well call the case how marino vs attorney general statute which pro scribed the possession of child pornography even though it's a matter of first impression in this circuit i would respectfully suggest that it's a very straightforward and easy issue for this court because based on the categorical analysis that this court hears through conduct under the statute reaches but will this be an easy case for our court if we didn't employ a categor and simply look at the record of conviction and this is the session of child pornography and would anybody argue that's a crime involving moral turpitude no your honor wouldn't be in difficult case at all if because everyone is against  d exploitation and sexual abuse of children and the distribution of child pornography not in a non consensual setting in a non privacy setting between not consenting people who are not just factually particular statute which prescribe certain acts and the acts the statute is written so broadly as to cover even consensual activity between people between teenagers essentially who are over the age of sixteen well if if by the courts question you're asking can you focus on the facts of the case only if you decided to go against all the jurisprudence in this court going back for about the last fifteen years having to do with  circuit to was that is determined just by statutory analysis in other words the reasonable possibility standard from the way in his alvarez and and that requires in other circuits for the petitioner to why we follow the jordan vs the george case is in child pornography itself a crime involving more character well you're right if you look at the history of a fraud as a as a statute is involving fraud so that even a fraud is not an element of the crime it's sweeps fraud and so it's into its commission and that it's committed in a fraudulent way or that it in fraud and hears in the behavior so what the court is asking me really brings us to that to the vagueness issue in the case which that is but which i did with the course commissioner just like took hold off for a second i'll just say for the over breath issue in this circuit in order to examine what the response and what the petitioner did and whether that was to be in possession of turpitude this material or he he put he committed something that was morally turpitude us as i said  involving consenting teenagers who struggle the eighteen year old line in a with the possession the private possession of images which are linking your analysis that this is ok to the fact that pennsylvania has a state statute of consent of sixteen for the act of engaging in sexual activity well are pictures defined and isn't it principal as in their principal reason and i'll go with you on your look at the statute not the facts for the purpose of this discussion looking at the statute pennsylvania has decided that photographs taken by someone over eighteen of someone under eighteen of one of the private  which is defined as including all the sexual behaviors even nudity if done for the purpose of sexual gratification of either party it doesn't matter there's a bad intent requirement so so this statute is is drafted in a way that survives my question is isn't the taking of the photograph different than the act and hence we should consider the child pornography statute something that is a crime involving moral turpitude because the images that have been in are no longer private images they are permanent they can be share and we have the statute books to protect those who are depicted in those images so isn't the fact that it's photographs make it irrelevant what the statutory age of consent is for so let me answer let me answer two ways just because number one i would not agree that the mere taking of a picture is inherently bass viol or deprived and contrary to the accepted rules of morality so that so what about all the supreme court cases that say just that that these capturing the images  described if i could run i'm sure especially since it's not this is that you does not even prescribe just the taking of images this could be a situation where the seventeen year old sin photo sexting or whatever it is i'm not a digitally advanced person but sexting a topless photo of two or eighteen year old boyfriend oh and serena has taken care of that where the actor is a minor there's a different statute that applies where we really only talk i don't think it but if they struggle if the if the couple straddles the line between seventeen and eighteen then the eighteen year old who receives the cell phone image of his girlfriend totally consensually and then doesn't show it to anyone can deal with kitchen which is a presidential opinion from by the pennsylvania supreme court has the opposite conclusion while you run a i wouldn't the for purposes of what this court has to do with all respect having to do with reasonable possibility here are we allowed to even  satisfied by a textual analysis or not so in this case the textual analysis shows that it can go into that a seventeen eighteen year old situation but to do that we done more than what's required in this that in other words we've done more than showing that it's theoretically possible we've shown the actual actual prosecution i would submit that the kitching case the important part of the kitchen case is the poor is the portion that cited in which is enacted by the legislatures that represented the people saying pictures taken by somebody over eighteen of those who are under eighteen are prohibited plus we have the ninth circuit saying ch the pennsylvania statute i'm not quibbling with the statute pennsylvania has the right to to break through to write a broad statute the question is when the breath of the statute there's not co exist with our definition of moral issued in two thousand and six in fact for the court to of course any deference to old painting and to you shouldn't of course any difference to the be a decision here because what's at issue here is a construction of a pennsylvania criminal statute which the those cases are they referred to ash prefers his free speech coalition and u s versus hellman those are cases which you can't really quibble for the sentiment that child exploitation and the production and distribution of child pornography is wrong  that's a phrase that describes a a lot of things the the issue for this court is what it describes in pennsylvania and if it describes something that cannot be deemed to be t court has to rule with all due respect that this statute is overbroad with regard to that we will grant because not all activity under this statute is covered by the lessons of the argument is that the statute is really  because you really can't tell which often are well certainly the statute that the statute we're speaking about now goes is if you're turning to vagueness has to do with the definition of of child pornography of us crime involving moral no differences of to the agency that's number one number two to the extent that sweeping statements regarding child exploitation and sexual abuse of minors were were cited in  we're not talking about whether things are morally can be morally reprehensible we're talking about whether they have to be morally reprehensible under the statute very quickly on page ness and it's a you don't have to decide t vagueness issue to decide the over breath issue but you should look at the vagueness issue and not just because it's a hot issue in the circuit you should look at it because the very facts of a hypothetical situation here with a seventeen year old  and the eighteen year old across the eighteen year old divide are consensually transmitting digital images which aren't demick to the modern world many people would not feel would not say that that's the parade behavior but in other parts of the country perhaps all nudity of someone under the age of eighteen might be going to be deprived of behavior here already any consequence to the fact that we're looking at this in the immigration administrative context as opposed to not immigration you're on it according to what this court and suggested in back to east and said out right in the tail just two months ago i would suggest not court knows there's about twenty different usages of the term admission that miss ability to be admitted what the date of admission is whether someone is it miscible or in a mess of all and there are many legal fictions employed with regard to  which serve various purposes under the i and a but to the extent that the chill a case that of my colleagues cites dealt with regulating conduct of people who were trying to emigrate to this country and then it was there was a question of whether they should be knitted or not those concerns don't affect mr marino mr rayner has been here for thirty seven years he came here on a humanitarian parole the almost fifty years old so all the questions we got to notice fair notice the ability to regulate conduct and the methodology that were at play in johnson that this and this is this court thought was at play and that cheese and a tail those are absolutely at play in this case i'm all over my time  and i thank you thank you very and if two teenagers text each other photographs they could be viewed as depicting prohibited sexual acts language to the tending to excite was but i think a thought your adversary's point was whether or not the participants in these images were an eighteen year old and a seventeen year old an eleven months and twenty not twenty nineteen old person and whether they're depicting that sort of conduct that you just described would be deemed to be morally yes and if so why and your honor it wouldn't be as as you mentioned earlier your honor is the image itself in kitchen the case that he realized he never even never was raised the relationship with the victim as a defense in that case so it wasn't considered by the court but my question to you is though is in the least culpable conduct perspective the least couple conduct that could violate sixty three twelve theoretically could be an eighteen year old taking a picture of a seventeen year old an eleven month person and our question i guess my question is to you or maybe you've answered it it's because it's captured on an image and that's what's different yes your honor so the image itself is and that behavior is inherently the style of the parade and contrary to the second rules more  why is it contrary to the accepted rules is it because legislatures have ruled that way six state courts and at least one circuit court have ruled that way why why is problematic why is to praise this world service you seventeen one eighteen there's no distribution beyond their their lives themselves how does that become morally turpitude and i get your honor i think that's the struggle with with the court in the of today's younger generation and their propensity to engage in this kind of in this kind of conduct to what extent do we become arbiters of what is morally writing bad checks may or may not be a c i empty reckless assault coupled with an element of injury but not singe or it not serious injury is probably not a c i m t whether a child abuse conviction involves more appropriate may depend on the subsection under which the individuals convicted child abuse done with criminal negligence probably is not the same thing isn't that some of the problem we have here with the the the sure that was the grandmother move all in this case has there been any time where an appellate court or the supreme court has found the phrase crime involving more troops to be void for vagueness just the opposite your honor i mean we have supreme court precedent honor what is it concluded crime involving more troops has held that and in fact the b a a held in an unpublished decision which i can provide to the court after argument with if you tell the nalla says that because the pennsylvania statute for possession of child pornography is not  they really basically go off on the issue of whether the that whether the focus of the child pornography the pornography matrix is based on the the viewer or the photograph could six one two two two seven one speaking of cases on is there any case that you found that said cha cha pornography statute is not a crime es this pose sexting world where it could be applied it the statute could be applied to entirely consensual private communications that are  just that to go back to your point it's your respective of who takes the picture it's who receives the picture and this could easily be the seventeen year old sending the picture and having liability as a seventeen year old and the eighteen year old receiving the picture and moreover it's a strict liability offense which up till now this court in the book who case this court has restricted strict cases which  in other cases and a strict liability that a case which imposes strict liability for possession the court has rejected as the i m t analysis specifically in the totemic case and magoo it went out of its way to to to point out that this court went out of its way to point out that that case basically allowed for an unknown and minimal mens rea out because it was directed towards protecting a specific class i want to bring up just just very briefly we're you mentioned visiting with your jersey colleagues your honor the cash monica case that was overturned by with judge monday's dissent and he is that the majority opinion in that case and forgive my latin here but the majority opinion said when faced with bush monex appeal of a conviction this is a case where the trial judge apologized to push monica and said i'm sorry that you mis i'm from new york but i've been fully really want time in philly we would call this a young judge this is a yo judge opinion as if the appellate court was saying and the lawyer was saying to the public or go judge this is not child pornography and judge monday while recognizing that the results may have been correct then just pointed out very specifically that push monica's behavior is cons of fell within the parameters of the i haven't had the i haven't had the occasion to to research other state child pornography statute because this is a case which which you know in just looking at the elements we can see where that sixteen to eighteen year old situation happens and then lo even more than that to here's this these two cases where those conduct was prosecuted so to answer your question yes you would be be the first court to to actually apply the categorical analysis