to allow evidence of uncharged misconduct which was contained in a statement made by mr member to law enforcement be heard by the jury in a recording the second deals with the sufficiency of the evidence to sustain a conviction for possession of child pornography mr mogul was convicted of receiving child progress and possession of child pornography on the camera receipt involved evidence of two video clips that were allegedly uploaded by members of the b county internet crimes task force in november of two thousand and twelve that upload was pursuant to a sniffer program used by that law enforcement unit where they go out and try to detect child pornography that may be available to the public and a search warrant was later executed in april of two thousand and thirteen where a computer was taken from mr moberg residen alleged source of these uploads but you it was not able to be pinned to any kind of specific electronic device so that's where the evidence stood on the receiving count when the case was tried mr  interview with law enforcement he voluntarily made some statements that he had an interest in shop progress be an interest in children as related to sexual gratification he said he would you know get drunk and search the internet for this material and then he would you know feel guilty in a race that during that interview which lasted about an hour he and the interview was played in its entirety from the jury he said that he would often masturbate to the child progress he he also said that he was familiar with a series of videos kind of referred to as the jenny series which is a number of videos that deal with the same young girl he described one of these videos to law enforcement officers one of these videos from the genny series was actually one of the videos that was uploaded by law enforcement so based on that evidence the jury returned a verdict of guilty o that receiving count even though they had not been able to see anything on mr mubarak's computer that would have indicated that it came from his computer and the the the main piece of evidence that connected mr bowker to the was not his computer but as i a speech is internet address so our allegation is that allowing that testimony in really confuse the jury it was more prejudicial than probative because it really didn't deal with the seen this jenny series which it was testified at trial was widely available and well known and that because he had seen that that also made him guilty of receiving in kind of material way beyond on or about november eighth of proceed he wasn't that specific in his statement again the statement didn't reference really any dates it didn't really reference whether it happened after november in november before november it talked about a general familiarity he didn't even really say that he was familiar with the jimmy series based on activity at his residence i mean he just said that he was familiar with that series it involved i think his exact statements might have been is that a series that involves a girl and a dog and so based on that again the jury was then able to infer that those video clips did exist on mr mubarak's computer and that was how they were available upload by the internet crimes task force and that's why we are objecting to the admission of that evidence because again it didn't pin down dates it was so vague and yet so prejudicial because of the nature of the material that it really it didn't just go to intent  it actually went to the facts of the case i mean the actual acts of the case were constant were substantiated by mr moberg statement that really didn't pin anything down in time so that's the reason we're objecting that's the reason we're appealing is because believe the district court really abused its discretion allowing that entire statement and there were other parts of the statement there were objectionable you know that mr moberg masturbated child pornography not relevant to whether he received it but certainly very prejudicial  our second point on appeal deals with the possession and in the possession you're talking about thumb cached images that were found on the computer on the hard drive they were  images that were generated after you know the testimony was that these images were generated when these videos and stuff would have been on the computer at some earlier time at the time that he was charged which is april third of two thousand and thirteen with possession there was no evidence that he could knew or could have known that the images were on the computer in fact it was testified to that there was no software that would allow them to no that's not how it was charged she was the actual possession of the thumbnail is what was charged from the april third search warrant the date in question was april third for possession of the thumbs and again that the distinction is that those  were not accessible in fact there were remnants of things to try to be deleted so to say well he knew he had those or kept those a some sort of you know remnant or or some sort of trophy if there was no evidence of that so it  seems that if the if the government would have wanted to charge these are avid these are not evidence of possession themselves but evidence of prior possession at some time the government could have done that but that wasn't how it was charged and there is some case law out and i think would substantiate the therms being evidence of prior possession but again that's not the way that this case was charged this case was charged as the psalms being choppered r v which they did they were showed to jury and they did that in and of themselves const you chop an odyssey but again they did not there was no evidence that at the time he knew or could have known that they were on the computer in fact most of the evidence from his was that he had gone to great lengths to get them off his computer because he had suffered from this guilt you know he do this when he was drinking he tried to eliminate these things and so i mean most of the evidence as it came in was that he did not know so that's that's the issues as i've laid him out of my brief and that's why i think the case should be either vacated or remanded thank you for your time and you counsel  owners may please the court your on his first addressing the issue related to the admission of mr moberg statement is of course our position that the entirety of his statement should have been admitted that it was relevant and probative to the issues in this case the elements of these offenses mr bowe bergdahl mr o'brien indicated was questioned after a search warrant was served upon his residence he is engaged in a voluntary conversation with deputies  and during that conversation he recounted his history in seeking out searching for downloading child pornography it indicated that he had certain search terms that he utilized in seeking out child pornography one of those search terms that he described was jenny he indicated that he was familiar with the jenny known child pornography series and that he would seek out the child pornography he would download it over the internet he would view it he would masturbate it and as o'brian indicated he would then feel guilty and then he would delete it we believe the entirety of the statement was admissible we did not offer it there was a motion in limine and to exclude the statement we had a hearing on that issue we did not offer this evidence to show his propensity to engage in child pornography related activity we offered it to show his probative as to his mental and the his mental state specifically with regard to the possession of child pornography we were obligated to show that he knowingly possessed child pornography and that he knew the nature of the chopper nagra fee and that it traveled over the over the computer over the interstate commerce similarly on the receiving charge we were required to show that he knowingly received that child pornography he knew that it was child pornography and again that he utilized the internet his statement recount recounting his history of seeking it out downloading interviewing it particularly his familiarity with the genny series which was in fact one of the videos that was downloaded during the peer to peer investigation and form two of the thumbnail images found on his computer thumbnail database cache well specifically what was the use of the thumbnail data what was the use of that was it what was it an admitted to prove it was admitted to prove the possession charge there were six or seven images again two came from the jenny series it was admitted to establish the possession charge so we think this statement comes in shows his familiarity with child pornography shows that he's familiar with child pornography shows his interest in the jenny series so we think the judge did not abused his discretion and admitting the evidence was there a time frame that was offered during that statement either by a question from the officers or a statement by mr milburgh about when he was doing this there was no concrete timeframe and mr o'brien indicated now he did kind of outline mr moberg some parameters he had indicated that he the computer that were seized this case or computer he said that he had that it was a fairly new computer and that he'd had it for five months which would mean at the time they did the peer to peer investigation it was a new computer so most of his statements related to the time his activity utilizing this new computer he was rather vague about his activities prior to that most of it related to this this again about a five month time period and again we charged we charged on or about november the date of the receipt and likewise on the possession we charge on or about because many times it's and pockets very very difficult because lessers definitive forensic evidence to pinpoint exactly when the images were received or possessed if i could if there are no further questions regarding the statement i'll turn to the the issue related to sufficiency and again we think there was abundant evidence to support the jury's guilty verdict on that based upon the six images that were found in the thumbnail database cache now the images of course had been deleted that was mr moberg statement that was his pattern he had deleted those images but this residual evidence these artifacts remain in the thumbnail database cache and both the government's expert witness the forensic witness as well as the defense expert witness said that even though the images were gone in order for those images to appear those actual images themselves had to exist prior there too on that computer hard drive and in preparing my argument i did a little math last minute research and i apologize i omitted to provide this case in my brief but i did find a case that i think is helpful and instructive and that is the case of united states versus huck h u y c k it's at eight forty nine said third four thirty two decided by this court and february of two thousand and seventeen where this court was faced with a very similar issue in huck mr huck was convicted of knowing possession of child pornography based on thumbnail images that were found on his hard drive again located in the thumbnail database cache this court held that even though the thumbnail images on the hard drive were not without special software they were nonetheless evidence of prior possession of child pornography the court cited united states versus reed where the court found the presence of child pornography in inaccessible orphan files on a computer's hard drive is evidence of prior possession of that person are griffy the court whose are a distinction between data found in internet kids in there isn't on there is on internet cache i think those images can show up with the thumbnails can show up by just web browsing by just browsing on the internet the computer user may not even know that there's that  they're there they just are automatically somehow cached to that internet browser whereas with the thumbnail database cache again the defense expert and our expert said for those to end up there that image had to have been saved downloaded or placed onto that hard drive by the computer user prior there too when the defense counsel asserts that you didn't present this case as evidence of past possession but that you were charging it as possession of the thumbs unless i misunderstood his argument yes i'm not sure exactly and i think his argument is that unless we show defendant to believe that on april fourth that's the date april fourth of two thousand and thirteen when the computer was seized you know that that he knowingly possessed them on that date  then the evidence was insufficient to support the charge but again we charged on or about that date i mean that's the best date we had you know i probably should have charged it using a broader timeframe but again sometimes we don't have very good da so we just charge at the best we can and of course this this court has held that unless time is specifically provided a statute as an element that time generally is not an element of child pornography you know when i read hoc it seemed to be telling me that in a case where there's a general allegation that child pornography was possessed at some point close enough in time to the charge that the computer was in the sole possession of the defendant the there was evidence that would suggest that the defendant had burke this was mr moberg computer as mr huck had primary use of his computer mr moberg was the only one that used his computer his statement indicated he was the only one that used his computer it was seized from his dad and again it was a fairly new computer according to him so we think his admissions and those of the presence of those of those images of the thumbnail database cache certainly support the jury's verdict in this case and with that i have no would simply highlight what was in my previous statement that you know i do believe the way this was charged and presented was that these terms are the progress that was being prosecuted i don't believe there was any time frame given as to prior possession or anything of that sort in fact it would seem based on mr moberg statements that his intention was very in phatic lee not to possess child pornography when he tried to delete it and he felt this guilt so this unknowing presence it doesn't seem consistent with a knowing mental state