as i began my argument today i also wanted to very quickly recognize madeline bascule who was a volunteer law clerk in our office and was very helpful in putting together the briefing yours there are three issues in mr four tears case which we brief two of which i'd like to address in this appeal mr fortier was convicted of production of child pornography in count one after a jury trial and was convicted in count two of possession of child pornography he received in total a twenty five year sentence the st issue that i'd like to address before the court is whether was sufficient evidence to convict mr fortier of production of child pornography the rd are you leaving the constitutionality question for the briefs that i think i ought to spend my time errors the sufficiency of the evidence is only with respect to count one and the evidentiary errors would of course require a new trial on well one or both counts with respect to sufficiency of the evidence on count one the court's well aware under eighteen u s c two thousand two hundred and fifty five in order to prove by virtue of the statute or in order to convict by virtue of the statute there's must be proof that a person used a minor for the purpose of producing child pornography and that suggests a specific intent i mean that's a classic specific attempt language but when must that specific intent be for honor courts have been all over the map on that issue now if if the court work to follow the approach that was recommended by dissenting judge williams in the torres case out of the disc d c circuit intent must be formed at that before any type of recording or production but our cases seem to suggest that it could be certainly can't be later but it could be coexistent with the this matter before the district court then in addressing this issue we can pretty much consider any evidence that was presented by the government up and tell the sexual come up through the sexual encounter  but not after or let's the beginning of the sexual encounter i suppose that's right your honor and by the government's view it seems that they would also believe that evidence that kind of post dates the sexual encounter would also be relevant to the issue of intent and could it could i mean it could tell you what is the tent was at the time but i don't think i don't think to the extent they're arguing that he found the intent later i don't think that works within our case so there's a little bit of  was a party that mr fortier had where he invited these two young women everybody had alcohol everybody engaged in sexual encounters and then there were videos now the crime it before the district court the government relied heavily on the videos themselves played played them for the jury and then relies on appeal on evidence of what happened after the encounter that i just i think that can be probative so my understanding of the back and be evidence of the intent to record i mean obviously there needs to probably be more and i think there was more here but don't you think that's probative of what is intent was before the videos themselves the way he the way he recorded those videos of framing of the  in the proper case i believe that it's true that the production itself may be probative of what the intent is a don't believe that this is the case the court has the videos before it i'm aware that the clerk's office had asked the asked for the videos to be sent they're very short videos they're not of high quality or shot of shot on a phone which is in distinction to how many of these cases had come up where there is a finding of specific content rappler where it involves a polaroid and some evidence of maybe props that are used during the encounter other cases where there's pearson where there's a pretrial pod something like this is these are videos they're very short videos recorded on i phone the government argued before the jury that in the video that identified i think is exhibit one that there's pointing the video speaks for itself i'm not sure that it let me follow up by understanding it's there was also a recording of i guess some playing darts some of the some of the girls were nude while they were playing darts there's and i know you challenges there's also evidence of him taping his ex girlfriend they aren't sexual acts all of that seems to indicate or bear on his intent to bring these miners and perform a sexual act and record them i mean that we could the jury couldn't further that that was the intent going  brief that those were the only other videos that were before the jury but the fact of it was that the jury was also aware that there had been videos taken from mr for tears phone that night which had since been deleted believe it was officer hansen who testified that based on his forensic review kindo that there were some videos that were no longer there so it isn't quite as clear as you know suggesting where where we have that night is production of either child pornography or pictures of young women who were without clothes on and with respect to mr fortier's girlfriend a art and the evidence that mr fortier recorded some encounters with her i'll address that in two ways st of all as i as i referenced in our brief the notion that that recording between consenting adults of a sexual encounter is probative of an intent to produce child pornography i think is just too thin to read i tend to agree with you but here's here's the catch your client's defense wise i was using my flashlight function on and i didn't know i was recording and so the fact that he has recorded sexual encounters before shows an absence of mistake it directly counters the defense i think possibly around a butt but really the evidence then should have just been that he knows how to record why isn't it relevant that he's a collector i'm sorry or well the fact the fact that  a collector of of this these kinds of videos is is really i mean if the that he did it with with two adults and then and recorded and collected them and then he did it with two children and collected them if the purpose was to be to collect he committed the child porn offense the fact that it that the others the others victims collected were adults do believe that there is a difference between a collector of child pornography and somebody who engages in the collection of typical pornography that's at least what mr for tears council argued quite relevant to form for b because this is evidence that could very easily be misconstrued by the jury not to the issue of and not to go to the issue of intent but really to go to the issue of what kind of a person is mr there was great testimony by a r but there was also a description of the evidence rather than kind of playing of what the videos entailed in a manner which we think kind of inflated the evidence before the jury and actually inflamed the jury with respect to some of the evidence of what was kyle pornography what was something called child erotica what was called by the court of course and unfortunately for defendant if if there is for a for be probative this the fact that the evidence even even one circumscribed was prejudicial does not make it unfair approach but it does become unfairly prejudicial under old chief when that evidence so overwhelms the jury on issues that the government itself says it already had sufficient evidence on the government's brief and the government's presentation at trial was rife with discussion that generally does not but i suppose that goes both ways the government can't argue that the evidence is overwhelming insufficient without the former for be evidence of the evidence that we've challenge and then on the other hand claim that that evidence was critical to a conviction i see i'm very close to getting into my rebuttal time i'd like to reserve three minutes for a bottle so unless there are further questions from the court i'll yield my time i  it please the court my name is lindsey middle camp i was one of the trial attorneys responsible for trying mr forty years case in january th since mikko has addressed both issues i will do the same i'd like to start with the sufficiency of the evidence st address the case last entered that judge stresses raised as to when intent to produce should be formed under the case law and then talk a bit more about the record and then time allowing i'll move on to the overlapping for a for b and prejudiced  the appropriate question when does the intent to produce need to apply on a practical level and under the case law the answer is clearly at any point when the decision to produce arises not measured by when did the sexual which choices can be made so consent can be withdrawn at which point the next set of conduct becomes nonconsensual or analogously here in production preproduction conduct can occur but then when you form the intent to create a visual depiction of the next conduct that follows you have formed the requisite so that the timing then would be up until the time you produce the video right would it be going to be production it could be it could be a case like in rap linger where if even before you start a sexual encounter you buy a  polaroid camera make sure you have film then it would have occurred far before before but to mr for tears argument tying this into the point in the briefs you only have to convict on one video the other words if the intent is formed after the after the rd before  the th you're arguing that that's yes your honor so several places in the record the court can find that authority st the had an opportunity at the pretrial conference in discussing the verdict form and instructions how that issue should be put to the jury count one had four different videos all comprised in count one and the jury was instructed on unanimity as to only one of the videos so if it at least unanimously found that for instance one b had the requisite intent that was sufficient to carry count one the parties had an opportunity to discuss that issue and ultimately agreed on the instruction that would be given and the verdict form which said they had to find unanimity in regard to at least one a one b one c or one t in order to support the choice directly speaking i don't remember what the testimony said about which video had this but the pointing and the zooming in and out and the moving of the camera even if that happened videos  or three back would be used to talk about the intent or used to be support the intent on the th video the last video absolutely your honor and if the court were at a point where one to evaluate the record on a video by video basis the fact that video be changed positions directed minor one as if a model told her how to move told her how to angle herself stop that video went around the house to different locations there was testimony even a floor plan of his home to show how many  had to go around with his cell phone to then follow mine or to into a bedroom where she was passed out choose to turn on his cell phone to start recording one c remove her tampon then start recording when he was already penetrat and so there were all these different moments in time in the record and i apologize for being graphic but that was emphasized for the jury on how this and frankly at the sentencing judge schultz got it right the proposed as he said and not credible testimony that mr fortier was simply using a flashlight feature it simply didn't line up with the actual record videos and couldn't evidence regarding catalog and storage also show into it for purposes of production yes your honor and that's why the  the evidence presented by officer dale hanson was so important to show forensically these were not just videos that were accidentally recorded as mr fortier testified a nice surprise the next morning and that was the end of it for tear himself testified and agreed and dale hansen set forth in his testimony that the videos were promptly deleted off his i phone because mr fortier was going to hang out with his niece and nephew that day didn't want embarrassing videos on his phone but instead of deleting them altogether and feeling bad he emailed some to himself he installed some in a hidden calculator application where he had other curated pornography of his favorite clips that were homemade transferred them both onto the laptop and then later on to an  where the only other materials were other items of child pornography or related forms of not adult pornography so absolutely the court has it right that in terms of the evidence the government presented that the jury heard it essentially fall into three categories the st was the conduct that night what do his actions clearly show the court asked about the dart videos and i can talk about that in a moment the nd set of evidence or category of evidence what did he do after the fact she curated it he added it to essentially trophy cases of his other homemade pornography involving either young adults or other people who had come to his home is the rap lawyer line a case is clear that producing for yourself  the the production stitchers you're on i believe both post the proofing for a file sharing program yes your honor i believe if rap lingard doesn't address that itself certainly the statutes distinctions between production and distribution answers that question for us  producing for yourself is sufficient now there could be a question of if you produced it and immediately deleted it and it had been inadvertent that might all go to purpose but here since there was clear forensic evidence by dale hanson that these particular files produced underlying count one had been not only saved but actually re accessed and viewed by mr for cheer on other occasions and other devices certainly have resolved any kind of ambiguity as to whether there was intent to produce and whether fits within the statute i will also note that the two other cases that the defense has relied on in their brief so we have rap linger which is this circuits mean authority but then the defense also notes tourists and  and both of those weigh in favor of the government's position as well in taurus the court noted that the actual angling and posing of the photos was highly probative to the intent basically because that involved a photo where actual sexual conduct was obstructing the closeup view of genitals emphasizes that criminal law applies to more than just the single minded just because you moved someone across state lines to have sex with a minor and you also photograph them doesn't make you any less a child pornographer just because you're also a pedophile and so the same analysis across all those cases should govern this case here and the district court properly found that the evidence that was relevant to intent was admissible and the jury had more than sufficient evidence but i also know just how high a standard this is to overturn a jury verdict on sufficiency of the evidence and that the defense has far and away missed that standard the court asked a question about the dart videos and i believe was offered to show is that the actions of that evening despite mr fortier taking his phone through every room of the house the only images he created were of child nudity or child sex and to the extent some were deleted that little you know what glared by light it did not raise the implication that it included child pornography instead the implication was at some point either that night or after mr fortier had a range of photos and he deleted or videos and he deleted three of those files deciding they weren't worth keeping which goes to his intent that he did want to keep the other ones either because they were better shots or the contact content he had intended to create on the admissibility standards and the of them it's plain error of you as to the noticed for all four b materials that would be an abuse of discretion review under either category because of the strength of the record this court can find that any evidentiary error if any occurred of discretion or error was plainly harmless or having just talked about the sufficiency of the evidence all talk about why that collection of other home made pornography whether it was in involving a are other pornography or non pornography but other related images went to that critical element of intent and were not offered by the government to prove his general character or proclivities what was not shown and mr mikko has argued that it was actually raising a worse specter for the jury to not show them all of the related content but in fact the government and the district court concluded even in advance of the forward for b motion practice that the more restrained less prejudicial and most relevant presentation would be very sanitized descriptions by officer deal hansen and by a r mr fortier himself took the stand and admitted she had collected images of breasts including minors and camp counselors from circle our ranch in what he called a boob album she had recorded individuals at his home including minors naked or in sexual activity using surveillance cameras she had recorded and some of the videos found supporting the possession charge in count two mr four tears other collection had an emphasis on close up shots of genitals or close up shots of breasts that very few had images of the faces very few were simply social pictures of someone who happen to have their shirt off that these were intentionally curated for a certain ascetic preference and the government was clear in its presentation that it was not being offered and in fact reemphasized a closing if you read the transcript that discusses the the bulk of evidence the government again emphasized we're not asking you to consider this other pornography collection just to think that he's a bad guy we're asking you to look at this collection as consistent with intent of a person who chooses to cure rate and chooses to amass a very specific type of corner that is very consistent with both the charge conduct and count one and the charge files in count t on the issue of hansen's references to child erotica and whether those are prejudicial or were prejudicial or should have been excluded the government in its trial brief many days before trial began indicated that dale hanson's testimony would testify on the contents of what was found on mr fortier's devices the way that deal hanssen did that testimony in the court can look at exhibits i believe fifty one dollars fifty two cents perhaps a few beyond rather than simply get on the stand and summarize verbally oh i found so many file here's how much stuff i found she had actually taken screenshots step by step if you click on this picture of this folder on the desktop it results in this folder of items and the jury was then able to see a list of files but not the images themselves because again the government did not seek to inundate the jury with prejudicial images but when looking at that file list because it included both charge child pornography and child erotica and age difficult to determine files dale hansen clarified this entire list the jury is seeing that's not all child porn there are other types of files in this so he was essentially making his presentation less prejudicial than if he had a loud the jury to simply assume it was all child pornography moreover it showed it possess not just to possess and produce count one but the possession charges because the files on that micro s d card only included and you can see how the government examined him on direct what did that s d card include did you find any adult pornography or any pornography that clearly only included adults and so to the extent he needed to clarify it wasn't all child pornography there were these other categories that were found but this was a device that had been curated to simply store things other than adult pornography it went directly to the issue of not knowledge intent and what mr for tears actual curation included and ultimately the defense did not ask for a curative instruction on that testimony or on the other issues even though the district court had offered at the beginning on off oral for be material if you determine that you want to curative instruction let me know and i will give one and the defense did not so unless the court has any other questions the government will rest on the record in the court's considering the sufficiency of the evidence issue it is important to recall how we got to where we are with respect to what the elements of the offense are under tw requirement is that the minor be used for the purpose in the singular for the purpose of creating there under raffling or doesn't have to be the sole purpose just that's right your honor and that's my point under wrap linger it doesn't proof could be made that the use of the minor could for the purpose of creating a depiction of child pornography could be a dominant mode of and i mean that there's some linguistic to find that there are more than one dominant motive not consistent with the traditional definition of dominate dominant which would require something to be prioritized over all else so the fact  and i'm not here challenging that definition obviously it is what it is under rappler but it's important to keep that in mind when we think about the sufficiency of the evidence and specific intent here because in a specific intent case we are it s the rare rare case where the video itself will demonstrate enough to get over the sufficiency of the evidence bar and here the court has referenced a few other things that might help the government to get over that bar one of which was the curation curation has to do mostly with possession knowing possession of child pornography stretches too far and i would also be indicative of a specific intent to produce trial court all curation would particularly be relevant though if some of them were ones that he had done himself like the stuff where they are right because then that would show that i'm zero in which a court found that the video or the depiction itself was not enough to demonstrate specific intent i think your ration falls kind of in that line again with the four or four b n for i simply note that it is difficult for the government to stand before this court and argue that mr for two years defense was a preposterous and the evidence was overwhelming and not recognize under old chief that continuing bring in extrinsic evidence of guilt might be a problem i'm out of time thank you thank you coun