will this come goes to address a defense judge then the course says if you're going to use those you've got to tell me how it shows these things were there in hitting were there any screaming you're wasting time this is done when the judge acknowledges that he hasn't even seen the photographs but he's telling that the defendant that these photographs are not going to support anything that the defendant has to argue this actually came up as a jury instruction not dressed but the search wanted these are photographs about the those takeover entries with guns drawn and a lot of light and a lot of noise that woke everybody up people are running downstairs then talk to the liturgy of the search is that something that the jury needs to decide your honor the realty the search the the motion to suppress was denied that one of the jury instructions went to the circumstances surrounding my client statements in my client did make a statement immediately following the execution of the search warrant and like i said there was a jury instruction that was an object to consider whether the weight to give i'm i think it went to an number of his defenses number one he contends that this was a very small house it was very crowded so that when he allegedly was viewing child pornography someone in the house would have known about it because there were so many people in the house his mother was recovering from a brain injury number two it meant to his how the search was conducted like i said it was kind of one of those overpowering search i believe there's testimony that they thought mr jones as wife had a concealed carry permit and so it was asked these questions and i'm asking i mean because the judge interrupt them and ask what was this is relevant because it doesn't seem relevant if the way they were at the nature i understand but the way they were asked judge saying is that this would have been better as a side bar which which my trial counsel repeatedly asked for can we didn't approach judge can we have a sidebar about this and i guess the judge wanted to run this is a freight train because he's he's trafficking all of this information before the jury and it just it just keeps going this there was a whole exchange the second time agent nichols testified about asking him about a report that he testified  about on direct examination he couldn't deny five the date that the computer while sitting on the stand he could have been a file on the stand the date that the computer was first used i believe the peer to peer software was installed in two thousand and fifteen the computer was first purchased in two thousand and twelve or two thousand and thirteen he told the judge he needed five minutes to do it at age nichols did in the judge the two minutes would have been fine five minutes no way during mr jones's testimony mr jones himself you overreaching like mad he tells mr jones in front of a jury it is this constant telling of the jury this is what i think this is irrelevant you're not proving your case this is overreaching you're not i it goes on and on on and the next question i'm sure that you're going to ask is was there any instruction given about how the jury should consider the judge's comments of course he gave the jury an instruction you're not to consider anything i've said as evidence in this case these are simply my comments but at some point the balance tips the type of things he's saying the frequencies with with which he is saying it very much shows his bias in the situation this is the guy that is telling the jury when they have to be there when they can leave when they can go to bath to the bathroom when they can eat lunch you may also notice that this was a six day trial there were only ten and a half hours of evidence a deuced of the trial if it hadn't been held from about nine to eleven over the six days this probably would have been a two and a half to three day trial so this is despite the fact that it lasted six work days it was a fairly compressed showing of evidence which also favors the fact that my client did not receive a fair trial based on these comments i want to touch briefly on the restitution issue this sort of bleeds again into the judicial bias defense counsel at trial face comments like in response to a rule for fourteen motion that  or an alibi motion i'm going to grant the government's motion are probably going to grant all the other motions to at sentencing the p s i i objections were delivered and the judge says you know i will what the government says we're just moving on here this was not in front the trial counsel says this really should be to two thousand dollars based on a judge weinstein order and the judge says kind of forgets about restitution people keep reminding him sorry really have to decide ten thousand or two thousand yes the government says you can take this under advisement that's really the right question though isn't it well i think the read right question the two lawyers in front of you i think it really is is it ten thousand or two thousand but it also is what did the paralyzed factor say and i'm ou question thank you it really goes to he needs to do some sort of considered whining at this what is appropriate ten thousand or two thousand there is no order saying i've considered apparently  there's there's nothing there is just an amendment generally gives no reasons he picks between the two that are in front of them were act although what i mean we've had a number of cases involving vicki and ones like it and what what could you what could you really do other than pick her split the difference i mean you know in thinking about it as a as a judge the paralyzing factors don't really i mean nobody's presenting evidence before this judge of her psychiatry or anything right one side's relying on whatever vicki asked for in the other side's relying on judge weinstein in a completely different context there is a great deal and i believe the government will tell you that and i speak from my own experience our the vicky attorney some it's about an eight inch high stack of documents saying these are all of my expenses is three point two million dollars but there should be some analysis because ten thousand i seems too high there was the case out of this court that good morning ma'am please the court my name is maggie smith and i represent the united states of america as a p r district court judge in this case was certainly frustrated and perhaps exasperated but the defendant received a fair trial i'm going to go right to the third issue which is what defense counsel spent most of her time on the district court judge here and i know this court is for million or with his record as he there have been several appeals coming out of the district court from this judge regarding bias or misconduct but here the district court did not mistreat the defendant or defense counsel there are a number of facts that occurred during this trial that make this case different than a case like the daniel's case first the district court needed to control the defense attorney's behavior the photograph that was the subject of count one was deemed and ruled by the court to be inadmissible as extrinsic evidence he was not allowed to show it to the jury as an exhibit or opposing counsel  warrant when he showed up to court he had one copy of those pictures he had no means by which to display them on the television screens which would have taken a simple plug in to a computer he didn't stop at kinko's or any store to make copies he had twelve pieces of paper that only the witness and he could see the judge didn't get a copy the jury couldn't see because he wasn't displaying them in a way that the jury could that photo was the following count one we allege to be child pornography that's different than the twelve search warrant photos that i'm referencing now which were the photos that miss copeland was bringing up saying that the district court was insisting on the defense offering a proffer as to why they were relevant but he wasn't expressing its aspiration about not having it enough copies he was or was it about when he's expressing exasperate the things that she's complaining about what she is complaining about is the four times that the district court sue was spontaneous interrupted the defense counsel while he was cross examining special agent of what's happening in the courtroom you know like i said four times the district court judge who was spontaneous interrupted the defense attorney what during that cross examination in the powers case the district court judge had interrupted defense counsel twenty six times and this court found that not to be judicial bias there is probably a spectrum of behavior that can go from being frustrated to being exasperated to being flat out misconduct and i think the cases that have found judicial misconduct are those cases where the district court judge is questioning witnesses personally is attacking the defense counsel personally and in the daniels case the district court judge had  made reference to the defense attorney dancing around like a preacher and used the term flimflam and made some derogatory comments about the defense now your unit could have been worse i'm saying that as the court has to make a and in looking at the transcript of this case the interruptions by the district court judge mostly concerned it's see of time and relevance the district court allowed the defendant to present his case to the jury with the exception of the witness cura jones who might objected to the testimony outright the district court judge did not require him to make an offer proof of what she would testify to and apart from her testimony the judge never once interrupted the defense attorney when he put on his case he called for witnesses and he never interrupted that testimony the district court properly required the defendant to behave himself during his testimony there was and a point where the district court judge said that the defendant was overreaching like a man in his testimony and if you read the transcript in the situation the way in which that phrase was spoken was referring to the defendant consistently offering a narrative every time for that was in one of those comments was in response to my objection to the defense sorry to the defense question and in the context of that  commentary his comment that he was forthcoming had to do with the fact that the diff the witness had been answering the questions that were asked he wasn't dodging he wasn't trying to play cute or our say or try to take the question around some different way he was i think it scuse me sustaining my objection in couching it in terms of he's answering the questions that you're asking this district court judge always asked the parties if they had anything for the record every time the defense counsel asked for a moment in order to confer with his client or another counsel at table he was allowed to do so and by my count that was six times during during the trial there were three times that the district court judge offered curative instructions the first to happen to occur at the beginning of trial when the district court talked about his comments on objections even discussing his facial expressions and the tone of his voice should not be given any weight and there was an instruction on interpret in rulings when the district court said don't interpret my rulings as any indication e if we treat activity with there were two sets of activities for the five level increase you have to have more than one right the first one was with one person and second one was with his stepdaughter was whatever you call or his daughter i guess it was it was his stepdaughter but that not necessarily so the two separate incidents can be with the same person they can be but here they were there were two different people right there were two different people and i asked about second you might ask about the stepdaughter ok which the application notes says that the phrase sexual abuse or exploitation means conduct described and there's a list of u s code sections which one has to be one of them right yes and as i was reviewing this last night i think that this couple and was correct in terms of the incestuous relationship while that exists in state law i don't know that we have a federal counterpart to that you would concede that it's not proper to rely on i think that that's not yes i well i think that i've misread the application for that however the two instances can be that the defendant had produced child pornography with courtney when she was seventeen that's this that it's this very photo that you've said yes that's absolutely not again he didn't really didn't rely on th means by which this enhanced mic could apply up if the judge didn't rely on even really a virtue it you know there is a general rule that we can rely on things presented in the record but aren't those pretty factual i mean it's disputed who's in this picture it's there's no specific evidence about how many times he molested the sister way back weren't wouldn't those be things that on remain and those assuming we were to rule that way you could try to prove them up at re sentencing that could be but i think the record would show by a preponderance of the evidence that by a preponderance of the evidence that the sexual offenses against the eight year old sister even if we just count that as much on the count one picture the production of child pornography there was a lot of evidence in the record about about why we believed that that was the this at least and i don't know whether it's in the record or only in a footnote claimed that it was it was she who was involved not the stepdaughter she claimed yes she claimed that it was her  in the picture we presented the great injury returned an indictment on that picture as being the stepdaughter the picture and in the record in my detail of the facts surrounding that picture it was time stamped two thousand eleven it was taken in the defendant's basement we could tell from the tile floor and in the background there was a baby in the background of the picture that matched the age of the defendant's grandson in two thousand and eleven when that picture was taken and the defendant himself can fast that the stepdaughter had been performing oral sex on him as early as age sixteen and that he had photographed it and that is all in the record so this court could find  that the eight year old sexual assault back in one thousand nine hundred if you if there was only one incident and i do think that the charging document and the conviction documents spanning a month period you could infer that there was more than you have to adopt for the people to determine are and i think it's in the record in a manner this if we were to determine that a remand was appropriate for that what would be what would how could the government object very much to saying that the court and this case was different than the judge weinstein case in the judge weinstein case there were possession of images in this case we had videos and distribution all of that it seems to me i can't speak for my colleagues would have been enough if the judge had said yeah my colleagues candor on that issue and now it's time for a moment of candor to for me to in reviewing the two g two point to be five and handsome and i was simply not curious enough i didn't look up the gross i statute under ohio law i didn't raise this but there's a case called u s versus ham and it's six thirty seven federal pending eight ninety seven nine or one six circa two thousand and sixteen the talks about if you look at the federal statutes that that constitute the gross type of sexual abuse or exploitation that will sustain a pattern adjustment under two g two point to be five you have to look at a sexual act like intentional touching not to the clothing of the genital you have someone under sixteen years old and that's a definition through these these various federal crimes that are listed in the in the in the application notice that what you're talking about i am judge and i'm sorry  circuit precedent if it actually is so i understand i cannot raise arguments for the first time in or argument i didn't understand the names one is the sister and one is the daughter one is that one is the sister you know something about the daughter you're talking about the sister correct  and i appreciate her candor with the with the stepdaughter i don't even think the sister one counts and i think that that would be something that should be raised on remand also if there are any further questions i would be happy to answer them otherwise i'll cede my time back to the court all right thank you thank you