good morning your honors you counsel there are two reasons the images here images here used to apply the pattern has meant do not constitute a list of us exhibition and the production of child pornography any more than had mr hall cut out a picture of a young girl in a swimsuit or underwear from any magazine or online print st and both instances whether it's the images here or images in a magazine those those images are not inherently salacious or will be would ordinarily associate with child pornography and nd the fact that the images here in some instances are close ups or in other instances can be cut out from a magazine do not transform those otherwise images into a production of child such clevenger st it's a very important distinction here these images were found on the cell phone that was part of the un charge conduct that was not part of the factual basis for the plea and the actual production of child pornography to access to the child pornography and those addresses were suggestion of salacious conduct right that is part of the facts i mean no question about that there's no question about it and i want to repeat them in public right  there actually are no factual disputes in this case as well but it is important that the specific images here is elided from the factual basis of the plea and it does distinguish between the images here and the line between what judge car graph taken from a video made by mr hall one wonders taken from a video and i apologize if it's being imprecise here and to give you the actual a reference point in the record taken from the video suggested to me that the video had been taken and then afterwards mr hall had taken off for a mount of the video and turned it into a photo a i had apologize for that that's imprecise th we're actually looking at is the definition of lascivious exhibition in the context of production of child pornography or sexually explicit conduct so holmes in the context in which it's decided is dealing with whether otherwise innocent depictions can be child pornography and there it's very important what we're dealing with is nude images that are otherwise would be associated with what we would commonly understand to be child pornography so an example similar to holmes that a common example i can think of is parents that take pictures of their children in the bath tub for example that you know in and of itself it depicts nudity but it's something that if a parent because i want a picture of exactly and a picture you in a bathtub just standing alone is not an environment that gives any connotation to what the nature of the images are correct other than the happy family correct judge clevenger and this is exactly what holmes is dealing with because the argument in holmes was that is does not rise to the level of child pornography and the court right is that's not what we have here exactly we don't have a picture of a of an innocent child and you know after what we have here is actually the flip side what we have are images of children in a swimming pool all dressed in age appropriate clothing there's no finding that that's of unnatural position no finding of sexual quaintest no finding of any of even if we were looked at what this court looks  dos factors in the pot pattern jury instructions and most importantly not what we would commonly associate with child pornography to the holmes point and what we were just discussing even with an image the key distinction is you would never find an image like i just described of a child in a bath tub in a magazine or otherwise these images you could and that's very important because if you take the government's argument to its logical extreme what it would say is under holmes any photo including photos that would be distinct as a score to exult and williams any photo that has a sexual appeal to those that have a sexual desire and children could turn into child pornography so you're saying that the worst of these photographs could be found in mind stream magazine the is the images well if we're looking specifically at the zoom aspect of it so the zoom is really don't care zoom non jury you're saying the worst of these photographs could be still framed into a mindstream magazine i believe your honor well there's there's really no finding here that these are images that i'm sorry could the worst of these be found without surprise or because i want to be clear to what the record actually depicts those images it does come close but if you look at you know ads we haven't we are we've seen we've seen images yes this week so my question is you're saying the side view people carrier wouldn't be surprised to see that the mainstream magazine i do i don't believe that the image actually is i don't care what you believe about the image other than answering my question that would not surprise you to see that in a mainstream magazine unfortunately i do think some of those images are comparable to what you would see in a target magazine or j crew or otherwise there are some images of girls in bathing suits and the court here finding that the image the pants were loose did not make a finding that there was actually a depiction of the pubic area itself or depict nudity which is why i'm hedging a bit on your honor's question i don't mean you know but the distri the images are the image is correct the district court made some findings i don't think are correct he said the girl was being talked to by another girl you look at the video and that's simply not there was another girl in to may's watching t v i think one of the watching t v and what he took to be a conversation between the two girls clearly to me seems to be a conversation on television that the girl in question was watching i'm wrong about that no i don't i don't think you're wrong and that's why i'm trying to be precise to what the district court found and i'm not concerned about what the district court found except to the extent that it affects our scope of review i'm talking about the image itself correct and i do think in and what you're describing with the loose and that does run up to the line i would concede that would run up close to the line of child erotica but that also is an important distinction because there is a concept that there are images that are close to the line like child erotica which are often found in child pornography cases but even law enforcement makes that distinction so there has to be and this is where comes to holmes there has to be a line between what would constitute child pornography and what could be constitute otherwise images whether child erotica or other images that are appropriate for or inappropriate to those that appeal to the government this the p s r the probation office actually did not or the video that we're aware council you seem to have a difficulty answering my question where did the government make the concession that it was a close call oh the government i don't believe made a concession that it was a close call what i'm suggesting is the the record here suggest that it's a close call given that the probation office itself did not score this to be pro child pornography when the government made it in the p s r and the court itself when it observed these images so not to suggest that's what the government says but if you do give the context to the record itself these images were not st put forward for the five level enhancement and were not brought forth until other parts of the record were found to be insufficient under the preponderance standard and again the court the probation office itself did not see to the government's objection so for those parts that's why we're saying that it is a close call but i would just leave and i see my time as concluding the court with just as one take home message is that under homes it is the case that any image based on the subjective intent can turn into child pornography taking that to its logical extreme does mean that images and target magazines j crew otherwise online any of those could be classified as child pornography and that seems to be a bridge too far so would urge the court to on the actions of the camera man and all the circumstances surrounding it so you can have a photographer a parent taken a picture of children in the bath tub two young children and that he is that wouldn't be here when you have someone who is sexually interested in the child in the subject in films that informs the lascivious nature of the at the end it because it makes it more likely that the intent of the image was to portray the child a written on this and weaver and no number times about harshly punishing child pornography was that the images never go away they get on the internet and they can be trafficked on the internet and they therefore the harm last the harm to the child yes i think it could yes though back to my hypothetical st case normal parents no pedophile no predatory thoughts  and somehow that gets on the enter net not through their actions but somebody else so i comes in and steals or computer or whatnot nd case same thing gets on the internet not because of the either parent steals somebody steals their laptop puts it on the internet why does the harm to those children depend on the fault of the parent when they took the video circumstances the harm to the child would change once someone has turned an innocent photo into something intreated amma turned it down as no i haven't turned it to anything it's been posted on the internet through no fault it's not but it's still child pornography that has to be your answer you can't tell me that the harm to the child is different based on the subjective intent motivation of the camera man when the amaj is both a den a call and up on the internet if you can i'm willing to listen to you i think it can because well i think it can and i think this court has held that those circumstances from the cameras intent the camera man's intent does play into the factor as to whether and i'm not talking about just lay in india factors as to whether still serious i'm talking about the harm to the child that the supreme court and this court has talked about about the images being out there forever and the child knowing that people around the world are on the web are viewing her of enjoyment that doesn't depend on the subjective motivation of the camera person you may say it doesn't have to but i don't see how while you're trying to argue that it does the people who view that the pedophiles around the world who did that could care none the less about whether the motivation of the camera man was pure or impure the harm is the same ok i think my position has it doesn't it doesn't matter in this case because but the question is whethe felon and judge barket for our court found certain things about the chase they were depicted in the video and it went up to the supreme court and the supreme court said we don't have to accept that we've got the video we can view the video and determine the facts ourselves you familiar with that i'm not familiar with that case you have to take my word for it that well and there's been some discomfort about that holding in that case which is basically forget about clearly erroneous or any deferential review if the reviewing court has the video and the video tells  the images then it's basically de novo review as to as to what the facts portrayed on the theory that we can tell as well as the district court if that is the law and it is our at least it wasn't here's would not apply here we look at the images and make the decision ourselves we can see everything the district court saw i think discomfort that some of us felt about that is it's not just who's got the better perspective on you know ordinarily if the district court hears testimony obviously the district court has the better perspective it's not just that and the clearly erroneous standard but it's also the allocation of functions appellate courts are better making a lot of determinations and the law determinations and that's their function their function is not to determine facts and if you start shifting those burdens from the district court to the court of appeals you miss allocate time and resources and so forth that's your best argument for why this court all to apply deferential factual review to the district court's findings as opposed to we know it when we can see it and we've looked at it i agree i thought you might i want to make clear that this court can affirm the district court enhanced meant here and neither one of them is clearly erroneous i'll start with the video because that is what mr hall's brief has focused entirely on this is a minute long video where the st dozen seconds shows the child climbing onto a and it is focused and it's not focused on her face which is hardly in this video it's focused on her body and more specifically on her pubic area which is in the center of the frame and what if he's just not a very good camera man or he's distracted and some of us aren't very good video what but what it would it matter if he'd gone to trial and he'd gone to trial as to the video and said look at arkansas and shake a lot i just happened to stop at that point i really didn't intend anything circumstances surrounding it i think you can look at this video itself and see that clearly a serious notice from the video it's out but of course we don't have just the video itself we also have all the circumstances surrounding the video which include the other two photos of the child circumstances that we have we also have all the evidence surrounding the the photographs which include the child pornography search terms that he had on his phone and the other just other videos of this child that were taken on the camera and  thank you honors in just three brief points st to the harm question that judge guards who are opposing this actually ties in exactly to what i think the logic of holmes was getting to because holmes in talking about the subjective intent there when you're petitions the filming of women who are conducting their everyday activities or some of these other cases an examination ruins and invading that privacy exposing their nude bodies and then putting that on the interviews internet cropping it doing other act acts of that nature that is exacerbating the harm so to your harm point i think that's where holmes busy has its limitations because to judge carnes of other point  do not constitute a list of us exhibition because if the government's argument as a hypothetical hypotheticals are posing any image anyone can be tried for any image and the government could stand up and argue that well there was an inten sexualize and there was an intent otherwise but this court and the supreme court has recognized that there are images that will appeal to those that are the pedophiles of the world unfortunately however they do not constitute making for myself i think the government has a very weak case on the video and i think they have a stronger argument on the photographs and you would address that briefly yes and that actually ties in perfectly to the rd point because i think the government is overstating the contextual aspect here because the cont is very we can see from the record these are not the images these pictures were not part of the charge conduct though they were part of the search warrant otherwise they were not used to score any possession the government did not indict and  not until an th hour play where these pictures have been brought into the the for a so when we're talking about the contacts and what are the surrounding circumstances under a severe the surrounding circumstances show that one force met and the government quite quite think in that context to me in that context it's important here is the is the reason for the photograph of the mind of the photograph or in the play and the context in which the photos were found which is harmful to your teenage well and i see my time is expired if i can just answer that one question the reason that that context and to judge karr why this is important is if you look at the charge conduct you actually had evidence and you had factual findings admitted findings that there was underwear pol submission the next case is united states