dollars which is possession of sexual performance of a child now the federal courts of the board of immigration appeals have said that a state conviction can constitute a federal aggravated felony when the elements of those statutes categorically match and when the minimum conduct required for a conviction under the state statute is also a conviction under the federal statute and that is not the case here and that is not the case here specifically over the issue of knowledge of the age of the individual in pornographic material when it comes to two dollars to five dollars to a four b the supreme court in the united states excitement video specifically said that the knowledge component applies to both the nature of the material as well though this is a form of the fence there is a knowledge requirement that you have to know not the age within which child pornography what's your response well i'm going to get the jury instruction that they say to also specifically says that it is not an element of the crime and the government that term means they have to know it was child pornography you have to know the exact the the way i read those cases your honor respectfully is your term of the henry and yet in the cases in those cases the defendant invoked the affirmative defense and it was the defendant that sexually explicit in nature and they have to prove that the individuals in the material are minors they don't have to prove to prove that the child is five or six but they have to prove that it's apparent from the image that the child is under sixteen i agree is that the not the actors in their character and using your view of what character and kind of means are children but not that the defendant has knowledge of that at the time of possession and this is why i think the heart of this issue is how character and content is defined only possesses right knowingly possesses all in new york knowingly possess it will mean all of the elements with regard to what it is child pornography knowingly possesses material where they know the character and content but the character and content does not include that they have knowledge of the fact that the individual is a minor so your argument is that if you knowingly possess legal adult pornography under the statute and it turns out to involve children you're liable under or what the elements are but people but if you look at putting it in a would people be gilmore also looks at the constitutionality of the statute and they note that when it comes to the age of the child that's a strict liability component to it because more cases also cite is different than under the consolidated laws so that applies to statutes cases that definition of knowledge applies to any offense than the age of the child at issue here is anyone under sixteen that does not need to be proven the jury instruction backs that up i know the government cites the jury instruction in their relief but it specifically says it is not an element of the crime and thus the people are not required to prove beyond a reasonable doubt that the defendant knew the child was less than sixteen not that the defendant knew that he was a specific age he uses the term less than sixteen the henry case the yet in a case in those cases the affirmative defense was revoked the analysis in california where they had previously ruled that was in fact a conviction for child pornography but after in light of new arguments they revisited that issue and overturned themselves so yes it does overturn a real and but i think it is important reason why we're here is that these arguments were not raised wieland involves a federal jurisdictional element about transportation of child pornography and again i think while i understand it isn't it's a trial case you more does involve the most comprehensive discussion of the constitutionality of the statute and in that they refer to that provision of the statute as being strict liability and yes for constitutionality as excitement video is concerned with you need to have some form of mens rea or the mens rea or is a sexual nature of the performance the sexual nature of performance you have to have knowledge that is pornography if it involves a child that is under sixteen you know more says in that aspect the been a strict liability unlike statutory rape cases they do give a level of protection where the defendant then could put the issue into play by introducing the element  they did not know the child's age thank you permit conviction of a person with a completely innocent state of mind for for a crime this crime is a crime of culpability there must be  a guilty mind and in fact there is expressly in the statute which is the character and contact that that has this court has said that and the house case it's  circuit case that that mental state of character and content is the exact same mental state and is fully as stringent as the mental state articulated in excitement video  the the statute doesn't require it is not an element that the prosecution show we're not going to get into the number and there's no need to prove what  aged that the defendant thought the child was however they must have the guilty knowledge of the crypt of the very essence of the crime it wouldn't even be a crime if they didn't have the only thing that makes it a crime is the fact that it's children actors and this isn't a statute where the word of seen is used this is the absolute only thing that makes it criminal and so and in fact the mens r child pornography law whether it be possession production distribution the mens rea and each one of those statutes is character and content and there is no cases that i've ever interpreted that to to say that it's a strict liability crime as to character and content character and content by definition engulfs knowledge of the of the criminal nature of the material again i this court said so in case also i think that to say i understand that gilmore does use the word strict liability but it seems a bit internally inconsistent to me because if you read more very careful it says that once knowledge of the character and content is proved proven it's at that point it becomes strict liability i think the court i i i'm not sure why they use that term and i have tried to find any other court nd circuit or new york that has similarly called this  you know this the language the language uses prefaced it repeatedly in gilmore with once the once the prosecution has established that the person had knowledge of the character and content i the fact there is children in this performance at that point it becomes a strict liability once the government proves the person actually was under sixteen artfully drafted because the because they do say that the government doesn't have to prove beyond a reasonable doubt that the defendant knew the performers were in the age of sixteen but the jury instructions also say that the government must prove he was aware of the character and content that the definition of this crime of sexual possession of sexual performance by a child if you look at the definition of sexual performance in that title which is the child pornography section is the specific lea as any performance or part thereof which for purposes of this section include sexual conduct by a child less than sixteen he must know that he is possessing sexual performance of a child which by definition means he knows that  child pornography that is that's what if the court were to in this case to find that guilty mind was not part of the elements i think this we have very anomalous results here you would have questions as to the constitutionality of the statute which i understand is not at issue in this case but like the court noted in the x case the court said to to read out the mens rea of the parental clause which was what it was an issue in that case would raise serious con constitutional problems because the very the very bans rare that makes it criminal would be read out in the court refused to do that and and so it would it would turn out to be a perverse result and that's exactly what would happen in this case if the court were to interpret the elements in the manner that petitioners urging  excitement video and ferber both supreme court cases have made very clear that the crime is a crime of mens rea and mental culpability it's ferber in fact was was interpreted in two to sixty three argument has some facial appeal because gilmore which i would note is the lowest court in new york did use that word circle liability but read in context and i think that it's just  linguistic fact that statements and words derive their meaning from context and i think when you do that here the court was not dispensing with the defendant's need to know that what he was dealing with was child pornography that's that's not a reasonable interpretation of the despite the i believe in artful use of the word strict liability is a mens rea a crime a crime of culpability and every court that's looked at it has said so statute way against this being a categorical that and i understand your argument that it doesn't we look at the elements of the statute not an affirmative defenses we've never read the circuit hasn't written to say that and i write about and an affirmative defenses are not part of the analysis also i mean this i think that point to the affirmative defense in this case and saying that it supports his argument is is actually incorrect because in affirmative defense that would negate the element of a crime would also be an improper burden shift which is not what which isn't what happened here that the court did say that in gilmore but i think that militates against his argument as well  that that again i think the state is required to come forth character and content of the general nature that's the guilty knowledge that must exist we're not going to it would be too difficult to look and prove exactly what age the person didn't think that the performers were and so that isn't one of the elements but but the guilty mind is necessary to taking the statute in context and the case all the cases that have interpreted it have all found this to require there some some knowledge that that he's holding chapa now graffiti without that you have a serious problem with the constitutionality of the statue which has been upheld want to address the fact that the government has pointed out that sexual performance is defined to six thousand three hundred dollars and that's notable because the statute does not say a person is guilty of possessing of sexual performance of a child when they knowingly possess a sexual performance of a child i mean it's defined in the statute they could just as easily have written in their sexual performance of a child because it's defined as performance says knowledge by the defendant of the age of the child which the jury instruction interprets to be under sixteen that that takes the knowledge to that component out of it what's your respons believe that was a doper gone if you're wrong in strict liability you're guilty there's no more no no than that and then you do have an affirmative defense and to address that you know new york has rolled in the patterson case that affirmative defenses of mitigation in new york are appropriate it doesn't necessarily does in some instances make the age of the child grow that are his good faith knowledge of the child relevant but it puts it upon him to do it but it doesn't that doesn't absolve the government of stablish ing that  child pornography doesn't know because they still have to prove it's pornography and they have to prove that a child is in it not that the defendant had knowledge of the age of that the child was under sixteen but not the defendant's mental state ok but but for the jury to convict him the jury has to be convinced that what they see is child from the same thing that he saw that's ok but not that when he accessed that he had knowledge that that was a child as defined by the new york statute and that that the statute makes that very clear that he has to knowingly possess trial and it says he has to know he has to knowingly possess material knowing the character and content