first aired admitting alleging facebook photographs which were prejudicial and which the government failed to properly authenticate second it aired its refusal to provide the jury with a read of the soul defense witnesses testimony prejudicial in nature and were relevant to the charges filed against mr vasquez and importantly the dates of the charges filed against mr vasquez and that should not have been admitted but more importantly in allowing these photos into evidence the district court completely these photographs were taken your honor there are twenty one photographs and it best we know one of the photographs has time stamped what appears to be a time stamp back when photos were not taken on phones of two thousand and eight his testimony in the jury did not see any screenshot they did not have any metadata they had nothing to corroborate what this agent was saying and that's what we know is in generalities when on facebook and found the defendants ex wife who had a public face taken no your honor other than one photo with the time stamp of two thousand and eight we're not denying that these photos don't portray the defendant who is the problem we have here is that with photographs context matters so even if this court were to at least restrictive tests which other circuits have been used and i would point out that the first circuit has not adopted yet a test or a means in which it would want social media to be entered into evidence and even if we were to adopt the least restrictive test which the sidebar does the government have a passport to prove that he was in column we have on these dates is there anything that we can corroborate and i guess the point sort of got brushed over and he decided to overrule defense counsel's objection but that was the main issue here your honor is we don't know when these photos were taken we don't know what's going on in these photos if these were regular photographs being entered into evidence counsel whether for the government in a civil case or for defense who still have to enter the photographs in a proper manner well of initiatives i mean because if i recall from the record there were two periods of time when he was placed on limited duty which means meaning he was totally this able he was able to perform certain work  retroactive benefits went two thousand and one back to the late ninety's so his condition what is important to note here allowed him to drive to walk for an indefinite amount of time he could squat he could grass this is all things that he discuss es in his current capacity evaluation in every ten thirty two which is the form they have to file annually so at no point did any doctor tell him that he could not travel a motorcycle and that's what these photographs in particular were so prejudicial because not only were they testified to by a generality but then the government used all these photographs with the three doctors who testified showing them these photographs and saying well look here's mr vasquez riding a motorcycle here's vasquez kayaking on one of the most dangerous rivers in colombia here's mr vasquez traversing rough terrain how did we know any of that to be true so the doctors are providing an opinion based on these unauthenticated facebook photographs which then again the government refers to throughout their closing arguments referring strictly to these facebook photos look he can do this look you can't do that and as far as his his capacity and what he was able to do he was able to drive for thirty minutes specific medical condition that this man had a specific back condition of muscle spasms was something that he could do and he explained that this is on as it was for thirty minute riots and he was riding in a straight up position that that shouldn't affect his ability that he was permitted to drive to nothing about these videos changes my opinion about this person having the disability that he had so i think the jury could interpret that if this person is writing within thirty minutes thirty five minutes in a straight back normal position the not something he could do basis for that sort of opinion he was just sort of saying what he thought these photos depict it and what's really dangerous about this going into this new age where social media evidence is becoming more and more prominent in government cases against defendants i don't florence you overly complicated this this was really just a photograph the photographs have been around forever and the way of authentic hitting photographs is not really all that complicated and in this instance the the witnesses went to the photograph but defendant say yeah that's that's the that's the defendant there now i realize the circumstances do matter  but you had a chance to cross examine him about it was his lack of knowledge about the circumstances the jury could track to that into its decision as to how much weight to give the photographs  why it seems to me why are you trying to overcomplicate this they had to bring in the ex girlfriend to explain how she put them on facebook all the circumstances that would have been helpful is social media these are regular photographs normally we would still set someone on the witness stand they can corroborate does this picture fairly and accurately represent x y in the dominion case in twenty seventeen when your honour's visited this issue that agent sat on the witness stand and all he testified to was i downloaded on the state and here it is for the jury to give it the weight it decides he did not have for his testimony with what he believed was going on in these photographs so even if we take the social media context out of it which i would urge the court not to do because i think it's an important consideration here that these are from the internet these could have been altered but even if we just consider them to be photographs i don't think we're over complicating it when the agents to testify about what he believes is going on in the picture and to give your honour's a more severe hypothetical let's say a young man at seventeen years old on instagram turns up a gang symbol and a picture because he's trying to be his friends years down the road he is charged in some sort of rico or very severe drug conspiracy case with violence associated with a certain gang what we're asking that what the government's asking the court to is we're just going to allow government agents to go in and download instagram pictures and then sit on the witness stand with no contacts with no perforating information and testify to the jury that that young man must be involved in gang because look what he's doing here the government in this case is asking the on two separate danes and then i believe one of the trial counsel got up and objected when the first photo was entered and the district court judge said your objection is overruled throughout this entire testimony i'm learning all twenty one photos in the jury these fo honor's question if the government just entered this photograph and showed him on a motorcycle then we might be in a different situation but that's not what happened here and if i can just look at the government shows him on a motorcycle has an agent with no knowledge  for example one picture he's on his motorcycle and there appears to be luggage on the back of the motorcycle the agent testifies that means he drove for eight hours a day cross country on rough terrain in colombia and then in closing arguments the government says you know mr vasquez was doing motorcycle diaries throughout south america and you saw it because of the pictures so it wasn't just a picture of him on a motorcycle which the doctor testified that he could do this was insinuating to the jury with no extrinsic cooperation that mr haskins was out in terms of your relevance or the the date or the time frame that these photographs were taken it seems to be important because if they were taken when he was in his twenties and robust and healthy then they're totally irrelevant to anything that orders considering and so that's why i'm just trying to pin them down i mean you want it to the date staying up but is there anything else because pictures that were represented regardless of when they were uploaded were were pictures from the relevant time frame of the indictment and so i'm that's what i'm trying to figure out here how do we know that these photographs are relevant to the real time frame  that these were photographs from two thousand and thirty would be relevant to the claim here that the defendant was knowingly and intentionally making false statements about this was her condition absolutely not yo klein who was the undercover agent who who conducted the interview and importantly snapshots of his life showing him in things that we don't know anything more about he could have completely been in compliance with what his limitations where he was allowed to drive thirty minutes he was allowed to walk friends definite periods of time so a little snapshot of his life without this additional testimony that was very prejudicial the pictures become very relevant in that aspect because you're saying here look this picture of him posing next to the jury in closing arguments that this is a motorcycle diaries trip and he because they're dressed the same so the government assumes that because one photo has two thousand and eight and he's wearing the same shirt in one photo that he has another don't i just think that these photos were never properly authenticated and brought in to begin with i don't think you can make an argument about something you have no idea no ancient no anybody sat on the witness stand of crab and if this was a regular photograph i would hope that a district court would not have permitted this kind of evidence to come in the first place this shouldn't have been argued in closing and it was it wise what swayed the jury this was the heart of the case for the government  hundred thousand dollars in benefits i believe and so that and the government's theory i mean this case was never that he was this able to have suddenly he was able to because in two thousand and thirteen as of a year short he was writing these motorcycles rather arguments your honor the defendant said yes this is basque is that yes this was an automobile but what is their only argument was that it was irrelevant because of the time frame but as the government has maintained it's there is always been but there was a long standing mental manager had the fact that the government only charged two thousand and thirteen is more about the fact that that was for the rival relevant time period of its investigation time frame is why don't you have those the representative that he had a disability so severe that he couldn't even turn his neck without turning his torso along with it he was caught on video on three consecutive days and and including your honour's the day of his medical examination and on the day of his interview right and his motorcycle absorbing the impact of potholes and and robel and road bumps and turning so yes ron is the videos are the centerpiece of the government's case so in part that's why you you say that even if these photographs were improperly made it was harmless individuals in order to get these benefits improperly illegally the opposing counsel shows that in closing argument that the government did talk a because if you do you gotta go so hard argue that it was harmless error if you thought it was so important to focus on it in the closing argument well it was important because as i stated the government's theory was that this was on an ongoing misrepresentation to the department of labor and workers compensation it was and it was relevant in the sense that it was important to highlight th the photos of the columbia crew were important to the theory the theory of the government this was a continuum representation for misrepresentation that are going on for years yes you're on a two fer that has but the point is your o that there can be no more prejudicial a photograph cannot be more prejudicial than an actual video an actual video showing a movie absorbing the impacts of potholes and speed bumps moving a view of the photographs of signs and commercial on establish lance i believe people had t shirts that are referring to a columbia motorcycle club and furthermore he himself test  these claims were going on for years what brought the defendant to the government's attention why did they decide to investigate him i'm sure there must be an explanation of the record is what what does a record disclose about  you know his i'm not entirely sure i'm not entirely sure what was the the genesis of the investigation aside from the fact that it began in two thousand and twelve what was the trigger what was the red flag that led to the government clue i think whether or not the photographs were taken in colombia or in puerto rico that's not the point the defense counsel's objections once you are trying to say that what the witnesses testifying that he's doing in those photos without any personal knowledge or any corroborating knowledge is the issue not where here's your argument that it was the government brought in his ex wife or ex girlfriend who supposedly was on the trip and could explain what was going on absent that kind of testimony the government was not entitled to introduce these write for twenty minutes at a time and then we take breaks because my ex husband suffers back spasms i mean the government's insinuated to the jury here and actually has testimony on the record that he's going on these long country long cross country hauls that's extremely unfairly three hours or all day well dr scientists are fine as i explained earlier that riding a motorcycle that he was allowed to and i think that was conflicting so the jury had to make a determination of credibility on that point yes your honor and something i want to point o fourth and fifth is that the government brings some sort of custody or record from facebook or something like an ip address to connect this address to someone that matters in this case and then extrinsic evidence to corroborate the context of the picture case even the six second case cited by the government in its brief the government went above and beyond and not only that they were able to send a witness on the witness stand to testify about everything that was going on in those photos that's something that was not done here in the for od case that w long and the jury deliberated for four days the allen charge was for it twice they sent out eleven notes and one thing to liberate it took ten thirty pm this was not a slam dunk for the government in fact the first question that the jury sent out was to please explain what exactly were the false statements that mr vasquez made in the twenty thirteen interview i think that the photos went to the heart of the skis this isn't a slam dunk won our conviction something the jury deliberated over for four days and went to ten thirty at night on one