[00:00:13] Speaker 02: Good morning, Your Honors. [00:00:14] Speaker 02: Devin Burstein on behalf of Mr. Doyle. [00:00:18] Speaker 02: May it please the Court. [00:00:20] Speaker 02: Your Honors, separate from the question of guilt or innocence, district courts have an independent duty to protect the rights of the accused, to ensure a fair trial, and to comply with controlling precedent. [00:00:36] Speaker 02: Here, that duty went unfulfilled. [00:00:39] Speaker 02: The district court failed to exercise the discretion required by this court's case law. [00:00:45] Speaker 02: As you wrote in Curtin, Judge Wardlaw, quote, what is clear from the record is that the district court did not read the entirety of the five stories that it admitted into evidence and gave to the jury. [00:00:59] Speaker 02: Judge Wardlaw, you continued. [00:01:01] Speaker 02: The district court certainly did not consider the relevance of each story in tandem with a proper rule 403 analysis for both prejudice and cumulative evidence. [00:01:12] Speaker 02: I would therefore reverse and remand that same comment applies equally here to take it into the context of this case. [00:01:22] Speaker 02: because what is clear from the record is that the district court did not review any of the numerous pictures and nearly five minutes of disturbingly graphic videos that it admitted into evidence and showed to the jury. [00:01:36] Speaker 03: But what's different about this case in Curtin is that in the majority opinion in Curtin, the court says that defense counsel steadfastly fought every one of these things under Rule 403. [00:01:47] Speaker 03: Correct. [00:01:48] Speaker 03: And that didn't happen here. [00:01:49] Speaker 03: That's right. [00:01:52] Speaker 03: defense counsel didn't just fail to object under 403. [00:01:56] Speaker 03: He said, all of this is fine. [00:01:58] Speaker 03: He, he consented to, to the admission of the evidence and, and to the trial court's handling of that evidence. [00:02:05] Speaker 02: Right. [00:02:06] Speaker 02: Well, I think, I think there's two answers. [00:02:09] Speaker 02: So number one is right. [00:02:11] Speaker 02: We have, there's actually three, we have rule 52B, right? [00:02:14] Speaker 02: So we have plain error analysis here. [00:02:17] Speaker 02: So we can look at the plain error. [00:02:19] Speaker 02: The second part is that the district court certainly knew what the law was and kind of short-circuited for expediency. [00:02:27] Speaker 02: And that's not permissible. [00:02:29] Speaker 02: The third part is that he was dealing with an incredibly experienced prosecutor and a lawyer for the defense who really had no idea what he was doing in federal court. [00:02:41] Speaker 02: And that's borne out by the record. [00:02:42] Speaker 02: I mean, the lawyer says, I rarely make it into federal court. [00:02:45] Speaker 02: So we have all of those things that are different. [00:02:49] Speaker 02: And then let's actually look at what happened because I don't think the government exactly explains it correctly. [00:02:57] Speaker 02: So we start at ER 63. [00:03:02] Speaker 02: And at ER 63, the judge says does the case law still require I preview it before admission, right? [00:03:12] Speaker 02: And then the very experienced prosecutor says, [00:03:16] Speaker 02: The answer is yes. [00:03:18] Speaker 02: That's what Curtin requires as a matter of law. [00:03:21] Speaker 02: It's not debatable. [00:03:22] Speaker 02: Curtin says as a matter of law, you must do this. [00:03:25] Speaker 02: Miguel Murray says every 403 analysis must do this. [00:03:30] Speaker 02: Waters says you must do this. [00:03:31] Speaker 02: So the prosecutor's answer as an officer of the court should be yes. [00:03:37] Speaker 02: What does she say? [00:03:38] Speaker 02: In this particular case, I'm happy to make an oral proffer for the court about the content of those specific images. [00:03:44] Speaker 02: That's not legally correct. [00:03:47] Speaker 02: Who injects this error? [00:03:49] Speaker 02: The prosecutor does. [00:03:50] Speaker 02: Then the conversation goes off the rails for a little bit. [00:03:55] Speaker 02: And then it gets, they start talking about non-contrabadge images. [00:03:59] Speaker 02: But then if we can look at ER 65, in the middle of the page, if you see attorney Dix doing his best, probably doesn't know what rule 403 is, but doing his best, [00:04:14] Speaker 02: in the middle of the page, and he says, and she's, I believe, going to give it to you, oh, sorry, let me start, and she has it on a flash drive, on a disc or on a flash drive, that's the contraband images, and she's, I believe, going to give it to you to review at some point. [00:04:34] Speaker 02: That's what curtain requires. [00:04:36] Speaker 02: What does the court say? [00:04:37] Speaker 02: Okay, no, that's not what the court says. [00:04:41] Speaker 02: And then the court injects it back. [00:04:43] Speaker 02: And then here, very next line, quoting. [00:04:46] Speaker 02: And then the proposal was an oral description to expedite my review under 104 and 403. [00:04:53] Speaker 02: And I was wondering if that would satisfy the defense. [00:04:57] Speaker 02: Or do you prefer that the court review the evidence firsthand preliminarily? [00:05:02] Speaker 02: And what's the sentence next? [00:05:04] Speaker 02: I would be good to go with that. [00:05:08] Speaker 02: He's saying, I would be good to go with that. [00:05:11] Speaker 02: I think that's referring to the later, to the second suggestion, which is what he has to do. [00:05:18] Speaker 02: Your honor is right. [00:05:20] Speaker 03: But does he ever make another indication that he expected the court to do that? [00:05:23] Speaker 03: Because the court didn't do it, and I think he knew the court didn't do it. [00:05:26] Speaker 02: He did know the court didn't do it, but I would suggest in the real world, [00:05:31] Speaker 02: If you're taking a lawyer that we all know doesn't know what he's doing in federal court and a federal judge sitting up on the bench suggests that to expedite my review, can I just do this by way of proffer? [00:05:44] Speaker 02: What's the lawyer supposed to say then? [00:05:47] Speaker 02: I mean, yes, the lawyer should say, no, Your Honor, you know, Curtin requires you to do it at the matter of law. [00:05:53] Speaker 02: But really, the judge knew that he was required to do it and is now injecting this again. [00:05:58] Speaker 02: Yes, this was not the best lawyer in the world. [00:06:01] Speaker 02: I think this lawyer fails horribly under Strickland. [00:06:05] Speaker 02: But let's not pretend that this is [00:06:07] Speaker 02: what the government's making it out to be, where the lawyer just says, yeah, no matter what, go ahead and do this. [00:06:13] Speaker 02: The prosecutor suggested it. [00:06:15] Speaker 02: That was wrong as a matter of law. [00:06:17] Speaker 02: This came from her, and she knew exactly what the law required. [00:06:21] Speaker 02: The district court knew what the law required. [00:06:23] Speaker 02: We can all blame the defense lawyer, but who's the legal expert in the courtroom? [00:06:28] Speaker 02: It's the person wearing the black robe. [00:06:30] Speaker 02: He knew what Curtin said. [00:06:32] Speaker 02: The quote I wrote from Judge Wardlaw has been the law of this circuit for a long time. [00:06:38] Speaker 00: Twenty years. [00:06:39] Speaker 02: And it's been repeated in McElmurray. [00:06:43] Speaker 02: That's a case out of the Southern District, right? [00:06:47] Speaker 02: I mean, that's our case, McElmurray. [00:06:49] Speaker 02: I represented McElmurray. [00:06:51] Speaker 02: This is not uncertain law. [00:06:54] Speaker 00: Okay, it is, so it's plain air. [00:06:56] Speaker 02: Right. [00:06:57] Speaker 00: I think, unfortunately, [00:06:59] Speaker 00: we have to say, go through the whole Olano analysis. [00:07:04] Speaker 00: Did it affect substantial rights? [00:07:07] Speaker 02: Right. [00:07:07] Speaker 00: And that's the question. [00:07:09] Speaker 00: I agree with you. [00:07:10] Speaker 00: This is plain error. [00:07:12] Speaker 00: And also, I can hardly believe that it happened, given the experience of both the judge and the prosecutor. [00:07:19] Speaker 02: Agreed. [00:07:20] Speaker 00: But substantial rights. [00:07:23] Speaker 00: How do we know? [00:07:24] Speaker 00: How can we make that determination [00:07:30] Speaker 00: I mean, it sounds like, I mean, reading the record, it sounds pretty inflammatory to me. [00:07:36] Speaker 00: Right. [00:07:37] Speaker 00: But he did actually, he was charged with one count. [00:07:41] Speaker 00: One count. [00:07:43] Speaker 00: And he did actually have way more than one count on his device. [00:07:49] Speaker 00: And so articulate for me how this affects substantial rights. [00:07:54] Speaker 02: Right. [00:07:55] Speaker 02: I think it's a great question. [00:07:59] Speaker 02: This material was uniquely inflammatory, terrible material. [00:08:09] Speaker 02: The government in its brief accurately states they had to prove he knowingly possessed one image, knowing that the person was under 18. [00:08:18] Speaker 02: You don't need five minutes of graphic video, five times more than this court approved in Gano, plus 22 images [00:08:28] Speaker 02: and screenshots, in addition to that, to prove one image. [00:08:32] Speaker 02: The answer to your question is exactly why the prosecutor insisted on putting in every single image. [00:08:39] Speaker 02: When did she do it? [00:08:40] Speaker 02: In her case in chief. [00:08:42] Speaker 02: Why? [00:08:43] Speaker 02: So that by the time he got up on that stand to tell the jury, she told me she was 18. [00:08:50] Speaker 02: She showed me an ID. [00:08:51] Speaker 02: They wouldn't care what he said or who he brought in. [00:08:55] Speaker 02: He could have brought in the Pope to sit next to him. [00:08:57] Speaker 02: They would hate him. [00:08:58] Speaker 02: Why? [00:08:59] Speaker 02: Because he had five minutes of this despicable imagery on his computer that they played and made the jury watch. [00:09:09] Speaker 02: One of the jurors needed counseling after this case. [00:09:12] Speaker 02: I've been, I've handled 150 cases. [00:09:15] Speaker 02: I've been arguing before, Your Honor, for 18 years. [00:09:19] Speaker 02: I've never seen a juror need counseling, not in a murder, not in a child pornography, never once. [00:09:25] Speaker 02: This prosecutor, just like she knew what she was doing when she told him she could short circuit it, she knew exactly what she was doing when she put in all of that stuff. [00:09:35] Speaker 02: 36 images, five minutes of video, that affects your substantial rights because you have no chance. [00:09:42] Speaker 02: She knew exactly what she was doing. [00:09:45] Speaker 02: She made it so no matter what he said, they could believe him, but they would hate him. [00:09:50] Speaker 02: That's the whole point of 403. [00:09:52] Speaker 02: That's why we have district judges. [00:09:54] Speaker 02: If you have a, excuse me, a buffoon for a lawyer, the district judge says, that's not fair. [00:10:01] Speaker 02: In America, that's not what we do. [00:10:03] Speaker 02: That's why we have 403 in every state. [00:10:07] Speaker 02: Every state has its corollary, because we can't have the jurors deciding based on their hatred, based on their bias. [00:10:18] Speaker 02: If I were a juror, I would hate him. [00:10:22] Speaker 02: I'm a long-term defense lawyer. [00:10:24] Speaker 02: I would hate this guy. [00:10:27] Speaker 02: No matter what he could say, that's the answer to your honor's question. [00:10:30] Speaker 02: That's why this was so prejudicial. [00:10:32] Speaker 02: And it goes back to why Curtin says, as a matter of law, you cannot exercise discretion unless you have read, seen, viewed it. [00:10:43] Speaker 02: I mean, we see it in state courts. [00:10:46] Speaker 02: If we can go to what if he needed to know what these images were? [00:10:51] Speaker 02: How is he letting in a young minor girl licking feces off of a razor? [00:10:58] Speaker 02: What does that have to do with anything? [00:11:01] Speaker 02: I know what it has to do with. [00:11:02] Speaker 02: You know what it has to do with. [00:11:04] Speaker 02: He knows what it has to do with. [00:11:05] Speaker 02: It has to do with painting the defendant as a monster. [00:11:08] Speaker 02: We don't do that. [00:11:09] Speaker 02: That's not a fair trial. [00:11:11] Speaker 02: And I would, unless the court has questions, I'll reserve my time, but I would urge you to reverse this as a plain error under curtain. [00:11:21] Speaker 00: All right, you can reserve your time. [00:11:31] Speaker 01: May it please the court? [00:11:32] Speaker 01: Peter Horne for the United States. [00:11:36] Speaker 01: In the government's view, there was no plain error under Curtin. [00:11:38] Speaker 01: And to pick up with Judge Wardlaw's question about substantial rights, Doyle would have to meet each of the prongs of plain error. [00:11:45] Speaker 01: He can't meet any, and certainly not the third and fourth. [00:11:49] Speaker 01: My friend on the other side is looking at the substantial rights inquiry the wrong way, I think, because what the question for this court should be is, [00:11:57] Speaker 01: If the district court had looked at these files before trial, would it have reached any different finding? [00:12:05] Speaker 01: Would the result of the evidence being admitted at trial and the outcome at trial be any different? [00:12:10] Speaker 01: Here there is no indication, whether in the motion to eliminate transcript or at trial or elsewhere in the record, that the district court would have reached any different conclusion if it had viewed personally each of those files before trial. [00:12:24] Speaker 01: And what underscores this is that at trial, as Judge Brown observed, there was no objection, again, no objection by the defense to any of these exhibits. [00:12:35] Speaker 01: There was no question, no sua sponte issue raised by the court to their admission. [00:12:43] Speaker 01: And to correct a couple of points from the record, this was not [00:12:51] Speaker 01: an instance where the government introduced, actually, every single image, every piece of evidence it had. [00:12:57] Speaker 01: Government's entitled to prove its case. [00:12:59] Speaker 01: It's entitled to, as this Court has confirmed in case after case, and Gano is a good example, this is highly probative evidence. [00:13:06] Speaker 01: This evidence can constitute the crime. [00:13:10] Speaker 01: So it has the ability to do that. [00:13:13] Speaker 01: By my count, there were in fact about 29 distinct files, 36 total exhibits. [00:13:18] Speaker 01: About seven of those were screenshots of certain videos. [00:13:22] Speaker 01: So I have to correct the record on that. [00:13:24] Speaker 01: This was not everything that the government could lay in and making it as prejudicial or potentially prejudicial as it could. [00:13:33] Speaker 01: One more brief correction, and this is shown at pages 75 and 348 of the record. [00:13:40] Speaker 01: That video of the girl in the shower with the razor feces that my friend on the other side refers to. [00:13:46] Speaker 01: That video was actually cut short, clipped at trial. [00:13:50] Speaker 01: It's a video of about a minute and 30 seconds. [00:13:52] Speaker 01: It was described in detail at the motion and liminear hearing. [00:13:56] Speaker 01: At page 348, it's clipped to a minute and seven seconds. [00:14:01] Speaker 01: So that last part, [00:14:02] Speaker 01: that my colleague says is the most inflammatory part of all this evidence, it wasn't shown to the jury. [00:14:13] Speaker 03: How can the government argue both that it needed all of those 36 pieces of evidence to prove its case or rebut Doyle's defenses and at the same time say that based on Doyle's testimony and other evidence that the case was a foregone conclusion on substantial rights? [00:14:36] Speaker 01: A burden-proof guilt is beyond a reasonable doubt. [00:14:39] Speaker 01: It's the highest burden. [00:14:41] Speaker 01: And the government doesn't try to just clear that hurdle. [00:14:44] Speaker 01: They try to make this a compelling case. [00:14:47] Speaker 01: And in this case, it was a verdict after an hour and 15 minutes. [00:14:52] Speaker 01: But the government has the ability and is entitled to introduce the evidence that sees fit, and Old Chief is a good example of this, that also tells the story and shows the jury the evidence it's talking about. [00:15:06] Speaker 01: Now the evidence here, and this goes to Curtin, the files here are meaningfully different from the evidence at issue in Curtin. [00:15:14] Speaker 01: In one respect, those stories offered there under 404B. [00:15:19] Speaker 01: And there was an associated 403 analysis that needed to happen as well. [00:15:25] Speaker 01: Parts of them were wholly irrelevant, as this court concluded. [00:15:31] Speaker 01: And as Judge Brown noted earlier, that was a case where there was disagreement between the parties, and the court relied only on the prosecutor's proffer here in that case. [00:15:41] Speaker 01: Here we have an agreed process, agreed descriptions, and the files [00:15:48] Speaker 01: Most of them depict the minor victim herself. [00:15:54] Speaker 01: Some of them doil himself with her. [00:15:57] Speaker 01: Many of them taken in his own home. [00:16:01] Speaker 01: And all of them accompanied by forensic data that shows, and this is undisputed, shows they were on his phone. [00:16:10] Speaker 01: Many of them in the deleted space, but without question, they were on his phone at some point. [00:16:15] Speaker 01: They were possessed by him. [00:16:17] Speaker 01: And of course, Ellie's four of them, including a video of the minor victim here, were still on his phone in the recently deleted part of the photo vault, but accessible. [00:16:30] Speaker 01: And so to circle back to where I believe your honor. [00:16:35] Speaker 00: So am I right that this was one count? [00:16:38] Speaker 01: This was one count, correct. [00:16:39] Speaker 00: One count of possession of, what is it, sexually exploited material? [00:16:46] Speaker 01: One count under subsection A4, possession of at least one matter containing sexually explicit conduct involving a minor. [00:16:58] Speaker 00: So I still don't understand why the government felt it needed to show the jury so many [00:17:08] Speaker 00: instances of this. [00:17:09] Speaker 00: What was the issue at the... What was the central issue? [00:17:13] Speaker 00: Were they concerned about showing she was a minor? [00:17:17] Speaker 00: Proving that she was a minor? [00:17:19] Speaker 00: Is that the issue? [00:17:21] Speaker 01: The government has to prove that. [00:17:23] Speaker 00: And it has to... I mean, was that the chief central issue in dispute? [00:17:28] Speaker 01: Based on Doyle's defense and testimony, I believe that was the central issue at trial. [00:17:34] Speaker 00: And that's why it's... You weren't the trial lawyer. [00:17:37] Speaker 01: I'm sorry, Your Honor. [00:17:37] Speaker 00: You weren't the trial lawyer. [00:17:39] Speaker 01: I was not, no. [00:17:41] Speaker 01: But it appears, based on Doyle's testimony in defense, that that ended up being the central point in dispute, not whether those images and videos were ever on his phone. [00:17:52] Speaker 01: but whether, one, he knew about it, and whether he knew that she was a minor, because he claimed he thought she was over 18, maybe he thought she was 20 at some point. [00:18:03] Speaker 01: His testimony was not credible, and it wavered. [00:18:05] Speaker 01: But based on defense counsel's points in closing, too, that seems like his main defense. [00:18:10] Speaker 01: Now, the government still has to prove, beyond a reasonable doubt, every one of the elements for the statute. [00:18:18] Speaker 01: And that includes the fact that [00:18:20] Speaker 01: the possession of the depictions, that they show sexually explicit conduct, that they show a minor, and that the defendant knew about all of it. [00:18:30] Speaker 00: All of those, regardless of how... I realize that, but why did the government need to introduce 36 files? [00:18:43] Speaker 01: I'd again emphasize that the government, it needs to prove beyond a reasonable doubt. [00:18:48] Speaker 01: And based on the anticipated defenses, this wasn't [00:18:51] Speaker 01: an unreasonable number. [00:18:52] Speaker 01: And it's actually a number that in cases like Becht, there's Dodds from the 11th Circuit, there are cases approving a round or significantly higher number. [00:19:06] Speaker 01: of explicit images or videos here. [00:19:09] Speaker 01: So this is not out of the realm. [00:19:12] Speaker 01: It's not unreasonable in that respect. [00:19:14] Speaker 01: And in Gano itself, that approved Morales Aldejando, which had 22 files, pictures and videos. [00:19:27] Speaker 00: So I don't believe it's so far out of the... So, I mean, it's hard for me to divorce myself from this because Curtin's been on the books for so long. [00:19:36] Speaker 00: You know, the panel, although I wrote separately, the panel was unanimous that if you're going to rule on a rule 403 motion, the district court judge has to look at everything because otherwise he can't make the type of decision that 403 requires, which is looking at redundancy and prejudice. [00:20:05] Speaker 00: I've been a district court judge, so I've had to look at horrific stuff. [00:20:13] Speaker 00: I think my panelists have too. [00:20:19] Speaker 00: If I were a district court judge, I don't know how I could make the decision about allowing 36 files to prove one count when it's from [00:20:36] Speaker 00: I haven't seen the zip drive but I read the description and it seems pretty obvious after a few of the images that the case is proven. [00:20:47] Speaker 01: I would agree. [00:20:51] Speaker 01: It's compelling evidence and I don't believe this is an unreasonable amount of evidence. [00:20:56] Speaker 01: It's also very [00:20:57] Speaker 01: It was an experienced district judge in this case as well. [00:21:00] Speaker 00: No, that's why I'm utterly shocked that he didn't review the material. [00:21:06] Speaker 01: And I think if I could talk about the error, plain error under curtain for a moment, I think that's because the parties here and the judge and the government's position [00:21:18] Speaker 01: is that there was no plain error under Curtin. [00:21:20] Speaker 01: And the parties in court didn't think of Curtin's strict blanket application in those respects because of the nature of the material. [00:21:28] Speaker 00: Was Curtin even mentioned in this transcript? [00:21:32] Speaker 01: I don't believe it was. [00:21:33] Speaker 00: I don't believe they were even reading the law in this subject. [00:21:39] Speaker 01: Well, I don't believe it did appear in the transcript there. [00:21:45] Speaker 01: It doesn't appear, and I think rightly so, that the parties or the court thought it applied strictly where the parties agreed on the process and descriptions. [00:21:55] Speaker 01: The court also had the ability to make any rulings at trial. [00:22:00] Speaker 01: The defense never objected. [00:22:01] Speaker 01: And if I can make one other point that my friend on the other side raised is that [00:22:13] Speaker 01: There's no ineffective assistance claim raised as to this issue. [00:22:18] Speaker 01: And so I think the court should separate those issues and shouldn't review the ineffective assistance claim for several reasons, as we've briefed. [00:22:26] Speaker 01: But the court shouldn't consider defense counsel's performance on behalf of Doyle with respect to 403. [00:22:35] Speaker 01: As as deficient based on the agreement here and one example of that is Of how this this wasn't plan error is a non published case from last year of bucardo Which involved the district court admitting and allowing to be displayed to the jury explicit images of child pornography Over the defense objection based on the prosecutors description, and there was no plan error under curtain [00:23:00] Speaker 01: You only have a little bit time left Let's assume there was plain error so that we can talk about the substantial rights argument if you'll address that please yes, certainly and as I started with briefly the way to think about this that The Doyle's briefs and my friend on the other side. [00:23:19] Speaker 01: I think mistakes is whether there was any likelihood that [00:23:24] Speaker 01: that the district court would have reached a different finding on the admissibility of these images if it had reviewed them before trial. [00:23:32] Speaker 01: There's no indication of that. [00:23:33] Speaker 01: And in fact, I think it's one paragraph in the reply brief where this is raised at all. [00:23:40] Speaker 01: But Mr. Doyle doesn't even make that argument except briefly in reply that there would have been any difference in the admissibility and the government's ability to use this evidence at trial. [00:23:51] Speaker 01: Now let's say [00:23:53] Speaker 01: half of them would have been admitted. [00:23:56] Speaker 03: Is it clear that without the 36, he would have been convicted anyway? [00:24:02] Speaker 01: I believe so, because without the admission, and I don't think that would be warranted under GANO and 403 and for other reasons too, but let's say the district court had not allowed the government to show any of those images. [00:24:15] Speaker 01: What it could have done still is talk about them, narrate them, as Agent Valdivia did on the stand. [00:24:21] Speaker 01: So that's strong evidence, too. [00:24:22] Speaker 01: There's, of course, the image of the minor victim from her social media account with Doyle, undisputed. [00:24:29] Speaker 01: That's the two of them together. [00:24:30] Speaker 01: There's evidence of her appearance when agents came to arrest Doyle, holding dolls. [00:24:38] Speaker 01: His search history, of course. [00:24:43] Speaker 01: wholly non-credible testimony at trial. [00:24:46] Speaker 01: So there's other compelling evidence that supports the jury's verdict here. [00:24:51] Speaker 01: And then to the final prong, which Doyle would also have to meet under Plain Air Review, there is no reason in the interest of fairness, integrity, public perception of the courts, that this court should exercise its discretion to remand for a new trial here. [00:25:06] Speaker 01: This is a situation involving the parties [00:25:09] Speaker 01: agreement about not only the relevance, but the admissibility of this evidence. [00:25:16] Speaker 01: In fact, the trial counsel said he acknowledged this material was admissible. [00:25:22] Speaker 01: He acknowledged this is what this case is all about. [00:25:25] Speaker 01: Of course, what the jury is going to have to decide. [00:25:28] Speaker 01: And that's correct under this court's precedent. [00:25:33] Speaker 01: But it's that and given the nature, the offense of the material, [00:25:40] Speaker 01: And then given the overall lack of error in the procedures at trial and the admissibility of the evidence and the other compelling evidence of his guilt, I believe there's no reason to remand on the fourth prong as well. [00:25:56] Speaker 01: I could briefly address other issues if you honors would like or addressing any questions on Curtin in 403 as well. [00:26:07] Speaker 01: I'll submit and ask that DeWolf's condition and sentence be affirmed. [00:26:11] Speaker 01: Thank you. [00:26:24] Speaker 02: This is exactly the kind of case where the court should exercise its discretion until the last prong of Rule 52B. [00:26:33] Speaker 02: Why? [00:26:34] Speaker 02: Because we all know what happened here. [00:26:37] Speaker 02: Curtin, as Judge Ward-Lau said, has been this court's well-established en banc case law for 20 years. [00:26:46] Speaker 02: The prosecutor sought to subvert Curtin for one reason, to get in all of this evidence because she knew that the sole defense was that this girl told me and showed me an ID that said she was over 18. [00:27:04] Speaker 02: The reason to put in 36 files and five minutes of video is because the prosecutor didn't want any chance that the jury would believe him. [00:27:15] Speaker 02: So before they ever saw him on the stand, she made sure they would hate him. [00:27:21] Speaker 02: Judge Wardlaw, you asked, was the issue here, was she 18 or not? [00:27:26] Speaker 02: And I think my friend said that was the issue. [00:27:29] Speaker 02: That was not the issue. [00:27:30] Speaker 02: The government put in her birth certificate and called her CPS worker. [00:27:35] Speaker 02: There was no question she was under 18. [00:27:38] Speaker 02: The question was whether the jury could believe Doyle that he thought she was over 18 based on the ID she showed him and the fact that she used a credit card to get on an adult dating site. [00:27:50] Speaker 02: How do you destroy somebody's credibility? [00:27:53] Speaker 02: How do you make it so the jury has no chance of crediting them? [00:27:58] Speaker 02: You make them look like the devil. [00:28:00] Speaker 02: That's what the prosecutor did incredibly effectively here. [00:28:04] Speaker 02: I believe in the right to a fair trial. [00:28:07] Speaker 02: I believe that regardless of whether you're guilty or innocent, you deserve a fair trial. [00:28:14] Speaker 02: A fair trial that's not tainted by knowing violations of this court's case law. [00:28:21] Speaker 02: This was not that. [00:28:25] Speaker 02: and we would ask you to send it back for a fair trial. [00:28:31] Speaker 00: Thank you.