number fifteen sixteen ninety one united states of america versus riley patrick lively arguments not to exceed fifteen minutes or so i mr friedman for the good morning your honors i would like to reserve five minutes of time for rebuttal this is an appeal from the western district of michigan on one count of a charge of  production of child pornography i've raised three issues on appeal and i would like to jump out of order with the chords for mission and squiggly dispose of issue three i think it's sort of fitting that i'm standing here ort room because i really think that's where the argument would belongs i think the court made a wrong turn in one nine hundred seventy seven and failed to follow in a panel stari decisis but i think it would be probably incorrect for a panel at this point to make the trip correction i would be happy to entertain any questions on it but what i'd like to do is focus on issue one in two and with the court's permission i'd like to argue them jointly because i think that the had sides of the same coin the issue in those two cases in those two arguments are whether or not the government presented sufficient connection with interstate commerce and whether judge jonkers improperly restricted refused to give a special jury instruction to at least place that question in the hands of the jury what makes this case unique is two things first  all the evidence in the record suggests that this is a non commercial production case there's no evidence that these images ever were transmitted over the internet or otherwise left state which leaves the government with the method of argument that it was created via the instrument tallaght ease of interstate commerce and i'm going to respectfully submit at this point they can't rely on the computer and i'm going to say three reasons were quickly because i know this is going to be a major part of my opponent's argument the thumbnails that were found on the hard drive that was unquestionably produced in interstate commerce we don't know the time manner that they were produced and we don't know more importantly that they were on that machine for editing for transmission for anything other than viewing and it could have happened after the conspiracy had and why do why do those things matter in other words if it is if the four images are on the hard drive of the computer and the hard drive is manufactured in thailand why isn't that enough to show producing in on viewing i mean that's all we can determine because mr norwood charlie's hard drive was encrypt why is that not enough if assuming that you're right that it only shows viewing why isn't that enough to meet the statutory requirements this is the say is there would be analogous to the internet cache cases that you've dealt with in other contexts where the person looks at a website that contains point to graph images or other contraband and the machine in  process creates an image in a cache that is little that it resides and the person may or may not know it is actually on the hard drive i don't think it's that complicated i mean i think and i'm not sure you might suggest a slightly different way to put the point there were two productions here i think the case law makes it clear there were two productions there's a production with the kodak digital camera and there's a production when it's reproduced on the hard drive so you kind of stuck under the case law w there being two productions but the statute requires the abuse to be for the purpose of each production and that's what i think is difficult about the government's case because i think there's plenty of evidence  think all of the evidence is that the abuse was for the purpose of the kodak production but they didn't they they put on evidence about connection interstate or foreign commerce with respect to the hard drive they didn't as to the kodak so that's with so they've got a mixing and matching problem so that i don't think it's a production issue it's the abuse was for the purpose of each production is the question and their evidence of interstate commerce goes only the hard drive and i don't think there's evidence in the case that your client abused last for the purpose of the hard drive production it was for the purpose of the kodak production because that was the other fellow there taking the picture so i don't think it's worth fighting about whether they were to productions that were the question is what was the abuse for the purpose of and what is the evidence show and then was that device connected interstate commerce i thank the court for its statement you're far more eloquent than i could have been on that point i think that the question on the memory card is the camera was put into evidence but nobody talked about what was on the memory card prosecution closing arguments when mr blanchard had pointed out the omission in the government's case and invited the jury to look and see what was on the memory card and i don't know i mean i can speculate but speculation isn't evidence wrong theory but there is there is evidence in the case that says the memory card bore the inscription made in china that's not how they presented to the jury i'm not sure they even put that evidence in for this purpose but and that makes me wonder if it's harmless well the five obviously says that evidence for one purpose isn't necessarily admitted for another and i think that this is particularly the case but why why was that evidence put in they introduced the camera as a whole and it was the instrumentality that it was the item that was used to take the photograph this is the kodak camera that took the pictures of ls and here's the proof of it and it's clear that i would have some indulgence but was that the government offered it to say look at this camera look at the other pictures this is where it came from this is where it sat in this is with why it was produced i mean i don't think that they were saying this was introduced to show interstate commerce juxtapose that with the testimony that was used on the hard drive there was not that kind of testimony with respect to the sand  in memory stick as far as harmless i would go back and point out the same point is that no matter how compelling an evidence may be if it wasn't presented to the jury and the question of course is whether it was if the evidence that was presented to the jury included the fact that the camera or its component had this thing with dying on it made in china then what kind of argument could you have that it wasn't her myth or well first of all i could insist say that that was hearsay were absent some authentic asian i recognize that there are a lot of there's a lot of testimony  lot of cases out there excuse me which speak about brand marking being self authenticating but that was not broached in the trial court and i would also point out as a kid in the yellow light jury question it's an element it should have gone to the jury and i've been a lot of cases where the court has reversed even though the defendant's guilt whose doubt of the record based on a missing element did what what did the jury instruction say did it relies entirely on the on the heard dr being made in thailand or did was it open in that the jury could have been relying on camera  judge sutton has raised the question about the language in twenty two fifty one for the purpose of producing can you start off with your analysis of that issue yes your honor the statute does require that a person induce persuade etc a child for the purpose of producing an image that depicts actually explicit conduct it does not truncate the analysis at the first machinery or the first equipment that's used to produce it and each subsequent production of the image it is not viewed under the statute as subsequent then i would require you to put on evidence that he did this abuse so that this fellow could take the kodak picture and then did it so he could download it and then watch it on the computer i mean there's that's there's no weapons on that and there was a you can most digital cameras you can look at the image right there so i don't know where you get that i get the idea that it's a fair in ence one could argue well if you take it with a digital camera the odds are pretty high you're going to download it somewhere but as i understand it that's not really how the case was argued or the evidence was presented so i don't think there's much evidence other th his doing it for the purpose of the guy taking the kota picture well your honor the picture was found both on the camera as your honour's now and on the hard drive and just to be specific the hard drive was in the living room of the house where the images were taken and it was  it's not the defendant it doesn't need to be your honor no no i'm not saying that matters by itself i'm just making the point it's the other fellow's camera it's the other fellow's hard drive and it's the defendant who's supposed to be abusing someone for the purpose of these pictures and it's clearly true for the kodak thing he has to see that but there's no evidence about what happened next or what was going to happen next once the kodak picture was taken and your honor the hard drive was seized within the week that the pictures were taken so just for a time frame it was not some forth party or some something far down the road it was seized within the week of the images being taken and produced i want to draw the court attention to an analogy that might help with this analysis where if a person abuses a child for the purpose of producing a picture and an old fashioned thirty five millimeter film camera is used this sexual abuse is for the purpose of producing a picture the statute would still criminalize a person who takes a picture on a thirty five millimeter camera on polaroid film let's say which is then later whether by the defendant or by someone else sent off to a film  lab to be processed mailed back to someone that process of producing a picture still counts whether it was the defendant who did it or even if the defendant knew about it it is the process of producing a picture similarly the process of producing a picture using a digital camera that's not not an internet capable smartphone just a regular digital camera is to hook it up to a computer and produce it that way necessarily i don't i mean first of all you can put in evidence that says just what you said that this is the normal way you do it but as i understand it most digital cameras and i mean that's what you do you you snap it and then use see how the picture looked before you decide whether to snap again and then it's it's kates preserved on the camera so i mean god only knows where someone does this in the first instance we don't know why they would be happy enough with the silly camera right but the and that maybe the fact that may be true your honor that the camera alone if the camera pictures never went onto the computer obviously the camera alone was the only thing that produced images and we would only be looking at that but you didn't you didn't produce to put in the evidence that the camera was manufactured or transport not being critical but i think the whole argument was about the hard drive being for the purpose yes your honor and now being here in hindsight i wish that we had focused on the camera but it seemed obvious the government at the time under the statute that any portion of the equipment used in the production of the image whether it was the hard drive the s d card the camera the keyboard the mouse the bed really anything that was produced outside the state then it would count and there was a stipulation as to the hard drive so the government focus on not so let's get to the statutory language you're using twenty five to fifty one right yes your honor any person who coerces any minor to engage in a new sexually explicit conduct for the purpose of producing any visual depiction of such conduct so we we've gotten through there but then you're you're using part two if that visual depiction was produced germs in my right the director and he won so the linkage problem is that for the purpose of producing any visual depiction if that visual depiction was produced using materials so you in order to show the interstate commerce aspect you have focused on the her drive correct but for the purpose of producing any visual depiction you've been focusing on the camera recognized does not require the defendant to be the one who used the equipment and does not require the defendant to know that the equipment was being used and that the courts distinction that that it's drawing here this morning of whether that visual depiction is the first visual depiction or a subsequent visual depiction is not a distinction other courts have made the visual depiction can be in the analogy that i was using the the film itself the printed product a slide or a later image on a computer the visual depiction is really what's being captured in the image rather than the machinery of so i think another way of saying what you're saying is there were two productions here i'm not saying that you're on i know i know that that's agree there were two productions here i would not there were multiple steps in the same production i would say just like sending film off to a lab and putting a picture in a picture i would have said production won is when you snuff the kodak and you can see the image the visual depiction right there in production two is when you download on the hard drive maybe there's some more but i would have said the core of the case is there were two productions and that's because of all of our case law that talks about how easy it is in this area to have multiple productions so i'm totally on board with all of that but that's the word productions it's not about the purpose that's the purpose language that's the problem to me but the purpose your honor does not have to be the purpose of producing this visual depiction on this machine in this thumbnail image on the computer this is the language for producing a visual depiction producing any visual depiction which wrecked generates your point but then you get to the sub sub part to if that visual depiction and i think that visual depiction your honor just means the depiction they were just talking about in the previous clause the visual depiction of this sexual child sexual abuse you were talking about it in the for the purpose of producing any visual depiction is saying hey look he he did it on this kodak camera correct and then then if you go to a bird too if that visual depiction was produced using interstate commerce materials but the problem is the kodak camera there's no evidence was well the court same same analysis could be applied even if the government had relied more on the s d card being made in china that the defendant produced a picture for the purpose of the kodak camera taking a picture and so does the s d card inside count because he didn't know about that or think about that didn't argue that and that was not was the card was admitted into evidence your purpose of the commerce argument was related to the hard drive stuff it was your honor because as the government still argues either production  of the image counts because it was produced evidence of that image and the hope that the defendant abused this into this kid for the purpose of the hard drive production that's that that's something i can't quite figure out where's that evidence going around in circles your honor but the the evidence that the defendant produced did the sexual explicit act for the purpose of producing and edge which was ultimately found on a computer which is consistent with case law and possession time that the computer was she is you would agree if all that happened here was enough you have some camera that you don't print anything that can't be downloaded you can just see it there in the cameras just from michigan made in michigan maybe handmade for god sakes and all you have in the case is the abuse for the visual depiction on that camera in that state you would you would not satisfy the interstate commerce right ok so what i'm just struggling with is you have to mean and this is where the production stuff hurts you a little bit because you can have multiple productions of the same video visual depiction and what's troubling to me is the evidence all shows abuse for one visual depiction but not for the other that's what i that's my struggle i know you're right we're going around in circles agree with you but and the case i just doesn't see it has to productions it's just i understand what the court saying that you know if you take a picture at one point you later do something with it or you make a copy maybe make a black eye copy those are all different steps but i disagree that they're different productions the case law does not say that there are different productions there's one production and then it's reproduced copied viewed all of which are defined as production and the case law and in every circuit defines production very broadly defined defines production as a non technical term something that should be viewed broadly in light of congress strong justification  regulating even what they call purely homegrown intrust state child pornography production that congress has a compelling need to regulate child pornography and can hang its jurisdictional hook on the smallest thing whether it's a subsequent production that the defendant knew or didn't know about if if the image is found on a device made outside the state it counts it's a yes or question in terms of the s d card which is which also supports the conviction although it was not the theory that the government presented just in a desire to simplify and go with the jurisdictional hook that was defeated to this was the jury instructed i mean what was th in what direction was the jury asked to look the jury was given the standard jury instructions for the sixth circuit and they did not the judge did not talk about the hard drive in the instructions so the judge said if the images essentially produced using materials that are shipped or transported in interstate or foreign commerce meaning that they came from somewhere else then it counts but the judge did not talk about the hard drive and the indictment charges materials including but not limited to this hard drive made in thailand so the indictment encompassed other equipment along the lines of drew's instruction did not to focus the jury on the purpose point i mean it did not focus it on the hard drive point it did focus on the what is the purpose of this sexual act was it to prove to produce create a picture but not was it to produce a picture on a hard drive you know that was not part of the instructions i want to go back to the argument that the s d card would only have been real reliable upon by the jury if there had been some sort of limiting instruction that the absence of a limiting instruction was somehow plain error it was not the s d card was admitted for the purpose of showing that it did have the same copies of the same images on it it was put on the projector it was blown up for the jury was passed around the entire jury handled the s d card and it went back with the jury it did you say anything about the fact that the cards made in china no your honor so you're really on this point at least relying on the jury noticing on the correct end of the cards and me the injury which is why i brought it up at rebuttal in case there they were having some issue with the hard drive again at the time of trial and now at the time of the appeal the government has no issue with interstate access being relying solely on the hard drive but in the event that there was an issue the s d card qualifies and i know two seven allows trade inscriptions to come in for all sorts of things firearms medications even company logos and documents have come in in multiple cases in the six circuit and the failure to object to the government's argument in rebuttal would be reviewed for plain error i haven't addressed the pre indictment delay and i'm running out of time but if the court has any issues of it i would like to answer any questions of the sort  requires actual showing of substantial and actual non speculative prejudice which the defendant just thousand done in this case thank your hono the transcript and use the word material with respect to the interstate commerce and what you want to look at primarily is page i d s now in zero seven through nine zero now i am for that particular instruction all i'm going to say in response is my poena talked about an analog camera i'd like to use analogies what if a wallet was admitted and the jury decided to go read through every single document in a person's wallet with that be admissible for the truth of the matter asserted even though it was simply introduced for other reasons i don't think so i would use a simple example let's say it was a marijuana case in the defendant had a state medical marijuana card in his wallet which i think we can all agree isn't worth the paper it's printed on in this court would be allowed to speculate invent the defense i mean that's what we're talking about in the other direction  with this i can't quite figure this out in my head there's no there's no difference to harmless there insufficiency cases involving criminal so i mean in a criminal case what's if you win a sufficiency case double jeopardy right they can't try you again for sure i've got that right so i'm wondering with harmless error how does that work i mean it would because you're not going to have another when you think of homicides are usually thinking why are we going to start all over again we know we know there's this other fact it solves the problem but given double jeopardy rules trying to figure out how harmless their work this is really even if they didn't put it in for the right reason or as you say it would be hearsay if they had crossed the t s and dotted the i's how does it work i know they're not allowed to have a new trial if it's a sufficiency problem it's not a jury instruction air at least so far can you help me with this or is that i think i win and i and i think that's a difficult position for people emotionally to get to and i understand that but if there is harmless error in criminal cases and there is but there isn't when it requires an appellate court to find a fact that wasn't found by the jury that's where i think the harmless error analysis would break down if it would require you to find a fact that jury didn't find it in the jury wasn't required to find that the jury didn't find we don't know what the jury except that they decided your client violated the statute i understand that and obviously any time we have a case where there's a jury verdict there's a certain element of speculation that goes on we have to look at the extrinsic evidence that surrounds it and come to our best conclusion as to what they found we can't pull them it's not admissible and i think it's a good rule that it's not  with respect to that but i think that the evidence shows and i think this argument in the concessions are that if you find that the memory card is unnecessary linkage if it's a hard drive i'm in opportunity he rested quickly and decided to play his cards at that point whether or not that was a brilliant legal move or a fatal legal move i guess remains to be seen but i don't think you can fill in something if you determine that the jury didn't actually reach that if it was you know using you know way too much of it since the government put the memory card in and that you know it had the legend on it made in don't love the way you want to characterize to but essentially yes i am saying that that wasn't found there wasn't a foundation it wasn't put in that way and we're back filling for a gap in the prosecution's case i've got six seconds on the clock but i'm happy to