sixty nine eastern are united states versus michael willing minder under eighteen u s c twenty four dollars so we're presenting an argument to that issue and also as to the case in total we believe that this report erroneous lee excluded the  tennessee at the time he traveled based upon a conversation that he had with a undercover officer who was referenced as sandy in our briefs but it was an undercover officer i think the facts that are important in this case that need to be pointed out is that mr williams was in a chat room that referenced sexual taboos  and sammy reached out to him in that environment and started to engage him in conversation i think that's important because it was there and i think it's become more important if you start talking about the cases such as spurlock and height which i do think has some application but it's those facts in this fact in particular he was not reaching out looking for a sexual experience that included  child that's important he had no history of doing that well that's our counsel i just want to ask you know most of a lot of the would you agree that a lot of the chatter in conversation fault up not only sexual acts with the my but also sexual acts with the undercover officer cmyk the child's mother exact fair characterization yes and that's how it initially started out and then they started introducing their you know fantasies with regard to it and it was the officer sammy who introduced this that this mother child father child aspect of it and went into a long detail about not only her fascination with it but also that the child had been exposed to it on previous occasions so yes it was introduced to the officer which is very distinguishable from the cases that we're going to be talking about today such as  k and such as height so yes i think that also tied into the fact that again a lot of the converse is that the conversations unlike in the other cases are not near and centered on this fantasy they go off into other fantasy they go off into other things they want to do it occurred over a long period of time in the cases and spurlock you know the main focus of the defendant in that case was to seek out someone who was interested in doing those type of things with with the child saying let me interrupt you know how many times viewing the evidence favorable to the verdict how many times did the defendant speak with sammy about the possibility of having sex with m have you know they have to persuade and do scores or entice anyone under the age and you don't necessarily have to have the child but you can entice through the mother or the in this case the undercover officer and the way that you do that  you ask the mother to ask the daughter hey would they be willing to do this or hey would they be willing to do that in those types of directions by the defendants were not here as they were in other cases such as spurlock in height i mean there was directions hey ask her if she's willing to do this ask or she's willing to do that ask your she's willing to do this and there's no direction by mr height i mean by mr  in this particular case so i think that that's a distinguishing factor i think that's reason why it's so kind of it's it's we're kind of on the cusp here because in this case also mr williams testified as to his believe that this was all fantasy and it is in to him it was been seen again you start bringing in his history he has no history of reaching out or engaging and this type of activity with on the rage children he had a child the evidence the record bore that out with regard to him having a child during that period of time there was evidence of the fact that presented that he did not have any interactions with the law enforcement or engaged in and were they could actually find out that he's engaged in his conduct so that becomes the issue with regard that there's just no facts to support that he's actually a litigator actually reaching out or attempting to reach out which is the st issue rather than i have to question is does it matter i mean the fact of the matter is if you try to s matter to satisfy the elements of the facts i thought well i think it does matter because you're actually you're not you're not but you're not sit there saying hey look this is this is what we're talking about engaging in sexual acts with the mother and the child ok you're talking about enticing of a minor  and what acts did the defendant do in order to reach that element and that's the reason why i don't think that the facts bore that out as to why only radius of rage the sufficiency claim as to this particular issue because i just don't it just wasn't  there there was no one gauge with the child there was no directions there was no way there was no constant theme like there was with you know both spurlock and height those defendants they went in looking specifically for this type of of relationship or this type of contact that was not that that was not mr williams intent at all and like i said the topic was raised by by the sam who sammy who was the that he was going to have any sexual relations with an underage child after he was arrested which you which is the math not the case with regard to height the height weight those admissions that he was intending on having sex and i believe spurlock did as well so you don't have that you don't have him actively seeking the child out as i said in the end with regard to height was not engaging with the child did not have any contact with the child  not follow up with the child did not do besides the initial call that was encouraged by sammy he didn't make any text messages requests make any follow up phone calls so then his argument when he gets to trial is look this was fantasy i was engaged in roleplaying in fact you know sammy was engaged in a role playing and we were both engaged in it back and forth and you know that was not my inten i believe under those circumstances that you have to have an expert in height this man was involved in the very beginning he wanted to have and i'm going into my rebuttal time but i think it's important no but he was reaching out for the specific purpose of having a sexual relationship with an underage child that was the goal from the beginning it was always the goal from the beginning ok then he wanted to argue that it was a fantasy and that we engage in these things we go in these rooms and we have these be able to present that evidence to present that expert evidence to explain what's going on to explain what goes on in these chat rooms to better understand you know the fact that people engage in  fantasy and remember this was a fantasy that was suggested by the government office this was sammy's fantasy and he was playing along with her so i do have some rebuttal time that i do i'm reserve into that and so i  violate federal rule of evidence seven o four as applied to travelling across state lines for minors which was charged in count one that the testimony therefore would have been the requisite mental state in that charge therefore the district court found that there would have been contravention of the federal rule of evidence for of three if it had been allowed under the anti smith charge and she found that that would have been too confusing for the jury mr  in fact many of the conversations that was had between mary and spurlock almost mirror the conversations that were exchanged between sammy and mr wayland's in fact it was will and the testimony bears this out that told sammy that he was into print faith that depicted sex between fathers and daughters and between siblings so it was mr will ensue started the conversations about the fact that he was interested in tabby's that included sex with minors sex with minors and their parents mr willand claims there is no evidence that his actions violated the enticement charge but the text messages prove otherwise and in the text messages he did directly ask sammy if her daughter would want to play he wanted to know what kind of sex acts that she was into and he asked sammi if she would have to talk her daughter into playing with him he also goes through numerous descriptions where he describes the sex acts in which he wanted to engage with the minor and the minor and sammy at the same time in the fact he wanted to he wanted sammy to entice the minor to engage in the sex acts instead of sex acts with just the adult and not only did he describe those sex acts your honor he showed up at the scene with the very props that he that he described in those purported sex acts where that he would use with sammy there was also another conversation between sammy and will and swear mr will and ask if he would need to wear a condom or rather sammi asked him if he would wear a condom he agreed that he would with the daughter but not with sammy also when he arrived at the scene your honor he had the condom in the car with him so this is very similar spurlock in that the conversations that this court found that constituted mary being the intermediary for the anti spent it also was part of the substantial step that this court found that furthermore your honors it also this court found in spurlock that the enticement statute does not exempt sexual predators who attempt to harm children by exploiting their natural trust to their parents and the employees at their parents have over children it was that influence that mr whalen attempted to use to get to have sex with the minor also of note when mr made the call to the minor the telephone call to the number that sammy had purported as the number to her daughters he did and he used a feature on his phone so that number would be blocked so that when he called the miner she would not be able to see that number therefore the call was not an accident furthermore the text that will and continue to bring up with sammy and as a matter of fact there were several times that sammy stopped chatting with will and he reached back out and he was very specific and the last time he reached out before he arrived at the apartments and that he wanted both of them state lines and i differ with mr b it doesn't seem in his brief that he was challenging the admission of that under two thousand four hundred and twenty three b the travelling seemed that he was challenging the fact that it was not allowed under should have been given significant weight is not even considered and that is not the case here in this case the district court judge listened to the proffered testimony she was six she explained her analysis as to why she was not at this evidence in either of these candidates and the st one was the fact that she found that the traveling across state lines count that it actually address the mental state about whether he intended to have sex with a minor she also found because of that that it would be almost unreasonable to expect a jury to consider it for one count and not consider it for height and baddish those who are all reversed for other issues other than and the end admissibility at the expert testimony this judge the district court judge in the case at hand found that the purpose of the test that will and how he wanted his expert mr chip take to testify to geared more towards treatment she expressed concern that they were not geared towards innocence or guilt and that the test depended on the reliability of mr wailings giving the information to the to the examiner in a truthful manner and there were some of the questions on the examinations that mr whalen did not even complete discretion because it suppressed and from a art it did not allow the expert testimony that mr hospice was attracted to minors and that was the testimony that mr  going to me to be a reach well your honor it i won't say that it is irrelevant i did did and hoffa's if i might note there it joint several other circuits at that time and finding that whether it was not an element of twenty four hundred and twenty two dollars that the defendant tended to have sex with a minor but that he intended to entice the minor to do so the other circuits were the seven the six and the tent that have also rule that that's wouldn't be it could confuse the jury into thinking that they had to find that that was one of the elements of that case in which it was not also but we are read your argument is that you're really early going to rely testimony that it would confuse a jury and that she felt it would be unreasonable to ask them and i'd get a jury instruction to not consider it for one charge but to consider it for the other so yes i would agree with that also if i could differentiate our draw at the exclusions from one of the cases in kill us the th circuit also failed that the exclusion of the expert was not an abuse of discretion and that district court also found that it would be simply because the reports and the testimony would rely on the defendant's truthful answers to questions and that really the purpose of that testimony was to present the opinion that mr gillis in that case did not intent to commit the offense that is very similar to what the district court judge evidence to consider and part of the evidence that they considered was the physical evidence that mr willams showed up with in addition to some of the sex toys that he showed up and the condoms it also came  sex after he killed a cialis prescription that day on his drive and in fact drove over two hours from tennessee to central arkansas to have sex with this minor think it's also if you know to this court that mr whalen in the phone extraction that was completed was having multiple conversations with multiple women close by him in tennessee as he referred to seeing them and being within driving distance of them as well he didn't have to make the trip to central arkansas over a two and a half hour trip to have sex with an adult because he had ample opportunity to see the one difference there was that there were no chats with those women about having sex with a minor as there was with sammy it is also of concern are actually noted that mr asked sammy about some pictures that she alleged that her ex husband had taken up her daughter will and wanted to know it the daughter was nude in those pictures and if he she still had them and he wanted to see them if so that he could come and be with both of them together i think that dispositive comment from will and says the very it at the very end of his chat with sammy and that he said i want both of you and he said a the district court judge in this case also did have concerns about the reliability of the end for mation and she also found that there were some inconsistent says dr chu because this was a licensed social worker and many of the cases  testifying about the mental capacity that they diminished mental capacity of the defendants that was not the case here here dr chip it was supposed to testify explicitly to the fact that mr will t was not attracted to twelve year old girls thus going to his mental state and and the and the gillis case and the th circuit case if i may bring to the attention of the court one further note the district court lack that the testimony lacked reliability and they found that also on the same the same argument that the district court here will instead that it was hard to rely on that information because it too was going to come directly from from the defendant not from the scientific studies that would be done and height that and i say back to my time it's coming but the other cases that were relied on were remanded because of jury instructions not taking substantial steps and dicto twisting where the courts expressed their opinions about the expert testimony so for the reasons that we have given and the reason to go ahead and address that issue right then and there because it was going to come back up if they didn't so i don't disagree that it was dipped in the sense that they argued it but i think it's precedent i'm i think is that these he precedent and i think that  case is clearly distinguishable from the facts here and like i said is to kind of re touch on that the facts and height they were from the beginning it was all about the defendant wanting to enter that force his ability to express that offense or at least to put on it the fence was that important force it's a constitutional right to put on a defense and also to i think it becomes even more important when the defendant takes the stand and tries to explain to a jury that this is fantasy and tries to get them to come around as to what it is that's going on in news rooms and what fantasy is versus how people play it out people have reality and it's off it may be illegal a baby and in the confines of that in reality it maybe but people have those conversations and those conversations are protected so you have an officer in the beginning reaching williams who is otherwise as you know as the government is pointed out he's not engaging anyone else talking about children or talking about sexual acts with children this was interjected by the officer in this particular case so from there in that it was sandy's fantasy and he was playing along with that fantasy that's what he was doing so i think that that's different as far as the testimony from the expert again how crucial is that when he was trying to get up there to explain what's going on the you have an expert who can explain this and explain why people have fantasies and explain their evil who actually had fantasies don't actually fantasies out jerzy to understand that it's ok to have fantasies and that it's not illegal to have those fantasies now yes the expert could have just i think the expert who testified in all the things that miss shipley brought up with inconsistency is whether problems or those that have been subject to cross examination he wasn't going to speak as to the intent he was going to go in there and say mr mullins was not going to our mr williams was not going to participate in this act is just going to say that he did not have his exceptional propensity to do that so then the jury can decide on their own hey was he doing it for this purpose as in the ship he pointed out eight he was engaged in these these conversations with these other people during the same period time mentioning no children now mr williams has an argument because now it is the things i see he wasn't doing it over here it was doing it over here because sammy brought it into play and he was just going through the fantasy and