please the court my name is lenhart field and i represent the appellant michael larson this case raises the question of whether federal child pornography statutes that require a minimum of fifteen years in prison on conviction can statutorily or constitutional be applied to photographs that were taken within the context of a consensual legal relationship with a minor who is above the age of consent where there was never any distribution or intent to distribute as argued in the briefs the answer both questions is no well what would be your response to your client argues that his intimate relationship with j p was not illegal and that's entitled to privacy considerations what's your response to the supreme court opinion  vs united states which suggests that taking pornographic pictures of a minor race is different concerns from the minors participation in sexual activity because of the possible dispersal of the pictures and their lasting effect well i think that there's a couple of responses to that first of all i think there's a distinction between pornography and intimate photos one is a commodity one is meant to be distributed it's intended to be distribute intimate photo on the other hand the something that isn't meant to be distributed and it's not fungible so that a person who takes a photograph with their intimate partner has no greater likelihood of distributing that photo than they would have distributing a photo of  dog or their or non pornographic photo so i think that's one of the issues cases where individuals have taken intimate photos during the time when there was a relationship and then once the relationship ends one of the parties to the relationship distributes the photos without the greenman of the other party so just because there are photos taken during an intimate relationship doesn't preclude distribution at a subsequent time and your honor there are prohibitions against nonconsensual distribution of photos whether for minors or adults and though those absolutely are constitutional they absolutely should remain in place is a distribution issue here no there was no distribution in this case these photos were in fact found on the minors computer and they were all so found on a camera which the defendant sister brought to the police so they never were distributed anywhere but that's the harm that the supreme court with articulate in about why this is criminalized danger of distribution that at a future point well your honor i think that there are many items that are dangerous that we nonetheless allow people to possess such as firearms and prescription drugs now it's true that those could make it into the stream of commerce that could be dangerous somebody could break into someone's home and steal a firearm they could break into someone's home and steal prescription drugs but we have prohibitions against that and those are sufficiently sufficient as both a deterrent and a punishment congress has seen fit to prohibit the conduct and i don't believe that that's what the statute covers and in looking at the statutory language in particular focusing on the term use the production statute requires the norm to be found guilty or dependent have to employ use persuade et a minor to engage in sexually explicit conduct so in a consensual case it really turns on the meaning of use and this court has said in overton that section twenty two fifty one requires proof of active or course of conduct by a defendant upon minor and that's a definition that squares with the supreme court's definition of the term in use in failing and in this in the context of the consensual case it simply doesn't hold and the difference in age between your client who was in his forty's i think that's correct and j b at the time was sixteen that's correct why isn't that enough  coercion i don't think i don't think that it is without more and the reason is that the state of washington has decided that at sixteen a minor is capable of making decisions about her own sexual relationships thirty three other states have drawn the line at that same that same age of sixteen in fact the federal government with respect to federal enclaves has drawn that same line so if a minor is old enough at that point to make her own decisions about whom she has a sexual relationship with then a minor is also old enough to make decisions about whether to take these photographs and in this case you have to show a violation of the commerce clause right the federal government still say that if you take a picture of someone under eighteen that you know if that's considered child pornography but but that doesn't hold again in consensual cases it makes perfect sense in cases in which there is no relationship and there is no consent because those photos are fungible commodities and they are either going to be distributed or they will impact the interstate market because they're replacing something that would be distributed but when someone takes a photograph of the person they're in a relationship with it's not fungible if that photograph is destroyed mr larson is not going to seek out pictures of other sixteen year olds so there is no commercial element and that's what makes this case different than all of the other cases in which this in washington unlike the the interpretation that the federal government urges here in washington the state or the state courts have right in an element of non consent and that's demonstrated by the d h case state versus d h was decided in the briefs in that case we had the defendant who took explicit photos of several classmates and the court dismissed charges where there was a finding that the minors had actually consented to the photographs and in the appellate case the appellate court also alluded to another instance in which this defendant had persuaded or actually not persuaded just asked the sister to disrobe for the camera and again the court said that would not rise to the level of sex sexual exploitation of a child so washington avoids all the constitutional problems by reading an element of not consent counsel would you agree that the term of youth is not defined in this that i w use we are stuck with the definition in the overton case or can we look at the dictionary definition how do we define that word well since congress in define it the standard would be that it should be given it's ordinary or common  that is a definition that makes sense because it allows for consent as a defense instead of creating a strict liability offense which is what the government is searching about the dictionary definition could we rely upon a dictionary definition of use what you or i think the as i put it on the briefs the dictionaries tend to again use an element of active or coercive force that it's not simply it's it would be satisfied by simply picking up a camera where the person was consenting to the photograph being taken unfortunately dictionaries vary in their definitions and so i would urge the court to reaffirm its definition in the overton case that one avoid a strict liability statute and the one thing that i want the court to to be mindful of is that creating a strict liability offense like the government is searching means that upwards of thirty percent of high school students are guilty of production of child pornography many young people would be facial challenge i thought you said it's a facial challenge and now you're talking about this particular case on a facial challenge well i think with an over breath challenge necessarily presupposes that we're talking about more than more than just the defendant however as applied to his conduct it is overbroad because it sweeps in constitutionally protected conduct which is his private relationship with his girlfriend who is  legal age honor there are other constitutional problems that are created if this court does not read an element of active or coas curse of force one of the problems is that the statute would violate the tenth amendment and this case i want to stress this is an extreme outlier in terms of what the government usually prosecutes under twenty two fifty one twenty two fifty two unlike virtually every child pornography case for which there are reported decisions we have a single subject who was sixteen years old that ship of the state's age of consent and who had in fact consented to the relationship and the photographs she produced many of the photographs at issue herself she computer she saved them until they were seized by law enforcement there's no evidence of distribution so we have a very rare case here somewhat like the bond case for we have the government coming in and taking a statute that's aimed at a completely different kind of conduct and trying to shoehorn it into child pornography statutes and is a little bit different isn't i mean that was under the umbrella of the treaty on chemical weapons in the prosecution that was  there was a disgruntled spouse who found out that her husband had impregnated a coworker and put some chemical stuff on door knobs places where the might encounter it that's a little bit different it's certainly different thoughts but it's the same it's the same type of government action which is to say the state of washington is perfectly capable of sorting out whether relationship is exploited or not there's certainly no congress element in this case so the federal government took a statute that is aimed at the child pornography market it was aimed at the production and commodification of exploited children we haven't we we clause challenge to the statute as not it is but all of the congress cost challenges have proceeded on this theory that just intrastate production of child pornography doesn't affect interstate commerce and courts have uniformly said no it does affect interstate commerce because for the very reason that it's a functional item and that's that's different when you have a consensual photo because the person doesn't want to picture any sixteen year old or any fourteen year old person wants a picture of the person they're in the relationship with and that's why this case is different and it's different because the government really doesn't prosecute these we have only one case nationwide that is similar this case and it was in a different procedure a posture fourteen year old it was part of rico so there are there are many differences between that case but i've never seen a case like this in my years as being a federal defender i never saw a case like this and there's certainly no reported decisions that involve a consensual relationship with one minor who's about the age of consent also could we go back to your over breath argument for a minute to agree that in order for you to prevail on that argument we would have to characterize the activities in this case  good morning your honour's helen bruner on behalf of the united states council has characterized this as a consensual relationship and it's certainly not my intent to suggest that  testimony at trial was that che be didn't agree to participate in the relationship but i think that ignores the rest of the fact in this case and this is after all as counsel has indicated in the opening brief and as applied challenge constitutionally and that's what page twenty of the opening brief and those as a result i think the total facts in this case are what this court must consider so and that includes the fact that what we're dealing with here is a somewhat troubled sixteen year old she  testified that she had originally thought that mr larson was going to help her get her life turned around but she also testified that he encouraged her to skip school to spend time with him and he supplied her with drugs ultimately as the court found her to be credible he took it to the police told her to lie about her family at the time he when he spoke to the place lied about their relationship he denied that their relationship was sexual and in fact to the to that extent went so far as to say he she wanted a sexual relationship any was rebuffing her and that at least until she was eighteen so it is in that context that i think we look at this the challenges here and it is in that context i think that those challenge is always important this is also a case where mr marson brought  went to law enforcement at least allegedly concerned that relatives of j b may have been prostituting you're correct that is absolutely correct your honor and that's how the investigation of this started with a task force and this is a this is a use prosecution the government's theory rises or falls on whether there was a use within the meaning of the statute correct absolutely the none of these images were found on his cell phone they were not but i would point out to the court that the testimony at trial wes that he had three cell phones and that the cell phone that was found at the time was not the one that was seen in the photograph maybe i can ask the question another way was any phone cell phone attributed to mr larsen found with these images could the statute be applied to the government's view of this to two seventeen year old students at the university of washington to who were engaged  don't think that would be applied that's why i say context matter asking the panel to rely upon the good nature of people who occupy prosecution office but you do agree it could  and let me let me also say your honor before i answer that question i don't believe for example that it could be used in a context where a an individual took a  selfie that's different from the two two individuals i think it requires two individuals in other words someone in the minor and someone else that's the evidence in this case that ju some of these photographs absolutely but one could i mean the theory here was an aiding and abetting theory to be a selfie and they have to do it together no i what i was saying is if she took pictures of her that were  sexually explicit as that term is defined in the statute i don't believe the statute would cover that and did she distribute any of these forms she did in the sense of providing them to him testified to that all of them other than that not that we're aware of no evidence in the record so the photographs were found some of the photographs were found exhibits five through nine were  court should read into a requirement into the use element of the statute which is what this case involves some element of course you agree i do not your honor i think  case is that from the other circuits those at the first second sixth in a circuit said have analyzed it are correctly decided on the language of the statute includes employees uses it's a minor is in the end either a sex act or suppose is used in the sense of the photograph is taken of that individual and it's a photograph that meets the definition of the statute or taking of a photograph you know in a intimate relationship that's legal under state law or there's been no distribution  or any of the other terms in the statute is prosecutable because by because a minor was used in this case and then the definition of minor is under eighteen is ironically also true for the state of washington so there is no difference between the two statutes the state of washington statute also includes and employ a say that it would be that broad i don't think that anyone would prosecute that case and that's why i keep coming back to context matters and the over breath challenge here was as applied so i'm not  suggesting for a moment that if i were standing here defending that that you shouldn't have some concerns about over breath but that's not the case where life suppose in the bond case there must have been somebody before it got to the u s supreme court saying what in the world are you doing prosecuting someone for smearing some chemical substance on door knobs and file cabinets and the like under the auspices of criminal statutes that part of the difficulty here is if this were a statute where we weren't facing a fifteen year mandatory minimum my guess is it would not feel so we wouldn't be looking at a range of conduct under the statute in be as concerned about whether that range of conduct fett and i will fully acknowledge that but and i would certainly be more comfortable if we had a range of mandatory minimums that apply to the conduct but nonetheless i do think that the conduct us fit the statute and the reason for this prosecution well not prosecuting the relationship between simply the relationship between someone who is significantly older than the sixteen year old victim but the entire context of the case which is i think where i know i differ from counsel on that point so the two seventeen the court in d h struggled to deal with that in the state system but it also reads the same way so whether when you're faced some day with that and i hope you are not faced with that case which it is not that case perhaps we would read it differently  in terms of the one other i guess the one other point is with respect to the tenth amendment claim obviously the government's position is because it's covered by the second circuit case or the right decision in which the defendants actually raise the overton case in support of their support of their position and those courts rejected overton so so i think that that's demonstrates that this court is certainly not bound by that but that that interpretation obviously creates troubling precedents which i think your honor pointed out with even overturn there is a requirement of proof of active or coercive conduct so it does not have to necessarily be course of conduct that this active and that's that's correct your honor but active again implies some element of non consent now  how this active imply an element of non consent well in order to to get a person to pose in a sexually explicit manner that actively there has to be some sort of  overcoming will well it's just simply activists opposed to passive passive i think would be something like we have here or somebody saying hey let's take photos we look good together similar to hey let's go to lunch i like talking to you those are those are not active that's not active force that's that's simply how about how about we make a mutual decision which is what we have an issue here you have a case that  argument as to what x means well your honor the only the only instance we have of this it over ten then the court was actually doing with a different issue so didn't elaborate on it and of course other courts who have been confronted with will concede that however i'm urging the court to reaffirm that language to avoid the constitutional problems that are created by the other circuits and i think having to relying simply on prosecutorial discretion to is not the case of two seventeen year old we have a case of a sixteen year all in a forty something year old man so we don't we don't have that particular case and that's not something that we have to resolve today and we have to resolve the case of the forty two year all or forty five year old man who took pictures of a sixteen year old well your honor i certainly no parent would be happy to find out their sixteen year old is dating a forty five year old on the facts of this particular case  sixteen year old was already a prostitute in a drug addict before she met mr larson that make it better or worse you're right i think i would say the same question because arguably that person is i mean everyone stomped on they're totally down and out without any sense of value and you're on the other the other half of the sentence is that mr larson him himself was an emotionally troubled man if the court read his twenty two page letter to the to the court at sentencing i think you can get a flavor for what his life is like and what sort of person he was but there's no question that this is a relationship that he had to go to the police when you're in that you know might delivering your head yes and i think that shows his as well as the twenty two page letter but i think that it's true that nobody likes the idea of a sixteen year old and a forty five year old however state legislatures across the country have drawn the line at sixteen and said that's all enough to make your own decisions even if in retrospect those might be decisions that aren't advisable so i think we have to look at it through that lens but the problem is with the we interpret in the term the way the government urges is that regardless of the age of the parties we have a situation where there's a strict liability standard and that that's what's troubling about this case the particular facts the court found there was consent found this was a love relationship and unfortunate the record is somewhat thin as far as the facts but  but the finding that we have that subject a clearer view is that they were lovers or friends or whatever is what the court said and that there was no force or violence and that's important in this case as well all right thank you thank you your honors and i would