distasteful they are objectively considered not child pornography now as a threshold matter we would submit that the dosed factors to determine whether an image is or is not child pornography including the six the last of the factors should be determined objectively and how do you do that well a number of other courts have done it as we discussed in the brief including the first and third circuits and they state that the sixth factor is useful primarily to determine whether the other five factors are met that we should look at the photograph not the viewer or the photographer that and in the rivera case this court cited that case law with approval and observed that a measure of objectivity was needed to bring discipline to the jury's deliberations  avoid them deciding cases based on emotions of visceral reactions and certainly to avoid the jury taking short cuts such as saying well this defendant is a pedophile he has a sexual interest in children he took a picture of a nude child therefore it's child pornography there is a lot more to the analysis than that and the objectivity in cases such as the larger am a raw or steen or as favored by this court although not explicitly decided in rivera would support that analysis that what we should be looking at here is not mr spore but the videos and the know but i believe judge stewart might have gotten there first but he knew it to be he knew it too but i would submit that there are certain standards by which you know what and those standards as numerous courts have found are the standards in those states and i would point with the camper video i would point in particular to the steam case which discusses viewing a video in its totality and even the government concedes here that the portion of the video that it finds to be objectionable is less than a minute out of twenty minutes it occurs about four minutes and i don't i don't understand how that should insulate the the determination about whether these image was produced by your client by saying he also produced a lot of other material that wasn't so serious what's what's the logic behind that can you insulate creation of pornography by making a really long movie i would i would agree that you can child pornography simply by making a really long movie however i would submit that the content of the entire movie is relevant to what that portion of it which is alleged to be child pornography you know whether that's whether that is subject to the other dosed factors and in connection with this case what i would specifically point to is mr mr spore did not command or ask or invite the boys to go under the blanket so that he could photograph their genitals he followed them in and then he followed them out and continued to film them for another sixteen minutes he didn't ask them well stay in there he didn't  to pose them while they were in there he just followed them in and followed them out you can see the children genitalia is visible went to the cameras under the covers yes i agree that the children's janet taylor is visible but of course visibility is not the what the statue proscribes it's lucy of the is exhibition just because janet taylor visible and just because even if a child is is totally nude numerous courts have found that that this is not  in itself child pornography and i would submit following kids under the blanket for a few seconds again distasteful what are you thinking mr spore but it was not a list civvy is exhibition of the genitals even if you know due to the angle by which he has to follow them when he goes on to the blankets the genitalia become visible and the overall setting newsies kids a bouncing around in a living room on a sofa bed the t v is on playing disney movies there is there is nothing sexual about this setting and likewise with regard to the bathroom video we would again refer to the steam case where which said that a video which is essentially voyeuristic where it's quote unquote peaking upon an unaware subject pursuing activities unrelated that sex again is is distasteful again what are you thinking mr spore but was imposed that was the district court was in title was it not to take into account the report in the p s r about his conviction for a criminal sexual act  i think that the district court was entitle to take that into account and certainly it had the effect of increasing mr spores criminal history and his guideline range advisory range accordingly but i would submit that even as to production the jenkins case the door of the case you know those were possession cases but i would submit even as the production there is a distinction to be made between the worst of the worst and those who are merely bad there are sure this court is aware i'm aware opposing counsel is aware that there are truly horrific child pornography videos that a made there are sadistic in every sense of the term involved exploitation of child after child involve produced production for a commercial market and although what mr spore did assuming that this is child porn assuming you know certainly deserves punishment it's not the worst of the worst these were videos where the children you know did not were by all accounts not aware they were being filmed they weren't i mean i  would rather not go into the graphic details of what i have read about in other child porn transcripts but this isn't that but but still he had he was convicted by the state mistress well let me let me just i'm not trying to catch you in any sense so just think about it look you've read here some time i've given you some extra time so we'll give you a chance to address that when you come up any rational juror could find and convict the defendant beyond a reasonable doubt and to judge a proneness point about the visibility with respect to the genitals in camp or in the camp or video the government minutes i was reminded as i was preparing for oral argument that mr spore was cow was charged and counts one and two not just what the substantive knowing production of child pornography but what the attachment and actually  district court judge said in his court in his instructions also instructed the jury with respect to a tent that there were cars a substantial step the government cements that the point where mr sport grabs the pinhole camera and takes it under the covers to film to attempt to film the genital area that that  a substantial step to try and get a list of vs exhibition of that boy's genitals there's there's just no other way are that the government if and if the court were to draw every inference in favor of the government that's the conclusion that a rational juror would come to the jury return or general verdict so it's both attempt and completion yes so as a general verdict as to attempts and completion with respect to the bathroom videos again  having i know this court has reviewed the videos they're not it's not set in the in a position where you're seeing the entirety of an individual it's not from far away you know this is it's set in  situation where it mainly captures the lower half of any one kind of using using the bathroom at that time and so therefore again there is sufficient evidence from which a rational i'm sure can say yes i  believe as instructed and as properly instructed and as properly instructed on the dosed factors that they could conclude come to the conclusion that the defendant was guilty beyond a reasonable doubt turning to the issue with respect on the bathroom video putting is recognizing the camera angle was what it was the conduct of the children though was not  it was biological correct the conduct was biological but that doesn't change the intent of what mr the defendant was trying to get at which i miss the battle because x factor so if it's in i guess my question  in a possession case of someone's just looking at from the frame point of you know what does a solicit a response in the particular viewer then you know is it truly is a exhibition of the genitals but that said this court has already kind of gone through the critique of the don't factor is and rivera i mean basically rivera was an allegation of something similar where of helping define what lascivious means and the question with respect to the sixth dose factor but rivera also recognize that in the production case it does become something different because of the fact that production requires the defendant knowingly employing using engaging in thai sing in minor to engage in sexually explicit for the purpose of  that's my point these miners the miners that were captured in the bathroom video engaged in no sexually explicit conduct but i guess the part of the it's the tension between what does it mean to engage in sexually explicit conduct when we're talking about the the genitals if for example the defendant is interested in just a little boy's genitals and the little you know the defendant is the person that setting the scene so that they can you know some and the production of child pornography here the same because of the setting and i guess part of your argument is that so the camera was affixed to the sink at a low area so as opposed to some distance and that might suggest a desire to concentrate on the gender whole area that's what the government cements is that the way the particular video is framed you know the means on plus which is the arguably could be lascivious for a particular defendant but even you know turning back so you think that so he even i mean our interpretation of the circumstances is enhanced i think by going on a ledge of a mr spores and sexual interest in young boys in the prior conviction for fourteen evidence and i've wondered about whether that is also correct to take into account or whether we should have a more objective view as the dose factors seem to suggest i don't think that those factors themselves suggest in an objective view that dose factors the way they're instructed is just to provide again as this court indicated in rivera away so to buttress against you know emotional response or in emotional consideration for if a if someone sees any nudity in this particular case defense counsel asked specifically for an instruction which they got which was please don't count nudity as just being as being sufficient under the dos factors in order to consider this as  child pornography which was instructed as to the point on rule four fourteen that's a rule of evidence that that specifically states that you can bring in prior conduct of sexual abuse of minors to show propensity it's the one area where propensity is allowed and this court has said you know the question is for a district court to just determine its relevance in a particular case and then second to weigh whether it's unfairly prejudicial it is going to be highly prejudicial i'm not going to stand here and say that that the fact that his prior conviction was amended is not prejudicial but the question is was it unfairly prejudicial all this particular court allowed was just the fact of the conviction no underlying information regarding the conduct there was no nothing given with respect to the identity of the mind you would say that that was relevant to the production count and the possession count i would say it's definitely relevant for the production count again because i was relevant to the possession count because he claimed that the images had been placed on his computer by someone else but i wasn't sure about the production count we would we had that actually argued that it would be important for all the counts but for the production count more for the purpose of these videos because he  was denying that they were child pornography if they were he you know it was mr sports position from the beginning of this case that they're not child pornography as to the other videos that he received on peer to peer he may have tried to assert that they were not his but they're only relevant to whether they're child pornography if factor six is objective so that in essence if you're if you're a child molester and you make a video you're guilty of child pornography production because otherwise the fact that he was a child predator is not relevant to the question of what he ultimately produced was or wasn't child pornography it does have i think some some bearing on you know the fact that  i understand i understand your position but the reality is that is a particular rule of evidence that allows propensity to come in so and it's clearly relevant to his possession count anyway it was going to come in but for you know for the production counts it's the government's position that it is relevant for you know why are you taking trying to take the  camera underneath the covers to focus it on the genitals of this child so you know we feel that that's they're married there's a relevance to in order to explain that context of what happened in that video  it is an open question if that did not take place in the camp or video it is no open question whether or not the remaining aspects of that video would constitute child pornography but that's not what we're here for and you know clearly in this video there was a moment when he took the camera and took it filmed underneath and then even afterwards if you listen to the video you can hear the child saying what's going what are you doing with what's going on and he was hiding whatever he wasn't giving a straight answer and mr s'pore then returned the pinhole camera this is not a case where people are being post or that they know that a cameras is as is existing you know so to mr edelstein's point in his reply brief this is not an accidental capturing of someone's genital areas it was purposeful and so on that question perhaps can you refresh your recollection of seeing how this case began yes this case began because of the fact that on his videos scuse me he had there was a cousin who was living who was visiting or either living with the spore family during that period of time in december of two thousand and twelve and one of the cousins was working on the computer that was primarily used by mr sport and then he ended up seeing these images of child pornography that had been downloaded outside so not the videos that were found on the pinhole camera he and mr spores now ex wife they went to the state troopers and they discussed their findings the cousin actually brought i believe the hard drive which then developed into a search warrant at the mr spores residence at which point in time they recovered all these items including this pinhole camera and i need to describe the pinhole camera because i didn't know what what they were talking about it's about the size of a quarter i actually have a picture with me to remind me what it looks like but it's also capable of putting a memory card so a small memory card it so it's you know you can hide in your hand it's just a black looking item and then you just turn it on and they'll just record onto a memory card but that's how this case began was really a cousin jumping on the computer finding images of child pornography and then going to got an earlier investigation that's know all that information actually about the previous other victims came forth when he went to new york state troopers and then he was he admitted that he actually had sexual conduct with i believe you a seven year old boy previously and then prior to his sentence the probation department uncovered all the other information and to judge carney's point you know we believe that a sentence of thirty years is reasonable substantively reasonable this is a child predator who had been going on for quite a few years undetected and who had ruined the lives of many young boys and i take it you don't know the status of the appeal of state action i apologize i really should have taken a look into it at the time before coming here today at this point in time i don't but i am prepared to prepare twenty eight a letter because i can go back and actually find out from either the sexual abuse in the first degree resulting in a five year sentence and this is a determinant sentence it's an eighty five percent sentence just like a federal sentence there's no parole on that in the state system and it is consecutive to the federal sentence to the district court pronounced that specifically that the federal sentence was to be served consecutively to the state and chronologically the state sentence came after  chronologically the state sentence came after some mysterious bore is serving his federal sentencing now in any event now to address the my opposing counsel's arguments first of all on the issue of attempt if these images were not completed child pornography i don't see any evidence in the record from which a jury could find that there an attempt either because there's no evidence from which it could be inferred that mr spore was trying to do more than what he did he made these images he completed them he succeeded right but i think the attempt would be on the notion that the video quality was extremely poor once he went under the covers had it been clear was never argued to the jury this theory was never argued to the jury nobody ever said to the jury you know the lighting is poor but it you know he would but imagine what he could have done if the lighting was better this was never never put to the jury which we submit they were not then the lighting conditions would not result in an attempt either this is either this was a loose if he is exhibition regardless of the light or it wasn't now as to the distinction between possession and production i would point out boast itself is a production case rivero was a production case several of the other cases cited in our papers were and in fact some of the cases we cited in point three you know the rule for fourteen court point specifically made the point that the motive of producing photographs that issue was immaterial and irrelevant the relevant inquiry is not whether the photographs sexual interest but whether they were of a sexual nature so and in that case and in others there were it was found that the defendant was properly precluded from presenting evidence that he was not a pedophile if evidence that he's not a pedophile is irrelevant then so is evidence that he was and on the rule for fourteen issue although it does you know the evidence of other sexual crimes is allowed on the issue of propensity it relaxes rule for all for b to that extent it still requires and the case law requires the basic threshold of relevance and finally as counsel conce this is not a case where people were being posed where they were being arranged in some unnatural manner in fact the as to the camper video them going under the blankets was something that they did they weren't asked to do it by the defendant he didn't say go on that there so that i can film your genitals that's so i would submit that objectively speaking these convictions should be reversed thanks very much