good morning good morning sarah kane assistant federal public defender on behalf of the pallant russell cullen may it please the court i'd like to st brief address mr collins challenge to the sufficiency of the evidence as to count two the knowing distribution counts and then touch briefly on mr collins challenge to the sentencing enhanced meant which was applied for an offense involving at least six hundred dollars images of child pornography so this court peer software program issue in mr cohen's case how to default which means it automatically shared files with other users and like the government and carol the government in this case at trial impermissibly relied on in disha of knowledge which could be gleaned from the function of the peer to peer program itself to prove mr collins knowing distribution of files in other words the government failed to establish that mr cohen consciously authorized sharing or otherwise knowingly shared files with other users i guess decision to secure these your honor yes in the government's case in chief they presented evidence through a law enforcement expert who had installed that they believe was the same version of  appeared to be a program here and the law enforcement expert took screenshots of the wizard which popped up on the law enforcement experts screen and the st page of the wizard tells users if you have or another peer to peer program before this wizard can help you set up if you are a more advanced user you don't need to use the wizard and it also came through in testimony that you don't actually have to go through the steps of the wizard and there was no evidence in the government's case in chief that mr cohen did in fact use the wizard so well the wizard does if you go through it ask the use to choose which files to share it there is no proof that mr cohen actually went through that process which is of course what the government would have had to establish i also would posit that the wizard  confusing in that it tells users you do not have to share content to use your asa and using the the phrase choose which files to share gives users the impression that sharing is an affirmative act when in fact it's the default so if you do not go through the wizard or you read the wizard and you don't diesel x files on page three of the wizard that is automatically sharing every file as it's being downloaded and every file that has been downloaded until the user manually removes that file from the shared folder so i think the wizard in itself is misleading to users and i also think there is no proof that mr cohen in fact went through the wizard so that is the substance of the government's case in chief as to mr collins knowledge that his ceraso program was sharing files  government expert will see also testified that any file that's being downloaded if it if the files very existence is due to the peer to peer software it is available to other users so that just reinforces that she has a very significant default which requires an affirmative act by the user to overcome and in addition the sharing which happened here the the substance of count two involved a law enforcement officer with particular software that connected to the program at the ip address that was connected to mr collon and communicated to that computer i would like an image file which the law enforcement officer was able to download that single image now that's computer to computer communication there is no law enforcement officer communicating with mr cohen who's sitting on his computer typing in the program it's computer to computer all alone it's also came through in the diff in the government's case in chief through its experts that the  someone's accessing your files there's no pop up window or noise that alerts the user that someone at that time is accessing and and and he is distributing or he or she is distributing files and there's no evidence that mr cullen actually saw the image that was distributed because images and video files through can be shared without the user having viewed that file so it is truly a default it's a passive process and and there are certainly no evidence that she asked the user for permission before  each file is shared and that was one of the many factors in carroll that the court said you know this might establish knowing distribution if if the the peer to peer program requires the user to authorize file sharing for each particular peer that request a file there's also carol also said that in some cases certain peer to peer software is force user to users to acknowledge and exceed to licensing agreements which by default goes into that share folder and has let me ask you this are you the are you are you challenging substantively the length of the sentence in this case yes yes your hon peel it back to no real extenuating circumstances this looks like just all the other cases we see and you know although you didn't really mention in the brief this these guidelines are  say that conservatively unique because as you know i mean they weren't they didn't follow the process that congress set out or vetting guidelines generally these guidelines the the government responded that even if the court were to find that the court incorrectly found mr allen responsible for six hundred dollars or more images that that error would be harmless and i think your you points about the issues with the child pornography guidelines themselves and how they're not based on evidence is one of the many factors that that makes this this finding not harmless i understand that the district court attempted to he said moot the issue on appeal and he said if i if i'm wrong that making you know incorrectly applying this enhanced meant i am going to put on the record that i would give this intense anyway but i think that that doesn't actually establish what harmlessness here for multiple reasons one as your honor mentioned two hundred and forty month sentence is is quite high and a contrary to the government's argument that it's reasonable because it's in the guidelines if the court found that in fact that the district range would have been one hundred and fifty one thousand two hundred and eighty eight months and there was nothing in the record to justify the court's fifty two month upward variance were the court to find that it was an error to apply that  ffense and handsome and the district court also while he did the judge did say i would give the sentence no matter what when he said that he had actually not heard from any of the defense witnesses there were  multiple sentencing witnesses on behalf of the defendant and the court had not yet heard argument from either either side as to sentencing so what point did he make these remarks he made them right as he ruled on the particular objection to the application of that sentencing enhanced meant and as as your owners are aware the district court must consider all of the three thousand five hundred and fifty three a factors before deciding the appropriate sentence so we that point but ok but that can't be correct right because he has to the district court has to the sentencing judge has to consider all the three thousand five hundred and fifty three factors before deciding the appropriate sentence and he hadn't done that yet because he hadn't heard from the sentencing witnesses and he hadn't heard argument from the parties and in fact when he did impose the total sentence he explicitly said a guideline sentence is appropriate here he did decline to apply the downward downward variance requested by the defense but he said i am applying a guideline sentence because the guidelines are appropriate here and that suggests of course that an error in the guidelines could not have been harmless in this case how long did the hearing go on after he made those and yes timing wise i'm not sure there i wasn't the attorney there but the transcript continues for several pages after he says i would have i would have given  have appeals i think sentences i think we have three this week from the same judge and i gather that's just a part of his  good morning warning it please the court philip de rosa on behalf of the united states it had been my intention to walk you through the all four counts of conviction but i'm constrained by the fact that my posing counsel only talked about the count to the distribution count so unless you have questions that you want to ask me specifically about the other counts i'm just going to talk about the distribution count right now sergeant special agent elliot graves o testified that he wasn't using any particular forensic software he was just using his computer to look for other computers that were downloading child pornography and on  get the pornography that he was seeking he finally was able to get an image on january th two thousand and sixteen now the defendant testified that that image should have been there   well there was i mean it was sitting in the share folder and it's true as ms kane says the share folder is is a default system where files automatically go there but he knew that those files were there he knew that all of his child pornographer files were in the share folder help me on this and that how did he know that ok there are two main areas of the evidence that show how he knew that st of computer i went through the process of setting it up that's what he testified to and the process of setting it up when is basically downloading it and when you download it you see the welcome wizard it comes on and it says this is the welcome wizard and it specifically says that all of the files that you download are put in this share folder to share there's another confusing about it but clear is that the government's best evidence of knowing intention to distribute i think not i think that well it is i think the best evidence is mr collins testimony when he took the stand he said when i st got my computer in two thousand and two i had somebody show me how to set it up and this person who showed me how to share files with others told me very specifically don't ever leave files in your shared folder always take them out because if you leave them there anybody else can get them an access them and he said he testified to the jury from then on i disallow acted i always diesel acted my file child pornography and any other files in my shared folder he knew how to do select he told the jury that he did that and the fact that he didn't diesel act when he knew how to do it and he was told the importance of doing any understood the importance of the selecting he didn't do it he left the files in his share folder so that they could be accessed accessed by other users and that's exactly what carol carol doesn't set up a test to tell you how to figure out whether somebody is distributing child pornography it gives you a non exclusive non exhaustive list of examples that point to distribution but carol is interesting in that it says that in carol this court held that when a defendant knowingly places in or leaves in a shared folder child pornography that undoubtedly constitutes distribution that's what the court said and carol so that's the result that should obtain here he either knowingly placed a child pornography in the shared folder or he left it in the shareholder intentionally because by his own testimony he knew how to diesel lek those files and he didn't do it  i ask you this how can a responsible drawer say that if i made a mistake if i miscalculated this factor that factor i still would have given the same first of all this this is a new issue that's being raised for the st time here at oral argument this is a lot of something that's a lot of real interesting issues it may be interesting but you know it should have been brought up by the appellant because you  does court has case law that says that you do not consider issues that are brought up in the st i'll deal with that you answer my question i will do that your honor i will do that the st of all this this guy got a break on the sentence he got so much  how so because the government had hundreds of examples of downloads that this defendant made over the course of an eighteen month period july st two thousand and fifteen to january th two thousand different individuals the these different victims different child pornography they can just serve but the government didn't use all of those hundreds of files of child pornography to go into the guideline calculus it only picked out twenty seven dollars files and the reason why the government picked up those twenty seven dollars is because those are the ones that were busy one hundred percent downloaded by the defendant he had hundreds and even thousands of files some of which had only been thirty seven percent ninety two percent downloaded which you can still view them in that in that state but the government decided you know as a matter of being conservative we're just going to take the twenty seven dollars that are one hundred percent downloaded twenty seven times seventy five dollars which is the guideline calculation for video images equals two thousand you know if the government had taken all those files that it would have been an unbelievable sentence but it was very conservative now the district court you know the district court is supposed to go through the guideline calculation st before war applying three thousand five hundred and fifty three a day and that's exactly what the district court did here and when the district court said i would have given the same sentence and i don't know if this judge you know judge martin you know you mentioned that this judge almost may do this as a knee jerk reaction but he doesn't this sentence was very well carefully tailored because i tailors it he says my god when i'm telling you that i would have given the same sentence that goes specifically to the five hundred and forty six or more images so what he said what he's  civically saying is it's the images that i'm going to say that i would have given the same sentence even if i'm wrong and i'm telling you that that's of no moment because the government could have charged hundreds and even thousands of more images so it just seems to me that there's just no question in this case that the judge was being careful and reasonable about his guideline determination but if the court doesn't have any other questions i think i've said about as much as i can say thank you thank you appreciate you being here it says five i think i have three i'd like five but i just and you're just anders noted for the record i don't agree counsel for the government's characterization of of the wizard and i don't mind or standing of the record is that the wizard does not tell the user that the default is the shared folder i don't of course i'll leave it to your  honor's who are just as familiar with the record to to make that factual determination as the government stated their strongest evidence of mr collins knowledge as to distribution comes from his own testimony and that's a problem for the government because the the government sided did not cite carol in its response but did cite to brown and that's what the government is relying on to say your honour's can confirm this conviction because mr cohen testified and the jury can disbelieve his testimony of course the jury can disbelieve his testimony and that can be evidence of guilt but it can't be the only evidence of guilt which goes to his knowing distribution and mr cohen's position as the wizard in itself does not establish does not meet the government's fundamental obligation in its case in chief to establish proof of an element and here it's his knowing distribution and that you this court cannot cannot just throw in mr cohen's testimony and say well even if the government didn't meet its fundamental fundamental application let's infer that the jury disbelieved mr cohen's testimony i will also say that mr cohen testified when he began to use a peer to peer programs that a friend told  him to to diesel x files meaning don't leave files in a shared folder that was he was referencing a peer to peer program called wire so it's very important and carol makes clear carol happened after the trial in this case of the government did not have the  informs or doesn't inform the user and whether the set up of that program can in itself establish knowledge is a fact fact specific in korea finally us to sentencing the government mentioned hundreds of videos i would ask the court to review the child protective coalition experts testimony about what those logs actually contain and the the expert who's mr wilkie or officer w testify that the c p c logs are not were not only child pornography and so those logs reflect every single file that was available at the  address connected to mr cullen but their own witness said not all of those files are child pornography and the government talks about twenty six fully downloaded files and nobody in the government governments testimony no witness opened each of those twenty six files to confirm that they were in fact child pornography thank you thank you very much for your