[00:00:00] Speaker 02:
Thank you, Your Honor.

[00:00:02] Speaker 02:
May it please the court, counsel, guest?

[00:00:06] Speaker 02:
I am Rick Hearn.

[00:00:07] Speaker 02:
I represent Andrew Young.

[00:00:09] Speaker 02:
Mr. Young is currently serving a 30-year sentence in federal prison for the coercion and enticement of a minor and the sexual exploitation of a minor.

[00:00:23] Speaker 02:
But what makes this case somewhat unusual is this minor he never met.

[00:00:30] Speaker 00:
Never met in person, right?

[00:00:33] Speaker 00:
Never met in person.

[00:00:35] Speaker 00:
Interacted with and on a number of occasions.

[00:00:37] Speaker 02:
Interacted with and that brings me to the point of this case brings the new and the old together.

[00:00:44] Speaker 02:
The new being the world wide web, internet, cell phones.

[00:00:50] Speaker 02:
The old being boredom and the needing to do something including sex.

[00:00:56] Speaker 02:
that can now be done not in person and can be done legally not in person.

[00:01:04] Speaker 02:
While I wasn't aware, there are people that are doing something called sexting in my world, the world we all live in, which is perfectly legal.

[00:01:15] Speaker 02:
These people can be married.

[00:01:16] Speaker 02:
They can be boyfriend and girlfriend.

[00:01:19] Speaker 02:
They can legally do it if they've never met.

[00:01:21] Speaker 02:
And they exchange sexually provocative role playing

[00:01:26] Speaker 02:
They can even do it with pictures, legally.

[00:01:30] Speaker 02:
And on the worldwide web, this game can be played with someone 10,000 miles away in what are called chat rooms.

[00:01:39] Speaker 02:
Right, but not with the minor, right?

[00:01:41] Speaker 02:
So that's the issue.

[00:01:42] Speaker 02:
Not without consent.

[00:01:44] Speaker 02:
And with a minor, it's without consent automatically.

[00:01:48] Speaker 02:
Yes, Your Honor, not without consent.

[00:01:51] Speaker 02:
And none of this is permissible without consent.

[00:01:56] Speaker 02:
These chat rooms have rules about, but they're not enforced, as this Court is probably well aware.

[00:02:04] Speaker 02:
We've just lost a connection here.

[00:02:08] Speaker 00:
This happened yesterday.

[00:02:09] Speaker 00:
It went in and out.

[00:02:09] Speaker 00:
But we haven't had a problem with people appearing on video being able to hear you.

[00:02:14] Speaker 00:
So go right ahead.

[00:02:15] Speaker 02:
Thank you.

[00:02:17] Speaker 02:
So this happens with controls.

[00:02:22] Speaker 02:
One of the apps in this case is called Whisper, another Omegle.

[00:02:25] Speaker 02:
And they have rules that you need to be 18 or over 13 with parental consent.

[00:02:30] Speaker 02:
But we all know, everyone knows that those rules are not enforced.

[00:02:35] Speaker 02:
And so people do come into these chat rooms.

[00:02:38] Speaker 02:
And these chat rooms,

[00:02:40] Speaker 02:
the sex that's done in these chat rooms because they can have people from all around the world, millions of people, people that we can't even imagine.

[00:02:49] Speaker 00:
But this was not at all around the world.

[00:02:51] Speaker 00:
I mean, this seemed to be a connection between your client and initially the victim's mother, right?

[00:02:58] Speaker 02:
Well, yes, Your Honor.

[00:02:59] Speaker 02:
There was a connection.

[00:03:01] Speaker 02:
The alleged victim or the victim in this case named my client her local pedo or local pedophile.

[00:03:10] Speaker 02:
This case arises during COVID when the victim, by her own admission, became bored and decided to want to play a game to catch pedos or pedophiles.

[00:03:24] Speaker 02:
We know this because she described it with text between her and a

[00:03:30] Speaker 02:
another 13, 14-year-old schoolmate of the same sex.

[00:03:34] Speaker 02:
They talk about it, and this is important because many of the issues have to do with access to data that's on the victim's phone.

[00:03:46] Speaker 02:
This case starts when this game is played.

[00:03:53] Speaker 02:
My client and the victim, which lived in the same community, interact in one of these chat rooms.

[00:04:00] Speaker 02:
And his defense was that he didn't know her age.

[00:04:05] Speaker 02:
Now, whether that's believable or not, it was certainly relevant whether or not there was a game being played to catch pedophiles.

[00:04:14] Speaker 03:
Why would that be relevant?

[00:04:15] Speaker 03:
Couldn't she be underage?

[00:04:16] Speaker 03:
She can be underage trying to catch pedophiles.

[00:04:19] Speaker 03:
She could be of age trying to catch pedophiles.

[00:04:21] Speaker 03:
So what would the fact of trying to catch pedophiles, what would that tell us about age?

[00:04:26] Speaker 02:
It tells us nothing per se by itself about age, Your Honor.

[00:04:30] Speaker 02:
It only says that she

[00:04:34] Speaker 02:
could have been not honest about her age.

[00:04:37] Speaker 03:
If she was honest about her age.

[00:04:39] Speaker 03:
But that would be true no matter what she said, whether she was trying to catch pedophiles or not.

[00:04:43] Speaker 02:
That's correct, Your Honor.

[00:04:46] Speaker 02:
I do not dispute that she could have been an adult and been trying to catch pedophiles.

[00:04:52] Speaker 03:
The basis of your claim is that your client was denied the opportunity to present a fair defense because he was not allowed to present her text to her friend.

[00:05:02] Speaker 03:
That is one of the... How would those texts have influenced a jury's view of whether your client knew that she was underage?

[00:05:13] Speaker 02:
Her motivation, your honor, for

[00:05:17] Speaker 02:
communicating and interacting with my client is relevant in the cross-examination of her.

[00:05:25] Speaker 02:
Her motivation for corresponding with him, if her motive was to catch a pedophile, her motive would not have included, would be the argument, her true age.

[00:05:43] Speaker 03:
That is- I don't understand the argument, counsel.

[00:05:48] Speaker 02:
It goes simply to, not simply, Your Honor, I apologize, but it goes to whether or not what her motive was.

[00:05:55] Speaker 02:
Her motive was to relieve boredom.

[00:05:57] Speaker 02:
It wasn't to start or have any kind of sexual relationship.

[00:06:02] Speaker 02:
And in order to attract people to have that,

[00:06:07] Speaker 02:
was reasonable and a jury could have believed that she was misleading by her of her age even by just going into adult chat room where she was in an adult only chat room.

[00:06:21] Speaker 02:
That's no excuse but that is the defense is that on cross-examination if she was doing this to

[00:06:30] Speaker 02:
Multiple men and one of the texts that we had a big issue about getting in was where in that very same sentence where she was trying to catch pedos She says she was talking to a 25 year old army guy But anyway, it was it was a part of your theory that that she intended to go to the police with this information and

[00:06:49] Speaker 02:
No, Your Honor.

[00:06:51] Speaker 02:
Part of our theory was that she was bored, and that was by her own admission in those texts.

[00:06:57] Speaker 03:
I guess I still don't understand how the question of her strategy of trying to catch pitos is relevant to the question of her age.

[00:07:07] Speaker 02:
Your Honor, you are right.

[00:07:10] Speaker 02:
That is not relevant that she was playing the game to her age, but it goes solely to her motive for being in that chat room.

[00:07:19] Speaker 03:
And what does the motive have to do with?

[00:07:22] Speaker 03:
If she had a motive of trying to catch pitos, is that an affirmative defense for your client?

[00:07:27] Speaker 02:
No, it's certainly not an affirmative defense.

[00:07:31] Speaker 02:
She's not a state actor, so there's nothing about that.

[00:07:34] Speaker 02:
Her trying to catch pitos and being in the chat room gave her a reason to not be telling her age.

[00:07:44] Speaker 02:
If she told people she was a minor, she was post-pubescent, obviously, Your Honor.

[00:07:51] Speaker 02:
But if she told people she was a minor, she would have had much less chance of having men interact with her in those chat rooms, because they are aware that it's illegal to do so.

[00:08:04] Speaker 02:
Now, I can't prove that they're aware of that, but that was the argument, is she did this in order to attract the highest number.

[00:08:11] Speaker 02:
And she wasn't trying to catch pedos.

[00:08:13] Speaker 02:
She was trying, your honor, with respect, to win a game with her friend.

[00:08:17] Speaker 02:
And they were keeping up with who got the most pedos or who got the oldest pedos.

[00:08:22] Speaker 02:
And so there's no rule that she has to get those in this game in a legally fair way.

[00:08:29] Speaker 03:
Counsel, did you have the opportunity of cross-examining her?

[00:08:33] Speaker 02:
Yes, Your Honor.

[00:08:34] Speaker 03:
And could you ask her what her motivation was in whether she was trying to catch pitos without reference to these texts?

[00:08:42] Speaker 02:
I was allowed to ask, I was allowed to admit the portion of one sentence of the text where she says she's playing a game.

[00:08:51] Speaker 03:
I was not allowed to do any of the... So you would have been allowed then to explore various questions about whether she was playing a game.

[00:08:59] Speaker 03:
And in the course of that questioning, then, you could have asked whether it was important to her to be able to play that game that she misrepresent her age.

[00:09:10] Speaker 03:
I could have done that, Your Honor.

[00:09:12] Speaker 03:
And all this could have been done without the tax.

[00:09:15] Speaker 02:
Without the text, I could have done that.

[00:09:17] Speaker 02:
And we did ask her what I believe the government put on.

[00:09:23] Speaker 02:
She said that she told him her age.

[00:09:26] Speaker 02:
There's no dispute about that.

[00:09:29] Speaker 02:
It's a cross-examination of her.

[00:09:31] Speaker 02:
Well, if you told him, did you tell these other people about your age that you called?

[00:09:35] Speaker 02:
And how many did you catch?

[00:09:36] Speaker 02:
And who did you send pictures to?

[00:09:38] Speaker 02:
And those kind of things would have been crossed.

[00:09:40] Speaker 02:
But there was no doubt.

[00:09:41] Speaker 02:
She said she told him explicitly what her age was.

[00:09:44] Speaker 02:
Now, because of other technical kinds of things, these texts were all lost.

[00:09:51] Speaker 02:
Whether she told or didn't tell about her age, what he said to her, what she said because it was on Snapchat, which my children are more familiar with than I am, we didn't get any of those.

[00:10:02] Speaker 02:
We did get or there was introduced

[00:10:06] Speaker 02:
evidence from this having to do with the pictures, but nothing about the actual communication.

[00:10:12] Speaker 02:
I think my time is up for now.

[00:10:13] Speaker 02:
And I'll hear any other questions, but otherwise, I'll.

[00:10:17] Speaker 01:
Can I have a question, counsel?

[00:10:19] Speaker 01:
Yes, your honor.

[00:10:21] Speaker 01:
My question is simply, am I correct that we review the district court's ruling on this evidence question for abuse of discretion?

[00:10:34] Speaker 02:
On the evidence question, if it's not the... Yes, Your Honor.

[00:10:39] Speaker 02:
However, if it's an interpretation of the rule of evidence, I believe it's de novo, but on an admission or denial of an admission, it's abuse of discretion, Your Honor.

[00:10:49] Speaker 01:
Okay.

[00:10:49] Speaker 01:
Thank you.

[00:10:50] Speaker 00:
Okay.

[00:10:51] Speaker 00:
We'll save the rest of your time for rebuttal.

[00:10:53] Speaker 00:
We'll hear from the government.

[00:10:54] Speaker 00:
Thank you.

[00:11:07] Speaker 04:
Good morning.

[00:11:08] Speaker 04:
May it please the court.

[00:11:09] Speaker 04:
My name's Blythe McLean, and I'm an AUSA with the District of Idaho.

[00:11:14] Speaker 04:
I want to go straight to the point that counsel was just arguing.

[00:11:18] Speaker 04:
It's the government's position that the evidence was properly excluded by the district court under federal rule of evidence 412.

[00:11:30] Speaker 04:
The facts that summarize what those messages contained

[00:11:36] Speaker 04:
can be found in Excerpts of Record 264.

[00:11:39] Speaker 04:
The messages were between the victim and a friend of hers in which she was describing sexual conversations that she had with other men, not the defendant.

[00:11:53] Speaker 00:
Other men or just one other?

[00:11:57] Speaker 04:
I believe it was other men, however, they're not specifically named.

[00:12:02] Speaker 04:
So it could have been multiple messages about one man as well as separate men.

[00:12:10] Speaker 04:
The excluded evidence also included Facebook profiles where the victim was friends with other men.

[00:12:18] Speaker 04:
And there were also information about the victim's search history into pornography.

[00:12:24] Speaker 04:
Certainly, search history into pornography would be of the type of evidence that would be excludable by 412 because it shows what her sexual predispositions and behaviors are.

[00:12:37] Speaker 04:
Also, the Facebook profiles with other men and conversations about having conversations with other men is hardly relevant in this case because here we're talking about

[00:12:51] Speaker 04:
conversations that the victim had with the defendant.

[00:12:55] Speaker 04:
Counsel attempts to argue that, well, if she's telling other men that she's 18, then she must have told this defendant that she was also 18.

[00:13:07] Speaker 04:
But that's not based in any other facts in the case.

[00:13:11] Speaker 04:
The victim testified, she testified that she was, she told the defendant that she was a minor at the time they were exchanging messages.

[00:13:22] Speaker 04:
The defense was allowed to cross-examine her on the comments to her friend about trying to catch a pedophile, which counsel has gone into in depth.

[00:13:35] Speaker 04:
There is another class of people that tries to actively catch pedophiles, and that's police officers.

[00:13:41] Speaker 04:
And when police officers do stings to catch pedophiles, they don't do it by claiming that they're adults.

[00:13:48] Speaker 04:
They do it by claiming that they're minors.

[00:13:51] Speaker 04:
That's how you attract people who are sexually interested in children.

[00:13:56] Speaker 04:
And that's exactly what this minor did.

[00:13:58] Speaker 04:
She was a minor.

[00:14:00] Speaker 04:
She didn't have to lie about her age.

[00:14:02] Speaker 04:
She was a minor.

[00:14:04] Speaker 04:
It was obvious from her profile pictures.

[00:14:09] Speaker 04:
as well as from the conversations that they had.

[00:14:12] Speaker 04:
It's also when the defendant was confronted by the victim's mother about this relationship that they had online, that the defendant wasn't surprised or didn't appear to be unknowing that the victim was a minor.

[00:14:30] Speaker 00:
Did the defendant know the victim's mother personally?

[00:14:35] Speaker 04:
No, Your Honor.

[00:14:36] Speaker 04:
The defendant knew the victim's mother via Facebook and other social media websites.

[00:14:43] Speaker 04:
The victim's mother was active in the community, and he may have seen her in person at a community event.

[00:14:50] Speaker 04:
However, their conversations and relationship are over the internet as well.

[00:14:55] Speaker 03:
When you say that she was active in the community, you don't mean an online community.

[00:14:59] Speaker 03:
You're talking about actual physical community, as in whatever.

[00:15:02] Speaker 03:
I think this is Blackfoot, Idaho or something.

[00:15:05] Speaker 03:
Is that right?

[00:15:05] Speaker 04:
That's correct.

[00:15:07] Speaker 04:
The victim and her mother lived in Idaho Falls, which is just a short distance from Blackfoot.

[00:15:13] Speaker 04:
The victim's mother was a political activist of sorts and would arrange and coordinate different types of rallies throughout the community.

[00:15:24] Speaker 04:
So she was physically present and active in the community.

[00:15:29] Speaker 04:
I do also want to address the first issue that the defense raised in their brief about the cell phone evidence that was part of this case.

[00:15:43] Speaker 04:
I want to first point out that the district court considered the facts running the destruction of the phone evidence, which is part of why we have an unclear idea of what those initial text messages contained.

[00:15:56] Speaker 04:
The district court did not find anything that supported a finding of bad faith.

[00:16:03] Speaker 04:
The district court's memo and decision can be found in excerpts of record 12 through 21.

[00:16:12] Speaker 04:
Specifically, in this case, the defendant cannot show that the government lost or failed to preserve the cell phone evidence.

[00:16:24] Speaker 04:
and bad faith.

[00:16:25] Speaker 04:
Bad faith is, of course, a high burden for the defendant to meet, and he can't meet it here.

[00:16:32] Speaker 04:
The district court's ruling was based off of a proffer provided by defense counsel as well as the government.

[00:16:38] Speaker 04:
While that proffer is not in the excerpts of record, it is in the court record at ECF 48.

[00:16:44] Speaker 04:
It's also contained in the trial testimony of Detective Christopherson

[00:16:52] Speaker 04:
who was the digital forensics examiner who downloaded the phone.

[00:16:56] Speaker 00:
In terms of the evidence showing that he knew she was underage, obviously you pointed to her testimony saying she told him, what else did the government put forward on this point?

[00:17:07] Speaker 04:
The government presented evidence of the victim's mother confronting the defendant.

[00:17:14] Speaker 04:
And of course, the defendant's response wasn't that, oh, I didn't know she was 18.

[00:17:18] Speaker 04:
She wasn't 18.

[00:17:19] Speaker 04:
He simply had this conversation and told the victim's mother that she should probably find counseling for the victim, which indicates that he

[00:17:32] Speaker 04:
knew that she was underage and engaging in behavior that she shouldn't have been engaging in.

[00:17:40] Speaker 03:
Counsel, with respect to the jury form, I assume that the government is going to admit that this was an erroneous form?

[00:17:47] Speaker 04:
Yes, Your Honor.

[00:17:48] Speaker 03:
And the government would have had a duty to identify that at trial.

[00:17:51] Speaker 03:
This is pretty clear error.

[00:17:54] Speaker 04:
That's correct, Your Honor.

[00:17:55] Speaker 03:
Are there any steps being taken to ensure that a form like this doesn't get used again?

[00:18:00] Speaker 03:
This is just a clear misstep and seems unnecessary from everybody's perspective that we would use a form like this.

[00:18:07] Speaker 04:
Yes, Your Honor.

[00:18:08] Speaker 04:
And it's of course my personal practice to ensure that those forms are correct and don't contain erroneous or misleading language.

[00:18:20] Speaker 00:
Just to follow up on that, I had the same concern.

[00:18:23] Speaker 00:
I mean, we saw this before in Espino.

[00:18:26] Speaker 00:
I think I've even seen this happen one other time in a case before me, although that was a plain error case.

[00:18:31] Speaker 00:
And this, I think, is arguably not.

[00:18:34] Speaker 00:
And so it does seem like something that should never happen.

[00:18:37] Speaker 00:
And I hope that steps are being taken to make sure that it doesn't.

[00:18:42] Speaker 04:
I agree, Your Honor.

[00:18:44] Speaker 04:
And I know that myself and the other AUSA who worked on this case are both diligent about ensuring that those verdict forms are correct.

[00:18:55] Speaker 04:
In this case, the defense did raise the issue prior to the form being provided to the jurors.

[00:19:04] Speaker 04:
Part of Ninth Circuit case law has been that in order for there to be an objection, you have to raise the issue and then cite any relevant authority the court provided.

[00:19:14] Speaker 04:
an opportunity for the counsel to provide authority to the court.

[00:19:19] Speaker 04:
That wasn't done.

[00:19:20] Speaker 04:
The... What authority would have been needed?

[00:19:23] Speaker 03:
This was pretty clear error.

[00:19:27] Speaker 03:
I mean, it's just misstated.

[00:19:28] Speaker 03:
I understand why it was misstated.

[00:19:30] Speaker 03:
It felt like a little bit of a grammatical shorthand.

[00:19:34] Speaker 03:
It would have been a little more complicated to have explained the burden of proof for finding guilt properly.

[00:19:41] Speaker 03:
But it's clear error.

[00:19:43] Speaker 03:
And if it's clear error, what authority would have been needed?

[00:19:49] Speaker 04:
I think making sure that there was an objection and following up on that objection would have been appropriate.

[00:19:56] Speaker 03:
Well, I thought you told us that Young did raise the issue.

[00:20:00] Speaker 04:
You raised the issue, but didn't cite any authority or any reasons for why it was wrong.

[00:20:05] Speaker 03:
What authority is there other than that in the United States, we have to prove guilt by proof beyond a reasonable doubt, and you don't have to prove your innocence beyond proof beyond a reasonable doubt?

[00:20:15] Speaker 04:
I agree, Your Honor.

[00:20:16] Speaker 04:
And even if this court finds that a plain error standard doesn't apply,

[00:20:25] Speaker 04:
then the court can go to harmless error, which is a perhaps easier standard for the defense to meet.

[00:20:32] Speaker 04:
However, in this case, there was not harmless error either.

[00:20:37] Speaker 04:
The case law is very clear that the jury verdict form is to be considered along with the instructions.

[00:20:46] Speaker 04:
The instructions in this case were provided to the court in supplemental excerpts of records starting at page three.

[00:20:54] Speaker 04:
and they clearly outline the burden of proof and place it on the government because the jury instructions are correct statements of law and do not mislead the jury as to the burden of proof.

[00:21:13] Speaker 03:
then any error that could have occurred by the use of the erroneous verdict form would be... In the way that the form is phrased, because it suggests that there has to be proof beyond a reasonable doubt to support either guilt or not guilty, that suggests that the same burden of proof is required to address both, which really sort of reduces it just to a preponderance of the evidence.

[00:21:36] Speaker 03:
Tell us who had the most evidence

[00:21:39] Speaker 03:
And they win.

[00:21:40] Speaker 03:
That's where you put the X in the box because it's the same burden to prove either guilty or not guilty.

[00:21:49] Speaker 04:
Yes, Your Honor.

[00:21:49] Speaker 04:
I believe that's why the verdict form, we agree that the verdict form was erroneous.

[00:21:57] Speaker 04:
When considered along with the jury instructions that were correct, it's clear that the jury instructions themselves did not mislead the jury as to the burden of proof.

[00:22:09] Speaker 04:
and considering all the facts in this case, which is what the court would need to do to determine whether or not the error was harmless, there's overwhelming evidence of the defendant's guilt.

[00:22:20] Speaker 00:
That's what I was going at kind of leading into this line of questioning is what other evidence the government put forward to show knowledge

[00:22:28] Speaker 00:
on the defendant's part that the victim was underage.

[00:22:31] Speaker 00:
So you mentioned some of the interactions with the mother, obviously the victim's testimony.

[00:22:37] Speaker 00:
Are there other things that you pointed to at trial?

[00:22:42] Speaker 04:
Those were the primary evidence was the victim's testimony as well as the circumstantial evidence surrounding the confrontation by the victim's mother in this case.

[00:22:56] Speaker 04:
Council argued, at least as it relates to the phone evidence, that the victim's phone evidence would have shown, if it was complete, would have shown that the victim and the defendant had a conversation about the victim's age.

[00:23:11] Speaker 04:
The district court, when considering the destruction of the phone evidence, considered that argument to be speculative.

[00:23:20] Speaker 04:
It's speculative for two reasons.

[00:23:22] Speaker 04:
First, we know that there

[00:23:24] Speaker 04:
is evidence in this case that was destroyed prior to the phone coming into law enforcement hands.

[00:23:32] Speaker 04:
We know that because of the nature.

[00:23:33] Speaker 00:
It's destroyed by the victim?

[00:23:35] Speaker 04:
By the victim.

[00:23:37] Speaker 00:
Or her mother.

[00:23:38] Speaker 04:
Correct.

[00:23:39] Speaker 04:
The victim's mother also testified that she deleted items.

[00:23:43] Speaker 04:
That can be found on the trial testimony, page 358, volume 2.

[00:23:48] Speaker 04:
And also, we know that they use Snapchat, which automatically

[00:23:53] Speaker 00:
Deletes as messages are sent and received depending on how the user sets the time frame so was there any evidence that was from the Did the government use anything that it extracted from the victim's phone?

[00:24:08] Speaker 00:
In the course of the case or did most of the digital evidence come from the defendant's phone Your honor both phone evidence were used in this case, okay, what what was found on the victim's phone what still existed and

[00:24:22] Speaker 00:
that you used at trial?

[00:24:26] Speaker 04:
I believe that there were images that were found on her phone that were also discovered on his phone as well.

[00:24:37] Speaker 01:
Council.

[00:24:38] Speaker 01:
Council is Judge Gould.

[00:24:40] Speaker 01:
I have a couple of questions for you if we have time for that.

[00:24:45] Speaker 01:
First of all, if the panel thinks that the verdict form was plain air,

[00:24:54] Speaker 01:
And you're relying on harmless air.

[00:24:59] Speaker 01:
Does it have to be harmless beyond a reasonable doubt?

[00:25:06] Speaker 04:
I believe that is correct, Your Honor.

[00:25:10] Speaker 01:
Thank you.

[00:25:12] Speaker 01:
Then is the other evidence that you have on the issue of

[00:25:20] Speaker 01:
of his guilt, is it overwhelming beyond a reasonable doubt?

[00:25:31] Speaker 04:
Yes, Your Honor, that is the government's position that based off of the victim's testimony, the conversations between the defendant and the victim's mother during the conversation where she confronted him about contacting her minor child.

[00:25:50] Speaker 04:
that both of those show beyond a reasonable doubt that the defendant in fact knew that she was under the age of 18.

[00:25:58] Speaker 01:
Thank you, counsel.

[00:26:01] Speaker 04:
If there are no further questions, I would ask this court to affirm the district court's rulings.

[00:26:07] Speaker 04:
Thank you.

[00:26:08] Speaker 00:
Thank you.

[00:26:10] Speaker 00:
Mr. Hearn, rebuttal.

[00:26:17] Speaker 02:
Thank you.

[00:26:17] Speaker 02:
As far as the verdict form, we had a visiting judge from another circuit.

[00:26:25] Speaker 02:
Despite something that's just incorrect in the government's brief, both the government and the defense counsel submitted good verdicts.

[00:26:36] Speaker 02:
I don't know where that verdict came from, from the visiting judge, from the 10th Circuit.

[00:26:41] Speaker 02:
But it obviously should have been not a good verdict form in the 10th Circuit either.

[00:26:48] Speaker 02:
And the way it came is we had a jury instruction conference, as everyone does.

[00:26:55] Speaker 02:
And since there was no real disagreement about the verdict form, then we went immediately into closing arguments.

[00:27:00] Speaker 02:
The government made their closing argument as we were reading the final

[00:27:05] Speaker 02:
verdict form and jury instructions, and we see it, and that's when we raise our objection.

[00:27:13] Speaker 02:
Our position, which I think is correct, is that it's a 52A harmless error, and there is not overwhelming or any evidence other than the victim's testimony.

[00:27:28] Speaker 02:
Snapchat did erase everything, but we had a retained expert about the data on the phone that was missing.

[00:27:36] Speaker 02:
And there were two apps.

[00:27:38] Speaker 02:
There was evidence about two apps, Omegle and Whisper.

[00:27:41] Speaker 02:
Those do not erase things.

[00:27:44] Speaker 02:
And according to our expert, they should have been on the download from Celebrite, from the forensic thing.

[00:27:55] Speaker 02:
And a little detail here, when they first celebrated, downloaded the victim's phone, they reset it back to zero.

[00:28:03] Speaker 02:
So everything was lost.

[00:28:04] Speaker 02:
But they got a

[00:28:07] Speaker 02:
an extraction.

[00:28:08] Speaker 02:
Then they made a report from that extraction that they had and gave that to us.

[00:28:15] Speaker 02:
We had a forensic expert to look at that.

[00:28:18] Speaker 02:
And he said, well, I need the original.

[00:28:20] Speaker 02:
And when we went and asked for the original, it had also been lost after the government knew that we were interested in it.

[00:28:29] Speaker 02:
But Omegle and Whisper is where we believe there were discussions from our client about age.

[00:28:36] Speaker 02:
Those were certainly, Whisper was one of the places where the victim admitted she was on and talking to people.

[00:28:47] Speaker 02:
She had a picture from Omegle, which is another one of these chat rooms where this kind of kink stuff is discussed.

[00:28:57] Speaker 02:
On the victim's phone, there were pictures.

[00:29:01] Speaker 02:
Our expert said from that, if he had those pictures not from the report, but from the original, he would have been able to look at who those pictures may have been sent to.

[00:29:10] Speaker 02:
They were screen-shotted of pictures of herself and who she was communicating to.

[00:29:17] Speaker 02:
But because the data was lost a second time, we were unable to

[00:29:22] Speaker 02:
The expert was unable to do it.

[00:29:24] Speaker 00:
So from the victim's phone, there were images, but you couldn't tell who they were transmitted to?

[00:29:28] Speaker 02:
Not on the seller right report, but our expert put in an affidavit that he believed he would have if he could have gotten the extraction that had been lost that the government had and lost.

[00:29:43] Speaker 02:
But I don't know, but that's what our retained experts testified to and put in an affidavit saying.

[00:29:49] Speaker 01:
So counsel, if I could interject a question, please.

[00:29:53] Speaker 01:
Yes.

[00:29:57] Speaker 01:
How can we know?

[00:29:58] Speaker 01:
So rather I'll rephrase it.

[00:30:01] Speaker 01:
It seems speculative to me whether that data would have provided a defense to your client.

[00:30:12] Speaker 01:
So explain the relevance of that.

[00:30:14] Speaker 02:
Yes, Your Honor, there's a Zarizusta is a case we rely upon.

[00:30:20] Speaker 02:
It's a brief there where the court found probative exculpatory evidence was sufficient in the

[00:30:30] Speaker 02:
due process to dismiss the indictment.

[00:30:34] Speaker 02:
And there was a video loss showing the person going across the border where she was trying to get away, she claimed.

[00:30:41] Speaker 02:
The only evidence that wasn't, she said, it would show me trying to get away, it got lost.

[00:30:47] Speaker 02:
Here, we don't, our expert couldn't say for sure what was on the lost data, but he could say, based upon his

[00:30:55] Speaker 02:
years of experience doing this, what should have been on the report that the government gave us, and it wasn't there, and that's in our briefing.

[00:31:04] Speaker 02:
Any further questions?

[00:31:05] Speaker 00:
Thank you, Your Honor.

[00:31:06] Speaker 00:
Thank you.

[00:31:07] Speaker 00:
I want to thank both counsel for the briefing and argument.

[00:31:09] Speaker 00:
This matter is submitted.