may please the court my name is aaron ekman i represent appellant i recall o'neill in the briefs i put forward several issues however an argument i like to focus on issue one issue one is argument that the district court abused  discretion and reversed of lee erred by admitting a photograph of the victim that was taken at a birthday party held at the federal courthouse this photograph was inadmissible under rules of evidence for oaths three daughters you know rule for three states a court may exclude rather relevant evidence of its probative value is substantially outweighed by the danger of one of more the following unfair prejudice confusion of the issues and misleading the jury this particular case we have a photograph that is admitted of the victim that was taken at a birthday party held at the federal courthouse the birthday party was after the relevant  morning seemed like the court staff or something they would have a party during the trial it was pretrial wasn't during the trial was some phase in a pretrial session where the complainant was brought to the courthouse january her birthday takes place in between and there's an ad litum that's appointed in this case for the best interest of the minor victim and then there's a birthday party there at the court high view the ad litum asked the court if they could have a party or some we don't know any at all no that's not they're on the cold record that information is not there and you don't object to the fact that the court had a party for this because it's not part of your case you know it was the court or was it the u s attorney's office all the way the testimony presented and there was arguing at the time from the government that a the defense had the opportunity to present contrary photographs that were provided in discovery and b the very end of it though is that we want the jury to have an image to use in closing to see how the girl is so in my opinion the see how the girl is is an emotional well being plead for the jury to have an image of how she is now they had her available for the again the exact through the picture he said it's placed in first through an agent that takes the stand one of the arresting officers because there was a sting involved in this particular case and the young victim in this case was taking that sting as part of a back page dot com solicitation operation the government was doing but the government's quote is they presented this image because it is simply an image the government intends to show during its closing as they the jury can have an idea of how the girl is trial counsel objected under four of the three it was then it made it through the agent later on when the complain is already been admitted but it is shown to the jury a second time and that is where the testimony is a list of good from the government the it's being admitted as exhibit seventeen victims asked do you recognize this picture the victim says yes government do you remember when that picture was taken victim on my sixteenth birthday trial counsel objects and a rule for three prejudicial the government open to the court over it the trial counsel asked for a running objection to all testimony after that the prado judge grants the running objection and here is the testimony that's really at issue government where was that picture taken victim he government in this courthouse victim yes sure and he goes on from there what does it mean that it was taken at the courthouse i mean it's unusual that someone in a trial is going to have some party at the courthouse but what is that what how is that prejudicial i mean she was sixteen it wasn't a fake made up photo to try to lie to the jury and you also had the other photos of her  more mature for lack of a better word and no disrespect intended appearance so you didn't the jury had those two right of the selfies of her being more so so if they're showing that during the closing argument you can show that the other pictures are herb cross examine her with those that may be how you look on sixteen but a fifteen you look like this i mean not that that's a good means that you should be has major credibility determinations that need to be made there is miss dunbar who took the stand who was just probably as culpable as mr o'neil and i think it's on the stand and says it's on the stand and says i'm stand and testifies so there is a credibility determination which the jury needs to make us to you know the believability the credibility and what weight to apply to each individual who's testifying and when the jury knows that the complainant has a different relationship with the courthouse to mr o'neill and the argument is being treated differently that gives more weight to the complainant that gives more weight to the credibility of testimony and we're in a different category than simply this just being an image of a sixteen year old that's out of the relevant conduct of the time period of the often it is now the jury knows that the complainant has been treated differently but because but this is an off it's regardless of whether she whether he thought she was older right it don't you that's not really a defense to this crime is it fifty nine one charge has the reckless disregard element and then also has the cause a strict liability element which is reasonable opportunity to observe so that we're talking about does this make a difference on whether or not the observation  different and whether or not one asking the court to consider is how this impacted the jury's decision making process based on credibility based on the weight they attribute she w she and the defendant here was charged with the fact that she was a mom and was in central to his conviction that the jury find that he know minor that's one element a reckless disregard to the age and then second as a very heavy strict liability component but there but i mean  he had the opportunity to observe whether or not that got to the jury and cause prejudice i think the real was emphasized i mention her for her birthday cake sixteen years ago so i mean that is again i mean it emphasizes that that to the that she was nineteen years old the complainant testified that you told everybody she was nineteen years old and that miss dunbar testified that she herself has a fifteen year old daughter and that the complainant didn't look anything didn't act any way like a fifteen year old and she i says if you have or freedom or debtor says that if the government is able to prove that the defendant had a reasonable opportunity to observe the minor victim then the government  opportunity i can see that there is evidence that there was a reasonable opportunity to observe the government points out in their particular brief that of the sufficiency argument is kind of a back door to attacking copeland and to attacking faith which is decisions previously before still this is questions highlight it could still be harmless and so that's the problem with i mean do you see what i'm saying it's not probative it's wrong we grieve it is not primitive and it really does have a prejudicial this had an impact on the outcome of these proceedings and the reason why argue that is because the courthouse the court system itself has a different a different level of standards that we live by so it's just kind of a tangent or example but judicial ethics and law clerk ethics like that the court cannot even show an appearance of impropriety and this here in my opinion not for the court itself not the trial judge but the court proceedings here by giving this information in front of the jury that this photograph was taken at this courthouse and that this particular complaint it has a different often so make it look quite older than the particular photo we're talking about here so the reason it's not harmless is because of the credibility determination that the jurors have to make and i think once you ring that bell when you get into the testimony that's a listed  bell you can't unring that you can't on ring that the jury now knows that this complainant had a birthday party if we look at this photograph you know it is set up as a birthday party there's a tablecloth with balloons and c a cake that's been prepared gifts to the side is quite a different relationship than what mr o'neil has and the government points out that may be making this argument for the very first time on appeal but if we were to even look at it at the fourth prong  error and we look to see whether or not this calls into question the integrity the fairness of public reputation of judicial proceedings i think there's a strong argument to be made there and the reason why i'm reading that you did not make a timely objection properly admitted because it's harmless error there was overwhelming evidence that the defendant sex trafficked the victim in this case under the destructive term that he had a reasonable opportunity to be the victim and i just wan correct one thing though aside before that this is not a strict liability offense obviously there's a knowing element to it as far as the being involved in drug trafficking but it is strict liability with respect to the defendant's knowledge and awareness of the victim age should we do should we rule on that discretion point because it's important that we help the district courts in these evidence that the government's going to bring these types of things to the trial well your honor just because the government is putting forth a harmless error argument doesn't mean that we don't believe that the court was acting within the bounds of its discretion when we said we didn't even need to decide that maybe we should to give some guidance the government believes that the district court did act within the bounds of its discretion i think and you did talk about that ok so is there a party at the courthouse well first i want to say and there's not a lot in the record about the context of this party but was it in the jury room or where was this party that there's nothing in in the record except for the fact that the defendant or the victim's birthday coincided with the date of the material witness hearing and it probably it was in the jury room wasn't it your honor there's no evidence in the record because how many spaces do you have where you can have a long table like that in the court you know one of the chambers looks again this is it's not like and what we do know is that this particular victim was in the custody of child protective services so she was a detain witness on a material witness warrant and happy to celebrate her birthday on the date of her material witness hearing which is why she was in the courthouse on that day i can tell you that the government was not the one that purchased the cake it was the defense attorney and members of the courthouse to a defense attorney purchased that then material witness attorney sorry for the victim was the person who purchased the cake it's like an ad litum there was an attorney appointed her because she was  jury by the agent or the other witness that or guess when she testified that it was it the courthouse what relevance does that have to anything it wasn't relevant it was not a smart thing to bring forward i agree with your honor but that doesn't mean that the photo itself wasn't probative that what is appropriate to how she looks now is not broke and plus they have her there so it's not like they have to guess what she looks like now so how she looked at her sixteenth birthday party which is not the relevant time period versus how she looks that day in court or at the time of the incident is not probative well the defendant submitted two photos of what she looked like at the time and this was the government's reasonable ribeye oh to also show in the jury of what the victim look like around the time of the events and it was around the time of that it was after it was several weeks after it was several weeks after but i just want to remind the court that kind of important to me i mean is that it was offered in the trial for the story and witness i'm sure it was offered in the government's case in chief but when the government offered the the photo it was saying it was in anticipat defendant also submitting two photos at the time of the offense so it was an anticipated rebuttal case agent in the very first witnesses and that was when the it was i was offered by the by the case agent is the very first witness so it's not really rebuttal at all will discords question and allows the government to anticipate the defendant's taste and offering its case in chief there is case law that supports not but i do want to and highlight  the context of this case makes the defendant's appearance very relevant these two photos as judge already pointed out were certainly the victim looking sort of mature and maybe even provocative however there was evidence below that there was a lot of context in and when the defendant was around the victim it was in many different context it was mary different times of light many different times a day it wasn't always when she was on it wasn't always when she was being sex trafficked he was with her when they were at their house when at his house he introduced her to his baby they were having sex together and they ran errands to sam's club they were at his father's house fixing plumbing he would bring her pizza by when she woke up in the morning after a night of sex trafficking so he saw her in a variety of different contexts other than when she was just sort of provocatively dressed to be sex trafficked with with men so i think that that the governments are bottle that the spoto is crucial it's very probative in showing that he didn't just see her like this as to the element of his or her appearance he saw her in a variety of different context and just dovetailing back to judge genesis question that all of this really addresses that second prong reckless disregard but this case this has overwhelming evidence on the reasonable observation of the victim which again is strict liability as to the defendant's awareness of the victim's age and there was a wealth of evidence that the defendant had the opportunity to confront the victim personally which is the case law that's used in copeland he was around her repeatedly for the course of a week in different times in different settings he had sex with her what better evidence of the fact that he had a reasonable opportunity to observe her than he had sex with or spent four to five hours in the car with her each night the only case that the government could find that directly addresses the sufficiency about prom which is reasonable opportunity to observe is the blake case from the eleventh circuit and in that case the eleventh circuit found that it was sufficient evidence merely because the defendant met the victim on five or six occasions and spent twenty minutes taking photos with her so clearly in this case we have much more of a reasonable opportunity to observe so even if the photo which a photo of a birthday cake really that's not what turned the tide of this overwhelming trial where we had the defendant confessing that he trafficked the victim we have both the accomplice and the victim testifying the jury has the ability to view the victim during her testimony and see if it somehow different than the photo that they got from either defense or the government so you have him saying the thin nineteen and having the party at the corner with the sixteen on a candle well again this whole this whole party thing is blown a little bit out of context we have a photo with the cake and we know it's at the courthouse we don't know the jury is never told that the court's president never told that there's a birthday party for her and a cake and as most people think that's a birthday party even then i mean the jury's not locked at this impression that the court sided sixteen honor do you think this was a very good idea i think that the district court acted within the bounds of its discretion when it needed to photo given the probative nature and rebutting the defendant's defense and that it's not unfair prejudiced and that's not the question i'm asking do you think the prosecutor use good judgment in trying to use this this evidence if you think that she had over here she had overwhelming evidence otherwise was is the smart thing to put into evidence and i mentioned about the court i think the photo w was appropriate perhaps the courtroom setting you know i'm sure the prosecutor wishes that hadn't come up but as far as whether that term is the weather that's error that would reverse a poor three judgment in this case whether it would reverse the trial in light of the overwhelming nature of the evidence i mean we always have things in child that come out that we wish had come out but if you think it's appropriate then that's all the more reason that we need to ride on it if we don't think it's appropriate well worth your answer this question is important and how we would write an opinion even if we were to agree with you isn't it well in the circuits tradition it doesn't need to reach the issue necessarily of whether the evidence was properly or improperly admitted and in light of the harmless i would also hype to hide out highlight just because i didn't necessarily do this in my brief that there was another opportunity in making its for three determination with respect to the adequacy of the government and the court's reasoning that the government did on another instance and i'll just highlight and pages for a night in for ten of the record where after the defendant had testified and deny that he'd ever come to mine or the government tried to introduce two prior instances or ask about two p instances where he had in and been arrested for pending minors and the court declined to allow that evidence in under four for me and i think you can infer from the record that it was based on four or three considerations so if the court has no further questions i would just thank you on your means or position that the introduction of this evidence in the testimony that was a listed regarding the location of the context of this photograph did have an injuries effect influence to determine this jury's verdict and the reasons why is because by allowing this information in front of the jury they now know that there is a different relationship that there is weight attributed to this individual testimony that has to be believed in order to result in a conviction that corroborates the testimony and the information that was developed around i want to point out also in jury selection how much of a credibility issue this particular witnesses testimony is in play and there is a juror that's brought to the court and knows the complainant and is stricken appropriately because she says you can trust anything out of this person's mouth so there is in this record evidence of credibility and what would have needed to be assessed at the time when the government counsel provided these particular images the selfies that were taken to show how she looked at the time of the off and that is when the government and a rebuttal would have to take place after the defense moved to put in this particular think placing this type of information in front of a jury calls into question the outcome of the photograph that was taken the only places it could have been taken were secured entry the jury for the very first time in background that she had a birthday party a celebration that she supported in a different way than mr o'neil that bell cannot be unrung you can't go back from that and isn't it going forward which is a little outside the context of harmless error analysis is how do others similarly situated defendants in the same position fall when they think they're going to get a fair shake at the trial when this type of imagery and it's known that this individual has had a birthday part present this testimony they're going to develop elicit that testimony that there was a party here on her behalf a defendant an accused who has the same fifty nine one charge is no longer in the same place and it's not hypothetical because there's a cut there's another case that rises out of this arrest with a a t why he's referred to in the transcript who was arrested a month ago in midland and had to decide whether or not exercise his right to a trial so with that information we talk about reputation of public proceedings it has a terrible impact on whether or not an individual feels like they're treated fairly in front of the court system i've been particularly in midland a small community people hold out the courts most of the federal courthouse in a high regard it is the best of the best is the top notch it is the highest standard in our land and when you come into court and you're facing what is being a life sentence and you have this as the difference between your accuser and you  see it has doesn't impact that particular community how does an impact the jury that sitting in that box they get to see it once the very first time they see the complainant is through the image to agent fields when she testifies it's projected they say same jury knows we don't have to rely on that because we can rely on this of the testimony that he has seen a so many times that that satisfies the requirement of knowledge i would say  they had to make a credibility to from the nation they had as herman what weight to attribute to this particular testimony and this tips the scales of justice this really places the complainant in a different place of believability when they know they're having a birthday party downstairs or up stairs in another secured area of the same courthouse it's not a large courthouse there's no other place you can go unless you go in the secured access they know that she had a different relationship really are you get this this is separate from separate from of that is opportunity to observe because that's not really your objection your projection is that the federal courts but they want a federal justice on her gues