better head argument to clarify for the record mr savio was my counsel in the not my counsel but the counsel for the defendant in another case this week so that is how i am seen away yes i will try to do better than i can judge the paro pleasure to meet you in person at last perhaps after having seen your questioning i should have asked you for a cup of coffee is not a case of first impression or the united states the way our case was just part but it's certainly the first impression and as such here in the sixth circuit the jackson case which addressed us how the seventh circuit and said quite clearly taking things off of web postings and trying to authenticate them through an internet service provider just doesn't work because it doesn't meet the requirements of eight zero three six nor does the server to authenticate under not know to eleven as a self but occasion because you haven't shown that the material is what you purported to be the closest we've come here was in martino's simply looking at the issue of video which is prologue to a better metaphor the sequential photographs photographs still must be authenticated in martina's court said through nine no one under the thomas case the thomas case forgive me the thomas case let it come in i think primarily because the objection was hearsay but they were bringing in these photographs which were irrelevant to the case as best i can read from thomas they had no relevance to the case they were this ocean media so well that's fine they didn't have any impact they weren't used to prove anything in the case here as you point out this facebook was the evidence convicting for wrong it is being used for the truth of the matter set out in the photograph that mr for a photo how can there's no statement it can't be hearsay is it what's the problem with the photo as long as someone in other words let's assume we agree with you ok that it's not self taught that katie why isn't it harmless because it could be authenticated by anyone saying it's a true and accurate depiction all they have to say is i've seen for odd that's for rot well yes but it's not harmless because they had no one to do that and so that would indicate and you're actually right the whole core of this is this case reliable can we rely on any of these things or the truth of the i mean that's the core of our system of justice and what's the statement i'm not sure i understand what is the case they tell me where there's a statement side i looked at the pictures i didn't see any words i didn't see a statement all i saw was a picture well in martino's they talk about that video is being used for the truth of the matter asserted the other cases we've cited do talk about pictures when they are meant to say something and here the government is saying now they're saying what if they take a picture of someone who murder someone can they use it or is it hearsay so someone murders john doe murders jane doe ok a picture of john doe stabbing jane doe they get it on picture can they use it how do they get the picture and that's not being specious art there's two ways they could get the picture you could have an automated process that collects the picture as we do with everybody robbery or you have someone takes the picture of can they use an automate you like your example better the bank robbery can they use the automated pictures they snap them every second united states forces are going home way back and talk with the picture the issue is that reliability right so when you have an automated process the reliability is the nature of the process that captures the image if you showed that this was an automated process that captured it it's admissible however under eight three you can the defendant can then challenge that automated process as to whether it is reliable or not the this goes on the whole rubric of computerized records and my computer always printouts can be admitted liability has nothing to do with hearsay i would say the hearsay rule is all about is that out of court statement statement being the key word whether it's non verbal whether it's pictorial whether it's music again or a court the cases will hold it pictures also serve as statements because in fact and forgive me for being cute or all  cited the whole issue of rename a great photo painting about this is not a pipe because it's an image of a pipe we are we are saying something when we present images to all media of communication  every news program shows video shows pictures they are communicating information when we have human agency involved in the communication of information we did have to step back and look at what are the challenges to reliability for human agents help like that have been manipulated by someone we have fairly low standard about them cation somewhat like he said somebody could say this is this picture represents him i saw him do that this i took this weren't there was in their testimony that this picture did represent him because of his tattoos and because of their going to the bathroom in the apartment that he rented and seeing distinctive and so forth distinctive mere yes the issue there is extrinsic versus intrinsic authentication by saying well this is you know i know for us this is a picture of fraud but still authenticating the picture from itself is that sufficient and that's particularly important we were dealing with electronic images of of an unknown provenance we do not know who took the picture who posted the picture i would say no however there was because we only know when it was uploaded right we know it we do know that day because facebook says when it was uploaded yes i believe i would say you could know this by looking at the metadata relating to the photograph however that can be inaccurate but i thought the facts in this case were that the method data was wiped out by facebook when it was uploaded did yes so is there or is there a sufficiency of the evidence problem that you raise on appeal you do raise sufficiency of the evidence problems and that goes to the whole question of whether your client could be retried at all if there it wasn't sufficient evidence what what is the evidence as to the timing of the photo compared to the so that basically disposed of that issue the it doesn't dispose of this was a stipulation at trial i believe  to the timing of i'll ask you directly very that's ok were you so that was my understanding of why i do believe i did not pursue that it still leaves open the issue of is it an i mean i thought they could i thought there was evidence that that was him that was a part of those things at trial there are you know there was evidence of similarity but but that's what you have to testify to and then the jury can accept or reject it's true an accurate depiction but it's not what it's been that's just it it's similar to it's not a true and accurate depiction we don't know because we don't have a witness who says that most you know i mean mostly farmers i've lived in sort of low in all the bathrooms of the city i mean even like his his name from the obit that that should have been explored and then the jury decide whether it really is him yes but even if it had it would that have been enough because you're in in all the other cases where these this is come up they have had considerably better extrinsic information that the evidence for example they have witnesses that say yes we saw him with a gun you know this apparently was in the search warrant affidavit we saw him with a gun those people were never brought into court so i don't know what what was happening there but this this is so maybe the court my name is look mclaurin and i'm here on behalf of the united states i want to begin by answering your question judge moore it's the the stipulation is was exhibit number sixteen it's found pages p t d number seven zero seven seven zero eight the specific  to the to the timing in the indictment which is that on or about october eleventh two thousand and thirteen i don't think that would be close enough to count on or about but i think the whole point in the evidence at trial that the jury was allowed to rely upon was that the test if there was evidence from base book that this was in fact uploaded on a globe or a lab in two thousand and thirteen and there was testimony about the particular habits that folks usually have that you think that the defense can test the day at trial there wasn't really much argument over when specifically the photo was taken a real ever move in front of the judge to exclude the photo as sometime after me when did he move into the apartment in february of two thousand and thirteen i believe yeah i believe that was fit february of twenty thirty i don't recall off the top of my head but i do know that the there is testimony in the record as to the time that he moved in the apartment the time that he left the apartment and i don't ever raise the issue that that date could have been something other than october eleventh or did they focus on it was simply not an issue that was argued below at all i mean th timing was not a really key issue the real main issue at trial was did this photo depict an actual firearm in fact there wasn't even really any dispute as to whether the photo depicted mr frog i think counsel stated earlier that there wasn't yes that individual in the photo was mr fraud he recognized him as mr fraud officer ryder also confirmed that the individual depicted in the photo was mr fraud there there really wasn't any dispute trial as to whether or not the individual was mr fried i know there was some question about well how do we know who took this photo the photo itself seems to appears to indicate the mr fraud was the one who took the photo looks like a selfie it does look like a selfie it's structured that way there really wasn't any dispute about that the main disputed trial was whether the item depicted in the photo was in fact a firearm and there was ample expert testimony that was provided that the jury could have relied upon to conclude that the item depicted in the photograph was in fact a real firearm not a fake firearm and that was sufficient for the jury to base its verdict on what do we do with this evidence that came out of the motion for a new trial that there weren't fact replicas of this particular firearm that were made and yet henkel had testified that he didn't think there were replicas but i think the there's a couple things about that one the evidence that was provided didn't actually establish when this ring manufacturing was selling these replicas it wasn't established that they were even selling them at the time that he testified or at the time that these events occurred moreover mr testimony was simply that his research had uncovered this and what pincus focus on was whether there had been a toy or airsoft or b b gun something that would look like a real firearm a safety blue color replica couldn't possibly be mistaken for a real firearm because it's painted a bright blue and it could be repainted or painted over but it certainly theoretically possible but there you know there wasn't any evidence presented i mean there's simply no suggestion that this was a safety blue collar replica even from the ring manufacturing websites the evidence those provided there's not enough evidence they would indicate that the details of that blue replica are detailed enough that one could paint such that would in fact look like a real firearm or simply just not enough information that was provided so i think the district court here looked at this and said you know used haven't proven your claim you have to show that the government knowingly presented false testimony and there just wasn't any proof that the government knew with the time that it was presenting he calls testimony that it was in fact falls or that the testimony itself was indeed falls and i think the report really concluded that it wasn't really material because the fact that there could have been these blue safety code replicas out there really didn't undermine the confidence in the jury's verdict because him kill himself testify as to all of these very unique features that you could see in the photo that would only be on a real firearm and he explained all of these you know unique details i'm not going to go into all of them i'm not a firearms expert that's why we had officer ankle testify but i think that the question is was that sufficient was could the jury rely upon that now the council suggested well there's no cases that say you know this is enough i'd actually urge the court to look at his reply brief if you look at the pain owens case that he cites from the eight circuits a twenty seven thousand case the evidence there was simply a photograph they had i would argue even less evidence than we had in this case because five which would qualify as a firearm they didn't actually provide any expert testimony like we did in this case to identify that the item depicted in that photo was in fact a real firearm that other circumstantial evidence in the court said that's enough you don't have to bring in a real firearm if you provide enough evidence that the jury can reasonably conclude that the defendant in fact possessed a real firearm that's sufficient and when we look at the evidence that was actually presented in this case would we have had a stronger case if we had been able to bring in the firearm perhaps and that certainly would have made the case stronger but the question is not whether the government presented the best possible case out there it's simply whether the evidence that was presented at trial is sufficient argument happy to answer any other question i ask you or do you believe there's any argument that the photos themselves are somehow hearsay statement no oh not only are they thank you for bring my attention to that yes i think there's a couple problems with the hearsay argument  first as you pointed out judge the par where's the statement it's unclear to me what the statement is that supposed to be have been the hearsay statement in these photographs and it's just a photograph there's no oral or written assertion or any sort of conduct that one can reasonably can true as an assertion so is there a case that says that photographs cannot be hearsay i don't think we could categorically say photographs could never be hearsay i think it's possible to imagine a situation where a photograph could be contained conduct that is intended as an assertion but there are several cases that say photographs ordinarily aren't statements and i n it would seem that again then that's the second problem with the hearsay argument is if he was saying hey look at look at me i have a gun if that's the statement the statement in this case would be for mr fraud himself and you know under under that the rules of evidence that a one to two that doesn't count as hearsay could choose a mission of the party opponent if mr fraud himself admits something you know he his own statements can be used as not hearsay against him so any statement here to the extent we can conceive a statement in these photographs would also be you know what about the self authenticating because isn't that a problem i mean how can people post stuff all the time how can it be self authenticating well i think you have to look carefully at what was the government offering this for we were we were the reason we're saying this is awful tent again was self indicating for the purpose of showing that this was in fact the photograph that had been posted on this particular facebook account the cases like brown that are found problems with relying on social media things of being selfish and hating have involved issues where there was an authentication problem where you're trying to where the government was trying to use essentially bootstrap and say hey you know because we've got this then we now can connect it to this authenticate this as the photo that was in fact posted to that account whether the the information depicted in the photo actually depicted what it appeared to depict we presented other evidence to prove that somebody else could post to that  account conceivably if her mission was given or very if permission was not yes and the purpose we are trying to introduce a poor is that look this is in fact the photo that was on this account and then you go forward and you say this account is attributable e key thing is did this photo depict would it appear to depict and we provided ample evidence to show that we've provided testimony from officers who recognize fraud and said yes that individual's right we've provided testimony that showed that the place depicted appear to be matched unique features of the upon the bathroom in the apartment to mr fraud have been living in at the time this photo was applauded to facebook and we also provided expert testimony establishing that the item depicted in the photo was in fact a real hypothetically suppose that what happened is that he took an actual photo of himself and had it developed at walgreens and left that photo in a place where an agent happened upon it we wouldn't have any of these facebook issues we wouldn't have any of these authentic asian issues we just go who was in this photo is this photo admissible yet and so forth right so what's could have been a load of been taken after that day so there are some i think additional facts that we can get out of the fact it was a bit similarly in my hypo if you found it on you know on a filing cabinet somewhere you know the day you found it you know the date you found it i think the uploading is helpful because it it makes it more likely just given the way that people normally behave in the way they normally post photos particularly selfies on facebook usually those tend to be posted very shortly after the photos themselves are taking although there are these efforts now to post historical items on facebook certainly i mean there's there's always exceptions to general rules and i think the jury was allowed to rely upon the testimony they heard in their common sense to figure out was this photo posted shortly after the time it was taken and i think the jury could have reasonably concluded based on the evidence presented at trial that this photo was taken on or about october eleventh two thousand and thirteen that the actions depicted in that photo does that depend on garrison's testimony that this is normal behavior of people on facebook to upload contemporaneously i think it depends in part although i think you know the observations that officer cares and made are also commonsense observations the jury could reach on its own in juries allowed to use its common sense and its understanding of the world was gerritsen properly qualified as an expert on social media given his answers where he said basically didn't have any basis for his statement that people upload contemporaneously i think he did say that he had a basis for that his basis was part of it came from his training part of it came from his conversations with other one person officials about how social media had been used in their cases and so i think the dish report did reasonably conclude that officer cares and had a basis to provide the and then ask the question again and just wrong can be concluded that sufficient validation had been established at that point those were really the only times at which the tests there were foundation and speculation but not dauber there was no doubt were arguments that were made at any time  was involved in the investigations case he was the one who first discovered the photos on mr prado then he just sort of segues into here my expert opinion he didn't even say going to that there was a foundation that was laid to establish you know his experience in dealing with investigations involving social media the time you know the number of investigations he had been involved in the kind of training he had received so there was a foundation that was laid and the district court again was was very careful about making sure that the  foundation was sufficient to support the kind of questioning in fact said to the government one point you need to establish more foundation and we did unless there are any other questions will and of course i disagree speckly disagree can i can i ask you about that because so you didn't challenge the date below you didn't challenge you not challenging the date now of when it was posted so and that was the thrust of whatever opinion testimony kerosine day what else did or what did he do that in your mind that was harmful such that we should throw out the ferg if that made if my question doesn't make sense tell me and i'll try and rephrase no no he  doing investigations but his testimony was exceptionally harmful would be ok and how explain that to me it established that he had posed by his testimony he said it was posted on or about the term it was made on or about the time it was posted for his experience gangsters are doing this to brag to them why not challenge the date below or the date now why if that if that  defense neither in closing made that argument nor now i do not know the garrison established that the taking of the picture occurred on or about the time it was posted which was on or about the date set out in the indictment but he did so with testimony that was certainly would not stand peer review or publication he's testifying to this horror but you can you know expert i mean law enforcement officers in the sec circuit and other every circuit and countries blast that they testify for example as to drug dealers habits right and they testify as to how pill mills fraud right and we put limits on that but they still do and it's based on their experience and training and it's not peer reviewed it's not an article if i had my daughter testify she could testify presumably as to what people do with  facebook and how they post and those things because this is all they're doing so why can't someone form that opinion and as your opponent said why isn't it common sense for everyone but maybe me as to why it works that way my facebook picture is a from a painting a colleague gave me forty years ago in college because i don't want my picture on facebook for just this reason right but presumably if we believe the jury's verdict mr for odd was posting them right but it was the jury misled the particular arson for example what i would have done and said whoa we need to go pick the jury up let's for do this let's see what foundation this police officer has to make statements that no other criminologist in the country or sociologists has been able to establish regarding facebook we're going to stores that's all i want reliability because this is all about reliability i want to know that what he's saying is  and so what issue and i agree with you so let's assume everything you just said i agree with what issue is harmful to you that he testified about because if you're not putting the dated issue below and you're not putting the dated issues now i don't trial and you didn't raise it in the brief here no because the evidence came from garrison but if you throw out harrison's evidence that's why we say that's not harmless error if you throw out garrisons testimony you've lost two key things you've lost that time click but you also have this garrison said this is gangsters bragging about being tough guys he's saying fraud is making a statement to the world that he's a tough guy and he's got a gun and that it was immensely damaging to for rod because you know people there there is the government's case for right there that's what the picture was which is why the picture should come in because it itself was on authenticated it was never those were never established which is why the hearsay rule keeps this out it was never established no it wasn't challenged to try to get it thank you thank you thank you both for your argument and mr savio i see your appointment pursuant to the criminal justice act thank you for yourself would be clerk