doesn't mean that just because it's a terrorism prosecution that fair trial guarantees are no longer applicable i think that's what happened here i want to scott's two aspects of that  evidentiary issues love about the photos and nd the sensing now here on the terrorism counts the government's basically almost entirely of its case will center around parading so let me ask you about that so it seems to me that the tweets and the photos that they accompanied were relevant given that the defendants were saying our intent wasn't anything about supporting terrorism our intent was just to go get married at that point it seems like the tweets at least some of them are relevant looking at them they're very horrifying but once you have some horrifying photos like that like how much difference does it make if you have more of them i get seems like you needed the government needed to show some of them and it seems like you're arguing they showed to many but i don't know if the well reaction get that much bigger when you see more of them than after you just see some of them  media accounts this is a long period of time judge freedom to question i think was slightly different if they had said yes we were actual supporters but we didn't have any intention to commit terrorism you're not arguing this stuff was irrelevant your arguing that you're making a for three argument or that's correct when we review the district court they're quite differentially why did this step over the line assuming the evidence we counting the history of the tweets so what what does that what happens now then when you add the photos you asked i mean did the defense ask for only the tweets and no photos i wasn't sure there was such an objection exactly there was an objection after some of them been shown that that's correct so this is back to my question that once you see several gruesome photos that were on objected to so i don't see how we can say that was error i understand your argument that the rest of us are hearing a lot of but it's also cumulative in terms of the  are the same as jihadi johnny slicing the cents off that they stand in as a proxy for that in the minds of the jury because they keep saying this over and over again  you go back and match up the objections and in the photos a bunch of really gruesome photos came in obscene objection and there a bunch more gruesome photos were offered in their view actions were made so your argument is really that it was cumulative isn't it as opposed to all here because it lets assume we show the jury the most gruesome photo in the world and we show them without objection and we show them for more gruesome photos over objection can we really conclude the other four were prejudicial well the other admittedly this is a tougher argument legally but the other argument is that it was plain are dull and that any of them and there's i don't believe the government make sure you didn't read it it's time we did the sense also is a highly deferential standard i understand that but what happened here and i think in part because the guideline and the briefing goals and why that guideline is is wildly inappropriate here in the sense that it's a one size fits all guideline  distinction between the really dangerous and scary people running around in this country and someone who like support eisel but you know and i saw as a terrorist organization there's certainly no dispute about that but that doesn't mean that he was going over become a terrorist in the what i understand the difficulty in the argument because a standard review but how would we say the district court erred he didn't look at comparative sense as he just didn't give them the way you thought they should get and maybe maybe almost is normally determined by looking at the other defendant in the case for example that doesn't help here and looking at comparable cases at the district court you subject many coverable cases boxes checked all the facts but this this case stands alone as someone except for a costco defendant someone who got thirty years for buying a plane ticket  person that we want to sense to thirty years in light of all the really dangerous people who have done far worse things are planned far worse things around the sense just seems excess because wasco the situation where it were it was brought up at the beginning of also brought up during the course of the trial now in boston as of last it was not brought up at the close of all the evidence but in that in that case they indicated that would you would you can you get to a point where you get your point where pursuing the severance motion has been done to the point where to resume it even further would become a formality that's what the court decided and the boss has vaska now it's all submission to the court that in this into a should it was brought up by the beginning it was brought up in the middle of the trial on day three and then there was more information about about the severance that happened after the codefendant statements came in other words that happened after day three did not that happen every day three in the purpose of the rule that is to say well maybe it was ok to deny it on day three but now that we have the codefendant statements and judge you really want to sever this and he didn't renew it that point so why is that why it's not a problem well you know it would have been better in my opinion if it had been renewed at that point but you still have a situation where can make your arguments and then at the if there will be a record of all this for the court now and so then at that point it's our position that counsel for trial counsel had made her mutually antagonistic defenses when one person implication the other one and then the nd person says i was not involved in to take a reference if it's a case where they discussed that someone to get married it's like those are consistent so i have a lot of trouble understanding this antagonistic argument that mr budowsky says gee i just thought i was sending somebody over to get married this codefendant that's right maybe duped him into giving him the money to get married but they both say neither of us had any terrorist inclinations we both thought this was a money to get married maybe maybe mr mystic mispronounced name the codefendant lied about whether or not you know he wanted to get married maybe he wanted to go for some other reason but that's not an antagonistic antagonistic defense with respect to the specifically for the purposes of going overseas to be a part of beisel but it's still it's still our position that that that duping in of itself is a nuff in order to create the me joy in talking to stick defens anything that's going on with the co defendants trial that i don't understand well our position is that a position is that that it's a position is that it that it's inconsistent because because although although be acquitted and the other well it's not necessary for your client to be acquitted that the codefendant there was it was planning to go the whole time and that he that he had that he had basically pulled the rug out from under mr barton let's assume that's true let's assume that your argument to the jury is look maybe mr who sail committed these crimes and the way he got to do so was he duped my client mr jose oh didn't present tagon istic defense to that his defense was no i didn't you know i didn't we're joined it would have been more to it seems like what does the word antagonistic is what's in the case but that means there's a logical contradiction it seems like maybe what you're trying to say is it's antagonistic in the sense that it's mean or something like bad or bad or we is blaming his codefendant and that is antagonistic and he's making some kind of they're mad at each other point but that's not what antagonistic means in the case is that what are you trying to say it antagonistic because he's blaming him and that shows they're mad at each other so they're antagonistic to each other in that sense i wouldn't i wouldn't i wouldn't say that because i don't believe that that is what is what is going to get a little bit of time for about a year from the government and let me just make clear for the record before there's a number of other arguments that are made that are preserved we don't need to do make them today we will brief and we will you good morning your honor and may peace accord julius nom for the united states intent was the central issue at trial in this case and the district court well understood that to be a does entry point of  what is the intent requirement there entire intent requirement here as to the terrorism offenses are as to conspiracy conspiracy and attempt and aiding and abetting so with regard to conspiracy and intent to engage in turn into an agreement and as to the attempt intent to make that attempt and it ing and abetting would be the intent to it and the bad the attempt by the codefendant and so the intent here was the central issue at trial well i don't think anybody doubts that here's here's the problem and maybe it's not for us photos in this case and counsel's point which i think is well taken i only introduced for the purposes of showing intent of the substantive crime itself so that the jury isn't overly swayed by emotion certainly you are the government does have the obligation to the many photos in were there here altogether there were two hundred by my count of the total exhibit a list of social media photos and tweets and such that were admitted at trial and that was just a small portion of the exhibits that are challenged here on here on appeal but always challenging just for items for photos three photos two of bin laden one of and the th of world trade cent on those i may be wrong we have certainly briefed that you honor and made you read but go ahead tell us tell us why assuming plane errors in front of us at least some of the more gruesome ones weren't play  but they're not saying they're not relevant at least that's not a good argument there are real argument is look at for three some point prejudice overwhelms relevance with respect to whether objected to or not and that are not the worst of the photos and you can you can figure out which one it may be doesn't at that point the only being introduced not to show that they committed that but they sympathized with that nine months before his attempt to to leave the country and over the over the period of time you have a clear evidence of oath taking to support isis on october twenty one two thousand and fourteen after that point forces that are at issue here and so the government has the burden to show that there was a conspiracy or over it at least a seven month period if not longer between these two individuals both by treating both of them through eating both of them sharing information about their support for isis and also having a pattern of going from account to account to account to show their agreement in this conspiracy and they're at and their goal well as material support as a fighter and these tweets show what their intent was what their goal was which was to go to have a losing all go and serve as a fighter attempt make that attempt on may st two thousand and fifteen on the part of mr that this case is far in terms of the prejudice that judge her if you're asking if there was any significant amount of prejudice prejudice here it's far less than all we see in cases such as the hum mood that the government has cited where there were six plus and hear no video was shown that were connected with the a social media posts we could have shown the videos but we chose not to and and you know one of those videos was linked to one of the tweets and that you know that showed beheadings of christians on libyan shore which the government decided not to introduce at trial and you will also see in the in the in the final exhibit list that there are a number of exhibits that we could have tried to admit but chose not to and so the government exercised restraint and potential decision and the district court reviewed hear one person saying i was duped into going to getting a plane ticket to go to turkey and israel and i had no intent or i was duped into giving a guy the is really and does not really meet the standard or the or the let me let me change the factual sort of mired in this case let's assume a bank robbery is committed with my car and the government wants to show that i conspired with the guys who actually did it to let them have my car and my defense is no somebody asked to borrow my car to take a sick grandmother to the office the doctor's office and i said sure our defenses and tag tag mistake indicates the other guy simply says i didn't rob the bank and i said i did i don't know what you're up the bank or not but i didn't give you my car to rob the bank where there are some interrogators and there's there there may be some tension but that's not the standard there is the standard is whether the code the core of co defendants defense was so irreconcilable that that that defense precluded my acquittal and that would not happen in your hypothetical certainly not hear of the claim other who assaulted the victims there it had to have been one or the other and they were pointing fingers at each other that did not happen at trial in this case what the waiver issue that you heard is not jurisdictional those are the words we have the discretion to take up the merits of this case do we not my understanding is that when there's a way for it's not reviewable right but if i guess the question is whether we have to determine whether or not it was clear on this record that renewing it there after would have been a few that's correct there are exceptions and this could this court can find that the defendants have met the exceptions which we have course argued that they do not meet the exceptions of diligent pursuit to what standard do we review with if they've met the exceptions so the district court never obviously what the rule what's your what's your standard of review of their argument i don't know the answer to the question you know that's why i haven't like you're saying we have to figure out that one of these exceptions like if we think it's easier to just say there's no antagonism here can we just say there's no antagonism here that we have to figure out whether this was preserved because the parties have raised this should because the government has raised the issue i believe that the course should and because of the facts of the case are such the see the waiver issues tough but we don't have to wrestle with it because we've got the merits and we believe the government prevails but you're saying we can't do that if the court  we can do whatever we want i mean asking what you think we have the power to do that question as the government government understands the defendant defendant was alles argument this is the core of that argument is that the district court should have exercised its kimbr discretion in disregarding or disagreeing with the three a one point for the terrorism enhanced meant and very down from thirty years which is the low end of the guidelines and we disagree with that strongly because that's not what kimbra teaches kimbra provides district courts the discretion to have up based on policy disagreement to a very downward but it doesn't require it and here there no issue raised below the and the court made it very clear that it agrees with the application of the terrorism enhancement at sentencing and asked the defense whether he the court had the facts that were proven at trial beginning the procedural answer like what facts do you think justify the thirty years and i think the question the district court found that the defendant was unapologetic quote his  crime and had repeatedly made statements throughout the throughout his conspiracy not only in support of isis by showing his desire his intent to join isis as a the district course that there is no remorse there is no repudiation of eisel there's only the message of death and destruction and this recall was greatly concerned that at age fifty five when mr ellis ale was expected to be released from prison that he would still have vigor in him to commit terror so based on the district court's findings of defendant being unapologetic well an unapologetic supporter isis and having that willingness to engage in violence this record made a proper finding that he represents danger to the community the community should be protected from the defendant that deterrence is absolutely necessary rehabilitation is going to be very difficult and that's the disparity issue the district court was presented with a fairly lengthy sentencing exhibit and papers from the defense showing other cases by the defense as you noted judge carter noted other cases notably another case that was that had recently gone on in santa ana in the central district of california and distinguish that case and other cases then said here based on these facts based on what this defendant has shown a the low end sentence of thirty years is appropriate and that decision should be  one of them was justified and i guess the relevance is that if they're reporting a gory photo that shows some identification with that but there was absolutely no need to show more and they were all display make no mistake about that ok i quickly there when they were all displayed for the jury and for the argument that the judge exercise discretion i don't see that in the record not the only response he made t things doesn't give it any more relevance and to suggest that in a terrorism prosecution if you find these you can display in the jury as long as intense as issue is just wrong school for their arguments and briefing in this difficult case we appreciate on both sides the effort put in on behalf of the government and and the and the defendants in this case and with that we are