the first is that it needed facebook records without authenticating that they were actually his and the first place to look at are on this issue is what the court said its basis for admitting the records which is at page  seven nineteen and the court said their certificate of authenticity authenticity from facebook combined with some of the details in exhibit seventeen which lists mr quinton his name to email addresses a phone number and a city now none of those things none of those details are verified by anyone i could go on facebook right now and write down those same things to tell me if i'm missing this is was the key point of the facebook to get his phone number the key point in a trial of using the facebook page was to get his phone number your client's phone number at trial my understanding my read of the transcript is that the the there were the two cooperating witnesses and each of them had serious credibility problems so the idea was that the facebook records plus the phone number that was supposedly gotten through facebook and everything else would bolster their testimony that they were talking to  a and not someone else or what i'm getting at is i thought the key point of the facebook evidence was it confirmed this one phone number and if that's contaminants phone number that's a problem because there's quite a bit of usage of it with the other people in the conspiracy and i thought there was quite a bit of other evidence confirming that that phone number was indeed his phone number so that's that's what seems tricky about this i think that's the the primary purpose is that phone number yes so isn't that a problem if there's quite a bit of information that shows this was your client's phone it were absolutely be a problem the issue is if it's cumulative evidence if there's an error could it be harmless absolutely i absolutely don't want why doesn't that work why isn't it harmless because right and the key then is we need to look at what is the other evidence that this was actually his phone number acres says i talked to him the government says he recognized his voice that's not what he said at page id's nine seventy acres says i don't remember talking whether i talked to him after july and then on redirect three pages later the government says well didn't you talk to him in october yes there's nothing that says i recognized his voice and that then could turn also on the facebook record why does akers think it's because i got the number from his facebook record and i used air quotes there because it's not clear that his facebook record hundred says well i communicated with that phone number too but again now we're relying on hundred as testimony and that introduces the same problem with the basis of the entire case which is the case comes down to do you believe them or not there are text messages quinton on this phone number that's absolutely correct akers says i talked to quinton although he doesn't say i recognize his voice no i'm focused on her marriage ok deal with that what does the evidence show on that point that he recognizes the voice notes it's the phone number it's this phone number yes how do we get out from under that problem i don't see it as a problem because it all rests on whether you believe him rich or not then at that point hundreds his testimony is i met quinton in arizona then i him texted with him on this phone number if a jury believes all of that they would convict there's no question about that but the government conceded that homages testimony was suspect and in fact we know he facebook evidence is that it all third has already suspect credibility and therefore with not her life that's exactly right that's exactly right so and what we have been thinking about this is if you pull out the facebook record then there is evidence that they were talking to someone on the phone at a particular phone number but there was no for example subpoena the phone company that this was quinton is registered phone number or billi records that show that it was paid by his credit card there was nothing other than their testimony and the facebook records to say this was him and not just a phone number so again i mean if the case ever if the case rests on h acre which the government conceded to the jury it did then the question is if their credibility is suspect and again the government conceded to the jury it did what else is there to support it with the judge was pretty careful  prejudice which is the corrupt these supposedly corroborating evidence becomes all the more important the judges told the jury just like the government did be careful with these witnesses and so now we need to look at the rest of this evidence or the facebook statements being introduced for the truth of the matter like my name is mike quinton just like if i want to online and put that in and then facebook records it that's not facebook statement that's the declarant statement that facebook is just storing so unless they're quintana's that part of the record isn't even admissible same thing with the phone number or the e mail addresses all of which are unverified there was no testimony no other evidence that they were actually  unless those records are authenticated as containers they don't come yet and again when we turn to what the court had in front of it it had the certificate of authenticity which says this is a facebook record concede that and look at what's on seventeen his name to e mail addresses that no one ever testified he used there was no evidence he ever used them a phone number that no one testified he used and that was different from the phone numbers that other people did use w is the theory that someone created this to implicate him it could be that could actually absolutely be true we know that there were two facebook profiles that was the testimony that allegedly reached out to her in october and from facebook this other information including his name but again that could be dr i get it and let's say at that point the trial judge says well you know i'd like to talk to akers and her marriage akers says what he says it's vague the way you characterize it but how much says now i recognize his voice is this phone number yes this is the number i used would have been appropriate at that wouldn't that be enough to i think that may have been enough i use that phone number that phone number is the facebook phone number yes it would be why isn't that looking back on number that why isn't that enough to just not worry about this i want to i want to clarify what i'm missing i'm sure i'm missing something i want to clarify one thing which is the number one rich use was different from the number recorded in facebook it was akers who testified i talked to this number i got through face and i thought how much it is well i'm rich said i met through facebook but there was no testimony about what his book profile or what number he got it from or anything like that yes the second thing then would be yes the court could rely on testimony if the rich came in and said this is the facebook profile yes i'm that's it that's a good example of how it could be authenticated actually i connected with someone on facebook via this profile i made plans to meet with them and that i did that would show it's there it's all comes down in your view to whether a cursed stuff sufficed as to the phone number it would if that was presented as the basis for authenticity but it wasn't now but i don't really care if after the fact enough evidence comes in to make it harmless that we started well and that there's two there's two layers of potential harmlessness here right the first is was it harmless to introduce to authenticate the record meaning there could have been later evidence that the court didn't rely on at the time that it could have used to authenticate the record now that that that's not appropriate for this court to step in though because we don't search the record for different bases that one presented to the district court on an abuse of disc harmlessness harmlessness on the fundamental trial issue is it absolutely comes down to what what what you are just said which is if a jury certainly or you know with fair assurance under the code jaco standard would have said we believe it or this was the right phone number that was contained then it's a harmless error and i would just point to the fact that himself first testified i don't remember talking to him on october and only on redirect on leading questioning from the government did he say oh yeah i did talk to him in october there's no way we can say with her assurance that the jury would have believed him the second was the idea that quinton was passing him threatening notes and other things in jail there was already reason to believe that home rich was not telling the truth about this one of the things he said was passed to him was his p s are but there was no evidence introduced or even a suggestion of how someone other than one rich could have gotten his p s r which is confidential only available to him and his attorney and he did concede his attorney did give him a copy so then when mean back up for a minute but i do know that in other court that has been a problem that you know in prison that it has been a problem that other prisoners demand the p s r yet they can see who's cooperating that is true and what happens in my x i know this is also the record in my experience as working for the federal public defender's office what happens is the client themselves ask i need my p s r so i can show somebody else it doesn't happen that somebody else in the jail gets their p s are on their own which is the allegation here so then why because they're confidential so that they're not always i mean they're not always covenantal and sometimes you can get it through  good morning may it please the court stephen bigger on behalf united states let me address the last issue the court raised with defense counsel to make clear something about the p s r in the western district of michigan they a confidential they are not given out there is not a manner to get through it to the from the pacer system your honor so you are correct about that information in the record but there is no way that mr quinton could have obtained it through access in the court system someone would have had to give it to him and there was nothing on the record about how that might have happened that was only homeworks testimony let me return also and give some clarity on exhibit seventeen a and the phone number there judge from your question there on the phone number attached to the facebook account was not used at trial in order to verify contacts with mr quinton in the course of the allegations and the reason for that is actually apparent from the cover of seventeen in addition to a great deal of the information that the court heard about seventeen a which is the facebook business record it's basically the identification section for this facebook account the phone number itself that's here is a number that is in for three five six and it says here on the record itself so verified on november fourth two thousand and sixteen that's an important date because it is three days after the alleged methamphetamine transaction that was presented where george homer delivered two pounds of methamphetamine to kalamazoo on november first of two thousand and sixteen it's also important in the earlier appreciation the verification is three days after it's a new phone number after the deal that was approved at trial and that dates important for the facebook record too because it's the same date that the facebook record in government exhibit seven hundred eighty which was not to trial what the court did hear evidence about in arguing for authenticity seventeen be the same date that audie agar was blocked by  though so maybe i'm not following you but i think what you're saying is the facebook exhibit was not used for his phone number what was used for it was used for the communications with audiotape or and those are facebook instant message communications either audio or content typed text communications none of the content from either all your calls or text calls was introduced at trial so the messaging that just begs the question whether someone else this was someone else page purports to be can a reasonable person based upon the information conclude that it is what it's offered we offered it how do you have any idea just because it has his name all over it i mean that was just what you do is the name is all over it it's also got his pictures all over  what did you expect him to do doctor and then put the wrong picture on what doctor and it's going to have all the stuff the same correct but it was also invented in september of two thousand and sixteen a month and a half before this purported deal had to take place it had someone would have had to plan to frame up mike a month and a half beforehand knowing that george was going to then come to quinton in later october and asked for an opportunity to make money and then he have an opportunity to send methamphetamine all the way to kalamazoo michigan acre and george homework do not know each other it was brought out by the government on the record that the entirety of their over lack of communication is the thirty four minutes they spend in the hotel room when the methamphetamine is delivered that's all they get together and during those thirty four minutes they never mention the name mike ten times and they mention that he referring to mike quinton eighty times in those thirty four minutes the entirety of the overlap of their life and they're there to do one thing which is is there to deliver two pounds of methamphetamine to automate or in addition to that they share the same phone number for mike quinton in which they only get through him there are one hundred fifty five phone contacts from the date of october telling him hey we're going to make this right but you're going hear my quinton it even passes on the directions that audi acre text to my point on a how to get from arizona to kalamazoo michigan he passes on the exact same text you can see what it forwarded so the only reason these two men come together is because of mike went on and both of them testified that phone number belonged to quinton in the court raises very good issues about credibility for those witnesses but those are trial issues for the jury to  and going back to the authenticity of the facebook record what we're questioning here is is there enough given for this to be what it purports to be by the government when we said this was my comment on his facebook page what did we give the court to believe that countless photos of him from or from record on a facebook page that dates a month and a half before this transaction a registration page which has his name on it and his hometown and a change phone number of november fourth facebook in order to contact audie agar about the deal in november that's a great deal of authentication and the question is could a reasonable juror find it to be his facebook page yes they could now should all of those witnesses and any witness that advances this information be questioned you don't know somebody else could sign up my content and take all these pictures off another page and frame him as this facebook page they can be questioned about that and the jury could consider it but the question is should this be admitted based upon all that information and the certification from facebook that this individual account is as we reported to be when all we're offering from the account in terms of the exhibits is told records essentially contact between this facebook account and both of the cooperating witnesses identifying him that is sufficient authentication that should be admitted and i will also point out for the court without that information a lot of like how would we ever authenticate a facebook page without the information from the registration the court is very familiar comparing it to say a phone as as we did when you discussed it before very familiar with phones by drug dealers not being registered in their name we subpoena a subpoena in the course of prosecution a great deal phone information registered to john doe or registered to an alias for those individuals yet we have to prove up the phone is used that way there's alternative proof here in terms of the fact that there was a range meetings on november first by this facebook account and both of the men that said they arranged it pointed to my clinton as the individual that brought them together i also want to address the impeachment information the defense brought out in its reply brief that the government is confused about the impeachment and i will confess that we were confused at the district court in terms of what the information from the second witness kyle mosley was to be and i think that's because it presented confusing information to the court the defense counsel trial cited eight zero one as the federal rule of evidence that accepted it from hearsay and that was clearly not what it was because it was an out of court sworn statement defense at carlisle did not say that there would be bias proved but he did offer the word impeachment but it was not clear how he wanted to impeach either george homework or clint smith as to what was going on and that lack of clarity i think goes not only to the issue of the fact that it wasn't sufficiently offered by the defendant but also to its materiality this was not a big issue for the information before the trial court clint smith and george palmer had never met they were never in the same jail section and then in actuality on the date of trial they hadn't been in the same jail for almost five months because of the threats that home rick had received we moved him to a different jail so they were locked up to jail cells apart that was what the testimony was and that was the only time they were together to be fair to trial counsel for the defendant it's probably clear that he didn't know what kyle mostly would say either because on the record it's clear he only spoken to him for about fifteen minutes right before he came up to ask to call him before the court and so perhaps he was either being intentionally vague or necessarily vague because he didn't understand what mosley would say given that vagueness the district court did to say that's what was going on either way it's so tangential to the underlying facts of the case clint smith only met one comma after he'd been arrested and brought to west michigan he knew nothing about the underlying facts of georg bringing the two pounds to west michigan and audie it or accepting it or the thirty four minutes they shared that entire conversation where they discussed my point because of that lack of materiality there is no if there's only harmless error if there's any error at all your thank you thank you i have three points of i'll get to them the first is counsel's taking liberties with the record there are not count countless photos of mr clinton and there was one introduced at trial and the test y was that other photos were d m v photos that the that the agent looked at that was at page eighty eight twenty nine the phone number that was supposedly verified three days after the transactions and so the suggestion i believe is that it must have been a substitute was before the photo that was used which was uploaded apparently a november eighth according to exhibit sixteen which was filed as an appendix  and then stepping back everything counsel says that supposedly verifies that this was that this was his phone number depends on believing that it was his phone number already there were text messages with a number there were phone calls with a number her richen acre did meet up but it there's nothing that says that's quintana except for whose credibility it was suspect that's the beginning point of  the whole analysis on prejudice what the court had in front of of it when it made the decision to authenticate was a certificate saying this is a facebook record and items that anyone including anyone in this courtroom can walk out of this room and write down on a facebook record it does not go to the weight of the evidence rather than to its authenticity and that's kind of what you're arguing is that there's a lot to attack on  but usually when you authenticated document it's just is there enough to show that this purports to be what what they say it is not not whether it could be impeached or has problems with it and i see you go into the second step the that's the that's the test is whether a reasonable jury could find that this is often to city normally isn't that high of a hurdle that's correct but if you are you seem to make it a higher hurdle because you say it's got problems with what it has inside it and it may not be that valuable or maybe subject to manipulation in this and that but that doesn't go to whether the document is what it purports to be what the government introduced it as is quintana's facebook page and the only evidence that facebook page pretending to be you that you're right this this this court in minutes on the second circuit van or looked at one or a print advertisement on another an online profile with more information on this and both concluded it was insufficient because this is publicly available information anyone can write down and see my time is up i'll leave the read of main points for the brief thank you thank you helpful briefs and oral arguments thanks for your answering our questions we always appreciate if the case will be