[00:00:02] Speaker 03:
Good morning and welcome to the Ninth Circuit.

[00:00:04] Speaker 03:
Judge Miller, Judge Desai and I are glad that everybody's here and we're excited for two arguments that we have set for today.

[00:00:13] Speaker 03:
I'd just like to remind everybody to try and keep to your time and to sum up as it's coming down.

[00:00:21] Speaker 03:
If you want rebuttal time, let us know.

[00:00:24] Speaker 03:
We'll try and accommodate that.

[00:00:27] Speaker 03:
We will go ahead and we've got

[00:00:29] Speaker 03:
Actually, three cases have been submitted.

[00:00:33] Speaker 03:
That is Perez versus Garland, case number 22-1965, Espinosa versus Garland, case number 23-2583, and Corasani versus Mayorkas, case number 23-2772.

[00:00:51] Speaker 03:
And we'll go ahead and proceed with the first argument.

[00:00:54] Speaker 03:
scheduled for today, and that is United States versus Phipps.

[00:00:58] Speaker 03:
That's the combined cases 21-50168 and 22-50280.

[00:01:05] Speaker 00:
Good morning.

[00:01:12] Speaker 00:
I'm Jessie Agostin, Federal Defenders, on behalf of Mr. Phipps.

[00:01:15] Speaker 00:
I'll aim to reserve two minutes and I'll watch the clock.

[00:01:19] Speaker 00:
So the probation officer should not have been introduced as a forensics expert in this case.

[00:01:25] Speaker 00:
He was not qualified, and his methods were not independently found to be reliably applied.

[00:01:31] Speaker 00:
So because of that and because of the email hearsay errors, this court should reverse.

[00:01:36] Speaker 00:
So probation officer Marr fell way below the standard for what we usually think of when we think of experts.

[00:01:42] Speaker 00:
He wasn't qualified to testify about sanitizing, processing,

[00:01:46] Speaker 00:
and interpreting unallocated space in an encrypted hard drive.

[00:01:50] Speaker 00:
He'd done that 15 times before total without anybody checking his work.

[00:01:57] Speaker 03:
It wasn't his primary job, which is- How many do you need to do to be qualified?

[00:02:02] Speaker 00:
There's obviously no hard and fast rule.

[00:02:04] Speaker 00:
And of course, this court reviews qualification for abuse of discretion.

[00:02:09] Speaker 00:
But taking his background cumulatively, you know, this wasn't his primary job supervising people on supervised release.

[00:02:17] Speaker 00:
wasn't his secondary job, which is of course installing and dealing with the monitoring software that comes from that.

[00:02:23] Speaker 00:
He had no academic background in forensics.

[00:02:26] Speaker 00:
He had no regularized and written protocols to compare against.

[00:02:30] Speaker 00:
He had no ability to explain the best practices in his community when asked, even though identifying the idea of best practices on direct.

[00:02:38] Speaker 03:
No, the best practices, I had thought that the best practices, you've tried to pitch that as the best practices for conducting the software review, but as I read it, I thought that that inquiry was more about best practices of custody, chain of custody issues.

[00:02:55] Speaker 00:
So there were several moments where they asked about best practices that went from everything from sanitizing the actual hard drive itself to how one interprets and processes it.

[00:03:08] Speaker 00:
So it wasn't particularly about chain of custody.

[00:03:11] Speaker 00:
Obviously, chain of custody does matter when you're doing forensics work.

[00:03:14] Speaker 00:
If you pick up the wrong DNA sample, that impacts how reliable your methods are.

[00:03:18] Speaker 00:
I think about it as a school nurse knows more than anyone in the building, but that doesn't qualify her to prescribe antibiotics or do surgery.

[00:03:29] Speaker 00:
There's no doubt this probation officer was the most qualified in the probation unit.

[00:03:32] Speaker 00:
to talk about software, but that doesn't mean he was qualified to talk about this specific forensics process.

[00:03:39] Speaker 00:
But even if this court disagrees on reliable application, the court really took the probation officer's word rather than independently analyze the question.

[00:03:50] Speaker 00:
The closest the court got in his findings was, I think the testimony from Officer Maher is that he applied the principles reliably.

[00:03:58] Speaker 00:
That's at ER 51.

[00:04:00] Speaker 00:
And because the party proffering the evidence must demonstrate in some objectively verifiable way that the expert has both chosen a reliable scientific method and followed it faithfully, that was not enough.

[00:04:14] Speaker 00:
That's Daubert 2, 43 at 3rd at 1319.

[00:04:18] Speaker 00:
And I'll say there's little to demonstrate in the record objectively that this officer did the right thing in the right way.

[00:04:24] Speaker 00:
You know, there are a bunch of ways.

[00:04:27] Speaker 03:
Let me back up because I know you've got all these arguments.

[00:04:30] Speaker 03:
Were these brought out?

[00:04:32] Speaker 03:
I mean, because I didn't see a lot of evidence from the defendant saying, hey, this is the best practices.

[00:04:39] Speaker 03:
This is how he fell short of the best practices.

[00:04:41] Speaker 03:
These are the deficiencies in his analysis.

[00:04:44] Speaker 03:
So to your argument that you just don't need to do that because he didn't meet the threshold, or do you bear a burden to actually show that he got things wrong.

[00:04:54] Speaker 00:
So when it comes to rule 702 the burdens on the party proffering evidence to prove reliable application and once that.

[00:05:01] Speaker 00:
Once the party proffering the evidence has met, you know, enough to show, yes, these are the best practices, these are what I followed, then of course it comes to the defendant to say, actually, no, these other best practices are the best.

[00:05:14] Speaker 00:
But here, the government didn't meet that initial burden to show here's what best practices are.

[00:05:18] Speaker 00:
And when the defense tried to elicit on cross, you know, you mentioned best practices from your training, from your expertise, what are those?

[00:05:25] Speaker 00:
The probation officer responded, well, actually, it wasn't really about lab management.

[00:05:29] Speaker 00:
Actually, I'm not totally sure what the difference between verification and validation is, et cetera.

[00:05:34] Speaker 02:
Why?

[00:05:34] Speaker 02:
I mean, to go back to your, you brought up the hypothetical of a school nurse, right?

[00:05:41] Speaker 02:
I mean, the school nurse is an expert, is introduced as an expert to testify that a student had a fever, right?

[00:05:47] Speaker 02:
But you can say, I measured his temperature using an infrared thermometer.

[00:05:52] Speaker 02:
And the nurse may not know how an infrared thermometer works, couldn't tell you how to design one, but they know that, you know, you point it at the person's forehead and it reads the number, right, and you read the number off and, you know, that tells you whether or not they have a fever.

[00:06:08] Speaker 02:
As I read what the district court was saying here, I think in substance it's essentially that.

[00:06:16] Speaker 02:
There's this computer program that you apply, and the guy knows how to do that, and he may not understand all the theory of how it works.

[00:06:25] Speaker 02:
how to design the best practices, but he knows how to use the program, and that's what he did.

[00:06:33] Speaker 02:
What's wrong with that way of looking at it, or why would that be an abuse of discretion if that's how we understand what the district court thought?

[00:06:40] Speaker 00:
Yeah, so I think the probation officer himself said this was not just applying software.

[00:06:46] Speaker 00:
He said this is not push button forensics like a typical cell phone download, for example.

[00:06:51] Speaker 00:
He said that at 5ER 737, this is not push button forensics.

[00:06:55] Speaker 00:
You have to know how to properly sanitize a hard drive.

[00:06:58] Speaker 00:
You have to know how to properly input the material.

[00:07:01] Speaker 00:
You have to know how to run the, then you have to know how to run the program in the right way.

[00:07:05] Speaker 00:
And so this is less like a fever.

[00:07:07] Speaker 00:
It's not surgery, right?

[00:07:10] Speaker 00:
But it's more in the lens of the middle ground, like prescribing medications in the sense that the probation officer himself said, this is somewhat complicated.

[00:07:19] Speaker 00:
And so I think that's what makes the qualification issue concerning and why it was so important, I think, even if this court thinks

[00:07:29] Speaker 00:
Well, this is at the boundaries of discretion for qualification.

[00:07:33] Speaker 00:
Why it makes the district court's failure to make this independent reliability finding problematic.

[00:07:38] Speaker 03:
What's your best case, though?

[00:07:40] Speaker 03:
Because you raise a whole bunch of problems.

[00:07:42] Speaker 03:
But I'm looking at our case law.

[00:07:45] Speaker 03:
Brooks says you don't have to have prior expert testimony.

[00:07:49] Speaker 03:
Brooks also says you don't need to have a degree.

[00:07:53] Speaker 03:
Peer review is not dispositive under DAH-BEHR.

[00:07:57] Speaker 03:
What is your case that we can look on?

[00:08:02] Speaker 03:
I mean, as you know, abuse of discretion is a pretty high standard.

[00:08:05] Speaker 03:
And quite frankly, if it is, as you just said, at the margins, the district court gets deference.

[00:08:13] Speaker 03:
So what's the case that says this was abuse of discretion?

[00:08:17] Speaker 00:
So I'll point out two things.

[00:08:18] Speaker 00:
So abusive discretion goes to qualification.

[00:08:20] Speaker 00:
This court is reviewing de novo, whether the district court made a reliable application finding, two different things.

[00:08:27] Speaker 00:
But I'll point this court toward Daubert II.

[00:08:29] Speaker 00:
I think Daubert II is the most helpful.

[00:08:31] Speaker 00:
And in it, it says, you know, relying entirely on the experts on adorned assertions that the methodology the employed comports with standard procedures is not enough at 1319.

[00:08:44] Speaker 00:
And I'll point out, here's what could have gone wrong.

[00:08:47] Speaker 00:
The probation officer could have improperly sanitized the hard drive that he was transferring the material onto, thus mixing with prior investigations.

[00:08:58] Speaker 00:
And there was no sort of calibration validation saying, here's when I sanitize, here's how I ensure it's properly done.

[00:09:05] Speaker 00:
And I'll just point out on prejudice.

[00:09:09] Speaker 00:
If this court finds that either the probation officer

[00:09:12] Speaker 00:
was either unqualified or the district court erred under this reliability finding and on this record this court you know thinks maybe the officer was reliable maybe it was unreliable then this court must reverse so unless uh your honors have any further questions you can reserve yeah thank you we'll hear from the government

[00:09:40] Speaker 04:
Good morning, Your Honors.

[00:09:41] Speaker 04:
May it please the Court, Mark Rahe, for the United States.

[00:09:44] Speaker 04:
Your Honors, the District Court here did not abuse his discretion in qualifying Progression Officer Marr as an expert in the very narrow subject for which he was proffered.

[00:09:56] Speaker 04:
I think one thing that helps to step back, in their briefs, the defense almost tries to characterize it like

[00:10:01] Speaker 04:
The government put forth Officer Maher as this freestanding expert about everything having to do with forensics.

[00:10:07] Speaker 04:
It wasn't.

[00:10:07] Speaker 04:
It was just about his forensic imaging of the hard drive at issue.

[00:10:13] Speaker 04:
And he testified to the two discrete steps.

[00:10:16] Speaker 04:
The first one uses the forensic Falcon hardware.

[00:10:19] Speaker 04:
The second one uses the Axiom software.

[00:10:21] Speaker 04:
He testified at length how the Falcon has three built-in protections against data corruption.

[00:10:27] Speaker 04:
You know, it has the right block of technology.

[00:10:31] Speaker 04:
It has the hash matching as the copying process goes on.

[00:10:34] Speaker 04:
And then it also has the ability to wipe the storage media.

[00:10:39] Speaker 04:
And then the Axiom software has a fourth built-in protection, which is that it's read-only software.

[00:10:46] Speaker 04:
Beyond that, Officer Maher wasn't called to testify about anything having to do with all these other things, you know, with computers.

[00:10:52] Speaker 04:
And one thing I find interesting

[00:10:54] Speaker 04:
In the reply brief, there's a lot of this testimony or reference to his testimony on unallocated space.

[00:11:01] Speaker 04:
And I reread the record.

[00:11:02] Speaker 04:
If you look at the Dow bearer, first of all, our expert notice didn't say that he was being proffered as an expert in that.

[00:11:10] Speaker 04:
When you read the entire Dow bearer hearing transcript, there was never a single use of the word unallocated.

[00:11:16] Speaker 04:
Then at trial, his direct testimony, not a single use of the word unallocated, it was only on cross-examination that the defense

[00:11:24] Speaker 04:
first brought up this subject, asked him about it because it went to their defense that this was in a place, the computer that had been deleted.

[00:11:32] Speaker 04:
So I just wanted to point that out because it's ironic.

[00:11:36] Speaker 04:
If the defense is now to be heard to complain about our use of an expert in a particular subject that we didn't proffer him for, but for which they opened the door and made an issue, that doesn't seem to prove the abuse of discretion.

[00:11:49] Speaker 04:
And even then,

[00:11:50] Speaker 04:
FBI Agent Evans testified to the exact same thing about unallocated space that Officer Maher did.

[00:11:57] Speaker 04:
So, you know, even if you assume that that was outside his scope of expertise, it was the defense that brought that evidence up, and it was undisputed that what he said was correct.

[00:12:07] Speaker 04:
Now, coming back to Dalbert, you know,

[00:12:11] Speaker 04:
The plain language of Rule 702 says somebody can be qualified by training or experience.

[00:12:17] Speaker 04:
Here, he had over 400 hours of training and he had 10 years of experience in the probation office

[00:12:23] Speaker 04:
doing computers, this sort of, you know, this narrow aspect of it.

[00:12:27] Speaker 04:
And he had testified that, you know, he had used, I think, the Axiom software 25 times since 2018.

[00:12:33] Speaker 04:
That's an excerpt of record 713.

[00:12:35] Speaker 04:
He had specific certification in that program.

[00:12:39] Speaker 04:
He kept up with the updates to that program.

[00:12:41] Speaker 04:
So, you know, when you look at the record that was put in front of the district court, it's hard to see how something, you know, Your Honor, you pointed out the abuse of discretion is very hard.

[00:12:52] Speaker 04:
standard to meet.

[00:12:53] Speaker 04:
And here, after a very thorough hearing, you know, it doesn't seem that was there.

[00:12:58] Speaker 03:
And, you know, we know it's... Defense has a separate argument that

[00:13:04] Speaker 03:
The application, I guess, of Dubair is reviewed de novo.

[00:13:08] Speaker 03:
What's your response to that?

[00:13:10] Speaker 04:
You know, I'll assume that's correct.

[00:13:12] Speaker 04:
Like, if somebody misstates the law, that ought to be de novo.

[00:13:15] Speaker 04:
But I would point out, at Excerpt Record 4748, and this is the start where the district court delivers the multiple pages of findings,

[00:13:25] Speaker 04:
There's no question, first of all, that the court identified the right standard of law.

[00:13:29] Speaker 04:
It said that the expert testimony must be, quote, the product of reliable principles and methods, and the experts reliably applied those principles and methods to the facts of the case.

[00:13:39] Speaker 04:
And then I know defense counsel had to quote,

[00:13:42] Speaker 04:
during her presentation, where it almost made it sound like it was tentative by the court, I see it excerpts a record 51-52, and this is one short sentence.

[00:13:51] Speaker 04:
So the court, to sum up, finds that the evidence is relevant, that the technique used was a reliable one, that the witness to be called regarding the use of the technique is qualified, does have experience in using it, and this last phrase is critical,

[00:14:05] Speaker 04:
and applied the methods that I found to be reliable.

[00:14:08] Speaker 04:
So we don't see how it can be said that even on a de novo standard of view, the court properly identified the governing standard and then made that finding.

[00:14:17] Speaker 04:
And, you know, as we point out in our brief, I think the defense argument that the court somehow refused to make the reliability finding is based on taking its quotes elsewhere during the argument out of context.

[00:14:30] Speaker 04:
You know, at one point the court says, but that's not a Dow-bear question.

[00:14:34] Speaker 04:
What it was referring to there, as we pointed out in our brief, were questions about chain of custody.

[00:14:40] Speaker 04:
And yeah, maybe in some cases, chain of custody can go to reliability for doubtbare purposes, but we cite law, chain of custody is almost something that always goes to the weight of the evidence.

[00:14:50] Speaker 04:
And even here, you know, to the extent, I mean,

[00:14:54] Speaker 04:
The defense, I think there was an argument that they couldn't verify whether he plugged in the right wires.

[00:14:59] Speaker 04:
Well, first of all, he testified that he did.

[00:15:01] Speaker 04:
And the court didn't just rely on that.

[00:15:03] Speaker 04:
The court said, I've also found he's been trained in the use of it.

[00:15:07] Speaker 04:
And then when you look at his report as well that he made contemporaneous with

[00:15:14] Speaker 04:
his examination, and this is its supplemental excerpt of record 277, he's contemporaneous notes at the time he's doing this investigation.

[00:15:23] Speaker 04:
Suspect hard drive connected to left side in paren right block via SATA cables.

[00:15:29] Speaker 04:
So you have more than just his testimony at the hearing.

[00:15:33] Speaker 04:
And then on top of that, there's a point that we make throughout our brief.

[00:15:38] Speaker 04:
We can't lose sight of the fact the defense had their own expert.

[00:15:42] Speaker 04:
And we know it's our burden under Dalbert.

[00:15:44] Speaker 04:
And I stand by the argument that we met that burden.

[00:15:48] Speaker 04:
But you would think, and the district court made this same observation, this same computer or this hard drive was made accessible to defense.

[00:15:56] Speaker 04:
They had an expert.

[00:15:57] Speaker 04:
If there was anything even remotely

[00:15:59] Speaker 04:
wrong or incorrect in the copying process, one would have thought that they would have brought that forth, but they never did.

[00:16:06] Speaker 04:
So if we put ourselves in the shoes of the district court, a thorough Dalbert hearing, Officer Maher discloses every aspect of his 400 hours of training and experience.

[00:16:16] Speaker 04:
You know, the most that you can do is sort of these, you look at the cross-examination, the kind of things that come out, the government's position would be that those all went to wait rather than admissibility.

[00:16:26] Speaker 04:
And they were free to make those cross-examination questions a trial, and they did.

[00:16:30] Speaker 04:
But if the standards of abuse of discretion, the government would submit that that has been met.

[00:16:36] Speaker 04:
And unless the panel has any further questions.

[00:16:38] Speaker 03:
Do you want to address briefly the supervised release condition?

[00:16:43] Speaker 03:
I'm sorry.

[00:16:46] Speaker 03:
I thought there was another issue on appeal.

[00:16:50] Speaker 01:
I'd like you to address the hearsay issue.

[00:16:53] Speaker 01:
The emails.

[00:16:53] Speaker 01:
Okay.

[00:16:53] Speaker 01:
Yes.

[00:16:54] Speaker 01:
Specifically because, as I understand it, the government did rely on the truth of the emails for concluding or for being able to establish that Mr. Phipps purchased the computer.

[00:17:06] Speaker 01:
So talk to me about why that doesn't create a hearsay problem.

[00:17:11] Speaker 04:
Absolutely, Your Honor.

[00:17:12] Speaker 04:
The way I read the record, I respectfully disagree that we use those for the truth.

[00:17:17] Speaker 04:
Those emails were only introduced during the beginning part of the probation officer's testimony to explain why they conducted a search of Mr. Phipps.

[00:17:28] Speaker 04:
During every question, they say, what does it appear to show?

[00:17:31] Speaker 04:
What does it purport to show?

[00:17:33] Speaker 04:
And even, I believe, one of our prosecutors clarified, you don't know for a fact that that was what happened.

[00:17:40] Speaker 04:
And then set that aside, the remain.

[00:17:42] Speaker 01:
Give me where you're referring to in the record when you're indicating that they weren't used for the truth, because I read the record differently.

[00:17:56] Speaker 04:
Oh, boy.

[00:17:57] Speaker 04:
Give me a second.

[00:17:58] Speaker 04:
I'm sorry, Your Honor.

[00:18:04] Speaker 04:
I'm just not getting my papers ready here.

[00:18:26] Speaker 04:
Okay, I'm looking at right now.

[00:18:27] Speaker 04:
I'm signing from page 44.

[00:18:28] Speaker 04:
The government's brief and all these questions.

[00:18:31] Speaker 04:
They happened in falling to the excerpt of record pages 203 204

[00:18:36] Speaker 04:
Here's one example, a 200 question, what appears to be occurring here?

[00:18:41] Speaker 04:
Answer, it appears as though Mr. Phipps is on eBay and made an offer.

[00:18:46] Speaker 04:
What I would argue from that is if you're saying something only appears to be happening, you're not using it for the truth of the matter.

[00:18:52] Speaker 02:
Was there any limiting instruction telling the jury not to consider the?

[00:18:56] Speaker 04:
No, and none was requested either.

[00:18:58] Speaker 04:
And in fact, you know, as we point out, there was no objection.

[00:19:00] Speaker 04:
There was one objection.

[00:19:01] Speaker 04:
These are seven emails that are an issue.

[00:19:03] Speaker 04:
There was only one objection.

[00:19:05] Speaker 04:
The defense brief says, oh, there was repeatedly objected to all of this.

[00:19:09] Speaker 04:
That wasn't the case.

[00:19:11] Speaker 04:
But I would also point out that

[00:19:14] Speaker 04:
You know, this happened, the defense says we relied on this in argument.

[00:19:17] Speaker 04:
That was zero mention of this in closing argument.

[00:19:20] Speaker 04:
All this happened, you know, a few of these were shown during opening statement just to preview the evidence that would come.

[00:19:27] Speaker 04:
Never once mention in closing argument.

[00:19:29] Speaker 04:
Instead, what the government used to prove, the fact that this computer belonged to Mr. Phipps,

[00:19:34] Speaker 04:
I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean,

[00:19:51] Speaker 04:
But again, if something is not being used for the truth of the matter, that was my answer.

[00:19:58] Speaker 04:
I'm sorry if I wasn't clear about that.

[00:20:00] Speaker 04:
If the question is posed, what does this appear to do?

[00:20:03] Speaker 04:
What does this suggest to do?

[00:20:05] Speaker 04:
or, you know, what do these emails suggest to you to probation officers?

[00:20:09] Speaker 04:
It's my position that that's not asking for the truth of the matter, sir.

[00:20:12] Speaker 04:
It's just saying, what was this effect on your actions?

[00:20:15] Speaker 04:
And, you know, the defense cites a couple cases where sometimes, you know, the government backdoors all this evidence.

[00:20:22] Speaker 04:
These were six emails that were only used in opening statement.

[00:20:26] Speaker 04:
And then my point being with this other evidence was, you know, you cannot say credibly that this was essential

[00:20:33] Speaker 04:
to proving his possession of that computer when zero mention of those emails and closing argument.

[00:20:39] Speaker 04:
One would think if they were essential, that would have happened then.

[00:20:42] Speaker 04:
Instead, you have the recitation of all these other things that the case agent found.

[00:20:50] Speaker 04:
But again, if we're not asking the witness

[00:20:54] Speaker 04:
to answer a question, you know, is that to prove that he definitively did that, then I would say we weren't introducing it for the truth of the matter asserted, but just the effect on the listener.

[00:21:04] Speaker 04:
So, but beyond that, you know, again, the government would take the position that even if you find that those handful of emails and their opening statement of reference was error, that it was harmless.

[00:21:14] Speaker 04:
Because this is non-constitutional error, you know, and therefore it only, it's a lower standard proof for harmlessness.

[00:21:23] Speaker 03:
Okay.

[00:21:23] Speaker 04:
Thank you.

[00:21:24] Speaker 04:
Appreciate you for allowing me to go over my time.

[00:21:40] Speaker 00:
All right.

[00:21:40] Speaker 00:
So on the emails, first I'll say we did object several times.

[00:21:44] Speaker 00:
You know, I can point you to ER 200 and 201 say objection here, say move to strike.

[00:21:50] Speaker 00:
next page at 201, same objection.

[00:21:52] Speaker 00:
That's why the government doesn't argue we're looking at plain error here.

[00:21:55] Speaker 00:
On the second point, I'll say the government did use these emails for their truth.

[00:22:01] Speaker 00:
I'll point this court to

[00:22:03] Speaker 00:
ER 81 in their opening argument where they say, here are screenshots that showed not only that he was negotiating for, but actually purchased a Toshiba laptop, and he had it delivered to him.

[00:22:16] Speaker 01:
Maybe you can address the harmlessness issue then, because I hear what your friend is saying on the other side.

[00:22:22] Speaker 01:
There are many, many other things that were considered, including the PayPal records, the eBay receipts that indicate the purchase of the laptop.

[00:22:29] Speaker 01:
So let's say that we agree with you that the emails were used for the truth.

[00:22:34] Speaker 01:
How do you get over the harmlessness issue?

[00:22:36] Speaker 00:
Yeah.

[00:22:36] Speaker 00:
So I'll say two things.

[00:22:39] Speaker 00:
One, the emails were very much more straightforward for the jury to look at.

[00:22:42] Speaker 00:
An email saying, hi, Adam, your order is being shipped is different than parsing through business records.

[00:22:47] Speaker 00:
And then I'll also point this court to Colicot, its case 92 F3rd at 984.

[00:22:53] Speaker 00:
That was also a hearsay case in which this court said when the government's overkill went to the heart of the case, it cannot conclude the error was more likely than not harmless.

[00:23:02] Speaker 00:
You know, this may have been overkill, but as in Colicot, it was really essential overkill that went to the heart of this case, whether Mr. Phipps owned the laptop.

[00:23:12] Speaker 00:
And given that it was used by the government to point the jury to his possession of the laptop, it's not more likely than not harmless.

[00:23:25] Speaker 03:
Thank you.

[00:23:25] Speaker 03:
Thank you to both counsel for your arguments in the case.

[00:23:29] Speaker 03:
The case is now submitted.