a number of occasions to prove knowing possession of illicit or unlawful materials found within the property that is especially true in the context of computers which may have thousands millions billions of files many if not have sufficient evidence of knowing possession to stablish either receipt or control and that is under several of the factors that have been considered by this court in determining whether files are knowingly possessed by a dependent in the estate of one of those factors there's a number of factors and they all get to this question of whether the senate knew of the files but they go through some of the relevant factors in consideration that this court is considering the past it's whether the files at issue are readily uniquely or obviously available to the defendant whether the pot whether there is evidence that the defendant was actually involved in the creation or accessing the files at any point in time and whether the defendant had a history of you did utilizing accessing websites of this sort or pen pals we're what cases do you get those factors from well if you look at some of the case ground and then through our own research we find miller and koreans which appear to be rather on point already disagree that there are well i think they're on point in the sense that they are considering similar issues but i think under all of these cases and that includes morally knowledge of the particular materials that were found and all the factors that are considered in these top monogamy cases in cook involving pewters are really addressing that particular question but i want to sort of spelling out a situation where you're saying that the government hasn't ruled out every possible possible conclusion that the defendant is is back kilty and especially in circumstantial cases which of this is strictly a circumstantial case built in one pillar upon the other and it's true there may be situations where a jury could say this defendant was not guilty but was it unreasonable for a jury a juror to vote that there's sufficient case and no i'm not your honor and i don't wish to make that the point this is not a situation in which i'm arguing that that prosecution must necessarily exclude every possible option by which them ip and other alternative explanation but what the prosecution must do and this is  hed by cases again ranging from you know the cases we were just discussing if police come can put the actual cases property ownership alone is not sufficient to prove that the defendant had knowledge of everything that was within the property and that was again the gun was in the brought back of the why why why why would we talk about guns when we have two presidential opinions involving child pornography and technology that's what we can absolutely discuss it because the link between the defendant and knowledge of the particular material you know maybe there's a link here in the sense that mr miller owned the laptop is in question right quite right that is exactly the link and that is we don't know whether maybe someone else in his he was rooming with others maybe piece that what is the case here is what this court is under consideration is whether there was actually any evidence sufficient evidence linking showing that mr miller actually knew of or had any involvement with the actual file that with the puter and about it i asked the question about the is also an actual image list and an animated image this nose appear appendix three twenty one to thirty three your honor thank you you know you're quite welcome your honor and i've been going into those file systems that is one of the pieces of evidence here that is relevant in this consideration you look at those files and it back t directories under which they are listed and nothing in their names nothing in the directory systems in which they are embedded suggests that they are child pornography rather than names themselves but rather random combinations of letters and an allocated space many of them more and that's my next point your honor that is an allocated space is something in which an area of the computer in which temporary deleted files are stored they do not even appear in the directory system and they are inaccessible to a standard user without special software added they get into  can be two ways generally as far as my understanding which is one you can in fact if somebody happens to or a program that is running on the computer happens to come across it down to a photo of this type and automatically download a temporary version of it doesn't matter whether it's seen by the user or not it may get put in this an allocated space the other way in the more common way i suppose for most people is if there is something to download it on the computer and then delete it either by user action or by the operation of the system it goes into that couldn't it have been in terms of somebody deleting it in fact that they had seen sprinkle in possession of in viewing child pornography on his own computer correct i believe was defined as top pornography in the closing statement your honor i'm not sure if it was in the testimony itself yes or eight but the appendix citation attached to that i don't see any support for that can you point to where either roommate testified that sprinkle possessed or viewed child pornography know that and that it was not described as child question here of whether mr sprinkle is or was not responsible for the images within mr miller's computer necessarily that is merely to show that there is there was no evidence really insufficient evidence that mr miller was and this is actually confirmed by a point going to your point judge to record with respect to who created this pornography and how did it end up on the hard drive and there was really insufficient evidence in this case that the hard drive on which these files were downloaded was in fact the same hard drive that was in mr miller's laptop at the time the government alleges that these files were created and this is clear from a few pieces of evidence that a reference in the brief that made this point was a drawn out enough which is why i want to bring it up here and that is starting with the detective baker's testimony he was a gentleman who did the forensic analysis on the laptop who pulled the hard drive from the laptop he acknowledged upon questioning this is at page sixty five of the appendix that he was unsure whether the hard drive he pulled from the laptop was the same one that had been in the laptop throughout mr miller ownership of it and he said he had not tested it even though he could have to see whether it's been replaced or refurbished that is important because if you go forward to mr course testimony ryan course testimony that says mr miller's roommate he said and this is appendix eighty eight of his testimony laptop that in two thousand and thirteen early to mid mr miller had experienced a hard drive malfunction in his laptop he had at that point submitted the laptop to a warranty center which replaced the hard drive in two thousand thirteen sent it back to mr miller who used it for a number of months before he got a desktop which became his primary computer system this evidence this testimony is corroborated been confirmed by records of internet usage actually introduced by the government this appears at three forty five of the appendix internet history this is mr miller's internet usage and it starts in may two thousand and thirteen and it ends in late may or june two thousand and thirteen so here we have all of this happens not only suggest but in mind confirms that in two thousand and thirteen the hard drive was replaced mr miller then started using it for a few months at which time he got a new computer and it's all important because the the government itself will have is that the downloads in this case the files were downloaded from two thousand and eight to two thousand and thirteen meaning that the hard drive on which those files are downloaded was not even the mr miller's laptop when these haas were downloaded and then the question becomes whether he can be shown to have accessed or known those of those files after that and there is really no evidence that he did so no evidence that he had or access the piles no evidence that he should have known about the piles and that is really of compelling evidence that the evidence here was plainly insufficient the fact that they never saw them locked up outside of mr miller presents doesn't mean that mr miller had any involvement or knew about all the files on that particularly since he hadn't been using the laptop and that's one contradicted evidence after two thousand and thirteen it had been basically in a closet at that point they never saw him with it but they also just they never said that they didn't know that he had nobody else use it in fact he admitted everybody went in and out of room there were no locks on the door people could have access the laptop josh but i never ever saw anyone in his bedroom without mr miller's it was there i think i was a test mode but they also clarified that they did not know whether anybody could have gone in there people were inside and outside the apartment one that's good but they said they'd never witnessed anyone that was a or they were just a billet was not present certainly but again they so that so that we have a jury question here well there was no jury question here i cri with that your honor this should not have been submitted to the jury the judgment of acquittal had been granted at the close of the government's case and she should have been granted their outer and at the very least a judgment of acqu afterward and that judgment should not be reversed by this court but there are there other billet factors to support the verdict arthur i mean if we go but i guess it's kind of interesting i think is that some of these miller factors don't really help us with possession exactly most of them go to they don't answer the who the answer the what exactly but so really the who comes down who to ship that's that's really all the government had here it's the government's cho this is mr miller's computer and you won't hear any testimony that his roommates were in the habit of you know borrowing or you know otherwise jumping on his computer and doing this as they really were isn't that sort of no clear evidence that nobody else had access to the laptop at all in fact and again while mr miller was out of the apartment while those other might whatever i guess whatever to follow up on judge college position it's it you've heard the adage possession is nine tenths of the law your argument here seems to be possession is one tenth of the law no your honor it is a get possession i mean it's his computer he owns it that's where the the child pornography was found understood your honor and i i saw it as a trial judge and you certainly see it in your line of work people get convicted every day of the week on purely circumstantial cases do they not exactly and their act there's a jury instruction as i recall that i was thought it was interesting he model jury instructions the judge tells the jurors that circumstantial evidence is no less important or valuable than direct evidence right even better does your client doesn't want to come at this quite true your honor that is if indeed whatsoever that in fact mr miller even had access to the hard drive while these piles of quit on it so then the question becomes how would he have known that these files were on it given where they were in the unallocated space these subdirectories within subdirectories there was no evidence that he had any idea or even should have for instance that any idea that these files are present and i think that's really a distinguishing characteristic and that shows why there is something needed beyond mere ownership ownership of a computer as if i was going to purchase a computer from best buy i would not know of all the files on it now i would not do an investigation of it myself and i could not be helped criminally liable if there happened to be illicit files on there unless i went on there found them and kept them nonetheless here we don't have any evidence that the dependent mr miller actually knew of these files looked at these  evidence that the defendant had access the files created the files used the programs that were used to create the files nothing of that sort here all we have is again ownership and that has been said to be insufficient and it's clearly insufficient in this case thank  of sorry to begin this way with a chastisement that speaking i can't speak for my colleagues but i i'm sort of shocked and frankly disappointed the government you know you cite fritz right in your brief that's a not precedential reason i focused on one cases like winning the military or from another circuit prince was more because they seem to go directly to the issues that were raised by mr saunders and in his brief as to what establishes that there may be a sufficient basis for a jury to find knowing possession when you're talking about a situation where in his case he's arguing there is access by other individuals for it's goes directly to that does that mean the united states isn't doing its own independent research it's just seeing what the blue brief says and then you know on iran there is not a time that i don't prepare whole argument or attended that i don't have certain regrets about the way things were handled i clearly have regrets about the way this was was briefed here but i am a firm believer in the fact that when you're responding to arguments that are raised by the other side to keep the issues focused on what it is that they're trying to raise and it appeared to me and mr sorenson we brazing on behalf of his client primary argument that someone else could have done this and so i honed in on on cases that went to the question of whether someone else could have been responsible i do know that in the linearity case which it admitted leads is also non presidential it does reference factors that go to possession such as knowing possession whether images were found on the defendant's computer which is an ownership question that was that was just addressed the number of images that were found and hitting the terms of legal standards should we be applying the bill or factors or are no you know we had not seated five factors in that case well sure to the extent that they're found to apply in the circumstances here and to the extent that they don't necessarily speak to the specifics here of allegations that it was josh frankel that did this or looking at what the specific facts of the case where the new you look behind that course and you know getting getting to the point that  i want to make here which is what standard is before this court at this point and i think the judge has your honour's have recognized that here is that you know it's not enough to show that there is just another theory has to who with there is the ownership of the computer certainly and that is a huge factor there is also the fact that you know when we look at knowing it there are some of the file names of some of things that were being downloaded at a time when he was for the child pornography that was the basis of count one yes the examples that were given by detective baker were unallocated space so there's no dates attached to those however or the count to the obscenity some of the videos they were not and on allocated space they were there in the computer they had a lot of of asian symbols as far as their file names but then there were other files downloaded or fragments of files downloading or downloaded on over in november  thirteen that had names attached to them that clearly involved under aged depicted depictions of underage sexual conduct so you have that which was an allocated space sitting there on the computer easily accessible one of those factors you if you want to get into know kone there there is the connection that was drawn it brought law enforcement to this location and that is that someone using the term no pony had accessed website a was accessing child pornography they track that to this location they go to the location they conduct a search of the location they find mr miller mr miller who is an  acknowledged and admitted boney no pony is a term that is used amongst those in the community with reference to a specific animated show and the only child pornography that they find as a result of the search is on his computer computer that was in the bottom of his his closet that he did not acknowledge was his when he was asked by the special agent what electronics here belong to you and he names a desktop computer and a tablet doesn't mention the the laptop that can be looked at as evidence of consciousness of guilt which is more than just possession or more than just ownership and so you have long horsemeat that finds out someone in this in part apartment using a my little pony term is accessing child pornography on the internet they conduct a search they find mr miller's computer in his room they find on that search terms that i a thirteen that had been removed well i know that there was some testimony that one of the witnesses believed that that had been done b i believe there is testimony from detective baker that he didn't find any evidence consistent with the fact that this was a hard drive that was different from that which came with the original computer the dates of the data manufacture the hard drive a certain testified to as well as records that would have been stored on the hard drive as i understand it as to exactly when the operating system was first booted up and t fourteen that would all could all be taken as being consistent with the fact that there wasn't actually a hard drive replacement despite my own core believing that there was so i think that while there may be evidence on the record that there are three minutes to dispute the yes i have solution hard drive replace with absolutely and so again that goes to their argument well it could have been someone else it could it could have been but that's not the standard that is used on the sufficiency of the evidence you challenge before th is it possible to distinguish the evidence with respect to the convictions on possession and receipt where the evidence covers receipt as well i think i think to the extent that the evidence covers  the and the government's really takes the position that it is sufficient to prove possession that it would have had to have been received at some point as a result of that it doesn't just when we did not charge him with creating this we do not believe that he created the child pornography that was found on the computer where the obscenity materials so receipt would necessarily follow from that and again we believe the evidence is sufficient to the hard drive to shoot first if you would absolutely or offer i think that's a critical point in this particular case and i think it's critical because the argument i just heard was that there was evidence to show that the hard drive was the same one in the laptop the entire time that drive had been not replaced not refer to it and then again you get to the testimony of ryan cor you have affirmative testimony wasn't i believe it was i know in two thousand and thirteen at this hard drive was a place i saw your place i saw it come back to mr miller and then you what exactly does that mean does it mean that when the hard drive was replaced it came back cleaner and we really know what was on the you know i think i don't know if there are any for showing here my lack of knowledge about what happens with so we should the hard drive though if you get ripley's you know both your honor but i can explain the best i know and based on the evidence that was presented i think we do know and by the government's own confession and statement they argue in their forensic report establishes and that's on page two sixty two of the appendix that says that these images these anime images the videos were put on this particular hard drive from two thousand and eight to two thousand and thirteen up before not after now there are some disputes over the date and there was testimony that they confirms that he didn't have that hard right beforehand and what that shows is that when that hard drive came back from the warranty center it had not been scrubbed properly it is not the cleaned up all files that had been referred first and then placed within mr miller's computer at which time it contained these files already to get to your point just a request that is why this is a receipt is completely issue in this case he did not receive these files they were on the hard drive when he got and he could not be found to possess the files unless he actually knew of the files when they were in that computer and there is no evidence in the record that he ever access to any of these files and in fact detective baker said that there was no way from the files to the loan to tell that mr miller had accessed them that is an absence of evidence and insufficient evidence and you get some of the other points that were mr ruby with respect to no pony that was that was a reference that was of course the suspicious web site activity that prompted the investigation it's interesting though that when they came to the apartment mr miller was completely forthright in acknowledging which computers he was would any allow the search that found the laptop and on the laptop was found no evidence as the prosecution acknowledged that mr miller had ever been linked to that name that he had ever used that account that he had ever accesses vicious activity websites of any sort again  absence of evidence at all that mr miller had any guilty conscious or had ever accessed any inappropriate materials whatsoever and at that point the only question is whether there was any other evidence that mr miller had accessed these files or knew about