punish purely interstate activity this statute was unconstitutionally as apply and i would urge the court to just follow mccoy counsel do you think honor and i would distinguish well and here's the difference to me in this case mccoy were the cases that have upheld twenty two fifty one a voice said that child pornography is interstate in nature and that there is a there is no situation and no evidence to suggest that he was going to put the her photographs in any type of interstate commerce or he was good distribute those photographs in fact those photographs were found it is home so so although yes he  d the film and the the camera was produced in a foreign country and that had traveled interstate and there was there was no disputing there was a stipulation that that actually had been produced out of state how did your client communicate with this individual he communicated by telephone and by computer so there was no dispute that he had done this as a calling to raise money to solicit her by by the internet but but the issues surrounding how we contacted her is not significant for these counts because these counts charged him with enticing a minor to make a photograph of explicit sexual conduct that conduct or she came up to northern california and the photographs were taken of her in northern california so the activity that gave ri the counts eight nine occurred within the state of california and didn't travel in interstate commerce so you have to look at the activity that's that is actually charged not the fact that you can't he might have used the computer and other the parties relied on the case of us vs out of you know and if the circuit case the but there's no ninth circuit case dealing directly with this particular issue and i w court not to follow asked of pot to find that unit of prosecution is the use of the minor rather than how many photographs were were produced from one stating when sitting at the mine or for taking one sitting and she sent three photographs and the government charged each photograph as a separate unit of prosecution asked the council eight nine with theresa that the government charged two counts based on two photograph out with a single stating that photographs were taken and with two minors and said that that constituted two units the prosecution but it didn't go so far as the say that is the each photograph that should be a unit of prosecution and it is given the statute really doesn't punish the photograph it punishes the enticement of the minor to take photos of the explicit like to discuss the issue of the denial of the continuance of mr cashbook pretrial made a motion to continue the trial based on his the defense of inability to investigate the hard drive that was taken from stephanie and to check her hard drive for all or instant messages now that the offer of proof was that she had communicated with other people indicating that she recently believe that she was over eighteen and secondly to refute to the contention by the government that she was a minor because the government had the burden of proof to show she was a minor for at the counts one two and six out the defense  she was that stephanie was over eighteen or the government's prove her age was a critical issue as to all these counts and it went to the heart of the defense mr cash your factual basis for of searching that there were other e mail messages in which this individual you know stated that she was over eighteen there was a series of conversations record that that she had communicated with him and that she wanted to come to california and the defense wanted to explore all those e mails to find out whether she had represented that she was over eighteen to this gentleman or to  these issues are certainly up in the air right now in terms of what we should do with u s versus booker and your client wants to go back to judge fogel of the recent us yes he did in an environment where he's not constrained by the guidelines nationwide search and hunt for minor victims across the united states in five different states using the internet he falls the advertise had his vision for them he offered to fly them to california he called them by phone he herself and send them back to him he also threatened the minor in pennsylvania that she did not do what he wanted he would sent some photographs of her to her local newspaper in pennsylvania so this is a man who was this dramatic we targeting minors he was an addict a a college student about coming out to california this information was provided to the defendant for months before trial and number and he had four months to subpoena the internet service providers to get any information about the body unless that he wanted to be chose not to do your argument reb prosecution of a family where the father had taken a picture of his wife and his young daughter yes and this was him with a bunch of pictures of a family vacation or whatever it went to a photo lab in the photo lab person informed authorities right absolutely wrong or so but the the court this court focus was on the any evidence in that case that the defendant had used in instrumentality like the internet to set in motion what happened you know there was not but the critical distinction i mean the reason why mccoy is president it talks about photographs never traveled interstate commerce they never intended to travel interstate commerce and in fact that he might have used the phone or might have used the internet to get to talk to the miner and get up in northern california is really not relevant to the issue and the jurisdictional basis that needed to be established by the government for this case ok thank you for your good thanks both sides for their argument the case just argued will be submitted for decision we'll see the last case on the calendar this morning which is the united states versus