[00:00:01] Speaker 03: Good morning, Your Honours, and may it please the court, Rohit Rajan on behalf of James Burns. [00:00:06] Speaker 03: I would like to reserve five minutes for a bottle, and I will watch the clock. [00:00:10] Speaker 03: The Constitution safeguards a defendant's right to present a complete defense. [00:00:14] Speaker 03: This protection is at its highest when a defendant seeks to develop evidence implicating a third-party suspect. [00:00:21] Speaker 03: The District Court thrice prevented Mr. Burns from exercising this right. [00:00:25] Speaker 03: First, in excluding exculpatory evidence. [00:00:28] Speaker 03: Second, in refusing a subpoena. [00:00:30] Speaker 03: And third, in denying the continuance. [00:00:32] Speaker 03: Each error requires this court to reverse and remand. [00:00:36] Speaker 03: First, the district court erroneously excluded exculpatory evidence. [00:00:39] Speaker 03: A little more than a month before trial, Snapchat disclosed hundreds of pages of IP addresses revealing that the perpetrator Snapchat account had been accessed while Burns was in pretrial custody. [00:00:51] Speaker 03: This production was accompanied by a certificate of authenticity attesting to the data's accuracy. [00:00:56] Speaker 03: but later, very shortly before trial, the government contacted Snapchat independently for this material. [00:01:03] Speaker 03: Snapchat then purportedly discovered a technical issue regarding this original data without providing much more of an explanation. [00:01:11] Speaker 02: Council, why didn't Burns decide to call in question Snapchat's custodian here? [00:01:22] Speaker 02: What was that decision about and how can we conclude abuse of discretion when there was no, there was an opportunity for that examination that didn't occur. [00:01:29] Speaker 03: So that him calling the custodian is not required under the rules of evidence. [00:01:33] Speaker 03: So I point to rules 901 and 902 themselves that say that self authenticating evidence, evidence like this one that's accompanied by certificate of authenticity requires no extrinsic evidence in order to be admitted. [00:01:45] Speaker 04: But you're arguing that there was a denial of a defense. [00:01:48] Speaker 04: by the exclusion of this evidence, but you had an opportunity to cross-examine the custodian of records over this supposed error in the first production to the second, so why is there a defence being denied if an opportunity was there but not taken? [00:02:04] Speaker 03: because that sort of calling of the custodian of records improperly allocated the burdens between the party. [00:02:10] Speaker 03: If the government wanted to question the accuracy of this evidence in the first place, it had the obligation to call the custodian of records. [00:02:18] Speaker 00: I'm having trouble with that. [00:02:20] Speaker 00: I'm looking at ER 938. [00:02:21] Speaker 00: The court says [00:02:24] Speaker 00: I'm not going to allow the introduction of [00:02:42] Speaker 00: So you're saying that the district court could not exercise any discretion in doing that, notwithstanding your decision not to examine the custodian? [00:02:55] Speaker 03: No, it could not because it misunderstood the authenticity inquiry. [00:02:58] Speaker 03: So I want to make two points on this. [00:03:00] Speaker 03: First, this court's decision in United States versus Alvarez [00:03:03] Speaker 03: says that self-authenticating evidence requires no extrinsic evidence in order to be admitted. [00:03:08] Speaker 03: But second, I do think contrary to the government's representation otherwise, this does implicate the authenticity inquiry. [00:03:14] Speaker 03: So the authentication asks if a document is what it purports to be, and here the document purported that we received originally from Snapchat purported to be a true and accurate copy of the data associated with the perpetrator Snapchat account. [00:03:28] Speaker 03: That's in the record in this case. [00:03:30] Speaker 03: From then, it determines which burden then it falls on the party. [00:03:34] Speaker 03: So the authentication inquiry itself has two parts to it. [00:03:38] Speaker 03: First, a modest role for the district court in deciding whether the prima facie case for authenticity has been made. [00:03:44] Speaker 03: And here we satisfied this because all the parties agree in this case that the certificate satisfied the requirement for self-authentication under Rule 902 sub 11. [00:03:54] Speaker 03: It attested from Snapchat that the record was regularly made, kept as part of Snapchat's business, and recorded automatically. [00:04:01] Speaker 03: That's all that's necessary to satisfy the self-authentication rules. [00:04:05] Speaker 00: So if you have a hypothetical where you have, for example, a Snapchat-like company or any business record, [00:04:12] Speaker 00: company where they give the certificate that you're talking about and then they come back and say you know we certified that this was the response in case a to subpoena one but it's a mistake it really was in case B across the country in a completely different case [00:04:36] Speaker 00: that that is not enough to require the proponent to do anything else, even in that hypothetical? [00:04:44] Speaker 03: No, and I want to provide three reasons for why that's not the case. [00:04:47] Speaker 03: So first, I think those complaints about accuracy of the evidence go to the jury's role in the authentication inquiry. [00:04:54] Speaker 03: So the jury is the one that ultimately accords weight to the evidence and ultimately determines whether the evidence is in fact authentic. [00:05:00] Speaker 00: Even in the equivalent of what used to be called a scrivener's error? [00:05:06] Speaker 03: I think so, because it's a reason for why the company needs to be careful in admitting or providing a party with a certificate of authenticity. [00:05:14] Speaker 03: So I want to point this court to two cases that we cite in our brief. [00:05:18] Speaker 03: First is United States versus Cotabran, and second is United States versus Tank. [00:05:22] Speaker 03: Importantly, in United States versus Cotabran, this court, when dealing with electronic evidence like computer printouts, says that any question as to the accuracy of the printouts, whether resulting from incorrect data entry or the operation of the computer program, [00:05:36] Speaker 03: as with inaccuracies and any other type of business records would have affected only the weight of the printout, not their admissibility. [00:05:42] Speaker 03: The second point I wanted to make was more of a practical point. [00:05:45] Speaker 03: So in cases where the explanation for the error is something that's obvious, where it's quite clear that the defendant has incorrect data, [00:05:52] Speaker 03: there's no reason for the defendant to try to introduce that evidence because it hurt the defendant's credibility with the jury when they try to offer evidence and then the prosecutor comes up with a very satisfying explanation for why that evidence is inaccurate or incorrect in the first place. [00:06:06] Speaker 03: And my third response would simply be that in this case, we don't have what is characterized as an obvious error here. [00:06:13] Speaker 03: Snapchat provided virtually no explanation for why the original production was inaccurate. [00:06:19] Speaker 03: It simply said it was errant data. [00:06:21] Speaker 04: But that's why it begs the question, why not call the custodian as a witness to get into why it was an error in the first place? [00:06:29] Speaker 03: So I think that goes back to the point I made about burden allocation. [00:06:32] Speaker 03: So I think then the burden is with the government, if they want to be the ones to establish the error, because they're putting forth the proposition that this data is erroneous. [00:06:41] Speaker 03: Because we have the self-authenticated certificate, we have satisfied all that we need to do for admissibility. [00:06:47] Speaker 03: So to the extent the government wants to make weight objections as to the accuracy of the information, the burden is on the government to introduce that evidence. [00:06:54] Speaker 03: And I think this court made that clear in both of the cases that I cited earlier, where the parties can make those sorts of arguments. [00:07:00] Speaker 03: But here, I think we also had good reason for thinking that information was accurate, corroborated statements that Mr. Burns made years prior to the production that a suspect in Norway was one who was responsible for these exploitation offenses, not Mr. Burns himself. [00:07:15] Speaker 03: So I think in these circumstances, the District Court erroneously excluded the evidence rather than letting the parties decide, rather than letting the parties argue whether the evidence was accurate. [00:07:26] Speaker 04: So you were going to talk about the subpoena itself as another reason for the denial of defense? [00:07:31] Speaker 03: So the other reasons were, yes, the refusal of the subpoena and the refusal of the continuance. [00:07:36] Speaker 03: So mere four weeks before trial, the government provided a new statement from one of the witnesses that had been revictimized while Mr. Burns was in pretrial custody. [00:07:46] Speaker 03: And Burns quickly moved to gather information related to this revictimization. [00:07:51] Speaker 03: So he first moved for a subpoena [00:07:53] Speaker 03: to gather the victims' devices to investigate for evidence of this third party and also to continue the trial date to explore other avenues for investigation. [00:08:03] Speaker 03: And the District Court, I think, first erred in refusing the subpoena because the requirements for a subpoena are quite modest. [00:08:09] Speaker 03: You only need relevancy, admissibility, and specificity. [00:08:12] Speaker 04: So what was the relevance? [00:08:14] Speaker 04: So this person was re-victimized in 2023. [00:08:17] Speaker 04: What connection could that have with the Norway theory? [00:08:21] Speaker 03: So it was connected to the Norway theory because the new perpetrator used a significantly similar MO in exploiting the victim that the original offense of perpetration occurred. [00:08:32] Speaker 03: So first, the perpetrator sent the victim a snippet from one of the original videos that the victim produced. [00:08:39] Speaker 03: Second, this new perpetrator had them reproduce significantly similar videos to what they produced originally. [00:08:47] Speaker 04: But what does that have to do with someone in Norway, I guess? [00:08:50] Speaker 04: So we're reviewing this for an abuse of discretion and the district court found this to be a fishing expedition of a kind and not limited and specific enough. [00:09:01] Speaker 03: So why is that an abuse? [00:09:02] Speaker 03: So first I would push back on the notion that it just has to be limited to Norway this court. [00:09:06] Speaker 03: in its third-party defense cases says that any evidence that tends to have an inclination of implicating somebody else would be irrelevant. [00:09:14] Speaker 03: And I think even if you're honed in on the Norway theory, the declaration or the affidavit that was provided by the expert in connection with one of the subpoena motions says that you can recover even deleted data from the miners' devices and then be able to corroborate that with other information that we already had in discovery to potentially figure out who this Norway individual actually is. [00:09:36] Speaker 03: So I think there we satisfy the relevancy inquiry because it's simply the overlap between the MO and what the expert proffered is enough. [00:09:43] Speaker 03: And I also want to make clear by pointing this court to United States versus McKee, which is one of the cases that the government cites in its brief, and it deals with the circumstance where the party does not have access to the information or does not have access to what evidence you would necessarily [00:09:59] Speaker 03: kind of be able to put forth. [00:10:01] Speaker 03: And this court said in those circumstances, the reliability or the relevancy threshold and the specificity thresholds are lessened because you don't know what will be revealed at that point. [00:10:13] Speaker 03: And I think that's the error that we have with respect to the subpoena in this case. [00:10:18] Speaker 03: Now we want to briefly talk about the error with the continuance issue with respect to the district court's analysis of the four Flint factors. [00:10:27] Speaker 03: So the parties agree that the first factor is at least neutral, if not tips in favor of Mr. Burns. [00:10:33] Speaker 03: But I think then for the remaining three factors, the district court error. [00:10:37] Speaker 03: So first with respect to whether the continuance met defense needs, I think here we provided reasons for why it would have allowed us to [00:10:45] Speaker 03: narrow both the ambit of the subpoena request, provide a more detailed affidavit to the district court to satisfy the district court's concerns, or explore other avenues for investigation, because we know from the minor's affidavit that the perpetrator gave her a mega NZ account, so we could have tried to subpoena for that sort of account information in this case. [00:11:06] Speaker 03: I also think in terms of inconvenience, the case had already been pending for a few years, and the parties [00:11:10] Speaker 03: had already agreed upon continuances between both sides. [00:11:14] Speaker 03: So that's a reason why the burden it would have had on the victims or on the government or on the court was minimal. [00:11:21] Speaker 04: And then I think- But I mean, I think as I understand it, there were some of the minor witnesses were scheduled to testify at a certain time. [00:11:27] Speaker 04: And so it really, I mean, I think the government's point is it was prejudicial to the witnesses as well for having to extend this out even further. [00:11:37] Speaker 03: I think that's correct, Your Honor, and that certainly is cognizable under the third factor, but it's not enough to outweigh the relevancy to the defense, especially since the outset's been a third-party defense that's been alleged in this case. [00:11:50] Speaker 03: So even if there was that minor inconvenience, the trial would have only been pushed back a couple of months. [00:11:56] Speaker 03: It could have reaccommodated people's schedules, and it would have allowed for a more thorough investigation related to this possible third-party suspect. [00:12:03] Speaker 03: unless your owners have any other questions, I'd like to reserve the remainder of my time. [00:12:08] Speaker 00: All right, thank you, counsel. [00:12:09] Speaker 00: We'll hear from the governor. [00:12:18] Speaker 01: May it please the court, Ethan Sachs on behalf of the United States. [00:12:22] Speaker 01: Mr. Burns was one of the most prolific producers and distributors of child pornography on the dark web. [00:12:30] Speaker 01: For years, he tormented dozens of young girls by threatening and coercing them into recording sexually explicit and degrading acts. [00:12:41] Speaker 01: He then took that material, edited it, advertised it online, and shared it across the internet. [00:12:48] Speaker 01: The jury at Mr. Burns' trial heard and saw overwhelming evidence of all of this and convicted Burns on every count, and this court should affirm. [00:12:56] Speaker 01: I'd like to turn to a couple of the issues that my friend has discussed this morning. [00:13:02] Speaker 01: So I think it's important to recognize at the beginning that, as Your Honor mentioned, all of these questions about Snapchat, the three different categories arising out of questions regarding the records, are all reviewed by this court for an abuse of discretion. [00:13:15] Speaker 01: Second, I think it's also important to perhaps reframe the way we've been talking about it this morning. [00:13:22] Speaker 01: And the way I think it's helpful to look at it is to maybe take it out of the computer context and look like if this was a DNA evidence, if we had DNA evidence returned and then the custodian of that evidence later came to the court and said, we're sorry, we tested the wrong sample. [00:13:39] Speaker 01: What we sent you originally was erroneous. [00:13:41] Speaker 01: Please disregard it. [00:13:43] Speaker 01: I think the question is, if the court was then required to introduce that evidence to the jury, we think it would certainly establish some type of confusion among the juror. [00:13:51] Speaker 01: And I think that's important to focus on because I didn't hear my friend this morning talk at all about the issue of confusion or misleading the jury. [00:13:59] Speaker 01: And we think that's a central component of what the district court relied upon. [00:14:03] Speaker 00: And we think that makes sense. [00:14:11] Speaker 00: And so I think I would disagree with you that your friend didn't address it whether that's a compelling or a Sufficient reason is different, but I think he did address it sure and I don't mean to say in this I meant specifically in this context of rule 403 and I think the question of weight [00:14:30] Speaker 01: I think it's a bit of a red herring here. [00:14:37] Speaker 01: I don't think anyone disputes that the evidence is self-authenticating. [00:14:42] Speaker 01: It had a certificate that we think establishes as much. [00:14:45] Speaker 01: The cases that the other side sites for well, then such evidence needs to go to the jury to handle issues of weight [00:14:54] Speaker 01: something like a business record is trying to be introduced to the court. [00:14:59] Speaker 01: And the party opposing its introduction says, well, oh, it's not reliable. [00:15:03] Speaker 01: It's the party in that instance that's taking an issue with it and not the custodian. [00:15:07] Speaker 01: And we think that's a very different scenario from what we have here. [00:15:11] Speaker 00: And your view also is that it can't strip the court of discretion to deal with it if it is something that we said it was A and we've discovered it was B. [00:15:22] Speaker 01: yes absolutely your honor and that's why I began by mentioning the standard of review and then I think to even add on to that as some of your honors questions have touched on today it's not as if the district court just said I don't want to hear this let's move on it said I understand your point I'm giving you the opportunity to question the custodian and to see to explore this theory if you have it and [00:15:42] Speaker 01: I think that's telling and part of the reason perhaps, I mean, this is just speculation, but maybe it makes good sense for Burns not to want to do that because he doesn't want to know what's going to come out from the custodians certifying it. [00:15:55] Speaker 01: Yeah, it is what we said. [00:15:56] Speaker 01: It was a mistake and it's totally irrelevant and in that sense would help destroy his defense. [00:16:02] Speaker 01: I'm sorry. [00:16:02] Speaker 01: I'm sorry. [00:16:03] Speaker 01: Switching gears now to the unless your honor's of questions about that switching gears to the rule. [00:16:07] Speaker 01: 17 subpoena question. [00:16:09] Speaker 01: We agree. [00:16:10] Speaker 01: I think it's in that specificity is really what the district court focused on here. [00:16:15] Speaker 01: And we agree with your honor's observation earlier that yes, the district court did find this to be a fishing expedition. [00:16:21] Speaker 01: They hope for a trace. [00:16:22] Speaker 01: I do think it's [00:16:26] Speaker 01: For this to further the theory of the defendants in this case, it's only true if you assume the first records from Snapchat were accurate, right? [00:16:37] Speaker 01: It's, oh, that's what shows this supposed connection to Norway from an IP address. [00:16:41] Speaker 01: But of course, as we've been discussing, Snapchat said that evidence is totally wrong. [00:16:46] Speaker 01: So we don't view this as, oh, this is clear exculpatory evidence. [00:16:50] Speaker 01: This is evidence that the custodian itself said was wrong. [00:16:54] Speaker 01: Of course, the other components of the specificity analysis that we, I don't believe, discussed this morning is that MV8, the victim that this pertained to, said that she was messaged by the [00:17:08] Speaker 01: on the second occasion in January of 2023 on Instagram only and [00:17:15] Speaker 01: asked for messages from all social media applications. [00:17:21] Speaker 01: So that's, I think, one aspect for why it's too broad. [00:17:24] Speaker 01: The second aspect is that it sought all communications dating back a year before MV8 says she was contacted the second time. [00:17:32] Speaker 01: And there's no basis to think that her phone's communications from a year before would have anything to do with the second scenario. [00:17:42] Speaker 01: And then the third point is, [00:17:44] Speaker 01: Mr. Burns had already been given a chance to specify his subpoena request. [00:17:49] Speaker 01: He submitted one, the district court did not, because it was like blanket, the district court denied it. [00:17:55] Speaker 01: He came back with a second one and that's the one that's here that was in specific. [00:17:59] Speaker 01: So it's not as if he had no chance to try to specify this more. [00:18:03] Speaker 04: Did he have to try to make some more of a connection between the Norway theory and the request for these devices or to take your friend's argument on the other side? [00:18:16] Speaker 04: Is it okay to just more broadly say, okay, well, one of the victims was re-victimized with a similar method that had been done by Mr. Burns. [00:18:25] Speaker 04: And so defense is entitled to seek information that might suggest a different person involved in these crimes than Mr. Burns. [00:18:32] Speaker 01: I think the answer, I think, is yes. [00:18:35] Speaker 01: But I think it's important. [00:18:36] Speaker 01: I would like to focus on that. [00:18:38] Speaker 01: I don't think the record is best read as the victim here saying, oh, it was the same MO. [00:18:44] Speaker 01: In fact, what the victim said, and this is in our brief, is I don't believe this is the same person who was contacting me before. [00:18:52] Speaker 01: And Jen is the name that the person used. [00:18:55] Speaker 01: I don't believe this is Jen. [00:18:56] Speaker 01: So in a hypothetical case in which there is really some stronger connection to think that this could lead to the theory perhaps. [00:19:04] Speaker 01: But I think in this case, we're very far away from that. [00:19:06] Speaker 01: And so I do think they needed to have a stronger connection if they wanted [00:19:09] Speaker 01: to avoid a fishing expedition, which this Court has repeatedly said 17C cannot be used for that purpose. [00:19:17] Speaker 00: So, Council, if I could turn to an issue that's in the briefs but that your friend didn't raise and vis-à-vis your expert. [00:19:26] Speaker 00: So it does seem to me that an expert who is not aware of the error rate for important forensic tools, that that's a pretty significant deficiency. [00:19:43] Speaker 00: And why would that be something that is [00:19:48] Speaker 00: If the answer to that is I'm not familiar, even if somebody can examine that issue on cross-examination, why isn't that more of a problem than the district court found it to be here? [00:20:02] Speaker 01: So respectfully, Your Honor, I don't think it's quite right. [00:20:06] Speaker 01: I agree with you as a factual matter that that testimony was he did not know the specific error rates of these tools. [00:20:12] Speaker 00: The question was at ER 2547, and are you aware of the error rates for the tools that you used in this case? [00:20:19] Speaker 00: Answer, I am not. [00:20:21] Speaker 01: Absolutely, and I don't mean to fight you on that. [00:20:23] Speaker 01: All I'm trying to say is I don't think that means he doesn't know anything about how these tools work or could produce errors. [00:20:29] Speaker 01: I think the record shows that he's aware that these tools could produce errors. [00:20:32] Speaker 01: He just doesn't know the specific rate at which they may arise. [00:20:38] Speaker 01: You know, I think there's lots of tools and materials that we all use that we could be experts in and don't necessarily know the specific error rate at which they arise. [00:20:47] Speaker 01: But take that as it is. [00:20:48] Speaker 01: I do think the district court was pretty careful about this, and specifically on ER 2549. [00:20:55] Speaker 01: in response to this argument from Burns, says something to the effect of, well, yes, but the expert here also testified as to the verification and corroboration he does between these tools. [00:21:08] Speaker 01: So we think that is the district court taking... So if the district court had totally blown past this issue, we think that could have been perhaps an issue, but we don't see that as having happened here. [00:21:18] Speaker 01: And I think that is aligned with what the rest of the record shows about Detective Harris. [00:21:24] Speaker 01: He has extensive training and knowledge in these tools and specific certifications in these particular tools that he used. [00:21:32] Speaker 01: And then, as I mentioned, he, or as the district court referred to, he testified both about how he verifies results generally and how he had done so in this case specifically through cross, [00:21:45] Speaker 01: that they were consistent results. [00:21:48] Speaker 01: And he even went on to say, and when that is a problem in other cases, when those are inconsistent results, I do, as he said, a deeper dive into the hexadecimal data. [00:21:58] Speaker 01: So I think it suggests that this is someone who takes those errors, potential errors, seriously and corroborates the results and may just not know the specific fact of what the rate is. [00:22:10] Speaker 00: And as I understand the process, although I'm perhaps not as familiar with the extensive record as I could be, the district court's ruling didn't bar later objections to specific questions. [00:22:21] Speaker 00: Is that right? [00:22:22] Speaker 01: I think that's correct. [00:22:23] Speaker 01: I'm not aware of any that she barred. [00:22:26] Speaker 01: I haven't... Yes, I'm not aware of any. [00:22:29] Speaker 00: It's a big record. [00:22:30] Speaker 01: Correct. [00:22:30] Speaker 01: That's right. [00:22:32] Speaker 01: I just want to, along the error point, I just want to point out that the case he really relies on to make his point is Valencia Lopez. [00:22:40] Speaker 01: And I think for the reasons that I've been discussing in the morning, this morning, that's a very different case. [00:22:45] Speaker 01: Importantly, in here, there was Vaudier, right? [00:22:48] Speaker 01: So this is where this came out, isn't through Vaudier. [00:22:50] Speaker 01: And so in Valencia Lopez, there wasn't, we think there was a reliability finding from the district court here, as I mentioned, Your Honor, at 2549. [00:22:59] Speaker 01: And importantly, it's not as if there's specific testimony here that Burns was trying to strike, because that's not reliable. [00:23:07] Speaker 00: And Valencia Lopez was the case about a... Well, that's, I think, what my prior question went to, that there could still be things that were left open. [00:23:16] Speaker 00: I'm going to qualify. [00:23:17] Speaker 00: I'm going to qualify. [00:23:18] Speaker 00: I'm going to qualify after the general ruling following for dire. [00:23:20] Speaker 00: I'm going to qualify. [00:23:21] Speaker 01: Absolutely. [00:23:21] Speaker 01: Yes. [00:23:22] Speaker 01: And then the last point is just Valencia Lopez. [00:23:25] Speaker 01: The rest of that record had no reliability to support the specific statement in question from the expert. [00:23:31] Speaker 01: And here as I've discussed, I think the record is replete with reasons Harris is testimony and qualifications were [00:23:47] Speaker 01: Thank you. [00:23:48] Speaker 00: Thanks. [00:23:49] Speaker 00: You have some. [00:23:49] Speaker 00: I'm sorry. [00:23:50] Speaker 00: Did you have a question? [00:23:51] Speaker 00: Yeah. [00:23:52] Speaker 00: Thank you, counsel. [00:23:52] Speaker 00: And you have some time left for a bottle. [00:23:58] Speaker 03: So I want to start with a few points rebuttal and then I'll get to the expert. [00:24:01] Speaker 00: Are we in the right place in the clock? [00:24:05] Speaker 00: Hold on one second. [00:24:14] Speaker 00: you know. [00:24:17] Speaker 00: When do you know how much time there was left for a bottle. [00:24:21] Speaker 00: All right, we'll give you 3 minutes. [00:24:24] Speaker 03: So I first want to start with a standard of review. [00:24:26] Speaker 03: Because this case implicates Mr. Burns' constitutional right to present a complete defense, this court reviews it de novo. [00:24:33] Speaker 03: And I pointed to United States versus Stever, which is our best case on this point, which deals with the exclusion of evidence. [00:24:39] Speaker 03: And there, this court emphasized that it's important that this court cannot decide whether that third party defense is so fantastical that it's still the district court has afforded some discretion. [00:24:49] Speaker 03: Rather, those are determinations that the jury has to make in the first instance. [00:24:54] Speaker 03: The second point I want to make are about rules 401 and 403 more specifically. [00:24:58] Speaker 03: The government has not identified a single case where the court can make weight decisions about whether evidence is in fact believable or not. [00:25:06] Speaker 03: In fact, we've identified the opposite with the cases we've cited in our reply brief where we say in the eyewitness context, the district court cannot simply say, I believe one eyewitness is much more credible than the other eyewitness. [00:25:18] Speaker 03: Therefore, I'm going to exclude them on 401 or 403 grounds. [00:25:21] Speaker 03: We believe that same principle should apply in this context because Mr. Burns satisfied the inquiry for self-authentication under Rule 902 and therefore under the cases we've cited, he was entitled to get that evidence to the jury in the first place. [00:25:36] Speaker 03: on to the subpoena issue. [00:25:37] Speaker 03: I don't believe this is a phishing explanation. [00:25:39] Speaker 03: And I want to quote specific language that this court used in United States versus McKee, which was a bid rigging case. [00:25:46] Speaker 03: There it said that where a party has not yet seen the relevant evidence, it would be unreasonable to expect a more detailed connection. [00:25:53] Speaker 03: And here we have not even had the opportunity to examine the devices. [00:25:57] Speaker 03: So we believe the expert affidavit that was supplied with the subpoena was enough and requiring anything else. [00:26:03] Speaker 03: would have been an unreasonable expectation under this court's case law. [00:26:07] Speaker 03: Finally, I want to turn to the expert issue that you identified, Judge Bennett. [00:26:11] Speaker 03: In terms of the error rate discussion, I think you're right that error rates are very important, and that combines with another error that the district court made in this case, which it advocated as a gatekeeping responsibility. [00:26:22] Speaker 03: There was no weighing of some Daubert factors against other Daubert factors. [00:26:26] Speaker 03: Rather, the district court used the very language that you wrote in Valencia Lopez is insufficient for the gatekeeping function that all of these objections go to weight rather than the district court's role. [00:26:36] Speaker 03: It's important in the Rule 702 context that the district court play a gatekeeping role and here the district court completely abdicated that opportunity. [00:26:44] Speaker 03: I also want to emphasize that there was also no corroboration for the key point of expert testimony about malware. [00:26:50] Speaker 03: The agent testified that they only used one program to test whether there was malware on Mr. Burns' computer. [00:26:58] Speaker 03: That was it. [00:26:58] Speaker 03: So that result was uncorroborated with no error rate in the first place, which means that it was critical that the expert had to be qualified here because this went to the substance of Mr. Burns' third-party defense. [00:27:10] Speaker 03: So for this reason, we believe that the district court erroneously qualified Detective Harris as an expert witness, and the government has made no argument about harmlessness here, so that error by itself would also require reversal. [00:27:22] Speaker 03: Unless this court has any other questions, we ask this court to reverse and remand. [00:27:28] Speaker 00: We thank counsel for their arguments. [00:27:30] Speaker 00: The case just argued is submitted, and with that, we are adjourned for the day and the week. [00:27:33] Speaker 00: Thank you, counsel.