so our first case for this morning is united states against ronald nor wethers was winslow that morning they please the court counsel the district court erred pardon me when it allowed the government to admit conversations by email from november of two thousand and eight which discussed in graphic detail the drugging and raping of a child now mr i'm  start you off because the government offered to introduce a far more sanitized version of the nails and and doesn't that make it difficult for you to now complain about the amount of prejudice here it doesn't make my job easier judge i'll tell you that night actually anticipated that would be an early question i was not trial counsel as  aware i was i was counsel prior to trial and then following trial but i did not try this case to my understanding there was an offer that there would be a sanitized version of the e mails i could have been negotiated trial counsel decided that he did not wish to have the sanitized version admitted and what's missing from the records is exactly what that sanitized version would have looked like i did interview trial counsel and he was unable to give me any specific information but it is my understanding that even the sanitized version of the e mails would have discussed the drugging and raping of a child but if you say that as opposed to actually read off the words it's different it can just as maybe pose the same question slightly broader short framework we as you know have received a number of communications from mr nor weathers you have to and we have a very firm rule against dual representation but when you say the record isn't clear about what that would have been it makes me wonder whether some of these issues can or will arise in a twenty to fifty five motion of eventually i have absolutely no reason to believe that they will not ok in fact i'm quite confident that they will that mr norwood theirs will do will try his hand at that oh i am absolutely confident that that is will be his next course of action  both against myself and against ok yes you know it's a difficult position to be and i mean it's very hard to understand the strategic reason for wanting these e mails to come in however i guess the issue before us now is also whether either it was error for them to come in the government offers a number of ways they could be used that are consistent with four o four b or if it was error whether it can be regarded as harmless well judge the government does offer t explanations for that now before the district court the government's primary argument was that the emails were probative of identity because the question of identity was very much at issue in this case the question really at trial the primary question was who sent the e mails and during the government's case in chief the primary so just of the cross examinations include and also the opening statement was emails were sense the question is to say is yes you're the sender and you're the one who is using it for this illicit purposes not like he spent some time dealing with his amazon account and then some other person sneaked into his office and started saying this awful stuff right course i know that the that the court has read the brief but just to be specific i'm march eleventh two thousand and nine which is temporarily very proximate to the emails that were charged there was a banking transaction of course bank mr weathers account march fifth again very proximate there was a transaction with chase bank mr nor weapons account march first social conversation with someone who addresses the person as ron and february thirteenth two thousand and nine eight in another transaction with amazon so those are not only very close in time but you can tie those transactions to ronald nor weathers this conversation in two thousand and eight as between two individuals one individual who the government know with because of investigation and then the second a vigil is not identified so whether it not that person was ronald nor where there's still remains a question and i don't think that that was ever properly established a trial it's an inference for the jury surely but the probative value of those conversations the substantially limited by the fact that we don't know who was engaging in them they're not close in time this is november of two thousand and eight versus charges that arise from march and august of two thousand and nine votes for four months off from the march thirteen four months is a significant period of time that the email address isn't ronald nor whether it's at yahoo dot com or whatever it is it's tame one eighty one at yahoo dot com it doesn't identify the user by name in particular but i thought that was the financial things did in fact tied that email address to him four months later i do four months later touch and the question is whether or not the value of those conversations four to five months prior has is substantially probative enough to overcome the overwhelmingly prejudicial effect in this case the conversations they recounted in my brief twice well once and each brief and in the government's brief are frankly shocking what about once he i mean he makes it the pivot steering the trial from this identity defense to this public authority defense that's pretty late in the day right it's very late the day is like that comes in these e mails help with respect to motive and intent and the like they do however they were admitted well in advance of this pivot as you are cause that's true and so the judge ruled that they were relevant and they were judge he did place it into him and to issue at that time but these e mails that are already been admitted so by the time mr nor whether it's made the decision to pursue that offense this error by the district court had already been committed and certainly would have colored his choices for the balance of the trial as to how he would deal with his defense and the defense strategy but wouldn't the government have had an opportunity after he moved to the public authority defense to introduce them it would have another we don't want to help but how much of a big deal we should make of this timing well i think we should make a very big deal of course i think that but i think we should make a big deal out of it and the reason is because every decision that the district court made prior to mr nor whether smith making the decision about his own defense colored his choices about the defense that he would present and so have the district court not made the error of admitting these e mails it's entirely likely the mr nor wethers would i think if the panel has no further questions i will reserve the balance of my time that's why thank you thank you just good morning and may it please the court the district court did not air and admitting under rule for four b e mails that the defendant sent to and from that team one eighty one account in november of two thousand and eight one of the arguments that miss winslow makes is that it is not clear who the user of that account was including back in two thousand and that is incorrect on this record one of the reasons that these e mails were relevant for a non purpose and that is to prove that bennett identity of the defendant was because governments exhibit eleven are which are these four a four b emails were sent at roughly the same time within minutes  work related e mails that the defendant sent from his team one eighty one account tied by the address to the defendant's workplace so how this was argued as to a dennehy at trial was that in november two thousand and eight same day within minutes of each other the defendant was accessing this tame one if you want to count both for work purposes in e mails that identified himself as ron and in which he discussed with his work colleagues certain work matters at the same time that he was using that account to further his sexual interest in children but the thing is the other's me about this it seems that what the government is trying to prove is that he has a propensity to be abusive to children you had identity evidence with respect to this work computer and until he moved over to the public authority to fence you had plenty of ways and the on a four zero three kind of basis some just thinking of the progression under gomez it's hard for me to come up with a propensity free chain and once you get to four zero three this is so overwhelmingly prejudicial it's hard to see how you couldn't find an abus discretion yes your honor i think that there are a number of propensity free reasonings for introducing this evidence and of course cora forby prohibits the use of evidence for prohibited purpose that is propensity it was used  trial for legitimate reasons including to prove a dennehy and motive intent so let me take those separately one of the and could you do it with respect to his original defense because yes once he's got public authority into the mix things  different to me but as as ms winslow argues his whole trial strategy might have been different if this stuff hadn't come in yesterday on or so first with respect to a dennehy the defendant argued before trial and at trial that his workplace computer the desktop computer on which this trout pornography was found was located in an open space in the warehouse it was not password protected and therefore anybody could have just hopped on in march and august of two thousand and nine to send just those specific e mails somebody could have set him up as essentially what his argument was at trial and the fact that he was accessing these that e mail account to further his sexual interest in minors back and november of two thousand and eight governments exhibit eleven are the challenge e mails at the same time that he's conducting work related business is strong evidence of his identity that he is the person using that e mail account  entry one eighty the defense pursued or argued pretrial that there was the possibility of files being put on his computer without his knowledge at trial pages  two thirty nine and two forty of the trout transcript the defendant argued at trial through his defense counsel that these could have been viruses so in other words somebody was coming in and they're putting these files onto his computer sending this child pornography without his knowledge or there's some sort of mistake so even before the public authority defense intent and motive were at issue and the government argued in both of its filings before the district court when it was approaching or be issue that talk that was one of the defendants arguments however i disagree that these e mails are not relevant to assessing his sexual interest in minors so chambers is a great example where a defendant was engaged in chats with an undercover agent about being interested in having sex with children and that her sysfs lee what these e mails that the defendant was sending were out he is talking about drugging young children in order to facilitate sex with them and this court has held in chambers and siebel in a whole line of cases that you know the motive in this context it's not like a money motive in a fraud case which is incredibly generic it's a very narrow population of people who have a sexual interest in children it provides a motive for sending child pornography that is unique so instead of doing it by accident or for some other legitimate or innocent reason they are doing it because they have joy in sending child pornography or they hope to receive trial in return and one of the court's rationales unseeable was the fact that there is a distinction between molestation or talking about molestation and child pornography the charge one if true fifty nine of the trial transcript in which the government indicates on the record puts on the record it's discussions with trial counsel about what the e mail i'm sorry what the sanitized stipulation would say discussing sexual interest in minors from sent from this e mail i got you know account in other words it would have just been date times the email addresses involved and the fact that the emails were discussing sexual interest in children  to like almost per se ineffective assistance of counsel forgot all that kind of a presentation in favor of the graphic nature of the conversation as it came in so the record does not reflect what the strategic reason for this may have been if i think your imagine if i were to hypothesize it may have been linked in with the defendant's planned public forty defense at the time that this stipulation was offered the government in the court had no idea that the defendant was going to get up and testify that he was an f b i informant but he apparently knew that i had some time to scramble around and find out that there was no s p i agent by the name of  whatever the name was the that he's that he said he was working with yes around or i think that there was about a day if i remember correctly from the record the defendant the defendant disclosed that that would be the nature of his testimony he testified the next day and the government began to call rebuttal witnesses in response around or and about at the time that the stipulation was offered at the time before for b evidence was introduced the government in the court did not know about the public authority defense and that's important to the potential strategic reason here because one of the things that the defendant testified is that he started acting as an informant in october of two thousand and eight one month prior to those e mails and that these e mails apparently were encompassed within his work for the honor first of all and i think this may be outside the record you to pardon me there was from my understanding no previously planned public authority to friends that was a surprise to everyone in the courtroom sort of well it wouldn't be outside i mean i guess there's no written record repeating the government continually rests on the argument that these this prior conduct shows a generalized sexual interest in children and it relies on both chambers and siebel in support of this argument which which is somehow different in the government's view from a propensity and it is not in mine and in my mind it is very much the same answer i thought you were going yes but specifically chambers chambers involves an attempt to entice a minor to engage in sexual activity the prior evidence of chats and child pornography  directly relevant to show that the defendant has had a sexual interest in children that would provide the motivation for him to actually engage in sexual conduct in that case the defense was mr chambers defense was i didn't ever intend to meet this individual for sexual purposes therefore that prior evidence was directly relevant similar in siebel evidence of the prior conduct was relevant to establishing that the defendant was going through and that the court's words not mine quote unquote a dry spell and was looking for a new child victim to abuse that again was direct that was part misconduct that was directly relevant to a motive in that case in this case there is no nexus between a generalized sexual interest in children and the actual prime that was charged and convicted here just a court erred in admitting the two thousand and eight e mails that error was overwhelming prejudice and we asked that this court reversed and remount thank you all right thank you very much we appreciate very much your taking the appointment  weathers thanks as well to the government will take the case und