terms they wanted throughout the entire life of the case and the government's part of the government hasn't said anything about what the status of better electronic document database it's at this point today so we have every reason to think that that database is still will be searched now today by half years after all those e mails were seeds and even worse when the government got caught when this issue was pointed out the government didn't confess or the government  take any of the legal steps and sent it to government double down and argue that actually we're going to have any limits because doing anything else was not feasible or because the electronic medium was ok so with respect to the issue of what in the warrant says they couldn't have it for the song there is there is no so if so then how could he be saying the paid rider of the words term in their execution of it if you're not making an argument that the warrant told them they documents that the government initially possessed were properly taken yes or that as an initial matter ok then there's a question of what you could do with those documents once you have a yes around and there are limits to implicitly says on that point i think that the fact that there are two sections of a warrant there section two that says you get to go to the relevant on s p d and get all of this data and have it and then the section for some period of time is limited then section three is called records and data that can be seized by law enforcement and so that implies that there is a another step and that's what will forty one dollars says that there is another step in and what we are saying but saying we don't know what the search terms were here on and we don't know when they were apart all of our requests for discovery on that point were denied so they are there is no visibility into what the government actually did it's had said back the challenge is that they still have it and it was seized outside the terms of the warrant the warrant again this goes back to the the two tier structure of the one section two and section three section three does not mean everything well i was saying are you i so with respect to that point what is it what is the point at which it became true wrong under the war and your honor i think that the only place to go back to one that is the reasonable less requirement here is again that where the government has acted in such a way that it's saying we were never under any obligation to conduct the  we where the analysis i was concerned that that makes wholesale suppression of property here so i think i'm getting the argument your position is that the government is asserting to  that under the terms of the war it can keep all of this material forever that's the argument that was made the other are but it hasn't been made by the government and it's brief to this court but it wasn't accepted by the district in the district court's opinion on this point i think does say that at least with the point that i was talking about earlier with respect to the identity of evidence that theory that the identity point i believe it was i know in the search warrant actually authorized seizure forever of everything in the e mail account i believe the district court did a position is if you only go to argument that the government has as to what they're doing is an argument that they have the right to seize everything when you say there's no way that war could authorize that i think that's right your honor of time which we might say can be no longer than the th amendment itself with a laugh which might be at the moment it becomes stale or when there's a show like a bad faith if that was the government's position you could only win if you could show that the government has held it beyond the period of time and which became stale or show that they were in bad faith doing searches that they shouldn't have been doing you might have trouble making either of those showings given what you've and just leave it in the warehouse for a look at or do whatever they want with it and if there's they're authorized by the warrant to do that and your position is that insofar as they thought they were doing that they're district court seem to think that the work could fairly be read that way for purposes of a conscious disregard for bad faith or such egregious governmental behavior that we have to disregard normal harmless error and throw out all the other right i think that the  respectfully submit that that's a big that the district court's opinion on this point i would respectfully submit is internally inconsistent on this point and that's where where our challenge is is pressing that point is that doesn't that then put pressure on your argument that there consciously disregarding if i may the district court has told them you could read it this way i don't know that the district court's opinion on that when it's talking about but  necessary kept ever going the suppression of evidence i don't know that it's it's squarely addressing the point you're on that your honor settled down on here but i think that the point that we would submit is that i would simply come back to the point about suppression in our answering brief we are not conceding that there was a constitutional violation here nor are we conceding as dr oz was shot he maintains in his reply brief that if there was a violation of resulted from flagrant or reckless officer in this conduct to the contrary everything the agents did in this case was consistent with the terms of the warrant and permissible under the th amendment and i'm obviously happy to address the merits of that claim the reason that we argue partial suppression however is because opening brief he did not cite a single piece of reportedly non responsive material that was actually introduced into evidence at trial and because of that this court's rather stablish line of partial suppress which for a close as his claim for relief as to the point about whether there was that type of flagrant misconduct here that would warrant blanket suppression there isn't and the reason why is because if even looking at these personal e mails the warrant in this is that he page eighty six of the appendix specifically allows the government to search and seize records showing quote the identity of the person or persons who have owned or also the case said that for some reason in this court were to conclude that the personal e mails are not responsive to that identity or control provision of the warrant it's by no means clear obvious why that would be the case in other words a reasonable officer outside the scope of this identity provision in the one provision which i want to be clear dr overshot has never challenged the work indeed he explicitly is not challenging the work and we cite the language in our brief it's page three of his is getting the material and does not go to the period of time during which searches and the going which is the sort of government have a position as to how wrong the are authorized due to her old all those materials to run searches on the i think the answer is a general th amendment reasonableness standard that standard is going to vary and be subject to the particular facts and circumstances in the case if there is work case where there was only a few e mails and that criminal activity was straightforward and you could see it on the face of the e mails right is reasonable in terms of a search period might be somewhat short but this is a complicated criminal scheme and i don't want the court for this issue to the interesting decision from the supreme court and in particular footnote says all set it's hard to know whether that means anything until it's merry up with other communications that show all say is how they've communicated ok medical records have been properly prepared and now they're right or do you agree with the defendant that provision barring does not in itself amount to an authorization to hold all of the e mails regardless of their contents forever no i don't i think it's paragraph three of section three which is the income taxes all of those e mails are directly responsive to the works and there is no rule that i am aware of where that doctor i wish i'd point to that would limit the extent to which we can search material that is de of the the entire corpus even if some of that is not responsive now again for two reasons this myself i mean is it do you intend to hold on to it until conceivably the supreme court has made the final determination in college and return under that name so i my understanding of the general rule was that the government's entitled to retain search and seize property like this through the terminations of criminal proceedings i would agree with the court that it in this retaining the personal e mails were two levels removed from this court actually needing to get into the details of that one is because they are indeed responsive to the barn as the district court concluded and to as we argued our brief because none the standard for courts to apply blanket suppression what is what i think is that the key insight here with respect to why there was no bad faith for intentional bad faith on the part of the executing officers here is both because as i said a reasonable officer could easily read this warrant to allow a seizure and to think that these personal e mails are responsive to the extent they do indeed show that it was doctor or shoddy who was controlling the e mail account at the time in question the other point here is that the answering that is it fair to listen to it you're no longer searching other words you have custody of it but are you still running searches you know your i i don't i don't know for sure i have not asked that question i can't imagine why he would still be running searches sprint's trial is over now on appeal there's really no need to continue to run searches through the material the record is now what it is so i don't i don't believe so and is everyone you planning to going forward for purposes of discovery battles that made him suing over right would be different than whether you can hold in the for ten years and continuing to search that would be different that's right and there are cases out there where what is the government's position as to how long you can hold this well at this point our positions we can hold it until determination of criminal proceedings because it's all responsive to the warrant and even if it's not responsive to the warrant some of it we can hold all that because of that the challenge to that is preserved the other is the no in what we call the no inference instruction we think that issue is not preserved and is subject to review only for plain error and if i can just because i know this is disputed point the reason why we and because there would be no effect on his substantial rights no prejudice the reason there would be no ever is because as this issue comes to this court and let me just step back for a minute dr walsh i asked the district court for a missing witness instruction that would have allowed the jury to testified adversely to the government indeed dr our study made this very point in his closing argument which preceded the instructions in the page nine hundred and sixty eight of the appendix when he said joseph ashcroft wasn't here and you can't speculate as to what he would have said that's argument which is that there's no inference instruction basically keep the jury in excuse or undermine his his argument and allow the jury to return a guilty verdict notwithstanding its determination the evidence was insufficient is i think not remotely the most that there is no there's no trial that means that explains why a particular witness did not testify and so it would be i think it inaccurate to say there's no basis for the statement that the reason he was not that about the evidence is is the burden on you to show that it's not her it's got a reasonable doubt at that point so the burden is definitely on us because it's pervert rather it's a constitutional dimension which would implicate the error because the reason why any particular witness in this case didn't testify is not a factor of any relevance to any issue in this prosecution now dr o'shaughnessy argument for this as he had argued to the jury about the egyptians with respect to their intent you know what do they know about american law how would they know that what they're doing is on mom which makes it hard for them to conspire with the argument right and the argument is raising permissible argument it's just one that was entirely unaffected by the court subpoena power instruction because again the reason why eyewitness to testify has no relevance here if the jury had proceeded to jury thinks the only reason he's not despised because you can't get him that's different then you didn't call him that but the simple fact that a witness to testify can be held against one party or the other you say it so long as that's true this can possibly even prejudicial them to the state of the reason he didn't testify that that's the argument because again in reading this instruction in hole in the case but returned to guilty verdict anyway on the theory that oh it's not the government's fault that there was an evidentiary hole in the case because the government couldn't get these particular witnesses and i think that's just an impossible reading of the record especially given the presumption  instructions had the jury found the evidence insufficient the jury would have returned a not guilty verdict and it would not have mattered by getting this was insufficient with only not and that the evidence rots and so that's why this instruction transcript of one instruction and the key word in the transcript is therefore what the district court tells the jury in the instructions is that because they were beyond subpoena power of either power party and unavailable as witnesses for the government of the defendant period therefore you should draw no conclusions either for or against the defendant or the government from the failure of such witnesses to testify there's the two components of the instruction are linked in the instruction it's one instruction we have two theories legal theories for why that's improper the caption to such him in the brief but what we're talking about here is one instruction that was objected to it and if you go through the page where the objections are rendered the objection that stated is that this is a confusing instruction and the argument that the government has just made to shows precisely why the problem with this there's a hole in the case and that the government hasn't met its burden of proof and that is an appropriate inference to draw from the absence of evidence and him as tori's and d s d as say that that's a permissible argument to ask the jury to draw that inference and so when questions on the jury instructions issue i want to go back to the of the th amendment piece and point out that what the government has come up here in the argument is exactly what their opinion you are what their the argument they knew for the