thank you thank your honor may please the court the federal child pornography statute defines pornography narrowly and specifically requiring overt acts that are necessarily sexual we know this because the first four  categories listed in the statute refer to objective that sexual intercourse beastie ality masturbation sadek estate's sadistic or masochistic it abuse the fifth category at issue here with c p s exhibition of the genitals or pubic area of any person must be construed in light of the four categories that persist in other words to also require overt acts that are necessarily sexual that is required by repeat several recent supreme court cases presented with an attempt by the government to prosecute a defendant based on a far broader reading of an item in a list and in each situation the supreme court narrowed at that item to interpret it consistent with the terms that preceded i this case applying that hanon requires considering with serious exhibition of the genitals or pubic area to root again refer to overt acts that are necessary section necessarily sexual a purely objective test that looks at what was happening in the video and what was the victim doing in the video and i think we can agree that this video was disturbing and the circumstances of its creation were disturbing but what was ultimately depicted in this video was a teenager taking a shower sentence of one year to five years likewise what he did may have been voyeurism under virginia state law and again when that involves a minor again he could have faced a sentence of one year to five year when the federal government charged him with federal child pornography  the state indecent liberties charge w likewise on the objective characteristics of the video and so in this instance he you know in this instance the count that was dismissed he was no more guilty of than the count that he pleaded guilty to at and i think this is an important distinction between this case and many other cases that in the circumstances of this case when there is no indication from the video that the video he attempted to produce was any different than the video that he possessed if he is actually to say i'm just i'm i'm just trying to this thing in perspective he got indicted on two counts two federal felony he pled guilty to one he got a plea agreement from the federal prosecutor to dismiss the other he went to a plea proceeding before the united states district  he admitted his guilt and he comes back later and says well i was really guilty of a crime and that's what those proceedings about you say that he's tired of some kind of good rejection of your contention that he did but all right that's correct but ultimately here what the the review on this question is ultimately a question of application of undisputed facts to a statute and that is reviewed novo there's not this is not a situation for instance you can imagine a defendant who is found with you know lives in an apartment and there's drugs and found in the common area and there's a question about whether this these drugs belong to defend it and it's part of the the police the defendant says yes i admit it these were my drugs in that situation the plea would be dispositive because the defendant has admitted to facts which do constitute a crime but here the ultimately this is something that mr court is pleat cannot turn something into a crime as a matter of law that is not a crime there's no dispute about what the contents of the video are the only question is as a matter of law do the contents of this video violate the pornography stat and that is why this is a rare case but it important set of cases in which the facts that were admitted to by the defendant simply as a matter of law do not constitute a crime that is a legal question that this court has do know of and what we understand that the district or interpreted the statute in a way and concluded that it was a crime argument is that the district court did not look to the text of the statute apply the canons of statutory interpretation that is sort of rare voyeurism is sort of pull back i look at what's happening but in this case did depict motive boyer's because it's in the race just die of the crime itself it is because you know you hear it you see the girl but look she's taken a shower put put this down that's more than voyeurism is not just he's looking at it he's it's depicting his salacious narration isn't it s put turn the camera around here move it over here put it down on the floor some people get turned on by that and it narration and active for resume that is depicted this is different in the case where here unlike in a classic right there was the narration not salacious well because ultimately what the statute requires looking at is what you know where the actual what what was the victim doing and where those acts the c audio and visual is it not but so ultimately i want to take so i can say two things first of all the fact that someone might be turned on by it isn't dispositive because as other parts of recognise people can be turned on by all sorts of things that go on within th on the table that would have gotten more at the intent of the person filming it would've banned the proposed language would have banned depicting child nudity for the purpose of sexual stimulation or gratification of any individual who may view such  so that's a circumstance where yes even though what would look objectively be a shower because there's other circumstances in the video indicating that the producer was aroused and maybe want to other people to be aroused by it would be covered by that but that language that language which includes more subjective standard which looks at the intent of the producer in the circumstances of the filming was rejected and instead what we got was simply a listing of overt sexual acts and there was no overt sexual act here there was no silver sexual there was no she wasn't posing in a way in which she was you know flaunting particular body parts or how to you know look at desire on her face or spreading her legs or or things like that you know she wasn't doing anything other than i want to be it is not appealed but second as you know if at what adam said was whatever procedural defaults might otherwise apply if the admitted facts as a matter of law do not constitute a crime then those procedural defaults fall we understand that  that is ultimately a question for this court and that was the same situation you had and both lose same situation you had in adams finally realize i'm out of time but i do want to get back to just being your question about what is the relevance of the indecent liberty statue i think that's actually it's relevant because again it illustrates the differences in the statute in how you interpret them the federal child pornography statute says nothing about the circumstances of the film or what the producer is doing the indecent liberty statute puts directly the solicitation at issue the request at issue those different structures of the statute the different language of the statute reflects differences in the way the language is to be interpreted his conduct may have violated that other statute but this narrower more objective me please the court my name is jim mcdonald and i represent to be just curious case the washington and lee university school of law advanced administrative litigation clinic it's my pleasure introduce ms daniel phillips ms phillips is a third year student washington only school of law and a member of our clinic and with the court's permission she'll be presenting oral argument on behalf of the media commission so granted thank you professor and welcome you may anus genitals or pubic area of a minor now if this court in the alternative chooses to elect to retain the use of the six those factors we asked at the court clarify how that factor may be use assert that if the six does factor is to be used in the court should declare that consideration of that factor is only relevant in so far as it reflects an objective intent or design to elicit a sexual response  that is to say that consideration of the sixty's factor would then be limited to the four corners of the alleged top or not or not as we asked at this court vacay in re man for reconsideration for the following three reasons first the district court use of the six dos factor this will chill core first amendment protected speech and lastly when considering the six dos factor this will convert objective lee lascivious images of minors into is beyond the four corners of the alleged child pornography then the court is engaging in whether or not this individual potentially was a bad person and they're not becoming they're not being found culpable for the actual image which should be in question are not moral police w hurley versus irish american gay bisexual good he said that photos paintings pictures all unquestionably fall under the end of the first amendment you are now reading this in conjunction with what the supreme court said in new york before iran foot eighteen the supreme court said that mere nudity is within the first amendment that is protected by the first amendment now this court said and united states v doyle when it was interpreted in virginia state statute that very closely parallels and mirrors the federal such that mere nudity in a photograph including that of a minor does not constitute child pornography and the reason that this is extremely important is because the usage of the sixty's factor considering the sixty's factor in the context of the act is rance of a crime will permit will effectively chill speech now a good example of this is a local photographer sally mann saw a man has catalogued photographs of her children  in the first amendment will be chilled from wanting or desiring to engage in that conduct precisely because the court could engage in whether or not they had personal fantasies when creating that image and that cannot be the objective of the federal top or not if the statute as  already mentioned the the statutory language and under the statutory construction it displays are portrayed as an objective intent that congress wanted to portray  manner all of those things speak clearly to what congress was intending to prevent the social harm which congress was intending to stop and that social harm was a joke to display the list of b s exhibition it is not to for the court to engage and what the defendant intended or desired for that for the contraband to be because what the country what the defendant desired for the country to be does not change what it is objective li effectively what the district court was saying is that contraband changes its form based on who holds it because subjective intent can change contraband based on an individual subjective intent to deca contraband will change based on the nature of what individual holds that contraband that cannot be what this court is saying now on or in conclusion i see that my time is elapsing we also at this court eliminate the use of the sixty's factor because by permitting the use of the sixty's factor this court will be relieving the government of their burden of having to independently establish both the actus reus and the men's wear additionally on or the effect that will have on the first amendment can best be  sought out by what the supreme court said ashcroft the free speech coalition or in that case the supreme court said the government may not suppress lawful speech as the means to suppress unlawful speech protected speech does not become evils of child pornography is that it attacks the human dignity of its child victims by treating them as nothing more than sexual objects when this defendant tricked twelve year old into filming a twenty four minute video of herself naked in the shower he treated jane doe as nothing more than a sexual object when he pleaded guilty he admitted that his possession of that video was illegal and for three reasons he cannot escape that plea now first the defendant is not bringing a true actual innocence claim cognize it will under the supreme court's decision in balsillie second defendant cannot show that he is actually innocent of the more serious charge of attempted production of child pornography foregone by the government in exchange for his plea and third in any event this video qualifies as  with the first point which is whether this is a true actual innocence claim it is not judge king you focused extensively a moment ago during my friend on the other side's argument about the fact that he pleaded guilty that's entirely correct and it's important to distinguish between two types of hay vs claims it can be lodged after a guilty plea if you could argue that he received such poor advice from his counsel that he was induced to plead guilty in a way that violates the constitution but he joined appendix pages five twenty through five twenty six this defendant waived that claim entirely in the district court so as the case comes to us his lawyers correctly advised him that pleading guilty was the right thing to do the other type mutual mistake in contract law it turns on the idea that the judge the attorneys and the defendant were all mistaken about what the law actually criminalizes but that logic is not available in a case like this one where the law hasn't changed one bit since the defendant pleaded guilty this argument is further supported by the supreme court's decision in broaching into law no your honor the law punished possession of they're saying is that mere nudity never was a crime let me address that point directly it's important to distinguish two different types of argument and clarify what they're actually arguing if the argument was the factual and legal so the factual element under broacha is does this video contain sexually explicit conduct and the legal element is was its possession illegal that's backed up we think by this court's opinion in the master which said that when a defendant pleads guilty under oath that assertion is so solemn and important that a district court generally speaking should dismiss the twenty to fifty five that contradicts what the defendant said the alternative your honor we think has to consequences the first crime again this little lead was the body of the crime has nothing to do with what the statute criminalizes you saying maybe admission alone would be enough you're out of the district court has in your house or my hypo i play guilty that he purchased something he thought he was given child porn but it turned out to be nothing but he was still be guilty if he pleaded guilty under broaching he admits that the video was only that's our view and that's consistent with this court's decision i'm a bastard the alternative view is that any time a defendant pleads guilty there's no finale because you can always call them and argue that the conduct that he admitted to doesn't constitute an offense and this court will always have to hear those claims on the merits so let me show you because that's our that's of i'll let you go you would thank you your honor the first is keep in mind of course that the district court exercises an independent obligation to determine there's an adequate factual basis so in the example that your honor hypothesises we don't think that actually would ever go through because the court would review the materials and determine if there was an adequate factual basis with glee the second thing on finale is to take an example that my friend on the other side used he said well this case is different because in say a drug case it's if you admit that it's contraband that's the end of the in korean you could never bring an actual innocence claim we don't think their theory of actual innocence is so bounded under the analog act for example there can often be quite a bit of factual dispute about whether or not a controlled substance is or is not illegal so under their theory a defendant can say yes i plead guilty your honor this was a controlled substance wait five years follow twenty to fifty five and say actually i've been really studying the analog act and we don't think this was contraband on the other side's argument to focus on the voyeurism argument this video is not voyeurism it's not voyeurism for a common sense reason and it's not voyeurism for a statutory reason become and since reason is exactly as you're on articulated in a voyeurism case typically the pornographer is not in the video at all there's a hole drilled in the ceiling or in the wall and what excites the voyeur is filming something that ought to be private it doesn't necessarily have a sexual dimension here this defendant is a character in the production he places the video camera on the counter he holds it over the shower curtain repeatedly so as to capture jane doe's entire body including her genitalia he then tells jane doe to put it on the floor of the shower where it's most likely to point out and capture images of her pubic region and genitalia then when she hands the camera back to him he knocks the water off and continues to hold it over the top of the shower curtain so as to capture her entire body so that's the first reason purely as a matter of common sense he's a character in the production he's not a voyeur the second reason is statutory which is as the eleventh circuit explained in homes which is another sarap to just recording of a minor in the shower  the voyeurism statutes do not contain a purpose required it doesn't matter why you're invading someone's privacy to film them the act of filming them when they should be in private circumstances is illegal but requires that the depiction of the minors genitalia or pubic region be captured precisely because it's sexually it's excites the intended viewer of the film another pedophile so there's a purpose requirement here that doesn't i that's exactly i was going to get to joe you were up we think this case is sufficient to decide based on the video itself it's twenty four minutes long it is obvious what the defendant is doing he is trying to capture the full body including the genitalia of a twelve year old girl we think that clearly qualifies as lascivious but the government would strongly urge the court not to adopt the position of the eminence we've reviewed so all the cases involving deals with the nature of the defense when you start with the defense oftentimes in a case like this the defendant will make some defense that hasn't happened so for example there are a number of cases in which the defendant had said this is protected nudity under the first amendment i think of this video as ours and in those cases the courts of appeals have said well then it's awfully relevant for the jury to hear that you stored this purported art along with your collection of hard core child pornography on your computer which tends to show that you didn't think of it as art at all you thought of it as a video the purpose of which was to sexually excited similarly here and this goes exactly the point you were just making judge king this case is somewhat odd since there were no defenses made to the jury the defendant pleaded guilty that's correct but i want to make the point that if for example this case had gone to a jury in voyeurism defense cases involving lascivious exhibitions voyeurism is itself a defense that raises intent it's an argument to the jury that i was t just by filming something private i wasn't a lady by minors and i wasn't intended to the lady by the genital your pubic area of minors there are cases that have raised that argument the holmes case from the eleventh circuit is a good example and there the eleventh circuit said if there is evidence that at the time or near the time that you filmed this video you were sexually obsessed with this minor victim even though that's outside the four corners of the depiction argument and so to hear if this case had gone to a juror we believe we would have been entitled to present evidence to that jury under the sixth das factor that this defendant was sexually obsessed with jane doe indeed the pre sentence report admit all of those things but it would not yet to the culpability of the actus reus because a still would you have is a new fourteen year old girl so that's the problem you conflated because you are saying i know what your min is and if you show nudity through that alone you are getting off on that that might be the case but the question is what did i produce and what do i possess let me throw up and adopt some limiting principles your honor you know it and then let me respond to exactly that hypothetical guess because it's important the first is the second circuit in s'pore said the six dollars factor can't stand along there has to be other evidence within the four corners of the depiction that tends to show its purpose was to sexually we have no problem with this court adopting that view and lost it because of as you say i think quite eloquently he was a part of that character yes that's exactly right but but but but then what those films wants us to do is look at the broader a shot so let me principle one is the same thing the second circuit seven spore limiting principle number two is all of these cases are going to be fact specific and in every case the district court judge will be able to exercise his or her discretion under a one in four three to keep up prejudicial it's so in a case where the district or judge thinks the government has gone too far outside the four corners a district court judge could say no what we want to urge the court not to do is to say never because the facts are going to change on a case by case basis i also want to address chief judge gregory your honor is very hypothetical which is what if it was a twenty four minute video of a minor fully nude just standing there in our view your honor i think that would be a question for the jury because one of the das factors appropriately is was the minor posed unnaturally and if i is a pedophile take a twelve year old girl and i put her in front of a background and i say stand there while life film you we think a reasonable juror could conclude that the only purpose of would go to a jury as a fact was a question for the jury's determination i want to briefly mention our second argument which is under way and if it doesn't just have to show that he's actually innocent of the offense to which he pleaded guilty he has to show these actually innocent of any more serious charge for gone by the government there are not many cases that raise that wrong about but this case is in the heartland of that reasoning because here this defendant was charged with both possession and attempted production of child pornography and the production statute carries a fifteen year mandatory minimum that the defendant avoided by pleading guilty to a statute with a ten year statutory maximum now here i think is the cleanest way to argue why he can't show he's actually innocent they got out from under the low serious offense that's right you can't in our view because in an attempt case all of the intent evidence comes in chief judge gregory because all that matters is did you take a substantial step of what was happening in your head and so the fact that this defendant was sexually obsessed with the victim would come in in an attempted production trial moreover no federal court of appeals in a case involving a syrup to shower recording has adopted the defendant's view that includes the seventh circuit and miller of the eighth circuit and war tenth circuit in wells in the eleventh circuit in homes their best case is a case called white from the supreme court of tennessee that adopted a very narrow view of what the word lascivious means but i would direct the court's attention to page four forty eight  volume five zero six of the southwestern reporter third because even the supreme court of tennessee after holding that the depiction in that case was on the civilians said alternatively the evidence is of course ample here for the government to prov attempted production of child pornography and if the government wants to recharge this defendant on attempted production out they are more than free to do so that's this case he cannot show that he is actually innocent of the attempted production charge and that's another reason his b s claim fails i see my light is on you are so simply conclude here which is in this court's few good decision the court said the case was bereft of actual innocence say for the innocence of the minor victim so thank your honor i want to briefly address the significance of the plea and then come back to the significance of the narration in the video briefly on the plea i do want to point the court to the walk us decision out of the sixth circuit cited on page fifty one of our brief and in that case the six circuit had a situation where the defendants had admitted to participating in murders and they had admitted in the plea that this violated a statute the federal statute with or come with a commerce nexus and yet the court looked at the facts and said the admission of those murder admitting to those murders without anything else in the record establishing commercial intent meant that the conduct which they admitted did not constitute a federal crime and what they said was because the defendants didn't understand the facts in relation to the law those circumstances quote typifies a non intelligent guilty plea so if you hold that the guilty plea is dispositive you will be creating a circuit split with the six circuit decision which was following the supreme court precedent that a defendant understand the facts in relation to the law now on that question and the question of the narrator and i think this is important both for the possession and the attempted production charge there was a narrator yes but the narration here was it was a ruse it was a ruse to get the video that fuel to move he got in other words he was directing ms doe so that she would be filmed naked in the shower but ultimately what was filmed was a person taking a shower this would be a very different case if he had you know asked her to to pose or to make sexual gestures or to talk sexual any of those things had he asked if he had done them the video would have quarter graphic and even if he hadn't that would establish the attempt because he was attempting to create he was attempting to recreate it with serious exhibition but here the narration simply resulted in a video of a minor shower in other words the narration is what got the video made but that our ration didn't change what the video depicted and ultimately what that video depicted was someone taking a shower i think that's an important difference because if that narration if the narration is simply evidence that he was sexually aroused that would have been a crime under the language that congress rejected you know depicting child nudity for the purpose of sexual stimulation or gratification it certainly would have fit within that language but when the statute is talking not about sexual arousal but rather objective specific outward sexual acts his narration simply cannot change what was filmed it may have facilitated the filming but it didn't alternately change what was to pick and that means both sequential would have made a difference and gave her a bottle of chocolate syrup shower what does that make sense that that's the essence of it seems like it would at least make it it seems like it would make the sexual content heightened or it was to create sexual contact because there isn't really any way at least after look at subjectively what was going through the defense mind but when placed in the company with four other things that are clearly specific objective x so you have that cat in as well as the rule line of the compel interpretation that it has to be again an overt act one that is necessarily sexual chocolate syrup maybe rises to that level maybe doesn't i think that might be a borderline case but simply you know a shower in which a person i would say that the washing of the genitals you know again it it makes it an exhibition but i think it would be less serious unless the matter in which genitals were touched was you know matter as a type of sexual touching as opposed to simply the practical act of putting soap on them washing them and washing them off and while washing them off and i think you know i'm not sure i mean i mean maybe the government take position that any filming of a minor in a shower is per sexual than a shower and yet congress said that skinny dip it wouldn't be covered and so again someone might be upset if while some one might film teenagers skinny dipping yet again that might violate some other statute but we know from legislative history the congress did not intend for that to be a serious exhibition in that exhibition perhaps but it was serious exhibition no and i don't think that would change based on narration of the producer because ultimately what those specific one two three four five in the statute focus on is narrowly what is the action what is the minor actually doing and if you want to and you know that's what makes something pornographic as opposed to voyeurism as opposed to indecent liberties as opposed to various other statutes that protect children