we are the final case to be argued this morning united states versus balls good morning may please the court stephen bartholomeusz half of the appellant donald ray bowles your honour's we've raised a number of claims in our brief three of which would require vacating the conviction i'm going to begin by talking about the admi inadmissible hearsay that was admitted over our objection however if the court wishes to redirect and huge feel free to do so the label before you get to that you know i do have a question about the war and i wondered whether there was anything that was misleading or inaccurate in the warrant affidavit in your view and in particular i want to direct your attention  ping happened at the same time in two thousand and ten right after mr bowles accessed the site and it seemed to me that the district court's ruling on this understood it in that way in your honor we mention that in our reply brief the second ping as you call it actually happened about four weeks prior to the application for the search warrant that went to judge sessions that was by far the freshest information that they had regarding mr bowles activities in that instance in that it attempts to entice mr bowles not only did he not try to download any child pornography he didn't even respond to the e mail or go to the website at all we've suggested in our papers that that is to some degree misleading because they knew they had a staleness problem remember the observable facts that were attributable to mr bowles were approximately two years old by the time the warrant application was made to the district court and here we have very fresh information proximately a month old and they don't highlight that for the court in fact they're silent about its exact timing other than it was subsequent to the first ping look to me like it was presented in such a way so you could have understood it as having happened contemporaneously with the initial visit and and therefore  defining aspect is that it didn't describe any illegal activity that was attributable to mr bowles that's the first thing however in keeping with this court's directive in falso it did have particular  information however that particularize information as it related to mr balls was strictly related to lawful activity your position that day and an affidavit in support of the warrant application needs to show illegal activity in order for a warrant to issue doesn't there just have to be a set of factual allegations that give rise to the reasonable probability that there was contraband in a particular location yes we've as we've conceded in our briefs the crime of face showing is not a prerequisite or a necessary requirement to find probable cause i would say however two things about that one describing something which seems to be illegal certainly is something that one would expect or would go a long way toward probable cause and they didn't have the here and secondly under this court's holdings in both falso and raymonde we think that either there has to be some allegation or evidence to suggest that the person in question either downloaded posted or at at least viewed child pornography or in the alternative was a member in a website that catered exclusively to child pornography which we know is not the case here the girls form circle website the only descriptions that the  the gore girls form circle web site were those regarding child erotica purely lawful images they had the opportunity of course one would think although i'm not entirely sure describe child pornography they certainly described in great detail their own website but they didn't do so for the girls form a circle website they didn't in contrast to martin they didn't for instance download one hundred images of child not well pursuant to this court's case law at that time yes but remember that conviction was ten years old and so we think the staleness of the conviction certainly dilutes whatever or psychology of people who collect child pornography is not a stablished here we have a man who was convicted of a similar crime the crime ten years ago who then went through a long period of supervised release that he successfully completed got off of supervised release and apparently led an otherwise lawful life as the court pointed out at the in limon a stage  which we asked that this prior conviction be withheld from the jury and in limon a motion that the court granted he said look this is of limited value that it so of itself i think is indicative that the prior conviction while it may be something the court should consider is one of limited value was there anything else that you contend was misleading about the affidavit other than the failure to highlight the recency of the second ping not misleading your honor although again we think that because of the way this affidavit was made out including the fact that in this case he gave zero description of the specifics of this website where the contraband was found it said it comes to conclusory statements about this board  majority of it was used for making that show recklessness or something some fault on the part of the agents absolutely and that's why i think we've made two claims regarding good faith one was that the affidavit itself was lack totally lacking in probable cause and the second is that the agents acted recklessly not simply because of the time delay although that's a big part of it  simply because the second ping as as the court has described it was somewhat misleading it certainly wasn't obvious but because it comes these conclusory statements such as the bor the majority  board had child pornography available what does that really mean remember it's sort of a bleak lee reference is that this website actually had an elite members only section well is that where the child pornography was found is that why the f b i was unable to scribe any image of child pornography that was found on this web site mr bowles was not alleged to have been a member of the elite members section of the website because the affidavit is totally lacking in describing the specifics of the girls form circle dot com website we do think ultimately it lacked in probable cause and for the reasons already stated we think it was misleading the district court  martin i know the court struggled with martin and we've kind of we've kind of made it a fact intensive kind of analysis we haven't really given much guidance frankly but these are very fact intensive cases but but the inadequacies of that i mean they didn't misstate affected they not that i can tell your honor although i wonder what else was left out of the warrant for the reasons i've already we had a hearing did you have a hearing no this was decided as a legal matter on the four corners of the affidavit and to the extent that the quarters maybe it's not but i interpret the court's question did we ask for a franks hearing right we did not ask for franks hearing no we so what am i supposed to do this what a need to overcome respect leaser i do believe that we overcome it in this case i just know i and i don't take you to be anything but that ok these are tough these are very tough cases but you have a lot of meaningful things to say i mean the convictions ten years old yes and he has nothing in between that's and he he he he takes the bait on one but he doesn't click on anything and then he doesn't take the bait the second time correct and so they have they don't have any thing that puts this in the mark kind of category where he was he was we knew what the images were and that and that he was that he was utilizing the website  one more thing i would like to add about leon and good faith your honor if i may and that is you know this warrant was issued after falso so there was of course direction from this circuit to affiance of affidavit seeking a search more of a person's home and their computers that you need to be descriptive about the particular allies information about a suspect that  indicates he or she is involved in criminal activities they had the benefit of that holding and they chose to ignore it i know it's my time is up it does the court have questions about any of my other very strong arguments  m i don't i thank you thank you you have struggling to define what it is that would define probable cause in this defense wishes for there to be actual trial for pornographic images that are involved in every case but as the court is recognizing every case needs to stand on its own merits and the best that we can come up with is a general framework to look at but it's an important i mean that in this case despite it being served up to him very  y mr balls didn't click on any child pornography he came close to the edge and he backed away and we don't know why but i find that significant and i particularly that there was no recent activity this conviction was a decade old he got gotten in trouble since then and he just didn't cross the line so that concerns me and i'm also concerned about the notion of who is a collector and who isn't this seems like a form affidavit with a lot of material that we've seen in other warrants or of warrant affidavits before but i'd be kind of interested in a psychologist and kind of what the psychologists say about who are collectors and why does everyone with some kind of sexual attraction to a child become or a collector of images or not it doesn't seem to be obvious that one would and yet that's really the premise for reading this failure to engage in activity that goes over the line and looking back to the ten year old conviction so i'm  untroubled by those elements and i wish she could speak with them and only my concerns yes her first of the conviction she was speaking of the mike if you would i apologize oh no that's ok the conviction was in two thousand and one the activity that we were can we concerned what took place in two thousand and nine so it was actually only eight years and judge sessions address in particular the but until the warrant i mean the warrant was in two thousand and eleven right correct but some of the when the war two incidents where he was offered through a government lou or an opportunity to access child pornography and he didn't do it well in truth it is interesting that he did not however he responded to the e mail in the first place and the e mail was graphic as in this is if you go into this site you can have child pornography for days and hears that it also make child erotica which is not illegal available as ugly as you know we might find it i don't have an answer your honor but he did not he did respond in just sessions address and he found that what was more important was that mr bowles had responded to the e mail in the first place not whether when he was at the second page he actually went further and got additional child pornography i mean mr bowles was as it came out later on he did have wiping software and incursion software so he at the time that we searched his residence he had become proficient at attempting to conceal his tracks so that the government also could have followed his what he was at a hotmail account or whatever he could have surveilled him in other ways to look for activity that would have crossed the line if he was in fact doing that and in the government didn't do that and we all we have is this ping that was an responded to right at the time of the warrant was issued right i mean there's always there are limits there are always more things that we could do in all cases and what it is before the court is why did we do and what did we have and i do take issue with counsel suggestion that there was a paucity of detail about the girls form circle in the affidavit there were several paragraphs related to that it referred to the primary purpose of that that website as being the child pornography trading it was something the judge sessions relied on and so we do have that activity and it wasn't the kind of detail that we saw in martin and in the candyman cases where the fact that you could do non legal activities on  web site was important and we don't know from the record you know to what extent someone to go on the girls form website in doing engage in non criminal activities is that a factor and was it  reckless for the agents to not provide that kind of detail i don't think that it was i don't think that there was any intentionally reckless or misleading behavior on the part of this agent towards the  court there was a reference as to what was found on that it was telling that there was no adult pornography so basically whoever was at that web site though had a sexual interest in children which is why they were there whether there was child erotica child i agree but mr bowles had we had the benefit of knowing what it was he was capable of through his prior conviction and during the time in the prior case he had collected child pornography over an extended period of time and so that helped to inform the decision on what it was that his activities were when he was on that forum plus he was an active poster he commented as it was in the affidavit he also posted admittedly images of child pornography but i don't think that this is primary one that is argued i mean it's important recall what it they don't argue that they don't argue that there was and intent to do mislead the judge or any sort of nefarious conduct what we have is  probable cause and reasonable minds are debating that right now so i think to call the affidavit facially invalid is in the correct it is it is correct though that the affidavit doesn't flag the recency of the ping that that's all that had happened in a year since that most recent kind of web based interaction with mr bowles that an agent had sent an e mail and had gotten a response and that struck me as as presented by the judge on page three of his decision he says after accessing the second page of the website that user did not attempt to download any of the advertised videos or attempt to access the pay barrier for live video stream an f b i agent sent another email to the same email address attempting to elicit a response but the user did not respond and then he moves a year forward to august two thousand and eleven suggesting he thought that was of a piece and and suggested some possible misapprehension of the timeline here and that concerned me a little bit do we know that though i mean i agree completely but we don't know that because we didn't have there was no hearing that i gree completely that it is that there's there's a logical conclusion that can be drawn that there was a date consciously lit by the same token we don't know whether that was poor drafts draft person  and the fact that the agents were cognizant that this was a potential issue and i think that back to your comment judge wesley about how these were agents that they were aware that there was a possible issue so what do you do when there's a question in the government's view you go to the assistant u s attorney and you talk about it and then ultimately you go to the judge and i don't mean to interrupt judge carney's question because it goes right to heart of what we're talking about here but i mean this is we have we have  overturned by and by the way in this court somewhere so the law but martin is is only good as it's facts and the other rulings are only as good as their facts but here you have something this kind of interesting this is a ten year old conviction and you have an affidavit from an f b i agent who says people are collectors and you have nothing to prove that he's collecting you have you have him posting child erotica pictures which are not illegal in a site that caters to both when he's when he's requested to post something he posts there and then and then more and then that's a year old right and then you have another more recent ping where he kind of walks into the store and doesn't shop you know and i guess the thing that troubles me about this site you can tell we're all having a bit of trouble with this is that  somebody get a free pass just because they've been had an interest in child pornography i mean which is so revolting that somehow we suspend if this were if this were the possession of drugs this would this wouldn't because would it i don't think you know this is the thing that troubles me about this and you know it so will get the hell beat out of us if if you know depending on how we rule on this but i but this is this is you know once a collector think that we we have to remember that probable cause is a fluid content fluid concept and we have to look at the totality of it and in this case what do we know about this individual that would lead the court to believe th to believe that he is likely to have bad images and likely to still have them i mean a reminder that was good at the seventy six thumbnails nine months earlier and that was booted out surely on staleness so to suggest that that makes the requirement that you have to have these images i think that's misreading ramona but looking at the totality looking do we have images do we have child erotica judge sessions articulated that child erotica clearly represents a sexual interest in children i know sexual interest in children is not illegal however repugnant it may be but when you look at somebody like mr bowles he had a park conviction he went to jail for fifteen months somebody like that they it's a proven documented interest in child pornography he is poking around on websites that have child pornography on them he responded to the e mail and that was the year before he responded and didn't download and the most recent thing he did was not respond to any e mail at all how can we not have serious staleness concerns well i mean then we get in the staleness examination you know what's the  how likely is it the at the at its core the staleness how likely is it that that individual who is being suspected that conduct is still going to have it i mean in remote into the expert said that all the images that were in the cache were going to be gone within thirty days and they were nine months later in this case we know we had the benefit of knowing a judge sessions who sat on his original prosecution he had the benefit of knowing as well that in that case he had long been collecting child pornography over an extended period of time and that he was actually communicating and doing all sorts of stuff served his sentence he got through supervised release i mean i think he a position that once you're a collector you're always a collector i respectfully disagree your honor because he's not that in that case and everybody who ever gets off a supervised release is at risk for a good search warrant just because they exist and that is not at all what we're doing but here we have him on the members only website that did have child pornography we have him bring spawning to an e mail while he didn't bite he still responded and that was persuasive to the judge and can we say that it was erroneous for judge sessions to issue the war that the government obviously thinks no and we also think that good faith that the agents did the right thing they went to the judge because the alternative if they had sat on the warrant and decided not to pursue it then you know it's an open question it's an issue of law as to whether or not something is stale and so do you sit on it i mean if it's three or four years old then it's a clear question but when it's a judgment call like this you go to the issues judge it was a year old and then when they had picked him he didn't respond that's a long time in the past i mean they did sit on it really well maybe they did but judge sessions did not think that and because there is also no allegation whatsoever that judge sessions  abdicated his judicial role which is one of the good faith factors one does all right i mean judge sessions sat on the original conviction and sat on the bar and issuance and the suppression motion and i would i would find out i don't know john sessions but i would i website that that in of itself was indicative of probable cause and i just as this court knows that calls into play illinois and the long held understanding that mere association is not enough to raise probable cause secondly you hazily had pointed out that there was no franks hearing and certainly every time as a trial a trial lawyer i have failed to advance the record in some meaningful way it is my frontal cortex with that being said i'm sure you know for would have testified that there was no intent to mislead the court however we now have  agent has since sent another email in a way that suggests less of a temp or old link and i i wonder what your kind of core responses to that you know the judge ruled on it and said it was ok the judge is the expert in cialis and the law the agen entitle to rely on that well in many circumstances we know pursuing to leon the agents are however as we discussed in my opening remarks we do think that that statement in and of itself what has the tendency to mislead the district court it seems to this court to seem to understand that it has the tendency to mislead and for all the other reasons that i discussed in my opening remarks that  is the lack of detail with regard to the girls form circle website the fact that they didn't describe any of the child pornography when it seems to suggest they could have it doesn't indicate that they downloaded any images