here with some effort we delighted to lead if you let me in let me just start out first of all when i was putting the brief together and trying to talk about the issues that came up in this charged with this i'm guilty of it i just want to get this through but all of these issues keep popping up and when i was putting the brief together you know the last segment that i've got is about the sentencing hearing the and the use of the pictures and when they were received and how the computer works and so forth because that created that dilemma for me from the beginning we have  trying to start out with your honor some by the way i apologize i do want to reserve three to five minutes but here's what i want to try to point out is this whole argument about how many pictures there were and what pictures to use and when they were received and when they were possessed of really points to our argument about due process under the sentencing guidelines with athenians and that is i mean it's about it and it just automatically download in his computer if that is true well your honor and i think the record speaks to that i was reviewing the sentencing you know he was called and said bring in your computer and they they d and run and getting to that i mean there's thirty two folders when there's normally four of cache files but there's no a camp to erase dulls and so clearly i think that clearly we can say that issue is i mean logically when you're when you go to a child pornography website you know that you're probably going to see child pornography but why don't why didn't congress just pass a law that said you can't goal to  child pornography websites it is illegal for you to view child pornography on your computer period and then there will be an issue isn't that what the statute is not i mean it's possessed you know that's that would be the hard drive from the record i may not have been trying to find out if you have a grasp on what technology they're talking about was it look to me that for the record if i access a web page web page just me one page it may have sixteen eighteen pages involved in it that is called the with a so i access it and i say there's a picture on page one of this web page and i look at it and then i log off does this record say it seemed to me it's they've i might be mis reading it that the fact that i went to the web page the computer is now downloaded all sixteen or seventeen pages into my cache file in case they ever want to go back all sixteen or seventeen things that are behind what i see in my cache line just in case i decide to log onto their web page again someday there it all is in my cache well is that accurate that with the records that it is accurate that is how and i may not have looked at the other sixteen pages and maybe i don't even know i can look one way or the other i haven't even looked at tho therefore if i don't know about the other sixteen pages then i can't pose ask them because i have no knowledge of them is that the point i mean it has to be knowingly and purposely possessing and receiving and you know if that and i mean i knew about the sixteen seventeen pages the question is can i possess and whether i know about them or not and that my my argument is i mean clearly you can't be convicted of it i mean you can't be convicted of the crime of  obviously the arguments gone well it's are has gone certainly is that when you get up on your screen right exactly i mean we don't know what amount in the cashews he has actually been viewed or has been you which again leads to we cite as opposed to the case cited by the government you know really seems to be quite opposite from each other the government has an obligation when a con plea agreement which is a contract is signed to present that to the court they can't back out of it i mean it's not binding on the parties and tell the judge accepts that that's true but it is  some well here's what i'm actually the judge has me i'm serious because to make that argument you have to make the leap that yes they can't just volunteer i mean just unilaterally saying no plea agreement you don't have it when he says i wasn't meeting of minds he's wrong the government presented a list of here's the elements my client is not there before the judge saying i violated every one of those elements is true i'm guilty of this offense there is no plea agreement on  no meeting of the minds you were going to plead guilty to possession and will dismissed receive it and he didn't do it that there was a meeting of the mind the fact that we have these issues about whether or or have them do anything the plea agreement when you sign and file with the court is an agreement to present that to the judge and it is binding on both parties as far as the duty to present that to the judge you can try something in both the great or in a lesser he can plead the one in you can try him and the other doesn't matter what do you do with well your honor i i would agree that those cases would apply but not if every just don't see that so we're going to have some saying well the problem in this thing in the sentencing is if we aren't using else cash trials none of that falls under the protective act we don't have that five year was all of this stuff was received prior to april thirtieth two thousand and three and now those are the facts so i mean all of them fell before the project that came into being as far as  it's not the issue about reservation the right to appeal under rule eleven and two and it's obviously not the booker and protect act and fini amendment argument so yes there are going on the two arguments i think that are really the most important here the first internet and i think clearly says that viewing child pornography is receipt that is the point of looking at child pornography it's like having a beautiful picture that you look at to enjoy for pedophiles that's what child pornography is s make it larger than it appeared and there's this whole discussion in rome about how he manipulated the image that came in that he received from the website not always the image from the temporary internet cache file themselves so he's manipulating you know if it was one of us the eddie bauer catalog or the state line tack catalog let's look at this picture of a saddle but bigger i really like that i'm going to print it and i'm going to save it because this is what i want to buy but he also of child pornography websites where he would subscribe and then was able to go look we know that he had a grand sum total of approximately nine hundred thousand images it was three notebooks full of images of child pornography that were in his temporary internet cache finds and we know that over a period of almost a year he looked and looked and looked at child pornography and the difference between rahm and all those discussions were about  this case i think that you hit the nail on the head judge harney and that we're talking about receipt and the government has always said when you go to a child pornography website knowingly and you ask for child pornography images to come in lesser included of receipt then you're absolutely correct in this case the judge denied the multiplicity argument and therefore sentenced him on both counts but to run concurrently so you're correct that if you specifically didn't get raised that had been saved and then dumped into the recycle bin directly before the f b i talked to him the number of images that were still there on the computer and then they over nineteen thousand that were in temporary internet files and the judge just basically said look i'm looking at three three inch binders completely full of child pornography this is way more than six hundred which is the top guideline enhancement there is no doubt in my mind that this guy had more than six would you agree though on the hundred that were on the hard an issue most of the cases that i deal with in the district of montana we have thousands of images and so the over six hundred is not an issue but if we had a case where we only had twenty five images or we were right at the cusp of the change in two g two point two to go up a point or down a point we would want to know can i prove exactly when those were received and then how long he continued to possess them the problem with the multiplicity argument that i see is that you must prove and knowing receipt and knowing possession for those two separate offenses so i've actually had defendants who have gone out and looking on the internet for adult pornography stumbled across child pornography so didn't knowingly risky but that i'm looking for adults and then went oh ok well these and that is possession but it's not a knowing receipt and so we have to be careful about just automatically saying that one is a lesser included at the other i've got another case where i'm charging the guy with possession because he can receive a videotape that you've ordered then go i really don't want this i don't want to have anything to do with this and throw it away and the proper charge for that is knowing receipt or you can like in my other example you can be looking for adult porn get some child pornography in and go different than ron there is no evidence that he went in and manipulated enter any of the temporary internet files or knew that he couldn't but those are clearly received he paid for access to go to those choppers are a few websites help with that yes but that's that's the question i was and those all wind up in his cache but now why has he not only received the other ten thousand even on your theory because i think that when you go to those sites you knowingly receiving however much material comes better analogy is that you certainly see the part that you that you watch but if you get up and go to the bathroom in the come back you didn't receive that part and so i think there is a little bit of a difficulty here in terms of  or no i don't know the answer would be in this case we don't know we don't know that you can download more than one image right because what we didn't do is reconstruct his you can reconstruct sometimes never made in this case so the answer is no we don't have that on the record now listen to me do we have more than six months yes or no my problem is in of the six hundred dates the judge did not make that record now because we didn't ask that question ok well i'm glad you're moving forward in this maybe you should ask that question shirt and i say to myself you know i really like girls between seven and eight i know log off of that i think the seven year old i don't like secure all them well maybe i so down in rows as i go off and i've never seen a future then i couldn't prove that you knowingly received child pornography even though it's in your temporary internet files i would want to look at what was your search term precisely and that's what we did in this case is to make sure it's a knowing receipt we looked at his search terms we looked at the child pornography websites that he purchased access to we looked at all of those things an example is when we do a computer analysis as we did in this case we have the forensic analyst look for specific search terms what was he googling what was he used and where was it going specifically because you can figure out what they type in w w w dot asian give me a for example for example in this case is that she used to search terms that he even admitted like little girls sex to look for pictures or naked little girls to look for pictures those when you get those kinds of searches and you get the websites that come with them those are now in possessions because niggas little girls in the wrong age comes up you're still looking for naked little girls but he's not looking for six year old he's looking for eight year olds but that's like saying i want to without knowing that receiving it because somebody could hand you an envelope that you don't know has dirty pictures of little kids in it and you go ok whatever this is and then you open it you go oh i really like this and i'm going to keep that you didn't knowingly receive it because you didn't know what it was but you certainly decided to keep it not throw it in the yes absolutely i mean we we continuously argued that that wasn't possession or or receipt nor did it fall under the protect act all of those are the issues that we have before the score your honor there tell you that there is some evidence of how much he went to web sites and how many times and that would be in the cookies area and and there was an exhibit admitted and a discussion of that on page twenty four the other issue that i wanted to talk about argued that he couldn't he couldn't use receiving once we fled to possessing i understand there's a nuance between conviction and actual sentencing but i i do you do argue that we have preserved their history and lastly you know i want to point out to the court just one last time how ridiculous this whole issue of how