[00:00:19] Speaker 03:
Good morning, everyone, and Judge Bybee and Judge Bea, and I would like to welcome you all to the Ninth Circuit.

[00:00:27] Speaker 03:
We're excited to see you all here.

[00:00:29] Speaker 03:
We have four arguments today.

[00:00:31] Speaker 03:
The first is United States versus Christopher Milliken, and when the parties are ready, Ms.

[00:00:39] Speaker 03:
Hughes, I believe, when you're ready.

[00:00:49] Speaker 00:
Good morning, Your Honors, may it please the court.

[00:00:51] Speaker 00:
Christy Hughes on behalf of Mr. Milliken.

[00:00:52] Speaker 00:
I'd like to reserve three minutes for rebuttal, but I'll keep an eye on the clock.

[00:00:56] Speaker 03:
Very well.

[00:00:58] Speaker 00:
I know there are a lot of issues raised in this case.

[00:01:00] Speaker 00:
I want to start by just very briefly addressing the interrogation in case the court is inclined to reach that issue on plain error.

[00:01:09] Speaker 00:
Obviously, there was no motion to suppress, no evidentiary hearing.

[00:01:12] Speaker 00:
But this court does have the interrogation transcript and the interrogation video.

[00:01:18] Speaker 00:
And the court can look at those and make the legal determination that Mr. Milliken sufficiently invoked his right to counsel when he said, I mean, if I have to, I guess I need to talk to somebody about this.

[00:01:29] Speaker 00:
Like, I've never had to get a lawyer for anything, and then sat there in silence for several seconds.

[00:01:35] Speaker 00:
That's a sufficiently clear invocation.

[00:01:37] Speaker 00:
of his right to counsel.

[00:01:39] Speaker 00:
All that's required is that a defendant or a suspect speak clearly enough that a reasonable officer would understand that he's requesting an attorney.

[00:01:46] Speaker 00:
And Mr. Millican said, I need to talk.

[00:01:48] Speaker 04:
That's very difficult to get off of that transcript.

[00:01:51] Speaker 04:
That's why hearing would have been very, very useful.

[00:01:54] Speaker 04:
It's very difficult to see that that is actually an invocation.

[00:01:58] Speaker 04:
He does seem to be puzzled because he wants to know whether it would have to be a military lawyer, whether it could be a public defender, whether he would be on the hook for any costs.

[00:02:11] Speaker 04:
He then initialed a waiver saying that he understood he had the right to a lawyer and that he was voluntarily talking with them.

[00:02:17] Speaker 04:
So all of that, I think, on a cold record makes it very, very difficult to conclude that he has unambiguously invoked a right to counsel and that he did not wish to proceed in the absence of counsel.

[00:02:29] Speaker 00:
Well, I understand your Honor's point, and we are faced with this cold record, unfortunately, but I think on this point, you know, I'll

[00:02:36] Speaker 00:
submit on the question of whether he was questioning under Rodriguez, whether that was an ambiguous statement in response to the advice of the right to counsel.

[00:02:46] Speaker 00:
But on this point about whether in the middle of the interrogation that he invoked, I think the record's much clearer.

[00:02:50] Speaker 00:
He says there, I need to talk to somebody about this, and it's clear from the next sentence

[00:02:55] Speaker 00:
that he means a lawyer.

[00:02:56] Speaker 00:
He says, I've never needed a lawyer before for anything.

[00:02:58] Speaker 00:
And then he just sits there, I think, waiting for them to give him the lawyer that he's just asked for.

[00:03:02] Speaker 00:
And they just don't.

[00:03:04] Speaker 00:
They sit there for several seconds, and then they continue with the interrogation.

[00:03:07] Speaker 00:
And so it's not required that someone speak very eloquently.

[00:03:11] Speaker 00:
All that's required is that it's clear enough that a reasonable officer would understand he's asking for counsel.

[00:03:16] Speaker 00:
And when he says, I need to talk to somebody, and he's referring to a lawyer, that's sufficiently clear.

[00:03:22] Speaker 00:
I'd like to turn to the testimonial hearsay issue.

[00:03:25] Speaker 00:
There's two points of dispute between the parties on this, whether this was testimonial, whether these Snapchat and Comcast records were testimonial, and whether they were hearsay, because the government argues that they weren't admitted for their truth.

[00:03:37] Speaker 00:
So on the hearsay, on the truth of the matter asserted point, the Supreme Court just recently affirmed in Smith versus Arizona that we don't take the government's non-hearsay label at face value.

[00:03:48] Speaker 00:
The reviewing court undertakes its own independent analysis

[00:03:52] Speaker 00:
of whether the statements were admitted for the truth of the matter asserted.

[00:03:56] Speaker 03:
Well, why wasn't it admitted properly under the effect of the listener?

[00:04:02] Speaker 03:
And that is law enforcement and how they conducted their investigation.

[00:04:07] Speaker 03:
I guess why was that incorrect?

[00:04:09] Speaker 00:
And that's what the government has argued, Your Honor.

[00:04:11] Speaker 00:
But if you go back to Detective Diaz's direct, you can see that they're going through and using this to establish the disputed element of identity.

[00:04:20] Speaker 00:
This is at 4ER 320.

[00:04:22] Speaker 00:
They go through and they ask, what subscriber name shows up on this?

[00:04:25] Speaker 00:
Christopher Milligan.

[00:04:26] Speaker 00:
Was there a service address?

[00:04:27] Speaker 00:
Yes, it was 2900 Sky Raider Court.

[00:04:30] Speaker 00:
What was the email address?

[00:04:31] Speaker 00:
Christopher George Milligan.

[00:04:33] Speaker 00:
They go through with the same thing with the Snapchat records.

[00:04:35] Speaker 00:
And when you look at the cross and the redirect, it's even clearer to see that the government was using these to establish identity, because the defense lawyer gets up on cross

[00:04:46] Speaker 00:
and is trying to rebut all of the evidence that has just come in to link Mr. Millican to that Snapchat account.

[00:04:52] Speaker 00:
So he says, you know, those Snapchat records don't necessarily tell us that Mr. Millican was the user of that, correct?

[00:04:59] Speaker 00:
And Detective Diaz says yes, and then the government gets back on redirect and goes back to the Comcast records and goes right back up to link it.

[00:05:06] Speaker 00:
What was the account associated with that IP address?

[00:05:09] Speaker 00:
This is at 4ER333.

[00:05:11] Speaker 00:
It was Christopher Millican.

[00:05:12] Speaker 00:
What was the address?

[00:05:13] Speaker 00:
2900 Sky Raider Court, Apartment B, and Lamour.

[00:05:16] Speaker 00:
So I understand that's the government's argument, but I just don't think the way they used it was to show the effect on the listener.

[00:05:23] Speaker 04:
Again, and we raised this in the briefs, but again, during the closing argument, the gov... For what purpose did the government then use it, or did they, yeah, did the government then use it?

[00:05:32] Speaker 04:
They used it to get a warrant.

[00:05:34] Speaker 00:
They did.

[00:05:35] Speaker 04:
And then linked it to Millikan, who then came in and confessed that he was the guy who owned the account.

[00:05:40] Speaker 04:
I'm sort of puzzled as to what they were supposed to do and why that's testimonial and not simply an indication of the path that the government chose in order to get the warrant.

[00:05:51] Speaker 04:
His confession then links him to this without any question.

[00:05:55] Speaker 04:
I don't know why this is even relevant at this point.

[00:05:58] Speaker 00:
Well, again, in terms of harmlessness, we've argued that confession shouldn't have come in.

[00:06:03] Speaker 00:
But there is case law saying that for confrontation clause analysis, that if testimonial statements come in and they

[00:06:09] Speaker 00:
significantly alter the evidentiary picture, then they're not harmless.

[00:06:12] Speaker 00:
They do have an effect on the outcome.

[00:06:14] Speaker 04:
The government didn't follow any unusual path in the way that it secured this information.

[00:06:19] Speaker 04:
In other words, this is commonly done.

[00:06:21] Speaker 04:
Is there any other case in which a court has addressed this issue?

[00:06:25] Speaker 04:
Are we the first court to address this issue?

[00:06:28] Speaker 04:
Again, a very, very common procedure?

[00:06:31] Speaker 00:
We're not taking issue with the government's procedure and how they got a warrant.

[00:06:35] Speaker 00:
We're taking issue with how they admitted those statements.

[00:06:38] Speaker 04:
What I'm suggesting is, I'm guessing that this scenario has been duplicated hundreds if not thousands of times.

[00:06:46] Speaker 04:
Is there any other court that has ever taken up this point, addressed it and concluded that this is testimonial evidence and that it must be verified?

[00:06:55] Speaker 00:
Yes, so I would point, Your Honor, to the first circuit case that we cited, Cameron.

[00:06:59] Speaker 00:
There were two sets of records that came in.

[00:07:02] Speaker 00:
One were these automatic login trackers that Yahoo produced.

[00:07:06] Speaker 00:
And then there were these tip sheets that Yahoo produced, which was someone went through the data at Yahoo, determined which user had suspected child pornography in his account, and then sent a report to the National Center for Missing and Exploited Children.

[00:07:20] Speaker 00:
And there, the First Circuit distinguished between those two types of records and said, those login trackers, those are not testimonial.

[00:07:28] Speaker 00:
They're created in the regular course of Yahoo's business.

[00:07:31] Speaker 00:
They don't make a statement.

[00:07:32] Speaker 00:
There's nothing in those.

[00:07:33] Speaker 00:
But an employee at Yahoo searched through the data and then made a statement that was submitted to the National Center for Missing and Exploited Children and was admitted at trial that says, this is how you identify this person who's suspected of having child pornography.

[00:07:47] Speaker 00:
And that's what happened here.

[00:07:48] Speaker 00:
Detective TS sent out the search warrant, Comcast and Snapchat searched through their records.

[00:07:54] Speaker 00:
An employee at each company produced a formalized statement that was responsive to that search warrant that said, here is the identifying information for this person.

[00:08:03] Speaker 00:
We've searched our records.

[00:08:05] Speaker 00:
Here's how you tell who this person is.

[00:08:06] Speaker 00:
And that was a new statement whose primary purpose was to provide evidence against a defendant at trial, which the Supreme Court said in Melendez Diaz is testimonial.

[00:08:18] Speaker 00:
And so when that came in, it shouldn't have come in through Detective Diaz.

[00:08:21] Speaker 00:
It should have come in through the Snapchat employee and the Comcast employee, who could explain the records that they searched for, how they searched through them, and all of that, so that they could have been crossed on it.

[00:08:34] Speaker 00:
Unless Your Honors have further questions on that, I'd like to address Mr. Milliken's sentence.

[00:08:40] Speaker 00:
This was an almost 50-year sentence, almost at the statutory maximum.

[00:08:46] Speaker 00:
It was objectively substantively unreasonable.

[00:08:49] Speaker 00:
It's not just that.

[00:08:50] Speaker 03:
Was it a guideline sentence?

[00:08:52] Speaker 03:
In other words, was it within the guidelines?

[00:08:55] Speaker 00:
It was within the guidelines.

[00:08:56] Speaker 03:
How is that not allowed for the district court to do just that?

[00:09:02] Speaker 00:
Well, I mean, it's allowed, but it's still substantively unreasonable.

[00:09:04] Speaker 00:
As this court knows, we don't presume that a within guideline sentence or even a below guideline sentence is substantively unreasonable.

[00:09:12] Speaker 00:
It didn't account for the unwarranted sentencing disparities and the unwarranted sentencing similarities that it created with this.

[00:09:19] Speaker 00:
We cited in the briefs several cases where defendants with much more egregious conduct than Mr. Milliken, cases involving infants, where the defendants themselves are sexually abusing the children to create this child pornography, many more victims.

[00:09:33] Speaker 00:
Those cases are getting 30-year sentences, 50-year sentences,

[00:09:38] Speaker 00:
Mr. Milliken, these were not prepubescent minors.

[00:09:40] Speaker 00:
He was not involved in any physical activity.

[00:09:43] Speaker 03:
Did the judge not engage in that analysis?

[00:09:46] Speaker 00:
No, I don't believe so.

[00:09:47] Speaker 00:
He just said, I think this conduct is egregious, and I'm giving you this 47-year sentence, but didn't really engage on the sentencing disparity argument that counsel had raised.

[00:09:57] Speaker 00:
But I'm talking more of not the procedural unreasonableness, but just the substantive unreasonableness.

[00:10:01] Speaker 00:
I think there's also several factors in the record that the judge didn't account for that would have warranted

[00:10:07] Speaker 00:
a lower sentence.

[00:10:08] Speaker 00:
He didn't consider the fact that Mr. Milliken was just 24 years old when he committed this offense.

[00:10:13] Speaker 00:
Didn't consider the fact that this was Mr. Milliken's first offense.

[00:10:16] Speaker 03:
Why do you say that?

[00:10:17] Speaker 03:
Why do you say that?

[00:10:18] Speaker 03:
I mean, he obviously read the pre-sentence investigation report.

[00:10:21] Speaker 03:
All of the things that you've mentioned would be in the pre-sentence investigation report.

[00:10:25] Speaker 03:
Why do you say that he didn't consider it?

[00:10:27] Speaker 03:
Did he say, was there something in the record that says, I am not considering his A?

[00:10:33] Speaker 03:
I mean, how do you make that argument?

[00:10:36] Speaker 00:
Well, for two reasons, Your Honor.

[00:10:37] Speaker 00:
I think one is there's no evidence in the record that he did consider it in the sense that he never mentioned it on the record.

[00:10:43] Speaker 03:
I mean, they were definitely fighting about... But we don't expect our judges to do that, do we?

[00:10:47] Speaker 03:
Do we expect them to list out every single little thing that's in the Pre-Sense Investigation Report?

[00:10:53] Speaker 00:
No, Your Honor, we don't.

[00:10:54] Speaker 00:
But I think when this is an issue that defense counsel has raised, that a almost 50 year sentence is gonna be much greater than necessary, then the judge could go through, should go through and discuss why the mitigating factors that defense counsel has raised.

[00:11:07] Speaker 04:
The judge did comment, somewhat conclusively, that this was one of the most egregious cases he had ever seen.

[00:11:14] Speaker 04:
And although your client didn't physically touch anybody, this was designer porn.

[00:11:18] Speaker 04:
He's telling these girls what he wants them to do.

[00:11:21] Speaker 04:
And they're responding to him.

[00:11:23] Speaker 00:
It's pretty egregious conduct.

[00:11:26] Speaker 00:
I don't dispute it was reprehensible and egregious.

[00:11:28] Speaker 00:
I just think in comparison to the other cases that are getting this long of a sentence, especially when you consider the fact that this was his first offense.

[00:11:36] Speaker 00:
He had been out on pretrial release for two years.

[00:11:38] Speaker 00:
Pretrial services had no issues with him.

[00:11:40] Speaker 00:
He didn't reoffend.

[00:11:42] Speaker 00:
He was working.

[00:11:42] Speaker 00:
He was going to mental health counseling.

[00:11:44] Speaker 00:
Again, his young age.

[00:11:46] Speaker 00:
There were collateral consequences that the court didn't consider.

[00:11:49] Speaker 00:
He was separated from the Navy.

[00:11:50] Speaker 00:
He and his family lost not just his job, but his housing, their insurance.

[00:11:54] Speaker 00:
There were a lot of factors here that would have warranted a lower sentence than almost near the statutory maximum.

[00:12:00] Speaker 00:
I mean, he will be almost 70 when he is released from custody.

[00:12:05] Speaker 00:
I'll reserve the remainder of my time unless your honors have questions.

[00:12:08] Speaker 03:
Very well.

[00:12:08] Speaker 00:
Thank you.

[00:12:19] Speaker 05:
Good morning and may it please the court, John Alex Romano on behalf of the United States.

[00:12:24] Speaker 05:
Mr. Milliken's claims are mostly waived or forfeited, but they would fail under any standard of review.

[00:12:30] Speaker 05:
We ask that the court affirm the convictions and sentence and remand for the very narrow purpose of correcting an inconsistency in the judgment concerning the payment plan applicable to the total assessment.

[00:12:40] Speaker 05:
I'll begin briefly with the Miranda claim.

[00:12:43] Speaker 05:
This claim is waived because Mr. Milliken did not raise it before trial or at any point below.

[00:12:49] Speaker 05:
Rule 12 identifies suppression claims as claims that must be raised before trial.

[00:12:54] Speaker 05:
Rule 12C says that absent a showing of good cause, the failure to raise such a claim renders it untimely.

[00:13:00] Speaker 05:
And this court held in Guerrero, a published decision, that absent that showing of good cause, a newly raised suppression claim on appeal is not reviewable even under the plain error standard.

[00:13:12] Speaker 03:
But they've said there is good cause, right?

[00:13:15] Speaker 03:
What have they said?

[00:13:16] Speaker 05:
They have not made any argument as good cause in either their opening brief or the reply brief or here this morning during argument.

[00:13:23] Speaker 05:
So our frontline argument is that this claim is waived.

[00:13:27] Speaker 05:
If this court were to look past Guerrero and conduct some review, it would be for plain error.

[00:13:33] Speaker 05:
And I'll just focus on one of the three issues that my friend on the other side addressed here this morning.

[00:13:38] Speaker 05:
That is the request that's made for counsel.

[00:13:42] Speaker 05:
This is the alleged request, I should say, for counsel.

[00:13:45] Speaker 05:
And this exchange occurs after Mr. Millican has executed the written waiver.

[00:13:50] Speaker 05:
And just to recap, he says,

[00:13:52] Speaker 05:
So I mean, if I have to, I guess I need to talk to somebody about this.

[00:13:55] Speaker 05:
Like I've never had to get a lawyer for anything, but, and then he pauses, he's not interrupted or anything.

[00:14:01] Speaker 05:
Um, that is at best an ambiguous and equivocal statement.

[00:14:05] Speaker 05:
It does not satisfy the standard for an unambiguous request in Davis versus the United States.

[00:14:10] Speaker 05:
And since we're here on plan error review, it's really the.

[00:14:14] Speaker 05:
You make a showing of unambiguous to the second power, because it has to be clear and obvious that this is an unambiguous request.

[00:14:19] Speaker 05:
And it just doesn't get there.

[00:14:21] Speaker 05:
If the court compares this ambiguous statement to others at the Supreme Court in Davis, and this court has held do not rise to the level of an ambiguous case, the court will see the similarity.

[00:14:31] Speaker 05:
So in Davis, the comment was, maybe I should talk to a lawyer.

[00:14:35] Speaker 05:
In Michael's versus David's, out of this case, I don't know if I should without an attorney.

[00:14:40] Speaker 05:
In Doe, out of this circuit, the juvenile's mother says maybe he ought to see an attorney.

[00:14:46] Speaker 05:
All of those statements were held not to satisfy the standard in Davis, and we submit that the statement in question here does not satisfy it either, particularly on plain error review.

[00:14:57] Speaker 03:
Can you address a Snapchat referral?

[00:14:59] Speaker 03:
Yes, Your Honor, thank you.

[00:15:02] Speaker 05:
And moving to this second claim, and this claim is on plain error review.

[00:15:07] Speaker 05:
I believe that's conceded.

[00:15:09] Speaker 05:
And there was no confrontation clause error, let alone a plain error.

[00:15:12] Speaker 05:
And there are two categories of evidence, and I think it's important to distinguish them, because there's been, with respect to my friend in the side, some, I think, conflating of the categories of evidence.

[00:15:21] Speaker 05:
Slow down, counsel.

[00:15:22] Speaker 05:
I apologize, Your Honor.

[00:15:24] Speaker 05:
The first category would be the law enforcement referral evidence, and this is what Detective Diaz testified to.

[00:15:30] Speaker 05:
And the second category, which I'll come back to, would be all of the evidence obtained from Comcast and Snapchat through a search warrant.

[00:15:37] Speaker 05:
But as to the law enforcement referral evidence, this was not hearsay, because it was not admitted for the truth of the matter asserted, it was admitted to prove

[00:15:47] Speaker 05:
explain the background for the investigation.

[00:15:49] Speaker 01:
Why was that relevant?

[00:15:50] Speaker 01:
But of course that relevance wasn't raised as an issue.

[00:15:55] Speaker 01:
Who cares whether Diaz was acting well or not?

[00:15:58] Speaker 01:
Was there an objection to it?

[00:16:00] Speaker 01:
I understand there was no objection to the introduction of the evidence.

[00:16:05] Speaker 05:
There was on hearsay grounds, not on confrontation grounds.

[00:16:08] Speaker 05:
And it was very limited.

[00:16:09] Speaker 05:
Detective Diaz, it's not uncommon for a law enforcement officer to explain what led him or her to go seek a search warrant, which is what Detective Diaz was doing.

[00:16:19] Speaker 01:
But the search warrant wasn't contested, was it?

[00:16:22] Speaker 01:
I'm sorry?

[00:16:23] Speaker 01:
The search warrant wasn't contested.

[00:16:25] Speaker 05:
No, but it was explaining to the jury

[00:16:27] Speaker 05:
Why they took the step.

[00:16:30] Speaker 05:
I would submit that it's not at all uncommon to have the law enforcement officer explain, this is why I went to go seek a search warrant.

[00:16:36] Speaker 05:
And that's all it was.

[00:16:37] Speaker 01:
It may be common, but it's also irrelevant.

[00:16:40] Speaker 05:
But Your Honor, I would disagree.

[00:16:43] Speaker 05:
I think this case is actually controlled by Wachamna, a case decided by this circuit where this court held, rejected a confrontation clause challenge.

[00:16:52] Speaker 05:
To testimony that came in by a law enforcement officer that said, we received anonymous complaints that this defendant was illegally selling eagle parts.

[00:17:01] Speaker 05:
And this court held.

[00:17:03] Speaker 05:
that there's no confrontation clause with issue with that because it was just admitted to explain why the agents then began to investigate the defendant in question.

[00:17:13] Speaker 05:
It was just admitted to explain the investigative steps that was subsequently taken.

[00:17:20] Speaker 05:
So this case is very, is like Wachamna and very dissimilar to the Cameron case that the defense

[00:17:28] Speaker 05:
Mr. Milliken relies upon so heavily.

[00:17:31] Speaker 05:
The law enforcement referral evidence in Cameron were these what were called child pornography reports that were prepared by Yahoo, which undertook an analysis of suspected child pornography.

[00:17:44] Speaker 05:
It even went to the legal department.

[00:17:46] Speaker 05:
What ISP was used to upload it at the uploading time.

[00:17:49] Speaker 05:
This report then gets transferred over to the National Center for Missing and Exploited Children, which I think created a similar report.

[00:17:56] Speaker 05:
And then all of that goes over

[00:17:58] Speaker 05:
to a law enforcement task force.

[00:18:00] Speaker 05:
So that was the law enforcement referral evidence in Cameron.

[00:18:03] Speaker 05:
In this case, we didn't admit any reports from Snapchat to explain the referral.

[00:18:08] Speaker 05:
It was just Detective Diaz testifying about the receipt of information that led him then to go on and seek the search warrant.

[00:18:17] Speaker 03:
Can you explain the primary purpose?

[00:18:19] Speaker 03:
I guess that's what this hinges on.

[00:18:21] Speaker 05:
Yes, and is the court inquiring as to the referral evidence?

[00:18:24] Speaker 05:
Because there is a challenge to the actual search warrant records.

[00:18:27] Speaker 05:
To the referral.

[00:18:29] Speaker 05:
To the referral.

[00:18:32] Speaker 05:
was simply to explain why Detective Diaz then goes on to seek the search warrants from Comcast and Snapchat.

[00:18:42] Speaker 05:
It's not even being admitted as substantive evidence of guilt against the defendant.

[00:18:47] Speaker 05:
And the court can see the reason that the government proffered for this evidence at ER 317 to 318.

[00:18:55] Speaker 05:
And during closing argument, and I'll just pause and say the district court agreed with

[00:19:00] Speaker 05:
that we were not submitting it as substantive evidence, but simply to explain the investigative background.

[00:19:06] Speaker 05:
And the government sort of hewed to that line when discussing the evidence during closing argument at ER 482 to 485.

[00:19:15] Speaker 05:
I mean, the fact of the matter is, we go on, the government went on

[00:19:18] Speaker 05:
and obtained the search warrant records from Snapchat and Comcast.

[00:19:22] Speaker 05:
And that is what we used at trial, those records, to establish the connection between the IP address and question, the Snapchat user account.

[00:19:34] Speaker 05:
And that evidence was not testimonial.

[00:19:36] Speaker 05:
I'm sorry, Judge Bayard.

[00:19:38] Speaker 01:
You didn't have a custodian of records of either Snapchat or Comcast.

[00:19:41] Speaker 01:
or Comcast testify as to the authenticity of the records.

[00:19:49] Speaker 01:
Is that a problem?

[00:19:50] Speaker 05:
Uh, it was not your honor.

[00:19:51] Speaker 05:
And I would just say, and this goes more to our fourth plan error prong issue, but we did notice our intent to proceed based on the certifications before trial.

[00:19:59] Speaker 05:
And, um, the defense actually filed something registering their lack of objection to our proceeding in that manner.

[00:20:06] Speaker 05:
And based on the, on the wording of the pretrial order, that lack of objection in effect meant that the evidence would be admitted.

[00:20:13] Speaker 05:
So for now, and I realize I'm on.

[00:20:15] Speaker 05:
fourth plain error prong, but to now turn around and say, given after the lack of objection, to turn around on appeal and say that that resulted in some miscarriage of justice, we believe, falls far short of the burden on the fourth prong.

[00:20:30] Speaker 05:
Most of the court has more questions on the referral evidence.

[00:20:33] Speaker 05:
I would like to briefly address the actual search warrant records, because I understand the confrontation cause challenge also to challenge that evidence.

[00:20:41] Speaker 05:
And that evidence analysis is different.

[00:20:44] Speaker 05:
It's not testimonial.

[00:20:45] Speaker 05:
These are pre-existing records of the regularly conducted business activities of Comcast and Snapchat.

[00:20:53] Speaker 05:
The Supreme Court indicated in Melendez-Diaz that

[00:20:57] Speaker 05:
As a general matter, business records will be admissible without confrontation.

[00:21:02] Speaker 05:
And this court has rejected repeatedly confrontation clause challenges to business records.

[00:21:08] Speaker 05:
It did so in Haguej, which was, I think it was foreign bank records in that case.

[00:21:14] Speaker 05:
In the Puri case, it was a firearm transaction report.

[00:21:18] Speaker 05:
In Castro, it was lender verification documents.

[00:21:22] Speaker 05:
So at least these records were pre-existing, they were business records, they were not testimonial.

[00:21:30] Speaker 05:
And some of the additional cases that we cite in our briefs go to this and rebut this argument that the defense is also making that the act of

[00:21:38] Speaker 05:
looking for responsive documents to the search warrant somehow renders business records that are not testimonial, converts them into testimonial evidence.

[00:21:49] Speaker 05:
And our cases that we've cited in our brief are but that.

[00:21:51] Speaker 05:
If the court looks, for example, at the Keck case out of the 10th Circuit, which we've cited, these are discussed on pages 39 to 40 of the government's brief.

[00:22:00] Speaker 05:
Those are the records there were money Graham spreadsheets that were produced to the government and the government introduced them at trial.

[00:22:07] Speaker 05:
And the argument was that the act of the custodian of records in money Graham, I suppose, of going in and finding

[00:22:16] Speaker 05:
responsive spreadsheets and consolidating them into one spreadsheet, in effect resulted in a new statement.

[00:22:23] Speaker 05:
That was the argument that the defense made.

[00:22:24] Speaker 05:
And that statement was testimonial.

[00:22:26] Speaker 05:
And the 10th Circuit rejected it because these all came from pre-existing records.

[00:22:30] Speaker 05:
There was no creation of new information there.

[00:22:33] Speaker 05:
If the court looks at the Flores case, which is an unpublished Sixth Circuit decision, there it was GPS data that was compiled in response to a law enforcement subpoena

[00:22:45] Speaker 05:
the Sixth Circuit rejected a confrontation clause challenge to the admission of those business records.

[00:22:52] Speaker 05:
The evidence here is

[00:22:55] Speaker 05:
entirely distinguishable from the evidence deemed testimonial in Melendez-Diaz.

[00:23:00] Speaker 05:
In Bullcoming, in those cases, you had certifications prepared by personnel who specifically performed tests to provide evidence at trial.

[00:23:09] Speaker 05:
In Melendez-Diaz, it was an analysis of a substance, which turned out to be cocaine, and that analysis needed to be done to prove an element of the offense.

[00:23:18] Speaker 05:
In Bullcoming, it was analysis of the alcohol and drug content.

[00:23:23] Speaker 05:
I believe it was a blood test in Bullcoming.

[00:23:25] Speaker 05:
Again, then you have a certification that's done.

[00:23:28] Speaker 05:
So that goes to prove an element of the offense.

[00:23:32] Speaker 05:
The Orozco Acosta case that the defense relies on in their reply brief that involves the certificate of the non-existence of record, that was- Can you spend some time on the sentencing?

[00:23:43] Speaker 03:
Sure.

[00:23:44] Speaker 03:
Council addressed that, and I'd like to give you an opportunity to address her objections.

[00:23:49] Speaker 05:
Yes, Your Honor.

[00:23:50] Speaker 05:
And I'll focus on substantive reasonableness as my friend on the other side did.

[00:23:54] Speaker 05:
The district court imposed a sentence that was long, but it was actually below the guidelines here.

[00:24:00] Speaker 05:
And the court was clearly focused on the seriousness of Mr. Millican's offense conduct and the need to protect minors in the community from Mr. Millican.

[00:24:09] Speaker 05:
The gist of his explanation is that ER 48 said the conduct is, quote, despicable, ongoing, conduct that did, quote, incredible damage.

[00:24:19] Speaker 05:
Just one of the worst cases I've seen.

[00:24:21] Speaker 03:
I take her argument to be that there is not this sort of comparable analysis to the other, you know, typical cases that he was extremely young and that that analysis needed to be and it needed to be gone over and maybe on the record.

[00:24:41] Speaker 05:
I don't believe so, Your Honor.

[00:24:42] Speaker 05:
As I think one of your questions might have sort of intimated, we don't require district courts to list out every particular reason.

[00:24:50] Speaker 05:
It's clear the court here was very engaged.

[00:24:52] Speaker 05:
It had the PSR before it.

[00:24:54] Speaker 05:
It heard all of the arguments that the defense was making.

[00:24:58] Speaker 05:
It was focused on the severity of the offense conduct, the need to protect minors, but it also credited Mr. Milliken with certain factors.

[00:25:06] Speaker 05:
It acknowledged that he had expressed some remorse, although the court found that it was mostly focused on the effect the case was having on his life and his family as opposed to the victims, but it did credit him with that.

[00:25:18] Speaker 05:
It credited him with having spoken to law enforcement and provided information.

[00:25:23] Speaker 05:
It simply weighed the balance differently than Mr. Milliken wanted.

[00:25:28] Speaker 05:
and the court

[00:25:31] Speaker 05:
The assessment of the severity of the conduct was not only borne out by the trial evidence, but by the impact statement that was made by minor victim one, who not only testified at trial, but she also appeared for sentencing.

[00:25:41] Speaker 05:
And she told the court that as a result of Mr. Milliken's conduct, she had committed suicide, tried to commit suicide, excuse me.

[00:25:48] Speaker 05:
And you know, in her own words, this is at ER 43 to 44, the mental torment this has brought me will forever be scarred on my brain and I will never forget the moments I felt so low, I have attempted my own life.

[00:25:59] Speaker 05:
The court could rely on that.

[00:26:01] Speaker 05:
And as for this unwarranted disparity argument, there are a couple of responses that the government has.

[00:26:07] Speaker 05:
One, this was a below guideline sentence.

[00:26:09] Speaker 05:
We know from Gall and this court's decision in green that one purpose or the purpose of the guidelines is to promote national uniformity in sentencing.

[00:26:20] Speaker 05:
So the fact that here Mr. Millican actually received a sentence that was slightly below the guidelines indicated that the sentence wasn't going to create unwarranted sentencing disparities.

[00:26:31] Speaker 05:
And second, I would just note that in terms of the argument that was made below about unwarranted sentencing disparities, it's a very skeletal argument.

[00:26:40] Speaker 05:
The court can look, for example, at one of the sentencing submissions where the argument is made by the defense at ER 64.

[00:26:46] Speaker 05:
It's very skeletal.

[00:26:47] Speaker 05:
I understand on appeal, Mr. Milliken has now cited cases of purportedly more egregious conduct.

[00:26:54] Speaker 05:
That just shows that there can be other conduct, perhaps equally as egregious, that warrants a long sentence.

[00:27:01] Speaker 05:
That doesn't mean, and I don't believe he's come forward with any case even on appeal, showing that a similarly situated defendant received a materially lower sentence, a defendant who had a similar guideline range.

[00:27:13] Speaker 05:
I see that my time is about to expire.

[00:27:16] Speaker 02:
Any additional questions?

[00:27:17] Speaker 02:
Any additional questions?

[00:27:19] Speaker 03:
All right.

[00:27:19] Speaker 03:
Thank you very much.

[00:27:20] Speaker 03:
Thank you.

[00:27:27] Speaker 00:
Just a couple of points on the testimonial hearsay issue, Your Honors.

[00:27:32] Speaker 00:
This case is not like the MoneyGram cases and those other out of circuit cases.

[00:27:36] Speaker 00:
This was not pre-existing data that a clerk just submitted as evidence.

[00:27:41] Speaker 00:
This was a clerk at Snapchat, at Comcast, going through their data, searching through to determine which data was responsive to that search warrant, and then preparing a new statement to be used in court.

[00:27:52] Speaker 00:
And that's exactly what Melendez Diaz says is testimonial.

[00:27:55] Speaker 03:
They didn't create new documents, did they?

[00:27:59] Speaker 00:
Well, they did.

[00:27:59] Speaker 00:
They created the exhibit 15 and exhibit 16.

[00:28:03] Speaker 00:
It wasn't like they just brought in the spreadsheet that exists at Comcast or Snapchat.

[00:28:07] Speaker 00:
They went through and said, these are the pieces of information that will identify the person that is on trial.

[00:28:13] Speaker 00:
That was the new statement that they created.

[00:28:15] Speaker 00:
And so what the court said in Melendez Diaz is,

[00:28:17] Speaker 00:
If the clerk just wants to certify the correctness of a pre-existing record, that's fine.

[00:28:22] Speaker 00:
That's not testimonial.

[00:28:24] Speaker 00:
But if the clerk wants to search through the data and either say, I don't find the record you're looking for, or makes a new statement about that record that's going to be used as evidence against a defendant, that is testimonial.

[00:28:36] Speaker 00:
And that's what happened here.

[00:28:37] Speaker 00:
There's a difference between the data and the new statement that was produced about that data in response to the search warrant.

[00:28:45] Speaker 01:
What data was left out?

[00:28:49] Speaker 00:
Presumably, I mean, I don't know, Your Honor, because I don't have all of those records from Yahoo and, I'm sorry, from Snapchat and Comcast, but presumably there was other data about other IP addresses that had been used other times he had logged in.

[00:29:02] Speaker 00:
I don't know.

[00:29:03] Speaker 00:
I don't have that information in front of me.

[00:29:05] Speaker 00:
I just have their statement.

[00:29:06] Speaker 04:
I want to follow up on something that you said.

[00:29:08] Speaker 04:
You said that this document was prepared for trial?

[00:29:12] Speaker 00:
I'm sorry if I said that I misspoke.

[00:29:15] Speaker 04:
I thought I heard that twice.

[00:29:16] Speaker 00:
I apologize.

[00:29:17] Speaker 04:
This was prepared for law enforcement and referred to law enforcement.

[00:29:21] Speaker 04:
They went and then got the search warrant.

[00:29:23] Speaker 00:
Correct.

[00:29:23] Speaker 00:
I think it was prepared under circumstances that we would lead a reasonable witness to understand that this would be available for use at a later trial.

[00:29:30] Speaker 04:
They're providing this.

[00:29:31] Speaker 04:
Why would Snapchat think of that?

[00:29:33] Speaker 04:
Does Snapchat have a particular interest in seeing people prosecuted?

[00:29:39] Speaker 00:
Well, I think, for one, if you look back at exhibit 16, the Snapchat custodian of records, it comes from the legal department.

[00:29:45] Speaker 00:
They're responding to a law enforcement search warrant.

[00:29:48] Speaker 00:
But she says right on there, she signs it under penalty of perjury, and she says, I can testify to all of this if I'm called as a witness at trial.

[00:29:55] Speaker 00:
And same thing with Comcast.

[00:29:57] Speaker 00:
It's prepared by the legal department.

[00:30:00] Speaker 00:
signed under penalty of perjury, that one's even notarized.

[00:30:02] Speaker 00:
I think they both recognize that this is a formalized statement that is providing evidence to law enforcement.

[00:30:08] Speaker 00:
It's likely that that will end up in a trial.

[00:30:10] Speaker 00:
This is likely going to be available for use at trial later.

[00:30:14] Speaker 04:
Would the government's case have been substantially weaker if they hadn't introduced this?

[00:30:21] Speaker 00:
I think it would have been weaker.

[00:30:22] Speaker 00:
I think identity was what Mr. Millican was challenging.

[00:30:26] Speaker 04:
But we know what happened with the search warrant.

[00:30:28] Speaker 04:
He then confessed to all of this.

[00:30:30] Speaker 04:
They interrogated him for quite some time, and he told them what he was doing.

[00:30:34] Speaker 04:
It's not really in question.

[00:30:36] Speaker 00:
Well, I understand your Honor's point.

[00:30:38] Speaker 00:
Mr. Millican challenged that interrogation.

[00:30:40] Speaker 00:
This was the defense, was that the interrogators had planted some of the information in his head.

[00:30:45] Speaker 00:
that his defense was that wasn't me.

[00:30:47] Speaker 00:
Other people had access to my Snapchat account, other people had access to the internet at my house, and so his defense was challenging the identity element, and that was how the government used this.

[00:30:57] Speaker 00:
Judge Bea's point was well taken.

[00:30:59] Speaker 00:
There was no Fourth Amendment claim raised here, and so whether the search warrant was valid or anything, that was just not an issue.

[00:31:05] Speaker 00:
This was admitted not to show how the investigation unfolded, but to show that Mr. Milliken was the responsible person for those images in the Snapchat account.

[00:31:14] Speaker 02:
Any additional questions?

[00:31:15] Speaker 02:
Any additional questions?

[00:31:17] Speaker 02:
All right.

[00:31:17] Speaker 02:
Thank you.

[00:31:19] Speaker 03:
I want to thank both council for their presentation.

[00:31:21] Speaker 03:
The matter of United States versus Christopher Milken is submitted.