[00:00:01] Speaker 01:
Good job.

[00:00:08] Speaker 03:
All right, and we'll proceed to hear argument in the next case on calendar for argument, which is 24-2545, United States of America versus Joshua Ian Selnick.

[00:00:25] Speaker 03:
And we will hear,

[00:00:28] Speaker 03:
First from Mr. Torgoli.

[00:00:30] Speaker 03:
Did I pronounce that correctly?

[00:00:32] Speaker 03:
You did, Your Honor.

[00:00:32] Speaker 03:
Thank you.

[00:00:33] Speaker 03:
All right, great.

[00:00:33] Speaker 03:
You may proceed.

[00:00:34] Speaker 04:
May it please the court?

[00:00:36] Speaker 04:
And I would like to cede two minutes for reserve.

[00:00:40] Speaker 04:
My name is Shaw Torgoli.

[00:00:41] Speaker 04:
I represent Joshua Ian Selnick.

[00:00:44] Speaker 04:
He was the defendant at trial and is the appellant before the court, who convicted after a jury trial, which included fundamentally three issues that I'm going to focus on today.

[00:00:58] Speaker 04:
I'm going to take them out of order because the first issue raised, the Crawford hearsay issue, has a tendency to meander and include some other things.

[00:01:07] Speaker 04:
But I think it'll make sense to the court why we do it this way.

[00:01:12] Speaker 04:
Judges, after Mr. Selnick testified during the defendant's case, the government recalled a hybrid witness.

[00:01:24] Speaker 04:
And the hybrid witness, Special Agent Collins, Special

[00:01:28] Speaker 04:
Agent Forensic Examiner Cullen, he to that point in trial had already been introduced as an expert to the jury and testified as such.

[00:01:40] Speaker 04:
In his rebuttal, he presented to the jury three distinct areas of testimony which were undeniably expert in their nature.

[00:01:53] Speaker 04:
And in fact, two were characterized by the government as experiments.

[00:01:57] Speaker 02:
As I understand the record, there was no objection at trial to his testimony on Daubert grounds or expertise grounds, am I correct?

[00:02:07] Speaker 02:
When he took the stand in rebuttal, you're now making an argument that the evidence should have been subjected to a Daubert standard or something like that.

[00:02:21] Speaker 02:
That was never raised below.

[00:02:23] Speaker 04:
Well, at the end of his rebuttal testimony, that is when defense counsel objected.

[00:02:29] Speaker 04:
So it's our argument that it was preserved then.

[00:02:31] Speaker 03:
Objected on Daubert grounds?

[00:02:33] Speaker 04:
Well, the way he... And I'm glad the court asked that question.

[00:02:35] Speaker 04:
It's something that's come up in our briefing.

[00:02:37] Speaker 01:
Because the answer is no.

[00:02:40] Speaker 04:
The answer is kind of.

[00:02:41] Speaker 04:
Defense counsel, in his objection... Is that enough for Daubert?

[00:02:46] Speaker 01:
Kind of?

[00:02:47] Speaker 04:
Well, if I may get to that point, Your Honor, the point that defense counsel makes

[00:02:52] Speaker 04:
is that he was fully unprepared for these areas of testimony and required some sort of disclosure under Rule 16.

[00:03:00] Speaker 04:
Daubert, of course, refers to tendering experts as experts, and it connects very closely to Rule 16.

[00:03:06] Speaker 02:
But that's a different argument than you're making on appeal.

[00:03:09] Speaker 02:
What you're saying is he shouldn't have been allowed to testify as an expert, if he was, in rebuttal.

[00:03:16] Speaker 02:
And you never raise that argument to the trial judge.

[00:03:19] Speaker 02:
And so you're asking us to

[00:03:20] Speaker 02:
reverse the trial judge on an argument you never made to him.

[00:03:25] Speaker 02:
We can do that, but it has to be plain error, doesn't it?

[00:03:29] Speaker 04:
If the court settles that defense counsel did not preserve this, then yes, the court is right.

[00:03:35] Speaker 04:
But we would argue differently, Judge.

[00:03:36] Speaker 04:
At the end of the day, what the defense counsel did argue is that he needed some kind of

[00:03:43] Speaker 04:
curative relief by the court.

[00:03:45] Speaker 04:
And what he did is ask for disclosure of discovery under Rule 16 and what the court... Rule 16 doesn't require disclosure of rebuttal experts in advance.

[00:03:56] Speaker 04:
That's true, Judge, it does not.

[00:03:58] Speaker 04:
It doesn't require that.

[00:03:59] Speaker 03:
And so I'm not sure that his choice to call it... The objection that you seem to make does not seem to be well taken and doesn't seem to suggest that there should be some kind of a

[00:04:12] Speaker 03:
you know, a Daubert hearing.

[00:04:14] Speaker 04:
Could the judge repeat the question?

[00:04:16] Speaker 03:
I said it doesn't sound like the objection that was raised was well taken, nor that it would seem to suggest to the court that it should be conducting a Daubert hearing at that point.

[00:04:31] Speaker 04:
Well, so here's the problem, Your Honor.

[00:04:33] Speaker 04:
The trial court did already review the qualifying expertise of the witness prior to trial.

[00:04:42] Speaker 04:
The issue is the expertise was as a forensic examiner with a couple weeks of training, but far more on the job training at the FBI.

[00:04:51] Speaker 04:
His expertise related to the forensic examination of computers, of hardware, of things of that nature.

[00:04:58] Speaker 04:
The three distinct areas of his rebuttal testimony pertain far more directly to BitTorrent and to the technology that allows peer-to-peer

[00:05:08] Speaker 02:
Did they?

[00:05:09] Speaker 02:
And as I read his testimony, it was essentially, your client took the stand and said, if this stuff is on my computer, if there are links to this stuff on my computer, because it's not on your computer with BitTorrent, they must have arrived through some inadvertence, either because X, Y, or Z. And as I understand the rebuttal testimony, it was the agent saying, well, I tried X, Y, or Z.

[00:05:36] Speaker 02:
and what he says didn't occur.

[00:05:39] Speaker 02:
And so it's rebutting the factual testimony or the testimony of your client.

[00:05:45] Speaker 02:
It's not expert testimony about Bittorrent.

[00:05:48] Speaker 02:
It's not expert testimony about other things.

[00:05:51] Speaker 02:
I tried to replicate what he said, put this stuff on his computer, if you will, and when I did it, that's not what occurred.

[00:05:59] Speaker 02:
Isn't that what his testimony was?

[00:06:01] Speaker 04:
I'm not sure I entirely agree with the characterization, Judge, because some of what he did could not be replicated by any person of average experience or education.

[00:06:12] Speaker 04:
These are technical things that the rebuttal witness did.

[00:06:16] Speaker 04:
And I need to point out to the court, he actually ran these experiments.

[00:06:20] Speaker 04:
They're literally called experiments by the government.

[00:06:23] Speaker 04:
These were run before the defendant testified, beforehand.

[00:06:28] Speaker 02:
So they were prepared for his testimony.

[00:06:30] Speaker 02:
I'm not sure the fact they were run beforehand makes any difference.

[00:06:34] Speaker 04:
Well, I submit to you, Judge, that when an FBI forensic examiner is running experiments prior to a defense case, that is essentially an extension of the investigation, which should be subject to, if not Daubert, some sort of gatekeeping function by the district court.

[00:06:50] Speaker 04:
And at each of these tests, Judge, and I think it's an important distinction that these relate to Bittorrent and not simply

[00:06:58] Speaker 04:
relating to the area of testimony that was proffered during pretrial hearings.

[00:07:03] Speaker 04:
His first test, he claims he pulled torrent files into app data, which did not cause the torrent client, sorry, it did not cause it to be added to the torrent client.

[00:07:15] Speaker 04:
This was designed to explain the way data transfer between devices

[00:07:19] Speaker 04:
which is something that came up in the defendant's testimony.

[00:07:22] Speaker 02:
And your client's testimony was it must have gotten inadvertently transferred between devices.

[00:07:27] Speaker 04:
That's right.

[00:07:28] Speaker 02:
And so he said, I tried to transfer between devices and this didn't occur.

[00:07:35] Speaker 04:
he says he did it before the defendant testified judge that's correct but this is not at this is not testimony presented during his the government's case in chief that was in rebuttal corrections that the second test was he was on that this is the agent again could not use the graphical user interface to select hidden folders instead he had to physically type in a file path to make that happen again this is a bit torrents area of testimony as this is not about that

[00:08:03] Speaker 04:
hardware or even the software in a standard computer or something that would be within the framework of a forensic examiner's expertise.

[00:08:13] Speaker 04:
Lastly.

[00:08:13] Speaker 01:
Was there any doubt that the defense in part would consist of, I don't know how this stuff got on my computer.

[00:08:26] Speaker 04:
I submit to you judge that that is a very predictable defense.

[00:08:30] Speaker 04:
And in fact, so predictable to the government,

[00:08:33] Speaker 04:
in the Post Miranda interview, occurred almost five years earlier, the defendant laid out in a 110 page interview exactly that defense.

[00:08:43] Speaker 04:
And it was the same defense at trial five years later.

[00:08:46] Speaker 04:
So this notion, and the AUSA argued it briefly, that we have no idea what the defendant's gonna say is hogwash.

[00:08:53] Speaker 04:
It was incredibly, it was so predictable, they predicted it.

[00:08:57] Speaker 04:
And they ran experiments.

[00:08:59] Speaker 02:
So I'm not sure why that matters.

[00:09:01] Speaker 02:
Uh, they don't know that he's going to take the stand.

[00:09:04] Speaker 02:
He may decide a trial not to, if he doesn't take the stand, maybe they don't want to put on this rebuttal evidence because otherwise the case seems unrebutted.

[00:09:13] Speaker 02:
So they, they're prepared for, they're prepared for his testimony.

[00:09:18] Speaker 02:
I'm not sure there's a rule that says they have to run the experiments right after he testified.

[00:09:22] Speaker 04:
So, and judge, here's the issue.

[00:09:25] Speaker 04:
Um, if you're the defense attorney in this trial,

[00:09:29] Speaker 04:
You've had access to discovery, at least as the federal rules contemplate them.

[00:09:33] Speaker 04:
And these are expert experiments in the government's description conducted that he, the defense counsel, has no access to, cannot review.

[00:09:43] Speaker 04:
It is not replicated before the jury.

[00:09:46] Speaker 04:
And ultimately, he is unable to do anything besides ask a few questions about why it wasn't preserved.

[00:09:52] Speaker 04:
He was not able to take those and share them with his own expert to have them evaluated

[00:09:57] Speaker 04:
And I think this is why he settled on Rule 16 in his oral objection.

[00:10:01] Speaker 04:
I think that's why he got there.

[00:10:03] Speaker 01:
Are you arguing that the government's preparation anticipating what the defendant will offer as a defense is somehow Brady?

[00:10:18] Speaker 04:
I think it could be, Judge.

[00:10:20] Speaker 04:
And I'm not sure here if it is.

[00:10:22] Speaker 04:
We're not raising that argument.

[00:10:25] Speaker 04:
when contemplating the weight of the evidence, the defense should have access to expert experiments that are conducted by the government using government resources for the purposes of establishing a defendant's guilt beyond a reasonable doubt.

[00:10:42] Speaker 04:
If it includes Brady, I would love to be able to make that argument today.

[00:10:45] Speaker 04:
I'm not in a position to do that.

[00:10:49] Speaker 01:
Brady never includes inculpatory evidence.

[00:10:52] Speaker 04:
No, that's correct, Judge.

[00:10:54] Speaker 02:
And I've got limited time, and I'm interested in hearing your Crawford argument.

[00:10:59] Speaker 02:
And let me just set it up for you.

[00:11:02] Speaker 02:
These all seem to be machine-generated reports.

[00:11:06] Speaker 02:
And all they really do is, as I look at them and some of them are hard to understand, say, yes, this file that was on his computer is linked, if you will, to BitTorrent.

[00:11:18] Speaker 02:
When I run it, it turns up child pornography.

[00:11:22] Speaker 02:
So tell me why that's your say.

[00:11:24] Speaker 04:
So the software torrential downfall, as the court is probably aware, is created in collaboration with law enforcement.

[00:11:33] Speaker 04:
It's controlled only by law enforcement.

[00:11:35] Speaker 04:
It's available only to law enforcement.

[00:11:37] Speaker 04:
As I understand it, it's only been validated by the FBI.

[00:11:41] Speaker 04:
So everything about the machine, if you will, is a government machine.

[00:11:47] Speaker 02:
But the witness didn't testify about

[00:11:52] Speaker 02:
you know, about the machine, if you will.

[00:11:54] Speaker 02:
He just said, I use the machine and this is the reports that it produced.

[00:11:58] Speaker 02:
And you could cross examine the witness.

[00:12:00] Speaker 02:
You could ask them anything you wanted about the software.

[00:12:04] Speaker 02:
So I'm trying to find, figure out why the ultimate reports generated, which is all it was put in evidence, are themselves testimonial hearsay.

[00:12:13] Speaker 04:
So the judges, these logs are the chief evidence on the three distribution, the more serious counts of conviction here that the logs are what show it.

[00:12:22] Speaker 04:
in the government's estimate.

[00:12:24] Speaker 04:
And this software pursues hashtag items that have already been in a different database that only the government controls, determined to be exploitative material.

[00:12:39] Speaker 04:
Apologies.

[00:12:41] Speaker 04:
And so in this particular case, Judge, we're kind of at a frontier where what is machine-generated

[00:12:49] Speaker 04:
I encourage the court to take a broader view, because if government created and controlled software can peer into people's computers and say, we found X on there, it's X because our database says so.

[00:13:03] Speaker 04:
And from there, we believe you distributed it because we entered your computer to download either bits or in this case, its entirety.

[00:13:13] Speaker 04:
And here's the massive log that

[00:13:16] Speaker 04:
You can look at and cross-examine the witness, if you will, but in this case, the witness who initiated this is unavailable, which is part of the problem.

[00:13:25] Speaker 04:
At the end of the day, Judge, what this machine created here is really, it deserves a more nuanced view.

[00:13:31] Speaker 03:
This isn't so much a Crawford argument, it's just a foundation argument.

[00:13:38] Speaker 03:
What you just articulated didn't seem to have any element of Crawford in it, it's all foundation.

[00:13:42] Speaker 04:
Our argument, Judge, is that there are aspects of the creation process, how this log comes to be created and determined, that is testimony, that cannot be effectively cross-examined just by plunking a log down in a courtroom and saying, have at it.

[00:14:01] Speaker 03:
So, on that argument, it has nothing to do with whether it was Daniels or Collins.

[00:14:07] Speaker 04:
We disagree, Judge.

[00:14:08] Speaker 04:
It was Daniels who initiated the creation of these logs, whose inputs and whose selective discretion is what led to the creation of the logs.

[00:14:18] Speaker 04:
Daniels was unavailable.

[00:14:19] Speaker 03:
But, I mean, given that Agent Daniels untimely passed, why is there an abuse of discretion for the district court to permit someone to come in and say,

[00:14:33] Speaker 03:
I re-ran everything and, you know, here are the results in the report and it all matches up.

[00:14:40] Speaker 04:
Well, the trouble, Judge, is that no one really re-ran it in the traditional sense.

[00:14:44] Speaker 04:
The offenses that took place here were investigated at the behest of Agent Daniels, who conducted the underlying log creation on dates that linked up with the indictment in 2018.

[00:14:58] Speaker 04:
Daniels had testified.

[00:15:00] Speaker 02:
and testified exactly the same way the agent who testified at trial testified.

[00:15:05] Speaker 02:
Would you have a hearsay objection?

[00:15:09] Speaker 04:
Unlikely, Judge.

[00:15:10] Speaker 02:
That's why I'm having difficulty figuring out why.

[00:15:14] Speaker 02:
Because the testimony at trial from the agent didn't describe what went into the creation of the software.

[00:15:21] Speaker 02:
So if Daniels wouldn't have been required to say that, why is the substituting agent required to say it?

[00:15:27] Speaker 04:
By analogy, Judge, if the agent who

[00:15:30] Speaker 04:
initiated the creation of the logs using government's own software were available, the defense would be more effectively able to confront him and the decisions he made that went into the creation of the ultimate log.

[00:15:43] Speaker 04:
I apologize, Judge.

[00:15:44] Speaker 04:
I'm nearly out of my entire time here.

[00:15:47] Speaker 03:
That's all right.

[00:15:48] Speaker 03:
I'll give you the two minutes because we asked you a number of questions.

[00:15:51] Speaker 03:
So all right.

[00:15:53] Speaker 03:
So we'll hear now from Ms.

[00:15:57] Speaker 03:
DeLorde.

[00:15:58] Speaker 03:
Did I pronounce that correctly?

[00:16:00] Speaker 03:
Okay.

[00:16:03] Speaker 00:
Good morning, your honors.

[00:16:04] Speaker 00:
May it please the court?

[00:16:05] Speaker 00:
I am Carla Hoda-Stellore, representing the United States.

[00:16:09] Speaker 00:
I will begin where we just left off with the confrontation clause issue.

[00:16:14] Speaker 00:
There was no confrontation clause violation here.

[00:16:16] Speaker 00:
As the district court correctly found, the torrent logs, which the defendant takes issue with, were machine generated.

[00:16:25] Speaker 03:
Just that I understand exactly what the record is.

[00:16:29] Speaker 03:
logs, the actual exhibits that were admitted, were they the ones that were the historical ones that corresponded to Agent Daniels as opposed to regenerated new logs?

[00:16:43] Speaker 03:
I assume they're the former.

[00:16:45] Speaker 00:
Correct.

[00:16:46] Speaker 00:
It wasn't specified whether these were the exact logs that came from Agent Daniels or Agent Colin.

[00:16:56] Speaker 00:
Agent Daniels, the testimony was that Agent Daniels started the investigation.

[00:17:00] Speaker 00:
So yes, when you start the investigation, the logs are automatically generated.

[00:17:05] Speaker 00:
So yes, these would be the logs generated from when Agent Daniels started the investigation.

[00:17:09] Speaker 00:
That's correct.

[00:17:10] Speaker 00:
Agent Daniels, his part after that, after you started the investigation was then he made the forensic image of the defendant's devices, the forensic copies.

[00:17:22] Speaker 00:
Agent Daniels passed away.

[00:17:24] Speaker 00:
Nothing else from Agent Daniels was presented or before the jury.

[00:17:29] Speaker 00:
Agent Cullen went through and he verified that the forensic imaging that Agent Daniels did was correct and exact match.

[00:17:39] Speaker 03:
So how did, explain to me the foundation for how he verified the forensic copy.

[00:17:47] Speaker 00:
It's through a process using hash values, and hash values are equivalent to more, they're more exact than DNA, for instance.

[00:18:00] Speaker 00:
The odds of having an exact match, if there's any little piece that's off, they won't match up.

[00:18:05] Speaker 00:
So if you have this hash value match, that verifies, that says that these are identical copies.

[00:18:12] Speaker 00:
And so Agent Colon went through

[00:18:14] Speaker 00:
and using his forensic examination and doing this hash value calculation determined there was a match and it was that his copy he came up with was an identical replica of what Agent Daniels had done.

[00:18:30] Speaker 02:
So he's comparing copies that he derives using the program with the copies that Agent Daniels derived?

[00:18:39] Speaker 00:
Correct, yes.

[00:18:40] Speaker 00:
So he verified that it was an exact identical copy.

[00:18:42] Speaker 02:
Okay, so let's go back to

[00:18:45] Speaker 02:
testimony about what the logs show.

[00:18:48] Speaker 02:
In other words, I understand that this is just a verification that the original mapping did produce these images.

[00:18:57] Speaker 02:
Let's assume Agent Daniels had testified and we didn't have to have the substitute witness.

[00:19:03] Speaker 02:
Describe for me, the government has this proprietary software, if you will.

[00:19:10] Speaker 02:
that allows them to look at the BitTorrent reference on the computer and then match it up to an image.

[00:19:17] Speaker 02:
How can they cross-examine you about whether that's inaccurate, whether that accurately produces the right image?

[00:19:27] Speaker 00:
And again, that can also go to foundation authentication as well.

[00:19:31] Speaker 02:
Yeah, and I'm not worried for the moment about the nature of the objection.

[00:19:34] Speaker 02:
Correct.

[00:19:35] Speaker 02:
I'm just trying to figure out how a defendant, when confronted with this testimony, gets the ability to

[00:19:41] Speaker 00:
He could cross.

[00:19:43] Speaker 00:
So we had detective early detective early as a co-developer of the software so he could cross examine detective early on the software and being the co-developer and things of that nature about it.

[00:19:57] Speaker 00:
And then.

[00:19:59] Speaker 00:
which he did have that ability to do that.

[00:20:03] Speaker 00:
And the court, in doing this, you know, the defendant had made a hearsay, foundation, and authentication objection, and the court went through, after listening to Agent Eartley's testimony about the software and how it works and the results it produces, found that

[00:20:23] Speaker 00:
There was everything was machine generated.

[00:20:26] Speaker 00:
There was no hearsay.

[00:20:27] Speaker 00:
It was not testimonial.

[00:20:28] Speaker 00:
And then the court also found at trial that the government had laid sufficiently met the foundation and authentication for the program to come in.

[00:20:38] Speaker 00:
So that is how a defendant could could challenge us in the future.

[00:20:41] Speaker 00:
And he had the opportunity to with detective virtually.

[00:20:44] Speaker 00:
So there is no confrontation clause violation here at issue.

[00:20:49] Speaker 02:
Now, can you turn to

[00:20:52] Speaker 02:
the rebuttal testimony, if you will, and put aside plain error or preservation for a moment.

[00:20:58] Speaker 02:
I take it it's true that the government had run these tests, if you will, before the defendant took the stand.

[00:21:10] Speaker 00:
The agent testified, Agent Cohen testified that when he was in his hotel room the night before the defendant testified, he was trying to anticipate what the defendant's testimony would be the next day.

[00:21:22] Speaker 00:
So he on his own ran these experiments.

[00:21:27] Speaker 00:
At trial, the defense objected on disclosure grounds, did not raise a doubt.

[00:21:33] Speaker 02:
And then the judge says it's rebuttal.

[00:21:35] Speaker 00:
The judge said that the judge found that it was impeachment testimony.

[00:21:40] Speaker 00:
So even if this court were to find that it went beyond impeachment testimony and it went to expert testimony, there's still no problem here.

[00:21:49] Speaker 00:
There's still no error.

[00:21:51] Speaker 00:
And the reason is because before trial, the government noticed Agent Colon as an expert.

[00:21:56] Speaker 00:
It said he did the forensic examination of the defendant's devices.

[00:22:02] Speaker 00:
He had knowledge of various operating systems.

[00:22:04] Speaker 00:
He had knowledge of the dates, when dates were accessed and dates were modified on a computer.

[00:22:10] Speaker 00:
He was also familiar with the cleaning software.

[00:22:13] Speaker 00:
He testified to these things on direct examination.

[00:22:16] Speaker 02:
So your position is, had they raised a deliberate objection, you could have established his expertise.

[00:22:22] Speaker 00:
Absolutely.

[00:22:23] Speaker 00:
No one was disputing that he was an expert.

[00:22:27] Speaker 00:
No one disputed that he was an expert.

[00:22:29] Speaker 00:
And in fact, based on his testimony that he had during direct, the court was able to evaluate his testimony, the reliability and relevancy.

[00:22:37] Speaker 00:
And as the District Court found, had the defendant not testified or had he testified differently,

[00:22:45] Speaker 00:
the agent colon's rebuttal testimony may not have even been relevant and it may not have even been brought up to begin with.

[00:22:51] Speaker 00:
But because the defendant testified the way he did, that is why agent colon was called as rebuttal to impeach that testimony to say, you know, defendant says if I run X, I get Y result and

[00:23:05] Speaker 00:
Agent Colon got up to rebut that and said, I did run X, I got Z result.

[00:23:11] Speaker 00:
But that was all within the realm of his expertise, everything he talked about on rebuttal, whether it was impeachment or expert testimony, it was all within his expertise.

[00:23:22] Speaker 02:
But you're not arguing that his rebuttal testimony was the testimony of a lay person, are you?

[00:23:28] Speaker 02:
It would have required expertise.

[00:23:32] Speaker 00:
Which was clearly established and no one objected to that.

[00:23:38] Speaker 00:
If the court were to somehow find that there was error, it doesn't rise to the level of plain error in that the defendant's substantial rights were not affected

[00:23:48] Speaker 00:
in that the defendant got to cross-examine Agent Colon two different times on his rebuttal testimony alone, and in addition, the amount of overwhelming evidence that was presented against the defendant in this case.

[00:24:06] Speaker 00:
If the court has no further questions on any of the issues, then we respectfully ask that you confirm his affirm, excuse me, his convictions and sentence.

[00:24:17] Speaker 03:
Thank you, counsel.

[00:24:18] Speaker 03:
We're here to repuddle now.

[00:24:24] Speaker 04:
Judges, thank you for the additional two minutes.

[00:24:26] Speaker 04:
The court asked a question, well, how is it that one facing significant charges with due process on their side can cross-examine this software?

[00:24:41] Speaker 04:
And the answer the government

[00:24:42] Speaker 04:
presented was by cross-examining one of several people that helped develop the software.

[00:24:49] Speaker 04:
And so it's not hard to see.

[00:24:53] Speaker 04:
And the reason I encourage the court to take a more expansive view of what is machine generated is we are literally the frontier where AI can start doing these things on its own.

[00:25:03] Speaker 04:
Matter of fact, Detective early said that there are settings here that allow the software

[00:25:09] Speaker 04:
controlled only by the government.

[00:25:11] Speaker 04:
In fact, so controlled by the government, it's outside of our record, but the government does protect this proprietary software in this district and in others.

[00:25:21] Speaker 04:
If we're at a point now where the programmers of this software can simply say, as far as I know, it works, deal with it, it's going to make it incredibly hard to effectively cross-examine the results.

[00:25:35] Speaker 04:
It's not enough.

[00:25:37] Speaker 04:
There should be more

[00:25:38] Speaker 04:
in a situation like this where the chief evidence of distribution is created by government-controlled proprietary software.

[00:25:46] Speaker 04:
It's not available.

[00:25:48] Speaker 04:
The government mentioned that defense counsel got to cross-examine Agent Cullen not once, but twice, and that's true.

[00:25:55] Speaker 04:
If you read the record, there is almost nothing that he is able to cross-examine him about, because despite using an FBI laptop,

[00:26:03] Speaker 04:
He did not save his results.

[00:26:05] Speaker 04:
He did not write reports.

[00:26:06] Speaker 04:
He did not take notes, and he could not replicate it in court.

[00:26:10] Speaker 04:
So how can defense counsel effectively represent his clients in a situation like that where the answer to every question is, you weren't in my hotel room.

[00:26:19] Speaker 04:
Sorry.

[00:26:21] Speaker 04:
That sort of argument should be really concerning to this panel.

[00:26:25] Speaker 04:
It's something that it should consider.

[00:26:27] Speaker 04:
I'm out of time.

[00:26:28] Speaker 04:
Judges, I would just close by asking for the reasons in our brief to reverse the conviction and the judgment against Mr. Stone.

[00:26:33] Speaker 03:
All right.

[00:26:34] Speaker 03:
Thank you, counsel.

[00:26:35] Speaker 03:
We thank counsel from both sides for the helpful arguments in this case.

[00:26:40] Speaker 03:
And the case just argued will be submitted.