basis to show that the evidence is what they say in this case what the prosecution had to establish was that the facebook evidence was authored by the defendant in other words that the mike malone and kevin lamb facebook accounts in the defendant's accounts authenticity may not be a high bar but it's still a book and because social media evidence is so easy to falsify it is not enough for the government to show that the records come from facebook photograph or a name isn't enough to prove provide a rational basis for authenticity there has to be corroborating evidence and admission of ownership knowledge of the casper unique style of communicating meetings arranged with the defendant through the messages if the prosecution here had relied on the meditated to show that the accounts have been accessed from a particular device your ip address that would have been a direct personal link showing used by the defense counsel is not just that there is does here though i mean some of the images as i understand the records were found out of gas cards inside your client's apartments and they were i think also my notes in the case screenshots of conversations were inside his apartment isn't that enough to link it to him personally not maybe an admission but certainly enough to upset a kid yes your honor i would go through each of those categories and eventually in the case of the photographs of the victim that were found on the memory card in the defendant's apartment if this case were simply about lamb's possession of those images yes end of story but count two is for production the solicitation of those images from the victim and that means making a reasonable showing that the mike malone account was the defendant's account these images were saved to the memory card until three weeks after the facebook messenger conversation therefore there remains the distinct possibility that was never just proved ringback that jorgensen the other defendant who was picked up during the same sting operation was responsible for having these images created in the case of the photographs in the memory card that match those these are not the these are not the photographs of the victim but the photographs on the memory card that appeared on the facebook accounts several of these were stock photos which you could find anywhere online and again photographs aren't enough the case law makes that fairly clear because anybody who has a social media page of their own and anybody in the world can go out there download those photographs from the social media page and upload them to a new page and in addition if you were if you know somebody personally as the defendant mister jorgensen did it's not beyond the pale that you might have photographs of that person what about the what about the e mail address associated with both accounts which was a spam as i understand it the same e mail address he used to register as a sex offender and then you also have a phone number his phone number and cell phone number was associated with the accounts as well well judge st of all the e mail address again that's both the e mail address and phone number are things that anybody who knew the defendant could figure out and i believe in the case of the e mail address that was not associated with the mike malone account the phone number was but the but the e mail was not finally when it comes to the screenshots of conversations that were found on the phone seized in the defendant's apartment the investigating agent conceded at trial that she didn't know if those screen shots were taken on the phone or not so again that's another piece of evidence where the possibility remains that a rd party e g jorgensen could have taken those photographs sorry those screenshots of all of those facebook messages and then some again we're talking about production and production is the key here when it comes to the loan account you don't think though is somebody looking at this as a whole now i think we have to look at all these things all the photos the e mail address the phone number would say that you know yes it's a possibility d you identified there's a possibility that somebody i jacked a decorated put up there but a rational person might also say you know well that's probably enough i mean authenticity the the the key is to look at all of the circumstances as you said however again when you look at the case law both in the circuit and others there is  it does require more then linking of photographs and linking your publicly available personal information again it has to be something more personal than simply i found these photos at point a i found these photos at point once again there are many areas where where really we could have seen more and we didn't again the lack of any i p l agency is is something that would have if that had been there it would have filled the ga but merely relying on the existence of the photographs on the facebook page and on the on the s d cards i do not believe let me ask you that so just crowds and i think both parties cited in the st order of what i think a very bronx case i believe the defendant there had actually admitted to owning a facebook account provided the password to police and one of the most crucial factors in brown that doesn't exist here is that you had multiple witnesses who had interacted with facebook account and i believe several who had also interacted in person with the defendant after these discussions on facebook so once again the volume of corroborating evidence the volume of personal links between the defendant and the account authentication is an automatic and in the case of social media evidence where it's so easy to create a fake profile courts must take care to ensure that it does it stays as a matter that is not automatic moving on to the hearsay arguments what's important here is what this evidence was offered to prove the heart of the evidence in the three categories that have been identified in the brief was not the statements allegedly made by the defendant but the truth of the statements offered by the other the st category is the messages from jorgensen to the lamb account and looking at these it's important to know what are these exhibits being offered to prove it's not it's not to provide context for statements made by a slam but to show that jorgensen was using a fake account and that jorgensen was communicating with the mike malone account and linking it to lana that was the truth of jorgenson statements and jorgensen was not there to verify as for the statements from the victim the biggest problem is that this is an interaction between a non testifying witness and a facebook account that as as i've previously argued was not properly authenticated so the us that authenticity issues compound the hearsay ones and the victim statements were there for more than context they were there to show coercion this was an important issue and again the statements should not have been established be a hearsay but the most notable problem i hear state are exhibits one hundred and fifty five and and fifty six again these come from the mike malone account and what we have are screenshots of conversations between jorgensen the victim that were sent to the mike malone account so even if we set aside the mike malone jorgensen told them that him to talk to malone not to provide any context for statements made by the defendant and finally on the issue of hybrid representation i just want to make it clear the air are being cited here is not that the court exercised its discretion to deny hybrid representation but that the court did not recognize the existence of that discretion in other words the issue was in the selection of the proper standard rather than its application you really  not meet full recommended rep recognition of the of that this was a possibility is what gives me cause for concern does it matter that she had a lengthy dialogue with the court and at the end he agreed to proceed with counsel again the my argument is is that the judge was not ultimately explicitly stating yes i have the discretion to do the conversation between jorgensen and the victim that is that's providing the introduction it is it goes back once again to our question of authenticity it is bringing jorgensen mike malone and the victim together together into a into a unit that makes this happen why do we care why wouldn't you're outta there how your production was made if we have the actual asking this court to affirm the conviction of kevin lamb for the conviction of child pornography and his case i will address the issues in the order that  ibility not about and whether it should have been presented to the jury or not not about whether it was conclusive and i think th brown case that you mentioned earlier judge is very insightful on this that for this type of material to be admitted it doesn't have to conclusively prove that the author is who in this case the government claims that is has to have a rational basis and the government presented that in this case there was a connection  to the mike malone records to kevin lamb first of all the records were certified they were authentic and accurate as presented and  the court will recall there was quite a bit of a pretrial hearing on this particular issue as to this exhibit and as to the accuracy of the records judge  indicated they were what the records claimed they were that is the official records of the microloan facebook account but the judge reserved ruling on the admissability until the government mile testified and what i want is a number of the exhibits that show that kevin lam had this alternate account she started off with the facebook records between kevin lamb's facebook account the one identified as kevin lamb and jason jorgensen and in exhibit one hundred and forty three they talk about  jason jorgensen having an alternative count and it's safer that way then when you go to exhibit one hundred and forty four you can see that jorgensen is communicating with the lamb account that  he sent a video to the mike mullane loan account so there's your connection between kevin lamb and mike malone earlies the st connection and then there's another exhibit one hundred and forty five again jorgensen sends another facebook message to the kevin lam account referring to something he sent to them mike malone countered in this case it said send some hot videos to mike well we know what that is because it's the mike malone account so in the course of the investigation by agent or a mile gets does a search warrant of the mike malone account and finds that you know might say mike malone on it but all of the profile pictures on it are of kevin lamb nike ball cap and one of them even make the same hand gesture on those there was also the connection to the phone number of the same variety than cell phone was used and though it's up to the jury to decide whether the conclusive determination has been that's what the article is or this is a little bit of an extension of brown and i realize brown is that it isn't binding on us but the admissibility issue not to the conclusive issue which is ultimately up for the jury to decide but the government made its prima fashioned case that it was who the author was who the government claimed to be and this fit case kevin lam was operating the mike malone account that was full of further verified through some of the evidence found in his apartment photographs on the micro desks micro s d cards it contained digital files some of the same photographs that were used on the mike malone account that were sent to him also there were connections to the cell phone found in the drawer of the cabin lamb apartment which by the way he lived there alone these things were in a drawer of a desk there were just multiple different connections between kevin lamb and the mike malone account it was easy for the jury to make that conclusion then there was no evidence there was anybody else there are too many interconnected combination of things for the for the jury to conclude otherwise but the issue on appeal here is and miss ability the rim of the bow points of contact for judge trier in this case to the st thing i would say about that is those exhibits are from them mike malone's facebook account so they were certified records  weren't found on the phone we what we don't you know they are connected to kevin lam through that account they show the introduction of kevin lamb acting as mike malone to the victim in this case the fourteen year old autistic girl in indiana and it was important for the i believe for the jury to understand why does  a some guy some random guy in south dakota have some connection to a fourteen year old autistic girl in indiana well this is how it started is through those two exhibits they were offered to show the context of the connection between kevin lam and the victim in this case the problem i'm having  well the case law does say that context is an exception to the hearsay rule ruling and also the exception for the effect on the listener or in this case the receiver of the message so kevin lamb acting as mike malone on the mike below on facebook account receives these screenshots from jason  that's why the mike malone account then is used to make contact with the victim so the effect on the listener makes it a mess of law and there's a couple eight circuit cases on that that provides for that exception the looking cloud in the client cases so i believe that cures any you know problems with those two exhibits  as to the last issue dealing with the hybrid counsel i think it's important to understand that timeline of the legal representation of kevin lamb the error claimed by him on appeal occur and i'm not saying it's an error but the alleged air occur very early on in this case keeping in mind this was after the defendant was arrested in colorado underwent some type of psychiatric evaluation and was cleared to proceed to court so the court had that already in its  mind before this statement was made plus he had been through a couple of attorneys by the time he made this request for hybrid representation was totally within the district court's discretion to evaluate the circumstances that exist at that time to make that statement it was further confirmed by what happened later on in the case where he went with another court appointed attorney  he was completely unresponsive the guards had to pull him for this from the cell to appear for the hearing so he was in no shape to be assisting  acting as his own attorney or at least in part to be attorney at least he didn't intend for that to happen so it just confirmed what they the courts evaluation of all the circumstances were us it would be a mistake to say that without the generally however at the end of that hearing he agreed for the representation that she establish for him so any requests that he had earlier made i would say that he acquiesced or a or agreed not to have that type of representation why does that matter still if it court tells because the x and i actually why i believe it got that cable it just doesn't exist anymore so i know you make that argument why does it make any  and still within the court's discretion whether she made an accurate statement or not it was her decision to make based on the circumstances and those circumstances at that time were a dependent arrested on a state that underwent a psyche ettrick evaluation with very little education i think he had a high school degree had a prior felony conviction this was somebody that wasn't in shape to be acting as their own attorney and that was a proper move move that she made her decision that she made based on the facts that she had at the time to authenticate makes it but it's also not milkand or in the case of falsifying social media wouldn't the ease of that is the reason that courts have required more than a name and a picture in this case the  st of all in the purpose of these exhibits you know whether whether they were meant to show the effect on malone lamb or not i think it's important to look at how how the investigation described them again on page one hundred and seventy nine of the transcript the basic the agent says that this shows jorgensen's introduction of mike malone to the victim that was the purpose for which they were admitted not not for any purpose of showing the and that's all i have your honour's all right thank you mister the court would like to note that you are acting pursuant to the court's request from the criminal justice fast we appreciate your willingness to take the representation madam