or good morning ladies and gentlemen the st case it's morning is united states versus how they please a court there is really one issue in this case and it's whether someone to be can be convicted of producing child pornography when the image that's captured is not in fact child pornography they answer that question just side whether or not that can happen and statute is important to start with the texas statute but also the verbs that use appears with the statute was written the one thousand nine hundred and seventy s it was meant to cover commercial producers and since then congress has changed many parts of it but it hasn't changed the core verbs that a plot use employ persuade entice coerce all of those are something that takes action upon the child it's not that someone coerces a child to stand in the corner while he himself engages in sexually explicit conduct apart from the child same with entices or courses are employed and all those verbs just like use if there are to be defined within the context that they appear demand that there be something gazing with the child here there is not now not only do we have no engagement with the child the child the sleeping child is clothed the image that's produced really the test of whether or not this qualifies under the statute is not something that anyone would consider child pornography pornography statute and exploitation statutes at least at the state level cover a very broad array of conduct this is not the federal version of that i as i understand your argument it's it's by its terms targeted at the production of child pornography even though it doesn't use that term that's right so that it's an argument by  the actual definition of congress imposer congress created two hundred and twenty five thousand and sixty eight dollars that's the definition of child pornography that we all use and that's post ferber and this statute was really like what is going on here but it's much different in the idea that it's not a sexual exploitation is doesn't cover anything that you would do with a child was constant has one you try to entice a child into an enclosed area for sexual purposes going away but congress here has the means to do that we have the transportation acts and we also have transport within the statute so if you transport a minor for the purpose of doing this if you engage the channels of interstate commerce then you're guilty of a felony but the key to this statute is really how do we interpret it if we look at it with bailey and with a verb that it appears with what is the object that we're trying to come back to though it doesn't say child pornography this is the child pornography statute courts for years have referred to it as production of child pornography when the government's brief refers to it as a production of child pornography statute and that's because that's what it was getting at and that's what it is getting at we're trying to combat the evil of somebody videotaping or photographing the sexual abuse of a child and here no one disagrees we don't disagree with what matt how hearing judge conley had gone over and challenge the government if that's what you put is oral sex because oral sex is one of the ways that you're caught within that i want briefing and then they withdrew that argument to say hey we're not we're not positing that this is actually oral sex is taking place here it doesn't fit within that definition and there's actually a specific definition for sexual act and sexual abuse and in the statutes so the mere fact that he touches her with his penis well she's clothed in sleeping doesn't produce an image of child pornography the child is still a prop the child is still is no different than if the child is five feet away or five inches away and both sense she's not engaged in the sexually explicit conduct and the bright line that we've that the defense has formed harmonizes the statute says have you employed the child have you enticed the child have you course the child to engage in but if we were allowed to use to become to cover the mere use court has often interpreted statutes we said what is the scheme here is this something that gets a fifteen year mandatory minimum and here that kind of just doesn't because if you possess if you receive if you distribute the child pornography itself an actual image of child pornography you're going to manage for a minimum five but now under the government's reasoning so long as your videotaped or caught in an image of sexually explicit conduct with a child in the frame that the child has become an object of arous used in interstate commerce for a house house is meant to be used for commercial purpose it is going to fall under the federal arson statute not that the homeowner used insurance or used it for collateral or used it to receive you know other tangentially related goods so i hope i'm answering your question in that we will use the news new way of sweeping child can be part of us no matter what he does well i would disagree with that your honor i think of a sleeping child is actually sexually assaulted if the child is unconscious in that regard then yeah i would say that or if that if he were to take off her clothes if you were to say you know if a child the sleeping and you take a photograph over and there's a lewd and lascivious display of genitalia then they clearly  that because the child is engaging you know per the mr howard whoever whatever defendant would do that would be engaging in sexually explicit conduct so i wouldn't put the bright line that is you can never have a sleeping child but i would say you can never have a well suppose we had a he had dolls and same conduct everything wouldn't be using the doll should not using within the way that you should be defined we can always say that use has many meanings you know like i use my credit card to pay for my room but i don't use it yet i don't use it today i have a gun i use a gun to protect my house but i haven't had to use it yet used can have a very broad definition almost limitless but it's how do we define use within the verbs it appears with coercive entice employees those are the verse and if you use is going to get its meaning from the verbs it appears with then it has to be an act of employment so i'd say that the doll if he was an inch or two inches or five feet away from a doll masturbating that's not using the doll to engage in sexually explicit conduct it's also not the type of thing that we would punish somebody with for fifteen years mandatory minimum the doll has just become a prop in a prop isn't the type of behavior that congress has thought to criminalize congress sought to criminalize the sexual abuse of children and well nobody here would argue that we like matt howard what he did that doesn't fall within what ferber and the supreme court has consistently said this is the core evil that we're trying to get at this is why you don't get st amendment protection you don't get it because that's a sexual abuse of a child and your just capturing the image of it does video number two at least potentially create a jury question under the statute with proper jury instructions that track your reading of the statute but i think it could be if one of the government's concession that this wouldn't fall within it like the oral sex then i think it removes it out of the idea that the sexual abuse and sexual after way that they were defined in the in the statutory scheme i think that takes it away if the government gives up the argument hey this is not oral sex then there's nothing for the jury to actually decide in that regard but i agree with you it is a closer call in the nd video the definition doesn't include attempt it sorry you can have an attempt to try to create child pornography that comes is a very long winding statute at the end of it it's like anyone who otherwise attempts to and that's where the government could have charged him with an attempt and it  chose not to ok so that's why based on the government the government's litigating decisions video number two wouldn't qualify that's procuring under proper jury instructions  this right there could be a case where this would constitute an attempt at oral sex for the purpose of creating a visual depiction of that oh i grew that i'm not going to concede my case  do if he was trying to get her to perform oral sex while she's sleeping or what would fall within that definition if you was trying to remove her clothes to then capture that image oh yeah that's an attempt all the way and that's clear under the circus case law if you want to brief it i can file a twenty there's no further quote your question yeah ok thank you of the defendant's genitals there is no question that sexually explicit conduct but if the defendant engages in sexually explicit conduct and the child is off campus well then it wouldn't be so  crime is still using the child under your definition yes that is cracked sleeping off camera but the crime is producing a picture of the entire interaction how do you get that from the text well you know you seem to concede that the the child has to be pictured but your definition of used as not required that well but the law says any person who uses a minor to engage in sexual explicit conduct for the purpose of producing a visual picture of such conduct with a minor has to be involved in that conduct right but the the visual image doesn't have to include the child under your definition you said as long as the child your definition as long as the child is the object of the defendant's fantasy that's good enough for using so the child can be off camera according to your definition how is that intuitively correct here well i think when you read the law it's a whole right what you is someone who uses a child to engage in suspect sexual explicit conduct and then produces a visual depiction of the kind of that includes the child i think when you read a lot as a whole it means the child must be in the picture and i understand your concern your honor with  that would be a closer call but that's not this case you know understood but you're asking for an interpretation that would include just what my hypothetical  and you know your interpretation would include what i've just positive as a hypothetical and i think the answer to resisting it well i think the answer is that when you read the statute as a whole and it says that the visual depiction is of such conduct well great because you're focusing on the defendant's conduct all that's important is the defendant's conduct in the object of his by his the object of his conduct not what's happening to the child  and the statute according to the defendant's interpretation focuses on what happened my best answer your honor is that when in the government's point of view when you read it as an entire because it says you're producing a visual depiction of the use of a child of the employer of a child of the persuading of a child the child has to be in the picture we wouldn't argue that a child could be out of the picture and it would be child pornography but that's what your definition of use encompasses as long as the child is being used as an object of sexual desire even if off camera it well if that's in the same room off camera on the playground he's in the car then that's good enough if you stick just to defining the word used that would be correct but i'm saying if you in our interpretation if you look at the entire staff you where it says there must be a visual depiction of such conduct in the conduct is using a minor to engage and you have to have a picture of the use of the minor to engage it you can't have a picture of just to defend it so while the government does stick with that  when you put it back so it is a child pornography status well you can call it that but and in fact the government routinely does yes we can because it for ease of it but that's what people commonly call it's not a general child bathroom being videotaped that's not there not being sexually abused it is the defendant's intent and purpose that is currently not sexual abuse of children it is what the defendants perversion makes that image into so that is sexual exploitation more then as a different sexual abuse i don't think the law is limited to just sexually abusing children i don't know if that answers your question what did he plead guilty to he pled guilty to distribution and possession of child pornography but not production that's  position about it whether video number two if we accept the defendant's interpretation of the statute whether video number two could qualify under a proper jury you mean we just accept the defendant's interpretation of the statute that the government's interpretation of the word used in the statute is overbroad  that that word has to be read in the context of the other words in the statute induces persuades entices courses etc which requires that the child be in some sexually explicit pose or activity with video number two because that involved a sexual touching that was at least arguably an attempt at world and so they are so a reasonable jury argument ok so if we accept the defendant's interpretation of the statute and these these charges are thrown out the conviction is vacated and we instruct the district court to dismiss these two charges so if what you're asking is the defendant wants the definition of you want to new trial under different jury instructions right and has a question here's your i'm taking a number to his jury instruction would be that there needs to be an active use of  k so i don't think even if they got that jury instruction that wouldn't mean that he wins because many courts have found the act of photo or photographer in taking a photo of a child that in itself is you so even if you get the jury instruction that you need an active right and there could be at least a fact based argument that attempting oral sex on a sleeping child is actively using that child yes but you didn't make that argument you're not making it here we are to say is if there's an instruction that you need an active component of use that that act of reporter can be just the act of taking a photograph so that's what other courts have held that whether you it's the  cases that support you except for the circuits case in los which was a plain error if you not very persuasive well so we're writing on a clean slate but basically here i mean the government feels you call that the government's point of view really and i perhaps you don't agree but that the government will use that really this is a heartland case i mean the defense in their brief said in the court you agree that this pushes the outer edges of the law not that that was the district court's position as well i don't think anybody thinks this is a heartland case the defendant in his brief says that what he does is totally divorced and devoid disconnected from the trial and then it just couldn't be further from the truth he is on top of her he is touching her in the focus of his masturbation and of the videos is her he's talking to people about how he wants to be a perv on her so to say that he is not using her he is not focused on her in these videos wouldn't exist if she's not there he is using her in the most basic sense whether you look at on the floor he was in a robe and as he crawled on top of her he took his robe off and then so he was had the robe on his back he was naked in front and his penis was within inches and then touching her so to say he he didn't use  her just in that she you know this would be a much closer case if she was ten feet away and he had his back to her and didn't know she was there or we wouldn't be having the same argument but he was on top of her and using her as a physical object and the government doesn't see that as some stretch of the word use or some crazy interpretation it's a very common language argument and over my time so i will let you know of these if you really want to do so i just think that the plain meaning of use whether you look at you know the government has black's law dictionary that says uses to take advantage of someone for a selfish purpose and the defendant's brief cites oxford which says uses to make use of in accomplishing a task he certainly made use of her accomplishing his task of exposing his genitals and masturbating and then to say well she didn't engage in sexual what makes something sexually explicit it's the defendant's motivation right so if you have a child in a shower it's not sexually explicit but when a defender starts looking at it with his perea interest then he is actually right that makes it sexually explicit that falls within the definition of sexually explicit but if a defendant was taking a picture of a child in a shower completely innocently and it showed a close up of her joy not that wouldn't be sex that wouldn't be sexual it was a conduct and that's if it's depicting the city as display it's what's on the image that counts not what's in it i mean he intentionally do these things obviously but we don't evaluate whether something is or isn't either child pornography or obscenity based on what