into evidence and a rule fourteen rule for one full and finally my third argument was that life plus ten years is a violation of the eighth amendment began his conversation along by saying the following i've got some of that referring to child pornography i didn't distribute referring to child pornography like i said i didn't distribute and repeated that statement over and over again as you read her fit to during the trial of being river of filth a rapist having sexual desires for children he continued to defend himself by saying i did not produce that child pornography the evidence at trial showed that there was thirteen different thirteen different production of chopper not a feat count they included four pictures and a video from august twenty sixth two thousand and twelve and that date it's important the next set of pictures which was eight photographs were from september third two thousand and twelve and again those dates are important the government pointed out in their case in chief that mr feldman emitted that he produced child pornography he made it to taking pictures of his granddaughter and taking pictures of back to try to look at those disks they couldn't find any indication that there was child pornography that was produced by most of them and so they waited and they waited until the following september and said call them up and said hey you talked about th pictures that you produced what are those pictures tell us about those and he again started saying number one there were pictures i took of my granddaughter and i was prime medication along with my adult daughter  suggested they were photographs that were taken because he felt his grandson was molesting his granddaughter and in fact the evidence also indicated that there was some allegations the grandson was abusing hi all the time she told them about what was going on and these potential pictures but at no time to law enforcement described the pictures shown the pictures say counts one through thirteen these production images are these the images that you were talking at no time and in fact there was some controversy about whether or not those were the same pictures when the agent describes some of the photographs mr clement said i don't know what you're talking about there is no pictures of anybody's behind yet one of the exhibits through one through thirteen showed the guilt behind he also took the pictures took place in the bedroom yet most of the pictures showed that the pictures to the photographs were taken in the living room account was basically using three different types of power sharing programs mine were aries and then threw in to tell a program and he said listen i know that i had a fashion program what i would do is i would grab these images and assume as i could i would move them off into my desktop or move them off onto a cd or something else so i could not shadows any l c agents over and over again i'm confused how was it that you were able to even download twenty files such that you were able to get the search warrant to execute at my home and they had to explain to him how the file sharing program wet this is not a very sophisticated man this was an individual who at the time of trial was age fifty three had gotten his high school diploma but had very difficulties reading and had been diagnosed with some learning disability he said if he knew how to download the line why a program but as the agent willingly emitted a lot of times when it discusses how the file sharing program works people just click through the screens and say agree agree agree similar to as i have stated in trial is if you download something and you're an update on your i phone or your smartphone you just click agree agree agree and m told offices jaring his interrogations he did not know understand have a distribution worked he didn't understand how file sharing what all he knew is when he downloaded everything he had to move it quickly and he was confused as to even how offices were able to download only the twenty five miles respect for your honour's i would argue that there wasn't enough evidence to show that he knowingly knowingly distributed child pornography the next argument i have relates to the nine hundred ninety nine conviction and in the one nine hundred ninety nine conviction with the government i objected at pretrial and again objected right before the evidence was committed to the c for one for is what the court agreed that the government could bring in this ad and so the ag used and a four three that this was far too prejudicial that if the jury had how close in time this was to the now current allegations it was certainly taint them and taint them that it did it was shocking information as the description was tried not only of the conviction but the actual act on the relationship between them and his daughter and now the newest victims the government impose a life sentence and to thirty five fifty nine he does go against cruel and unusual punishment with that you're on as a must as any questions i will r williams the other attorney was the o j lawyer alexander gelber i want to say cover two things one one is a factual matter that sort of just broadly covers will for fourteen and then i want to know to couple citations for the distribution count before i say that i think it merits at least  a short statement of what we have here mr for men was a serial rapist of previews that tripura best and female family members and a life sentence plus ten years was entirely appropriate that i want to bring out of the factual pattern i want to bring out is that it's noteworthy in this case that after the first conviction it took a long time to catch this person a second and his five year old stepsister when he was nineteen when he was i guess ages twenty to maybe twenty nine to thirty five he was sexually assaulting his daughter throughout that time and it wasn't until her seven year old younger brother started blasting her as well that she came forward and he was prosecuted and convicted on that count the same sort of thing was about to happen in this case and did to a large extent that the defendant was molesting his two granddaughters of five year old in a four year old for about six months and they didn't come forward until their seven year old six and and then turned seven year old brother was imitating their grandfather and molesting them and will for fourteen in part gets at that it's children who are facing people that are adults grandparents and family members often and that standard there's some trepidation judges prosecutors this court handles for fourteen with kid gloves to some extent but it's the court also recognizes it's real and should be applied it was a political decision of congress to emphasize that predisposition in case such as this would be the perfect example is appropriate the rule for fourteen issue isn't a close one of this case but i think this case illustrates its appropriateness  for the general purpose that it was was made and the district court handled that correctly the thing i want to say about the distribution counts is really a deficiency in my brief i didn't bother to cite any of the case with many cases this court has decided in terms of distribution and the fact finding most of those are under guidelines actions but there are two that are right on point with this case  then it just is sort of on this point it's a tiny correction but that will refer to a couple times to the line wire program that is a different peer to peer file sharing program the one mister berman was using in this case for from september till january or february of two thousand fourteen what's called lime share and it's sort of obvious if you're using file sharing programs that you're sharing programs you  it in a folder called shared but it wasn't one wire it was actually line share because it's a file sharing program unless you have about this idea that you know that he thought if he moved him out immediately then they wouldn't be shared anymore well that was certainly it factor for the jury to consider but in making that statement it showed his knowledge that if he doesn't move them out of there they're going to be shared and law enforcement was able to download twenty of those files the first in october august of two thousand thirteen and then from substantial birth yes september through maybe it was october but affirmatively looked at his chair folder there was child pornography in it and then exhibit one seventy two is somewhat different it's an automatic software that goes out looking for child pornography and every time it visited gap there were evidence all along the evidence as to count fifteen we don't have much evidence of duration there was automatic law enforcement software that searching in minnesota for shared file folders that have eleven or more items of known child pornography and it found twenty two that automatic software found twenty two on mr firm's computer a different computer at that time and the officer was able to download two and a half child pornography videos and the law enforcement software does that more slowly than ordinary file sharing programs the to a particular file he doesn't have to intend per se a particular file if he's leaving files in there of child pornography he knows he's going to distribute it and whenever someone downs a little bit they have no and at the the analogy i would use you're on or in the thing i would caution the court against and i know you you handle file sharing cases fairly often this is the first one for me but it was helpful for me to remember that just because it's software just because it's invisible to the naked eye doesn't mean it's not out there for the public to grab and the analogy i is the the little libraries that you see around in people's yards they have a box on a post in the front guard and they put books in there and you can come and you can take the books out and sharon was there but if somebody w a book out there would be more evidence that he intended to do that but what you're saying is i think it's exactly the same i mean or i think it's even more so i mean i put a book out on my front yard and when those boxes someone has to walk by someone in china or someone in new jersey can't come in take that book when you put it in your shared file folder in a file sharing program it's far more of vailable for more likely to be distributed than if you put it in your front strong for the government that a download by the government counts as distribution there's a case out of the third circuit hussman h u s m a n n n i can get you the cite but that court held and it hasn't been favorably received that there was no evidence that anybody ever downloaded and that was they found that was insufficient for distribution it's a bad decision it's really been passed over by the justice of the supreme court but that case in the first circuit case called richardson and a fifth circuit case of a name that i if will you but it's in the line of sight all say that this is sufficient you can take that evidence that was convicted of receipt and doesn't challenge that it's the same sentence it's forty years he was sentenced to forty years on count sixteen and so these distribution counts it's you know it's significant there is that's count seventeen and there were i think one thousand different files of child pornography that in the sense of well i don't know but received requires an interstate transportation  it's it gives the government if nothing else an option of charging a lesser crime for people that it doesn't deem meet the higher penalties congress saw fit to make those two separate statutes i think it was a good idea but receive carries a very serious penalty because it's a very serious crime just as possessions lost series or series of projects certainly on the distribution count as i understand the argument the defendant admitted taking some pictures of the granddaughter but not the ones that were subject of the distribution counts you talk about the production counts not as your gregory yeah i meant you're correct so what the evidence that he actually produced the ones that were charged it's really it's helpful if he admits taking such pictures but he was never very accurate in his description of the video tape that was count thirteen and the still shots that were counts nine through twelve he described it king pictures of his granddaughters he said both of them vagina on the evening or the night after a birthday party and on his camera in his house in his bedroom was the camera that took those photos and the disks were in his bedroom and the photos were exactly as he described they were pictures from the birthday party exhibit thirty is in the gun government's a bit appendix so you can look at that one and then it goes to a video which he says he took but he mistakenly took it the wrong button and the video looks like that it's a three to four second video as he described that just looks like if you didn't intend to take a video you take intended to take a photo and then he takes four more photos of the vagina one through twelve were those counts and he said that there were dark they didn't turn out well and when he's told what they look like by officer  over the phone on september twenty ninth he said the officer says these these are these are kind of dark and his response is those didn't turn out very well and so he knows exactly what photos we're talking about he described them as being on two discs and as the officers were taking them out of his house he said you've got them right there you've got both disks so the evidence of production is pretty overwhelming i think it's i mean i don't know how much more you can get than that an admission that that is that is that good those were the photos and even if he hadn't admitted it the circumstances show that he was the one who produced them because they were on his camera with other p variably briefly you're honest in regards to the production count it is true that mr famine did describe one of the images which is a video that he said he was taking a picture but then he realized the video was on and that was one of the counts in one through count the teen that that similar type of situation where it looks like the video has there was supposed to be a picture taken but it looks like the video is running but regardless we still don't know if that's exactly in one that he was discussing because plenty of other disk discrepancies for example he says all the pictures were taken including that video in the bedroom yet it was very clear from the images from i don't know which images you're talking about i don't know what these are so i would continue with my argument that the images in one three thirteen were not the same ones that he was discussing with agents of the same time there's no doubt they came out of his camera images in the bedroom and i think one of the area but it could very well be that the camera was in the bedroom and he did now argue that that was it has camera anything like that that was not one of the arguments or defenses we place that combine with him in taking photos you don't for misspeaking one of the icons the government just raises that if he understands the power sharing program that's enough to know only distribute but again mr femen was adamant about saying he does not know how file sharing works and see kept saying i know if i remove it really quickly there's no way can share tell me how you were able to get those images because he had always thought all along they could be downloaded these images he moves that should be enough and he didn't recall ever having to left things on there for a long time or a minute or two minutes during the questioning of officer hands and he testified that you could be downloading something and at the same time somebody can then while you can also be simultaneously sharing at the same time we don't know if that was the case here or not but i would suggest that because he didn't knowingly knowingly distribute to the agents and there was no way it indication they distributed to anybody else and agent hanssen was questioned about that if they looked to see if you had with anybody else and they did not look to see even shared with anybody else respect clear and i would submit again that there was insufficient evidence to convict the one that took those images when he made his when he was interrogated by the police he talked about some images he took but they didn't match up with the images they had as exhibit and counts one through