first thing i would like to point out is that mr bowen's claim that no court found that he intended to cause harm could not be further from the truth mr bolton admitted in the diversion agreement and admitted in the civil discovery before the district court that he committed these crimes as the sixth circuit twice found and wrote and published opinions as the case came before them mr bowen had no basis for denying that he knowingly possessed a computer disk containing child pornography as the district court found mr bolton admitted violating eighteen u s c section twenty two fifty five a and the prohibit against knowing possession of child pornography as defined in twenty two fifty six eight c twenty two fifty six eight c is the provision that includes or prohibits the production or possession of any image sexually depicting a identifiable child by mr crimea admitted to in his diversion agreement and that's the crimean mid to in the civil discovery when he reaffirmed that the statements in his diversion agreement are accurate and as a matter of law any victim of that crime is entitle to the punishing damages under the sections twenty two fifty five and that's what happened in this case mr bones actions were a crime only because he admitted knowing that the images were identifiable children if they weren't of identifiable children they would have been protected as free speech under the first amendment he admitted to all of the crimes of this case which includes knowing that he possessed images of real children and knowing i respectfully state to you exceeds the standard that in five twenty three which being substantially certain those are you suggesting that don't have a prosecution here there's a matter of law that person who comes to harm people argue to you that you cannot commit a crime without causing harm but didn't the sixth circuit state that he didn't g i cannot be more firm and in arguing to you that the sixth circuit has found that he intended to do this and that he was subject to the punishing damages provisions of twenty to fifty five and one hundred fifty thousand dollars i mean he is still subject to the damages but it doesn't mean that they are not dischargeable i mean it's still a debt that's subject to the damages unless he committed a crime right and so he did i mean we're not denying that he is that he has a claim in this bankruptcy so otherwise you'd be written the criminal code i mean if you if you look at these two statutes there is no reason to believe whatsoever that congress is mission to protect children from these type of attacks to create a lasting and permanent record of them engaging in sexual explicit material was it intended to be tempered by the bankruptcy code and that's what happened here the bankruptcy judge wiped out congress is intent in this case and i think improperly so debts for for fines this is this is the kindle fire again this is a criminal sanction and congress is intent and punishing these people could not be clearer but for the fact that the presumed damages start at one hundred fifty argued that yes but that's that's what the bankruptcy court and we argued did five under five thirty six if i'm sorry if i have the number run but under that section no crime has ever been  charged and i believe the language of congress that the that the offender or better has to be substantially certain is a lesser standard than knowing and as a result of that there should be no conflict between these statutes but one was manufactured by the bankruptcy judge in this court i also argue to you that even if well the commission of a crime certainly is enough it knowingly exceeds the standard i believe is required but let's not forget what happened to mr bolen here even if mr bowlen could successfully somehow argue that he didn't know that these were real children are identified all children when he created his image and embarked upon this course of conduct when he was in oklahoma before a federal district judge the prosecutors raised the prospect that look you're talking about real kids here you consciously chose and that's important i think to realize here he didn't chose to morph adults in the to look like kids which would have been protected for whatever reason mr told to more children into adult pornography that violates the statute he made that choice for a reason i say i'll never understand it but it certainly illustrates what he was up to but after oklahoma the prosecutor says stop this is a crime you can't do this the judge said purge those images i let you do it maybe i should maybe i shouldn't of the judge who succeeded him in oklahoma said no way should never done this they've got to be gone what mr bowen do as a result of that he took the hard drive out of his computer he mailed to his mother so he could be caught with it and he he fixed it so that he could disassemblies images but recall them and he did recall them and he used them again even though the prosecutor said they're real children and the judge said destroy those images now from that point on there's no way that he could not have been substantially certain that he was dealing with the images of real children here and that he intended to harm them and he intended to continue this course of criminal conduct of course you know the bankruptcy judge thought that that was  for lack of air time relevant because they supposedly these images for these other trials were placed in sealed envelopes or were sealed in some some fashion what's your response t these things he tried to deny them what his discovery is since the civil response of his discovery in the district court case are in evidence but but he admitted well there are questions pertaining to all  this he tried to dance around them but yes there is evidence to support that but for whatever reason mr boland just kept going and going and going with these things and he tried to deny the district court  successfully he tried to deny he did these things or somehow he didn't know before the sixth circuit twice to no avail and he's trying to do it again here before you but you cannot make pictures of children in sexually explicit scenes without knowing that you're going to harm them that's what makes it a crime that's why there's intent and that's why there are the elements of a crime it's  is prohibited by law and the say that you can't i like the like of what mr bolen did here is to say mr bolen picked up a gun and he's going to shoot it in the house in the house he said he claims initially he doesn't know if it's occupied or not two children are struck is no information whatsoever to say that the killed children were injured or killed worked in the house he admits that it appears based on the record in this case that children were in the house screaming in the version agreement say he knew or should have known children were in the house a judge a prosecutor in oklahoma tells them there's children in that house don't shoot at it again the judge says destroy the gun he doesn't destroy the gun he takes the gun and mails it undercover to his mother so he can use the gun a second a third time fourth time in different cases now that person cannot say that i didn't know there were children in the house but yet that's what's happening here unfortunately and there's little doubt that no matter what jane doe and jane roll through me would have a deuce at this hearing that wouldn't matter to this judge and i respectfully submit to you the proof of that is she just charged by leaving judgment liens before she even heard shred of evidence we were going course of conduct was clear from the minute he filed this thing she was not going to consider the law and she was not going to consider the facts and i tell you respectfully i do to you that that is clear error and that the extrinsic harm in this type of activity that is so obvious to congress is so obvious to everyone for well i think it is in the record of the bankruptcy case there's no doubt about that and the objections to that proceeding were done i mean we beggary just wait the least we have our trial but she didn't do so the liens were gone before he could even get to court and again where in this record is that this is news to me if i misspoke i believe that this court is entitled to take notice of what occurred in the bankruptcy court at all levels if i'm mistaken about that i'm sorry and we're entitled to take notice what in the complaint that was filed an adversary proceeding and notably absent in our record currently is the actual judgment awarding the that the that the bankruptcy judge erred in focusing on the creation if you will of these images versus the ongoing possession and therefore disregarded evidence  created the images but i submit to you that the only thing that matters is he's admitted that he possessed these things he also created them but possession is the crime of creation is not the afternoon your honour's claim is stephen hope time counsel for the happily in this pattern the meaner boy and like first point out and maybe we missed it before i'm sure your honour's didn't miss it but there's never been criminal prosecution in this case there was simply a pre diversion agreement that was entered into with the u s attorney because if that material whether there was actual prosecution it is in that there were no found other than that which is specifically in that pre pretrial diversion agreement that's all there weren't any other facts there wasn't a criminal prosecution it wasn't ever a criminal there was a civil proceeding in the united states district court where the gift of court awarded three hundred thousand dollars in damages premised on section twenty two fifty five yes your honor that was done on doing summary judgment again there was no trial ever held in district court on those issues nothing else found other than was in a type that has been a problem that's been the subject for the circuit on the practice and we're not just agreeing that by the way those things exist and they're there i'm just simply saying first there's no crime here at this point in time or do we have the criminal statute we have the district court and i would agree that the it's it's material that there is it's material that there is a determination from district court certainly on  and the district court did determine that there was a violation and the would be an award of to him which is the issue that was being determined at that time a district court was actually whether there was any injury to these plaintiffs that was the biggest portion of the appeals and all of the underlying terminations not so much whether or not there had been a violation of eighteen u s c twenty two fifty two hey which was which was important and i agree with you it's not that there's a big difference there it's just there is no there's no crime there's a lot of us underlying debt for which your client is seeking to accept you know the been that the district court judge in oklahoma did as part of that proceeding order mr bolen to clear the computer of the images he did so and he has complied with both that agreement and the pretrial diversion agreement that occurred post oklahoma here but if you suggest that is compliance occurred roughly contemporaneous with the district court in sit sealed records at that point in time but they were utilized to post the oklahoma trophy in possession after the oklahoma admonition he was not but the the court was and he was he had to testify from those images of the the documents both that is and his office in his home in his car they made certain that the computer he had nothing else on that point in time it would meet with i'm sorry i don't have that at  on the oklahoma event and what transpired there after is not relevant i know this is the this is one of those cases little odd in the first place not got worse they it's basically it's based on the oklahoma action the reason being ohio at least with regard to this type of test money provided to munity to a qualified expert witness to testify it's only in a state in a state matter and only under state law there is no federal law i think gives the same immunity to an expert witness but does the testimony in the district court was really the basis for the pretrial diversion agreement and then eventually no it wouldn't still be a violation of credible ought to use those images in a state court the answer is probably yes but that would not be the judgment in this case that was not the basis for it now it would came out of the oak or it arose primarily either the tulsa oklahoma matter and how can we tell that from the record i think that's where apologize but there wasn't much in the way of dishes all testimony on that and the testimony at trial of this annoying matter was more towards the issue of damages whether or not there was some u nderstanding that that were some extrinsic damage that was suffered by the plaintiffs it wasn't so much focused on those other matters we were simply defending going on the court a deliberate or intentional act it feeds to injury this is a case where as as your honor already pointed out judge me the sixth circuit found it found whether it was proper or not whether it was that there or not determined that in fact mr boyle and when he created the images he was intended to help the criminal defendants not harm innocent children out your the next part is correct and that is that's talking about creation of the images we're talking about possession which was the nature of the pretrial diversion agreement where it arose not so much the creation of the images it under twenty two fifty two the stance you'd imposes with almost strict liability for anyone who possesses these images and it's because he possessed these images as an expert witness that he's been prosecuted at all that's what this that's where this all arose was he possessed to me he show the court demonstrate to the court and jury if that was appropriate the how these were created that's that was part and parcel of the of the possession i guess in many ways i keep referring to creation and i'm telling you that possession is really the issue that they focused on in the pretrial diversion agreement i can't i can't tell you which which came first i can't tell i know that creation obviously came first and has continued his possession at least at the trial was the important part there's also been testimony at the trial under trial of this matter that in fact he didn't utilize the images for any other reason they were utilized solely for these trials solely for preparation of the and demonstrations to the court and used just in the defense of the of clients were being involved why does that why does that matter why does it matter that he only used it in a legal proceeding i think to some extent i'm trying to point out that there's a difference at least in my mind whether legally there is truly a difference because i don't know that there is but at least in my mind there's a difference if the intention was to disseminate it beyond the court room or do you know take these images and make money on them on the internet and something that wasn't on this was one of them at the six circuit say that doesn't matter it doesn't matter whether it was it didn't suit any people in a courtroom civil remedy not as a cripple remitted to the plaintiffs in this case it was a civil judgment the section refers specifically to a civil remedy and this a threshold only because they don't want the presumably want the child they have to prove the amount of damages below one hundred fifty thousand threshold if it's greater yes they have to  reason he had them and he explained as the court in this underlying matter quoted in her opinion that it was done to educate the court the prosecutors and the other parties in the matter not talk harm anyone else that that testimony was uncontroverted by the plaintiffs there wasn't anything else as to what his intention was there was that there was the statement by the sixth circuit in fact these were there that when he created the images he did not intend to harm innocent children those two things uncontroverted in this case and for that reason among others we feel it was clearly the court was clearly right in determining that this step was to sharjah conceivable that you could create and possess child pornography without harming the child  simply to do it as a demonstration for a court and not to in any way harm innocent children he specifically did and didn't do it to harm innocent children and that's that's where the issue of whether he disseminated any further i guess had some relevance perhaps in my mind only but had some relevance to this matter thank you has the right to claim the damages a conviction is not required and only whether is a conviction or not is relevant in any way shape or form that there's plenty of testimony in the record about what mr bowen did after oklahoma but i can refer you to page twenty of special agent charles sullivan's testimony where he says that he there were two other cases afterwards and that the judge ordered him to purge his computer all the exhibits that are attached to the most for summary judgment this is it has to do with the whole course of conduct however is possession enough yes did he admit to possession of possession only yes there really is no provision for creation of child pornography under twenty two fifty two a it's doing the possess or knowingly access to view so it was that the bankruptcy court error then in focusing on the possession only in oklahoma versus the continuing possession i don't think that the bankruptcy court focused on any one thing in this case i think it totally disregard all of the evidence we offered in this matter and which which which which dealt with creation and possession of the only reason of possession i think become so important is that's what he admitted to in his diversion agreement but the bankruptcy court would not consider any of the evidence that was offered on bankruptcy court in this case where that he knowingly possessed this knowingly is intent you can't say that it's a strict liability offense it's not to succeed on proving the elements of this crime and the entitlement to the civil sanctions you have to prove that he knowingly did this he knowingly possessed child pornography because he knowingly possessed images of real identifiable children that he morphed into sexually explicit material that's not the wellcome a standard that might be the standard for that i think that statute but it's not that my twenty three a sixteen willfulness translates as i understand it it's a step substantially certain that is below knowingly substantially certain of causing harm to the geiger ok so tell me why i'm wrong that the geiger case distinguishes between the can't do the act which is what i just heard you describe who intended to that if you have possessed civs child pornography you are substantially certain in this day and age that you're causing harm so as a matter of law would cause harm yes you intend to cause harm that's why it's a crime and because of that congress has said you do this you caused harm and here's your presumed damages starting at one hundred fifty thousand dollars congress would not penalize someone or sanction them with an astronomical figure like that unless they thought that the act in and of itself caused time and you should become complaint compensated for it but the elements are that she has the my client's had to have suffered personal injury as a result of that violation when you knowingly possessed child pornography you knowingly know you're causing harm to that child and the problem with this is just because you asked the question could disappear revokable be purged you're gone we'll never know that and the courts have said so so as a six circuit you know i may have not gotten everything of the record about where these things all went but there's plenty of sources out there that these things could come to light and go viral or whatever the term is now a days gone pow in an instant  and that's why there's one hundred fifty thousand dollars of the damages and that's why to protect children you can't do this kind of thing and you certainly can't do it without claiming you didn't know there was going to be harm if you know he made the decision to morph children into sexually explicit images not adults in the children he could have done that and as the as the court said we would not be here today but he didn't he chose to do an act that is prohibited by congress in an effort in area of the law that i thought was well accepted by everyone that children need protection from this type of conduct but the in the computer day and age and mr bolen's argument that you can't tell the real thing from the fake thing proves that what he did harms them and he knows it would harm them he's the expert in this field this is his chosen profession he chose to make these things and he chose to because he was told in oklahoma these were real kids was ordered to destroy the images and he didn't he took as hard drive out and mail it to his mother so he wouldn't be caught with it that's not a confession