[00:00:00] Speaker 01:
We'll call our next case 24-3186, United States versus Morgan.

[00:00:06] Speaker 03:
Go ahead, counsel.

[00:00:07] Speaker 03:
Judge Carson, may it please the court.

[00:00:09] Speaker 03:
My name is Dan Hansmeyer.

[00:00:10] Speaker 03:
I'm with the Kansas Federal Defender's Office, and I'm here on behalf of the appellant, Brett Morgan.

[00:00:19] Speaker 03:
This is yet another trial appeal on the docket today.

[00:00:22] Speaker 03:
There are a lot of issues.

[00:00:25] Speaker 03:
Sorry about that.

[00:00:27] Speaker 03:
There are a lot of issues because we think a lot of things went wrong.

[00:00:32] Speaker 03:
To be honest with you, I basically need to run the tables on this appeal for it to do anything.

[00:00:37] Speaker 03:
For Morgan, he's got 80 years in prison, and if we don't win everything, he's probably going to die there.

[00:00:44] Speaker 03:
So I don't really have a strategy for picking out issues.

[00:00:48] Speaker 03:
They're all important.

[00:00:49] Speaker 03:
I would love to talk about all of them.

[00:00:51] Speaker 03:
Obviously, I'm not going to be able to do that in 12 minutes, so if anybody

[00:00:56] Speaker 03:
has anything in particular they want to talk about, I'm all for it.

[00:01:02] Speaker 01:
Could we talk about the evidentiary rulings first?

[00:01:04] Speaker 01:
Sure.

[00:01:05] Speaker 01:
If that's OK with my colleagues here?

[00:01:07] Speaker 01:
Sure.

[00:01:10] Speaker 01:
You had a question or you just want me to?

[00:01:12] Speaker 01:
Just give me your pitch and I'll probably have some questions.

[00:01:16] Speaker 03:
So the rule 807, just go through all of them?

[00:01:20] Speaker 01:
Let's talk about your 403 argument first.

[00:01:23] Speaker 03:
Oh, the Castillo command they're asking for?

[00:01:25] Speaker 01:
Yeah.

[00:01:28] Speaker 01:
I'll just go ahead and throw out my question.

[00:01:30] Speaker 01:
So my question is, there's an argument as to the 807 argument that it would be harmless, that it was harmless.

[00:01:39] Speaker 01:
So if the district court didn't give a great reasoning on the 403 ruling, or even if it was just really perfunctory,

[00:01:52] Speaker 01:
Is that subject to harmless air review?

[00:01:56] Speaker 03:
So I'm not sure how to answer that.

[00:01:58] Speaker 03:
Our basic submission on the Rule 403 is we just think the district court should tell us what was in its head.

[00:02:07] Speaker 03:
And we think that's what this court did in Castillo.

[00:02:10] Speaker 03:
We think that's what this court should do here.

[00:02:12] Speaker 03:
And then when we know, we can have the discussion.

[00:02:17] Speaker 00:
What's the difference between this limited full remand request?

[00:02:22] Speaker 03:
So, I mean, as I understand, I don't know if anybody remembers post-Booker when everybody wanted a re-sentencing based on Booker.

[00:02:30] Speaker 03:
I don't know the case from the 10th Circuit.

[00:02:33] Speaker 03:
I was in the 7th Circuit at the time, but they were called Palladino Remands, where they would just ask the district court, do you want to re-sentence this person?

[00:02:45] Speaker 03:
And if the answer was yes, they'd send it back.

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If the answer was no.

[00:02:48] Speaker 03:
So it would be something like that.

[00:02:49] Speaker 03:
I mean, we just need.

[00:02:50] Speaker 00:
Like we would request an indicative ruling from the district.

[00:02:53] Speaker 00:
Yes.

[00:02:54] Speaker 00:
OK.

[00:02:55] Speaker 00:
Can I ask you another question about the evidence, the evidentiary arguments?

[00:03:01] Speaker 00:
And it's a very basic one.

[00:03:04] Speaker 00:
In your brief, you talk about these 807 challenges and so on relate to this uncharged conduct.

[00:03:11] Speaker 00:
Yes.

[00:03:11] Speaker 00:
We're talking about sexual abuse evidence, uncharged conduct.

[00:03:14] Speaker 00:
Are we talking exclusively about MV3's forensic interview statements?

[00:03:19] Speaker 00:
Is there anything else, or is it just MV3's forensic interview statements?

[00:03:24] Speaker 03:
That's it?

[00:03:25] Speaker 00:
That's it.

[00:03:26] Speaker 03:
OK.

[00:03:26] Speaker 03:
So it came in twice.

[00:03:28] Speaker 03:
It's a little confusing.

[00:03:29] Speaker 00:
So the background and then the, yeah.

[00:03:31] Speaker 00:
So it came in, but we're not talking about some other body of uncharged conduct evidence, right?

[00:03:38] Speaker 00:
OK.

[00:03:38] Speaker 00:
That's right.

[00:03:38] Speaker 00:
Yes.

[00:03:39] Speaker 00:
Sorry to interrupt your train there.

[00:03:41] Speaker 01:
No, that's fine.

[00:03:43] Speaker 01:
No, we're on my issue.

[00:03:45] Speaker 01:
And you actually answered my question about your position on 403.

[00:03:49] Speaker 03:
OK.

[00:03:50] Speaker 03:
I mean, I don't know if I have any great insight on the other issues.

[00:03:53] Speaker 03:
I mean, I think it's very straightforward.

[00:03:55] Speaker 03:
I think McFadden is great for us on Rule 807.

[00:03:58] Speaker 03:
I think this is an obvious abuse of discretion.

[00:04:00] Speaker 03:
Our facts are very similar.

[00:04:02] Speaker 03:
I think our facts are better, because in McFadden, it was actually the charged defense conduct.

[00:04:07] Speaker 03:
This isn't even the charged defense conduct.

[00:04:10] Speaker 03:
And then on the background, you know, Henson and Capps are really good for us.

[00:04:17] Speaker 03:
I think they, you know, that was also a clear abuse of discretion.

[00:04:21] Speaker 03:
So I think we're in pretty good shape there.

[00:04:23] Speaker 03:
I don't really have much else on the evidentiary issues.

[00:04:26] Speaker 01:
Let me ask you one thing about it first.

[00:04:28] Speaker 01:
Okay.

[00:04:28] Speaker 01:
It sounds like Judge Rossman has something else too.

[00:04:32] Speaker 01:
Okay.

[00:04:32] Speaker 01:
Is your beef on Rule 807 that

[00:04:37] Speaker 01:
or part of your beef, that she started to testify about all of this background and got a lot of it out before she sort of quit wanting to answer questions.

[00:04:50] Speaker 01:
Is your position that, look, they already talked about that.

[00:04:55] Speaker 01:
She got most of it out.

[00:04:57] Speaker 01:
A year ago, it wasn't a proper situation to allow this report to come in.

[00:05:06] Speaker 03:
I mean, I don't even know that she didn't want to, I mean, I think she testified that he did what he did.

[00:05:12] Speaker 03:
And that was the evidence that was probative on what I don't even know what it's probative on.

[00:05:20] Speaker 03:
It's not part of the offense conduct, but getting her.

[00:05:24] Speaker 03:
You know, what McFadden says is that Rule 807 is in the general catch-all provision, and you can't just use it if there is tepid trial testimony.

[00:05:32] Speaker 01:
Yeah, no, fair enough.

[00:05:33] Speaker 01:
And that's what I'm getting at.

[00:05:34] Speaker 01:
I mean, she did at the end sort of start giving the, I don't remember, I don't really want to talk about that answers.

[00:05:43] Speaker 03:
I mean, I don't...

[00:05:44] Speaker 03:
I didn't read the record that way, and if that's what happened, it's still, again, it's uncharged conduct.

[00:05:50] Speaker 03:
She testified that he abused her.

[00:05:52] Speaker 03:
I mean, there's no other reason to do this other than it's prejudicial.

[00:05:57] Speaker 01:
Well, there were things, I mean, maybe you're right, but maybe not.

[00:06:02] Speaker 01:
There were things in there like she identified the phone that he was using.

[00:06:09] Speaker 01:
You know, some of her statements corroborated what was going on, at least for the government's theory in the videos.

[00:06:19] Speaker 03:
I mean, Judge Carson, you have to remember that Rule 807 says it has to be more probative than other evidence.

[00:06:25] Speaker 03:
They found the phone on him.

[00:06:28] Speaker 01:
I mean, they don't need... No, fair enough.

[00:06:31] Speaker 03:
But I mean, those are things... I mean, it's fine, but it's just not more probative than the evidence the government had and introduced at trial.

[00:06:39] Speaker 01:
And I guess your thought on whether it corroborates the videos or sort of the videos are speaking for themselves.

[00:06:48] Speaker 03:
Yeah, exactly.

[00:06:49] Speaker 03:
I don't know how it's more probative than anything the government did at trial.

[00:06:54] Speaker 01:
So considering that they found the phone on him, that the videos were pretty explicit and telling, how's there any harm from that?

[00:07:06] Speaker 03:
So I think harm for us, we hope that there are more than one errors and that you will do a community analysis, which would help specifically on her test, her statements, her out-of-court statements

[00:07:18] Speaker 03:
Look, I get that she testified and that's a problem.

[00:07:20] Speaker 03:
McFadden recognizes that's a problem.

[00:07:23] Speaker 03:
I'll say one thing on that is that if you're a district court judge and you don't want reversed, you always let this stuff in under rule 807 because the court's either going to say it's not an abuse of discretion or it's harmless because there was testimony and it didn't matter.

[00:07:39] Speaker 03:
It's like this catch-22.

[00:07:40] Speaker 03:
It's frustrating.

[00:07:42] Speaker 03:
But putting that aside, I think on harmlessness, it's just the nature of the evidence and just beating

[00:07:48] Speaker 03:
the jury over the head with it, and it's not why we were at trial.

[00:07:52] Speaker 03:
I mean, that's my pitch.

[00:07:57] Speaker 01:
No, fair enough.

[00:07:58] Speaker 01:
And it sounds to me, tell me if this is a fair statement.

[00:08:01] Speaker 01:
If this was the only harm you were bringing to us today, you would probably be hard pressed to say that it's reversible.

[00:08:11] Speaker 01:
But tacked on to the other stuff, we're starting to make a difference.

[00:08:17] Speaker 03:
I mean, I think that's fair.

[00:08:19] Speaker 03:
I will say, I mean this, you know.

[00:08:20] Speaker 01:
I'm not asking you to concede it, I'm just.

[00:08:22] Speaker 03:
I do think the difference between McFadden in this case is that it is uncharged conduct.

[00:08:26] Speaker 03:
I mean, that's the only distinction because McFadden makes, you know, I think McFadden is great for us and it does talk about how it's harmless or there, yeah.

[00:08:36] Speaker 03:
So the difference is this is uncharged, it was charged there, but I don't disagree with what you're saying.

[00:08:42] Speaker 03:
Okay.

[00:08:42] Speaker 03:
It's definitely helpful to have more than one heir.

[00:08:47] Speaker 03:
Okay, so I'm sort of fascinated by issues two and five.

[00:08:52] Speaker 03:
I don't know if anybody else is.

[00:08:54] Speaker 03:
I'm already down to six minutes.

[00:08:56] Speaker 03:
I do want to talk about multiplicity and the forfeiture waiver, and hopefully this argument makes sense because I think this is actually a very important argument on when you have to raise a multiplicity challenge.

[00:09:09] Speaker 03:
And I know that there is the line of precedent about Rule 12B and good cause, but the rule says

[00:09:15] Speaker 03:
If the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits.

[00:09:22] Speaker 03:
And I just hopefully our position, I know we don't have many words, hopefully our position is clear that there is no prohibition against simultaneous prosecutions.

[00:09:35] Speaker 03:
It is the convictions that matter, so this in fact

[00:09:40] Speaker 03:
was not something that could have been raised pretrial.

[00:09:43] Speaker 03:
I hope that's clear.

[00:09:44] Speaker 03:
I think that's right.

[00:09:45] Speaker 03:
And obviously, you have a case.

[00:09:46] Speaker 00:
Can you say more about that?

[00:09:47] Speaker 00:
I'm not really following your argument.

[00:09:50] Speaker 00:
So the government's position is that this isn't properly before us, right?

[00:09:59] Speaker 03:
Yes.

[00:09:59] Speaker 00:
OK.

[00:10:00] Speaker 00:
And plain error review doesn't even apply?

[00:10:03] Speaker 03:
Correct.

[00:10:03] Speaker 00:
OK.

[00:10:04] Speaker 00:
And so what is your response to all of that?

[00:10:06] Speaker 03:
So our response is the language I just quoted from the rule says that you don't have to raise something pretrial if it can't be determined without a trial.

[00:10:15] Speaker 03:
And what I'm saying is that multiplicity is not fatal to an indictment.

[00:10:20] Speaker 03:
That's black letter law.

[00:10:24] Speaker 03:
What double jeopardy precludes are two things, successive prosecutions and multiple punishments.

[00:10:33] Speaker 03:
And so he can be tried on a multiplicitous indictment, and the jury could even convict on both.

[00:10:40] Speaker 03:
It is at that point that you get the remedy, which is vacating one of the convictions.

[00:10:45] Speaker 00:
Do you have any cases that support that view?

[00:10:49] Speaker 00:
That that support your reading of the rule in the way that you've just described?

[00:10:56] Speaker 03:
Well, I mean, I have.

[00:10:58] Speaker 03:
binding precedent from this court that says Plain Air Review applies, it doesn't say what I just said, but it's still binding precedent from this court.

[00:11:06] Speaker 00:
And it predates the amendments?

[00:11:09] Speaker 03:
That might be true.

[00:11:10] Speaker 03:
That might be true.

[00:11:11] Speaker 00:
Are you talking about McCullough?

[00:11:12] Speaker 03:
Yes.

[00:11:13] Speaker 03:
Yes.

[00:11:16] Speaker 03:
But I don't think it matters that it predates the amendment because of what I just said, that it's black-letter law, that you can literally be convicted on a multiplicity indictment.

[00:11:28] Speaker 00:
Well, I mean, I would agree with you.

[00:11:29] Speaker 00:
Our cases aren't crystal clear on this post-amendment.

[00:11:33] Speaker 03:
Yeah.

[00:11:37] Speaker 03:
I didn't want to talk about that.

[00:11:40] Speaker 03:
Obviously, the case we rely on in Ash is Ash.

[00:11:43] Speaker 03:
I think you just have to read that opinion.

[00:11:46] Speaker 03:
I do think that a few things I want to highlight about Ash that maybe didn't come out fully in the briefing.

[00:11:57] Speaker 03:
The discussion at the end of ASH about whether the conduct happened simultaneously, I think that's super important, because it did here, and what ASH says is that that matters.

[00:12:09] Speaker 03:
There's also a paragraph in ASH, because the government's just focusing on the first, this phrase, each use of a minor, and ignoring what comes after it to create a visual depiction, and we're focusing on the latter, so this kind of debate

[00:12:26] Speaker 03:
There is a paragraph in Ash where this court actually emphasizes the language we're relying on.

[00:12:32] Speaker 03:
Any visual depiction, it's literally in italics.

[00:12:36] Speaker 03:
I think that matters.

[00:12:38] Speaker 03:
I also think it matters that the court talks about how the harm of 2051 was about preventing pornographic materials, and the fact that the depiction is the reason why we're in federal court.

[00:12:51] Speaker 03:
Without the depiction, we're not in federal court, and that's why

[00:12:54] Speaker 03:
That's another reason why we think we're right on the unit of prosecution.

[00:12:57] Speaker 03:
It's plain under ASH, and those counts go away.

[00:13:01] Speaker 03:
And like I said, I mean, the fact that a few counts go away is not the ball game for the government.

[00:13:08] Speaker 03:
Issue two is sort of in a, well, I don't know.

[00:13:13] Speaker 01:
I guess I should reserve time for about.

[00:13:14] Speaker 01:
Let me stop there for just a second.

[00:13:16] Speaker 01:
And we're a little bit ahead of schedule, so let's, I'll

[00:13:20] Speaker 01:
Be lenient with you here, because I want to ask you about this.

[00:13:24] Speaker 01:
So just to button that one up, your position is look, the unit of prosecution is the depiction.

[00:13:30] Speaker 01:
We're talking about each depiction as opposed to each use.

[00:13:35] Speaker 01:
You don't necessarily dispute that there was a separate use for each kid in the depiction.

[00:13:43] Speaker 03:
I think I'm OK with that.

[00:13:44] Speaker 01:
OK.

[00:13:45] Speaker 01:
I mean, these things come up without a chance for reflection.

[00:13:51] Speaker 01:
Yeah.

[00:13:51] Speaker 01:
But OK, so I mean, there's two kids in the video.

[00:13:55] Speaker 01:
Right.

[00:13:56] Speaker 01:
Yeah.

[00:13:57] Speaker 01:
Yeah.

[00:13:57] Speaker 01:
And so I mean, how would you I was just thinking, you know, just as we sit here, I was just thinking in my head about,

[00:14:04] Speaker 01:
the sort of the child sexual assault cases that happen on the reservation sometimes that we get and where there are three charges of assault because when someone lays down with the child and reaches over them, they touch the breast and then they touch their rear end and then they touch

[00:14:29] Speaker 01:
In another part.

[00:14:31] Speaker 01:
So, and then it's three charges that you see.

[00:14:35] Speaker 01:
And there's at least some authority for that being okay.

[00:14:38] Speaker 01:
How does this one differ from that?

[00:14:41] Speaker 03:
So I think the difference is that you're getting cases in that context that are generally just state cases that are coming in under the major crimes act.

[00:14:50] Speaker 03:
And then the distinction I was just making was that under 2051, you need the depiction to be in federal court.

[00:14:58] Speaker 01:
Right.

[00:14:58] Speaker 03:
And so that's the distinction I would draw there.

[00:15:01] Speaker 01:
OK.

[00:15:02] Speaker 01:
All right.

[00:15:02] Speaker 01:
Fair enough.

[00:15:03] Speaker 01:
Judge Rosman?

[00:15:06] Speaker 00:
Too many questions.

[00:15:07] Speaker 01:
OK.

[00:15:07] Speaker 01:
Judge Kelly?

[00:15:09] Speaker 00:
Nothing.

[00:15:09] Speaker 01:
Thank you.

[00:15:10] Speaker 01:
OK.

[00:15:10] Speaker 01:
We're going to give you some rebuttals.

[00:15:11] Speaker 01:
OK.

[00:15:12] Speaker 01:
Appreciate it.

[00:15:33] Speaker 02:
Good morning, your honors.

[00:15:34] Speaker 02:
Brian Clark for the United States.

[00:15:36] Speaker 02:
May it please the court.

[00:15:37] Speaker 02:
Mr. Morgan's convictions on all 10 counts of child sexual exploitation should be affirmed.

[00:15:43] Speaker 02:
And I'll jump right in, Judge Carson, to your initial questions about Rule 403.

[00:15:48] Speaker 02:
Mr. Hansmeier referred to and relies on almost exclusively the Castillo case.

[00:15:53] Speaker 02:
The Castillo case was a Rule 414 case.

[00:15:57] Speaker 02:
And in this court's decision in Piet,

[00:16:01] Speaker 02:
This court said that the more rigorous explanation standard that applies to rule 414 evidence does not apply to evidence that is also admitted as resgeste.

[00:16:13] Speaker 02:
All of the evidence that Mr. Morgan challenges the admission of here was admitted as resgeste as well as under rule 414.

[00:16:24] Speaker 01:
And so our submission- I'm not sure he concedes that it's properly admitted under resgeste.

[00:16:31] Speaker 01:
Well, I think that's contested, isn't it?

[00:16:34] Speaker 02:
Not on appeal as I read the opening brief.

[00:16:36] Speaker 02:
And I would point you to page 47, footnote five of the opening brief.

[00:16:40] Speaker 02:
That's where Mr. Morgan addresses the evidence that came in as background.

[00:16:45] Speaker 02:
He made very clear there that his argument was about hearsay and not about res just a not about relevance, not about rule 414.

[00:16:54] Speaker 02:
Now in reply, he does come back and try to say, well, my hearsay argument is

[00:17:01] Speaker 02:
effectively the same as a resgeste argument and that's incorrect also because resgeste of course deals with

[00:17:09] Speaker 02:
the relationship between the conduct and the offense conduct, the prior conduct and the offense conduct, whereas hearsay has to do, well, at least in the background context, whether the statements that came in were necessary to give the jury context.

[00:17:28] Speaker 02:
So hearsay and resgeste are two separate concepts that Mr. Morgan, in reply, tries to conflate in order to, I think,

[00:17:38] Speaker 02:
sort of salvage his rule 403 argument.

[00:17:42] Speaker 01:
Assuming what you say is true, is your position that if this were a 414 case, and we were trying to decide whether you could have harmless error with respect to a 403 determination, maybe, maybe not.

[00:17:59] Speaker 01:
But that in this case, since you don't have the heightened burden required by 414, that absolutely harmless error would apply.

[00:18:08] Speaker 02:
Or maybe it's stronger.

[00:18:10] Speaker 02:
Yeah, so I do think harmless error applies, but I would be more specific than that.

[00:18:15] Speaker 02:
And I would point you to this court's decision in Silva, and then this court in Piatt applied that decision.

[00:18:21] Speaker 02:
In Silva, what this court said was the district court does not have to give a reasoned explanation of why the probative value isn't outweighed by the prejudicial value, as long as the record

[00:18:38] Speaker 02:
supports the district court's conclusion, that's sufficient.

[00:18:41] Speaker 02:
And this court, and Silva is a great example of this, Piet is also, this court, I think pretty regularly, digs through the record to see if a Rule 403 decision is supported by the record.

[00:18:54] Speaker 02:
But I would hasten to note also that Mr. Morgan is not challenging the district court's conclusion with respect to Rule 403 here.

[00:19:04] Speaker 02:
He's only challenging, and only kind of,

[00:19:07] Speaker 02:
the reasoning.

[00:19:08] Speaker 02:
And when you take a step back and say that the district court under Silva wasn't required to engage in this or to provide the more fulsome explanation that Mr. Morgan is insisting on, given that the district court wasn't required to do that, Mr. Morgan's Rule 403 argument really collapses.

[00:19:37] Speaker 02:
Moving on to the Rule 807 issue, unless there are further questions on Rule 403, Mr. Hansmeier emphasized that the evidence that was admitted under Rule 807, and specifically MV3's forensic interview statements related to uncharged conduct, I agree with that.

[00:19:59] Speaker 02:
But Rule 807 is agnostic with respect to whether the

[00:20:07] Speaker 02:
evidence related to charged or uncharged conduct.

[00:20:10] Speaker 00:
Does McFadden make that clear?

[00:20:13] Speaker 02:
No, I don't think so.

[00:20:14] Speaker 02:
McFadden and also Burgess, both of those cases did involve prior out-of-court statements, so hearsay statements that related to charged conduct.

[00:20:25] Speaker 02:
But it didn't make any distinction between charged or uncharged conduct.

[00:20:30] Speaker 02:
It didn't make that part of its reasoning.

[00:20:33] Speaker 02:
I think Mr. Morgan is just trying to sort of

[00:20:35] Speaker 02:
tease that out based just because those were the facts of that case.

[00:20:40] Speaker 02:
But all Rule 807 says is when hearsay is more probative on the point for which it is offered than other evidence that the proponent could obtain through reasonable means, then it can be admitted under Rule 807.

[00:20:55] Speaker 02:
It doesn't make any distinction between whether the conduct was charged or uncharged.

[00:21:00] Speaker 02:
There are other rules that deal with what is the probative value or what is the point.

[00:21:06] Speaker 02:
And that is rule 803.

[00:21:08] Speaker 02:
But again, Mr. Morgan's rule 803 argument really doesn't challenge the conclusion.

[00:21:15] Speaker 02:
And his argument with respect to insufficient reasoning, again, falls apart under Silva and Piatt.

[00:21:20] Speaker 02:
So rule 807, I would just reiterate, does not make this distinction between charged or uncharged conduct.

[00:21:28] Speaker 01:
And I would just-

[00:21:32] Speaker 01:
Would you agree that if MV3 had testified fully as to what was in the report, that it would have been an abuse of discretion to admit it?

[00:21:48] Speaker 02:
Yes, I believe so, because under Burgess and McFadden, if the witness is able to testify as to everything, then that is the most probative evidence on the point.

[00:22:01] Speaker 01:
And so are we now because of this testimony sort of in a line drawing position, because this witness didn't, didn't testify to everything, but she testified to a lot of it.

[00:22:16] Speaker 02:
Well, I guess I would push back slightly on the, on the premise of the question that she was able to testify to a lot of it.

[00:22:22] Speaker 02:
I mean, she, she said a number of things that were very sort of equivocal.

[00:22:27] Speaker 02:
She was asked if Mr. Morgan touched her in a way she didn't like.

[00:22:32] Speaker 02:
She said, yes.

[00:22:33] Speaker 02:
She was asked, well, how did he touch you?

[00:22:35] Speaker 02:
And she said, either I forget or I don't want to talk about that.

[00:22:38] Speaker 02:
So she didn't give specifics as to that.

[00:22:41] Speaker 02:
The prosecutor did later follow up and ask a question along the lines of, did he use his mouth?

[00:22:47] Speaker 02:
And she, again, either said, I forget or I don't want to talk about that.

[00:22:50] Speaker 02:
I can't remember exactly.

[00:22:52] Speaker 02:
She was asked if Mr. Morgan took pictures of her.

[00:22:56] Speaker 02:
And she said that he did.

[00:22:58] Speaker 02:
that she couldn't remember what the pictures were of.

[00:23:01] Speaker 02:
Of course, that's an important and very salient and probative fact, right?

[00:23:06] Speaker 02:
Because her forensic interview statement was that Mr. Morgan took pictures of MV1's genitals, showed that picture to her, tried to take pictures of MV3's genitals.

[00:23:19] Speaker 02:
That's an important fact.

[00:23:21] Speaker 02:
And she did testify that Mr. Morgan

[00:23:24] Speaker 02:
touched MV1, and I think the quote is, you know, I feel like everywhere.

[00:23:29] Speaker 02:
I mean, how much background do you need?

[00:23:33] Speaker 02:
I mean, it... So this was... So, respectfully, this is not background.

[00:23:38] Speaker 02:
This is evidence that goes to prove Mr. Morgan's intent, and the intent comes into play in at least two ways.

[00:23:45] Speaker 01:
I mean, what intent do you need?

[00:23:48] Speaker 01:
He took the videos?

[00:23:51] Speaker 01:
He doesn't, I mean, you got the videos off of his phone.

[00:23:54] Speaker 01:
He had the camera in his house.

[00:23:57] Speaker 01:
Right.

[00:23:57] Speaker 02:
And all along and all throughout this case, he has argued that his conduct was merely voyeuristic.

[00:24:04] Speaker 02:
And I would respectfully submit that it absolutely was not.

[00:24:07] Speaker 02:
And part of the evidence that showed what his intent was, was the, was MV3's forensic interview statements.

[00:24:15] Speaker 02:
Not just that he touched her in a way she didn't like.

[00:24:18] Speaker 02:
but that he touched her genitals every time she went to his house, touched inside her genitals, licked her genitals every time she went to his house.

[00:24:27] Speaker 02:
That is a big difference.

[00:24:28] Speaker 01:
How is that probative on whether he was producing pornography as opposed to just being voyeuristic?

[00:24:35] Speaker 02:
Well, because with respect to the attempt charges, the government had to show that Mr. Morgan

[00:24:42] Speaker 02:
intended to produce child pornography, even if the ultimate depictions were not necessarily lascivious exhibitions.

[00:24:51] Speaker 02:
And so the intent, that evidence goes to show his intent, what he wanted to get out of, you know, putting a camera up MV2's night shirt or filming kids naked in his bathtub.

[00:25:04] Speaker 02:
And I would point this court to this court's decision in Wells, which relied on this very type of sexual abuse evidence

[00:25:13] Speaker 02:
to support its conclusion that the depictions in that case were lascivious exhibitions.

[00:25:19] Speaker 02:
And so the evidence, the sexual abuse evidence, is part and parcel of the depictions he produced of setting up the camera and all the rest.

[00:25:29] Speaker 02:
But it also provides very important, I think, probative specifics as to his sexual interest in children.

[00:25:38] Speaker 02:
and what he was trying to get out of those depictions that he made that were more probative than just the videos themselves and were more probative than the equivocal and incomplete and I think inconsistent testimony that MB3 was able to give in court.

[00:25:58] Speaker 02:
And so I think that it was, you know,

[00:26:04] Speaker 02:
proper under rule 807, because it was more probative on that point.

[00:26:10] Speaker 01:
What do you think about you?

[00:26:12] Speaker 01:
I was going to move on to multiplicity.

[00:26:15] Speaker 01:
OK.

[00:26:15] Speaker 01:
OK.

[00:26:18] Speaker 01:
So we have Judge Briscoe's old case, which the name escapes me, and we have Mr. Hansmeier's rule 12b argument on multiplicity.

[00:26:28] Speaker 01:
I mean, what's your take on the multiplicity?

[00:26:35] Speaker 02:
My take on the multiplicity is that multiplicity occurs or doesn't when the charges are brought.

[00:26:42] Speaker 02:
That is very clear in this court's case law.

[00:26:45] Speaker 02:
Esch says that itself, that multiplicity happens when a defendant is charged with multiple counts for a single offense.

[00:26:55] Speaker 02:
Now, I take Mr. Morgan's point that multiplicity is closely related to double jeopardy, but multiplicity is a

[00:27:05] Speaker 02:
is a problem in and of itself.

[00:27:08] Speaker 02:
And it's a problem that the rules say must be addressed before trial when it can be.

[00:27:16] Speaker 02:
And it could have been addressed before trial here.

[00:27:18] Speaker 00:
Do you agree that that's what the language of the rule says?

[00:27:23] Speaker 00:
So that's what it says.

[00:27:24] Speaker 00:
And so as applied here, the government's contention is it could have been addressed.

[00:27:29] Speaker 00:
And so why is that?

[00:27:31] Speaker 02:
why it could have been addressed before trial, because before trial, Mr. Morgan knew that the government had charged the case as it had.

[00:27:40] Speaker 02:
More specifically, Mr. Morgan knew that, for example, he was charged with two counts for a single video because there were two minor victims in it.

[00:27:50] Speaker 02:
And we run through each of the counts in our response brief and point the court to the record where

[00:27:57] Speaker 02:
based on the complaint that was initially filed, based on pretrial briefing, et cetera.

[00:28:03] Speaker 02:
There was plenty in the record that put Mr. Morgan on notice, this is how we're charging this case.

[00:28:10] Speaker 02:
There's a single video, there's two victims, you've got two charges for that.

[00:28:14] Speaker 02:
There's a single video, there's three victims, you've got three charges for that.

[00:28:18] Speaker 02:
And just because the case could proceed to trial on those multiplicitous charges under the double jeopardy clause,

[00:28:26] Speaker 02:
does not relieve Mr. Morgan of his obligation under the rule.

[00:28:30] Speaker 02:
And I guess just to put a very fine point on it, what Mr. Morgan is asking this court to do is to basically say that the multiplicity component of Rule 12 is a dead letter.

[00:28:43] Speaker 02:
Because any defendant could sit on the argument and wait until appeal to bring the argument or wait until the end of trial

[00:28:55] Speaker 02:
And Rule 12 is meaningless there.

[00:28:57] Speaker 02:
And this court has been very stringent about its application of Rule 12.

[00:29:03] Speaker 02:
And I would point the panel to the Bowline case, where it said the plain error review doesn't apply until a defendant can show good cause under Rule 12.

[00:29:15] Speaker 02:
Now, I grant you that that's not a multiplicity case, but it shows just how seriously this court takes Rule 12, and I think rightly so.

[00:29:23] Speaker 02:
With respect to the Judge Briscoe decision, I think you're referring to McCullough.

[00:29:28] Speaker 02:
As you pointed out, Judge Rossman, that was pre-2014 amendments.

[00:29:32] Speaker 02:
But I think there's a more important point to draw from McCullough, which is that it has nothing to do with Rule 12.

[00:29:38] Speaker 02:
The government didn't raise a Rule 12 objection or argument there.

[00:29:41] Speaker 02:
It just was not part of that case at all.

[00:29:44] Speaker 02:
The court didn't address it.

[00:29:46] Speaker 02:
And so sure, it applied plain error.

[00:29:49] Speaker 02:
But this court routinely says that issues lurking in the background aren't

[00:29:53] Speaker 02:
resolved by a decision that doesn't address them.

[00:29:56] Speaker 02:
And so that's the point that I would make with respect to McCullough.

[00:30:03] Speaker 00:
Can I ask you a question about something we haven't discussed yet?

[00:30:05] Speaker 00:
And that's jury instruction 11.

[00:30:08] Speaker 00:
Sure.

[00:30:09] Speaker 00:
And so the contention here is that it misstates the law because it sort of conflates general and specific intent.

[00:30:21] Speaker 00:
Does the government agree that it's just on its face, doctrinally, just incorrect?

[00:30:25] Speaker 02:
I disagree with that.

[00:30:26] Speaker 02:
And the reason comes from a different place in the instruction.

[00:30:31] Speaker 02:
So I would point you to page 287 of volume one of the Record on Appeal.

[00:30:36] Speaker 02:
That is where the instruction specifically says that in order to convict of attempt, the government has to prove beyond a reasonable doubt that the defendant intended to commit the crime.

[00:30:49] Speaker 02:
And so when you read the provision that you were referring to, Judge Rossman, in light of that definition of what attempt means, it clears up any issue that there would be regarding whether general as opposed to specific intent is required.

[00:31:05] Speaker 00:
So your position is that reading it together wouldn't mislead the jury?

[00:31:10] Speaker 00:
So this is an argument the government, if I understand your position, contends we can resolve on error, not harmlessness?

[00:31:18] Speaker 02:
But that's right.

[00:31:19] Speaker 02:
Yes.

[00:31:20] Speaker 02:
Yes.

[00:31:21] Speaker 02:
And in addition to that, I would echo what the district court judge said, which is that anytime someone knowingly attempts something, how could you do that without intending to do so?

[00:31:33] Speaker 02:
I think that supports our argument.

[00:31:35] Speaker 02:
I think my first line argument, though, would be the language that follows on the following page of the instruction, page 287.

[00:31:41] Speaker 02:
I see that I am out of time.

[00:31:45] Speaker 02:
If I may make one final point with the court's indulgence regarding the background testimony, which I haven't had a chance to address yet.

[00:31:54] Speaker 02:
Go ahead.

[00:31:55] Speaker 02:
OK, I'll do it quickly.

[00:31:56] Speaker 02:
And I would just note that with respect to the background testimony, Mr. Hans Meyer mentioned that the Hinson and Caps cases are strong for them.

[00:32:08] Speaker 02:
which is interesting because those cases were not cited at all in the very extensive pretrial briefing that occurred in this case.

[00:32:16] Speaker 02:
And the reason is because the argument that he makes on appeal with respect to the background testimony is different than the argument that was made below.

[00:32:24] Speaker 02:
He makes a hearsay argument on appeal with respect to the background testimony, but below the arguments were all about

[00:32:32] Speaker 02:
Resgeste 414 and the like.

[00:32:36] Speaker 02:
There was no hearsay objection at trial.

[00:32:40] Speaker 02:
Defense counsel did not raise this issue, and it's raised for the first time on appeal.

[00:32:46] Speaker 02:
And in response to our brief, which noted that, Mr. Morgan has not argued plain error.

[00:32:54] Speaker 02:
So that argument, I think, should be deemed waived.

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

[00:32:59] Speaker 01:
Thank you.

[00:32:59] Speaker 01:
Let's give Mr. Hansmeyer three minutes.

[00:33:06] Speaker 03:
I think I have four points.

[00:33:12] Speaker 03:
Just on the multiplicity, just to be very clear, the language in the rule includes this language.

[00:33:18] Speaker 03:
The motion can be determined without a trial on the merits.

[00:33:23] Speaker 03:
That's why I'm right, the government's wrong, because this issue could not be determined without a trial on the merits, full stop.

[00:33:33] Speaker 03:
If he's not convicted of multiplicity discounts,

[00:33:35] Speaker 03:
There is no multiplicity problem, just period.

[00:33:40] Speaker 01:
Couldn't the district court look at that in a pretrial motion and say, wow, I'm looking at this and under the statute in the end, only one of these can go forward anyway as a matter of law.

[00:33:53] Speaker 01:
So I'm just, I'm striking count two or one of them.

[00:33:57] Speaker 03:
I don't, I don't think so.

[00:33:59] Speaker 03:
I don't think that not, not in this.

[00:34:01] Speaker 03:
And I will say.

[00:34:02] Speaker 03:
That it's not a dead letter because I mean, you could have a purely multiple list.

[00:34:05] Speaker 03:
You could have two counts that are purely multiple lists.

[00:34:08] Speaker 03:
I mean, if the government literally charges the same offense in two counts with no sort of distinction, I mean, here they charge different victims.

[00:34:16] Speaker 03:
So the question becomes, you know, okay, is the jury going to buy both?

[00:34:20] Speaker 03:
And if they do, then you have to vacate one of the convictions on the back end.

[00:34:23] Speaker 03:
It's not a dead letter because there could be too purely multiple.

[00:34:30] Speaker 03:
This whole discussion about res jeste and we were arguing something new and it's hearsay blows my mind.

[00:34:36] Speaker 03:
I don't get it.

[00:34:37] Speaker 03:
The whole res jeste thing, my opening brief didn't use that word because I don't know what it means and I don't think any of us do.

[00:34:47] Speaker 03:
The bottom line is this was the debate

[00:34:50] Speaker 03:
Debate below was about whether this was proper background evidence, full stop.

[00:34:55] Speaker 03:
And it wasn't just hearsay.

[00:34:57] Speaker 03:
The government was trying to get in a bunch of other stuff.

[00:35:01] Speaker 03:
So the fact that we're just talking about statements on appeal doesn't turn what was an argument about whether this is necessary to prove context into a hearsay argument.

[00:35:14] Speaker 03:
It's the same argument.

[00:35:16] Speaker 03:
There's no difference.

[00:35:17] Speaker 03:
It's just the fact that

[00:35:19] Speaker 03:
By admitting the non-hearsay, it becomes hearsay.

[00:35:22] Speaker 03:
Okay, that's fine.

[00:35:23] Speaker 03:
That's a product of my argument.

[00:35:25] Speaker 03:
But the argument is identical.

[00:35:28] Speaker 03:
And we don't have to cite cases in the district court.

[00:35:31] Speaker 03:
The attorney made clear that this was unnecessary.

[00:35:34] Speaker 03:
The government didn't need it.

[00:35:36] Speaker 03:
That's enough to preserve it.

[00:35:38] Speaker 03:
And the cases are on point.

[00:35:41] Speaker 03:
So that's that.

[00:35:42] Speaker 03:
On the specific intent instruction, I guess this will be my last point.

[00:35:49] Speaker 03:
The idea that a general instruction is somehow maybe correct, then the specific elements instruction is wrong?

[00:35:58] Speaker 03:
I mean, that is the inverse of Bedford, which the government cites.

[00:36:02] Speaker 03:
I get that if a specific elements instruction is correct and a general instruction is maybe wrong, you probably don't have a problem.

[00:36:10] Speaker 03:
But you flip that on its head, no jury's going to say, I'm going to ignore the specific instruction and rely on this general instruction.

[00:36:19] Speaker 03:
I don't buy it.

[00:36:20] Speaker 03:
I don't think you should either.

[00:36:21] Speaker 03:
OK.

[00:36:22] Speaker 01:
Thank you, Counselor.

[00:36:22] Speaker 01:
You're out of time.

[00:36:23] Speaker 01:
I appreciate it.

[00:36:24] Speaker 01:
I did just want to comment with both of you.

[00:36:27] Speaker 01:
I think Judge Rossman and I on various panels have had both of you in court recently.

[00:36:32] Speaker 01:
And the arguments are always really good and helpful.

[00:36:35] Speaker 01:
And I just want to tell you guys that we appreciate it.

[00:36:38] Speaker 01:
That case will be submitted in Counselor's