reporting it please the court my name is ned smock and i represent the busby i'd like to reserve three minutes for a bottle there are two main facts about this case that make it unique among child pornography cases the first fact is that the charged images in this case came as part of series of images that had been downloaded onto the computer as close containers hundreds of images could come onto the computer in a single file in a single mouse click and the only thing the user would know about those images was the was the name that had been given to the file that contain those images the second fact that makes this case unique is the fact that every single image that was charged in this case had been deleted that's rare and it's directly contradictory to the m o of child pornography possessors that typically are seen that's directly contradictory in that really has a reason to think that all over they're going to look for something better get rid of it that may be true but the government's own witness testified that child pornography put possessors rarely if ever delete images of child pornography because they view them as prized possession except that if you think somebody is going to look i mean i don't think the government witness was saying that you think you're going to get caught well then of course they wouldn't believe it because they still want to keep it now in that case and there's no no way to tell when the deletion took place it appears so it does appear to be at least the case or the possibility that your client had time to delete and hence i'm not sure what we can infer from the fact that they were found in the well that goes directly into the statutory deletion of defense your honor and what i want to absolutely right and to be clear about that it's even if there is supporting evidence is weak insufficient inconsistent or of doubtful credibility what would ever the need to show in order to support instruction well first of all that the defendant possessed less than three matters and second of all that there was prompt deletion and that lesion was in good faith and we had certainly much more than week insufficient point that i started with about the nature of the files in this case is important that fourteen hundred number which the government continues to recite would be much more compelling if this were a case in which there were evidence that mr  looked at individual images one at a time determined that he wanted to download them and clicked done them fourteen hundred times that's absolutely not the case here and in fact the testimony from the defense expert that was confirmed by the government's witness was that there is no that these images could have come on the computer in a handful of mouse clicks most over an unknown period of time so ample store probably more than three well it's not it isn't clear about that and that's why it's important to remember that there it was all of the evidence was in unallocated space which means that there was no metadata to establish that the defense expert testified that these files there's no meditated to establish that issue and that's where i think we need to recall what we're asking here the defense isn't asking this court to determine that mr busby was entitle to an acquittal on that defense what the what this what the defense in order to establish that evidence it was clear that the government repeatedly argued to the jury that mr busby had been seeking child pornography on the same day that the computers were seized so but there was no illegal content found on the computers so if the government is correct that he was seeking child pornography on april twentieth of two thousand and ten he necessarily deleted it that very same day so that at a minimum is we inconsistent evidence it's much more than that and that's why it's absolutely clear that the court erred in refusing to instruct the jury that had a bunch of files on his computer he was seen often look for some files on that day and found some found some and then deleted everything both old and new stuff that that's possible but again that might be an argument that the government could have made to the jury but that's not a basis to prevent mr busby from raising that defense this is an affirmative defense correct and where is the burden of producing evidence on that point the defense would raise evidence about that and it would be a preponderance of the absence of good faith of immediate deletion or not immediate deletion was of the phones verbal or was that was that the government's burden to present a negative to present the case law and that is and i think i mentioned this in my brief that the defense can rely upon evidence presented in the government's case so that's that's the evidence that i described that the government suggest that he because it's good for a couple of things one is that there is no evidence that mr busby was deleted this this material in reaction to a belief that he was under suspicion by law enforcement in addition to also if i can get into this issue about assurances on websites that the images there and were legal that's other evidence of mr busby's intent as he looks for images that he was looking for images that were legal in nature t h seek seems to me to put a dark shadow over any notion that you stumble across things he thought were illegal by accident somehow there was absolutely no evidence anywhere on a computer where there was an allocated space or an allocated space of any image that was consistent with the description of what a peach the image would be was there evidence that he had searched for that there was evidence of that search term being entered on one occasion there was no evidence that any image had been downloaded as a result of that search whatsoever moving into the question of the assurances that our expert wish to testify on the website this evidence w key to mr busby's mens rea a defense the government in its case in chief introduced evidence suggesting that mr busby had looked at websites that it suggested involved child pornography and the government  argued in its closing argument that this established mr busby's intent what the government didn't do was inform the jury of what those websites actually contain the defense expert looked at what those websites looked like at the time that mr busby allegedly visited them and those websites had assurances on their pay on the splash page the first page that one sees when one enters the u r l and they indicated that those images would be legal and i want to be clear and i think we made abundantly clear in the district court that our purpose in enter do sing that evidence was not for the fact that the images were in fact legal it was for the effect on mr busby because again his and his mens rea a was key and the fact that these these websites included assurances that the images would be legal was consistent with mr busby's defense that he was seeking legal images that's the reason that we cited heiser in our twenty eight j letter this court has made it absolutely clear that the defense has a constitutional right to present evidence consistent with its defense the district court was absolutely clear about it's incorrect basis for keeping that evidence out the district court again and again despite the defense arguments indicated that this was hearsay being introduced for its truth the government interestingly doesn't try to defend that conclusion here what evidence was there that the defendant went to these web sites saw that message was induced by that to believe that he didn't have them and that he didn't seek something he was to get the evidence was that the government's own witness testified that the logs that he presented to the jury suggested that the use computer mr busby entered the u r l and saw the splash page our expert was prepared to testify that on that splash page prominently displayed were assurances that these images would be legal that's certainly sufficient to make it relevant it's certainly sufficient to make it something that the defense should have been allowed to present to the jury moving just quickly into one other thing that i'd like to raises the prior conviction this court it's absolutely clear that that prior conviction was admissible technically under rule four fourteen but it also was subject to the restrictions under rule four zero three this court in law may set forth a number of considerations for when one would at mit a prior conviction particularly in light of the fact that prior child sex convictions are extremely prejudicial in nature the first factor is whether the prior conduct was similar to the charged conduct the prior conduct in this case was significantly more inflammatory than the charge conduct that weighs against it the second thing is how close in time the prior acts were and this is a nine hundred ninety conviction for conduct that occurred in one thousand nine hundred eighty six twenty four years before the charge of conduct in this case the government doesn't cite a single case that allowed admission in a case in a situation with such old prior convictions the other the other point that the government would makes about this is there's a need  to for this prior conduct evidence in light of the evidence that was introduced at trial well in its opening statement the defense conceded an interest in children by mr busby that wasn't something that for which the prior conviction was necessary it was overwhelmingly prejudiced or for the jury to learn of that and for that reason in addition to the two others that i raise this verdict this conviction should be reversed  it please the court brian lewis for the united states david busby received a fair trial in this court should affirm his conviction and his sentence david busby was not in custody his statements both of his statements to law enforcement officers were voluntary and his interests his sexual interest in children and the language strong connection and direct a strong nexus and direct connection comes from a second circuit case called brand which this circuit sitting on back in curtain  it was no longer associated with it and the defense expert testified that that was rare and almost never happens and so this was helpful information did the district court go through through a analysis under four or three she admitted only the fact of mr busby's prior conviction no underlying details about the fact it was an illustration of his stepdaughter she required a limiting instruction that the government was only supposed to use it for intent for absence of mistake  which again was here important because of the unallocated space argue situation and she also excluded of or other evidence that the government sought to introduce which was the moral inventory file on david busby's computer th am a pedophile and i want to understand why she excluded the sex offender registration forms and the defense sites no similar case in which this circuit has reversed for abuse of discretion where the district court has struck the careful balance how old was the conviction that the conviction was from one thousand nine hundred year on or what twenty twenty some odd years it was remote in time in that sense but this circuit has explained that there's no inflexible rule excluding prior bad acts after a certain amount of time elapses and the circuit went on to say depending on the theory of admissibility and similarity some remote acts may be extremely probative and that's from spill own here what what brought this conviction into remarkable relevance was david busby his own  words sergeant reich and detective miller from the university of california police department came to interview him he invited them into his home he said to them i'm expecting you he didn't give them any resistance whatsoever invited in them into his home and the first  says is you know my background i was arrested in the ninety's and so he's the one who makes his conviction the most relevant with his own words and he goes on to say the statement is important because he's lobbying them that's why it's another reason these statements are voluntary because he has a motive to be there in one nine hundred ninety he got in trouble for his sexual interest in children but in his words l b l hung on to him and he wants that same deal and what he's saying is look in one thousand nine hundred hung on to me and this is not as bad as that like i'm getting rid of the porn never touched another kid again and so he's lobbying for the same thing and so pornography to him is a different matter those are his words that's what he says and in order to understand what he's talking about when he says pornography is a different matter that he's talking about child pornography he's using it as a reference point the conviction and so in order for the government to put on what is a statement by a party opponent we have to have that conviction in to explain it and it's the context that allows us to explain he's talking about child pornography and the statement is incriminating and in closing argument the defense argued that it wasn't context you know it was conjecture once the jury hears about a prior conviction like this in this kind of case it's you know i think it's somewhat of a fallacy to suggest that the jury's going to put it out of its mind for all purposes except for the limited instruction which the judge gave them well  is in the child pornography case where there was evidence of molesting and put in they looked to me like the government had it's pretty strong case without this piece of evidence i think we could have proven our case without it your honor but i think that the judge did an excellent job of conducting the of doing the fourth rebalancing instructing that this was supposed to be limited for use for a limited purpose in fact the government reinforced that limiting instruction in closing argument and that's it essie your four ninety five we also use it very sparingly in our opening and in our closing the molestations and the evidence supporting the statutory criminal elements were similar in character and again that's child pornography case so there is no reason to suspect the jury was inflamed by the admission of the molestations and i can tell you just from my experience in trying the case that the most compelling part of the trial was not reading of a stipulation about mr busby's background but having to go over the five series of child pornography images and this is a distasteful private just is what it is that's what it is and so if your honor believes that that kind of evidence just automatically taints it even the charge would taint the jury but we trust our juries more than that and judge armstrong did a good job of instructing them you can only use this for a instruction instruction your honor that the defendant failed across the board to provide any evidence to support any of the elements that it was supposed to in order to get its affirmative defense there was no evidence at all of good faith they rely on the fact that all the images were deleted but flier that said in this court i think it's instructive the deletion proves very little you can't sustain a conviction just on the fact of the lesion and simply it's not very informative about good faith it just doesn't say one way or the other whether or not the images were deleted in bad faith or good faith that doesn't advance the ball either way why isn't something for the joy of this your honor because there is a burden that the defense has to meet to get this to get the affirmative defense destruction and as soon as they push the ball a little bit they can have the instruction but they just didn't push the ball all of the child pornography erotic images so those legal images they talk about they were in an allocated space together now i think they could have gotten instruction had there been a different if all of the child erotic images had been in the allocated space and had not been deleted but all of the child pornography had been deleted in the unallocated space i think there's an argument there to say look i drew a distinction and the asserting look he was seeking these images of children just not the illegal images of children and so if evidence consistent would have with that which would assert some good faith would be the images of illegal images there are just  chance on keeping anything that's illegal and what's more i'm trying to sort of get over this this attack and i have to children i'm going to delete everything why why why is that it is often you said they were all in one place they talking about i didn't bring it up my point is that those images were treated the same way not necessarily at the same time and so what you said they were together and now look i'm going to space so what is it about being together that the significant make there the defense has argued that david busby was seeking illegal images of children and he wanted and he knew that those were legal and he knew the difference and that he wanted those but he didn't want to illegal images so as soon as he saw the illegal images he deleted them but the legal image he kept that's is that's his stated the facts but that's that wasn't the state of the forensic evidence the state of the forensic evidence is that everything had been deleted and so he drew no distinction between legal images and illegal images because he looked at all of them and then deleted all of them because he wanted to hide all of them so there's no evidence of good faith in the in the evidence as it existed when i was trying to i still listening to my answer to my question which you have managed not to give what significance d yeah it's one consistent with his statement let me say this it's either consistent with that it's bad faith or it's in or it doesn't say anything at all and this i don't have the burden to show that this is not that  faith for the firm to deny the affirmative defense instruction my point is is that it's not evidence of good faith they have to put on evidence of good faith and they did would be more was a good face it had been in separate places in the  that's fine but i don't want to leave here wondering what i'm god's us what's he talking about so let me ask the question just one more time and tell me what you meant by say what is the significance of the the good ones from the balance and then he come back and say well it's but to do that i would hechsher have to view fourteen hundred images some of which are illegal and i didn't even want to you know soil my eyes with seeing them to advance the ball either way but that piece doesn't advance the ball either way and it's up to the defense to put on evidence that advances the ball and they did and so there's also no evidence you need to go back and so that i'm jewish for the time that i of child pornography a lot of coverage often argue that travels through the internet the only kind of matter that can travel through the internet is a computer file and since the computer file has to be that matter then lacey can no longer be the law which us kind of made it not to prove that this was not an obviously but that's his state of mind he's saying i believe the amount if he could only do that if he had proof that he had seen the images and there were two witnesses that testified who could have testified that he had seen i'm sorry the images but the notices and those witnesses were scott campbell and the defense expert scott campbell testified that bro which is the network log writes down everything so all of the network traffic that comes in gets recorded by the log and the defense didn't ask one single question about whether or not they saw there was a notice on the web stream or whether a picture like noticed h t m l or noticed he didn't ask one question they did ask him hey  know if these sites contain legal or illegal images the defense expert could have testified that she had seen some evidence on his computer so if it had come down on his computer and if it had been saved or even if it been deleted she could have testified look i saw this picture of a notice since he didn't see it and it couldn't be for the effect on the listener and it's absolute hearsay because they're only seeking to admit it for the truth of the matter asserted so i understand correctly you're saying that there were ways that a witness could have testified based on  examination of the computer that in fact this green with that message had been displayed the testimony that was prepared what was proposed was based on the experts going to the archive for that website and saying the archive shows this this warning but there's still lacks evidence that defendant ever saw that that's exactly right your honor so and the government was willing to stipulate but the this record excluded on hearsay grounds she did exclude on your say grounds because she didn't frankly she didn't believe that it was for the effect on the listener she said in the back and forth that sidebar if your client even saw it so she and she's right if it's not for effect on the listener then the testimony is hearsay because it's for the truth of the matter asserted and that was the question that the ascot campbell de not did you find any evidence in the log that i've noticed was seen but do you know the content of these websites that's why they were put in this evidence then and judge armstrong called them on it and she was honor i think you have little time for much first i'd just like to start on the good faith issue with respect to the defense the government indicated that if mr busby had saved some images of child pornography and allocated space that might have been evidence of good faith he in fact had done that if you look at supplemental excerpts of record for twenty eight and for twenty nine our expert testified that she found images of child modeling in the allocated space of his computer that's an indication that he was making a differentiation between illegal and legal images the second thing is that if you look at a number of those supplemental excerpts of record for twenty eight and for twenty nine the second thing is if you look at the number of images whether they were legal child erotica versus illegal child pornography and you look at the numbers that were presented by the government at trial it also provides further evidence of good faith on mr busby's part with respect to one of the computers the government's witness testified that there were nineteen thousand images that he referred to as pertaining to child pornography child pornography but he which he said were legal in nature that says compared to seven hundred images on that computer that were illegal that's certainly more than enough evidence to get this instruction to the jury with respect to the question of the notices mr campbell testified at page fifty nine and sixty of the excerpts of record that his logs showed that the user access the splash space on the computer and that's what i want to stress to you there were millions of images within the un allocated space and it would have required digging through those images and it's not even clear from our experts testimony that she would have been able to find every single web site that had been looked at the fact that there was there was evidence that the splash page was looked at the fact that that's why last page included assurances was certainly enough to make it relevant the government could have argued to the jury that there was there was  reason to believe that he didn't see it but that's not a basis to keep that evidence from the jury that was an issue for the jury to to decide and we're going to allow the jury to consider it very clear air fifty nine sixty of the excerpts of record the supplemental excerpts the record i apologize but what is it i should be looking for that campbell testified that his view of the logs which were complicated documents containing all sorts of code was that it indicated to him that the computer user busby had access the splash page of this website in other words had entered the u r l and had had seen what was on the first page of the website and our expert was prepared to testify that that first page contained  defense and i think on that ground in addition to the others reversal is required