refusal also violated mr jewishness constitutional right to the factual scenario of what was occurring at this time the jury was sent back for deliberations at roughly three pm after the alternates were excused it was brought to the district court attention that there was a jury that was on well the parties were able to immediately determine who it was as this journal was on the wall during the trial the district court outside the presence of the parties question the stare about how she was feeling and her ability to continue deliberations the jury made comments of you know if it's not that much longer i should be ok and decayed and that she hadn't received the type of medication that could actually help with the ailment she was suffering for  and at the time she was doing before she was brought in she was wearing sunglasses she had her knees tucked up under her chin and just generally looked like she was in discomfort and the court when it determined that it was not appropriate to recess deliberations to allow any medication to take any and a fact or to allow the church to recuperate from this migraine determined that it was a viable solution that there was a physician's assistant on the jury panel who could assess the juror if there was any kind of medical need necessary it was an abuse of discretion care to not recess and allow the jury to come back the next day to liberation because of the interest of justice two hours is not much to ask in a case like this where it's a very serious federal charges and he's facing decades in federal prison and this court has been critical of just appoint judges not just willing to recess or allowed to make accommodations for jurors so that jurors can be present watching the trial and able to deliberate fully in the russia case and the case decided by the government on this principle are not on point the cases cited by the government are all situations where in the midst of trial a jerk becomes ill the court does recess to allow the juror to either receive what care is necessary or to recuperate and then they continue trial and then there's a later motion for  mistrial that's not what happened here or one where and deliberations and two there was no recess to allow the juror to recuperate and those cases are on point and not persuasive it's also problematic because of the only to look at the jury screen to see where the exhibits are pulled up but just had typical to looking up in general because of the lights in the courtroom is that the other jurors who are going back with her and deliberating and seeing this chair with their knees tacked up wearing big sunglasses and the impact it might have on them i think it's a human reaction to be to feel sympathetic and probably want to get out of there soon as possible and the fact that they deliberated only for forty minutes supports the idea that the jury wanted to move quickly and also implicate the due process right to a mentally competent jury that's sure even during trial and kidded she was having trouble actually clearly focusing and paying attention she couldn't look up she had difficulty looking at the screen and she was sick going into deliberations and under these circumstances due process was implicated when it even creates a likelihood or appearance of bias or any kind of issue with the jury and here it  next the introduction of several computer reports that were similar to police reports and contain legal conclusions with error and requires reversing or man for a new trial so we're challenging seven different exhibits one through four and fourteen through sixteen is that it's one in three discussed files that are considered child notable and testimony at trial indicated that child knowledgeable that these were confirmed child pornography exhibits two dollars and four dollars are summary reports from a file sharing program and similarly they discussed child exploited children i don't know if the testimony actually said it's been confirmed by that or just generally stated we know that's child pornography but i know that's when they do say it's a confirmed series by the  which the most problematic part of this the government's two bases for why it's not hearsay should be rejected under the circuit case law st they state it's not hearsay because it's not offered for the truth of the matter asserted it this isn't supported by how the evidence was presented by the government how it was relied upon and it's also not supported by the case this wasn't this was offered for its truth and it was offered to show that he had those files on this computer or they were downloaded from his i address and also to establish that they were child pornography but this exception doesn't go come into play the idea that it's not offered for its truth because it's necessary to show the police investigation is only allowed  investigation is challenged and here there's no challenge to the search warrant or why they did at that was a relevant part of the trial so that just doesn't come into play isn't there also usually a limiting instruction when it's generally yes when something's  or i don't believe so your honor i don't recall i think i know the government at least arguing now that it's also not hearsay because it doesn't actually include a statement it's just something that a computer  printout and it's hard data that's not what it is in this case there's a distinction in the sign of cases we're talking about computer a ports the court recognized morsi and other courts have recognized when something requires actual human input also it's not just something that could have maybe been prejudicial this was evidence that told the jury that an element of the offense was matt it took a decision away from the jury and that and looking at the remaining out it's against mr joe actually which element made statements confessing or meeting to the to the status or the the pornography part of this is that correct ye understand that's our position and there might also times the argument that he shouldn't have been able to put on that theory of defense and that could have also played into it as well spoke about as far as the juror issue is concerned i would invite the court to look in the transcript and it's around pages if she could have a type of medicine the prednisone or something along that line that helps with her migraine headaches court took a recess believe the court got the juror a version of the medication that she requested on page three thought she could continue to deliberate if she wanted to deliberate the juror said yes she was fine to go on the tour judge said that she looked fine so based on the record i just don't think there's anything factually in this record that substantiated that a continuance was warranted at time that time for those reasons therefore i don't believe judge rose abused her discretion by failing to grant the request for a recess the other issue that we're talking about here today are a number of exhibits that we offer to try exhibits and i'm going to talk about them and clusters and try and explain to the court if i can what exactly they are and some distinctions between the exhibits exhibits one in three particular investigation connected to mr you had said and what it was being told to the law enforcement computer through the c p s program this is what it discovered on mr you have computer address it gave us the internet service provider who's the internet service provider here a century link and we had other evidence that showed it was century link and mr unix computer talked about the file sharing programs that were being run on the computer to which the law enforcement computer was connected that it was the new nutella file sharing network that's not a statement by anyone that's a computer talking to a computer what's what i'm going to switch to the hard parts about it what you think of the hard parts how about the law enforcement information i can i can go to that before i get it all she said and she could she's complaining about the legal conclusion as she calls it that it is in fact child pornography or has been in a child program that i thought there were some stuff of the files on there these exhibits as child notable is the exact terminology it doesn't say child pornography on there but it's telling the case agent that his computer has used its programming what is hearsay however sometimes when it relies on human input it can be and then it transitions right into harmless error sort really doesn't provide any guide guidance at all to us why wouldn't it be if it's report if it's really through the computer computer generated information certainly by necessity relies on input from human beings well to generate whatever reports whatever it is giving us absolutely summaries got a way elder rhythms with that's not the case here what the case here it's not that the graham just is built by a person and just runs right the deal is somebody identifies by certain hash values that certain images are in fact child notable now that's  conclusion of some sort that a human being makes a computer doesn't make that determination right well is they have to be identified somewhere else they all come from the national center they come from other law enforcement agencies those get put into the computer at trip the trials i sat through what i heard people describe them that's what i hear and then i've never seen a report like this come out and come in and is not a real live human being explaining what it was how it was produced what the foundation was for generated the documents that's right and so did he ever explain a you know and i didn't see it but i might have missed it here explain where the images were identified how they were identified who identified him his affidavit just describes child notable means blah blah blah but i don't remember a thing the testimony saying that that these images were were designated as child notable because of something right because you were talking more about the images themselves in the hash values at the trial right yes right right and so at the end it's probably mostly all bubbly and harmless because it could have come in that way anyhow and whether the exhibits there or not whatever but you know but the question is if you offer the exhibit might says well but again i come to where the law is unclear and there's no precedent there where the lines drawn because every computer every machine at that so there's a lot was the record on how they came to be database by name and by hash value and then that's put in a program so that the hearsay rule is designed to go back to english common law and everything it's designed we want to bring the declar that line is drawn that it's a witness that come in and said you know i think i went through a bunch of files and designated a missed child notable and put him into a program and this computer program then cross reference images to see which of a match the ones i had previously designee and that's how the computer program works then you'd have a witness you could cross examine about how they wrote as a child notable in the church place but if you look at exhibits one of three it didn't talk about specific files being child pornography had a pipe chart that said we found six hundred and forty dollars or whatever the number as a just and a number  the ip address gives us internet service provider that tells us the program that was used that was found on his computer and it does talk about that there's child inaudible files here so why did we continue with the investigation and what was this person right they would say that while the exhibit was produced it's something that we in our profession rely upon we looked at it and then we went back to the hard drive and started looking at the what was on the hard drive and we were able to identify a confirm that the report was with lies you know i got a program i put it out there it tells me these are child notable experts says it whether he created this program like your expert did or he's just a person who's trained in it use it they all take the stand and say this is a tool we use here's how it works here's very at the end of the day no matter what you decide whether these exhibits are hearsay or not or whether portions of them are hearsay or not i think the case is resolved just like the bates case was in other cases involving bosnian native who spoke mr hughes its native language and after a special agent simon interviewed him and he contrast also had someone talk to him and other law enforcement officer in his native language from mr yoo that actually has the that he was the person downloading this he told us what computer programs was he was using he told us he was doing this on his computer that was confirmed by forensics he told us this was password protected he told us he was hiding it from his wife he told us there that they were might serve in minors and it was child pornography everything that he said was corroborated through the evidence particularly government exhibit five shows the fifty two files a choppin are that were downloaded from his computer and government exhibit seventeen was twenty three videos of child pornography the fifty two that were still on his computer when it was turned over by him to law enforcement will be we didn't rely on the pie chart to prove that it was child pornography about these reports sometimes they come in a trial sometimes they don't we had a case in front of the circuit called investee this quarter i can vividly recall defense counsel mr parrish in front of the jury using the pie chart and talking about it and these were not statements from to clarence this is dated derived from a computer when judge made her ruling she came up with the business all kinds exceptions very well thank you for your argument  s a child notable file is just a category of file provided to us by law enforcement when they come across a known child pornography when looking at the file sharing reports and that's on page fifty seven on page one hundred and thirteen when talking about exhibits to mentor and he's asked asking what does it mean grace series does that have any meaning to you as an investigator the answer is it would tell me that it's most likely a known and identified victim that has been named it's common for investigators when we submit has tallies to the national center for missing and exploited children for them to return any files that are known child pornography and our series names and i next looking at just the legal issue itself whether it is constitutes hearsay as a matter of course statement offered into evidence for the truth of the matter asserted that the images were child pornography and i was playing their review and of my recollection because that was my case is that the government made  arguments that they're making now you know computer generated and because of that notation that it was confirmed child pornography the circuit did disagree if there are no other immediate questions i would ask the court to reverse