judge dubin and i are delighted to welcome judge go bird back to the eleventh circuit judge go bird hails from the united states court of international trade and i say welcome back because bird sits with us from time to time i think i've had the pleasure of sitting with judge goldberg maybe three or four times before we really appreciate your coming down here in time to time to help us with our cases welcome back please the court my name is their leader and i represent charles carroll in this case we make a lot of assumptions in everyday life but those assumptions do not relieve law enforcement officers or the government from their burdens in criminal cases for instance we might assume that law enforcement officers can identify child pornography when we see it but that does not relieve them of the burden of having a neutral and detached magistrate review those images before issuing a search warrant we might also assume that everyone knows how to use peer to peer file sharing networks well on radio you your first issue is that the search warrant fails to meet the particular j video case that we have to give a reasonably specific description of the images or provide the images and in this case what we have is an officer who described a category of information but it did not affidavit the officer stated that two files of interest were downloaded that she viewed those files and she thinks they're child pornography she did not explain that ages of the people or her belief about the ages of the people in the photos she did not explain what was happening in the photos the statute that cited in the search warrant affidavit talks about sexual exploitation of minors so it has to be a minor in a sexually explicit  osition or sexually explicit conduct and there's no information in that what isn't there and download about some violent sexual activity that's correct your honor there is an agent in this case and logged on to a peer to peer file sharing network downloaded to files of what they called files of interest he provided that to another agent who looked at the files and said i think there child pornography they told the magistrate judge that and the magistrate judge signed off on the warrant and i that was not known to the officers at the time that they requested the search warrant at the time they requested the search warrant what they knew was that they had downloaded files from that computer they were able to tie the ip address to that to that home right so they download the files on september eighth a month later they go to the magistrate judge and they say we've downloaded these two files of interest them well i think it can go to both your honor but i think in in this particular argument at least that we've started on it has to do with the sufficiency of the probable cause in the affidavit what about what about even if you a objective reasonable belief that they can rely on the warrant in this case that we have a couple of issues there are exceptions to the good faith exception one is when the magistrate judge wholly abandons his judicial role so that goes to my first argument which is he didn't check to see if there was probable cause he accepted the conclusions of the officer and we know that you can't do that illinois versus gates tells us that the warrant the sufficiency of the warrant has to be reviewed by a judicial officer not by an investigating officer who is in the pursuit of criminal activity and might have a competitive nature it needs to be reviewed by as a separate detached magistrate so that's our first problem with leon is that this magistrate wholly abandoned his judicial role the second issue would leon is that if the if the affidavit and the warrant is invalid or it has insufficient probable cause on its face to the point where no officer could rely on it then leon doesn't apply and i think in this case where you have basically a claim that we downloaded to file interest we think there child porn i think it doesn't meet the standard there for an officer to say ok this is sufficient for a search warrant to be issued so i don't think the un could apply there are also cases that talk about the fact  that an officer who applies for the warrant and then is part of the team that executes the warrant should be on notice that the warrant is facially deficient and the government decided a case saying well there's no per se rule that says you can't apply for the warran then rely on on leon but the united states supreme court has said it is somewhat disingenuous to make that insufficient showing in a probable cause affidavit and then later be the officer who relies think your strongest argument is your claim that the evidence was insufficient on the distribution charge what can you tell us about i can tell you a few things are honored that the government in today and also at trial asks this court and the jurors to assume that because there were files in mr carroll's share folder that he knowingly intended to share those files out in the government explain this to the jury in closing argument like this they said when he leaves it in the share folder it constitutes leaving it available for other people to get which is distribution and i think the statute requires more than that the government relies on your argument is the statute requires that he has to know that when it goes into that file so you must have known that with regard to aries i don't think there's any evidence in the record that mr carroll knew that he was sharing folders out from frost wire or from aries there's nothing to suggest that this person knew that if i downloaded files into my share folder they were going out to another user why can't the jury infer that he knew well i think the issue there your honor is the problem with the knowing requirement that we can't even if the government has a circumstantial case we can't rely on speculation and conjecture we have to have more reasonably sparse aciphex inferences and i'll point the court to united states versus durham from the eighth circuit in that case it was a case where the defendant pleaded guilty to possessing and receiving child porn through a file sharing network and the court said even in that case we can supply the sentencing enhanced men which has a lower burden of proof and which does not have the knowing requirement because the government hasn't shown that he intended to share those files out that he knew they were sharing now  are you familiar with that i am your honor that that the why doesn't that cut against you what i think your honor in cases i think the jury could even if this court assumes that he possessed the child pornography which i think is where you're going with that i don't know that that's enough for you to assume that he knew that the folders on in the share folder were being shared out to another user i don't think we have that in this case and i just want to quickly point the court to united states versus boise from this circuit where that's that's the only case i think i found were in a similar circumstance where you have to prove it beyond a reasonable doubt and you have to show knowing and they are that file sharing network required someone to send a friend it please the court my name is called jones and i represent united states your honor i believe that there is sufficient evidence to support the distribution conviction in this case first of all as the court already asked defense counsel  e i think the issue is pretty well decided defendant took the stand he expressly denied it sharing child pornography files denied possessing child pornography files denied deleting child pornography files so the jury was when they found him guilty they did not believe his testimony and i think that alone they did not believe what that was that he did not share child pornography he did not delete child pornography he did not possess child pornography all of that is in documents sixty five on page one fifty six in his denials and so the jury when they found he was not a credible witnesses i think that you asked him questions about file sharing and how it works but you never ask and that question or cross examination did you know that when you download and participate in this program that it would go to other people never asked him that question not now when you and i didn't ask because his own attorney covered it in the direct examination towards the conclusion and with what testimony in their army his own attorney asked him what covered he asked him did you did you share child pornography files no i did not did you delete child pornography files no i did not did you possess child pornography files no i did not and is so that was pretty much covered on direct examination so i didn't need to i did not feel a need to cover that so you want to say that every time you download a file from a complete computer participating in one of these peer to peer file sharing programs every time you do it that automatically a stablish is knowledge such that you can be convicted of distribution of child pornography every time you do it every time i think you want to i think every time that somebody downloads a file using a file sharing appeared that's all the government has to prove and keeps it in their shared folder instead of moving it outside where others people others cannot get it i think that does i think the jury is able to infer at that point that ever use every time you do that then you can be convicted of distribution i mean i think you got him on possession ok but i'm a little you're going to have to convince me on distribution when you want to i think it i think that does do it when he leaves it in  shared folder and again the important part here is we're dealing with a file sharing program that uses peer to peer technology it gets rid of the middleman so that they can so that people using the same program can all share with each other and there's no server right that's the way it works but where's the evidence that he knew that's how it works the i think the shows no one ever asked them didn't juno did you know that when you download it it's the way this thing works it's going to go to others i know i did not ask that your honor but i still think that the jury how to reason howdy bases for finding that he was guilty of distribution because again he hadn't he admitted that he knew that he knew how file sharing programs work at least you know downloading installing them and then accessing things to download we know there was distribution here because g b i special agent charles keke lied to did download to files that did contain child pornography and the i think you don't think it's possible that someone can download one of these programs and then the later that and then not know that it's going to be accessible by others you don't think that's possible if they down if they download the program and then download files y does it work i mean you know you doubt you download areas from the internet for free and then it connection through the internet to any other person who also has a program on the computer or yes your honor but you don't think that you can do that and not know that it's going to be accessible to others that others are going to get it get them get the stuff on the from your computer you don't think that's possible i don't think it is possible you  i think just by the nature of the program that this is the by the age of the program where you put that on your computer in order to access certain types of other files that other people might have and you delete it and you delete it and you think it's gone if you delete it that's what everybody else can get into that well then he delayed it he did by the time of the execution of the search warrant but we know that as recently as five days before the search warrant was executed this is in government exhibit twelve five days before the search warrants executed he was downloading child pornography files but he that if he deleted it it's not reasonable to assume that i deleted it's gone it's not so off my computer it's gone i don't have it anymore in the government's making the argument well even though he believed it and it's gone and you've got him on possession now he must have known that it was accessible to others government to the government found out that they knew of a successful dollars but i'm looking for some evidence in the record that he knew after he deleted it and it's gone and he thought it was gone that it was accessible to others you leave it it's not accessible to others and at that point once the program is delete it is not accessible to other but here on september eighth which is the date of the downloads it was acceptable to others and that which means that the program has to be up and running so some time between tobar seventeen and the date of the execution of the search one of the last download was october seventeenth and the date of the search was october twenty second sometime in that range she had to have deleted the aries program once the program is deleted it is not nobody can download anything from your computer but once it's up as it was up and running on september  then other people including the g b i special agent can go into the program and and access files and download them and you say you're saying at that point he knew he knew it to others based on what evidence in the record i think you're on to the jury was able to infer that based on the nature of the program that it was that it was a file sharing program and his denial that he distributed  file sharing programs although i understand i did not ask did he knowingly distribute and cross examination but i think he's right in your asking that in cross examination if you ask him where you knew illegally downloading legal movies a lot of rocky movies and similar types of movies on frost wire save to a different computer and i believe that i asked him about that but he didn't i didn't do it i asked him that question and he had said then the jury could have disbelieved them and made a credibility of are you ation but you were careful not to ask him that question i did not ask him that question on her that's correct  but i think still the his just his just his denial that he ever shared child pornography did you ever share child pornography i think that there's an implicit knowledge component to that and it wasn't like i did not unknowingly share child pornography that was in his answer he said i never did and i think that that definitely goes towards his knowledge even though i didn't follow up with did you knowingly share child pornography with other persons but i think the question on direct examination has an implicit knowledge component to it and the jury disbelieved it and i think they disbelieve it because the distribution because of the nature of the program itself it is a file sharing program where people just connect with others with their peers so i think the nature of the program itself and the fact that he was familiar with peer to peer programs overall using it for something it was illegal but not the same type of content on movie downloads then that the jury was able to infer he knew that file sharing  occur because the defendant emailed images to himself and instead of making them available for anybody else so this court did say that that does not is actually engaged in distribution of child pornography and so even though the holding was against the government i think your honor it does definitely  support the proposition that a file sharing program leads to the inference that somebody is actually distributing they're sharing child pornography and that rises to the level of  distribution and as the court commented sprigs i think does yes also supports the government's position that this qualifies as a distribution because the and i shared computer followed are connected to a file sharing network is that what was done in this case yes your honor that's exactly not that not publicly not the part about a publicly available website but the part about the peer to peer program that is what was done when he downloaded child pornography files those guy downloaded into his shared folder and then by being in the shared folder then that made it available to others  defendants who don't want to do this and i've had cases where defendants don't want to distribute with others then once they download they move it out of the shared folder and save it to the hard drive people  program can only get files in the shared folder once it's taken out of the shared folder it cannot be it's no longer accessible to but to other persons using that file similarly going back to new doesn't make it yeah that's correct and i don't think the publicly available web site here applies that language applies publicly available website would be just going on the internet anybody could actually go there and find this child pornography or that's not that's not true here you have to have the program and with the program up and running and keeping things in the share folder then that makes it available to others and so i think the sprigs case the court pointed out does work in favor of the government's our argument and i even maintain that the language in the graduates case also and i'm probably mispronouncing that as well also supports the government's position because the court talked about just emailing it yourself is not distribution you have to do something take another step out to make a distribution such as using a peer to peer file sharing program and again it's not available once it's moved out of the shared folders not available and once the program is deleted it's available and we know by september eighth when agent kick lighter was downloading child pornography that the program had to be up and running we also know october seventeenth when at least two more files child pornography were downloaded that the items were in the shared folder and that at that point the aries program how to be up and running so it was sometime between after the download of those two files and it did the execution of the search warrant and that five day period aries was deleted and once it's deleted between that five day period nobody else could pull anything from his computer without the program it's a file sharing program that's why people use a profile for sharing files including getting them from others my time is up so i think the court or  one as opposed to the statute here what we know from other cases from this circuit kriol being one of the sentencing enhancement has no means or a requirement and the definition of distribution for that enhancement is broader the court says it's broader than that in the statute so what we have in spriggs is the court saying yes when there's no mens rea requirement and you have to prove it beyond by a preponderance of the evidence if you're putting it in the folder we can i guess assume that you're sharing it out but in that case you also have the defendant admitting that he knew he was sending the files out he knew by putting them in the folder they would go out to other users so i think you know when you're talking about the higher mens rea requirement that's the issue that you're going to be looking at asked did you distribute job pornographer your honor he was asked if he shared it and he said no and i think the issue and we've kind of talked a little bit about this issue i think it goes to the knowing requirement and this court could ing them in the folder meant that i was sharing out i had that knowledge that that was happening and because there are so many cases across the board i wanted to talk to the court a little bit about the different file sharing networks because i think one of the things the government wants us to do is make an assumption that once the files are in there they go out and that's why everybody in these other cases has been convicted of distribution but in united states versus boise from this court a panel of this court the file sharing network was tried and in that case you had to have a friend request someone had to say hey i want to get your files and you had to approve it to send it out that shows a knowing element in flyer from the night circuit lime why are we at the file sharing program  wire requires that you manually activate the file sharing every time you turn the computer on in and springs the file sharing network was sure riza and it prompted you about sharing every time a file was being shared likewise with and that's the shafer case out of the tenth circuit the court talks about how the licensing agreement walks you through sharing files you put the file sharing folder on your desktop you s commissions you can restrict access you can permit access we don't have any of that testimony here what we do have is an agent saying it's an automatic program the files go into the share folder and they're automatically shared out of th folder when he was asked when the agent was asked what do you know about the public version and he said i've never used the public version i don't know how it works but he was asked well to somebody have to be sitting in front of the computer to share a folder out and he said no you don't so this case what we have the evidence shows is that the files with automatically into the folder and they went automatically out of the folder i think we're missing the knowing component and as much as the government would have liked to have gone back and asked that question we don't have that evidence in this case to support that mr carroll knew the files were going out and i think that's the distinction that's important in this case when you look at other cases from other circuits cases like united states versus bugsy act from the night circuit and she chair audio from the first circuit you have defendants who are manipulating that share file very they're restricting access permitting access moving files in and out of that share folder we don't have any testimony in this case that mr carroll was doing any of that to the share folder so i don't think that we can now assume that that's what was happening in this case and if the court doesn't have further questions on the distribution i did want to say one more thing about the search warrant we did talk about the lack of probable cause in the search warrant and we also disputed the particularities requirement stating that the search warrant was overbroad and i just want to give the court an example of one of the paragraphs in that search warrant it stated that law enforcement officers were permitted to search for books magazines articles newspapers photographs negative slides movies albums drawings patio tapes videotapes personal letters diaries paintings photographic equipment pick cetera that would tend to show contact with minors or that would constitute evidence of a violation of the statute and i certainly think that