thousand and five part of that time he had at first one attorney and then the federal defender's office was appointed they represented mr falcon through trial and i two and three was found guilty of count one and the the facts involved a nightclub which caught fire it was investigated the fire was put out mr falcon being the person who was leasing the nightclub became the prime suspect in the matter it was investigated the search warrant was served on a computer the matter with your post  oceans of trial and mr falcon was convicted there after sentenced to five years prison where he remains at this time i would like to talk to the court this morning about my issues on appeal three five eight and ten the first is issue number three is the issue regarding the computer search thanks in this case indicates that mr falcon and in this case it is my argument that the search team did not feel bound by the terms of the search for the search team so the computer to get to work of the process that type of evidence makes them copies of the hard drive and then with through everything in the computer crowd so you're not challenging that there was probable cause with respect to the warrant you saying the there's two aspects here you're suggesting that they can't take the hard drive and then look through everything but if they don't do that how is it you think that they can match up t suggesting that they can't seize the hard drive that as a practical matter not a practical guy you can't do anything other than seize the entire hard drive and i know that and say for example federal wire telephone tap cases federal law mandates minimisation now there's no stop on the a t f investigators and the forensic people and looking through a hard right but there should be and they should be policing themselves of the story we don't normally we don't do should be high do you have any authority that says that we that we are bound by some law that they can't do that no no you're just thinking that we should make a rule to that effect i'm saying that this court should find that if the search warrant says you can search for records pertaining to the wildhorse nightclub from july two thousand and three to the present day and that's what the officers ought to be doing and that's what the search warrant said that's what they're able to look for you and then they tried to show her this photograph which the jury doesn't seem right she does and as i understand that i get and as i understand it also i wasn't there i reading the record in the records also set out in the government's brief somehow the prosecution said this is not for the jury with their using an electronic device which shows to the witness what the below that the search for computer terms for search terms such as arson that was not within the scope of the warrant i don't see that argument in your briefs here is am i right drive to find out whether that term had ever been the subject of a search correct and extend that and i'm asking as i was looking for the search terms that he had used on the computer and finding that he had used arson as a search term shortly before the fire was that within the scope of the warrant that argument and they alone i don't see it being made before us and i correct in saying there's not then i'm looking at the transcript this is what i'm trying to understand looking at the transcript in this drama it is showing this to the witness but saying this is not for the jury and the court says yes so the court just with him and then he shows the that two things are happening that kind of a perfect thing to me nobody's objecting behalf of mr falcon is somehow it seems that the judge is countenancing this which seems at odds with what you've also quoted as the prohibition against use of the material so maybe you can explain what you think is happening and where the prejudice is because it is disturbing when that on and so what is happening here is that the prosecution without showing the picture to the jury is letting the jury know that this woman who was on the stand is a guilty they're being instructed that they have to determine the credibility of all the witnesses the defendant did not take the stand he did not testify in his own defense so all the jury knows about this of at this point without him having taken the stand is that he likes to take digital pictures of himself according to the prosecution's or by the fact that the witness joy of reason read that's not him jury you know is instructed that if the defendant doesn't take the stand you're not to hold that incident but they are constantly evaluating a defendant in a criminal case or all of the judges telling them not to i'm sure the jurors are a defender of life to take pornographic pictures of himself with a digital camera having sex with his former girlfriend and that prejudice of the defendant that should not have been involved in this trial and i say at that point other words that is not relevant to the case and the prosecution just blatantly violated the court's ruling which was in writing and not in writing just once but twice can you tell me the what happened because i'm a little floridian that's what happened with regard to the suppression motion and this is the part of graphic materials on the motion that many other words what did counsel trial counsel actually counsel moved to suppress any evidence seized by way of if i was talking specifically i don't think he moved to suppress specifically death photos though and that then came up with the issue of the motion  material could not be brought up without prior without that the presence of the jury yes i believe they did and that was the ruling of the court i think i found the ruling although i guess the timing is on clear that if you want to use it you have to meet you have to ask them but there's pernod grafin two points there's a pornography general that he had he was fairly well you know all this other stuff but then there was the specific one about what i think the record said i may be wrong but as i understand it he was doing a classical impeachment he had the picture in an envelope on the table and he asked are these questions because she said she had no relationship end and about the picture but i don't think impeachment there because this was during impeachment or the judge told him that he couldn't use it for any purpose unless it came to him first when you finally the judge said later on the jury knew exactly what was going on because they were talking regard to my time i can limit it to the issue boilerplate motions with speed in recognizing that in the search of the computer the discovery that was provided to the defendant in the in his counsel and allow me to give a little more context about the search of the computer there was an initial search that was performed providing these keyword index and the keywords brought out various information one area of the computer that was not searched the next you were given access of course thousands literally thousands of the pornographic websites and contacts of websites both paid and non paid pornographic websites so the time of the hearing on march fifteenth was the government's understanding that the pornography if we're going to use that in its legal sense related to the corner graphic websites both the pay and the non pay web sites now the border admittedly is broad enough certainly encompassed if you are going to define the photographs intimate photographs between this president and mr falcon as pornography it is broad enough to encompass that from the government standpoint also it wasn't our attention to offer and we did not offer any evidence supplied graphic websites throughout the course of the trial and further support of the mutual understanding of counsel at the time of trial that we were talking about pornographic  going on it could have been but if you had a different warrant not on the war you had well i guess respectfully you're right the united states would submit that at the time that the search warrant was issued the person that was the focus of the investigation was obviously kill however during the continuing investigation of the matter in the interviews with mr breslin including her grand jury testimony it became apparent that she was giving inconsistent information and she was like i think you're sliding off what i've my point is you  pictures of naked people having sex no matter who they are it might relevant to the trial but there's nothing in the wire that allows you to search for cracked i guess when you can see that entirely where in the warrant is there something that allows you to look for naked pictures for pictures of naked people having sex it allows for business records photographs you sound like a business record let me continue here i mean if you put in the context in which the relationship is kind of say well actually she must be lying because these photos were made on this timeframe and that sort of thing and the judge just as it seems to me for their future this is for their return on a collateral source more relationship and then the judge starr has the document clearly used in questioning appears to be beyond the scope of any search warrant that was provided so i'm not going to permit that kind of testimony so i didn't  this other picture of naked people having sex was progress or you're covered it was not pornography as you're trying to say maybe it wasn't an argument within the meaning of the order the underlying rationale for the order is just you and i guess the other aspect of it is it's offered to show that this was not an intentional violation it was not a willful violation the parties did have a reasonable understanding of what that term meant when the court issued its order that's why i'm massive deletion off of the hard drive which did include financial records thank you and if you soon and you find that this was a violation  of course clean air and the prejudice to the defendant and the touchstone of course on the due process violation is not the culpability of the prosecutor but it is with a not this gentleman received a fair trial in the united states missed out on the volume of evidence that was provided this was over a two week trial there were forty forty five witnesses that were called numerous stipulations that were entered into the record before the judge in the jury and that the the evidence on tainted evidence what was the nature of the photo relative to the to the evidence that came in or the impeachment i wasn't present in the courtroom at the time that this examiner is records show the record shows in my interpretation of the record that shows that the witness was almost placed the photograph was placed on the arm was request that only the when this view that on her monitor she saw it on a monitor and mr ahmed exam here do you have do you have an intimate relationship with the defendant and offer that's hoover is pretty it's pretty hard to resist a district judge's conclusion that under those circumstances even if the jury doesn't see the photograph they know exactly what's going on yes i'm not going to say that the jury had to speculate  is president had been the subject of two motions before trial established that she had a close association with the defendant given her relationship and those motions were denied but you have five paraphrase which in the warrant when the specific language of the art is narrow this language is now and you're fighting uphill with me yesterday persuade me that pictures of naked people having sex no matter what their identity is within the thank you thank you