good morning honors may it please the court my name's allegro glasshouse or i represent appellant mr clark honors a government software program reported that it had received child pornography from a computer belonging to mr clark based on those results the government got a search warrant and ultimately convicted mr clarke of transporting child pornography mr clarke was entitled to have that software program as part of rule sixteen discovery the burden for rule sixteen is not high on the defense it's information that the government has that would be material to preparing the defense so you don't put the source code give you actually mean you didn't  i understand which puzzled me and so you had access to a lot of information about how torn down poor worked it seemed it seemed to me but why wasn't that enough i don't agree your honor the government you about the defense expert not viewing mr clarke's program which is a publicly available program but the whole point is that the government software is different than the publicly available program the government admits that it's not it's not a secret that it's different they developed a different software program and so the defense needed access to the program that was actually used to target mr clarke looking at mr tuck parks program would not have answered the defense experts questions but the but the also the demonstrations that  were offered and given by the government's expert that enough demonstration of how the program worked without actually understanding how the program worked by looking at the code isn't enough especially because what the government offered was information to defense counsel and the defendant himself but not to the defense expert what means are forensic questions what might you have been able to prove by having access to what the defense expert pointed out were questions about reliability specifically questions about whether or not the full files that the government said they had gotten from mr clarke's computer was actually a full file or whether it was these small packets of information of but not the full file whether or not that file was in a publicly accessible area of his computer or not and these are factual forensic questions that the defense expert put forward one version and the government's expert put forward another and then the court didn't hear from the defense i used his computer right they were chained his computer i mean the government obtained the computer yes or and and and from the computer of the government  on the computer the government found the the the images the condemning images so that didn't depend on that didn't depend on the software but the transportation count did completely depend on are you're  saying that with respect to the transportation count it it could have had validity but we spoke to the transportation can you you might have been able to show that the images small pieces of information from many different computers and eventually consolidate them onto one person's computer and until those all those pieces of information have landed at the person's computer they do not have the file menu you acknowledge that the argument you're making here pertains only to the transportation counts and nothing else well i think it pertains most especially to the transportation callus with which have their own five year men mandatory minimum so that is far from nothing your honor i think they pertain most directly because this is the evidence the government used at trial to convict him of transportation they had somebody testify our program received these files from mr clarke that was the evidence for that count so there was no other evidence of transportation that have been downloaded to anybody else or uploaded to anybody else's computer after that was the evidence that the government relied on so this was crucial to the defense and the th circuit has found in very similar circumstances that the defense is entitle to look at the software program they may not be entitled they were they trying to release it to the public or even to the jury but they're entitled to examine it and that's what mr clarke was asking for here you dismissed the government's concerns about confidentiality of the program and inability to control it leading to severe hampering of its ability to use it in identifying  illegal activity i don't dismiss the government's concerns but courts are well equipped to deal with those concerns to release information to a defense team in a limited manner just as the th circuit ordered that the court do that happens in all variety of situations where information is released to defense counsel in a defense expert but is not allowed to be released any further courts are well equipped to handle that and the government hasn't actually cited any cases where any sort of law enforcement privilege has prevented evidence that the defendant himself admitted knowing about the right well your honor so i also dispute that the evidence is sufficient for his knowledge of the actual file sharing this case also different than all the cases the government sites and that the program itself did not alert him that the files were being shared he wasn't staring there was that with the decision with the f b i originally that got into that admitted knowing that it wasn't his and ten he didn't care but it happened and he knew that it was happening well you understand is the one the one piece that the government points to however that agent testified peer systems work only after the agent had explained it to him and even then he had an incorrect understanding of how those peer to peer programs worked the home page itself shows download and upload speeds that's incorrect your hon page does i'm looking at it right now this is a government exhibit two hundred and thirty six dollars it's empty at the moment but it shows it to me looking at it unless i'm misreading it shows names of some of these files and a status and then it has a place to show downloads down speed and up speed it says that that to me also indicates that you don't have to go click on the other tab that be the brief focused on to expect that there may be downloading and uploading both going on with regard to these files it was by my mistaken your honor the home page has up speed it's blank so there would be no reason for somebody to think that things were being uploaded when it's not reported on that home page but that shows that the program has the potential the capacity to allow uploads downloads both doesn't it you don't think something that the government is arguing that they're arguing that it's separate  shows no i realize that but i noticed this and that's why i like you then to explain it to them st your honor the government needs to show that mr clark knew that what he was doing was transporting files the fact that a program could theoretically do that is not enough you need to know that his program was doing that and the information that showed that his program was doing that was in a separate tab and there was no evidence that he had clicked through the tabs actually the evidence showed he never changed any setting about this you tour program and that he didn't have any knowledge of how computers work that was more sophisticated than your average sixty four year old so i don't think that this here is enough when it's when it's blank to infer knowledge all right thank you very much thank you i have the argument we'll hear from the government  if i may runners i'll start with a little just to try and clear up some misconceptions i think that council has as to how the programs work so i heard a couple of times that you know this is the government's program but it takes two programs the the way this works is ultimately like a telephone you have a law enforcement program on one end of the line and you have mr clarke's you torrent program on the other end of the line and there's a bit tor protocol that allows them to talk between themselves the way mr clarke's you torrent program works is when he is downloading files and possessing files he is broadcasting to everyone else on the  files he has that are available for sharing the use the law enforcement program looks for people that are sharing things and goes and that are being broadcast that they're sharing things and accesses those but if it goes through mr clarke's program and that's why the defense hasn't didn't satisfy materiality and certainly didn't satisfy overcome the law enforcement privilege here in that there's a threshold they have to come forward with and the defense expert  pined apparently with no basis whatsoever that the law enforcement software had accessed files on one of mr clarke's external hard drives but she didn't bother to test mr clarke's program the federal agent at the high technology unit apartment of justice we submitted an affidavit from him he downloaded the exact version of you torrent that mr clarke used and he tested it and we have a video of that testing which we gave to the defense and which we described for the court and was available for the court should the court wish to to view it and he described in a detailed report which is in the government's appendix how that program worked and what is clear lures the defense expert it was not aware of is that the utah art program that mr clark was using had available for sharing whatever file if you download a file to an external drive it shares from the external if you download it to any other drive it shares from wherever you downloading to that the expert didn't understand what evidence was there to show that mr clark understood that all of that was available for sharing and therefore he could be liable for transporting so so in terms of mr clark  fifty five was i asked him if he knew that by using that peer to peer program he was essentially sharing files of child pornography he said he knew that was the case but it wasn't his intent and he knew how the peer to peer programs work and turning next to a fifty nine it continues he said he has used bit torrent and has downloaded he thought if i was complete that he downloaded that it was not sent back out and that's important because as the evidence showed at trial these files take hours or days to download so mr clarke says when it's complete he thinks it can't go back out but what for this hours and days that he downloading i submit he knows that he is sharing and the this statement the inferences from the statement were argued by the defense inference of the statements were argued by the government and the defense make credibility  find the i'm very much troubled by the government's charging him with with with transporting it on the basis of the government undertaking to transport from his computer to the government's tr government's computer i don't know why you need is that there is not so far as i'm aware a single appellate court case that affirms such a conviction where the defendant has argued that he didn't transport he didn't transport the the most of the there are very few cases the deal with it all and none of them deal with the circumstance where a defendant says how can you charge me with transporting when i didn't transport this it seems to me just simply enables the government to manufacture whatever number it wants to of crimes that haven't occurred otherwise and to choose whatever places it wants for prosecution of those crimes if for example a defendant in and it extends beyond the realm of pornography or child porn or graphy because transportation and interstate commerce can occur in all kinds of contacts and the theory on which the government has prosecuted this is that if the defendant places an object in a position where that enables other people to transport it in interstate commerce the defendant has transported in interstate commerce so the defendant may have done something that wasn't a crime at all or wasn't a federal crime or at least wasn't transporting and the government tenses ok let's prosecute him in alabama for transporting to alabama we'll just send the somebody down dalla bammer take somebody down there and transport to computer now a mammoth it seems to me susceptible to all kinds of abuse for no real benefit because he transported when he on through a device of interstate commerce when he transported to his own computer you can prosecute him for that properly and he distributed according to by making it available to others to access it but transfer he just didn't transport it anymore than if i play something where other people can come and get it and transported i have not transported that so so if i may judge is trying to unpack a few of those things that these were not briefed but i'm happy to address them with your honor  cannot know that he didn't knowingly transport when you can't knowingly transport if you didn't transporting all if you knowingly allow others to take from you in interstate commerce you have friends aborted and it's in the elements of distribution of child pornography and the elements of transportation interstate commerce of chop an r v are indistinguishable in terms of the elements in which one of them involves transportation the other one simply involves making it available to a larger number of people they're not the same thing if they were to the extent that they are you don't need this because by your own acknowledgement you could just transport him you could just prosecute him for distribution you don't need to prosecute him for transportation let me say he could have been charged in a variety of ways but there is nothing insufficient about the way he was charged your honor in that that the the worry that your honor has passed for possible abuse two things i would say one in this case mr mr clarke was making child pornography available to other people and he was doing that because he wanted to get child pornography form self and by his statement he knew that other people could get from him while he was downloading so he was willing to take the risk that other people are getting pieces of the file from him so that he could get child pornography for himself and he he knew that he was using a facility of interstate commerce it doesn't need to be interstate it could be across the street he could have been people down the undercover can be across the street in case needs to be transportation needs to transport it and let me say willingly allowing someone else to take pieces from you is transportation you you put something if i let's say i simply leave my house without locking it that enables somebody to walk in and take something valuable of mine and and put it on a truck and transported to another state i'll give you a better example your i will for having transported stolen property because i enable somebody to i say i submit this is not close to that case what this is is your honor has something that you want to get rid of you put it out on the curb and you put a notice on craigslist a free item come take it and someone takes the items put it on the curb put it on i just leave it outside and somebody transports it to new jersey i have to and i am guilty of transport although this is different because mr clark is doing this to get something so if you're leaving it on the curb saying you leave me something good you are going to good you better example would be the person as it has had some drugs and leaves the drugs in a pit in a pick up place doesn't do anything else just leave the druggies in a pick up place and somebody comes along and picks that up for his benefit and it's for his benefit and there are drug exchanges on the internet you can go on right now in exchange drugs without any prior arrangement obviously if one if one if well you've summed it to aren't you understanding having made an understanding with somebody had to pick it up and take it away that's transporting is no question  torrent peer to peer file sharing is the prior arrangement your honor you've got this software and you're arranging with thousands of other people that you're going to trade bits and pieces you've got that software you're operating at software and you're operating on a facility of interstate commerce so that's your prior arrangement you've made that arrangement already if i could just even though you don't know who's going to who's going to who's going to pick it up yes and you can't get your child cannot be without being part of this trading arrangement if i were to carry a mandatory minimum it does transportation receipt and if the government decides let's put this guy away for forty years or to do is  programs don't stack they could conceivably but your honour's of it if it if it in a case such as this if if the judge had stacked up to forty that would be substantively unreasonable choose the place where the crime was committed you want to do it same as any undercover activity if we're buying drugs wherever the undercover there is we're going to have venue judge is no different than any other undercover crime and on using undercovers to get at crime difficult to to find crime and in this case the internet is a very difficult to find crime use of undercovers case law going back hundreds of years that under covers are allowed and in this case undercover is important to get at this crime which is not easy to see the light of day that's conducted inside one in one moment glen is a case about actus reus in glen there was the question was did this defendant actually murder this person other people had access he was seen leaving the area but he wasn't seen doing the murder don't think you need to reach that in this case because i think the quantum of evidence is nowhere near an echo poise in any event thank you very much thank you for your argument i missed class another question about the changes so do i understand correctly then that the that the transportation charges guidelines all right thank you very much ms glasshouse or you have two minutes i think the judge had an important point in a few of the issues that i raised in my brief about how the way this case was litigated there was no daylight between the transportation and the receipt and the possession charges they could have been charged in any manner of ways and what counsel that asked for to address that problem was a specific jury charge that the jury had to find with respect to transportation that mr clarke and actively in use there any is there any circuit decision that endorses the active intent standard i mean is that you found anywhere in the statute or you're just proposing this based on district court opinion they looked at that as a way of increased but to increase the mens rea for a crime without a statutory basis strikes me is a bit of a stretch it's not increasing the mens rea without a statutory bases there's no circuit decision in either direction your honor so there are just active intent is different from intent i mean that's that's what you're proposing right i'm not sure it's that different and in various circumstances judges do charge how intent means they have a conscious intent judges use different use different formulations in jury charges that are not written exactly that way in the statute and in this case it makes sense because of precisely this concern that otherwise a person can be convicted of transportation without intending to do so and i and on  distribution by other allowing access to other people that was secondary that wasn't his particular purpose but he was engaging the sec typically at that cost which he put aside because he was getting something he wanted  isn't that enough yeah you tour a program the government argued was essentially any time you use a you torrent program that you know that you were distributing or transporting that's not right that's not enough and we have there's one of the things that you judge's question about mr clarke's knowledge here i don't think it can be inferred i don't think it be correct to infer it just on the basis of using a particular program when the program did not warn the user of what was happening in this case is like  out of the th circuit where the court found there was not enough evidence of knowledge because the program unlike all the other cases i've seen in the circuits didn't warn the user or specifically say share the folder so that the user name his is the i think the only evidence the government has of his knowledge and we have these competing statements where the agent says i told him how you torrent worked st before i asked him if he knew how it worked so the agent tells him how it works and then somehow mr clark still ends up with an understanding that is completely incorrect about how it works so i think it would be but still includes an expectation of sharing after the agent has told him that you turn works by sharing files that's not enough and that's i think why the government is getting into this court standard about when it overturns convictions on insufficient evidence here there's enough this evidence is inconsistent statement about knowledge isn't enough to convince suggestiveness i'm talking about explaining how a computer program works to somebody who doesn't there's no evidence that he knows how the computer program works and then asking him afterward do you know how the program works and then mr clarke responds by saying yes and giving an incorrect statement about how the computer program works it's not like shooting a gun which we all can assume somebody knows how well gun is shot now if the if the justification for the transportation charge is on the theory that the person was acting really as an aider and abettor although he wasn't charged under section two then the standard that you argue should be applicable with respect to intent rather than mere awareness  is entirely consistent with at least nd circuit case law from learned hand that in order to be guilty as an aider and abettor you need to have to to make the undertaking your own i don't remember exactly the words to t two to wanted to succeed to intend to help it to succeed so you that's not something that you invented least if if if if heater in a better reasoning is what justifies applying a transportation conviction on the distribution charge that that doesn't affect the guideline sentence overall for the convictions since he has the convictions on receipt and possession it may not affect the guidelines but it would certainly affect a judge