the next case on the calendar this morning is united states versus for larry you know number seventeen twenty three seventy one sentence it is in essence of life without parole sentence the judge gave little or no consideration to other thirty five fifty three a factors besides dangerousness the judge was concerned about dangerousness he focused on dangerousness to the exclusion of other important factors it has been said by this court that it is appropriate to look at the way that a judge gave to each factor and to determine whether that was an appropriate way to be given to that particular factor what factors the judge did not give sufficient weight to our rehabilitation including the statistical reality that sex offenders are no more likely to reset of a than other offenders bianco specifically  decided it adversely and i thought i was clear and i'll try to be even clearer by saying we disagree with the weight that he gave that particular factor he did consider the factor of  rehabilitation however the judge in all due respect to judge bianca was not an expert did not consider statistics did not  consider the reality of the studies that have been shown that sex offender treatment works and that the sex offender treatment in the bureau of prisons is perhaps the best treatment program in the bureau of prisons and that it works it also is true that people age out of crime and the statistics are clear that as a person an offender who's incarcerated gets older he also is less likely to recidivate when he gets out now judge bianco young violent crime i'm putting that to the island i'm trying to just to pose two sets of statistics the statistic that i referred to that you just asked me about is across crimes however there is statistical evidence that sex offenders rescinded day know more and in some cases less than other offenders and i'm trying to putting those two side by side and they asked me to reconsider them both at the same time yes you've made some double jeopardy arguments i wonder if you could turn to those in particular to overlap you argue it between section double jeopardy was raised between these two but i don't believe that double jeopardy was raised between count exploitation in count three and it is our argument that this is may have not been preserved as well as it could have but it is plain  because they are essentially the same crime will be involved in this case the same facts support them but if i understand your given subsection c requires that they  are outside the united states and a requires the defendant you know that pornography was produced using the material that's the actual subject and then transported by interstate commerce why don't you think those that allows prosecution on both theories i'm just i just want to make sure i understand the defense response to that argument by the defense response is as you just indicated that the facts supporting the two charges are the same elements so that to show double jeopardy where the element is required one but not be out there and vice versa but it's the way that mr valarie a was prosecuted for this essentially the same crimes with the same elements the fact that one he was not prosecuted based on the fact that  his particular prosecution was not based on the fact that he was outside the united states it was inside you know is that what indication do you see that congress intended them or did not intend them to be treated as different crimes in certain circumstances other than midst of areas there could be prosecution under different theories for different crimes if i understand your question asking part of what we look for in i think and in assessing double jeopardy in addition to the block birchard test is whether congress was in visioning that that these should be treated as separate crimes or in this case it's a good there's some suggestion that the development of the statute suggests that occurred in the ukraine he's charged with having solicited it and the jury was charged that to find him guilty of the eight count they had to find that the criminal conduct at least in part occurred outside the united states right correct that was no requirement for the sikh conviction right that's correct ok but the c count required that the depiction of pornography them be transported in interst commerce the government says that was no part of the eight count is that do you dispute that honor i make the point that mr verio both in terms of the way the government prosecuted him the way the government opened the way the government was essentially the same theory yeah to give appropriate weight yes as i said when i began this is a life sentence mr kaleri i was now fifty three years old the judge could and should have considered the life expectancy of a man that day and it is as as recently as yesterday seventy nine point four years of age now you also when you're somebody how could the judge not know i believe the judge knew and intended to give a life sentence the national recommendation by probation was for thirty five years i'm just saying how could he know it i appreciate the point your honor my point my argument is that he should have considered it and it correct and that if he had considered life expectancy he would have given a more reasonable sentence that didn't go to the outer limits of reasonableness which this one did there is an expert report in the record by dr barr day who indicated that mr vaile aereo has now know however the point that dr barr day may which is that mr vireo was of moderate risk to re of fand at this time at the time of the sentence not in the future after sex offender treatment but at the time that he gave his opinion was that he could be treated and that he could get the benefit of treatment is judge that points out that opinion was given without the benefit of the additional facts that were made available through the pre sentence report and the attendant korat is correct and dr day did say that if those facts were made no to him it may might have changed his opinion thank you i think we have the argument you have two minutes of rebuttal we'll hear from the government  have please the court my name is alan bodie i'm an assistant united states attorney in the eastern district of new york i'll start with the the substantive reasonable a since that's kind of where we left off here judge bianco clearly considered and said that he believed this to be an effective life sentence which given the amount of work that went into the sentence here he indicated he'd carefully considered we had a phatic zero hearing where he heard from or heard a lot about the history and characteristics of mr hill area some violent rapes one of the women who mr valarie oh in the p s are said he had a good relationship with he she'd actually left the country because he had viciously raped her and broke her teeth  mr valarie o had a very long and violent history and a history of recidivism at age thirty nine not a young man he had the incident at the spur of the splish splash water park where he groped a woman tried to penetrate her digitally while he was on probation for that offense probation officers found a cache of weapons they also found pornography which he was not supposed to have including pornography numerous videotapes where had taped women who didn't know they were being taped and he in the in while he was on release on probation for that splish splash attack in therapy he wrote a letter mocking his victim he incorporated a business while he was on probation to try and catch more women on dressing is what he admitted to his probation officer in the state and then the crimes here at approximately ages forty six forty seven were very deliberate he scripted and paid for forty six videos of a two year old being molested by her mother for twelve thousand dollars he paid he had hidden cameras all that violent conduct so just bianco clearly clearly thoughtfully considered all the thirty five three fifty three a factors here i'll turn  day and case it's clear that this court has found numerous times in the past where multiplicity is not waived below or was was not raised below it's waived i would note the defen and let me say i know now that under the current rules the rule twelve was changed i think so that you has to be raised pretrial at this time that rule is not yet in effect you know i would say in a case like  deliberate giving up of an argument that's why when someone asks for a charge and gets it they won't be heard to complain that that was the charge given well in responding to that i'm looking at a case see they were talking about quote a narrow exception to the waiver rule when a double jeopardy claim is so apparent on the face of the indictment or on the record existing at the time of the plea the judge should have noticed and rejected the offer to plead and specifically in so what i would say judge ready to your question is in this case in particular if it's not too much of a dodge for me to cite this case they did make a multiplicity argument as to some of the counts in this case and judge bianco accepted the defense multiplicity the argument as to those other counts so judge bianco i would submit so clearly i would submit even under a forfeiture analysis they they thought about it and they did so i think waivers more appropriate because they clearly spotted issue of multiplicity and didn't think it applied to the other counts that they now raise multiplicity for the first time on appeal and judge bianco is intitled i submit to to say to him self well they're asked saying multiplicity only us to these counts and i'm marriage in the yard to me it would mean vacate or of one of the counts right and then the sentencing yes why why would that not be appropriate but first i mean i'm not saying we won't find merit in the claim i asked mr freeman some questions about it but if we were to why why would that be appropriate really here well one i suppose there is no plane error here if if you allow but obviously if you find it is error then yes that's what you would have to do but but i s beyond the fact that there's there's waiver here there's no plane or as you pointed out under under our argument under block order that there are different elements factually here that was the case as well because count two charged did not include mailings  count three included mailings of the child pornography here was sent both via mail and via electronic means that two different right if it's the same as let's assume that it's exactly the same thing but it sa s by e mail by regular mail and by hand something different transportations than yes three different crimes for the same and that you could if you if you made the tape and sent it three different ways if it's the same tape in this case there's forty six different tapes it's not what would be reasonable to be to infer that congress was looking for different jurisdictional hooks rather than trying to impose different exposure and  punishment well i don't trip to ensure that the action is captured appropriately and punished appropriately while no i think i think the the the reason it was included in the protect act as we cited to the legislative history was to try and capture cases that weren't being captured with thank you in the congress in effect was making two separate crimes and allowing the punishment separately and cumulatively for those two different crimes yes and here they're the here the the the sentences were concurrent as to these but obviously they're still a special assessment issue but the you know because the elements vary so so greatly i would submit you know under twenty two fifty two twenty two fifty one anyway you have to know at the time the child pornography is created it will be transported that's not a requirement or trying to fifty one in ten there's the intent is not required of the time on fees created but let me ask a different question just generally looking at this indictment i was perplexed by the charges of sexual exploitation of a child from april one and twelve through november one twenty twelve and counts two and three and then attempted sexual exploitation of child with regard to the same child in counts nine through thirteen  separately in that way those those attempts were were charged tied to specific e mails those attempts were actually based on the evidence at trial that was presented and the e mails themselves those attempts were what made them attempt as opposed to every correspondence that did the same thing in the period from april one two thousand and twelve through november one two thousand and twelve except that the period was identified differently could you have started the sexual exploitation of a child in january tw and proceeded through november i think it's a question of you know to prosecution and because you obviously the government could have bundled them up into into one account and between this period in this period did do this but the but the united prosecution is clear here that it's each distinctive attempt to there's no requirement that we do that to the defense benefits in the attempt successful yes so each of those e mails were e mails that  resulted in things cent yes and let me say here judge the practical reason is this little girl this two year old kept getting molested over a period of time because of these continued actions by the defendant this wasn't this was forty six separate video so when he's asked asking for a new video to be made he's asking for that kid to be molested again and he was scripting it in detail so that's i think practically why i still wonder stand if it was successful why you charge attempt oh as opposed to a completed i think because it it was an e mail and we're hanging it on the e mail but i guess it could have been charged as a completed one as well i agree with that yes yes it could have been a as well i asked just because when you when you add up all the thirty year sentences that at that are associated with each of the counts of conviction the sixty year sentence looks war within a reasonable range then it might if charging decisions were made otherwise i see what he's saying yes and all the thirty year sentences were all run concurrently and then there was a twenty year consecutive  for some of the transportation counts and a ten year consecutive for possession but the judge judge bianco obsolete but of run it as thirty years one of the thirty year counts for jack jane doe number one and one of the thirty year counts for jane doe number two  would have made logical sense as well there's a lot of different ways could be done i submit unless you have any other questions getting back to my earlier argument there could you move over by that microphone yes i'm sorry getting back to my argument of the outer limits of reasonable ness i was thinking about something that dr bard and i'm also thinking about that this sentence is a sentence that is much greater than necessary and i think judge bianco failed to heed the admonition that sentences statutory admonition that sentences should not be greater than necessary back to bar days that mr valarie oh did not choose to be victimized or to see his normal psychological and psycho sexual development be derailed by a monstrous father  humanity in our opinion was missing from judge bianco sentence if you have no further questions i'll sit down thank you very much well researched decision