the facts and circumstances of this case this was a series of burglaries that occurred in prince george's county maryland in each burglary more except for the last one that is in the brief d steal property and also would at gunpoint take car keys from the homeowners in steal their automobile in the last of the burglaries that is mentioned there is also a sexual assault of a teenage girl who was in the home at that time as well as the perpetrator filming the young woman during the sexual molestation in taking still photographs of her the reason that is important i believe to briefly look at the facts in this case is because it directly leads to the one of the issues that was raised in that is the challenge that council below  had made of an expert that was called by the government officer stauffer officer stauffer was a prince george's county police officer and he was c quote a burglary expert when this case when mr scott was ultimately arrested in this case he was arrested during the execution of a search warrant on a home he shared with his parents and a number of items were seized during that search warrant amongst those items were bolt cutters screwdrivers multi purpose tool probably tool gloves a black watch er testify as to the particular items which were seized and being able to testified that these were burglary tools now certainly having testimony from police officers as an expert witness is not unusual in in criminal trials and very often comes about in the in the instances of for example  drug conspiracy case we have wiretap and you have words that are used that maybe aren't commonly used in in some instances that a police assault police officers called or maybe an investigator's call to testify and say that when the parties on this phone call are using the word let's just say tickets i need ten tickets that means on the basis of his investigation into the case that that means ten grams of heroin let's not untypical thing that we see in us just record all the time in this case though i would suggest when you look at rule seven zero two and you look at the not exhaustive list that the supreme court laid out on bobert that you have trouble fitting what officer stauffer testified into that sort of scenario for example officer stauffer testified that with the use of gloves or flashlight aid or upright tool would be and i suggest to the court that these are not things that are subject to having an expert give an opinion of  computers scanners well i will agree that you could probably come up with some graduation of maybe some expert testimony was needed on one item and not on another i would suggest to the court in the facts of this specific case however that there would be that the computer has its obvious uses just like other things that are mentioned here and that  you could not necessarily say that a burglar is going to use a computer to keep track of the places he broke into and things that he took or what he got for selling them in quite frankly i always took that part of officer style first has to need not to really be very intuitive i have trouble imagining that a burglar would want to keep that type of   all if there was unnecessary why did tribal council have to ask the detective what a spring loaded center punch tool was that would be the one item out of this entire list that was testified to that was that they did an expert on that and then the problem is is that when if you had called the expert in you have him testify to this one particular item it may have been instructive to the jury but the the officer having been made an expert testified to a whole plethora of things that were found in the the reason that is i believe troubling is because when you when you do that you cloak the particular items with having had an expert give their stamp of approval to did this is definitely a burglar item in quite frankly i don't think you need an expert to well in isolation standing alone you can surely argue to the jury that a person loves or screwdriver have many innocent purposes but when you have someone like this you draw them all together and show how collectively they can be used by a burglar doesn't that have value to a jury doesn't that provide expertise that the average person wouldn't have i would suggest not because i believe that governments counsel could have just as easily argued those particular items to the jury in closing argument that what the court has just said i think that that is something that is very fair argument by the government in  honor what i am saying though is i believe that i will say that i believe that is proper argument if a if mr rosen who tried to case actually had taken that group of items and made the argument that the court made a moment ago that together as a group this has some its implication to this person committed burglaries i think that's fair the brief as i indicated a few minutes ago the government and law enforcement executed a search warrant on the home in prince george's county where mr scott lived with us parents carroll county in that particular burglary there was no one there a large number of guns were taken and this investigation had begun as a investigation into that burglary it was a federally licens gun store and allegedly some guns had been sold when the magistrate judge signed the search warrant the that is the information he had upon going into the residence it appears that other things attracted the attention of the investigators and i certainly can see that it's not at all unusual in some circumstances where you have a search warrant and something comes up and you get a second search warrant to make sure it's covered is i word by zing the police i would always advise better to get a second search warrant than just go on any other possible doctrine in order to take property the problem was is that in the subsequent search warrant taken in the second search warrant and what the affidavit spelled out were the computers some items of clothing things of that nature which again i dispute the computer nuff information to make that leap that these items were proper for seizure was all positive that you're correct why would the good faith exception apply what was it about this search warrant affidavit that would lead a reasonably trained police offer to believe that it is facially defective i would suggest it's because of the concludes re nature of what was in the affidavit and then i believe proper basis for signing it if i may i and i know we're down to my last few minutes but i did want to briefly touch on the third issue that was raised in the brief and that was the question of the motion for mistrial that was made by trial counsel and that concerns a particular particular line of evidence that came in concerning the defense's inability  to test through their own expert and they did the transcript makes clear hire an expert to litigate and testify concerning computer equipment that was taken the issue with that is this and if i can and hopefully my lack of technical expertise doesn't fail me but my understanding is that there were in the in the one burglary photographs and what would be considered child porn photographs taken of the young woman video taken of the young woman that information was on a digital camera that mr that was in the the search warrant was executed there was also a fund drive for however you want to describe it that also had that information on it what the defense did not have was the computer because you can't take the thumb drive plug it into at least the camera that was used in this case and transfer the photographs it has to go through a computer and the reason that was important is because in going from the digital camera to the thumb drive that computer which was one of mr scott's computers would have been vital to have the defense use the same tool that the government used was called the f t k application to see if that is also on the computer and the reason that's important is because it was well known and it was testified to that the people who did these burglaries often traded things back and forth you might have ended up with two computers and said you know i can't sell one do you want it and in doing so by not having the defense have the ability to test that computer there was no ability to see if that was actually if the pornographic film was actually on the computer  the opportunity to have his expert in they knew he had an expert test that i believe my time has expired thank you very much  the united states i'd like to begin with that issue that mr hole just addressed your honor because it would be a matter of grave concern to me if we had withheld a computer from the defense in this case but that is a complete misrepresentation of the record this computer was among the evidence taken from the defendant's home an inventory was provided to the defense the defense had full access to all the evidence in this case they chose not to examine the computer they knew that the government had examined the computer because the government provided to the defense prior to trial your selection well in advance of trial we provided notice that we would have an expert testified mr brady and he would testify about his forensic analysis of the computer the only issue that arose during the trial was that there was one aspect of the evidence on the computer that the government had no intention to use and that was that in the registry information the computer there was proof that the defendant had used that computer to transfer the photographs from the camera from the disk inside the camera to the thumb drive that issue was of little or no significance the government's case the government no intention introduce it it was solely incriminating evidence the defendant acknowledged to the court that his expert was not going to do any analysis at all of the computer that was a strategic decision made by counsel the defendant's decision was that the only function of his expert would be to critique the government's expert didn't look at the evidence at all he was free to do it there was never any allegation that the underlying evidence was withheld he chose not to do it and then your honor if you look at the chronology of this case the defense failed to provide their expert report as required by rule sixteen on the eve of the government concluding its case in chief on friday july eighth the defendant the government raised this issue with the court and said look we're on the verge of closing our case the defense is starting his case he's calling  expert we don't know what that expert's going to say because he the defense has not complied with rule sixteen at that point the defense said well our expert is going to critique the forensics of the government's expert and one of the issues we're going to talk about is that there's no evidence of how these photographs were transferred from the camera to the thumb drive at that point the government said well in fact we do have evidence that effect we're going to use it but but if that's an issue in the case now if we know that matters to you here's the report in advance of the our expert testified we're going to add that tourists protest money we're going to have him testify about that fact that is the only issue that was disputed in the district court and when was it disputed your honour's because the chronology is significant there's there's the defen attorney initially and i believe the opening brief the poem was mistaken on this because there was some confusion this record the fifth floor initially represented the court that he had never received this report what's called an f t k report  however he acknowledged that he had in fact received it before the expert testified so he has to report the expert testified then on july eleventh steven brady defense counsel cross examines him with the report which he has i assume there was no objection made part of witness testifying no none whatsoever your honor with regard to discovery two days later the defense attorney comes into court and says you're on a movie from this trial because the government didn't produce that report to us at all the coll y follows which is reflected in the supplemental join appendix defense counsel has all that's right i did have the report i could see to have the report the district court then says look there's really no issue here you've forfeited any objection you knew the expert was going to testify about the report you didn't object to the discovery should you forfeited that if you had race in a timely matter manner the remedy would not have been mistrial the remedy would have been a continuance so you could do whatever it was you were going to do with regard to that report but even today your honor more than a this was a case i'd like to say separate advocacy by the trial lawyers made the difference but your honor this is a case of overwhelming physical evidence documentary evidence testimony evidence from accomplices and the confession of a defendant and he c these crimes but he confessed that he committed twenty burglaries and nine home invasion robberies and that's relevant with regard to the search warrant because when the police went into this house they were looking these were federal agents looking for evidence of stolen guns when they went into the house where they found they found the defendant's bedroom and car were literally a warehouse i should say figurative lee a warehouse for stolen property and burglary tools they weren't expecting to find such a treasure trove they didn't know he was such a big criminals he turned out to be and what did they do in an abundance of caution they could have seized it all than we could defend it as being within the scope of the original warrant or subject plainview but in an abundance of caution they called back to the assistant u s attorney in this said let's get the supplemental word just to be safe here so they took that evidence to the district court as judge hudson pointed out it's not at all the case that there were no additional facts when they said this here's what we knew before we went in the house here's what we learned inside the house those are additional facts and based upon the district court authorized the measure judge authorized the warrant and the result in the recovery of the seven so we respectfully submit that the defense is simply mistaken with regard to the representation that there was no additional information provided in that supplemental affidavit there was and it speaks for itself and finally wanted to briefly address the issue of the burglary tools i believe counsel misspoke with regard to what the expert testified about i understood him to say that there was expert testimony about from the burglary expert about a computer it's not my recollection that the joint appendix at page five forty four to five fifty three reflects the entirety of this expert's testimony was a very brief few minutes in a multi week trial the expert testified about burglary tools not about the computer computer was seized on of the search warrant but what he testified about was what would a burglary a person is an expert in police work in  that i'm not placing blame your honor but be had because you're always responsible for the their answers in this courtroom but i do think your honor that if you look at that record it will demonstrate that the expert testified about things that are have unique functions in burglaries and things that would not necessarily be known to the lay person for example there's a scanner and when you turn it on the frequency that comes up is the frequency the prince george's county police a layperson wouldn't know that the expert knew that he knew that this is i didn't know this but he knew that burglars people who are in the business of burglaries tend to monitor police communications so that they'll know if a police officers responding he explained how they could be used and so here are the other point the defense made which i think is why this is somewhat of a bizarre objection is that my understanding of counsel's argument is essentially that no expert testimony is required because this is obvious would be obvious to a lay person and it does require expert testimony and the problem for the defense it's sort of a catch twenty two what's the harm if the testimony given was obvious undisputed and he'd have no objection if counsel were to make those representations to the jury in closing argument just one final point with regard to that your honor and that is the standard of review for this court is of discretion the reason for that is that district courts are vested with discretion to evaluate the relevance and the reliability of testimony in this case judge to set it evaluated it made a determination it was relevant and reliable and nothing that councils provided here gives this court to any reason to conclude that the judge abused his discretion in making that determination counsel's not argued here the point that they harp on in their brief which was the proposition that he needed to do scientific or technical analysis and we submit it's quite clear that the reason you know you do scientific and technical analysis is if you're preventing scientific or technical testimony because the the point of the case law of kumho tire and the other precedent that the supreme court has issued  looking at the same is to protect the jury from testimony that may be unreliable and may be prejudicial because of an expert testifies for example that this chemical causes breast cancer the jury would tend to believe that expert by virtue of his credentials and experience that's not the issue here all this expert said was something the defense stipulates is common knowledge and therefore there's no risk at all the jury being misled and no herb by the district court in concluding that this was relevant and reliable testimony that in this case someone was designated as as an expert and testified that certain items were burglary tools is that having the added if you will credential of being in expert i suggest elevates this to a higher level when a juror who is a lay person hears that this park this person who's testifying in front of say he is an expert i suggest that evidence generally or to the expertise of the detective you know it is to the opinion of the detective that it michel because it is irrelevant under seven o two or because he doesn't qualify as an expert which is it i think it's because it's a relevant ok i don't think you need an expert for this are fair enough now let me speak briefly to the the first issue that was raised by government's counsel and that is the dispute that occurred in the district court between the government and mr flowers who tried the case below it is i would admit a very confusing part of the transcript there seems to have been in reading it as a whole a lot of back and forth between mr rosen steam ms bell for who was co counsel and mr flowers who was defense counsel as to who had what when but in it looking at the at the joint the supplemental joint appendix that government counsel referred to a moment ago mr farrer states and it's on supplemental page ninety six mr flowers says that especially agent brady had twelve reports we receive six of these reports and then he goes on to about his expert who was there in court and was prepared to testify i believe what mr flowers was saying is that he needed to have his expert look at the reports he didn't have them all i realize that the government may have decided that they did not feel they needed to add this particular bit of evidence concerning the the forensic analysis of the computer however the issue and i'm and i'm sure that the government's counsel knows i have no reason to say this office deliberately hid anything but i think it is as was stated they didn't intend to introduce it but it was something that defense counsel below felt that it was necessary for him to have had and what the the expert whose name i believe was mr jones was not going to testify as to that well we don't know what his testimony would have been or what mr powers may have chosen to make that testimony if he had had the f t kay report that we believe he was entitled to thank your on arts or thank you appreciate counsel's argument in this case and most particularly yours mr hall we recognize that your court appointed and you've done a