the morning any clearer on behalf of and silence of on this case asked the court to review and preserve the defendant's right to present a defense at trial and to be able to introduce that defense through the use of experts misters of on was charged with the receipt in possession of child pornography and these types of cases generally require that the defense if one exist either challenge that the images either weren't child pornography or that someone else downloaded the images this case involved a third party defense that someone else downloaded the images the defense put the government on notice that well in advance of trial proxima a year before trial the defense although it didn't have to exchange the courts with the government months before trial the defense gave the government notice experts the government didn't object to the notice is didn't object to the qualifications didn't boys any objections whatsoever until the week before trial so while preparing for trial the defense in this case anticipated these experts got we're going to be able to present a third party hacking defense and prepared as though that was going to go through without any hitch by waiting until five days or seven days before trial five trial days to president any objection to the defense experts the government really put both the district courts and the defense in a bind because at that point even if there was any validity to the government's challenges there was no way that mr savant what it had an opportunity to replace those experts if mr savant was going to go forward with this trial well can you help denied the government's request that he be excluded before trial so the government's or the defense opened up saying that was one of the experts that was going to be presented at trial and then ruled in favor or favor before time originally and then right before mr smith testified the government again objected and the district court changed gears and said i remember that i was only going to allow him to testify as a fact witness which didn't occur i don't there's nothing in the record that supports the district court's claim that it changed that had found him to be a fact witness nothing that supports just or its belief that it had rigidly called him to be a fact witness the district court called him a fact witness in front of the jury and limited his testimony to that fact witness that's an air but the original motion was to occlude them testimony direly well to allow them to give anything to an entirely right and then to allow them to be designated as experts and to give any opinion testimony whatsoever because for instance say the government suggested that their testimony would be humility to the government experts so you say that the record didn't limit him to a fact witness but in the ruling on the motion the court said psmith testimony is limited to his own examination of the computer at issue so it was quite limited already he couldn't just speak generally about all computers in the world correct so how is that not limiting him it wasn't the exact words limit to a fact witness but it was not the same effect because one of the things that mr smith was going to say and the defense had kind of set up a story mr smith was go say these are the things that lead me to send it to sink go and one of those things was i found a test hidden test user account that indicated to me that this was likely a computer that was subject  o be remotely hacked i don't have those skills but this is why i sent it to cinco where is the government at trial ok so you know if smith was going to rely on cinco and if it was proper for the district court to decide that since i was not an expert then where's the harm here in the present well how is this ultimately an error two fold mr smith was able to say based on his expert credentials that these are the things that indicated to me that required additional expertise whereas the government at trial said the only reason mr well the only reason mr smith referred it for cinco was because mr smith talked to mr savant and it was  his conversation with mr savant that led to additional testing where it was mr smith's own evaluation of the computer that led him to believe that he needed to send it for additional testing from his review of the computer and he was able to say that it wasn't he  was not he was not able to say that it was likely and i'll find the exact words that it was there was a likelihood that this was  a hack computer making it less probable that it was well that's different than i mean he could have just said i i in question so i needed to get an expert right well it's he was able to say he suspected but it's very different to say i suspected  suspected versus there was a likelihood coming from an expert whom the defense had already promised the jury that this was going to come from the voice of an expert and i moved to mr cinco i'll say with mr smith i mean i would recommend that you move to the issue of the obstruction of justice that's the one that i think you have the best argument frankly but i don't know if my colleagues so you should use your time there you think but this does not seem fruitful in my view because it doesn't seem like these people are experts you know a lot i can't i can't leave it with that your honor because then i have not done my job if i have not convinced this court that a defendant who has properly notices experts and put the court on notice of a third party defense and this court is recognize that a defendant has a right to do that and it doesn't find that someone like mr cinco has twelve years of hands on experience cannot present that to a district court and a jury then there is no hope for any computer case to go in with an expert where where do you think that this twelve years of experience he was in in turn and he says he only so called experts mr sink o's expertise was noticed in october of two thousand and fifteen when he was board jeered during trial because the government never previously asked for a daubert hearing that is when mr synchros additional information came out now the fact that he had prior jobs such as an exterminator or whatever has nothing to do with the fact that he was also very well qualified to be a an ethical hacker or that he had all these other certifications that the government doesn't dispute the fact that he did not provide that information on his resume is neither here nor there he can still be a qualified expert with regard to computers and have a million other jobs and it doesn't take away from his expertise the government's discussion at trial regarding his resume was very well explained by mr sankoh and he stated that there is an online resume that he put on the internet when he was searching for an internship because he had to provide and a resume to seek out and internship position because in nevada you have to have and internship at which you practice under someone else so that you can get your forensic investigative license and the only way that you can get that licensure is to work for two years in an internship  so he put that using a web crawler where you put in certain information the fact that he didn't hold it himself out as an expert on an online resume so that he can get a license or had nothing to do with the fact that he had the use certifications and the fact that the district court ran through and made that its primary focus is very troubling to me and i and i'm i'm i apologize i have voices getting very impassioned but if this gentleman doesn't provide the qualifications then i don't i don't know who will  correct your honor because the gist or court changed its rulings in the middle of trial at sephora misl or so even though the district court did not allow miss lawrence to testify in the beginning of trial by the time we began trial he had already held that smith and cinco could testify but so that goes back to my original question of where the error was you are saying that there was no error when there was  it looked as if they could live with what was limited to with smith because of the ruling with regard to cinco if i'm if i'm giving a fair reading of the record but when cinco was precluded entirely from being able to say the things he would say which was i could do this very keystrokes that troy kelly said were not possible which would have demonstrated a remote user could have done what kelly the government's expert troy kelly said could not be done and that a remote user could yes very well have put those images without sitting at the computer which kelly said could not be done and that's the exact third party hacker defense that the defense put the government on notice of and maybe the defense committed a mistake by putting the government on notice early but they were trying to do everything correctly and they put the government on notice early and they filed their notices early and they gave reports when they weren't supposed didn't need to give reports and they did all the things that they were supposed to do and the district court read into seven o two things that didn't need to be there and if there were difficulties that the district court had with community colleges or publishing online then that's a question for the jury seven or choose a rule of inclusion so the district court erred in excluding single at the very least if if it was an error would it be harmless if we think the confession should have been admitted no because the cinco bolstered mr savant statements if you think this statement should have come in mr savant's testimony at trial makes all the more sense when you have mr cinco those expert testimony morning your honors nancy also in appearing on behalf of the government may it please the court i'd like to briefly address a couple of points that were raised with regard to smith and cinco and then i'm going to turn to judge friedman's question about destruction of justice with regard to the proposed expert smith the record makes it clear there was no change in the court's ruling on direct the court to page fifty four of the record that was the written order there's a stark difference between the ruling in that order on cinco which goes heavily into real seven o two talks about expert called patients and we see that's a ruling on an expert witness but then when the court turned to smith it was very different as the panel already pointed out that was based on his own personal knowledge and it was made clear and then when seven raised the issue going to trial to clarify the court said no as i recall here's what the order is that i issued he was going to testify as a fact witness own knowledge the court then had his clear go get a copy of that order he read it into the record and said yes this is the order so that there was no change there that's a misunderstanding of the record with regard to mr cinco the district court's issue was not that he had a community college degree or that he had this resume online the issue was that he got on this stand he admitted he had basically no experience he did not get on the stand and say he had twelve years of experience he said that's true i only examined a handful of computers i only worked as an intern for a little while and i would like to talk about the notice issues with respect to mr siegel because there's something important here that was left out if you compare motion that the court filed or i'm sorry that the government filed in november of twenty hundred forty one of the record explicitly challenge sinko for the very same reasons seacoast admitted this supplemental expert report on the eve of trial at an earlier trial setting and the government found an emergency motion saying we just got this new report dumped on us it's suspect as to his qualifications and his opinions that he's giving we want to dob or hearing and the whole reason this got pushed the way that it did was because of mr stevens response he specifically said it's ok we can it out and why they are and that's exactly what happened so the fact that he feels that he was surprised by what happened and why dear and that this on my resume was presented and so forth that was all by his own doing because this is exactly what he asked for it to be done at the end i just want to turn to the struction of justice issue unless the panel has new questions about the experts the court in this case made the explicit findings that this court requires those are page seventy four and seventy five the court said this was quote cost testimony under oath concerning material matter and he found that it was worthwhile content to see rather than confusion or mistake and this was building upon the court's earlier findings of peach sixty nine where he was talking about the facts of the trial he said i don't think the jury didn't believe mr simn that he claimed he got on the stand he claimed there was no downloading he didn't download but in fact that jury found otherwise and he found that this was to deceive the jury so if you read those two portions of the record together the district court made the explicit findings that are required by this court but the later part that you actually read first is necessary and it comes in a discussion about lying to detective nichols so it's at least a little confusing what was going on at that point in the hearing can you speak to why i came up in the context of this to have nichols yes your honor so the government attempted to get the court to make this finding on two different bases and so it brings that up and says your honor what about this other reason are you finding it because of that too and basically the court says no because what he says is i find that your testimony under oath so that can only mean that he was referring to the trial testimony because when he took the stand at trial he was clearly under oath whereas when he was having a conversation in the back of a car he's not under oath he was just having a discussion and so the court's findings can only be as the trial testimony rather than this alternative argument the government did raise the trial court but we're not standing by that now and it was something that i think that the trial attorneys are saying well maybe we can get this finding on two grounds and the district or said no you can have it on the ground  i don't think it's as clear as it would have made it your honor i think that if he hadn't said the words under oath i think that we might have an issue because then it would say well what was he really talking about but once he answers the words under oath he could only be talking about the trial testimony and so i think he was kind of considering what the government was saying that he really he went back to what he said it page sixty nine which was what savant said on the stand that you're you disbelieve him and he thinks that the purpose of that testimony was to deceive the jury so i agree that it the order is it's turned out a little bit because there is some intervening discussion and seeing and then it was the government seeking an alternative ruling but since we have those words under oath i think we can put those two pieces together and understand that what the district court was finding was only about that trial testimony and nothing else those are the three main areas that i believe that the court raise questions about in mr simpson's argument i'm prepared to submit on the briefs unless the court has any other questions i actually do have one more question if we think that the transcript isn't clear then how would you read herrera rivera about whether any error in this regard is necessarily play there so i think that the word the key word is there any error so i don't think saying that it's less clear than the court would like or maybe because he talked about it there was some intervening discussion and he talked about it again i don't think that's fair what it is is you have to discern what he meant by under oath testimony and you have to say could that have arguably been speaking to the checked of or could that have only been trial and since we know here it was under oath it could only have been trial i think even though there might be a little ambiguity that requires  look at different parts of the record and understand what you meant once you do that and there is no error and so remained would be necessary for that reason thank you thank you counsel can i please just clarify one thing with regard to the government's representation about mr cinco when we provided mr singh goes records when we provided the supplemental report all that was was a video visual representation of the paper report so when the government moved to continue trial and said we may need a daubert report it is not as the government said and we prejudice in our reply brief on page fourteen the government said we may need a daubert here in jokes laura mr cinco the government never requested it and both the government and i misrepresented what was actually requested so even though the government might have thought about doing something about it we can deal with this a flawed you're correct so at that point how can you complain that it didn't get resolved until trial i'm not complaining what i'm saying is when the issue is that the government didn't do anything more about that that was when we had a november trial date nothing that happened until may we were trying to contest having a push of the november trial date but once you said we can deal with this of our gear then can't you expect it'll be resolved to your trial it never would have happened if we would have kept the november trial date but did you say it should only be resolved if we keep this trial they don't understand that once you say it's going to be resolved during trial then why shouldn't everyone think it'll be resolved during trial whenever trial is no your honor the whole point of that was so that we could keep the november trial date because the government kept pushing the trial date well that might have been what was in your head but once you said we'll resolve this issue of synchros expertise in volunteer during trial ok fine let's accept that the point doesn't change and he is still qualified so for to not do anything about it until five days and two for us to believe that he is qualified to not be able to present a district court allows the defense to present to the jury that we're going to present these witnesses and we promise the jury that we're going to present these witnesses and we don't not only is the defendant prejudiced they've lost all trust and what we're doing for mr savant and he shouldn't be prejudice because of what ever the defense attorneys might have done might not have done he shouldn't be prejudiced because of the rulings the district court took against us f trial rulings we did what we were we tried to do what we were supposed to do make trial rulings set aside this shouldn't have been taken against mr savant i don't know what more they could have done at the very least i would ask the court to consider granting mr of on a new trial so that he can bring a defense that he had put the government on notice a year before his trial in this case thank you thank you counsel the case is submitted and we are adjourned for the day