around there we go so that i am looking at the right case in front of me here all right have just really what one question maybe it breaks down into two questions and that is how little can the government do and still prove the transport element in a two thousand two hundred and fifty two a case beyond a reasonable doubt so i say this breaks down into two questions and i think those questions are what i suppose the government's going to answer not very much they certainly answered that in this trial that's the way they answered it in this trial  right so i but i think st we need to figure out what what is the transport mean because i am not sure what the government's position is on that so that that school that's not open question and there's plenty of ecommerce piece of it the part that we're focused on is the movement part of transport what does that mean what do they have to do to show a movement because transport has to be different from pure access through a computer to pornography that's a different subsection but transport has to mean taking something from point a to point b otherwise what is the act that differentiates that crime from the other crimes in the statute that carry a lower sentence so what would be what do you think point eight point b would be satisfied by in other words if the testimony if someone from yahoo or google came in and just landed on our server or you go is that the missing piece for you so that's half of it so they would need to also tell me that it didn't start out on their server that for instance in the instant messages that had images attached there we don't have the instant messages we don't know where they started out where they drafts that started out on the yahoo server and so yes i do think that probably at putting the testimony about where digital evidence ends up on a server and you know usually oftentimes you'll even have some kind of at you know web address with some string of numbers and and figures on them we just don't have any of that here let me just landed somewhere though because they ended up in cork but not enough by itself so that the images physically exist somewhere and for instance on  going back to that the yahoo instant messages so that's counts one dollar and four dollars and those are the counts where all we have is the the tip line report and the yahoo representative who says i don't know how we determine whether something has been uploaded and i can't tell you anything about this but yeah that report says what it says but they don't have the messages so the images exist so they've been transferred from somewhere so this is where i don't know because as i said before a lot of times i think when we are composing messages for an email or an instant message i don't know where we're composing them because there's no evidence about that in this case but  it seems like some of these things get composed inside once you're in cyberspace you may be composing something in cyberspace so let's say for instance if an image is received in a an instant message and you are already on the yahoo server looking at your instant message can you take that image and you start to forward it you put it in no other instant message in order to forward it i don't know whether that message has been moved transported or not we don't even know if these child pornography by uploading it and through skype communication so he's right he made a number of statements about not so sure about the uploading part definitely the download and he definitely confessed to from the internet why isn't that transportation he got a server and he downloads and you're not arguing about commerce that would not be concerned about whether it was transported in or could stay commerce when that transport so place but it was transported from one location to another what's the problem with that so i i think that what your honor has just described might mean that there was at least much closer sufficient evidence on the possession after a previous transport count that's the last count who sees nothing is count five but the government charged very specific images on the other c let's let's pause one second ok let's go account thought count five below you challenge the interstate commerce element of count five you did not make the same transport argument that you made relative to count one through four and you have not argued plain error on appeal so it's not clear to me why that isn't waved at all and i and i'll pull it up if you need to pull it up but the language is clear that you know you had an interaction yes i understand and i i mean beyond that i agree that the sufficiency argument is less strong on the possession count but i want to emphasize the point though that on the transport counts the the charges transported these particular images and just the same way that if the government says you possess this particular gun the evidence better show that you possess that particular gun not some other gun and guess what folks talk about one through four then what was the four uploads to yahoo instant in in then messaging environment whatever that means and then one what uploading to a google photo album we don't know where that album was we don't know uploaded from where to where but there were copies of images in there so maybe they were uploaded from one sub folder to another is that a transport i don't know nobody testified that it was and then the last one was attachments to a yahoo email which again we don't know whether they were sent in fact agents said sent and then back and kind of backed off is testimony on that but after trial there was some discussion from the government about maybe they weren't even sent they were grabbed up by yahoo before they were sent but again we just don't know where those things were drafted and where one thing was moved from one place to another well if they were to move from one folder to another in light of your argument  understood your position the transfer is one location for another wise and that's it's it's not sufficient because you're not arguing interstate commerce and you're saying look at one location to another part moved it from one folder to another i've moved to another it looks like that i think if you look at the exhibit because you have folders and sub folders i don't know i can't stand here and tell you that i understand how this business works digitally and this is the problem that i think it probably didn't take much but an expert to explain that when you have if you have a copy of something here and you have a copy of something over here that this is in fact these are two things separate places and this and that it is a movement to move to make a copy here and put it here let me ask you this were is is was the inference for downloading there's no testimony that those images were found on his computer the ones are in the attached to the email the yahoo email that's hang on i'll tell you which count that is that's count three  they did put on evidence that they found those videos on his computer but i don't know where the e mails were if they were on his computer and attached and yahoo can you know reach into your computer can pluck something i don't know because there was no expert to testify about it and i think judge melbourne really makes a point when he says i'm out writing out the outer limits of my understanding here you know i try to send things in the ground ones get it i don't know what's going on out there in cyberspace so i recognizes that you know we're talking about a very close issue here but again it just comes down to just how little can the government do to support to support this element and also me let me ask you this what significance should we attach in your argument to the fact that at least as i understand it there was no effort to get any sort of definition of upload download or transport for purposes of the jury instruction i mean if you thought if you if you thought below that it was necessary that there be definitions of these things for a reasonable jury to understand the case why wasn't it incumbent upon somebody to ask for those because could find those things run that's right but i think that the defense here was more about what the government failed to do and i don't i'm sure it is but but the point is if they if there's if if their argument is that look we had somebody say this is download we have somebody say this was uploaded and and were saying a reasonable jury would understand upload means that it moved from one place to another recently jury would understand download me move from one place to another and and there's no definition of transport right to apart from the interstate commerce and there's a line where the council this council accountable oh said well they're downloaded and it wasn't downloaded in his house in other words if nobody nobody testified that they move well i don't know what location me but nobody tests their products that those those images that were on the yahoo server the google server may have been a good idea but i don't think that instructional requests change the government's burden to establish an element beyond a reasonable doubt and they just didn't quite get there here and if i could reserve my time i'd appreciate that behalf of the government and it was a matter i think listening to the court's questions i think as counsel for the defendant advised the sort of breaks into two spot two places and i think it's most useful for the court to start with the finding the law and then applying the fact of the law and the government contends that the last point in this case and the th circuit we all have even recognized the change that occurred in the amendment to the statue back in two thousand  d that was recognized in two thousand and nine in the united states the swinson case when then judge gorsuch now to justice for such observed quote other circuits sanctioned the assumption schafer rejected and congress responded of interstate commerce or affecting interstate or foreign commerce including by computer i think one of the things the court she didn't want is the defendants argument has shifted as we have progressed initially they made an oral motion talks about her that's d interpreted as taking the ordinary contemporary common meeting at the time congress an act of the statute so in congress and act the statute it's in response to shaffer but schaefer with the commerce commerce that should basically put a bullet in all of the defense arguments because congress has been clear if you're using the internet that to transmit child pornography that constitutes transportation  what what is the transport and what's not a transport suppose just so long as the internet is the ether that we're talking about i think what the course question kind of goes to is how do you distinguish distribute versus transportation or receipts were just transportation or how this transmission is different than simple possession and i want to i'm still waiting to hear well get off video for a nd here well what do you mean by transport and the word upload is substituted for question what is transmitted i mean i'm still waiting for you to respond to just so question of what i mean that language that you quoted is directly responsive to shaper in the sense that it's saying if you get on the internet you are are you saying transmit the fart the part before interesting if i'm using cox communications to send something or to upload something or to transmit something i'm doing the transmission i'm transporting it through cox communication to wherever it is i'm intending it to go which we actually showed in this case that the ip addresses from the defendant's house went through cost communication and work captured by google and yahoo scott it became important as to count three because what we showed is we could show that he actually received images through skype in september of two thousand and seventeen and then actually put those in an way google the way yahoo operates putting them in e mail because of the web based email yeah you have to move it to yahoo so yes it would be that might be different then so you're sitting at your computer at your desk and you have outlook and you  it's location the location that that would transport know and i do i think what congress did in making the amendment was to get rid of this location to location argument and the reason why that important i think we outlined the sort of result that would occur if we were required location to location is actually highlighted by count three if you have a yahoo user send an e mail to another yahoo user is the location idea and more specifically to focus on the use of a facility of intercept commerce that being the internet so if you're using the internet to conduct this transmission that is sufficient and  the words correct depending on the interface that would be facebook and in some messenger interfaces it will just be a little arrow that says send but you may actually have a plus si indicating you're uploading something so we may use a post we may use send we may use minutes but all of these things in the web based context we understand conway that to get stuff out there we are  we're having a long conversation about what you're saying we commonly understand and it this is that this is the of the evidence argument this is an argument about what the jury would have at order in order to make its determination and if you had no testimony but up loving you going back to sing for super dealt with one problem interstate commerce so it said if you put something on the internet you're transmitting in interstate commerce is that to say that the st part of that transmit what is what is  that they're telling you that if you put on the internet you use the internet you're transmitting in interstate commerce are you saying that means if you put it on the internet you're transmitting it by definition right yes ok and so when google and google and yahoo search correct google would not to have the fact that there's not the address necessarily means that there's the internet is being used in the new protocol address so simply images they also sent we also capture the ip address at the time all that information is what led to identifying the defendant has residence in great britain census and i don't think it's unreasonable for a jury to infer that neither google or yahoo operates their servers out of the defendant's residence in great until i think when we talk about what the jury commonly sort of understands you know in a different in the decade since we decided walser and wife number d one the internet has become more crucial to participation in appointment communication and civic life internet use is necessary for many jobs it is essential to access information ranging from local news to critical assuming the exact opposite that the jurors that we're dealing with are a lot i guess without common knowledge and experience regarding the use of the internet communication be careful with those or knowledge some of us like i had played well up what i'm saying is if the court is going to say in one place that people are familiar with this and they need to have access to it because this is the way society is engaged i think that informs the way comes here or there pickups picks up the package it's transported to wherever it is so we don't have to mill whether the package went to atlanta distribution center or to oakland for a distribution center there all we know is that the packets from point eight feet and that's the transportation it seems to me that this is all much of a do nothing question is was the document it and did it later arrive at point b having been se and i think i mean this point in our section he of our party to our argument is even under the defendant's interpretation they lose because we can show that the images came from the defendants residence that is through the ip address and they went to google and they then went to yahoo where they captured them and then record of them so you have points a and point b which is the defendant's residence and then yahoo and google so even if we contend though that congress specifically managed to get away from this location idea and simply focusing on the transmission issue relative to transportation thank you evidence connected the ip address with the user not with the location of the images there's no clear evidence of that to the government kind of contradicts itself when it says yahoo is a web based email so what happens then if you're in your web based email and you take an image from an e mail you have received and put it onto another e mail and that e mail maybe doesn't even get sent because that's a problem in this case too so ok st there's no evidence about this e mail transmission being a web based transmission there's no evidence it was actually transmitted that is sent being pressed and lastly i just want to point out i can that i think a district court actually ends up getting the definition of transport right the district court says it doesn't require movement from one geographic location to another but it does say it requires movement from one place to another and that place we have totally understand is in cyber pursued by the courts that there is an average understand in the way the web and the internet or i mean your granny used to go to the era of cetera because people didn't understand aren't we past that told us in this case what yahoo means when it says upload in that nick nack report though and more specifically is it enough in a case where somebody has to prove so let's say that this is a case where somebody puts has put child pornography in a suitcase and walked across the state line ok so that's a transfer what happens it was what what evidence is required to meet the transport element there can a government agent say argument that somehow this is not transportation i guess if you were as dumb as a rock you could buy that argument but i don't well to your friends in the philippines if they want to look at it well that's interesting so i don't think transport is is measured from the where the viewer is located and i don't know i can't tell you i seriously don't know whether when i expert rules would require and we were required expert to come in and say when you presumed on a g mail message that is transmission over the d internet we wouldn't require that because that's within the realm of common experience and knowledge and  think when we do jury selection and board here as we did in this case and i participated in because i was proud council we ask questions about familiarity with the technologies of all google yahoo d this sort of thing because then informs how we how we go about the number of users of yahoo and g mail is enormous which indicates i think my position which is these are well known technologies and they've been around for a long time when we get into different technologies maybe like dropbox wish not everybody has a need for then you get into a place where maybe we need to have somebody explain it but when we're talking about g mail and yahoo email and yahoo messenger these are not theirs i guess my position is i think the court is correct to presume that jurors are not ignorant and requiring the same dog and pony show that the government's position thank you very much mostly colleagues ha