familiar with our system that red light they were yellow light the green light the yellow light means you have two minutes the red light means cut it off unless we're questioning you don't get to run away for questioning you please recall the only and also if you are talking about something in the record please give us a record site that's very helpful we have my colleagues have memorized the record but i have not so it would be helpful if you give us a page that was a joke you can the confrontation clause a straightforward a person accused of a crime in this country has the right to be confronted by the witnesses because he said it was an act of confrontation clause grounds we did actually your honor well let me let me say about getting ready to ask him about what investigators received based on their review of the downloads and it goes like this sir based on your review of that record did investigators receive any information regarding conduct by an internet protocol address and i'll read it to you and then here comes defense counsel's objection objection court what's the objection if the witness is personal knowledge and foundation if he didn't have anything to do with the investigation he's just going to testify about what he read in some documents and what it appears is happening so he doesn't say confrontation clause and he doesn't say hearsay but i think he is objecting to the fact that agent faris is about to testify about what agent rockliffe did and so i think we do have a standard review but even if we are under a clear era standard or review i think we satisfy that as well your honour's because what you need for that is it an error one that's clear and one that involves a substantial right and here we're talking about confrontation clause specifically we're talking about was the government government allowed to bring in the actions the investigative actions that nonverbal conduct that are statements of agent ratcliffe through an agent ferrous and our position is that was a violation of the confrontation clause because agent ratcliffe was the main agent in this case he was the one who started the search he was the one who set the parameters for it he's the one who then verified it he's the one who then put that information onto a cd and then put it into an evidence locker and then he's the one that went to a judge and said i swear your honor that i have probable cause to go search mr wagner spec's house and then he again said i your honor have probable cause to arrest mr wagram if we're talking about a person having a right to face their accusers the main accuser in this case was agent radcliffe and he didn't testify instead they brought those actions in through an agent faris and specifically agent various does  that about what he's doing he talks about he starts using the word we reviewed this we did that and what he means is agent radcliffe did that and that's a violation of the confrontation clause specifically on what it what that actually impacts the the tiriel evidence that was given and the words you say he did that he did that so if if somebody else put a bunch of stuff on the computer but and i printed it out and all i'm saying is i printed it out and that's all that matters is the printing in out and not the content then how does that make it a confrontation clause it matters your honor because there was testimony that confirmed that printing out the logs well your honor on page one thousand and ten dollars of the record he says we reviewed we compared the logs to the actual file that was downloaded and it was the same file that was downloaded with the logs however on page ninety eight of the records he says  when asked by the government did you have any investigative role in this particular case for which you were in court today and he answers no ma'am i didn't and then on cross it becomes clear what he's talking about is all those investigative actions of setting the search of then going back into firming it taking that evidence putting it on the cd confirming that those were in fact child pornography files confirming that the ip addresses were actually the ones that the computer showed that a file was downloaded he didn't agent fairest  feresten had anything to do with that he was testifying about what agent reckless did and so that to me is it is a confrontation clause violation without even getting to the substance of the of the report itself which which i'm happy to talk about as well because i think it's all one in the report spoke to it spoke to a couple different things one it i think it spoke to actually both counts that that mr bags packed was convicted of before both for possession and for the i guess i'm asking is there evidence independent of the report on which his conviction was based yes you honor that's based on what agent faris was testifying about what agent rachleff what let me make sure you understand my question is there evidence independent of the report that you say is a confrontation clause violation is there evidence independent of that on which his convictions were based i want to make sure i understand your question you're asking is if besides the report what evidence supported the convictions so we had it there was there was testimony from four witnesses total in the case there was testimony from agent faris who again had no role in the investigation there was testimony from mr wag specs parents and that testimony i believe was used to show who was using the computer in question and there was testimony from a forensic expert based on the searches that they did of the devices so the testimony the firm heard about the various file pads and partitions and whatnot on the computer that's independent of if your reckless report that you say was a probably right that it goes more into the possession count but i think that even the report itself speaks to both because it talks about where that where those files came from the forensic examiners testimony is separate from reckless correct correct so looking at the report itself we know from cases like both coming and cases and as the has that if you have a report that is made for the purposes of creating evidence and is used t a police investigation then it becomes a testimonial report and i know that the government has pointed to some cases about machine generated data but our position is that this case is different and it's different for a couple reasons it's different one because in in the cases cited by the government was a rocket serato and ballesteros from this court we're talking about a google map image of google earth image that's different from a law enforcement generated report like the trench will downpour report law enforcement is the only one that has access to this software that the only ones that can make these reports and they make it for the specific purpose of creating evidence it's not a commercial product that law enforcement then goes behind and uses and separately in the  testified about the coordinate coordinates that she she put in to produce that image here a j reckless wasn't available he was available but wasn't produced for cross examination and so we think that it's different that way but also i want to point out some some instances in the in the record itself where the report is actually speaking through an agent radcliffe it's different than a google image and in the lizza rago toronto case it talked about once you start manipulating that google image you start placing markers on it and it does becomes to  start making statements and not in snap just machine generated and in the record on page for example to five thousand and ninety eight the report has lines that say things like this client sent us a peer i d what that a computer sent law enforcement the idea that we're looking for that's more than just data that's that's starting to become speaking and there's multiple examples of that same page peer i d we sent the client another one on page tw data or the report or something physical that show there were those show those facts which i'm sorry the those were in the report itself and as agent faris testified report was there it was had the report generating in a position to authenticate that it was were purported to be no he wasn't your honor because he wasn't the one who generated it radcliffe is the one who initiated the report he's the one that put in the parameters for which the search should be and he's the one after data was there and after the files are downloaded he's the one who verified it and then put it onto a cd and agent faris even says at one point i didn't have anything to do with that cd until it until after it came from the evidence locker so he was unable to under the law authenticate it just to be clear when you said in your reply brief to this court that the confrontation clause objection was not properly made but now you're saying that it was and what you're pointing to is a ninety eight dollars in which you do not use the word confrontation clause to even use the word hearsay no your honor but he is objecting to agent faris testifying on behalf of what agent reichl and you think that was sufficient to bring to the district cour attention that you were making a confrontation clause objection i do your honor because in the question that he was asked if he's asking he just says i didn't have any role in the investigation and then he's asked about conduct that in investigators received so that's the objection and testimonial i think is to answer your question more directly is what makes it more than just hearsay and i want to also point out that the concern that the u s supreme court had in both coming about using surrogate such substitute testimony from law enforcement was not a hypothetical in this case it's actually present agent ratcliffe was fired from his job he was only there for less than a year and he actually messed up the dates in colleagues have questions about confrontation clause i just want a couple quick questions about the evidence if i may put it now you're raising a sufficiency of the evidence challenge brett so we have to look at that from the point of view of where they were where they were going to make changes to it i believe that's correct is there evidence from which the is there evidence that this program notified users  program that there was uploading and downloading going on i believe that there was a there's a window that pops up that shows what's what's going on that's correct is there evidence that mr wagner spac used cleaner programs for lack of a better term cleaner programs to hide his tracks with respect to file a pass about appear to  saying vacated and rendered correct correct in assuming you preserve the confrontation clause challenge it would be subject to her most of you wouldn't you agree it would but the only evidence some of the only evidence the only evidence on the distribution count was  from the times confrontation calls issues and there was also strong evidence from the possession count from that from that report and that testimony as well for us it is there in the record i could be wrong i'm sorry the record the forensic examiner testified to tick sunny on the computer the changing of the default settings the friends examiner testified that an open court right but he wasn't the one who set up that on the long course inside of what they were doing and  t remind me from for sentencing purposes if we were to affirm as to the possession but vacate as to the distribution and the government did not revile or reprosecute the distribution what would happen to the sentence would it need to be redone or was there a clear i'm just not remembering i'm sorry because i didn't realize you were making this distinction i that's something i'd have to i don't know that often you're an ok well i'm sure your colleague on rebuttal will be yes she will be eager to respond  honour's patricia jones for the united states may please accord i'll address the confrontation issue of course is that's what my opponent decided to address st do you know the answer to the sensing question i mean if you want i think it would need to be faris as having violated the confrontation clause that's not what his brief argued his brief argued that the admission of certain united states exhibit which he has called reports violated the confrontation clause so this is in i'm honestly not very familiar with what he's arguing because this is different than what he put in the brief and i would submit that this argument about certain testimony of agent faris piloting the confrontation clause is waived for failure brief and also i mean we can check the briefs and see what he argued but i do recall them being conceded that that were in plain error if you will what's your response to if you have any i'm not sure if you were notified that  about the record citation from where there's a purported confrontation clause objection made but i'm not sure what do you have a view as to whether a confrontation clause objection is being made your honor i'm not familiar with that pain but i that the confrontation clause wasn't mentioned hearsay wasn't mentioned and as i understand his description of that page the testimony on that page he was objecting to certain testimony by agent ferris about something and so that's different than objecting to the admission of these records which is what he objected to in his initial brief those records no objection was made on the confrontation clause basis or on  hearsay basis the only objection as to all of them was authenticity so i do think we're on the plane air standard of review and the defendant did acknowledge that in his reply brief that it should be playing air those exhibits that we're talking about united states exhibits twelve dollars and three dollars and then he also objected to admission of em the images of child pornography itself he didn't mention that today but the objection was to the logs which he has been calling reports and to the images of child pornography united states exhibits twelve and three were just machine generated logs they they look like this and i wish i had handed out some copies but if you turn this is the st page of united states exhibit one it's that record of one thousand five hundred and seventy six and it's just pages and pages and pages of logs it's not a report by special agent backlit it's machine generated logs there is and i cited in my brief the testimony about a by agent faris about how those logs are generated but i overlooked which is record on appeal one thousand and sixty nine because it is very short and sweet he's asked about those records united states exhibits twelve and three and he's asked how are those records created his answer that's an automated record that's created that the investigator doesn't doesn't deal with doesn't alter doesn't it literally is automated in the background so what we're talking about here is just something that was spit out of the computer said it was just a list of of entries and it is right right and this united states exhibit one i just printed out a few pages it was nine hundred pages long it's a it's a big log that that that the computer generated on its own the two rental downpour software that's used by on foresman just printed it out so we're not talking about this notion of when you said he didn't raise this in the briefing that ferris was sort of explaining the investigation that ratliff dead would that be a confrontation clause violation assuming he preserved beer or at least raise the error in last he was repeating statements made by special agent  testimonial in nature i don't think it would be a confrontation clause issue would be perhaps a lack of personal knowledge but if if he says we executed a search warrant and he wasn't there he's just repeating that the office i don't think that's a confrontation cla problem in the st place it's he's just saying but i also your honor i don't recall him making those kinds of statements he talked about comparing what was in the law to the images and i think he was saying that he did that and so without i don't have any recollection of him making a bunch of hearsay statements about what other people were doing he talked about peer to peer software he talked about online investigations and he talked about these logs how they're generated how the the images are put on what their process at the attorney general's office is so that's how he authenticated it by the process in the chain of custody and getting it out and how to en downpour works but i don't honestly recall anything that could be considered a confrontation clause problem in the testimony and unfortunately i'm not able to focus on exactly what he's talking about because i didn't have any notice prior to day to day that he would be arguing that well and if it truly is a brand new argument it's way by raising it in oral argument yes your honor i believe so raising it for and in that case there was a certification signed by the analyst that everyone agreed was an out of court testimonial statement they might not degrade his testimony it was in fact a statement of a person these records are not statements of a person so when they are not hearsay and they don't violate the confrontation clause and even justice sotomayor mentioned in her concurrence in bull coming that the case did not involve the client in the other computer and so that the law enforcement computer is talking to the this is not mr  no you're on this is not the investigator investigating and finding that out this is how the computer talks about the other computer yes your i'm computer number two and i call computer number one client  certainly no evidence to the contrary of that no it was the jury told them not or would they have thought this meant walk respects and all this stuff oh i'm sure the jury would not have thought that your on at the testimony by special agent fare as was very clear that these are machine generat records that there are numerous places in the record where he talks about how it was generated but the most clear place is is where i the one i read to this morning at page both he knows eyesight to a client acknowledges it has these pieces it has this and this all of that is a computer saying what the other computer is telling him killing it yes here on this world of robots we start treating them like humans but  so computer number two is hearing what computer one says and no supreme court decision says two computers talking to each other is a confrontation clause issue that's correct your honor someday we may get there but and your honor i may i have to say which one of the computers is the client i'm not sure i will wait at the st page is his client located at ip address yes says the client means the defendant's computer so it's  strange term i think that's a computer term that i understand that but they use all the time i found nd you came up with that term didn't really know how lawyers view clients exactly case because it's in this case that specific in this case what we have is that we have a sophisticated computer users something that did not exist in the the carroll case from the th circuit that the defendant cited you have someone who is using  cleaner and eraser and who is encrypted and his child pornography so you have someone and there even other icons they were on the desktop that led special agent gone the louisiana department of justice to say that he was a very sophisticated user all three of the louisiana investigators other than agent faris who is not involved in the investigation but the three who were involved with us occasion all said that he was sophisticated and highly educated based on what they saw on the computer so you have that you have somebody who knows what he's doing he used the program it's not that this thing just came on his his computer somehow he downloaded and then never talking about talking to take saudi rather than the computer itself i'm not sure how how that works so you have he actually used assert that they said he was  t they based it on his use a c cleaner and having c cleaner monitoring constantly that that's not something that your average everyday person does they based it also on his use of the right now i'm a government yes or yes or what about i'm not sure if there was testimony about where you can get the racer but i would imagine you could probably i don't know if you have to buy it or if you can just down i don't have to be who wasn't sophisticated would have no interest in using it i guess is is another one i use every so often you read an article you need to protect your privacy so start putting never on whether someone can track your app or your absolute cation or something like that so you get out your phone and you start putting never never never and then the weather app doesn't work anymore because it and know where you are is that is that suddenly make you sophisticated and there were other things you honor that well ok what else tell us about what else  something and how does that differ from the ordinary person who reads an article and just realizes oh my gosh there's a bunch of junk on my computer regardless of whether you're doing anything wrong there's junk on your computer that you want on john and so let's push this button or download this thing or put it never on my app to encrypt it is not getting rid of the junk it is not helping your computer the encrypt it is all about privacy so it's putting something in a lockbox and most and how does that prove that he knows he's distributing it i think that's the bottom line or me  prepossession but how does it prove distribution i guess your honor that's just one piece in the possible that i'm getting to is is his sophistication and and your cases do say that that is an important element in the and not only the the  ption there were other icons on the computer that special agent said had to do with the registry of the computer that were very technical and he did not see on most people's computers there was a software called notepad plus plus that he said often indicated that the the user was coding and that that was not something that was seen on most people's computers agent miller said that he had never seen c cleaner  any race or used by ordinary people that he's been in the i t field for twenty years and he's never seen a business or person he never personally had the to put it on his computer and that he's never seen businesses do that so it seems to be connect it with downloaded he manipulated he changed default settings and it automatically popped up to show you the progress of the clouds down there evidence from the i don't know if it automatically popped up if you would open the program the  location of the download folder instead of having it in the default folder he moved it to what he named the them folder and put it in the encrypted drive so that again shows his awareness of how this program works and his  it would be very odd that he knew enough how to change that he can look at it and see it has uploads and downloads he can use the program to download but he never could figure out that it's also sharing at the same time it is like if you buy a car and you say well i know that it goes forward but i had no idea we'll go backward i mean he knows the program he uses it and he's sophisticated enough to know that it's it's making things that he'll a reasonable inference from the evidence i think it is you have a reasonable jury could make i think it is your honor your honor reasonable doubt i believe it is the district judge thought it was your honor and and the case law does say that the sophistication of the user is important as well as the design of the program and whether it provides any awareness and as judge jock and pointed out this program does make the user aware by saying this is the status of uploads and this is the status of downloads so those two things mean that this is not the same as these cases where all it is is to excite it you also have to remember that this man is searching for child pornography he's out there in this world searching for child pornography organizing his child for not very looking at his child pornography he knows like everybody else out in this world that this is what peer to peer software is it what it does he's not an ignorant babe in the woods and all of his history with child porn that's demonstrated on the computer is part of the nervous this morning appreciate your patience my st time here but moving into the sufficiency of the evidence judge duncan you raised some concerns about is takes id on the computer is there other software on the computer and what other stuff is there i think it's really important to keep in mind specifically when we get to the knowing that of the child pornography in this case that the only evidence found on the computer were these images in an allocated cash space and so did the government establish that mr wegg a speck had an interest in child pornography i don't think that we can reasonably dispute that fact by the case law just shows that when images and so this is coming from a moral and don't concede that they're into forensic any more than microsoft word specifically designed to write terroristic threats when they've got legitimate uses use legitimately by people but on the other hand if mr that these images existed in his own allocated space and had access to and was using anti forensic tools it does not stand to reason that two thousand eight hundred dollars images are found in this  think that fact cuts towards there not being sufficient evidence to show that mr wegg had knowledge sufficient to show that he knew that he was in possession of these images that he could not access and that there was not evidence that those end up being hatched as well in this case we don't have any searches for child pornography coinciding with or occurring immediately before the creation possibility or even more probably the not mr a goes back to the rights be convicted beyond reasonable doubt on that knowing possession and the images that were found were not something that mr way back had access to and it's our contention that it you know checking the weather and the newspaper no your honor is i salute a bit of a scary concept to me i'd like to know is that so if i've never been to a child porn site on someone's computer and that's certainly not our contention here the issue is whether there was sufficient evidence that mr wegg a speck knew that these thumbnail images that he couldn't access were being created and so our contention is ray's that did not have an interest in child pornography and not even that he didn't seek it out it's whether that he knew that there were these thumbnail images that were automatically created to which he had no access and whether or not the concluded for the week