[00:00:03] Speaker 03:
Case number 15-3032, United States of America versus Brandon Lurie's appellant.

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Ms.

[00:00:09] Speaker 03:
Brody for the appellant, Mr. Ewing for the appellee.

[00:00:12] Speaker 01:
Good morning.

[00:00:14] Speaker 01:
Good morning, Your Honors.

[00:00:16] Speaker 01:
May it please the court?

[00:00:17] Speaker 01:
Rebecca Brody, counsel for appellant Brandon Lurie's.

[00:00:21] Speaker 01:
I'd like to begin by addressing the jury instruction issue, and then I will move on to the failure to call the experts.

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The government's portrayal of the 2422B enticement law at the time of Mr. Lorry's trial is wrong.

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And the government's characterization of trial counsel's understanding of that law is wrong.

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Even in what the government has termed the pre-hyped world, a minor had to be the object.

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of the enticement, inducing, persuasion, or coercion.

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Morrell, Lee, Spurlock, and Nestor all required a minor to be the object of the inducement.

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Although Morrell held that you could induce a minor through the intermediary by causing him to engage in the sex act, the object of the inducing

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was the minor.

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But Ms.

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Burde here, don't we have evidence of just that?

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Didn't the evidence show that Mr. Laurie has proposed that Jim bend the nine-year-old's will even within the meaning of height?

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When Loris was conversing with Jim, he wrote to Jim, train the little girl, make sure she wants to do it, let her meet me and everything first.

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Start with just letting me watch her and you watch her until she feels more comfortable.

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does we assume that he thinks she's real, he wanted Jim to entice her to participate in sex with Laurie's, no?

[00:02:06] Speaker 01:
It is possible that there is that language of attempting to persuade the minor, but we look to height where the court held that where the jury has decided the case under an improper legal theory,

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there must be a reversal.

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But that's not the right question we have here today.

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The instruction was clearly wrong under height, but the question is whether counsel was ineffective, isn't it?

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Yes.

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In arguing, and at the time he argued the case, there was no circuit precedent, and the only precedent was to the contrary, was that Fifth Circuit case.

[00:02:43] Speaker 01:
Pardon me, I'm sorry Judge, I did not understand your last sentence.

[00:02:46] Speaker 04:
Sorry about that.

[00:02:47] Speaker 04:
Is that better?

[00:02:48] Speaker 04:
Yes.

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What I was saying is that at the time this came up, there was no height.

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There was no circuit law at all.

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And the only circuit law went the other way.

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So isn't the question whether or not, given that, counsel was ineffective?

[00:03:05] Speaker 01:
Yes.

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The question is given that and given Judge Robertson's questions.

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And the law at the time.

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I don't see how Judge Robertson's questions help you at all.

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Set those aside for a minute.

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OK.

[00:03:16] Speaker ?:
OK.

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What's the best argument you can make the proposition that he was ineffective and not arguing what you just so clearly stated is the right interpretation of the statute?

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My argument is that under the case law at the time, you had to induce a child.

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And the written instruction, the court's oral instruction, the government's explanation of the instruction, and trial counsel's statements at Mr. Laurie's trial allowed for conviction for an attempt to persuade an adult.

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The jury was told over and over and over again to look for an attempt to persuade the adult.

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And that's a completely different

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act than attempting to bend the will of the child.

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If we assume that it was below the standard for counsel, that it was ineffective for counsel to have failed to proffer that kind of argument, what is the prejudice here?

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The prejudice here is that the jury decided the case under an improper legal theory.

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I look at the chat in height.

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You have to say, under an error of law.

[00:04:36] Speaker 01:
Yes, under an error of law.

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And I look at the chat in height, which is, in my opinion, far more egregious than the chat in Laurie's, where the defendant suggests giving the minor alcohol, Benadryl.

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It may be more egregious, but I think the question is, even narrowing the

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correct understanding of 2422B to require ... Judge Brown dissenting in the original panel had a theory that was narrower than what our court in height adopted.

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She said, we don't even know, and counsel should have argued, we don't know whether the statute requires

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that the enticement be direct through the internet to a child.

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And if this court had adopted that view in Haidt or some other case, or in Mr. Laurie's case, then

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there's clear prejudice because nobody contends that the communication was through the internet with a child directly.

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So then the question becomes, can the statute be violated if the defendant is communicating through an adult intermediary?

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And in Height we say yes.

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Although, as you point out, we said yes, but only where the adult intermediary is effectively the agent of the defendant and is being asked to bend the will of the minor, not where the adult intermediary is merely arranging or causing the minor to become available for sex.

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And my question is, given the record in this case, isn't the communication

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replete with evidence that Mr. Lorreys was asking Jim to entice the nine-year-old, the theoretical nine-year-old.

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And therefore, where is the prejudice?

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Because even though the jury instruction should have been narrower,

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What in the facts could the jury have erroneously relied on to find a conviction that requires a new trial?

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I think the prejudice lies in a couple of areas.

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One, if the jury

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believe that Mr. Lorreys didn't believe there was a child there, then clearly there's no violation of the statute.

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But we don't know whether the jury convicted Mr. Lorreys because they believed he was attempting to persuade a minor, which the statute requires, or attempting to persuade the adult, which is what they were told over and over and over again throughout the trial.

[00:07:16] Speaker 02:
And looking at Judge Robertson's... I'm sorry, but if he was attempting to persuade the adult to entice the child, then there's still a conviction, right?

[00:07:28] Speaker 01:
Yes, if he was attempting to persuade the adult to entice the child, but that is not what the jury was instructed.

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I'm just asking about the evidence.

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Were there any of the evidence that the jury could have relied on?

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What's the finding that they could have made based on this evidence that fell in the cause or arrange box

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rather than in the entice, coerce, induce or persuade box.

[00:07:56] Speaker 01:
Well, they could have found that he was just engaging in fantasy chat and did not believe a child.

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But that would have caused them to acquit.

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Correct.

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And they didn't.

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No, they didn't.

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They could have found that he was not attempting to entice the child.

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He was attempting only to

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entice the adults.

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And that would have caused them, even under the jury instruction that was given in Laurie's trial, that would have caused them to acquit.

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So they didn't do that.

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So what might they have, in fact, done in this case that they would have been steered away from by a correct instruction?

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I believe that under a correct instruction, they may have acquitted.

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And if I look at Judge Brown's

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dissent and Judge Robertson's comments during the trial, there is indication that the evidence that he believed a child was there was weak.

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And given a correct instruction, they may have also

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found the same uh... giving a correct instruction they may have also acquitted let me ask you you said repeatedly the jury was told is that because you're saying during closing argument the government was arguing that the jury needed only to find

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an attempt to persuade the adult?

[00:09:25] Speaker 01:
Yes, and in the written instruction, and at trial counsel's Rule 29 argument, where he stated that he agreed.

[00:09:34] Speaker 03:
Well, I'm focusing on your statement that the jury was repeatedly told.

[00:09:38] Speaker 01:
Yes.

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So it's where to be found?

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That is to be?

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In the opening statement of the prosecutor?

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In the closing statement of the prosecutor,

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which I believe is J. A.

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241 in the written jury instruction in trial counsel's rule 29 argument.

[00:10:03] Speaker 01:
Well, the jury didn't hear that in trial counsel's, uh, direct examination of Mr Lori's.

[00:10:13] Speaker 01:
The

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The question throughout that trial was whether or not Mr. Lorreys was attempting to persuade an adult.

[00:10:20] Speaker 01:
And I'll just read one quote.

[00:10:22] Speaker 01:
The government states, citing to Morrell, and in this context, that is referring to persuading the adult or attempting to persuade the adult by prevailing upon the adult

[00:10:33] Speaker 01:
to let the defendant have sexual access to the child.

[00:10:36] Speaker 03:
And that's the closing argument?

[00:10:38] Speaker 01:
This is the closing, yes.

[00:10:40] Speaker 03:
Where is that, JA 241?

[00:10:42] Speaker 01:
I believe it's at JA 241.

[00:10:47] Speaker 01:
I don't think so.

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I can double check while the government.

[00:10:53] Speaker 03:
All right.

[00:10:54] Speaker 03:
Did you have other points you wanted to argue?

[00:10:56] Speaker 01:
Yes, I did.

[00:10:58] Speaker 01:
And then I also wanted to say that Nestor out of the Third Circuit and Spurlock out of the Eighth Circuit applied 2422B to cases where the adult intermediary was a tool for the defendant to ultimately induce the minor.

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The government also takes the position that trial counsel was conscientiously grappling with the application of 2422B to adult intermediaries.

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But trial counsel statements at trial demonstrate otherwise.

[00:11:35] Speaker 03:
Well, let me ask you.

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You said you wanted to start with the jury instruction.

[00:11:39] Speaker 01:
Yes.

[00:11:39] Speaker 03:
Did you want to talk about the experts or?

[00:11:41] Speaker 01:
Sure.

[00:11:41] Speaker 01:
OK.

[00:11:42] Speaker 01:
I can go to that.

[00:11:43] Speaker 02:
I just want to apologize.

[00:11:44] Speaker 02:
I do see what you're putting on page 241, where the government is arguing that they need to enticer or persuade the minor or persuade an adult interviewee.

[00:11:55] Speaker 01:
The evidence against Mr. Lorreys was, as Judge Robertson stated, razor thin, but it was also heavily prejudicial.

[00:12:04] Speaker 01:
It was this combination.

[00:12:06] Speaker 03:
Well, I thought the judge was referring to count two, the transportation.

[00:12:12] Speaker 01:
Our reading is that he was referring to the travel.

[00:12:17] Speaker 03:
That's what I meant.

[00:12:20] Speaker 01:
OK.

[00:12:20] Speaker 01:
It was this combination that made the expert testimony, both that of Dr. Berlin and Dr. Butters, crucial, not just for the substance of the testimony,

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but for three essential functions, it would have played at trial.

[00:12:38] Speaker 03:
How do you respond to Judge Henderson's comments about Dr Berlin's testimony?

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The effect

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Yes.

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We take the position that had Dr. Berlin testified, there would have been no need to call upon Mr. Lurie's to testify, not to testify, he would have testified, but that he would not have had to testify about his mental health, about his treatment.

[00:13:04] Speaker 03:
But I think the point is that when you look at what Dr. Berlin testified to on remand,

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Doesn't that underscore the point Judge Henderson was making?

[00:13:17] Speaker 01:
No.

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The significance of Dr. Berlain's testimony was that fantasy chats exist.

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And it also took the explanation of pedophilia, which is highly prejudicial, out of Mr. Lorry's, who had a horrible testimony and a horrifying way of describing it.

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And it put that testimony into the hands of Dr. Berlin, who provided a scientific, authoritative, non-offensive explanation of that same diagnosis.

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So had Dr Berlin testified, Mr Laurie's testimony would have been shortened.

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It would have been limited and even the damaging parts that would have been direct testimony.

[00:14:08] Speaker 03:
Who knows about his cross?

[00:14:09] Speaker 01:
Who knows about his cross?

[00:14:10] Speaker 01:
Yeah, but

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We take the position that Dr. Berlin's testimony would have helped to explain that behavior to the jury.

[00:14:19] Speaker 02:
Why did you say that he would, that Laurie's necessarily would testify had Berlin been available?

[00:14:23] Speaker 02:
I thought your briefing said it would have been, his testimony would have been unnecessary.

[00:14:27] Speaker 01:
I'd say that parts of his testimony would have been unnecessary.

[00:14:31] Speaker 01:
The mental health parts would have been unnecessary.

[00:14:34] Speaker 01:
The intent part would still probably have taken place.

[00:14:39] Speaker 01:
But the mental health aspects, which are large parts of his testimony, are about his mental health.

[00:14:45] Speaker 01:
Those would have been much better provided by an expert.

[00:14:49] Speaker 04:
But Berlin said very clearly that even if he had more time, he couldn't.

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He didn't take a refined language here.

[00:14:57] Speaker 04:
He says, even with time to review the additional information, I doubt there could be a successful mental health defense in this case.

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

[00:15:12] Speaker 01:
Dr. Berlin says he's unable to provide a mental health defense.

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This is in response to trial counsel's request for a diminished capacity defense.

[00:15:22] Speaker 03:
But he also says he couldn't testify that your client didn't

[00:15:27] Speaker 03:
have the ability to form a specific intent.

[00:15:31] Speaker 01:
No, and we're not making the argument that Dr. Berlin would have been able to provide a mental health defense.

[00:15:38] Speaker 01:
We make the argument that as Judge Robertson found and Judge Brown found, the evidence was extraordinarily weak in this case, that Mr. Louris believed a minor would be at that meeting, and with expert testimony to

[00:15:54] Speaker 02:
help curtail some of the prejudice of his diagnosis and his words, the trial... Do you think it matters under the law when Mr. Lawrence might have anticipated Jim would give him access to the child if the jury thought, no, Mr. Lawrence didn't think that Jim would have the child there that night.

[00:16:21] Speaker 02:
I'm just talking here about the 2242B.

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But I'm just going to start to foster this relationship because I think that we're going to warm up to something where he is going to give me access.

[00:16:37] Speaker 01:
Is that enough or not?

[00:16:40] Speaker 01:
On the travel?

[00:16:40] Speaker 01:
2242.

[00:16:41] Speaker 01:
Oh, the enticement.

[00:16:44] Speaker 01:
I think there are arguments that could go either way.

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on the enticement.

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The travel definitely not.

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I've never seen any case that applied the travel statute when there was no belief at that meeting.

[00:17:01] Speaker 01:
But the enticement

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you know, I believe that there are arguments that can go either way.

[00:17:07] Speaker 02:
Now what would be your argument that there would have been no lawful basis to convict if all Mr. Gries is doing is kind of investing in a potential future availability because he thinks Jim does have access but isn't going to bring her to that meeting.

[00:17:23] Speaker 01:
I don't know if you can get to the substantial step with something that's so attenuated.

[00:17:29] Speaker 02:
And how are the objections you're raising now, how do they bear on that?

[00:17:33] Speaker 02:
Or do they?

[00:17:35] Speaker 01:
The objections that we're raising now, as far as Mr. Laurie's

[00:17:41] Speaker 01:
I'm sorry, I don't understand the question.

[00:17:43] Speaker 02:
Well, I was positing that perhaps it would be disruptive of a conviction if all that was shown was that Mr. Loris thought he was investing in a potential future opportunity, not an opportunity that night.

[00:18:01] Speaker 02:
And I wonder if any of the errors that you're raising would make whether that

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weakness of the case is further aided by the errors that you're raising.

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So, Dr. Berlin, have made any difference on that?

[00:18:19] Speaker 02:
jury instruction.

[00:18:20] Speaker 02:
I just something that should have been raised and wasn't raised and nobody pursued it.

[00:18:24] Speaker 02:
And the jury wasn't convinced anyway.

[00:18:26] Speaker 01:
Well, we did address it in the context of the travel.

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And we said that even if you believe that Mr Lori's believed a minor would be at some meeting, it's not enough to convict under 24 23.

[00:18:38] Speaker 01:
We've never seen a case that has applied it there.

[00:18:41] Speaker 01:
And I haven't looked at the lost on that the jury found otherwise.

[00:18:49] Speaker 02:
So the jury must have found that he thought that she would be there that night.

[00:18:53] Speaker 01:
Well, we don't know because the jury convicted him under an improper legal theory.

[00:18:58] Speaker 02:
The jury was not on the travel count.

[00:19:01] Speaker 01:
Oh, correct.

[00:19:02] Speaker 01:
I'm sorry.

[00:19:03] Speaker 01:
Uh, we don't know because the jury also was deprived of, um, any expert testimony.

[00:19:08] Speaker 01:
It was, it could have just been prejudiced by Mr. Laurie's testimony and his pedophilia diagnosis.

[00:19:16] Speaker 03:
All right, why don't we hear from the government.

[00:19:17] Speaker 03:
We'll give you a couple of minutes on the bottle.

[00:19:33] Speaker 04:
Good morning.

[00:19:34] Speaker 00:
Good morning.

[00:19:34] Speaker 00:
May it please the court, James Ewing for the United States.

[00:19:37] Speaker 00:
This court should affirm the judgment of the district court because none of appellant's claims meet either the deficient performance or the prejudice prongs of Strickland.

[00:19:45] Speaker 00:
Turning first to the jury instruction claim, as this very court said on direct appeal in this case, the jury instructions that were given in this case, quote, contradicted no precedent of this court or the Supreme Court.

[00:19:57] Speaker 04:
Yeah, but they were obviously wrong, correct?

[00:20:00] Speaker 04:
Your Honor, there... I mean, this, we will see very many clear statutes on this Court, but this one's pretty clear.

[00:20:06] Speaker 04:
It criminalizes persuasion or inducement of a minor.

[00:20:12] Speaker 04:
It says that's what it says.

[00:20:14] Speaker 04:
What difference does it make that... I mean, when it's that clear... I mean, in height, it took us, what, three sentences to decide that's what it meant.

[00:20:24] Speaker 04:
Maybe a paragraph.

[00:20:27] Speaker 04:
I just, I don't see how...

[00:20:30] Speaker 04:
I don't see how it makes any difference that there wasn't a circuit precedent at the time or that other circuits may have gone the other way when the error was so obvious.

[00:20:40] Speaker 00:
Your Honor, I respectfully disagree that the error was obvious, and here's why.

[00:20:44] Speaker 00:
Tell me why.

[00:20:44] Speaker 00:
In 2010, when this case was tried... Now let's just look at the statute.

[00:20:50] Speaker 00:
Just the statute.

[00:20:51] Speaker 00:
Yes, Your Honor.

[00:20:52] Speaker 04:
Persuades, induces, or entices any individual who has not attained the age.

[00:21:00] Speaker 04:
That's what it says.

[00:21:02] Speaker 04:
Just tell me, from the language of the statute alone, why it's not.

[00:21:06] Speaker 00:
Sure, Your Honor.

[00:21:08] Speaker 00:
Really, the disagreement between Mural and Hornaday in the 11th Circuit that were on the books in 2010, and Hite and Judge Brown's dissent in this case on direct appeal, was regarding the definition of the term induce, and whether the term induce included the concept of causing.

[00:21:25] Speaker 04:
But it's clear the inducement, whatever inducement means, it has to be.

[00:21:30] Speaker 04:
the child.

[00:21:31] Speaker 00:
Absolutely.

[00:21:31] Speaker 00:
Your honor.

[00:21:32] Speaker 00:
And that's what that's actually and I want to take on this idea that these jury instructions in this case were not in concert with mural.

[00:21:39] Speaker 04:
They were and let me explain to you how my only point that doesn't make any difference.

[00:21:45] Speaker 00:
Your Honor, I believe it does make a difference, because the aspect of height that wasn't obvious.

[00:21:51] Speaker 00:
Because height, of course, says you have to persuade, induce, entice, coerce a child.

[00:21:56] Speaker 00:
You can do it through an adult intermediary.

[00:21:59] Speaker 04:
But the distinction- But what you can't do is convict without some sort of inducement of somebody, right?

[00:22:04] Speaker 04:
You either have to induce the child, or you have to induce the adult to induce the child.

[00:22:09] Speaker 04:
You can't do what the instructions in this case did.

[00:22:12] Speaker 00:
Well, here's what the instructions in this case said.

[00:22:14] Speaker 00:
And I'm looking at Joint Appendix page 352, which were the written instructions, and Joint Appendix 328, which were the instructions that were actually given on the record.

[00:22:23] Speaker 00:
What they said was an attempt is intended, the requirement under 2422 is an attempted attempt to intend to persuade an adult to cause a minor

[00:22:36] Speaker 00:
to engage in unlawful sexual acts.

[00:22:38] Speaker 00:
And that's cited, that's footnoted, Mural and Hornaday.

[00:22:42] Speaker 00:
And that goes to this difference between mural on the one side and height on the other side as to what the term induced means.

[00:22:48] Speaker 02:
Right, and that's on the wrong side in terms of height.

[00:22:51] Speaker 02:
We said arranging, causing is not enough.

[00:22:56] Speaker 00:
Correct.

[00:22:56] Speaker 00:
And we agree that that's wrong in light of height.

[00:22:59] Speaker 00:
I guess my point is that that wasn't obvious in 2010 because if you look at Mural, Mural grappled with this.

[00:23:06] Speaker 00:
Mural is a great case, a great example of this because in Mural, what was going on in Mural was two adults talking and the one adult says, hey, for $300, I'll give you access to my kid.

[00:23:17] Speaker 00:
there's no there's nothing regarding the child at all in that case and so what mural said it went into the dictionary definition of the term induce and the dictionary that the dictionary that it looked at in

[00:23:29] Speaker 00:
included the term cause inside the concept of induce.

[00:23:33] Speaker 00:
That's what Height disagreed with.

[00:23:35] Speaker 00:
And so what I'm saying is that, in response to Judge Taylor's question, is that wasn't obvious.

[00:23:41] Speaker 04:
That's not an obvious reading of the statute.

[00:23:42] Speaker 04:
The statute says the words the statute uses persuades, induces, entices, or coerces, right?

[00:23:50] Speaker 04:
Correct, Your Honor.

[00:23:50] Speaker 04:
The district court said all you have to do is, if the language is, arrange.

[00:24:00] Speaker 04:
Arrange is not any one of those words.

[00:24:05] Speaker 04:
Government must only prove the defendant believed he was communicating with anyone who could arrange for a child.

[00:24:11] Speaker 04:
That's what the district court said.

[00:24:13] Speaker 04:
Arrange is not one of those four words.

[00:24:16] Speaker 00:
Your honor, a range comes straight from a mural.

[00:24:18] Speaker 04:
I'm not talking about a mural.

[00:24:21] Speaker 04:
I'm talking about the plain language of the statute.

[00:24:25] Speaker 00:
I guess we respectfully disagree that that was obvious in light of the dictionary definition of the term induce.

[00:24:33] Speaker 04:
You think induce means arrange?

[00:24:35] Speaker 00:
Well, one of the dictionary definitions of the term induce is the concept of causing.

[00:24:41] Speaker 00:
So if you arrange for sex with a minor, you have caused that sex with a minor.

[00:24:46] Speaker 00:
And so that's how Mural gets to, and by the way,

[00:24:50] Speaker 00:
The 11th Circuit stands by Muriel in a case called Rutgerson from just last year.

[00:24:55] Speaker 04:
I, maybe you didn't get it from my questions, but I don't really care what the other circuit said.

[00:25:01] Speaker 04:
My question is only based on the statute.

[00:25:04] Speaker 04:
You keep answering me by telling me what other circuits have said.

[00:25:08] Speaker 04:
My questions have been just looking at the plain language of the statute.

[00:25:12] Speaker 04:
Arrange is not one of those words.

[00:25:16] Speaker 00:
I agree that it's not one of the words, Your Honor.

[00:25:17] Speaker 04:
And I don't understand how anyone could look at it and think that's what those four words mean.

[00:25:23] Speaker 00:
Well, and again, it goes back to, and we're not quarreling with the idea that these jury instructions would be error in light of height.

[00:25:33] Speaker 04:
Yeah, we all agree with that.

[00:25:35] Speaker 00:
But what I'm saying is that if you look at the way that induce, for example, was treated, and it wasn't overlooked.

[00:25:42] Speaker 00:
This was unpacked by the 11th Circuit.

[00:25:44] Speaker 00:
I'm not citing the 11th Circuit as precedent.

[00:25:47] Speaker 00:
I'm just demonstrating that.

[00:25:49] Speaker 00:
That's why it's not clear.

[00:25:50] Speaker 02:
But I think, Mr. Ewing, your argument presupposes that if you're zealous counsel for a defendant in a jurisdiction where there is no adverse precedent and you look at this statute,

[00:26:05] Speaker 02:
The only reasonable conclusion you could come to is the conclusion that the 11th Circuit came to in Morrell.

[00:26:10] Speaker 02:
I think our question is, this is not a situation in which, as the district judge said, you don't have to be an effective prognosticator of a change in the law.

[00:26:22] Speaker 02:
That reasoning really comes in a case, I think, in a context where there's adverse precedent, and one is implicitly demanding that counsel take issue with it.

[00:26:34] Speaker 02:
Here, there's an open field.

[00:26:38] Speaker 02:
There's an open field.

[00:26:39] Speaker 02:
There's no adverse precedent.

[00:26:41] Speaker 02:
Is there no argument that reasonable counsel objectively should have made for a narrower construction than the one that the 11th Circuit

[00:26:52] Speaker 02:
adopted.

[00:26:53] Speaker 02:
And counsel around the country, defense counsel in the country, were taking many different narrower views from that of Judge Brown in Loris, which had been picked up by many defense counsel from that.

[00:27:04] Speaker 02:
But this court ended up adopting in height, which is a little narrower.

[00:27:07] Speaker 02:
And so I think you're not taking on quite the challenge of your position, which is would a reasonable defense counsel have objected to preserve the possibility that this court, when it did reach the issue, would have taken a narrower view?

[00:27:22] Speaker 00:
Well, Your Honor, I guess on the deficiency prong of Strickland, the test, of course, is, were the errors so serious that counsel was not functioning as counsel?

[00:27:33] Speaker 00:
Just earlier this year in the Viner case, this court talked about the doctrine of contemporary assessment of how we're going to look at counsel's actions at the time that he took those actions.

[00:27:43] Speaker 00:
So in 2010.

[00:27:44] Speaker 04:
Yeah, but the statute in the Viner case was far more complex.

[00:27:46] Speaker 04:
It was a complex statute.

[00:27:49] Speaker 04:
This was not very complicated.

[00:27:53] Speaker 00:
your honor, if we look back at 2010, what we have is a counsel who's looking at this circuit's case law.

[00:28:02] Speaker 00:
There's no precedent on point.

[00:28:04] Speaker 00:
There's nothing from the Supreme Court.

[00:28:06] Speaker 00:
There is precedent from one of the sister circuits, the 11th circuit, which supports the jury instructions that were given.

[00:28:15] Speaker 00:
So it wasn't deficient performance to fail to raise.

[00:28:20] Speaker 00:
What this court said in lorries on direct appeal was a quote novel claim that Judge Brown initially raised in her dissent in lorries.

[00:28:29] Speaker 00:
So it simply wasn't.

[00:28:30] Speaker 00:
We cite on page 32 of our brief.

[00:28:33] Speaker 00:
Correct, Your Honor.

[00:28:34] Speaker 00:
And we cite on page 32 of our brief a whole raft of cases that say that it's not deficient performance to fail to

[00:28:45] Speaker 00:
to anticipate a change in the law.

[00:28:48] Speaker 03:
And again, the need to change.

[00:28:50] Speaker 03:
So you, yes.

[00:28:50] Speaker 03:
I'm sorry.

[00:28:51] Speaker 03:
As I hear your answers, maybe I'm misunderstanding you.

[00:28:55] Speaker 03:
Judge Tatel is asking a different question.

[00:29:00] Speaker 03:
If the statute said inducement only means inducing a child, whether the adult is induced is totally irrelevant.

[00:29:13] Speaker 03:
And so the instruction is proposed a la Morel, and the council doesn't object.

[00:29:23] Speaker 03:
And I know you wanna argue the 11th Circuit and inducement, but you know, this court has said we weren't very impressed with the 11th Circuit, so that's not gonna get you too far.

[00:29:32] Speaker 03:
But I'm just thinking about, as I understand what Judge Taylor's trying to get you to focus on,

[00:29:37] Speaker 00:
is whether or not it was clear just from reading the statute.

[00:29:40] Speaker 03:
Obvious.

[00:29:41] Speaker 00:
Right.

[00:29:41] Speaker 00:
And I guess that's the part that I'm quarreling with.

[00:29:44] Speaker 00:
And the reason I'm quarreling with it, set aside, Mural, I'm quarreling with it because of the dictionary definition of the term induce.

[00:29:49] Speaker 03:
So another way of looking at this is, as one judge on the First Circuit wrote, it may be obvious, but it eluded judges, it eluded defense counsel, and we're finally waking up to it now.

[00:30:06] Speaker 03:
So that's the contemporaneous assessment of counsel's conduct?

[00:30:13] Speaker 00:
Well, yes, Your Honor, exactly.

[00:30:14] Speaker 00:
And this Court said something similar in the Hurt case.

[00:30:16] Speaker 00:
It said that it would be unduly harsh to brand the bar to be incompetent for something that's eluded the bench.

[00:30:23] Speaker 03:
So I guess the argument, though, Judge Tatel can speak for itself, but I thought he asked you, wouldn't you

[00:30:30] Speaker 03:
make an objection just so that when the case came to this court, you wouldn't be facing a plain error standard.

[00:30:39] Speaker 00:
I guess, Your Honor, there was no basis to make that objection.

[00:30:43] Speaker 03:
Well, the district court judge raised some mumblings about it.

[00:30:46] Speaker 03:
I know he came back and said, well, I guess, but

[00:30:49] Speaker 00:
I think the district court judge, Your Honor, was talking more along the lines of the statute as a whole as opposed to the jury instructions.

[00:30:57] Speaker 00:
If I may, I see my time is running short.

[00:30:59] Speaker 02:
Can I actually ask you to focus on prejudice?

[00:31:05] Speaker 00:
Yes, Your Honor.

[00:31:06] Speaker 02:
If we did think that it was obvious, that it was deficient under the first prong of Strickland,

[00:31:14] Speaker 02:
Can we be confident that if the jury instruction had complied with height that the jury would nonetheless have convicted?

[00:31:21] Speaker 00:
We absolutely can, your honor.

[00:31:22] Speaker 00:
This defendant would have been convicted under a height instruction.

[00:31:26] Speaker 00:
Of course, height says you can persuade induce entice course a minor through an adult intermediary.

[00:31:32] Speaker 00:
so long as you're attempting to transform or overcome the will of the minor.

[00:31:37] Speaker 00:
So you look at some of the chats in Joint Appendix 341 through 344.

[00:31:42] Speaker 00:
And the direct object of a lot of these chats from Laurie's is the nine-year-old child.

[00:31:48] Speaker 00:
Joint Appendix 341, train the little girl.

[00:31:51] Speaker 00:
Make sure she wants to do it.

[00:31:53] Speaker 00:
Ha ha.

[00:31:54] Speaker 00:
Joint Appendix 342 could start with just letting me watch her, and you tell she feels more comfortable.

[00:32:02] Speaker 02:
It's very odd, these locutions.

[00:32:04] Speaker 02:
Almost none of them have a subject.

[00:32:06] Speaker 02:
It's sort of train her.

[00:32:08] Speaker 02:
It's not saying who's going to do it.

[00:32:10] Speaker 02:
It's sort of an abstract idea.

[00:32:13] Speaker 00:
Well, and it's the, whether it's, I think it was Jim Peay, who he was referring to, was the undercover trainer.

[00:32:21] Speaker 00:
Make sure she wants to do it when I get involved.

[00:32:23] Speaker 02:
Quite unclear.

[00:32:24] Speaker 00:
Well, here, this one's not unclear.

[00:32:26] Speaker 00:
Let me help with the little girl.

[00:32:28] Speaker 00:
So there's language in these chats that are

[00:32:32] Speaker 00:
the language of grooming, language of targeting the child, as opposed to the adult intermediary.

[00:32:40] Speaker 02:
Mr. Yun, what is, I know we announced the standard, you did not, but what is the difference between cause or arrange, which is not criminalized by 2422B, and persuade, induce, entice, of course, which is?

[00:32:57] Speaker 00:
Right.

[00:32:57] Speaker 00:
I think you're talking about regarding height.

[00:32:59] Speaker 00:
Yeah.

[00:32:59] Speaker 00:
Well, the difference, the distinction that height made, the problem that height had with the term induce was that with the surrounding verbs, it thought that it had to mean more than cause.

[00:33:11] Speaker 00:
Right.

[00:33:11] Speaker 00:
No, I understand that.

[00:33:12] Speaker 02:
So can you give me examples of something that would be a cause or a range that wouldn't be a persuaded induce enticing?

[00:33:19] Speaker 00:
Well, I think the mural case is a perfect example.

[00:33:21] Speaker 00:
$300 to have access to your child.

[00:33:23] Speaker 00:
That's not, you're not attempting to transform or overcome the will of the child.

[00:33:28] Speaker 02:
You're not coercing her because you're... No, you're paying her guardian money.

[00:33:33] Speaker 02:
So here, when he says we want her to be comfortable until she feels comfortable, is there any coercion anticipated there?

[00:33:44] Speaker 02:
In fact, it seems like quite the contrary.

[00:33:46] Speaker 00:
Well, that's kind of the language of persuasion, though, right?

[00:33:48] Speaker 00:
Let's make you feel comfortable.

[00:33:49] Speaker 00:
You know, I'd love to

[00:33:54] Speaker 00:
You know, teach her to take two at once.

[00:33:56] Speaker 00:
So these are words, teach, train, until she feels more comfortable.

[00:34:02] Speaker 00:
These are words of persuasion.

[00:34:04] Speaker 00:
These are words of enticement.

[00:34:06] Speaker 00:
Set aside, induce.

[00:34:08] Speaker 00:
I mean, this is way more than just causing this.

[00:34:11] Speaker 00:
This is what Height envisioned when Height said, you can persuade, induce, entice, coerce a minor through an adult intermediary.

[00:34:19] Speaker 00:
That's what we have here.

[00:34:20] Speaker 04:
You know, in defense of the way the district court put this in your position, this is a fictional underage child, right?

[00:34:31] Speaker 04:
Why shouldn't we want to interpret

[00:34:36] Speaker 04:
the language of the way the district court did.

[00:34:38] Speaker 04:
In other words, any communication to arrange sex with an underage child, there shouldn't have to be inducement, or at least we shouldn't interpret inducement as requiring anything more than the district court did, namely arrange.

[00:34:52] Speaker 00:
Well, now we're talking about whether Height's correctly decided or not.

[00:34:55] Speaker 04:
I mean, we would agree that... I'm just asking you a theoretical question.

[00:34:58] Speaker 00:
Well, I mean, we believe Height was wrongly decided.

[00:35:01] Speaker 00:
We think the mural approach is correct.

[00:35:03] Speaker 00:
Yeah.

[00:35:04] Speaker 00:
I see I'm running out of time.

[00:35:05] Speaker 00:
If I may switch to the Dr. Berlin issue.

[00:35:09] Speaker 03:
Well, I was going to ask you a question.

[00:35:10] Speaker 03:
You know, we spent a lot of time talking about words, and one of the experts was a linguist.

[00:35:16] Speaker 03:
And had he been called, while he may not have ever heard of the word pervout, he knows a lot about these words we're discussing, induce, cause, arrange, et cetera.

[00:35:30] Speaker 03:
And then you put Dr. Berlin on too to testify about fantasy, et cetera, and all of these things.

[00:35:37] Speaker 03:
Prejudice, in other words, cumulative prejudice, which is what Appellant argues.

[00:35:45] Speaker 00:
Well, I guess take those one at a time.

[00:35:49] Speaker 03:
Specifically, I said we're talking about cumulative prejudice.

[00:35:53] Speaker 03:
Very right.

[00:35:54] Speaker 03:
Running out of time.

[00:35:55] Speaker 03:
So I'm going to focus this very clearly on the issue raised.

[00:35:58] Speaker 00:
Zero plus zero equals zero.

[00:36:00] Speaker 03:
No, it's not zero plus zero.

[00:36:02] Speaker 03:
We've spent, what, 20 minutes talking about words?

[00:36:06] Speaker 00:
Yes.

[00:36:07] Speaker 03:
All right.

[00:36:07] Speaker 03:
The district court talked about the difficulty of proof here and the problem with the statute itself.

[00:36:16] Speaker 00:
did make some comments to that regard yesterday in the rule 29 colloquy.

[00:36:22] Speaker 00:
I mean, I guess take Dr. Berlin for one.

[00:36:25] Speaker 00:
Dr. Berlin's potential testimony had a massive downside to appellant.

[00:36:29] Speaker 00:
Dr. Berlin would have said that appellant was a bisexual pedophile, mainly attracted to prepubescent girls, that he did have the ability to form the specific intent necessary.

[00:36:40] Speaker 03:
I thought his diagnosis was bisexual.

[00:36:44] Speaker 00:
bisexual pedophile, predominantly attracted to prepubescent girls, also had the specific intent of the ability to form the specific intent required for 2422.

[00:36:55] Speaker 00:
And despite being asked about six times between joint appendix 539 and 563 at the 2255 hearing, refused to say that these chats were, quote, fantasy only.

[00:37:09] Speaker 02:
That's right, but how could that be prejudicial compared with

[00:37:12] Speaker 02:
I mean, surely if this were your son on trial, you would rather have Dr. Berlin testify to those facts than your son.

[00:37:23] Speaker 02:
Loris admits he's a pedophile.

[00:37:25] Speaker 02:
He admits that he had near overwhelming sexual urges.

[00:37:28] Speaker 02:
He's a sex addict.

[00:37:29] Speaker 02:
He also testified that he's not gay, but that basically he would settle for sex with adults who are available, including men, who would fantasize with him about setting up sexual encounters with men.

[00:37:42] Speaker 02:
girls.

[00:37:45] Speaker 02:
I think the case is that he would do it in a more professional way, he would do it in a way that was more accessible to the jury, and that that would have been far less prejudicial than Mr. Laurie's case.

[00:38:00] Speaker 02:
rambles.

[00:38:01] Speaker 00:
I guess two responses that are first.

[00:38:04] Speaker 00:
Appellant has not shown that he wouldn't have testified at trial.

[00:38:07] Speaker 00:
He simply has not shown that Judge Lambert indicated there was a ace a self serving quote unquote self serving statement that was made during a during the colloquy about whether or not you need to address that.

[00:38:18] Speaker 02:
Because Miss Birdie today admitted that he would have testified.

[00:38:21] Speaker 02:
She says her position is that he still would testify.

[00:38:23] Speaker 00:
OK, so now where's the prejudice?

[00:38:26] Speaker 00:
I mean, that's still coming out.

[00:38:28] Speaker 00:
And how would Laurie's testimony have been somehow different if they would have been able to call Dr. Berlin?

[00:38:33] Speaker 00:
That's complete speculation.

[00:38:35] Speaker 03:
Well, the argument is, look, you have an attorney who may be well-trained, as your brief says, but he spends all this time on a theory and a diagnosis that he's come up with.

[00:38:49] Speaker 03:
And the expert in the field discourages him repeatedly.

[00:38:56] Speaker 03:
And he's got another expert who really doesn't have any knowledge of the word that's at issue and whose basis of knowledge the district court questioned.

[00:39:09] Speaker 03:
And then you have this jury instruction.

[00:39:11] Speaker 03:
I mean, how many errors do you need?

[00:39:15] Speaker 00:
Well, the jury instruction was not error.

[00:39:17] Speaker 00:
It wasn't efficient performance to fail to object to that.

[00:39:20] Speaker 03:
Well, how about the closing argument?

[00:39:23] Speaker 00:
What aspect of the closing argument, Your Honor?

[00:39:25] Speaker 03:
You only need to induce the adult.

[00:39:28] Speaker 03:
What is to that effect?

[00:39:31] Speaker 00:
I confess to not having the closing argument at my fingertips, but I believe that was going back again to this concept of cause, that if you induce the adult to cause

[00:39:42] Speaker 00:
the sexual access to the child, then that's enough.

[00:39:45] Speaker 00:
I mean, that's how the jury was instructed, and of course, juries are presumed to follow their instructions.

[00:39:50] Speaker 00:
Going back to Dr. Berlin, though, you know, the second part of my answer to Judge Pillard's question is, how is it better to have a nationally renowned doctor call someone a pedophile

[00:40:05] Speaker 00:
as opposed to him saying it himself.

[00:40:06] Speaker 00:
How is that better?

[00:40:07] Speaker 00:
It's not better.

[00:40:08] Speaker 00:
It's potentially worse.

[00:40:09] Speaker 00:
I mean, if I think if we if Dr Berlin had been called, we might be here talking about whether that was ineffective assistance to call Dr Berlin as a witness.

[00:40:17] Speaker 03:
I mean, actually, our court has talked about how helpful Dr Berlin's testimony can be.

[00:40:22] Speaker 03:
So I don't think that's an argument.

[00:40:24] Speaker 00:
Well, that was in Haidt, I believe you're referencing.

[00:40:27] Speaker 00:
And that was quite different.

[00:40:28] Speaker 00:
Because if you look at what Dr. Berlin said about Haidt, Dr. Berlin was prepared to testify that Haidt was not a pedophile.

[00:40:35] Speaker 00:
That those were, in his view, those chats were probably fantasy.

[00:40:41] Speaker 02:
But this is where I think it's critically important.

[00:40:43] Speaker 02:
And the defense has pointed out that Detective Palchak testified to three categories.

[00:40:50] Speaker 02:
people who converse on the internet with adults, pedophiles who converse on the internet with adults and talk about children, people who converse on the internet with children or people posing or acting as children and talk about sex.

[00:41:06] Speaker 02:
And then the third category is people who want to go and have sex with children.

[00:41:10] Speaker 02:
And their theory, and Mr. Laurie's own theory about himself, is that he's actually in a category between Paul Cech's category two and category three, which is people who want both

[00:41:20] Speaker 02:
the vivid fantasy about children, because in fact, as he admits, he's attracted to children and who want some hands-on sexual stimulation, but do not want to violate the law, do not want to be victimizing children, and therefore he settles for the next best thing, which is encounters with strangers.

[00:41:40] Speaker 02:
That's the testimony.

[00:41:42] Speaker 02:
And that is less damning than a case in which he talks about his uncontrollable urges, and Paul Cech has set out these three categories, the only one of which involves action is incriminating.

[00:41:55] Speaker 02:
Whereas I think Dr. Berlin would testify to a category that involves action, getting in your car to see Jim.

[00:42:02] Speaker 02:
that does not involve victimizing a child.

[00:42:05] Speaker 02:
So that's, I think, the core of their argument about prejudice.

[00:42:08] Speaker 00:
But then he would agree, Your Honor, that that is the one aspect that's potentially positive to Dr. Berlin's testimony.

[00:42:15] Speaker 00:
But I guess my point is that that's vastly outweighed by this negative downside.

[00:42:19] Speaker 00:
He would then be able to get crossed on, OK, well, this fourth category that you've laid out here, would that include someone who's already traveled in 2006 to meet who he thought was a 12-year-old child?

[00:42:30] Speaker 00:
Would it include that person?

[00:42:31] Speaker 00:
And what's interesting, too, if you want a little peek behind the corner as to what Dr. Berlin's testimony, his cross-examination, would have looked like, look at his cross-examination at the 2255 hearing.

[00:42:41] Speaker 00:
From joint appendix 561 to 623, he's crossed.

[00:42:45] Speaker 00:
And what comes out?

[00:42:46] Speaker 00:
Multiple chats that the jury never even heard about between appellant lorries and what appears to be a 14-year-old child, an actual child, not an undercover, a 16-year-old child, a 12-year-old boy,

[00:43:01] Speaker 00:
this would all have been fair game for Dr. Balin on cross.

[00:43:05] Speaker 00:
So any minuscule upside to his testimony would have been vastly outweighed.

[00:43:09] Speaker 02:
But none of that being criminal under this statute.

[00:43:14] Speaker 02:
Well, but it goes to, I agree, but that would have been incredibly... Where they're willing to rest their case is, yes, he's interested, but he's

[00:43:24] Speaker 02:
But he has this clear line, his victim's line, that there is a difference.

[00:43:30] Speaker 02:
And so I think Dr. Berlin is the man for them in terms of making these categories.

[00:43:34] Speaker 02:
And they needed that, and they didn't have that, because Dr. Berlin wasn't in the case.

[00:43:39] Speaker 00:
And you've articulated the one possible upside to Dr. Berlin's testimony.

[00:43:44] Speaker 00:
And I'm not quarreling with that.

[00:43:45] Speaker 00:
What I'm saying is that that's vastly outweighed by the downside of his testimony.

[00:43:49] Speaker 00:
And one thing that weakens the upside is that if you look at, for example, joint appendix 147, Detective Palchek never quarreled with the idea that some people are just into fantasy.

[00:44:02] Speaker 00:
He said that.

[00:44:03] Speaker 00:
He said, yeah, some people are just into fantasy, and if we figure that out, we basically just help pursue it.

[00:44:09] Speaker 03:
Yeah, but he also said people tell you upfront.

[00:44:13] Speaker 03:
And of course, Dr. Berlin would have devastated that as well.

[00:44:17] Speaker 00:
Well, I think Dr. Berlin potentially would have contradicted that.

[00:44:21] Speaker 03:
That's what I mean.

[00:44:22] Speaker 00:
Detective Palchak was testifying based on his training and experience.

[00:44:25] Speaker 03:
And Dr. Berlin is testifying on his expertise, training, and experience.

[00:44:30] Speaker 03:
All right.

[00:44:31] Speaker 03:
So affirm, affirm, affirm.

[00:44:34] Speaker 03:
That's your order.

[00:44:34] Speaker 00:
Yes, Your Honor.

[00:44:34] Speaker 00:
We would ask that the judgment of the district court be affirmed.

[00:44:37] Speaker 00:
Thank you.

[00:44:37] Speaker 03:
All right.

[00:44:37] Speaker 03:
Thank you very much.

[00:44:39] Speaker 03:
Councilor Pillan?

[00:44:47] Speaker 01:
Okay, I will try to make this quick.

[00:44:50] Speaker 01:
I would just like to focus again on the prejudice to Mr. Loris from the improper jury instruction.

[00:44:56] Speaker 01:
One, we don't believe that a jury would have convicted Mr. Loris.

[00:45:01] Speaker 01:
As the government just explained, Mr. Loris said a lot of gross things in a lot of chats.

[00:45:09] Speaker 01:
And the words that he spoke to Mr. Palachuk were also, we believe, fantasy.

[00:45:16] Speaker 01:
And under proper jury instruction, where the jury was looking at Mr. Laurie's words and focusing on his words as they're geared toward the child, they would have acquitted.

[00:45:28] Speaker 01:
Also, it's not clear that those words taken for what they are are an attempt to induce or entice a child.

[00:45:35] Speaker 01:
Detective Pelchak stated that he had a girlfriend who had a child he messed around with.

[00:45:40] Speaker 01:
It could have been a simple arranging.

[00:45:44] Speaker 03:
Reasonable inferences from the evidence that Judge Pillard has reviewed with you.

[00:45:50] Speaker 03:
Pardon?

[00:45:52] Speaker 03:
The jury's entitled to make reasonable inferences from the evidence that was before it, and I think Judge Pillard was exploring that with you earlier.

[00:46:03] Speaker 01:
Well, the third point that I would like to emphasize is that looking at height where the statements that were made to Detective Palachuk were

[00:46:13] Speaker 01:
involved drugging a child, giving Benadryl, a peanut butter and jelly mix to a child, a three-year-old.

[00:46:20] Speaker 01:
The court held that the jury instruction was highly prejudicial because there were grave doubts about whether the jury based its verdict on the proper construction of guilty purpose or intent and that a new trial was required.

[00:46:36] Speaker 01:
And here, where the jury was told time and time again, was there an attempt to persuade an adult?

[00:46:42] Speaker 01:
Told by the government, told by the court, and even by trial counsel when he directly examined Mr. Lorreys, trial counsel asked, was there an attempt to persuade Detective Palchak?

[00:47:00] Speaker 02:
on the expert estimate back to the land there must be many cases in which a defendant wants expert and his case would be very much he did by retaining that expert if the expert is simply not available that can be an effective assistance can and how why is that not just the situation here judge lambert

[00:47:26] Speaker 02:
held in his opinion on effective assistance he tried to get this expert when this expert was unavailable was very very busy schedule he tried to get other experts he was just unable to get an expert how can we hold that that's ineffective

[00:47:41] Speaker 01:
So our argument is not that he was just unable to get an expert.

[00:47:46] Speaker 01:
He never asked Dr. Berlin for general clinical testimony.

[00:47:51] Speaker 01:
He developed his own legal theory, and he asked Dr. Lin to back that up.

[00:47:55] Speaker 01:
And when Dr. Berlin couldn't back that up, which he couldn't because they didn't believe that Ms.

[00:48:01] Speaker 01:
Flores could not form the specific intent, trial counsel was left with no one.

[00:48:07] Speaker 01:
But our argument is that he tried to pigeonhole the expert into a specific opinion.

[00:48:15] Speaker 01:
And because of that, he was not able to obtain an expert.

[00:48:19] Speaker 02:
So there's some miscommunication between the two of them.

[00:48:22] Speaker 02:
I think that trial counsel believed himself to be asking more general questions.

[00:48:29] Speaker 02:
Berlin is now saying, I didn't have anything on that, but I would have testified in this more general way.

[00:48:36] Speaker 02:
But we don't have any reason to believe that Berlin would have made himself promptly available within the time frame for the more general testimony, do we?

[00:48:44] Speaker 01:
Well, I think if we look at the record, starting with trial counsel, I believe it was July 2009, letter to the court, his statements to the court in October of 2009 in the status conference, again in February 2010 at a status conference.

[00:49:02] Speaker 01:
Trial counsel was always making representations that he was working toward a diminished capacity defense.

[00:49:10] Speaker 02:
Does Dr. Berlin, I read Dr. Berlin's testimony in the hearing, does he ever say, I misunderstood, had I understood what, what defense trial counsel wanted, I would have been available within the time.

[00:49:24] Speaker 01:
What he says is that trial counsel asked him to provide a specific opinion that he could not support.

[00:49:32] Speaker 02:
But he doesn't say, had I understood that he wanted me to testify on the core of my actual expertise, I would have been timely available.

[00:49:41] Speaker 01:
I am not sure if he specifically says that.

[00:49:43] Speaker 01:
It's possible.

[00:49:44] Speaker 01:
I'm sorry.

[00:49:44] Speaker 01:
I can check and lead or brief the court if you would like.

[00:49:49] Speaker 03:
Anything further?

[00:49:58] Speaker 01:
Oh, one other point is that if Dr Berlin could have provided some testimony, Judge Robertson would have continued the trial.

[00:50:07] Speaker 01:
So

[00:50:09] Speaker 01:
Even if Dr. Berlin could not have been available in that time period, if he had been asked to perhaps provide general clinical testimony that he could provide, Judge Robertson would likely have continued the case.

[00:50:22] Speaker 01:
He indicated that he would continue the case with some expert proffer.

[00:50:27] Speaker 03:
All right.

[00:50:27] Speaker 03:
Thank you.

[00:50:28] Speaker 03:
We will take the case under advisement.