Legal Case Summary

Ms. Brent. May it please the court. Good morning, Your Honors, Fran Pratt, and Philencia Roberts on behalf of the appellant Philip Sebel. Your Honors Philip Sebel was charged and convicted of making a notice seeking to receive child pornography during a six-week period in early 2010. Fran, in convicting him of his charge, the district court relied on two sets of documents that are deroniously admitted under Rule 404B. The court gave five reasons for convicting Mr. Sebel, three of which relate directly to the 404B evidence, and they are, and I'm referring or quoting from pages 261-362 of the joint appendix. First, that the pamphlet or flyer is very similar in writing to other items which are clearly, pretty clearly linked to Mr. Sebel. Second, that the content of the flyer is similar to his other works. And third, that a book belonging to Mr. Sebel found in his cell contained, quote, a secret compartment in it just like the greeting cards. Given these findings, it is clear, I think, that the emission of his 404B evidence armed Mr. Sebel in lead to his conviction. I plan to focus this morning on why this Rule 404B evidence was improperly admitted, and if time allows, I'll also try to address Mr. Sebel's sentence. And you are, you are continuing that with regard to all five of the letters not to any specific ones. We argue that all five pieces of evidence were runniously admitted under 404B, yes. You do not acknowledge that at least three of them seem to go to questions of identity, pretty clearly. Arguably, they all go to identity, but we also argue that under 404B, that there should be a higher degree of relevance under that portion of the 404B test before evidence used to show identity. I agree for identity as a basis of 404B. Yes. When he has said that he could, he's pointed to this other fellow who's an inmate and say, oh, no, that's, if not said directly, maybe imply, was me, it was really him. And then so now you come in with the series of letters, and I probably see where you're going, at least in terms of the children books, the letters on that, the other three. It seems to give some indication, okay, this isn't just your inmate here, this is you. There's no question, Judge, when that the primary purpose of this evidence was to establish Mr. Sebel as the culprit

. But I think what cases have shown is that when evidence comes in under Rule 404B to show identity, that it really needs to amount to essentially a signature or a modus operandi. And we contend that the pieces of evidence that issue here are just too different from the conduct that is charged. And the conduct that is charged, keeping in mind exactly what that is, is critical, I think, in this case. Because Rule 404B has to relate the evidence coming in under it to the crime charged. It can't just come in because of some general type of relevancy. It has to relate to tie directly to the crime charged in the crime- Well, but identity, criminal agency, is an issue in every criminal case. It is, Judge Davis. So it's admitted to prove identity, it's admissible in any criminal case, provided all the other requirements are satisfied. Identity is always at issue, but it's a question of to what degree. Not sure I follow that. Rule 404B evidence can come in to show any number of things. In most cases, there's not a question about identity. So identity is in there as kind of a preliminary thing. And the government would have to show that in fact it's the defendant, you know, who supposedly committed this other act, as a preliminary to getting it in. But here, because the primary purpose is to show identity, the other purposes, the balance is reverse, the other purposes really aren't at issue in the way that identity is. I'm having some difficulty following the training of your argument. Okay, well, I'm. This is different from say a typical drug case where the question is, did the person intend to distribute drugs? Well, that's not identity. That's that's mens rea as to a specific intent. But my point is your honor that the government can't bring in evidence of that other acts if they haven't actually shown that the defendant is that person involved with that other act. Oh, I see a point. Okay. You know, I mean, is that it really is not identity really evidence. I'm sorry. It's really not a identity evidence. It's not to identify, but it's to connect him with similar type documents. It is

. And I'm perhaps you think I'm using identity to loosely, but it's in the. The same kind of thing if you have somebody who commits a bank robbery and they do it with a very specific way they wear a particular kind of cap that's very distinguishable. And the person is saying that well, you know, I didn't know, I had that cap, but I wasn't wearing it. You know, I'm not the one committed that bank robbery, but then there's evidence come in of somebody else wearing that exact same cap in a time period close to the charge robbery. That I think would be an example of a signature kind of crime that would allow that other robbery to come in to show that the defendant committed this robbery. Right. And I hope that's an example that makes sense. And but even if there's not a higher standard, even if the court doesn't want to find that when evidence is used primarily for identity that the other evidence has to really establish some sort of a signature crime, even under kind of the standard 404 B test for rail events, which depends on similarity and timing. Here, these other documents just are not similar enough and are too far removed in time to qualify in under 404 B. But maybe not similar in terms of being exactly the same, but we're talking in the instance with what bland was, was it a flyer? It was a flyer. It's referred to as a flyer under the terms of the statute. It's a notice seeking to receive a bi-child pornography. And so he says, you know, I had nothing to do with that. I was bland. Basically, I don't do that sort of thing. So because I'm not the person that do that. And then he has these letters and these letters all deal with new children. I mean, you got the same kind of thing going on here. And he's done it. It was seen, I mean, when you're dealing with relevance, I know you say it's hyphen in terms of identity. But identity, when we're talking about, is it the same person identity in terms of signature is whether what you are saying this is is what it is. And you got a hand right next, but says, oh, he wrote, he's not contesting that those letters. Right? I think at this point, no. So those are his letters. That part of that part of the scheme is it. And then you got this flyer. He's the low note

. That's not me. And they're saying it is. And so we're getting into it's not all the evidence, but at least it shows something, doesn't it? I mean, it may, but I think what this may boil down to is just how similar it has to be. And again, leaving aside an argument that specifically for identity, it should be an even higher standard. I think these still are just too different. And if you look at some of the drug cases recently in which this court has actually found rule 404B evidence to be improperly admitted. Those again, I think could be said to be similar. And yet this court has said that that evidence should not have come in. That it can't be simply somebody trying to, you know, having some overall scheme to try to get, you know, whether it's child pornography or get drugs. It's got to be more similar than that. And especially the further away in time it goes. And that's why the Macrary documents and in particular the two book requests just are so clearly different from what is going on here. In those documents, he simply was asking for general information about two books. And they were, you know, about three and a half years before this charged conduct. I mean, those to me are very clearly not admissible under 404B. And yet the district court not only admitted them, but relied on them in saying that they are similar, you know, that this flyer is similar to his other works while those book requests are part of his other works. Um. Would the court let me do address the sensing issue or do you have other questions about the 404B? You can argue anywhere you want. We'll interrupt if we have a question. Okay. Um, as to the 2008 greeting cards, the government has argued that those are intrinsic to the offense. We take and if they are intrinsic, then of course, rule 404B wouldn't even apply. We contend that they are X-transic. To be intrinsic, the evidence would have to be either inextricably intertwined or the acts part of a single criminal episode or necessary preliminaries to the crime charged. And that takes me back to one of my earlier points. What is specifically charged here matters. The government did not charge him with the 2008 documents

. The government did not charge him with any of the other documents found in the box. The Mr. Blande was taking out of prison. The government charged him very specifically only with the creation of this particular flyer. And I think I, that's very significant. And it makes this case very different from other cases. For example, in this case, this court's recent Otooya decision from this summer. In that case, the indictment charged a conspiracy over a about a year and a half period. That opens up much more evidence to potentially being intrinsic. But here you've got documents from 14 months earlier with absolutely nothing in between during those 14 months to show that there were any other documents. And the government is contended that the interception of those documents instigated the Bureau of Prison's investigation into Mr. Sebald. Well, the Bureau of Prison's officials testified that, you know, so far as one of them, Heather McGulium's knew that that investigation never went anywhere. And certainly there's no evidence that the Bureau of Prison's intercepted anything else in those 14 months that Mr. Sebald was trying to either have come into him or go out. So I think given that other complete absence of evidence that those December 2008 documents are not intrinsic to this offense and must be considered under rule for O4B itself. Well, both parties agree that this seems to, this is going to need to be remanded for sentencing. Yes, the government agrees that we had raised two sentencing issues, one about criminal history and one about offense level calculation. The government has conceded on the criminal history calculation and agreed that this case should go back for sentencing. We would like the court to consider our legal argument that we made about the distribution enhancement, but if the court doesn't want to do so, we then would still ask that the district court be allowed to reconsider the factual argument about whether the images constitute child pornography because the district court gave no indication of what legal standard it was applying in concluding that some of these images constitute child pornography. And the two level enhancement makes a big difference in its guideline range that will impact on a final sentence on the sentence ultimately selected. Basically, you're saying you don't have to reach the sentencing. You just want to say something to the district court that you can consider all issues back when you recent us. We would request a remand for a general resentencing, denove a resentencing so that the district court could reconsider the distribution enhancement. All right. Thank you, Mr. Chair

. So, John Stone. Thank you, Your Honor. Please, the court. My name is Tommy Johnston. I'm here on behalf of the United States. And with respect to the 4-4-B evidence that the defendant is challenging, the government has continued from the very beginning that all five pieces of evidence that were admitted are intrinsic to the charged offense. And in thinking about that, the record shows that- What does that mean in intrinsic to the charge of offense? Well, I'm sorry, Your Honor. What does that mean? You got a flyer on one hand and then you got three letters and you got two more letters of these books. Yes, Your Honor. What's that intrinsic? In thinking about the intrinsic nature of the additional documents, the package that the defendant gave to Randall Blande, consisted of envelope box that was stuffed with envelopes. And within those envelopes were sealed the flyer, which was the basis of the charge, as well as numerous other form letters to book publishers requesting books, things of that nature, as well as an individual letter to Kestie, who was the address- who was the sender of one of the letters in December of 2008. So in looking at what was in the package and comparing it to all of these other documents, it's clear that the defendant was engaged in a long term plan to secrete nude photographs or photographs of children into VIP facilities. Is that required to have any photographs at all for the offense charge? I'm sorry, Your Honor. Are graphic depictions required for the offense charge? No, Your Honor. No, not at all. So you could very well just say in wonderful prose. I would like to have child pornography, anybody that has any please send it to me. Period. Correct. That would be that would be chargeable under the statute. I will point out the defendant went much farther. So by graphic depictions intrinsic to the crime charge. Well, the five pieces of evidence that were introduced from FCM Macreary and from December of 2008 were not graphic depictions. They were letters in and of themselves. They're intrinsic in the fact that they are all part of the defendant's plan to secrete nude photographs of children or photographs of children into VIP facilities. And I would at least that charge with planning. Is he? No, he's charged with soliciting child pornography via this flyer

. And so, but I still think the flyer is just the latest installment in this plan. But even if the court finds that the piece of evidence are not intrinsic, they're still admissible under 404b as the district court found. The district court did not accept your argument that they were intrinsic. Ultimately, the district court found that they were a miss one or 404b. And the government would submit that in addition to identity, the pieces of evidence were admitted to show the defendant's intent and knowledge and that he did have this plan. Some of these pieces of evidence go to his plan and his preparation. And I think what's important to note with respect to similarity is that the defendant is actually asking this court to hold that the items admitted under 404b have to be essentially identical to the charged flyer in this case. And a review of the case law in this court. I don't think that's the argument. Well, if in the brief, your honor, the defendant breaks it down almost into a granular fashion and says, you know, this letter was handwritten, this letter was photocopied, this letter was, you know, OK, but perhaps again, you can present your argument. I would be interested in hearing, I guess, why it's admissible. In other words, rather than focusing on the defendant's arguments as to why it's not admissible, it would be helpful to me if he told me why it was admissible. Sure. The evidence is admissible under 404b to show intent, knowledge, plan preparation. Yeah, it wasn't charged with a plan. He wasn't charged with a scheme. So I'm really hung up on why you keep mentioning plan. Well, I think that all of these planning charge all of these issues, such as knowledge and intent and the plan go to identify the defendant as the creator of this flyer. And as the court noted during the defendant's argument, the defendant's sole defense was I didn't do this fire, Randall Blanned did this flyer. So by the way, how did Randall Blanned testify on that point? Mr. Blanned said that the defendant gave him this sealed box. He did not know what was in it. He did not know it was in it. The envelopes were addressed, sealed, and the box was sealed up. And the defendant simply told him, hey, when you get out, drop them in the mail. OK, so the defendant's defense is, I don't know anything about that box, didn't give it to him. I didn't do it

. Correct. OK, the defendant's sole defense was to imply that Randall Blanned was the creator of this. The question is, who created the advertisement? Yes, sir. Which is a single document, right? Yes. Front and back. Front and back. Front had a pay scale, basically the request, the back had a collage of images of the Andron sketches. So who created that document? Yes, sir. That was the issue at trial. So the five pieces of evidence are immiscible under 440b because they meet the four prongs articulated in Queen. They're relevant to the charge of defense. They're necessary in the sense that they are probative as to an essential claim or charge of the defense. They are reliable and they have no undue prejudice on the defendant. And so I think with respect to the similarity argument that the defendant has raised and the level of similarity that is required, I think it's important to note that. In the case law from this court, there are multiple ways in which acts can be similar. For instance, acts can be similar and that they use the same methods to accomplish a certain thing or that they use slightly different methods, but the intent or the end result is similar. And I think that we have both in this case. We have similar methods in that the defendant was consistently using correspondence sent through the mail to request photographs of children or nude photographs of children. And he may have tweaked that slightly, but by and large, that was his method of operation was request to pinpals through the mail for these types of images. We also have similarity in intent. And while the defendant says that the letters are not the same because some go to books and some go to people and some are for money and some are not. But the intent of his actions was the same and that it was to secrete the images into this prison. And I think the course decision in Horn's B is the lustre of that. And in Horn's B, the defendant was charged with instructing a support, a subordinate to destroy some computer data to conceal some evidence. The prior bad act of the government wanted to introduce was the defendant instructing the employee to burn some documents. So whereas the methods were dissimilar, the intent of those methods was the same, the concealment of evidence. And I think in this case, while the five piece of evidence admitted in or for for B may not have been exactly the same or identical to the charged flyer, the intent of those of those piece of evidence was the same

. Also as to necessity, this court is held in rooks that evidence is necessary if it is simply probative of a claim that has been charged by the government. It doesn't have to be critical to the government's case to be a mess. What just needs to be probative as to an issue that must be proven at trial. In this case, it was probative as to identity. The defendant was saying this is not me that did this. And so the government had to prove the creator of the flyer was the defendant. And so under that standard, the evidence was necessary. And what exactly was the nexus between the 404B documents and the advertisement? You speak an S2 reliability? S2 reliability. So the government has outlined about eight pieces or eight in this year of reliability as to each of these documents as a whole. I will say that the FCM Recreary, the two letters to the book publishers, they contain the defendant's name, the defendant's BOP registration, Mercedes Carroll, who was in charge of monitoring the defendant's mail at FCM Recreary. Testify that she had reviewed two to three letters or correspondence from the defendant per week while he was at FCM Recreary. And she recognized that as his writing. The candy brown letter referenced a, it was a request to a candy brown, whoever that may be, offering to pay candy brown for images of chronography. It included the defendant's name, the BOP registration, and as well, Ms. Carroll testified that she recognized the defendant's handwriting. And that's the connection to the flyer? Yes, Your Honor. In the sense that there's a nexus to the flyer with the structure of the candy brown letter because the defendant is using his name to request new damages in exchange for payment. Her name on the flyer? Her name is not on the flyer, but his name is on the flyer. Fill is on the flyer. And fill up C-Bolt with this BOP registration number is on the candy brown letter. With respect to the December of 2008 letter. You didn't need that to prove that. You just the flyer itself. You said that's his name, right? Well, but your Honor, within the context of the flyer, Randall Blande was also implicated in that. He should be, I mean, he had it. Not only did he have, he had it. Not only did he have the flyer in his possession, but the return address that the defendant used on the flyer was fill care of Russell Cain, which is Randall Blande's stuff

. Why, then therefore you're making my case. Why did you need the other stuff? Because it linked the defendant to these other attempts in which he intended to secrete. But we don't want to connect just bad conduct. That's what we're trying to avoid, right? Yes, Your Honor, it wasn't admitted simply for the propensity to commit such a crime. It was admitted to show that he had the intent to do it before. Well, that's part of the game under 4-4-B. It's never admitted for propensity. I'm sorry, Judge Greg. I didn't mean to interrupt, but I guess this is a particular irrelevant. When was the jury trial waiver accepted by the district court? The defendant waived jury, I want to say weeks probably months before the venture. It was that for a venture trial early on. Okay, so this was never, of course, he could always change his mind and the judge could exercise discussion. But this was really never going to be a jury trial. Correct. And I guess I'm a little puzzled. You didn't want to go to trial. That is the government. Didn't want to go to trial only on the testimony of Mr. Blam. Is that how this all shakes out? Correct. I think if you look at the number... You had inmate A saying inmate B did it and inmate B saying inmate A did it. Right. And I think if you look at the non-4-4-B evidence in this case, we had the flyer itself, which did implicate the defendant by name of Phil. You had fingerprints off of it, by the way

. I know you're on it. No, okay. Also, the back of the flyer, they contain the collage and the hand-drawn sketches of the children's in Italian. Those, the actual color images and the hand-drawn sketches were recovered from the defendant's cell. And Scott Bernardo from FCUP, Peter's work, testified that they were in a book, in a hard-backed book, with a defendant's name all over it. And they were in a hidden compartment that had been glued to the back of the book. Right. And when the defendant's blocker... Did you try to get fingerprint evidence? Not to my knowledge, Your Honor. Why not? Because the key would be whether or not the other fellow's fingerprints on it, because it shouldn't be, because he said I didn't know what was in it. Yeah, you're sure. I do not know the reason why fingerprints were not tried to be... They didn't try to obtain it. That was like you need some training at FCI. Maybe so, Your Honor. Maybe so. And I think, and then of course, not for for B, would be Randall Blanc saying, I didn't have anything to do with this, Phillip Sebel gave this to me. And while that would have been sufficient for a conviction in trial, I don't think the government's required to take that risk. Nothing under the case law says that we are required to take the risk that the trial or fact, whoever that may be, would find that evidence to be sufficient. When we have this other evidence, which is relevant and reliable, that goes to these other issues such as intent and identity. And so that is why the government proceeded to introduce this evidence and the court rightfully admitted it. And yet you don't argue harmless error here. Well, Your Honor, I would say that it would be harmless. Even it... But you don't argue that. I did not argue in the brief, but... And you can't argue it here. Fair enough, Your Honor. But I would say that the district court did find it make a credibility finding of Randall Blanc. But of course, that was after the fact. And the government didn't know that before trial started. Which is why we attempted to... Very unusual situation. It really is. By the way, and I meant to ask Miss Pratt this question, but are you aware of any court, either this one or any other circuit court that has reversed a conviction? Under 404 B in a non-Jerry trial after a trial? No, Your Honor. I mean, that would be pretty remarkable. Right. And in fact, Your Honor, this court, particularly in the civil context, has said the 430B is a useless procedure in the civil context. And I would point out that in the Hassan Zadid case in front of the court, which was a criminal trial, the defendant or the court did not go so far as it said 430B or 430B, I'm sorry, is a useless procedure. But it did say and give strong endorsement that a district court could be able to separate any passions or inflammatory material from the findings of fact. And I would also point out to Your Honor that this wasn't been trial obviously. But the 440B evidence that the government was introducing was at worst as severe as the crime charge. But most of the 440B evidence was less severe. It was less sensational than the crime that was charged, particularly the formletters from FC Yammer Careery

. Even it... But you don't argue that. I did not argue in the brief, but... And you can't argue it here. Fair enough, Your Honor. But I would say that the district court did find it make a credibility finding of Randall Blanc. But of course, that was after the fact. And the government didn't know that before trial started. Which is why we attempted to... Very unusual situation. It really is. By the way, and I meant to ask Miss Pratt this question, but are you aware of any court, either this one or any other circuit court that has reversed a conviction? Under 404 B in a non-Jerry trial after a trial? No, Your Honor. I mean, that would be pretty remarkable. Right. And in fact, Your Honor, this court, particularly in the civil context, has said the 430B is a useless procedure in the civil context. And I would point out that in the Hassan Zadid case in front of the court, which was a criminal trial, the defendant or the court did not go so far as it said 430B or 430B, I'm sorry, is a useless procedure. But it did say and give strong endorsement that a district court could be able to separate any passions or inflammatory material from the findings of fact. And I would also point out to Your Honor that this wasn't been trial obviously. But the 440B evidence that the government was introducing was at worst as severe as the crime charge. But most of the 440B evidence was less severe. It was less sensational than the crime that was charged, particularly the formletters from FC Yammer Careery. And so this court has held in buyers and in boy that if the 440B evidence is not as severe or is less sensational than the crime charged, then there is no 433 problem, even in a jury context. But of course here we have a jury drop. If there are no other questions on 440B, I'll just address the sinencing issues briefly. With respect to the 4B 1.5 enhancement to criminal history category, in light of the Supreme Court's decision in discamps, as well as this court's recent decisions in Montess Flores, and in Hemingway, the government looked at the issue. And while we do have a divisible statute in this case, there are alternative means to violate this statute. We do not have any shepherd approved source such as a plea agreement, a statement of facts, or even the indictment in this case to point to to say that a defendant was convicted because of production of chopper and rp. not trafficking in or receipt of chopper and rp. And because of that, because the crime charge cuts more broadly than the definition of coverage sex crime in the guidelines, the government would concede that the enhancement to the defendant's criminal history category was in error. And so we would ask that it be remanded for that to be adjusted. As for the distribution, the government contends and asserts that that enhancement was proper and that the district court was correct in applying that two point enhancement. Why don't we just let the district court deal with it all when we send it back? You certainly could do that, Your Honor, but I would point out that when the defendant raised his objection to the two point enhancement, the district court initially said, I'm going to overrule that objection for two reasons. And his first reason was because the report on graphic images on the back of the flyer and then second reason had to do with the distribution in the sense that the defendant almost received an image of chopper and rp. And the government said, well, that's not it. The government can see that's the defendant's receipt of chopper and rp. was not a basis for the enhancement, but the images on the back of the flyer are. And later in the sentence, which images, well, there are at least three images on the back of the flyer and just to be clear on the government is not talking about the hand drawn sketches and the government made that clear at synancing that the hand drawn sketches while they are of children's genitalia are not chopper and rp. under the statute because they're not actual children. But there are three images within the collage itself, which are not from reputable magazines. I think it's pretty clear if you look at them. Reputable magazine, national geographic or anything like that, which is what the defendant argued. Oh, has to be reputable magazine. Well, you know, that was probably misspeaking on my part. But if you spoke exactly how people think that it's a book with Rembrandt, so Renaissance, you know, what's it is okay? You've been through our galleries have you not? Yes, sir. I'm sure you've seen new children have you. Yes, sir. The government hasn't asked to have them pull down

. And so this court has held in buyers and in boy that if the 440B evidence is not as severe or is less sensational than the crime charged, then there is no 433 problem, even in a jury context. But of course here we have a jury drop. If there are no other questions on 440B, I'll just address the sinencing issues briefly. With respect to the 4B 1.5 enhancement to criminal history category, in light of the Supreme Court's decision in discamps, as well as this court's recent decisions in Montess Flores, and in Hemingway, the government looked at the issue. And while we do have a divisible statute in this case, there are alternative means to violate this statute. We do not have any shepherd approved source such as a plea agreement, a statement of facts, or even the indictment in this case to point to to say that a defendant was convicted because of production of chopper and rp. not trafficking in or receipt of chopper and rp. And because of that, because the crime charge cuts more broadly than the definition of coverage sex crime in the guidelines, the government would concede that the enhancement to the defendant's criminal history category was in error. And so we would ask that it be remanded for that to be adjusted. As for the distribution, the government contends and asserts that that enhancement was proper and that the district court was correct in applying that two point enhancement. Why don't we just let the district court deal with it all when we send it back? You certainly could do that, Your Honor, but I would point out that when the defendant raised his objection to the two point enhancement, the district court initially said, I'm going to overrule that objection for two reasons. And his first reason was because the report on graphic images on the back of the flyer and then second reason had to do with the distribution in the sense that the defendant almost received an image of chopper and rp. And the government said, well, that's not it. The government can see that's the defendant's receipt of chopper and rp. was not a basis for the enhancement, but the images on the back of the flyer are. And later in the sentence, which images, well, there are at least three images on the back of the flyer and just to be clear on the government is not talking about the hand drawn sketches and the government made that clear at synancing that the hand drawn sketches while they are of children's genitalia are not chopper and rp. under the statute because they're not actual children. But there are three images within the collage itself, which are not from reputable magazines. I think it's pretty clear if you look at them. Reputable magazine, national geographic or anything like that, which is what the defendant argued. Oh, has to be reputable magazine. Well, you know, that was probably misspeaking on my part. But if you spoke exactly how people think that it's a book with Rembrandt, so Renaissance, you know, what's it is okay? You've been through our galleries have you not? Yes, sir. I'm sure you've seen new children have you. Yes, sir. The government hasn't asked to have them pull down. Yes, sir. Why not? They knew. They're not actually they're not actual children. Because they're not actual children. But they're paintings. But actual child posed. Isn't that the same thing you use? Same thing then. If you the subject of the art, you certainly wouldn't say that's not child pornography. If someone had a child posed and they painted them, would you? Your honor, I think under the legal definition of chop and arpe it has to be an identifier, a minor in the charged image or painting. So while you may be able to be charged that person. I wouldn't look at it as long. It takes call worldly out of the full circuit, but not to that. Yes, sir. Not to that commended to you, but. Yes, your honor. You might look at that. But go ahead. But with respect to the three images in the collage, the district court itself referenced one in the lower right hand corner had to do with a nude female who is straddling the leg of an adult male. The government reference that's that's what I want. The government is a pornographic. Yes, your honor. The government was that that's pornographic. What her general is exposed. And to the camera, the government pointed to. She's new. So yes, your new to T is meets the standard. New to the not in itself does not meet the standard, but there needs to be a leg meets the standard

. Yes, sir. Why not? They knew. They're not actually they're not actual children. Because they're not actual children. But they're paintings. But actual child posed. Isn't that the same thing you use? Same thing then. If you the subject of the art, you certainly wouldn't say that's not child pornography. If someone had a child posed and they painted them, would you? Your honor, I think under the legal definition of chop and arpe it has to be an identifier, a minor in the charged image or painting. So while you may be able to be charged that person. I wouldn't look at it as long. It takes call worldly out of the full circuit, but not to that. Yes, sir. Not to that commended to you, but. Yes, your honor. You might look at that. But go ahead. But with respect to the three images in the collage, the district court itself referenced one in the lower right hand corner had to do with a nude female who is straddling the leg of an adult male. The government reference that's that's what I want. The government is a pornographic. Yes, your honor. The government was that that's pornographic. What her general is exposed. And to the camera, the government pointed to. She's new. So yes, your new to T is meets the standard. New to the not in itself does not meet the standard, but there needs to be a leg meets the standard. What is it? The need what the the determine whether not something is is pornographic in that this little serious exhibition and nudity. The courts often looked at what's known as the DOS factors which takes into account the context of the image whether not the general is the focus of the image whether the child is nude or partially nude. Whether the child is posed in a provocative manner or clothed in an entire that is inappropriate for their age, things of that nature. And so that image I think would would qualify as that because the generals are exposed if I may have time to respond to your question. Well, go ahead. The government reference an image on the on the left side of the floor which is an male infants general which is the sole focus. There is nothing else besides the male. We will answer the question that we will end up with this unless my dear colleagues have this question. You learned a colleague on other side says that court didn't articulate exactly what standard was being used. Can you address that? That's why we are to send it all back. For the sentence. Yes, Your Honor. Well, the district court did make the finding or did make the statement that it was overruling the motion because there were pornographic images on the back of the flyer. It's rather conclusive or the front of the flyer. He didn't know. Specifically saying I find that that is pornographic because of the generals being exposed or another factor that district court didn't make a specific finding as to that. But the district court did make that first statement and then did reference the photograph in the lower right hand corner and the government reference the image halfway down on the left of the male infants to tell you. So I think based on that and based on the fact that the defendant sealed these things up put them in envelopes, addressed them and gave them to blend to mail out that would that would constitute any real any act related to all letters. I don't see all my letters too. Yes, Your Honor, but that would be that would be the act related to the transfer of material which would which is required on the guidelines. So that's how they could the guideline would apply. If they're not for the questions, I would. I have one last question. I want to go back just as relevance part of four four B. Three of the letters one in March of 2007 and two in December of 2008 involved solicitations for explicit material. But two of those documents, the July letters were specific requests for books about children. And they didn't mention child nudity just asked for books generally whether they contain photos and illustrations

. What is it? The need what the the determine whether not something is is pornographic in that this little serious exhibition and nudity. The courts often looked at what's known as the DOS factors which takes into account the context of the image whether not the general is the focus of the image whether the child is nude or partially nude. Whether the child is posed in a provocative manner or clothed in an entire that is inappropriate for their age, things of that nature. And so that image I think would would qualify as that because the generals are exposed if I may have time to respond to your question. Well, go ahead. The government reference an image on the on the left side of the floor which is an male infants general which is the sole focus. There is nothing else besides the male. We will answer the question that we will end up with this unless my dear colleagues have this question. You learned a colleague on other side says that court didn't articulate exactly what standard was being used. Can you address that? That's why we are to send it all back. For the sentence. Yes, Your Honor. Well, the district court did make the finding or did make the statement that it was overruling the motion because there were pornographic images on the back of the flyer. It's rather conclusive or the front of the flyer. He didn't know. Specifically saying I find that that is pornographic because of the generals being exposed or another factor that district court didn't make a specific finding as to that. But the district court did make that first statement and then did reference the photograph in the lower right hand corner and the government reference the image halfway down on the left of the male infants to tell you. So I think based on that and based on the fact that the defendant sealed these things up put them in envelopes, addressed them and gave them to blend to mail out that would that would constitute any real any act related to all letters. I don't see all my letters too. Yes, Your Honor, but that would be that would be the act related to the transfer of material which would which is required on the guidelines. So that's how they could the guideline would apply. If they're not for the questions, I would. I have one last question. I want to go back just as relevance part of four four B. Three of the letters one in March of 2007 and two in December of 2008 involved solicitations for explicit material. But two of those documents, the July letters were specific requests for books about children. And they didn't mention child nudity just asked for books generally whether they contain photos and illustrations. What is the relevance of those two? The relevant one would be the request for images or illustrations of children and it also relates to children's books just regular books. Well, I think with pictures, but nothing asked for anybody knew. Yes, letters, but I think the request was for books that have yeah, that have pictures of children in them. And the reason why that also relates to the charge of events is based on what was found adjacent to the flyer in the envelope box, which was the which were the form letters to book publishers requesting very similar books pamphlets, newsletters related to images or illustrations of children. Those letters that were recovered in February 2010 in the omelibox blank copies of those form letters were also found in the defendant's cell with the images and things that he possess. So that would be the connection between the two book publisher letters from FCM career. Okay, thank you. Thank you. All right, thank you. Miss Brad, you have some time left. Thank you. I would like to try to address three points with respect to the rule 404B first necessity, second long term plan, and then third bench trial as to necessity. Judge Gregory, I think you asked a very good question. This other evidence was not necessary. What was necessary, we contend, is a known exemplar of Mr. Sebal's handwriting. The government never subpoenaed him for that. They never went, for example, through the Bureau of Prison Records to find something like a grievance that would be indisputably in his handwriting. This would be such an easy case if they had done that and we wouldn't be here today. In terms of the long term plan and the government has contended in the district court in its brief and now that Mr. Sebal has this long term plan to secrete photographs into prison and that this is just the latest installment. That's dangerously close to propensity. These and the details make the difference here. These are different plans. I know the Macrary documents and particularly these two book requests. Those are just two different from what is actually charged here. And those are very clearly erroneously admitted under 404B

. What is the relevance of those two? The relevant one would be the request for images or illustrations of children and it also relates to children's books just regular books. Well, I think with pictures, but nothing asked for anybody knew. Yes, letters, but I think the request was for books that have yeah, that have pictures of children in them. And the reason why that also relates to the charge of events is based on what was found adjacent to the flyer in the envelope box, which was the which were the form letters to book publishers requesting very similar books pamphlets, newsletters related to images or illustrations of children. Those letters that were recovered in February 2010 in the omelibox blank copies of those form letters were also found in the defendant's cell with the images and things that he possess. So that would be the connection between the two book publisher letters from FCM career. Okay, thank you. Thank you. All right, thank you. Miss Brad, you have some time left. Thank you. I would like to try to address three points with respect to the rule 404B first necessity, second long term plan, and then third bench trial as to necessity. Judge Gregory, I think you asked a very good question. This other evidence was not necessary. What was necessary, we contend, is a known exemplar of Mr. Sebal's handwriting. The government never subpoenaed him for that. They never went, for example, through the Bureau of Prison Records to find something like a grievance that would be indisputably in his handwriting. This would be such an easy case if they had done that and we wouldn't be here today. In terms of the long term plan and the government has contended in the district court in its brief and now that Mr. Sebal has this long term plan to secrete photographs into prison and that this is just the latest installment. That's dangerously close to propensity. These and the details make the difference here. These are different plans. I know the Macrary documents and particularly these two book requests. Those are just two different from what is actually charged here. And those are very clearly erroneously admitted under 404B. And it's also just as clear that the district court relied on them. And Judge Davis, as you point out, the government's never tried to argue that there is harm in the admission of this evidence. Do we look at this in isolation? You know, if you didn't have some connection between Blan and the defendant. Blan is testified, the defendant gave it his package. The judge makes these findings among which they say Blan apparently from her perspective of the judge was just really not. Didn't seem to have to where we're all to do this. It was one of the determinations from a credibility perspective. That's either here or there. But in terms of what was actually used for the 404B evidence, what's in this package connecting up the two when your client says essentially says, that's Blan. That's not me. I'm not connected with it from a necessity perspective. Why is it why is it not provative of a scheme if you've got these letters, series of letters and your soliciting information. You've got this package over here. It's all connected. Because the government didn't charge the scheme. The government, as I said earlier, the government could have charged this very different. Well, before the 404B purposes, do you have to charge a scheme if the purpose of it is simply to connect. Or at least to show necessity for showing that is the same thing for a denizen purpose that you did this conduct. Let me try to answer it this way, Your Honor. Going back to my point that all the government had to do is introduce a known handwriting sample. That would have made this connection to Mr. Sebel absolutely clear. And we wouldn't be here today. Handwriting sample of something of what? Any sort of handwriting sample. I know whether it's an example or that they subpoenaed from him. Again, because of the connection between the handwriting that's on the envelope. There was no handwriting expert in this case

. And it's also just as clear that the district court relied on them. And Judge Davis, as you point out, the government's never tried to argue that there is harm in the admission of this evidence. Do we look at this in isolation? You know, if you didn't have some connection between Blan and the defendant. Blan is testified, the defendant gave it his package. The judge makes these findings among which they say Blan apparently from her perspective of the judge was just really not. Didn't seem to have to where we're all to do this. It was one of the determinations from a credibility perspective. That's either here or there. But in terms of what was actually used for the 404B evidence, what's in this package connecting up the two when your client says essentially says, that's Blan. That's not me. I'm not connected with it from a necessity perspective. Why is it why is it not provative of a scheme if you've got these letters, series of letters and your soliciting information. You've got this package over here. It's all connected. Because the government didn't charge the scheme. The government, as I said earlier, the government could have charged this very different. Well, before the 404B purposes, do you have to charge a scheme if the purpose of it is simply to connect. Or at least to show necessity for showing that is the same thing for a denizen purpose that you did this conduct. Let me try to answer it this way, Your Honor. Going back to my point that all the government had to do is introduce a known handwriting sample. That would have made this connection to Mr. Sebel absolutely clear. And we wouldn't be here today. Handwriting sample of something of what? Any sort of handwriting sample. I know whether it's an example or that they subpoenaed from him. Again, because of the connection between the handwriting that's on the envelope. There was no handwriting expert in this case. There was a handwriting expert. And she was never shown a known example of Mr. Sebel's handwriting. All she could say was that of the exemplar she was provided, which included some of this 404B evidence. All she could say was that this was the same person who created it. But she could not say that it was Mr. Sebel. Created it. What do you mean, created it? You mean both of that? Both the documents that were the subject of her examination. What do you think took them so long to pull all of this together? I don't know, Your Honor. Problems with the Bureau of Prisons? Interacting with the U.S. Attorney's Office? I don't know. I find it very surprising that there is such a long lapse between the discovery of the 2008 documents. But I don't want to spend it. And did they choose this charge because of the life, the advertisement? It's just such an odd charge. I agree. I think this is a very unusual case. Are there any other cases under this statute out there? There may be a very few, but I don't know if there are any facts quite like this. So it's a mandatory minimum 35 years? Yes, because he has prior. That's the prior. Yes. I think it's otherwise 15. And the 35 years does come on top of his other 30-year sentence. I would have thought as soon as they opened the box, they would have done rubber gloves if they hadn't already and immediately submitted it to the Bureau for fingerprint printing and DNA. I mean, you think so, but I think. Apparently it was just, I don't know what it was, but

. There was a handwriting expert. And she was never shown a known example of Mr. Sebel's handwriting. All she could say was that of the exemplar she was provided, which included some of this 404B evidence. All she could say was that this was the same person who created it. But she could not say that it was Mr. Sebel. Created it. What do you mean, created it? You mean both of that? Both the documents that were the subject of her examination. What do you think took them so long to pull all of this together? I don't know, Your Honor. Problems with the Bureau of Prisons? Interacting with the U.S. Attorney's Office? I don't know. I find it very surprising that there is such a long lapse between the discovery of the 2008 documents. But I don't want to spend it. And did they choose this charge because of the life, the advertisement? It's just such an odd charge. I agree. I think this is a very unusual case. Are there any other cases under this statute out there? There may be a very few, but I don't know if there are any facts quite like this. So it's a mandatory minimum 35 years? Yes, because he has prior. That's the prior. Yes. I think it's otherwise 15. And the 35 years does come on top of his other 30-year sentence. I would have thought as soon as they opened the box, they would have done rubber gloves if they hadn't already and immediately submitted it to the Bureau for fingerprint printing and DNA. I mean, you think so, but I think. Apparently it was just, I don't know what it was, but. If I could just quickly address the idea of the bench trial, Your Honor, I don't think that you should hesitate to reverse this case simply because it was before a judge and not a jury. Can you answer the question I asked, your colleague? Are you aware of any federal court of appeals? I cannot say that I look specifically for that, but let me explain why. 403 with the concerns about taming the jury or the fact finder. That is only the final prong of the 404B analysis. In order to even get to that, this evidence has to meet the other three prongs. Judge Gibney made legal errors in admitting him under those first three prongs. And secondly, the 403 test is a very different test from what this court has to look at in determining whether there is harm for purposes of a color review. And there clearly was harm here. The district court relied on this evidence. Three out of its five reasons went to this evidence. That evidence impacted its judgment. The government is not contented otherwise, and we request that. Doesn't it make a difference if it's a bench trial and a four or three evaluation? And if it's a jury trial? I think it does, but that doesn't obviously the fact that under the first three prongs of 403, a 404B that the evidence should not have come in. But here's your challenge. Assume hypothetically we find error that's not harmless. Given that this is a bench trial, could we not send it back to the district court for new findings on the existing record while excluding the 404B? Aren't you really stuck with that? I think if the court vacates the conviction, the conviction should be vacated. We can vacate the conviction and struck the district court to make new findings without regard to the 404B. Again, I'm just speaking hypothetically. Why wouldn't that be a perfectly permissible disposition consistent with due process? I mean, that's what you buy when you buy a bench trial, what you buy, you know, is a brand new shiny car, but you can't be sure where it's going to take you. The answer to your honor is he should get a new trial. But why wouldn't that be the equivalent of a new trial to ask a federal district judge who is presumed to know the law, to follow the law, to be able to parcel out admissible versus inadmissible federal district judges, do that every day? That's what they do. And so why would there need to be a new presentation of evidence? Your honor, I think we actually probably would be very happy with that. You don't challenge the sufficiency of the evidence. Not when the 404B came in. No, you wouldn't challenge it. You would have had to have challenged it in this appeal if you really challenged the sufficiency of the evidence. And clearly, Blance testimony is sufficient if believe to convict your client

. If I could just quickly address the idea of the bench trial, Your Honor, I don't think that you should hesitate to reverse this case simply because it was before a judge and not a jury. Can you answer the question I asked, your colleague? Are you aware of any federal court of appeals? I cannot say that I look specifically for that, but let me explain why. 403 with the concerns about taming the jury or the fact finder. That is only the final prong of the 404B analysis. In order to even get to that, this evidence has to meet the other three prongs. Judge Gibney made legal errors in admitting him under those first three prongs. And secondly, the 403 test is a very different test from what this court has to look at in determining whether there is harm for purposes of a color review. And there clearly was harm here. The district court relied on this evidence. Three out of its five reasons went to this evidence. That evidence impacted its judgment. The government is not contented otherwise, and we request that. Doesn't it make a difference if it's a bench trial and a four or three evaluation? And if it's a jury trial? I think it does, but that doesn't obviously the fact that under the first three prongs of 403, a 404B that the evidence should not have come in. But here's your challenge. Assume hypothetically we find error that's not harmless. Given that this is a bench trial, could we not send it back to the district court for new findings on the existing record while excluding the 404B? Aren't you really stuck with that? I think if the court vacates the conviction, the conviction should be vacated. We can vacate the conviction and struck the district court to make new findings without regard to the 404B. Again, I'm just speaking hypothetically. Why wouldn't that be a perfectly permissible disposition consistent with due process? I mean, that's what you buy when you buy a bench trial, what you buy, you know, is a brand new shiny car, but you can't be sure where it's going to take you. The answer to your honor is he should get a new trial. But why wouldn't that be the equivalent of a new trial to ask a federal district judge who is presumed to know the law, to follow the law, to be able to parcel out admissible versus inadmissible federal district judges, do that every day? That's what they do. And so why would there need to be a new presentation of evidence? Your honor, I think we actually probably would be very happy with that. You don't challenge the sufficiency of the evidence. Not when the 404B came in. No, you wouldn't challenge it. You would have had to have challenged it in this appeal if you really challenged the sufficiency of the evidence. And clearly, Blance testimony is sufficient if believe to convict your client. So I don't mean to suggest that you didn't challenge the sufficiency of the evidence as criticism. It's not criticism. I think I'd be criticizing you if you had challenged the sufficiency of the evidence. I just think that I showed some judgment in one way. Exactly. And you did. And you did. Absolutely. But I'm just wondering whether this isn't largely perhaps a periodic victory. If we were to be persuaded that the 404B shouldn't have come in. And I think we might be the first federal circuit court to find prejudice. And I strongly encourage this court to take that step because that would be following the law that this court has laid out in its higher decisions. And so we do ask that his conviction be vacated. And also that he get a new sentence. Thank you. Thank you very much. You want to take a break? I don't need to. Okay. We'll come down and greet Council and proceed to our third case.

Ms. Brent. May it please the court. Good morning, Your Honors, Fran Pratt, and Philencia Roberts on behalf of the appellant Philip Sebel. Your Honors Philip Sebel was charged and convicted of making a notice seeking to receive child pornography during a six-week period in early 2010. Fran, in convicting him of his charge, the district court relied on two sets of documents that are deroniously admitted under Rule 404B. The court gave five reasons for convicting Mr. Sebel, three of which relate directly to the 404B evidence, and they are, and I'm referring or quoting from pages 261-362 of the joint appendix. First, that the pamphlet or flyer is very similar in writing to other items which are clearly, pretty clearly linked to Mr. Sebel. Second, that the content of the flyer is similar to his other works. And third, that a book belonging to Mr. Sebel found in his cell contained, quote, a secret compartment in it just like the greeting cards. Given these findings, it is clear, I think, that the emission of his 404B evidence armed Mr. Sebel in lead to his conviction. I plan to focus this morning on why this Rule 404B evidence was improperly admitted, and if time allows, I'll also try to address Mr. Sebel's sentence. And you are, you are continuing that with regard to all five of the letters not to any specific ones. We argue that all five pieces of evidence were runniously admitted under 404B, yes. You do not acknowledge that at least three of them seem to go to questions of identity, pretty clearly. Arguably, they all go to identity, but we also argue that under 404B, that there should be a higher degree of relevance under that portion of the 404B test before evidence used to show identity. I agree for identity as a basis of 404B. Yes. When he has said that he could, he's pointed to this other fellow who's an inmate and say, oh, no, that's, if not said directly, maybe imply, was me, it was really him. And then so now you come in with the series of letters, and I probably see where you're going, at least in terms of the children books, the letters on that, the other three. It seems to give some indication, okay, this isn't just your inmate here, this is you. There's no question, Judge, when that the primary purpose of this evidence was to establish Mr. Sebel as the culprit. But I think what cases have shown is that when evidence comes in under Rule 404B to show identity, that it really needs to amount to essentially a signature or a modus operandi. And we contend that the pieces of evidence that issue here are just too different from the conduct that is charged. And the conduct that is charged, keeping in mind exactly what that is, is critical, I think, in this case. Because Rule 404B has to relate the evidence coming in under it to the crime charged. It can't just come in because of some general type of relevancy. It has to relate to tie directly to the crime charged in the crime- Well, but identity, criminal agency, is an issue in every criminal case. It is, Judge Davis. So it's admitted to prove identity, it's admissible in any criminal case, provided all the other requirements are satisfied. Identity is always at issue, but it's a question of to what degree. Not sure I follow that. Rule 404B evidence can come in to show any number of things. In most cases, there's not a question about identity. So identity is in there as kind of a preliminary thing. And the government would have to show that in fact it's the defendant, you know, who supposedly committed this other act, as a preliminary to getting it in. But here, because the primary purpose is to show identity, the other purposes, the balance is reverse, the other purposes really aren't at issue in the way that identity is. I'm having some difficulty following the training of your argument. Okay, well, I'm. This is different from say a typical drug case where the question is, did the person intend to distribute drugs? Well, that's not identity. That's that's mens rea as to a specific intent. But my point is your honor that the government can't bring in evidence of that other acts if they haven't actually shown that the defendant is that person involved with that other act. Oh, I see a point. Okay. You know, I mean, is that it really is not identity really evidence. I'm sorry. It's really not a identity evidence. It's not to identify, but it's to connect him with similar type documents. It is. And I'm perhaps you think I'm using identity to loosely, but it's in the. The same kind of thing if you have somebody who commits a bank robbery and they do it with a very specific way they wear a particular kind of cap that's very distinguishable. And the person is saying that well, you know, I didn't know, I had that cap, but I wasn't wearing it. You know, I'm not the one committed that bank robbery, but then there's evidence come in of somebody else wearing that exact same cap in a time period close to the charge robbery. That I think would be an example of a signature kind of crime that would allow that other robbery to come in to show that the defendant committed this robbery. Right. And I hope that's an example that makes sense. And but even if there's not a higher standard, even if the court doesn't want to find that when evidence is used primarily for identity that the other evidence has to really establish some sort of a signature crime, even under kind of the standard 404 B test for rail events, which depends on similarity and timing. Here, these other documents just are not similar enough and are too far removed in time to qualify in under 404 B. But maybe not similar in terms of being exactly the same, but we're talking in the instance with what bland was, was it a flyer? It was a flyer. It's referred to as a flyer under the terms of the statute. It's a notice seeking to receive a bi-child pornography. And so he says, you know, I had nothing to do with that. I was bland. Basically, I don't do that sort of thing. So because I'm not the person that do that. And then he has these letters and these letters all deal with new children. I mean, you got the same kind of thing going on here. And he's done it. It was seen, I mean, when you're dealing with relevance, I know you say it's hyphen in terms of identity. But identity, when we're talking about, is it the same person identity in terms of signature is whether what you are saying this is is what it is. And you got a hand right next, but says, oh, he wrote, he's not contesting that those letters. Right? I think at this point, no. So those are his letters. That part of that part of the scheme is it. And then you got this flyer. He's the low note. That's not me. And they're saying it is. And so we're getting into it's not all the evidence, but at least it shows something, doesn't it? I mean, it may, but I think what this may boil down to is just how similar it has to be. And again, leaving aside an argument that specifically for identity, it should be an even higher standard. I think these still are just too different. And if you look at some of the drug cases recently in which this court has actually found rule 404B evidence to be improperly admitted. Those again, I think could be said to be similar. And yet this court has said that that evidence should not have come in. That it can't be simply somebody trying to, you know, having some overall scheme to try to get, you know, whether it's child pornography or get drugs. It's got to be more similar than that. And especially the further away in time it goes. And that's why the Macrary documents and in particular the two book requests just are so clearly different from what is going on here. In those documents, he simply was asking for general information about two books. And they were, you know, about three and a half years before this charged conduct. I mean, those to me are very clearly not admissible under 404B. And yet the district court not only admitted them, but relied on them in saying that they are similar, you know, that this flyer is similar to his other works while those book requests are part of his other works. Um. Would the court let me do address the sensing issue or do you have other questions about the 404B? You can argue anywhere you want. We'll interrupt if we have a question. Okay. Um, as to the 2008 greeting cards, the government has argued that those are intrinsic to the offense. We take and if they are intrinsic, then of course, rule 404B wouldn't even apply. We contend that they are X-transic. To be intrinsic, the evidence would have to be either inextricably intertwined or the acts part of a single criminal episode or necessary preliminaries to the crime charged. And that takes me back to one of my earlier points. What is specifically charged here matters. The government did not charge him with the 2008 documents. The government did not charge him with any of the other documents found in the box. The Mr. Blande was taking out of prison. The government charged him very specifically only with the creation of this particular flyer. And I think I, that's very significant. And it makes this case very different from other cases. For example, in this case, this court's recent Otooya decision from this summer. In that case, the indictment charged a conspiracy over a about a year and a half period. That opens up much more evidence to potentially being intrinsic. But here you've got documents from 14 months earlier with absolutely nothing in between during those 14 months to show that there were any other documents. And the government is contended that the interception of those documents instigated the Bureau of Prison's investigation into Mr. Sebald. Well, the Bureau of Prison's officials testified that, you know, so far as one of them, Heather McGulium's knew that that investigation never went anywhere. And certainly there's no evidence that the Bureau of Prison's intercepted anything else in those 14 months that Mr. Sebald was trying to either have come into him or go out. So I think given that other complete absence of evidence that those December 2008 documents are not intrinsic to this offense and must be considered under rule for O4B itself. Well, both parties agree that this seems to, this is going to need to be remanded for sentencing. Yes, the government agrees that we had raised two sentencing issues, one about criminal history and one about offense level calculation. The government has conceded on the criminal history calculation and agreed that this case should go back for sentencing. We would like the court to consider our legal argument that we made about the distribution enhancement, but if the court doesn't want to do so, we then would still ask that the district court be allowed to reconsider the factual argument about whether the images constitute child pornography because the district court gave no indication of what legal standard it was applying in concluding that some of these images constitute child pornography. And the two level enhancement makes a big difference in its guideline range that will impact on a final sentence on the sentence ultimately selected. Basically, you're saying you don't have to reach the sentencing. You just want to say something to the district court that you can consider all issues back when you recent us. We would request a remand for a general resentencing, denove a resentencing so that the district court could reconsider the distribution enhancement. All right. Thank you, Mr. Chair. So, John Stone. Thank you, Your Honor. Please, the court. My name is Tommy Johnston. I'm here on behalf of the United States. And with respect to the 4-4-B evidence that the defendant is challenging, the government has continued from the very beginning that all five pieces of evidence that were admitted are intrinsic to the charged offense. And in thinking about that, the record shows that- What does that mean in intrinsic to the charge of offense? Well, I'm sorry, Your Honor. What does that mean? You got a flyer on one hand and then you got three letters and you got two more letters of these books. Yes, Your Honor. What's that intrinsic? In thinking about the intrinsic nature of the additional documents, the package that the defendant gave to Randall Blande, consisted of envelope box that was stuffed with envelopes. And within those envelopes were sealed the flyer, which was the basis of the charge, as well as numerous other form letters to book publishers requesting books, things of that nature, as well as an individual letter to Kestie, who was the address- who was the sender of one of the letters in December of 2008. So in looking at what was in the package and comparing it to all of these other documents, it's clear that the defendant was engaged in a long term plan to secrete nude photographs or photographs of children into VIP facilities. Is that required to have any photographs at all for the offense charge? I'm sorry, Your Honor. Are graphic depictions required for the offense charge? No, Your Honor. No, not at all. So you could very well just say in wonderful prose. I would like to have child pornography, anybody that has any please send it to me. Period. Correct. That would be that would be chargeable under the statute. I will point out the defendant went much farther. So by graphic depictions intrinsic to the crime charge. Well, the five pieces of evidence that were introduced from FCM Macreary and from December of 2008 were not graphic depictions. They were letters in and of themselves. They're intrinsic in the fact that they are all part of the defendant's plan to secrete nude photographs of children or photographs of children into VIP facilities. And I would at least that charge with planning. Is he? No, he's charged with soliciting child pornography via this flyer. And so, but I still think the flyer is just the latest installment in this plan. But even if the court finds that the piece of evidence are not intrinsic, they're still admissible under 404b as the district court found. The district court did not accept your argument that they were intrinsic. Ultimately, the district court found that they were a miss one or 404b. And the government would submit that in addition to identity, the pieces of evidence were admitted to show the defendant's intent and knowledge and that he did have this plan. Some of these pieces of evidence go to his plan and his preparation. And I think what's important to note with respect to similarity is that the defendant is actually asking this court to hold that the items admitted under 404b have to be essentially identical to the charged flyer in this case. And a review of the case law in this court. I don't think that's the argument. Well, if in the brief, your honor, the defendant breaks it down almost into a granular fashion and says, you know, this letter was handwritten, this letter was photocopied, this letter was, you know, OK, but perhaps again, you can present your argument. I would be interested in hearing, I guess, why it's admissible. In other words, rather than focusing on the defendant's arguments as to why it's not admissible, it would be helpful to me if he told me why it was admissible. Sure. The evidence is admissible under 404b to show intent, knowledge, plan preparation. Yeah, it wasn't charged with a plan. He wasn't charged with a scheme. So I'm really hung up on why you keep mentioning plan. Well, I think that all of these planning charge all of these issues, such as knowledge and intent and the plan go to identify the defendant as the creator of this flyer. And as the court noted during the defendant's argument, the defendant's sole defense was I didn't do this fire, Randall Blanned did this flyer. So by the way, how did Randall Blanned testify on that point? Mr. Blanned said that the defendant gave him this sealed box. He did not know what was in it. He did not know it was in it. The envelopes were addressed, sealed, and the box was sealed up. And the defendant simply told him, hey, when you get out, drop them in the mail. OK, so the defendant's defense is, I don't know anything about that box, didn't give it to him. I didn't do it. Correct. OK, the defendant's sole defense was to imply that Randall Blanned was the creator of this. The question is, who created the advertisement? Yes, sir. Which is a single document, right? Yes. Front and back. Front and back. Front had a pay scale, basically the request, the back had a collage of images of the Andron sketches. So who created that document? Yes, sir. That was the issue at trial. So the five pieces of evidence are immiscible under 440b because they meet the four prongs articulated in Queen. They're relevant to the charge of defense. They're necessary in the sense that they are probative as to an essential claim or charge of the defense. They are reliable and they have no undue prejudice on the defendant. And so I think with respect to the similarity argument that the defendant has raised and the level of similarity that is required, I think it's important to note that. In the case law from this court, there are multiple ways in which acts can be similar. For instance, acts can be similar and that they use the same methods to accomplish a certain thing or that they use slightly different methods, but the intent or the end result is similar. And I think that we have both in this case. We have similar methods in that the defendant was consistently using correspondence sent through the mail to request photographs of children or nude photographs of children. And he may have tweaked that slightly, but by and large, that was his method of operation was request to pinpals through the mail for these types of images. We also have similarity in intent. And while the defendant says that the letters are not the same because some go to books and some go to people and some are for money and some are not. But the intent of his actions was the same and that it was to secrete the images into this prison. And I think the course decision in Horn's B is the lustre of that. And in Horn's B, the defendant was charged with instructing a support, a subordinate to destroy some computer data to conceal some evidence. The prior bad act of the government wanted to introduce was the defendant instructing the employee to burn some documents. So whereas the methods were dissimilar, the intent of those methods was the same, the concealment of evidence. And I think in this case, while the five piece of evidence admitted in or for for B may not have been exactly the same or identical to the charged flyer, the intent of those of those piece of evidence was the same. Also as to necessity, this court is held in rooks that evidence is necessary if it is simply probative of a claim that has been charged by the government. It doesn't have to be critical to the government's case to be a mess. What just needs to be probative as to an issue that must be proven at trial. In this case, it was probative as to identity. The defendant was saying this is not me that did this. And so the government had to prove the creator of the flyer was the defendant. And so under that standard, the evidence was necessary. And what exactly was the nexus between the 404B documents and the advertisement? You speak an S2 reliability? S2 reliability. So the government has outlined about eight pieces or eight in this year of reliability as to each of these documents as a whole. I will say that the FCM Recreary, the two letters to the book publishers, they contain the defendant's name, the defendant's BOP registration, Mercedes Carroll, who was in charge of monitoring the defendant's mail at FCM Recreary. Testify that she had reviewed two to three letters or correspondence from the defendant per week while he was at FCM Recreary. And she recognized that as his writing. The candy brown letter referenced a, it was a request to a candy brown, whoever that may be, offering to pay candy brown for images of chronography. It included the defendant's name, the BOP registration, and as well, Ms. Carroll testified that she recognized the defendant's handwriting. And that's the connection to the flyer? Yes, Your Honor. In the sense that there's a nexus to the flyer with the structure of the candy brown letter because the defendant is using his name to request new damages in exchange for payment. Her name on the flyer? Her name is not on the flyer, but his name is on the flyer. Fill is on the flyer. And fill up C-Bolt with this BOP registration number is on the candy brown letter. With respect to the December of 2008 letter. You didn't need that to prove that. You just the flyer itself. You said that's his name, right? Well, but your Honor, within the context of the flyer, Randall Blande was also implicated in that. He should be, I mean, he had it. Not only did he have, he had it. Not only did he have the flyer in his possession, but the return address that the defendant used on the flyer was fill care of Russell Cain, which is Randall Blande's stuff. Why, then therefore you're making my case. Why did you need the other stuff? Because it linked the defendant to these other attempts in which he intended to secrete. But we don't want to connect just bad conduct. That's what we're trying to avoid, right? Yes, Your Honor, it wasn't admitted simply for the propensity to commit such a crime. It was admitted to show that he had the intent to do it before. Well, that's part of the game under 4-4-B. It's never admitted for propensity. I'm sorry, Judge Greg. I didn't mean to interrupt, but I guess this is a particular irrelevant. When was the jury trial waiver accepted by the district court? The defendant waived jury, I want to say weeks probably months before the venture. It was that for a venture trial early on. Okay, so this was never, of course, he could always change his mind and the judge could exercise discussion. But this was really never going to be a jury trial. Correct. And I guess I'm a little puzzled. You didn't want to go to trial. That is the government. Didn't want to go to trial only on the testimony of Mr. Blam. Is that how this all shakes out? Correct. I think if you look at the number... You had inmate A saying inmate B did it and inmate B saying inmate A did it. Right. And I think if you look at the non-4-4-B evidence in this case, we had the flyer itself, which did implicate the defendant by name of Phil. You had fingerprints off of it, by the way. I know you're on it. No, okay. Also, the back of the flyer, they contain the collage and the hand-drawn sketches of the children's in Italian. Those, the actual color images and the hand-drawn sketches were recovered from the defendant's cell. And Scott Bernardo from FCUP, Peter's work, testified that they were in a book, in a hard-backed book, with a defendant's name all over it. And they were in a hidden compartment that had been glued to the back of the book. Right. And when the defendant's blocker... Did you try to get fingerprint evidence? Not to my knowledge, Your Honor. Why not? Because the key would be whether or not the other fellow's fingerprints on it, because it shouldn't be, because he said I didn't know what was in it. Yeah, you're sure. I do not know the reason why fingerprints were not tried to be... They didn't try to obtain it. That was like you need some training at FCI. Maybe so, Your Honor. Maybe so. And I think, and then of course, not for for B, would be Randall Blanc saying, I didn't have anything to do with this, Phillip Sebel gave this to me. And while that would have been sufficient for a conviction in trial, I don't think the government's required to take that risk. Nothing under the case law says that we are required to take the risk that the trial or fact, whoever that may be, would find that evidence to be sufficient. When we have this other evidence, which is relevant and reliable, that goes to these other issues such as intent and identity. And so that is why the government proceeded to introduce this evidence and the court rightfully admitted it. And yet you don't argue harmless error here. Well, Your Honor, I would say that it would be harmless. Even it... But you don't argue that. I did not argue in the brief, but... And you can't argue it here. Fair enough, Your Honor. But I would say that the district court did find it make a credibility finding of Randall Blanc. But of course, that was after the fact. And the government didn't know that before trial started. Which is why we attempted to... Very unusual situation. It really is. By the way, and I meant to ask Miss Pratt this question, but are you aware of any court, either this one or any other circuit court that has reversed a conviction? Under 404 B in a non-Jerry trial after a trial? No, Your Honor. I mean, that would be pretty remarkable. Right. And in fact, Your Honor, this court, particularly in the civil context, has said the 430B is a useless procedure in the civil context. And I would point out that in the Hassan Zadid case in front of the court, which was a criminal trial, the defendant or the court did not go so far as it said 430B or 430B, I'm sorry, is a useless procedure. But it did say and give strong endorsement that a district court could be able to separate any passions or inflammatory material from the findings of fact. And I would also point out to Your Honor that this wasn't been trial obviously. But the 440B evidence that the government was introducing was at worst as severe as the crime charge. But most of the 440B evidence was less severe. It was less sensational than the crime that was charged, particularly the formletters from FC Yammer Careery. And so this court has held in buyers and in boy that if the 440B evidence is not as severe or is less sensational than the crime charged, then there is no 433 problem, even in a jury context. But of course here we have a jury drop. If there are no other questions on 440B, I'll just address the sinencing issues briefly. With respect to the 4B 1.5 enhancement to criminal history category, in light of the Supreme Court's decision in discamps, as well as this court's recent decisions in Montess Flores, and in Hemingway, the government looked at the issue. And while we do have a divisible statute in this case, there are alternative means to violate this statute. We do not have any shepherd approved source such as a plea agreement, a statement of facts, or even the indictment in this case to point to to say that a defendant was convicted because of production of chopper and rp. not trafficking in or receipt of chopper and rp. And because of that, because the crime charge cuts more broadly than the definition of coverage sex crime in the guidelines, the government would concede that the enhancement to the defendant's criminal history category was in error. And so we would ask that it be remanded for that to be adjusted. As for the distribution, the government contends and asserts that that enhancement was proper and that the district court was correct in applying that two point enhancement. Why don't we just let the district court deal with it all when we send it back? You certainly could do that, Your Honor, but I would point out that when the defendant raised his objection to the two point enhancement, the district court initially said, I'm going to overrule that objection for two reasons. And his first reason was because the report on graphic images on the back of the flyer and then second reason had to do with the distribution in the sense that the defendant almost received an image of chopper and rp. And the government said, well, that's not it. The government can see that's the defendant's receipt of chopper and rp. was not a basis for the enhancement, but the images on the back of the flyer are. And later in the sentence, which images, well, there are at least three images on the back of the flyer and just to be clear on the government is not talking about the hand drawn sketches and the government made that clear at synancing that the hand drawn sketches while they are of children's genitalia are not chopper and rp. under the statute because they're not actual children. But there are three images within the collage itself, which are not from reputable magazines. I think it's pretty clear if you look at them. Reputable magazine, national geographic or anything like that, which is what the defendant argued. Oh, has to be reputable magazine. Well, you know, that was probably misspeaking on my part. But if you spoke exactly how people think that it's a book with Rembrandt, so Renaissance, you know, what's it is okay? You've been through our galleries have you not? Yes, sir. I'm sure you've seen new children have you. Yes, sir. The government hasn't asked to have them pull down. Yes, sir. Why not? They knew. They're not actually they're not actual children. Because they're not actual children. But they're paintings. But actual child posed. Isn't that the same thing you use? Same thing then. If you the subject of the art, you certainly wouldn't say that's not child pornography. If someone had a child posed and they painted them, would you? Your honor, I think under the legal definition of chop and arpe it has to be an identifier, a minor in the charged image or painting. So while you may be able to be charged that person. I wouldn't look at it as long. It takes call worldly out of the full circuit, but not to that. Yes, sir. Not to that commended to you, but. Yes, your honor. You might look at that. But go ahead. But with respect to the three images in the collage, the district court itself referenced one in the lower right hand corner had to do with a nude female who is straddling the leg of an adult male. The government reference that's that's what I want. The government is a pornographic. Yes, your honor. The government was that that's pornographic. What her general is exposed. And to the camera, the government pointed to. She's new. So yes, your new to T is meets the standard. New to the not in itself does not meet the standard, but there needs to be a leg meets the standard. What is it? The need what the the determine whether not something is is pornographic in that this little serious exhibition and nudity. The courts often looked at what's known as the DOS factors which takes into account the context of the image whether not the general is the focus of the image whether the child is nude or partially nude. Whether the child is posed in a provocative manner or clothed in an entire that is inappropriate for their age, things of that nature. And so that image I think would would qualify as that because the generals are exposed if I may have time to respond to your question. Well, go ahead. The government reference an image on the on the left side of the floor which is an male infants general which is the sole focus. There is nothing else besides the male. We will answer the question that we will end up with this unless my dear colleagues have this question. You learned a colleague on other side says that court didn't articulate exactly what standard was being used. Can you address that? That's why we are to send it all back. For the sentence. Yes, Your Honor. Well, the district court did make the finding or did make the statement that it was overruling the motion because there were pornographic images on the back of the flyer. It's rather conclusive or the front of the flyer. He didn't know. Specifically saying I find that that is pornographic because of the generals being exposed or another factor that district court didn't make a specific finding as to that. But the district court did make that first statement and then did reference the photograph in the lower right hand corner and the government reference the image halfway down on the left of the male infants to tell you. So I think based on that and based on the fact that the defendant sealed these things up put them in envelopes, addressed them and gave them to blend to mail out that would that would constitute any real any act related to all letters. I don't see all my letters too. Yes, Your Honor, but that would be that would be the act related to the transfer of material which would which is required on the guidelines. So that's how they could the guideline would apply. If they're not for the questions, I would. I have one last question. I want to go back just as relevance part of four four B. Three of the letters one in March of 2007 and two in December of 2008 involved solicitations for explicit material. But two of those documents, the July letters were specific requests for books about children. And they didn't mention child nudity just asked for books generally whether they contain photos and illustrations. What is the relevance of those two? The relevant one would be the request for images or illustrations of children and it also relates to children's books just regular books. Well, I think with pictures, but nothing asked for anybody knew. Yes, letters, but I think the request was for books that have yeah, that have pictures of children in them. And the reason why that also relates to the charge of events is based on what was found adjacent to the flyer in the envelope box, which was the which were the form letters to book publishers requesting very similar books pamphlets, newsletters related to images or illustrations of children. Those letters that were recovered in February 2010 in the omelibox blank copies of those form letters were also found in the defendant's cell with the images and things that he possess. So that would be the connection between the two book publisher letters from FCM career. Okay, thank you. Thank you. All right, thank you. Miss Brad, you have some time left. Thank you. I would like to try to address three points with respect to the rule 404B first necessity, second long term plan, and then third bench trial as to necessity. Judge Gregory, I think you asked a very good question. This other evidence was not necessary. What was necessary, we contend, is a known exemplar of Mr. Sebal's handwriting. The government never subpoenaed him for that. They never went, for example, through the Bureau of Prison Records to find something like a grievance that would be indisputably in his handwriting. This would be such an easy case if they had done that and we wouldn't be here today. In terms of the long term plan and the government has contended in the district court in its brief and now that Mr. Sebal has this long term plan to secrete photographs into prison and that this is just the latest installment. That's dangerously close to propensity. These and the details make the difference here. These are different plans. I know the Macrary documents and particularly these two book requests. Those are just two different from what is actually charged here. And those are very clearly erroneously admitted under 404B. And it's also just as clear that the district court relied on them. And Judge Davis, as you point out, the government's never tried to argue that there is harm in the admission of this evidence. Do we look at this in isolation? You know, if you didn't have some connection between Blan and the defendant. Blan is testified, the defendant gave it his package. The judge makes these findings among which they say Blan apparently from her perspective of the judge was just really not. Didn't seem to have to where we're all to do this. It was one of the determinations from a credibility perspective. That's either here or there. But in terms of what was actually used for the 404B evidence, what's in this package connecting up the two when your client says essentially says, that's Blan. That's not me. I'm not connected with it from a necessity perspective. Why is it why is it not provative of a scheme if you've got these letters, series of letters and your soliciting information. You've got this package over here. It's all connected. Because the government didn't charge the scheme. The government, as I said earlier, the government could have charged this very different. Well, before the 404B purposes, do you have to charge a scheme if the purpose of it is simply to connect. Or at least to show necessity for showing that is the same thing for a denizen purpose that you did this conduct. Let me try to answer it this way, Your Honor. Going back to my point that all the government had to do is introduce a known handwriting sample. That would have made this connection to Mr. Sebel absolutely clear. And we wouldn't be here today. Handwriting sample of something of what? Any sort of handwriting sample. I know whether it's an example or that they subpoenaed from him. Again, because of the connection between the handwriting that's on the envelope. There was no handwriting expert in this case. There was a handwriting expert. And she was never shown a known example of Mr. Sebel's handwriting. All she could say was that of the exemplar she was provided, which included some of this 404B evidence. All she could say was that this was the same person who created it. But she could not say that it was Mr. Sebel. Created it. What do you mean, created it? You mean both of that? Both the documents that were the subject of her examination. What do you think took them so long to pull all of this together? I don't know, Your Honor. Problems with the Bureau of Prisons? Interacting with the U.S. Attorney's Office? I don't know. I find it very surprising that there is such a long lapse between the discovery of the 2008 documents. But I don't want to spend it. And did they choose this charge because of the life, the advertisement? It's just such an odd charge. I agree. I think this is a very unusual case. Are there any other cases under this statute out there? There may be a very few, but I don't know if there are any facts quite like this. So it's a mandatory minimum 35 years? Yes, because he has prior. That's the prior. Yes. I think it's otherwise 15. And the 35 years does come on top of his other 30-year sentence. I would have thought as soon as they opened the box, they would have done rubber gloves if they hadn't already and immediately submitted it to the Bureau for fingerprint printing and DNA. I mean, you think so, but I think. Apparently it was just, I don't know what it was, but. If I could just quickly address the idea of the bench trial, Your Honor, I don't think that you should hesitate to reverse this case simply because it was before a judge and not a jury. Can you answer the question I asked, your colleague? Are you aware of any federal court of appeals? I cannot say that I look specifically for that, but let me explain why. 403 with the concerns about taming the jury or the fact finder. That is only the final prong of the 404B analysis. In order to even get to that, this evidence has to meet the other three prongs. Judge Gibney made legal errors in admitting him under those first three prongs. And secondly, the 403 test is a very different test from what this court has to look at in determining whether there is harm for purposes of a color review. And there clearly was harm here. The district court relied on this evidence. Three out of its five reasons went to this evidence. That evidence impacted its judgment. The government is not contented otherwise, and we request that. Doesn't it make a difference if it's a bench trial and a four or three evaluation? And if it's a jury trial? I think it does, but that doesn't obviously the fact that under the first three prongs of 403, a 404B that the evidence should not have come in. But here's your challenge. Assume hypothetically we find error that's not harmless. Given that this is a bench trial, could we not send it back to the district court for new findings on the existing record while excluding the 404B? Aren't you really stuck with that? I think if the court vacates the conviction, the conviction should be vacated. We can vacate the conviction and struck the district court to make new findings without regard to the 404B. Again, I'm just speaking hypothetically. Why wouldn't that be a perfectly permissible disposition consistent with due process? I mean, that's what you buy when you buy a bench trial, what you buy, you know, is a brand new shiny car, but you can't be sure where it's going to take you. The answer to your honor is he should get a new trial. But why wouldn't that be the equivalent of a new trial to ask a federal district judge who is presumed to know the law, to follow the law, to be able to parcel out admissible versus inadmissible federal district judges, do that every day? That's what they do. And so why would there need to be a new presentation of evidence? Your honor, I think we actually probably would be very happy with that. You don't challenge the sufficiency of the evidence. Not when the 404B came in. No, you wouldn't challenge it. You would have had to have challenged it in this appeal if you really challenged the sufficiency of the evidence. And clearly, Blance testimony is sufficient if believe to convict your client. So I don't mean to suggest that you didn't challenge the sufficiency of the evidence as criticism. It's not criticism. I think I'd be criticizing you if you had challenged the sufficiency of the evidence. I just think that I showed some judgment in one way. Exactly. And you did. And you did. Absolutely. But I'm just wondering whether this isn't largely perhaps a periodic victory. If we were to be persuaded that the 404B shouldn't have come in. And I think we might be the first federal circuit court to find prejudice. And I strongly encourage this court to take that step because that would be following the law that this court has laid out in its higher decisions. And so we do ask that his conviction be vacated. And also that he get a new sentence. Thank you. Thank you very much. You want to take a break? I don't need to. Okay. We'll come down and greet Council and proceed to our third case