the final case number eighteen one five seven two minnesota united states versus kevin james of minors does not constitute either the attentive production or the production of child pornography and the reason he asserts bad is that his search that his intent in engaging in these activities was to see and record minors in gauged in innocent nudity in conduct unrelated to sex and that that does not constitute sheo it might consider that this does not fall within the purview of the statute but because of johnson v united states and related cases it felt it had to apply the law which it did not upheld the convictions not johnson is a case in which coach was videotaping think there were weightlifting minors who were weighing in and had to weigh in either in underwear or on closed down the coach set up a videotape to reversed and reinstated that conviction on the basis that innocent conduct on the part of minors totally unrelated to sex can sit still constitute child pornography johnson is actually a little bit distinguishable from this case in that in johnson as in some of the other cases there was some posing if you want to call it out of the minors in the sense that or setting up the scene in the sense that of the coach in that case  to record what is seen the minders were unaware now and there is no inference that they were engaged in any kind of conduct related to sex or inviting sex or suggesting sex or anything of that nature the judge indicated that he were not for this a circuit  caption this kind of a running commentary showing clearly that mr the trustee was excited by this that's not a relevant consideration but something that got into the case but not withstanding that the judge asserted that on first look he might have determined that this was not child pornography that's the issue of the judgment of acquittal i think very narrowly even applying john's well let's go a little far further with that what had he suggests that we deal with the with the presence of johnson the end that same's to seems to control this issue which is the district where thoughts and i would say perry narrowly you know we can't we can't overrule the decisions of another panel i understand that yes no doubt to be the court takes it could still express its reservations as a district court but looking at johnson very own very narrowly there was some setting of the scene there was some posing of the children not sold in mr petrofsky skates so it's narrowly distinguishable but more broadly we suggest that it's a law that should be reversed because it goes beyond the plain language of the statute secondly our motion is for a new trial and here we submit that there was something of a perfect storm of unfair prejudice to mr petrofsky first in the district court addressed this a lot of the cross examination of mr petrofsky had to do with his sexual predilections that's really not a permissible concern counsel did not object but counsel failures still permit this court to make a determination that there was plain error there or that these are extraordinary circumstance counsel they were district gave a curative instruction is that correct as issue and i believe the government in an attempt to cure any error if there was any also in a sense in their closing emphasized what the district co had had instructed the jury said is that is my recollection accurate there i believe so yes but the government also went on to make other arguments that were unfairly submitted to be unfairly prejudicial to mr petrofsky one has to do with the admission of the caption we don't dispute that that's part of the video recording issue is really whether it's unfairly prejudicial because it focuses on his predilection not something else so this counsel you do you can see that it's probative evidence and is it pro what issue is it prohibitive to i suppose is probative on whether it would be an intent to create a sexual object in and you would distinguish that then from his own sexual interests the cases do and certainly it focuses highly on his own sexual interests but the admission of a captioned allowed the government to really make an argument that a caption alone can create i'm setting you know that those are dos factors of course nobody thinks that that is a basis for a conviction but the government went on to make the argument  and this is on the transcript it pits three fifty two saying if that in the bath photo if the producer intended it to be sexual if that parent happened to be a pedophile and a producer of ch feet and if that parent in taking the photo or video said the things that did the things that the defendant did in this case it would absolutely be chop and so by the government's argument you could take the most innocent family pornography by virtue of of a caption finally in closing argument the government argued that even though the minors and the usual depictions were in the government's words innocent girls doing normal everyday things the jury could convict mr petrofsky a production attempt a production of chop and not graffiti because again in the words of the government you know when you see it now this is a very improper argument because it appeals to the jury not applying the standard of law that the court gives to it but applying its own gut feeling its own bias towards its own prejudices and this ties exactly  what the court said about the government's inquiry in cross examination of mr petrofsky that they're trying to the government like did the government address the eight factors that this court applies in its closing argument counsel i believe so yes rate these things taken together could well have caused the jury because they would hate mr petrofsky regardless of whether they felt he had committed those offenses or not to place came together to create the plain air of the extraordinary circumstances that would be a basis for the court granting relief in this case and i'll reserve the rest of my time as mr hunter noted his argument is that this court got it wrong in horn johnson ward and lo c when it held that was serious exhibition is not the work of the child whose innocence is not in question but of the producer or editor of the video such that images of children acting innocently can be considered lascivious if they are intended to be sexual i believe his argument here does not have a place for the type of narrowing that he's suggesting of johnson but i'd also like to clarify a few points about the record first  and by those audio statements that are in the videos that are at issue here in his testimony and this is in the government's brief he talked about the fact that it was his goal to see them naked to display their genitals he would be thrilled to see that it would have been his ultimate goal to see them engage in sex acts and as such while he was in involved in the camera as in johnson to in on an area where he thought the pubic area would be displayed he laid in wait on his own testimony for hours night after night after night outside of the same houses waiting for these minor girls to take off their clothing so that he could record them and so the government has an issue in the first instance with saying that the defendant is intent was just to observe and record innocent conduct in terms of the argument about the inclusion or non inclusion of the audio and mr hunter's argument that the government is saying here that a caption alone can create a child pornography that is also not the government's argument as instructed in the model instructions the full context of these images and video should be taken into account and the audio is certainly part of that here which can be called a caption or can be called anything else but also in this circuit it has been held in i believe both johnson and ward that extrinsic evidence can be considered when determining the intent of the defendant  because they've held child pornography collections to be indicative of the defendant's intent to counsel i think i think some of the evidence we've been talking about here including the audio think even defense counsel it's probative the question i'm i'm wondering is it unfairly prejudicial and particularly in the context of the carolyn case that instructs that the defendant sexual interests are not and i'm going to botch the exact language but the focal point of the analysis could you address that issue because i think myself i'm a little concerned or a little confused about the distinction between sexual interests and sexual intent and the nature of the evidence that the government produced in this case introduced in this case yes and i think the first point is that those two things aren't mutually exclusive someone can have the intent to capture the lascivious conduct even though it doesn't appeal to their sexual interests and i think the example i used in the brief was that someone could be filming child pornography for financial gain which is not the case here who does not have that kind of interest but that they wouldn't have that sort of sexual interest in it and i understand the concern and so that's the easy case right i mean when you have an in this case is the more difficult case when you have a evidence that suggests conclusively perhaps sexual interest and it's given to the jury even though there's an instruction i understand there's an instruction that says you're not to consider it but that's pretty powerful evidence at this case is easy for a different reason in addition to the one i just mentioned and that is that carolyn did not involve charges of attempt to produce child pornography and this case did and so the defendant's intent is not only part of the das considerations but it's an element of the crime that the government needs to prove in proving up the case and in this instance all of the videos were charged as attempt to commit production of child pornography and then three of them were additionally charged with the completed crime now the government believes that those three do constitute exhibition of the genitalia but in addition to that on attempt alone  the proof of that intent becomes very important the other thing i would mention because it's not in the government's briefing but based on these arguments it's clear that it's important to me is that at the close of the trial both the government and the court supported a special verdict form that would have asked the jury to determine for those three videos whether they found guilt as to just attempt or as to attempt and production or n r the defendant said that was not his preference he wanted that to be included in one question and so you know any argument that the court in gauge will lengthy quality to make sure that the defendant understood the decision he was making by having those included together and so while the government is unable to stand here today and say that for sure the jury convicted on the completed crime were not able to do that based on the defendant's decision in this case  the other thing i wanted to mention in response to mr hunter's comments you know he says we talked today again and he talked in his briefing a few times about the fact that the government said in closing you know it when you see it and that's true that was said in the closing but with all due respect to mr hunter i believe that's a little bit of a mis characterization of what that closing argument looked like that statement you know when it see it directly followed a very lengthy discussion of the law and the das factors as set forth in the jury instructions and what counsel for the government was telling the jury as is clear in the transcript is that after considering the law it was not difficult to determine that the videos defendant recorded were child pornography and getting back to your question i want to get back to your question about the probative versus prejudicial nature of those statements on the audio recordings when johnson and word cases both hold that that sort of extrinsic extrinsic evidence such as a child pornography collection or statements of a defendant are relative are relevant in determining whether a visual depiction was intended to cause a sexual response the viewer but defendant's statements in this case are not even extrinsic evidence they're intrinsic evidence of the crime and what i was trying to think of a mr hunter was talking was if if  bank robber who failed at his attempt to rob a bank said something along the lines while he was committing the offense of you know i'm going to use all this money to go buy a brand new car of course that's incredibly prejudicial but it's also incredibly probative of what his intent was when he walked into the bank the government believes that to take that audio out of the video is to present something to the jury that he did not create the government's asked us in a footnote to consider clarifying i think the sixth factor could you articulate what what the construe the government's concern is related to i think which is the intent issue which is you know at least on the actual production counts was was the basis of my concern on the introduction of the audio it looks like the united states has some sort of concern about our prior cases in about the model jury instructions could you articulate specifically what that concern is and if the government has a position on what the court should do about it yes and i'll say the government's current stern arises from the fact that the district court raised this we believe that there is not a true conflict here in the law and i can explain that more so there is arguably according to the district court inconsistent opinions or dicked because it's can be seen as difficult to reconcile how the court's holding in camera ling which says that the jury should not consider whether this visual depiction causes a sexual response in the view or on the one hand and reconcile that with johnson and ward which will that extrinsic evidence regarding defendant sexual preferences that provide insight into his reason for making the recordings were relevant on the other and the government's position is that that sixth dost factor is an objective question of whether the alleged child pornography is intended to elicit a sexual response in a viewer and in this case as we've seen in mostly in other cases it's a sexual response in a pedophile viewer obviously not to people of the general public and while the eighth circuit has clearly said in camera ling the question isn't whether it was intended to elicit a sexual response in print in the producing defendant which is a subjective test the government's position is that the evidence of a pedophile defendant sexual response to such material that can be admitted as evidence that objectively the alleged child pornography was intended to elicit a sexual response and if you are and again i would note the distinction ling and johnson is the distinction between a case that involves production and attempted production also know the government agrees however that the appropriate interpretation of the law here is that child pornography should be deemed as such if children are acting innocently with no anticipation of sexual conduct where the defendant is the one who is sexualizing them so in the los the case where the defendant took pictures of a clothed sleeping minor with his genitals near the minors face the defendant made that same argument the defendant is making here that the statute requires some sort of active participation by the minor or active sexual conduct to an unknowing minor by an adult offend and this court clearly rejected that argument noting that the jury could find that the defendant used minor victims or that minor victim as a sexual object in those photographs as the government police the defendant did here in this case as  well the defense also encouraged this limited context test that's set forth in united states versus brown which is out of the sixth circuit however the government would note that even under that case the statements of the defendant whether the victims in a visual depiction are being sexually exploited or not and that's the statute in this case sexual exploitation of a minor and of course as many cases know it there's not any purpose in criminalizing things like innocent family photographs in a bath tub or medical depictions in a textbook or a renoir painting of a nude woman those are mere nudity clearly here the victims were being sexually exploited and in jo this court similarly held that a reasonable jury could conclude that syrup tish's the recorded videos of teenage minor females disrobing and weighing themselves in the nude cannot reasonably be compared to innocent pictures of kids in a bath tub clinical depictions or works of art and i think based on the descriptions set forth in the government's briefing that is a very clear distinction in this case as well the same as it is and finally i would note that other circuits have reached the same holdings including the ninth tenth and eleventh circuits have similarly held that  innocently you may know from the record that after the briefing was submitted the defendant asked to add an issue regarding the fine assessed in this case so i just wanted to note for the court that wasn't objected to at sentencing and so the standard is error based on the sparse record that's before this court on that issue we don't believe that it can be determined that there is plain error here when it comes to the end indigency of the defendant thank you all right thank you very much thank you counsel for your argument in the cases submitted as pope is that conclude our calendar for the day it does really well the court will be in recess until eight thirty tomorrow morning