[00:00:01] Speaker 03:
Good morning.

[00:00:02] Speaker 03:
Good morning.

[00:00:03] Speaker 03:
My name is Rick Hearn, and I represent Trenton Powell.

[00:00:09] Speaker 03:
This is a case that I would like to both simplify and complicate in oral arguments.

[00:00:17] Speaker 03:
simplified by going to one half of one argument that's in the brief.

[00:00:22] Speaker 03:
And in the other parts of the brief, I believe, since I wrote it, that they're well set out.

[00:00:27] Speaker 03:
On the motion to suppress having to do with the six-day delay is what I would like to talk with this panel about.

[00:00:38] Speaker 03:
It complicates things because there are two Supreme Court cases that are dealing with a problem that at my age

[00:00:46] Speaker 03:
I'm not sure I understand so well about cell phones, although because I have grown children, they've taught me a lot.

[00:00:53] Speaker 03:
The issues raised in Raleigh v. California had to do with the seizure of a cell phone incident to an arrest.

[00:01:04] Speaker 03:
Now, that seizure of that cell phone

[00:01:09] Speaker 03:
was had to do with a driving infraction, but ended up with evidence relevant to gang affiliation because that was on Mr. Riley's cell phone and possibly a murder committed in the past.

[00:01:28] Speaker 03:
In our case, in Powell, Mr. Powell's case is distinguishable from that, except for it was a seizure and sent to arrest of a cell phone, but it was at the culmination of an eight-month investigation.

[00:01:45] Speaker 03:
Eight months earlier, an arrest warrant was made based upon allegations of child sexual abuse occurring eight months earlier.

[00:01:57] Speaker 03:
Now, that sexual abuse had occurred 10 plus years before the arrest.

[00:02:07] Speaker 03:
And so when they arrested my client, Mr. Powell, for sexual abusing a minor 10 years earlier,

[00:02:18] Speaker 02:
That was his stepdaughter, correct?

[00:02:20] Speaker 02:
Excuse me, sir?

[00:02:21] Speaker 02:
That was the stepdaughter he abused, correct?

[00:02:23] Speaker 03:
Yes.

[00:02:24] Speaker 03:
And it's not real great, but allegations that he abused other young children as well.

[00:02:33] Speaker 03:
So when they arrested him, the officer, Detective Sampson, seized the phone without a warrant.

[00:02:42] Speaker 03:
but didn't know whether he really should have seized it or not.

[00:02:46] Speaker 03:
And it came out in the motion, the hearing on the motion to suppress, that because this had happened 10 plus years ago and people had multiple iPhones over that time,

[00:03:01] Speaker 03:
that there would be any evidence on this iPhone.

[00:03:04] Speaker 03:
It wasn't a container probably of evidence from ten years ago.

[00:03:09] Speaker 01:
But your argument is that somehow he had to do something within less than six days.

[00:03:15] Speaker 01:
What he did was he hung on to it.

[00:03:17] Speaker 01:
He gets a warrant six days later and then he tries to open it, but then there's a delay.

[00:03:22] Speaker 01:
But you're saying that during that six days he should have returned the phone?

[00:03:25] Speaker 03:
No, sir.

[00:03:26] Speaker 03:
That's your argument.

[00:03:29] Speaker 03:
No.

[00:03:30] Speaker 03:
Looking at the six, it is suggestive of that in the briefing, and that is one argument.

[00:03:37] Speaker 03:
But the bigger problem is that during those six days, they determined evidence, which was a phone call that he made asking for his phone to be wiped to family members.

[00:03:55] Speaker 03:
Right.

[00:03:56] Speaker 03:
That evidence that the court found justified exigent circumstances, the district court found, that phone call hadn't been made, wasn't present when the phone was seized.

[00:04:10] Speaker 02:
When the phone was seized, though, it was on airplane mode, was it not?

[00:04:13] Speaker 02:
I don't want to venture too far because I might be less technically adept than you are.

[00:04:18] Speaker 03:
Unlikely, but yes.

[00:04:20] Speaker 02:
Believe me, I probably could be.

[00:04:22] Speaker 02:
So I'll give you the benefit of the doubt.

[00:04:23] Speaker 02:
But the point is, it's no dispute, the phone was on airplane mode, could not be reviewed in any way, shape, or form.

[00:04:31] Speaker 03:
That's correct.

[00:04:32] Speaker 03:
It was also put in a Faraday box.

[00:04:34] Speaker 02:
No one could even get into the contents at that point in time.

[00:04:36] Speaker 02:
No one could.

[00:04:37] Speaker 02:
And nor did anyone try.

[00:04:40] Speaker 03:
I'm sure the government will argue that they did try, but it was ineffective.

[00:04:47] Speaker 03:
There's no way they could have.

[00:04:49] Speaker 03:
But the issue is, is when they then go back after six days with the warrant, the primary focus of the warrant isn't anything that they had before during the eight month investigation.

[00:05:02] Speaker 03:
They've added this phone call in, which the district court found to be exigent circumstances, justifying the continuing holding onto the phone

[00:05:15] Speaker 03:
for a long time because there was no way the government had to break into the phone, 71 days.

[00:05:24] Speaker 03:
But the main point that I would like to ask the court to concentrate is, in Raleigh v. California, we need something besides what the Supreme Court said.

[00:05:37] Speaker 03:
And so I have to say what the Supreme Court said in Raleigh.

[00:05:42] Speaker 03:
When a phone is seized, what should the government do?

[00:05:46] Speaker 03:
And in the last line of the opinion in Riley, it said, get a warrant.

[00:05:52] Speaker 03:
Well, did it mean investigate further, talk to co-conspirators?

[00:06:00] Speaker 03:
you know, maybe get a confession and then get a warrant, or did it mean get a warrant right now?

[00:06:06] Speaker 03:
Well, it is an incident to arrest.

[00:06:09] Speaker 00:
Well, they did get a warrant.

[00:06:10] Speaker 03:
They did, in six days.

[00:06:12] Speaker 00:
And so you're saying the six days was unreasonable?

[00:06:16] Speaker 03:
Yes.

[00:06:16] Speaker 01:
And of course.

[00:06:17] Speaker 01:
You're saying they should have gotten the warrant irrespective of that phone call that says, hey, wipe the phone?

[00:06:23] Speaker 03:
Both.

[00:06:24] Speaker 03:
Yes, Your Honor.

[00:06:29] Speaker 03:
So the way the law is, check my time here, is we don't have good case law from the Supreme Court about seizing cell phones despite this.

[00:06:38] Speaker 03:
So we go to McArthur, Illinois versus McArthur, a seizing of the residence.

[00:06:44] Speaker 03:
And then we take the four rules there.

[00:06:46] Speaker 03:
And one of those, number two, is exigent circumstances.

[00:06:50] Speaker 03:
which they did not have when they seized his phone, but they used those six days in order to get exigent circumstances, which then they tell the district court, I mean, the magistrate, he's trying to wipe the phone.

[00:07:05] Speaker 01:
Let me quarrel a little bit with your language.

[00:07:08] Speaker 01:
They used the six days in order to get the circumstances, is what you just said.

[00:07:12] Speaker 01:
Well, I'm not sure they anticipated what they were going to get.

[00:07:16] Speaker 01:
It turns out during the six days, he does something that just kind of walks right into their hands, but that was not their intent.

[00:07:24] Speaker 01:
They seized it.

[00:07:26] Speaker 01:
The guys got a few days of leave.

[00:07:28] Speaker 01:
And during that period, he says, wipe the phone.

[00:07:32] Speaker 01:
It's not as though they entrapped him.

[00:07:33] Speaker 01:
It's not as though they expected that.

[00:07:35] Speaker 01:
That was just a delay because of the nature of the guy's business.

[00:07:39] Speaker 03:
That certainly, I don't know what their intent was.

[00:07:44] Speaker 03:
But the problem is the first factor, I talked about it, the first factor in the MacArthur factors is did they have probable cause to start with.

[00:07:55] Speaker 03:
And there can be a debate about that.

[00:07:58] Speaker 03:
But they didn't think they had enough probable cause or take it seriously enough to get a warrant then before the phone call.

[00:08:07] Speaker 00:
I thought the record is that they got the phone, put it in airplane mode so nobody could get to it, then the detective started drafting the warrant the very next day, but then he had a few days off, so then the next time he was at work, he

[00:08:26] Speaker 00:
finished the warrant.

[00:08:28] Speaker 00:
So in the interim, this suggestion of wiping the phone evidence come up.

[00:08:34] Speaker 00:
I don't see how the detective wouldn't put it in.

[00:08:36] Speaker 00:
You would expect.

[00:08:37] Speaker 00:
That's a pretty good piece of evidence.

[00:08:39] Speaker 00:
So then he included that.

[00:08:40] Speaker 00:
I just don't see what's unreasonable about that.

[00:08:46] Speaker 03:
There is nothing unreasonable.

[00:08:47] Speaker 03:
It should have gone into the warrant.

[00:08:50] Speaker 03:
in order to search the phone under Raleigh v. California, you need to have a search warrant to search the phone.

[00:09:00] Speaker 03:
So it should have.

[00:09:01] Speaker 03:
Also, if a co-conspirator had confessed, or maybe he'd confessed during this, everything that the police have should go into the warrant.

[00:09:10] Speaker 03:
But we cannot

[00:09:12] Speaker 03:
We have to understand that six days later, you may have a lot more to put into the warrant than you do when you seize the phone originally.

[00:09:24] Speaker 03:
And in this case, they did.

[00:09:26] Speaker 03:
I mean, they did.

[00:09:27] Speaker 03:
And as pointed out,

[00:09:32] Speaker 03:
there really weren't exigent circumstances.

[00:09:34] Speaker 03:
There's no way he's going to be able to wipe anything or his family is going to be able to.

[00:09:39] Speaker 03:
And of course, he has a legitimate reason to want to call the Fourth Amendment.

[00:09:45] Speaker 03:
He wants to protect his privacy.

[00:09:46] Speaker 03:
And he says, I want everything off my phone wiped for my privacy.

[00:09:50] Speaker 03:
I don't want you to be able to see it or any government to.

[00:09:56] Speaker 03:
Of course, that can always be used as evidence.

[00:09:59] Speaker 03:
There must be something illegal on your phone.

[00:10:02] Speaker 03:
So we have a right to have a warrant or probable cause.

[00:10:11] Speaker 02:
That would be the first of the three MacArthur factors in terms of balancing privacy and law enforcement concerns, right?

[00:10:18] Speaker 02:
The thrust of your argument is that of the four MacArthur factors as to Illinois versus MacArthur, the first three are satisfied, but it's really your argument is based totally on the fourth.

[00:10:30] Speaker 02:
Delay is no longer than necessary to diligently obtain a warrant.

[00:10:35] Speaker 03:
Well, in MacArthur, number three isn't satisfied.

[00:10:38] Speaker 02:
Number three is police officers' reasonable efforts to balance privacy and law enforcement concerns.

[00:10:45] Speaker 03:
Let me address that.

[00:10:46] Speaker 03:
When I look back, it's not that I knew MacArthur by heart.

[00:10:49] Speaker 03:
When I look back at MacArthur, I see that what the court found in that Supreme Court case is they didn't arrest Mr. MacArthur.

[00:10:58] Speaker 03:
The facts were his wife says,

[00:11:02] Speaker 03:
My husband's got drugs, and he's hiding it in the house.

[00:11:05] Speaker 03:
And they take 26 hours, I think, in order to get a warrant and come back.

[00:11:11] Speaker 03:
But they never arrested him.

[00:11:12] Speaker 03:
They just said, you can't go in the house.

[00:11:14] Speaker 03:
Here, there's a different circuit.

[00:11:17] Speaker 03:
But they arrest him, record his phone calls with his family, which has a warning on it.

[00:11:21] Speaker 03:
I know that's allowed.

[00:11:23] Speaker 03:
And then they use what they find during his custodial arrest in order to get the warrant.

[00:11:28] Speaker 03:
So the resting part was important.

[00:11:32] Speaker 03:
That is not a reasonable balance, because they used that to get a warrant that I'm asking this court to hold, that you need to get the warrant, not wait six days, if you have probable cause.

[00:11:48] Speaker 03:
Take it to a magistrate.

[00:11:50] Speaker 03:
That is reasonable, and that's what

[00:11:53] Speaker 03:
especially for a cell phone, and I'm not going to review, and I don't have time to review all the things that make a cell phone reasonable to get a warrant, but I do want to mention one thing.

[00:12:05] Speaker 03:
Please look at Raleigh because they talk about connecting to the cloud and how you get past crimes, the difficulties of putting it in a Faraday box that's all in Raleigh v. California to describe how important it is.

[00:12:23] Speaker 03:
The problem with Raleigh is they say the solution is get a warrant.

[00:12:30] Speaker 03:
When get a warrant?

[00:12:31] Speaker 03:
What can you do till you get a warrant?

[00:12:33] Speaker 03:
How long do you have to get a warrant?

[00:12:35] Speaker 03:
And we need, we and the CJA and the government, we need more.

[00:12:40] Speaker 03:
I don't want a bright line rule, but what kind of factors should we use to protect our privacy when a phone is seized, a cell phone, not other kind of things, without a warrant?

[00:12:54] Speaker 02:
There's no evidence of staleness in this case, correct?

[00:12:59] Speaker 02:
No.

[00:12:59] Speaker 02:
OK, staleness is not an issue here.

[00:13:02] Speaker 03:
That's correct, Your Honor.

[00:13:04] Speaker 00:
Did you want to save a couple of minutes?

[00:13:05] Speaker 03:
I will save the remainder of my time.

[00:13:07] Speaker 03:
Thank you.

[00:13:15] Speaker 04:
May it please the court, my name is Justin Paskett, and I represent the United States.

[00:13:21] Speaker 04:
in this matter.

[00:13:21] Speaker 04:
I'll begin by responding to some of the issues raised by defense, and I do want to cover some of the other issues that were not raised in defense's argument.

[00:13:35] Speaker 00:
With regard to the- Actually, Council, can I have you start by addressing the 70, 71-day delay?

[00:13:42] Speaker 04:
Yes, Your Honor.

[00:13:43] Speaker 00:
Do we have cases that talk about how long law enforcement can retain a phone while waiting for technology to develop, allowing you to break into a phone?

[00:13:54] Speaker 04:
Your Honor, there is no clear line about what the exact range of days is that can be delayed.

[00:14:05] Speaker 04:
When we're looking at the length, certainly

[00:14:10] Speaker 00:
So we're looking at reasonableness?

[00:14:12] Speaker 04:
It has to fall within reasonableness.

[00:14:14] Speaker 04:
And certainly, if something was held for 10 years, it would be a clear argument to say that's unreasonable to hold something for that period of time.

[00:14:22] Speaker 04:
A specific factual analysis in each individual case is important.

[00:14:28] Speaker 04:
And as can be demonstrated in the record here, what happened in this case, and while the six-day

[00:14:38] Speaker 04:
period of time has already somewhat been discussed by the court and I can return to that.

[00:14:43] Speaker 04:
After the warrant was obtained, after the six days between the seizure and the warrant, law enforcement attempted to execute that warrant.

[00:14:52] Speaker 04:
They were unable to execute the warrant because at the time the forensic tools they had were not sufficiently caught up with the technology

[00:15:04] Speaker 02:
of the phone.

[00:15:22] Speaker 04:
behind the forensic tools that law enforcement uses to open these devices and the updates that come out through the devices to make them more and more difficult.

[00:15:36] Speaker 01:
What kind of record do we have as to

[00:15:40] Speaker 01:
What happened in the past with respect to new issues of iPhones, how long it takes to get the forensic software?

[00:15:46] Speaker 01:
I mean, was it a reasonable expectation that they would get the new software within more or less the period they got it?

[00:15:51] Speaker 01:
I mean, did they know how long they were supposed to be waiting or should be waiting?

[00:15:55] Speaker 04:
Your Honor, there was no set time frame.

[00:15:57] Speaker 04:
There was no guarantee.

[00:15:58] Speaker 01:
I understand that, but is there a practice or a custom or is there some reasonable expectation we tend to get the new software within X months or whatever?

[00:16:06] Speaker 04:
Your Honor, at the suppression hearing, there was testimony that this sort of, I suppose you could phrase it as a cat and mouse game of a continual chase of forensic

[00:16:21] Speaker 04:
developers or forensic software developers that develop the programs used by law enforcement are continually a few steps behind but do in fact succeed after some period of weeks or months and that there was an expectation.

[00:16:36] Speaker 00:
What was that testimony?

[00:16:37] Speaker 00:
Because I think that's a good fact for you that there is this pattern of new phones being released and then the forensic tool can't break into that phone but then

[00:16:51] Speaker 00:
eventually the technology catches up.

[00:16:55] Speaker 00:
But was there testimony as to duration, historical duration of how long it takes for the new technology to catch up?

[00:17:03] Speaker 04:
Your Honor, I will look specifically for that to be addressed in the record at that suppression hearing.

[00:17:17] Speaker 04:
There was testimony, and I want to be careful not to

[00:17:21] Speaker 04:
improperly quote that testimony.

[00:17:40] Speaker 00:
Well, that's fine if you can't readily.

[00:17:43] Speaker 00:
I read that portion.

[00:17:44] Speaker 00:
The reason I'm asking about this council is that, you know, this is technology and it changes very fast.

[00:17:50] Speaker 00:
And so you can certainly envision scenarios where all kinds of encryption technology gets developed and somebody basically encrypts the information.

[00:17:59] Speaker 00:
I don't think we can have the government hold on to the device.

[00:18:03] Speaker 00:
for a substantial period of time waiting for technology to develop.

[00:18:09] Speaker 00:
I mean, I don't know how long that substantial period of time would be or at what point it becomes unacceptably long, but I don't know that we need to deal with it in this particular case because you do have a suggestion that

[00:18:25] Speaker 00:
The new model comes out, and then shortly thereafter, the forensic tools basically catches up to allow you to open up that phone.

[00:18:35] Speaker 04:
And that was the testimony, Your Honor, that there was an anticipation and there was a continual checking of whether or not that software update was capable of doing it.

[00:18:45] Speaker 04:
And it was on that 71-day mark.

[00:18:48] Speaker 00:
that that was ultimately... Right, but you see my concern, right?

[00:18:51] Speaker 00:
With encryption technology, the government can't just hold onto that phone forever or... Your Honor, I believe I... Pass the six month, eight month, a year mark while waiting for the technology to catch up?

[00:19:05] Speaker 04:
I think that's a very fair question from the court, and I think I can articulate that the government in this case

[00:19:13] Speaker 04:
law enforcement specifically that was attempting to access and execute the warrant for the first time through these forensic tools, had a good faith belief that in— That was a testimony of Mr. Christopherson.

[00:19:25] Speaker 02:
Is that his name?

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

[00:19:27] Speaker 04:
Forensic detective Kyle Christopherson.

[00:19:29] Speaker 02:
I thought he testified that he—that the government would eventually be able to get into the Apple iPhone 12, and they were expecting to get—be able to do that at some point.

[00:19:40] Speaker 04:
That is accurate.

[00:19:42] Speaker 02:
They didn't put a time frame on it, but they said we will be able to get into it at some point.

[00:19:48] Speaker 04:
And I suppose to answer the question, while I don't know what the outer limits might be, what we do know in this case, Your Honor, is that it was 71 days.

[00:19:56] Speaker 04:
And so I suppose for the purpose of today's hearing, the government's position is that 71 days was reasonable under the circumstance.

[00:20:04] Speaker 04:
And perhaps it would have been helpful to have a finer point put on prior approximations of how long previous updates had taken to give them that continued good faith belief that there would be an update in a reasonable amount of time.

[00:20:20] Speaker 04:
But what we know in this case is there was an expectation that that update would come out, that they would be able to access

[00:20:26] Speaker 04:
that phone, and in fact, that did occur at approximately that 71-day mark, a little over two months.

[00:20:35] Speaker 04:
And under the circumstances, the district court found that their diligence in continuing to check to see if the updates or if the updates they had received would open the phone over that period of time.

[00:20:48] Speaker 04:
One other thing they did that the government is of the position was not even necessary, but they did do, I think, also showing reasonableness and good faith

[00:20:56] Speaker 04:
is they continue to renew that warrant with the state district judge, which it's the government's position that there was no necessity to renew the warrant where they were unable to execute it.

[00:21:05] Speaker 04:
It was not a warrant that they were renewing as if they needed another warrant, but rather they did that showing that they were acting in good faith holding that phone.

[00:21:16] Speaker 04:
And it's the government's position that, as they'd never executed it, that step was even unnecessary, but goes to the reasonableness of what they were doing in their good faith belief that they would be able to access that.

[00:21:29] Speaker 04:
If there are no other questions about the search of the phone or the delay, I do want to address a few other issues.

[00:21:36] Speaker 04:
One of those that was raised by defense is the issue of

[00:21:43] Speaker 04:
the defendant during the course of trial counsel attempting to bring in evidence of Jane Doe One's prior relationship with a boyfriend during the course of around the contemporaneous to the time period that she was being sexually abused by the defendant.

[00:22:07] Speaker 04:
And specifically, when Jane Doe One had testified on direct examination about one of the exhibits that was of the charged conduct of her engaged in an act of oral sex with the defendant.

[00:22:25] Speaker 04:
That's what she testified to.

[00:22:26] Speaker 04:
There was an image of Jane Doe One where you could clearly see her face and performing an act of oral sex.

[00:22:33] Speaker 04:
You could not clearly identify the face of the person

[00:22:36] Speaker 04:
that that was being done on.

[00:22:37] Speaker 04:
And her testimony was that she identified that as the defendant.

[00:22:41] Speaker 04:
She had identified that as occurring in his house, in his bedroom.

[00:22:46] Speaker 04:
And she specifically, when asked, had stated that he was the only person that she had performed oral sex on.

[00:22:58] Speaker 00:
There's a 412C notice issue in this case, right?

[00:23:01] Speaker 04:
Yes.

[00:23:02] Speaker 04:
And the government objected on that basis.

[00:23:04] Speaker 04:
Well, government objected on the basis of the lack of notice.

[00:23:09] Speaker 02:
Under Rule 412?

[00:23:10] Speaker 04:
Correct.

[00:23:11] Speaker 04:
Correct.

[00:23:11] Speaker 04:
And the court held a hearing during the course of trial outside of the presence of the jury.

[00:23:20] Speaker 04:
Defense was allowed to provide proffered evidence of the prior boyfriend.

[00:23:27] Speaker 04:
And the first question that was asked by defense was,

[00:23:30] Speaker 04:
whether or not during that time frame, the boyfriend and the victim, Jane Doe One, the charged victim, had engaged in oral sex, and his response was yes.

[00:23:48] Speaker 04:
However, as the hearing continued,

[00:23:54] Speaker 04:
He was shown images or was asked if there was ever any images of them engaged in sexual acts produced or taken.

[00:24:02] Speaker 04:
He said there were not.

[00:24:03] Speaker 04:
And he was shown some of the images that were not of sexual acts, but just of Jane Doe one nude.

[00:24:11] Speaker 04:
And he said he did not recognize those images.

[00:24:13] Speaker 04:
The court ultimately ruled that as raised the

[00:24:20] Speaker 04:
the issue did not go specifically to a specific piece of evidence because he denied the specific items of evidence that were entered.

[00:24:27] Speaker 04:
Defense objected, and I think this is maybe more where

[00:24:30] Speaker 04:
some argument by the government needs to be developed on the basis that not allowing him to address the the single statement that she did not perform oral sex on anyone else that's how she knew it was the defendant she should be impeached on that or be allowed to be impeached on that because the prior boyfriend did testify that they had engaged in oral sex I want to address two parts of that one is still has limited probative value and with

[00:25:01] Speaker 04:
The statement as it was, the argument with regard to and defense cited Davis versus Alaska about the defendant's right to impeach a witness and whether or not that would fall within an exception of 412 for confrontation, I would refer the court to United States versus Bonanno, which is a Ninth Circuit 1988 case, and specifically

[00:25:31] Speaker 04:
addressing cross-examination and the right to confront.

[00:25:33] Speaker 04:
Once cross-examination reveals sufficient information which can appraise a witness as possible, bias and motives, confrontation demands are satisfied.

[00:25:43] Speaker 04:
I would argue and refer the court to the record here that there was significant cross-examination done by defense counsel during the course of trial that went to

[00:25:59] Speaker 04:
The honesty, the bias, the motive of Jane Doe One, she was thoroughly cross-examined.

[00:26:06] Speaker 04:
This particular issue, I would also note that the proffer provided by defense counsel was limited.

[00:26:14] Speaker 04:
And with the information in the proffer, there was no way to even determine whether or not what

[00:26:21] Speaker 04:
the prior boyfriend was testifying to was applicable and would in fact impeach what Jane Doe once said.

[00:26:27] Speaker 04:
She specifically was quite vague that the defendant was the only person she gave oral sex to.

[00:26:34] Speaker 04:
The question asked of the prior boyfriend is during the time from they dated, did the prior boyfriend and her engage in oral sex or did she engage in oral sex with you?

[00:26:47] Speaker 04:
There was no question as to where

[00:26:50] Speaker 04:
The question and testimony with regard to Jane Doe was also not clear.

[00:26:54] Speaker 04:
She could have been testifying solely in the defendant's bedroom.

[00:26:58] Speaker 02:
Didn't the prior boyfriend also state at some point in time he had never recorded any oral sex?

[00:27:04] Speaker 04:
He did.

[00:27:05] Speaker 02:
He specifically said there had never been any recording to his knowledge.

[00:27:08] Speaker 04:
He said that.

[00:27:09] Speaker 04:
He also did not state

[00:27:13] Speaker 04:
There was a question about the time frame he dated her in the proffer, but the time frame with regard to when Jane Doe One was referring to was not further established.

[00:27:25] Speaker 04:
or narrowed sufficiently to show that she was testifying inconsistently or... Yeah, I'm not sure where you're going with this argument.

[00:27:32] Speaker 01:
Are you saying that this was totally irrelevant?

[00:27:35] Speaker 01:
I mean, if I were the defense, I would definitely want this in because it says that she's not telling the truth on this particular point.

[00:27:41] Speaker 04:
Your Honor, I'm saying it's marginally relevant given that it did not go directly towards any of the specific items of evidence based on the proffer of the boyfriend.

[00:27:49] Speaker 04:
And it's not even clear that it's

[00:27:52] Speaker 04:
that her testimony was inconsistent or dishonest because the nature of the proffer didn't... The photograph was not visible as to who the individual was.

[00:28:00] Speaker 02:
Correct.

[00:28:01] Speaker 02:
So you have our boyfriend saying nothing was ever recorded and you have a photograph that really can't identify who the person was but you have evidence that the boyfriend says we were never recorded.

[00:28:12] Speaker 02:
So it becomes somewhat tangential, it seems to me.

[00:28:15] Speaker 04:
I would agree with that, Your Honor.

[00:28:17] Speaker 04:
I would also note that just the nature of the proffer didn't narrow it down to time frames.

[00:28:21] Speaker 01:
Yes, but it seems to me that it makes her testimony inaccurate, because she says nobody never except this one person.

[00:28:28] Speaker 04:
But there was, I understand the court's position, as there was no time frame.

[00:28:32] Speaker 01:
It may not be a big point, but it seems to me that it would prove that she was not telling the truth.

[00:28:37] Speaker 04:
If it was more specifically narrowed to a time frame place or location, she's

[00:28:42] Speaker 01:
Why do you need location?

[00:28:44] Speaker 01:
Because the issue was when, not where.

[00:28:47] Speaker 04:
Well, it was unclear from her statement whether or not she was being more specific or if it was ever.

[00:28:53] Speaker 01:
It seems to me I'm okay with you on the 14-day problem.

[00:28:58] Speaker 04:
If there are no other questions, I recognize my time is over.

[00:29:01] Speaker 02:
It's probably a good time to get out then, that's why.

[00:29:04] Speaker 00:
Thank you.

[00:29:04] Speaker 00:
You're out of time anyway, so we appreciate your argument.

[00:29:07] Speaker 02:
Thank you.

[00:29:07] Speaker 02:
Judge Fletcher gave you a good exit line.

[00:29:09] Speaker 02:
Thank you.

[00:29:10] Speaker 04:
I would ask that the court affirm the conviction.

[00:29:13] Speaker 04:
Thank you.

[00:29:20] Speaker 03:
Try to correct my mistakes of not covering some things.

[00:29:23] Speaker 03:
Because it's abusive discretion, I left off a lot of things, including 412.

[00:29:27] Speaker 03:
The issue in 412 is, can you really require notice for impeachment?

[00:29:33] Speaker 03:
And that was, this was, there was no notice, the 14-day notice, and we, the,

[00:29:42] Speaker 03:
the defense counsel just could not supply notice for that impeachment.

[00:29:47] Speaker 03:
But I'd like to move back to the 71 days, Your Honor.

[00:29:53] Speaker 03:
There is no limit in the record for how long it was going to take these... Right, but the anticipation that the technology would catch up, that's a good factor for the government, right?

[00:30:11] Speaker 03:
Yes, Your Honor, I can understand that.

[00:30:15] Speaker 03:
But what the anticipation, who is the government?

[00:30:18] Speaker 03:
The government, the officer who seized the phone didn't even know he should have seized it.

[00:30:23] Speaker 03:
The detective that was the main detective didn't have any of this knowledge.

[00:30:28] Speaker 03:
They finally got this information from the person, from Homeland Security about this special way, this defect in the program, the way it would put things there, and that we would need to

[00:30:40] Speaker 03:
there would be something there.

[00:30:41] Speaker 03:
So there was a lot of layers of who would have had this knowledge.

[00:30:46] Speaker 03:
And then, of course, it's outside the police.

[00:30:48] Speaker 03:
It's a private company axiom or a celebrite or whoever it is that's developing this.

[00:30:54] Speaker 03:
Whether they're even working on it, there was no evidence about when it should be expected.

[00:31:01] Speaker 03:
Finally, in my remaining 20 seconds, let me go to due diligence.

[00:31:06] Speaker 03:
That is briefed well, but due diligence or the diligence of the police during those six days where they take a three-day not work, don't have anybody else.

[00:31:16] Speaker 03:
And the eight months cannot fit any definition of acting with diligence that I can find in the dictionary, which is a constant painstaking, all of those things.

[00:31:30] Speaker 03:
It just doesn't fit under reasonable diligence.

[00:31:33] Speaker 03:
Thank you all.

[00:31:34] Speaker 00:
All right.

[00:31:35] Speaker 00:
Thank you, counsel, for your argument this morning.

[00:31:37] Speaker 00:
That concludes the morning's calendar.

[00:31:40] Speaker 00:
That last case will also be submitted, and we will be in recess until tomorrow morning.