[00:00:02] Speaker 04:
Good morning, and welcome to the Sandra Day O'Connor courthouse for these arguments set for today.

[00:00:10] Speaker 04:
It's a pleasure to be here.

[00:00:12] Speaker 04:
As you know, we don't always get to sit in Phoenix, and I'm just delighted to be here.

[00:00:19] Speaker 04:
And I know that Judge Hawkins and I are just equally delighted to welcome Judge Johnstone, our newest colleague on the Ninth Circuit Court of Appeals, who's here from Missoula, Montana.

[00:00:31] Speaker 04:
And despite our cooler temperatures, he says it's a lot better than Missoula, Montana.

[00:00:37] Speaker 04:
So we're ready to proceed with the oral argument calendar set for today.

[00:00:43] Speaker 04:
The first case on our calendar is Clinton Mark Lewis versus United States of America.

[00:00:51] Speaker 04:
If the lawyers are ready, you may come forward.

[00:01:00] Speaker 03:
Good morning, Your Honors.

[00:01:01] Speaker 03:
May it please the Court, Randy McDonald for the appellant, Clinton Lewis.

[00:01:05] Speaker 03:
I'd like to reserve a couple of minutes at the end for rebuttal, and I'll watch my time.

[00:01:12] Speaker 03:
The government's case here involved the presentation of two chains of evidence.

[00:01:20] Speaker 03:
One chain involved the thumbnail images that were found on Clinton Lewis's computer, and which I think undisputably showed child pornography.

[00:01:33] Speaker 03:
But it is disputed whether Clinton could have accessed those images.

[00:01:40] Speaker 03:
And so the government's case additionally relied

[00:01:43] Speaker 03:
on another chain of evidence demonstrating that the user of the computer had utilized certain video software to download certain files and view those files.

[00:01:58] Speaker 03:
But that alone does not demonstrate that any of the files that were downloaded and viewed were of child pornography.

[00:02:07] Speaker 03:
So none of those files continue to exist.

[00:02:09] Speaker 00:
Counsel, did anyone else have access to the two computers?

[00:02:12] Speaker 03:
I think there was a stipulation at trial that nobody else had access to the computers.

[00:02:17] Speaker 03:
But I believe it was US v. Moreland that said, exclusive access of a computer where there are child pornography is not enough.

[00:02:27] Speaker 03:
Especially like, as this court said in Flyer, where those images are contained in a cache or some other kind of unallocated space.

[00:02:37] Speaker 03:
where the user of the computer would not necessarily know that those files existed.

[00:02:43] Speaker 03:
And in fact, there was testimony here by the government's expert that Lewis could not have accessed those files and could not have manipulated those files without certain software that he did not have.

[00:02:56] Speaker 02:
But Mr. McDonough, why wouldn't the evidence be sufficient to establish the government's theory that he just deleted the files given the other software available on the computer?

[00:03:06] Speaker 03:
So there is also, I want to say it's Kuczynski that talks about, this court said, that deletion of those files by itself is not evidence of possession of the files, that just the deletion of the files does not demonstrate that he possessed the images.

[00:03:24] Speaker 03:
So the images that we have are just the thumbnail images, and those are the charged images.

[00:03:31] Speaker 03:
So the government argues that those images are the ones that Clinton-Lewis possessed.

[00:03:37] Speaker 03:
Now, as the government points out, the statute does permit

[00:03:41] Speaker 03:
charges for accessing child pornography, which is why I think they introduced that evidence of the Sharex and RVC database that somebody went out and downloaded files that ended up in this Sharex file

[00:03:59] Speaker 03:
and that these thumbnail images were derived from also images in this share X file, but there's no way to connect the thumbnail images to the files that were downloaded.

[00:04:10] Speaker 03:
They are not a one to one compare.

[00:04:12] Speaker 03:
The names are different.

[00:04:14] Speaker 02:
You talk about two different threads of, of evidence here, but I, why not for the sufficiency argument, at least are we

[00:04:22] Speaker 02:
able to weave those threads together into enough evidence to sustain the conviction.

[00:04:27] Speaker 03:
And so that these two threads rely on this expert testimony that basically says here's this folder and the thumbnails come from the folder.

[00:04:38] Speaker 03:
And the downloads went into the folder.

[00:04:40] Speaker 03:
But what I think that requires is a number of inferences.

[00:04:43] Speaker 03:
We don't know what else was on the computer.

[00:04:46] Speaker 03:
The expert testified that everything else on the computer was wiped.

[00:04:50] Speaker 03:
So I don't think we know what was in that file to begin with.

[00:04:53] Speaker 03:
We know that ShareX downloaded files into that folder.

[00:04:57] Speaker 03:
And we know that the thumbnails were created from that folder.

[00:05:00] Speaker 03:
But other than that,

[00:05:01] Speaker 03:
There is no way to look at a thumbnail that was collected from the computer and say this thumbnail came from this file that was downloaded by ShareX.

[00:05:13] Speaker 03:
I'm sorry, go ahead and finish.

[00:05:15] Speaker 03:
And I think to, uh, to knit the two threads of my argument together, it was that testimony about the connection between the two threads that was the subject of the late disclosure by the government and which required a continuance, uh, that the court did not grant.

[00:05:34] Speaker 03:
And so here, I think because that testimony, even if this court were to find that

[00:05:39] Speaker 03:
the evidence was sufficient.

[00:05:43] Speaker 03:
It's that link which provides the critical piece of information that connects these two threads.

[00:05:50] Speaker 03:
And it's that link that was the subject of the expert disclosure less than three weeks before trial.

[00:05:57] Speaker 03:
And so I think it's very clear that there was prejudice from the court's failure to grant that extension.

[00:06:04] Speaker 00:
That was his sixth motion for continuance?

[00:06:08] Speaker 03:
It was, but as the cases that I've cited have mentioned, this court shouldn't hold that against him when those continuances were for other purposes.

[00:06:22] Speaker 03:
And I acknowledge that the purpose of those continuances were to review the discovery, because the discovery here was voluminous and very complicated.

[00:06:30] Speaker 03:
But it was not until three weeks before trial that this specific expert report, which indicated how the

[00:06:38] Speaker 03:
key witness in this case was going to testify and how he was going to make those connections.

[00:06:44] Speaker 03:
It was only at that point that that was known by the defense.

[00:06:49] Speaker 03:
They had all of the data, but they didn't know how the expert was going to tie all of that data together and unify these two threads of evidence that we were talking about.

[00:07:00] Speaker 04:
Didn't they have an opportunity to ask in the time that

[00:07:03] Speaker 03:
they met with along with the defendant's expert.

[00:07:07] Speaker 03:
And I think that the fact that defense counsel met with the government's expert

[00:07:14] Speaker 03:
for a great length of time and still was unable to understand that evidence demonstrates that a continuance was necessary.

[00:07:23] Speaker 03:
I think you're right that the government's expert met with defense counsel for several hours, walked through this testimony, and still defense counsel on the record said, I do not understand this.

[00:07:36] Speaker 03:
I don't know how these connections are being made.

[00:07:40] Speaker 03:
he needed a little bit more time to make those connections, to confer with his expert, to be able to properly cross-examine the expert.

[00:07:48] Speaker 03:
And there are cases which have said that the need to prepare for testimony is a purpose that the court should consider when granting those extensions of time.

[00:08:03] Speaker 00:
The district court, in denying the motion for continuance, did

[00:08:08] Speaker 00:
do a couple of things that were beneficial to the defense, correct?

[00:08:11] Speaker 00:
He excluded some demonstrative exhibits which were in fact new.

[00:08:16] Speaker 03:
That's true.

[00:08:17] Speaker 00:
And he allowed your defense, your expert to sit with you at not or with trial defense counsel at trial, correct?

[00:08:23] Speaker 03:
That's true.

[00:08:25] Speaker 03:
But I think the key here is that that new evidence, the expert report, necessarily tied these two threads together in a way that it was not clear how it would happen before.

[00:08:38] Speaker 03:
In other words, without that expert report, defense counsel had no idea how the expert was going to testify to connect these two disparate threads.

[00:08:48] Speaker 03:
I'm sure the government would disagree here, but neither of those two threads by themselves would have been enough to convict the defendant, because in the Sherex link, there was no evidence of child pornography.

[00:09:01] Speaker 03:
We don't know what those files were.

[00:09:03] Speaker 03:
In the thumbnail link, we don't know that he exercised dominion and control over those thumbnails.

[00:09:08] Speaker 03:
In fact, there was testimony that he could not have exercised dominion and control over the thumbnails.

[00:09:13] Speaker 03:
And so what was necessary was to show how these downloads and these thumbnails were linked, and that was exactly the subject of the expert opinion that was disclosed.

[00:09:24] Speaker 04:
You mentioned Kuczynski.

[00:09:28] Speaker 04:
You think that's your best case for the sufficiency of the evidence?

[00:09:30] Speaker 04:
I think for the sufficiency evidence, Flyer is the best case.

[00:09:34] Speaker 04:
Oh, okay.

[00:09:36] Speaker 04:
In Kuczynski, which you just mentioned, that was a sentencing enhancement issue, not a determination of guilt.

[00:09:43] Speaker 03:
That's true.

[00:09:43] Speaker 03:
That's true.

[00:09:44] Speaker 04:
But the question was still... And there was no evidence there that the defendant was sophisticated or familiar with the computers.

[00:09:52] Speaker 04:
And here,

[00:09:54] Speaker 04:
I think has already been mentioned, stipulation that he was the only one, and it looked like he was, from what I was able to review, pretty familiar with how computers worked.

[00:10:05] Speaker 03:
And the question of that familiarity with computers goes to the question of whether he knew about the files and could have possessed them.

[00:10:15] Speaker 03:
But here, even if he knew, I think Flyer said that for possession you have to know about and be able to access the files.

[00:10:24] Speaker 03:
And the testimony is clear, he could not have accessed those thumbs.db files.

[00:10:29] Speaker 03:
And I have 30 seconds.

[00:10:30] Speaker 03:
I would like to reserve some time for rebuttal.

[00:10:46] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:10:48] Speaker 01:
My name is Ben Goldberg.

[00:10:49] Speaker 01:
I'm an AUSA here in Phoenix, and I'm here on behalf of the Appellee of the United States.

[00:10:53] Speaker 01:
This court should affirm Mr. Lewis's conviction and sentence.

[00:10:57] Speaker 01:
First, the district court did not abuse its discretion when it denied Mr. Lewis's sixth motion for a continuance.

[00:11:03] Speaker 01:
The court carefully considered the motion and then correctly determined that a continuance would not be proper.

[00:11:08] Speaker 04:
It looks like there was a lot of data here and that's keep referring to data.

[00:11:12] Speaker 04:
What does that mean?

[00:11:14] Speaker 04:
Or can you give us the best idea of what that data means?

[00:11:18] Speaker 04:
Because

[00:11:19] Speaker 04:
From what I understand of the appellant's argument is that 37 exhibits were identified two weeks before trial.

[00:11:29] Speaker 04:
And I'm trying to figure out were those needles and haystacks or were they very obvious?

[00:11:35] Speaker 01:
Sure.

[00:11:36] Speaker 01:
I think as to the data in general, Your Honor, certainly I would imagine there was a lot of data, even more than what the government presented as exhibits, because the FBI and its experts had to take the entire data of the computer and then focus in on the child pornography aspect of the case.

[00:11:54] Speaker 01:
That being said, it was and should have been very clear to Mr. Lewis and his defense team well before trial started where the case was going to go.

[00:12:03] Speaker 04:
Because you told him?

[00:12:05] Speaker 01:
for a number of reasons, including the fact that the government told him.

[00:12:10] Speaker 04:
So in those meetings that you had, because I think there were at least two meetings, did you identify those 37 exhibits as being the critical foundation for your evidence?

[00:12:23] Speaker 01:
So the government was not present at those meetings.

[00:12:25] Speaker 01:
Those meetings were between the FBI and the defense team, those initial two meetings between the defense team and the FBI.

[00:12:33] Speaker 04:
But you're pointing to those meetings as that's where he should have or could have identified.

[00:12:38] Speaker 04:
I'm just not sure how clear the government was in those two meetings.

[00:12:43] Speaker 04:
Or if they were just saying, hey, here it is and we're here, let us know what you want to know.

[00:12:48] Speaker 04:
I mean, just in terms of fundamental fairness,

[00:12:52] Speaker 01:
Sure, and I think that's one part of the complete story of where defense should have been on notice of not only the exhibits, but really the entire case in general.

[00:13:03] Speaker 01:
I think it starts going before that where Mr. Lewis had an interview with the FBI agent and a number of the programs that issue here, including Nightflower, the encrypted container, including Sharex, which has already been mentioned.

[00:13:15] Speaker 01:
Those were brought up during that interview.

[00:13:16] Speaker 01:
Now, would that one interview be enough notice

[00:13:20] Speaker 01:
and for trial, and would the government be able to meet its discovery obligations from that interview?

[00:13:24] Speaker 01:
Of course not.

[00:13:25] Speaker 01:
But then the government turned over all of the data at issue.

[00:13:28] Speaker 01:
It provided two forensic reports initially in addition to the expert report that came later.

[00:13:33] Speaker 04:
Did those reports identify those 37 exhibits?

[00:13:37] Speaker 01:
Not the 37 exhibits in particular, Your Honor.

[00:13:39] Speaker 04:
Did it identify any of the 37 exhibits?

[00:13:42] Speaker 01:
Well, it didn't identify exhibits simply because the government hadn't prepared exhibits for trial yet, because at that point, trial was a year and a half.

[00:13:49] Speaker 04:
But did it identify the information that were later in the exhibits?

[00:13:53] Speaker 01:
Yes, absolutely.

[00:13:54] Speaker 01:
Because the exhibits were merely visual depictions of the data.

[00:13:58] Speaker 01:
And it wasn't just simply that the government said, here's a treasure trove of data, and now we're going to pick and choose what our exhibits are.

[00:14:04] Speaker 04:
So the government identified the significance of those exact images

[00:14:11] Speaker 04:
during those meetings?

[00:14:13] Speaker 01:
Well, I don't want to speak to those two initial meetings, but I can confidently say that the defense was provided information to allow them to hone in on the particular importance of those exhibits.

[00:14:24] Speaker 01:
The two weeks before?

[00:14:26] Speaker 01:
But before the two weeks before.

[00:14:28] Speaker 04:
Okay, and that's what I'm trying to figure out.

[00:14:29] Speaker 01:
Sure, and I think it really goes to the initial forensic reports, which showed, here's ShareX, the files are found in ShareX, here's RBC Recordings, the files are found in RBC Recordings, here are some other programs found on Mr. Lewis's desktop, like CCleaner or Veracrypt, the same programs that were going to be brought out in those exhibits.

[00:14:48] Speaker 01:
Then the FBI made itself available for two meetings.

[00:14:51] Speaker 01:
I don't want to say necessarily what went on in those meetings, but I know the FBI was certainly available to answer any questions.

[00:14:57] Speaker 01:
Those two forensic reports had also been provided to allow the defense to hone in on what was important.

[00:15:03] Speaker 01:
Then the government did meet two weeks before trial with defense counsel to essentially say, here are courtesy copies of the exhibits.

[00:15:10] Speaker 01:
Those exhibits were not due until two days before trial.

[00:15:13] Speaker 01:
So this was really a courtesy meeting and a courtesy providing the exhibits.

[00:15:17] Speaker 01:
And the government sat down and essentially said, here's the roadmap of our case, but I don't think the notice started

[00:15:24] Speaker 01:
the two week before trial at that meeting.

[00:15:25] Speaker 01:
I think the fence certainly had time before then and certainly should have had an indication of what those exhibits would be.

[00:15:32] Speaker 02:
Mr. Goldberg, you talk about the exhibits as essentially trial exhibits.

[00:15:36] Speaker 02:
I guess I'd like to understand a little better in terms of

[00:15:40] Speaker 02:
sorting out this question of how much the defense was on notice of or not.

[00:15:45] Speaker 02:
What sort of visual transformation to the data did the exhibits perform?

[00:15:51] Speaker 02:
I mean, it's hard to assess without understanding.

[00:15:56] Speaker 02:
What kind of schematic, what were these exhibits?

[00:16:00] Speaker 01:
For instance, one example would be the data at issue showed what the icons on Mr. Lewis's desktop were.

[00:16:08] Speaker 01:
This was important for the government because it showed some of the programs that the government expert later testified to at trial.

[00:16:16] Speaker 01:
excuse me, like the ShareX program, like some of the cleaning software that Mr. Lewis had in his computer.

[00:16:22] Speaker 01:
The data clearly listed out what those programs were.

[00:16:25] Speaker 01:
It was very clear and should have been, especially to Mr. Lewis's expert who was assisting him, the programs that showed up on Mr. Lewis's desktop.

[00:16:34] Speaker 01:
What the government did, for instance, in its trial exhibit, instead of just showing a very large spreadsheet saying here are the different icons,

[00:16:41] Speaker 01:
it showed an image of Mr. Lewis's desktop the way we as normal users might see it.

[00:16:46] Speaker 01:
So while Mr. Lewis had the indication of these are all of the programs and icons that showed up on your desktop, the trial exhibit was a visual of that desktop showing the same.

[00:16:57] Speaker 02:
What about the others?

[00:16:58] Speaker 01:
The others would be, for instance, there was data showing how often Sharex was used.

[00:17:04] Speaker 01:
The trial exhibit for that was essentially a very long spreadsheet where the government expert went through line by line.

[00:17:11] Speaker 01:
Here are the times Sharex was used.

[00:17:13] Speaker 01:
Here are times certain things were created.

[00:17:16] Speaker 01:
That was actually, most of the exhibits were the longer spreadsheets.

[00:17:20] Speaker 01:
It certainly narrowed the data from everything because there may have been some highlights on the exhibits showing Sharex or RBC recordings.

[00:17:28] Speaker 01:
But those were actually very similar, I think, to what the data probably looked like.

[00:17:31] Speaker 02:
Was the district court required to do anything more than it did in its findings with respect to the continuance for purposes of our review?

[00:17:39] Speaker 02:
It's a relatively short discussion of the factors.

[00:17:43] Speaker 01:
It was, but I don't think the district court needed to do anything more, your honor, for a couple of reasons.

[00:17:49] Speaker 01:
I think as this court has noted, it heard from the government that the exhibits at issue were not anything new, but simply those visual depictions of the data that Mr. Lewis had had for over a year and a half.

[00:18:00] Speaker 01:
It heard about the forensic reports as well as the expert report that Mr. Lewis had received.

[00:18:05] Speaker 01:
It asked Mr. Lewis's counsel, is there any issue with the timing of the disclosure, both of the expert or the expert's report?

[00:18:13] Speaker 01:
That was conceded that there were no disclosure issues when it came to timing for the expert and the report.

[00:18:19] Speaker 01:
The court asked about the qualifications of the expert who was assisting Mr. Lewis, and it heard about those meetings that the court had asked about with the FBI.

[00:18:27] Speaker 04:
I guess I'm just more focused on the significance of the data.

[00:18:31] Speaker 04:
I know they had access to all the data, but were they

[00:18:35] Speaker 04:
How much notice did they have of the significance of that particular data that you were going to be using?

[00:18:40] Speaker 01:
I think, Your Honor, it would have been more of a problem if the government had simply said, here is a hard drive with all of the data and here's forensically how it looked.

[00:18:50] Speaker 01:
good luck trying to prepare for trial.

[00:18:53] Speaker 01:
You'll get our exhibits as we get closer.

[00:18:55] Speaker 01:
But what the government instead did was, here's the data.

[00:18:59] Speaker 01:
Also, here are two different forensic reports that will help you hone in on the importance of the programs at issue here.

[00:19:05] Speaker 01:
Here's an interview with your client where the important programs are discussed.

[00:19:10] Speaker 01:
And then the government later provided an expert report, which again reiterated the importance of those programs, as well as the meeting that the government had a few weeks before trial.

[00:19:19] Speaker 00:
It's pretty clear from

[00:19:21] Speaker 00:
the interview with the FBI that this was a very sophisticated computer user, correct?

[00:19:27] Speaker 01:
That's correct, Your Honor.

[00:19:28] Speaker 00:
This was no surprise to anybody.

[00:19:30] Speaker 01:
It should not have been, Your Honor.

[00:19:32] Speaker 00:
And to get back to the... In fact, at one point, didn't one of the agents say to the defense expert, if you want to know how this stuff works, ask your client.

[00:19:42] Speaker 01:
Well, and the court actually did the same, Your Honor, at the final pretrial conference when the parties discussed the motion to continue.

[00:19:48] Speaker 01:
The court not only took notice of the defense expert who was assisting,

[00:19:51] Speaker 01:
But he also noted that in a sealed hearing right before that final pretrial conference, it was clear to the court and it was very clear from the evidence that Mr. Lewis himself was very computer literate, himself was a computer expert.

[00:20:03] Speaker 01:
And it should have been no surprise about which of these programs were going to be more important than some of the others.

[00:20:09] Speaker 04:
Can you talk about the sufficiency of the evidence here?

[00:20:12] Speaker 04:
Because it seems like these thumbnails were

[00:20:18] Speaker 04:
critical, uh, to your case.

[00:20:21] Speaker 04:
And I just trying to figure out if that alone is sufficient to, uh, for the jury to have had a reasonable inference that he actually accessed or possessed.

[00:20:33] Speaker 01:
Of course, your honor.

[00:20:33] Speaker 01:
And I think I'd like to first to start out by differentiating this case from some of the cases cited by the defense, like flyer, like kuchinski, like some of the others cited in the defense brief

[00:20:43] Speaker 01:
In those cases, the main issue is that the only evidence the government could point to were items found in the unallocated space on the computer.

[00:20:52] Speaker 01:
There simply wasn't any other evidence the government could point to other than the existence, and because of the existence, likely deletion of the files that were in unallocated space.

[00:21:01] Speaker 01:
I see that my time is out, Your Honor.

[00:21:03] Speaker 01:
Can I continue?

[00:21:03] Speaker 01:
Please continue.

[00:21:04] Speaker 01:
Thank you.

[00:21:05] Speaker 01:
In this case, the thumbnails were not the only piece of evidence the government could point to, but they were actually the only piece of evidence that Mr. Lewis seems to have failed to delete when he shredded and completely cleaned his initial desktop computer.

[00:21:21] Speaker 01:
In this case, the government was able to first point to the underlying files of those thumbnails.

[00:21:27] Speaker 01:
It talked about how Mr. Lewis would access child pornography on the internet, how he used specialized recording software to get those files onto his computer.

[00:21:37] Speaker 01:
It talked about how Mr. Lewis then viewed some of those files we know from some of the data

[00:21:45] Speaker 01:
with names suggesting child pornography.

[00:21:49] Speaker 01:
The defense had noted that in the Sharex folder, for instance, there was no evidence of child pornography.

[00:21:54] Speaker 01:
But the government expert testified that of the 77 thumbnails found in the Sharex directory on Mr. Lewis's computer, 75 depicted images of child pornography or child exploitation.

[00:22:05] Speaker 01:
Those were the underlying files.

[00:22:06] Speaker 01:
We then know that Mr. Lewis transferred some of these files to an encrypted container, that he then took that encrypted container to a laptop that he owned and viewed those files on the laptop, and then he completely erased and shredded as many files as he could, forgetting only the fact that he had those thumbnails.

[00:22:24] Speaker 01:
So while it may be that Mr. Lewis was unaware that the thumbnails themselves were housed in this thumbs.db directory, the government certainly provided sufficient evidence that he possessed and had dominion and control over those underlying files.

[00:22:38] Speaker 01:
I would also just add that the government also showed evidence that not only the underlying files were things that Mr. Lewis had possession of and dominion and control of, but the government expert testified that the thumbnails themselves would not have been created

[00:22:51] Speaker 01:
absent Mr. Lewis changing the settings on his computer, changing those settings to icon view, and the government expert testified as soon as he did that, the thumbnails would have started populating in the folder, meaning Mr. Lewis would have had to have seen some of those thumbnails once he changed

[00:23:07] Speaker 01:
those settings.

[00:23:08] Speaker 01:
I think at that moment, when he had those thumbnails there, as this court and Rahm said, now he has the thumbnails in front of him, he has the chance to manipulate those, enlarge them, do whatever he wants to do with those thumbnails.

[00:23:19] Speaker 01:
So I think not only did the government show sufficient possession of the underlying files, but actually even of the thumbnails themselves.

[00:23:27] Speaker 01:
I see that I'm out of time.

[00:23:28] Speaker 01:
I just ask that this court affirm Mr. Lewis's conviction and sentence.

[00:23:32] Speaker 01:
Thank you very much.

[00:23:33] Speaker 04:
Thank you, Mr. Goldberg.

[00:23:39] Speaker 03:
Good morning.

[00:23:40] Speaker 03:
I think one thing relating to the continuance that may be lost here is that there was an FBI expert who evaluated the computer initially and who gave some disclosures, the forensic disclosures that I think the government is talking about.

[00:23:56] Speaker 03:
That person was not the person who ultimately testified.

[00:23:59] Speaker 03:
The testifying expert was a different… Because the first one died.

[00:24:03] Speaker 03:
That is correct.

[00:24:04] Speaker 03:
He was not available for trial.

[00:24:06] Speaker 03:
But I don't think the reasoning for why, I mean, we're not saying that he should have been, but the fact that this was a new expert who was evaluating the evidence for how he was going to testify, I think is relevant.

[00:24:20] Speaker 03:
And as the government said, these exhibits were enormous spreadsheets with thousands of lines that

[00:24:28] Speaker 03:
were themselves an aggregation of data that had been presented.

[00:24:32] Speaker 03:
And I think it was just without those spreadsheets and pointing to the specific data that was going to be presented, I just don't think that there was a way for the defense to be capable.

[00:24:43] Speaker 04:
Correct me, but do you have to show at this point, based on your issue regarding the continuance that

[00:24:53] Speaker 04:
If you had been granted the continuous, the outcome would have been different.

[00:24:57] Speaker 03:
We have to show prejudice, and I think we can show prejudice by the fact that... But don't you have to show prejudice by showing that the outcome would have been different?

[00:25:07] Speaker 03:
I think the argument that the outcome is different is specifically because that link between the two threads of evidence that I spoke to was in the expert report that was disclosed three weeks before trial.

[00:25:20] Speaker 03:
And so what I would argue is that without being able to make that connection, the government would not have been able to prove its case.

[00:25:28] Speaker 03:
And that that evidence and how to properly rebut that evidence was

[00:25:34] Speaker 03:
only available to the defense three weeks before trial.

[00:25:38] Speaker 04:
I see that my time is up and I... Thank you very much.

[00:25:41] Speaker 04:
Thank you.

[00:25:43] Speaker 04:
Mr. MacDonald and Mr. Goble, thank you very much for your argument presentations here today.

[00:25:49] Speaker 04:
The case of Clinton-Mark Lewis versus United States of America is now submitted.

[00:25:55] Speaker 04:
The next case,