your service and your representation of this matter thank you it was well ma'am please the court palling on behalf of mr gomes indias he was convicted of production of child pornography of the production and the enhancement for obstruction or rely on the brief for the improper argument that the government made in rebuttal and the facts can be resettled in a minute or less  dia's was in the restaurant trade he met his girlfriend there they began living together she had a little brother about age eight and mr gomez dia's started a relationship with the brother th turned sexual how long it lasted is disputed but there's no question that it was sexual and then what happened in the case which brings us here is on the last day they had a cell phone out so the conduct was episodic versus chronic it didn't feature the compulsivity that we see in representing him the government insisted on a fifteen year plea you know frankly and given the isolated nature of the photographs it appeared to me that he also possessed child pornography and that he wasn't typical of the people we usually see th i told him all about done again burst in the united states i told him that as we tell all the clients that if you want to testify and i get those enhanced win points you can admit the offense but the night you're intent in that's exactly what he did and he was cross examined deny the link of the abuse but really didn't matter he admitted that the crime and i had him say that the purpose of having the sex wasn't necessarily to produce but he did to possess the image so i made the defense that i thought i had to make through his testimony i asked for the lesser included and then we got to the charge conference and the record said well i i think it fits on the facts i quoted the judge's comm to to us but the law says that the the elements are somewhat different therefore i'm not going to give the instruction for the lesser included he didn't say how the elements were different he didn't say why the elements of different that go to the that is sexually explicit under the statute and that's what he did and the instant he took a picture of the child he possessed the same very same picture of the child and the elements i mean i  of committing the offense and then indicating that the offense wasn't committed in this way and therefore the elements are meant for difference between the two i mean i think your argument is is a really as a they were the same or similar acts or one included the other and i don't think that's how we look at it i think we just look at the elements kind of like a blackbird type of analysis we look at the elements we compare and we try to figure out if they're different and if they're different and they each included now i'm at the other doesn't the sixth circuit is a can if week a and i have a feeling why and what the circuit circuit said where the defendant wants the possession as a lesser included as they say well the elements are different as you just said but then they then they skew the statute they say well quotes if it's possible to produce child pornography under twenty to fifty five by persuading a minor to take explicit photos of themselves of course that didn't happen here or by transporting a minor with intent that someone else takes the pictures but they wouldn't have been here either you could certainly commit the crime of them but you can't divorce the crime from the facts if i bridget on the one hand walk berger's technical but every case including this one talks about the facts and then a secondary claim the sixth circuit makes is that someone may be certainly guilty of possessing or distributing child pornography without having played any role in this production well of course that's true but it's not true here and vice versa though you can you can produce without possessing say you have a a web cam that set up a new broadcast on the internet so you could you could theoretically produce without possessing th man is the image that's the crime that's what congress was trying to address well let me let me let let's see if this would be more fulfilling which is the the under age component so for possession you have to know the victim is under age and for production you don't need to know that the victim needs to be under age but there's no knowledge requirement attached to it and so that's an entirely you know different element there i think for production you also have to mean the difference in our cases i can see that all the elements you know you remove the elements to give the lesser included as you requested of the district court we have to branch out into new laws are we going directly against what the circuits of the supreme court has told us are we going to have to step a bit out of line well i'm all for new law of course but i don't think you have to step too far along what i would like to see the opinion say is that you can't divorce necessarily elements from the facts and all the opinions we read discussed the facts in this case the defendant conceded the elements of all the   addressed in the state as you would never have and that's what we need to do and frankly an opinion that says that you possess and produce at the same time would be not only refreshing but may change the leader to change it may change to the circuits and you might get relief from the supreme court which would be ideal but i mean i think that the congress does reflect the opinions of the certain all the other circuits i mean the branches are supposed to and listen to each other and if you for the obstruction of justice and he has been can you help me through that well i can't and there wasn't one because he never made a record you know the first there were two two bases he told the child to lie in never say to anyone i'm having sex with you but that is not a basis because it didn't occur during an investigation which is what you have to have i mean in order to obstruct you've got to know that there are investigations taking place and that  perjury and there is no perjury here first of all you've got to make a finding of perjury yeah yeah yeahs really great and i told i told the judge you know he's a wonderful judge made in making findings i said you've weeks and the child during therapy said it happened for two years but the abuse was admitted that the only basis that well the second basis was that he only took those six pictures and they found a couple pictures in the met with metal data that didn't work and he still has to be a material why i mean you still have to have some kind of material is just a matter somehow what difference does it make in the context of the production case whether or not the defendant abuse the child if we if we get a reversal here he will get less time off for those two points from judge readiness and because he did the exact same thing with the bender in parker ri man i gave mr bender to two years off for a year off i can't remember for the reversal on the same grounds with the same idea in the same principle of luck i mean this is really frustrating if the briefs you say this is the law this is exactly what you gotta do and he refuses to do it uses well i'd listen to a twenty one year old guy that's really fourteen and the mr go is the years when through the eighth grade we had to practice and practice and practice to give testimony and he did not he did not commit perjury i reserve police court counsel my name is lisa kirkpatrick i'm an assistant u s attorney here in minnesota the defendant's counsel just referred to the floor photos that were found in his cell phones cash storage and he said what difference does it make makes all the difference in the world in this case the defendant theory of defense was that he did not intend to produce the child pornography that was charged in the indictment it just happened that's what he said the camera just happened to be there while he was sexually abusing the victim and it was more of an aside it was aberrational that was his theory of defense so the avodah that he in fact had taken photographs sexually explicit photographs of the victim on a prior district court had made specific findings but this court had in cases such as a sparser which is cited in the government's brief has affirmed where the only conclusion where the record is unequivocal and the only conclusion to be drawn from the record  defendant committed perjury that's exactly what we have here he specifically stated he had never taken any sexually explicit photos of the victim other than the six charged in the indictment but the evidence was to the contrary there were four in the cache storage they had previously been deleted they showed the victim with his pants down his shirt and his penis exposed there's no way to construe that as having been a mistake it's not that it's not the type of evidence that would be a mistake particularly in light of his motive to lie and it is certainly material when his theory of defense was he did not act with the purpose of producing child pornography your argument really as it's so obvious that this was a material lie that really the fact that the disregard to make a perjury find is almost harmless error he would have made basically what a made it had at how do you actually doubt he would reach the same conclusion so we can assume as the record is if he paid it that's part of my argument your honor and that is exactly what this court held a sparser that remain and would be a waste of time the second part of my argument on that that finding issue as is twofold first of all the facts and that the perjury issue were directly in front of the district court and that's because the defendant had had briefed them thoroughly and at the sentencing hearing put the dunnigan issue put the findings directly in front of the supreme court or excuse me in front of in front of the district court so when the district court overruled his objections and adopted the p s r he knew what he had to do he knew what the issues were in front of him and we can assume from his finding applying the obstruction of justice enhanced meant that he knew and found that perjury w committed here and secondly the p s r specifically states perjury as the basis when it outlines the four things the defendant testified falsely about the length of the abuse the existence of prior  images having been taken and threatening the parents and there was one of their basis that's escaping me at the moment that the p s r that paragraph i think it's sixteen states that obstruction of justice and handsomeness proper where there's perjury so there's no question here that this district court knew that it had to find perjury and in order to adopt that in order to apply the obstruction of justice enhanced meant or what about the threatening of the victim then i remember that you may have met as the threatening of the victim was another ground at least that was basically plausible as a grounds to do obstruction of justice it was the probation officer outlined two bases one was the the lives of the perjury during trial which also included the threats to the victim's family and the second second basis the probation officer outlined where the threats to victimise having prevented him from disclosing it earlier the government isn't relying on the threats them sell in this appeal the government is relying on the perjury here and the perjury isn't simply that the defendants really never argued that the statements of true didn't constitute perjured testimony in front of the district court what do you argue to you don't  nuance the victim didn't testify at trial but a couple of things first the defendant's testimony was inherently incredible the district court at the beginning of the sensing hearing said he didn't need to hear from this their best therapist diandra now and because he had sat through the trial anyone who heard that testimony would say it was incredible he said that that for instance the eight year old child was the sexual aggressor that the defendant he testified that he had tried to stop the abuse but that the eight year old kept coming at him he stated that there was never any you know sodomy well the evidence in this case through the therapist at the sentencing hearing and i'm moving hot beyond at this moment the inherent in credibility of the testimony it wasn't simply that that the victim reported the abuse had occurred over two years as opposed to the one month that the defendant testified to the therapist also talked about how the victim wasn't able to have a ball movement without his rectum bleeding for a month so it's not simply the statements there's more that's what i want to go back to the threatening of the victim doesn't that i know you're not relying on it but doesn't that make it more important for perjury finding out to you while you know we have to conduct meaningful appellate review and if we i realize that we only have one before us because of the government's litigating position but suppose the government to take a different way to get a position we now have two different bases and we have no idea on which ground the district court actually imposing it obstruction of justice and handsome and no specific findings at all so how are we supposed to conduct meaningful appellate review we actually do know what the district court did because the district court specifically adopted the findings and record calculations in the p s r in total that's what it said so we know the district court applied the instruction hansen's on both grounds advocated recommended by the probation office it one may or may not have been an error that the threats issue but the other one is clearly established here that the defendant did perjure himself do you think by adopting the p s r that the district where necessary was mean the finding that both of level no it was that the total offense level was fifty one obviously that's above that the highest level so now didn't you know if you if you're parsing in a part like that but with regard to the t that also didn't matter it's only one obstruction of justice enhanced meant to of two levels regardless of which basis formed the underlying foundation for it did the pre sentence report didn't seem to go through the analysis the perjury analysis like our cases have a good idea to do if you're going to do an obstruction of justice and based on perjury so is that is it is just putting out the  statements that contradicted their information is that enough when it's perjury that we're talking about just identifying what was contradicted probably your honor but in this case the the  standing up here that he asked the court for the findings he told the district court you have to make a finding that the the testimony is willfully false and material the district court knew exactly what it needed to do and of course this is a very experienced district court yes we wish you would have made specific findings but the fact he doesn't can't be read in a vacuum here he knew what he needed to do in order to apply that obstruction of justice and it adopting the p s r he did just that if you're honest or have a question about the obstruction i did want to comment briefly on the alleged prosecutorial misconduct here there's no question that the prosecutor's comment was ill advised but it wasn't per se improper prosecutor statement that the jury speaks for the victim or that the prosecutor speaks on behalf of the victim if in context that is calculated to inflame the jury's emotions then it's improper  context it was an improper here we know the context we don't have to guess at the prosecutor stated that that the defense counsel said in opening that he spoke on behalf of the defendant you jury you speak on behalf of the victim it was an attempt again perhaps ill advised but it was an attempt to mirror parallel of the construction of the defense counsel's argument and when you think that it has a right to have someone absolutely absolutely it is true that he speaks on behalf of the defendant and i'm not asking this cow this court to countenance the comment but it wasn't improper in the context in which it was made again it was probably ill advised but it wasn't improper and when you look at the rest of the closing argument there's not even a hint of impropriety there and when the government and its closing argument are rebuttal it asks the jury to return a verdict because he's guilty those were the specific words find him guilty because he's guilty now because you speak for the victim not because you're outraged by the abuse but because the facts of the case require a finding of guilty he admitted he did it and so in the fact that the defendant hasn't even attempted to show prejudice here despite recognizing the standard despite having replied to the government's response a brief he the fact he didn't even attempt to make that i think speaks volumes not only as to the lack of any prejudice here but also that the basis for even raising the argument and your honour's i think that the issue of the lesser included is a very straightforward issue it's been answered by the supreme court in the shmuck case as well as others this is a textual comparison we look at the elements we don't look at the facts the approach the defendant advocates in favor of it's been directly repudiated by the supreme court susan a close call possession is not a lesser included even if he in fact did possess the images he produced and i just want to make one final point but of course i'm happy to answer any questions this isn't an issue of the law needing to catch up with the technology there's really no difference between an phone and a camera of a person who produced child pornography using a camcorder back in the eighty's is doing the exact same thing that a defendant did with an i phone the fact people happen to carry them doesn't change  were incredible given the science of talking to children in the repeated the pretty i think the case is about doing the law right in many respects the sentencing process should be done correctly member of the court and a very nice man doesn't mean that he didn't commit reversible error here he did and to imagine what his thought process was or that he found perjury in his mind without  arguments this morning cases submitted that conclude our cases for this morning well court is in recess until further call