just for defending the pound and tonio ballard i'm going to be focusing my argument on the improper prosecutorial some nation as the court is aware it's a three prong test first what the severity of the improper summation was to whether there curative instructions submission is that it's on the high end of the spectrum not only do you have it starting right at the beginning and continuing through the and being repeated also the tenets that were violated frankly span the spectrum of what improper argument could be this isn't one of those cases that we've seen where there's a stray remark in there began the beginning went through the and was of sufficient weight that are up is that you find on the high end of the severity spectrum the government and myself in the breeze obviously went ahead and detailed different statements there there it starts with pieces of meat well let me say it this way there are a couple that the government goes ahead and acknowledges were  improper it then goes ahead and takes issue with a number of the ones identified as improper saying that they are and i actually said this fourth my reply brief i think it's kind of telling the government's attempt to rationalize some of them because you end up listening to that and actually preventing them from putting forward certain evidence those were both objected to and i think the government acknowledges the error there right everything else the piece of meat the deadbeat that not a real man the gang is con and the progress none of that was subjected to right or right so you know the district court didn't have an opportunity to really consider this right and we defer a lot to district judges who he are in a good position to assess whether or not it what kind of effect it had on the jury the jury the court considered your two objected  to summation comments and it didn't think it was enough but how do you want us to look at now those two plus five going objected to comments and what i posited and i think it is the proper way to do it your honor based on the surface president's is that if you have a jack did too argument an objective to comment once you have and this court finds out that was improper and here obviously there are concessions that it was improper in order to assess the impact of improper summation you can't logically isolate i'm just going to look at what the impact of that one was because the court has said we have to look at what the cumulative impact of all improper comments are and so understanding them with that and i'm not suggesting it happened here but it would allow defense counsel to make one objection remained silent during a host of other comments made by the government and then argue them to us on appeal when if there'd been an objection a trial right in terms of the notion that a defense counsel would try to position is case best for appeal by objecting to only one and therefore letting the other one slide that's quite a risky proposition now if we're going to prepare to look at it in in its entirety then but because it why don't you why don't you tell us what you think warrants a retrial here they are looking at all of the different pieces and you went through the iteration of all the different statements made we get to the point where ok severity of the improper summation is on the high end of the spectrum we look at this actually you've convinced me that all of them are about not improperly invoking the passions of the jury and pieces of meat has no other intent other than to do that is that the government says well wait a second on back pages you can try to sell pieces of meat so isn't that exactly the same thing and i say listen if you want to use the word widgets fine you know in terms of it can be used commercially but pieces of meat has a meaning to to two jurors in terms of them being treated that way and so that's a reason wrong statement but we have allowed strong statements in summation and not found them to violate the fair trial right you know there are any number of cases where we could almost talk about stronger comments the one that always resonates with me  we tolerated the government in a guy in a drug case talking about the collapse veins of junk so i'm not sure why this is objectionable and or why it's why it's anything other then  strong but not unfair statement in this case one in most of the cases that we see this analyzed it was often viewed as a stray remark and others it's certainly a purposeful remark but it's an isolated instance and this kind of gets back to what we were talking about earlier is what happens when you have one two three four five six seven eight of them as they go through and absolutely or if your honour's decide that the one through five the on conce were not in fact inappropriate then that argument starts losing muster in terms of looking at the ones where the government concedes an error it mischaracterized the defense and suggested that you had frank that the government not just the witnesses that somehow framed the defendant and the court said in front of the jury that it didn't hear you say so to that extent tell me why with the judge basically saying the government's wrong in front of the jury that's a problem what he said is he's arguing from what you did say that he believes that's what you want of the jury to believe i didn't hear you say that either so yes he says those words in come out of your mouth but i think that's what he's saying that he wants and you know that you want the jury to believe ends with i didn't hear you say that i mean usually there are a few things as harmful to the government as having the court say that they've mischaracterized the record and then what the government does is go back the irony of the attempted cure in that case your honor was that the government then goes back and actually elaborates on their conspiracy theory in term out of the action without objection following  honor but the and i think the government conceded this and it's certainly consistent with existing precedent that the notion that a juror is going to have to lose their faith in their local police community in order to be able to going to quit this person that's the secondary below defense counsel said that's totally improper the rules that prevent him from doing something else the courts as well i'm not sure if it is or not i mean another it's the first words out of his mouth are ambiguous in terms of whether or not that in fact was a violation and so in terms curing at least those two improper comments your honor i would submit that it wasn't sufficient to go ahead and cure them and the government obviously also relies on the generic statements at the end of the circuit laws been pretty good about they really need to be directed towards what going to address the last point of analysis which is the likelihood of conviction absent the error the three women in this case the three miners testified in inculpated your client but more to the point there was corroborating evidence of his receipt of money and other things i mean i understand completely that this is a case in which the miners who were prosecuted demonstrated in one way or the other some willingness to engage in napa hate here everything unless it's a crime for an adult to be involved in the prostitution of minors and there is corroboration for him having been involved in it what how is this was it certain and we have a story by three young ladies about what they say mr ballard's involvement was the defense theory of the case was these three young ladies got together and conspired to make this up because i've got  stuck in an institution who is angry with ballard b is yeah angry because we got into this big fight b is institutionalized she is in potential trouble not that she knows it or doesn't know the potential trouble in terms of being the one that effectively ran this because there was pretty good evidence that it was undisputed that she was doing this before hand and that she is relatively street savvy on that front and that she lied to the investigator when she first talked about it in the jury frankly found that she wasn't believable on some things because they didn't find that the use force or threat because there sit sorry consistent with what i'm saying on appeal which is that the words out of their mouth prove nothing because our theory is the three got together and figure out we're going to say it wasn't u t m but rather it was mr ballard so then you get to the objective evidence  what's potentially going to push it over the edge and needs to push it to a certainty the government relies principally on the phone call the monitored phone call in december twelfth and they include it in the government's appendix and i refer the court to look at it carefully because what it really  me when i read it is the boyfriend angle because it's clear there was the boyfriend and the boyfriend has now had a girlfriend who's been institutionalized her he's saying yes yes yes and yes he's he's placating her and in terms of designing is that sure you could read of the way the government does and that's typically what we do when we're looking at acquittal etc but it doesn't have to be read that way in terms of his responses the relatively ambiguous if you look at it dejectedly in terms of whether he actually admits anything he's just saying yes dear in part to go ahead and try to get her out make him feel better because the last time they were together she cut herself so that was one piece they also point to the fact that obviously there are back page posts and the fact that they're back page posts and three of them ended up using my client's phone number  consistent with that that's all november seventeenth and november twenty second so that's after the argument that's after she's angry at my client that's after she wants to go ahead and set my client up for failure on this thing and try to go ahead and absolve yourself of guilt on it so and it's just really suspicious that those are the only three that used his phone number in terms of a contact number and so yes considering the light most favorable to government but construed objectively those things are not enough to get to the certainty level so thank principally i want to point out to the court that there really was no doubt that there would have been a conviction in this case but for the remarks both the ones that the government conceded are improper and the ones the defense alleges were improper that we dispute to what one of  of the statements that you concede was improper was an implication that there might be other evidence that was kept out by the federal rules of evidence how can that ever be harmless because you want to first of all the the court immediately instructed the jury after that comment that it should only consider the evidence in the case nothing else well beget you that's like saying don't think about the elephant in the room to the press kid who has now told a jury that there's other stuff out there that i can't tell you about that i'd like it to tell you about my goodness isn't that isn't that by its very nature prejudicial to the defendant isn't isn't that our heart harmful beyond a doubt i don't think this court's cases say when that's the misconduct the third part of the test no longer matters i think the court still has an obligation to look at the strength of the evidence so then isn't it isn't your argument essentially that in a really strong case when you've got really good evidence against a really bad guy the prosecutor should pull out all the stops and argue everything he can possibly argue good or bad fair or unfair because he wants a belt and suspenders to get a conviction absolutely not  for a couple reasons number one i would never suggest to a prosecutor that he or she do i wouldn't we be suggesting is not my argument number two there are other means of the government and the court sanction misconduct by prosecutors other than to make  not my argument your honor i think it's this court's position that the court will not reverse when conviction is certain so it might be the case that a prosecutor in the situation you hypothesize can do what you suggest and not reversal but there are still ways to address that sort of conduct and i'd suggest here this is a case where a conviction was certain and i'd like to address that if for you to and i know it but it's since it's a third point i just want to ask you about your reliance on the judge's instructions for the conceded error in insinuating that there was greater evidence you said that the judge told the jury that they should only consider the evidence in the record my concern and i want you that i want you to address is that does that adequately it deal with the concern about what the government did the government made its argument to respond to the defense argument that it had not put in certain evidence that there was there was absent effort and so on a variety of things and that that should give rise to a reasonable doubt and the prosecutor suggested well we've got more evidence i mean that's looking at it in the light most favorable to the defense did the court have to do more did it have to tell the jury that consider only the record evidence and if that evidence is not enough to persuade you beyond a reasonable doubt then you must acquit i will concede your honor that that would have been a better response than the one given did the court have to do that i think it wasn't required under your  tast nor am i certain it was required here because of course the judge's closing instructions gave the jury instruction that the court in the general instructions juries are always told they can only convict am i right that that instruction came before the though that's correct running so it's not as if the jury heard this after the judge gave after the instruction to kind of put aside the whole government argument that is correct your honor although i it's not clear to me that because the instructions come before rather than after the argument that therefore the jury is less inclined to listen to the instruction even if the error occurs after the instructions are given one could certainly argue that the jury is better equipped to understand what's going on when it hears the judge's perhaps not perfect instruction word or having heard the general instructions before so i interrupted you you wanted to tell us why conviction was an affable so on contradicted evidence showed the that he was the one that explained to them how the rings going to operate who out how that wow they pay them how they pee protects them how everything works ballard is the one who took at least some of the  two people in it so as hypothetically it's possible that some third party we don't know about a token but there's no testimony to that effect the only testimony from both of those victims is he's the one who took those pictures so at least some of the pictures were taken by him  addition to that he occasionally posted the ads on line or some testament to t m typically did it but at one point she's in a hospice council concedes she's in the hospital when she's in the hospital with no access to a phone apparently from the testimony the case somebody using his telephone number now for the first time because she's no longer available is posting ads with his phone number in them on back page in addition to that he was the one who was going to provide protection both at the testimony should not be factored into this i know you disagree but daddy's their argument i'm not i'm a get to the frame of the story and in a minute your honor in addition to that he received fifty percent of the proceeds from everybody more importantly this was his li didn't work anywhere he had an apartment he had clothing he had food the ones that paid for that were the ones who were doing the work these three miners who were working for him so as you pointed out your honor this testimony was not or this was established not simply by the testimony of three a consistent testimony three consistent victims as also by the the phone call ricky says to her i'm not going to post joining more what else in the world could he be talking about but for the fact in the past he had posted her as an advertisement whether as a widget or a piece of meat or as a prostitute on this back page website it was that was his statement i'm not going to post  him so what's the defense to all this well the first defense is well victim number one t m had been doing this before i met her and the answer to that of course is someone it doesn't give him the right to use her as a prostitute despite the fact that she may have done it before i saw it had no bearing whatsoever it was not a defense that a rational jury could seize on to acquit him the second argument is the three victims frame there's no explanation for why all three of them did that there no explanation for when all three of them did that there's no explanation for how all three of them did that in fact this idea of a frame up doesn't come up in cross examination of victims two and three when they testify it only comes up heads it springs up at at during argument the k and there's no meaningful evidence at any point to suggest that they got together and do it victim one apparently got the motive to do the frame up when she was hospitalized but at that point she's not accessible to the other two victims so it's not clear how this frame up ever worked it's never explained in fact it was all pure speculation in short there was nothing that the defense presented that would have caused a reasonable jury to have any hesitation here about convicting so yes were there improprieties in the government's argument there were and we have acknowledged that and we take that very seriously and we will continue to take that very seriously but under this cour unless there is a question about whether conviction was certain and here i would suggest to the that there was not the appropriate means to address that is not for a retrial it's to address otherwise and i would suggest to the court that's your what would that be give us an example of what you think would be an appropriate way your honor i can't go into personnel matters within my office but i can tell you that we have a process where if we believe there's been prosecutorial misconduct we refer that m it should give you some confidence that these matters are addressed i will also tell you that i do a substantial amount of the training at our office the last time i was in court here  say last time previously i was in court when there was a concern about in a case about the admission of hearsay evidence i had our next district wide training session after that i talked about the decisions of this court that involved that believe me i intend to give a presentation at our next just my twentieth century and about what's proper and what's improper in closing argument but isn't the best way for us to send a message reversing i of cording to your own decisions you want to that's the worst way to do it but the decision  say that that it that that reversal is ill suited is a remedy for process miss pondar under these circumstances and i'm not sure it's the right thing to do to make these three minor victims relive this experience because a prosecutor so if your honour's sermon that under the three promise reversal is appropriate then obviously we're asking for that the government in terms of focusing on the certainty of conviction went through the phone listen i just want to briefly respond to that so first of all i say the base of the operations is defend apartment that's where t n n d and the defendant lived it was their apartment together yeah releases in his name because it is the one who is of age but they were living together as boyfriend and girlfriend so there's not a lot of prostitution operation  suggesting you client was ignorant of it or that he was divorcing himself from it in some way and this this does become somewhat implausible particularly with what counts a pointed out about the giving of the number while t m is in the hospital and if i understood the record right you i'm sure you correct me if i'm wrong posting that specifically provided for his number to be the contact point for people who wanted to set up prostitution  encounters which defense counsel argued that the fact that this number was given out by from our position a third party therefore a lot of calls came in to him or testament and then there is zero evidence that he ever respond to them there's zero evidence he ever tried to do anything with them there might be some merit to that argument if you then actively tried to go ahead and use a prosecution but the fact is somebody put his number you know and we thankfully not been victims in this case in terms of our number be given out wrongly he ends up receiving a lot and that's what you see but he never actively does anything on it's own terms of implausibility you're on you're saying there's no evidence yeah correct they say he's the one who put it on by a wild wild t m was in the hospital a secure position one of the other miners put his number up yes because so november seventeenth is the day that she herself november seventeenth is the day they got one of the other minor minor is put up your client's name and number at that point my understanding is that the first one of those three back page postings the first one was on november seventeenth before she went to the hospital and i don't have the exact times and it was like seven fifty pm so that was madam an argument i'm putting it up by t m november twenty second when she's in the  hospital at what point this conspiracy between the three of them started at what point they're able to communicate obviously we don't have the answers to all that but sure you know at that point she's in the hospital she's trying to protect herself she's friends with a w his friends with and yes our position is at that point that they were able to communicate i started this i'm blaming him and we're going to continue doing enter now absolutely just hypothesizing right hypothesizing the same way the government's hypothesizing in terms of the he's here my client session at this point you don't have any evidence that any of them but ok now my client i'm not suggesting that he was not aware of what t m was doing and i don't know the legal answer to whether if he's boyfriend with t m is doing this and he's begrudgingly accepting it i mean obviously there are many other things that you know different people would and should do but if he's b that whether he is committing the crime and taking money from me and and having her go ahead and contribute towards food for the two of them his wife or girlfriend and contribute towards payment of a house it wasn't trying to second he was tried as he's the parent and so therefore clearly is violating the statutes i don't know and i haven't researched and i apologize whether the begrudging boyfriend who she's off on our own she's doing this and yes it ends up paying for something for the roof over his head whether that constitutes a violation of the statute i don't know whether it does i'm not suggesting that he didn't know that she was doing it  that would be incredible but in terms of whether she's the one leaving it she's the one bringing a w and a g into it from our position the evidence is consistent with that are consistent enough with it that this court can go ahead and determine that there is guilt beyond certain