Thank you and good morning everyone. Call the first case United States versus Edward Hills. Miss Petra Palo? May I please the court? My name is Renee Petra Palo and I represent the appellant Edward Hills. With the court's permission I'd like to reserve four minutes for the battle. In this trial for communicating with an agent posing as a 14 year old girl and in traveling to meet that girl, the government introduced under a federal rule of evidence 404B evidence that 40 years earlier, Mr. Hills had sex with a 13 year old sex worker when he was serving in the military in Thailand, and that nearly two years after this offense, he communicated with a 16 year old about receiving oral sex from her 10 year old sister. The government offered this evidence ostensibly to show motive and intent. The erroneous admission of this evidence, which was markedly more lurid than the conduct charged in the charged crime. How was it markedly more lurid since depending upon how we decide the 404B issues we may have to decide whether or not any errors were such that there should be a new trial? It's the actual sex act with a 13 year old that's more lurid than communicating about sex over the internet with an agent posing as a 14 year old girl. Well, he didn't know she was posing. He thought she was what? 15? 14, actually. 14, okay. So 13 years versus a 14 year old? It's the communication about sex over the internet. The communication was pretty lurid, wasn't it? It was graphic sex talk. There's no doubt about that. But in the very here... In the very chat after chat. Yes, after the first graphic tracts in August, he begins communicating with her in February of 2009. So yes, from August on, chat after chat, it's repeated sex talks with this girl who's a minor. Did he... his theory of the defense wasn't modelled in 10 to knowledge placed an issue by his own defense? I don't believe modelled is placed an issue in the traditional sense that... I would say 10 to knowledge. Intent is at issue, yes, Your Honor. The question that this court says is it's not enough to just articulate a proper 404B purpose. The critical question and the question.
.. Excuse me, let me... I'm starting to rub it. Let me stop there because I think you said something important. First, that's a few things important. First of all, you are conceding or you're not that intent is what is implicated here. And of course, explicitly that under 404B, that is a proper 404B purpose. Yes. You don't think modelled is an issue here, even though it's set out in the rule as one of the appropriate 405B purposes. You don't think that's what's at play here. Correct. Would you also agree that at least in the child sexual abuse type of cases, that it's hard to draw a line between motive and propensity? Yes. I agree. And that's the problem in this case. There's a complete overlap between motive and propensity. Okay, but if we... Let's then assume we put motive aside. And if we focus in on intent, how about if you take us through the three pieces of evidence that you contend were inappropriately admitted here, and why they were not proper invocations of intent over under 404B? Okay. The question that the proponent of the evidence has to answer, and the question that's not answered in this case, is how exactly does the proposed evidence, in this case, actual sex with a 13-year-old 40 years ago, and conversations about oral sex from a 10-year-old to almost two years after the fact? How is that evidence supposed to work in the mind of a jury to establish the proper purpose of intent without relying on the inference that he did it before, so he probably did it this time? Well, that's what propensity is, but why is, for example, the Mike and Misty evidence not appropriately admitted for purposes of showing intent when that particular evidence, as opposed to the news groups and the other evidence, but that particular evidence can be said to relate directly to the relationship with the girlfriend, the GF, who is the subject of this prosecution. Yes, Your Honor. I think that we can parse that conversation. There is part of that conversation that is appropriate to intent in your hidden nail. Exactly. And doesn't that set it aside from the other two pieces of evidence? That doesn't set it aside in what I'm sorry. Doesn't that make it different from the other two pieces of evidence that you were challenging? And you're referring to the admissions sex with a 13-year-old? The Mike and Misty, yes. Yes. It talks about my GF
. It's all about grooming her, right? I think that the government had a good argument to make that the conversation I have a GF, who is currently 14, I haven't started to work with her yet, my first visit as soon. Jerry could infer properly reasonably that that was a reference to the supposed girlfriend who was really the undercover. Correct. It's the piling on and the using that so much more, if you'll forgive me, more lured. What more lured? The jury hears him at what we do with propensity, which really you think would have to hang your hat on here. We talk about a case where a man is indicted for some minor crime, a minor theft. And the government wants to come in with 404b showing that he was alleged to have raped a girl. I mean propensity to commit crime, a lured crime, lured crime to config of the minor crime. Here, here, it seems from the chats and from everything else, there was intent to commit a lured crime. The chance to release the admission of the evidence, all three pieces of it. We have a defendant who testifies a trial and he says his intent is absolutely to have sex with her, but not yet until when she's of age. Correct. And he explains that these chats aren't saying what he's going to do when he gets there, but rather as a way of sublimating their desires until they can lawfully fulfill them. But so, the defendant's theory of defense wasn't necessary to bring this extra evidence to the government to know he wasn't going to delay sexual activity. He was going to have sexual activity as soon as he got the chance. The opening statement, the defense opening statement talks about he's been denied sex for 30 years, he's 60, he's 63 year old, he wants to have sex with a young woman. The poor things had this tough life. I didn't read it that way, Your Honor. Certainly, if he had sex before, and with a minor, that's probative of intent. But that's probative of the fact that he's said in the opening statement. He likes sex. Is he, you know, potter famiges here? I'm going to take care of this young girl and nurse her until she's of age. His defense isn't, and this is where I think it would be proper. His defense isn't, I'm incapable of having sex with a minor. I would find that repugnant, I'd be physically incapable. In which case it would be proper to rebut with, he had sex with a minor before. This is, I am sexually interested in her, but I want to wait until we can do it legally. He introduced this entire body of the shot. Well, that's his story, but there's other evidence in the case that, of course, would suggest his intent. Ultimately, he was more than just having an appropriate and not heavily sexual relationship. Absolutely
. The evidence is sufficient to establish his intent, but the question for 404B isn't, is the evidence sufficient? It's, can we have a sure conviction that this other act didn't influence the jury? All right. I ask you a few minutes ago if you take each piece of evidence, and I believe you did agree with me or concede that there is a distinction for purposes of intent between the mic and misty evidence and the other two. You can do pieces of evidence that you challenge, right? Because it centers on the girlfriend, which the other two pieces of evidence. When I refer to the misty and mic parts of the chat that I say that I believe can come in for intent are limited to the references to the girlfriend. Yes, Your Honor. But, I mean, you have at no point suggested have you that somehow the evidence or that that evidence should have been redacted. You never conceded that that piece could have come in appropriately, but the rest of that chat could not have. We talk about the chat in total, the government throughout when the four of 404B litigation. All right. So the answer is yes. I'm trying to give you an opportunity to talk specifically about the other two pieces of evidence, which I'm suggesting to you may not have the same indisha of intent that the mic and misty evidence has. And again, when he's referring to the 10 year old girl, this court talked about intent and motive in the Daryl Smith case from 2013. And it says in order for us to divine intent from these prior bad acts, we have to presume something about the defendant's character. In that case, it was that he was a drug dealer. In this case, it's that he has a sexual interest in children. That's the very definition of propensity. It's a fetus position, a tendency, a weakness toward sex with children. Even if the evidence presented had a propensity to establish the offense, that doesn't make it excruciable. If the government is able to... If the evidence of intent could be so strong that it could outweigh the effect of propensity evidence. There's no way that prior sex with a 13-year-old 40 years ago could speak to intent in 2009. It wasn't the only evidence. He also had an encounter with the girl in Canada after this offense. She's 16 at the time. Yes. And so there's communication between him and the girl in Canada. But there's not a sexual relationship according to the evidence that is introduced to trial. The question then is.
.. It was also evidence that he had a relationship with his niece. I mean, it wasn't just evidence of an encounter 40 years before, but it was a string of events leading up to the time of his arrest. Yeah. And after his arrest. And the niece evidence did not come in at trial and was hardly contested at sentencing because she was diagnosed. Yes, that she was psychotic at the time or suffering psychosis at the time. She's making my question worse. Just because it has evidence, has a propensity character, doesn't it get extrudable, isn't it? If it's propensity in and of itself, yes, it is excludable. The fact that it's very probative of intent doesn't mean it can come in. If it's propensity and only propensity or it's only intent through propensity, then it's categorically acceptable. What is suitable for a patterned practice mode of intent, right? Exactly. State of intent. Yes. I'm not specifically mentioned. And only failing any of that. Do we say it's just propensity and therefore impermissible? Now in the micimindy thing, that was brought in. The jury was in the box ready to go. Ready to go when the judge ruled on that when it was brought to the judge's attention. And defense attorney had that since May 1st and the judge dealt with it, balanced, treated it quite effectively. I think where we disagree, Your Honor, is that there is no articulation of how does that evidence prove intent without the inference that he was sexually interested in children before and so he's sexually interested now? That's character. That's his propensity, his weakness toward sex acts with children. This Pietro Palo in response to Judge Fuente's last question, it strikes me that you did not respond with something that I would think helps you. And that is language from the jurisprudence of this circuit, specifically that we require the proponent of the evidence to explain how the evidence fits into a chain of inferences, a chain that connects the evidence to a proper purpose, no link of which is a forbidden propensity inference. Correct. No link of which. Correct. And that's the only link here that the government offered. In fact, in its pretrial litigation, it's saying we assume he's going to offer entrapment as a defense and misses his predisposition and ensure that's exactly how this came in to show his predisposition to commit sex acts with children. Is Pietro Palo? I'm sorry. I was just going to ask what one further question
. Even if one of these pieces was, let's just say, let's say you're right. Yeah. That shouldn't have come in. Wouldn't that be harmless error, depending on the standard of review, whether it was preserved the issue, was preserved below, or wasn't? But assuming harm was error applies, the evidence in this case was very strong. And one of the strongest pieces of evidence was the defendant's testimony, strong, essentially, because it was three-count, you're sure? It's incorrect. The standard of review is, can the government prove beyond a reasonable doubt that the error that this... The defendant exceeded a lot, didn't he? He did. Intent was the only element that was at issue. And so, for this court to find that the erroneous admission of this evidence was harmless, we have to find not just that the evidence of intent was overwhelming, but also that it was uncontested. This court has said that in numerous cases, and in fact, in Caldwell... In Caldwell, the court said the defendant just sit back and put the government to its proof. He testified about what his intent was. He introduced his ream of tax, which you're suggesting that the jury believed him. They can't believe him, your honor. But look, no, I'm talking about just the whole body of evidence. I mean, look at Caldwell, you barely challenged Caldwell, and that was to commit a sex act. And he was convicted. And he barely challenges that Caldwell. Right. I mean, do you really... Your challenge is pretty much restricted to Caldwell. No, the Caldwell error infects the Caldwell, and here's why... The court rules that sex activity at Caldwell is the same as sex act that Caldwell accounts to
. She rules that. That's right. The parties actually treat those terms. They conflate them throughout the closing in the rebuttal. They say... And so when the court and the parties themselves, coming all those terms, sexual activity and sexual act, how could we expect the jury to differentiate between those terms? And we actually have the US Attorney in closing saying to the jury, if you find he intended to have Pennsylvania in decent contact with this minor, so that's the travel, or if you find he intended to entice Ashley to engage in Pennsylvania in decent contact, then he's guilty. He goes on to the count two immediately thereafter, and he says to the jury, I'm not going to believe at the point about why he's also guilty of traveling with intent to engage in sexual activity, which we know is the count one language. Is she a position that the terms are synonymous? It is, which is why the court erroneously instructed the jury that they could rely on. The Pennsylvania offense... There's something about that that doesn't at least make sense. Activity to these... It sounds like something plural. There's various elements to an activity, whereas an act is singular. Section... For example, take a terrorist activity versus a terrorist act. An act be a car bomb, but terrorist activity is a lot more expensive. It's certainly plural, it's not singular. Sexual activity is broader, isn't it not, then... Or could be broader than sexual act. In other words, you cannot, in my view only, and I speak only for myself, you cannot have a sexual act without it being sexual activity, but you could have sexual activity without it being the sex act. Well, sexual activity has to have a definition, and there's not one in the statute
. So the... And the statute has been written very broadly, hasn't it? I mean, when Congress chooses to draft a statute as they did with 24-22B and uses language any sexual activity, for which any person can be charged with a criminal offense or attempts to do so. That's pretty broad language, isn't it? They use language like any... Isn't it broad? It's broad, but the any is not dispositive, and I say that by looking at the 2015 case in Yale... Well, how about the article A, A criminal offense? 31, 26, a title 18, the Pennsylvania Crime Code, talks about indecent assault. That's a criminal offense, right? It is, and when we... And why isn't this a simple matter of saying that 31, 26, the indecent contact, the indecent assault statute, which outlaws indecent conduct. The kind of criminal offense that simply folds into the language of 24-22B, and is a dear friend and colleague of mine would say, why isn't that game set and matched? I would say there's several reasons, Your Honor. I lay out in my reply brief and I won't restate here for you why Judge Posner got it right when he interpreted this statute by looking at the legislative history and the plain language. Judge Posner actually utilized a form of analysis in going back and forth between sexual activity, which had recourse to a definition that is actually limited to Chapter 109A of the legislation. We know that the travel... Would you just answer my question please? I don't. I mean, as used in this chapter, and that's where we have sexual act for purposes of 2D. It says as used in this chapter, but we know that in the travel statute, it actually incorporates that language from that other chapter. So we use that language in other chapters, notwithstanding that as used in this chapter. Do we have to reach that issue of the circuit split? If you agree on... If you agree on the courts' instructions under the standard you think should apply and find that the district judge or assume, we don't even have to find, assume that under that standard, the district court committed some error in her instructions to the jury, why wouldn't the Arabi harmless? The error isn't harmless because the erroneous instruction had some effect on the jury. You would have to find that it's.
.. Have a sure conviction that the erroneous instruction didn't affect the jury. But you're not... You are in arguing we must decide the circuit split, are you? If you agree on the 404B issue, then we remand for a new trial. If we find that the evidence was overwhelming, that his intent all along was to engage in sexual activity, isn't that sufficient? I don't think so because you'd have to find both that it was overwhelming and that it was uncontested. And he contested it. He testified. He offered his chance, which is the evidence. That's what jury trials are about. They convicted him. The erroneous admission of the Lourid 404B, which is a confession to having had sex with a 13-year-old 40 years ago over a period of months, so infected everything. It lures the jury away from deciding this case based on the evidence of what chats were going on, what did he say in those chats? And it directs them to convict him based on his sex with the minor while he's in the military. They want to break a wrong. They don't care. Can you answer my question, the one about, do we have to decide the circuit split in your view? If it goes back, I'm not sure about that, Your Honor. If you vacate and remand and send it back because of the 404B error, we have a new trial and it's unclear how things would develop during that trial. I do believe that there's many reasons if you were to decide the split, not to follow the fourth circuit, not the least of which is that all the fourth circuit does is cobble together dictionary definitions of the word sexual and activity, in a way that the Supreme Court in Yates says we shouldn't do. We shouldn't make a fortress of the dictionary. We're supposed to read words in the context of the statute, which is you look at the neighboring words. The first prostitution or any sexual activity for which any person can be charged had Congress really believed that sexual activity for which any person can be charged is just active pursuit of libido null gratification, which is the fourth circuit definition. They would have had no reason to add that extra definition in 2427, which is production of child pornography because certainly the active pursuit of libido null gratification would include production. Thank you. Thank you. Thank you, Mr. Tilo. Please the court change at the top on behalf of the United States. Good morning. Before I move on to the 404B issue, I'd just like to emphasize that on the first issue, the definition of sexual activity, we are on plain error review. So the very fact of the circuit split makes means that you don't have to decide it
. The very fact of the circuit split means that it's not clear error. The reason that we're on plain error review, the reason this wasn't preserved, is that the defendant's motion to exclude. I think that is not necessarily clear. Yeah. Well, I'd like to explain why, why I think I think it is clear if you look at the colloquy about the charging. But the issue was initially raised by defense counsel. He just didn't raise it again, right? He objected, he raised the issue in objecting to these pro supplemental instruction. And his motion is clear that he only objected to that. In his reply brief, Mr. Hill cites Russell in which the defendant had raised an objection to a jury charge, but the court hadn't ruled on it. This court, the district court hadn't ruled on it. This court found that that raising of the objection was enough because, and the Russell decision turned on the fact that the colloquy made clear that the district court understood the nature of the objection in the extent. Here we, the opposite is true. If you look at page 401 of the appendix, the district court interprets this objection to, and this is a quotation, a very, to the very short and extra supplemental instruction. Well, you know, I don't think you want to spend all your time on this. But I just suggest to you, we read the briefs, we know this issue and whatever we would apply one standard or another depending on what we find. But why don't you move to the issue? Do we have to decide the surface split? No, Your Honor, because I believe that really the holding in Taylor is that there has to be some sort of fit that a non-contact crime can't qualify. I believe that it's a discussion about how sexual act should have the same meaning as activity is, is purely dicta. So, and I think that we can even have to reach that issue here, do we? No. Sexual act versus sexual activity? I think that you don't have to reach the issue first on the harmlessness or the failure to show prejudice prong, because this, the jury necessarily found that the defendant had the intent to engage in a sexual act, the same definition that he advocates for for the enticement count. So, it's highly unlikely that the jury found that the defendant intended to engage in the sexual act, but he only intended to entice a minor to engage in some lesser sexual activity. Well, as charged to the jury, I mean the Pennsylvania statute that was violated was in decent contact. Yes. And I think in decent contact it was defined to the jury as any touching of the sexual or other intimate parts for the purpose of arousing or gratifying sexual desire. Act defined maybe it is, you know, in decent contact. Of course, that's not the whole Pennsylvania law, because Pennsylvania law goes much further. Well, that cases that could throw it into, you know, it can be a back shoulder, a leg, it doesn't have to be, and even the word intimate here, you know, what's defined intimate? I know, you know, Judge Smith would give me the definition where you know it when you see it. It's like pornography, but intimate is not free from doubt, but at least as defined to the jury, there's a credible argument that it was sexual activity. Absolutely, and I think that there was the elaboration on the Pennsylvania and decent contact statute that was in the proposed supplemental instruction that was stricken by the district court on the basis of Taylor. That was the part of the instruction that talked about the neck, the face, the back of the legs. In looking at this issue, we have to determine whether the jury instruction was correct, and not whether the Pennsylvania courts have occasionally interpreted it more broadly
. I would argue that even in that broader interpretation, it would still count as such. Well, but the Pennsylvania courts interpretation of their own statute when the term in decent contact is not otherwise defined in the statute is what defines what in decent contact is, right? Yes, and we have to look to what the Pennsylvania courts have said about. It can be with clothing on. It can be. But I think it was also important is it's not just the touching, it's the purposes of sexual arousal. And the reason and in the broader and the enticement statute, we have to look at what the sexual activity is to figure this out. But we can't lose sight of the essence of the enticement statute, and that is enticing, persuading, or engaging a minor to engage in that activity. So we really, I think, or I keep cutting back to my question, even assuming that the instruction could have been done better. Was there, was harmless or? Absolutely, Your Honor. I think the fact that we have, and you know, even if you don't believe it were in plain error, you can still find this harmless beyond a reasonable doubt. And I say that with confidence because of the sexual act instruction on count two. This is a kind of a very rare case in which you actually know that the jury found that the defendant had the intent to engage in a sexual act. You don't have to infer it from the weight of the evidence, which you could also do. But here you have the jury making that finding on count two. If an I don't see count two as being zero or three or four, a seriously challenged here, and then it's just primarily to count one, isn't it? I would agree. I think it's the challenges primarily to the instruction on count one. So your view is that the indecent contact of statutes, subsumed within sexual activity. It is, but it's not coterminous because what is important in the enticent statute is the idea that you're getting the minor to engage in that activity. We're not talking about someone sexual sexual activity statute invites the reader to look at criminal offense, which is understatement. Yes. Yes. And when you do that, you see that indecent contact is indeed your view is sexual activity. Yes, Your Honor. I want to ask you about the propensity evidence. Yes. It does seem to me that bringing in all of that evidence that resulted from the chats and resulted from the evidence that was taken at the scene of the arrest, presenting all of that evidence, would steer a jury to be inclined to convict on the other offenses. Well, you know, I think that goes to kind of the weighing of the evidence, but I... We're talking about the pornography offenses where we're joined together with the travel and enticent charges. Yes. And the idea that the, you know, my opposing council mentioned the Smith case 2013 opinion, where evidence that a defendant was a drug dealer 2008 was not admissible to show his intent in 2010. And that's because the impermissible propensity inference there was that the jury had to draw the inference that because he had... He was a drug dealer in 2008. He was also a drug dealer in 2010. It didn't have to do that here. And this is why the defendant's discussions and expressions of his sexual interest were coterminous with the charged crime. Wouldn't it be more valuable here to talk rather than in the abstract, to talk about the evidence itself? There are three pieces of evidence. I invited Miss Petrofello a couple of times to address each one of those three and try to find differences. And I didn't get very far. So I'll try it with you. First of all, we have the, what is it? Mike and Misty evidence. Would you agree that it differs from the other two pieces of evidence under attack here, in that it does rightly ask a jury to draw a reasonable inference that the 14-year-old GF being referred to is the girlfriended issue in this prosecution? Yes, it is different from that evidence and that it's that reference to the 14-year-old girlfriend is direct evidence. And the evidence of deck is important in giving context. And evidence relevant to intent. Would you agree with that? Absolutely. Would you also agree that in these sorts of cases raising motive is different from raising motive in some other cases, Judge Barry gave a hypothetical regarding a theft case. And I mean, if you were suggesting motive, for example, to commit some kind of embezzlement, you could use this motive evidence that somebody had some very, very deep financial problems. That's motive for committing this embezzlement you needed the money. Here in the child sexual abuse area, we're talking about something completely different. And it seems that what the government's doing is suggesting that his desire for young children on other occasions is proof of motive. That sounds awfully like propensity to me. Well, I guess I think the word motive is going to always be relevant to intent and I think that the difference in child pornography cases between... M motive can certainly support intent, but for purposes of 404B, there are two discrete concepts in the rule. Yes, that's true. And I think that for child pornography or child exploitation cases, propensity..
. And the idea that the, you know, my opposing council mentioned the Smith case 2013 opinion, where evidence that a defendant was a drug dealer 2008 was not admissible to show his intent in 2010. And that's because the impermissible propensity inference there was that the jury had to draw the inference that because he had... He was a drug dealer in 2008. He was also a drug dealer in 2010. It didn't have to do that here. And this is why the defendant's discussions and expressions of his sexual interest were coterminous with the charged crime. Wouldn't it be more valuable here to talk rather than in the abstract, to talk about the evidence itself? There are three pieces of evidence. I invited Miss Petrofello a couple of times to address each one of those three and try to find differences. And I didn't get very far. So I'll try it with you. First of all, we have the, what is it? Mike and Misty evidence. Would you agree that it differs from the other two pieces of evidence under attack here, in that it does rightly ask a jury to draw a reasonable inference that the 14-year-old GF being referred to is the girlfriended issue in this prosecution? Yes, it is different from that evidence and that it's that reference to the 14-year-old girlfriend is direct evidence. And the evidence of deck is important in giving context. And evidence relevant to intent. Would you agree with that? Absolutely. Would you also agree that in these sorts of cases raising motive is different from raising motive in some other cases, Judge Barry gave a hypothetical regarding a theft case. And I mean, if you were suggesting motive, for example, to commit some kind of embezzlement, you could use this motive evidence that somebody had some very, very deep financial problems. That's motive for committing this embezzlement you needed the money. Here in the child sexual abuse area, we're talking about something completely different. And it seems that what the government's doing is suggesting that his desire for young children on other occasions is proof of motive. That sounds awfully like propensity to me. Well, I guess I think the word motive is going to always be relevant to intent and I think that the difference in child pornography cases between... M motive can certainly support intent, but for purposes of 404B, there are two discrete concepts in the rule. Yes, that's true. And I think that for child pornography or child exploitation cases, propensity... the difference between propensity and motive is the difference between wanting to do something. Why did you just say, I don't need motive for purposes of the mic and misty? That's true. I don't need motive for mic or misty or any of you. All right. How about those two pieces of evidence? Because they don't have the same indicia of intent, the reference to the 14-year-old GF that the mic and misty evidence says. Well, I would disagree on that, you're on a respectfully. The Hannah, the in-not Natasha evidence about pursuing sexual... sexually pursuing girls in Canada. He began speaking with Natasha in 2009 at the same time that he was talking to Ashley Anthony. He actually, there are chats in the record that he discusses Natasha with Ashley Anthony. He also discusses Natasha in the mic and misty chats. He says, I have another girl, another one in Canada. I'm going to see her soon, too. So that really is a continuing... He says that to her. He says that to mic and misty. Yes. I've said that to mic and misty. Yes. I think that shows that the fact that he also discusses Natasha in the mic and misty chats shows that that act, that his sexual pursuit of Natasha, began at the same time that he was pursuing Ashley Anthony. So I think it really is... Natasha is... Right
. the difference between propensity and motive is the difference between wanting to do something. Why did you just say, I don't need motive for purposes of the mic and misty? That's true. I don't need motive for mic or misty or any of you. All right. How about those two pieces of evidence? Because they don't have the same indicia of intent, the reference to the 14-year-old GF that the mic and misty evidence says. Well, I would disagree on that, you're on a respectfully. The Hannah, the in-not Natasha evidence about pursuing sexual... sexually pursuing girls in Canada. He began speaking with Natasha in 2009 at the same time that he was talking to Ashley Anthony. He actually, there are chats in the record that he discusses Natasha with Ashley Anthony. He also discusses Natasha in the mic and misty chats. He says, I have another girl, another one in Canada. I'm going to see her soon, too. So that really is a continuing... He says that to her. He says that to mic and misty. Yes. I've said that to mic and misty. Yes. I think that shows that the fact that he also discusses Natasha in the mic and misty chats shows that that act, that his sexual pursuit of Natasha, began at the same time that he was pursuing Ashley Anthony. So I think it really is... Natasha is... Right. Another crime, another incident. Why is it such a propensity? So I think it shows propensity. He is not talking to who is what? 16? She's 14 at the time he begins talking to her when he visits her. She's 16 when he's okay. Okay. That's somebody else. That's another incident. Probably another criminal episode. Why isn't that another criminal episode intended to show his propensity through life and engage in sex with young girls? Like, I'm for a foreb of evidence. It could be used to show propensity. But the reason that it was relevant for a non-prepensity... But if that link of which is to show propensity, then doesn't it have to stay out under our jurisprudence? There is a logical chain of inferences, no link of which is propensity, and that's this. It's that the fact that he was pursuing... He was sexually pursuing Natasha in 2009 means that at that time he had a sexual interest in young girls. And that is the sexual interest he disclaims is his entire defense of the charges in this case. It is. It's evidence of his intent in this case that he has a sexual desire to for 14 years. Didn't he concede that he was meeting her to have contact with her? To be precise, he said he was going to give her hickies under the collar. He said... Is that not in decent contact? That is in decent contact. If it is, why did you meet all that other evidence? Because he claimed... First of all, we had to prove that his intent was to engage in a sexual act. His argument was that he was going to forbear
. Another crime, another incident. Why is it such a propensity? So I think it shows propensity. He is not talking to who is what? 16? She's 14 at the time he begins talking to her when he visits her. She's 16 when he's okay. Okay. That's somebody else. That's another incident. Probably another criminal episode. Why isn't that another criminal episode intended to show his propensity through life and engage in sex with young girls? Like, I'm for a foreb of evidence. It could be used to show propensity. But the reason that it was relevant for a non-prepensity... But if that link of which is to show propensity, then doesn't it have to stay out under our jurisprudence? There is a logical chain of inferences, no link of which is propensity, and that's this. It's that the fact that he was pursuing... He was sexually pursuing Natasha in 2009 means that at that time he had a sexual interest in young girls. And that is the sexual interest he disclaims is his entire defense of the charges in this case. It is. It's evidence of his intent in this case that he has a sexual desire to for 14 years. Didn't he concede that he was meeting her to have contact with her? To be precise, he said he was going to give her hickies under the collar. He said... Is that not in decent contact? That is in decent contact. If it is, why did you meet all that other evidence? Because he claimed... First of all, we had to prove that his intent was to engage in a sexual act. His argument was that he was going to forbear. The fact that she was 14 was an un... This was an act of generosity. He would forbear for having the sex that he loved and missed. He would forbear until the girls... I guess you can still use that word for a 14 year old... became no longer miners. Who they could get to South Carolina or he said they might be able to do something. He wasn't going to forbear on this occasion. He explicitly said he was going to have physical contact. His defense was I would forbear. I think the evidence shows that he truly wasn't going forbear. That is why we win on harmlessness even if we don't get this forbear. How about talking about that? The harmlessness? Let's assume hypothetically that the mic and misty evidence comes in and the other two pieces of evidence should have stayed out. That is just my hypothetical. What do you do then with the harmlessness error? First of all, I would like to point out that in defense... Mr. Hill says we are a library. He says that the trap and standard harmlessness be on a reasonable doubt applies. This is evidentiary error, not constitutional. It is not often that on appeal we are arguing that the credibility issue in harmlessness. So here, Verden is what? What is the standard? The point is that we have to show a high probability that he would have been convicted absent the evidence. We can do that because the actual direct evidence was so strong in this case. Did he really raise the Natasha? No, I think that would be a top standard
. The fact that she was 14 was an un... This was an act of generosity. He would forbear for having the sex that he loved and missed. He would forbear until the girls... I guess you can still use that word for a 14 year old... became no longer miners. Who they could get to South Carolina or he said they might be able to do something. He wasn't going to forbear on this occasion. He explicitly said he was going to have physical contact. His defense was I would forbear. I think the evidence shows that he truly wasn't going forbear. That is why we win on harmlessness even if we don't get this forbear. How about talking about that? The harmlessness? Let's assume hypothetically that the mic and misty evidence comes in and the other two pieces of evidence should have stayed out. That is just my hypothetical. What do you do then with the harmlessness error? First of all, I would like to point out that in defense... Mr. Hill says we are a library. He says that the trap and standard harmlessness be on a reasonable doubt applies. This is evidentiary error, not constitutional. It is not often that on appeal we are arguing that the credibility issue in harmlessness. So here, Verden is what? What is the standard? The point is that we have to show a high probability that he would have been convicted absent the evidence. We can do that because the actual direct evidence was so strong in this case. Did he really raise the Natasha? No, I think that would be a top standard. I don't think it would really be. Yes, I think Natasha should be reviewed for plain error because it was clear in the division of the district court's original decision that the evidence that he pursued minor girls in Canada was... ...going to be decided at trial. I would also say that the argument that it counts as communications that were taken from his phone is a non-starter because... ...first of all, the communications were not entered into evidence. He was asked about them during cross-examination. Second of all, the... ...some of the communications were in 2011 after his phone in laptop had been confiscated in 2009. Is there any from your standpoint for us to decide the conflict? I don't know if you were asked before between the seven circuit and the fourth and the ninth circuit. Well, I guess if you were looking at those opinions broadly and you see the conflict as being... ...is there a sexual act and you feel like
. I don't think it would really be. Yes, I think Natasha should be reviewed for plain error because it was clear in the division of the district court's original decision that the evidence that he pursued minor girls in Canada was... ...going to be decided at trial. I would also say that the argument that it counts as communications that were taken from his phone is a non-starter because... ...first of all, the communications were not entered into evidence. He was asked about them during cross-examination. Second of all, the... ...some of the communications were in 2011 after his phone in laptop had been confiscated in 2009. Is there any from your standpoint for us to decide the conflict? I don't know if you were asked before between the seven circuit and the fourth and the ninth circuit. Well, I guess if you were looking at those opinions broadly and you see the conflict as being... ...is there a sexual act and you feel like... ...then yes, but if you find that it's harmless or that he fails to show prejudice under plain error, you still... We don't even have to find homeless. We, before we found one way or the other on that, we could just assume that the seventh circuit reading was correct... ...and under that as some, even if that was the correct reading, we then move on to the harmless. Yes, you know... You have to decide it. Absolutely, I think that's correct. Is the two of you, thank you very much. Thank you very much, Your Honours. Yes, good problem. Thank you. I'd like to start where we left off and if we assume that the seventh circuit got it right and that Judge Ambrus herself got it right, that sexual activity... ..
... ...then yes, but if you find that it's harmless or that he fails to show prejudice under plain error, you still... We don't even have to find homeless. We, before we found one way or the other on that, we could just assume that the seventh circuit reading was correct... ...and under that as some, even if that was the correct reading, we then move on to the harmless. Yes, you know... You have to decide it. Absolutely, I think that's correct. Is the two of you, thank you very much. Thank you very much, Your Honours. Yes, good problem. Thank you. I'd like to start where we left off and if we assume that the seventh circuit got it right and that Judge Ambrus herself got it right, that sexual activity... ...is no broader than sexual act, then the instruction is harmless because... You will concede for a moment that an act is a singular event whereas activity embraces an act plus... plus more. The idea is we need a definition for sexual activity to adopt the fourth circuit... Do you view the term activity as a sexual activity as a singular event? It can be a plural event, Your Honour, but it has to have meaning. So sexual activity has to, in our view, I would again urge you to adopt the seventh circuit definition, but... But the fourth circuit, it can't just be this... We have trouble understanding sexual activity as a singular one or a event as opposed to... Well, the government's instruction actually says that it's a prostitution or sexual activity for which a person can be charged with a criminal offense. The criminal offense is where sexual intercourse or in-distant Pennsylvania in-distant contact. The judge instructs them in her belief these terms are equal and then she says... ...you can rely on Pennsylvania in-distant contact to satisfy sexual activity. Pennsylvania in-distant contact both can and cannot satisfy the sexual act definition. Which you defined it as a sexual touch shake, right? Of the intimate or sexual parts, correct Your Honour? It's the United States attorney in his closing who goes beyond that and tells them
.is no broader than sexual act, then the instruction is harmless because... You will concede for a moment that an act is a singular event whereas activity embraces an act plus... plus more. The idea is we need a definition for sexual activity to adopt the fourth circuit... Do you view the term activity as a sexual activity as a singular event? It can be a plural event, Your Honour, but it has to have meaning. So sexual activity has to, in our view, I would again urge you to adopt the seventh circuit definition, but... But the fourth circuit, it can't just be this... We have trouble understanding sexual activity as a singular one or a event as opposed to... Well, the government's instruction actually says that it's a prostitution or sexual activity for which a person can be charged with a criminal offense. The criminal offense is where sexual intercourse or in-distant Pennsylvania in-distant contact. The judge instructs them in her belief these terms are equal and then she says... ...you can rely on Pennsylvania in-distant contact to satisfy sexual activity. Pennsylvania in-distant contact both can and cannot satisfy the sexual act definition. Which you defined it as a sexual touch shake, right? Of the intimate or sexual parts, correct Your Honour? It's the United States attorney in his closing who goes beyond that and tells them... Even if you find he's telling you the complete truth and all he intended to do was to come here, hug, kiss and give her hickies, that's Pennsylvania in-distant contact, that's sexual activity at count one, and then he combines it with count two to say... If you find he only traveled to engage in in-distant contact, I'm not going to be able to belabor the point as to why that's also sexual activity at count two. Again, we know that the court view those terms is equal, the parties view them as coextensive and synonymous, so the jury couldn't have differentiated between the two. We can't assume that the jury found that the sex act was an actual touching under the clothing of the genitalia because we don't have a special verdict form. So that's why the erroneous instruction at count one infects count two and requires reversal of both. I should probably add, I'm not going to waste the court's time. Did the district court looking at the 404B issues here? Did the district court engage in any meaningful 403 analysis with respect to any of the pieces of evidence that you challenge? It did not, Your Honor, because all it says is the evidence is prejudicial, but all the evidence is prejudicial. You're contesting intent, and this goes to motive and intent. You know, which he did say that the relevance of the evidence that weighed the prejudicial effect? It's not enough under this court's teaching to just say that you have to engage in a meaningful balancing. Oh, come on. The mic and Mindy, that was during the jury's in the box, this thing is raised then. That's because the government hadn't turned over that to the court for her to conduct the review. To the defendant, but the trial judge admits that she has to actually review that evidence, so that's why it happens at that moment. The mic and Mindy has never mentioned in the pre-trial litigation. That was new. She knows, so she, but the defendant had it since May 1st, and you're a trial, and I think it was June 17th. And this is the first time it's presented to the defendant. I'm just saying, she went through the steps correctly. Maybe she could have put a little more meat on their bare bones, but you got a jury in the box. You have this belated offer, and she went through the steps respectfully, Your Honor. The evidence is all prejudicial, but it's a prejudice of truth, but it's not unfairly prejudicial under 403. And she is right. I'm sorry. Go ahead. Under 404 be the reason it's unfair. Of course, it's prejudicial. The reason that's unfairly prejudicial is because it lures the jury into deciding guilt not based on these communications with Ashley Anthony
... Even if you find he's telling you the complete truth and all he intended to do was to come here, hug, kiss and give her hickies, that's Pennsylvania in-distant contact, that's sexual activity at count one, and then he combines it with count two to say... If you find he only traveled to engage in in-distant contact, I'm not going to be able to belabor the point as to why that's also sexual activity at count two. Again, we know that the court view those terms is equal, the parties view them as coextensive and synonymous, so the jury couldn't have differentiated between the two. We can't assume that the jury found that the sex act was an actual touching under the clothing of the genitalia because we don't have a special verdict form. So that's why the erroneous instruction at count one infects count two and requires reversal of both. I should probably add, I'm not going to waste the court's time. Did the district court looking at the 404B issues here? Did the district court engage in any meaningful 403 analysis with respect to any of the pieces of evidence that you challenge? It did not, Your Honor, because all it says is the evidence is prejudicial, but all the evidence is prejudicial. You're contesting intent, and this goes to motive and intent. You know, which he did say that the relevance of the evidence that weighed the prejudicial effect? It's not enough under this court's teaching to just say that you have to engage in a meaningful balancing. Oh, come on. The mic and Mindy, that was during the jury's in the box, this thing is raised then. That's because the government hadn't turned over that to the court for her to conduct the review. To the defendant, but the trial judge admits that she has to actually review that evidence, so that's why it happens at that moment. The mic and Mindy has never mentioned in the pre-trial litigation. That was new. She knows, so she, but the defendant had it since May 1st, and you're a trial, and I think it was June 17th. And this is the first time it's presented to the defendant. I'm just saying, she went through the steps correctly. Maybe she could have put a little more meat on their bare bones, but you got a jury in the box. You have this belated offer, and she went through the steps respectfully, Your Honor. The evidence is all prejudicial, but it's a prejudice of truth, but it's not unfairly prejudicial under 403. And she is right. I'm sorry. Go ahead. Under 404 be the reason it's unfair. Of course, it's prejudicial. The reason that's unfairly prejudicial is because it lures the jury into deciding guilt not based on these communications with Ashley Anthony. That's your order. That was on it. But it's luring them to when it convicted to write this previous wrong. He had sex with the minor. It's the words out of his mouth. I confess, I admit I had actual sex with a 13-year-old. So whatever you think he did now, whatever intent you think he acted with, you can never take that drop of ink out of the glass of milk. He admit I had sex with a 13-year-old, not just once, but over a period of months. That's why it's not simply just prejudice and propensity. It's luring the jury to decide guilt based on that bad act that he was never brought to justice for. Thank you very much. May I just add whether or not you agree with the trial issues? There's also the jury. I'm sorry, the guideline error. Yes. The improper grouping. Okay. That's just it, Your Honor. That the grouping error requires a new sentencing, whatever you decide on the sentencing errors. But we do, of course, ask for a new trial and all counts. Thank you, Your Honor. I've never heard the, you can never remove the drop of ink from the glass of milk, matter four before. Maybe. It's in one of your cases. I'm just going to see. Well, obviously I forget things that I read. He's the author of. I hope not. I'm not sure that you're the author, but it is a third-circuit of things. We care very much about milk up in my eye. Part of the state. None of us have ever heard of
. By the way, just personally, I think the brief in the arguments great, but the briefs were very good. Oh, thank you very much. Thank you. Thank you