previous was not such that would come in so i argued the motion for a women in in the the judge maloney respectfully granted it but left the ability that have been raised that being the search warrant the net not the refusal by the f b i to turn over the net source code the prior conviction the introduction of a sex toy  warrant allowed the f b i to set up a computer site for a limited period of time i think it was ten or fourteen days their computer site was called computer do we do we not have cases and i'm thinking of more had heard me and met have upheld that's a search warrant and i mean  this approach of setting up playpen and the and i t and so forth i guess i'm concerned about how do you distinguish this case from the three cases i mentioned which seem to go against you in this instance well the the particularities issue in regards to the search warrant basically in the th amendment right to against unreasonable searches and seizures really didn't specify what was going to be searched in c s in regards to the the access of either joseph or allen joseph or adam doesn't even mention well so i guess we're being kind of generous to give you the chance now to address those briefs just seemed startling to me that you were in the dress cases that were clear yes i would like a direct st of all reason why you didn't bother to respond but more importantly what is your response to these cases which seem to go against you on the very issue that you're arguing is that the those cases are distinguishable or those cases are  for the ones you're familiar with how are they distinguish you know and i understand that the nist is the basically network investigative technique in the tour is the onion router and are less unfortunately i don't have the greatest grip grasp of everything but i do know that whether it's a computer or cell phone or a bank account that people can hack in him people can you can get into your computer  things i do know that the dark web can be used to access things that are legal you know i do it but they want to cover your identity i do know that a tour router is basically the onion router or tor tor application when you download so it's like an onion as i understand it peeling back many layers of shifting your identity so that your identity is not  so one of your theories at trial and i am i correct in inferring that one of your theories at trial was that these two brothers had not themselves in gauged in accessing the child pornography but that it was some hacker who would put on the child pornography on your computers that was that one of your theories a trial absolutely and that's what my prior conviction would not come in unless unless something else happens and i surrender stand that at trial judge maloney considered the fact that you were challenging the question and he definitively said i think i'm the expert and i can't say beyond a reasonable doubt that these boys put this stuff on their computer that it wasn't subject to  infiltration of their computer by a downloaded device like cross wire in i don't know understand all the intricacies but it's consistent with what joe and adam had told me that they did not put these images on their computer now you obviously know they didn't take the stand but when the judge came back after lunch he allowed that motion previously what was next in for exactly the conviction was for i can see tell you i have the right here the conviction well pornography was chad's sexually abusive material you know that's that's what it was indicated to rehabilitate nat i put the mother on who testified under two point three six seven were to a commercial film or for to photograph a print process or acting pursuant to subject me in essence there was ten of these photographs i could i'd put the boy's mother they were found fifteen years before were a series of eight or ten photographs of teenage girls fifteen or sixteen in a park where they had taken the and they're far off or be with the court disposed to do is st determine whether the act occur we're not disputing the ok so you're getting to whether it was for a proper purpose and then whether there's city been accused of having possession of child pornography i say to make it more likely and it otherwise would be that he's the person who was using the bad stuff on the computer rather than some other really focusing very strongly on the proper purpose issue with and i think it's overwhelmingly prejudicial so are not but you really don't leave us with much on kronk to do and take us directly  respect to joseph there is a clear instruction not to consider all credit yeah and i think they ask i understand you can argue with respect to joseph but i'm asking now in particular as you are in your representation of adam you know in i think i think it's arguing on behalf of adam is it was too remote it was not a computer it was actually a photo that was a series of eight or ten photographs that were found in his basement which he and he pled guilty to research yeah i had gotten those from a friend so it wasn't a computer crime it but it in they didn't just i think we couldn't ask for it in camera proceeding with a judge would determine number one how is this close to what we're talking about about downloading pornographic pictures on one computer and possessing them and i always remember the justice brennan's definition of pornography i don't know how to define it and i think i'm paraphrasing but i don't know how to define it but i know when i see it i stipulated that these photographs on these computers were pornographic if the prosecution brought up a black dildo that was found in a room and if they didn't rape your time your investigative techniques before moving on to what dr roger called the good issues for the appellant certainly in this war it was sufficiently particular as noted in the harney case playpen existed for the existed at the time and if the warrant was void because of that as outlined in harvey bateman and more had this search still be up held under leon because these investigators acted in good faith in wires that proscar and there was an arguably before that the situation was different situation was one where more issue is separate from the network investigative technique issue and what was this issue with the from where some of it was whether crossfire was sharing more files than the user was aware of so were people in or unknowingly engaging in file sharing or making files accessible to other users that they didn't realize that they were making accessible and so what that go into here is the district court assessment that these defendants engaged in knowing provide any proof that they were running a legacy version of the software when that was an issue and we didn't have any evidence that they were using a mobile version across wire where that was a problem and so i don't think that they were impacted by the loopholes that existed in at the time so so getting back to these three cases this theory of the defendants seems to be that somebody else could be child pornography on their computers that there was a hacker or something like that so how do you respond to that there isn't any evidence of that and the way that the network investigative techniques were as is outlined in some of the cases it just allowed the loser computer to send a signal back to the f b i that said sort of i'm computer x with this name with this user log in the name and here's my ip address it didn't anything and the evidence on the device and there was no prima facia showing of materiality to get the entire new record by the defendant in the district court harney addressed this idea that you know did this plant evidence not devices and they pointed out that in that case the defendant couldn't show that the government engaged ringback in wrongdoing in employing this technique or that the technique didn't operate as it was supposed to which was only to obtain information from the computer not information on a computer so that only leaves the court with conjecture about what other evidence there might have been in that source code and that's why here and in harney the defense was not hightailed to the entirety of that code the district court has very broad discretion according to some around in conducting that analysis because of the on the spot balancing test but this particular piece of evidence was relevant to show the user attribution of that particular device because it was such a personal item so although it wasn't there all sorts of other evidence that would be on somebodies computer like that they were using the computer to things from amazon that were not sex toys or banking or all sorts about them there were other things there were email there rose score from joseph collar there were crack reports there were other pieces of evidence so you singled out something that was particularly likely to inflame a jury that he was buying what a jury might think are inappropriate sex toys which tie in with his child pornography crime i understand that it might have led the jury to some conclusions about him as a person we didn't  it to be particularly inflammatory we picked it because it was personal but the defenses we ran a computing business and we let our employees use our computers and who knows who but what on these devices this is the sort of thing that is so personal it's probably only going to be something you do on a device that you keep to yourself whereas email you know i might log into somebody else's laptop to check my e mail at some point i might have schoolwork on various devices and i'm not worried about other people seeing but this is the sort of thing where it indicates to a jury that he keeps this particular device closely held and so not only does it provide a strong user attribution for us it also provides a strong inference about who is behind the other items that we find on that device and i agree with some of the district court the stuff in it about how prejudicial this piece of evidence is in light of the other evidence when you consider the other things the jury was seeing this was fairly tame although certainly not a even if i mean because especially in the middle of the fact her view of the fact that there's nothing about the prior offense that similar in the animal that's my question well i think th of very similar in that it is really the exact same kind of thing he's facing one of these charges we only introduced that he had this conviction and i know that his mother testified as to specifics of the conviction i don't have any of that information i don't know anything about the record on that particular case but i do think that this particular piece of evidence was admitted for a proper purpose namely it with absence of mistake knowledge and identity and those were put squarely  i'm not really arguing that would have no absence of mr yes because of the cross examination about whether this could have been malware that put this on these devices could there have been a virus that resulted in this did hackers students did adam employees in his computer business put this on there without his knowledge all of those put this squarely into play in this with a piece of evidence to help the government rebut that argument why did the falcons think the but that argument other than by saying to do this kind of crime it gives the jury evidence that this wasn't something the act that we showed up or that someone else put there it shows that this was adam acting we know th because he has this interest in children and he this was no mistake this he did this knowingly he was the person behind the download it was a hacker and not enough the propensity to commit a crime i think that when you get into identity arguments under four or four it gets very close to propensity but i don't think that this was propensity here i think it was admitted for the limited purposes knowledge into knowledge identity and absence of mistake and the let me ask you this assuming they even raise this part of the analysis if we were to disagree with you on that list would be a or do you argue that the air would be in any event artless i do because i still think there's a lot of that argument real briefly sure i think th was plenty of other humans or attribution on devices to show that adam collared was the one who owned the particular device and the issue there were e mails there were his virtual business car there was a business proposal he wrote there was a letter from the s to him he had his credit report saved on their purchase order pertinent to his business there was a lot of evidence that this was adam's computer including that he was both a laptop and the desktop he was listed as the registered owner  file path where the child pornography was downloaded with user's flash adam flash cross wire so i think that there was plenty of evidence that it was adam hollerin who possessed the particular devices the issue where the child pornography was found and that he was therefore the possessor of that pornography or the person that downloaded it and all of that evidence that you mentioned was in fact introduced as evidence at trial is that correct yes i call that list just  skeptical about the admissibility of this evidence and said you know i'm not sure that this should come in but what happened in jenkins in without any intervening reason the court decided to admit the prior whereas here judge the district court judge carefully exercises discretion and initially kept this evidence out unless the door was opened by dissent and so that is one difference  stay out we were going to respect that ruling until they open the door and we asked the judge to reconsider the other difference in jenkins is that the government wanted to introduce evidence of a prior drug conviction to show knowledge and intent but those were really issues that were contested in d that case in the jenkins case it was a house full of drugs the drugs were everywhere they were in the open whoever possessed them that court held didn't do it  inadvertently they knew what they had and then intent of course there's some tension i think in the circuit about whether pryor comes in on an upright drug conviction comes in on a possession with intent to deliver and here they decided  that prior wasn't that probative of intent and the prejudiced substantially outweighed it and so here we have issues that were very much put into play by defense identity knowledge the state and evidence that was progress of that issue and because it was so probative of that issue not of it was not substantially outweighed by the prejudice i would also know it prior to the prior convictions does seem to be rather different though if you was just for having some eight or ten photos that are my understanding and correct me if i'm wrong you're just hard copy photos  we'll call it child pornography which were the conviction occurred to teen years ago so this is a computer crime where numerous child pornography items  computer so should that factor in to the determination of whether a was error and b whether it was harmless error to allow that conviction to be used as it was here i think that i don't particularly know we did not know when we introduced the evidence the specifics of the underlying crime we had a thirty five record of the conviction that he had been convicted for possession of child sexual abus material which is what the state of michigan calls child pornography and that's what we introduced is another testified that they were just topless photos of a teenager i didn't have that information i don't think it changes the analysis here because it does show that  he is a person who has interests that these things would have been on computer deliberately not by mistake and not someone else's hands but because this was his particular interest and i would also just respectfully know that although mr nolan characterizes as a fifteen to seventeen year old to the action the conviction was in two thousand and four and the offense conduct in count one and two was in two thousand and twelve so it's eight years which is not nothing but it isn't fifteen years and as we know from it's militates there is no absolute maximum number of years which didn't have to be excluded i'd also like to just briefly touch on the bell case which was another case where in a court held that forward be evidence was not admissible and this was also a drug case where the government argued that his prior conviction was admissible to show athens in the state but the difference between bowel and what's happening in our case that bell didn't raise the issue of absence of mistake he didn't say i possessed that white powder and i thought it was flour he said i didn't possess those items so the issue in bell case wasn't that he mistakenly because up to it was he didn't possess it at all and therefore the floor where the evidence was probative to the issue before the jury here absence of mistake was absolutely part of the defense the computers were registered to adam howard and so he wasn't saying these are my computers he was saying these are  files that could have been on there without my knowing it could be a virus or a hacker or an employee behind this and i would also note that the hardy keats's didn't tell that bell was inconsistent with the president and therefore not controlling what we're garlits i think that there's a difference here between the circumstances impel and jenkins and adam colors prior conviction and then just briefly i only have a few minutes left i had the sentencing issues as you know the factual findings are   had they put on through that they ran businesses where they repaired and rebuilt computers so it undermined the argument that they didn't understand how file sharing worked and i would just point to the dunning case where the court properly enhanced the sentencing for distribution even though the defendant didn't admit that he knew how file sharing work but he also didn't produce any evidence to say hey i had no idea and so i think that  properly score and i think certainly based on this record the court was correct in concluding that this case involves the use of a computer i am happy to answer any other questions with my remaining time were also i can rest on my trial i had a great amount of respect for judge maloney after this trial i still have a great amount of respect for judge maloney i just happen to disagree i had had the occasion to meet  reached a conviction i objected to the photographs of which the u s attorney's office took and i stipulated that they were printed graffiti and i said it's only going to flame the jury to show them they had the big whatever you have in the book is pornography child pornography but i don't think it's appropriate to show the jury you can see all of these photos i disagreed with the  notice what are you talking about the photos for the current conviction yes ok yes thank you judge i'm sorry i moved for a mistrial because i said it's not illegal even if evidence he didn't photograph it he didn't mark it we didn't mike my client didn't testify but what was indicated to me was a sense he never had a black dildo there was a receipt that was martin in same type of a crime we could on patricia coward the mother she was not aware of these things other than when the conviction my client was indicated he was convicted he pled to the charge he served a year in jail for possessing these it wasn't one teenage girl i think there were four or five so i stand corrected alexis if you disagree but i think i'm not doing that for any other bit that it was the case had gone south in a hurry that when he testified that was the last question i asked him whether or not you can testify beyond a reasonable doubt that they added more jokes loaded this stuff on the computer and he said no and that's when the motion was made in our sunday scrambling came with the previous conviction and you know that but let me also address the issue in regards to there was a question i think you had judge judge more than i'm trying to recall that that all of this just seemed to be