the morning morning jeff circa in may please the court my name is peter goldberger and along with attorney and durbin it's my privilege to represent roderick below i'm reserved two minutes of course writing for rebuttal in the time available i would like to try to discuss the suppression issue involving the lack of probable cause for the search warrant the interrelated construct of amendment and insufficiency issue that focuses on count one probably leave the other of the denture issues to the brief unless the court has questions vosburgh apartment was searched under a warrant issued in late february of two thousand and seven based on information concerning as far as he was concerned as an individual or that location was concerned information concerning a two minute to four minute sequence of events involving an attempt to access a video on the internet an unsuccessful attempt that had occurred four months earlier in late october of two thousand and six there was no substantial basis for the magistrate to conclude on these facts that there was probable cause to search that apartment in late february for items specified in that warrant which were variously described as instrumentalities as evidence or contraband that was a lot of inconsistency in that respect the affidavit was fairly long set a lot more than i just said but there were no other facts that related to mr vosper the lack of probable cause for this warrant is particularly obvious because of the age of the individual ised information the four months that is it was stale sales is not a separate issue it just goes to probable cause because and in this regard the evidence is easy to see in comparison to three of this court's cases there was no evidence of continuing activity which was key to upholding the warrant in the harvey case there was no evidence of any activity that's harder that it didn't fail to attempt insofar as the stuff and it was recent weak information that the court found sufficient to to uphold the war in what it called a close case in ritter case which just sniffed dissented and said the evidence there was a lack of probable cause because the solid has never of held a probably cause without evidence of the kind of crime i'm not sure i remember exactly which case it is but i think all of those cases shields in one of them involve ongoing criminal activity  shields was was was at the bribery case the where there was years of a pattern of behavior pattern of criminal conduct all of the other cases are of that high so your best case in my judgment maybe it's just pride of authorship beginning of the government's very well and but that's the only mention of zimmerman's which is the most recent case law on virtually i found almost identical facts and the most similar one was one piece of solid information about a possession of a picture in fact it's better than our case for the government because there the evidence was that the picture was on the computer that was in the location here the government's evidence was of an attempt to acquire pictures that were not in the location  is about the characteristics of people who collect child pornography or who are pedophiles and yet there is no way i would all be knowing their mission that is such a holding of them and there were two holdings one was a fluke faith except in the one but but the first one was the warrant application did not contain any information indicating that zimmerman ever possessed child porn much less that child porn would have been found on his home on march nineteenth pranky nine does we agree with  the recitation in the affidavit of the tendency of a far off to retain a collection yes because that tendency that trait whatever you want to use as a term to describe it has been recognized by this court and in fact every cited by chief judge suresh in his opinion in united states versus harvey exactly the opinion says we agree with this reasoning yes and accordingly we believe the information in the warrant apple application here was not stale that immediately follows a discussion of the expert opinion in the affidavit relative to the tendency to retain over time absolutely lection of child absolutely and if there were any facts in this affidavit the mr  this case from all the other cases of this kind that rely on that characteristic that boilerplate language that the government uses in these warrants and that is if you look at those cases you will see that those people had prior convictions for molesting children or for possession or for transmitting or trading or they had there was evidence of downloading or there was possession or something else that ties the individual resident of the location to the characteristics otherwise the characteristics are completely irrelevant and very prejudicial we talked in german about boyle a play we didn't have to rule on boilerplate but they said the boilerpla provides you know facts but no muscle to the affidavit this boilerplate here we talk about child pornographers five pages of the traits of a child pornographer and under the definition in the affidavit there's no way that right and i would like to think the magistrate isn't going to be prejudiced and that i cherry that that he or she he or she couldn't help it but it's certainly distracted by ninety some percent of this affidavit that you have to search to find and resolved that issue against the government yes i my recollection and it's been a while since i read district court's opinion my recollection is that district court did not squarely come to grips with the good faith issue but the issue has been addressed in the briefs yes what do you make of the fact that the more magistrate judges i believe in the course simple prove this search these exception in every case the the it's an objective test this court stands back thank goodness we have a court of appeals that has the posture that you have for looking at cases and we have them cases like reasonable it's about the exclusionary rule there for about the executing officers on the fasten out on the fact that a magistrate issued it but on the facts set forth in this in this affidavit and warrant is it reasonable to conclude there just isn't that child there was zero evidence of child pornography but i don't see how that affects the objective analysis of what constitutes probable cause no the young there's no more deference in such cases and there's no difference to them if the court is inclined to reverse on on this case this ground it would be for a new trial so the court would have to reach in any event the sufficiency issue on count one that always has to come first so i just think they'd briefly address that the indictment here alleged the possession the knowing possession in count one of certain particular so called visual depiction on matter that is a certain external hard drive what is the visual depiction on stage yes of the statute  these things it's a collection of data on the right to drive because you can't look at the hard drive and see a picture a human being can look at the hard drive when he sees the hard drive there is no visual image visual image is the term that's used for something that our eyes can perceive a depiction is defined contrary the way the words are used in ordinary english is why we need a statutory definition as a collection of electronic signals stored on a computer device which are capable of being converted into a visual image so the snow and the statute in order to make it illegal to possess those electronic signals on a computer device makes you talk has a definition for that concept but can i cut to the chase on this issue really at least to me because my understanding is mr vast rigs claim is that trial counsel his counsel was essentially should and i'm trying to figure out how counsel was ambushed at trial here by the bill of particulars or by the response well when the judge ruled that the government's response to the motion for bill of particulars rendered the request moot rather than denying that request the district court was ruling that the response was tantamount to what the defense asked for otherwise that request was not moot what did possession of that which he was accused of possessing and she was also prepared to discuss all the computer forensics about all of the governments of it she said she did in fact discuss the very issue oh yes you may need to maintain is implicated the evidence was of after it was raised in the postal motion it wasn't raised contemporaneous that at the closing that's true but during trial there was no objection because the evidence was all relevant the government's evidence was relevant today don't have to show only the not all right go ahead and write that there's been the cases are clear that when there is a change in the essential charging terms of the indictment and here it is what in a possession case what exactly is it that you are accused of knowingly possessing it has to be a certain thing at a certain time or range of times in a certain place and if the government cannot change from possession as alleged in the indictment of a particular visual depiction that is collection electronic signals to something else which the evidence at trial shows would be easier for them to have to prove have a charge that is not what they charge they can't get a conviction on that i'll reserve the time for it and you never know what good morning may it please the court my name is denise well for the government i'm going to start my argument with responding to mr goldberg ors i have an argument on the search warrant bearing in mind that the standard for a search warrant is probable cause and that's what we're dealing with here probable cause and to start right away with the zimmerman case the reason the government put it in a footnote judge perry is because we believe it is completely distinguishable then the affidavit in this matter and it's dissing which will be cost affidavit in our matter to search thirty seven state road which was the the location was completely based on child pornography whereas in zimmerman it was based purely on adult perper not her feet and in zimmerman the government conceded there was no probable cause there this scenario that was the make way after our holding but but whatever we know what you say here it's completely dealing only with child pornography that it that an ip address from this location thirty seven state road attempted to re times to download an image yes i agree with you that is the probable cause that is reciting and i suggest is probably there i mean you it is fair to say that that four months are only boss for you not somebody else made three failed attempts within four minutes to access information but but there's nothing nothing that says that he ever had child pornography in his home or any other place and the government submits your honor that is correct but there's no requirement on a probable cause standard for an affidavit that we have to show something more that he was a paedophile that he physical trying to show that he is a child pornographer right because that's the first five pages of the boilerplate we're trying to show your honor that there is a likelihood more likely than not that there is child pornography at that location the fact once four months earlier he couldn't get any child pornography on the the one of the three failed attempts informant that's right your honor and he never had it not you have no reason you have nothing minutes on one occasion that were months earlier and that is enough downloaded i have trouble answering a cell phone that's why i yes with the whole first section of the gulf of mr goldberger three fight and i'm trying to understand this technology in this new world i do i do understand some things though and i understand there has to be a basis for going in you know forget it and just go into his apartment twice they went to his college they went to the university met on these only the four year old with dad video when he got it it was encrypted it was for lack of better word godly goop that was the word used at trial he got it it was encrypted in your scenario your honor if there is something more that's needed and we don't leave there this is enough you can never do a search warrant a search warrant is based on probable cause that there will be evidence at that location and their fact that he downloaded successfully what he saw was a four year old video hardcore that is enough already but it but the point is it was and to a determination of probable cause it's because the probable cause must be that there is at this particular residence which was found and identif by virtue of an ip address and then subsequent staking out by law enforcement officers that are correct that's that's how the place is idea the address traced back to the device which happens to be at this residence but the c is that app this residence connected to this particular computer this particular device there is a child that's what is at the heart of the hurdle offense so how does this which apparently cannot as data constitute child pornography provide anything in the way of peace p c that there is child pornography at this place because the affidavit when read as a whole discuss is that people who are trying to get on a rant she the hardcore and message board which is not easy to get on to an affidavit goes through the steps of how difficult it if you have any evidence for lack of that or for any proof any in disha of probability that at that point in time there was anything in the nature of child pornography the site that was searched in the affidavit as a whole if you're trying if you're on this message board trying to get that video there is a law enforcement officer said there somehow you have the rive of pain gain possession of child if you use ranchi that there will be evident i prefer the term raunchy iran she may be more accurate for this message board your honor if you use if you attempt to get if you're using raunchy and you can get on that board and the affidavit goes through how people who get on raunchy are likely people who are collectors have an interest in child pornography and the evidence will be there is no allegation though that this defendant was a child pornographer was a collector ever had one piece of child pornography in his home prior to the and there is a and there was an in united states versus shields where the third circuit set that somebody registered would a reasonable officer goes in now don't forget you had special agent jesse was also one of the executing officers he was the a field and i and one of the executing officers on the third he knew he knew what was going on and that in the zimmerman is is is made very very clear particularly when the ophelia is an executing officer your honor and that's your that's where you have to get that's what you have to get around also and what agent jesse knew was this stablish law at the time that a linkage from under united states versus harvey in the third circuit a linkage of an ip address to a residence is enough for probable cause and no it wasn't only pertain to an adult pornography affidavit they went to search for child and an adult and are affidavit only dealt with child pornography and that's what your affidavit dealt with failed attempts on one date four months earlier in a four million period of time to get child pornography and then it dealt with fifteen pages of of stuff about child pornographers who as you define them in the affidavit are people who produce sell trade or market pornography that's not any allegation that what did that then four pages of characteristics of collectors talking about the most cherished sexual fantasies acting out there's no allegation here and nothing to show that he ever had one piece of pernod really much less a collection and finally a page fifteen we talk about the three failed that you talk about the three fields i mean that's it your honor that is enough and that is enough i'm probably cause and i'd like to point your honor to the record on page one o eight where the affidavit links if you're on ranchi you're going to collect you're going to have a bigger collection and i can say it says images if posting of images on message boards is common among collectors of child pornography in order to share the images and where is the evidence article that's i mean we have no where's the collector you see you're back to collector again somebody who uses ranchi this this problem cause is enough in this situation otherwise the government will never if less if you require more proof that the user is a child pornographer or paid off pedophile we would never be able to do a search and this was enough and that officer that a finance agent  college and the two of his apartment you come up with exhibit fourteen and fifteen to depictions of child pornography correct that's what we come up with a lot more we came up with destruction as well as as well as the evidence of attempted destruction which you know i can drink out of that i don't have a problem but then we go to trial and and what you come in with  just sixteen third thirty lola jan pictures which you describe as exceedingly lurid but not trial porn and government seventeen a and b forty six non porn images of little what the destruction but these hundreds this this testimony in this evidence of hundreds of nude lurid things to prove this to show he's a bad guy that's what it was isn't a no your hon these images and these images the lowly chan images were to show to go against what his key defense was which was miss identity on the ranch here as well as no lack of knowledge and lack of intent so this was to show that his defense goes to the heart of his defense but that he was interested in young girls and it goes to show why he destroyed all his evidence while the f b i was knocking on the door in a family of though i don't know that this court has dealt with that theory admissibility in a presidential and you do have authority from several other courts of appeals suggesting that such a logical inference can be drawn i think might be i don't that that can't be i'm just it just seems maybe so excess it's kind of like you know even when when you come for sentencing god to give to you and give him up right now i don't know if we had jews remember if i may respond to judge buried and take additional time to just make an argument on the constructive amendment it was an excess of the manner a lot of the the the evidence was cut down that the the the the government sought to get in the lowly chan images were not pornographic they were not naked they did not show genitalia they were presented in a method that was very quick and there was an appropriate instruction by the court the fourteen and fifteen if i may just take a moment to respond to the constructive mehlis thank you mr goldberg years argument here on appeal rests entirely on a construct that there was a technical difference between that image the picture and the j peg and the picture in the d b and that somehow they these contain different data and that the government charged one and not the other and that is a completely pos trial appellate legal invention well he's conceded that there was no contemporaneous action made any point and that's why it fails on plain error and the defense counsel the trial counsel in the beginning yes it was he knew this in the bill of particulars and i can put as well as the rule sixteen letter as and also the key the key here is that the defense for their defense expert dr mercury was entirely of aware aware of it as evidence in her report the body of the expert report the conclusion as well as her demonstration she their whole argument was that j pegs never existed and the were inaccessible they knew that in the government's argument was the j pegs existed in the fence to be were proof of that this entire argument is just a creative invention on appeal and there was no ambush at trial there was no shot this in the simplest terms for someone of my generation isn't it the same stuff in a different form yes your honor it's the same image the distinction is the location not the image and i images on the computer then there will be very on workable cumbersome indictments in the future in the future involving hundreds if not thousands of counts what the law as it is as now which mirrors the statute is you charge that the matter which here was the external hard drive and that matter contained visual depictions you do not and should not have to specify in an indictment that the thumb is that it came from the and that's right your honor and again it was his expert the defense experts at something different than the government expert and the jury heard all assessed all and rendered their independent verdict and they were capable of doing that as sessing the various testimony before them let me go back to something that you said and or started to say in the beginning what was he successful in doing you used the term download but told that all he did was make an attempt to tell me exactly what he did what went on the computer yes and file was on the external hard did it have to have been copied from another source or come from another source that has how was it down i'll start with the latter the  on the external hard drive the government expert testified half a dozen times at trial on cross interact that in order to be on the from c b j peg the fuller image had to have existed had to have existed and he he testified he couldn't tell how it came to the external hard drive for sure because the evidence was destroyed a lot of evidence was destroyed but he testified it got there from some overt act affirmative act either downloading from the internet and e mail or transferring it from a cd some other source so the government expert was clear and repetitive throughout his testimony that that's how in order to get in the forms d b it had to have existed and the reason we know it existed is because it was in the it was in the j jack one one one directory five days earlier and he had evidence on that that went against the defense expert who said that it did not exist earlier but there was enough in the record that the defense that the government's expert testimony that that the fact that it was possessed and and previously existed that supports the verdict hope i addressed your honour's question with respect to the attempts the only reason it was charges attempted child pornography and that's the there's a legal reason and then what actually happened the legal reason was charged with attempted child pornography just because when agent looters the f b i can put real pornography video on their knowledge so when it was downloaded it was encrypted it was that's count two and this is the ranch account yes count two and moved to that so that's why it's attempted child pornography however sitting from the user perspective at thirty seven state road that user was successful in downloading that video in the thames of he got on it he understood it he i don't understand downloading the video of the ranchi video that he downloaded he from his perspective the step i don't i don't see that i don't see how you how you call it an attempt if he actually downloaded it because it seems to me that if you download somebody if you add that you pose that issue and your argument on the probable cause issue maybe i'm oversimplifying but what i understood you to just say is that with respect to count two the attempt to charge it is an attempt because he downloaded what he believed to be what he expected to be what he hoped would be child pornography what he ended up with was what you earlier characterize because that's precisely what the agent intended to transmit to him is that right not child pornography that the agent was not going to send him child porn images right but it  user is intense in all i understand that but the consequence of that action was that it was merely a test an attempt he couldn't complete because what he downloaded was not child pornography that's why he was charged that i understand that that's what he's charged with  m but the result of that is that he gets government go not child pornography he doesn't have child porn as a result of that internet transaction for purposes of giving you probable cause and you have nothing burly for purposes of a demonstration of probable cause that is in fact and law child pornography within his possession but it's the intent that gives us the problem  so it's very i deeply regret that i have concluded that it is absolutely essential to master the technology to understand this case because that's where i was formed five months ago i also didn't know this or calculate but you must understand vocabulary in order to get the case right i'm trying her right and that is the visual depiction as defined in the statute is only a certain set of electronic signals which are necessarily by the way they're defined in the statute in a certain place on a certain piece of computer equipment that's what the statute defines it has to be that way because that thing had the visual image which could be resolved from that so called depiction must be child pornography so you have to know you have to be able to identify the computer bytes so that you can then forensically resolve them to an image and test that against the definition of child pornography it's certainly not true that you have a gigantic indictments with multiple counts because the statute prohibits the possession of matter containing one or more visual depictions it doesn't matter how many there are or where they are it's one count for possession of the hard drive that's the crime so but you need to know what it is exactly on the hard drive that is said to constitute the crime and you can't say it's something else that's similar in some ways the example used in my brief was a reproduction in a newspaper of a famous painting or the painting itself they are the same visual image in a way but they are not the same  and the statute defines the thing as the crime it can't be a picture of the same thing the just on back to the shields and the probable cause for a second i apologize for forgetting which case that was that is the other child pornography case the one that the guy that joined the group called candyman and he had a child pornographic signalling email address that was already known before the affidavit was written and he had participated in multiple exchanges of facts but here none of the facts that could make it sufficient are there the fact that a person who is a child pornography collector would use a site such as ranchi does not mean that everyone who attempts to wants to get something from angie is a child pornography collector and has been so that there would be material on their computer to be found the issues are very well you know i'm sure developed here and i  that if we were to reverse the soup ration denial you would get a new trial yes question is whether they could prove a case that's up to the government before you said could you tell me again how you distinguish shields from the situation here yes there was space information specific to that targeted individual who was the resident of the place to be searched and that was because that was not an access to a well and well here we go with the technology again that guy joined a group that exchanged e mails so they had captured address and the agent also said in the affidavit although that turned out to be a frank's issue about this that anyone who joined the group would have received and exchanged all of the pornography that other members of the group traded with one