my name is chris curtis and i represent darryl pollock the appellant in this case separates five issues in my brief and i don't intend to waive any of those issues but i do want to mediately go to two of the issues that i believe require under the case law on the authority cited require remained in this case and that the st issue that i want to go to is obstruction of justice the two level enhanced meant in the nd would be the rule forty one dollars ruling without having a hearing on the good faith determination regarding the obstruction of justice and handsome and under three c one dollar of the guidelines remained as required the district court err by applying that to level enhancement for two reasons st of all this was not an attendant in the conduct of mr pollack did not rise to a level of an attempt to obstruct or destroy the evidence in this computer and nd of all the application no four d would require the exception that is contained within that application note should apply in this case and prevent a two level and handsome and a thorough review of the record in this case actually what it reveals is that mr pollack was cooperative with the government from the beginning on the day that a search warrant was being executed his house he was in west texas at his office in west texas not in his home and burleson texas and he received a phone call about six or six thirty in the morning from the f b i agent he talked with that f b i agent for about an hour and a half he was cooperating with her he he he made incriminating statements during the course of that conversation the conversation ended and that is some point after that conversation ended he looked at possibility of wiping his computer he didn't wipe it in and run any programs to clean the evidence off of his computer after that point he received a call back from the f b i agent who asked him to tell him he's going to have turned that work computer over to the f b i and his response that well i need to give it to my employer and they can give it to you but that's that's the way i'm going to do it he that was about well i'm not sure what time in the morning that was but it was after nine o'clock in the morning he turned his computer over to his employer eleven o'clock that morning it plenty of time to destroy the evidence and he did it and i think maybe that's perhaps the most important consideration and discuss on this issue is he didn't destroy any evidence and he did not try to  and he never tried to do that and there's no factual determination about that there is none that he ever tried to wipe it what now the pre sentence report says it kind of gives the conclusion restatement that he attempted said when the when the agent called back and said he needed to turn the computer over what he told the agent was well i looked at wiping it but i enjoy it i didn't have a hard drive and it's also important to note on this issue that the f b i expert  mr mr aids dr aids actually testified it would have taken seven steps to wipe that computer clean and it didn't happen he only the other there was no evidence that he ran the agent wilkinsons that that in another recorded conversation this is this is a quote he had a look at wiping the computer but was unable to because he did not have a hard hard disk you had to have some sort of external hard drive there were his his his lesser angels tried to persuade him to do this but he was difficult technologically so he abandoned that effort and never did it i don't know that at all  know because he had every opportunity could have done that that's what's not an agent wilkinson stressed money is not in or testimony also that that wasn't done after she had told him he has to turn his computer over he he ran a search for a program to wipe the computer clean and downloaded it but that was before she had said he had to turn his computer over i think that's important and this was in the context of her saying you're going to have to turn that computer over and he said well i thought about wiping or i looked at wiping it and i was unable to because i didn't have a hard disk he still had that computer in his control and he still had all the time in the world if he needed to go get a thumb drive or a hard disk and he didn't so his actions were consistent honor i think yes no question about it he had a thought about well i might wipe this evidence off of this hard drive but he didn't do it and he had every opportunity to do it and done it so my argument is is that him downloading the wiping program the band i think is what it's called was not anything more than mere preparation he didn't do anything to install it he didn't do anything to run it he didn't do anything to execute actually wiping the computer clean any had every opportunity in the world the nd reason why i think it needs to be remanded on this is that application for which is the contemporaneous with the rest if you destroy evidence contemporaneous with the rest then but it doesn't hinder the investigation or prosecution then you don't get into leveling greece and this is the facts circumstances here essentially fit within that though the the difference is that he was remote he wasn't there at the house but that application note is intended to move back up a minute that happened facia note is intended to apply when the police come to the door and they knock on the door in the search warner arrest warrant and the defendant runs and flushes his drugs down the toilet or he runs to his computer and throws you know deletes all of his computer files  is good question your honor i said in my brief it was clearly erroneous but i think there's an application question here too whether because i'm not sure how certainly not all the facts are in dispute certainly both sides agree to some of what the facts are here but i'm saying that under these facts and that application of he should not have gotten the increase so i think that's it legal the novo question for the poor some issue that this could have been determined factually with was that properly preserved such that the court cleared this up the best it could at the trial level you know you know you don't talk about if it has a factual component and you don't try to get it cleared up in it's on your client well but i don't think there's any kind of waiver here we we did object and he raised this argument that i'm raising both components of it very clear to the court that this was what you were maintaining i believe so your honor i know this this record's four thousand pages long so forgive me if i've overstated that i don't think i have but i think that they filed the written objection and made what i raised on appeal is consistent with what was raised to the district court and i believe that the application note should apply it's  facts of this case or even more compelling under that application noting the reason being that he didn't destroy any evidence at all number one in that application note applies to work somebody actually does destroy evidence he did it he had every opportunity to destroy that evidence but didn't do it he could've still done it even after he downloaded it and the f b i agent talked to them and said hey you got to turn this thing in he had all the time he had control the computer at that point instead he turned it to hours later he turned it over to his employer and then left his job and left it there for them to turn over to the f b i it actually did the right thing and i ask a question about  believe your honor it was preserved properly because there was a know it would have to be so what's the standard of review if it's not particularly well i think in general rule twenty nine dollars does preserve the issue whether it's sufficient that could be wrong about that but my images on the images ok on the number of images so yes because it's a different number of images than they did calculated or is that the threshold so that it's already met it with the one grid well he's in his there's two computers here there's the sigma computer which is the count both counts of the indictment are the sigma computer then there's the independent oil computer which is the one i'm talking about for the obstruction and that one had according to the testimony it had eight hundred dollars images in it matter does it even if you were to win on that it completely understand your question i didn't get that st you're exactly right your honor if you vacated count two but didn't vacate count one it doesn't make a difference on  argument to get your client less time like the obstruction of justice in lest we prevail and kill one is well or and i think actually maybe mixing those i get that mixed up but your i understand your question i also  want to talk about the reporting one violation i think it's it's pretty clear under almost all of the courts who've addressed this issue that there was a rule forty one violation here that the the the wart did not comply with the requirements are a rule forty one dollars they went to a west virginia magistrate judge as opposed to they would have had to go to a district court judge if they're going to go out of district to get a search warrant for this district and our argument is that  i think under comstock there's no question the district court should have given a hearing on the issue of good face nelson at least the court found good face the defendant specifically requested a hearing to question the a final in this case to determine whether his side he actually had a good face and under comstock it's clear this court has held that for purposes of rule forty one violation that you have to the good faith requirement requires objective good faith for individual eyes good faith by the officer in self and in comstock in fact what happened was the the i'm sorry i got distracted by the yellow light that the officer did testify there was busy evidence that the officer said on the stop i thought it was a court record and it turns out it wasn't and does so in fact you had that evidence in comstock and we didn't get that in this case we asked for it and i  think under the controlling precedent in this court that that has to be remanded to the district court for that terminations get remind me it was was there anything in ganser that it covered in you know your honor i read the answer comstock cited in a footnote but the issue of whether there should have been a hearing is not addressed at all that i can determine in the answer again certain rules on the good faith issue like most of the other district sorry courts of appeals across the country that of dealt with these ten cases and that is they just found good faith without addressing whether there had to be here so i'm not sure that it was right just you know i'm not sure that in that particular case it actually got raised a request for  and that and so i don't think comstock answers i'm sorry against her answers the concept question that i raised i believe that those two issues require a man in this case i do think also i realize that all the courts that have addressed outrageous government conduct in this hostile nation have not gone in favor of my argument but i do want to quickly while i have a few seconds left address the fact that this is a case that is harvesting washable from the other  government violated the law here they specifically violated the law and distributed child pornography thousands of images maybe a one million adding to it or were they just running the system side w they were running an existing site but they added what's out there in the internet ether i mean what they put out there had images to the existing side so actually increase the number of images in circulation in any way through this website or would they think they added issues to the website they did not add any child porn or virtual or real images to the website of the website but they certainly got it what's out there on the on the web and what is out there on individuals computers that get shared and distributed and passed along and of course under their own logic they victimized we have rd party victims in this case too this is another reason why this is completely different than the drug cases where the government supplies all the materials and equipment to somebody who makes methamphetamine didn't happen like that in this case the government distributed child pornography for two weeks they victimized those kids just like our defendants have been  courts have held that our defendants are victimizing these children and i understand that by viewing this will my client muted but the government distributed is there evidence in this record are victims and  particular case on the issue of outrageous government conduct is number one we've got rd party victims you don't have that with a drug case and even in the benson case the images were recovered they were it was a controlled liver silly recover number two you've got the government is specifically violating the law there's an exception in drug cases for the government to to do what to sell drugs to do reverse stains it's in eighty five  he accessed them we understand that but that even if you use this court standard for there has to be passive participation that when you compare that to what the government did in this case that was passive  and and i think that the government has said that i have said that this issue is foreclosed and i didn't mean to say that if i did what i said was i prefer was preserving the issue of whether that passive participation rule judge smith and may please the court judge michael of the united states the overwhelming evidence in this case including mr potts recorded confession which he admitted to being a longstanding active consumer of child pornography involving prepubescent little girls strongly supports the jury's verdict on both counts against him furthermore the outrageous government conduct defense is categorically foreclosed under three decades of this court's precedent in a situation where a defendant like m who are not already subscribers so that they're increasing the demand and consumers of child porn i don't know that the record is instructive on that point but what i can say is that the number of total users on the plate and website in the two weeks during which the f b i allowed it to run was about the same as the amount of news in the two weeks preceding that so the f b i takes over the web site but it takes down the worst parts of the website the part of the website that encourages the playpen users to produce new child pornography and it was authorized by a court to let this operation run for thirty days but they decided to only limit it to thirteen and i because something happened that was a problem or anything i don't think there's a problem your honor i think essentially probably they just reached a critical mass of people that they identified whose ip addresses didn't you many people to pursue and convicted that point i think that you need any more almost certainly that's the case your honor i mean the network investigative technique was  put in a part of the website that the f b i deemed to be the worst and imagine what is the worst part of an already horrendous child pornography and one of the parts of that website was the preteen hard core section which is where children are depicted in penetrative sexual understood john but in any event having done that they identified about one thousand three hundred people in this country and i think over seven thousand internationally so that that leads to enough investigative october st two thousand and fifteen to having been a longstanding consumer of child pornography for three to four years before that time which is to say at the latest he started consuming child pornography what would be a passive and i thought passive meant that he wasn't out in there trading at him talking about him trying to acquire it he's just going to the readily available source and downloading i don't think there's anything in this court case law that suggests that your honor i mean when we win and it should be noted this court has never found the outrageous government conduct to apply to anybody under any circumstances and to my knowledge i think only two circuit courts in the entire history of federal jurisprudence under any circumstances that doubt it to apply but i think all it looks at is whether or not active as opposed to what you're doing with the image i don't i mean i don't know that the d o j has a particular definition i mean mr public has identified not by the amount of time he was spending on the web site by the fact that he was going to one of the particularly bad parts of the website but i think under this court case law the evidence supports the conclusion mr public has an active consumer given that he was consuming the stuff for years before he and that he was a member of the playpen website before the f for even got on the radar screen and certainly before the f b i took it over souter and all the rd party victims in determining whether this is proper government conduct you know every time the images in the  additional charge for that isn't the government also participating in that i mean i understand the court's concern and at st blush it certainly gave me pause too but i think the sort of scope of the problem is what led to this particular operation which i know is different probably than other operations the f b i that run this website was one of the largest collections of child pornography i think that the investigators had seen on the internet and given the city the sophistication of dark web technology the store software people can view it essential anonymously and even when the f b i found this computer found the server that was hosting this web site they still couldn't identify the people who were consuming the child pornography and they couldn't identify the people who were producing new child pornography so in all the cases that have addressed this whether the government acted properly or not have they addressed the issue of rd party victim your honor due to my knowledge the only from the th in d c circuit has found that the government it is the government's burden to prove that each child is real and so i will concede i think that based on his rule twenty nine dollars motion he has preserved that under the typical sufficiency standard context of this other computer images ok certainly your honor so this court standard just to step back doesn't require expert testimony to prove that the children depicted are real but it needs something well i mean what this court has found in mcneil is that the jury can when viewing an image the images can effectively self authenticate and where there's nothing else in the really reliable in and i understand that in previous terrorists but the technology has gotten so good now that it's very hard for people to tell you know even certain photoshopping without forensic and so you're just saying jury lay person juries when they're looking at really offensive images can tell right away whether or not they're real or virtual in this day and age when virtual is so realistic i'm sure there are a host of images where that is the case i haven't had to view the images myself the jury viewed them there's nothing about these images that suggest they  anything than what they were charged me which is pretty besant girls involved in sexualized situations that it's also worth noting your honor i think that the government done a great deal more evidence about these images in i appreciate that special agent al for these exhibits its government exhibits thirty nine and forty and forty three in point and i'm happy to talk about i think his testimony about these particular images i mean he's talking about governance unequivocally state that every image the jury had seen and she was the last witness so the government put on all of its evidence all the count one images all the count two images that issue all the rule for four be evidence she says that she's asked i'm asking you in what you want covered here do you know how many images are or how many are virtual versus how many are actually identified children answer none of the images that we have seen in this courtroom are virtual images and you know that for a fact yes ok yes those are all real children that i don't believe so your honor in because the application i mean if that application that applied to every situation then the attempt part of the actual sentencing guidelines would be rendered militant because that application note indicates that essentially anything that is destroyed within back a temporary is a rest period cannot necessary is not going to necessarily lead to an obstruction hanson unless it inhibits the investigation in some way but i don't believe it applies in a situation where there's been  program it's called the band and what it does is it doesn't just delete programs it wipes a hard drive in the hard drive containing hundreds of damages of child pornography used as powerful evidence against him that that time he knew the f b i was searching his house was looking for  child pornography so he downloads it and he's looking on the internet for how to run this particular program and as dr aids indicated to run this program somebody needs some sort of external device to install it on so that they can boot their computer from that device he indicated specially wilkerson that he was lucky he looked at wiping his hard drive but he couldn't do it because of a lack of a drug i don't eat his or credit for being unsuccessful i don't think anything the guidelines suggest that somebody who goes this far along the path of wiping out a hard drive the can't do so because of a possibility rather than some moral sense of what he should do there's nothing the record suggesting he could have gotten a thumb drive he was in mid winter i'm not sure where he was but there's nothing suggesting he could have done that treatment i certainly have trouble getting my hands on one in my office i don't know in his office if one was readily available the record is absolutely silent on that and this is i think a lot like situations in cases to which i cited my brief for molly in flores where all a party did was call an acquaintance and ask them to delete contents of social media or a digital device and the th circuit in the th circuit found that that was sufficient  the criminal activity at issue and that's not the standard the outrageous government conduct field now this court has has viewed predisposition as being something that weighs against permitting the outrageous government conduct offense but the the lynch for this court's analysis of the outrageous government conduct front is whether or not the defendant is an active versus passive participant where someone has been a passive participant this court has indicated that he defense is  and as i mentioned previously that's what mr potluck was here but i'd like to address some of the merits i mean i don't think the court needs to reach any of the merits past that given that this court has been unequivocal that where someone doesn't a matter of finding a an existing child pornography dark web website that is running that you have access to is very rare dated the site i think would absolutely be different if they created the website absolutely  behavior that would pose a closer question than the court faces here today i believe that the government's focus on every discussion of conduct is misguided it keeps the government keeps telling its core that the linchpin is whether or not the defendant was passive or active and i submit to this core that the linchpin is the government conduct that's the question we have to look at now this court has a rule or has and pass applied the idea that if the defendant participation is more than passive then he doesn't get to prevail under the outrageous government conduct but the supreme court has distinguished that outrageous government conduct has to do with the conduct of the government and has in russell specifically distinguished outrageous government conduct from the idea of entrapment or you have to look at the predisposition of the defendant and i would assert that because  f the rd party victims in this case and because the government violated the law it just doesn't seem that they specifically by lated the law they distributed potentially millions of images of  child pornography our client would have been indicted our client would be looking at thirty years maybe life probably life if they had distributed the number of images that the government distributed distributed in this case that's what they did my client had a work computer and he looked he logged into the website i don't understand why he got prosecuted i understand that but what the government did in this case is the equivalent of letting daniel noriega get run free this was the biggest web site we've seen of this material let him run free so they can get people who are using the drugs on the corner in catch as many of them as they can that's exactly what they did in this case context but not year can you explain that a little bit absolutely in a drug case that title twenty one section eight hundred and eighty five i believe allows the government to use drugs possess them do control deliver are you know if you're dealing with something like guns and it's not it wouldn't necessarily be illegal for the government to possess the firearms that got sold it would be illegal for the person who's getting by them so i'm not aware of other areas but that sounds familiar like that that might have been raised at some point in the in the district court pleadings in any event it's the government's conduct that's the linchpin and it's i don't i'm not aware of any of the cases in this court where the the conduct what they actually did object to plea meets his two criteria is where the government continued to victimize children in the government that violated the law for twenty two weeks violated the law to the extent that if they were not steps that had to be accomplished i kept trying to get there and i didn't and that same page is record and record on appeal pages seven hundred and forty nine three thousand seven hundred and thirty four he identifies seven steps time has expired now and of course you