than usual in any event so i'm here for mr robinson i have a couple of key points to reinforce with you from the brief if you have questions of course i want to answer those but i'd like to start with making these points first the riley case from the united states supreme court mandates a search warrant before a cell phone is searched it doesn't say it's good enough to get a search warrant for an apartment where you might find a cellphone it says you must have a search warrant before you search a cell phone i'm not really challenging the seizure of these items i think that may and i'm sorry we're maybe talking past each other yes yes so if i'm if a neutral and attached magistrate has already made that determination and the warrant specifically authorizes the inspection of electronic devices to look for information what would what purpose would be served by requiring a second warrant to be saw after the first warrant authorize the agents to it not in the context of a search incident to arrest but the context we're looking specifically for electronic information electronic devices you know i can't answer that but i can tell you that it's clear to me from from reilly and other decisions that have come out that the entire thrust of the law in this area and the supreme court's direction on this is very clearly there which other decision give me one or two you think are most well i mean i think even some of the pre let me let me see if i can if i can summarize your argument your argument is based on reilly that because of the medium in which the incriminating evidence is contained a cell phone or a laptop computer that that requires a super warrant that that if it were contained in seventeen file cabinets of paper it would have been just fine for the agents to look through the seventeen file cabinets for paper but because it's an electronic electronic storage device that can contain as much incriminating information as seventeen file drawers it's different because the ninth circuit and the suit us supreme court in riley have said cell phones are huge a person's whole life can sit in them going to all their contact but isn't your argument basically turn doesn't it turn on the categorization of the stories medium no it turns on you don't get to search a cell phone without a search warrant also significant to that they needed to go back to the magistrate and say all right we executed the search warrant we found all of this we found a laptop computer we found five cellphones we have reason to think because we found all these documents sitting on the tables around them we found all this other stuff we now think that these cell phones tied to this operation contain information relevant you would concede that had the agents walked in and found a room full of file drawers with the warrant in hand that had previously been approved they could have opened each and every file drawer and look through each piece of paper and every file records now i don't know that they get to go in there and look at those when they're seeking documents containing incriminating evidence of identity theft and false claims against the united states well i'm just i'm just responding by saying i don't think it's that clear  but i'm just trying to if we were to write an opinion here i'm trying to figure out how we can explain to ms chan and her agents that when they're in a situation like this the next time around with warrant in hand and probable cause to look for incriminating evidence in electronic form that what's the bright line rule here if it's right if it's in a computer go get a warrant that's your argument yes the bright line is seize the cell phones seize that laptop go back to the magistrate and make your showing specific to those storage devices and then you can search i've got a different question is attachment a part of the warrant is an attachment a is the list you know what tashan b is the list of i know it's not no it was not incorporated by reference and it should not have i was it was a point i was going to make you know i see i'm coming i don't know and i don't remember we don't don't worry well we'll let you talk or maybe we'll let results from the first so they didn't specify an attachment a in fact the affidavit that the agent put in for the first search warrant for the church lane search warrant had like a one sentence brief reference to some number telephone number that they said that he said solely was connected to mr robinson and public records that's it was one sentence it was one number there was no reference to anything else other than the fact of course that some of these returns had been filed electronically well what bothers me about this case is that it's quite apparent that if you go attachment a b and c whatever i've been reading here we have specified actual cell phones and computers to be searched that can't be right you know hang on ok and things that then are to be searched for and then there's a protocol to search but the parent will we have here does not specify any specific cell phones is not specify any specific computer does not specify a protocol the only thing we have ears you can look for the following items which may be an electronic handwritten or typewritten form but there is no specification as to any device and there no specification as it as to any protocol that strikes me as a deficient warrant me to and also the fact that they seized every device they found in the place let me direct both of your attention to your one fo on the describes any cell phones or computers and there's nothing as grabs a protocol for searching the computer or the cell phones i agree and i think that in the house with agents know before they go into the house specifically what computers and what cell phones are there they wouldn't that's the problem that's why they can seize or get probable cause from everything they found there they found a lot there  and they talked to mr robinson there and they could have taken that in should have and i think under the law were required to take that go to a magistrate and get a second warrant i think they could seize those items so they wouldn't be destroyed items are here in the cell phone on this laptop we have probable cause to believe it's they are but the magistrate has already authorized the seizure of evidence of criminal offenses including in this case identity fraud and submission of false claims to the government in whatever form such as electronic so i think the answer my question is the only additional fact that could be alleged is that when we arrived at the premises armed with a search warrant looking for incriminating evidence or electronic form we found a computer and now we want search warrant number two to search the computer yes and i think they were the only additional fact and why as well know there are many additional facts constitutionally required in the field warrants first the warrant was overbroad that statement sees it in whatever form you find it including electronic was over broad especially in light of riley's but the affidavit outlines all of the main by which the defendants committed the crime yes working the submission of false tax returns electronically what additional showing is required in the fourth amendment that they were on this cellphone likely to be on this cell phone and this computer this was an apartment where five people were living with them with  item there was in fact them with the ip addresses in other words the reason that we focused on the church location was because the ip number associated with the devices on which the tax couple of minutes yes i see ok everything so far has been exceedingly interesting but i've got another question assuming that there's evidence that was improperly sees there's an argument of this harmless because the evidence of the other evidence of trial was so overwhelming i'm climb to accept that argument why am i wrong if i accept i think you're i think you would be mistaken to not at least send it back for hearing on that issue because i don't know about you but i found myself kind of throwing my hands up in the air as  appellate attorney looking at this huge record i went back trying to figure out what the source was of all the different orders and the different ways that they found things the subpoenas they went to for records and it was not possible with what i had to do so i can identify what the fruit was on this record also do you agree that they said the age and seized two cell phones and one computer know they seized five cellphones and one but the evidence a trial they admitted they claim was just from the two cell phones of the one computer and then several months later they did a search warrant on two more cell phones and another laptop they'd taken from mr robinson months before so  you're at the airport now they had a search warrant for that but they used information from the phones and computer search the church street to support probable cause to get those to get the search of the airport so yes ok so i'm saying the fruit is nearly impossible to identify i see no harm with sending this back it seems appropriate i'm not asking that you reverse the conviction but that you send it back for a hearing now with the instruction that the warrant was wrong it should have been suppressed now let's decide what the scope of that is and it may well turn out that the scope is very limited it doesn't make any difference i don't think any of us are in the position to say that now and it's just not fair to mr robinson serving twelve years in prison to not have some kind of finding based on an actual review of all this that that was in fact harmless ok let's hear from the it please the court my name is mary jane chan and i represent the united states in the subpoena all this court should affirm riley says that you need a search warrant there was a search warrant here and it was not facially invalid the the war itself says that authorizes agents to seize seven thousand categories of evidence including categories eleven through thirteen which specify records and information and in electronic form as the district court found there was no reasonable interpretation of that but to allow the agents to search digital devices that would be repositories of this evidence including cell phones and computers but that makes the overbroad if they can pick up every cell phone and computer they find in the place because they've got lots of people there how do you know that the computer or the cell phones are connected to this person so if if they're allowed based on this warrant to search any computer any cell phone found in the premises i think that makes it an overbroad warrant doesn't though i disagree your honor because they're cabins by what they're searching for which is those seventeen categories that we haven't but they don't know that there's a cell phone is lying on the table and yeah it might have a dinner but i don't know until i look for well i turns out it's a cell phone belonging to somebody else is highly personal information has totally irrelevant allude to the investigation and as you would read the warrant any computer any cell phone found on the premises is open to the first to search under this particular warrant yes not for every single warrant but you know this one i'm writing about this one right strikes me if that's how you read it and they don't have little or no obligation to connect to a particular computer the particular fraudulent offenses that were being investigated but it wasn't isolated towards robinson so i think it is false to say that the warrant had to specify devices specific to robinson so yes i think that  there's been a distinction for example in riley and some of the other cases in this court that talk about the quality the quality of difference between a computer or a cell phone and let's say the traditional file cabinet but in the context of a search warrant where there's probable cause to search residence and the discretion of the searching agencies cabin very specifically by the seventeen categories of evidence yes they can go and open up that computer and see are there is there going to be evidence of these categories they can go willy nilly and search for child pornography or go into the can't continue to go and probe into areas where they have a reason to find that there's nothing there but they can open up the computer they can open the cell phone because otherwise how would they know whether this device does or does not contain the evidence that they're looking for this case wasn't cited in the briefs but the courts and bank decision in c d t specifically says that in the era of electronic evidence we know that there's going to be overbroad sort of seizures and that's why it's so important that rely on magistrates to crack protocols which guide they're not constitutionally required but those search protocols guide the way that the government does segregate data they get to look and to the incorporated by reference in the search warrant but that just simply means the i think the ija agent metal testified that he believed that he was bound to it there's been no allegation of the protocol yes and there's been no allegation here that the protocol wasn't followed it's a very very sort of basic argument that's being made which is that it wasn't handed this protocol was not handed over to the residence misery read as was robinson himself at the residen affidavit sorry excuse me when the warrant and the inventory were handed to them so when they were given the inventory when they were given the search warrant they didn't also get protocol c excuse me attachment c which set out the search  but if you look after cation specifically says attachment see is included in it the affidavit itself talks about you know the kinds of electronic evidence that are expected to be at the heart of this i mean this is an electronic this is an electronic offense we're not talking about the possession of firearms where they're going in and agents are going in to look for physical evidence of an a r fifteen they're looking for evidence of how somebody filed false tax returns electronically so i think that it's absolutely the case that the warrant itself explicitly authorizes the seizure and the search of these electronic devices and would you respond  airport a few months earlier so i believe that if you look at the affidavit or the application for that subsequent warrant it does include a line about what was the results from the church lane devices  that the way this court analyzes that if you excise that from the warrant application do you still have enough probable cause to search that warrant does that work still succeed i think the quite the answer here is definitely yes it's  simply one single sort of reference to robinson's cell phone device in the context of a mountain of other evidence that is not at issue here at the agents when they went to search church lane they found hundreds and hundreds of checks that were not in robinson's name they found access devices in other people's names with robinson's picture on them and you're not just talking with physical things they found no i'm talking about just the physical things and these were both used to support the if subsequent warrant applications as well as what was introduced  trial which supports the harmless beyond a reasonable doubt argument that we've made in this case we don't think you have to get there but the fact is there was a mountain of evidence including robinson's own confession that he had indeed used these he had filed these false tax returns he had cash he had cashed these checks that didn't belong to him and during that interview with egypt michel he said the cell phone text came up talking about los angeles they even said what is this about he said oh i'm using my cell phone to communicate with the person who is my supplier of more false checks i'm going to l a to get more false checks so we have we have his confession we have then probable cause also to support that there would be certainly evidence on his cell phone and cell phone devices apart from what was already established in the morning application so that also falls into the jefferson and paine land of having reasonable reasonable reason that reason the belief that's developed on scene at the type of the time of the search to support the search of this  digital devices we have all of that so the position that we are maintaining the government says that this was officially valid warrant it was recently executed and there should be no no concern about suppression or or those remedies because we simply don't get to that point and certainly if we do have to get to that point when we look at the actions of the officers we think that we have a very strong good faith argument because they we have text in the warrant that supports the agents doing what they did which was to search the computers and cell phones we have case law the jefferson case in the case that support that when you have reason to believe that the evidence that you're searching for might be contained in the computers and the cell phones on site that you can go and search those so we don't have any concern that they i think and then we have a situation subsequently when the officers are faced with looking at the cell phones from a different that were obtained from the search incident to arrest is a context that they went and specifically got a separate warrant so we have many good reasons to believe that if we ever get to that point of this  point that all the actions taken by the officers were undertaken in good faith i do want to again just point the court to excerpts of record one fourteen and one forty two just to clarify that attachment b which specifies the different categories of evidence to be searched and seized was incorporated by the warrant also pointing the court to categories eleven twelve and thirteen that talk about record information  information i think clearly talking in combination with the fact that we're talking about evidence in electronic form refers to the ability to search and seize computers and cell phones we believe that this court should a different war that is a different war and so the application that we're talking about here or the warrant that we're talking about here starts on e r one fourteen yeah no doubt about that one and then and then also what we have here is actually not the specific warrant what we have is what the was  the comment counsel just made about the defense confession in terms of a harmless error analysis let me say first of all i'm the last person who's going to argue that the evidence that went in here was inadequate to sustain these convictions it was overwhelming i g that i'm not arguing otherwise but i don't think it's clear how much of that would have been off the table had the proper suppression order been issued and the fruit had been figured out and excluded from the trial i really urge you to send this back for that hearing and if we did that if you take his confession coupled with the actual fault returns themselves isn't that sufficient to support his conviction you just heard counsel say agent mitchell went up to the defendant with his cell phone and said here i've got your cell phone and all this stuff do you want to talk about it the cell phone was used the contents of it were used to get the  you have one other question you had challenged the jury instructions and i'm wondering why that issue was not invited there or given the fact that and i realize you were not counsel at trial but counsel basically made no objection to the jury instructions or the verdict form and stick to the instructions but now argues that there sufficient he did ask before the jury was instructed he objected that there had been inadequate proof of means of identification on in other words he was objecting to the government's theory i understand then the government just to the sufficiency of the jury instruction and right i know that the court had a suicide bomb today judy actually to add that correction in once the prosecutor went on in such detail repeatedly saying this is the theory this is all you need you only need a name in a signature that's all i mean that was said repeatedly forget about all the rest of it not forget that's overstating but definitely telling the jury that is means of identification well it's not and there should have been clarification at that point where they said there was no objection from defense kallstrom the order or the closing arguments rather nobody did make a motion for a new trial based on that error and he did object before instructions were given