claim whether the government presented sufficient evidence of the required element of federal jurisdiction for both counts of conviction the government here has conceded that it did not offer any proof that any visual depictions of child pornography themselves had traveled in interstate or foreign commerce instead the government's theory of federal jurisdiction here rely solely on whether the materials used to produce those visual  depictions themselves had been transported in interstate or foreign commerce so what we have issued here at issue here is that a hard drive and a memory card and the outcome of this appeal comes down to a single question when the visual depictions were copied onto the hard drive or copied onto that memory card both of which remain a factor to receive was that an act of production and the it's very similar procedure and a factual scenario there the person mr wilson was charged with possession of child pornography under the same statute and you know we're diskette computer just gets an issue that contains the visual to actions and a court held that the government's evidence was insufficient because it didn't prove that those diskettes were the materials that were used to produce the visual depictions at issue so i think it did me saying there a bill that would always be the case or that it is possible to prove that is enough to convict for his charge and that the problem wilson was we just didn't have the evidence well your honor that's precisely right the court recognize that it's possible that computer just get sort of items that we think of the storage devices could be used in production but the evidence there was insufficient there was no evidence that those diskettes had been used in production and therefore the court vacated the convictions that is the same state of affairs we have in mr hernandez rodrigo's this case there is no evidence presented that the  hard drive or the memory card were involved in the production of the images that you know the issue and the government concedes that and that is why the government's position is that production doesn't mean initial production production according to the government's theory on appeal means copying but if ever i think that's why understanding wilson is so important because necessarily in wilson the diskettes contained to the images either they were used to initially produce the images or those images have been produced elsewhere and then copied onto the diskette if the government's theory  today were correct then in wilson but copying would have been deemed production and the evidence would have been deemed sufficient it was not the evidence was held insufficient because production production is not  copying as this court and a lot of rolleston were trying to define what a visual depiction and in that case we were pulled into the we need to talk about ones and zeros and pixels and it was really hard to determine from that record what we were talking about as far as visual here on i think the court did get into the ones of the year and the artist of describing how things could be produced but again if mere copying onto the diskettes were sufficiently counted as production and that would have been sufficient it wilson i don't think that there's any way around that conclusion i mean it's logical that if the if those images are contained on those diskettes you are either produced on the diskettes or they were copied onto the disk and and this court held that because the government hadn't presented evidence of which of those two scenarios the evidence was insufficient the necessary implication of that is that one of those one of those scenarios enough production would have been sufficient and the other scenario mere copying would not have been sufficient so i guess i guess it would be your position that the statutory language would need to read something along the lines of if it was it would be unlawful  to copy visual depictions onto materials shipped or transported in interstate commerce that's you would be looking for that word copied as opposed to produced that that could be one way the government could establish jurisdiction another way the government could establish jurisdiction as it doesn't so many of these cases is to prove that the visual descriptions themselves have moved interstate or foreign commerce not the record here is the government has conceded and we know that i think we know that in this case that the pictures and videos were all made in oklahoma and there was no interstate activity as regards where the victim was and the movement of the images in interstate commerce so in order to to prove interstate commerce in this case it seems to me a simple way would be the camera the video equipment that was used to produce that would get you there pretty quickly with respect to the court's last point yes if there had been evidence that a camera used to film and create visual depictions that that camera had been manufactured overseas or in another state that would be sufficient there is no such evidence here i do want to clarify my response to the earlier part of the court's question i think the way i would describe the evidence is there is evidence that some of the images were created within the state of oklahoma there's simply no evidence as to the others just to  cases st of all of course the crime is charged and then the issue that's raised before the court that the court's addressing in storm we were trying to determine this will depiction and to the division among the court at large was whether or not there was enough with a visual image to pass interstate or whether the visual image had to be on something say a disk that had to move interstate and we concluded that it was enough to know that the image moved interstate south yes the substantive content you're at that's correct and the word the implications of the government's position here would be that if if each time an image is copied constitutes a new act of production then the government in that type of case would have to show that that act of copying involves a child which of course the government didn't do here and couldn't do in most cases i  either may have misunderstood my point i think what i'm saying is the implications of the government's position to mr hernandez refreezes case i think could have untoward effects for the government in other cases such as a case like starr because the statute at issue would start to require that the act of production involve the sexual exploitation of a child if the act of production is transformed into an act of copying the government often can't and and again didn't here produce proof that the act of copying involves a life child as the definition of visual depiction changed hands either wilson or stern i don't think so your honor the statute has been amended several times what i would say is that the definition al statute has been amended i believe several times since wilson and the definition there are references the word producing discord and wilson i analyze that  in parallel with the look at the word production which is the word at issue here and i think common sense recognized that it's the same that definitional provision applies to the entire chapter chapter one hundred and ten dollars of these types of offenses so i don't think that there's any grounds and the government has never argued that somehow the way this court instrument purpose producing should be different from the way this court in this case should put into interpret production does it matter that in the two thousand a change in the definition visual depiction that it was added any data which is capable of conversion into a visual image that has been transmitted by any means whether or not stored in a  permanent form which would get you to copy so your honor i think if the government's theory here where that the visual depiction had trans had been transmitted in interstate or foreign commerce that definitional change if the government were arguing in this case that the visual depictions themselves had been transmitted in interstate or foreign commerce then that definitional expansion perhaps would help them i fear the governments sold is that the materials used for producing the images themselves those materials transmitted and again as the court mentioned earlier in a some of the cases reflect if there were proof that the camera used to produce those images had been a manufactured overseas that would be sufficient but we don't have that evidence here the evidence is simply insufficient again under wilson and starr if i could reserve my remaining town so and so we haven't heard anything about the skiing ca e how does your argument square with skiing your honor i think a clue i have two responses on skiing st of all a close reading makes it clear that the court was the hol ding depended on the plane error review posture of that case which is not a political here here it's conceded that we have to know review of a prisoner dish but in scheme the court very much used the exploitation of a child as charged in count one when he sexually abuse of minor stepson k r from july two thousand and fifteen to february of two thousand and eighteen during each of these sexual acts mr rodriguez used k r with the purpose of producing eventually depiction the five hundred and twenty four visual depiction or later produced using materials that were transported and or  ting foreign commerce mr rodriguez also committed the crime of possession of child pornography i possessing here external hard drive and a memory card that contains a visual depiction  creation of the images well in with regard to two thousand two hundred and fifty one the sexual exploitation of a child the images were initially created and that was itemized  that it wasn't until the images were later copied onto the extra storage media being the are external hard drive and the memory card that those images were produced with under the device the took the pictures that was not evidence that was presented to the jury and as i stand here today i think that is an end now but i don't think that actually captured the original child exploitation that original abuse may never be known it is in fact and but don't you think it would i mean you you wouldn't have to be arguing i don't think that it's on reasonable that there are other alternatives that the statute and the law provides for the government to peru and it's also consistent with congressional intent and i think the court in the sturm case addresses the child pornography acts throughout history and expressly recognizes that the separate harms that are created by the creation of the imagery i receiving and distributing child pornography it is clear that congress intended to criminalize the the receipt the says the visual depiction is creating only once what do we do with that in this case because you're relying on copying yes and i think what to take away from the the reliance on this this quote hey saying is that words do have meaning and in sturm this court chose to use the word creates not p so while the sexual abuse that occurred or was created when mr rodriguez copy of the files i'm sorry let me rephrase that the sexual abuse that mr rodriguez committed was produced when a with coffee we are not creating a new child enticement or child exploitation acts it is the is the creation continue reading that that quotation is court expressly recognizes that the visual depiction can be contains not only and tangible form but also in any other form including a copy of the emmet so while he was honest rodriguez was charged and the evidence proves that and he was convicted by the jury of producing the copies not the originals at the visual his sexual abuse are you aware of any case that says that copying images onto a medium such as an external hard drive is not production not to my knowledge and the only the only case that that i have it in will say and which says it's were not for close to the idea the government just didn't prove it what was your theory before the jury what evidence did you provide to the jury has regards production that when the images were copied from whatever original device captured the original abuse when the images work copied to the extra hard drive that was manufactured in malaysia and were copied to the the memory card that had been manufactured in china and that that is when production occurred and did did have the agent referred to as a word production not to my knowledge your hon refer to that word in your closing argument not to my knowledge how do we hook this all together to say that there is a conviction here when the standard is to prove beyond a reasonable doubt that production occurred that as a matter of law this court has relied on the part of relied on other circuits that have concluded as a matter of law that copying is production  plane air we can be satisfied that this conviction that's a different animal than what we have here and i understand the court's opinion are but the court saying what i think needs  clear is that in scheme the court recognized that this was a matter of law in other circuit and i think the court should also consider the fact that other circuits as a matter of law revealing cases to know about have relied on the court's decision and seen for that exact proposition that copying is hurting the jury instructions in this case use the word producer   nd element did include production official detection and day so would it be it despite the fact that maybe your agent didn't testify with that word and you maybe didn't use the word production or produce in closing argument would it be your position that the jury necessarily concluded that it was produced by coughing i think it's reasonable for  honor briefly again with respect to wilson the only thing that was left open and wilson was the fact that in some future case the government put it could have put on sufficient evidence to show that these actual production had themselves been transmitted in interstate or foreign palmers the question of whether copying constitutes production was necessarily addressed in wilson against the government's position here because again there are only two ways those images could have ended up on those diskettes through initial production or through having been copied there and then finally to loop back to the critical question earlier about the time is my friend across the aisle for argument about the word creating whether creating means producing i think it's clear in the story i'm on bach opinion that they're using creating as a synonym for producing the statutory language at issue there was producing the court alternatively used creating and many in the same paragraph but clearly what they're interpret ing and talking about is the word producing i thought we were talking about the definition of visual depiction of course  holding up the case but absolutely your honor but in terms of the language the court has quoted and i have quoted in my briefs about a visual depiction is created only once and it's not created a new each time a copy happens i'm simply saying i think it's the only