there was insufficient evidence to establish production of child pornography and attempted production or possession under the sexual exploitation of children act and there were two key videos and issue on and on their face the content does not show mr hill used j a fifteen year old girl to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct strongest case for the proposition that the girl must be engaged in sexual conduct beyond either being nude or to be sexually explicit conduct in the definition of sexually explicit conduct in this case the argument and general agreement was that the the signet definition which was the th definition and the statute and the other definitions were explicit sex acts and the fist one was of the serious exhibition of genitals or public  have not taken it as far as you would like us to take it and i want to know what is your strongest case of portie your position that if for example that the girl is simply seen as i've described that that necessarily video must show a sexually explicit conduct i understand that and i'm asking you for your strongest case i mean mean the decided case decided another circuit ye get well then the best case we have is the case decided the th circuit which was the stain kits and and that and that case they looked i just need to be clear here that you think that taking a portrait of a girl lying naked is not enough that then to have adopted that approach well i think the circuits of all said that you do look primarily at the photograph itself to assess but the was the argument to the government is that you can look beyond that and specifically the instruction in this case which we had problems with was that you can not only look beyond the four corners of the video you could look at other things such as the intent or the viewer to gain their own sexual satisfaction whether that's the maker of the video or the viewer and we submit is is is not an element of the statute the intent is the intent to produce a sexually explicit video and  that the argument then comes in the by the government you look at surrounding circumstances but we submit that there are no surrounding circumstances that support the production the intent to produce and they try to bring in the unrelated behavior of the defendant and abusing his children at various times over a five or six year period but those aren't direct in any way directly connected to this new videotaping in this case which was so that our position is you have to look and the defendant's position and preserve throughout was you have to look at the four square on the face of the video itself make that determination you ing the specific content of the video ins is the trial the intent of the statute was to deal with broad based  tears of children in the pornography industry and that's why there was a federal statute that was inactive there really wasn't tended to deal with individual cases like this and  you say that there was an objection to the dos factors but twice the defense counsel both when it was defense eighty five dollars and both of them included six dose factors so why why what is the basis for saying that the defense prior to and during the development of the jury instructions so the fact that they were in there and start with the fact that the judge decided this in their motion and ruling on the motion to dismiss and stuck those focused on actions and focused and focused on the behavior itself let me ask a special a specific question there's in the supplemental appendix on march the defense counsel says we previously objected to the doest factors the problem that i have with that is that defense counsel that same lawyer submitted proposed jury instructions and included the dos factors in them on february th what is the prior objection where is the prior objection that counsel is talking about she objected in that transcript you're asking what was what where prior to that before march th so so so on supplemental appendix page three miss slate says the defense of course objected to the instructions that the court is giving to dos instructions and i'm asking you where is that objection because a month earlier on february ruled essentially that she was going to  february th in the government submitted proposed instructions for each offense in the defense submitted their own instructions for that for each offense but let's let's move move on from sufficiency on how the evidence viewed in the light most favorable to the government would be viewed by a properly instructed jury  is that this the standard that you believe that we should follow in this case yet other words even if the jury was improperly instructed if we agree even if we were if assuming we were to agree with that we wouldn't use those improper instructions to do the sufficiency analysis we would use whatever we believe the proper instructions would be yes i think that there was really no evidence of production which is the statutory offense the the argument of the government was you could look to the prior focus of  defendant on his sexual interest in these children and from that infer that he intended to that he would to do  didn't do this videotape for his own sexual gratification and that our submission is that's not relevant to the analysis in this case and that and i think there is intended to modify the videos over a lengthy period of time that it was a computer and there's no evidence the defendant intent to design them in on the genitals so looking at so looking just at the four corners of this  or videos so our position is looking at those four corners the evidence does not support neither the judge's findings in in the motion or in the and her there's one important decision that i like to make to that if i have time and that's to say that the judge added some factors which i think undermine further undermine the instruction confuse were likely to confuse the jury although the judge acknowledged that the nudity on its own is not enough for a visual depiction to qualif and we'll give you some time on the bottom thank you by the victim the minor here that the court properly in essence instructed the court during a that it's not necessary the minor engage in a low serious act but it's permissible to look consistent with the statute the statute says prohibits using the language from twenty to fifty one essay using a minor to quote in gauge in any sexually explicit conduct so the focus on the statute is what is the conduct of the minor the conduct of the minor doesn't change based on what's in the mind of the person filming or the mind of the person viewing the conduct the conduct is whatever the conduct is so how can any instruction that focuses on what other people perceive or what other people intend have anything to do with what the statute is saying and that's plain text i think getting more granular into this the plain text the the congress has identified and defined sexually explicit conduct in refer to it's exceptionally explicit conduct you know beast yaoi masturbation sexual intercourse i think congress presciently anticipated the possibility that we have here which is it producer who surreptitiously videotapes a minor in a vulnerable state on for the purpose of inciting sexual desire of a viewer and so it's a plain language to serious exhibition and i would suggest gets you to a consideration both of the mens rea of the producer number one and number two most critically no requirement that the child have been gauge an explicit sexual act herself and i would suggest that is can also commensurate with the general purpose of the sexual all of the council but i think that what your answer the law is that you're using the b definition or the nd definition of from the various dictionaries the a definition or the st definition is of or marked by lust from webster's new collegiate definition is all or all focus one one how would you characterize the actions of the person in be definition of that you one us the to adopt the exciting sexual desires definition is a definition that is focused on what would be the impact of the viewer and i guess the the problem that i have with with that is i don't know understand how that really works so let's suppose this this prosecution wasn't of mr hilary who made the video but he had uploaded it to the internet and someone had downloaded it in that person had been prosecuted and convicted the possessing the video as child pornography under  in that circumstance well i think it still works or not circumstance because if we cannot ascertain if for example was let's take an example x context i would add that but i'm asking you about someone charged with possessing ok who just possesses the video we write i'm sorry we're prosecuting them and we've got a sufficien y case what's your argument for why it's fission for for them and recall that the statutory language about engaging in sex sexually explicit conduct is the same in two thousand two hundred and fifty two as it is in close to fifty one for all intents and purposes well i think we would have to show that the videotape that had been passed on and was host asked by the downstream user if you will we would still have to show that  and who's taking a bath the parents are bathing the child and they take a video of this that they send to the grandparents so that they can see you know baby's st bath in and the video in passing shows that the the baby's jenna tail you are you saying absent then i don't think we have child pornography the less so those of let's suppose at the same time that this was happening there was a hidden camera in the bathroom and it is you know lucy vs you can plug in different factors in come up with a different sort of constellation if you will that we need to the ultimate conclusion that this was an to cut to the chase is that the statute says that it's a crime to use a minor to engage in sexually explicit conduct and here it would be lascivious that the conduct child is engaging in whether it's the parents filming the child or whether it's the person with a hidden camera filming the child so how can it be in one instance the conduct that's the exact saying is sexually explicit conduct or in the elicit vs exhibition but the exact same conduct of the parents and the child  just because it's it's videotaped differently becomes elicit vs exhibition i don't understand that the conduct hasn't changed have concluded is by by expressly identifying that is the permissible sexually explicit conduct that is lascivious exhibition that does permit the jury and or a co to look outside the four corners of the image itself and ask whether the producer wasn't gauging and lascivious conduct and that's again a feature of we don't want to demand that children ness we don't want to demand that children display sexual point as we don't want to demand that children engage in and that's let me let me make sure i understand what you just said you believe that the statute can be construed that when it says a person who uses a minor to engage in any lascivious exhibition that that can be construed to mean that intending to use them for the purpose of sexual desire and what i think is that congress understood when they had this catch all category if you will the number six in the definitions they understood that children might wel disuse that the producer had created an image for his own sexual desire in this case but perhaps other sexual desires others in certain cases because he himself was engaged in contemporaneous sexual abuse of that min what why isn't why isn't the best reading of the statute horning to just that it's plain text that the  congress is doing here by saying it's unlawful to use a minor to engage in sexually explicit conduct in then they have a list of like sex acts in then they have kind of the catch all the last one lascivious exhibition that what what they're saying is is that ken would you characterize the child's conduct whatever it is that the child is doing as a  perhaps the impact of the conduct on the viewer would be relevant but i don't see how the intent of the the film or so to speak would be relevant to how you characterize the child's conduct well a couple responses st i do think that the courts are in agreement that at least one definition of  does permit you to look at whether it was done for the purpose of a rousing sexual desire number one but number two most critically i think if you were to excise from coverage the conduct that we have here you would be opening up how to career child pornography in this day and age with the technology that we have for surreptitious recording you would be opening up the category of child pornography permissible to be took to be camera over the top of me and joining wall to take a photograph of a woman on a on a panel that emphasis on stranger i would suggest and without any sort of the contemporaneous so so whether whether the woman is and gauging in a lascivious exhibition would vary depending on whether a stranger is taking the picture as opposed definition of the city yes is that was the production of the image done for the purpose of arousing sexual desire my only point by emphasizing stranger there is that it's difficult to understand when there are here we have the contempora evidence of simultaneous sexual abuse so it's easier for your mom to take that evidence and conclude we have sufficient evidence of less actions on the part of the producer several courts of appeals that have criticized dozhd even though they've said well the those factors are relevant they've said things like will sometimes they're relevant sometimes they are they might be relevant and production cases but they're not necessarily relevant in position cases we'll figure that out when we can figure that out several courts have said the intent of the specific defendant isn't relevant you're telling us that it is right actually yes i am and so you would agree that there are several courts of appeals that have said that have disagreed with that contention right no no and i think the price goes on to offer the examples of of course intent is part of that analysis because otherwise you might have a doctor who has filmed jenna tell you no for the purpose of diagnosis or you might have a mother who filmed her children and had a focus on genitalia so every court and again i may be wrong but every court that i know of some have a group it is true sexual desire all right but that response this is what i was trying to get focused with my questions to counsel for helen is we've had peeping tom statutes on the books for years we've also had these are not the statute but i haven't seen the court and maybe i'm wrong that means keeping tom and that gets your stranger in there somehow undercuts the argument that counsel for appellate is making that the statute in steve king o such minor in gage in any sensually licit conduct for the purpose of producing a will depiction means that mere peeping tom evidence it's sufficient and i agree that the statute is not organized in a way that makes it easy to focus on precisely what congress was intending to do but if it wants to go beyond peeping tom i thought that's what it was gary had by talking about sexually explicit conduct focusing on the subject being view or you know being taped and i don't see the argument here and i didn't see the other court and all records indicate some discomfort about this whole area but the question is what did congress and ten and maybe we don't need to reach that for some procedural reasons but i did want to understand what the government's view of the statute and your responses judge wilkens made me concerned that you are taking the gun permits bird to be a peeping tom statutes there is no requirement of sexually explicit images number one but number two they're getting a reasonable expectations of privacy so i don't i don't disagree that it would be instances where there is but congress was very concerned about and it's difficult to look at the legislative history and this green court decisions in ferber for example and not understand it congress and and frankly look at this the title the statute sexual exploitation congress was very concerned about the treatment of children as sex objects and the psychological if you're let me say the earlier cases focused  more direct treatment not simply a videotape of a minor doing normal things taking a bath going to the bathroom in fact is overgenerous to the defendant because doest looks at it really does ask the question does the lion or herself exhibit wantonness or sexual  i think it is technology and our understanding of the possibilities of child pornography have unfolded the courts have said and congress must of wanted to include in this category exactly what we have here seated it was easier to say oh look at the way the photographer has posed this person look at the way the photographer has used a natural clothing but is things have unfolded i think the courts have quite properly recognised there's a category of cases and again these are the decisions we've cited it to twenty nine or thirty or briefs in different cases there's a category of cases where you have a producer who is taking advantage of whole child victims nudity and using it for the purposes of arousing is his or other viewer sexual desire and so  i don't disagree that there has been sort of an evolution if you will but again and it courts of appeals have had expressed confidence and comfortable ness with this notion of the exactly to conduct we're talking people who could take any photograph of of or video of a child and be aroused by it and objectify the child and view the child as a separate sex object so if we if we start going down that road and considering that as  direct a court's attention to the recent decision from the nd circuit or which talks about a jury properly instructed jury in its context should be told that the intent of the producer should not be does that does that focus get in who aren't by intent evidence relating to the producer the media so i don't disagree and if you look at the war you will see language in there where they talk about there is a danger factors here's here's what i'm trying to create that answer here's what i'm trying to do to get that so in my my prior hypo about the baby taking a bath in it still mde by the parents and sent to the so let's suppose that video was intercepted from the e mail and someone took the same video and they edited it to  on the baby's genitalia and like cut all the other parts of the video out that weren't doing that so they just kind of had and then they distributed that and then somebody is in possession of that is that person who possesses that edited video in possession of child activity was done with the intent to arouse sexual desire and perhaps it was used that way so i think so so just so that we're clear the same conduct why the child in the parents can be sexually explicit conduct in the nd context but it's not sexually explicit conduct in the nd context because i'm sorry the original video the original video neither the parents nor the child are engaging in sexually explicit but but in the edited video now the child isn't gauged in sexually explicit conduct or the person it's the producer who has created elusiveness exhibition of genitalia but that's not what the statute says the statute says that sure judge henderson would you like to pose any questions no thank you judge reviews sufficiency on what a properly instructed jury could find based on the evidence and like most favorable to the government in we have to determine what a properly instructed jury is and that may or may not be the same thing as as how the jury was instructed in this case or what reviewed this court applies the law gets did no review so i don't know if you're when you're in the context as physicians of the evidence if this court can't articulate the law i think then you can take out attorney's office you are familiar with the notion that even though the jury was mittens struck it was a harmless error the only case revolved around  further and say oh and that in the appellate court's view that error could have affected the outcome of the case oh really just ignore i jury been properly instructed it still would have found guilt and i thought a little those were basically two ways of asking the same question and based on what you've been discussing today with some other reason i think i think judge rogers i may have a probably in fact i'm sure i did not ask my question in the most part for man so maybe i can clear this clear this up if the evidence was insufficient then we toss the verdict aside and there is no  nd trial because of the double jeopardy and the due process clause so so that's a different analysis than whether there was an error in the jury instructions and whether that error was preserved or not and whether it's harmless error plain air however we refute that what some courts have said from my research is that  when you do your sufficiency analysis you say what would a properly instructed jury have been instructed and then taking the evidence in light most favorable to the government etc c ould jury reasonably a found beyond a reasonable doubt all of the elements based on those proper instructions and so so you don't base that on how the jury was actually instructed but what the proper instructions would have been and so i'm just wondering novo review basically yes and so so i'm just trying to get get the know if you're asking to assess whether or not there is enough evidence to support guilt this is going to appeal this presume to know and understand it correctly articulate the law and they would apply you would apply thank you your honor what i'd like to respond to is this whole discussion about what if somebody modifies the photographs in the process and course that's part of the assessment under dice or any other assessment and it's been used by the courts but the statute has been modified to include simulated conduct  in a separate section i think under definitions so this situation that was postulated by judge wilkins i think would be handled under that if somebody used the child in the form of taking an innocent photograph and then modifying it so that it was sexually explicit conduct or  which is sexual in nature and whether it's predicting the production part of it is an important aspect in terms of holding the defendant who does that intentionally accountable but it's still the original statute in a statute we're talking about in this case that was charged the portion that statute doesn't involved in the simulation wasn't done and no facts to support that so really we have to look at what was there on the four corners the photographs and the judge's instructions how long i'm working new trial because the jury instructions did not accurately state the law and that's that's our position i'm not changing that session all right i'm not changing their position i was just trying to respond to the lengthy was getting away really from a requirement of there being some sort of act by the child and i think that and what i'm saying is i don't believe that that's so that it still had an act that was just a lesser type of act then the then the intercourse of the other listed actions but to the extent and the other part of that was dealt with by the