case number one is numbers fifteen twenty four thirty two fifteen twenty four forty seven united states versus green in the colors and th focus on primarily in the time i have here this morning is whether the evidence was sufficient as a matter of law and facts to support the convictions and sentences on counts two and three the the defendants were charged essentially more than three four count indictment which the first being in possession or distribution of child pornography or conspiracy to do so while we don't question the adequacy of evidence to support that conviction sentence for which show each received twenty years which was the maximum one year walk occurs five to twenty years the sexual exploitation of children provision found of eighteen u s c twenty two fifty one and the child exploitation enterprise provision at eighteen twenty two fifty two i submit to the court essentially our enhanced provisions what they do is take what is the substantive crime or conspiracy to commit the subject of crime as count one and which is the child exploitation provision anyone who uses a minor or to engage in this kind of sexual activity and then films that and beyond that this is the most important component of our case gives notice an advertisement offering it commits a violation of that provision now advertisement of child pornography it's rarely if ever going to possesses something which is contraband and then somebody who dispenses or delivers it or transfers it to another that of course is just tribulation that actually are the predicate offenses or the facts of the conduct that comprise count one beyond that notice an advertisement enhances it notice an advertisement it is our position and its opposition in terms of the facts of this case is that when there are a dozen or less people all in one confined close group who have usernames and who have layers of encryption and by invitation only and by group only confined to that group traded with each other does not meet the acts and conduct congress was intended to prohibit what was congress intended to accomplish by that language i think congressman is intended to prohibit first one of the out of the child exploitation law first the actions or conduct if you contact me i will make this available to you i will distribute this to you and and why is that something congress would to kuli want to prohibit because because it is the interest of the public and this is the interest of those members of the public who participate in this very horrific conduct that they want to curtail and the curtail it by making anybody who engages in this kind of  group continues thrives the trading that goes on within the group thrives on it why is it any different whether you're advertising to the general public you're advertising to these people who are really nothing more than a specialized market rightly because they're because it's a close group doing it with each other they themselves who go into the public marketplace and find it go online and find it or see an advertisement find it and have it they're committing caught one there because actually in receiving group is just one way of trying to avoid detection by law enforcement it doesn't immunize the perpetrators from the criminals chain right well  that the the provision itself looks to enhance from the first count and it's our position respectfully that what this essentially does is this is this is a larger greater conduct this is bigger than just  g that and trading it with another person to possess it in trade with another person back and forth over a ten year time period of a closed group i don't see why trading within the group isn't as permissions to the development of the market a right well there is that there is there is some some i guess abstract discussions as to whether one can aid and abet a conspiracy by being a customer of conspiracy we know that case law we know that somebody can as a customer of something can commit that crime but if you wanted to enhance beyond that those which are actually in the marketplace i mean if you look at this for instance like the hollywood film industry people who are in a movie club and trade with each other even large libraries of it which is here a close group of twenty four people they are not west coast radio they're not netflix they're not making these movies they're not exploiting the people in the movies  even likely that members of one such private group have membership in other similarly close groups so that the child pornography that get honor we're talking about multiple conspiracies and it can multiple conspiracies that would be multiple violations of eighteen u s c twenty two could you do any which is count one you know that the point we make here is that these two individuals are guilty of count one they receive the maximum punishment for that but then to go on with that to say ok now we're going to carve out from your conduct which comprises count one over and over again and make it spare an embedded conspiracy conviction the conspiracy conviction is the lesser included in the c c the conspiracy conviction has to go absolutely it merges with the c c and re sentencing is right now i mean very only one conviction can be entered that's the bet that's pretty much solid in this and other circuits and that's why there's no question but the county wanted to must go all right so we don't really have to decide this notice or advertisement issue because the two conspiracy counts have to be if you reject my argument in whole yes then you don't have to do that  and there was there was no massive transfer of files on his part through the f t p system all of his transfers that the government brought to trial were internet relay chat transfers  there was no abuse of children there was no pantech the children certainly no production and other defendants in this case had those in their in their thirty five fifty three considerations and mr gryce received a double sentence now he didn't testify at trial so certainly he wasn't entitled to a five k anything like that but he cooperated with the police when he was arrested and he had there was there was evidence presented at sentencing that there was a very low risk of recidivism that wasn't credited by the trial court there was there was evidence that he had good community support and and that his age when he was when he would be released under the higher end of the guidelines would be very high and the trial court credited none of this for reasons that were unsupported by facts just saying that if if somebody doesn't stop you nobody will and there weren't any facts to show that he would refund the government to the but any facts it seemed like more of a trial tax to give him the maximum sentence on these convictions and for those reasons  it please the court stamper on behalf of the united states defense official c claim is unsupported by fact and law as a legal matter there was no manifest miscarriage of justice in this case there was overwhelming and undisputed evidence presented at trial that shows that in an online chat rooms the defendants and other conspirators used descriptive language to inform each other of newly available  there any minimum number of persons to whom it must be have retires i mean could could a conversation between a few family members it could be your honor in fact it would be possible to send an e mail to a friend or colleague informing them of a baseball ticket that is available for sale or just simply to give away for free defendants attempt to read in an arbitrary and possibly induce others of the availability and this case of child pornography available available for sale and because at because the statue chanel or trade sale or  trade specifically your honor it is not only sale or trade it prohibits any notice or advertising seeking or offering to provide or receive pictures of minors in gauged and sexually explicit conduct that's correct your honor and there is nothing in the statute of twenty to fifty one thousand one day that requires a particular number of people because the statute uses plain every day words we look to the dictionary meaning that's true your honor but it bears noticing that there is no public component in two of the six advertising definitions there is a public component but of the eighteen definitions of notice there are zero definitions that involve public component and there is nothing in the legislative history that suggests that congress intended to prohibit this to small groups wouldn't it be better to look at the terms s final argument as your honor mentioned it defies reason that defendants efforts to conceal their criminal conduct through the use of private private online chat rooms should insulate them from criminal liability and as a factual matter the defendants claim that this was a closed group of twelve people is not supported by the record the group did not have twelve people at the beach you testified that there were twenty five to thirty members of the conspiracy and this is supported by the record in volume two i pages two fifty three three seventy one and three seventy four there is reference to  one there's reference to chase box father damon two k dark side cadets cozumel and kid burrell your honor it is not the case that this was a small group of twelve participants nor was it the case that this was a closed group the officer excuse me the testimony of officer barnes introduced chat rooms that showed the participants considerable anxiety about the members of the groups that were coming in and out of the chat rooms likewise the testimony of leon explains that one of korea says core duties as president of the chat room was to admit new members so it is not the case as a matter of fact that this was a closed group of twelve participants categorically lawful that's correct your honor which is part of the reason that we the government is conceding that there is a right and in the there is plain everybody should have known that the rutledge principle is well known and you should have known it and the judge should have known it and the convictions merged you can charge it this way but you can't get three convictions in this situation you can only get one and so there should have been entry of judgment of conviction only on the c c count and not on all three  that is correct your honor of course i'm under a block program alice's however blocker principles do not apply when this offense or excuse me when the punishments are based on different often so this is the same offense it's the same set of conspiracy it's not a set of conspiracies it's the same conspiracy and the difference in the duration as charged in the indictment doesn't make any difference here because it's all the same  conspiracy or enterprise for the lead offense in this case which is count three the c c offense in fact that you didn't charge the first three years of the activity even though you knew about it for the c c offense doesn't get you off the hook on the double jeopardy violation is this could turn misconduct you know about it you should have recognized that this was a double jeopardy violation and that's a true your honor which is why we agreed that there was a in practical difference there is no practical difference if well of course we do not it is not the government's suggestion that his rights were not affected by a conviction we do not argue that and i  any error on prong one was not plain because as this court stablish the factors in castro there are several factors that the court should consider when deciding if a conspiracy is one or two for double jeopardy purposes some of the factors as your honor mentioned are present here which would suggest that they were to conspiracies they involve different time zones different time periods from two thousand and three to two thousand and six and there was six overt acts and the government took pains to present evidence of those acts the testimony of jonathan bridge but all the same course of conduct among the same individuals you know covering the same on that front your honor we do believe that it was not plain because of the considerable evidence the government senate between two thousand and three and two thousand and six and this court in shiro has explained that when deciding if if a conspiracy is one or two for double jeopardy purposes one of the factors to consider and what actually arguing that the period of two thousand and three to two thousand and six is a distinct and separate independent conspiracy i am not your honor i'm arguing that it was not  pains to present evidence at trial and also alleged in the indictment of criminal conduct between two thousand and three and two thousand six and again the government concedes that there was a double jeopardy violations here and it's not suggesting that it didn't occur but  unworthy of the justice department understood i understand you had your marching orders yes thank you your honor and with regard to the sentencing  defects during sentencing instead they really suggest that or they disagree with the way that the sentencing judge weighed the substantive factors and this does not listen basically your reasonable what did he do that made somebody call him the president we don't punish people because other people put labels on your honor as president he was also referred to as ops as the operational leader of the chat room  he was responsible for moving the chat rooms when he was concerned about law enforcement discovering the location of the chat rooms she was then also responsible for distributing the location of the chat rooms as well as the passwords  for the chat room and she was also as i previously mentioned in charge of determining it missions for the chat rooms his sentence was within the middle of the guidelines range and there was in fact another conspirator that was sentenced to three hundred sixteen months which is the same amount that chris got so his argument that he received a disproportionate sentence compared to his conspirators is not accurate could you refresh my recollection where or it was it was during the testimony of that but b two and leon and i believe as well as the outstanding number of images and videos of the government and suggest that the within guidelines sentences here were reasonable if the court has no further questions the the government's use of this indictment in the way they did to this criminal trial lawyer was as obvious and plain as can be and i agree with you your honor that that they should have known they should a corrected at instructions the issue of correct at the close of the case they in three others and the evidence at trial was that there was something like ten search warrants executed there were eleven or twelve people named in this conspiracy the three government witnesses that they brought in identified as many as eight or nine ten in the conspiracy with them that was their case that was their proof that no time in opening statement and no time closing argument and no time sentencing did they make this thirty five to forty people this twenty five to thirty people argument all we have is the record about evidence from the and from there miles in front of that jury they identify jump eight to ten other people eleven twelve but just if you look at the best past that matter yes it doesn't matter because essentially it's this you think about it because lawyers i make my law library available to somebody he makes his law library bill to me they're all mark we go into each other's law libraries i'm not noticing in advertising i'm sharing my library with another lawyer and if there's ten lawyers or do it that's simply not public notice never tries it like a library or like go ahead how much your honor's with regard to mr cries in this notion that he was somehow the president or the leader this was offered in testimony by cooperating codefendant and there was no other evidence offered that he orchestrated anything had exclu control over the admission of people into the group he may have been there at the beginning but there was no evidence offered a trial that he had the keys to the castle i know there was this one right  and it was believed and but that was all the evidence there was there was no other evidence for and it wasn't in the pre sentence report and all of the members had equal access to everything all the decision making and with regard to the sentencing again he committed the same conduct that most people in these kinds of cases commit and no other contest there was no proof that the government offered any images going to other people outside of this group or you know no proof offered by the government about where the images came from this is a close friend this was people sitting around their kitchen table congress wanted to penalize people for going into larger grounds they didn't want people putting out electronic classifieds the suitcase with use of the cars a platform that allowed unlimited access to anyone who came across it this was different here this was this was truly a closed group and mr gryce conduct was amongst the least egregious of all the people who were involved in this no contact offenses no production and he cooperated with the police and certainly sentences to long and count