[00:00:00] Speaker 05:
The final case to be heard this morning is 24-7069, United States versus Bycroft.

[00:00:10] Speaker 05:
Counsel for appellant, if you'd make your appearance and proceed.

[00:00:14] Speaker 04:
May it please the court.

[00:00:15] Speaker 04:
My name is Howard Pincus from the Federal Public Defender, and I represent Heather Bycroft.

[00:00:20] Speaker 04:
Ms.

[00:00:20] Speaker 04:
Bycroft was convicted of producing and possessing child pornography on the theory that she was the person who filmed a video at a pool party of a six-year-old girl

[00:00:30] Speaker 04:
whose shorts and underwear were being manipulated to expose her genitalia.

[00:00:35] Speaker 04:
The district court wrongly admitted, under Rule 404b, proof that Ms.

[00:00:39] Speaker 04:
Bycroft later took peeping tom, upskirting videos of adult women.

[00:00:44] Speaker 04:
This court should vacate her convictions.

[00:00:47] Speaker 04:
For other acts of evidence to be admissible, they have to be relevant to a proper purpose.

[00:00:53] Speaker 04:
This court has repeatedly stressed that the linchpin of Rule 404b relevancy is similarity.

[00:01:00] Speaker 04:
Here, the pool and upskirting videos differ in two important and obvious ways that make them very dissimilar.

[00:01:09] Speaker 04:
The first difference, of course, is that the pool video is of a six-year-old girl, and the upskirting videos are of adult women.

[00:01:17] Speaker 04:
The district court considered both videos to be illicit, and they were.

[00:01:21] Speaker 04:
But a sexual interest in young children is unusual and abnormal, proof that someone has an interest in the

[00:01:28] Speaker 00:
private areas of adult women does nothing to prove that he or she... She's not being charged with sexual interest in young children.

[00:01:37] Speaker 00:
She's being charged with taking these photographs.

[00:01:40] Speaker 00:
It could be that it was her husband, she said, who kept pressing her to do these things.

[00:01:45] Speaker 04:
Well, she said he kept pressing her to do the upskirting videos years later after they were married.

[00:01:51] Speaker 04:
The point here, though, is what does the upskirting videos tell us about

[00:01:56] Speaker 04:
her intent or a common scheme or plan or an absence of mistake or accident.

[00:02:00] Speaker 00:
Well, one of the things of 404 is identity.

[00:02:03] Speaker 00:
So apart from anything else, if it helps show identity, that satisfies 404.

[00:02:10] Speaker 00:
And isn't that indeed the issue here?

[00:02:13] Speaker 00:
Who was the person that took the first

[00:02:16] Speaker 00:
Camera?

[00:02:17] Speaker 00:
Film?

[00:02:18] Speaker 00:
Yes, who took the video at the pool?

[00:02:19] Speaker 00:
So wasn't it just squarely into identity?

[00:02:23] Speaker 04:
Well, the district court said it went into identity because you could see her face and hear her voice on the upskirt videos.

[00:02:32] Speaker 04:
Well, actually, the testimony is about that, but the upskirting videos that were introduced at trial don't show that.

[00:02:39] Speaker 04:
But even so, there's no claim that you could see anything about the operator of the camera at the pool.

[00:02:45] Speaker 04:
You can't see whoever was recording at the pool at all.

[00:02:48] Speaker 04:
You can hear a voice, you can hear, uh-huh, in the actual video that is the subject of the child pornography.

[00:02:55] Speaker 04:
You can hear in other pool videos, it may or may not have been taken by Ms.

[00:03:00] Speaker 04:
Bycroft, which she denied that she took them, but if the jury could potentially have found that,

[00:03:05] Speaker 04:
The court could have admitted the upskirting video audio perhaps to allow a comparison of her voice, but there could be no comparison of her face because her face wasn't on any of the recordings at the pool.

[00:03:19] Speaker 02:
Did everybody stipulate that it was her voice on the various recordings?

[00:03:24] Speaker 02:
Not at all.

[00:03:24] Speaker 02:
Okay.

[00:03:24] Speaker 02:
So they needed her face to identify the voice, didn't they?

[00:03:28] Speaker 02:
Didn't they need to prove to the jury that the voice on the upskirting videos was hers?

[00:03:34] Speaker 04:
They could have admitted, if that were essential, they could have admitted parts of it that don't show what was the upskirting aspect of it.

[00:03:41] Speaker 04:
But it doesn't allow you to bring in other acts of evidence that could be easily excised, as this court held in United States versus Kelly.

[00:03:52] Speaker 04:
So basically, what the district court did was assume what had to be proved, which was she was the operator of the video.

[00:04:01] Speaker 04:
at the pool, and therefore her face was relevant because it showed that it was her.

[00:04:05] Speaker 04:
Well, that's the whole point of the trial.

[00:04:09] Speaker 05:
The face on the Peeping Tom videos would have matched, it would have been synced with the voice that was heard.

[00:04:19] Speaker 05:
And you said, and it is true, that on the pool video, there's only the voice.

[00:04:26] Speaker 05:
Now, one thing I want to get clear is, as I understand it,

[00:04:30] Speaker 05:
When the court instructed the jury on proper purpose, it was mistake or accident, it was identity, and it was this common scheme or plan.

[00:04:43] Speaker 05:
Correct.

[00:04:44] Speaker 05:
Well, the jury could have considered any one of those.

[00:04:47] Speaker 05:
Well, on the mistake or accident, wasn't it critical that they be able to know, be able to infer that it was Ms.

[00:04:59] Speaker 05:
Bycroft at the pool?

[00:05:01] Speaker 05:
In other words, to be able to make the link between her face and the voice, because you said there's an, uh-huh, well, there was three, what, four people who testified as to whether her voice was Ms.

[00:05:14] Speaker 05:
Bycroft,

[00:05:15] Speaker 05:
Well, there were five when you include Ms.

[00:05:17] Speaker 04:
Bycroft.

[00:05:17] Speaker 05:
When you include Ms.

[00:05:18] Speaker 05:
Bycroft.

[00:05:19] Speaker 05:
Thank you for the clarification.

[00:05:20] Speaker 05:
So as it relates to that, I guess the point I'm getting at, and I'll try to be concise here, is it seems to me one of the proper purposes that was before the jury related to whether Ms.

[00:05:33] Speaker 05:
Bycroft would have engaged in a mistake or accident during the pool videos.

[00:05:39] Speaker 05:
Isn't it relevant in that context to know

[00:05:43] Speaker 05:
that it was Ms.

[00:05:45] Speaker 05:
Bycroft who actually did the Peeping Tom videos.

[00:05:48] Speaker 05:
And she did not tell us that until she was on the stand.

[00:05:52] Speaker 05:
And so wouldn't it have been important to know that it was Ms.

[00:05:56] Speaker 05:
Bycroft who did the Peeping Tom videos?

[00:05:58] Speaker 05:
And the only way we would really know that is to link her face to her voice.

[00:06:03] Speaker 04:
Well, mistake or accident requires a similarity.

[00:06:07] Speaker 04:
If there's disparate circumstances, as this court held in Comanche,

[00:06:11] Speaker 04:
It negates any possibility of directly using the other act's evidence to prove lack of mistake or accident.

[00:06:17] Speaker 04:
And we have upskirting videos of adult women, voyeuristic conduct.

[00:06:21] Speaker 04:
That's a world apart from filming a little girl whose genitalia are being exposed.

[00:06:28] Speaker 04:
It doesn't tell you anything about mistake or accident.

[00:06:30] Speaker 04:
in that context because the two are so dissimilar.

[00:06:34] Speaker 05:
I got the dissimilar point, but I guess what I'm trying to drill down on is the point of in bolstering the case for mistake or accident, isn't it important to know that the Peeping Tom video person is actually Ms.

[00:06:52] Speaker 05:
Vycroft?

[00:06:54] Speaker 04:
Only if the Peeping Tom videos would go to show lack of mistake or accident, and they don't.

[00:06:59] Speaker 05:
But there are two steps there.

[00:07:01] Speaker 05:
The one is that conceptually the proper purpose at play is mistake or accident.

[00:07:08] Speaker 05:
I want to show that it is Ms.

[00:07:11] Speaker 05:
Bycroft in the Peeping Tom videos to bolster mistake or accident.

[00:07:16] Speaker 05:
And then you say, well, whoa, whoa, whoa, it doesn't really matter because they are dissimilar.

[00:07:21] Speaker 05:
But the point I'm getting at is in terms of under abuse of discretion standard, the theory that it is important to link those two

[00:07:30] Speaker 05:
face, voice to bolster mistake or accident, why isn't that reasonable?

[00:07:37] Speaker 04:
Well, first of all, it wouldn't allow for if you just want to link face and voice.

[00:07:42] Speaker 04:
You could have shown parts of it that didn't.

[00:07:46] Speaker 04:
include the upskirting.

[00:07:47] Speaker 00:
The upskirting videos were... Isn't that an issue of prejudice of whether some of the material is unnecessary or unduly presidential?

[00:07:58] Speaker 00:
We do the balancing test as opposed to permitted uses of other crimes, wrongs under 404.

[00:08:06] Speaker 04:
It might be both, but I think fundamentally what it is is that it doesn't show mistake or accident.

[00:08:14] Speaker 04:
even if her face had to be linked to her voice, there were ways to limit it that didn't show the other act's conduct.

[00:08:27] Speaker 05:
If we had done that, if the district court had excluded the Peeping Tom video and just shown her face

[00:08:33] Speaker 05:
and her voice, you would have been here saying that that was irrelevant, that it had no... What was the value of that?

[00:08:40] Speaker 04:
Well, the value of it is to... If you're saying you have... Just hearing the voice, we don't know who that person is.

[00:08:49] Speaker 04:
I'm sure she would have stipulated that it was her voice on those videos, but all that would have allowed is playing... She didn't.

[00:08:55] Speaker 04:
Nobody asked her to.

[00:08:56] Speaker 04:
They tried to admit it on these other three theories and also

[00:09:01] Speaker 04:
If it's admitted on identity itself, the fact that it could have been admitted on other grounds, which it can't be, wouldn't matter because the jury would have been allowed to consider it for identity purposes.

[00:09:14] Speaker 04:
But the dissimilarity of the two contexts, somebody who films records a voyeuristic conduct of adult women to say that that person is somebody who would

[00:09:31] Speaker 04:
film, a six-year-old girl whose genitals are being exposed by the manipulation of her clothing is just a world apart.

[00:09:37] Speaker 00:
They're not at all comparable.

[00:09:39] Speaker 00:
You talk about those as two different subjects.

[00:09:42] Speaker 00:
I'm curious if you have any case law that's factually on point, because they both involve surreptitious videoing.

[00:09:49] Speaker 00:
They both involve women or female gender.

[00:09:54] Speaker 00:
They both involve trying to take pictures of

[00:09:58] Speaker 00:
of genitalia.

[00:10:00] Speaker 00:
I mean, so sure, they're not precise in every area, but I don't see them as this great divide of one of them is Mount Everest and the other is showing a birthday party kind of stuff.

[00:10:13] Speaker 04:
Well, I mean, we cited a number of cases in our opening brief about how a sexual interest in adult women doesn't translate to a sexual interest in child.

[00:10:23] Speaker 04:
In our reply brief, we cited Holly versus Yarborough from the Ninth Circuit, 568 F3rd, 1091, which makes the same point.

[00:10:32] Speaker 04:
And I think it would shock most people to say, well, because you're willing to take a voyeuristic video, that's similar in some meaningful way to taking a child pornography.

[00:10:43] Speaker 02:
Well, they're both voyeuristic, aren't they?

[00:10:45] Speaker 02:
Well, one is.

[00:10:46] Speaker 02:
I mean, they're both surreptitiously taking a photograph of female genitalia.

[00:10:52] Speaker 04:
They are.

[00:10:53] Speaker 04:
But the difference is between adult female genitalia.

[00:10:56] Speaker 04:
Well, first of all, in the upskirt videos, there's no actual female genitalia.

[00:11:00] Speaker 02:
But it could have been.

[00:11:03] Speaker 02:
They weren't taking upskirt videos to try to see nothing.

[00:11:06] Speaker 02:
No, they were trying to see something.

[00:11:08] Speaker 02:
So let me ask you this about our recent Summers case.

[00:11:12] Speaker 02:
Are you familiar with that one?

[00:11:15] Speaker 02:
It's August 1, so it's really new.

[00:11:20] Speaker 02:
But it was a case where Judge Timkovich wrote the opinion, and it's looking at modus operandi 404b evidence.

[00:11:30] Speaker 02:
And one of them came, one case, the prior case where they were taking the MO was a sex abuse case.

[00:11:39] Speaker 02:
And the case being prosecuted was a child pornography case.

[00:11:44] Speaker 02:
I mean, those are really different subject matters.

[00:11:47] Speaker 03:
What, was it a child sex abuse case?

[00:11:49] Speaker 03:
There was a child sex abuse case.

[00:11:51] Speaker 03:
And child pornography.

[00:11:52] Speaker 03:
Right.

[00:11:53] Speaker 03:
There's something with children in both of those cases.

[00:11:55] Speaker 03:
Here we have adults and children.

[00:11:57] Speaker 03:
We have something with surreptitious videoing of genitalia in both of these.

[00:12:01] Speaker 03:
Well, and certainly Mr. Bycroft is doing both.

[00:12:04] Speaker 04:
The question is, who is with him the first time?

[00:12:07] Speaker 04:
And of course, early in their relationship, the notion that you would jump into

[00:12:12] Speaker 04:
record child pornography seems to be a big stretch, but there's just not a similarity here.

[00:12:20] Speaker 04:
People who are interested in adult pornography, that fact alone doesn't tell you anything about whether they're interested in child pornography.

[00:12:27] Speaker 04:
Of course, some are interested in both, but what's at issue here is, is

[00:12:34] Speaker 04:
Is what was done with respect to adult women, does it tell you anything about what was done with a child, a six-year-old girl?

[00:12:43] Speaker 05:
This goes back to Judge Evel's point.

[00:12:45] Speaker 05:
I mean, she's not on trial for having curiant interest in child pornography.

[00:12:51] Speaker 05:
If that's not what's at issue here, there are multiple reasons why she could have taken those videos.

[00:12:57] Speaker 05:
I mean, they could have taken those videos so that they could put them on the internet, which they may well have intended to do.

[00:13:03] Speaker 05:
Either one of those could have been that purpose.

[00:13:05] Speaker 05:
The fact of the matter is, you have to...

[00:13:08] Speaker 05:
allegedly, and that's what they're trying to prove, to people who have the same activity that they engage in.

[00:13:16] Speaker 05:
And by same activity, I mean trying to take pictures of someone's genitalia.

[00:13:22] Speaker 05:
And no one doesn't have to say, well, I don't like children, genitalia of children.

[00:13:28] Speaker 05:
I mean, that's not the point.

[00:13:29] Speaker 05:
Who cares?

[00:13:30] Speaker 05:
I mean, if you're doing it for a reason quite apart from,

[00:13:34] Speaker 05:
your period interest in it, what difference does it make?

[00:13:36] Speaker 04:
Well, if they were taking surreptitious pictures of something that wasn't female genitalia, adult genitalia, in another context, you wouldn't try to translate that to this context.

[00:13:46] Speaker 05:
No, I wouldn't.

[00:13:47] Speaker 05:
But it seems to me what we're talking about is the same object.

[00:13:50] Speaker 04:
No, the object is very different.

[00:13:52] Speaker 04:
The object is adult women in one case and children in another.

[00:13:55] Speaker 04:
It's seeing what is otherwise hidden in one case and the act of manipulation to expose a young girl in another case.

[00:14:04] Speaker 04:
So they're just very different.

[00:14:07] Speaker 04:
And there's nothing unique.

[00:14:08] Speaker 04:
I'm sorry.

[00:14:09] Speaker 00:
No.

[00:14:09] Speaker 00:
Well, you spent a lot of time in here and oral argument and certainly in your briefs about these being different subjects.

[00:14:17] Speaker 00:
If we were to disagree with you on that, if we were to say that the sexual content of both, the female gender issue of both, and the photographing of both is enough,

[00:14:33] Speaker 00:
At that point, do you lose or do you have other arguments?

[00:14:35] Speaker 04:
No, because on identity, what would really have to be present here is a signature quality, something which clearly shows that she was the same, that whoever recorded, that the obscuring videos were done in such a unique way that it marked her as necessarily the recorder of

[00:14:54] Speaker 04:
What happened at the pool?

[00:14:55] Speaker 00:
I was intrigued by that phrase in your briefing.

[00:14:58] Speaker 00:
Signature quality is not something that usually pops up in the cases I'm familiar with.

[00:15:03] Speaker 00:
That implies that there's something unique about the crime.

[00:15:07] Speaker 00:
95% of the crimes that we have up here have no signature quality.

[00:15:12] Speaker 00:
They are sale of drugs, no signature quality.

[00:15:15] Speaker 00:
They're an act of revenge or a gang thing.

[00:15:21] Speaker 00:
And we don't admit those on identity, typically.

[00:15:23] Speaker 00:
There must be some signature quality.

[00:15:25] Speaker 00:
It's just an odd characteristic to add to the complexity of the law.

[00:15:30] Speaker 04:
Well, it certainly was reflected in this court's case law on 404B.

[00:15:35] Speaker 04:
When you're looking for identity.

[00:15:37] Speaker 00:
When it's there.

[00:15:38] Speaker 00:
It bolsters the case, but I don't know that it has to be there.

[00:15:43] Speaker 00:
I just am not aware of it.

[00:15:44] Speaker 04:
I mean, this court, in the cases we saw in the briefs, say there has to be a distinctive quality that's unique enough to create a strong inference that the person in

[00:15:54] Speaker 05:
event A is the same person as in event B. And the unique quality is photographing of somebody genitalia.

[00:16:01] Speaker 05:
But the word signature quality is generally associated with the modus operandi proper purpose.

[00:16:08] Speaker 05:
It's not identity.

[00:16:09] Speaker 05:
And those two things aren't the same thing.

[00:16:13] Speaker 05:
Do you disagree with that?

[00:16:14] Speaker 04:
No, but the modus operandi helps show the identity of the person doing it.

[00:16:18] Speaker 05:
Yes, but those are two, three proper purposes, right?

[00:16:22] Speaker 04:
Well, it could be used to show identity here, for example, through her voice, which is on both.

[00:16:27] Speaker 04:
That's a permissible use of identity.

[00:16:29] Speaker 04:
It doesn't require a modus operandi.

[00:16:32] Speaker 04:
But the way it is here, leaving aside her voice, which we agree could have been played for the jury if the court had eliminated it, but it didn't, what it did do was

[00:16:43] Speaker 04:
present.

[00:16:44] Speaker 04:
other act evidence to show that she was necessarily the same person because she did it in the same way.

[00:16:50] Speaker 05:
I guess the point that I want to drill down on is identity and modus operandi are separate proper purposes under Rule 44B, right?

[00:16:58] Speaker 04:
Yes, but I think modus operandi shows who is doing the crime.

[00:17:04] Speaker 05:
And it shows a signature identity in that line of authority relates to modus operandi.

[00:17:10] Speaker 05:
It doesn't relate to identity per se, does it?

[00:17:12] Speaker 04:
I think it does here, yes.

[00:17:14] Speaker 05:
What case do you have that says it's required that there be a signature quality to prove identity under 404B?

[00:17:21] Speaker 04:
I don't have it off the top of my head, but we cited in our brief such cases.

[00:17:25] Speaker 05:
OK, fine.

[00:17:26] Speaker 05:
Thank you.

[00:17:27] Speaker 05:
Thank you.

[00:17:41] Speaker 01:
Good morning again, Your Honors.

[00:17:43] Speaker 01:
Lisa Williams, representing the United States of America.

[00:17:47] Speaker 01:
The dispute in this appeal boils down to the weight that the defense gives to these two different types of filming.

[00:17:59] Speaker 01:
And he argues in writing and today that they're just too disparate to be similar enough to fall under 404B.

[00:18:07] Speaker 01:
The district court disagreed.

[00:18:09] Speaker 01:
And I don't think that this court can find that that's an abuse of discretion, because there's just simply no clear error of judgment, and it doesn't exceed the bounds of permissible choice.

[00:18:20] Speaker 01:
For the exact same reasons that Your Honors identified already, that these are surreptitiously filmed videos of women's genitalia.

[00:18:29] Speaker 01:
And I would add that they're also done in public or semi-public settings as well.

[00:18:35] Speaker 01:
The dressing rooms are public, the pool's a public party,

[00:18:38] Speaker 01:
And so those factors are sufficient to make them so similar that they were properly admitted under 404B.

[00:18:48] Speaker 02:
Did the government propose any other form of evidence to reach the same, I don't mean to reach the same result, but to have the same effect

[00:19:01] Speaker 02:
Like Mr. Pinkus was talking about, just using audio, or maybe the jury could have just been told that there was some surreptitious upskirting, or... I don't recall a stipulation or a limiting proposal like that in the record, and I wasn't trial counsel, so... Right.

[00:19:24] Speaker 02:
And I'm not saying you had to do it.

[00:19:25] Speaker 02:
I'm just curious if there was any, if you view it as any, was there any other way to do this that could have been less prejudicial?

[00:19:33] Speaker 01:
You know, if the videos only spoke to her voice, and that's the reason they were being admitted, then I think just emitting the audio from the Peeping Tom videos would have been less prejudicial.

[00:19:43] Speaker 01:
But those videos don't just speak to her voice.

[00:19:46] Speaker 01:
I mean, it is

[00:19:49] Speaker 01:
really significant that she goes out in public with her husband and they make secret videos.

[00:19:56] Speaker 01:
Because this is not a sexual interest case.

[00:19:59] Speaker 01:
An MO.

[00:20:00] Speaker 01:
The MO.

[00:20:00] Speaker 01:
I mean, they work together with a common scheme or plan to make these videos.

[00:20:07] Speaker 01:
And we don't, you know, we hear a lot, oh, sexual interest in kids and adults.

[00:20:11] Speaker 01:
First of all, that argument is completely blind by the fact that Jason

[00:20:16] Speaker 01:
Bycroft, the co-definite, is involved in both of these videos.

[00:20:20] Speaker 05:
Well, that's presuming that she's involved in both of the videos, and that's the question we need to decide, right?

[00:20:25] Speaker 01:
Correct.

[00:20:26] Speaker 01:
But counsel stood up here and said, oh, you know, people who are interested in child porn aren't interested in adult porn.

[00:20:31] Speaker 01:
Jason Brant Bycroft sure is, because he pled guilty and he admitted his involvement with the upskirt video.

[00:20:37] Speaker 01:
So we know at least one guy out there is interested in both child

[00:20:40] Speaker 05:
And as it relates to this modus operandi theory, which the district court did not rely on, the idea there that modus operandi could turn on the same third party being involved in both offenses, do you have any authority that supports that?

[00:20:59] Speaker 01:
I don't, Your Honor.

[00:21:01] Speaker 01:
I do think it speaks to the common scheme or plan, which the district court did find on, that the two of them together, husband and wife, have a common scheme and plan to film Sir Tippish's videos together.

[00:21:15] Speaker 05:
And that would imply

[00:21:17] Speaker 05:
that these two events, the one in 2015 and the one in 2017 or so, or 2018, were joined together in this was our thing.

[00:21:28] Speaker 05:
This is what we did as a common scheme or plan.

[00:21:31] Speaker 05:
I'm sort of troubled to find that to be right.

[00:21:34] Speaker 05:
And if that is not right, let me just skip ahead from the merits question, whether that's right or not.

[00:21:39] Speaker 05:
Let's assume that I were to find that that proper purpose was infirm, okay?

[00:21:45] Speaker 05:
That, in other words, the court was wrong to allow the jury to consider that purpose.

[00:21:50] Speaker 05:
What I want to know from you is what is the implication of that?

[00:21:55] Speaker 05:
Because you have an instruction that allowed a jury to consider three purposes.

[00:22:00] Speaker 05:
and I'm positing just as an assumption that one of the three is wrong.

[00:22:06] Speaker 05:
What is the implication of that?

[00:22:08] Speaker 01:
I think the easiest implication is to run it under the harmless error analysis.

[00:22:13] Speaker 01:
That if it was wrong, it's still coming in under those other two permissible prongs and the jury would still be able to see it and therefore the chances of a different verdict under harmless error are not, a defendant hasn't met his burden to prove that.

[00:22:29] Speaker 01:
I do want to mention, I think it is confusing or the record is less than clear when these videos were in fact made because there were several videos and the district court limited the government to three videos out of the upskirt videos and I would just note that the PSR notes

[00:22:47] Speaker 01:
that there were videos made in September of 2015, which is just a few months after this, October of 2015, and January of 2016.

[00:22:58] Speaker 01:
Those are the Plato Closet video series.

[00:23:02] Speaker 05:
But those videos aren't at issue here.

[00:23:04] Speaker 05:
We're talking about the Peeping Tom video.

[00:23:06] Speaker 01:
No, those are Peeping Tom videos, Your Honor.

[00:23:08] Speaker 01:
I think it's less than clear from the record of this whole universe of videos if any of the Plato Closet videos were admitted at trial.

[00:23:18] Speaker 01:
The record's less than clear about which videos of this whole piece, because there were a lot of peeping Tom videos.

[00:23:24] Speaker 01:
And to distill some of the prejudice, the district court said, you only get three.

[00:23:30] Speaker 01:
I'm only going to let you admit three of the Peeping Tom videos then.

[00:23:33] Speaker 05:
And you're telling me that there is no, we have no certainty as to what the date range was?

[00:23:39] Speaker 05:
I mean, what we heard, I think from one witness, it may, I may have been the defendant herself, but we heard from one witness there would have been 2017-2018 on the Peeping Tom video.

[00:23:50] Speaker 01:
And some of the videos were from that timeframe as well, Your Honor.

[00:23:54] Speaker 01:
Absolutely.

[00:23:55] Speaker 01:
And that may be one.

[00:23:56] Speaker 01:
I tried to go through before this oral argument and nail down when each of the three videos were created.

[00:24:03] Speaker 01:
And I unfortunately could not piece that together with enough certainty to make a representation, exhibit,

[00:24:12] Speaker 01:
Four was from this year, five was from this year, and exhibit six was from this year.

[00:24:17] Speaker 05:
And so theoretically, some of these videos, would they have all been after the charge video?

[00:24:24] Speaker 01:
Yes.

[00:24:26] Speaker 01:
All of the conduct takes place after the July 4th pool party.

[00:24:30] Speaker 01:
That's in 2015.

[00:24:30] Speaker 01:
So yes, all of these videos are subsequent.

[00:24:33] Speaker 01:
But some are only a few months subsequent.

[00:24:36] Speaker 00:
And I think even if those... Those were never put into evidence at all.

[00:24:40] Speaker 00:
We have no evidence about these other videos at all.

[00:24:46] Speaker 00:
Is that right?

[00:24:47] Speaker 01:
Well, the jury didn't hear the evidence.

[00:24:50] Speaker 00:
Yeah, if the jury didn't hear them, can we consider them?

[00:24:54] Speaker 01:
I think that the court could consider them.

[00:24:57] Speaker 01:
When making the timing analysis of are these similar in time, are they remote in time, the court can consider whether or not this surreptitious videoing took place.

[00:25:11] Speaker 05:
Let me back up.

[00:25:17] Speaker 05:
If I understood Judge Ebell's question, the issue was whether some of these Peeping Tom videos would have been the ones that occurred in late 2015, 2016.

[00:25:29] Speaker 05:
And I understand from you that you cannot with certainty tell us the answer is no.

[00:25:34] Speaker 01:
That's correct.

[00:25:35] Speaker 01:
I can't without... But what I can tell you... That just leaves us agnostic then.

[00:25:39] Speaker 01:
Well, except here's the point I want to make on that.

[00:25:41] Speaker 01:
So when the district court is evaluating the peeping Tom videos under the 404B test.

[00:25:48] Speaker 01:
And it's saying, is this course of conduct similar in time or is it remote in time?

[00:25:53] Speaker 01:
I think it makes a difference if you have a whole series of conducts starting in 15 and continuing to 18.

[00:26:00] Speaker 01:
And you look at that and you say, oh, it's similar in time.

[00:26:03] Speaker 01:
It's close to time.

[00:26:04] Speaker 01:
So yeah, these videos are coming in.

[00:26:06] Speaker 01:
Now, government, you pick the three that you want.

[00:26:09] Speaker 01:
Whereas if the first video was from 2018, then you have to look at it and say, well, this is three years after

[00:26:16] Speaker 01:
the pool videos, it's less similar in time.

[00:26:19] Speaker 01:
And so when this court is evaluating whether the district court abused its discretion in evaluating that factor, I think it can consider the totality of the timing of the videos.

[00:26:33] Speaker 00:
Was the dissimilarity in timing argued by the defendant below?

[00:26:42] Speaker 01:
I don't know the answer to that, Your Honor.

[00:26:44] Speaker 02:
Did the government make an offer of proof on the videos that didn't come in?

[00:26:49] Speaker 01:
No, Your Honor.

[00:26:57] Speaker 01:
These also videos speak to one of the other proper processes.

[00:27:01] Speaker 05:
On your offer of proof response, you're not saying, however, or are you saying that the court was not aware that there were other videos post-July pool party and pick three?

[00:27:14] Speaker 05:
That's what I thought I heard you say.

[00:27:17] Speaker 01:
The court was, before we got to trial, yes.

[00:27:21] Speaker 01:
My understanding is that there was a motion hearing.

[00:27:24] Speaker 01:
The government argued this.

[00:27:27] Speaker 01:
I think even provided all of the pool videos to the court.

[00:27:30] Speaker 01:
The court went back into chambers, reviewed the motions, looked at the videos, and then said, in its written order, I'm going to let you admit these, but not all of them.

[00:27:41] Speaker 01:
It's a waste of time.

[00:27:42] Speaker 01:
It's repetitive.

[00:27:43] Speaker 01:
You don't get all of them.

[00:27:44] Speaker 01:
So you can identify three that you would like.

[00:27:47] Speaker 05:
And so under that theory, the idea would be that in considering whether they were remote or closer in time, whether they might speak a common scheme or plan, that even though they were not admitted and presented to the jury as in making this evidentiary threshold determination,

[00:28:08] Speaker 05:
the court could consider the context in which the videos existed.

[00:28:12] Speaker 01:
Exactly, Your Honor.

[00:28:13] Speaker 01:
That's the government's argument with respect to these other videos.

[00:28:17] Speaker 00:
I'm just unclear what the evidentiary basis for that is.

[00:28:21] Speaker 00:
Are they in the record but not submitted to the jury?

[00:28:24] Speaker 00:
Or are they not even in the record?

[00:28:25] Speaker 00:
And if not, except for just saying, well, that's what counsel said, so that's good enough for us, how can we rely on this argument, the basis for your argument?

[00:28:34] Speaker 01:
They certainly were never submitted to the jury.

[00:28:37] Speaker 01:
Only three videos went to the jury.

[00:28:39] Speaker 01:
Whether they are in the record, it does not appear that the videos were filed as exhibits to the motion to suppress hearing.

[00:28:47] Speaker 01:
And so I don't have them to provide to the court in that sense, but the transcript of the motion to suppress hearing does indicate that the court received the exhibits, the videos, and would go back and watch them.

[00:28:59] Speaker 00:
And the transcript identifies some of the date ranges of these videos?

[00:29:04] Speaker 01:
No, Your Honor, the date ranges are then identified in the PSR in paragraph 15.

[00:29:14] Speaker 05:
And was there an objection to that?

[00:29:16] Speaker 01:
And there's no objection to that.

[00:29:17] Speaker 05:
Finally, we got to some evidence.

[00:29:21] Speaker 01:
It took me a while to find it too, Your Honor, but yes, it is unobjected to facts in the PSR, paragraph 15.

[00:29:26] Speaker 01:
That's how I know those dates is from the PSR.

[00:29:30] Speaker 02:
Poor Mr. Pincus is back there scratching his head.

[00:29:34] Speaker 01:
I also do want to speak to another proper purchase, which is mistake or accident, right?

[00:29:42] Speaker 01:
And it's particularly present in this case because when FBI first talks to Ms.

[00:29:47] Speaker 01:
Bycroft about the upskirt videos,

[00:29:49] Speaker 01:
She says, oh my gosh, that was a mistake.

[00:29:52] Speaker 01:
Sometimes my phone just goes off by accident, and I guess it accidentally records things.

[00:29:57] Speaker 01:
So of course, going into trial, the government does not know her defense.

[00:30:02] Speaker 01:
She's entered the general denial, not guilty plea.

[00:30:05] Speaker 01:
And of course, the government is prepared for a mistake or accident defense, which is I was filming at the pool, and we thought it was a happy time, and we thought,

[00:30:14] Speaker 01:
I thought Jason was going to throw her up in the air and do a flip and then all of a sudden this happens.

[00:30:20] Speaker 01:
Well, no, you didn't because you two go out together and you surreptitiously film videos of women's genitalia.

[00:30:29] Speaker 01:
You weren't mistaken.

[00:30:31] Speaker 01:
You knew what he was going to do.

[00:30:32] Speaker 01:
And that speaks directly also to her knowledge that she was going to be manufacturing and producing.

[00:30:39] Speaker 00:
Wasn't there also some video on the first one that tends to support it?

[00:30:44] Speaker 00:
She said, I got it, or something like that.

[00:30:47] Speaker 01:
Are you ready?

[00:30:48] Speaker 01:
She asked him if he's ready.

[00:30:50] Speaker 01:
Yes.

[00:30:50] Speaker 01:
So there are some words that also address that it wasn't a mistake within the videos itself.

[00:30:57] Speaker 01:
Moore is always better in terms of evidence for the government, Your Honor.

[00:31:03] Speaker 05:
And this mistake statement, was that relating to the pool video or to the Peeping Tom video?

[00:31:11] Speaker 01:
That was to the Peeping Tom video.

[00:31:13] Speaker 01:
The FBI interviewed her about those and she said, oh, my phone just goes off in the dressing rooms.

[00:31:18] Speaker 01:
So as I mentioned, this court only needs to find that one of the 404B purposes is proper in this case.

[00:31:29] Speaker 01:
And if the other two, there was some issue with them, then I think that would fall under the harmless error analysis, which in this case, there is a lot of strong evidence.

[00:31:39] Speaker 01:
You have three people who know Ms.

[00:31:41] Speaker 01:
Bycroft fairly well, her mother-in-law, sister-in-law, and a family friend, saying that it's her

[00:31:48] Speaker 01:
voice on the video.

[00:31:49] Speaker 01:
You also have the fact that, I mean, who else, right?

[00:31:53] Speaker 01:
In a way, there's some different evidence on the size of this party.

[00:31:57] Speaker 01:
I think 20 is the low end and maybe 60 people are at the party.

[00:32:01] Speaker 01:
It is a big party.

[00:32:02] Speaker 01:
But who goes and films child porn with another guy at a pool party other than

[00:32:12] Speaker 01:
someone who knows him, such as his wife.

[00:32:15] Speaker 01:
Don't ask me.

[00:32:19] Speaker 01:
Your Honor, it's funny.

[00:32:20] Speaker 01:
I teach at the law school, and I was telling my students about this argument.

[00:32:24] Speaker 01:
And I told them, if you're ever on a date at the pool party, and you're on a date, ask you to start filming.

[00:32:29] Speaker 01:
The date ends.

[00:32:30] Speaker 01:
I said, you need to walk away from that date.

[00:32:32] Speaker 01:
But it doesn't make sense, right?

[00:32:34] Speaker 01:
I mean, there's this intuitive sense that we all get that, of course, it has to be his wife.

[00:32:39] Speaker 01:
And that speaks to the weight of the evidence as well.

[00:32:42] Speaker 05:
Well, at that time, it wasn't his wife, right?

[00:32:45] Speaker 05:
In the pool video.

[00:32:46] Speaker 01:
You are correct.

[00:32:47] Speaker 01:
He was not married at the time of the pool video.

[00:32:49] Speaker 01:
They did get married after that.

[00:32:51] Speaker 01:
And I see my time has expired.

[00:32:53] Speaker 01:
And so unless there are other questions from the bench, the government would rest on its briefs.

[00:32:58] Speaker 01:
Thank you.

[00:32:59] Speaker 05:
One minute, Mr. Pincus.

[00:33:10] Speaker 04:
At the pool party, there was no proof that there was anything that the camera was hidden or the recording device was hidden.

[00:33:18] Speaker 04:
In fact, it was clearly aimed at the person, unlike with the upskirt videos where it was put under a skirt.

[00:33:26] Speaker 04:
So the notion that this was done where nobody could see what was going on is false.

[00:33:34] Speaker 04:
There was a potential to be seen.

[00:33:35] Speaker 04:
Of course, nobody wants to be seen committing a crime.

[00:33:38] Speaker 04:
But that doesn't make anything unique.

[00:33:40] Speaker 04:
It's not our burden to show harm.

[00:33:42] Speaker 04:
I think opposing counsel was saying we haven't met our burden to show harmlessness.

[00:33:47] Speaker 04:
And again, on identity, there's nothing here from the upskirting videos that itself would show she was the one in the recording the pool videos, other than a modus operandi that would say these two were necessarily doing the same kind of thing.

[00:34:07] Speaker 04:
And that would require the uniqueness.

[00:34:08] Speaker 02:
Well, the voice.

[00:34:09] Speaker ?:
The voice.

[00:34:10] Speaker 04:
The voice shows that she was doing the, and we've conceded, the voice could have been admitted for a comparison purpose.

[00:34:17] Speaker 04:
I'm talking about, apart from that, to actually show the conduct in the upskirting videos.

[00:34:23] Speaker 04:
That's what's improper.

[00:34:25] Speaker 04:
It's not like using a particular car at one place, and you know that if the car was at the other place, it must be the same person.

[00:34:31] Speaker 04:
There's no such distinctive link here.

[00:34:34] Speaker 04:
It would have to be modus operandi that would show identity, and that would require signature quality.

[00:34:38] Speaker 04:
Thank you.

[00:34:41] Speaker 05:
Thank you, Council.

[00:34:42] Speaker 05:
The case is submitted.