That's a damn good point. I bet if his defense team looked hard enough, they could find an RFP/RFQ out there somewhere, where the FBI themselves were seeking to purchase something like NanoCore. Hell, I'd go one further and suggest that in discovery they ask the FBI for a list of any RAT tools they use, including NanoCore!

Proving that the FBI themselves are a customer for tools like (and possibly including) NanoCore should be enough for any half-intelligent judge to throw the case out without further discussion.