the evidence did not demonstrate that mr sensitive specifically intended to transfer it to the fictional minors when he sent a text message to the undercover detective he believed to be their adult mother now before i get to my first point i would like to point out two things points of emphasis as to the of sanity issue the first is that by using the term of scene congress specifically limited section fourteen seventy two material that is of seen under the three part test in miller and we know that material is only obscene under miller if it isn't seen as to adults and what that means practically speaking here is that the government can only prove bail if they score the greens that the material is she here recognize in his dissenting opinion smith versus united states in nine hundred seventy seven the thing about the community standard is that we are never going to it's never going to be disclosed in the record what standard the jurors were actually given the instruction from i believe it is eighteen u s c fourteen sixty two transporting obscenity in the mail statute there is no specific the circuit pattern instruction for this statute of course you don't did they get instruction about that yes your honor they were instructed that the in order to determine whether the material here is a scene you have to decide whether or not it meets all three of the problems under miller first that i was  but you do have the jury being told that that this is relevant to the monitor so there is that possibility that the jury might misinterpret the instruction but we're not here challenging the instruction your honor as we're simply asking this court to deal with the supreme court scenarios where genitals are actually depicted in a way that is far more patently offensive then the still image that's at issue in this case it's untouched it's not in the context it's not being displayed in reference to any type of community understanding images that are white the one issue in this case but all we're saying is there's no there's nothing in this evidence to suggest or in this record pardon me to suggest that the members are the citizens why the text message explicit text message conversation that occurred alongside this is not part of the work that this court is looking at or that the government limited its case to with a voluntary bill of particulars in this case the jury wasn't asked to decide if the sexually explicit conversation and the picture together all if i as obscenity they were asked to decide if a picture of an erect penis is obscenity and so that is what the obscenity issue made but then he said to me it is best to count exactly what the jury was told if anything about obscenity visions and the only thing i can do is point you to the jury the pattern during struction because that is all the jury was told now of the problem ok i would tell me what that's the pattern jury instruction tells the jury to look to the three prongs of miller it says you have to look you have to decide whether that was that what the jury was so yes sir and so the matter instruction get went to yes on the second prong and then the other thing that's relevant of course is that the detective that's the bar's testimony in this case is entirely consistent with our view should recognize that this is the type of images you would expect to see in a medical dictionary it would certainly in margaret was a obscene movie and the supreme court did an independent constitutional review and said as a constitutional matter we cannot find that this is obscene how is it sexually explicit speech absolutely but the first  mean to to maybe the best diminish to start is what is in your mind the best circuit level the same description of this is an area where the circuit courts have not been particularly clear the only definition i could find was that third circuit definition that i included in the brief and so i mean i just as prior does look at this a little and his dissenting opinion in the second pass prop the free speech coalition case of if you want to some guidance you could look to that but at the bottom line is what we're saying is that there is a broad national consensus that these type of images just are not something that people do not think that they are exchanging criminal long to do so but our second contention is that even if this image is of seen on a statutory interpretation basis the evidence demonstrates that mr saul saito transferred it to the person unquestionably b be an adult and the evidence doesn't support an inference that his intent in doing so was to convey that image to the fictional minors are if he didn't come by he certainly caused to be can that's true your honor and so i would agree with you that by saying and well let me back up he caused the picture to be shown under the context that we have here showing is not the same as and they is this court's published opinion and certainly hasn't sent that image again in interstate commerce and so that is that's kind of the point that we're getting at here is that the intent relates back to the use of interstate commerce and here there was only one of those and at that time patently offensive conduct and that's what we have here even if you look at this image just on its own the four corners of it what case federal case anywhere other than hughes dick cases are not identical being handed they were found to depict self touching or masturbation ok i really am asking for an exhibition because masturbation of course courts are occurring right but in rodgers the court goes seems like a different world then this photo here yes they are there i will pay you those are those are and yet that's are different so what would you point to from our circuit that found something to be lewd prosecut but and but as i have as i've pointed out or as you point out touching and set up it in the opening there is no case that goes the other way either and says that it cannot be offensive as as a matter of your knowledge the department justice doesn't have any internal guidelines none that i'm aware of and i did look but i did point out in my in my brief several cases hughes being one of them barlow also from this circuit and there are other  cases where defendants acted in a very similar manner where he sent images of his erect penis to children and was prosecuted for either state or federal obscenity charges including section fourteen seventy nine as you pointed out the miller test was not discussed or challenged and mr house accurately pointed that out as well but the jury's must have been instructed on what it means to be obscene and the juries came back with guilty verdicts and i think that's an indication that under our contemporary community standards the jurors didn't didn't find any miller jenkins said jenkins excuse me jenkins said that the appellate court should properly step in and overturn a jury's verdict if it is wholly at odds with miller for example if a jury were to find the depiction of a woman's hair midrash to be obscene that would be an appropriate time for the public court to step in and say you've gone too far but i think case obscenity which is the three miller problems we're only focused on the second law and can the jury properly find this image to be patently offensive sexual conduct right out nudity i thought  thirty five minutes it's an exquisitely written in the first five six paragraphs are how we don't give deference to the jury that would be too easy he says that would lift from our shoulders a difficult recurring unpleasant task we cannot accept it i thought i pulp the emphasis in our law is absolutely we don't put the jury verdict on the scales we've we've got to confront this because the risk would be suppressing for us to members be right but the supreme court said it has to be wholly at some type of sketch maybe from a model you know a study of the male form but ok so you're saying every photo op an erect penis qualifies not necessarily i mean we have to we have to do a little bit more on this w that the male genitals extend from the bottom of the frame to the top of a fraud the man is slightly reclined of i suggest to you this is not an unnatural position his legs are spread his hand is very close to the genitals suggesting masturbation it's not you know down a decider of some kind you know as if he was posing to be this is not us this is not a photograph of michelangelo's david this is not me or nudity them i want to get back to you about your nudity because in jenkins the court said the film carnal knowledge was not patently offensive but it's a civically said there was nudity in the film but the camera did not focus on the actor's body s nor was there an exhibition of the genitals we have got here mr saucy till page fifteen of his brief concedes this is an exhibition he takes issue with the lewdness part but you know black says lewdness is moral and purity or want most in jenkins the supreme court said well it's a public display of sexual conduct for its own sake a miller specifically talked about that your honor it said offensive depictions of sexual conduct at a minimum required scientific value and then or or some other value and it said for example medical so again exercising you know your your independent review he gives medical textbooks as an example of why it's within the bounds of contemporary standards but then this idea that there is a social no the defendant did not argue no i think you're asking about the transfer element of the second issue that is raised and the defendant never argued what it means to be to be transferred never raised my response would be first of all the conversation was about mr self sado arranging a meeting to have sex with these children and the conversation going back and forth with rigid concept home  one of the text messages says she says can i see a pic here right yes and that's what you're referring to but the the text message immediately before that was because in response to him asking what do they know and you know what what has to be taught she says they want to learn what can you teach them and then she says so i can get them ready and can i see a pit now for it yes i understand i understand exactly your point but this is a good undercover officer who remember i remember this after his arrest of one of his excuses or stories was i was not interested in the children i was interested in the kids will be precise writers are exceed the answer i was that i was interested in the mother i was not interested in children i say yes i agree i didn't he didn't get extra time for these two camps they were concurrent they were concurr on whether c answer could be supported by his later question did the girl see the photo i think that's part of the calculus and he asked did they see what did they say about the photo after asking  about how are we going to get them ready what do they know and how much do i have to teach them and keep in mind that this is a very common tactic by sexual predators online predators often send these kinds of materials of scene and pornographic materials to children in an effort to groom them or desensitize them right into believing sexual encounters are the norm and so forth and so it's very easy to see him asking well what did they say only a photo that's not available to you even if it's intriguing legal issues i don't think you have to ignore the text but i recognize the bill of particulars did limit limit your focus and i would point out that we did argue in the  closing argument without objection we did argue that the photo was sent as part of the sexually charged conversation and that's at page four sixty eight of the record in the government's closing argument and we also elicited it was up speaking to us earlier he said it doesn't make something that's not obscene obscene because it ends up with a child should do you agree with that that we have to assess obscenity lewdness as the photo exists i do agree that you have to assess it from you have to assess it from the average person under the under the contemporary community standards you don't look at it from the most tolerant view or the most intolerant view it's what does the average person think on the contemporary community stand corpus cristi the supreme court has made it clear that there does not have to be any sort of a geographic determination but it but it has made clear that it's the local standard and so jers are going to naturally apply their own knowledge from  was that does the government does not have to present evidence about the contemporary community standards but the defendant may offer his own evidence to support his view that the contemporary community standards find acceptable he could not do that in this case ragsdale said that the jury could even reject unrebutted expert testimony as to what the local community standards are in that case they tried to present evidence that you know you could go down to your local bookstore and buy a magazine with images that were very similar to those at issue and the jury didn't have to assess that and then you know this is this is a very difficult thing to sort of articulate a community standards are not subject to a clear legal rule it's you know i mean it's like the i have to say this but it's like it's high court justice stewart said i know it when i see it and i understand that that is that is vague and but that's the best we do we trust juries to make this determination you as the court have to use your best judgment looking at the entirety of the case all the circumstances and did the jury come to a a reasonable correct conclusion was that was the evidence sufficient and that's the way the court has talked about it in the i'm sorry the defense have any affirmative case at trial no they did not put on evidence and so the rule twenty nine motion i take a little bit issue i don't think that the argument was was preserved as to he's trying to make a statutory construction sort of argument now as to what it means to transfer someone and you have to intend that the child of possession and control of the obscenity when the statu is designed to prevent kids from being exposed to obscenity it's the exposure that causes the harm not the possession of control because again this is what sexual predators do we know that from the case law has multiple cases where  like you just with i appreciate it i want to begin if i could by focusing on jenkins because i don't agree with my friend mr reid that jenkins limits the time where we reverse based incorrect finding a pattern offensiveness only if it's wholly at odds the court did use that phrase but then the very next paragraph is our own viewing of the film satisfies us that carnal knowledge could not be found under the miller standards to depict sexual conduct in a patently offensive way nothing in the movie falls within either of the two examples of hard core conduct while the subject matter of the picture is in a broader sense sex there are scenes in which sexual conduct including ultimate sex acts is to be understood to be taking i agree that through the bottom floor as far apart as ragsdale is from here but that phrase wholly at odds sort of makes me think well that makes a lot more sense we can allow the jury verdict in the community to have some weight but jury that was properly instructed as to the elements of no i can't give you specific authority to judge against and i wish i could all i can tell you is that in some cases it seems like the court is giving more deference than it should and in some cases it doesn't seem like it's giving any  independent must mean something of those up the jury verdict yes it does have to end just to finish that point on the whole the at odds quote is when is the court discussing generally not the evidence in that case that is not linked in any way to the evidence in that case that is it would be wholly at odds for us to do something like this it's like a hyperbolic statement but then the court brings the analysis to the case and does its independent review i agree with you judge higginson that the lack of cases out there is a indicator i think generally it's true lack of cases could fall one way or the other but here i think when you pair it with the overwhelming societal consensus and ongoing debate over what these type of images are and should be and how often they should be transmitted that it weighs in favor of the assumption that prosecutors simply aren't charging this type of conduct as obscenity now and i'm not suggesting for this court to take a string out of the government's bow or anything because any time an image like this is going to be transferred to an individual who is a minor or pretending to be a minor the government will absolutely be able to do exactly what it did here and bring enticement charges because simply sending a picture like this to a minor is fantastically overwhelming evidence of an intent to persuade or inducer entice that minor to engage in sexual activity in mr self state it will be serving one hundred sixty eight months regardless of what you do as to these issues because of that but the question here is whether the obscenity charge should have been piled on and based on this particular picture we think the answer is no and again the government's only answer on a regular penis was well something that has artistic value or something current but it couldn't give you an example of a case where an erect penis wouldn't be patently offensive since they are basically reducing the category down to nudity and that just does not square with our understanding of the internet lawful pornographic web sites couldn't exist as they do today if it is simply making available a picture of a male erection could expose an individual to for the websites to federal senate the charges but that would be the logical extension you see we are on their theory lawful pornographic websites morning found mr i think their counsel would have to talk to them about that i do i honestly do i think that it would be a difficult situation because you don't just have the statute you have fourteen sixty fourteen sixty one fourteen sixty five fourteen sixty six all of these statutes regulate the interstate transmission of sanity and if this is obscenity under section fourteen seventeen it is obscenity under each and every one up but if you'll permit me i'd like to answer your question i do think that's right but but regardless there have been as we pointed out in the brief there have been prosecutions and reaching one every one of those statutes for emails and for websites and so it