issues the substantive appeal issues in each of the two areas and also some booker issues i think that in the first area in the telecommunications area i think there's an overlap with regard to booker issues as well and in sitting down and trying to think about this   which i don't know whether the court wants me to read it or not but they do concede that the matter should go back to the district court for re sentencing reason not spend time with yes or maybe i should go through the substantive issues first of all with regard to the telecommunications issues there is a problem the jury did not hear their last amount with regard to  count number three this matter should also go back to the court i don't know if sentencing if you are yes or if the sentencing issue it may also be  possible substantive issue basically i have trouble with your sufficiency of evidence arguments those are the big substantive issues that could walk your guy out and i sort of didn't get it from the brief it looked like there was enough so yes let me go to count number three and the reason why i think there was a sufficiency of evidence issue is because there is an accusation that telecommunications services war taken from world com they get involved in all of this testimony but basically the way i read it is capability to activate ask and so on the back of cell phones because we're not allowed to bring phones in or at least in most just records i can't show you but it is a you can see it on your cell phone it has a built in unique metal piece if you have the proper coding you can go into that yes and and hook up your telephone to a particular phone with count number i believe it was three count number four said he is in possession of fifteen or more phones with the intent to hope peace phones up the fact of the matter was when the police went into the house none of the phones were hooked up and all there were were just yes and the were under the jackson test for any reasonable purchase and i'm thinking why does this guy have sixty nine cell phones in this house why does he have a bunch of account documents that are not in his name why does he have a script for getting a u got a customer physically your honor he cannot initialise those phones on the less he has access and according to the testimony given by the second person from world com unless he has access to see a p c and they will go ahead and hook those phones up i don't think that was made clear in the testimony and have evidence of an inordinate number of took off from his connection but with a different phone company not this phone company not world com and out was what he was on trial for was world com your honor and there's no evidence of any sort of world com hooker he admitted and in fact after he'd been taken into custody and taken down to the police department he admitted to one of the officers there was an officer harrison or there who was a computer specialist from the santa clara sheriff's department he admitted yes i've lit up some phones before but he did not say he lit up the worldcom phone and that's what's missing there judge that's with regard to count three with regard to account for the issue is fifteen or more phones yes he had fifteen or more phones what they were to be used for that maybe up to the jury but count three is not there judge count fo four was coupled up with a fraud count and i don't think sufficient evidence was given to show any sort of a fraud charge in this matter are the jury issues of course were a couple of additional ones with your whole book or type issues there was a claim that something slightly over thirty thousand dollars was attributable to his activity as to counts three and four well we have since learned that and i to argue that in the brief that these are issues that have to be determined by the jury  also with regard to that's with regard to lawson under the old or the sentencing guidelines or also there is an argument that was made that the thirty thousand something or other was four months old out of the circuit as to whether the judge should have found that amount the thing that most concerns me in this case really has to do with counts one and two the possession of a gun and ammunition mr copley are always taken into custody of approximately twelve twenty in the afternoon a number of police officers go into his house and searched through various things apparently also searched through a backpack with his name on yes or with his name on it no doubt about it the beer can and numerous items inside the backpack numerous items inside the backpack that to recur beautiful to him no doubt about it and he says he didn't know anything about that backpack he says he didn't know anything about the backpack  the issue is this the gun first of all there's a stipulation that the gun was stolen secondly there's a stipulation that there are no prints on the gun or on the b magazine there was no evidence as to whether or not the magazine was printed the tech representative from the watsonville police that usually you you print on the back all that does for me is to say that if a jury said they had a reasonable doubt i wouldn't say the jury was not you know arguing things that could establish a reasonable doubt maybe somebody planted the gun funniest fingerprints are now on the magazine those magazines have smooth metal you get good  right you and i we've all handled magazines but it's seems like it's just an argument that a reasonable jury could find a reasonable doubt not that any reasonable juror would have to well there was evidence that the backpack was gone through that a group of police officers went into the house at approximately one o'clock officer hertz there was one of the officers who was in the house has an addition to my officer hertz there is in the house at one o'clock was there any discussion did any of the officer say hey i found the gun there was no discussion whatsoever one during the period at one o'clock by any of the officers that they found the gun to during the questioning of mr karr by arrow at two o'clock or three o'clock when he was taken to the police department and the gun shows up first when the tech goes into that about six twenty in the afternoon and the tech spends all of about five minutes before she circles in and finds the gun in the front a gun at six o'clock either the officers were strangely sloppy or something had happened i don't know judge but that was the thing in doing this that first struck my attention and you know i jury and and probably hero takes the stand and says that's not my backpack i'm not listening to anything else he has to say about that night the gun your honor and he was also later seen saying a reasonable juror hearing him say that's not my backpack and it's got his name on it and all of the stuff inside it might say you know well i'm not going to believe the rest of what  say about this i'm not going to believe it when he says he didn't doesn't know how that gun got in there i think the jurors had a lot of questions and that's evident by the number of jury questions that went back and forth that are part of  the record that i submitted i think that was a real issue for them and i think that if the police officers went through a backpack they would have found the gun at one thirty or two o'clock and not six o'clock so what are you inferring the police put it there i don't know i have no idea your honor but i think that's a very reasonable possibly a reasonable assumption i get this also have to assume that the police planted that magazine if you'd been through all this i you know i i think that issue is probably pretty much been been addressed i was really clever of the police to plan a bill from a record club well no that not the issue as to the other items the really the only issue is the gun makes it his backpack well it can be his backpack but it may not be as gun your honor but why would he say it was you may want to save a little time for thank you judge sentence had the court understood that the guidelines were now advisory so i think we're going to thank you i just want to make that clear for the record with respect to a couple other points i'd like to clarify with respect to the efficiency arguments defense we software or the software was to go into that particular best to light up phones on that world from world com and other words there were many different kinds of cell phones that were found in his house i think actually  found in his house was a password and a sixty eight number that were you know appropriated or at least being used on authorize use of those particular passport and the user name to enter the national order entry system to access customer information the customer information was already in existence on the software because these individuals had already activated one cell phone line the world com employee mr ganns has testified that additional phone lines could be activated once you accessed that site so that what the defendant did here was actually accessed the site and based on the evidence that we found in his in his condo they are by  accessed that site called up the information and then entered in the what's called the yes an electronic serial number which is located on the back of the phone once that happens he enters that number into the end it automatically used personal information that he had appropriated from her his cell security number her birth certificate some bank statements in order to activate phones in her name and she had received and actually to charge phone calls to her name clear that as the court stated that the when the police executed the search at six pm they found the backpack on the counter in the backpack they found which of course was cancelled with the defendant's initials of his nickname they found mail matter addressed to him including a probation letter they found the palm pilot cover which matched the palm pilot that was upstairs in his walk in next to his computer charging at the time they're executing the search found a binder in the in the backpack which contained that information that his girlfriend had claimed i had been appropriate misappropriated from her including her cell security number and also bank statements of hers they also found they also found probably most interestingly undeveloped film in his in his dining room next to his kitchen when he developed the film they had a picture of the kitchen which included the backpack in the same location on the counter as it was when they executed the search and at that time in the backpack according to the photograph there were  cell phones brand new cell phones that were sticking out of it and those were cell phones matched cell phones that they found in other parts of the apartment that belonged to or they were attributed to mr cavalera later on so the backpack and clearly ben it was some period of time in addition there was of course evidence that he was alone in the house at the time they executed the search and any time they arrested him and that the backpack had not moved from the counter i just want to  one point that counsel raised about the search there was testimony that the officers had approached the backpack part of the time they got the search warrant it is no testimony and that includes mr hertz for his testimony to the court looks more carefully at it than anyone had actually gone through the pa weapons off for testing and the response he said yes and then after the prosecutor asked him a question about whether or not he had his own crime or give me after speaking with  did he know whether or not there are any positive results and the officer testified that he had never heard of any positive results the objection to that below was hearsay objection the question presented this court is really whether or not the officer was qualified as an expert to offer such hearsay testimony i think it is debatable as to whether or not that response itself is hearsay it's a matter i mean can offer here state but he can rely on hearsay in forming an opinion that's correct your honor and i think that under this court's case in kristoff the court recognized earlier that certainly agents for the certain skilled experts that are allowed to testify in that case to the fact that there were only fingerprints taken off ten percent of weapons i think this case i just for exposing the basis on which the expert formed an opinion i think that's correct your honor i think you've got an admonition like that but i still don't understand why it matters well it doesn't matter in the big picture your honor because it's so clearly harmless in this watsonville evidence expert went in it was six o'clock and h twenty years old was is otherwise known as nine fifty three of the thought that was just a gift to you they had such an easy solid case and then they have this expert bloviating way beyond what's necessary to win it and that enable you to punch some holes that struck me your only chance in this you're overdoing it with the expert actually not just as i think the real question is and what perhaps should be looked at more carefully is there was all this effort made with regard to the bullets and the it may be a brady issue is whether or not the magazine itself was printed and of course for experts will tell you the magazine actually that's what i meant the experts falling all over himself to say all the no prints doesn't mean a thing you don't get prints from guns and almost all cases and that of course the magazine smoove you can get prints room well clean a gun it's hard to keep the prints off the  your honor of the the magazine wasn't put into evidence and there was no evidence as to prints on the magazine and i don't know what the evidence would have been with regard to prints on the magazine  yes there was a magazine your honor inside the magazine where the bullets and then there was the weapon itself in well that's that's the trial of shoot the gun you know it was shown to have been stolen from some place in the in the several valley there was a strip elation however that my client or the other gentleman in the house did not steal down