sixteen exhibits the jury saw sixteen exhibits containing child pornography some of those exhibits depicted  sexually tortured by adult men one of them showed prepared us and boys engaging in orgy like activity with each other these images were so disturbing so horrific that jurors actually cried wiles you are they are made illegal by statute and why they are also part of the government's burden of proof there was no stipulation here was that we offered to stipulate court rejected that stipulation nonetheless trial counsel still conceded in opening statement to the jury that these images were child pornography and the defen was not that the images were not child pornography or that mr finley had something that he didn't know what it was the defense wise that they were child pornography but that someone else had gotten onto his computer  the government has as always the burden of proof they go for anything can happen during a trial as any of us who have been involved in them know the government's burden is beyond a reasonable doubt they try to cover all the bases so going back to my original question which was not intended to be glib you have a very tough road to hoe here don't you because we start with the with the evidentiary regime that is one of admissibility inclusion and we presume that a jury knows what they're doing your honor none of what she said everything that you said is true but none of it examines the government from role for a three the government must still prove its case within the parameters of rule for zero three the evidence cannot be i'm doing prejudicial yes all child pornography evidence is prejudicial written to include in its reasoning at various points that the fact that the district judge there did not you have a cunningham also talks a lot though about the law of diminishing returns when child pornography is paraded in front of a jury and what this court said your your client is actually in some of the of the exhibits right his hands are allegedly and some of the videos for opinion is however because the district court abused its discretion when it decided not to watch the videos you were admitting them under rule for a three it's underlying rule for zero three determination is not entitled to the full range of deference that we would normally give it on appeal and that is a huge evidentiary distinction from what we have here but a district courts four zero three ruling is also not entitled to deference when there's no way on there is a major distinction here between the court not having gone through a winning process with this panel may certainly conclude the court did and the court not articulating its weighing process where its reasons on this record which i would concede that the court did not do here but what is the import of that were you there is nothing for this court to review and when you have  inflammatory that jurors are crying more than one of them and when we know from the descriptions provided to the court that even understanding that all child pornography is prejudicial some of the discretion yes in allowing the videos to bid that what's so what's the problem here i'm not sure what you mean by what is the problem and then what's the problem we have what's in we have enough in front of us yes make this determination and that's a determination we frequently make as and the descriptions in the reactions of the jurors it for themselves to show the incredible prejudice in the end do prejudice and there is a lot of discussion and cunning government need sixteen exhibits even understanding which i just smith said that they have the right to prove their case and maybe need to put some of it on did they need sixteen exhibits and did they need ones that were in cunningham though the reasoning does not completely hinge on the failure to look at the images there's a lot in there about cumulative effect and about the aggregate effect when you have so much and that there is a law of diminishing returns him and reviewed by this court a similarity in nature but an increase in quantity here and under the law of diminishing returns that this court discussed in cunningham this was too much and  court talked about how the prejudicial value goes up the more images you see the purpose of value goes down some of the worst of the images were shown to the jury at the end of all the exhibits so you have the worst of the worst before the jury at a point where prejudicial value is extremely high and probative value is nonexistent rule would you have us craft here and dealing with trials valving child pornography there's not a role of numbers i think it's a combination of looking at numbers and quantity and if all sixteen images were of the nature of exhibits for a through for he we not might not be here today i think it's a combination but i think looking at cunningham we have equal quality  greater quantity and so really the only rule is an interpretation of rule for a three and the constitutional right to a fair trial i don't think is it when you say is there a role do you mean so many record for a three findings at least on the record the court said that they're going in the will allow the government to offer the exhibits i mean what do you want us to do in these cases how described by implication why courts of appeals realize so heavily and review subject with abuse of discretion this kind of evidentiary ruling it is and that's the problem here you have nothing to rely on to a district court simply saying this is part of the government's case and it's probative value is greater than it's prejudice and then jurors are crying you don't have enough to review you have to go to the end midges descriptions of which have been provided and this court has to make a determination whether this should go back for judge cohere to do all the for a three way or if some is so inflammatory unduly statutory interpretation issue regarding count one and i would be happy to provide additional argument on that if the court would entertain it girl has given a basis for and one that has troubled me a bit through our work on this case is that the government be klein the stipulation that was requested by the defense and which would have then obviated at least some if not most or all of the evidence that the is if not a red herring something that we shouldn't consider this is purely  offer of a stipulation may be one factor for the court to consider in that regard but i believe under the facts of this case that doesn't apply because judge cocoa at pretrial made a suppression ruling in favor of mr fenley which dramatically affected our burden of proof in this case would you agree that the district kooris explanation was extremely spare in terms of setting out his here but i think again if you look at the entire record if you look at what he said in his pulmonary instructions if you look at the fact that during the clinton instructions he used a juror who said he could not hear the case based upon the description which he gave at that point which i think blows into the whole analysis here if you look at before agent but testified there was a description and there was a color quit and then after when the judge actually looked at the images unfair prejudice not just the prejudice and so i think when you look at the whole appendix and look at the entire record you see the judge how they are asking if i have another question and then should his  r correlation between the u s amount of analysis and the judges for a three rulings and the amount of deference we should give to those rulings i know we are able to look at the record and make our own decision we do have a decision here but  it may be stare should we be recording a less deference to the judge's opinion based on the fact that it's a little short i think the question for this order was it wasn't legally adequate and the laws are very clear that he abused his discretion no one can standard is the standard is very clear but i will confess that we have not been i i've been around for twenty five years and watched these cases on for over four and four o three bounce around and this court has on a number of occasions kind of lectured the district courts i can remember one reversal but most of the time it's been you need to be more careful in explaining your reasons but we'll review them here but we do really really needed n why shouldn't we afford less deference where is here we really have only a conclusion on an explanation because the standard is was judged coho arbitrary fancy fo run reasonable on that standard can be met here and i think there's a clear the distinction it would take you towards progress if that's where the court wants to go because we agree and cunningham has created an important crossroads in this citation i have an over reliance upon it by helen hall's calls upon this court to deal with this question but there's a distinction between a for a fourteen year old boys which was reflected in the very small sample of videos which were played i think the court also has to take into account that we use restraint as the prosecution here we're talking about thirty thousand videos hours  can see in this case we can agree upon descriptions the descriptions we submitted to the court differ a sticking lation is going to take us down that same route we are still entitled to these very important cases which oftentimes  not child pornography cases that's not what the statute says may mean i take you back to your characterization of cunningham sure because if you recall i i read one of what i believed to be the relevant portions of cunningham limiting its reach would you agree with my character i simply agree cunningham is limited to that that if we have no problem if that's the essential holding of cunningham where  we have a problem is the merging of four a three and four a four b analysis which we think is unfortunate where we have a problem is making at this corruption control we have a motion pending before this court to lodge these images what i was that you cannot you have to trust the jury you have to believe that the jury will listen to the judge even in the first world trade center bombing a corpse of a pregnant woman who was killed was shown to the jury judge  used that very language in one of his evaluations of the seven and he used the term we have to confront sometimes a bloody course he told the jury in the plumbing or instructions you're going to see things that are very disturbing he looked out on himself and is accurate going forward that most of the circuits are not in line with cunningham and most of them do take into account for a bright line rule if there is one the quantity shown whether it's a small number representative and that's what we try to do and that's all this case comes down to isn't it quality i mean i've tried a lot of homicide cases in the old days that there's the nature of the evidence in those things is often very very off putting to see the least  it's up to you you have the con i would just say in summary we believe there's no double jeopardy issue here because there was a receipt and distribution receipt and distribution counts in the complaint and the argument that somehow a sleeping child cannot be harmless error is a very high standard to overcome as this court defined it and cunningham there must be a quote sure conviction unquote that the jurors were not unduly or improperly influenced by this evidence the jurors cried we can't meet that standard here harmless error mr pickton said i was challenging more than the others five or excuse me three and it's actually five that were the worst of the worst our position is that they were so inflammatory that it contaminated the whole deliberation process the whole jury trial as far as the motion to lodge exhibits which the government filed on friday and i was unable to respond because our office was closed on furlough but the government is asking the court to look at exhibit one in exhibit for each of which is a cd containing more child pornography than the jury actually saw if this court grants the government's motion we would have jack to the extent that it allows the court to view information that the jurors to not see that would be improper as far as the descriptions i don't think our descriptions differ much at all mine are only more detailed than the government's the major discrepancies in  descriptions that i saw were first on exhibit one a we had a difference on the length in terms of time of that video i had someone with me with a stopwatch if mine was the one that's incorrect i apologize to the court it was inadvertent but i don't think it makes a big difference this was still over four minutes of material and cunningham it was over two only two minutes and no still photographs there were also still photographs here the other debate between me and the government on the descriptions is that they say for a did not contain pornography but i say that it did and other than that i really don't think our descriptions are vastly different they are only differing in detail not in terms of the actual substance and if the court has any more questions i'd be happy to answer them we thank you thank you