a defendant does not sexually abused a minor when he masturbates in front of her on a webcam the sentence enhanced meant that mr polaski received for masturbating in front of a webcam requires sexual abuse the district court therefore erred in enhancing mr polaski sentence for the conduct at issue yes that there's a mandatory minimum sentence your honor polaski was sentenced under section two g one point three of the guidelines paragraph before a that guideline provides for a to love one handsome and where a defendant commits a quote sexual contact tact the guideline itself does not define sexual contact but it does cross reference eighteen u s c section twenty two forty six three to define that term we cannot look at section twenty two forty six three in isolation we must look at it in terms of its underlying purpose and the overall framework we must look at it in the context of the act of which it is a part of the act of which it is a part is section one of the ninth excuse me chapter one of nine of the crimes code which is the sexual hundred eighty cents when a defendant masturbates in front of a minor he's not sexually abusing the minor he might be corrupting the morals of a minor but he is not sexually abusing the minor and the statute and the act of which it's a part requires actual sexual abuse would you require contact is that we yes because twenty to forty six three sa intentional touching of and then it was several private parts with another purpose may have any person if the sentencing commission had not wanted to require sexual abuse as a prerequisite for sexual contact and then the enhancement it should not have cross references sexual abuse is the whole purpose of the statute in sexual abuse is not satisfied here also yes no no he may have been doing x as a way to condition or to sensitize her but it needed to be more than enhancement requires more it requires the touching it says the intentional touching with the intent to arouse and furthermore the intent the intentional touching could not have been of himself it had to have been of her it has to be of the victim or her i believe if there's been a lot of discussion in this case comparing and contrasting paragraph two d defining sexual act with paragraph three design defining sexual contact paragraph three is an expansion from paragraph two d in paragraph two the congress talked about intentional touching of another person and under the age of sixteen in paragraph three it's expanded to say the intentional touching of any person i believe that where congress was heading with this was to cover a situation where perhaps a minor touch is an adult and his made to touch an adult and the legislative history of the sexual abuse act which is set forth in detail in the shaper case which both parties have cited as sat the whole purpose of the sexual abuse act is to cover as broad a variety of sexual abuse conduct as possible because that argument yes it does yes it does your honor because the situation presented here was not a minor touching an adult i think what the difference boils down to i think about sexual abuse which is required because twenty to forty six three times not intentional touching congress was looking at participation viewing an adult in a compromising situation is not by any means a desirable situation but is this not a rise to the level of sexual abuse and the sentencing commission did choose to cross reference a sexual abuse statute within the sexual abuse act of one nine hundred eighty six in order to define that term i'm not sure that to be honest your honor but i don't know that that really has any bearing they could certainly amended if they want to change it there are other statutes within the crimes code the talk about internet abuses and pornography and things like that child pornography but the sentencing commission did not cross reference that here and we can't go beyond what they've cross reference and what the clear import of that statute is and the fact that they chose this is very important but other circuits who seem to agree with you wrote this eleventh circuit in the aldrich case does not get into the whole legislative history and i believe with all due respect to your colleagues in the eleventh circuit that the opinion is much too superficial schafer in the six circuit is a situation in which an adopt persuaded a child to masturbate in the shape or decision the six circuit said this is a rare occurrence and i think it probably is and in my previous analysis of the difference between paragraph two d and three i believe the congress was looking to include situations where a child touches an adult however even if they were contemplating a child being made to masturbate by an adult i believe that would be covered in the sixth circuit is correctly decided their opinion and does not undermine my argument or my position in any way because a child is sexually abused when he or she is made to masturbate there to supporting his meaning they're not participating and they're not abused if they're merely observing and alt so i don't think the sixth circuit undermines us and i don't think the eleventh circuit looked at the placement of twenty two forty six three overall in the sexual act it just made a very superficial analysis based on any person versus another person and the change didn't consider the fact that the broadening from another person to any person within  statute was also accompanied by an elimination of the age restrictions so i do not think the eleventh circuit is worthy of being followed and the sixth circuit is distinguishable and does actually involve a situation where a child was sexually abused hayward i think is a recognition by this court that the intention of twenty to forty six is to protect children from sexual abuse and that is why this court use the word the touching of the victim and it includes the scenario from the six circuit in shaefer where a child is made to masturbate because the victim is being touched now be it by his or her own hand so i think hayward definitely supports our position even though the issue addressed in shape excuse me in hayward was not necessarily identical to this one i think it's an understanding by this court that the purpose of these statutes is to protect children from sexual abuse and even all people from sexual abuse so there's a focus on the victim and this court recognize an adult who over the course of several weeks rooms who he believes is a child and then masturbates in front of that individual via webcam or even in person is engaged in abusive conduct but that is not what the issue is the issue is whether or not that constitutes sexual contact under section two g one point three of the sentencing guidelines on sexual contact is defined as quote the intentional touching either directly or through clothing of the g in the context in which the action of the self masturbation occurred clearly it constitutes sexual contact he had been grooming as it turns out the fact of a bulk of the allegheny county district attorney's office but he thought it was a fifteen between the two and eventually mr hayward was able to expose himself on a web camera when you read the comment that the chat dialogue between the two actually is indicating that she is  any person means every person i mean that's that's common sense that's a common meaning of the word however there has to be contact under a for sexual act occur there has to be tactile physical gratification from exposing themselves there are individuals who derive gratification from arousing other individuals mr pullouts he happens to be one such individual and as such his conduct fall squarely within the definition of sexual contact and that is why on the two level just didn't was correctly applied by the district court would you say simple exposure would be a violation it depends you have it well it has to it has to be well there has to be an intentional touching for simple explosion to occur and there also has to be and also has to be performed with the into a daycare center exposing himself i mean you know clearly he's probably trying to ride some kind of gratification from that action and there is an intentional touching so yes that would be a waterfront they drove up to a motel and there was no direct sexual touching between the two but mr philosophy did expose himself and did masturbate in front of actually the fifteen year old under those observations in the hayward matter i think that the single sentence is dictum that had nothing to do with the resolution of the case which was whether or not mr hayward engaged in a sexual act involving forcing application again there are situations where abuse can occur sexual abuse can occur where there is no physical contact between the abuser and the victim this is a great case to dealing with that i mean clearly mr bossie was provided with evidence that he was dealing with someone who was under age i mean during the very first conversation ashley tells him i'm fifteen years old that she's in high school it unfolds from there you know there's he repeatedly refers to her as a young lady he cautioned her don't tell people that we've chatted i could get in trouble there on your under age he's concerned about online sting operations so he's clearly cognizant and the evidence is more than sufficient even without the benefit of the plan or standard to show that the defendant knew he was dealing subjectively knew he was dealing with a fifty with that i would like to address the second argument the issue that was raised and that dealt with the misstatement that was made by the prosecutor during his opening remarks to the fury i think what is very important is that the one individual who was probably in the best position to assess what impact mr however was unfortunate to use the word present evidence before the jury was mr to resell the trial consul he did not object and in fact in his opening statement mr de research even characterized kalar statement the assistant u s attorney statement as in the statement through their yes your honor and i think i think that the assistant u s attorney likelihood meant to use the word illicit and if you substitute the word illicit for present it's clearly enough that it would happen i mean if you look at the record mr to recess cross examination of the government's witnesses went far beyond the extent also when you again this is plainer too because it was not objected to but there were about no less than thirteen specific separate occasions where the jury had been instructed by the district court the prosecution or the defense that the defendant had no burden of proof that he was presumed innocent so i think  the government made a big deal both in its brief and it were argument about their position that it would have been it would have been a reasonable conclusion that the quote unquote victim what's herself masturbating and i don't believe the record supports that in any way and that quotations which the government has in its brief for this proposition show that it was pretty much a one way discussion and mr polaski sparked and that he would say that perhaps she should engage in that bitchy wooden answer very vaguely and say yeah yeah yeah so clearly it didn't happen but even that intent and because this is within a sexual abuse statute the touching had to been of him i'm sorry of the victim and not of the defendant the other point that the government makes is they were cases not helpful to our position i still maintain that it is but i also believe that without even looking at hayward all this court needs to do as well is to look at the cross reference that the sentencing commission made to a statute within the such all of your socks and to look at what sexual abuse means defined in such in twenty four twenty two of the sexual abuse act of one nine hundred eighty six and it talks about putting the victim in fear threatening the victim or committing an  act because we have to look at those terms within the context of sexual abuse and it has to be that those things the harassment the degradation and so been harassing himself or degrading himself and it's not even clear that he was sexually arousing her or that that fits within the purpose of the statute it's a sexual abuse stat but we have to look at the act overall and the purpose of the act overall when they broaden the language from paragraph two deed to paragraph that three the point was to encompass more sexual abuse and as i said the logical reading would be that they intended to cover situations where a child touches an adult because they didn't just change from another person to any person they took up the age requirement in this next