good morning may it please the court elizabeth wait for the united states like to provide just a little bit of context before we get to the fairly narrow issue on appeal i think we're pretty familiar with it and my question to you i want to sort of get right to the heart items of dominion evidence that we identify who e mail us and doing well or fought for photographs two of the four photographs show mr and plan with a young girl i believe it's his daughter i'm not sure about that the district court at the hearing said that that when you're talking about a child pornography defendant a picture of a defendant with a young child could inflame the jury's passions you know or make the jury worried for the girl and we review that finding for abuse of discretion yes yeah and we don't we didn't i mean we to those two photos george was judge was within his rights under for a three x to exclude him except that what we said at the hearing and i actually showed a little picture of how it could be done in my reply brief redacting and often said that it's not probative enough what would the court's response to that suggestion he cut off the prosecutor started to say your honor we would have no objection to redact in this pictures to remove the child and he said you know what i photoshop and other things maybe it's not so isn't that something that the district court would have to look at the specific proposed photograph i would think so i think that if he were going to exclude those two images i mean that he that when we said these could be redacted that was probably something that should have been explored rather than cut off you don't need those though if you can get in any of the domain that you're right as i understand it you want this evidence and simply to show that that these were his drive these were his heart i put aside those two for second here's my question on the face of the judge's order he said you have to disclose all the images that you intend to use a trial correct he said that i can read you the language but that's to identify the specific images or set of images in this case that it would use in its case in chief right that is that is from the transcript of the hearing right the way that message judges that's a judge's previous order the february order right in and sponsor the bill of particulars right so technically aren't these images well technically yes they are but here's the thing if you read the transcript i absolutely it was never there was never any doubt in anyone's mind that what we were talking about in that order was the images of child pornography why don't why shouldn't we rely on the district judge to interpret his own order it's an order he made so let's assume that he said when i meet him i say images i mean everything i just don't mean pictures of child pornography i mean any image you intend to use i want you to disclose anything right now and then you fail to do so yes if he'd they had in mind with the pictures of john doe not the point you want to on its face as more i would submit that that taken as a whole the transcript of the february twenty third hearing where the judge makes that order what is absolutely clear is that the judge is directing the government to sort of read to to reduce the universe of child pornography images that are at issue here we found ten thousand child pornography issues and that in the defendant's bedroom and the judge said you know to give defense a fighting chance here you have to say which ones you're going to use a trial so that they can have their forensic expert focus his attention on a manageable number of child pornography issues raw images rather than the last now russian differently if this were a case where we're relying on that order you said all we have these dominion evidence images but we're not going to submit them because they're not covered by the water i think could be a fair argument that the government was misled but that's not what happened here is know we didn't we didn't know it wasn't until the judge preclude us from substituting and this is and this goes back to you know very forthrightly we made a mistake on the first on the first response to the right when you're not or suing some of request for a list of pornographic images and that's what the discussion at the hearing was that was what the discussion at the hearing was about and i and i also think that when we made the error on the initial list and the defense caught it and we tried to correct it and the judge said no you're too late effectively and i think it is clear to everyone that effectively that resulted in a dismissal of the two most serious charges right to do the advertising counts we needed the images from the desktop computer with the file sharing software so now we so it was so once that when the judge issued that order we immediately sent our agent to look at now we also had two disk drives on our exhibit less and those just drives which had child pornography that had been on the list of fifty and we said now now that we're limited basically to a child pornography possession that was the only one it was last we had just my understand now we had to do that and so that's when he identified those we didn't we didn't do you need to question that maybe you can answer do you really need the images in other words can't your expert testify that he's examined both the computer and the hard drives and he knows that the person who on the computer had access to the hard drives i doubt that judge paul where would allow us to make those representations without evidence to support it experts can testify about things that are not in evidence i think that i anticipate that but where it would require us to be able to prove that is why i want to get your position clear so i can ask for a response from the poet your position seems to be that throughout this the hearing the use of the word image can only reasonably be understood as referring to a child pornography image yes is that your position that is my mission and that you know there's no other reasonable way to interpret that term so you comply you literally comply with the order yes and i think that if you look at the pleadings that the parties filed afterwards both parties cited a bunch of we quoted from a bunch of pleadings represented characterize that order as the judge require the government to provide fifty child pornography images l in the discussion said well each image could be the subject of a separate char exacts true only if there pornographic or allegedly but i have a human i believe i do want to save time for about a but i but i just want to go back to your very first question was respect to the other two  photographs and the two snippets of e mail the four zero three b requires unfair prejudice right that unfair prejudice has a substantially outweigh the probably devalue what we're talking here is a snippet of an email from e bay he had ordered something i don't even know what it was an email from a tax preparation service to a personal photographs of him you know one sitting on a couch one sitting in a car there's simply no unfair prejudice no risk of unfair prejudice from those from those items that even would prompt a fo rebound i know you want to save time for a bottle but i need to ask you this question incline argues that there's two other reasons why we ought to affirm the district judge's order but they're not reasons that the district judge addressed it those are issues that ought to be taken up on remain and if we because they weren't on trial exhibit list you know the disks were no i'm not ok i mean it's ok yes i would like you as we dress them i want to address your i think you should take them up i think we have very strong arguments that that the disks from on which these dominion evidence is found were on the exhibit list and frankly this goes right back to the shorts is the case that we cited where this court said that that when the government didn't include a witness on its witness list that didn't violate the judge's order because the judge's order was that the government had to identify all the witnesses that it intends to call a trial and at the time it filed its witness list this defense this witness was still a defendant and so could not possibly the government couldn't have intended to call him a trial at the time they file their list here the judge's standard order says we need to provide a list of the exhibits we intend to introduce at trial and it wasn't until four days before trial when the judge effectively threw out ninety five percent of our cases a sanction for this inadvertent error on our list that we realized that now we need to file these so i thought so i think under shorts that also wouldn't qualify as a basis for excluding the evidence with respect to the exhibit list and now i am well over my time ok thank you thank you thank you amy cleary on behalf of carlos i think at this point i would like to throw out what i had prepared and answer all of these questions i'll start first was making sure that we are clear on what the district court did below that district court did not rush this decision the district court gave the government every single opportunity well that best doesn't really help us i think whether the judge gave them time opportunity and so on and so forth that the courts first statement that the fifty images meant any kind of damages it seems to me is untenable because even your own memorandum refers  requested a list of the pornographic images your memo talks about the pornographic images the court talks about every such image could be subject of a church so that seems untenable i don't think it is untenable your honor i think when the district court explained very carefully to the government and its hearing on february twenty third it explained that the sole purpose of requiring those images was to make clear that it wanted to make sure that mr in clan and defense counsel and his expert if defense counsel chose could find where those images came from kelso i want to read you the first sentence of your memorandum of points and afterwards at the hearing on word twenty third two thousand and seventeen the court ordered the government to identify for the defense of the child pornography images of the government intended to introduce a trial and you repeat that the images of child pornography that's what seems to me how everybody  the court understood that i disagree your honor and again i would the whole point of requiring images regardless of what a particular attorney was referencing when writing those memos what was the court mean when it said every individual image can which is what the judge was explained well when the government explained that it had to show dominion evidence it also admitted that it needed a forensic expert to testify as to the dominion evidence when it explained that those e mails if it was found from an expert and an expert would need to testify a trial to talk about those email fragments those were images in actuality and those photographs came from files that the defense expert would have to come back and trace that was the exact same purpose that alone one for form the base of the george that's exactly what the government is saying it needed those images for know it saying that it needs have to prove knowledge with respect to the pornographic images knowledge is an element of possession of child pornography you have to know that you have it which is a heart attack charge well but it isn't an individual charge an e p and email is not  read i'm saying your honor respectfully if you were relying on a single sentence from the district court's order it's then a single sentence repeated over and over and over again from the defense attorneys all from both sides at the hearing and the understanding of the district court's order let's assume that the government had a picture of mr included sitting at the computer with the relevant hard drive next to it i photograph he can sit next to an elephant don't mean listen my question but let's assume they had that photograph they wanted to introduce it to show that he had control of the relevant hard drive do you think they would be precluded from introducing that by this order it's an image from are they introducing it on time they're introducing let's assume they haven't produced instead of the dominion evidence they say oh my god you're right we need to show he had control computer thankfully we have this photograph that his family took of him and his favorite computer downloading child pornography i would think the hard drive right next to it so we want to introduce that to show that he had if any control if the emmy or shame don't change was ok closer all the facts those are all the facts you can get to change my hypothetical can you tell me if the image came from the discovery no it was not given to you i told you are additional it's not given to you with these fifty images that the beginning the government says your honor we have this image we'd like introduce it to show your minion in control it doesn't show any pornography at all just shows him at the computer now your view is that that would be excluded by this would be excluded do you have any other arguments that you want to because we've used up most of your time with this one i do the government's proffer as to either the images or the e mail fragments was woefully deficient the government argues on appeal that the trial attorneys below for the government made common sense arguments as to why they were pass the relevancy requirements common sense is an i was surely there relevant they show that he had dominion and control of the hard drive well that was the argument the government wanted the district court to accept but the government's proffer didn't allow what i don't understand of the government says we we discovered these fragments which can be these photos of the innocent photo put aside the one with the children the innocent photo in the email fragments on the hard drive i disagree your honor on not just white assuming that they said this is what they this is where we got them and therefore they must show since he controlled the computer that he also controlled the hard drive what any well if they would have proffered some sort of connection to the conduct it would have gone to and they said you know it isn't about the conduct it's about knowledge control over the computer it's not about a connection to the put out if it's about connection to the computer i agree your honor but if he and they show him connected to the computer the court asked the government can you show me anything that shows he took those pictures download those pictures anything can you tell me anything government that allows me to make that connection and the government at best could say we can only show you honor that these pictures demonstrate at one point in time one point in time he used this computer let me ask a little different question about those same for th oath what is your argument put aside the two with the trial you know in the picture with them on the other two what is your argument that they're prejudicial wonderful unfairly part of the government also argued that it was going to use those photographs and that e mail snippet to argue to the jury that it was going to rely on that to make a tenuous connection to say to the relying on that it told the district court to tell the jury you can convict mr in klawonn because issues beyond a reasonable doubt general three doesn't deal with stuff that just just because it hurts your case prejudicial so it's unduly prejudicial if it's if the government is telling you very clearly the purpose of paan of which it's going to rely and if it's going to rely on this court that we would need an expert to be able to trace where this information came around so why are why does that make it unfairly prejudicial if they need to bolster it with other evidence when we tried it which was a question again a different way so you  assume that it's plainly relevant ok ok i know you think it's not but just bear with me assume that it's plainly relevant do you have a separate argument about why these these these are not the pictures with the children but the other images are und prejudicial because we would have to stop trial continued trial youngster mr includes interest to proceed speedily to trial summon an expert who would then have to come and do the investigation and the work necessary to be able to trace the file past and present the defenses to that which is exactly why i'm back in february and the trial deadlines and the exhibit deadlines and the discovery deadlines of the court put out to avoid in the first place and as i understand it the district court didn't rely on those in the excluding this evidence and that's why i asked your colleague whether you think we ought to address those or send them back to the district court  asked you a lot of questions thank you i'd just like to make three very quick points i don't want to take up too much time what the district court said in finding that the images were not relevant is that the government could not adequately proffer that these images would establish in clans possession or use of the drives because somebody else might have put them on or whatever and that is simply not the test of relevancy to evidence is relevant if it has any tendency to make the existence of a fact that is of consequence more likely or less likely the fact that he had snippets of e mails that he had personal photographs on these drives makes it more likely that these are his than it would be without that evidence so that's it for zero three be that the point about even if these items are considered to have slight probative value which we would us to decide and you do too and i'm not sure i want to could judge could you know where have said in this case look wholly aside from my february order you have come up with a new case  trial and now it requires experts now it's a whole different case and you should've let me know earlier about this you goofed you admit you goofed and therefore i'm not going to let you change your theory on the eve of trial now  i'd like him to address that first rather than us do you really think we should address that they have invited you to address that and i would very much i know people just want you both out but i'm sure you've my views right but i think that but i think the reason for that first of all i think that that starts with a little bit of assumption that the whole thing about having to come together with fifty images having to limit it to fifty images was so that their forensic expert could i mean they've had a friend they had a forensic expert who had been looking at these drives which had been available to them for nearly two years the forensic expert had been there had been going through had been going through these are not you know because of the images you know this is that regular discovery that we can just photocopy of i disagree with that is i don't want to because you're over time not move those arguments were made to the judge who has  discretion to consider them where we're up here on this wholly separate issue that's why i'm sort of perplexed that both sides seem to think the record is is developed enough for us to decide that issue and we think it is and child pornography so i think that answers your first question to defense counsel thank you counsel the case just argued is submitted we appreciate very much the arguments both of you