this case presents the concept of the conspiracy stretched beyond its breaking point nowhere is that more evident than in the introduction of a mountain of child pornography that bore no connection to either defendants a cause or defendant had a substantially outweighed might be prejudicial effect such rubel violence and disturbing videos as mr has your you represent mr staples correct that's correct or not mr staples defense  at trial was he was just interested adult men he was a game him but he had no interest in children so the culture of the room as that out of the way place where people go specifically to watch the child porn was highly relevant to showing there's a conspiracy agreement among these people and also to disprove this defense that your client was really just interested in men not not children you say it has no probative value that's that's right your honor and st the reason why  are testified that she had been monitoring the room she could have testified about and she did testify about the types of materials that she observed when she was in that room i'm here is that that's the no three argument though that's cases if the if it needs to make something out it can make it out in the way that tells the story not just it could have done it this other websites not enough to say she could have done it another way i take the government to be saying there's a specific culture they grew up around this room that means all the people in it knew what they were getting into and work to get there is a serious obscene screen names of people or groups people are requesting you know hot b the names of the people and stuff said hey this is kid stuff i don't want it and went away the client didn't do that and so isn't that relevant to show over the course of the conspiracy what the culture is that once there is a conspiracy under under pinkerton you know  court is supposed to do during the rule for three and now assess which it did not conduct in this case it is actually supposed to weigh that unfair prejudice versus any protocol you enter there is no record where that is done in  has introduced all of those statements at trial all of those videos at trial in addition to the child pornography that was this that was found on the streets people's computer and mr hadley computer and what this court has said in coming home and the just before i let the sit so the court has flagged i know i got to do this and then it comes later and it's been you know linked up and then the court says ok i've heard the arguments i'm letting it in given those things should we understand that the court had done an analysis isn't this about as much a record as we had in the finley case where we you know it wasn't full some we might prefer a lawyer but is it is there so little that it's  motor issues and it also indicates that that here there were there were problems with the government's case and it was by stockpiling this obscene irrelevant him was a case part of it was a procedural problem the court didn't view it and part of it was that there was a this cumulative zel you it was it was only only added a little bit on pro but iffy but then it  prejudice so it's ultimately there's a balancing to be done but don't our president say even if the discord didn't even if you're right this we're into the balance and we can do the balancing ourselves on appeal and reviewing it and if we did that we wouldn't be deferring but we could still affirm if if if we decided ourselves that the probative value was in substantially outweighed by the danger of unfair prejudice but that is what the authority says and here of course with six thousand  simply is no way to find that such evidence does not present potential unfair prejudice well let's talk about those lines a chat the lines the chat that you see mr staples mr heavily engaged look like they were encouraging a show me some more and hey i'm getting very excited here to put it mildly don't they don't they show that he's not he's not a passive bystander he's not being taken unawares he's a part of this conspiracy so if it's part of the conspiracy all the other stuff can come in as statements of coconspirators so what mr staples was convicted of and i do want to be who i know i'm not i'm certainly want to because the potential sentences between conspiracy to post a notice or advertisement and you conspiracy to receive child pornography are vastly different and that is why it is such an important distinction  that particular statute has the twenty year maximum and in it applying the guidelines to this particular case and to that conviction we're guided to statutory index appendix the issue was cross reference that was found under two g to point to see one which permits in certain very limited instances to basically about just passing around child porn receiving a selling it versus having some involvement in producing it or in inducing it or getting getting a minor hit to engage in it well the district court have found that each defendant here contributed to augusta's creating videos of himself abusing victim one there was discussion about this as you discussed a trial it was a live event this was going on and so they presented at different times through the testimony of the government's witnesses we know that all augusta did not even receive the video that was requesting video especially my client never saw that comment why does that matter that's important because if you look at the cross reference in the arguments of the government he has to cause he has to cause directly cause the l purpose of that enhanced is to punish the producer of the manufacture of the live event more than a possessor and i don't so i think we can set aside your  in the brief in part was videos is necessarily has the past conduct in the mr barry points out we're engaged in a video right now so nothing about the fact that he asked for a vid's means it had to be confined to the past and when when augustus started showing a live child people started giving him orders well how about you walk around like this etc that they could see it was like they got excited about that so the nature of its being video doesn't mean they were asking only for don't have a recording of that abuse we know from their witnesses that you have no idea what it individual is viewing on their on their screen at any time so i did that comment specific comments attributed to my client to the live abuse we're guessing we're guessing what these individuals were viewing on the screen because as  brief there are a number of different alternatives and each and one of every one of their expert witnesses essentially says you have no idea what an individual is looking at on a screen when you're looking at the  united states of america in this appeal from a jury trial in which the jury convicted two defendants of various child exploitation off and says that stemmed from a two year conspiracy during which these defendants repeatedly that were dedicated safe spaces designed to foster a sense of security for like minded how to files to request child pornography and consume it in an on demand format then let me ask is this for everybody involved in much bad stuff in to get the jury to decide the case not based upon evidence but based on emotion having said all that well you've got you know just incredible value of testimony you've got recorded chats these there and see the stuff fast forwarding through and almost becomes a pin to mind that these men were engaged in with these incredibly victimized kids and that i'd like to know where they are and it's a side record but i can't be concerned about what happened to them  why do these video yes your honor so one thing i would like to point out and emphasize is that if you look in the briefs and in the record what you see is that we played sixty eight seconds sixty eight seconds for me to year conspiracy so when we talk about the government putting in too much of this type of contraband evidence this is a case about visual depictions yet we are still frame talk about picture being one thousand words sixty eight seconds worth of video from general many pictures that a place through but it's exponential it's a hell of a lot of pictures one free if you get the right frame here i would suggest that's really getting close to it maybe we're over the line because want to say is the theory of course is that child pornography is so reprehensible and so shocking per se showed so shocking to the conscience that doing it in small bursts totaling just over one minute would deprive the jury of all reason and set them on a course to ignore the court's instructions violate their oaths and shut their minds to other evidence or arguments but that didn't happen here as your are points out because there were acquittals of two of the most serious charges in this weren't there on that day we didn't see it anyone encouraging it and so your argument for letting this in is no it's important to establish this is an ongoing thing with a bunch of videos of time such that it's a real conspiracy people could will for three limits are both out of touch you can read that case and what is it that puts your case on the right side of the law sure as your honor already pointed out cunningham's problem primary problem was that the court did not review the evidence in fact i got my hand slapped a little bit by judge kane in one of our a moment it was during trial or one of the pretrial hearings so i'm not one hundred percent whether it's in your record right now but i remember asking judge kane hey ju cane we've got cunningham in the rd circuit i'm really going to need you to review this evidence and she got a little chastised me a little bit about telling her what to do on that is she fully understood that she had to review that evidence and of course as your hon pointed out she said she did she said on one occasion on the record she said i've reviewed everything in the red binder and to make clear what we did is we separated the contraband into the red binder the not the part binder so when she says that she's saying i've reviewed all of the contraband in this case and that separates cunningham for sure with regards to the the for all three analysis i think it's clear that she did engage in a meaningful review of your hon together and so we tried to put that in the government did and she said i see there's a connection to mr headley i don't quite see it to mr staples yet mr berry i need to wait a little bit before we get to that so that's why again her very cautiously approaching this evidence and realizing that she needs to tread carefully to make sure that it doesn't get admitted prematurely or against a defendant who is apply to affect play and then on day four she admits the the exhibits over the defendant's objections and then most importantly what i think has been overlooked in the briefing is that there was a post trial briefing there was a motion for judgment of acquittal by mr  staples and in that post troubling judge kane issued an order in which she explained that she considered for a while and for a committee and concluded at trial and maintained after trial obviously in this order that the evidence was not unduly prejudicial so i think the record is replete and complete in terms of the context of the entire case that she adequately reviewed it and that she was careful and consider in conscientious in thinking about these very issues that are concerning the court all the time in child pornography cases of this is all i do these all the cases i do and so i'm very conscious of that as well which is why when it came time to publish these exhibits to look to the jury again i'm not one hundred percent that this is in the record either but i asked both mr daniels and mr aspell do you want me to play ten seconds in real time this goes to your question or your issues judgment he of you want me to play ten seconds in real time or you want me to play the whole thing in a fast forward fashion at ten seconds i thought they were going to choose the former they chose the latter and so to the extent that one bothers one person more than another this was actually something i discussed with the defense counsel about which presentation would they prefer and i gave them that option so when we did it again we were doing it in a ten nd bursts to give the jury an understanding of what this conspiracy it was about we only have captured from july nd two thousand and fifteen but we have records show that this conspiracy was going for two years and as mr daniels pointed out just a moment ago  his argument we don't know what mr heather lee was seeing that day that's precisely why we had to put in this video evidence from other times so that what the jury could do is they could take what the visual evidence  combined with the chat logs that went along with the visual evidence we did have and then they could make a reasonable inference to the other chat logs that we have of what the defendants must have been viewing at that time so for example on february and staples says it's fine there's no one sharing and augusta says more are there any limits and as the testimony at trial showed a no limits room is a reference to the idea that everyone in that room is good with any kind of child exploitation tiriel some people have limits like i don't like to see bait some people have limits like they don't want to see scat other people have know what is going to happen scott your honor is a reference to c sorry yes yes and so that some people have limits and some don't and what mr staples told mr gusta that day is no limits in this room knock yourself out sensual right and right after that augusta starts live understanding the full conspiracy of what happened in this case and the same with mr hadley saying well she didn't the toronto agent didn't start recording until after she had logged out of the room but we have the chat logs from when he was in the room and what we can see is that mr hadley says really appreciate so appreciate it someone showed this about need to bust before work obviously a reference to masturbating before he goes to work and right after that we see more chats indicating where the jury could reasonably infer that mr augusta brought out that six year old boy and started sexually abusing him and then we see one more chat from mr hadley saying so close here jury to infer that mr henning was in fact watching this that if there is i don't know what colors want to stay on for three but i would like to at some point to talk about this cross reference argument that maybe there's not actual causation here if we didn't see the live abuse maybe your argument is we can infer causation in february th or some other time but if we're focusing on july nd is he really guilty of seeking buy notice or advertisement live of abuse is this is there a specific intent requirement as they possess it or are you just going to dispute the premise and say there's causation based on all the other times that this so i think we have causation from mr hadley on didn't actually see these chat logs on july nd so i didn't in fact cause him to do it now maybe maybe that's not a correct reading of the forensic evidence but that's their argument what's your response my response is that on that same day on logs is he's responding to a private message to someone else an argument was mr staples or someone else and he says there were only about forty five people here wish there had been more and what we see through the full record of exhibit five is that what missed what was important to mr gusta was the voyeurism or the people seeing him and so he really liked to have a large crowd to see him and he was and so when mr headley says he didn't cause  he didn't specifically cause this he's basically saying if he wasn't there this boy would have been abused anyways wolf forty four other people might have been able to say the same thing but the collective the collective group of them as coconspirators they are combined in being in this room in this dedicated room to child pornography motivated augusta to live abuse he didn't do this on one to one was a doing this on a one to one strike with someone else he went into these rooms waited till people really really wanted it if there wasn't any other streaming going on and he felt like it so really do it anyways but the fact of numbers being in there the fact that he was in their presence would would motivate augusta to do that we are not rely on you exclusively on the idea that mr headley just was present and that we didn't charge everyone who was just present but i think you can take from mr augustus comment that there was only forty five people and i wish there had been more to say that he was motivated motivated by the mere presence of all these people and then you combine that with mr heavily sank so appreciative someone would show and in fact augusta said all right i'll meet you there and shows up we don't have to show that mr gusta literally read every single message where people were asking words he understood that room just like everyone understood that room so that this is a dedicated environment for like minded how to files to see can receive child pornography by posting requests for it certain people would would post the request certain types some would say i love ball anything boy or girl ok so you have not felt if if would you want to focus on whether they were aware that they were speaking of livestock as opposed to  at all and i don't think the united states is required to my crew that i just heard heather lee had to say the words i would like to see someone live use the request of the posting of the seeking by notice or advertisement request for child pornography in whatever form it came whether it was pre recorded or live you didn't see mr hadley say in those few minutes from the live used with whoa whoa whoa i only asked for a video on now if you're going to live abuse know who's going to take the battle time for the defense argument that we don't even need seeking because this involved causing the nature of augustus wanting an audience people are asking actually cost why should we read causing as we're quoting a specific  but in your honor again this is the intent of the statute if you read some of the other decisions of interpreted this is a right so you're not so you can't point to anything in the wording of the guidelines  causing requires a specific consent so if the verb is to call a sword or to cuba engage that would be a future looking  verbiage so to engage if you couple it with the the other portion of the of the ethical part of the guidelines or the cross reference to engage for the purpose of transmitting  what if we don't buy that do you have any cases that require specific intent for causation if you're honor again that's the state of mind argument that i made in earlier and it's in credit cited in my in my brief ok i'm going you know if i can just touch on some of the the other things as it relates to the forty three analysis there's a very large was a case that ultimately held the evidence coming in but at the same time sternly warned other individuals going forward that you can't just find refuge in the fact that you have a strong case in put this evidence into into the purview of the jury and then this case i mean i think it's important note that these are images there's over argument her because these nut very few of these videos could have even arguably been when either ever clients were signed into the the application so if you look at the violent nature of it and this is this is in accordance with well stance which was the recent case as well as coming here you know in the cumulative nature of it why do you have to show sixty eight bonded videos to show some type of conspiracy when you have six thousand different messages you have the the chat messages for the entire entire room why do you have to show that it's cuba and that's the other especially a lot of child porn maybe he's whatever so the government's caught between a rock and a hard place you're saying it's too much evidence but you're also saying it's too little evidence because it's insufficient evidence to support the conviction or to support that there was a conspiracy so the government's in a no win situation they have to put this evidence in to show the culture of the room that everybody knew what was going on there i don't understand how you can say with too little evidence for sufficiency and then there was too much for for all three  it is to engender exactly the reaction in anybody that would want to what about barely is there you've got a guy point blank range guys shot and they had blood oozing out of the sidewalk  cunningham i can't keep that straight but in some of these child porn cases the defense is soley yet was there not serious help for the soul the spirit is you know some worm or virus put those things on my computer that's not interest did i know what i was doing being in this rule i'm in and that's a different kind of just yet because it goes to mens rea it doesn't go to really identity or the