on good morning i do plan to try to reserve three or four minutes of my time for rebuttal i understand that's my responsibility we've raised four issues in the brief but i plan to begin with and focus on issue number two because i think that one is the most complicated issue that is the issue that asks whether we have a felony triggering verdict or multiple felony triggering verdicts on each of counts one through seven of the computer damage counts what we have is not a proper felony triggering verdict it is instead a free floating loss finding that is untethered to any particular count and that doesn't match the statute so what do i mean by that i struggle a little bit with where to start here because the government and the defense are so far apart in our views of the statute and what it takes to make a felony conviction of computer damage and so i'm going to start with our most basic point just to make sure we're all on the same page here i trust that if the court thinks i'm moving too slowly you'll jump me up to what we really need to talk about but our most basic proposition is that computer damage is a misdemeanor conviction unless the defendant has particular priors which he doesn't have here or unless the jury finds unanimously and beyond a reasonable doubt for every count the existence of a felony triggering element here the felony triggering element is loss and so mr lightly could not be found guilty of felony and could not be sentenced for felony certainly not seven counts of felony computer damage absent a proper jury verdict on the essential element of loss so what is a proper verdict on loss we start with the statute the statute allows the government to prove felony computer damage by showing loss in one of two different ways the statute defines two different kinds of loss first the the statute is oddly written but it has one kind of loss inside the parent article and one kind of loss outside the parent and i'm talking about section i know now yes yes yes and so yes section little i level yes yes no i recently learned the word roman that so apparently it's raymond i capitalized so once we get into that section and it's important to read the introductory language to that section which tells us that we have the felony conviction if the often it's caused the offense singular caused loss to one or more persons during any one year period aggregating at least five thousand dollars that's one kind of loss the nd kind of loss looks at relevant conduct looks beyond the offense singular and asks whether there's a loss relating from a related resulting from  related course of conduct affecting one or more other protected computers and the problem one of the problems with the instructions in the verdict form here is that these two separate kinds of lost or were  sort of mashed up together but they weren't completely mashed up together so it's not as if the government was required by district court to show both types of loss but the district courts instruction in verdict form made it easier for the jury  lost to one or more persons by and grafting on to that the course of conduct idea from the parents at a coal type of loss and you're here your position is there is no evidence to support the parent other protected computers and you're saying that was never charged in this case or one or more protected computers we only have one right my understanding is you are saying apparent that it all really just simply didn't apply  is that is basically the argument that given the charge given the instructions that the parties asked for and given the structure of the statute that what was at issue here was the st kind of loss that out extra parents kind of lost here and it wasn't until the instructions conference that the judge proposed adding this aggregate language or that any in are related to any of counts one through problem is that we don't know we don't have any particular counts that we know the jury unanimously made a finding as to the judge asked them whether they find that the conduct related to any of counts one through who cause this aggregate loss and the unanimity instruction only obligated then to be unanimous as to this aggregate part of lost but not as to any particular count  it seems to me by the language of the statute which speaks in terms of law during any one year period and by virtue of the term aggregate of as least five thousand dollars that on its face it doesn't contemplate a one hit transaction it is not a discrete matter and therefore it seems ink on its face the notion that we just look we focus on one cow and we focus on what the conduct that would seem not to fit what's going on here ok so the way i read this and i think that the statutory construction and history supports this that you the introductory language says if the offense caused loss to one or more persons so the thing that gets aggregated is across persons who are who suffer a loss so you might have a computer hacking that affects multiple customers of a website because the personal information is lost or something like that or you might have a single a single hack that affects a company but it continues to experience a loss resulting from that single hack over time for a for the course  so those are the things that get aggravated it's across persons and across time but only for one count one offense and that's supported by the senate report that i cited in  i think it's in the opening brief and it's supported by the context because we don't have this related course of conduct language in the statute until congress adds the parent the tickle and they didn't add it also to the extra parent but wow or the aggregation of laws relative to in a way that would relate to one specific instance ron i'm not sure i've seen those cases and what happens in the crib in the civil cases is a little bit different because the civil provision of the statute which is subsection she of the statute speaks in terms of conduct you can only file a civil suit if the conduct involves one of the factors set forth in the subsection that we're talking about so the civil civil cases might play out a little bit differently because they're focused on  a single offense like we're focused on here because of the language the offense ok all right so you're saying that offense and sometimes narrowness of scope and that we're talk to the fans aren't well for the moment let's deal with that has been your nickel wasn't added into later it was added in two thousand and one in the patriot act and there's no no reason to think it was added in order to increase the government's so the and addressing the and the and is a little curious i agree but but if that hand really operated as an ant then the government would be obligated to prove both types of loss in order to get a felony computer damage conviction and i don't think there's any evidence that that's what congress intended to increase the government's burden i think congress intended to give the government more options for getting a felony computer damage conviction but the i think i will probably just start repeating myself at this point the reason that the parent doesn't come into play here is is because because these are two separate kinds of loss now also as i've argued in the brief the government never charged the language here of the entire parent article never asked for the language of the entire parasitical for the instruction to the jury wasn't given that language so we don't end up with felony verdicts you know i would like to reserve my time unless i need to answer the she makes the argument that there was we couldn't get into the to the aggregate because there was not more than one can one or more other computers affected however the trial evidence the trial testimony and exhibit fifty two which the government attached to its brief as attachment three clearly indicates that more than one computer bank more than one computer system at next tech was affected by the defendant's conduct the trial testimony was that they were next to corporate had a set of computers a separate set of computers from next to classify and that they serve different functions exhibit fifty two attachment three wasn't was an exhibit testif by one of the next tech engineers that identified the periods of time that some of the computers were shut down and because of the difference between the next tick classified and the next six corporate computers united states astley to the witness to notate which of those attacks shut down the next  classified computers by designated across the top in t c and which of those shut down the next tech corporate computers by indicating corporate and he did so so those are clearly before the you know and i think all of your damage evidence was kind of all kind of grouped together that's correct your honor and that's because it was the that the defendants conduct in causing the series of attacks that occurred against the next next to computers between may thirty roughly eighty eight almost one o'clock on may thirty and concluding in the early morning of april to those series of de dos attacks you really couldn't distinguish because it was an ongoing response with ongoing identification and so the united states did not distinguish between the attacks and what was done with each attack due to the language the clear language of the statute that says that you can aggregate the loss  course of conduct during a one year period of time well let's see if you bite off on the on on the defense argument here that you can't aggregate on a related course of conduct unless involves one or more other protect the computers and that that wasn't presented to the jury so that you're only looking at a particular each each offense individually in terms of aggregating the five thousand dollars that you and i she says perhaps there's more you know one or more persons who experienced the loss and that's how you might get there but i guess what i'm saying is i don't if you bite off on the argument that it's per each offense that you've got to aggregate what evidence did you have here that  i don't believe that the statute indicates that it's per each offense and your honor giving the statute the structure of the statute i think clearly refutes the argument being addressed by the ence reply brief caused me to look further into some lenity cases and united states versus taylor which i will supplement and in the appropriate letter afterwards is actually a then it's a felony and the th the th circuit health and united states versus taylor that irrespective of you face value of the checks and irrespective of whether or not they were charged in one  but i've found weight that is not directly on point but i found it interesting because it's attached case and it held that the that the unit of of of offense for a tax charge is each individual year but when you consider course of conduct that you can consider course of conduct across town and so on i believe the case law is such that the the given the even given the language of the the statute an offense that it is appropriate for the aggregate to be applied across counts and it's not limited to a single to each individual count the instructions that the that the court gave and the instruction that the united states provided on this was court and the core provided a and instruction that predominantly came from the th circuit in their pattern instructions and and and so it's it and and it's jury verdict didn't require spoke ringback of aggregation across all accounts and whether the aggregate lost during any one year to one or more related course of conduct affecting one or more protected computers of an aggregate value of five one thousand dollars or more that language does not appear in the district courts instructing the district court's instruction actually you know arguably along the lines of what the defendant said mishmash is the questions of law it's what the question of of damage to other computers affecting one and more other protect computers in other words there is an option in that a mean the district court's instruction i think speaks of a guilty verdict caused by the aggregate loss to one or more persons during any one year period that totaled more than five thousand dollars  and it may have been i apologize i just i was able to pull that up as as quickly as i had hoped i would be able to find a few got a general response give it if not i want to to have a real understanding of why there isn't a problem there i mean because what you have it seems to me the new situation in which there is evidence to suggest that there was no email from the net su he accessed it from a question box on dropdown box when he said the threat and that would have been so it would have been kansas to campus and in if that's true then all of that is true then why isn't there an interstate commerce problem you know the the defendant has misread the exhibit foray which is the the basis for this st in her reply brief she states that the united states assumes that in the e mail transmission occurred in fact there was testimony for normie from amy normanton that a that th mail that the exhibit for a did contain and the threats were received as a result of an e mail received from the introduced exhibit for a was that there were three means of communication bet a person could engage with the next tech helped us telephone email or their their web chats system their immediate support superiors to determine what action if any they should take when the court with the court looks further you'll see after that header among the next employees is an indication of the contact email from entity sucks at mail dot com and for b specifically identifies com email address even even if you have an e mail fan i guess i'm still struggling to see what evidence we have of the server outside the state of kansas there was none no evidence of that was presented to the jury and i understand you're relying on the civil address at the bottom of the or on the copyright notice at the bottom of the e mail which assuming it was an e mail that that was sent you didn't give the jury any information to say that that copy that copyright notice somehow equates to knowing that we've got servers in pennsylvania i don't get how you get to the bottom line here you are correct in that united states did not establish did not specifically identify the location of the servers used to send the e mail the government is simply relying on the one that this was raised in a rule twenty nine situation and the government's argument is that ringback a reasonable inference can flow from the fact that mail dot com is headquartered in pennsylvania i don't get the inference there i'm not i'm not a real high tech person but i do know servers can be anywhere and don't necessarily equate with an address on we are in the mail we understand the court's concern and the question is whether or not that is a to be clear what would it have been about the mail dot com address that would have would have led a reasonable jury in your view to infer that he came from pennsylvania or came from some inner state d the well the the the the communication is between mail dot com and and the defendant and so the the simplest answer to the judge's question i suppose is there is not direct evidence saying that that that that that communication took place from state of kansas to the state of pennsylvania other than that's where mail dot com was located and but we know that but that's not but it was there even evidence to say that's where mil but com was located whatever like three minutes so could you add on kevin three minutes there are time and you don't have to take it but but you have it please press the thank you i do want to touch on at least three categories of arguments the government made the st issue is other protected computers the government says we had evidence of other protected computers but our question isn't was there evidence of other protected computers i'm going to dispute that in a nd but the question really is was there a verdict on other protected computers and i think your honor judge holmes pointed out there was not a jury verdict on that because the jury wasn't asked to decide whether there was proof of other protected computers and so any discussion about that i think is a discussion about harmless error which the government hasn't raised with respect to the statutory problem here even if it had raised that issue harmless error well st i don't think the court should reach it because it's so complicated that this isn't that kind of case where the course should reach but i just want to point out that the definition of computer in the statute includes a data storage facility which may be the jury would have found equaled one server farm which is what we had here so the jury may not may well not have even found that there were other protected computers also i think the word other suggests other than the ones affected by the counts of conviction i don't want to go too far down that path because i think it takes us away from the real question which is do we have a proper verdict and we definitely do not have a verdict on other protected computers next issue the th circuit instructions i'm really glad your honor brought those up and i suggest that the court look closely at those instructions because the government says that the district court followed them and of course the court has already pointed out no it didn't follow those instructions not only does the th circuit treat the loss  the last element as two separate ways of proving last because if you look at the th circuit instructions it says instruct on either last one or portions or the parents out of the language right that if circuit does not match them up nd the th circuit says if nobody's asking for a verdict on a lesser included offense of a mistake then you the district court ought to include loss as an essential element on the count elements themselves which again is not what the district court did here so the th circuit instructions are good models and and i don't know that we would have a complaint if the court had followed the th circuit instructions  other cases the government talks about lanham i think we responded to that in our reply brief and i don't have a lot more to say about that but i just want to emphasize that lanham in addition to being unpublished and out of circuit and the question at issue was conceded by counsel so it doesn't really do this do much good for this court but lanham was decided under a previous version of the statute so it's not it's it's just not a helpful case nd the taylor case where we address the taylor case in  opening brief and so i'll just refer the court back to the opening brief there was a dissent st taylor was decided pre apprentice so it has some problems i think some are pretty problems and it nd there is a great dissent in taylor by judge thornberry and then in look oh the th circuit agrees with thornberry on on the issue but again we're dealing with an entirely different statute so then the rd case that government talks about is a tax case that i don't know the name  of because i haven't seen it cited yet and the unit of prosecution well i don't know what the tax code is in that case so i can't really tell you how it's different but i bet it's different and what really matters is what is the language of this statute that mr golightly was convicted of and what should the jury verdict have looked like in this case to justify felony computer damage convictions now i'm happy to answer any questions about the sufficiency question but issue one i'm not sure i can improve on the reply brief so unless there are questions i will see the rest of my time and thank you very much thank you should you counsel refine