d it did not prescribe all communications seeking and offering child pornography it described a limited subset of community notices in advertisements that are made printed and published the terms notice is a advertisement the plain meaning in relation to one another and in the context of the whole statute show that one to pretty one day is best read to include a public component indeed every is there a difference between notice and advertisement absolutely or what's the difference what did congress have in mind when they strong together both any notice or putting it in the district of advertised i think that question has three parts ok so it's an advertisement are different a notice is generally something that it's a announcement that conveys information and notice doesn't have to be an advertisement so to use a non child pornography example so a notice would be the act of imparting information it would be an announcement about information absolutely on and so if i impart information to others on line that's a notice generally speaking but not in the context of this statute or where it is it's a that the notice has to be a public notice couldn't car words have said if they wanted to that the notice was quote a public notice or advertisement if that's really what they were after they said what they were really after well they didn't say public notice but they said notice and i want you to tell me if noticed means and you accept that it does the act of imparting information and related senses why that wouldn't be enough here well your honor congress said what it meant when it said make printer publish a notice or advertisement context determines meaning every statute about every can of construction status in context plain meaning no such or associates a negative implication can show this is best read to include a public component and asked why did congress try to limit the public components with a legislative except there's any ambiguity after looking at those canons of construction the legislative history further supports if you look at the house report about the enactment of this fence they specifically mention magazines newsletters electronic bolton course exact language is to knowingly make print or publish or cause to be made printed or published any notice or advertisement seeking or offering to receive or exchange blob or pretty broad pretty expansive or i would say use your honor the word any modifies notice an advertisement but we have to know what notice or advertisement mean rice or any means every every notice or advertisement but what does notes or advertising mean it's anything that call i know what an advertisement means the focal point here is what is a notice mean and in the context of the statute of congress want to get everything that has a general definition of a notice  language was not defined by congress so isn't the assumption since they didn't define it that it should be given as ordinary in customer a meaning and that's what the court did here to the jury in their inquiry in the court said it's nor nary an customary meaning endeavor if the if the gas company tells you you haven't paid your bill this month and is going to cut off your gas it comes in as a notice that your gas bill is going to be cut off that there's no public context of that is a private communication a notice i'm giving somebody notice of what i'm going to do and in this case is seems to me the defendant gave notice that this is what i'm going to do to you if we ever meet and  notice that i am interested in receiving photographs of you that are provided for your honor again you can't just look at the we're notice in its general sense you have to look at it in the context of the statute make print publish a notice or but we don't that's and that might be a tougher case but this is make printer publish you look at the legislative history you look at the context of the statute you just make mean well let's hold aside print or publish or a moment and let's focus on the  to play with two well i understand i mean it's not about a list it's about an association that's what we it's about making sure we're not giving words unintended breath so the word me has to be understood in relation  something for public consumption and that's further supported when you look at where do you get that for public consumption that's what we're all confused about i think when you look at print and publish that informs what has to inform beans and you look for that notice an advertisement we're not talking about all c the verb to print or to publish one can make something without printing or publishing this data is designed to get anybody who's in the process of sending out an advertisement or notice they can do that the person who makes the medium it's about the context and juries have to go and look at the context was a relationship between the communicators how big is the audience and maybe a relevant factor is this going to be shown later in a court proceeding or  sometimes and it's going to depend on context if it's three longtime friends who are just drama it up and something on about unrelated activities and it happens one them says hey i'm looking for child pornography there be a strong argument there's not a public component there but it's three people who only know each other because of their participation in the child pornography community maybe that doesn't count maybe that they're all talking in relation on a message board a three person chat room and i say hey to one person i would like your pictures of child pornography that may count so it's going to be context pacific whether or not a three person message makes it to the jury or not will depend on context let me read to you what the third circuit said harris comment on it referring to the difference between notice and advertisement to the general public they suggest that if a notice is interpreted to mean a announcement to the general public it leaves very little use for work for the word advertisement which is itself to far and as a public notice the court that as soon that by including both terms the drafters meant some difference between them advertisement implicating an announcement to a wider audience no to simply meaning the communication of any information to another party on r c my time i printer publish notes or advertisement with a legislative history showing exactly what congress was getting at the guidelines talk about any offense in ball the you know sure advertisement involving language is much broader and then on top of that the commentary to that guideline provision provides a rule of construction it says construe this guideline broadly and the purpose was much broader the purpose was to generally target the child pornography community that case is very an opposite for that reason alone but it about a burger summit got it thanks very much and you have reserved mr curran your full five minutes for a bottle and how do we weigh that into the into the factor here of whether it was either invited error or something i don't think it was invited error here because they didn't argue for it correct but if they didn't object then do we circuit cases that say that you must give a jury instruction about the meaning of the word notice no your honor and in fact several circuits have done exactly what was done here is that earlier it is an act of imparting information as can be a circumstance where a landlord is providing a notice to quit tenet regarding an eviction or it could be a notice from or to a person regarding sent regarding an upcoming that would be a tailored notice on a set of course the statute here doesn't just talk of one kind of notice or another kind of notice it speaks as broadly as they could  notice your honor it does whether it's a formal notice that is kind of replete with legal implication or just imparting any information to anyone that would be any notice would yes that's pornography that would be prosecute a crime that could be prosecuted under count to twenty fifty but not twenty two fifty one a converse lee if someone were to bring a camera into a school and a hidden camera into a locker room or  appellant referred to and i'd like to note or emphasize is that there seems to be a desire that advertise a notice or adaptable to technological change there the congressional report highlights that they were not going to limit its application to magazine or newsletters rather congress had the foresight to know that they were concerned about a recent technological phenomenon the computer bulletin board and that's why congress had that foresight and why those words are adaptable to more technological advances such as messages like judge newsome said earlier via facebook the next case could be an individual attempting to contact someone via facebook messenger via instagram direct messenger and appeal issue or a factual appeal as you i would have thought that the better approach would be to say we wanted a jury instruction defining notice it's a legal term the needs to be defined and we're going to fight about whether there's what the legal definition which is what courts do that's not the way this case was presented to us it was presented to us with a given on the case history that notice is submitted as a factual question to the jury so then the question is was did the jury was there simply no evidence from which the jury could have found that this was notice as the jury chooses to define it which would both parties seem to agree was was ok for the jury to do and so it's not ok to tell a jury you're going to make a legal definition here but it is ok to say to the jury this term is common it doesn't need a legal definition you give it a practical definition at that point it becomes a question of fact and that's a much harder case for the appellant to to prevail on because the jury then look at this and said factually we think it's true was given the statutory language make print or publish notes or advertisement and as naturally understood to have the public component now here's where perhaps it would have been better if the jury was instructed that naturally any ask you in that respect m digital ever say to the judge in the words or substance i want an instruction about the meaning of the term notice and here's what it means it's got this kind of public tina to with this something more than just jones is communicating some kind of information to the average asks the judge i know at the back and when the jury question came in you said no it's far and let the jury decide it but was there ever a request on the front end when you presented your instructions to the trial judge i want you to give an instruction to the jury because it has a peculiar meaning in this context in this statute it was not a specific instructional request however however what the jury was given was the statutory language they were told yet they had to finally make it to make printer publish a notice or advertisement perhaps it would have been better if they were explicitly told about the public and on it but it's natural in it and what made matters worse was that we had argued in our jail way we argued to the jury not withstanding never having asked the judge the judge to give an instruction and notwithstanding having said at the back and when the jury said what's the word mean you you  that to the court suggestion that the jury simply be told just use an ordinary common sense meaning to it as a matter of law we ought to be concluding that notice necessarily could not harper and what happened here yes your honor because the jury was told it had to find the mr and if made printed or published a notice or advertisement not that just he made it not just that does this is this a notice or an advertisement the plain meaning of that phrase in context has a public component what made matters troublesome here not just the plain meaning you say it's the only meaning not withstanding the breath of the text any notice it's the best reading of the statute not that can have to be the best reading the question is that the only reading it may not be the only way you are but we're doing a sufficiency of the evidence argument we happen to know what the legal standard is the measure of whether the evidence is sufficient so we have to know what it means we have to know what the best green of the statue's to know whether the evidence is sufficient to meet the statute there was nothing per se wrong with the jury instruction but what happened let me ask you the question this way if you had it to do all over again the next case like this and they come up with some regularity what would you tell the judge to instruct the jury that the meaning of the word notice i would tell the judge to instruct the jury that twenty two fifty one has a public component what that means is that you should get the communication in context is a public if i go on facebook it may be yes your honor i'm just communicating with my daughter she lives in chicago i live in miami and let me be clear about what i mean by public component is that a public is that a public component if you post if i send a message to my daughter like an e mail or go on  is a social media platform you post something yeah but it doesn't mean i'm part i'm posting it to the whole world i can be much more refined and specified to a particular individual or only a few so on this facebook account  my daughter in chicago and my son in rochester so i would argue that and they have two grandchildren i have two grandchildren with each child so now i'm up to six and i post some information to six people so i would know i was in court in jacksonville in the weather was great but i had a high old time in a terrific panel and lawyers were terrific and it was really lots of fun that's what i communicate to two children and four grandchildren is that a public notices or how does that fall into what you're talking about i would say that probably isn't public notice but how come  because this is a test whether or not something has a public just feel that it's somehow different i want you to i want you to articulate for me and for judge newsome what it is that gives it a certain public character that's distinct from simply imparting information of a particular character to a limited group or only one person here's the test it's it's not a numbers game it's not a medium game it's a contextual inquiry and there are going to be close cases we're not saying has to go to the general public maybe in some instances a one on one communication can count but it's a contemptuous inquiry you have to look at all the circumstances around a communication and the writer is listening to this dialogue wouldn't you come away if you were just a man from mars walked into the courtroom and listening to that to me is not nearly the answer is no it wouldn't be wise to let the jury decide i think it would be wise to let the druther them giving them a particular definition i think juries have to make contextual determinations in many cases all the time textural i'm gathering from your dialogue with with the markers that that this is you're saying it's not directly a procedural or or process started out by reading that way your brief started out by saying there's got to go to a wide broadcast just a factual process to go to many or a few but now in your dialogue with those markers you're saying no it's not enough about whether it went to a lot of people or a few that is not process it is are you talking about the kind of thing that you would talk to lots of people about or only to a small group of people and i think you lose on that one with i think congress was very clear that they wanted this to cover a very small amount of solicitation of sexual activity with minors and not just to be requiring that you solicit that for many minors your honor i would simply say that what congress was getting at was advertising magazines newsletters olten boards not the type of one on one personal communication at the can to a phone call mr kins mr can if the case is fairly straightforward he went on a dating what for his purposes was akin to a dating website he met someone in the course of flirting asked for pictures of themselves no one would commonly call that making a notice everything about the context here shows it was  personal if he was no formality it wasn't in a chat room to a lot of people his primary purpose was and somehow it obtained child pornography there's nothing suggesting he was going to show these communications to other people  later you're making you make you're not arguing a alternative clean easy definition of notice you are arguing an alternative definition which is much more complicated that  cannot be answered merely by the process of who talked to whom and how many people you were talking to even though that your brief sounded to me that that's what your position was but now you're arguing it is you've got to look not only at who talked to how many other people and how many people could get on their dialogue but also you've got to look at the content of what they were saying and make some additional decision that this was the kind of thing you would say to many people or this is the kind of thing that you would only say to one person if you have a look at the substance as well as a process that becomes much more complicated and again i'm wondering about the wisdom that i'm just saying you're a you decide well your honor i would say two things one i don't think it's non exhaustive list of factors you can look at but you the jury have to term and based on all the evidence you've seen and all the argument you've heard this have the type of public component that congress was trying to get at the second thing i would say is that if you include all communications you're going to render this offense redundant with solicitation and distribution violating indifferent this would just be a solicitation a distribution of fans now i would also like to see my time's expired if i can briefly conclude on one thought bring it to a head where five minutes over we submit mr condit's communications do not qualify because they do not have a public component that said if congress truly wanted to capture these types of communications a text message during the course of a flirtatious interaction and subject