the burden under nine zero one or did he just very burden to establish a conviction first assume a world where we had no photographs and we have no computers for visual depictions  paintings and drugs clearly those could be visual depiction some of the statute the statute doesn't require that they be of any particular quality the problem would be that the statute requires that those paintings and drawings  produced by showing depictions of minors in case and explicit sexual conduct and clearly from a painting or drawing i don't think the average person could say whether or not they there so with paintings and drawings there would be a requirement under the statute under nine a one and sufficiency for the jury that thick government would have to show that they were actually produce the last pretty clear that a jury can look at it we know that our the judgment termini no one can look at and say based on its quality is not a painting or drawing therefore it's a natural event because it's light reflected off of something the only issue for the jury is whether or not the minors are the judge and admitting it with another minute and that's something in a layman can look at to make a determination whether or not they'd appear to be minors the problem was we had computers to the next because computers can take images visual depictions and make them look at the same quality as pictures and then we're really back though to this soon of burden of proof that we have for paintings in trunks because no one can tell you the pictures were around in the fifty's before we had computer technology which they stablish their pictures they're missing in religion they cause an expert to say these kind of the me just cannot be produced at this time by computer depictions therefore the to determine whether were actual depictions of events that there is an added requirement that an expert witness be called qualified and testify that in his opinion or her opinion  the depiction was of actual events is that your point is but my point is spy looking yester no can you answer that well i don't think i can answer yes or no ok can i explain why or i think my point is that given the state of disagree with you that's the term but that's ok what case do you say in the ninth circuit says that it's not enough to show the images to the jury that you must have some foundational qualify testimony by somebody who qualifies as an expert saying these are not drawings these are not made up images these are real images i don't think the night circus ever addressed that issue like so either i think  prove seems to me to be another question let's say we have a computer image and it's just to pick a subject mr rainwater or it looks like mr rainwater and then the detective comes in and says you know what i know mr rainwater and i've seen him in person and he's a real person and we now have this computer image and that's missed and i can tell  so this is mr rainwater now i thought your argument was going to be but if but it's a virtual depiction of mr rainwater they've never actually  expert witness saying that these photographs on from these images from the computer could not be identified as being simulated or actual that the defendant went to trial based on the government having introduced by the defendant that this was a made up act and this was virtual not real well we introduced quite a few images that were faults that the jury obviously seriously considered and  demonstration to a jury so you can just go on the internet and get images that was there any evidence introduced that the two women or two young girls who were identified by the book with this myth that that's any of these images were made up that that's incorrect because there were two girls then a five after smith the actual testimony is in the video there is a young girl shown dancing at the beginning of the video he testified he didn't know anything about her then the second part of the video it's obviously been spliced together counsel's argument or the judge's version so just a word to the wise for all of us if you're going to argue from evidence we actually need to have it in the record and we'll hear from the government maybe they can point us to it but if not we'll ask exploitation of minors were known to him no i did not say it was my position that the objection for a sustained to his testimony and the government never introduced the evidence all that well let's hear from the two thirty four but if i could read the relevant portions you can read it that you understand our problem yes we spend a lot of time preparing for these cases yes the government there is a burden of proof then you don't argue from something we have no idea what you're talking about and then we come here and you're going to read it so i'm going to ask you to supplement the excerpts of record so that we actually have the transcript but just to aid our discussion today i think it would be helpful we conducted interviews both with the suspects and the victims that were present in the video and that's referring to the video six point one which was introduced into evidence and then he says i have to clarify there were actually three participants in that the first girl that showed in the video was not part of our investigation that's the girl that mr rainwater referred to he was dancing in a spinning suit at the beginning of the video the second two participants detective smith testifies involved in the sexual acts were part of the investigation that being the adult male penis that is visible in that video and the minor child who is sucking on the male penis i want to clarify to you in that video while a lot of the video does focus on that girl's face you do see her bare chest and she's clearly creepy best and i just want to address that issue because that was raised on the government's main the defense briefly well that goes  to the age issue which i don't have so much trouble with the trouble i have is whether the depiction is actually computer generated in other words you could take anybody's face in this courtroom and it would be a real person but you could make them do things that they didn't actually do by computer manipulation so my question is whether the government has met its burden on the sexual act by a real person well i think that's where the testimony of detectives smith was frankly even more helpful than a computer expert regarding whether or not it's virtual or not he actually conducted the investigation out of state could also te it was produced in connecticut testified that he spoke with the victim in that video that is the focus really of that video for four hours about her about the investigation and her victimization in that and he testified specifically that the video they learned was produced in connecticut ok well that now i'm having a different problem so basically he has an investigation and he talks to the victim and does he testify that the victim tells him that she had to engage in these things all right we were the government was not allowed to get into specifics of the home and she was saying that those photos accurately reflect the crime scene if you will that the detectives investigated we also have those and they you know are matched with the video the background in the computer but the question is whether whether there's enough evidence to say that it actually took place or well i think the fact that the detective on the investigation allowed to testify that he spoke to her for approximately four hours about the investigation and identified her specifically he also testified that he talked to the first girl in a video but never requirement that it crossed state lines whether it had to be each image or at least one and that is what the clarification was for and the defense actually provided  seeing the transcript of course but if they simply had a detective who said i've seen this girl and i know this girl is real i'm looking at the video but didn't have any information about there being a sex act or a victim would you agree that would be a much harder case there would be much harder case and i think in this case we have that because he talks about the victim clearly being sexually exploited and investigation in connecticut where the movie was produce but i will certainly supplement the record with his entire testimony and the other question i have really relates to the confession  why we also introduced evidence of chat logs which are also defendant statements and as part of the proof of his knowledge that these images are on his computer and his interest in real kids right s about three lines long or two like americans put out here but now i and find out there's a different confession where did that come from well there are a number of statements that he made as well to special agent  young girls asked them whether they had done the x which was shown on the but if the evidence doesn't actually isn't actually enough in and of itself to show that it's a real key here then doesn't that mean that the government would really need to bring in an expert to kind of meet it produced with my child actually involved in sexually explicit conduct if it's a real child and a made up incident it doesn't count as you aren't everything that was cited in your brief to the transcript and the same is true for counsel for appellant you also if there's anything in your brief and what you cite to the