good morning and welcome to the rd day of our panel sitting here in jacksonville st apologies for the late start we got stuck in the elevator this morning and had to wait for the fire department to bail us out thank you addressing in oral arguments primarily here this morning i do believe that the briefs of the parties mr draw for his brief in the government's brief adequately sets forth the facts unless the port has any questions concerning the factual statements so i'd like to want to indicate to the court that st of all with respect to the argument that the court erred by first procedurally by not adequately and accurately calculating the guidelines and then substantive senate be imposed and so on to get that out of the way with respect to the argument concerning the defense theory of instruction number sixteen i think that is really the crux of the issue that's before the court let me just state that that having read the transcript having seen the testimony presented i think there was an adequate basis for the instruction and one of the standards of instruction should be considered requested special jury and scene may have been an accurate statement of the law it may have been factually sufficient but i think just because language appears in a case doesn't necessarily mean it's appropriate to instruct the jury word for word and that's what was done in this case i don't think there were i think there was evidence to mr or stated that he was roleplaying that it was all a fantasy and i think that there could have been crafted age special jury instruction dealing with roleplaying and dealing with internet fantasy without the added verbiage which i agree with the court constitutes comment on the evidence is unnecessary verbiage that being said the court then confronted with the problem of this is mr orr's theory of defense this is really his only defense the chats as the court notes from the record are extremely damaging there is no question that at least in mr orr's mind he's dealing with an individual that is under age there's chat back and forth about sacks and so really mr or is only argument to the trial jury was that it was role playing and that was fantasy and its successor counsel's position that some instruct was necessary that the basic standard jury instruction from the th circuit dealing with intent and mens r intended to cover the waterfront in terms of crimes that require mens rea a but here because of the added element of substantial step and mr orr's position at the trial that all of this was fantasy all of this was role playing that the district court abused its discretion not by necessarily denying the special jury instruction number sixteen as worded but denying it completely and relying on the standard jury instructions to cover the issue of men tailoring the instruction to be a more honestly more accurate statement of the law but a more helpful statement to the jury in terms of how to process role playing and fantasy with respect to   but not necessarily appropriate to to instruct in that fashion as requested but because this is mr or is complete theory of the defense i think it was going to be did tonight i think the judge s one that was denied was the one that was submitted and it's our position that there was a an appropriate of instruction that could that's a pretty big burden to put on a trial judge to reword a charge this been submitted by a the theory of the defense this is not a situation where it's trying to modify or in any way take away from the standard this is the theory of the defense in order to give the jury the context that it's necessary to decide the case that they don't they don't know how to put role playing or fantasy in the context of mens rea and substantial staff and i agree with the court it is a burden on on the trial court to fashion a different language but i think it's appropriate and necessary to do it when in the take your case that is his theory of the defense and without that honestly he has no argument to that i see my time has expired ever serves time thank you you saved all the time for rebuttal thank you very parties are always going everything parties are always by unary they're all or nothing they're side wins the other side loses and the district court is often faced with have started and the language is as follows the defendant has claimed that he was merely role playing or living out a fantasy and that he believed it was an adult pretending to be a child and that he had no intent to entice or coerce anyone under eighteen years old to engage in sexual activity i think the follow up to that would be when you're considering the issue of mens rea you are entitled as a jury to consider whether the defendant was in fact role playing was in fact engaging in fantasy as he suggests on the issue of whether he had the requisite mens rea i simple as that let me also the toward the end there was age ten the question was asked about why he didn't travel and the officer asks quote because she was too far away in the full context of mr orr's answer was no because she's under eighteen there is no way in hell i mean you can role play all day long that's a lot different than actually going and physically meeting a person who may be under age so i think that places in context at least what mr orr's meat statements were to the police concerning his intent and again that was the theme throughout the course of the trial that he lacked the requisite  think an instruction was necessary in that the standard instruction as good as it is in most cases isn't in a case like this and that by depriving mr or of an instruction regarding his theory of the defense  take your time to set up our next cases number eight