first being that not every photograph taken during sex with a minor is punishable under section twenty two fifty one and the second the government failed to present adequate circumstantial evidence that appellant and gage in sex with the purpose of creating pornography as for the first point i would like to suggest an analogy some people make a reservation at a restaurant intending to order and enjoy the food without intent they go to the restaurant they order the food when the food arrives at the table it's beautiful you presented and the diner pulls out his or her cell phone and snaps a picture proceeds to eat and enjoy the food that person did not order the food with the inten person's intent here she is if the photographer or tells her dining companion that they want to replicate the strap recipe or once impress people in social media that they're eating at trendy fancy restaurants in this case that kind of circumstantial evidence is absent most importantly there is not one shred of evidence exactly when and under what certain circumstances the photographs were taken the photographs were certainly taken during the sexual encounter but there was no evidence about whether it was at the beginning of sexual encounter the middle or the end government chose not to elicit the where one count and they were not three separate incidents was one of the counter during which photographs were taken we don't know any of the circumstances of that we don't there is no evidence that there were instructions given  that the action was paused and order to set up a camera there there's none of that circumstantial evidence that you see in the other cases cited in our brief in the government's but there is circumstantial evidence that is just not a type but the other cases talk about but this this is a circumstantial evidence case you're saying it's weak circumstantial well that the lonely evidence is the picture itself and i'm saying the picture itself snapping the photograph itself is not enough evidence is not sufficient to show that he engaged in the sexual conduct with the intent to photograph to create pornography there has to be something else see so let me restate that snapping a photograph of a minor that sexual nature is not by itself does not satisfy the statute there has to be  sexual conduct in which a picture is is taken is not necessarily enough you have to show a specific intent that he engaged in this conduct with these specific intent to take a picture if you just thinking about the facts here and one of the photographs does seem to lend itself particularly strongly to the prosecution's theory if i were him to sit in your analogy if i were in a restaurant and came and the question was you know divide prominently display fruit for the purpose of taking a picture it comes it looks great and i pick up my salad to make it more in the light and i snap a picture how i pr displayed my salad for the purpose of taking a picture and i think the answer in this procedural posture is yes i think that you can form an intent in the middle of your dinner when the food arrives and you ask your friend to please shine your flashlight from your cell phone so i had better lighting and you do all of that but now you do have a specific intent to take photographs but there's no evidence of that here isn't  really was was your penis in his mouth was his penis in your anus that's pretty much it so there is no testimony about whether if he had just been conducting performing oral sex on jay and  snapped the picture then the photograph in which he's holding jay's pianists isn't necessarily sort of an you know extra something extra bringing it into focus it simply friend create a better life but there's no there's absolutely no detail here there's no testimony about the order that it happened and the circumstances whether  little odd to him to read purpose that way given that the writer of his stature were apply if on your hypothesis the photograph and yet if all that happened in the water and they come in the wrong everything up to four or five the world cyrix on your hypothesis facts that there would be well no purpose because really my argument is we don't know because they didn't put in any evidence and that was their burden we don't know when you're saying whatever something might have in fact been different and that's why those two cases would be treated differently right  advocates of that at all and in fact that the court also made that assumption and ruled that mr torres directed the victim to lie in the bed in a certain posture no evidence how doubt his own hand to stimulate the victim's penis for the camera from which there's no evidence the photos were not taken during the first two alleged sexual acts for which there is no i haven't the defense counsel didn't the other point i want to make back to you know what what what does it mean to engage in sex for the purpose of taking a picture if every picture snapped during a sexual encounter with a minor is a violation of the statute then really i think we know from what we read newspapers that millions of teenagers who are engaged in having sex with each other for no other purpose than engaging in sex with each other and snap a picture can be prosecuted under this statute and that really isn't the intent of the statute this is is to punish people who are trying to create child pornography and there's no evidence that that is what mr torrens was know question i'm just trying to understand what the millions of teenagers are taking pictures of that they're taking well they're taking pictures of everything in their lives including their sexual encounters with one another with one another s the child pornography charge was the city is display of genitalia and that's what we argued in the m t o a argument that's what we argue to the jury and what the boy testified to was that appellant enticed him into his parents bedroom appellant took off the boy's clothes appellant directed the boy to lie down on the bed and it is true that the testimony at trial was ambiguous about  exactly what happened next because it was extremely difficult for the boy to testify about these circumstances but it's clear both from the content of the photographs and from the boy's testimony that what was court or for its review under appropriate protective circumstances but the boy is fully spread across the bread his legs are apart his erect penis is very prominent the focus of all four of these photographs is the jenna tail you have the particular photograph that we think isn't of greatest significance in this proof shows appellants hand of the boy identified appellants arm and hand shows his hands sort of positioning the boy's penis as as the photograph is is a closer look if you can imagine if you have a friend who's a gardener the gesture that you see is what your friend might use to find that find that the purpose of the sexual encounter when it was actually an act between a mutual act between the individuals find the purpose was also to take these photographs they will note that there was a pause in the action so to speak so let's posit let's posit these chain of events that counsel suggested so then we would be able to argue let's say the oral act occurred and then the photographing so the government would then argue appropriately that appellant induced boy to go into the bedroom appellant took the boy's clothes off appellant directed him to lie down on the bed appellant engage in an oral sex i do order to stimulate the boy which such here state movement i knowledge i did not focus on that your honor and the government would be having to address that in a post argument submission is if the court would be interested not on but i think we have to know you as well that these are distinct pieces of legislation om that the courts have recognized that congress has said that that there's such an overwhelming interest in discouraging the use of children and committing sexual acts against children and using them to produce pornographic images that at least that this particular statute needs to be interpreted broadly so we think that that at least there's a  purpose of taking the picture we are right there are other elements in this case that's just one factor that's important to this analysis that there are other elements in this case that are comparable to cases in other circuits we mutual sexual activity occurring at the time the photographs are taking and there may be momentary differences here when there's mutual sexual acts occurring between the two parties then it is a little more difficult to tease out the particular purposes and motives of engaging in that act because when you ring in in gauging in that act it's more likely you're doing it for other purposes your own satisfaction expressing your affection for the other person those are the people not that not necessarily the kind of interruption that we are talking about would have had to hurt here because again accepting the chronology that's been posited or that the court accepted below at least he had to redress i'm sorry i don't follow that i mean to me the the evidence is does not on the chronology and one where that is most challenging for the government to view it this charge is a much longer sentence and is this act for the purpose of it well your honor congress certainly is well aware we can assume that congress is aware of the way the courts have interpreted this statute and the courts have not i'm i would assume the congress is is aware of that as well and yet the the concern that you're expressing would appear to be one that that that the statute needs to be addressed not one where the decisions of the other courts finding that the the language of the statute permits these prosecutions that the circumstantial evidence is sufficient because those courts will find that arm these prosecutions are like yes your honor but i think we also now have to recognize that what occurred in this case is people don't set up or need to set up cameras like that because we are all probably carrying around our cameras with our cell phones so recognizing that change and new technology just because the technology has advanced doesn't mean that there aren't other pieces of evidence in the record to allow us to concluded that the that a dominant or a acts in this particular case we have enough of the factors to allow a reasonable juror to conclude that a motive a dominant purpose of this overall encounter was to enable the taking of these photographs otherwise there was no why would you pause to take photographs that required some time to do so if this is really an encounter that is primarily to engage in sexual activity between the two individuals why it's it's no excuse to say that it was difficult for the going to testify and that's why we didn't pull out the full story from now in terms of the govern happen well my first point is there's no evidence about the chain of events in this sequence of events and the second is the government knows that that is not the sequence of events because they have