so i know we've got seasoned attorneys here but i'll just quickly go over the rules please recall the light system that we have the greenlight says you keep talking that you don't have to do the yellow light is two minutes left in the red light cut it off although if we're still questioning your you don't get to run away we can keep questioning you please make sure and give us record cites when you're talking about something that happened in the record and please recall that rebuttal is for rebuttal only and not to bring up new topics and with that let's get started with united states versus come i'm going to start with a little bit of background about some the topics i'm talking about that i couldn't really go into in brief but that is contained in the   list of files that can be overwritten in the future that the list of files is contained in what's called the master file table so that's what we're talking about there the nd group of images  are created when a file is accessed or when the file system viewer creates a thumbnail of it so if you're in windows and you hit you know i want to see the thumbnails of all the images that are contained in this one folder windows will create these little thumbnail sized images and those little thumbnail sized images are contained in the thumb couch so it's kind of odd data that the image that's in the on the allocated file space is not contained in the phone cache and vice versa you know words what was found in the analogy is there any evidence that this could have accidentally ended up on the computer that that he never tried to access any of the child porn and it just space comes into his computer is there any evidence of that and there's not evidence of that however there is evidence drive that was inserted into unaccounted for at the time that the image was created and if you follow my logic when i when i'm talking none of the f b i agents admitted to being the person that inserted dot com dr are you talking about what the agents did when they seized the computer to do the initial tree on the computer  images were in the film cache but not in an allocated file space it's it's a problem we call anomalies how did that happen ok if the images had existed on his computer going to kind of he actually access to those images there should be somewhere in the unallocated file space they should have been deleted ok and the fact that the windows update installed overwrote any possible data overrode the remnants of that image and you go while later at night or whatever like that you turn off your computer then the next time you turn it on it's going to do the update absolutely and that's the evidence here that's what happened so this isn't some nefarious deeds this is just life and windows direction of mr clan and the f b i being the recipient of that if you will when they turn it on as my expert explained the way that that friends that the forensic examiner examine the hard drive know there was a complete lack of a protocol and it didn't didn't go he didn't do it right he simply didn't do it right and it even if he and done it right disclosure would have been appropriate so in other words if you make a mistake you screw it up you've got to disclose defrag would have affected the own allocated space so they would not have affected the film cache no no in your understanding how do images and up on the thumb cache of a computer either by directly accessing the file or all or by windows automatically creating the file when you have a system of use and you open a folder and in other words if you have a folder and there is another critical you should have a folder and you open it you don't see you might only see the top five folders but windows is automatically going to create a thumbnail for all the files that are in that image so that doesn't suggest strongly that the user of the computer looked at the images of that's why they're bloody right if the police say murdered somebody and here's the bloody rat we have to prove it you're going to want to see the d n a and what the government did in this case is it not only did not tell us about the d n a that was on that rag that didn't match and wh destroy the evidence that could that potentially could have shown that potentially it would have actually shown where this image came from where did it come from and by sheer coincidence and this is what the government would have would have you believe is that by sheer coincidence the one place that would have been able to tell us this the master file table was altered by the government while the computer was in the government's control and see so far as mistakes well then why wasn't it ever disclosed when you say altered by the government while it was in the government control what you really mean to say is that a windows update started running while the government had the computer windows update that was initiated by mr glenn no your honor no no i'm talking about the de block i was instituted this is the computer was allowed to connect to the internet let me ask this long before there were computers there were calling that evidence was planted and the way that works and as the police officer testifies i found the drugs in the trunk and somebody says now there aren't any drugs in the trunk even that the defendant testifies or fran or whoever and then juries have to resolve that what is different about this that would have us saying as a matter of law you're right i mean that's what you're kind of having to show because all these facts are out there a jury can sort through that the jury could believe what you're saying that the f b i planted in all of that and they could have acquitted him it comes down in this particular case the fact that defrag was allowed to run and we had no idea that that happened that the one thing that could have shown how this anomaly could be explained the fact that it was not disclosed and he knew  to brady argument so materiality is the rd prong of a brady argument right reasonable probability that it would have had a different impact a different different result of the proceeding reasonable probability i thought you told me that the defrag and the update is alleged confession was not a confession what it says read it closely it says if i uploaded this then i must have seen this image that's what it says and wrongful convictions come out of exactly situations like way plain and simple a jury could construe that they could conclude what you sat not ok that this was just like a lawyer only response by mr glanton or they could say on that in what somebody says or didn't look at it i agree or that's that's process now it's important to note from the record that we don't know how much of that defrag process actually happened goes experts testified to this both the government's expert in the defense expert  government's expert explained it not when the computer booted up it began to boot up he immediately shut it off ok so this was just an inadvertent reboot as he's trying to make an image of this device  do not know in defense the defense expert was not able to explain how much of this defrag happened in addition we have testimony undisputed testimony from both experts that the defrag process and indeed all of his windows updates would not have files in the i'm kind of like to think that when windows updates on my computer it doesn't just add a bunch of child porn to it is that a fair does not it does not mean that i'm making because otherwise i might be i being an allocated proves that the f b i planted the evidence because to me that's all of this does not matter unless it shows that the f b i planted the evidence and that's huge who right your honor and this is the st i'm hearing about planted evidence that was not a theory that was against the trial i don't think that's fairly what his brief side there's no evidence that the f b i put that pornography on his computer  indictment do you know exactly what images we're talking about and he said no i never of use superseding indictment i don't know what i mean he didn't even know what images we were looking at he didn't search for them he could not be didn't know what they were he didn't go into the an allocated space to try to find th he never gave a clear he never gave a convincing explanation of how those images let's even if we spot that those were not of me and i get it's because now that there's an alternative answer for that if it's true files would not be seen on your computer i'm so that's the simplest explanation kind of ockham's razor for why that might have been the case although we don't agree that that evidence even establishes that they were in fact in one place and not in the other because had searched for them and i'm also concerned you know he then mr glenn moved to dismiss before the trial so the stuff that was no on then i think he had an opportunity to address a trial but he says i didn't know about this defrag until the middle of trial and so that's the brady argument as i understand it and sure he'll correct me if i missed it what is your response to that i think correct you're on the record flatly contradict about the deep i don't know how he would have found out about that in the middle of trial because that testimony came from his own experts testimony it wasn't like something you heard from a government witness so maybe it was news to the lawyer but not to the lawyers team  correct i mean he i doubt also again i would do not have a chance to go pull back that portion of the record back up but i strongly believe that thought will be contracted by the record additionally honor his computer scientists was provided the image of the hard drive which contained we have lots of testimony about what a windows registry is what the computers registry is the registry list every process that happened on a computer ok every time it's powered up every time something open every i do not think the record supports the conclusion that they found out in the middle trial about the defrag and at any rate there is ample testimony that the d fry process would not have affected we're not jury questions right so whether or whether or you he's are you know at some point is making essentially a sufficiency argument here saying well just having it in the time gosh that's not enough to prove that he access those images well that's a jury i mean that's a question of sufficiency of the evidence the jury clearly felt that it was enough to indicate that he accepts that with respect we've been talking about the thumb cash images with respect to the chad step up load image and kill one can you tell us the evidence that links that not that's a question for the jury he signed the back of the image when the agents were talking to him he made comments to the effect i must have looked at it if you say i you know if it was i must have had it on my computer if i uploaded it he admitted that he used chopped up under the us stuff image on his computer no he had he never not a trial there was no evidence of that not a fact in fact the opposite is true you have the f b i agents testifying that the only other person who lived with him in his house was his boyfriend they went to his images let alone the two thousand total images that were found on his computer but at any rate what this comes down to legally on appeal is an issue i have a bad thing i'm an issue i'm a judge garvey's finding that there backbeat on the part of the government computer scientists here now we don't know what the evidence is so automatically it cannot be a pretty claim and this court said as much and more that if we don't know if the exculpatory value of the material is not clear  before i rule on not and then deny the motion to dismiss afterthought so yes it was certainly an implicit finding of know about it because he was well aware we know from the briefing of what the standard wise and there was extensive testimony about what where would we be able to suddenly be making fact findings about mr layman is good or bad faith and we can review what the district court did but i'm unaware of us just saying oh well he was in bad fa and we can't just start over and say well we think it's bad faith we have to look at whether the district court could have come out the way it did no exactly thanks john they got a question of would anyone else sitting in that district court shoes have made a different finding the question is was that mining possible in light of all of the evidence that was presented in addition this records ability to sit in the preserve of the testimony of those two witnesses this was ultimately you just are all by motion are you saying there's a lack of bad faith that's the time to bring up any deficiencies in the district court's explanation is when the district court is ruling not at all the appeals court must go tattle uploaded it was not relevant to the question of what would likely both addresses were connected to mr glenn right correct because when i read the appellant's brief i thought oh my god this is some random address in there attributed to mr goh this is terrible and then i realized oh no i mean it was his address his just at a different time oh that's a little different feel to it than i got from the bridge right down to it when you from just some random address i never heard of being attributed to me and nobody saying that that's where it was uploaded that would be different from i moved from place a to place b which is what happened here herat and also i mean this is that this is  finding is clearly erroneous then it gets to the question i have but was there still probable cause but was there probable cause in any event and certainly there was because this is a crime why would we believe that he would have moved to a new address and left that computer in an empty one more thing i wanted to address which is that that disclosures i'm whether or somehow there was some criteria and what the government disclosed i'm and whether those have any bearing on  suggested there was any of these things his problem essential he was with was a record keeping issue and there's a lot of really arcane testimony about master file tables and sam hide registry hives and things like that but when it comes down to it his problem was with record having been prepared contemporaneously and to the government would just reinforce that that has no bearing on the issue on the legal issues of whether anyone did anything about the m so  the st time anyone is talking about different it was not in my motion to smear x her is the one who found it so how can that beer that's not correct your honor and this is why i encourage you to go back and read the record and not rely on the government because clearly the government is playing fast and loose here the it was the government's witness on direct the talk about defrag that's how we find out during trial which is why i'm asking for a new trial this is what's the fact that this was never disclosed it came up in the middle of trial would have totally changed our trial theory of course that's why we didn't we didn't we couldn't accuse the f b i planting evidence until we found out about this defrag issue and the government's argument that it's that this was contained in the registry is not a disclosure if i handle bloody rags that is not a disclosure that the a doesn't match it's not a disclosure that there's an anomaly it's what is what is different do defrag and rearrange is information on a computer hard drive and in the process it overrides everything that's underneath it and it also alters the master file table the master fi files that says he when that is your theory that the f b i planted the evidence and did the defrag to cover that up that's your theory that's correct your honor and what evidence do you have that we have the fact that i point this on the record earlier that there was a disk that was inserted into the computer that no one talked about was another thing that was not disclosed we have their bad faith and speaking of bad faith whereas about face found it's found in the lack of disclosure if this wasn't such a big deal then why wasn't it is which one is it and then you're asking for a new trial and if you look at the record your honor it's clear that even the government's witness admitted this is a big deal i asked him where it where should i look for the didn't bring my computer but this where does your expert say that the our expert didn't say that because we didn't know anything about the defrag which is why we need a new tracker is that anywhere in the record where is where is what exactly the point that you just may that it's not anywhere in the n allocated space but it's on at them cash which means it's planted which is a huge accusation it here is there in the evidence and i can look somebody saying that beside you it your honor which you're asking me about a i'm not a computer expert how do i know that where in the record can i find someone saying this proves a plane and you can you can of course the record doesn't say this proves a plant because i didn't have that information the record once it had that information in the middle of trial you have an expert sitting there it's now been two years since the trial where is the affidavit where is the motion for new trial where is the whatever that says th through nine are found on the thumb couch and it says in count one that the single image and how one was found in an allocated file space there is nothing anywhere in the record that says that that image of count one does it tell me that means it was a plant the effect of that fact being the plan i need an expert information on that where is it with the expert information says in the in the evidence at trial is that the master file table is what would tell you what how an image got into a particular place and the government's expert testified that the master file table was altered and this is why that's important because the windows update know well by the defrag process yes the windows up something put chomp on the computer was saying the windows update through the deep fried process caused the master file table to be altered which is quite a coincidental fact because the master files evil is the only thing let me come at it another way if the f b i planted evidence this is a very serious matter not just for mr glenn although obviously important mr glenn but somebody needs to be prosecuted for that is that itself would be a crime ok so for that big  headline issue if you will to be a basis for you to win this appeal i need something more than your argument here that you're bringing up somewhat at the last minute and where is that i just passed what i'm asking that is why we need a new trial your honor so that don't know anything of what you're saying being supported i'm not saying you're making it up i'm sure you believe it but i need an expert not a lawyer to tell me this and where will i what i find that you're saying no where i'm saying that the master file table was altered and i'm saying that that is in the record that it had been altered the government let it happen and was not disclosed and that is brady that is brady material that was not disclosed to us and we'd need a new trial because of that the your argument the case is under submission and we will take a five minute break