minutes are about all that mr weidner may handle the manner in which this long arm statute was applied in this case by the government and the court's instructions means that any u s citizen who travels anywhere in the world and ha consensual non criminal illegal sex with a person over eighteen years old and video records it can be subject to thirty years in federal prison and a fifteen year mandatory minimum merely because the prosecution and the jury think the videos subject looks like a minor no there's a piece missing that the defendant himself believed choose to engage in that activity often try to nail a twelve year old what's wrong with being held criminally liable in the united states when i come back there was no minor involved in this but your client the jury concluded thought there was a minor but he wasn't convicted of actually accomplishing the crime he was a victim of attempt which is what he was trying to do it just turned out but there is some evidence to suggest that maybe fourteen i respectfully disagree with that big the government's interpretation of the one statement in their hours of recorded conversations and interrogation of him and his second language that position but i read a lot of things that suggest the baby there's more than one allegedly misconstrued statement in that this is the sufficiency the evidence argument and so if you want to get to that argument we are years earlier she said she was fourteen yeah fourteen yeah she told me she was she told me she was fourteen and it goes on like that but that's only one of the many facts are and which so far i think that you're not to get far at least with me saying that he didn't think she was fourteen she may not have actually been fourteen but that was his belief in addition you got this book that your client maybe attempt to find to test to testify about the process of obtaining documents in cambodia and why it might be unreliable but i don't think that you can base any finding or ruling in this case on a finding that the documents  unreliable there's no jury finding just doesn't have to be we reviewed the evidence in the favor of the prosecution and i asked could the jury have found the jury doesn't make explicit fact by fact findings but could the jury have made such a finding in route to its verdict that's the question we asked there's no jury finding the fact that there is no jury finding is irrelevant as a verdict of guilty and so we look at all of the evidence and for instance in the light most favorable to the government to determine where the vendor is sufficient evidence well we must begin with the fact that there's no jury finding a miner was involved and so you must assess the situation from the point of view that sufficient for temps and that's that's a legal question is there any case that squarely holds in your favor on that question that the person had actually has to be a minor for a no but conversely there's no case that holds that you can be convicted under this subsection c and in particular c to be for attempted manufacture of child pornography and troy but there is proof that the person believed it and tried to deal with a person who was under the age of consent well as i was saying me is a different  statute this statute is extremely unique in that it's strict liability statute that meat was prosecuted under is not strict liability and also it's involves inducing a minor to engage in sexual consenting adults minors can't consent legally so if in fact the government has proven beyond a reasonable doubt that your client thought he was dealing with a minor we're not talking about  it must be assumed that they are adults for purposes of must only have they must be assumed for your purpose that he believed she was fourteen but she was actually eighteen or older that's what we have to assume criminal are just ok i would like to address that so assuming for your purposes that he actually did or that it was proven that said he thought she was fourteen when they gauged in this con still it would be an unconstitutional application of this statute because it could capture within its net defendant are u s citizens who that at their peril apparently have consensual sex you left a piece out and i pointed out that you left the piece out and you never explained to me why that piece didn't matter if it's the case that he thought he was dealing with a minor what's the peril he was trying to commit what was going to be a criminal act he was attempting to do it he may have been fortunate in the fact that there was evidence that she was not a minor but this far as he knew he was doing exactly what the law prohibited why can't that be sanctioned as a can as an attempt to commit the crime because as a practical matter it would apply to persons  who have sex with someone who appears to be and who minor when they think the other person is a minor that's the piece that i said you were missing and you never explain to me why that's not a critical piece if she doesn't think he's a minor he can't be guilty of attempted but they convict him of a temp presumably concluding that she thought that he thought she was a monitor and what's wrong with punishing somebody who was trying to commit a crime well th e express terms of the statute indicate that you must produce a visual depiction of a minor engage in explicit sexual conduct and either intend at the time of production or thereafter transport such a visual depiction and the real that is what he wanted to do that's what he tried to do it's sort of like saying that someone hasn't committed an attempted bank robbery  what they end up with this monopoly money instead of u s currency that they never really got any money so how could it be an attempted bank robbery and that's really what you're saying here this this guy did everything in his power to to make a sexually explicit movie with a fourteen year old and bring it into the united states that's what he wanted to do that's what he tried to do that's what he thought he was doing and he just lucked out that it was monopoly money so why isn't  an attempt and i mean i don't see any defect constitutional or otherwise soon though well the constitutional defect is what i've been trying to explain is that  invites prosecution where for instance a videotape is seized and the prosecution and then perhaps the grand jury says well she looks like a minor to me i wouldn't do this with a minor if i had known she was only fourteen that person has not committed a crime but that's not the facts here well with all due respect to the court the only way to read the statute and allow it to pass constitutional muster is to require a minor there could be an attempt if there's an actual minor and you try to make sexually explicit conduct and fail conduct in one country and you brought the fruits of misconduct into the united states why does not fit within the foreign commerce clause and what does that have to do with first amendment rights you say you can have sex with whatever child or whatever you want and that's a first amendment right is so much saying no the first amendment right is the freedom of sexual expression between two consenting adults which would be chilled if you think that well if the  good morning your honor simeon please the court ross goldman for the united states starting where the court left off the sufficiency challenge on count one the tissue court was correct in this he said to prove the attempt it suffice to prove as the government here did that chairman thought that his that and was a minor and the reason that's true is because of fundamental principles of attempts liability that requires the government to prove that the defendant had the specific intent to violate the statute and that the defendant took a substantial step toward the complete toward the commission of the completed offense it is mr jefferson's belief that he thought it was a minor that establishes his specific intent to in fact create the child pornography it is indisputable in this case that he took a substantial step he actually made the films and brought them with him to the united states this theory of template ability is also consistent with cases like me and like johnson out of the seventh circuit where courts have said basically regardless of whe this might this whether the victim is a a minor for purposes of the completed offense for purposes of attempt liability what's required is what we have here proof that the defendant thought his victim was a minor this interpretation also squares with underlying purposes of attempt liability as this court laid them out in meek the notion that someone who commits the completed offense is equally culpable equally in need of deterrence as someone who tries their very best to commit the complete offense but fails only because of some circumstance unbeknownst to him on the sufficiency point itself the government it used ample evidence that mr chairman thought at the time he made the videos that the victim was a minor on the sites or in our brief i would point the court for example to page four twenty six of the supplements or supplemental excerpts of record this is a post arrest interview with the text of force where he says but you have a video of you in and having sex and you think she's fourteen years old mr j and only word to describe these videos of him having sex with within just to respond briefly to the to the first amendment challenge i think the dispositive point here is that what mr chapman was convicted of trying to do in child pornography is categorically unprotected speech under the first amendment there's absolutely no basis for protecting efforts to engage in unprotected speech i'd also know just as and i don't point that claim does not raise it's subject to read for plain error it would fail at least both the first two prongs of plainer if you most certainly fails the first i'm happy to address any of the other issues in that case i do want to make one point with respect to count the me just preface this by saying if this court affirms that conviction on count one none of this is going to matter with respect to count two but there is an issue that arose in the reply before about whether the government would be barred from retrying mr chairman on count to say that is his own attempt to travel overseas for the purpose of engaging in illicit sexual conduct and i just want to make two brief points in response to that because we've not had a chance to respond to that argument the first point is that the the better inference here is turkey jury did not circle not guilty the better inference there is that the jury was therefore hung i think that becomes especially the stronger inference in light of the question and answer during deliberations about whether or not unanimous on count one circumstances should that not be sent back to the district court to consider in the first instance i don't believe so you are the hung jury there are no double jeopardy consequences that follow from a hung jury the first the original japanese not extinguished also i should reason for us to address this the stage as i understand there was a reference made in the reply brief but if the issue really doesn't appear to be teed up at this point i would agree with that is so if i understand your position correctly it is that you to remain and with that i'm happy to answer any other questions the court may have on any of the issues otherwise we would we would stand on our briefs i don't believe we do thank you thank  about forty years i was trying to think about why are we here i'm here to represent someone with all due respect your honor is here to protect the constitution the district courts are to protect us citizens from unconstitutional home prosecutions the central case is what does the statute means and what can it mean to come across to do tional basis given the first amendment and the right to privacy the only way the statute can be constitutional is if there has to be a minor and here's why because of the way the statute it was applied and written someone could be prosecuted merely because someone looks like a minor we've been down that road once before you can stake out that claim if you want but didn't get much traction the first time it may not but i need to address it you're on your o anybody in the united states and this statute if it's applied that you merely have to find that the person intended to make us a tape of a minor is drastically overbroad because it's merely on appearance just like the ashcroft case you can't prosecute people because a jury might think that it's pornography and that's that that's the answer your honor it's i'm not talking sufficiency in this particular case some talk about a general statute and you can't dispute the fact the way the statute was applied anyone that has sex with an consenting adult that looks like a minor could be convicted that's not the standard is whether they think they're having sex with someone who is a minor and the government in this case would have to prove beyond a reasonable doubt that that was the case but they think they could prove that merely on the basis of appearance or honor because the statute talks about only only if the defendant believes the person through appearance or otherwise was a minor  minor otherwise a person could be convicted merely for attempt merely because of the jury's saying that person looks so young he must have intended and that's that's an appearance conviction it's over broad it sweeps everybody into the net and it's frank government offered evidence that went well beyond the appearance of anna the government offered evidence that steve your client's own words so you can are you've exhausted your time arguing a case that's thought it doesn't mean the statute has to be applied with the absolute requirement of a minor otherwise it's overbroad because in other cases they can prosecute people merely on the basis of appearance and that violates our escrow and that's a major major distinction and i don't understand you from your comments that you're not very receptive to arguments but i'd ask you to really think about that that if this statute is not read to save it constitutionally so that there has to be an actual depiction