today's cases will be called as previously in out the times will be as a lot of the counsel the first case today is number one seven one one two three united states versus randy cherry is  so there are two issues that there are two issues that we argued i think they were pretty clear one was were characterizing as improper comment in a closing argument and another wasn't  was the defendant decided to testify in this case and limited his testimony to certain specific aspects of the case like explaining that maybe the f was brought up and direct was he explained explain the vaseline and explain to the tinted windows and every question that was posed to him about guilt or innocence from the prosecutor was sustained by the trial judge and i assume it was sustained for scope for scope objection it wasn't it wasn't challenged it was sustained and he never ever ever talked about whether he was guilty or innocent was never asked and and didn't talk about that and the two times the prosecutor tried to do that and they asked about isn't it true the pictures that you have more clearly for minors thirteen fourteen is an objection it was sustained that was the end of his testimony nothing nothing else was brought and about about guilt or innocence he wasn't asked nor did nor he say so when you get to closing argument and the prosecutor and i think in all honesty i probably phrase this wrong in terms of my argument i phrase it in terms of the of affairs the memory to remain silent clearly he weighs that right when he gets on the stand that's what i thought you are you e m that's what i argued but it's more of a fifth amendment due process claim isn't a prop and i argued this too as an improper closing argument because she and the judge intervened in the in the closing argument the defense lawyer didn't object to it but the judge intervened because she said she's me i'm sorry i was here well that would be that would be obviously that would be the argument that the judge heard here and it by giving didn't bite by giving that instruction but i would argue that the  a period of instruction reviewed it with counsel and counsel specifically agreed to this instruction that it would take care of it he did and so so this is not a matter of somehow counsel was in attentive miss something and that situation plainer might apply this is where the attorney specifically in gate with the judge on a curative instruction s that's fine i want you to give that that's a sure sounds like a waiver argument to then argue that that was wrong that wasn't enough but it seems like it runs afoul of a pretty good waiver argument well not good enough and he didn't make a motion for mistrial absolutely and i understand that i can't from my position argue ineffective assistance of counsel i don't know if anybody else will if it ever comes to it he b s but but in my mind this was joining us it was the judge's suggestion and and i mean that would be that would be what you would be ruling on it was this enough wasn't enough to cure to cure it but she gets up there and and in his you know just right out there says he would have denied it if he was not guilty first of all think about how many levels that argument is wrong i mean it's speculative it's talking about facts not in evidence and it is commenting on his right to remain silent even though i understand to a certain degree you're giving that up when you testify it was limited to certain things and it and it didn't include that so i thought it was a fairly good regis in your face argument that should have been made and sort of the judge whether the judge's instructions heard it or not or whether it's just with us as that's a waiver you know we would we would argue that in our mind that wasn't enough but we do understand what happened and we do understand the procedural aspect of it as to the rule twenty nine i understand i don't think this court has ruled whether an expert witness is necessary to prove the ages of ages of minors in child pornography cases and this just goes to  two but all we have here was a a law enforcement officer who was who admittedly said i'm not an expert i'm not a doctor these pictures look young to me i think they  mean whether this court decides to to i understand the caps case and we all quoted the cascades in the time of the fifth circuit and they say it should go by my case case by case basis but all we have here is really question is in this case was a myth in the non action or who testified as to what i think what i believe the pictures are they looking young to me is that when your orders may please the court christopher smith for the united states your honor is after repeated warnings by the district judge and against the advice of his own counsel the defendant in this case testified and attempted to explain away some of that the scope of the individual's defendant's waiver is coextensive with the scope of relevant cross examination in this court's case law and in the supreme court case law the scope of relevant cross examination are matters reasonably related to what the defendant talks about direct and here your honor i think that that standard was easily met this is not a case where the defendant attempted to talk about me or collateral matters such as the voluntary ne confession or something like that the defendant went to attempt to negate the circumstantial evidence of this guilt directly before the defendant went to the witness stand and the victim in this case it testified in one of the subjects of the victim's testimony as being the crane the defendant had used the defendant got on the stand and when asked what was the purpose of his use of vaseline said that it was his medical condition but left nothing to be said  response to what the victim had just testified so that's one of the few instances in the defendant's testimony where i would point out that he was he was going specifically the government's case on guilt or innocence and under the rule of cam eddie as the ninth circuit explained in the first case that we cited in our brief that was perfectly appropriate for the government to comment on it was a half truth it was a comment on the defendant's credibility during the closing argument  your honor i would just make one point about the rule twenty nine issue as well as judge thompson notes the photos them selves were in the evidence in this case also the defendant's statements to law enforcement were brought into evidence in this case and the defendant stated to law enforcement that he was looking on the internet for images of children sustaining and also acts that were around the edges of twelve or fourteen so in addition to the descriptions of the photos that are in the record in addition to the photos themselves the photos appear to be exactly what the defendant himself said he was actually looking for and i know that the district judge in denying the rule twenty nine motion stated that well looking at the pictures i would go the opposite way i think that the pictures that depict specifically the organs of a minor i think anyone who looks at it may conclude these along to a minor