good morning ladies and don't our first case for argument is united states against all of these rule in the court the convictions in this case are not supported by sufficient can you just keep your voice up oh ok no problem the convictions in this case are not supported by sufficient evidence and should be reversed  remains on appeal for the court's consideration on three counts of production of one of the attempt production of child pornography in this case the government did not prove its case that or photos that were submitted into evidence to support a production with regard to the attempt charges the element of intent let's keep the government had a theory their theory was that the child molestation evidence that was admitted was for the purpose of proving both that the child was used for the production child pornography and that it showed for fourteen that and with regard to intent problemas the court did not properly instruct on the issue of intent and what we had what we were left with at the end of the day was a case where about a dana half of the evidence was true was presented on a child molestation and the jury was given a preponderance of the evidence instruction on how to waive that the government's theory was that the child station was used to prove that the child was used in production of photo the government's fieri was never proven the government put on an expert that said that in some cases child molesters take pictures of what they have done but the government never proved that in this case that is correct but what he did not admit to what the state never with the government never proved is that he did so with the requisite intent on the convictions of attempt intent is paramount it is the element that distinguishes between legal and illegal conduct intent trumps and possibility where your client put isn't an issue right saying that he had only taken the photos to check for an injury cheryl the evidence of molestation becomes admissible that is correct so why should the government have been limited in the proof that they presented the various witnesses they testified who testified gave the complete story and the surrounding circumstances with regard to the breadth of evidence that was presented on the issue of modification the court did not conduct the proper balance test the government presented ten witnesses the data happened testimony to two daycare workers both parents multiple health care folks chain of custody detective both the videotape and on the very last day of testimony the child testified the child could not even advantage by the defendant in open court trial counsel raised in  threat of the government's case was it was not necessary that is in line with the reasoning on the balancing the court did not opine on whether or not the breath of the government's case animal station was necessary and it's not even clear from the pretrial order that the court even examined the photos only go back to the testimony really breaks down the two categories of testimony the individuals to whom the crime was initially reported and then those who were directly involved in the investigation are you that is correct however in putting those witnesses on they were asked and statements were listed that supposedly created exactly what the child said to them that was not necessary now the instruction that the court ga contradictory in the sense that the court here rules pretrial that the child molestation was direct evidence the child was in that way the court ruled that the evidence was relevant to an element of the fence having ruled in that way it was improper for the jury to be instructed on that have advanced by a preponderance of the court also ruled that it was fourteen but applied the the burden of proof beyond reasonable doubt to the bulk of the state's case given the well the instruction was clear in terms of this the evidence that that they had to decide whether was more likely than not than the friend that did the crimes and acts and wrongs that were not charged and then said if you decide that he did you may consider the evidence to decide whether he had intent to produce or an attempt to produce child pornography and then there are instructions that talk about the burden of proof beyond a reasonable doubt so the court is clarifying how this particular evidence should be considered upright i think the court's instructions were were contradictory at best before all of this is basically a forum for being too right it talked about crime so that particular instruction instructed the jury to weigh the evidence of that crime  we don't know if the jury went beyond that to weigh the bulk of the state's case by the next level that would have been proof beyond a reasonable doubt and you simply don't know and given the fact that the pictures in and of themselves are not obviously elusive yes display this is not a closed case very likely that had the jury not been improperly instructed the court might have weighed that evidence differently riggs may please the court fredricka for the government just like to point out star starting with the instruction there is no objection there is no objection to this so that's waived it's not it's at least forfeited and it certainly cannot be player to give this court's pattern construction that certainly what was not unclear under the law at the time this instruction was wrong judge ones as you pointed out there are multiple instructions about the fight beyond a reasonable doubt standard as it goes to the elements  that said this court has to offer the questions the government would happily rest on its briefing but let me ask you this could a blurry photo where a viewer can't tell what the photographs graph is of support a conviction under twenty two fifty one i think in that situation perhaps not but it certainly could under the attempt in which that's really what the jury if you're the jury took a look at the four pictures the three pictures that were clear they convicted on the completed offense the one that was blurry and a little a little unclear as to what it was they they convicted on the attempt so even if that wouldn't be the commit completed crime it would be an attempt crime which is what the jury did here which i think is again it's worth noting on defendants mr allen watty sufficiency claims that if there is a problem with a completed would just simply like to point out that out of what he did testify and although this panel has pointed out that he admitted that he took a picture of the child isn't it is that important your way he admitted that he tried to take a picture of her genitalia he did not admit to having direct was an intent the jury was free to disregard his testimony but that creates nonetheless a vacuum and void in the government's affirmative case unless we're ready to believe that the detective could come in and say that sometimes those who commit child molestations take photos to memorialize what they have done unless we believe that that testimony was fissioned in which case it would have invaded the province of the jury because the detective can't speak to the mindset of the defendant but then there is no evidence that the government prove the requisite intent with regard to the attempt charges and intent is everything the jury was not instruct i will also point out on specific intent i know the seventh circuit pattern instructions discouraging a instruction on specific intent as it did in relation to intentionally that the jury was instructed on either one the jury was also not instructed separately on one in attempt is which would have helped to highlight this specific intent