and i thought that was done via the prosecutor here at least the government at least said we're going to we're going to prosecute the receipt part of that is true on that indictment your honor they said they were going forward on the required to move under double jeopardy i didn't ask you that and i'm just saying why didn't you do it you know double jeopardy has not to do with facing the second invasion it has to do with face in the second trial that's that's correct your honor and for  why the timing was what it was ultimately doesn't affect the the legal error in the case the timing issue relates to the choice of counsel in terms of when i know you know what are you raised a question in mamma is this legal theory thought of after the fact or is it just stumbling through i would a person would plead to one of i thought that perhaps the purpose of that was to take a chance on the second one with some of the more terrible evidence not being introduced so there would be some risk of prejudiced i'm just trying to back the white happen and then you got all these drugs i was going to plead with is that's going to lock them in and they're not even going to realize what's happening until it's already happening and now we've got the i don't believe it's using it as a sort because in this case the ohio  state stored in the contacts were pleading guilty and we didn't know when we feel that they were going to say that again we did that defense did not know in the record it's very clear that if i'm of the guilty plea the defense was unaware that there was going to be a superseding defense was not aware of that and that's reflected by the you know where they could be you know well i mean anything's possible you head over the head is all the crimes there i mean you had this this receipt notice and you only put into a portion of that what would make you think so i take it you didn't tell your client this you didn't tell your client there could be another indictment at the time that we at the time that that's correct we did we had no reason to believe the government would not proceed on one of the original they've given us no indication they would not proceed i want to when they didn't divulge show us where the court that we're going to be superseding seven days later they perhaps realized we were doing and they also strategize by hiding from the fact i don't know they if they have to do then i believe under the authority i cited in my brief they do have to they have to government witness was simply there were different images whether there were different child or graphic images is not in evidence and the judge to make finding us with those different evidence as far as the judge knew and he has opinions as i don't need to reach this issue because i'm going to follow she child pornography pictures on his computer hard drive and the subsequent printing out of these images and retaining them on multiple desks distinguishes this case so that the ninth circuit said receipt and then transfer under twenty fifty two n possession count bars that image of being we prosecute under proceed because when you're when you plead guilty to that particular image a particular image the way the statute reads you plead guilty to that image any image in one or more harddrive so in each harddrive in which that image is found your plea isn't actually done so if you plead guilty to a particular image on the western digital that image is now protected under the other hard drives on the couch in the case and so if there different images it can go to different images and to prove and to prove because one thing the defense would likely have done in the government that's why they supersede it is we could have introduced expert testimony to show that the dates that were supported by the various evidence of the court saw don't establish actual receipts in that timeframe because of when the actual program was installed is an issue with the software and so we would have most likely we actually had planned to call expert testimony on that issue to show that that other part of the data could have been the part of the receipt and it would have made of problems for the receipt and that's why the government did it government again as i point out repeatedly went back to the grand jury for that reason because they didn't want to give us morning your honor may please the court mr byrd and his argument by saying that whenever there is a superseding indictment that is necessarily a subsequent prosecution the government is unaware of any case that would stand for that prosecution that proposition and it does not appear to have any reason a reasonable basis in the law and thinking of other analogous circumstances in which it is sub the superseding indictment comes into play one example might be where the government supersedes after the statute of was essentially right and that it made the government's proof easier trial to have this extended date range but question i believe that the date range is not an element of the receipt charge here to count one court case that said that as long as you have and go all it back to the block are quite for quite frankly as long as the two offenses have separate elements you don't have just double jeopardy here and here the obsession counting the receipt was under twenty to fifty two they're both charging your twenty two fifty two no big a receipt counties under twenty fifty two a two which makes it illegal to knowingly receive or distribute any visual also a situation where you see these very low level drug offenses most of those are not seeing a lot of possessory drug offenses and that's good but the resources and all but it really is a part of the justification for all these prosecutions it's not that somebody holds the image but it sets some child phone way or is involved in being put in a position to produce the in isn't that the driving force and so you see it and i'm not answering for you but it strikes me and i have asked these questions like this or the fact that somebody has an image that you or that's precisely what the supreme court has said that possession of child pornography is a carve out too but otherwise might be protected speech because i mean nobody's trying to defend oh i'm just saying i know you just as a matter of i realize it's all sort of stream of commerce matter and the receipt and possession provides a market for this desperate herbal activity but what about it what about the people who are actually producing this stuff and bad as it is isn't you know it pales in comparison to somebody who's actually producing this film and in answering your honest question i want to respectfully disagree with your contention that this is course those agencies are attempting to get at the people who are producing these images but to follow the trail as a work requires years decades of putting together who's producing these images where are they coming from there found on these these individuals computers where is their common connection following those trails overseas and although i don't have direct experience with specific efforts about individuals i know that the  basis of these prosecutions are the reason why they're being pursued so it vigorously is because at the end of that string if you keep going are the sources and that is an incredible amount of work and i'm just as frustrated as your honor that  proceeded to trial and had he been convicted on both and had and most likely a trial we would there wouldn't have been separation of evidence i think at the end of the day the possession count would have been dismissed the government brings both because as  answer will you right into that that issue i thought your answer was going to be maybe one that when you what you would prove up would have been the same proof that you all part of the it the trial on the receipt that there were different images strikes me then you are sane that you want put to that or choice hypothetically because of the strategy of the defense in this case by a lemonade the hard choice you may have been put to that would have arisen from the main motivation edition is the main motivation was that once there was a conviction on the session that again there was a fact before it was not really a question that you know it's a bench trial it may have some influence on the judge potentially although it's not really relevant but it does have a considers considerations obviously factor but are irrelevant to the consideration so what i did want to say is with respect to why didn't the government object it obvious why the object it wanted to lock in the conviction they went to trial and we were able to come up with different sometimes things fall apart a trial the opposite i'll buy us pleading guilty and then not objecting to benefit they got with a guaranteed conviction and they got the benefit to try and now they have a conviction also get a five year mandatory minimum that was the reason they whether certainly they could if they showed full distinctness that the images possessed on the later date where it had nothing to do with the receipt on this initial date i think that would have been proper to have a second indicted ok but because again that's one of the issues raise to the court has addressed a lot of the first issue and third issue just that the second issue of the the actual superseding indictment itself referenced the western digital hard drive is something that would be required to be forfeited in this as part of the superseding prosecutions indictment specifically incorporated the conduct to which he already pled guilty and the government really didn't respond to this argument in its brief and i just want to add on this point that to the extent the only argument that that again arguing that the fact that there is a subsequent letter or some other indication as to what the evidence is going to be at the trial what theory they're wanting in their argument is just respond