well you're the next case united states versus ash have difficulty fathoming but he just engaged in those fantasies over the internet with like minded individuals often through a website that was designed for fantasy seeking like minded people mr ash is now been convicted of two conspiracy counts based on his wasn't just over the internet there were phone calls there were meetings there was purchasing of equipment right yesterday there are a number of different facts here and as a like minded individual there were certain gathering of materials as you as your honor said but the government's burn here is to show that that beyond a reasonable doubt that mr ashe had the intent to actually go forward to actually engage in the hands sorts of acts that he was discuss quintessentially a factual question don't you agree whether they were fantasizing or whether whether they actually intended to if the evidence equally or almost equally supports a theory of innocence as it does guilt then you know and that was a standard to kill aided by this court in the gilberto valley case and it goes back a long way lorenzo to model there are a number of cases in the accepted them and it was equally reasonable for the jury to do as it did and draw competing inferences that isn't what i read judge carthy to be saying i think that he was saying the jury was invited to find one way or the other but it reasonably found and could find beyond reasonable doubt as it did that mr ashe had the requisite intent to do you have a place in judge part of his decision where he said it was equally reasonable for the jury to convict or not convict or to find intent or not intent the top of my head i do not your honor i don't think on this i think he said that i think that was just the government's as i said infelicitous characterization i think  are you know either they're almost equal if not in fact we would submit that there are more they they tend to show more that mr mr ash was engaged in fantasy and role play and i think there are a number of sort of factual aspects of the case that are very similar to the gilberto valley decision where judge garda fee also overturned the jury's verdict are on the conspiracy count this court affirmed that decision and those aspects are really relate to the sort of the concept of the vanishing plots for a just as one example where in valley a number of times he is alleged coconspirators set specific dates where they're going to meet and carry out their plan and then those dates would come and go no one would talk about it and they would take up discussion a few days or weeks later and say nothing about the missed meaning and judge sponsored valley mr valli didn't know the identities actual identities of the person who is in england and the read another person in australia he never met with any one person they didn't have any reality based interactions with each other here as judge chin pointed out they had met numerous times or several times at least they knew each other's identities they do each other's lives they made the purchase of mr ashby and purchases of equipment i mean there was a they visited sites they made very specific kind of plans and in the real world as opposed to just being on the internet and anonymous that doesn't that distinguish the two cases if only you and i think that that is a distinction but i think you know there are two real reasons why that that's a distinction without a difference really the st is that the idea that talking on the internet is is somehow you know not in reality not in the real world honestly enough sleep anonymously yes but i don't believe that there's a specific requirement in charging a conspiracy that you know exactly the true identity of your coconspirator if you inconceivable that that coconspirators would who actually possessed the requisite intent would make a plan set a specific date and then never again never follow through on that day and then would never come back and talk about it and here in in mr ashes case with respect to the st charge conspiracy there are a number of opportunities where the other coconspirators offered to him oh do you want to me in june do you want to me in july and he offered excuses frankly as lame as my cat is sick and the argument is that you know it's inconceivable that someone who would want to actually carry through these heinous acts would be be put to pause that underlie the vanishing plots theory in value in that was really central to judge god if he's decision in that case to set aside the jury's verdict now there are other the other aspects about purchasing items in the real world again we  and that's all on the record and i think the evidence in the record shows that there were discussions of plans there there are some and there is evidence that there was a lot of disagreement actually a lot non agreement and mr ash would save now that doesn't make sense you know i don't think so you know i have i have a sick pet i'm not available i don't want to do it what about let's talk about something different and they never really honed in on any specific plan about it again the idea of the agreement behind us vs there has to be some level of specificity about what has to be done how much specificity does a law require a farming criminal conspiracy and it's not like a contract case where you have to have an agreement a meeting of the minds on all the material terms i mean what what what does the government need to prove for a conspiracy of your own or it's your right it's not a contract but there does have to be some meaning of the minds and some amount of specificity as to an agreement about you know that covers the basic elements of the underlying offense that is that supposed to be the object of the conspiracy in here the discussions were so fleeting between women children this location that location that that time is nd as to the conspiracy involving the f b i undercover agent where mr ashe traveled to allentown pennsylvania to attend a gun indicated that not only did he never agree to go forward with any of the offered up plans and opportunities but he also expressed the opinion that he didn't know he had no idea what whether ash was serious or not and i know there was in that there is in the record a lengthy dispute about a recording that the government had that was cut off towards the end and judge cardiff accommodated the jurors and allow them to hear the tape multiple times with the competing transcripts but one aspect that was consistent through all of the transcripts include and was corroborated by the government's witness agent spivak during his testimony was that at the else of the conversation mr millet said i don't this special appendix and then he went on to affirm the jury's verdict and so he did not find that that the evidence wasn't poise he did not find that it was equally reasonable either way he found that the jury reasonably concluded it was a misstatement by the government in that brief yes yes your honor so so getting back to the point valley so this court's decision in valley really as the panel is already discussed that is not the case so the relationships began online but they moved quickly to st the phone there were repeated calls between ash and van heist and ash darrin the undercover agent he said that he judged potential recruits seriousness based in part on their willingness to get on the phone because only folks who were serious were willing to get on the  phone and go beyond the virtual world of the internet so could you talk about i mean i never mr ash melts and i've never really agreed on a specific day or even a general time frame they don't really agree on methods they talk about you know with will be the wife with her will be the sister in law whether it be one of the children that that seems very kind of you know free ranging in not only lacking in detail but concrete even could you address those concerns please your hon couple of points st is it's well established that a conspiracy only requires agreement on the essential nature of the plan and not in particular details and so the identity of the victim for example that wouldn't be  this court said that the and i'm quoting the identity of the targets of a conspiracy is not an element of that conspiracy and it explicitly rejected the argument raised by the defense in that case but there so there's there's so much lacking i mean you don't have any specific victim you don't have when where precisely how i mean they're talking about it constantly talking about it but they never really i mean if this were a contract case she would say it's on a forced book is they haven't reached agreement on the material terms and so what do we want to him that gives me pause that leads to my nd response to judge carney's question which is that they actually did agree on the essential parts so here this was not and opened an open ended agreement to kidnap anyone in the world so as i said the identity of the victim is not required but actually the jury here was instructed that the conspiracy here was a conspiracy to kidnap one or more of a very small number of people so that as mr van house's wife his stepdaughter sherry davis that's his sister in law or sherry davis children there were four children between the ages of one dollar and nine  group so there was a limited group of people identified in the jury instruction and so the jury had to find that the agreement was based on that objective that jury have to agree on any particular line i mean suppose you  with respect to the particular victim here just as in other circumstances so for example and human trafficking and human trafficking cases and gun cases there's no need to be unanimous about the particular gun and so here there was a particular set of people and there was ample evidence that the agreement was with respect to those people in particular and so there were numerous exchanges and conversations among a that initial discussion included the sister in law of the children so again photos were exchanged at this this began in march of two thousand and twelve toward the summer mr ben high says the focus expanded a little bit to include his wife as well and so there was a discussion among found hice and meltzer about whether they could they could kidnap and rape and kill his high says wife as well and there was there was discussion about that but ultimately there was agreement fans of the government had to prove that they agreed on the essential nature of the plan what was sensual nature of the plan so the essential nature of the plan was that one or more of the small subset of individuals in mr  isis family they would be kidnapped they would be taken to a location there was there was discussion about potential locations like the woods or actually there was a specific discussion about mr meltzer his basement which is a place that mr ash actually went and visited and they had a discussion about how mr mills had previously killed two people in that basement so there were discussion about using that as a potential location so kidnapping one or more of the family members taking them to some remote location and then ultimately raping torturing and killing them now there were there was lots of discussion about different ways they could rape torture and kill those people but i would submit i would submit that the particulars of how they would go about torturing the torturing the victims for example that is not a requirement for the essential nature of the agreement so any any of the various ways that they discussed torturing these victims would have fit within the essential that persuasive evidence that there was no follow through this is just all imaginary here ashton else agreed to meet october th or some time but never did he announcer free on october th and then there's no follow up why isn't that equally persuasive that they were not really intending to carry through and they never really reached an agreement so your honor the vanishing plots issue the concern there that was identified in judge cardiff is district court opinion in that case it was really about the fact that the that the agreed upon dates came and went without comment by the coconspirators that reflected the fact that they didn't really agree or intend to commit the crimes so if there had been real agreement about a particular date then if that date were missed than that you would expect to see some discussion about that in concern or objection about it or some complain of here we didn't get to that point of agreement on a particular date and again that's not required for value does not stand for the proposition that agreement on a particular date is required in a conspiracy but i'm would point out also that what this court emphasized in valley is that vanished and then they just moved on to someone else so a woman named sauer was one of the victims in the valley case  was discussed at length and then ultimately after after the lunch meeting that was described in that case ultimately that they ended up dropping it here however you don't have that there's not there's no moving on to someone else among m their discussion was always focused on those that small group of members of mr van ices family and so what you have here your honor the two concerns that combined in valley and that led to this court's decision were the entirely virtual nature of the relationship combined then with the fantastical on their face discussions so that's something we haven't all three on the same day and that just on its face was purely fantastical also there were other fantastical elements that this court mentioned and focused on so for example the discussion of human sized ovens and rotisseries which there was no evidence in the record that anything like that existed so it was the combination of this of the nature of a plan that was purely fantastical on its face with the completely virtual nature of the relationships that combine and lead to the result in valley here both of those elements are missing because there's ample evidence of realistic a realistic plan that was not fantastical on its face so again ultimately the plan was realistic there were identified individuals that were actually van high says family members they shared he shared photographs he shared he shared the street on which sherry davis the sister in law lived he shared the real street  identified as well and photographed as it really distinguished what it does in the sense that we're talking about numerous realistic elements but in the absence of that utterly fantastical element here so  in the neighborhood of trenton where he lived in that particular area about taking them to two real locations like mr meltzer basement or the court will recall that mr ash actually visited mr van huysman in trenton and they thank you just a few brief points your honour's st with respect to the distinction between the valley case and the idea that it was it was virtual i think the government is really underselling the fact that in that case gilberto valley illegally entered into a number of government law enforcement databases acquired individual potential victims a real person identifiable information and talk about how he had that information i understand he didn't share certain aspects of that with his coconspirators but he did in the real world access this personally identifiable information about real individuals as your honor pointed out he shared photos of certain victims he had an impersonal meeting with one of the big the potential victims and which prior to the meeting i believe is a launch he told one of the coconspirators that it was going to be happening that he was looking forward to it and then immediately thereafter he logged on and he reported back on how that meaning went is in used phrases to describe how he could barely control himself and so forth and i think the circumstance for mr ash are so different from that in that he never the as you pointed out they never circulate around a particular victim they ashe never comes close to any particular victim he never has a meeting with anyone the mostly did is in the nd conspiracy he sat with the undercover agents on a bench in downtown manhattan and observed another undercover female f b i agent walk out of an office building onto the subway and those are the sort of activities that occurred here in the real world that is very different from you know gaining this personal information from the law enforcement database meeting with an actual victim reporting back on how that went the other thing is i'd like to address quickly as the vanishing plots again i think that it's very important that the court understand that there are many of the meetings that were set in that were supposed to be set in the case of mr coconspirators they went by without comment and the government pointed out that you know they didn't even get to that point in some respects because these guys couldn't even agree to have meetings they would you know turn each other down left and right and they would just move on and start a new conversation