it please the court good morning steve city and lisa ma from the federal public defender's office for steven rocket these are two appeals one involving the validity of the convictions a separate appeal involving the restitution are you to be arguing separately then yes you're wrong all right before we start the clock let's go back so you have fifteen minutes total you don't have fifteen minutes each so so how are you going to divide your time pursuing the convictions that we would be ceding that time ok so after twelve minutes then we're going to stop blaming three minutes for rebuttal and that three minutes you're going to decide how you're going to use it who's going to argue it i will ok so you're going to take the three minute summary bottle yes or ok so when all right and this will play into the later case now when you get minutes you're going to be sitting there and if he just by talking and talking you're going to be getting all nervous thinking is he taking all of my time as far as that goes you will get your three minutes are right if we're asking questions of you on the nine minute time that will be on us but i will otherwise cut you off at that point and say you're at nine minutes get up for your three ok so you'll get your career you don't have to leap up and pull him off the podium if he's talking too long all right that that's great thank you the main issue involves expansion of the term sexually explicit conduct beyond the plain meaning of the statute and beyond the definitional section that discusses exhibition the district court broadened the scope of the statute to cover video voyeurism and pictures of naked minors depending on subjective factors whether intended or designed to elicit a sexual response court's precedents in this area has generally involved core lascivious exhibition posing persons where the photographer is at least been in direct contact and been trying to emphasize the  these circumstances where there is not a posing that this is a unprecedented area for this court to be addressing in the first instance i would refer back to ferber the initial supreme court case on child pornography where the court anticipating over breath problems with stated that an expanse of judicial construction could be cured on a case by case basis and this is just such a case in hill judge fisher wrote that th are neither exclusive nor conclusive nor necessarily a political in every situation and this is just such a situation where they should not apply in williams the supreme court noted that two of void vagueness and over breath the statute required list of u s exhibition to involve the type of sexually explicit conduct similar to the others listed they use the canon of construction that similar if you have a list of terms that they should factor should be considered by the jury in a child pornography production case only to the extent that it is relevant to the jury's analysis of the five other factors so what sure should we find the recent second circuit decision spore instructive here and how i think we have put blood with the rule twenty eight a letter and our position is that it's helpful but it doesn't go far enough i think that would require reversal because in stead of having the six factors an independent basis for saying that nudity is sexually explicit conduct that the in in s'pore they said that it only applies to qualify the first five that's not what happened here here it was substituting the cause of the dust factors for the definition of l spore we'd have to have a reversal because it's unconstitutionally broad but we think that the whited case from the supreme court of tennessee is the case that should really if this court a lead on how to handle a case where it's not involved posing where it involves simple nudity in that case the supreme court of tennessee did a fast summary of all the litigation and all of the writing and the legislative history in this area to conclude that when the congress eliminated they were considering the legislative history whether to use this type of subjective intent to help to define lissajous conduct and they eliminated the arguments  cases that provide for de novo review where the essence of the claim is constitutional and that is exactly what we're bringing to the court what instruction had been proposed by your clients then counsel mike clients then counsel twenty nine argument the court the defense counsel was clearly saying this is not covered by the statute i can see that you did not go beyond what he should have as far as what the analysis of  dust factors applies and i think that would the court can see from white it is that this is an incredible and in complicated area but that once you've conducted that type of analysis that the prohibition on over broad statutes on vague statutes the narrow reading required that this is when we'll know over a big about a statute that emphasizes the intent of the viewer and days that your client your client identified himself as the only viewer what's the problem with that i mean i got i hear your arguments but they strike me as pretty theoretical and  really practical in this context or streamlet practical in this case because look how it was exploited this case was decided on the basis of the sexual predilections of the individual and the hope that the jury would be as repelled by the conduct as i think the government's brief was hoping that you would be repelled by the conduct officially repelled and why shouldn't we draw the logical inferences from that because it's a question of rule of law there is a statutory definition that has to be narrowly construed that's exactly what the supreme court said of in williams about this very definition they recognize that this was an area that could be expanded and so that the definition of the crime would be based on the mind of the accused and that's that type of thought crime is not what is find here i'm not sure the risks is so much in the mind of the accused the mind of the viewer but in this case the viewer is the accused so some of the theoretical concerns i have difficulty understanding in the context of your client's case i would think it might be helpful to look at actus reus versus mens rea yes he has to have terrible terrible thoughts about somebody who was fully close recording all these kids when they're nude without either without their knowledge or asking them to send photos and all of that for his own period interests so i am  you know it it's not like someone else sees a nude picture of a child that's not that it and that they didn't take the picture and they weren't taking them for yourself for themselves that your argument makes sense there but he's doing it you know what why else would he be doing that for a crime to be not big by and defined by subjective factors the pend on this is a crime if one person does it but not of the another person does it that is it splits off the actus reus and it's i think the skilling case really helps us in terms of all when people have secret cameras or they're trying are telling kids to send pictures and talk talent he won and do all of that it's it's not like you're being you know it's not like it's a dragnet to pull people and on a crime that they wouldn't know what's a crime he knows it's a crime yes it's a crime of video voyeurism it's punishable it's as some of the commentators a professor repulsive and creepy but it's not benefactor of child pornography punishable by a mandatory minimum of fifteen years the statutes of federal statutes have to be narrowly construed in order to only when congress has clearly and explicitly stated that they want to take federal criminal jurisdiction should that apply ok i think i understand your argument knew where you're from if you should time so now but go to your colleague on the restitution issue require that the government show proximate cause ation and calculate the loss amount with some reasonable certainty that it's this is a pretty modest restitution award and how do you distinguish this case the principle here is large it involves statutory interpretation and the rule of law second indo the there are two issues first about the future counselling with respect to future  counselling for example indo and lady they worded future counselling cos for six years into the future and in laney it was that that was because the psychiatrist testify that the treatment would take six years and with counselling cos it's easy to see the connection between the harm in the loss it takes many of years of counselling to get through trauma and that's what the psychiatrists or psychologists testified to in those cases but unlike the psychological losses the educational losses in this case bear no reasonable relationship to the offense and  example a nonprofit agreed to monitor children and to implement a catch up program r g t equivalency program but in this case there was no evidence that it would take for example g g six years of schooling to catch in this case there wasn't evidence that each of the children would need that much education to catch up to the amount of schooling they missed and indeed there was no finding that  hundred twenty nine the court is required to define a causal standard that affects the statute purposes not to apply tort law concepts in a mechanical way in the restitution context so in response to your question in this case a district court applied to long standard the district court applied a standard with respect to tort law not with respect to this court's guidance into this statute in particular ok unless there are further questions by the panel if you s time thank you on behalf of the united states the jury instruction we've been talking about this morning the das factors it was not only provided by the defendant but the defendant embraced each and every one of those during his closing argument when he urged the jury to acquit his client and he cited every single one of those factors including the subjective intent factor so to raise this for the very first time on appeal leaves this court with virtually no record claim there was that what's listed vs is unconstitutionally vague and this court said no it isn't and it relied upon the six factors that judge simon gave in this case to determine that in fact the images in that case vias now since weigand this court's adoption of those factors has spread throughout the country virtually every federal circuit court in the country now uses those factors when there's a sufficiency allegation about whether or not these images constitute alyssa vs exhibition in fact this court specifically affirmed a dos factor jury of struction in one nine hundred ninety one  so regardless of the standard of review that we look at we think it's invited error and plain air or if you even want to entertain their constitutional challenge and say it's to novo there was no air of the defendant has not said nor has the government been able to find any circumstance in which looking at a defendant's own subjective intent and here that's mr rocket he was the producer he didn't possess the stuff he didn't transport it he created it he hid the cameras he barged into bathrooms with his camera clicking when the children who were invited to his hotel room were taking showers it's his intent that we're looking at and i'm not aware of any authority for the proposition that a criminal statute becomes unconstitutional by virtue of a jury examining the defendant's own state of mind that makes no sense all of the cases of the defendant sites that raise concerns about subjective intent focus on the intent of law enforcement look at the lack of the potential for arbitrary enforcement of the laws that's not what we have here the jury was properly instructed that it should consider and if you look at the instruction judge simon gave this is that twenty eight after listing all of the factors he says an image need not involve all of these factors to be alyssa vs exhibition in fact jury you determination should be based on the overall content of the image taking into account the age of the minor so the suggestion here that this jury was told that it could decide that these images constituted child pornography based solely on the defendant's subjective intent is simply wrong that's not consistent with the instruction we agree that the statute has both a subjective and an object a component and both of those were better in this case both for the production count count one which involved the children whose images he took surreptitiously in the philippines involves the testimony of those children who came to the united states and described how mr rocket would barge into the bathroom at the hotel and staffing photographs of them and includes the images that he surreptitiously captured here in oregon so unless the court has other questions we think doest has already been decided by this court in both w aravind and by the other federal circuit courts to address it there is nothing unconstitutional about asking a jury or other fact finder to look to those factors in deciding whether or not an image constitutes child pornography you want to briefly address how the government what your position is on did the government meet its burden to prove restitution is warranted for future college tuition costs and is it sufficient simply to present testimony that th educational assistance and wants to go to college and yes your honor there was more than sufficient evidence to support judge simon's finding on restitution he heard not only from dr harner who explained that the harm that these particular these are  the four victims that we're talking about here were all from the philippines so none of the oregon victims sought restitution in this particular case so the it was the four philippine victims who in fact testified about their shame and dr during her interviews with them they explained that not only were they traumatized psychologically but then they were stigmatized in their communities that was why they were struggling to basically reincorporate back into their own local community dr harner explained that the educational expenses were needed to help them essentially change schools because they were no longer welcome or comfortable where they were because their local community all knew about what had happened to them with mr now if you had been if had asked for sixty thousand dollars a year for each child would that be different than what the request was here what was the total amount requested the total amount requested for all for was slightly over twenty two thousand dollars so we're talking about a relatively modest amount and in fact one of the victims i believe it was and she had asked for i think ten years of educational expenses and we trimmed that back to two so there was tailoring that went on these expenses were well justified both by dr hardress testimony and the testimony of the victims that you're in is there were several other issues raised in the opening brief and the reply unless the panel has questions about any of those i would submit any questions to judge fisher we don't appear to have any additional questions thank you for your argument thank you are all right you have three minutes i'm making honor the government is telling us that the das factors are a great success that have been adopted throughout the country that's just not the case read the supreme court of tennessee's opinion in white and and they've show that the das factors are viewed entirely different in different places and even the case cited by the government in their twenty eight j letter again shows an entirely different approach and critical approach to these factors that are  add on's to a statutory definition under those circumstances the court should stick to the objective standard that is set out in the in the definitional section and in williams and does not and this story whatsoever because for one thing the court in in hill has said this is judge fisher talking that there is that the das factors are not always a political and this is the classic case by case determination that should result in saying no they are not a political at least not the six factor under these circumstances and we also know that it applies not where where the person involved is the viewer is the defendant having real trouble understanding why this case is one where the six factor wouldn't apply because nudity nakedness is not used exhibition it doesn't matter who is looking at it or what they're thinking it does not constitute a sexual conduct that is covered by ferber covered by williams covered by the plain meaning of the statute and we know that a lot  clubs that suggest the contrary people aren't going to these places your client wasn't looking at this picture to study anatomy no but he was not and it may be viewed video voyeurism but that's different than being manufacture of child pornography covered by a very explicit statute and we know there's a difference for nudity because the author of why again judge noonan in sitting by designation in the third circuit in doe a case cited on forty one and forty two of the opening brief finds that there is not even sufficient information to get to the dust analysis for some pictures involving nudity child noted it nudity and on the other ones finding that it's insufficient and throwing out the civil case so we know that this is that it's not any any certainty we're dealing with it in the first instance here and the court should follow even in difficult circumstances the requirement that there be narrow construction of criminal statutes that vagueness be pulled in and not expanded by judicial construction thank you