the courts well aware in order to prove can possession of child pornography the government either has to prove actual possession of that child pornography by proving custody and control over that and or constructive possession which would be the control and the intent to possess that child pornography can i get to what i think is the strongest argument against your position just let you focus on that for the time our focus on it right now if you want to  the e mail on january twenty sixth at four seven am he transmitted child pornography all right apart from the transmission that also shows possession at least in terms of possession because it shows that he had control over and an intent to exercise the control so why isn't that along sufficient evidence that it was i for the trial of the government as to the in the middle district florida elsewhere did knowingly possess that covers and did the did the instructions prevent the jury from finding that that was possession instructions  if the court were to find in our favor then our position would be as to come one that the defendant would have been deprived of a fair trial because all of the images from count two or before the jury to consider as well so if the court would have severed as we requested pretrial or dismiss count two of the indictment as requested those additional images from the december twenty first e mail would not have come into trial you know but that's not fair unless the district court abuses discretion and not severing and i don't i can't imagine you're charging somebody with possession that extends to a date in which he's charged with transmitting i can't imagine any court ever severing those charges i mean there's same evidence the same transactions what possible basis bases would be that our basis would be that they were unrelated it was a different e mail chain different recipient and different images that occurred a month after the texas e mail but it was overlapping date and  transmission of one item also evidence satisfy the possession of that item and another count was an overlapping day because the government chose the the january twenty sixth or seventh that nineteen as far as as far as the additional prejudice we're now introducing evidence of additional email conversations an additional conduct on the part of mr little rather than one single transmission that occurred in tampa florida so your position is if the government charges anybody with transmuting bernard they can introduce any evidence of other possession of joe that's the facts of this case our position is that it was improper because the proper of the it was improper venue in the middle district of florida as to the additional images understand that but in terms of your sever putting aside in terms of your severance your position is that if the government charges someone with transmitt they can introduce evidence of possession of the same type of damages i would argue that they would be limited to the one image that was in that transmits if there's no additional counts of possession char indictment so if if somebody is charged with  selling up stolen vehicle i'm sure that's federal crime and you couldn't introduce evidence that where that vehicle was found there were eight other stolen vehicles ar but as far as as far as the insufficiency of the evidence of possession as to count two and ultimately what i would argue with them be improper venue as to count two i would rely on specifically the district court  comment steering the rule twenty nine conference when she was asked by trial counsel or when he made the point that the e mails from the twenty first don't continue after the two in response so that the district court said yeah but how did i know he didn't possess them after the twenty that alone draws draws a conclusion that the government failed to prove that the e mails from the twenty first of the child pornography images from the twenty first were ever possessed by mr little after the one even the district court judge how the comment will how does she know that they weren't possessed possessed afterwards that was the government's burden during their case in chief to put that evidence and they failed to do that and that was recognized by the district when she made her decision ultimately what the government's asking is for this court to sue would stop the rule of constructive possession as to the con the e mail account that regardless of where you may be in regardless of whether you actually access any file in that e mail account you can prosecute you in any jurisdiction that you may cross if you have the ability to potentially access that e mail account that's a stretch as far as constructive constructive possession and ultimately i would argue that that creates almost an opportunity for the government to venue shop where are we going to prosecute people this person that happened when ever the crime extends beyond one been perfect but what our argument is that this crime as far as county goes did not extend outside of texas except that he transmitted and therefore exercise control over with an intent to exercise control over an image while he was in tampa separate images you know but you look at count one they didn't charg but not as to count two are a minute reducing this as to count two but not as to count one way the way it was argued is the the images from the december twenty first were argued by the government in support of the possession oh i don't understand argued if if the judge reads the indictment to our thin dime i go to the jury and if the instructions permit the jury to convict if the defend possessed anything during the during the day drange that is set out in the indictment which covers january twenty six and the four hundred seven am time of january twenty six i don't understand the fact that the government didn't tell the jury now that proves that i don't understand why you think therefore the jury couldn't have convicted known that the judge's instructions are what the jury supposed to follow not the computer to access a remote server to view child pornography that was a receipt case so that standards a little bit different but i want to point to prove it in that jury actually acquitted of the possession count and he was never show on behalf of the united states i think what mr little is doing in this case and i think the court is correctly focusing on that is try to cut this pay case up into far too many little pieces and try and gain whatever tactical advantages factually or legally he can gain from looking at the piece little pieces individually instead of stepping back and looking at the entire case which of course is what the jury did and what the district court did and what i think this court correctly should do i'd like to focus my comments on the challenges to the sufficiency the evidence and the venue issue regarding the possession offense first of all those challenges really have no effect on  consideration of us as factual questions if he had if the government had been you over the transmission count then of course you could join the position count because of the overlap even if you wouldn't have had even if you wouldn't have had then you over the position count along with no i think you could because because the case needs to be looked at as a whole and really when you when you look at what the what the facts are in this factual scenario that's really quite common in child pornography cases the only thing that's really unique about this case is that the pictures in question weren't stored on a piece of paper they weren't stored on the part of the defendant cell phone or laptop or desktop computer they were attached to emails that were stored in little e mail account on google server in california and he used his cell phone here in florida and in texas and elsewhere where we might happen to be due to access those accounts or that account and the pictures that were attached to those e mails remotely over the internet and really that that's when you boil away the electronic form of that you're really looking at some simple substantive issues that relate to actual and constructive possession so here are the key facts regarding the possession and the venue issues in december and twenty twelve in january twenty third teen little routinely used a cell phone to access the internet to communicate with other individuals over the internet about child pornography and to exchange child pornography either by e mail or by communicating on social networking websites and he also used a cell phone to view and try to view pictures videos and websites that contain child pornography during that period when he wasn't on the shrimp boat in the gulf of mexico he lived first in freeport texas and then in that before it up and he moved from freeport to tampa on december twenty sixth the images that were received on the december in the december twenty first e mail while he was in freeport he received from another individual in the tolbert account there were three man accounts that were involved in this case  and that was the e mail that contained the twenty pictures and those are the e mails that essentially form the main basis for the possession offense he did not delete those images from his e mail account after he moved to tampa he continued to use the same e mail account to communicate about child pornography including on january twenty sixth when he sent the e mail but that forms the main bases are the only basis really for the transportation account i think this gets at some of the issues that the court was getting at in the conversation with with mr little here that's why you really need to look at the entire case together when you step back and look at what the defendant was doing here he was using his phone he was talking with people about child pornography he was sending images he was receiving images that was really what was going on here the fact that it crossed the state line really doesn't matter because he was he was really engaged in the same process throughout the entire time frame and importantly both of the key e mails in this case there were others as well which contain child pornography but that you charged the e mails that contained the two sets of charged images were still in his e mail account when the agents executed the search warrant on the google server in california about a year and a half later so as to actual possession as the court is well aware was discussing and one of the prior cases the person has to have direct physical physical control over the object and in this case a reasonable jury easily could have found actual physical control  over the e mails attached to the december twenty one e mail because the defendant had direct physical control over the pictures in his e mail account on google server over the internet it was cell phone and you know the way the way the  google services them works he could have you know viewed those pictures at a time he wanted to simply by pressing the buttons on his phone and yet focusing on the thing that's unique about this case you know that the pictures themselves were digital picture digital pictures so to that extent they were intangible items and they were attached to the e mails but the fact remains that little you know continued to have direct physical control over them in the e mail account on google server through the tangible tool that he had this  pocket which was a cell phone so actually an actual possession theory was argued to the jury and it was instructed and that was something that the jury reasonably and could have found with respect to constructive possession the standard there is power and  exercise control over it and in this case a reasonable jury also could have made that finding as well even if he did not have actual possession of the pictures because he had the power and intent to exercise control through a cell phone  tampa again he routinely used a cell phone to access is e mail account on google server and to access other social networking sites so that he could discuss and exchange pictures he also made a conscious decision to retain those pictures and to keep minutes account and that's consistent with the fact that this court is noted in decisions collectors of child pornography often hang onto it for a long time because it's difficult to to acquire the fact that it was on google server in california is not really a significant issue at all joint possession certainly contemplates shared possession and in this case google is in the business of maintaining information for its users and that's exactly what happened here and there was clearly a joint possession now as to the venue issue i think perhaps judge pryor noted the fact that it's a continuing offense and that's true little began possessing the pictures that underlie the possession of vets while he was in freeport when he received the december twenty when he mailed retained them in google server when he decided not to delete them he continued to possess them when he moved to tampa the theory that ask opposing counsel there about which is that if you transmitted them own decent for twenty six or seven am obviously exercise control over and constructively possess them on that day there is no evidence that he received the moment that day on which day the january twenty sixth day yes right now he did he clearly did not receive them on that date and i so why isn't that sufficient evidence that he possessed that one image before that date one image on the january twenty sixth yes if he transmitted it he had to have it before that date unless he received it on that date and you say there's no evidence he did i honestly i know he possessed it before that day he had control over it before that date and the fact that he transmitted it owned that shows that he had an intent to transmit well certainly he possessed it prior to transmitting it and the fact that he transmitted certain it and it shows he has control over it so why isn't that the answer to the possession sufficiency issue well i don't i don't know that that was the way it was presented and i know that the court is correct in that that certainly could you understand every jury and i'm sure you've heard it many more times than i with finding that because he transmitted had access to exerting control over and transmitted that photograph it for zero seven am on that morning which was in that range of dates and count one that they couldn't convict him oh man no your honor there's nothing inconsistent with that and i think during the jury some of the discussions on on some of the motions that were made it may have been the rule twenty nine it may have been and then you portion of that i can't recall exactly whe but the prosecutor who tried the case explained that that the date range that was selected for the possession the count possession count was selected because it included the dates on which all of the child pornography at issue in the case at least a charge simple to us hasn't occurred to anybody until we get here i understand your honor i would like to address one point in a little reply brief a page for he asserts that he's asking this court speculate about what is a tent may have been and to assume they had the intent to exercise control over the pictures in his e mail account while he was in tampa that's not right the united states is not asking this court to speculate or to make any assumptions about littleton it's asking the court to conclude that a reasonable jury could have found based on the evidence that little so i left the court has additional questions regarding the severance issue as as to the court's question about the possession of that one image that was sent on january twenty sixth of two thousand and thirteen at trial there were really was a lack of forensic evidence of where that picture came from doesn't really matter does it if he's in tampa and he exercises control over it so efficient to transmit it he's possessed for her and struck to believe possessed really what it is it's the big picture here of the theory that the government's putting forward as far as possession of the contents of an e mail account really what the government's trying to do is say in order to prove possession of what's in an e mail account all we have to do is prove that there was an e mail account and at some point in time somebody could access that that's a broad stroke of the possession that kind of eliminates the need to prove intent in the big picture and for those reasons i would ask the court as to count to reverse and if the judgments and come to i mean that there was insufficient evidence that he had the power and the intent to possess those images that were attached to the assembler twenty first e mail which was received in texas thank you i would take that case under submission