good morning your honour's man please the court kristie hears from federal defenders on behalf of mr macleod the district court failed to make the reliability finding that rule seven o two requires before allowing detective jackson to testify as an expert and this court can't find his computer or calculator i don't have to know how a calculator works to put in the numbers and make them multiply and come out with a product is not will you do this so that i use this device and out came with information well know your honor and i think if you look this testimony who was the other computer forensic examiner here it becomes clear why it's much more than just typing something into it into a calculator so sarah kranz testified at excerpts of record eight twenty three and she is the examiner who extracted data from access devices and from a cloud devices and she testified that based on her training and experience because she did have training experience to do this on my detective jackson she knew there was a risk that if she used cell bright on jonathan's blackberry because of sort of an idiosyncrasy in the way blackberries work the blackberry could when she turned it on automatically start deleting older data and so she didn't want to take that risk and compromise the date on his blackberry and so she didn't turn the viper on shouldn't run hughes it seems like courts this court and others have held that testimony just like detective jackson here that type of testimony was not expert testimony i'm trying to figure out why we not present testimony that was based on technical or or specialized knowledge there's also united states vs march and as e c vs sab have dropped why would we go a different way when it seems very similar to what happened here why have two responses you're on our first the four circuit in johnson and the sixth circuit and gainey are in published cases have held that this does require expert testimony and that's because this doesn't volved more than just plugging a device does like your honor said it's that they follow the prompts and plug cell brought in but what the four circuit in the sixth circuit recognise here is what the record reflects in our case which is it does require more cell right itself things that require six days of training to operate this device the scientific forensic community believes this requires yearly testing forty hours of of training and the government all no notice or kranz and its motion in limine a as an expert and cited the fourth circuit in the six circuit cases saying this is expert testimony and tendered jackson as an expert and didn't say this is lay testimony when we objected that he wasn't qualified so i think it's disingenuous for them to claim now and to rely on these unpublished cases that this doesn't require expert testimony is really evidence of the  would prove that it's sort of like proving a negative she she did testify again at age twenty three that when she told the case agent and the prosecutor about this risk they both said don't run so bright on that blackberry they didn't want to run that risk either because there's no way to really determine what's been lost to be used against your client so i guess her well what's been lost may have been a text from jonathan saying hey i'm twenty eight i'm in college that would have changed the whole he didn't testify to that but again we don't know what was on the phone is the point is that the whole sort of data set is contaminated and we can't rely on it because jackson didn't follow the proper procedures and that's what will seven seven zero two is about is whether this testimony and the evidence is reliable and here on this record where he didn't double check to make sure celebrate didn't commit one of its known errors he he didn't check to see if that the cell right device had been updated to fix those bugs itself right knows exists he didn't know that you shouldn't be using cell right on a blackberry because it could compromise the data on that record there's no way for this court to find that his testimony and the sub right report were otherwise reliable did that all come out before before the jury the sarah kranz point  does the examiner have a bias it's not whether this expert reliably use the technology and whether the technology itself is reliable those those are the issues that the district court is supposed to be a gatekeeper for and this the allow in this evidence and the error was really problematic here because the government used the cell right report as its strongest evidence for each of the disputed issues at trial so there's no way to rebut the presumption of prejudice here so for the production counts the issues were did macleod know that he was  mistake of age affirmative defense and so that was that wasn't in the presented evidence on that issue correct i mean that was really what the what the fight was about for these counts because he his defense was that he didn't know until late on the the night of may twenty sixth that jonathan was a minor when he picked him up in san diego well no earlier and that sort of the end of their texting relationship was when he found out and so the government and i think the government uses text messages to hammer home that that macleod knew and that's partly because jonathan's testimony on whether he told macleod he was under age was seriously impeached he had testified before the grand jury that macleod didn't know his age he had told his answer at the time that macleod didn't know his age and he had told law enforcement during the initial interviews that macleod didn't know his age and then he came to trial and claim the mcleod did hit and didn't know his age and so the government couldn't rely on his to his testimony and instead pointed to these text messages so how really distinguished cantore from the argument that you're making now because it's just a appoints judge kozinski in one nine hundred eighty eight said there is an affirmative defense but the burden of proof not the burden of production the burden of proof on the defendant is by clear and convincing evidence and now you're arguing well that was just a first amendment determination this is a due process argument right while i'm still on the seven o two harmless yes i mean we can we can discuss them the mens rea of the twenty two fifty one mens rea issue is out that we're owners asking me what become happy to discuss it sounds like you just went into a can show that he he your client shit which goes to the intent well i'm talking about the harmlessness because there were two issues for the production counts one was the solicitation for which the government relied on the timestamps on the celebrate report to sort of show the sequence of the conversations and show that macleod was w soliciting the images the second issue was whether macleod does this affirmative defense whether macleod knew that knew that he was dealing with with teenagers and for that point to to disprove mcleod's defense the government hammered home with these t messages they said you see messages in which it is obvious the defendant knows that jonathan is not an adult that reference specific messages and it's closing at your ten twenty nine and ten thirty one and it said you have a shred of doubt in the defendant receiving that message knows he's talking to a minor no it relied on these text messages as it's best evidence for the production counts same thing for the traveling transportation counts it relied almost exclusively on the text messages to show that he traveled with a sexual intent he it's supplemental excerpt for seventy five it said the evidence of the touching on the airplane in the car merely corroborates the defendant's intent you already know what it was from all the text messages and all the photographs and again that's because jonathan testimony about the touching was impeached by the forensic data by the five airplane witnesses that came and the fact that he didn't report this initially when when they were when they landed in tampa i'd like to if i can reserve the last minute for  please the court daniels up on behalf of the united states your honor as the district court was well within its discretion and allowing a detective jackson to testify about his download of the victim jonathan's cell phone using a cell bright system what testified if i recall correctly to sort of more involved forensics and alice this where as detective jackson all he testified to was that i plugged it into a machine and this report came out there was no discussion of the sort of raise any of these issues about the reliability of cell bright so what do law enforcement officers who i guess testify about technology such as sol bright ever have to be qualified as expert witnesses or is it your personal position that they never have to be qualified no i mean there are there there could be situations with that if they required specific scientific or technical knowledge and in this case why was that jackson needing to be qualified because he the nature of his testimony was it was straightforward it was here's a machine that we use regularly in our practice that right blocks to prevent anything being from being adjusted on the phone that you simply plug the phone and put in a hard drive and then it gives you series of prompts as to what type of information you want off the phone and that's it and then you put the evidence and there was nothing scientific or technical about it it's in line with any number of other sort of technical devices that i long for some might use in their normal practice and you know anything from a g p s to a running a rap sheet are things that officers use and that may have a technical aspect to them but their testimony about how they're used  is straightforward and was there a forensic analysis i mean my experience is when you have those people to do those things they first tell you how they extract it then they tell you how the system works to extract it and then they go on and tell you what it says which is expert testimony is that what jackson did know your honor and that might be the case in some more involved sort of forensic computer analysis but this is a machine that detectives  through and taken pictures of each of the text messages that would have raised some issues of potentially manipulating the evidence on the phone which one of the reasons that he uses albright is to make sure that nothing to change from the phone all it does is put out this initially a photocopy of what's what's on the phone directly with the sort of problems that they're raising on appeal about celebrating the potential inconsistency to go to respond to my pundits point about the deletion that  she was given the phone many months after the crime was committed and her testimony made clear that her concern about the deletions was this sort of automatic delete function based on the date of the messages on the phone so that it she was worried if she turned it on eight months or however long it was after the crime was committed that it would automatically delete everything beyond a certain date detective jack just testified that he could plug this into celebrate while the crime was going on it was while mr macleod was in have to be that the focus is on the nature of the testimony itself not whether he is or isn't an expert and what he offered here was not based on scientific or technical knowledge would you address the issue of  why were the touching counts not severed that seems like it was problematic well i think for two reasons first as the court district court held in this case the touching evidence was probative to the production counts once the defendant put on a reasonable mistake of age defense then the fact that if his defense was on may twenty sixth i discover this guy really wasn't eighteen like he said and from that point on i wanted nothing more to do with him that defense is directly undercut if the following week he flies to california and picks him up in a middle school i know that's that's what i think the problem is and i think it was argued in front of the district court that the defense counsel had submitted an instruction on the affirmative defense that can't or says is available but in the argument with the court the court said well you're having that defense counsel basically said well i don't know i had to put the instruction and then the court said i'm going to allow it and to rebut why is rebuttal part of the case in chief because you for hand you forced her to make that defense by supporting on a rebuttal of what is a potential defense as opposed to one that was actually there and then you had to rebut it defense all along was this mistake of age that's really the only thing that they could argue as your on a point out earlier under cancer to there's there's no age requirement for us to even prove their defense throughout i mean first of all they they never put on any real direct testimony that there was a mistake of age it was based on the defend the prosecution's text messages that they sort of suggested that there was a mistake of age but they  i guess but i don't understand really have some understanding how that fits into the severance argument i mean all it does because if the judge severances any of that touching evidence is not relevant to the production evidence right  your argument was yes it is it proves that he knew they were minors and all that sort of thing as well on that point then if that's where the even if that were the case this court's case law is clear that even if it wasn't directly relevant to all of the counts that were charged the standard is not the standard it has to be clear manifest and undue prejudice well in this case even if it wasn't probative of the production counts it was certainly all part of the same scheme within that you know anything that a jury sitting there listening to the testimony that was presented regarding the touching by the individuals and then the other testimony you don't think a jury sitting there listening to that would not be influenced in determining the production accounts yeah and i think you have to look at this in that in the total context the that testimony came in about the production counts was extremely inflammatory extremely graphic i mean if you look at the text messages it's sort of defendant manipulating a fourteen year old to send that to send videos of himself masturbating and the jury watched all of that i mean yes to answer your question it is more inflammatory to have direct testimony that you have lost me in the car but not by much this is it's not like this was a bank fraud case or were sneaking in the testimony i mean this was an entire case was inflammatory so i want to ask another question  consuming everything here but if there was a self defense the burden of proof is not by clear and convincing evidence the burden of production but whatever the burden of proof is on the defendant for an affirm defense is it then your obligation to prove beyond a reasonable doubt that the defendant knew that these were minors you have to disprove the a from de france defen rather than him having to prove he's not guilty no your honor that's not that's not my understanding of what cantor two said i think not talking about cancer i'm talking about general principles of law and d process the defendant cannot be made to prove anything in a criminal case can they they can be required to produce evidence but if they produce evidence isn't it your obligation to prove beyond a reasonable doubt that he actually knew that these were minors my understanding is our are we have to prove beyond a reasonable doubt the elements of the offense which do not include knowledge of the miners age and cancer to this court carved out a narrow exception and so there is an affirmative defense but that the burden is on on the defendant to prove it is but under general principles of law the government then has to disprove the affirmative defense beyond a reasonable doubt that's my only question and i'm sorry judge but  familiarity with computers and the forensic software well the on the average lay person because the cell bright don't you have to know where the deleted data is on the phone to know how to extract it from the phone jackson didn't know any of that and jonathan did testify that he and macleod had a regular practice of deleting their text messages at the end of the day so we do know that there was deleted information on this phone and it require specialized knowledge to figure out where that is on the phone and how to get it and jackson just didn't have any sort of training to do this i think question could the jury have inferred from the context of the test messages putting aside the the time stamps that jonathan was under age it seems like  in the messages they talked or they talked about school not being happy at home could the jury not have him for the child who was under age even without these timestamps that you're arguing well the defense relied on the timing of these text messages because his his defense was tied to this may twenty sixth date so the timing of the test messages was relevant in the context of this case there's also the issue of again we don't know what came before or after those text messages so we don't know if they were joking if they were discussing you know something that had happened previously it was about the you acknowledged that there was references to school to t school there were your honor but there's no way to tell if jonathan was being truthful given that they were playing this sort of online fantasy game i mean that was the defense that came up is that this is across the country no one knows who's telling the truth truth for people frequently misrepresent their identities online and so there was really no way to tell if he was being truthful