so appreciate mr i'm not speaking of myself to be candid with which you responded to the one issue and recognizing that in bringing that up on your own it's well part of this is very is totally consistent with my image of your professionalism but it's argument i don't think i can get the internet yes it was attached five photographs cracked that's correct your honor that that's right i'd like to just make a housekeeping request if i could and that is given the number of arguments that we're going to have today i ask that i be allowed to respond to each defense argument after it's completed rather than having the defendants argue one after another and then they respond to off my part once i've spoken to defense counsel and they have no objection to that that which is the foreign intelligence surveillance act and it was created for the sole purpose of intercepting information exchange between agents of foreign lands foreign powers that might impact on the security the united states a lot of case law that's evolved over time and that and the primary purpose task was replaced with a significant purpose that's exactly right rose going to point that out because that that's a significant part of my conversation with you all this afternoon  after the patriot act was initiated the significant purpose test was substituted for the primary purpose that but still the focus of pfizer was the same which was gathering of intelligence information from agents and foreign foreign countries as it relates to the security the united states the process by which this this is act works is much different from a classic title three surveillance application or the securing of a search warrant with the normal fourth amendment guidelines we see a situation where the the government provides certifications to the files of court unlike affidavits and supporting information as you would in the traditional search warrant the foreign intelligence as relates to the security of the country and there is a probable cause requirement and yes the risks and the requirement for international determination before they can take any have that's exactly right but there's a difference in the quality of the  and the quality of the information that's that's presented to the pfizer judge as opposed to a judge reviewing a search warrant judge reviewing a search warrants going to get information regarding the affiant of his background information all the facts and circumstances surrounding the request for the search warrant and these things are going to be proud provided to the judge who will then rule on that and significantly once that war is issued and that issue over that warrant if it comes in controversy there's a franks procedure where you can grafted on by the court threw out the text the fourth amendment i stood it with if i take that position i'd be ignoring the purpose of pfizer pfizer is purely a process to gather intelligence information not criminal that not evidence for criminality that many times a collateral benefit if you will of a pfizer application a pfizer war is information is generated about criminal activity and that is the issue that i think we need to address here because that that goes right to the issues of the fourth amendment are you and you are asking for us to hold the pfizer this aspect is unconstitutional on its face correct yes ma'am and we are not actions to to reach constitutional issues if we if there can be avoided isn't there a harmless error aspect to this given the very limited nature of the evidence of this act that pfizer procured evidence that was actually used here assuming we now have all of that evidence that's one of the oh that's one of the observations i've seen made over the years that a particular item of evidence was heart was in effect harmless i don't know i have to take yes ma'am one asking whether they had the i forget the name of it but a certain volume of lectures another one having to do with the question of how well you know the informant and then we have some pictures which are depictions of what we know from the evidence occurred so i'm just wondering what in this case that supports that proposition so i'm to understand but still i want to go back to the issues as presented by pfizer as a relates to the use of this gather information with the significant purpose to gather it foreign intelligence information and you happen upon criminal or criminal evidence and i think that that's the distinction i think is important but if the if the government pursues in good faith intelligence under the fison procedure why isn't to satisfy the fourth amendment if they're using it for some other purpose than perhaps a fourth amendment might be implicated while i think the we have to remember what pfizer is all about which is gathering intelligence information from foreign foreign powers as it implicates or our security that's a totally different process as the warrant would be under leone situation good faith exception as relates the x account simple one because a preliminary there are different standards which allow those warrants to be issued but i think the whole point is a government officer reasonably relies upon something believing it lawful in both contexts i just i don't see the distinction who do hope purpose of leon saying that the turnt value of the theoretically have that opportunity under fire as as amended you still have the lay of the leon problem but you don't know you have a leon problem in terms of good faith and to look beyond what happened to determine whether or not was actually a good faith mistake or in fact it was something more sinister to it and i think our inability to get beyond that with pfizer generated warrants and information under secure under five a puts us in a position where the fourth amendment analysis would necessarily fit because we always go beyond those affidavits and look at who said what about two and test it in a hearing in a frank style hearing but the fourth phase information you're stuck with that you can't get beyond that i mean that could be used if you were right that could be judicial problem with phrasing was not the absence of a frank opportunity to get behind the affidavit intends for good faith but there was a fundamental flaw in the construct itself as amended by the patriot act because of what it did to the  are situations where are extreme for instance the abu jihad case where a young young man in the navy transmitted information on the movement of a carrier battle group to the persian gulf and that was a classic situation where phase intercepts were particularly appropriate but they were looking to establish as clearly probable cause to determine whether or not this information was these of all under fives and it clearly was because the safety of all these navy ships was at risk well that was a matter of though the argument could be could be made i mean nothing quote unquote happened here but could have and who's to say you know monday morning you know what was or wasn't something that was a very real threat i think the distinction urged us upon a course of distinction between probable cause to secure intelligence and probable cause to sic evidence of a crime and i think the process are different the tests are different the defendant's ability to test the efficacy of the supporting documents is that from the article two section one i guess is the president's powers into a situation where you're only looking for criminal activity or primarily looking for kind of like to be the person who has to control and keith would suggest any kind of special circumstance and they arise out of security concerns are not sufficient to write the work requirement that's where you are yes you have you have no no cases to support  you your honor there is no reason the defense have presented no good reason for this court to disagree with every single federal judge who's looked at the constitutionality of convened and and that they had to address a number of issues they're going to whether or not the government complied with the requirements of pfizer in that case there's no such challenge here the defendants did raise a challenge whether there was compliance in the district court they've because the primary purpose right test has been has been substituted with the with the significant purpose test and there is two other courts of appeals that have passed on the fourth amendment issue  circuit case and there isn't of course the unanimous opinions of the courts of appeals that looked at pre two thousand and one fison that they addressed similar challenges to the statute but not taking into account the primary purpose test  but tell us tell us why the fourth amendment there's no fourth amendment violation that certainly your honor and of course i if the if the if you have any questions about why this court need not address that because of harmless error and and and the crawl we honestly i'd like to address that as well but the reason is this your honor when the government conducts electronic surveillance to tame information about matters touching on foreign relations and possible attacks by foreign powers the fourth amendment imposes a different requirements and i would submit lesser requirements on electronic surveillance than is required in the traditional law enforcement context and  entirely warrantless eavesdropping in order to obtain foreign intelligence information and the majority and the tanko said even in that situation where there was no judicial powers to have national security as opposed to have a new criminal purposes which is what we have right now what we have here your honor is a certification by high level executive officials that there is a significant purpose to the interception and what we have under five hundred isn't even provides that the significant purpose is the gathering of foreign intelligence information that the government has to certify to that make those certifications t pfizer court and the five the court then has the authority to go behind those certifications and make sure that they are accurate in re sealed case a case by the pfizer court of review which binds all the pfizer appeals very different than a typical search warrant that's issued in a criminal case that might only be reviewed by a local magistrate but but but in the fall is a context that follows the judge can can go beyond the certifications of the executive officials to determine whether or not there is a bona fide non criminal purpose to the interceptions a significant bonafide purpose and if there is that significant bona those as as the courts of appeals that have looked at post patriot act pfizer have said particularly in real see see a case which i think is the most expansive treatment of this issue each one of the components of the fourth amendment work requirement are satisfied i don't think there's any dispute that in article three pfizer judge is a neutral and detached magistrate there is a probable cause component the probable cause component is that that th pfizer judge has to make a determination that the interception is going to be made of a foreign power which can a clued terrorist organizations and must also make a determination that the interceptions are going to take place on a telephone facility at which foreign intelligence information which is the find and that's that's a different problem because requirement then is the norm under the fourth amendment usually it's probable cause that that a crimes being committed here it's just an association a probable cause to believe there is an association not probable cause to believe a crime is committed so how do we how do we say that this satisfies have a look on because your honor because the taiko and and the united states versus u s district court supreme court opinion say that when you're looking at ford's intelligence information the information that the executive needs not necessarily to prosecute criminal defendants but to conduct right when relations and to prevent espionage happen is not a distinction not not your honor and it's not for the reason explained by in re sealed case and adopted by the second circuit in of a jihad and the explanation is this congress in the patriot act went back and looked at five and intelligence side that was something that the world was perhaps an overreaction to to some judicial decision perhaps from really teeth but you could you could approach the problem of a domestic versus in criminal said and that's what happened here your honor the fall is the application of the certifications from from you know this is a certification that has to be approved by the attorney general it has to be approved by people in the national security establishment and they have to certify that there is a legitimate bona fide foreign intelligence purpose to the interceptions now what congress decided was even if there is also some purpose to gather evidence to thwart a crime that doesn't mean that that the fourth amendment should impose the same requirements that imposes on a purely criminal investigation and the reason for that is twofold one is early on in the exactly that kind of consideration that allowed for the government to obtain evidence based upon its ability to do so under the foreign intelligence need and when it then looked like this was getting criminal there was nothing to say that the criminal prosecution could not go forward could it simply that point and was very clear this written i dish no protections were were allowed and yet i'm not sure that i understand the difference that you look into in your problem is do you ever have a situation  realistically where you have one without the other and that is the same as me you always have a situation where investigation into the domestic activity in the u s some kind of foreign intelligence operation always covert activity and so this falls within this under the special needs line of cases in the spring but that's certainly what in reseal case that this is because it's not soley for criminal law enforcement it's like the prosecution well your honor reasonableness is obviously a very broad standard and here we have we have congressional findings that the mechanism that they've established under fire and the and the safeguards that they've imposed under five do all review by an article three judge certification by a high level by by various high level officials in the executive branch and and and review of those certifications it makes makes this first of all not only do you have a warrant but it makes the entire mechanism reasonable that there have been safeguards placed in the statutory frame and framework to prevent the government from using fire to circumvent the requirements of title three it would be an easier case if there were no prosecution here that's what you want to but i think in some ways the fact that there is a prosecution we're looking for probable cause as to criminality whereas you're arguing that the warrants issuing upon probable cause we found that foreign intelligence can be its own right but  the supreme court has said in various contexts that as long as there is not a violation of the fourth amendment even though for instance in the special needs cases the need the cases involving administrative made but you want it that was domestic intelligence and in keith they said we are not holding that all the requirements of title three apply even in an investigation of domestic intelligence and then went further and said and of course there's the whole separate area of foreign intelligence gathering and that is something where the courts should be even more solicitous of the government's need fundamental need to protect the country against dangerous imposed by foreign governments or terrorist organizations very different kind of threat that that arises in ordinary criminal and but he also talks about the and this is not this kind of a case but you also talk about the danger and perhaps the need to give more obviously deeply embarrassing to stand here and admit that there was an incorrect statement in my brief i hope the court can appreciate in a three month trial involving many many thousands of documents that this and but but you've got to short conversations and you've got some photographs which is judgment i'll point it out or work contemporaneous with with the deeply deeply incriminating recorded statements and remember there's no challenge to the recorded statements that where the informants were in the wires which that was absolutely the crux of our case just which i think i heard you mention something about the pfizer intercepts being important the this case rose and fell on the defendant's statements to the informants of which there were dozens and dozens and and i'll return this later at with other issues but the fighting issue in this case is when the defendants were talking about killing american soldiers at fort dix and elsewhere where muhammad sure was saying i want to put a bullet in the back of their head where the defendants were talking about blowing up airplanes that were flying out of out of the mcguire air force f space the issue the jury had to decide was with a serious did they mean to attack soldiers or were they just talking to blow off steam and these conversations that came in under five relate had very little to do that and  didn't do well on either of those two conversations and with respect to l j b f ducasse statement where he merely calls up a clerk at a bookstore and orders concepts of jihad we have recorded conversations that are on challenge in which he talks about this man we're still trying to catch where he says out a lockie he gives it to you true on cause this is the future of religion so there can't be any doubt that eligible or duke out of his own mouth has signed on to the message for talking to the informant we've got mr to tar on tape saying something so remarkably incriminating i'm in this conspiracy i'm doing it in the name of a law i'm doing it i don't care if i get arrested or killed he's confessed on that videotape to precisely the conspiracy that was charge of this indictment that conversation between him and mr omar which takes place later it was a question about taint we've already got mr to tar on tape saying he's in the conspiracy so there's no issue of tape here and then finally with respect to the the good faith exception the government went jump through all of the pfizer hoops in this case before undertook any surveillance and that's precisely why suppression is not appropriate mr reilly said but we couldn't go behind the certifications the conduct of friends here that's not the question in crawl and early on the supreme court said the point of the exclusionary rule is to deter unlawful police conduct here the investigators went through and did everything they were required to do go more basic than that that if this is an unconstitutional seizure just from the get go based on the statute how's you know what is good faith have to do with it seems to me it's apples and oranges a warrant was suture in that case and subsequently that statute was struck down and the supreme court said in crawl this really is no different that the good faith exception applies for the same reasons in this the government withdrew and those comments point out my brief they basically said that the defendants didn't actually settle on a target and united states can't want to superseding indictment names they can only be in their fish a capacity if they're actually doing something for a military want to military base at that embassy or something to that effect by telling the jury that in fact they didn't settle on a target the target's name indictment w out specific targets for venue purposes i think that's not correct if you look at the statute it's section eleven fourteen title eighteen it talks about again about in a special maritime jurisdiction of the united states the special maritime jurisdiction of the united states is actually the following is section seven of title eighteen you take a look at section seven a the talks about things in the united states well let me ask this i think this is related to to chief judge mckee's question if there was no evidence as to killing or activities in another jurisdiction that therefore would have been beyond the statute book how how can there have been a day a prejudicial uncertainty for man if you will i think the court has all the evidence in american officers overseas well we don't know i mean they talk about going to join the mujahideen if they did that i would think that would be a fight u s soldiers the question is if they go over there does the united states have jurisdiction if they want to conspiracy took place and the night it does you lay out where the conspiracy took place wouldn't have been enough to get around the constructive well i think it would but the fact is they went back on that in their closing argument but doesn't and wouldn't else isn't the most reasonable interpretation of the term elsewhere to mean those military installations that were listed in the indictment that include fort dix that world this statute implicitly says it says in their fishel duties they lay out in paragraph two of the superseding indictment which you just said all these different locations which are in the united states the government argue that the elsewhere means the united states and anywhere else i don't think style section one seventeen instead and superseding account two section one eleven fourteen or section want to leaven or s any elsewhere iraq and afghanistan that's right so how if if it's elsewhere in iraq and afghanistan without the jury knowing that it's a specific target in iraq or afghanistan how does it fall within the element of the offense here it would seem this is more a variance that is subject to a substantial rights type standard i mean i'm just looking at our case of u s versus  count to explain broaden it to overseas does in fact expand the indictment because it actually it doesn't give the jury information on how they can reach overseas kubik these men of the conspiracy if they didn't would think that the location actually proves that they would be in their fishing capacity by working at fort dix for fort monmouth or in delaware or in pennsylvania tiny you know object of a can of the conspiracy yes so if they're saying it's a military installations and i listen in and i'm my first answer that your honor is that on plane air or a view on a claim of that the indictment said something that the government claims it doesn't me n this court and the tell us that the indictment has to be construed broadly and although i guess it's possible as you suggested in your question to mr archer that elsewhere means camden burlington ocean and monmouth county or elsewhere means other counties in new jersey that's that's a more narrow reading of the indictment than is permitted on plain error if you another reasonable interpretation of the indictment is elsewhere means anywhere and if elsewhere means anywhere which i submit is a reasonable reading of the indictment then there cannot be constructive amendment when the when the government says in  charge here isn't limited to killing americans in the united states now mr archie made a couple of arguments that i think are not the same arguments there in his brief he talked about the fact that unless we prove that american soldiers are on an american base we haven't proved up the elements in the statute and that's simply not the case and if you thought that that really was what didn't happen here you would have moved at the conclusion of trial under rule twenty nine say the evidence was sufficient to prove that these men intended to kill americans on military bases of course it was overwhelming that the focus of this conspiracy was on americans and military bases you have mr schnur surveying numerous military bases identified in the indictment you have him talking about blowing up airplanes coming out of mcguire air force base you have surveillance of the coast guard you even have them so those that that was clearly the focus of the indictment now elsewhere another another complaint they could have had is elsewhere simply too broad  and they could have filed a motion before trial saying we didn't get constitutionally adequate notice about where this crime is taking place they didn't do that they might have they might have if they said well maybe the indictment is not constitutionally overbroad but it's difficult for us to defend against that based on a term like elsewhere what do you do in a situation like that you file a motion for a bill of particulars they didn't do  that what they've done is they waited until and mr actually said well you don't interrupt counsel's summation but you certainly have an opportunity after summations or over to lodge your objection he didn't raise an objection then they didn't raise an objection on post trial motions they didn't raise an objection until this case was in this court and that cannot be plain air all of this in addition to the fact that there is no constructive amendment as judge roe pointed out because we didn't alter an element all we did at most was talk about the venue of the conspiratorial agreement there's no case that holds that you can constructively amend the indictment  summation much less a rebuttal summation this court's case law the mickey case commonwealth versus him case the judge becker decided all involved jury instructions that told the jury that they could convict the defendant based on conduct that wasn't charged in the indictment a very different player standard applies to prosecutorial commons when you've and there's good reason for that the judge tells the jury you have to take the law for me and on appeal this court presumes that the jury followed the instructions there's no such binding effect no such presumptive binding effect of a prosecutor some ation agreeing with the defense in this case means that every time that the government stands up in a rebuttal summation which is given off the cuff all the defense arguments that the government runs the risk of having a tire conviction thrown out when the defense don't object and raise a claim of constructive amendment and allow this case to wait for it and allow the complaint to be raised for the first time on appeal no court anywhere has held that and just briefly there's no way that these defendants can meet the fourth prong of plain error in this case the fourth prong is an independent requirement for plain air review you have to show basically a miscarriage of justice you have to show that the failure to correct this alleged  cause unfairness or the public record taishan of the courts the sufferer the evidence that the defendants were conspiring to kill soldiers on military installations in new jersey was overwhelming in this case so i would submit that they have not met their very very stringent burden for establishing plane where they didn't like this remark they should have stood up and objected and given the district court judge a chance to rule on one of the things the district court judge could have done was read the indictment language and tell the jury they're bound by the indictment language in this case or the district court judge might have said i agree that elsewhere only means with respect to these eat could have made a ruling on the indictment on the spot that they couldn't sit back and evaluate the evidence this is not clear that kind of a case or that you know we're not talking about a case which may be close to maybe evidence that if the jury gets really inflamed about something that's going to spill over and impact their ability to to deliberate is this really that kind of a case given the statements that have been tape and everything else is in the case i think so because as mr gross pointed out the main crux of the defense argument in this take in this case was that the defendants never intended to harm anybody never intended to kill anyone and that their conversations with the informants were never never serious  them in chunks not the entire thing they don't really not as graphic as the description would suggest you have these guys sitting there giving statements and confessing and then the transcript of what happened after the video is cut off felt sitting there trying this case for all of those weeks when the government may have had different feelings but i certainly had the feeling that when those videos were played when those lights were turned out when that screen came down and those videos were aired and after the jury had a chance to sit through and watch those videos again i personally almost had the feeling that the jury kind of shut down at that point and they almost had the feeling that the case was lost just from the mere fact that the defendants were in possession of these videos and that the defense of viewed these videos well i think isn't that i mean you're saying they were impacted by the fact that the defendants had them and watched them not by what was going on in the videos in other words they weren't derailed from the evidence which is what real prejudice is about prejudice deciding a case on something other than what the jury should be paying attention to if these are relevant to the motive and the intent of you know these these are watching them and they're watching all of these and just kugler said it is relevant to motive i mean the fact that the jury didn't like it you know and use it as part of guilt isn't the test of prejudice it's a question of the probative value versus the prejudice i e distraction so by your saying that yuri's wondering why they're washing him and the content to me that that really bolsters their relevance tell me how the court was wrong in its analysis i think it is more than just the fact that they possess these videos and view these videos because obviously it is what is on the video that causes the would they not be proven well i think the issue is that you're coming in proving intent right obviously and you know there is that balancing test on a rule for three probative value versus the prejudicial impact and you know the probative value in this case and in a lot of the cases that are cited there's really generally two types of type of video type evidence you might have video type evidence that is inflammatory but shows the crime scene as cited in our brief the virgin islands versus albert that was video of a crime scene where the defendants or at least one of the defendants in that case said he had nothing to do with the murder but the video of the crime scene itself helped proved the government's theory as to how the crime took place so you have one type of video where it's actual crime scene video itself or nowadays you have everybody with a cell phone that has video camera or picture capacity so unfortunately there are cases that appear in the media today were actual perpetrators of crimes are videotaping themselves committing the crime as it's happening so you have that type of relevance and then you have the type of relevance that's in this case where you have videos that obviously the defendants do not appear in that the case were constantly prodding them and asking them you know if they could have seen that video as if they have watched those video that was your jury argue that was that was part of our jury argument yes so you have you had that that relevance or that very limited relevance to show intent and as as your honor indicated there was other evidence that the government could have used and didn't have to use these videos so then you have the risk of the prejudicial impact that you're going to have on the jury where they're just going to you know stop listening to the evident yes and just shut down after that and i think that the nature of these videos as gruesome as they were showing defenseless arguably innocent individuals  individuals killing innocent people with machine guns or commission house or something like that would they have been relevant i'm sure the government would argue that they would be relevant because that's what is or was  indictment that the defendants intended to kill innocent military task i'm asking you i would not believe that they would be relevant now i think they would be more relevant then or arguably more relevant than the videos in this case which of course you know what we're arguing is the decapitation videos or is no evidence in this case that the defendants ever intended you know to use decapitation as as their method of committing the acts and we still maintain steadfastly that there was no intent to commit any crime in this case and that these videos especially in light of nine eleven that these videos of innocent people essentially being executed for propaganda purposes any any relevance that they met that may have had in keeping with the fans intent in this case was absolutely substantially outweighed by the prejudicial impact of showing these videos to the jury and not to do is there are being i don't know i don't want to broach these songs i do i do specifically remember there was video soldiers being killed again i think you know while all gruesome you know there are of course degrees of  of prejudicial impact maybe slightly less for instance in a shoulder who's being killed which is i guess somewhat what you would expect in warfare these were actual civilians being killed which again was so highly prejudicial judge himself recognized that portions needed to be redacted and then we had an individual come into court and just describe for the jury what was going on well that's understand if they appeal to the emotions again i get back to the distracting from the evidence but if the main argument here is were they or were they not preparing for jihad in a way that was violent and they watch i mean how many how many minutes of these videos were there i don't know the exact time frame but we're talking a lot and the fact that they watch it's not that they were found on a shelf the ones that were admitted were ones that they watched so i just think it's difficult to say that they were lacking in relevance i guess i need to hear your argument again well again you know as far as the relevance is concerned and i began by saying there's two types of videos videos where you actually are showing a crime scene itself where the cover government has to say well this type of crime was committed in this type of way and here look at a picture of the crime scene that is in conformity with our theory of the case this isn't really a situation where you know the defendant defendants are charged with decapitating individuals or but the fact that they watch them is an operative fact is it not in what occurred here i just think that it's stopped argue from prejudice standpoint you may be right one that's that's the whole point you know what kind of relevance are we getting out of this evidence versus the prejudicial impact and the argument is that whatever little relevance the government was able to glean from these videos was substantially outweighed by their prejudicial impact and should have never been introduced to the jury now there was a limiting instruction i believe the only limit infraction was oh yeah you know don't  about possessing videos and the prosecutor in rebuttal said what's relevant that it's not illegal to possess possess these videos but what's relevant is these videos show what's going on inside the heads of government had wired had to put these things in evidence is beyond me i'm not sure it shows anything it may you can argue it shows what's going on inside the head where they would be watching it and maybe rank curiosity heaven knows the kind of stuff that comes statements while in detention either by a terrorist group or by somebody else or being held for ransom doesn't mean as i'm sitting there that i'm sympathizing with the cap to i'm i'm sitting there and i'm curious maybe it's it just seems like it's problematic to me your are i would like to direct you to it because judge kugler there was there was a briefing on this issue and there was extensive argument on this issue  and the judge then under took he quoted extensively i'm sorry he spoke at some life on the record as to the relevance of  of this information and then it's easy to be the beheading video correct your honor and then he spoke precisely about the about the four zero three balancing if you could just bear with me for a your honor he did and there was a lot of horrifying it evidence in this case because of the nature of the crime and perhaps you know i'll be talking just about the beheading videos and how they were handled are we talking don't come in here with any beheading videos we when the defense filed a motion asking that the beheading videos be kept out of evidence we said judge we're not offering to put the entire videos endeavors we are going to take out the actual beheadings what we wanted to show and these videos these redacted videos do it in a different way than any of our other evidence as how the defendants trained themselves so that they could go and commit cold blooded murder against people who they perceived to be the enemies of islam they looked at and they've got videos with figures of bush in government officials with bullets being  that kind of stuff to show training and then you've got i don't know how many i was it was one of bin laden talking to them about what it takes to become a suicide mission jihadist and the kinds of weaknesses that would keep you from when i first saw this video when i first saw mr berg's had been cut off i said everybody shut up but now we watch it with no problem that i think was absolutely critical evidence to show that the defendants were watching these specific videos these beheading videos in order to train they went to the poconos with guns and they shot at balloons the size of human heads to train but they also had to train themselves so that when they were shooting at balloons but when they were shooting at human beings they wouldn't pause they'd pull the trigger how did they do that they looked at videos of the people who they idolized the  who were so committed to their religion and that there that fighting the enemies of their religion was so essential that you could carry out the kind of crimes that were carried out in those videos you could take a  permissible but is encouraged by the way we interpret islam they trained themselves watching these videos over and over and over again and because as mister as mr  because the key issue in this case is they didn't mean it they talked about jihad but they didn't mean it well how do we know they meant it because they trained for it they trained in the poconos and they trained in their own apartments by watching these videos and to show what someone's intent is to show that their intent is to actually go out and commit cold blooded murder we were entitled to not only show the jury not only what these defendants said but what they chose to observe not only the outputs but the inputs of these videos that they collected off the internet and obsessively watched was a key input to their