[00:00:01] Speaker 00:
Good morning.

[00:00:03] Speaker 00:
My name is Ethan ballo and I represent seer bang again With the time today what I'd like to do is start with the old chief issue and I understand you're gonna split the time.

[00:00:14] Speaker 01:
Is that correct?

[00:00:14] Speaker 00:
That's correct I'm gonna go for 15 minutes address old chief to the misconduct claims.

[00:00:19] Speaker 00:
I'll spend a minute or two on my rule 29 I'm gonna try to go for four and four and save three wish me luck, please.

[00:00:26] Speaker 00:
I'll watch my clock and then your mr. Johnston

[00:00:30] Speaker 00:
will represent Mr. Bercardo, and he will argue his client's Rule 29 will submit on the second issue on the papers.

[00:00:36] Speaker 01:
And he has a total of five minutes.

[00:00:38] Speaker 00:
He has a total of five.

[00:00:39] Speaker 01:
All right.

[00:00:39] Speaker 01:
Please proceed.

[00:00:40] Speaker 00:
Thank you, Your Honor.

[00:00:45] Speaker 00:
At trial, the government pre-trial moved to admit the images of the child pornography, and the defendants objected, and they challenged the admission under Rule 403.

[00:00:57] Speaker 00:
They contended that the images of minor victim one were so graphic, tragic, and disturbing that the trial court should not admit them for presentation for the jury because they would render the trial unfair on its face.

[00:01:10] Speaker 00:
We know from Andrew White, which the Supreme Court issued this year, that that alone, that some evidence can be so prejudicial it may not be seen by a jury because it can chase reason from the courtroom and will not lead to a dispassionate assessment of the evidence.

[00:01:24] Speaker 00:
In this case, we contend that the District Court made two errors that amount to an abuse of discretion.

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This court teaches in Marino Baldorama that when you're assessing a four or three objection in a child pornography case, you must weigh alternatives.

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Are there other ways and other sources of evidence to address whatever is the only disputed issues?

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And here, what's clear from the hearing transcript before Judge Holcomb.

[00:01:50] Speaker 00:
that the defendants would stipulate to everything but knowing receipt or knowing possession or viewing with knowing of access.

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And that's going to be proven in one of two ways under circuit precedent.

[00:02:02] Speaker 00:
One, you have to show that the person – even – it's not a viewing violation.

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It's for receipt of possession.

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It's did they accept delivery.

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And so the courts teach in Mobager and Rahm that there's two ways the government can meet their burden.

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One is, did the defendant exercise dominion and control over it?

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And the government, I want to make one small point, if I may.

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The government in their brief argues my client could have exercised demeaning control.

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They say he could have printed, saved, et cetera.

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And they cite three different parts of the ERs.

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They cite, this is GAB 26, they cite 386, they cite 394 to 96, and they cite 386 to 90 and 494 to 496.

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Those sites do not support that claim.

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There's no evidence that our client ever exercised demeaning control.

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Their claim is our client commented

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He viewed and commented, this is their argument, and that's insufficient.

[00:03:00] Speaker 05:
So the government pivots.

[00:03:02] Speaker 05:
I'm sorry if I'm not tracking the order in which you're presenting the arguments, but I wanted to, before you move on to the sufficiency on the possession question.

[00:03:10] Speaker 05:
With respect to 403.

[00:03:18] Speaker 05:
The suggestion was stipulate that the materials were child pornography, stipulate in interstate commerce, and so that the only thing left to decide is knowing.

[00:03:27] Speaker 05:
So in your view, the government could prove its case without establishing that the defendants

[00:03:37] Speaker 05:
knew that it was child porn?

[00:03:39] Speaker 00:
No, they had alternative avenues to prove.

[00:03:42] Speaker 00:
What the government said was you need to view the videos themselves.

[00:03:46] Speaker 00:
And my client didn't even receive the videos.

[00:03:48] Speaker 00:
The government argued you need to receive them so, and this is their quote, it's the most powerful evidence.

[00:03:53] Speaker 00:
I agree with that.

[00:03:54] Speaker 00:
It was powerful evidence.

[00:03:55] Speaker 00:
But the defendant said, when you view it, everyone knows it's child porn upon viewing.

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No one disputes child porn.

[00:04:02] Speaker 00:
The question in the case, and this is what they told the district court, was they were arguing it was unsolicited, and so it's unknowing receipt.

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And they're going to defend the case by saying, once we got it, the crime either is committed or not.

[00:04:15] Speaker 00:
by what we do after the receipt.

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And then there's an exception under ROM.

[00:04:19] Speaker 00:
If we sought out these images, and what happens in ROM is the person goes to a website that says, child porn available here, and they look at the, what's the word I'm looking for, the thumbnails, and they see the image, and they select the image, that that's enough to show that they're exercising demeaning control.

[00:04:37] Speaker 00:
They're seeking out the image.

[00:04:39] Speaker 00:
And so that's what the government's arguing to have here.

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And so the 403 issue, the old chief issue that we're arguing, is there were alternatives.

[00:04:48] Speaker 00:
They say we have to prove she's a real girl.

[00:04:50] Speaker 00:
Well, it's not an element.

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They have to show that constitutionally under Ashcroft.

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But here we know the agent can testify.

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I know this girl.

[00:04:57] Speaker 05:
But I guess, as I understand your stipulation, was your stipulation still left

[00:05:06] Speaker 05:
the knowing element, the knowledge element for the jury to decide, but how does that not include knowing that it's the defendant's knowledge that it is child pornography?

[00:05:20] Speaker 00:
It's knowing it ahead of time.

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It's the temporal aspect.

[00:05:23] Speaker 00:
No one disputed that when you see these images of this child being raped, whether in video or images.

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No one disputed that they're obviously child porn.

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We contend, and this is why we included the non-pornographic images, that looking at those images of themselves with description show the horrific nature.

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That's a real little girl.

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She's being raped by Steven Rodriguez.

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It's absolutely happening.

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The agents can testify that they met the child.

[00:05:50] Speaker 00:
So we're saying there's under, and this is what Cunningham grapples with in the Third Circuit.

[00:05:54] Speaker 00:
There's certain evidence that is so prejudicial, that is so inflammatory, viewing it itself makes it impossible to render fair judgment.

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I would sort of make it akin to the light-key exception to judges can't be disqualified for what they learn in a case, because they're jurists.

[00:06:13] Speaker 00:
But even like you, the Supreme Court says, no, certain times, a judge, something happens in a case that can render fair judgment impossible.

[00:06:20] Speaker 00:
And that's what Andrews versus White is talking about with 403.

[00:06:23] Speaker 00:
That's what old people do.

[00:06:23] Speaker 03:
Council, am I correct that at the hearing on the motion in Lemony,

[00:06:28] Speaker 03:
Council conceded that the stipulation would not cover the knowing receipt and possession elements, even though they would be stipulating the content was child pornography.

[00:06:39] Speaker 00:
Correct.

[00:06:40] Speaker 00:
That was the only issue for trial.

[00:06:41] Speaker 00:
They stipulated to everything.

[00:06:42] Speaker 00:
That's called the guilty plea.

[00:06:44] Speaker 00:
And so the only thing that wasn't stipulated trial was the knowing receipt element.

[00:06:47] Speaker 03:
But it wouldn't cover it.

[00:06:49] Speaker 03:
Correct.

[00:06:49] Speaker 03:
And so the district court had to decide whether

[00:06:52] Speaker 03:
This information that the government wanted to introduce in the first instance was relevant to those Facts that were not those issues that were not stipulated to and then

[00:07:07] Speaker 03:
if the probative value was substantially outweighed by the danger of unfair prejudice.

[00:07:12] Speaker 00:
I agree with that.

[00:07:13] Speaker 00:
And so I think the error is in two steps.

[00:07:15] Speaker 00:
One, I think the trial judge has to, one, then under Mourinho-Baldarama, assess alternatives available.

[00:07:22] Speaker 00:
That includes the still photos, that includes descriptions.

[00:07:25] Speaker 00:
The judge didn't do that balancing.

[00:07:27] Speaker 00:
And then the second part, where we claim it's legal error,

[00:07:30] Speaker 00:
The judge has to review the images themselves to do the balancing and I know the government complains that we didn't cite curtain below we were to trial lawyers, but they're saying the trial lawyers didn't cite curtain But the trial lawyers cited Cunningham and storm and they both do the curtain analysis in detail so I guess it's just not clear to me, and I'm sure you and Mr.. Lara know the answer to this but

[00:07:59] Speaker 01:
The district court didn't view the video?

[00:08:03] Speaker 00:
No.

[00:08:03] Speaker 00:
He didn't view the images.

[00:08:04] Speaker 00:
He didn't view anything.

[00:08:05] Speaker 00:
He ruled on the record.

[00:08:06] Speaker 00:
And I think the error was... Were they not transmitted to the district court?

[00:08:10] Speaker 00:
That is correct.

[00:08:11] Speaker 00:
What happened is the government argued that GNO stands for the proposition that if the images are of charged conduct, there can be no unfair prejudice under 403.

[00:08:21] Speaker 00:
And they argue that in the papers, and they argue that at the hearing.

[00:08:24] Speaker 00:
And the judge essentially adopted that view of Gano, and that overstates Gano, and it ignores Mourinho, Baldorama, and Curtin.

[00:08:33] Speaker 00:
And that's one of the errors we're challenging here.

[00:08:35] Speaker 05:
But why doesn't, I guess, I don't find in Curtin a requirement of view, and Curtin involved written materials.

[00:08:43] Speaker 05:
The judge was certainly on notice as to the horrific nature of these images.

[00:08:48] Speaker 05:
Everything was described.

[00:08:51] Speaker 05:
Why isn't that enough, even under curtain, that the judge knew what the content of it was and knew that it was prejudicial in that way?

[00:09:00] Speaker 00:
I would have two answers to that.

[00:09:01] Speaker 00:
One, I disagree with the premise, Your Honor, respectfully.

[00:09:04] Speaker 00:
He knew the images were shocking and graphic, and they displayed disabled girl.

[00:09:09] Speaker 00:
That's the extent of the district court's knowledge.

[00:09:11] Speaker 05:
The later description... So the charged conduct?

[00:09:15] Speaker 05:
the conduct that's depicted in the images the district court was not aware of.

[00:09:21] Speaker 00:
At the time he ruled they were broad generalizations and even under Curtin.

[00:09:26] Speaker 00:
Curtin stands for the proposition.

[00:09:27] Speaker 00:
Cunningham makes this clear when the Third Circuit adopts it.

[00:09:31] Speaker 00:
Storm discusses it.

[00:09:33] Speaker 00:
that the court cannot do a 403 balancing in the first instance without assessing the actual evidence that's being, the demand being presented.

[00:09:41] Speaker 03:
So your claim is in the Ninth Circuit, there is an absolute rule that no matter what, the district court actually has to look at it?

[00:09:49] Speaker 00:
It's subject to a harmless error standard now in review, but yes.

[00:09:53] Speaker 03:
I have to say, I don't read the cases that way, but I mean.

[00:09:57] Speaker 01:
That's my contention.

[00:09:59] Speaker 01:
I guess we're also trying to figure out

[00:10:01] Speaker 01:
What you're arguing rises to plain air, right?

[00:10:05] Speaker 00:
I disagree.

[00:10:06] Speaker 00:
We argued 403.

[00:10:07] Speaker 00:
That's the claim under relief.

[00:10:09] Speaker 01:
I guess on the viewing on whether the court viewed this evidence, I'm remitting it to that.

[00:10:16] Speaker 00:
That's how he abused his discretion.

[00:10:18] Speaker 00:
We raised the claim.

[00:10:19] Speaker 00:
He had the responsibility to review them.

[00:10:21] Speaker 00:
We don't have to cite a specific case.

[00:10:22] Speaker 00:
And to the extent we did, we cited Curtin and Cunningham.

[00:10:24] Speaker 01:
Let me just ask you.

[00:10:26] Speaker 00:
Mr. Cunningham, sorry.

[00:10:27] Speaker 01:
It seems like this case might be distinguishable from curtain because at least here the district court read the entire graphic descriptions of the videos, which I think you would agree would describe them in great detail.

[00:10:43] Speaker 01:
Whereas the district court in curtain.

[00:10:46] Speaker 01:
did not even know what all of the contents and inflammatory contents of the written stories were.

[00:10:52] Speaker 01:
Isn't that correct?

[00:10:54] Speaker 00:
No, no, I would disagree with that.

[00:10:55] Speaker 00:
I think if you look at the briefing, which is 104, 106, 108, and 109 of the District Court Record and the Motion Lemonade, and you've read Excerpt of Record 1, which has the Motion Lemonade hearing, which I believe was the 28th of October, 2022.

[00:11:07] Speaker 00:
I might be wrong.

[00:11:08] Speaker 00:
I think I'm right.

[00:11:10] Speaker 00:
I think he had very limited information that was not in the graphic detail that we would later present to this court.

[00:11:16] Speaker 00:
And I think in any case, these images, this is what Cunningham stands for, these videos were so horrific that they were saying they're per se excludable.

[00:11:27] Speaker 00:
And in any case, even if they weren't, the judge couldn't assess alternative, which is required, without viewing them.

[00:11:34] Speaker 01:
He could not understand... Well, but how would the... I'm sorry.

[00:11:36] Speaker 01:
Let me just want to follow up.

[00:11:37] Speaker 01:
Did you make a specific objection during trial during the court that the court needed to view this?

[00:11:44] Speaker 01:
Know that that's why I'm asking whether or not this is plain error You might dispute that but I think it's arguable whether we're looking at this for abusive discretion or plain error So I just wanted to make that clear because you kind of Skidded over that go ahead.

[00:12:00] Speaker 01:
That was exactly my question Okay, my next question then to you is because you've mentioned Cunningham, and I'm intrigued by Cunningham But you're arguing that third circuit case

[00:12:14] Speaker 01:
to support your basis that this was error for the district court not to have done some modification or make some ruling regarding the 403 issue that was raised.

[00:12:32] Speaker 01:
Isn't it seems like Cunningham may be distinguishable because there the government had multiple video clips of child's Porn to support each count and if I recall correctly the Third Circuit reasoned that each additional video clip played beyond the first one provided diminishing

[00:12:53] Speaker 01:
I think that's a good point.

[00:12:56] Speaker 01:
I think that's a good point.

[00:13:10] Speaker 00:
There was four videos.

[00:13:11] Speaker 00:
None were seen by my client.

[00:13:12] Speaker 00:
They were introduced at a joint trial anyway.

[00:13:15] Speaker 00:
The limiting instructions only said they didn't identify which element they went to.

[00:13:19] Speaker 00:
They went to all the elements supposedly, which is all the evidence.

[00:13:22] Speaker 01:
How long?

[00:13:22] Speaker 01:
Because from what I read, and thank you for correcting me if it was four instead of one, that it was a minute and some odd seconds?

[00:13:32] Speaker 00:
Three were approximately 30 seconds.

[00:13:34] Speaker 00:
One was approximately 45 seconds.

[00:13:36] Speaker 00:
They're graphic and horrible to watch.

[00:13:38] Speaker 00:
I can attest to that.

[00:13:39] Speaker 00:
But my point is, on the 403 Plain area, Your Honor, when we made the 403 objection, you look at the judge's ruling, that's pages 40 and 41, the judge undertook no balancing whatsoever.

[00:13:51] Speaker 00:
He adopted Ganoe as a hard and fast rule, and he quoted it saying, they don't have to scrub all emotional information.

[00:13:57] Speaker 00:
That's a true statement.

[00:13:58] Speaker 00:
But what Mourinho Baldorama says is you have to weigh alternatives and balance it, and there's no balancing here.

[00:14:04] Speaker 00:
And before I reserve and beg for a minute, I wanted to say on the misconduct here, the prejudice is amplified by the naming of the victim.

[00:14:12] Speaker 00:
And it's amplified by suggesting that my client could have saved her from being raped.

[00:14:17] Speaker 00:
They rescued this girl.

[00:14:18] Speaker 00:
They arrested Rodriguez.

[00:14:20] Speaker 00:
My clients, the videos he got were taken years earlier.

[00:14:22] Speaker 00:
The images he got were years earlier.

[00:14:24] Speaker 00:
The videos Mr. Bercado got were years earlier.

[00:14:27] Speaker 00:
And the prosecution presented a case that this was a child being raped.

[00:14:32] Speaker 00:
My client could have saved her.

[00:14:33] Speaker 00:
They named her forty-seven times, forty-six times.

[00:14:36] Speaker 00:
That's not inadvertent as they tell this court.

[00:14:39] Speaker 00:
It was intentional.

[00:14:40] Speaker 05:
What more could the district court have done to prevent that?

[00:14:44] Speaker 00:
What's that?

[00:14:45] Speaker 05:
What more could the district court have done?

[00:14:46] Speaker 05:
What would you suggest?

[00:14:48] Speaker 00:
I think the district court, one, should have followed Storm when they cited Storm.

[00:14:51] Speaker 00:
I think the district court opinion of Storm is a fantastic example of a district court rolling up their sleeves and doing this court's analysis.

[00:14:58] Speaker 00:
I think, second, if he had done that, he would have found alternatives.

[00:15:02] Speaker 00:
And I think, secondly, when they named this child, he should have stopped them.

[00:15:06] Speaker 00:
And I agree that that's plain error.

[00:15:08] Speaker 00:
The defendant should have been on their feet.

[00:15:10] Speaker 00:
And I agree with that.

[00:15:11] Speaker 00:
I'm not going to say they shouldn't have been.

[00:15:12] Speaker 00:
Everyone should have been outraged about naming this child.

[00:15:16] Speaker 00:
It was outrageous.

[00:15:18] Speaker 00:
But he should have responded when this case became about a very real girl currently suffering rapes, when that wasn't true and everyone knew it, but the jury got a false image.

[00:15:28] Speaker 00:
And it rendered, there was no way, you guys are,

[00:15:32] Speaker 00:
Professional judges, you're trained in reason, and it's hard in a case like this, right, not to have an emotional response to this.

[00:15:39] Speaker 00:
Imagine the 12 in the box and how they responded to that presentation.

[00:15:43] Speaker 00:
They didn't have a fair chance to adjudicate the narrow defense that our clients had.

[00:15:48] Speaker 00:
My client certainly showed he didn't solicit it.

[00:15:51] Speaker 00:
All of the text leading up to this is him saying, I'm not into this, I want penises, stop it.

[00:15:55] Speaker 00:
Those are all the august text.

[00:15:57] Speaker 00:
I'm not in it, don't send it.

[00:15:58] Speaker 00:
And then he sends it when my guy says, doesn't send it.

[00:16:01] Speaker 00:
That's not seeking it out.

[00:16:02] Speaker 00:
It doesn't fit within ROM.

[00:16:04] Speaker 00:
And I'll reserve whatever the court lets me.

[00:16:05] Speaker 01:
Yeah, I just want to make sure, because you're right.

[00:16:08] Speaker 01:
It was one video for each count in this case, correct?

[00:16:13] Speaker 00:
For my client, he wasn't charged with any videos.

[00:16:15] Speaker 00:
My client was charged with four still images.

[00:16:18] Speaker 00:
All those images were shown.

[00:16:19] Speaker 00:
I believe Mr. McCarter, how I read the government's brief starts at the beginning, they describe

[00:16:27] Speaker 01:
So I'm sorry, you said your client had stills?

[00:16:30] Speaker 00:
Yes, counts 15 and 17 of my client were only still photos.

[00:16:34] Speaker 01:
So what did you want the court to do?

[00:16:37] Speaker 00:
Because it was a joint trial, we asked the court, both parties, and they joined each other's motions, asked the court to exclude the child pornography as too graphic.

[00:16:47] Speaker 00:
And at that point, the district court had to assess what was coming in and make determinations.

[00:16:51] Speaker 00:
If you look at Storm,

[00:16:53] Speaker 00:
The judge pairs it down.

[00:16:54] Speaker 00:
The judge limits it.

[00:16:55] Speaker 03:
Did your client ever make a motion to sever?

[00:16:56] Speaker 03:
What?

[00:16:57] Speaker 03:
Did your client ever make a motion to sever?

[00:16:59] Speaker 00:
No, and the case was actually mis-joined under Satterfield and 8B, and they waived that case.

[00:17:02] Speaker 03:
But in that case, your client didn't make a motion?

[00:17:04] Speaker 00:
No, they waived that too, Your Honor.

[00:17:05] Speaker 00:
We don't make that challenge on appeal because that's waived under Rule 12 and Rule 8 because it wasn't timely made.

[00:17:10] Speaker 00:
But it was mis-joined under 8B, and that's Satterfield by then-Judge Kennedy.

[00:17:15] Speaker 01:
Thank you.

[00:17:16] Speaker 00:
Thank you, Your Honor.

[00:17:18] Speaker 00:
Mr. Johnson?

[00:17:29] Speaker 04:
Thank you, Your Honor.

[00:17:30] Speaker 04:
Ellis Johnson on behalf of Mr. Bacardo.

[00:17:34] Speaker 04:
As we can see from the old chief issue, that is an important issue that, as Mr. Ballot eloquently explained, infected the ability of the jury to use reason in this case.

[00:17:47] Speaker 04:
But what I wanted to spend my time on was

[00:17:51] Speaker 04:
Count 18, the sufficiency argument for the access with intent to view child pornography.

[00:17:57] Speaker 04:
I think it's important to begin by noting how novel and unique this particular prosecution is of this theory on these facts.

[00:18:06] Speaker 04:
When Congress amended 2252A to include this access theory of liability, it was attempting to close what appeared to be a hole.

[00:18:16] Speaker 04:
And this is in Sixth Circuit cases like Kogan,

[00:18:21] Speaker 04:
3rd Circuit in TAG, sorry, 6th Circuit in TAG and 6th Circuit in Kogan, a concern that

[00:18:30] Speaker 04:
Sophisticated individuals were using, for instance, special server devices like Tor to access hidden Internet sites with names like Playpen or Pedobook or Pedoboard, jailbait subfolders in these hidden Internet domains to view and share child pornography.

[00:18:56] Speaker 04:
And I give that introduction because in this case, Count 18 begins with Steven Rodriguez texting through the Telegram app my client Mr. Bacardo, yo.

[00:19:10] Speaker 04:
They have not communicated for some two months.

[00:19:13] Speaker 04:
And when Mr. Bacardo responds, what's up, the government then bases a charge of access with intent to view child pornography

[00:19:21] Speaker 04:
on the basis of a video that the government says was sent to Mr. Bacardo.

[00:19:28] Speaker 04:
And the question presented is, when Mr. Bacardo accessed that video?

[00:19:33] Speaker 04:
And no one disputes that it's child pornography.

[00:19:35] Speaker 04:
I'm just reading.

[00:19:36] Speaker 05:
But why isn't, under the sufficiency standard, it enough to have established that they had a course of dealing here, even if it was two months back?

[00:19:47] Speaker 04:
Well, a course of dealing, that would be a loaded term in my opinion.

[00:19:51] Speaker 05:
He had expressed interest previously.

[00:19:55] Speaker 04:
Fair enough.

[00:19:56] Speaker 04:
So if we were in a case where this was exclusively child pornography, I'd have a much harder hill to climb up.

[00:20:04] Speaker 04:
But if you look at the communications that Mr. Picardo and Rodriguez had,

[00:20:08] Speaker 04:
over the course of time, there was a variety of subjects and topics.

[00:20:13] Speaker 04:
And one of those was adult pornography, which, again, on every occasion, Rodriguez was sending unsolicited to Mr. Bacardo.

[00:20:22] Speaker 04:
And one time, and I can get to the citation here, I believe it was in June, Rodriguez sends Mr. Bacardo pornography that says, barely 18 or barely legal.

[00:20:37] Speaker 04:
One of the refrains you'll see in Mr. Bacardo's responses throughout all of these charges, including count 18 on August 24th, many months later, is that he expresses an interest, not just in adult pornography, but more mature adult pornography.

[00:20:50] Speaker 03:
Am I looking at the wrong thing here?

[00:20:52] Speaker 03:
I think the ER page is 953, where August 24th, where right after yo,

[00:21:01] Speaker 03:
Your client says, what's up?

[00:21:03] Speaker 03:
There's then a description of what just happened and your client responds, nice.

[00:21:08] Speaker 04:
Correct, Your Honor.

[00:21:10] Speaker 04:
That is the count.

[00:21:10] Speaker 04:
And the question is, what was Mr. Bacardo's intent before he accessed the image?

[00:21:16] Speaker 04:
The government has argued in their brief that

[00:21:19] Speaker 04:
The eight-year-old who gave me head is a caption for a video that was sent.

[00:21:24] Speaker 04:
What you can see, and one of the difficulties the government conceitedly had in this case was proving it, because the videos were set by Mr. Rodriguez to self-delete.

[00:21:34] Speaker 04:
There's no question that Mr. Picardo never possessed or attempted to establish

[00:21:42] Speaker 05:
domain over these... But why doesn't that bring us right back to the sort of surreptitious accessing that was Congress's concern with access with intent?

[00:21:54] Speaker 05:
It might have been a different platform, but here you have a platform that's set up to try to delete the contraband that's being transmitted.

[00:22:05] Speaker 04:
What we know from the record is that Rodriguez didn't set the adult pornography to auto-delete.

[00:22:11] Speaker 04:
And what we also know from the government's own case agent at trial is that to activate one of these videos, you have to push your finger onto a thumbnail.

[00:22:19] Speaker 04:
The government agent said he has no idea what the thumbnail was from whether it's a 30-second video or a 46-second video.

[00:22:27] Speaker 04:
whether it would be obvious that it was a child or even pornography.

[00:22:31] Speaker 04:
This was totally out of Mr. Picardo's control.

[00:22:33] Speaker 04:
And I don't want to take too much time here.

[00:22:36] Speaker 04:
But the government wants, if I can just have a brief moment to wrap up, wants the court to assume that this is a caption attached to an image.

[00:22:43] Speaker 04:
We don't have that evidence.

[00:22:45] Speaker 04:
A reasonable juror can't say that it's unreasonable to believe that image came first.

[00:22:49] Speaker 04:
And then after Mr. Picardo viewed it, the caption came later.

[00:22:53] Speaker 04:
The part about NICE that I think

[00:22:56] Speaker 04:
Judge Johnston asked about the response to something that has been sent doesn't answer the fundamental question of access with intent to view.

[00:23:05] Speaker 04:
Did he access it with that intent?

[00:23:07] Speaker 01:
Thank you.

[00:23:26] Speaker 02:
Good morning, Your Honors.

[00:23:28] Speaker 02:
May it please the Court?

[00:23:29] Speaker 02:
My name is Assistant United States Attorney Scott Lara.

[00:23:32] Speaker 02:
I'm representing the government in this appeal.

[00:23:34] Speaker 02:
I was also trial counsel below.

[00:23:37] Speaker 02:
So first and foremost, I just want to say that when dealing with sufficiency here, we have to look at this in the light.

[00:23:42] Speaker 02:
Most favorable to the government in all inferences should be found in favor of the government here.

[00:23:47] Speaker 05:
Mr. Lara, can you help me understand the rationale for the access with intent charge?

[00:23:56] Speaker 02:
Absolutely.

[00:23:57] Speaker 02:
So because the images were not possessed by Mr. Bacardo when we obtained the chat itself, the idea was that we would charge him for accessing with intent to view, basically him affirmatively clicking on the image with the intent to view that his child pornography is, in fact, the crime that he committed.

[00:24:16] Speaker 02:
Here, what we also have too is it wasn't actually a case agent who had said that he has to click on the videos to play them.

[00:24:22] Speaker 02:
It was Mr. Bacardo who admitted that in an interview with the case agent.

[00:24:26] Speaker 02:
So Mr. Bacardo is the one who says, I have to affirmatively click to play it.

[00:24:30] Speaker 02:
The case agent asked Mr. Bacardo, through the course of your dealings with Mr. Rodriguez, how much child pornography has he sent you?

[00:24:37] Speaker 02:
And he said 10 to 20 videos.

[00:24:39] Speaker 02:
There were some stray, stray videos.

[00:24:41] Speaker 02:
Request by Mr. Bacardo for MILF child pornography, which stands for adult child, adult pornography.

[00:24:48] Speaker 02:
But the vast majority of the chats, if I refer the court back to ER's 944 through 954, is discussing Mr. Rodriguez's abuse of children, Mr. Bacardo agreeing that this is nice, cool, agreeing to go to the care home, to go abuse children, asking for $200 to film Mr. Rodriguez abusing children at the care home.

[00:25:11] Speaker 02:
So all of the course of dealing between these two, as Your Honor had said, was precisely that they are going to talk about and discuss child pornography, and Mr. Rodriguez is going to share his exploits with Mr. Picardo.

[00:25:27] Speaker 05:
Given the specificity in the amendment of the access with intent,

[00:25:32] Speaker 05:
guidance does the government look to in our court for how to charge this crime?

[00:25:39] Speaker 05:
It seems like the authorities let me know.

[00:25:42] Speaker 02:
Yes.

[00:25:43] Speaker 02:
The court can actually look to the TAG case that defense counsel cited.

[00:25:47] Speaker 02:
So in their brief, defense counsel cited TAG and said... That's a Sixth Circuit case?

[00:25:52] Speaker 02:
That's correct.

[00:25:52] Speaker 05:
Okay.

[00:25:53] Speaker 05:
What do you think the... What's the best read of our court's law on how to charge access to intent?

[00:26:01] Speaker 02:
Well, if you look at cases like Flyer, for example, which was not charged as an access with intent to view case, that is a case that could have been charged as access with intent to view, where the government basically went to someone's computer, found that they had deleted images, and then charged that as possession.

[00:26:17] Speaker 02:
And the court said that that's not sufficient without more, because there was no indication that he knew that those deleted images were in the

[00:26:24] Speaker 02:
in the unallocated space of his computer.

[00:26:27] Speaker 02:
Had the government charged access and intent of view in that case, and know exactly when he was trying to view those images and then clicked and access those, that's what the government could have charged.

[00:26:35] Speaker 05:
Okay, thank you.

[00:26:37] Speaker 01:
Can I ask you...

[00:26:39] Speaker 01:
I think you appear to concede that the district court did not view the child pornography exhibits here.

[00:26:45] Speaker 02:
They did not view them pretrial but they did view them during the trial and defense counsel did not raise a contemporaneous objection to those child pornography images being admitted under 403.

[00:26:56] Speaker 02:
They made a different objection.

[00:26:57] Speaker 01:
So talk to me because traditionally there is some discussion about whether or not all of the

[00:27:05] Speaker 01:
evidence needed to be in these kind of cases.

[00:27:08] Speaker 01:
So what was your view and I'm sure, I don't know if this is the first case you've done or if there's other of these types of cases that you've done where there is modification of the exhibits in some way, not unlike the Third Circuit case.

[00:27:27] Speaker 01:
So I'm trying to figure out

[00:27:28] Speaker 01:
what happened here and why there was no request on the government's part or ultimately why the district court didn't, you know, try to in any way modify what the jury was going to see here.

[00:27:45] Speaker 02:
Yes, so first and foremost the government

[00:27:49] Speaker 02:
gave a very vivid description in its motion and what these images were.

[00:27:53] Speaker 02:
Show trial counsel for the defense what the images were.

[00:27:57] Speaker 02:
Ask them if they disagreed with this description.

[00:27:59] Speaker 02:
They did not disagree with the descriptions.

[00:28:02] Speaker 02:
Then also the government orally described these to the court and the court agreed that they were shocking.

[00:28:08] Speaker 02:
So under this and under the facts of this case, it was so clear that these charged images were admissible, the government didn't feel like it was necessary to show it to the court before trial happened.

[00:28:19] Speaker 02:
Now, one other thing Your Honor had asked, there was a question of how many images per count there was.

[00:28:25] Speaker 02:
So for count 18, there was only one video available.

[00:28:28] Speaker 02:
There was only one video charged.

[00:28:30] Speaker 02:
That is the one that

[00:28:33] Speaker 02:
just around judge johnstone was just referring to and then for count thirteen which is the receipt count there were three images but one thing or three videos but one thing i want to make very clear when talking about these videos is these videos had self-destructed from the chat

[00:28:51] Speaker 02:
So the chat does not actually show where the videos were sent at the specific times.

[00:28:58] Speaker 02:
So the way the government had to prove not only that the defendants knew what the videos showed, but also that it was in fact the correct video, was it had to go to the chat, see what was said in the chat about what the person was viewing,

[00:29:12] Speaker 02:
Then they had to go to Mr. Rodriguez's device, see the video that matched that, and then they went to Mr. Picardo, showed him that, a still from that, or showed him the video itself, and Mr. Picardo agreed that that is in fact what he saw at that time in the chat.

[00:29:24] Speaker 02:
And the only way for the jury to follow through that chain of inferences is to see the video, compare it to the confession, and compare it to the chat.

[00:29:31] Speaker 03:
So there was a lot of matching that had to be done that

[00:29:34] Speaker 03:
I mean this doesn't entirely inform the 403-404 analysis but there was a lot of matching that had to be done that wouldn't have been able to have been done in the same way without the actuals.

[00:29:45] Speaker 03:
Correct.

[00:29:45] Speaker 01:
Well could you not have done a screenshot?

[00:29:48] Speaker 02:
Screenshots would not have satisfied given the images and the videos themselves.

[00:29:53] Speaker 02:
Tell me why not?

[00:29:55] Speaker 02:
So the videos are talking about things like oral copulation,

[00:30:00] Speaker 02:
you can't actually tell based on any one particular screenshot what's going on because the videos are like handheld videos made by Mr. Rodriguez on the phone while he's engaging in these sex acts.

[00:30:11] Speaker 02:
So it's actually a little bit muddled what's happening.

[00:30:13] Speaker 02:
You need the context of the entire video to actually understand what it is.

[00:30:16] Speaker 02:
The other problem is the way that the defendants described the victims as being real victims that they knew Mr. Rodriguez or believed at the time Mr. Rodriguez was still abusing were 8 to 10 year old autistic girl who could not speak.

[00:30:32] Speaker 02:
So without the audio you cannot tell that this person being abused is someone who like does not have the ability to speak.

[00:30:39] Speaker 02:
And one thing I want to point out too with Cunningham and some of these other cases

[00:30:43] Speaker 02:
is that in these cases, the defense offered to stipulate that anyone who viewed the child pornography would know that it is in fact child pornography.

[00:30:51] Speaker 02:
That's actually something the defense counsel claimed that the stipulation here also covered in their reply brief, but that's not correct.

[00:30:57] Speaker 02:
If you look back at the record, the actual stipulation, and I'll read it to your honors,

[00:31:03] Speaker 02:
is essentially just that it is objectively child pornography, and that's it.

[00:31:07] Speaker 02:
There is nothing that has to do with anyone's knowledge when they view it to know that it's child pornography.

[00:31:12] Speaker 02:
So with that sort of stipulation, a juror could think, well, if it's age-difficult pornography, where someone is in fact 17 being depicted, but maybe someone subjectively believes it's 18 or older, that person would not be guilty, and defense would be able to make that argument, and the government couldn't refute it if they accepted that stipulation.

[00:31:30] Speaker 02:
So here are the stipulations they offered.

[00:31:32] Speaker 02:
in ER 729 and 732.

[00:31:35] Speaker 02:
Quote, the images recovered depicted minors and they were engaged in sexually explicit conduct.

[00:31:42] Speaker 02:
And also it states,

[00:31:43] Speaker 02:
Mr. Bengu Gilan is willing to stipulate that the materials found on the media in question contain minors engaged in sexually explicit conduct.

[00:31:50] Speaker 02:
There's nothing there that talks at all about what anyone's knowledge is once they view it.

[00:31:55] Speaker 02:
So without that offer of stipulation, the court and the government needed to have the jury draw that conclusion because defense was unwilling to stipulate to that.

[00:32:04] Speaker 02:
And if you also look at Mr. Bacardo's trial attorney's argument, when this issue came up and the trial court said,

[00:32:11] Speaker 02:
Well, why aren't you stipulating to knowledge?

[00:32:13] Speaker 02:
It seems like that's the deficiency here.

[00:32:15] Speaker 02:
That's the difference between this and Cunningham, for example.

[00:32:18] Speaker 02:
He said, the issue as to the stipulation for the images being child pornography, it covers a number of them.

[00:32:23] Speaker 02:
It doesn't cover the knowledge of the defendant, Your Honor, and that's not the issue.

[00:32:27] Speaker 02:
The government keeps bringing the knowledge of the defendant.

[00:32:29] Speaker 02:
That is not something we are agreeing, Your Honor.

[00:32:33] Speaker 02:
We are simply saying the images in question constitute child pornography.

[00:32:37] Speaker 02:
Based on all of this, it's very clear that the only offer on the table from defense was that it was objectively child pornography, but nothing about how they subjectively knew it was child pornography, nothing about how they knew that the person depicted in it was in fact a minor, which is something that the government has to prove it's an element of the offense.

[00:32:55] Speaker 02:
And I believe that in their briefs, they talk about how it's not actually an element of the defense that the government needs to prove this.

[00:33:03] Speaker 02:
But as the government cited in its brief, and it seems I've walked it back a little bit here, an excitement video, for example, is the Supreme Court case that says, quote, that the sexually explicit nature of the material and the age of the performers must be known by the defendant.

[00:33:17] Speaker 02:
They're elements of the crime.

[00:33:19] Speaker 02:
The Ninth Circuit has adopted that.

[00:33:20] Speaker 02:
That's in the model.

[00:33:21] Speaker 02:
During instructions which the parties had agreed to a trial So that was the standard that the government was kept to and the Third Circuit Cunningham case.

[00:33:28] Speaker 01:
What's your take on that?

[00:33:30] Speaker 02:
So the Third Circuit Cunningham case there are two major distinctions here first the Cunningham videos were of a

[00:33:37] Speaker 02:
Incredibly graphic bondage upside down torture pornography of a small girl like that is another level of child pornography depravity that was not present here.

[00:33:48] Speaker 01:
I mean this was an autistic mentally disabled I'm not sure that's your strongest argument.

[00:33:55] Speaker 02:
Yes your honor understood.

[00:33:56] Speaker 02:
But secondly, and more importantly, as Your Honor correctly pointed out, there were less disturbing videos in Cunningham that they could have chosen from and chose not to.

[00:34:03] Speaker 02:
They chose to go with the most graphic ones available.

[00:34:06] Speaker 02:
Here we didn't have that option.

[00:34:07] Speaker 02:
Here, for example, the one that the defense counsel complains about the most, Exhibit 27, that is the only video that underlines Count 18.

[00:34:15] Speaker 02:
There's no other videos to choose from.

[00:34:17] Speaker 02:
similarly with the other three videos we have to piece them into the chats to show exactly where they are sent and and there's no other way to do it and so those three videos needed to be shown and each of those are less than 30 seconds and then finally in Cunningham in that case the defendant offered to stipulate that anyone who views this child pornography would know its child pornography when they see it that was not an offer and again your point on that is that is a different

[00:34:44] Speaker 03:
possible stipulation than objectively.

[00:34:47] Speaker 02:
Correct, because in Cunningham they had the objective to objectively and anyone who viewed it subjectively would know.

[00:34:53] Speaker 02:
Whereas here the only offer of proof or offer of stipulation was the objective offer and they explicitly rejected the subjective one when even mentioned by the court as being a possible solution.

[00:35:03] Speaker 05:
Can I ask you about turning to the possession charge and ROM?

[00:35:11] Speaker 05:
Was there any testimony about how Telegram worked, and this is going to the control of the images for purposes of possession.

[00:35:22] Speaker 05:
Any evidence such as was at issue in ROM that the defendants had control of it on Telegram, or was it simply relying simply on the fact that they could click, and then poof, it's gone?

[00:35:39] Speaker 02:
So there's a distinction between Mr. Bacardo and Mr. Bangu Geelan.

[00:35:43] Speaker 02:
So for Mr. Bacardo, we're talking about videos that Mr. Rodriguez had set to self-destruct.

[00:35:48] Speaker 02:
So it clicked, and then it poofed onto it.

[00:35:50] Speaker 05:
And that's the justification that we just talked about for access with intent.

[00:35:54] Speaker 05:
So with respect to possession and receipt, which also includes the same element, was there any testimony about how Telegram worked, or whether you, in fact, could exercise any control over these things that are being sent to you?

[00:36:09] Speaker 02:
I believe so, Your Honor, but I don't have those record citations handy.

[00:36:14] Speaker 02:
There was an entire forensic analysis done, and there was that person that did testify.

[00:36:21] Speaker 02:
Additionally, Your Honor, the jury could know that you could actually save the child pornography because you can see from Mr. Bengu Gilan's chat that the child pornography was in fact saved by Mr. Rodriguez.

[00:36:31] Speaker 02:
He took screenshots, which means that he basically took a photo on his phone of what's being depicted at the time it's being depicted.

[00:36:38] Speaker 02:
So, yes.

[00:36:38] Speaker 05:
And that's sufficient for the jury to determine that Mr. Bengu

[00:36:43] Speaker 05:
Gian also had the ability to save and control these images.

[00:36:46] Speaker 01:
Correct.

[00:36:48] Speaker 01:
I did want to ask you about Mr. Banglian and possession.

[00:36:53] Speaker 01:
That ultimately was what the jury would have to decide.

[00:36:56] Speaker 01:
Is that correct?

[00:36:57] Speaker 01:
I mean, based on, I guess, Mr. Banglian's conversations with Mr. Rodriguez before the sending of the pictures or the video, the sending of the picture and then his

[00:37:13] Speaker 01:
Statement to law enforcement afterwards.

[00:37:15] Speaker 01:
Yes, that was the primary along with the image what the jury would have to decide to determine if there was sufficient evidence of possession because seemed Terms of timing or temporal very quick in terms and and then he is the one who made her see the one that made statement that was negative of the

[00:37:40] Speaker 02:
of the image he may have said something like.

[00:37:58] Speaker 02:
that there was images in Mr. Bango Gilin's, like, the deleted space on his phone.

[00:38:03] Speaker 02:
So that is evidence that he, like, manually deleted the actual images themselves.

[00:38:07] Speaker 02:
And that's something that he did on his end.

[00:38:09] Speaker 02:
So that's also proof that he has dominion and control over them.

[00:38:13] Speaker 02:
And he could similarly save them, like, email them, et cetera.

[00:38:18] Speaker 01:
So someone received, I guess I'm trying to think, and I'm not quite sure if this is exactly what the defense argued, but if someone received it,

[00:38:26] Speaker 01:
and immediately rejected it by deleting it, is that how long do they have to have possessed it or to have seen it before they delete it for it to be possession?

[00:38:38] Speaker 02:
Well, Your Honor, first, I would say that that's not the factual circumstance with the charges here.

[00:38:42] Speaker 02:
And secondly, there is an affirmative defense that goes to exactly that.

[00:38:47] Speaker 02:
If you promptly delete the child pornography as long as you satisfy the other criteria of the affirmative defense, then we cannot charge you and that's an affirmative defense to the charge here.

[00:38:56] Speaker 02:
But here what we have is... You can't charge you or you can't proceed with the charge?

[00:38:59] Speaker 02:
We can't proceed with the charges.

[00:39:00] Speaker 02:
It's an affirmative defense.

[00:39:01] Speaker 02:
It would be a complete defense to the charge in the first place.

[00:39:04] Speaker 03:
Council, am I looking at the wrong thing here?

[00:39:06] Speaker 03:
And maybe my notes on this are wrong, but at SER 73, which seems to be the interview with Mr. Bangagulian where he's saying he got 10 to 20 videos and he would look at them after he got them, is this relevant to something else?

[00:39:25] Speaker 02:
That is correct, Your Honor.

[00:39:27] Speaker 02:
Mr. Bangu Geelin and Mr. Bercardo, both in their interviews, admitted that they received 10 to 20 videos from Mr. Reyes.

[00:39:33] Speaker 02:
And they looked at them.

[00:39:34] Speaker 03:
Or at least this one says you would look at them when he would send them to you.

[00:39:39] Speaker 03:
Yah.

[00:39:40] Speaker 02:
Yeah.

[00:39:41] Speaker 02:
Yes, Your Honor.

[00:39:41] Speaker 02:
And it also goes to, he said he would entertain him, in fact.

[00:39:45] Speaker 02:
When asked, did you ever tell him to stop, he said, no.

[00:39:49] Speaker 02:
I never told him to stop.

[00:39:51] Speaker 02:
There's one point in the chat where he says, I was intrigued at first, but no, it's too young.

[00:39:55] Speaker 02:
But then he receives another image and then says, cool.

[00:39:58] Speaker 02:
After Mr. Rodriguez sent that image with the caption, I put it in her butt.

[00:40:02] Speaker 02:
So, and then after that, he receives the receipt image.

[00:40:05] Speaker 03:
And again, on this page, he said, yeah, I just looked at it.

[00:40:07] Speaker 03:
Honestly, a lot of times, sometimes I'm busy or not really interested in cut it off.

[00:40:12] Speaker 03:
But before that, he said, honestly, I just like it, like a lot of times, I looked at it.

[00:40:18] Speaker 02:
Correct.

[00:40:19] Speaker 02:
That's Mr. Bengugin.

[00:40:20] Speaker 02:
And in Mr. Picardo's chats, they're even more explicit.

[00:40:23] Speaker 02:
They're more explicit in the chats, him asking, oh, yeah, let's see, after Mr. Rodriguez talks about some sexual act that he did with minor victim one.

[00:40:32] Speaker 02:
So this is not a case where, as your honor was implying, that it's completely unsolicited out of the blue.

[00:40:38] Speaker 02:
This is like a course of conduct where they've exchanged a significant amount.

[00:40:42] Speaker 01:
I'm only highlighting what the defense attempted to argue, apparently.

[00:40:47] Speaker 01:
Is that correct?

[00:40:48] Speaker 02:
Yes, I believe that's right.

[00:40:50] Speaker 01:
And at this point, for possession,

[00:40:54] Speaker 01:
Are we looking at it in the light most favorable to the government?

[00:40:58] Speaker 02:
Yes.

[00:40:59] Speaker 01:
I just wanted to make that clear.

[00:41:01] Speaker 02:
Yes, Your Honor, absolutely.

[00:41:02] Speaker 02:
I completely agree.

[00:41:03] Speaker 02:
We're looking at the light most favorable to the government.

[00:41:05] Speaker 02:
Most of what defense counsel's brief is are inferences that they wish that the jury had drawn and that the jury rejected.

[00:41:14] Speaker 01:
And most of these issues we're looking at for plain error, is that correct?

[00:41:18] Speaker 02:
That is correct.

[00:41:19] Speaker 02:
So for example,

[00:41:21] Speaker 02:
When it comes to the 403 issue, they didn't raise contemporaneous objections.

[00:41:27] Speaker 02:
With the curtain issue, they never asked the court to view the images.

[00:41:32] Speaker 05:
But which 403 issue?

[00:41:33] Speaker 02:
So when they claimed that the images were admitted outside of 403, that they should have been excluded, they raised that at the motion to eliminate stage.

[00:41:46] Speaker 02:
And then the court then said, my preliminary ruling is to let these in.

[00:41:50] Speaker 02:
But then they never contemporaneously objected a trial when the government moved to admit these videos.

[00:41:57] Speaker 02:
And they did object to other grounds.

[00:41:59] Speaker 02:
So they knew that they could object.

[00:42:00] Speaker 02:
And they knew it was a preliminary ruling.

[00:42:01] Speaker 02:
And under Ninth Circuit case law, that is not sufficient to preserve the issue for appeal.

[00:42:06] Speaker 02:
So it's under plain error.

[00:42:10] Speaker 02:
And that's in the government's brief as well.

[00:42:13] Speaker 02:
And I also want to address a couple of things that your honors had asked questions about to defense counsel.

[00:42:20] Speaker 05:
Could I just, do you want to take a chance to reply to the Andrew argument about prosecutorial armless conduct?

[00:42:35] Speaker 02:
Which argument?

[00:42:36] Speaker 05:
So the recent Supreme Court case that has set a new test for this alleging with the repeated dozens of times we hear of the victim's name.

[00:42:49] Speaker 02:
Yes, your honor.

[00:42:50] Speaker 02:
So one thing the government tried to do in its brief is trying to put into context each time it came up.

[00:42:55] Speaker 02:
And for during the testimony, essentially what happened was government counsel, which would be myself, would be talking to somebody who actually knew the victim.

[00:43:04] Speaker 02:
So Lizette Martinez, I believe, is the first time this came up.

[00:43:07] Speaker 02:
she actually knew minor victim one.

[00:43:08] Speaker 02:
And when asked a question about this particular victim, she then volunteered the victim's name.

[00:43:13] Speaker 02:
And then from there, the questioning flowed in a organic manner of just responding about the person she just had named by first name, and the government was asking.

[00:43:23] Speaker 05:
But you can see now that the better practice would steer the witness back towards using the minor victim.

[00:43:30] Speaker 05:
And the pseudonym in this case wasn't much of a pseudonym, was it?

[00:43:34] Speaker 02:
Well, Your Honor, the government never actually applied a pseudonym.

[00:43:38] Speaker 02:
I believe that was defense counsel on appeal that came up with that pseudonym.

[00:43:44] Speaker 02:
I see I have no further time, but I'm happy to answer any additional questions.

[00:43:48] Speaker 01:
Thank you.

[00:43:57] Speaker 01:
One minute.

[00:43:58] Speaker 00:
Thank you.

[00:43:59] Speaker 00:
I'll use it wisely.

[00:44:00] Speaker 00:
One, I disagree there's a course of conduct.

[00:44:03] Speaker 00:
There was a motions hearing on multiplicity and duplicity, and the government said there's no course of conduct, Your Honors.

[00:44:10] Speaker 00:
They said it to the district court.

[00:44:12] Speaker 00:
These are stop gaps in times.

[00:44:14] Speaker 00:
Judge Bennett, you talk about the April chat on a different platform in text to say, my guy is soliciting stuff later.

[00:44:21] Speaker 00:
864 of the ERs through 890s,

[00:44:27] Speaker 00:
The chat's with my client, six weeks.

[00:44:30] Speaker 00:
He doesn't request anything.

[00:44:32] Speaker 00:
He supports Rodriguez getting away from porn.

[00:44:36] Speaker 00:
He asks for pictures of penis, and as Chief Judge McGee points out, right before these texts, he says he disclaims interest in any porn, any child porn, says I don't want to see this, these aren't the pictures I want, and then he gets it.

[00:44:48] Speaker 00:
That's not solicitation.

[00:44:50] Speaker 00:
Judge Johnstone, it's not that he had, first of all, there is no testimony about the ability.

[00:44:55] Speaker 00:
The citations to the record they relied on is page 386 through 390 and 494 through 496.

[00:45:02] Speaker 00:
They don't say anything about the telegram chat.

[00:45:04] Speaker 00:
But even if they did, they have to have evidence.

[00:45:06] Speaker 00:
It's past tense.

[00:45:07] Speaker 00:
Where's the evidence that my client did something other than delete?

[00:45:11] Speaker 00:
There's no such evidence.

[00:45:13] Speaker 00:
To answer your question, Judge McGee, that's what Rahm talks about.

[00:45:16] Speaker 00:
When it comes on his screen and he sees it, he has to do something to exercise control.

[00:45:21] Speaker 00:
What Rahm says they did there was he enlarged it.

[00:45:24] Speaker 00:
and then he saved it to his hard drive.

[00:45:26] Speaker 00:
He later deleted it.

[00:45:28] Speaker 00:
The government says, there's stuff on my guy's hard drive, not related to the counts of conviction.

[00:45:33] Speaker 00:
He's only on counts 15, 17, the August conduct.

[00:45:36] Speaker 00:
Whatever he may have done wrong in April, whatever he may have confessed to in April, wasn't charged here.

[00:45:42] Speaker 00:
At the time he's charged, he's saying, don't send me this stuff.

[00:45:45] Speaker 00:
He doesn't exercise control or seek it out.

[00:45:47] Speaker 00:
The last thing I'll say, because it ties it all together, is what the government began with.

[00:45:52] Speaker 00:
These men confessed to seeing the six to eight-year-old girl being raped.

[00:45:55] Speaker 00:
They had witnesses that knew the child.

[00:45:57] Speaker 00:
There was no dispute that she was a child, that she was six to eight, that everyone knew she was being raped, that she had been raped.

[00:46:05] Speaker 00:
The notion that they needed these images where there was live testimony of who she was, they named her.

[00:46:10] Speaker 00:
That was my suited in your honor.

[00:46:11] Speaker 00:
I could have been better.

[00:46:12] Speaker 00:
I apologize for that.

[00:46:14] Speaker 00:
I didn't name her last name.

[00:46:16] Speaker 00:
I don't know her last name.

[00:46:18] Speaker 00:
I wouldn't do that.

[00:46:19] Speaker 00:
But I get the point.

[00:46:21] Speaker 00:
But the point is they made this trial about this child when the guys confessed.

[00:46:25] Speaker 00:
They didn't need to try it this way.

[00:46:27] Speaker 00:
And the big question is, was this fair?

[00:46:30] Speaker 00:
The last thing I'll say on the 403 issue is it wasn't preliminary.

[00:46:35] Speaker 00:
They had a whole preliminary, at the pre-trial conference, the government made a motion to admit them.

[00:46:41] Speaker 00:
The judge admitted that motion in full and ruled that if they're charged images, they get to come in per se under Grinnell.

[00:46:48] Speaker 00:
The judge made a later preliminary ruling about different images that weren't charged, and he didn't let those in, but we're not challenging those on appeal.

[00:46:56] Speaker 00:
Judge Holcomb ruled that these images at the pre-trial conference made a definitive ruling after extended dialogue and discussion.

[00:47:02] Speaker 00:
It is preserved under this court's case law.

[00:47:05] Speaker 00:
In the absence of questions, I'll thank the court.

[00:47:06] Speaker 01:
Thank you.

[00:47:07] Speaker 00:
Thank you, Your Honors.

[00:47:09] Speaker 01:
You have a minute.

[00:47:11] Speaker 01:
I promise to take a shorter minute, Your Honor.

[00:47:17] Speaker 04:
But I did want to just address one thing that the government indicated about Countout 18 saying that it needed to play the video because it was the only video they had.

[00:47:28] Speaker 04:
That was access with intent to view child pornography.

[00:47:32] Speaker 04:
The playing of the video, every single second of that horrendous video had nothing to do with whether when Mr. Bacardo pushed on a thumbnail, he was accessing that content with the intent to view child pornography.

[00:47:45] Speaker 04:
And just to correct the government who was attempting to correct me, on 2ER-303 is where the case agent himself explains how thumbnails work.

[00:47:55] Speaker 04:
That a thumbnail can be any part of an image, and we don't even need to go there because the government has conceded here.

[00:48:00] Speaker 04:
If I heard him correctly, you can't tell from the thumbnails what it is you're about to see.

[00:48:06] Speaker 04:
Thank you.

[00:48:08] Speaker 01:
Thank you.

[00:48:08] Speaker 01:
Mr. Lora, Mr. Below, Mr. Johnson, thank you for your oral argument presentations.

[00:48:14] Speaker 01:
The case of United States of America versus Miguel Picardo and Mr. Banguglian is now submitted and we are adjourned.

[00:48:23] Speaker 01:
Thank you.