number one seven two one six three united states versus jo yes yes not to find my client guilty they had to find beyond a reasonable client doubt that my client knowingly possess the images on or about a day recently proximate after the after they had the computer my client's computer had them in their possession for three months usually specialized equipment only then will be able to find those images in the owner allocated clusters of my clients computer them and there is no evidence that he knew it was there now as i understand the government's argument the government will pass it that my client knew or should i'm known that those images were there because he for the jury the government was also very clear a trial that the only issue for the for the jury to to focus on what the nine hundred images found on the on al qaeda clusters now i couldn't find  own i was trying to put this in perspective c e o how can convey my point to the court the only one one thought that came to mind is that i consider myself to be fairly sophisticated for no man in computers but i  sure you that i have no idea what's in my own allocated closer to my computer and from a practical standpoint if the court were to sustain this conviction i think it would open the door to a much broader time they knowingly perception stand there i mean those are elements of the offense they have to be proven to be beyond a reasonable doubt and it is not something that the jury should be able to infer  so i think it's a very very big stretch so that is basically your own or our argument that the evidence was insufficient to to support a finding of guilt it is not limited to whether the rule two to have proof that it occurred within the statute of limitations no i think for the for the time and to provide to notice to the defendant the occasional burst me out i think the government has to prove they proximate to the dates shown and in time we don't have to prove the exact dates was there a variance argument raise i actually thought about that a lot i really gave it a lot of thought and i decided not to raise environs i argument because the variance argument presumes that a different crime was proved was proven at trial and this is know what happened in this case they chose they gave notice of a crime that happened that they alledge happened they presented the evidence and was no evidence that he it was his were only were present on the computer in the day in question then wouldn't that pose a problem for you were if there was evidence that you thought that he when he was interviewed in may of two thousand and fifteen he knowledged doing doing searches and downloading within a two or three month time period prior to he had made it downloading and doing the search for the video that is the best of my recollection i my recollection is that he did not admit to either viewing or downloading anything else except that video so that judge howard may please the court david bornstein on behalf of the united states the jury in this case convicted the defendant of knowingly possessing an image of child pornography on his computer in violation of eighteen u s c twenty two fifty t that statute has only three elements one is that the defendant knowingly possessed an image two that the image was child pornography and three that there be an interstate nexus requirement actually that in the age now two of those three elements are not being contested the defendant conceded below actually in his opening argument at trial that the images at issue here the one thousand images taken from the  computer's hard drive were indeed child pornography and they've never contests the fact that those images which the jury could have found were downloaded from the internet and were kept on his computer manufactured in china and that the interstate nexus requirement the only element that's being contested here is the known possession and this is actually very easy case in of this court's precedent in cases like rogers and breton in which the court has held that when there is no question of there being inadvertent child possession in which the record makes it clear that the defendant was indeed someone who was knowingly downloading child pornography onto the computer the jury or a jury could reasonably infer that child pornography images found on the computer were knowingly possessed by that defendant even if the images were deleted even if they were found only in files that were hidden of which there is no proof that the defendant knew so once those things are in place i think this is actually a very easy case for the jury to have determined given not only in the government's case but also if you look more broadly at the evidence as a whole now the defendant however as he argument is really focusing on the jury instructions is focusing specifically on the fact that the jury was told that in order to convict the defendant the government needed to show that the images at issue here were found  a reasonable doubt but not the defendant possessed them between the dates allege in the indictment now that part of the jury instruction was not actually going to an element of the offense and this is clear it's clear by looking at the statute section twenty below there is no requirement of the specific time it's clear on the face of the indictment the indictment alleges that the defendant possessed the child pornography on or about a certain date in this court precedent makes it clear that in order for indictment to do that lawfully the time period of possession or in which the crime was committed cannot be an element of the crime and third it's also clear on the face of the jury instructions if you look at the instructions it's instruction number ten that such forth the elements of the offense and they're the three that i set out the separate instruction as to what on or about means in the indictment is instruction number eleven so at no point and or there's actually no basis in the mall or on this record to find that the jury was told that it was an element of the offense of the defendant be found guilty possessing the child pornography between certain dates the defendant relies very heavily on one thirty case you know united states versus flyer that is a case that we've referenced actually in our response and we did so in a footnote explaining why that case whatever it might mean is no longer good law if you look at the ninth circuit's decision it came out in two thousand and eleven they seem to take the date in the indictment and i believe is it will thirteenth tw date alleged in the indictment the jury didn't have sufficient evidence before it to convict the defendant at the very end of that opinion the ninth circuit rejects an argument that the government made the government's record was very clear as it was clear here that in order for an image to be on the unallocated space of the hard drive it had to be deleted from the working or usable space of the computer the computer leaving the image clearly exercised to mean in control of the ninth circuit so that evidence of deletion was not sufficient to find that the defendant again had no one possession of it on  specific day in the indictment now five years later the united states supreme court decided the case musashi overseas united states in that case a jury had actually been instructed that in order to convict the defendant of a unauthorized access of a computer charge an additional element was included and the question then was when on sufficiency review reviewing court were to look at the evidence that it have to find that the government's case met the heightened standard of proof and the us supreme court unanimously said no they said that under sufficiency review all that review in court looks at is the offense moreover the court said it does not matter if the jury was informed that there was an additional allaman that actually legally doesn't exist and it doesn't matter if the government did not object to that one thousand jury instruction what evidence is there of that and there's actually ample circumstantial evidence first it was found on his computer the computer resided in his bedroom he was the substantially the only user of the computer in the government's case it was agent x rodriguez who testified that the defendant had admitted he was the user of that computer we expand the record to look at the defense case the defendant took the stand and admitted that he was really the only user except for his it was of very young girls that offended to admitted in his may twenty fifteen statement to homeland security agents that he was interested in child pornography involving very young girls and he admitted that on multiple occasions over a two to three year period that he had indeed search for child pornography on a new will for images involving five six and seven year old girls there was the fact that the images were delete hand as you pointed out your honor he did state in his may twenty fifteen statement that he had downloading child pornography up to two to three months before that may fifteenth statement which of course includes march twenty fifteen and march sixteenth twenty fifteen is the first day in the indictment there's also the fact again if we expand the record and look at the defendant's own testimony he took the stand and he admitted that on march sixteenth twenty fifteen the first day covered by the indictment he knowingly downloaded t images sorry two videos of child pornography so given all of this evidence we believe that the jury had an ample basis to find that the defendant knowingly possessed the images in the  allocated space i simply want to clear up my brother over here just argued that there is no evidence that emu was on his computer the defendant admitted to using email he admitted  to installing it and uninstalling it on four to five occasions and it's simply not correct to say that homeland security is forensic analysis of his hard drive do not find on the computer because that was not the purpose of that search presumably there was a lot on the on allocated space the hard drive it's not as though if you look at the deleted space all that there was was nineteen images of child pornography there was much more on it it simply wasn't government's case in chief the jury had ample reason to convict the defendant of his violation of section twenty two fifty two a but we do believe that the proper standard here is to review the evidence as a whole for clearing gross no you're on and that is simply a result of what happens when an image is deleted here i would i would actually point you to united states versus fire on the specific factual in addition to its contents is that it once existed on the computer's hard drive all other attributes including one the file was created accessed or deleted by the user cannot be recovered so there is no information as to when these images were deleted however put on they indicated that or i shouldn't say deleted but when the defendant last clearly had control over them and the defense case was put on the defendant's father testified that software and that software transferred all the data on the old hard drive onto the new one so we believe that two things can be inferred from this and it's these really the only logical possibilities one is that  recovery software transferred the child pornography from the old to the new hard drive in which case the defendant did exercise dominion control over it he transferred from one to the other or the defendant downloaded the child pornography after  fourteen and deleted it some time after i think actually we do believe we can get more precise and i will say this the defendant admitted that he first downloaded child pornography two to three years earlier it was at least within two to three years that he did it also we find it significant that the record indicates that the defendant had on his computer at one point in time i actually believe your honor you did hit on an important distinction and that distinction is people equal fourteenth i'm twenty fourteen which i believe was the operative beaten flyer that was the date thousand period went back to march sixteenth and we believe that given the fact again that that fifteen minute video and been deleted being completely written over such that there was no further indication of his presence on the hard drive but these very prejudicial and the prejudice that we look at the specifically the defendant's ability in order to make a defense and also a breeze a couple jeopardy challenge were you ever indicted for childcare enough for child pornography possession again and here we believe possibly could argue prejudice but that wouldn't be the case here your honor and the reason why is because the defendants defense at trial appeared to very much be on the one hand if i did not and i'm thinking specifically about the kinds of arguments he raised in his rule twenty nine motions he seemed to indicate simply downloading these videos was enough i needed to print the videos or do something of that nature in order to true knowing possession and then he seemed to push against the circumstantial evidence saying there's no direct evidence that i am the one who did this how can i be convicted so under the facts of this case the is the feeling that i'm getting from what i'm when i'm from what i read from the green somewhere or what i'm hearing from my brother argue to the court probably bad acts are just prior bad acts i mean that doesn't substitute the knowing to the case law on that but also by my brother's side or from the circuit i actually don't scase are different because those are the images and don't cases were found either on the cashier files which are always available to the user day you had some child porn but then come back the government said well maybe not this case but you had it four years ago so there is no no way i could raise double jeopardy for example if i'm facing that that that