the honorable the united states court of appeals for the st circuit is now in session all persons having any physicist before this honorable court may give their attendance and they shall be heard god save the united states of america and this honorable court court is in session case boils down to a simple question for this court to decide canon guilty plea to distribution of child pornography he sustained were no pornographic images or file names were cumbered or could be identified there's not a the defendant has admitted to the commission of the crime so the question is is the defendant's admission together with whatever circumstantial evidence there really isn't transactions with this individual in south africa i believe it was that he did distribute some images so the question is do  those images qualify as child pornography defended tells the district court by use admission that they do that might not be enough or view because distribution of porn and grandchild pornography requires it to constitute a sexually explicit conduct of a minor and without an image we have no with his i think the distribution charge was just an added charge in this case i think he was guilty of all the other crimes but not just her abuse and of child pornography when you don't have images to say it's even a child a real child now believe that the record by the government is that six images were traded on even twenty nine dollars with the gentleman in south africa but there was no description as to what those images were because they were n a guilty plea to distribution with out an image but there is absolutely no description of any of the images sent and related to this point i mean the government had statements by mr that he only that he was involved in some on one video of his daughter were ever found and if he didn't produce more than that this isn't a case for a defendant has thousands of images of his daughter or thousands of video it was very minor in terms of how many images were actually even produced in this case which is why the majority of the case centers around a sexual expert to exploitation charges but i don't i don't see how we're this court should be comfortable with a defendant admitting basically what of cour all right misstatement thank you would you please mute your audio and video with this time and the attorneys or earlier if you would on  amendment argument and the adequacy of the c foundation is that the defendant has assumed that by disagreeing with the identity of the minor that the content that he havior in the image and whether the image depicted a real person it's clear from the record however that the only thing that was contested was the identity indeed defense counsel assured the court that identity is irrelevant and on a pill and her reply brief the defendant concedes that identity is irrelevant and the court made a finding and here particularly on a playing error review standard there was more than irrational the rational basis for finding it the prosecutor put upon the record many details distribution as to what those images contained was depicted and if we have not is not sufficient to meet the rule eleven standard well we have an admission that it was well he's contesting the identity he's not contesting the content if the daughter had a twin sister when we did in the same boat it went no way i want to be sure i and so your i you shaming them through record shot string that proceeded the exchange of the images it's very clear what kind of content both those parties were looking for in the images they were trading the only thing he didn't want to admit the public in the publicly held pleas here where is that his daughter was the one in the picture and it's not the st time that a defendant has contested some aspect of a factual predicate when it came when push came to shove  plea hearing but if that fact isn't an elemental fact if it isn't necessary to support the charge then this court has affirmed the acceptance of those pleas having inadequate factual basis that's the nature of pertaining to lack of images and a distribution to count because if it's a plea it often isn't appealed this one wouldn't have been a field except he said something he made a remark at  the change of plea hearing and a remark that his defense attorney put on the record was not relevant to the court's consideration so in order for this court particularly under plain error to overturn their  have to conclude that the defense attorney was also wrong in informing the court that that one factual statement didn't matter and that all the other things that he had was admitting to and that he heard the prosecutor say that he didn't contest all those findings were wrong and there's just no evidence to support that conclusion as to the constructive and then claim it stems from the same flaw and i also know that the construct of unending argument is should be reviewed on plane air or whatever took place in the court below the words constructive amendment are not on the record there was no argument  that what the court did was constructively and mend the indictment and therefore as my sister concedes in her opening grief the note for the constructive amendment  government to try to pursue another charge it would have to be based on photographs that were distributed on april th and would and since we don't have the images would involve the constellation of circumstantial evidence that was laid out in the record at this change of plea hearing there's only one set of facts that we so i don't see how you could prosecute twice on that single set of facts well i think the point is that since we don't know what the were since the record provides no real detail that the that the government potentially could come up with a number indictment and say oh yeah but these are not the same six images that we were could have been asked to describe the images or verify in some way what the content was i mean it's like it's like i couldn't tell you to defend them for robbing the store in light of the amount of evidence that the government did placed on the record of the plea the plea hearing and the fact that the only thing the defendant contested was the identity of the child in the  photograph i it appears to me from the record that everyone including defense counsel was satisfied that the government adequately described the evidence available and that there would be no risk of anything no risk of a then someone else comes along takes a fresh look at the situation and says watch ridiculous they have nothing but the defendant pleading to charge there's no factual basis here so the council goes along more risk involved for the defendant in having the police those on the most detail about the contents of the pictures turns out it's been disputed by the defendant and then it was accepted after prior discussions of the sexual content of pictures that's all you have now maybe that's nothing but i think the record doesn't show any more than that as to the content of the six images of minors in a minor unlabeled  conduct were transmitted over the internet the only thing that we just do that is just stupid is who the minor rise and that's not required to support the please particularly under the standard review he