own this case obviously presents more issues than i can discuss in the time we have this morning but i'm a tough guy to be otherwise i mean to start with the franks as you and then touch briefly on the discovery violation and sufficien the court directs me otherwise i'll dive into the franks question and i'm particularly want to focus my comments today on one misrepresentation in the warrant and that is the agent statement that rocks are not listed her that her brother had had an cross report into the orange county sheriff's department and the orange county protect it's child protective services that's reflected on our one thousand and seventy six that report indicated or those reports i should say indicate that  also know that the orange county sheriff was one of the partner of law enforcement agents involved in this orange county task force now it's given that we know that there was an interview with the complaining witness we know that there are some facts that are reflected in warrant we also believe that there is at least a substantial showing that the agent had the information that was in the hands of the orange county sheriff and so given that we think that there is a you sometimes get back for a frank hearing as this court's decision and standard makes clear a defendant does not have to be sitting on a smoking gun itself to get a frank hearing only a substantial showing of a misrepresentation that's required and we believe that standard is met  including its justification for searching based on information that was stale that was more than a year old and it's new it's under whatever court been clear that such profiles i'm sorry i don't want to cuss you out or you have to i'm just what do we make of the question statement was this you saw images of child pornography but the profile that that the affiant laid out was not a profile of a consumer of child pornography but an active hands on offender and i take that from your two thousand one hundred and thirty five which said these people who maintain chat lives and videos a minor they are or have been involved in and again the warrant sought permission or sought to establish probable cause not for simply he would establish materiality to show that the warren would have permitted access to the computer properly to search for possession investigated at the time and deemed not substantiated we believe that would have been material or at least that there is a substantial showing and not to get it back for a fair hearing and that it is also important to underline we're not saying that the court should be ordered to dismiss the charges were saying that there should be a hearing where and shortly before trial the government disclosed that special agents present committed suicide there were some document in the procession of the government the government thought it was that leads to a close enough call that they wanted the district court to rule on whether it should be turned over to the level of something that would require a do over and given the really looking at his role in the case his role does not appear to be terribly significant it's mostly chain of custody which was then independently established it's hard to see that it makes a difference nuff no matter what's in there to require a new trial what is your response to that so two points on that your honor one is that of course one of the lines of defense in this case was to challenge and cheerful as which the investigation was undertaken and given that agent prez touched every piece of evidence that was taken out of the information should have been disclosed that this is not a typical harmlessness analysis this is not simply the court saying here is the existing trial and here is what that evidence one of the test under stevens what could the defense have done with that was in a time perhaps you know evidence in a store analysis room instead of in the common room or something along those lines i don't want to narrow my argument by hypothesizing because i don't know what you have against what is but any evidence that goes to you know  anything about mental health or something that one would be able to put there would allow us to attack the chair with which the investigation was undertaken and or anything that goes to perhaps a motive o your position on the instructional issue that the instructions did not capture the underlying elements of the offense to which aiding and abetting would  went the rd element said that he had to intend to facilitate the production child pornography but in fact the element is that the offense is production and transportation and because the defense attack to both the production and the transportation as the production and the transportation and here it seems that the facts as they try to fit them into the aiding abetting theory separate those two so that one person does production agents that he believed that some of the images were taken in the philippines he told the agents that at the time that he looked into the computer the defendant was in the philippines in the his information to the agents which was not contested was sufficient to establish probable cause and as i just stated was sufficient to support the agent affidavit based on her training experience that people who have child pornography and produce and abuse children have certain characteristics so based on what we know from daniel where it was just thirteen months prior to the affidavit that he saw images that he described with particularity those images defendant chatting with a minor about having sex with a minor and the meyerson mother so this goes substantially beyond the standard child pornography case here we have you know specific evidence that the defendant was engaging in conduct beyond just the sassing child pornography what the defense tried to do in this case is go around the edges of that probable cause that was  conveying to the issuing judge what she had been told which was that this and he had told ross about this incidence and that she had felt uncomfortable with him as a result there was nothing wrong with that at that time and so the government contends that the courts in camera decision not to disclose that evidence to the defense cannot be reviewed by this court because the defendant has not satisfied the requirements of rule twelve because that will sixteen motion was not made prior to trial they're now trying to add that cl reflects that the defense was extremely aggressive and the court committed that to attack chain of custody and authentication with regard to each piece of evidence and factor  records did not allow the government to use the evidence after the labels for that purpose it required live testimony such that the defense would have an opportunity to question each of those witnesses about their recollection finding the evidence and how it was handled and so during the course of the trial there were numerous witnesses because there were some very different pieces of evidence chains who were able to say that they remembered the evidence either because of unique characteristics investigator walls that testified about why this particular evidence was  or was at the center of a plot investigation because of me and she there was testimony that she was present during the abuse and that she chatted with the defendant here it is possible that the aunt case your drugs are wrong subsection and you tried to flip it from a b to an a by aiding abetting but it doesn't work if the case would support a theory that the production and transportation were done by different people that goes in a any person and it describes the production and then says in b the circumstance referred to in paragraph one is that the person transports so it obviously means law same person who did the production that's referred to in paragraph one if that wasn't in the instruction and the evidence would have supported you viewing that as being split then i don't understand how the be charge can be sustained  and that he intended to transport the child pornography back to the united states and i certainly think that's logical for the jury to find that why else was the child po being her views he wanted it to be a souvenir a momentum that he could relive that abuse and he certainly intended for it to come back and we know that the aunt was the facilitator of the child pornography production by giving the defendant access to those children and being there for that and as this particular video so sorry i don't want my breasts to interfere and so i muted myself so i want to start directly with the point that was just raised in terms of what the jury instruction said the jury instruction on eating and betting said production of child pornography had to be committed by someone and that the defendant had the intent to facilitate the production of child pornography but not neither of those instructions are either one but the intent has to run from both aspects of the crime or and then he separately described several images he did not say that he thought an image of mr inglis to mean anything to a child he said that he stopped groups of people including adults children and her analysis and he believed that they were from the philippines so that the statement from dental work time does not get them to the profile of a person who is not merely a consumer of child pornography and it an active or a hands on sex offender the government says the records i'm clear about what monica