we have five cases on the docket today for oral argument we will likely take a break either after the second or the third case we're going to begin with key factual findings made by the trial court during the bench trial were that the surreptitious videos made by mr trey week were not the serious and were therefore not illegal it was only the cropping of still images from what the court determined to be not a legal videos that the court then primarily because the miners were not found in the videos to have been engaging in sexually explicit conduct which is are the elements required by the twenty thirty one statute and also your client pled guilty took one count the possession of differ and then did you motion to dismiss at all below or as the only objection that was made a rule twenty nine objection is a bench trial right it was a rule twenty nine objection  k so at that moment did you allege anything to do with first amendment disallowed a conviction or was it purely an insufficiency of the evidence accepting the pattern instruction elements well we argued united states versus williams in our rule twenty nine motion acquit so your argument was a legal one or was your argument there was insufficient evidence under the existing pattern elements i think it was both the way the way we argued it to the court was that courts has really my mining to subcomponents one is the engagement verb and the second is sexually explicit conduct are you saying there wasn't these photos didn't depict sexually explicit conduct which gets us into the are you saying these miners weren't used to engage in what could have been sexually explicit conduct which is it ok which is your primary argument based on case law the court found that the miners were engaging in toileting activities and if you look at the videos they're just getting on and off the toilet in and out of the issue but here wasn't videos the judge ellison looked at these were freeze framed that he went through painstakingly correct that's what he found  to child pornography because ok so i'm ask you again are you claiming that the law requires that a defendant in gage a minor engage affirmative conduct by them in sexually explicit activity or you claiming whether or not the law requires that these photos didn't depict sexually explicit conduct which is it and if you're saying it's both which is your better argument for reversal well your honor the the minors in the videos that were taken obviously not engage ok so then it's the answer is you think the law requires that the defendant we use them in an affirmative way is that they were engaged because they didn't take affirmative action themselves sexually the definition of child pornography on our twenty fifty six requires that the production of such a visual depiction of sexually explicit conduct was the lascivious acts of a just a general's the production of such a visual depiction involve the in gage meant could contemplate a minor that's completely ignorant of what's going on so if you think in gage means more aren't we bound by those cases i think it could your honor if the minor for example as was i think mention in stain might have been in grime a minor was asleep or was being posed or the girl sitting on a toilet the girl's asleep in both cases they're not in gauging in anything at that point my thought is what you really argued to judge ellison in what most of these cases get involved in is whether the photos then in turn depict in particular the exhibition of general dolls in pubic areas and that just comes down to well you have to look at this deviant photography and decide is it lascivious and we get tangled up by what the serious refers to well you have to make a determination of lasciviousness your honor but before you do that i think you have that there has to be a finding that the minor was used there was use of the minor and gauged in sexually explicit what's the difference in a girl sitting on a toilet and a girl asleep they're both being used similarly they're being used to take the photo i think the problem is your honor is what the court out and for of the supreme court for and then ashcroft talked about which is the reason child pornography is exempted from the first amendment is because it involves sexual abuse of children and what it what was the statute which is pretty much mirrored in the federal twenty two fifty one and twenty five to six a what was found to be sexual abuse of children it's them engaging in the sexual acts that's why for and  ashcroft and for if speech coalition exempted those videos from the first amendment the those types of productions of actually photographing of actual child sexual abuse that's not what happened in this case there was no sexual statute if the if the if the actual victim if we all the person that's being depicted is not aware of what's going on no i think it's not doesn't have to do it just them being aware you're on i think if they were engaging in sexual it would be twenty fifty six eight your honor the definition of child pornography which is that the production of such visual depiction of sexually explicit conduct involves the use of a minor engage in sexually explicit conduct which is the made still photographs and cropped up so that you had depictions of pubic in general area and that what we're talking about here no your honor i think because the ferber was specifically tied that the reason we take child pornography outside the protection of the first amendment is because it involves the sexual abuse of children there might have been an invasion of privacy in this case but the supreme court has never said that merely the invasion of privacy at least in the child pornography context has not said that is sufficient to take it outside of the protections of the first amendment they may do so at some point in the future they haven't done it today and i think ashcroft the free speech twenty's these these are real photos so for example what's the difference in the photo of your client pled to his child pornography in the photo five two point three that was the basis judge allison found those were different pictures your honor but neither  simulated they're all real girls they're real girls and you're saying one is within ferber and one is outside ferber because what because when you're posing minors to lasciviously exhibit their genitals that's a form of sexual abuse acute angle into her pubic area why isn't that posing your honor i think if you look at the way the statues define use of a minor engaged in conduct that sounds you keep it on the right you keep referring to the verb that exists there which is contemplates actus reus but we've got a lot of case law now when i trace it back the carol decisions almost twenty years ago are wrestling with the argument you're making but we've got intervening case law that's published in binding that's pretty explicit that the minor can be completely unwitting that equals engagement we look at the photos we apply the doest factors one of the factors may be controversial there may have been discussion about that what's in the mind of the producer the recipient but pretty much that's irrelevant i say it's did the man make a photo of focused in on the general area if so we've said that equals the elements well i don't think in those cases the court is side of the argument was made that i've made in my case and i think i specifically a lot of those cases were sentencing cases or it steen wasn't seen was going to be reversed to conviction right which is exactly the relief you're asking being filmed i think that's correct your honor but the problem is here the court and what was the sexual conduct of the child in steam well there wasn't sexual conduct because the child was just new janet canning salon which is similar to hear there nude in a bathroom there was i thought our court emphasized that the video virtually just passed across in a blur the pubic area there were is here the defendant angled the camera to get a still frame cropped of just the pubic area well the absolutely don't have a problem with that and that sexual conduct is defined in the statute and when of course still masturbation and the lascivious exhibition of their genitals i think that is what's considered to be child pornography is when you're filming children engaging in sexual acts here the children were in as as distasteful as it is the children were engaging in toileting activities that's what judge ellison found and later editing or cropping those images i don't think converts their conduct which is was not sexual conduct into sexual conduct all right thank you counsel your time has expire may please the court opposing counsel my name is kimberly vulgarly ill and i'm here on behalf of the united states the evidence in this case was sufficient to support the defendant's convictions for the sexual exploitation of children in count one and counts two as well as the distribution of top an opera fee in count three the district court properly found that the five images five dash two point three five dash two point four and five dash two point ten five dash two point eleven and five any sex like conduct for the producing any visual depiction of such conduct if such a person has reason to know that such visual depiction will be transmitted in our affecting interstate or foreign commerce in regard to this case we had the defendant who used a child he used both be after eight sixty's we have a six year old as well as s j the eight year old and as the court has held in steen as well as in grimes an individual uses a child if he photographed a child or if he videotapes a tiled the question then turns on whether or not those five images are sexually explicit conduct the district court found it to be and the government's position is that it is in regards to the sexual explicit conduct under title eighteen united states code section twenty two fifty six in the context of these particular images they fall into the last category which deals with the list of b s exhibition of the genitals or  twenty two fifty six does not define what lascivious exhibition of the generals or pubic area is however the court will look at its ordinary meaning which is a depiction which displays or brings forth to view in order to attract notice were examining a young woman for a ration or genital area and they took a photo would it be with the government what aspect of the pattern instruction or your argument would mean that that wouldn't be a felony offense yet i think looking at item that's that's what the government here focused on before judge ellison and that's the factor that we criticized and steen at least in the concurrent you're a great honor so when the district court here twenty nine argument asked the prosecutors so it all comes down to the question of how he cropped the photo and the government answer is yes and says well look he was going to trade these to someone in australia he wanted to have intercourse with a child the recipients arouse the producers arouse that's all the final factor right yes ok but where in the statute does it say that guilt turns on the state of mind of the producer here i think that  dressed in a sort of a fur coat and that could arouse somebody and under the government's theory that could mean that person is guilty of producing child pornography your honor in that particular scenario with a winter coat there would be a list of these exhibition of the genitals what we have in these particular lascivious ok so if we have a doctor photographing the genitals it all depends on what the state of mind of the doctor was no your honor i believe it depends on all the different actors and i think that looking at the context of how that question you do you're familiar with the carol decisions ok if i'm not mistaken our court decided to not pursue on bach because the government conceded that judge garwood position was right that it requires engagement of the child in sexual activity does the government today still agree with that government position your honor it's a little bit different carol and carol case it was a now their child's face that was cropped onto the naked image found previously in the macall case cite if we reiterate that and we're bound by that law does that deep in a split create a split do any other courts highest state courts or federal courts require the engagement of the child but i don't believe that the other courts require an actual engagement because if if the child needed to be engaged in some sort of sex act if there was some sort affirmative sex that yes then it would basically eviscerate that last problem which is the i'm sorry under it's the depiction it's what the producer did tuned to that image in the it's the image doing the action not the child doing the act we said that in mccall yes your honor and you think there's consensus of course yes your honor i do very troubled by the notion that the child isn't gauging in anything or the child is doing any conduct when the child is just going to the bathroom amendment issue lurking in this case i believe it's the clear our own and regards to judge ellison's findings that these images were in fact up another and you are looking at does factor specifically with these images five point two three five point two four five dash two point ten five dash two point eleven five desh two point well the court went through the different factors under doest and basically explained that the focal point of those pictures were in fact the genitals and that takes it upsets the first us factor that is the for no one is criticizing that do you need the fifth dust factor here the fifth das factor the sectional coin or the fact that he was e mailing simultaneously to people saying this is what do you need the more difficult work gloss about the intention of recipient or producer you know you're right i don't believe you do but i believe in this case you have it just as the court found in regards the steam by looking at the context of it all that steam was found to be just a boy it was just into a boy ism as opposed to being a sexual predator or producer here looking at the context of everything it shows a mr tate with was definitely engaging  conduct and that he was doing that for the purposes of creating these visual depictions which then he would use to trade with others and looking at it can textually in the terms of top progress see you get more if you give and he was actually actively trading with marc trader as well as the undercover to the point where he wanted these images and that's why he created them out using the videotapes where he position the cameras in order to get the minor children when they were in when they were using or engaging in normal bathroom i think with a scholarly current cern is let's say parents are innocently photographing their children in little outdoor pools in the back yard and they're naked in the photo happens to zoom in on the naked pubic area is that creating child pornography but no right and then but it suddenly becomes child pornography if that gets transmitted the later action of use of it somehow i think later action is brought about in order to in order to gain something from it so for example in that what you're you're bringing up is if it was an innocent picture taken by an individual who the videotape was he actually took the exact moments when the child was getting off of the toilet and zoomed in and cropped the genitals so the focal point is on the genitals and that's what the viewer would look at that yes he didn't actually physically touch a child but by taking and zooming and manipulating the video to create those still images he was in fact using that child and he was in fact virtually touching that tiled to get what he had wanted so i child pornography and if this court finds that judge ellison was correct in finding that those images below were in fact he they would not be protected and it's the government's position that they are top model feet in that they're not protected under the first amendment out and into these bikes and are sold around the world to people who will buy this child pornography that that would be perfectly alright and over which you could you could honor i don't believe the child needs to know whatsoever that they are being filmed or their images are being cropped or modified i believe the fact that the tile is being used in and of itself to create these images is enough furthermore in regard to this particular case and i believe judge against and you brought it up earlier as far as the difference between one of those images that judge ellison found to be the production of top model feet and another image that the defendant pled to or was which was found in his collection it's very similar so as the court just mentioned you can have individuals who have known child pornography images out there and defendants such as mr trey wick going in producing these images to mirror and look exactly like the ones that are of known name children so i think what you just basically said your honor and because of that because of the reasons stated it's the government's position that the images in fact  arousing to some individuals is it difficulty with it your honor it's a court were to i think even in this particular case if the court were just so lucky as some other circuits have in just the four corners of the photograph i think of the fact that the focal point of the genitals there is no other reason for pictures something like this i do believe on its face just looking at it even aside from that six factor as to whether or not it has to be the intent of the viewer the producer i still believe that under this char and taking the picture that's a that's a big jump from there of there right here i'd think that would happen in this particular case by the fact that the defendant cropped and zoomed in and he position the camera initially even though he may not have physically moved that child on the beach as in dost he virtually touched and position that child in order to create these visual depiction it starts with the statutory language and the verb who they refer to what's the c n tower but the other is just the fact that the sentencing guidelines put people in jail so so long for these manufacturing distribution so you're we're all wondering what's the limiting principle so that the government can't say well this photo that was more and more innocent you're looking at a two hundred month sentence and interestingly i think i'll turn this into a question when you look at our pattern instructions it tells the jury there wasn't one here be caution that not every exposure of genitals constitutes lives of its exhibition therefore look at the content the focal point the setting the place or pose but then at the very end it says or whether the depiction is designed to elicit a sexual response in the viewer and all of a sudden with that imports the state of mind of the producer the viewer which becomes easy to prosecute a lot of people will you were aroused by this photo however innocent it looks so you're looking at two hundred months in jail so and your answer is that isn't this case but what's happening a lot is the government at the very end can say well was anybody aroused by this and did they send an email saying boy i'd like to do this now at which point that equals the statutory language somehow so now to make it a question is there any case you can point as to that solves that riddle the difficulty of there being no limiting principle once you say sexually explicit conduct is whatever the viewer would think appropriate to consider all of these e mails where he expresses what he i do believe that what he hopes these photographs do yes your honor i do believe that it would be appropriate to consider that as regards to what the defendant was intending to do by him zooming in and cropping these images and then trading them for others in order to get more top model i have a i have that's where i have a problem so you could have just an innocent photo of a child with a bikini on but if you have a lot of email saying boy i'd like depiction and then you can bring in any context that shows that this was a listen vs ok yes i think lascivious modify sexually explicit conduct i don't see how it modifies the intent of the producer but we may be a field this is this is what our court has wrestled with this year and again i do believe it is also very fact specific so in regards to the court saying the government is planning on proceeding on all these other cases it would really be down to focused on one of the questions that i think is difficult one and we're asking is there a circuit split anywhere on these issues and i cited the case from the first circuit of mcilvaine you know this is from a kill the where the first the first circuit held that that fell far short of the legal definition of child pornography and was squarely within the protection of the first amendment even though it was nudity even though they were minors and even though the persons taking the pictures in disha of sexual interest in children so i think the court's struggling with looking at the intent of the viewer is problematic use of the minor to it and engaging in sexually explicit conduct which is those sexual acts skinny dipping is not a sexual act getting on and off the toilet getting dressed and undressed is not a sexual act if someone were taking pictures of children running on the beach that obviously are not sexual in nature there are kind of pictures that many parents take their kids and then cropped those images to focus on the generals would that turn that conduct which is innocent conduct not sexually abusing conduct into a crime and i think that's why grounding the statute as the way it's written by cop ponderous requiring sexual  engaging in sexual conduct that's what ferber focused on when it took this area outside of the first amendment that there has to be sexual abuse now there may be privacy invasions here and he's probably subject prosecution under a state statute for that type of privacy invasion but i don't believe he's subject to prosecution under this twenty to fifty one statute the way it's defined by congress and but i may have misquoted from that your honor i don't have it here in front of me right now but i do remember that there were i believe there was a finding in that court that there were young boys photographs of young boys skinny dipping in that that fell far short of the quote that i have is that it fell far short of a legal definition of child pornography and i could be wrong about that but i don't believe i am i don't have it at my fingertips right now but i don't think it just distraction the plain language of the statute which requires it's that list of sexual conduct obviously intercourse the other ones based yalit either obviously sexual conduct if you looked at images of child pornography such as a saw in this case some of those images clearly are those sexual acts when you have a minor gauging intercourse or engaging in the other conduct clearly it's a sexual act but when there are i think what congress is getting at in the statute in the prohibition one is when you're posing the minor to exhibit their generals that's a form of sexual act and it's a sexual abuse that's why it was made illegal by the statute and i believe that's that's an interesting it's an argument but instead i'm quoting a minor may be used to engage in sex knowledge i know that's what stephen says your honor and i believe if they are opposed and they're unwittingly being filmed engaging in sexual conduct sample teenagers and you have a camera catches them engaging in sexual conduct with every child pornography i believe difficult it's a difficult statute your honor but i think if you focus on the plain language of the statute it becomes clear but without having to engage into the does factors which only apply to whether the exhibition is