good morning and welcome to the rd day of our city as you know we were supposed to be together in miami but obviously the virus has forced us to handle our oral argument sessions a little bit differently and cases there was a storm in atlanta last night and a lot of homes and facilities are without power so we have a number of judges and lawyers who may be participating in today's proceedings without the benefit of a landline so we may experience some technical difficulties or interruptions if that happens we will do the best we can to sort of pause proceedings and get everybody back on board so if we encounter some of those problems we ask you to be patient with us as we try to figure them out and back get back on line as quickly as possible mr is going to give each of you who are arguing a two minute warning to let you know that your time is coming to a close other than that i think we are ready to begin and our st case today is number nineteen dash  this appeal raises the question left on resolve by the court and united states versus paulson and specifically whether the term sexual activity as contained in title eighteen u being specifically includes production of child pornography within the definition of sexual activity the court there noted that definition or expression would not have been necessary if the term clause punishable by law were made criminal by law and that prevented the interpretation of sexual activity from being too broad what do you say to that  contention well it seems like the four circuits used a dictionary of common usage i think was the term that they used raises some ambiguity as to what exactly is involved  sexy she is if that was between adults that would be flirting but there may be states that use an unfortunately i don't have one that i can tell the court right off that similar types of conversations between an adult and a minor falls on within the purview of the statute and again we're not talking about a statutory violation here but if that was the case a person who did that would be subject to the penalty of between ten years to life the open ended and then they talk about limitations that it was just sexual activity and then they now it down as your honor just noted so any criminal activity but i would think that there are very possibly some jurisdictions where a adult telling somebody under the age of sixteen that she's seen as sexy lips could very well consider it considered criminal activity and it what mr dominguez did which was send a picture of his private parts and then what the suppose that minor would do with it well i think that it's a point to look at that statement that only in the way that it was said but also in the context of what came right after so i think the choice of mr dominguez his words or signify he didn't say what will you do with it and more importantly he's got he did not say anything along the lines of would you like to do this too if he did make reference to licking or stroking or any other activity he didn't suggest to her that there was any activity that he taking a step further the worst case scenario is if mr khamenei as was suggested in kenai only that she may want to look at the picture and then use that to gratify herself still and i think that what you are because there are so many different dictionary definitions that they have created in a ambiguity and again going back to what i was saying before the wikipedia definition would include an activity that applies across the board all persons so that everybody is aware of what activity falls within the purview of the statute normally we say that if congress uses two different terms in different places in the statutes that it had to mean different things sexual act so i that sure how the court there was able to distinguish the two income was to say that one requires contact and the other does not i hope i asked  dollars b criminalizes the knowing enticement of a minor to engage or attempt to engage in quote any sexual activity for which any person can be charged with a criminal offense close quote as relevant here the term sexual activity expressly includes a production of child pornography worn to be application of the two d to point to be five and hanson the appellant argues the district court improperly applied this enhanced meant for two reasons that one the sexual activity the defendant was allegedly seeking assent to did not involve physical contact contact directly speak to this section two thousand four hundred and twenty two b does not criminalize the enticement of sexual activity full stop rather it's limited into critical aspects and st it concerns only conduct that's already currently prohibited  that twice has any sexual activity for which any person can be charged with a crime and nd it addresses only behavior involving children so those two limitations plainly defined the term sexual activity is conduct that number one is a violation of either a state or a federal statute that has to do with sexual conduct and the th circuit in fugit defined it as live live video gratification on the part of any individual into a must involve a minor so sexual activity the th circuit's rationale in fugit really defines a term and doesn't limit it says any sexual activity so that broad encompassing term states it could be anything whether it's involves contact or doesn't involve physical contact it doesn't have any limitation of that sort and two there must be and that's why and as you take a step back the term itself is defined by what th attempt the government must identify a state or federal statute that the conduct is a criminal violation of and further must describe what that statute does indeed penalize so the p act instead it comprises conduct connected with the active pursuit of liberty or gratification on the part of any individual and i think that that's where taylor missed the point when he looked at the term sexual activity within a vacuum and didn't read it in context the was brought up in taylor the court's concern with you know two thousand four hundred and twenty dollars to be carrying this ten year minimum mandatory sentence up to life but realistically there are different components of the statute and there are different elements in congress there their intention was to criminalize any sexual activity when it comes to minors and the enticement of minors they took that extremely seriously and there has to be the use of interstate commerce and in most instances and what they've recognized is the rapid use of the internet you know the statue was enacted in one thousand nine hundred and eighty and fast for two thousand and twenty just about everything is done from the palm of your hand on a you know on a cell phone on a computer and slowly enough the minimum mandatory has increased throughout the years from when it was in acted and that's because congress has expressly recognize that this element of interstate commerce these child said that these child predators that they could from anywhere from the from the palm of their hand to a computer can entice these children and congress expressly wanted to do that so if there statute that is a misdemeanor or otherwise congress has recognized look there's completely disparate sentences throughout state courts for different types of sexual activity when it comes to you  know sexual battery statute or it could could be a lewd and lascivious exhibition statute it could be very but we will we want to make crystal clear is that when it comes to a sexual enticement of a minor using interstate commerce we're going to punish this so if they're just by happenstance there is a misdemeanor statute which is what the government relied on and taylor i believe it was an indiana misdemeanor statute you know in the state of florida i believe a similar conduct would be a felony  degree felony which would be a lewd and lascivious exhibition before a minor so there is that discrepancy in what the statutes have throughout the states and congress has expressly said we're we're going to have a penalty that if you use interstate commerce if you use this you know the rapidly expanding internet to entice minors which is where the majority of them happen versus in person is using a custodial relationship and those are much those are not as often as the ones that we see today and have been seeing since the ninety's when this was an acted the fact that congress has expressed it has expressly said we're going to take this seriously and we're going to punish it district court when when i went through the analysis and went through the chats that were described and it's in the record you know there's no dispute as to the facts of this case you know the defendant he sent on two different occasions he sent a photo of his penis to this young girl and the nd occasion has a right penis he asked her what she would do with it he asked for photos in return and he received photos so the court did not express lee state this is a production of child pornography within the meaning of any sexual activity for which a person could be charged with a crime the government contends that at a minimum there was an enticement to produce child pornography because there was a point in time where after he said he had consistently been asking her for a nude photo in return she had been sending clothes photos and he had been having sexual sexually suggestive comments you have sexy lips you're cute can i tell you something you make me very hard and i got to a point where when he sent case that he did engage that he did you know attempted to entice this minor to produce child pornography and when he sent the photo of his penis of his erect penis and asked her what she would do with it it was clear another thing has to do with what and what so if you think we can affirm without any rematch that we agree with your statutory interpretation analysis what that or state seven any sexual activity for which a crime can be charged that includes production child pornography so mr dominguez received two nude photos of this nine year old girl because he persuaded her to do so that is not in dispute we don't know what those photos have but the context of those communications he asked her he she sends a partially nude photo and then in response and please use my language but it's what mr dominguez asked her was that your pussy and she said i'm half naked and he said can you please send a fully naked photo and she said why and he said just one time for me i'm kind of her phrasing that part but this one time for me and she sent him a photo he said thanks and you send somebody a photo by accessing your camera roll that will be preserved so that's why we only have one photo of mr dominguez his penis which is the st one that he sent her when that came from the camera which you could tell but then at the time that they're actually having to sexual conversation where they're exchanging photos he's telling her how hard he is and he says do you want to see and he sent her a foot of the erect penis we don't have that because that when you take a contemporaneous photo when you take a photo using the answer graham app which has a camera within it is you're going to is not sure that image so you have a contemporary is photo that to me just took of his erect penis when he was looking at her photos and then you have the two nude photos that this minor we don't know what we don't have those photos but we do have the context and specifically she admitted she said that i was half nude he asked if it was her genitalia he asked for a fully nude photo because it wasn't sexually satisfied at photo of this young girl we don't know what pose she's in or any of that information but what we do know is the intent of the producer and let's not forget the court this was the nd time the district court had mr dominguez before him and the forty four b evidence shows that he previously was convicted in two thousand and eight of the seam exact behavior of online conversations with a minor sending a video of masturbation so and that's within the record itself i'm not going to get into if  what the district court was thinking but clearly the intent of mr domingo's was to entice this minor and and like i said one is the the production of child pornography at a minimum he persuaded her to produce state and a federal law he persuaded this minor to produce child pornography you know the fact that it's a sentencing enhanced meant the burden of proof is lower  when you look at the circumstantial case regarding the photographs that were sent clearly you could see that mr demeaned is and this is not in dispute he received photographs of this girl which he persuaded her to take  one without knowing the contents of the photograph even assuming that there were nude photographs this is not necessarily mean that they were losing the service but moving forward and one of the nuances between the guideline and the relating to the sexual abuse or exploitation of them i again we don't believe that there is anything more than the receipt of the photograph and sending the photograph of himself  minor included a video of a minor in gauging in individual sexual activity for example masturbation would that satisfy the guideline to masturbate as part of a pornographic image i think falls within the exclusion in the guidelines i mean a digital receipt or trafficking of material relating to between the two terms so the fact that congress in the same chapter as the statute that we're discussing expanded the definition of the conduct to include child pornography as part of a listed sexual