challenge to me m's were not intrinsic to the offense and the district court's contrary ruling was an abuse of discretion evidence is intrinsic if it is inextricably intertwined with or part and parcel of the charged offense if it's part of a single criminal at the soda or if it's a necessary preliminary without which the offense can't be understood and that's not true of the means the years old posts were not inextricably intertwined with or part and parcel of the two thousand hundred chats with g baby and the district court abused its discretion by concluding that they were the just or courts conclusion was based on two subsidiary findings st that anyone in type person who mister alford communicated with could readily access the means and would be likely to do so and nd that he was using them to convey his brand or to say what he was about in two thousand and eighteen well i'm on your actions maybe even more the introduction of any  but exhibit forty six dollars is not a challenge so we didn't make the same an argument that none of these mediums or intrinsic and that was made at the outset before the government identified specifically which means so all of the means that were admitted at trial are the subject of this appeal up we're objective thank you well some means that i didn't think you were objecting to that had pictures mister alfred was like money i thought you were just objecting to the names that i have them behind the government trial exhibit six there is a bunch of means that seem to be related more to prostitution directly then the ones that were just him with material goods and it didn't seem to me that there was objecting to all of the means  this is you know out so st they filed this notice that they're going to use two and they say you know there were objecting to any historical social media being used as intrinsic to the offense now a lot of our arguments are specific to what we're calling the me and so those are the not the pictures of mister alfred specifically but specifically regarding exhibits six dollars and seven dollars and then at trial additional means did end up coming in that weren't part of exhibit six dollars and eight dollars and at that point we did renew our objection specifically stating you know we object for all the same reasons we have  to the other me my evidence so we believe we've preserved the arguments with respect to all of the historical means and that this appeal because we're challenging the district court's pretrial ruling that they're all intrinsic that it would cover all of those as well and so just to get back to that readily going only makes sense for you to be challenging those means that were admitted at trial yes your honor i would we care about we would know and we're talking about the means that that use a website or chatted with mister alfred let alone that they would be likely to look at them and that's important let me interrupt as i understand it there on the home page you could click on these pictures and you can click through you could click and immediately see a gallery all of the available means that were there and then you could click and pull up any amount you wanted is that correct it's correct that it tension man or g baby could do that there wasn't any evidence about whether any other users would have the able to do was there wasn't any evidence that he limited other users either was there you know but as the proponent of what you just said would the government have to show more than g baby could access this i mean how the district courts theory of admissibility depended on this being accessible to other people that he you know his logic was any person who talked to mister alfred would be able to see these means and then that brings me to the nd part of its finding which is that mister alford was using these three year old means to communicate what his and the district court found that anybody who chatted with him would have been able to see them and that that's one of the reasons he concluded that these were really part of his brain and that he was using these old posts that he had posted three years earlier but just failed to delete that they were effectively contemporaneous communications of quote why he was of the out at the time he talked to g baby in two thousand and eighteen and that's also  finding now the government argues that mister alford's tag page was like a storefront or it was like a brand page in the district court analogizes it to a storefront but the government didn't actually present any evidence about that this is how mister alfred was using tad the the only anything sort of resembling evidence that was at the hearing with the prosecutor's own personal anecdote that she personally does do spring cleaning of her social media presence in order to cultivate the message she's sending to her you know users but that's that's not evidence and that's not evidence of how mister alfred was using tagged in september two thousand and eighteen and the record actually weighs against the conclusion that these three year old posts are being used to cultivate his brand in two thousand and eighteen you know as we've discussed they weren't on the major page you had to click through to a photo sub page and these are just a small portion of the one hundred and seven photos that are available in his account and that's just not how a business built its brand you don't have to click on the photo subpage of rbs facebook page to find out that they're a sandwich shop you don't have to look at you know eight or ten photos out of one hundred and seven photos posted to a professional athletes website to figure out what sport he plays and you know this lack of evidence is really concerning because social media it is a complex and evolving phenomenon you know platforms are used differently different people use the same platform differently and the way that is a platform is used changes rapidly and taggants particular is a pretty obscure platform and this record here said he was ignorant of how social media works and so really this is not an area where this what you would call his profile page but you also see at the bottom of that page from our records all of these things you can click on now if you can access them that way what's wrong with the district  district court's ruling is actually it's likely that anyone who talks to him is going to look at that and that's there's no evidence of that that's an assumption that he is making based on what he admits is ignorance of how social media works generally and there's no evidence about how people are actually using tact let me let me ask you this even if you're right and he had to grant access to someone before they could see this information if he interacts with someone and then decides this is a good time to grant them access couldn't the court still consider whether this stuff to which they are granted access is intrinsic to his don't believe that these historical posts are a transit even if they are accessible because it's still the patents in the district courts finding that in fact since mister alfred expected people to look at these old posts that he expected them to click on his photos and look at these find these and then draw the conclusion that he's a pimp or that this is his brand in the government's speak and that's simply not supported by the evidence and i just briefly want to touch on the for a three issue even if they are intrinsic on their side probative value that probative value is low  these are all posts they were composed by someone else and their jokes and whatever limited probative value they have is in this case far outweighed by the risk of unfair prejudice i mean st of all there is a high risk that they're going to be used for the propensity purpose that he is a kind of person who likes to demean women that he thinks pimping is cool that they're vulgar they're offensive and they're massaging this stick and they also draw on gangster rap culture on all of these things are things that could negatively impact the jury's attitude and cause a to reach a verdict independent of their probative value and then just finally you know there the evidence wasn't harmless this is the nesa fissions and test the government has to prove that you can be confident the jury would reach the same conclusion and st as evidence was central to the case it's the supporting his defense that this was all a fantasy that can make back was a persona that in real life he was in a camp with a maybach deciding between rolls royces and lambo is that he didn't have a car yet to borrow his money mom's car he had to pawn his playstation to get one hundred dollars a bum a ride to the bus station and also that his favorite rapper was pimp c who's best known for his various big pimping that he is someone who comes from a world where pimping imagery is common but not meant literally and with all that in mind this court should harbor some doubts as to whether the jury would reach the same verdict without the unfair prejudice associated with these means and conclude that because a district court abused its discretion and yet in this evidence the evidence was not heartless possible inferences arising from the mediums and the possibility of the connection between the means and the government's the or eat lunch of the right just for court's findings in this case at that pretrial hearing this report did not necessarily find that someone necessarily would look at the means the district court talked about how they were available on his landing page and as all the evidence at trial showed tags is how mister alford conducted the crimes in alford communicated could also view those meetings i'm so in this way i also want to point out that the defendant isn't correct that the means were in any way buried in the tax profile as was explained at the pre i believe explained at trial these were one click away from the defendant's main tagged profound excerpt well when you click you get a gallery right and there were a lot of pictures and things in that gallery in these are very small the memes are very small subset of that gallery is that correct so i don't know that i would even agree with that if you count up exhibit six ex seven and exhibit forty six but something like twenty means of one hundred and seven photos so i don't think that is a minuscule amount in comparison to all the defendants photos but i think it's important to think of you know twenty means on this one particular topic shows that this is part of his brand that he is associating himself with the messages of those mediums and i think that that was what the jury could consider and the court properly let the jury draw from those conclusions what they w in this case i also want to talk about the temporal gap here i don't dispute that the means were posted at three years before the chats with mickey or g baby in this case but the fact that those means were still available three years later then you put in something for the cherry on the top that creates the issue on appeal you know how much probative value do you really get out of these means in comparison to the risk of unfair prejudice they don't i mean i and i find the means offensive i can see that a jury might find them offensive i think a couple reasons one is that you know the government has the highest burden of proof there is and so this sort of evidence which will help the government prove its case i don't think just i don't think that i'm listening to that should have been excluded on that point but i understand your point roger i think that this these means were particularly probative of the business enterprise aspect of count two now the government had to prove that the defendant was engaged in sort of an ongoing activity not just a sporadic casual isolated incident and i think that cultivating this branch really refuted any sort of contention that this was not a bit set's enterprise under count two and so i think that that's very important here and that was how extreme probably the value in that way not only that but the event in syria trial was that this was all puffery this was a joke he was pretending to be a penned because he thought who knows what he thought but this was pretend i think cultivating a brand three years before he reached out to nicky kind of shows the unreasonable assumption theory it's a long gone if you will so i think it was also very probative in that way to refute the defense theory as for prejudice again i don't disagree that the means for prejudicial but they weren't unfairly prejudicial because they did not have that undue tendency for the jury to decide the case on an improper basis instead the brand the cultivated aspect of the defendant's digital profile which was the same digital space again that he used to reach out to nikki and others show that this was all a concentrated effort part of that business enterprise here and i think that the district court you know the pre possibility that these names would mislead the jury in thinking that the defendant was violent for instance and so they just report properly tailored the means that would be admitted at trial to make sure that those risks weren't present and i think that also shows the district court you know carefully exercised its discretion in that way in your brief it's a good argument but i don't think i ever saw that that this evidence was needed to establish a business enterprise and refer to count two i'm looking at the charges and we're talking about you see that as requiring more than a movement or one person so the facilitating prostitution count does require that business enterprise as an element and i believe that i talked about that when  promote manage establish your carry out right and then i'm on page seventeen of the answer brief your honor unlawful activity in this context is a business enterprise and then previous cases from this court ken doll and a sufficiency test but that doesn't mean that the weight in the strength and the power of the government's evidence doesn't play into the else several cases including cases that have been cited by opposing counsel in this case talked about how any error was harmless i point this court to the fact nick own case which was in the th circuit that's a somewhat similar case in that social media posts that really had not a lot to do with a bank robbery were emitted at that trial but the court said that that was error but harmless given just you know the overwhelming evidence in this case and i think the same could be true here or you know the chats were the  the detail the knowledge of mister alford's association with the pimping and prostitution culture i think that any error was still harm what's not withstanding introduction of these  it's other than count two i do want to caution against i don't mean to say that the means were only probative on the nd count they were also probative on count one for reasons that we've already talked about a bit and that was the under tw two knowingly persuades and uses entices or course as anyone i think the fact that the defendant associated outwardly with this break that this branch was available to agent tangent when he was communicating with  this grand this long con of three years i think undermined the argument that this was all puffery and that pertained to count one as well if there are any further questions that i can answer for the court under the forty three and also s i'm happy to do case is submitted