inconvenienced change of court rooms caused any of you i don't know if your set up already i was told that the speakers were dead and the other kaoru my weren't quite sure which what that meant to the three of you are here and good health and i say  speakers mechanically will work well which fiercely against don't need this particular warning but be aware of our lighting system and stop when the red light comes on don't save anything he's kind of is not the evil that this particular statute twenty to fifty one lessons before i turn to the standard of review i'd like to talk briefly about that  pornography for the purchase of the purpose of producing a visual depiction of the sexually explicit conduct that is with the specific intent of producing their depiction or in order to produce that conviction that wanted the money to just take a new picture and you have to take a new picture to have the intent to produce there was a reference at some point even to video to you have skype conduct of a tea or whatever commerce but not in the it's a he has to have the purpose of producing a visual depiction i would also point out that he was only charged with producing a visual depiction not and that's an alternative means that was added to the statue not for the purpose of transmitting a lot of web cam picture and he would be convicted of something he wasn't charged with by the the united states but i think the main issue is that he was just talking about different ways that he could see the government didn't think it had to prove that he wanted a newly created picture so it was settled let me ask you that you say the government had tumbled to what it had to prove that did anyone argue to the jury either counsel for the defendant or counsel for the government emphasize that this had to be for the purpose of creating a visual depiction no there was no argument focused on that no no got the which is why the government is claiming plain error the guy here's the here's the argument of the government he he wanted sexually explicit pictures he said it over and over and in his interview and then it is statement that he walked into the f b i and announced he says josh was fourteen said he was fourteen and he asked for pictures of his face in genitals that  field later in the that's twenty four eighty six dash eighty seven the record on appeal later twenty four ninety two is the prosecutors going through the elements of each count as to count one he says second that the defendant acted with the purpose of producing a visual depiction of that conduct what was his purpose in asking what agent house and set the times for a picture that was it i mean he didn't argue new picture old picture he just government did not see that as an element of the did not see that it had to make the distinction between was he asking for a new picture or was he asking for an old picture of he was asking for an old picture he couldn't have asked to see for the purpose of producing the picture the picture already had been produced my standard of review that's a little tricky i think and i don't think the court needs to picture but that's far from any kind of proof that he did i think it's clear from the overall scope of the conversation that the defendant wanted to see didn't hear how he saw  therefore it which it really shocks the conscience to convict him of attempted production of child porn on the second is and i don't think you need to decide the standard of or between that whether the error was preserved is the government believes that the factual underpinning of the purpose element and the interstate commerce element dovetails that's twenty five and page twenty five of the brief in other words if he was not asking for newly created picture you don't satisfy either that interstate commerce nexus based on decision you are a judge killing in running the united states versus runyan cited in the brain or the purpose then the government also had agreed that mcglynn preserved his objection to the face of the city of the evidence of interstate commerce and therefore the conviction must be reverse in less the government proved that the gate was asking for a newly created picture under jackson versus virginia so you don't have to get to this is the reason i think it's a somewhat tricky question is because mr cheney the defense attorney clearly made a general objection he followed it with specific objections and i think it would be for this court to say  and then he said you should send me a pic so he's already received the best pick but he wants another one and that to me could support or does support an inference that he's asking for a new one well the picture that was  was a picture of a facial right so i mean right but then he said you should send me so he's been asking have been asking i'm asking him for pictures and after he says he sent his best then he asked for another one and so to me that at least arguably supports an  inference that he's asking him to take it because he's already given him what he's got josh has already said you know i've done my best well not good enough send me or you know i think there's a distinction between  take a new one and send that doesn't mean it's his purpose that's a slightly higher level a distinction in other words you have to ask for a new picture as your baseline to even get into the possibility of purpose but i think if you prove it in the jury was properly charged but we typically don't get in the minds of whether the lawyers knew what they were doing if they accidentally did well then good if they accidentally did poorly even bad i mean that's it in an that just taking a picture and asking the minor to engage in conduct for the purpose of taking i mean it's a specific intent that you and this is really was a very harsh an interstate commerce the jury was instructed on two elements to to ask that's what was the visual to print depiction was transmitted using materials that were shipped in interstate commerce that  been transmitted by the agent's computer there was no evidence of that so all that's left is that the defendant knows or has reason to know that such visual depiction will be transmitted or transported using say the internet that has to be done on the defendant has to have that knowledge or reason to have that knowledge at the time such a visual image is created and that's the specific language out of  in that the the the reference to such a visual trend depiction will be transported means the visual prints the depiction that the dependent intended to produce and therefore writers like josh although the brits are framed to present three separate issues on appeal the first two really do blend together and we don't think this case to those on the standard of review so ultimately this case boils down to two separate issues the first is even under the gaze chosen standard of review the other that simply wasn't suffice if the evidence was more than sufficient excuse me for reasonable juror to conclude that mcgee attempted to persuade josh to take and send a new testimony about ricky's having sexually exploited children now getting to the first issue again even under the jackson vs virginia standard the court views the evidence in the light most favorable to the verdict in grants all that's my best pic with respect to again the not explicit photograph that he did send and half a dozen times mickey wasn't satisfied with us he kept asking for penis photos when that wasn't work working he tried to warm josh up with lots of request he asked for pictures of josh's bulge he asked for pictures of justice boxers as as we discussed yes for pictures of jockeys but all efforts to groom josh toward sending what mcgee ultimately wanted what was his m o based on a view of the entire record which was underage boys sending pictures of their penis no the council made it an issue about whether the intensity that mickey had that josh then on in this in this area the case is united states versus names from the eastern district of new york in two thousand and fifteen its case involved interactions between an online provider of videos featuring young boys mr bathing and a customer and fan of those videos now when you name the defendant and the customer asked for additional videos of the favorite subject on the provider of these videos said that he didn't have any more name asked if he could get another  explicitly held and i quote name specifically asked johnson the provider if he had addition photos of john doe minor and johnson informed him that he did not from that alone the jury reasonably could have concluded that name understood that any new taking of the photograph these physical like this case was overcharged i mean it seems like this statute is trying to get at kind of the the uncle in an array amy is going out and producing  depictions of minors and sexually puts was it wise to put them on the internet and to exploit the children all that is clearly aimed at that and even under your analysis of the facts here and we don't really have that here i mean as creepy as the facts are they don't seem to involve somebody who's trying to take these pictures and you know feed them to the masses so to speak so what do you think this case was overcharged dr directing from the justice department is to charge the most serious readily provable  case this was the most serious readily provable facts and it came with a very serious military minimum sentence we do think judge that there's a distinction between the people who simply ask for a minor to send a photograph without and what the judge said when he gave the charge about this creating the really wasn't but again the issue is whether the evidence in the light favorable to the i know that's the issue my question though is was was and did anybody make an issue out of this with the jury neither neither the government nor the defense the the again the the issue at trial was  inference was derived from and given the evidence in those advances there's more than sufficient evidence to convict talked about you know is this person's name just a minute ago but there's two other cases that are directly on point in this case they're both two thousand and twelve cases they're not safe versus mayor and united states versus police the from the eight circuit in the second circuit respectively now both of these cases featured online correspondence between adult male and underage girls in one case there was sixteen and another liberal was fourteen no both men in these cases never asked for the minor girls to take photographs and send them to him but they did ask for the girls to send photos photos of breasts and gen stuff going on and so i mean it does happen that people take their own picture and have it so how do we know from this other case that they didn't already have selfies explicit selfies or whatever will judge mcgee you know he kept asking for the particular part but it wasn't i'm not sure we have here anything where he has a specific like the way that it's got to be presented no judge but the surrounding circumstances indicate that you know he was requesting photographs with specific images for example what are you wearing right now boxers send me a picture of you in your boxers and it's a different count but  the dos test from the southern district of california the kitties asks whether the focal point of the visual depiction is on the child's genitals or a cut pubic area whether the setting of the visual depiction is sexually suggestive whether the child is boxer he said he liked to watch kunis is walk around again this is the type of specificity that even if in the underage boy had a picture of his penis already saved on his own you know the implication or the belief that he would have such a on completed twenty two fifty one offenses but again the issue in that case was causation the issue was not an intent of the of the adult to bring new child pornography into the world this was a completed twenty two speaking briefly about the second issue here was touched on briefly by opposing counsel now the counsel suggest that these three isolated remarks from agent allison were helpful to the jury and therefore ran a that he had it out for mckee or that he was persecuting get a man out of out of proportion to all men or all people who commit these offenses to be it's helpful to look at the questions that invited these comments the questions were clearly aimed at getting him to discuss why he used certain vernacular in his correspondence with josh michael misspelled bourbon street why he why he was asking me the questions that he was was involved in a conspiracy in this case however mickey contends that these i'm hopeful opinions offering legal conclusions because the phrase sexual exploitation of children helping them out on to the phrase in the united states code that's the title of section twenty two two which has a five year mandatory minimum and in fact the conduct in those counties was more serious because the council the conduct was completed photos were exchanged back and forth and they were all previously taken photos and in one situation mickey actually went to meet with one of the children one of the minors and yet the government only george twenty two thirty  two it's in the record in this case where the trial counsel filed a motion to complain that the twenty two purpose of the twenty two fifty one count was merely to force a plead because of the threat knew that the person he was asking was going to have to induce the child to perform the sexual act in order to get the the visual depiction so clearly he knew that something new would have to be defendant was having sex with a minor and taking a picture the same so clearly it was a newly created picture and the court said you have to look at whether he induced a minor to engage in sexually