one for possession one for receipt and distribution we've submitted movie papers before this court we have identified eight issues with regard to it but first and foremost is the issue with regard to the failure of the government to provide impeachment materials as to a critical witness in the case and that witness was a special agent steven saluting it was s that pursuant to a search warrant went into this could that room a room he shared with another cadet a man by the name of a new new one in there and found the phone that had the child pornography images on them and instead chop the i mean it's the phone that was the critical link between my client and the images that asking which is the case in the eastern district and then second circuit where it was found that he together with another special agent a man named robert robb engaged in misbehavior with regard to the misbehavior good credibility absolutely absolutely it does because we our focus in this investigation in the trial was that there was a floored investigation by the government and part of what we attacked was the fact that they went after my client versus going after someone else and it was salute the that went into the room that the phone in a bag and identified as to who the bag belong to it's a rooney who claimed that it was under my client's desk whereas on cross examination we focused upon the fact that it was a desk and i knew shared there are other it was you well know but but the problem is the problem is that the phone whoever has the phone right has control of the phone is in a position where they can download the images onto the phone it's the control of the phone that's and the emails where distribution took place so it is that the control of the phone there was evidence that there were images and and e mails that took place while my client was not at west point but the thing is there are ways that people could possibly engage in what spoofing to do so i'm known but now you're getting mighty far out and certainly at your argument insufficiency of you have a dense which is not the one you're now making but a jury would be entitle to think if it was a time there it was also at the other but doesn't also go to how significant this whether it is or not well our position is that's a route it was a critical witness for the government that without waking the phone in that room to him if for example it was found are you saying that any time in egypt has done something wrong or that went wrong in another case that is something that must be to to anyone else for that agent is involved in regardless of how what went wrong here is relevant to this and you are now linking to this thing about the phone but that's a fairly weak link i should think in terms of this case i respectfully disagree with your honor if they answer your first question i can understand how that could be if somebody in one case and here said something that's directly relevant if the misstate was of the same sort as vs that  relevant letter if there was just a mistake and i'd like to know how that mistake is relevant to what happened here but but more of it was more than just a mistake it was misleading the court and then you get into the question of credibility and that's fair game so let me just and focus on what miss what the agency rudy's testimony actually was about beyond just saying i found cell phone in the bag what he said i got no problem with that but then in terms of finding a bag situated in the room and going inside the bag he finds the cell phone is there anything else he says be on there that's it was there anything else cell phone because it was a confession here they came in that this is these are items that are on my cell phone that's a crack cell phone but it's a very as far as the confessions concerned it's a very weak confession there's nothing in writing with regard to my client there's nothing recorded about it during the course of the of this so called confession my client asked for an attorney we have an issue before this court as to whether or not he was in custody it's an issue that judge  he grappled with after the earring was conducted so i submit to you that confession by itself is not make or break and whereas in terms of this agent the fact that he found it and  identified bag without more for something that i submit to you is something that would be fodder for cross examine that we didn't get the information i think that has to be noted here we didn't get that we didn't get a chance to cross examine him that's critical in terms of our opportunity to present it to the jury how we had that this could been a very very different verdict and that's what the case is called for here you reserve from todd thank you thank you very much may please the court my name is lauren schorr i'm an assistant u s attorney in the southern district of new york are present the united states on this appeal and i also are represented the united states a trial in this case the defendant ricky patrick participation in we learned of this material upon receiving the the appeal in this case having reviewed the cases of course though we would submit by government you mean the prosecution director on or was the no disputing that but there's nothing in either court ruling that goes to agents or credibility cerruti his character for truthfulness so we would submit that that is just simply not giglio material now even if the court were to find that it should new material which again we we believe it's not it is not material to the defendant case agents are finding of the cell phone which was underneath the defendant's desk which was a desk that was used exclusively by the defendant which is in the record in this case even shorty found the phone under the defendant's desk in a black bag the phone had a cracked screen which the defendant described his phone to have a cracked screen among other than that there ample evidence on the phone that makes abundantly clear is that the defendant mr hester was the user of this phone agents or rudy's finding the phone was one small piece of evidence that established for the jury that the defendant was  the phone the contacts in the phone had the defendant's home phone number it had his stepfather's number it had his own e mail accounts his own facebook account his own dropbox account the phone number for the phone was the phone number that he himself had registered to him in addition the phone access the e mail accounts and the dropbox accounts that are in question in this case the yahoo account and the dropbox and both of which were registered to him on the phone linked this defendant to that phone and establish that he was the one who used the phone and he was the one who used that phone to engage in the charge conduct here and as to your honor's point judge calibrate say they are the text messages in the phone in fact did establish that that phone was being used when the defendant mr hastert was not at west point there were text messages throughout the phone of his use of the phone while he was at home in granger indiana it's hard to imagine that some other person his roommate was using the phone in all of the locations that the defendant himself was using his phone so for those reasons the government would submit that the evidence  did not abuse her discretion did not commit any error in finding that the defendant was not in custody at the time that he made that confession and property admitted it at trial the defendant confessed  while he was at west point he was interviewed by two home and security agents he was told twice that he was not under arrest he was told that he did not speak to the agents he was cooperative he was offered water he there was no threats there was no restraints nothing of the nature that would overbearing his will or suggest that his freedom of restraint his freedom of action was restrained in any way mr mullen also made make that finding right explicitly indicating that he didn't credit them or just not commenting on them or doing findings were foreclosed any othe his ruling on the suppression motion judge percent he stated he found the testimony of both witnesses to be credit credible and he rejected a few of the statements that were made in the defendant's affidavit stating that the defendant did never was denied an attorney and that the defendant was never told about negative consequences associated with his failure to speak to the agents he didn't address all of the allegations that a reason the defendant's affidavit but during the testimony of the agents they hard for me to believe that somebody in that situation would volunteer that didn't strike you know your honor had people are strange but it is an extensive confession but i would know that everything that the defendant said during that confession was corroborated by other evidence in the case for example the homeland security instinet know for example about his dropbox account he was the one who told them about the dropbox account they then conducted a search of the confession on the question of whether possession of child pornography is a lesser included offense of receiving and distributing child pornography is it necessary for us to finally reach a question that hasn't been determined by the sure good but is it necessary in this case for us to definitively determine that question your honor i don't believe that it's here because like in other cases some of which are summary orders but in other cases in this circuit in the last several years in this case there is ample evidence for the jury to have relied on how many images  were twelve hundred from the defendant cell phone there were another one hundred e mails that were in michigan as exhibit out of six hundred in his account and then i don't know the number from the drop box account but several more so over a thousand images that we're talking about from three different sources were given that you know the from the roof for three regarding the showing of the video you don't have to show the video as a matter of proof we believe it is there was no stipulation here there was no stipulation agreed upon that the images in fact constituted child pornography or can i should say contain sexually explicit images of children and there was a stipulation that it was real children under the age of eighteen but to prove for the jury to determine whether or not the act the images constitute child pornography which is an element that they have to find the government put forward evident in the evidence of that are the images themselves now  or football wouldn't be putting on your own a we we submit that we we took steps to not pile on out of the over one thousand images we showed for there were two videos that were shown for just a few seconds and two images that were shown also for just a few seconds we we were careful to limit the amount of time that the jury would have to view those images and videos and there are cases that make clear that the government does not have to stipulate to it's evidence of a door of an element in the case and we submit here that we put forward evidence of its direct proof of an element in this case it is of course prejudicial because these images are but their pro value and the manner in which we limited their the jury's exposure to them we believe was reasonable here on the policy just final question on the polygraph given and shouldn't this record of  hearing your honor we submit that no doubt were hearing was necessary here the court carefully considered the daubert factors carefully laid it out in an oral ruling and the court considered somebody applied  we did apply dauber he did apply downward and there are cases that say you know the court it's in the court's discretion to have a hearing and hear it given the the case law on polygraph evidence the information was but in this case in particular the exam that was conducted does not have the assurances or reliability exam that was conducted was done without the government's knowledge it was done two weeks before trial was about to begin  government only learned about it after the fact upon receiving a motion to admit polygraph evidence so to the extent the the the methods would be reliable i don't think that that's the case here and there was no way to really examine the integrity any of the other answers that the defendant had provided so i think in this particular case there are very serious questions about the reliability of the examination i would like to return a moment to the video the district court in believe did not don't you know shouldn't a court before making that decision would go over your honor and that is correct that the court did not review them however there were extensive discussions between the court the government and mr mull about which images and videos were going to be shown to the jury it was it was raised first in a motion in limine it was discussed at the final pretrial conference and then again at sidebar during trial the the court was informed by the government that we selected a limited number of images and videos that were representative of what the defendant had in d c in this portfolio of a thousand plus images and videos and we made that representation mr mullin had received all of them and had the opportunity to review all of the images and videos or i'm sorry i didn't receive them but i had the opportunity to view them at the government's office and stated  last question to the record will reflect well on june eighth of twenty fifteen i raised concerns with the court as to the videos that i had observed after i had an opportunity review them with the government the judge on the record stated that the government could do basically whatever they wanted to they could put hundreds of videos in it if they so chose the court left it wide open as to what they could do so that we were left from a defense standpoint as to working as best we could within the framework of what the court had established as i put in our our papers even five seconds of some of videos themselves right that's what i raised the answer's yes and that's what i raised with the court at the pretrial level and the court made it clear to be they could put as many as if you look at the record as many videos as they wanted to the june  fifteen hearing so at that point defense was left in position given that ruling from the court to work as best as we could with the government to minimize the impact of what videos would be shown