for most our final case this morning united states person's name and case number seventeen of eleven forty five way what the government failed to do here was to prove a sufficient connection between mr nagin and the child pornography that was found on two computers in his home and particularly in light of the fact that there was another individual who resided in the home and had access to those computers what they didn't show was a substantial connection between the defendant and the contraband from other side issues related to a pseudo confession and a prior conviction that i'll get  in a moment but it wasn't a pseudo confession words out of his own mouth well but they were knowledge ing that there was productive thing on their computers i don't and disclaiming awareness of the distinction between child pornography and ordinary not defeat other evasions well i respectfully i guess i would suggest the government did not say that it was a full confession they said it was gave some evidence  well let me see if i can even convince you otherwise just because i don't think it is the what they say when you're talking about is after saying that i don't want to speak without a lawyer trying to should've come in evidence in the first place but the judge centrally said he would disregard it and it was a porn which the agent said to it and said ford said in an arrogant and dismissive manner in the sense of i guess i don't care about the difference between them or something like that point number one what i would suggest is we're we're talking about agents who one of whom said that upon arriving at the home i asked mr newman if you needed medical attention because he seems he was so surprised by our visit and the other agent testified that i thought it was unusual at the lack of surprise that he demonstrated at our visit because generally people are surprised when we visit so in that context the statement porn is porn is not a confession and i don't think would be sufficient under different circumstances where the allegations weren't so ugly to create proof beyond a reasonable doubt and i'll here's the analogy that i've come up with hopefully it's a good one imagine this were a case where a gun was found in a room in a home where two people lived and they both had access to the room in this analogy the room is the computers and supposedly analogy is not going to work out saw his name was all over this computer on the various programs that were registered this was a matter for the try of facts here the judge not a jury and to try to get us to replace the fact finders few on appeal is nearly impossible but there are two cases in similar circumstances leaving aside the prior conviction which i'll get to in a moment where they did reverse now they are from different circuits but they did reverse convictions one of the more than case gives a very good explanation as to what needs to be proved in a case where there is contraband in a home or place that has a joint access to it and the other case lo l o w e which is essentially factually on all fours with our case leaving aside the prior conviction and here's why i don't think you should use that prior conviction as the silver bullet as we said in our brief for the case or this statement horner's porn and with all due respect what i think is happening and what i think the district court did too was to use the ugly nature of the evidence as making the evidence stronger and i know you don't like my analogy but suppose the person in the gun case had a twenty year old par or gun conviction we would say oh well therefore he must have been the person who possessed the gun in the room to which multiple people or at least two people had access and suppose that guy said gee i don't think convicted felons should be prohibited from possessing guns because you know where the people who are most likely to get shot if you need to protect ourselves or something like that you wouldn't say in that circumstance therefore that person is the guilty one what the government failed to do here are some what the evidence failed to do was to connect mr nigam and closely to the child porn the closest they come computer analysis wise is within forty five minutes and even those forty five minutes require a centrally the piling of inference on inference which the low and the moral and case say that you can't do the forty five minutes in the first instance is forty five minutes between the drafting of a obituary for the defendant's mother which the government says the inference is he must have done it because it was his mother through the creation of a folder called a temp folder in which child pornographers so that's forty five minutes the second one is an i tunes receipt that was received forty five minutes i think prior after it really doesn't matter but within forty five minutes of an access to a link to child pornography in that case the government one didn't present any evidence about when i tunes receipts coming do they come immediately upon ordering a song off i tunes or do they come at some other time and that issue  forty five minute issue is the lack of the substantial connection and this court in other circumstances for example when a gun or drugs or other contraband are found in a home with multiple people require that substantial connection it can't just be he was there there were no passwords on the program that would use to access every program it should be the child pornography and there were no passwords on the computers and most importantly no evidence was presented of the other amount frequency or timing of use of the computer so we don't know the evidence is silent on whether within let's say that same forty five minute time period the other occupant of the home accessed something on the computer there is where she was named as the other person but it is a lack of evidence now maybe one is there any evidence affirmatively supported theory there wasn't any evidence presented affirmatively supporting that theory but in order to show the substantial connection in a multiple occupants situation the government is required to show either the substantial connection or that the other person wasn't or couldn't have done it or was less likely to have done it and here what they didn't show was whether there was any computer at all by the wife within a closer time period there was one stray comment by an agent when asked wasn't something like wasn't there other stuff on this computer and he said well there was some billing stuff and some business stuff and there was a list of people invited to a wedding now you know i guess i'd be falling into the same gender trap to assume that that must be her that the government says well when it's a cigar or business or whatever it must be mr newman but that's that's the only evidence of it but it's the government's burden of proof the defense doesn't have to have a theory as to who an alternative suspect is at all they're free to argue that the evidence wasn't sufficient because there was other people w access and people and lack of passwords and those sort of things it appears that i'm well into my rebuttal so i'll say what i think may please the court entry and it's not going to have to united states the district court did not air and after in the bench trial determining that the government had proven beyond a reasonable doubt that the defendant has asked and received child his business email account he gave judge sykes described as a pretty damning statement to the agents summarizing the pouring of his porn which the government argued to the district court would not have been said by an innocent person under those circumstances he has an atrocious criminal history which consisted of eight years of abusing two different minor girls and a one time occasion on which he also abused his minor nephew the district court was prior conviction is the conduct is horrifying the question is how probative is it and it being twenty years old other courts have suggested that not only is it not very probative it wouldn't even really be admissible under for one for now we can't complain at this stage about the admission of that evidence but we can discuss the probative value of it it is extremely cold and it is of different conduct and it is not enough of a silver bullet to say therefore proof beyond a reasonable doubt he did it there was no evidence of imagine there's no evidence of the wife's background for example there's no evidence of anything related to the other person that would have precluded or suggested that it had to be mr megaman as opposed to someone else all of those factors are issues that undercut proof beyond a reasonable  doubt so for example the government says in its brief many things of oh it was defended and not his wife it was not the wife who saved personal and business documents on the computers there was no evidence presented of that of whether she did or did not there was evidence that she had access to the computers and would have been able to use them and not prohibited but the government didn't provide evidence of what she did and when there is no leaving aside the presumption that it must have been him there was no evidence put forth to suggest that it wasn't the other occupant of the home and that's it i know it it sounds like a strange argument in the context but the moreland and the low case explained it very well and it is perfectly consistent with what this court has done in other contexts of all involving contraband and that's what this is it's ugly and horrible contraband but it is just contraband in the analysis  sufficient evidence i would just respectfully suggest that it's not here the low case makes that clear and i guess the government now says it's a full confession but you can find a page in their brief but if you look at it again do they do not say that in their report don't bother you leader right now i'm just going to say that we've had difficulty finding that and i wonder if you would be kind enough to large with the court a copy of that if so it might take more care my guess is someone who's better at computers and