please the court my name scot martin i represent mr melton on appeal of his conviction and sentence in this case the attempted child enticement the appeal raises two issues first issue is whether a comment made by the district judge during the jury instructions distorted or added to the evidence requiring a reversal of the conviction on player review the second issue is whether the district court abuses discretion when it posed an unreasonably restrictive special condition of supervise release relating to internet access with the court's permission or address the issues that were giving the jury instructions a judge may analyze and dissect the evidence to sister jury and reaching a just result that may not distort or add to it in this child enticement case the defense was entrapment during the jury instructions the judge commented on evidence that was crucial to the issue of predisposition and that's mr melton's craigslist a which was government's exhibit number one specifically what the judge said was quote but the ad itself as i recall the wording there you're going to have it there also suggested a desire for in mine or for that  say that's that's a minor but it's at the very least he was adding to it your honor for a very brief moment what do you think an old team is how would an old team i think young what he meant by young teen a young person who is a teen why does it matter what he meant the ad says well it's what if he said it what if he said it oh i meant i was looking for a fifty year old woman with anything that would override what the ad says your honor it's our position that the judge essentially was acting as a witness  in this mr melton explained exactly what his man and his his post arrest interview was young teen him at eighteen or nineteen years old and this case the judge did give an instruction on entrapment and predisposition was an issue in this case and even the judge said that this particular viewed in this way this particular piece of evidence the ad would be the clincher that defeated the entrapment but essentially what the judge did by making this comment was make it so and as i said in the preview in the interview which the judge which the jury had in evidence that mr melton's explanation for the the ad was that it was badly worded that he was looking for a type of situation with which is completely belied by the fact that once the age that the undercover agent says i think what fourteen years old is my daughter he i mean i want to get into it but the the graphic messages i'm not going to talk about him here explicitly but repeatedly he in graphic sexual terms he's all excited about doing all kinds of things with this fourteen year old so so you're saying that's consistent with his testimony that he wasn't interested in young teens the defense was that he advert the advertisement was for a role to play types of situation and then with the government's very first communication in the e mails which was you know lucky for you we're an incest family looking for an addition let me know and then he responds look tell me about your daughter yourself at which point the agent begins to talk about how i'm a thirty two year old single mom and casey is an eighth grader and it goes from the excited about it also that look you know the show predisposition once you know it's forget it if you don't want to get into what young teen means we know what fourteen year old means and he's in eighth grade and he's super excited about meeting her and doing all kinds of things  that the council didn't understand that to be as you have and not characterize it taking away from the jury the ultimate clincher communicating that to the jury could you say that we would have to find that this was the clincher judge brought to the jury's attention something they may have missed in that case it was a signal of encouragement that the witness gave to the defendant as he was leaving the stand he kept court found that the comment seriously impair the right to a fair trial and reversed our position on this issue is that the judge essentially did the same thing acted briefly as a witness adds to the evidence and that we should be entitled to a new trial if you're with your permission i'd like to move to the second which is why why do you think the ad was  by ruling as a judge i would think that that's what we have here because he was ready willing and able he put the i think the clincher is is that ad puts you know kind of looking for love in all the wrong places or something you know the johnnie song there but the judge is saying that he thinks that this is the crucial piece of evidence that was on predisposition i was on a sidebar conference this was in the the jury charge conference before trial jury here that you know you know the jury regarding the supervised release condition a special condition cannot impose any greater deprivation of liberty than is reasonably necessary to advance deterrence protect the public from the defendant or advance the defendant's correctional needs for sex offenders the guidelines generally recommend  condition limiting use of a computer or interactive computer service in cases in which the offender used such items here the court imposed a special condition and titled no internet access without permission it's stated you must not access the internet except for reasons of proving advance by the probation officer our position is that like the special condition in sealed juvenile this one is overly restrictive in so far as it requires mr melton to seek prior approval from the reason that's correct he says you must not access your except for reasons approved an advance or in the process the probation officer can approach reasons that can be applied more than one time sealed juvenile in that case the condition was similar it stated the juvenile shall not possess or use a computer with access to any online computer service at any location without prior approval of the probation office the court this court interpret that language as requiring the juvenile to request permission every time he needs to use the computer every time he needs to access the internet this court recognized th discussing judge case and specifically said i do not think that you have shown entrapment i would not give it however i think that this circuit pattern charges even and balanced and fair and out of an abundance of caution he did symptoms of caution out of out of a sense of fairness he elected to give the entrapment defense as this court well knows to get an entrapment an instruction the defendant must make a crime of fish  showing first he has a lack of predisposition to commit the offense and second some government some governmental involvement or inducement more substantial than simply providing an opportunity or the facilities to commit the offense has been brought to bear in this case that did not happen he did not testify he has no burden to testify the only time entrapment was discuss the craigslist ad said i would love a young teen young teen to be trained to be a daddy's little girl or a daddy's girl please respond etc once he says younger female ones he says young teen simple english construction as the prosecutor noted in closing argument there are seven ages that involve teenagers thirteen to nineteen the median or mean being sixteen a young teen would be thirteen to fifteen an older teen would be seventeen to nineteen opposing counsel has in his brief a statement from melton that he is in tint his belief was young teen meant someone eighteen or nineteen that does not appear in the transcript it may very well have been part of his videotaped interview that was played to the jury during the trial but that information is not in the transcript because as you undoubtedly know the court reporter simply puts in a tape played to jury be that as it may as judge costa said melton worded the milton place the  government had absolutely no involvement in any portion of that if you wanted an eighteen or nineteen year old or thirty five year old earl labrador retriever he could simply have said so young teen simple common english usage suggests that young teen is thirteen to fifteen or possibly thirteen to sixteen in any event it is below the statutory age of eighteen which defines minor in the federal system melton shows young teen melton used young teen and other than the agent's use of the phrase lucky for you were an incest family in her first email response to melton every single explicit sexual discussion and there are discussions on craig's list or discussions by text there's discussions in yahoo chat every single sexual discussion was initiated by daniel melt the ancient followed up when melton began the discussion but every single explicit discussion of sex begins with the defendant daniel melton judge kazan was simply interpreted in young teen as minor i completely reasonable interpretation every single case from this court that's reversed based on misconduct by the trial judge commenting on the evidence in the volves something far more egregious than this judge kazan told the jury at the start of the trial what i the district judge say is not part of the evidence it is not to govern you i will interpret the law and you the judge  interpret the facts right out of the pattern and structure in the closing instructions here told them repeatedly you are the judges of fact he told them seven times the government has the burden of proof you interpret the facts i will give you the law the only thing that they complained about is judge case and selection of i think that he said minor and judge kazan prefaced his remark with minor and then immediately said but look you'll have the printed out craig's list pad with you when you go back to the jury room if there's any question you can read it the jury had transcripts of the craigslist conversations they had transcripts of the chat conversations and they had transcripts of the e mail conversations so there was absolutely no question what did that they were clearly and unequivocally instructed to consider the consider the evidence for themselves and judge case and in no way shape or form committed any sort of error since there was no objection of course it's reviewed for plain error the united states would s there was no where if there was it certainly wasn't clear obvious as indicated by judge higginbotham series of questions trial defense counsel was sitting right there this was not a six week rico trial or a lengthy white collar trial it was a one day entice thing a minor case it was argument and jury instruction on the morning of the second day and a verdict i believe before lunch so the jury could hardly have forgotten what they heard yesterday morning that you are comment if there's anything on the first issue i'd be glad to address them as to the condition of not using the internet it's absolutely not overly restrictive in the first place the objection  trial was this condition is a little vague that objection i would respectfully submit is a little vague there was no statement that this unduly restricts my future use of the internet to fair trial defense of counsel came up with the example of suppose when it gets out to you access is a is a cup machine that has access to the internet an overzealous probation officer sixty vote is supervised release and then defense counsel conceded that was an over a tious example the simple fact of the matter is the only requirement is the that he get advance permission from the probation officer to use the internet and i would respectfully point out that he has one hundred twenty months to compile a list of internet sites that he needs to visit with reasons why he needs to visit them and the circumstances under which he be allowed to use them he has an abundance of time to decide what he wants to do on the internet and why he wants to do it yours what i just heard on the first issue was a very nice jury argument as to why mr melton was not entrapped we're talking about the judge adding as to what was in this case the evidence was the ad and the judge essentially assume the role of the witness again for a brief moment and testify about what he recalled that the ad said and that is our complaint as far as the interview the interview was he said to the jury look at the ad they would have looked at it right so they would have seen this big they would have seen they would have seen that the judge was so wrong in your view if he had said it said they had to add you're the one saying there's such a big difference between young teen and it's such a key piece of evidence they're going to look at they would realize oh that judge he messed up look it actually says young team which isn't which isn't a big problem let's find out for a young teen you're in care see it which is the supreme court case for not and you don't answer my question that's what i this is the answer you are the influence of the trial judge on the jury is necessarily improperly of great weight and his lightest word or intimation is received with deference and may prove controlling but our case law says if the judge says your alternate we the one to have to decide even though i said this it's ok at this holistically it is what the total communication to the jury has struggled for many years to encourage district judges to talk to the jury in plain language and to get away from the pattern