good morning your honors may please the court i'm here this morning representing david guy and i would like to reserve four of my minutes for rebuttal if i may your honor i would like to just address one of the issues that i raised in the brief today and i would leave the balance of the issues to the briefs that were filed the issue that i would like to address to the court's attention is whether or not the district court denied the defense the right to present a defense and in this case there were eleven  counts of obscenity that were charged in the third superseding indictment the defense to those charges was that it was not obscene material but that it was art and that it was art that was protected presumably by the first amendment and it was art that was accepted within contemporary community standards to that end the defense wanted to provide evidence on contemporary community standards to the jury and it just so happened that at the time that the trial was occurring there was a an art exhibit that was one block away from the federal courthouse here in cincinnati and that are to exhibit actually had on exhibition pictures of children in various states of undress robert maple for exhibit it was yeah it was a it was actually a i believe cincinnati i think was probably doing it maybe for free speech purposes or whatever but to say that that is mainstream art is kind of a stretch isn't it kind of stuff he does if we were arguing that it was mainstream art i would agree with you but that's not the standard bridge but i guess you're saying even french stuff though it is protected and here's your client stuff is absolutely well and that's and that's the whole purpose of this why contemporary community standards as part of the test in this case it is actually beyond just robert mablethorpe art it was actually artists that were influenced by robert mablethorpe and so it's a whole host of other artists that have come after him  so it is the issue but the issue kind of kind of pulling back from that is it could in fact be controversial but is it accepted contemporary community standard for the southern district of ohio and so we have here if it if in fact it was if in fact it was illegal or it was obscenity in and of itself it would be prosecuted as a matter of fact twenty five twenty seven years ago in cincinnati robert mablethorpe star was the subject of a state obscenity trial and but a lot has occurred between between now and then and in this case it is the court recall from the record there was act not only do we have this art display that's going on a block away from the courthouse but there is available for purchase in the in the museum b z i'm store a book that has all these artworks that you can just buy and then walk out the door with and so in this case the that the defense tried to tried to jury view over first and they wanted a jury view of the actual the art works that were in the in the in the location but absent that they actually bought the book brought it to trial and said well if you're not going to allow us to have a jury view if that is cumbersome in some way  present the book to the jury to show that this is available a block away if they want to purchase it and this goes into the mix of what is contemporary community standards it's not to say that it is this is the standard but that the standard is wider than the average juror thinks it is and it goes to the the actual objective nature of the standard this is the contemporary community standards is not a subjective standard for each individual juror to determine it is an objective standards a matter of fact the jury instructions in this case specifically said that you are not to use your specific beliefs as to what contemporary community standards are met rather it's an objective standard so how does a jury understand what an objective contemporary community standard is in the southern district of ohio if the defense is not permitted to present any evidence on that topic whatsoever and it was the entire defense as to those eleven counts in this case it that by not allowing any evidence of the jury view by not allowing any evidence from the e the the book that was purchased the the extent was either the exhibit or the book inclusive of pictures of children in various display and i did not notice never looked at any of that stuff either and i didn't view the book either but the book was presented for the court so that the court could take a look at it and my understanding from the record is that there were various you did it what is it wasn't all pictures of nude children but that there were various pictures of children in various states of undress and so but the but the issue is in this in this is an issue in several of these cases is that something that the mere fact of a child being nude in a representation is not doesn't make it obscene right rather it has to be has to meet the standard that go to the parent interest and all the other miller ginsburg factors that that a jury has to take a look at a but your contention is that these pictures did go into this sexual period interest as opposed to just children that are under arrest know that that that these pictures actually went to the fact that they would have allowed the jury to see that that there is that disconnect right between if i see a picture of a new child that doesn't mean that it is obscene in and of itself and in the contemporary community standards not only is that a disconnect but we actually have it here in the community and it's accepted here in the community and that and that was the and again the entire defense with regard to this and i will note that and judge batchelder your to your question  the defense in this case actually tried to preserve for this court the full scope of what that presentation was at the art center and they've they actually asked the judge to permit them to go  videotape the exhibits so that it would be available for the appellate record so this court could see the full scope of what the of what it was that they were trying to put in the judge's permission to videotape and i would think you would just videotape it and then submit that as your offer proof judge you've denied my evidence but here is the evidence that i would have submitted here's my offer proof which is actually what you need to do that and you need to have submitted that book as an offer proof that this is the evidence that we would've wanted to do it rather than just say we we could it could be the reason that they the reason that they needed the judge's permission was that the contemporary art center itself would not permit them to videotape it they need a court order so they needed a court order to do it and so they asked the court for that court order and what the court said and it's in i think it's record from proffering the book and they did proffer the book and they proffered specific pictures in the book the book in evidence i don't know if the entire books in evidence but i know that there were pictures at least pictures from the book that were that were proffered and were physically presented to the to the judge in that so the judge was able to look at them and if we can look at  presumably you can you can i don't know where physically the book is at this point but presumably it's probably with the district court downstairs at the clerk's office and you would be able to take a look at them have to perfect the appellate record here i mean you're saying it could have been part of our appellate court record but right now you haven't submitted it that's correct and i can't i can't submit it if the if the court would like me to i usually confine myself to what record you have submitted i understand your honor with the with the time that i have left i'd like to turn to the second of the of the sub issues of this issue and that is that the defense in this case was completely denied the right to effectively cross examine one of the government's main whittemore you move on in our stand a review for this evidentiary ruling as for an abuse of discretion i say i disagree with that because because i disagree that it's an evident ymir evidentiary ruling have some evidence that didn't come in i mean you argued the defense presented it but it's the evidentiary support for that you object right correct but without but without this there was absolutely no evidence that the defense could present on the defense oh it's you it was a complete denial of a defense as to those eleven counts only potential evidence that you could have ever submitted in support of that well i mean i i mean that seems to me like all right maybe that kind of makes sense will go to the museum but it seems like maybe you could have done something else as well i suppose that the defense could have tried to find other art presentations within the community but it probably would have been met with the same response by the district court i see my time is up and was there any further questions well ok good edge for a one for three analysis here is that right that is not relevant and then even if it were relevant to the confusion of the issues way any potential the district court relied on the confusion of the issues i think primarily yes your honor thank you thank you it please the court alexis to harry on behalf of the united states i'd like to begin by responding to my colleagues arguments regarding his right to present a defense claim judge griffin your act absolutely right the district court in this case denied the motion for a jury view because the court having viewed this articles of itself found that it posed a serious risk of jury confusion by skewing jurors concepts of contemporary community standards and it also found that this arctic sea bit was minimally probative at best and that's because among one hundred twenty some photos or i'm sorry one hundred twenty some pieces of art only two of those pieces even depicted children and those two pieces of art depicted one new child in a soiled bed and another new to child sitting in a chair and those two images are in no way comparable to the images comprising the subjects of counts one through eleven those images showed the defendant's minor relatives being sexually assaulted in abused and in quite frankly horrifying ways and so the district court did not in any way abuse its discretion in denying a jury view which you know is a quite explain an extraordinary thing for a district court to grant so so that's responding to the first point and secondly we're regarding the introduction of these two pieces of artwork and into into evidence the district court again didn't abuses discretion they're under rule four zero three balancing test it again cited the same issues of jury confusion and relevancy your point that because there was so little relevance because there  were so little of the already exhibit that was in any way comparable even if it your view is it isn't comparable at all but so little that was comparable to what was subject of this prosecution that there simply isn't any meat to the constitutional claim absolutely i think that you start by viewing whether or not the district court actually abused its discretion here i think that's a starting point and the district court didn't and the reason is two fold it's a four zero three balancing it's number one the risk of confusion outweighed any minimal probative value but certainly here there there was not a constitutional violation the defendant doesn't even attempt to explain how this exclusion  was somehow arbitrary or disproportionate or how it could possibly have affected the outcome of the trial so i think to your question we start with did the district court abuse discretion and then you sort of go to a twenty thousand foot view which addresses this constitutional claim i'd like to just briefly address the the issue of the cross examination of of mine or warren which is also sort of folded into this general constitutional claim my colleagues brief sort of ignores the context in which this initial ruling was made and i would direct the court's attention to the record to fourteen sixteen eighteen what happened here is the united states moved under rule four fourteen to admit evidence the defendant's prior gross sexual imposition conviction in state court of which minor one was the victim now the district court denied that however in the context of making that ruling the district  rt said well if and let me look at my notes to make sure i get this right if this prior conviction becomes relevant during the cross examination then i might change my ruling so in other words it's preventing the defense from somehow misleading the jury by suggesting that guy did not in fact commit any hands on offenses when he absolutely did so again the united states would submit there's no confrontation clause a hill ation there's absolutely no violation of mr guy's right to a complete defense turning to the last issue raised by opposing counsel the if it was if the if the district court had told the defense hey if you open the door to this prior conviction i'm now going to let it in and if that was the issue i wouldn't have raised the issue before this court because that is entirely proper what the district court said and i'm quoting from two zero six page id number fourteen ninety seven the reason i didn't allow in the previous conviction of the defendant is i didn't want to taint the jury however in your cross examination of minor one if her credibility gets called into question that conviction may very well be relevant so in other words if you attack the credibility of minor one then it's likely this prior conviction that i previously excluded is coming in and that is the problem in this case and by the way that was said immediately before minor one took the stand there was no break there was no multi day of bail will you explore this further it was if you attack her credibility i'm going to let the prior conviction in prior conviction did not come in right the prior conviction do not come in right so you're just saying the judge posed this warning i guess but and that chilled to the right of cross examination absolutely nifty if you take a look at the at the cross examination of minor one you will find it is generic boilerplate cross examination that does not go to the credibility of that witness because of this ruling you know to preserve the issue don't you actually have to call the judge on the prospective ruling and say well i'm going to do it anyway and then if he allows the conviction and that's reversible error but you actually have to go to that step that's i think the supreme court had a case about about testifying and the use of prior conviction reversed and the supreme court reversed a state court said no even though the ruling is wrong to preserve the issue the defendant has to testify that when the judge has to allow the conviction in to preserve it rather than a perspective a perspective violation or perhaps perspective error isn't enough i think that's the point of the case and isn't that saying well we got here i would i would admit that because there was no objection raised to this were under a play near standard and to your point i think is how do we how do we determine prejudice and i don't know that it would have needed to go to that what i call that nuclear option right because you have to you have to basically call the court's bluff and have the bad thing occur understand what the law is though but my wrong on that there's probably something less that can that can occur if the judge would allow it that could probably preserve the record better and that would be maybe of war dear outside the jury where you cross examine the and so you know it's possible that that all didn't get teased out in defense counsel's head that they had to listen to the direct testimony immediately after that determination and then cross so we could have a better record but i don't think that that should foreclose this court from looking at this at least under a plain or standard of review and the only other thing i was going to mention was as i recall the record the district court didn't say i will let it in he said my ruling might change yes absolutely that in the actual language is that conviction may very well be relevant but i think the import to a litigant is very clear that if you attack her credibility not not if you open the but if the jury is advised of this prior conviction now that all of a sudden you've got some prejudice it's almost like a president suggestion thank you your honor thank you counsel the case will be submitted and there being nothing president come before the