exploitation of a minor were met the definition of a city yes as set forth in the statute and the cases interpret in that definition our position is that these images do not meet this definition and are more indicative of a voyeuristic tendency and mr miller judge shouted in regard to the content of the videos in his opinion stated and i quote in other words and i say this because i view the videos and to me and to many others right in that case it that is the case of these videos right and i would argue that i have if it's the entire body it's not drawing attention to any one part and if it's not drawing seared in other words what is with the judge looks at where the dr looks there sees naked teenage girls as opposed to a guy who cuts a hole in the wall and then books out a mirror standard because subjectively from what as you have to look at the images from the standard because if you look at subjectively your look you have to infer the intent of the person who was creating the image the third district warned against this in the village very complicated thing and we are we here to really are going to be able to define why some people are attracted to certain things if you start to look at the intent of the person who created the image or the intent of the viewer harmless all right i'm not there nobody's suggesting that this wasn't an act that was that is criminal in nature what we're suggesting is that the images produced don't meet the definition under this statute the and as such  directing the girls shows an intent to covertly record it shows an intent to to videotape what it doesn't demonstrate is what miller felt with when he reviewed these images there is no evidence of what his posing if there was a scene setting now this my this is going to go to a little bit of an extreme but it's things like lubricants or soft lighting and that the types of imagery that you see in traditional pornographic pornographic materials would indicate you may have the advantage of the court i'm sorry i didn't so you may have the advantage of the court of your knowledge well i was in the military for a time i'm not going to reasoning when it said miller did not zoom only on the fakes or even on the breast area which is further reasonable inference that he intended for the pubic area to be a focus in addition to the other physical attributes of these minor girls so the in the judge's definition as he's so used sets foot here he has admitted that there is no focal point that these images are static pictures and videos of naked girls going about ordinary bathroom activity the girls were post drew attention and created something other than a mere mere nudity image other examples a miller he he could have positioned the camera at a lower angle he could have set up mirrors there's numerable things he could have done he did not zoom the camera he did not do any cropping he did knew he didn't do any post production modifications of these images whatsoever these are several entries over twenty five videos short duration where the pubic region is of even shorter duration in these videos i the only movement of the camera tracks the girls as they move about this path are there i now the judge shouted in addition under as he stated his understanding of the requirements of the statute in regard to the focus on the genitalia when he said that there is no requirement under the statute to focus only on the pubic area just that there is a focus pubic area but in finding lasciviousness in this manner the trial court seems to ignore the statute the definition in the cases like russell that state that you have to draw attention to the pubic region attention to the genitals the trucker state specifically that there is no record to focus only on the train genitals and that's true however the case lampley meeting says that you have to draw attention to them maybe not only them but you have to draw attention to the  a assuming however that the trial court's finding that the failure to focus on the jet on the side that a failure to focus on anything at all is a focus on the genitals meets the standards of russell and the language of the definition these images still  not meet the standards of the finding will soon be a sickness because they there is no evidence that they were intended to create less witness or sexual stimulation in the view of the united states has taken the positions pretty much saying well what else could have been the point or and that might have been his intention perhaps miller's excited by secret videotaping we can never know and this is mere speculation on my part and the defendant didn't testify nor verdict to the significantly below guidelines sentence was reasonable and three of the special conditions of supervised release were either not an abuse of discretion or are much removed from that outer boundary we're simply asking the court to affirm judge shadid sound application of this court's decisions in price and russell when he concluded that this evidence which your honor a dead man in a response in response to your question a criminal conviction is inherently subjective and particularly this criminal conviction where the statute itself talks about two instances of the defendant's intent one that he had the specific intent to produce a serious image and to that he had the purpose and using the miners to produce such an image this court has said and russell repeated in price that it has never used the term zoom it is simply said that the focus of the image must be on the genitals or on the imaging or the image must be otherwise such sick sexually suggestive and i would submit to your honor that as i did to judge at what other inference on this evidence could judge shouted have drawn the defendant in this case as he did to judge shadid is now asking this court to issue a ruling that says any boy or who takes images of minor females and doesn't zoom them can never be convicted of the federal child pornography production statute if that's let's be clear that is exactly what he is asking this court do that if any whatever but it's obviously not with writing music and they say it was just straight up pictures but that's what he did now i guess that's what you're saying is that didn't require is room using a cell phone carving out a small hole in the dry wall and then through the mirror that those circumstances themselves and hit it if not precluded zoomie but what what the evidence clearly show is that the defendant stood behind stood in that closet or stood in that utility room and peered through those holes and track the movement of the girls as they moved around the shower each of the twenty two counts that we asked for a verdict on and we went through each one of those and publish those that to judge attitude indicator looking at anytime he wanted after the fact yes your honor not only did not only was there that fact but we also presented evidence as to his intent both for the production's statute itself but also for the attempted production statue the fact that on that same cell phone the defendant had recorded a video of himself and mr goodman his girlfriend having sexual intercourse and then the defendant had also recorded himself with that same same cell phone watching a prior received a v h s recording of himself in gates and sexual intercourse with a prior girlfriend years earlier so there was no doubt from from that evidence is use of the cell phone that the cell phone itself was a tool for his own sexual sexual gratification and was extremely probative evidence as to his intent and again the statute itself requires a specific intent crime and intent to produce of a severe symons and the attempt statute requires an equivalent intent finding what did the defendant do congress has said that not only the the completion of an offense is punishable but the attempt to complete that offense is equally punishable and we would submit that at least two of the videos that  pertain to two of the counts which depicted one one of the minor females and in the shower or in the bathroom show clearly showed her vaginal area and her lady now that through the shower but all of the videos reflect the defendant's intent to peer through those holes and track their movement and capture their genitals on pubic area because all of these were taken with a cell phone they had to be taken and they were taken by him standing in that utility room placing that cell phone up to those to the hole so that it could appear into the camera lens could peer through those holes that he had created into the bathroom and then he could using that cell phone track the girls as it moved around the bat so you have to know when a couple of the witnesses whether he had previously been employed in a part time basis at least at the school with some coaching experience it was unclear whether he as to when it was that he had had experience but one of the girls testified that it least coached wrestling that i believe your answer the answer your question i'm not totally clear but as employment was in some it was construction relate that's the whole the whole context of this case and how it arose was that the defendant had three children two three sons and a daughter as all his older son and his daughter lived with him and each of these five girls were friends of his daughter and one of whom was the girlfriend to his son s or the case would never have come about had the son not raised these issues twice he first found the defendant's computer and there's evidence to suggest that the defendant transferred to at least some of the videos from the cell phone to his laptop computer and his son was looking at that laptop computer in two thousand and eleven and found a video which the defendant claimed was his girlfriend and not a minor female the laptop computer  and that was the end of the matter and then later in two thousand and five and the subsequent year the defendant son went down into the basement bathroom when he found the holes and he confronted the defendant again and that resulted in an argument and the s the fenix contacted the police they spoke with the defendant's son who then provided the information on which the search warrant was sought if i may here i would make one last point about  the attempt rationale for sustaining this conviction each one of these counts charged an attempt and so even if you see even if you assume giving the defendant every benefit of the doubt and i would say i would submit submit that that would be an unreasonable position but even if you took deposition and assume that every one of these twenty two videos were not lascivious you still return to question of whether or not they have a wish and for an attempt a conviction and that as we all know attempted does not require completion of the offense otherwise there would be no reason for an attempt statute and judge shadid made specific findings he didn't just say that these were just videos of naked girls he went beyond that and talked about the substantial steps of the numerous steps  the defendant took including numerous steps that he took before he could even take these videos such as covering the holes in the bathroom stall in the shower line and then while he was taking the videos tracking the girls movements threat to harm himself back that he had psychological testing and he mentioned to a girlfriend that one of the girls a half sister to his youngest son resembled his mother and his mother ms nice hon was the person in the v h s video that the defendant was having sex with that he was watching and recording years later with it that same cell phone now all that evidence taken as a whole as we must in view in a verdict suggest at least a reasonable inference the judge shattuck could draw that the defendant attempted to create a lascivious video what else did he attempt to do because if as an attempt conviction cannot be sustained then that would seem to suggest what the defendant is suggesting that he only intended to do that which he did and that if there had been a list of b s exhibition let's say that that one of the girl's head attempted to do something to sylvia's and i don't want to suggest the details of what that might be but we can all imagine what that might be that if they had done such a thing that he would have immediately turned the camera off now there is no evidence to suggest that the defendant intended not only to do what he did but to capture everything he possibly could capture there's no ending no indication of any effort to avoid taking the camera kept rolling he did turn it off and that clearly suggests in our view that he intended to capture everything he possibly could capture and if any of those girls had done something more sexually explicit he had been right there to united states process that i have my argument is nowhere to be found guilty no win over boy or to be found guilty of this and that's what we're asking and that's that's not what we're what i'm saying a boy or a can be found guilty of that if he in edges that lascivious the you have to as far as attempt is concerned you need to look at what occurred what the what was attempted attempt is a slippery slope because it creates a implicit need to find the intent and as i said during my primary argument as looking inside somebody's heart and trying to determine what their intent was the facts indicate that he took a covert video he also took over videos of him having sexual intercourse with adult women he also took a video of him watching a video of him having sex with adult women all of this taken seems to indicate a mere voyeuristic similar to this were not well syphilis in the steam case a fellow covertly videotaped a woman in a tanning booth the woman was under a car the girl was underage her pubic area was shown there was no attempt to manipulate no cropping no positioning the camera to capture the draw attention to the general region and the court found that that is not a list of use and the facts are very similar so similar as to afford the score the opportunity  to possibly correctly make an analogous find they mention that the laptop disappeared but that's a bit disingenuous there was evidence demonstrate it at trial that this laptop was damaged in lightning and was completely destroyed city as to intent the third circuit as i mentioned before in villard cautioned that intent is dangerous in these cases  we need to look at the per the product to demonstrate what the definition of the city assists because it to look into the hearts and minds is nearly impossible i once again state miller did not testify that and very little evidence of his inner most feelings was was put forth and the united states correctly showed tries to tie these prior videos but there was no relation to the sex act and the girl and the teenage girls he didn't try to impose more or manipulate the image to make him similar so to relate them back for to try to paint a picture of what was in his heart i think is going a step too far rick you doing thing external obviously because the sorts of things and that's my point there that he didn't do that as the united states also points to the one image of the giant and lady at the fact remains though that that image it's been long still held that mere n enough and a visible the giant of a visible lady visible any part of anatomy that is not the ordinary covered with clothes that is not covered in clothes is nudity in the absence of something else of the united states alluded to other activities like oh i'll wrap up by saying that these images once viewed do not meet the definition of the city yes because they do not draw attention to the genitals and for that reason alone mr miller conviction should be overturned thank you thank thanks both to be taken under a