thank you your honor may i please the court and amber rosen represent and united states in this matter this is a government appeal from the district court suppression of evidence obtained pursuant to a warrant to search the defendant's home for child pornography excise affidavit in this case established the defendant received ninety e mails over the course of ten months containing fifty three attachments with images and films of child pornography and child erotica and he was stevie's e mails at two different screen names at multiple times and that the screen e mails and defendant's e mail address were found on the computers at two different child pornography collectors living on two different continents even while acknowledging all of this evidence the district court found that probable cause with lacking on the basis that the affidavit did not contain direct evidence the defendant's receipt of the e mails was knowing when it rendered its finding the district court did not have the benefit of in court and that is significant because gore specifically allows the inference that the district court thought it could not make gored held as i'm sure this court is where or both on th panel but i think court is quite different there's no doubt that he joined this website he paid money to join the web site he received the images that were on the web site and here is the unsolicited e mail  least according to what we have in front of us right why isn't that a significant difference you're on i think if there isn't a difference but i think it's not significant for this reason ingore the court from there were two things that were clearly established by the affidavit first that the website the defendant had joint had child pornography although it also has legal adult pornography as well as child erotica and secondly that the defendant hadn't wanted access to the website as evidence by his payin membership and it said it only needed to infer one thing and that was because there was no direct evidence that defendant had in fact downloaded or received the child pornography or possessed the child pornography that was on the web site and so it's that from that received child pornography and the question was did he receive it knowingly in other words can we in for his interest how is this a different from whatever i mean whatever we're talking about snail mail it came through the postal service confiscated he didn't weber the only thing they had was this past occurrence two years prior where it wasn't even clear that it was child pornography and it was clear they knew that the defendant had not in fact received because he didn't pick up the unclaimed mail then they had that he had i think that's where the significance of gord comes in because it says the court can make reasonable inferences all we need is a fair probability that defendant wanted the e mails he received and i hear i think it was significant evidence from the totality of the circumstances from which the you have to ignore the one paragraph which describes the evidence that the agents had found in the course the first warrant where they found pornography in his a o l account yes that was clearly excised from the  that gave the dates of those e mails that were found on there now and the second the second batch there's a specific date at i guess it was on call august is that right of two thousand and three yes but where's the evidence that that the e mails were sent in november two conceded that and that's that page to twenty of the excerpts of record so i really think that's not an issue i think that was a reasonable inference under illinois versus gates courts say that warrants don't need to be read with hypertechnical that should be read with their common sense inferences so i think the dates aren't really so much of an issue the inference is from what you can infer that there was a all you need is a fair probability not even more likely than not that the defendant wanted these e mails is fifty three images this court has held in a drug context that a when a defendant possesses a large quantity of narcotics that alone will support a finding beyond reasonable doubt that his possession w knowing here we have a large quantity of child pornography and so from that i think the court can infer by only a fair probability that defendant receipt and possession of those was no and that's the first second is the narrow focus of the e mails that defended received fifty two of the fifty three images were of young boys from that the court could reasonably infer that there must have been some prior communication between the recipient and the sender for the sender to know defendant's particular sexual proclivities that's a reasonable inference and similar to one made in hay and united states versus hey defendant receive nineteen suggest prior communication exactly but i think that the suggestion of prior communication there's evidence to support that inference here to where he started as i'm saying based on and the fact that all of the e mails except for one were of young position is the receipt of spam alone if it's resides in your e mail account for some half to justify a reasonable suspicion to underlying out somewhere with number it's a fairly broad rule you know  facie evidence that he received and that what is that i mean what is the prime officially evidence that you refer to well i think based on i mean i that's enough our argument is that there is that the affidavit presented evidence from which you could reasonably infer this was not spam one is that the affidavit said this is the kind of material not identifiable you really don't know whether that represents his true name or not you have no idea where in the world he lives from that there's still a lot of it and in anonymity mr morsi moment all or emails were sent to a gay one dude which of saying if it's if it's only years of young boys then that's enough now i'm saying that there is not just receipt here i'm saying there's a large quantity not of pornography but of child pornography which is itself contraband and the really i think is no basis for assuming that this type of images images a very young children engaged in sexual conduct is the kind of material sent via spam it's not the same as a doctor not a fee which is legal if this is sent to an unwilling recipient there's a great risk to the sender that there that there's going to be an investigation initiated i mean many unwilling recipients of these kind of graphic images would call the police and to say find out who affidavit but what i'm suggesting is that unlike other spam like adult pornography or advertisements for drugs or for mortgage lenders there is a risk to the standard in sending this kind of spam because it is in and of itself contraband secondly the affidavit did not present anything to suggest that these e mails had any kind of business purpose both parties below cited cases to the court suggesting that the vast majority of spam has a commercial purpose well the these e mails were simply images there's no indication that there was any kind of solicitation or any business purpose to these e mails finally the affidavit also indicated that this kind of material is traded among those with similar interests further providing an inference that the court could rely on to find that this would not be the kind of material that would be sent to unsolicit finally in addition to sending them to defendant the hutchings e mails were also sent to him and his screen name which was young bottom sixteen that screen name does suggest some sexual interest in children and further provide an inference to think that these e mails were not being sent to random indiscriminate recipients but to those with a known interest in child pornography i think in addition to all those five reasons from which the court could  make the reasonable inference that just by fair probability that these were not unsolicited and edition to the amount in addition to the narrow focus there were two other factors excerpts that pages two forty three forty four the fact that kelly screenings were discovered in the course of not one but now to child pornography investigations was significant because the more often a kelly screen name appears on computers  investigations because he was just this is just coincidence he's very i'm lucky i guess but this court in according preference for warrants as it's required to do under illinois versus gate should rely on the inference so well articulated by the district court and finally the last factor is that you know the defendant was sent these e mails at two different screen names and at two different times again the district court recognized quote it becomes less likely that someone is an unwilling recipient when it happens on multiple occasions so i guess so i was just going to say i think all of those factors in the factors which undercut the reasonable belief that these were unsolicited was more than enough to support a find a finding of probable cause that contraband would be found in the defendant's residence i understand that the district court was concerned that the identity of the senders of them mine e mails wasn't known but that aside my question is just kind of clarification there were the e mails reflected the five on the hutchinson the four on the german computer or vice versa like reflect e mails transmissions with graphic images from nine different people they were in fact from five different screen names each of the german each of the moment all our emails came from a different probably misspoken i district court recognized first we don't believe this is that close the case now that we have the benefit of gord and would allow the court to use the totality of the circumstances to make the the inference of knowledge so i think that similar to the inference of receipt that the court made and go forward but even the district court believed it was a close case and said in its written order this motion is a closer case than the first and more troubling for the court and indicated at the hearing that it was bothered by the cumulative effect of the evidence for these reasons we would ask the court to reverse the district court suppression order i would like to save the remainder of my time for please really thank you very careful order that comports with the standard and gates holding that it exercised warrant in this circumstance does not meet the probable cause standard well one of the problems with that is that the district known and so my question is if you know from the affidavit that someone in germany who was a known trafficker i had copies of e mails that were network is that war of distribution of child pornography from which you can in turn in for that there was communication and connection among reasonably infer from them what i just said and why doesn't that then add up to a fair pasta probability that images are going to be found on the computer i just want to say it's not all tar child porn according to the warren application it's fifteen child porn a graphic or erotica images the same is true with the kansas e mails we don't know how much of it is actual child pornography from the war and with that clarification my answer is you can't make that inference because we don't know what happened to the e mails because people who are on distribution lists for gr pornography or legitimate gay pornography or gaurav ika it is a reasonable inference that their name could be found by being a member of a legitimate pornography circle that means the a reasonable eggs or whatever this is two different people two different countries getting e mails from least five different people all in the now being sent to kill why couldn't she reasonably infer from that that he wanted the stuff again we don't know it's five different people just to be true to the text of the war in outer space and five different e mail senders but if we don't know it's even five different senders it could have been one sender on the german email and one sen on the kansas email so limiting it to well are you going to say for one it's not reasonable to infer that based on this application because we don't know anything about mr kelly well now what do we that's correct well a reasonable inference that evidence of fruit or instrumentalities or or evidence of a crime would be found in his computer but justice o'connor the government needs information about mr kelly because the logical inference is if you or i or a regular person received an e mail like that we would delete it immediately and in order for the government to find probable cause now that that's right you have multiple images that i think certainly many of them represent the type of child pornography would amount to contraband i wish no question about  true but for a warrant to be executed six months after the last known evidence to look at the computer to look at the computer the computer was seized on february ninth of two thousand and five the last evidence in the war that somebody sent mr kelly something in august of two thousand and four six months later the reason that other cases hold that that's fine from a staleness perspective is because these people are collectors and they know that's not what i'm resting my case on i'm saying that in order for there for that evidence for there to be a reasonable probability that evidence of that crime would still be on mr kelly's computer there has to be some evidence under these circumstances that he wanted it and he was hoarding it because otherwise if he was just a regular person who got regular gay pornography he would have been repulsed by that and deleted it and we  that that and there's no information in the warrant about recovering deleted e mails there's nothing in this expert opinion about technology that says oh we can get stuff out of delete in space or in internet trash  relying on expert opinions for instance that spam does not go to of this nature to people who don't want it and they're relying on that being like a no no and it's not in the sense that there's nothing wrong with that is a fair amount of common sense well but if the government is the one who's harping on spam more than i am the district court found that there was not a fair probability that these e mails were solicited because there is a very good chance that they were not  telling is simply on a regular pornography distribution center and happened to get sent these images as well we don't know what other images were included in the e mails if we did it would change the face greatly for instance if we knew that there was a hundred adult images and five images of children but after afghans are not required to put the mitigating circumstances in the report and what the court found is under these narrow facts how often are we going to see an x sized warrant where the heart of the disparate sources that his name was on two different or at least two different players for the same very narrow kind tomorrow and the government seeking to use the e mails themselves is the only thing they will they try to rely on it's an unprecedented decision the government is asking this court to make that no circuit that i ha e mails and it's over the course of an undetermined amount of time i did not see that what i've put out what i'd like to get you to to really focus on and answer for me your your argument for why it's not just my e mail it's mine e mails that were also sent to war sent by two known traffickers in child pornography they were not sent by any known person then they were under there a purveyor of child pornography via a o l e mail accounts sending stuff out sending these emails to your client is that enough on the low standard of the threshold that we haven't recorded no because hutchings isn't sending emails that one seventy eight could be someone who looked up who has been receiving legitimate porn and illegitimate child porn and says oh i think i'm just going to see you see this list and see who will bite and send me back we don't know who better one seventy eight is we just know he sent something to young bottom eighteen which is a fairly non innocuous screen name and kane michael kelly a real name of a person who is interested in legitimate adult gay pornography which wasn't in the warrant but is a fact so when you consider that as the pot as a circumstance that's what the just records problem was we don't know who bet at one seventy eight  we don't know the purpose for which the e mails were stamped and given in this case the dearth of evidence about mr kelly there's nothing other than the fact that these unknown people for unknown purposes sent mr kelly into that free country in two different well we don't know if it's two different country only two different countries well but emails can be sent but i can send an e mail to germany an e mail to kansas from my computer in san francisco mr kelly's also in san francisco i mean really the two continent issue was sort of a red herring given the prevalence of the way e mail circulates we don't know if the fact that they were busted in two different countries doesn't really  it's not it doesn't seem like it should be about mr kelly but here is why it is it is about mr kelly because when a normal individual receives an e mail oftentimes we read it and  sometimes we say them it's important but the only reason that this kind of disputes and please can we just take some kind of judicial notice of the fact that some of this material is so outrageously child pornography there isn't the kind of thing that would be said sometimes one finds on one's home computer invitations to order things argue no no you didn't know civil action not be subject to reasonable dispute and if the government wants to issue a warrant of this nature and they want to rely on that evidence my argument is that there better be an expert talking saying please don't send this to me you're going to get a lot more spam because they count on here it's not on the message right as you keep saying to each attempt and unsolicited receipt of pornography please don't send it to this account  that's that and that will be the expert and spam is only part of the argument i'm not just saying it's got to be spam where there's a reasonable probability it's the fact that it's unsolicited that this could be if mr kelly is a witch he is and if he is receiving gave adult pornography the fact that that mitigates the government's argument that all will because this was all men on men or men on boys we should believe that he would solve the problem if the eff and you can explain a bit more about it that's not what i'm saying there still under these circumstances would need to be something in hey an interest in young children evidence you had a computer in place the evidence of downloading in briest the case of the government cited they didn't tell you that the court relied on the good faith exception in that case which is not available here under united states vs based seat and the deference in an exercise of warrant situation so in from kluge and the district court through a narrow ruling just record is not seeking a bright line rule the evidence of receipt can never be the basis for a it in this particular case it was not thank you for  thank you just a few point twenty outgoing e mails can with attachments of child pornography does that indicate that he is distributing the child pornography to others otherwise you wouldn't see in outgoing e mails so i think it does indicate that he and distributing child pornography that's specific and in the affidavit it's a small point but i think the point i want to make your honour's is that there were the totality of the circumstances here allow the reasonable inference is that he wanted the e mails that he received and i think the court is right that the the focus for the district court and for this court is not on what's not in the warrant but what what is there and what reasonable inferences can be made from it and i think gord makes that abundantly clear and i do think that was part of the district court's error not having the guidance of gore was being too focused on what was not there as opposed to the reasonable inferences that could be made and this is not there there were many circumstances surrounding the receipt that allow that inferences there were several e mails different times multiple standers in large quantities graphic images that there are there mistake that we need to make sure we're not doing is conflating adult pornography which child pornography there is a world of difference child pornography is in and of itself illegal it's contraband that that would authorize warrant to search and location for and there's simply no evidence to suggest that someone who receives adult pornography is more after you get is going to get contraband or be interested in contraband child pornography i think one way to sort of sum this step is that justice frankfurter once said the courts should not be ignorant as judges of what we know as men and women what we know here is that someone who really receives large amounts of child pornography