may please the court kevin page or mr mccall setting aside attempts which i hope the court will let me talk about separately in a moment twenty two fifty one a requires that a minor actually engage in sexually explicit conduct attempts aside there is no violation of the statute without sexually explicit conduct undertaken by the minor it is not the statute that punishes images including children that gratify the defendant sexual desire rather the gravel none of the offense is sexual exploitation of the child in front of a camera for that reason if a defendant does nothing to affect the child's behavior and the child happens at the moment of recording to possess no independent sexual intent structure that would have applied to a situation and here when if someone takes film a picture of an a new child without knowing about it is that then something legal that can be without their without their consent so that is certainly subject to that there might also be liability under the statute struck down in nashville with for simulated is actually explicit conduct  federal member of the eleventh circuit fairly recent case in united states versus holmes has been something that you've addressed what it says is that they join the eighth ninth and tenth circuit to hold to the contrary of what you  there is a circuit split and then and it's with this circuit and i have to concede that there are out of circuit cases which hold that voyeuristic videotaping surreptitious recording of very similar conduct satisfies the statute but i don't see how those cases can be reconciled with steam and more importantly with carol oh if you're reading them and kill which we'll hear about i'm sure well i mean even a correct reading or an indisputable reading is a reading your honor and the reason that we know that this is the correct reading of steam it and carol is is really for five different ways one is steam tells us as much in clear terms that eight twenty six when it says the film must depict sexually explicit conduct grimes of similarly says we have to ask did the production involve the use of a minor engaging in sexually explicit conduct now showering getting ready for a shower drying off from a shower is not sexually explicit conduct particularly or at least if the person doing those things is not aware that they have any kind of audience if we had more to do factually so little was captured on the film there are some comment here or some statements in there well the critical similarity between them is that neither tina nor showering is sexually explicit conduct by itself that the intent has to be imported by the defendant in order to render that but it was within that we would expect a different outcome than steam if it was considered because that wasn't considered i wonder how much weight to give that a two portion discussed there i think we have to give it well we give it no weight the fact that it wasn't  court the court says in a by reversed in steam because we would expect a different outcome we can't i submit to the proper view of precedent and the binding force of president is not that we dig through the briefs to see attempt on board or no attempt to be really doubt that the defendant had a sexual intent or lascivious intent in steen in that in that case and so if  we can't import the defendant's lascivious intent why are we a permitted to do it here what steam and grimes and carol stand for together each of them in different language all of them very clearly and certainly together is that the statutes liability terms on what happens in front of the camera and in particular that it must be the minors sexual conduct as it is a statute that it is targeted towards people who make minors in gage in sexual conduct if there had been no camera in this case the minors conduct would have been identical to the to the way it was captured on camera and nobody would have thought that it was sexually explicit are you arguing that we need to look at the intent of the minor when the minor in an already being filmed part of the crime and what were the minors and and absolutely not what i'm saying is there are two ways that the set you can be satisfying one way is when the defendant influences the child's behavior opposes them etc in front of the camera then we can sensibly say that the minors engaged in sexually explicit conduct even though it definitive that the defendant is making them engage in the second way is we can imagine a case where a minor does possess independent sexual intent and a and defendant voyeuristically records them a mature child with their with a boyfriend or girlfriend for instance i'm not so i want to say voyeurism can never ever satisfy a statute so if if the child does possess a sexual intent that can be independently sufficient but if the child does not if it's ordinary monday in conduct like showering or sitting in a tanning salon then the defendant has to have some influence over the defendant over the child's conduct in order to satisfy the statute and steen i think it was just a matter of seconds that the private areas of the body or the case that we have here it was a a margin much larger amount of the video showed the private parts of of the minor child and it looked like the film was focused on her private part here as opposed to doesn't in other words that what happens to appear on the camera is not there or in the images not disposed of in the reason we won really good weight that we can know that is by looking at grounds which shows us the converse proposition where somebody is posing the child but the and what happens in front of the camera is sexually explicit conduct by the time the defendant has the the image but the the final image that appears on the defendant's computer is pixilated and so it you that the defendant doesn't even possess an image in an exhibition of the of the generals by the time that he has the camera but because what happened in front of the camera was was the lascivious exhibition of the genitals the defendant in the grimes was convicted of that so between those between all of those cases they show that what is the critical thing is what happens in front of the camera and that would have been no different and not at all sexual if the defendant had not even existed they're they're quite useful in a case where the defendant is influencing the behavior of the child or there was some arguable sexual independence sexual intent by the by the children but as this court has always noted every every court th adults doctors i think notes they're not dispositive and they're not exhaustive in every case there are a tool to tell us whether it was serious exhibition is present in a particular case because they reflect there is both but i also want to point to what i think is a very real difference in the way this court applies plain error in cases involving potential conviction for a known offense in other words an insufficient factual basis there are i don't think any reasonable observer who read springfield baylen white johnson in meacham all scenario before the court may not have been previously appeared springfield scarcely mentions the plain error standard and only basically in the breach in no ten white treats a separate but related objection is adequate to preserve review something this court as i've come to learn very rarely does in any other case johnson reverses for plain error for want of an interstate nexus in an arson case even when there is an interstate insurance payment and  meachem reverses a conviction on sue a spontaneous without even being preserved in the court of appeals much less blow so together those cases i think no reasonable observer could think that we're doing this court is doing the same thing on plain error in factual basis cases as it does for others and there are three very good reasons for that one of them is be as white observes that affirming such a conviction is literally the knowing incarceration of a person who has not broken the law with which they are charged we don't allow this right to be even affirmatively waived the right to challenge a factual basis or to appeal on that basis it's strange that we allow it to be merely forfeited by and second affirming that conviction for non qualifying conduct because a plain error is not very efficient it's rarely  change the outcome a defendant who's can who's a conviction is affirmed because a plain error only will have an actual innocence a section exception to almost any procedural obstacle in collateral review including a waiver and third the purpose of requiring a factual basis is precisely to protect a defendant who does not know that his conduct is legal and the defendant of that kind is very unlikely to finally with the time i have before fifteen minutes  lapses i want to join and the government's motion to supplement the record with the video and ask the court to reconsider its its its denial of that  and then i would ask the court to as it is permitted to do encouraged you and try company to use that as part of the record and affirm if any reasonable fact finder could find that the evidence of that other day of the evidence in the record including the video supports the conviction that the defendant is not listed in a new trial does not seek a new trial in the event that the court believes that the video arguably supports the conviction that but i'm talking about you don't i don't think there was a dispute over what's described as being on the video yes there's a dispute about what that means but i didn't as i understand what the government is saying it is some of the government can be read to say to suggest that the conduct on the the video is sexual in a way that might be different from a different  birch at it from me on that point before you launch on amir's what about the video i guess it was sealed well on your honor the video was never entered into evidence below because the defendant pled and admitted to the things on the factual resume so it was never submitted to the district court the district court never had the opportunity to view the video itself and apply the dos factors because of the factual resume which  nature of this private video of these private moments in the bathroom she's seen on the video doing things that are there that are relate to sexuality grooming her pubic steen the courts found under the das factors that it didn't qualify but i don't believe steen ever made any sort of outright statement that never could have voyeuristic video never could or secret video we don't even contend that this is voyeuristic but that it's just a surreptitious video that never could that qualify as as attempted or actual production of truck child pornography because the child didn't know when the child didn't wasn't directed instead what we believe steen stands for is that in that very limited set of circumstances where there was a clearly the court was concerned there about mr sting's intent he's an outstanding place he doesn't expect there to be minors there they find no evidence of his interest in minors on his computer the minor that he to me than holmes from the eleventh circuit recently and the other cases when it seemed to be making a distinction there that this court has found talking about grime a wrestling doing cartwheels on the beach and but no doubt that the defendant is still using those miners and he and he is using them to engage in sexually explicit conduct by the way that the defendant has far aimed into these a variety of cases has framed those videos those photographs those other things  admitted in the factual resume that he carefully positioned and aim the lens of the camera with the intent of obtaining images of the genitals and pubic area of the girl as well as her brea and that he did obtain such images and so there is this difference in the analysis of the das factors in this case that in steam because of those admissions he does obtain her genitals and her pubic area and it's not for one point five seconds it's that portion just talking about the jet of the genitals and pubic area is almost six f minutes of the video there are also portions of the video or other parts of her partially clothed but those are the parts that that focus on her genitals and pubic area and those are the parts where they those are are fully exposed and one other issue here is and the cordons dean talked about how that defendant had you know no criminal history no documented interest sexual interest in children and we have quite the opposite here because we have a defendant that not only has a documented sexual interest in children but he actually has a conviction for aggravated child and this is not somebody that has merely voyeuristic tendencies this is somebody that has a sexual interest in children and has previously acted on that sexual interest and that has to pla supports that that was a showering video that was a secret video and in that case the child did not know she was being filmed and the conviction was  we have attempt attempt was charged in the end about in the indictment that of senate pled guilty to the completed offense of production but the factual resume clearly supports the attempt in terms of the language that set forth in the factual resume where he says this is what i was trying to get this is what i was attempting to get coaches secretly recording them as they're weighing in and he's got images of their body and what the court found in that case is because production because his attempt was charged that it didn't really factors they have been criticized it seems to me they're one district judges effort to figure out how to do this do you have from your work with cases like this some sense that that's a good set of factors of whether we are big how useful they are they may help you in this case they may not so i don't your principal interest right now is his case but you can't take the bigger picture and when you make over i think that so many of the courts have adopted the das factors that we just sort of walk through life accepting them as a matter of life but i beat in some cases they can be very useful up to one of the time zones i have about them at this point of what just generally where we are in criminal prosecution is that we're not seeing as many of those older type cases those you know russian production studio type cases that we were seen years ago now that everybody has a cell phone and every cell phone has a camera these are at tish's recordings both in terms of stranger recordings but really frequently in terms of sampling living recordings are becoming i would say just in my experience more of the norm than those old time studio photos where it's clear that you look at the toilet and you say oh she's in a out that that's inappropriate her legs are displayed and secret recording videos sometimes yes and sometimes you know they're structured to try to figure out of this is an art film or rigid sexually explicit film not that's not ever machines to me what we're dealing with now which i think is a point in a sense you're making revert to what video used to be that we're prosecuting but all right you can move on now meaning they can carry there too much make sure i understand your attempt argument back we absolutely believe that this was production but if the court disagrees i wouldn't describe it as a fallback but i would get there and certainly we can get there through the attempt language and in a lot of these surreptitious cases and i think that's the situation in this case as well i would also submit to the court that if the court finds that this is not a list of us exhibition and therefore not production and doesn't even find a tent which  would be obviously for me standing here a difficult proposition but if we can't get past that there was any error at all then we would certainly submit to the court that hair was not was not clear or all obvious to the district court given that even the defendant agreed below that steve that his conduct took him arguably outside of steam and the defendant was aware of the stea case the parties had discussed the stealing case and the defendant even use the steam case in his writings to the court to leverage with both what the governor and the court for a lower sentence and to the extent that the defendant was aware and does agree that his conduct is not does not fall under steal you know within city then we would submit that that would make inefficiency of saying to stand down and bring your twenty to fifty five action and and be let out of jail in going response to th if the district court did not could not have seen that this was error and that's our position that the district court should not have seen that there was any  and i'm not trying to put words in your mouth but i'm not sure i'm clear on what is the strongest argument you have and that you're relying on you seem like you're you know spreading a lot in the pathway so one way or the other you know you've hit this target in a manner of speaking said a different way when i read briefs and otherwise it seemed like you know the government was making a real strong argument here the staines conviction as i hear the arguments over it just sounds like somewhat backing away from some confidence in the legal position here  affirm it to well you if not that in this and if not that then this and if not that then it is you know to get me there all of which is springing not from a fully tried case but this is bringing from a guilty plea and so you know he sort of way wound back you don't care this is a guilty plea and whether or not there was a sufficient factual basis so it's becoming to me more complicated not because it is beautiful what the video shows etc but in this unwinding and i don't know maybe that's and you can tell me is that due to the government's uncertainty warranted by how this court may be going to restring and i think that's fair your honor and i certainly don't mean to and to show any lack of confidence in the wheat from the very beginning the government's position in this case has been this is production of child pornography that's how we charge it goes a production at a tip that's how we charge it that's how we resolved it and that is always been our position i think my effort here is to give the court confidence and do want the court to also have confidence that that obviously we believe that per propre characterization under the das factors and even outside of the das factors and outside the four corners which this court can look at is that this isn't lascivious exhibition and without trying to lose any confidence i do also want the court to know that there that there is clearly the attempt here and so even if you look at  what would you have us hope what's are holding you affirm the conviction because he already admitted to the attempt the factual basis so officially embraces the attempt because he acknowledges that's the statute requires as i submit does an effort to influence the conduct of the child then an attempt to violate the statute requires an effort to influence the behavior of the child and that's not what this is showing now we might imagine that there is another way to attempt to violate the statute which is to  attempt to create a recording in which the child independently engages in was city is conduct but there isn't any reason to believe that a child is going to do that merely because they are taking a shower there is no a defendant that gets an attempted vacation on that basis would have to have some reasonable some reason to expect expect the child but uses the next word she was very broad to mean i don't know if you have case law from this circuit would clearly say that the child must be directed to you are you saying that which gene is talking about the but used to engage and in all three cases that we have that shed the most light on this scene grimes and and carol all made clear use the fact that the child is independently gauged in sexual conduct of some kind did your office represent this individual it at the guilty plea we did not there was an attorney that w explicit conduct then the defendant has not violated the statue with which he is charged and we should not get used to as tempting as it may be in this case for reasons we all understand we should not get used to the precedent of knowingly affirming knowingly continuing the incarceration of people who have not violated a stat the statute as it is as it is written which your position on the government yours bonce about the attempt in be used to substantiate a guilty plea all kinds of record evidence but one thing it says that does not carry any evidentiary weight is the defendant's admission that the conduct constitutes the office in that case and so all that that  is doing is admitting that the that this constitutes an attempt and if my view of steen and carol and grimes is correct then this is the undisputed conduct can't constitute a violation of either the attempt provision or