james jones valentine so let me tell you just straight on point we're concerned about this case like i'm concerned in the sense that i'm not sure which way it goes  hutchings we held that the quote simultaneous possession of multiple firearms generally cut generally constitutes only one offense unless there is evidence that the weapons were stored good different places or acquired different times so i asked my clerks is there any evidence in the record i want you to go to the record and look for the record to see if the data which is the source of the pornographic material in this case is all stored in one device and duplicated in others or or is there evidence that it was in different devices and therefore all of the data is that aggregate or is there evidence that the data was st focusing yeah i don't if you want to focus on hygiene i'm fine with that because i think we prevail under the hygiene analysis because of the signs because of the silence of the record because the sounds of the of the fact of the think hunching had three separate physical locations right a bedroom a car and a truck and i fully agree that there's not a fully satisfied mind to draw here but it's a point to draw a line  that physical differentiation is where the court drew it in which and the contraband at issue here is the device containing child pornography right and so that's a  fire and so having multiple firearms in a veteran jones little the same factual scenario is a single count having multiple devices of a child i don't want to i don't want to hog all the time can be only found in one place or two or three physical places data which is that what we're is the item here can't be stored in a in a bedroom or in a dust perhaps but you've got to have a place to store it yeah right i think there's a slippage between how we use the word storage in terms of maintaining electronic information and storage in terms of how we think about physical free if you broke them open you wouldn't find a new piece of pornography they have access to the web where it is being stored in a cloud storage isn't that true in this case three of the that the close we can the hard drive might be different ones that yeah i think in this case we have it at least three items that are likely local storage that is that h p computer the i phone and the hard drive and then a dropbox counts that is storage device and it's tough because i agree that there's more he wants to the cloud then is probably manifested in the briefing the reason for there's not a tremendous amount of either factual or legal development about that and so i would i would suggest that court simply followed the th circuit did in which is to do what the government didn't treat a dropbox account or simply another device that should be considered under the statute and leave that for another case that may or it's for element in another case because on one level that dropbox account is like michael ware house right which at the gun was stored off in a warehouse somewhere else under hunching that would be a separate account but another level it's not right in the sense that mr elliot couldn't go to dropbox right droppers holding information which it would then make a bailable to him only through the devices that were found in his bedroom store the same set of images or did each storage device have different unique images device contains separate and images and there were hundreds if not thousands of images there were approximately eight thousand images of what the count was with some reckon some of knowledge meant that there was duplication but no one found out how many because for guidelines purposes after you can six hundred doesn't matter you max out but i don't think that that matters either because there's nothing to suggest at there's no proof as to break how those were  right or how those were necessarily necessarily stored right that they weren't there is some suggestion that and again this is all outside the plea agreement which i think is the critical factual basis for evaluating this case but you know there we don't know and the present the frustrating thing is that it would be very easy for the government to prove this thread in the sense that digital forensic analysis should be able as just as soon as pointing out to discern we need to digital files were either received or created and that this evidence could be pointed out or a plea agreement could simply say that the defendant had knowledge is that he possessed this particular driver at a time and place differently than the other devices issuing the other counts that's also the problem i think for purposes of your argument if if this house contained you know instead of these electronic devices magazines with pornographic images and you had a couple one hundred bags scenes you're argument would be the same it would matter how many books or magazines were in the home silvio would be a one count theory under the your view of what the word any means it would be it would statute and of course the common sense a lot more frankly and it has an added benefit of also according with wendy and i just want to just point have to that i think that there is  f the data is stored in a cloud or in a was in a place the electronic place people were various computers have access to the data let's say a bank where hundreds of terminals can reach that point let's say the circuit course circuit court where we have storage in one place that is discrete from the cloud but stored never alone us with access in six different states assuming that one person has access to all those computers does that mean that each computer is a device in that it would result in hundreds potentially thousands of i mean devices and i well it's big for the government but my understanding of their theory is that y they could charge multiple devices on those theories i think all the new prosecution cases of course turn on the facts right the number of units is going to turn on the facts so i think under your hypothetical if if it indeed a person has access mobile devices that store an item of child pornography then the other those are probably several devices that they would have constructive possession of but you know it also becomes a question of are please the court counsel good morning my name is jennifer rizzo me on the usa in albuquerque the judges here i'll just start with where i think you wanted to go in this case but i'll start with the fact that my colleague mentioned child pornography is on and so the way in which the government wants this court to look at these cases is that like a gun case if a gun or a group of guns are found in a room with walls similarly the storage devices storage device correct so if the data is stored in one common place but accessible by five devices you only have one count so that goes to the question that you asked my colleague and in that way yes speaking about dropbox the stuff like the cloud storage that we were just that you are speaking about if a computer which computers everywhere can access it has access to the  access dropbox the the media is stored on dropbox if someone were to download that and put it on the computer that accessing dropbox then yes that would then be another possession because now that piece of media is now on the computer that accessed dropbox so that would be two pounds and hoping that answers the question well it does what does a record tell us about that word was what was the record tell us is the word this material is stored each correct device correct and that's how we came to four counts of possession so those are the rooms essentially that the government would assert create each account under the possession position but the government is that position is that it supports ours in that judge kelly created the distinct areas these distinct acts where the guns work and therefore we have the same idea that their existing apps when someone has to p he actually conveyed the record accurately here but i can tell you that despite the fact that if you have a case where you have the same image that's been duplicated over and over that person is still going to for instance get the increase under the guidelines for having multiple images so regardless of the fact that this is the same image the courts have held and the guidelines show that there is harm in simply even duplicating the image so the fact that it might be the same shouldn't really make a difference in this case so if you  have the same image on a magazine on the newspaper or on photocopies in the various media that are outlined in the statute analogy that my colleague made in his reply brief that would be one count but if it separated out into two binders then yes it would be two counts because the idea is you've got it in two separate story pieces  was so those would be different rooms now under your theory under our theory by each binder would be a room would be a room would be a separate storage space that's the that is the that's the best way we can come up with to describe when you number of pictures that seems to make sense there is a correlation the more pictures the more women are involved or children are involved and therefore the more people will form i'm having trouble seeing  congress would have wanted and why we should interpret extra penalties for two devices that let's just assume have the same pictures on them at the moment we don't know but we do know that there are probably have two reasons for going to excel ease of access so that they have it in different places and make sure that they always have it so there is more harm because they're taking another step to preserve this contraband that they want for whatever reason they want it and so it's important to understand that the act of putting images on multiple devices whether it's one or a one thousand is an affirmative additional conduct that should be punished is is is the act critical to your is are you there are cases the seem to tolerate discreet if a defendant has for devices that with one keystroke could say put this on all of my devices would that colorado it could be a single act that does it is that then one offense but if he's got computers that are not linked and he has to forward the data to each computer separately would it be for it that act it's the act are you are you are my point is or are you arguing that we should conduct this under an act of analysis like several of our other circuits of dog we have and so much but the th and several of the circuits have devices you're intending to put it on before devices and so under long and under jones proof of separate storage of individual items may establish separate offenses because i think there's no allegation here about said that yes and he can be ambiguous but if there is proof a separate receiver separate storages then there may be separate offenses of possession and so this court i don't disagree that any can be and to give us that here we have long here we have evidence of separate storage therefore there can be separate offenses of possession let me make sure i understand what you're saying let's say you have to purport one is very very wealthy has high tech computers and he pulls to another the clause that put stuff on that one and then it goes to another woman so the st guy stores everything in one device and one called the cloud or wherever but it's all in one place outlining it presumably as my colleague explained it doesn't work in favor of either side equally sometimes it's going to be a lot of count sometimes it's just going to be one  found that they are not similar so all of those cases work together to support the position that the government is asserting today and again i would point you took to long in terms of its analysis under th that there would be multiple charges or receipt here of the charge that if they had the evidence for and the evidence would be only that the defendant rather anybody else the defendant everything received everything in one device and