that this case or the appeal starts out with an examination of the small connections that happens between these folks on the bulletin board and that the small connections lead to bigger results for the government a lot of ways if we start with the search and seizure i think we have at least a tacit admission that the initial intrusion on to the board through mr crosby said count was not authorize record that would show that the agents interviews of philip morris it's really the person's name tony morris i must have my notes must be wrong this three different names are charles crosby philip morris and tony i think i have the last name right anyway is there anything to show that there was a taint from felons as actions in these later interviews well i think that is my understand there's no recordings of the latter two  focusing on crosby and focused on crosby in the briefing so there is a recorded interview of crosby and then you've also look at the government supplemental excerpts of records there are these advance sheets that go out to folks that are interviewing materials and the advance sheet does not include the reference to de moon it says tell us about your other social media tell us about your other accounts but when you listen to the tape of the interview with mr crosby the first question is tell me about diem and so i think that's the taint right when an f b i agent tells you about a specific thing and it's not the name itself doesn't mean anything right dark moon or d moon but that's the first question from the agent if the name was as we have proof of in this trial and otherwise something like candy dolls or something that has some sort of known child pornography background then then we may have a less of an idea of taint but when it's dark moon here and we know that maybe one hundred maybe  hundred twenty people ever were on the darkman that the agent knows and that's the signal to the person who's being interviewed this point mr crosby he knows about dark moon and that's where the taint i think the proof of the taint what if it's an innocuous site what if it's his amazon prime site to she get to go back and look through his e mail to find his password amazon prime to get into all the personal information or that's an interesting question because you know i think it's common knowledge that within the average person's e mail there might be there could be references to at least hundreds of different websites some of which may be password protected some not does an agent who has lawful authority to go through an e mail then have to stop get a warrant go check the amazon account stop get a warrant go check the dark moon account what does that look like well i i maybe i should have backed up the purpose to be searching through the e mail is to find identifying information about mr crosby because we need to track him down for these illegal conduct on the k o f d before right it's not to continue to do an investigation about other illegal conduct he may be involved in and i think you know i would if that illegal conduct comes to light i mean that's my question what what what is there on the officer at that point well i think it came to light through a plain view sort of idea of maybe you'd have that concern but i think can look at cases like balco the balco case is out of this court once you've set pretty strict limits to say if you're looking for one thing here would be the identity of mr crosbie then you can't have this wide broad open range to search for everything disagreement here on that but i would like them so i think it's a good point that the dark moon there was no indications that dark moon related to child pornography just by looking at the notices from dark moon and i think what the court has to do after that point is if if you do find that the intrusion created a taint is if that taint can be attenuated later on we're concerned we're saying that the taint can't because the consent as i described with mr crosbie at least the only one that we have a real clear record of the consent was premised on the idea that the law enforcement already had information about dark moon at that  point and then the foreign search or seizure again within say is just a continuation of that chain when we know that mr crosbie consents and we know about the content of the demon and it's only after that we know that information or the government  that information that they go to england to get the materials from the internet provider and they enlist the help of the law enforcement in england to do so if there are no more questions about the fourth amendment portion i would like to move on to the venue which i think is another one of these small connections with a man named paul went so let's and in paulson montana who's on the dark room board for what the government admits is a two week time period and that slight connection we're not saying doesn't make him guilty of being part of that conspiracy i don't think there's any dispute about that it's that there was a definite break at some point that he gets off the board and i think we can document the break through the government's proof and when he severs himself from that board the conspiracy with him ends and can't be retroactive can't be pushed off into the future to have other people who join later be in a conspiracy with person who is no longer on the ball isn't it isn't it one big conspiracy you know well it is one big conspiracy but then aren't you asking us to adopt a rule that says that whenever the government wants to indict a conspiracy first it has it has the burden the government has the burden of making sure that there's on that there's evidence of ongoing activity within the conspiracy on the day the indictment is headed now within the district where the indictment is handed down no i think because this is an affirmative defense it's it's our burden it's mister it was mr brown's burden to come in and but if and if the government hasn't done what i just stated then the defendant will prevail on that defen correct and that's the role you want to add up it's possible that that's what happens if there's no proof that that these folks were engaged in the conspiracy at the same time and i don't think this is a unique role that's that's we have always back from levine and saying these are principles that guided conspiracy law for a long long time once conspiracy that right there is not any you know arguing that there was a separate conspiracy people i am came in later i have written distinct conspiracy i am saying that k o f d was a separate conspiracy from dark moon for the whole thing wasn't your view it's not an all there these guys are not all you know it's in there that they had common member stuff isn't make it us doesn't make it one full conspiracy between contents of that board and so sometimes just like a drug case right you can have a marijuana conspiracy over here in a conspiracy to distribute cocaine over here that doesn't mean conspiracy to do just tribute drugs equals the same conspiracy there may be variations within those conspiracies and that's what i'm saying happened here that the make up of the two boards were different enough ok and and i don't want to get too far ahead there what i'm arguing here is not that  i mean certainly we argue beforehand that the district court made an error by not ordering the venue issue on its face but i think what developed at trial is that the second part of that test is that once there was a dispute about whether mr wentz its had withdrawn or not that then transferred that to a factual issue at trial and that's the real error that happened here is that you don't need to make the ruling about venue was always proper you need to make the ruling about is this a factual issue that the jury should have been allowed to hear all of the evidence about and they certainly weren't allowed to as as a matter of garden variety conspiracy law it wasn't mr brown bound by all the activities of the conspiracy that it transpired before he joined the conspiracy and garden variety but not but once mr lance which makes that break he's not brown by the activities especially when there's not i don't expect to concede the point is to venue but in terms of criminal liability mr brown is wible for the acts of the conspiracy that took place before he joined the conspiracy or no if that material was available and what i think the proof showed a trial is that there wasn't even proof that the material had put on there and liable for all the acts is an overstatement but he he whatever agreement was made before he became a conspiracy that's the agreement he's liable for the agreement yes he's a he's he's liable for that agreement i agree but that mr wentz which is no longer part of that agreement should have been presented to the jury and i think that's the point i'm making here kevin and you want to address the last issue that happened during the course of the trial yes i do the closing argument when herring there was a restriction on the closing argument and that the main part of mr brown's argument was that the common contemporary in ordinary definition of advertising may not apply to the actions come in and argue that the structure of the board the clothes nature of this board meets the definition of advertisement as i've instructed the jury here so what did you want to argue we wanted argue that yes use your common group like a women's group to come in and exchange clothes used clothes because i don't like this style any more you don't like that style more you come in there's no advertising but the group comes and meets at somebody's home in a private setting and they exchange those items that would be the argument in this case isn't statutes a notice or advertisement it does say notice but the government certainly charged advertisement in this case and i think we can get it if the p t a were sent home a flyer with all of its kids that would be a closed closed universe that come to come to the big make sail and carnival on saturday involving hundreds of people but it only went to that closed universe that would not be an advertisement of any kind i think you could make the argument it wouldn't be i think that the circumstances you gave certainly much more open but i think the circumstances we had here in germany here you're not trying to prevail on the merits in front of us what you're saying is the district court decided this element i am saying that they did and we don't have to agree or disagree with the district court you're just saying your chance to force the government to prove that element got taken away that's right just like if that it would be a constructive possession case in the materials of the drugs would be in that close dresser drawer right in somebody's home if there's somebody else that may have access to that you could still make that argument even if you think it was not strong so and mr brown was not given that opportunity to make that argument because you're harmless or structural it's structural in this point because that was his defense he made that clear to the judge and the judge anticipated that i mean that's what the presentation of trial was and that's why he restricted it but that i reserve my remaining minute  argument please the court said peterson from the district of montana i'd like to start with the advertisement argument and then work my way backwards with regards to the advertisement there you'll notice in our brief pointed out that the standard of review conflicts in the case we would argue that under haring the appropriate standard of review should in fact be an abuse of discretion and the reason that we believe that the district court was correct in this is because it what the district court was doing was determining the legal definition for advertisement it wasn't restricting mr brown's ability to argue the facts with again the legal definition of advertisement the district court never gave a definition of the advertisement it did it followed the it fall of the ninth circuit's finding that it was the ordinary reasonable re with what the ordinary meaning news didn't say didn't say webster's dictionary defines advertisement ever type as all it did not want to overstep and give anything that was beyond what was not supported by the law and so that's why i went into that argument ok so so mr brown in other words proposed a legal definition of advertise mean that included the closed network type thing and the court considered that when it was reviewing the jury instructions on how to instruct them on the law and said no that's not what the legal definition of advertisement has and i'm not going to let you argue to the jury that that's what the legal definition of advertisement is but he could but why couldn't you just argue i couldn't stand up there and say look you la factual issues in the case mr brown did argue the facts of the case relating to advertisement and that's an e r for eighty five to when i heard him or i go i didn't see where he was able to argue that the clothes that's right that's right and that has to be his best argued and the reason that he couldn't do that is because it's within the court's discretion to preclude arguments that are incorrect statements of the law when so doesn't that statement of the law if the standard is common sense or what have you why is it out of bounds for the defendant to say common sense dictates that a closed board doesn't meet these requirements because of all all of the reasons that that defines noticed an advertisement and when it looked at the legislative history and it specifically asked mr brown give me a case supreme court federal district state give me any authority that is going to support your position that this cannot be closed and he couldn't do it and so that's why the judge made that finding and from and made it as a legal definition and precluded that argument but as he has the appellate right to worry that the judge is importing additional requirements that are not contained in the jury instructions in other words that that the there is somehow a burden on the defendant to meet a more specific definition of close to a minimum or more was a definition of notice rever ties but that's different than the one that the jury's getting i think that it is always incumbent on the parties to argue within the bounds of the law and the legal definitions that are given and i think that it's within the court's right to make decisions that determine what the correct legal definitions are and here judge christensen made the made the finding as a matter of law that that was not the correct legal definition and that's why he would not allow mr brown to argue outside of that that he was still able to argue the facts as it relates to whether or not they are in fact notices and are in fact advertisements but the key fact that it was a closed system with not able to case is the case that we have cited to the court on the ninth circuit which states that when a rational juror jury could not fail to conclude that the preponderance of the evidence establishes venue then the court is justified in determining venue as a matter of law so what the court did hear is that mr brown wanted to argue lack of venue due to paul when switches withdrawal and the court basically took the simplest route when it was making its decisions on this and it and it ruled as a matter of law that paul went to which had not withdrawn and he knew all of the facts his specific findings had to do with regardless of him requesting that his account be deleted from demon that that does not take him outside of the conspiracy that is not a definitive decisive positive step to disassociate with the conspiracy it what he did not d unlawful goal of the conspiracy there's no question about that and those findings are an e r five and what the court found when it it had to consider that pretrial and then it considered what was proffered from  defendant with regards to paul to paul when switches testimony and that didn't prove otherwise and so the court actually made the decision basing it on facts but even if he didn't consider the specific so which is withdrawal it doesn't change the outcome in this particular case and so we would argue that it would be harmless because as a matter of law the lack of venue argument was already foreclosed and that's where we have argued that mr brown joined a conspiracy that was already formed he was bound by everything that had gone on before him even if it was not known to him every i think mr wessel which had done before him that's the  decision and so he embraced mr brown embraced the common purpose of the conspiracy than you had attached and so therefore the court was proper in not allowing that issue  mr went to which is withdraw to go to the jury because of the fact that it would have been confusing and misleading and would have led to an argument that was not properly should have been properly presented i'll move to fourth amendment unless you have questions on venue ok so with regards to the fourth amendment we would start out by arguing one of the issues that is i think gotten glossed over a lot by mr brown which is that he lacks standing because the fourth amendment does not apply in this case and that is that we're talking about the property of a nonresident alien in a foreign country mr brown did not own this board this morning that  not on a server that was within the united states it was a demon who are new that's exactly right your honor and the court made this finding out e r eighteen and the review on out would be clearly erroneous and we just we don't believe that that was burden that there was a legitimate reasonable expectation of privacy we've gone through all of the arguments that he was basically a guest on someone else's board you run the risk we cite to the smithy maryland decision that says when you are  over your communications and other things then you run the risk that that person you're assuming the risk that that person is not going to expose you that's let's put aside something like a bore word where there's a joint enterprise and restricted to a single person's e mail account or something that's maintained for us the benefit of a single person if the information resides on a server that's outside the united states where the government's position still be the same and that is all they can have a foreign official go and access the server take a look at my e mail and i have no right to come in the united states court and complain about it no judge because that would not be a nonresident alien and so that's the difference in terms of the i would argue that you have more ownership rights in your email account then you do with regards to this board that's what makes the substantially different because that mr brown did not own this board he did was not the operator he was not the administrator and he had nothing to do with that and so and that's the member of the of the of the bulletin board yes yes exactly but then but then a standing would seem to depend more on the joint ownership or his lack of individual ownership as opposed to where the server happens to be located i think that if you look at the verdugo decision that i think you need both of those things that when worst talking about your lacking standing at the end because the fourth amendment doesn't apply it is only in the situation where we're talking about a nonresident aliens property that is in a foreign country and so if we have that which is what we had in this case then the fourth amendment does not apply ok and so councils or human i've not focused on this fact before that when the agents questioning mr crosby i think it was a she a female brings up dark moon and there's no evidence to suggest that she had independent knowledge she was and she was in there under the original investigation under k o f t which was a different conspiracy we did not get to the determination about whether or not that intrusion actually violated fourth amendment rights what we did get to is the fact that the taynton carrie through i don't believe that there actually is a supreme court or ninth circuit decision that talks about whether or not her answering that email and password actually violates us but i would argue that that it doesn't matter in this case because even assuming worst case scenario if it was the fourth amendment violation it still would not be excluded under fruit of the poisonous tree because of the independent source document doctrine we still had two other consents that there's no allegation that ever referenced the moon or anything like that as it did to mr crosby so we still had valid consents from mr bronson bronson that you referenced as well as philip morris who voluntarily during their interview said here and i'm also on here's my account password and then we go to the fact that we obtained it through a vast over in the u k so for all of those reasons we don't believe that there's any fourth amendment violation either there or the other questions thank you advertising child pornography so that the case law hasn't developed by the point that he gets to his closing argument i think you can't rely on to say that's a restriction where the closed system absolutely was prevented from arguing the closest and that was  is one and only defense at trial and that's what leads to the structural air of moving on to the venue i think the government and probably the district court of taking a position that's much too broad on this disavow idea when you sever yourself from the conspiracy usually the term disavow in the u s supreme court's analysis is a continuing chain and so that it's just much too broad i think you should look at the u s supreme court's recent decision in smith about that thank