please the court sung park on the ethel of the of helen mr ass uplift the court has ordered the parties to specifically address two issues one being whether the government provided sufficient proof to satisfy the jurisdictional element of section eight seventy five c and to whether diyar government provided sufficient proof to show that mr sutcliffe acted this case transferred information with intent to aid and abet the false representation of social security numbers first all addressed the second issue  anger for being terminated improperly he was engaged in a labor dispute he felt he was discharged improperly and verily get very far in private just require specific intent aid and abet any unlawful activity that constitutes a crime and in this case the government as identified false representation of social security numbers and out there representation of social security numbers that acted not occur no one attempted to commit false representation there was no evidence of anyone having done anything remotely close to committing a false representation now in order to have a specific intent we don't know eight and a bad right we don't know we don't know but in order to have a specific intent to aid and abet an activity such as foster a presentation we submit that there has to be some indication that the crime would occur without that possibility happening we are speculating that i don't have to have a complete a crime like you know i did this not go by when we're not bombarded with information from everybody under the sun including the government to protect our social security numbers because if they're in the wind we're at danger dates and go by we're not bombarded  it's unbelievable the concern about those numbers flying around right now you read everything about the whole quote illegal alien business they're rounding up people writing laughing they're using other people's social security numbers false representation is that he's aiding abetting somebody else who wishes to make a false representation that that's their credit card right there right and at the end of the theft is the street name for that that's correct that it was in doesn't this case well doesn't this case then term whether well let me ask you a preliminary question before i ask you this one was there any discussion about the instructions on the standard of proof required to show intent to aid and abet as opposed to aiding and abetting i didn't see any discussion or any claim in your appeal that the court eroni asli instructed the jury on on the standard of proof for aiding and abetting i don't believe that was specifically a  error only on the grounds that the government did not offer proof of an actor who was aided and abetted which is the normal standard for aiding and abetting your argument as i understand is act that constitutes faulty representation of the social security numbers not only that the government failed attempt it does not require that an actor occur that's what distinguishes it from aid from regular aiding and abetting isn't it only that one attempt to accomplish aiding and abetting right but our point is what is the evidence that the government presented to show beyond a reasonable doubt and i don't think if the government doesn't provide specific evidence of two point that mr sutcliffe transferred information with specific intent for that that again that there was no evidence of anybody attempting to do the work or isn't the breaking point in this evidence that he actually put it online instead of just standing at the sending them a letter saying look i think i will do this most reasonable inference to be drawn putting it online as opposed to saying i'm going to put it on well one of the terms of whether that's sufficient to support a jury's inference beyond a reasonable doubt or the evidence introduced the trial was the fact that mr sutcliffe in fact we moved some of the information when he was requested to to do so so that negate his intent that he wanted to aid and abet a false representation because and he there was a testimony regarding that if anybody had asked him and he was willing to remove anybody actually testified that it was mr sutcliffe's computer that was used or where that computer was located at the time the web pages were uploaded or even i people had access and other people could have him and there was no evidence to contradict that there was no evidence introduced to show that word to your computer was and your position is that they have to show affirmatively a crossing of if  an instrument instrumentality of interstate commerce i believe there has to still show that he get messages across state lines and that he did it i thought call got trains from earned over an interstate line if the line itself was a part of a system which was hooked to the interstate commerce you you know the answer to that going on and but i believe if the answer  at he in fact put them online and that there were servers that delivered them from more than one place in other states wasn't there some evidence of that in the record that's my to the web pages and or other variable guess you'd have record permits an inference that somebody else put those messages out there yes and other people could have altered the web pages also and there was no evidence showing with the last point first about the contention that there was not sufficient evidence perhaps even if this court does find that for some reason the state state transfer or i should say the interstate transfer  actual physical data that went from the street circuits computer to the websites on the internet which the evidence showed were hosted in various places the extent that the court even finds that it needs to reach that topic i wanted to point out a few areas in the record going to do well there was evidence not only and i think that struck pride at mr bishop mr gilmer there were a number of other web host providers that did testify for the government and they testified that at certain times the website was hosted certain dates the to this actual physical site but what we do have is this we have expert testimony the testimony of mr siebert that established that in his expert opinion we saw lots of evidence of that introduced in trial that website was constructed on that california and still the records showed for the earliest charges in october yes in los angeles after yesterday he moved to new hampshire by his wife's testimony and the testimony of their former landlady ms leiter he moved to new hampshire  honor and the first count the one that i just addressed where the computer would have been in los angeles the server was direct nic and that's in the record and their testimony was that their server was located in louisiana and the testimony by special agent frank carroll as well as where the web page itself was located that the method of transport was by at t p transfer protocol now the fact that it ended up in louisiana and it started in los angeles or later on it started in new hampshire valuable tool in today's commerce although i know that that was certainly dicta and i know it's been suggested in other cases which he did say however other circuits which i did i did try to learn inform this court had actually ari pretty much held that it is and insofar as the child pornography cases which defense tried to distinguish in their reply brief if you if you go back and actually look at those cases you're honest that the main reason those cases appear to have hung their hat on internet travel like the european websites stamp on one of them the expert testimony that this does this piece of child pornography because of the stamp on it had with traveled via the internet so the reason is in those cases those items that the government had to prove moved interstate commerce under twenty two fifty two and the child pornography statute those were actually located on on on desks and on places other than where there was affirmative proof that they had traveled in the internet this case is completely different from that in this case we actually have affirmative direct evidence and even if we didn't have all that other evidence we have the fact that the victims themselves saw these things absolutely as far as i can tell as far as i've heard there's no contention here that these threats and these ten twenty eight a standing groups of social security numbers were not on the try to get you to wave me through so i don't seek expert testimony from my law clerk i can only try and i understand it correctly a web page is maintained on a server is that right it isn't however once as in in our case here once i build the web pages on my computer and once i send it out onto the internet on with the record in this case established were other servers unless my computer is actually functioning as that internet service this case there was both a server that has the website which was open to the well to the internet and that mr suttles computer had versions of the website servers up and running at the same time and the free servers that we were able to find and get there which were four of them it was testimony that those were hosted in san jose california this post of the free servers was the percent of the new hampshire so now in order to show intent we have to look into what the senate was thinking and when we look at these exhibits which have included in the excerpt a record they were not included in the original included in the government censored they speak to someone who was not only even just putting out  security numbers but who was openly threatening of things to come when he put up in exhibit thirteen which the court has you think seeing that number is bad it can get much much worse he put that in connection with the license plate number when you when he clicked it took one click to the link that you think seeing that number is bad and it went to another attorney that had been working on the case and a list of the social security number a map to his home address and then even had his credit card a place for credit card numbers and bank accounts and it said omitted for the time being then it said a reference to anyone else want to join the team and i'm paraphrasing if you need to the thirteen we have a special the and if you click on that it's said that it's addressed in you  associate who had just come on the litigation and it placed bar information on our public information and it said we'll be publishing your personal information shortly as you understand there are some people ahead of you in line and again i'm paraphrasing that this is all in the record of so he could very well take the position is look what i was trying to do is i was not trying to give me i was only trying to make him feel really really uncomfortable by doing this distinguished from this set of facts because it would be one thing if i even wrote you a letter or even if i put up on the web site you know i'm not very happy with what's the argument today and so i think that everybody social security number should be out there that's pointing an unloaded gun when i actually put eight thousand social security numbers dates of birth together with threatening language out there and country to something that i'm sure and intentionally mr parks suggested from the record which was that he found it removed and when asked to do so it with the cute little comment like you must first show you no longer work for the company there was another comment that said you must first provide us all identification data so we can make sure you who you say you are then maybe will remove the offending web page so i submit back to the analogy that this was actually a loaded gun and you just threaten to pull the trigger he pulled out all the stuff up on the internet and then he let it sit there for months there's no evidence of any of this the security number s were actually misused by anybody your honor we did not rely on that at trial now there was some limited evidence at trial by his green light who was the one who originally took out the complaints that employees were going crazy and they were actually reporting identity theft however and i want to get that out because i want to represent the record accurately however of course yeah i try to do however we did not rely on th state case on what the burden of proof is on attempt to aid there but apparently in aiding and abetting you have to a dead by somebody who is a specific person who is committing the crime but your position on the standard of proof for him to do so is that you don't have to show any specific person that you were shopping in the field is that your view make sure that i don't speak by saying that in this particular case although the court did ask about attempted aiding and abetting in this particular case it's our position that the intent to aid and abet was a separate element one of four or five of the  said correctly need be proven when aiding and abetting is a theory of liability for a principle offense that was not the situation here and even it even a short look at the simple language of the statute it's if the defendant has the intent to commit the intent to have the  that the commission or the intent to have i believe it's the used in connection with another felony so there's three different options which shows the intent of that it could have been the intent to commit and certainly no commission would have been that were created on this computer can you tell with hundred percent accuracy whether all of these pages were created by the defendant answer no i cannot another question put to him by mr sutcliffe was commute tell through your analysis where physically the defendant or anybody was at when that page or any of those pages let's put up on the web site the answer no i cannot tell you where the computer was physically located when the web computer and hook it up to the internet i'm a genya that's correct then there was uploading the web page right there was no evidence to show that even that computer was the computer that was retrieved at a later point his home in california and he was at his home in new hampshire when they moved one more point your honor and that is just what a point to the fact about corner pointed out that there were numerous servers and there was no evidence at trial to show how did the web pages travel to the viewers how the viewers actually got to view the web pages and as mr marty aptly pointed out there were many servers we don't know how many servers there work and where they were located we heard from a few individuals