[00:00:00] Speaker 02: Our next oral argument case is Croker, United States versus Croker, 24-3060. [00:00:14] Speaker 01: Judge Hartz, may it please the court? [00:00:17] Speaker 01: Mr. Croker was convicted at trial of one count of receipt of child pornography and one count of possession of child pornography. [00:00:24] Speaker 01: The court should vacate the receipt conviction and remain for a new trial because the district court's [00:00:30] Speaker 01: Lecivious exhibition instructions stated the law failed to provide the jury with a meaningful, intelligent understanding of the relevant legal principles. [00:00:37] Speaker 01: The court should also reverse the possession conviction because the evidence was insufficient to prove that the substantive content of any image of child pornography crossed state lines. [00:00:47] Speaker 03: Counsel, the picture that's the subject of this is not in the record. [00:00:53] Speaker 03: Oh, it's not? [00:00:54] Speaker 03: No, we couldn't find it anyway. [00:00:56] Speaker 03: And I would like you to submit one for us so we have a complete record. [00:01:03] Speaker 01: So we filed a motion to supplement the record with it, but I'll check because it should be in there. [00:01:13] Speaker 03: Thank you. [00:01:17] Speaker 01: So I'm just going to dive in. [00:01:19] Speaker 03: Could you say that the interstate issue is the big issue here? [00:01:24] Speaker 03: Well, I mean, you know, I don't think that's... One guy was in Nebraska, one guy is in Kansas. [00:01:31] Speaker 03: How did it get from Nebraska to Kansas? [00:01:35] Speaker 01: Okay, so that image is just the receipt count. [00:01:38] Speaker 01: The possession count does not involve that image. [00:01:42] Speaker 01: So the reason why the evidence is insufficient on the possession count is because there was no evidence that any of the images with respect to that count [00:01:53] Speaker 01: the substantive content of the images cross state lines. [00:01:56] Speaker 01: The government proceeded on a different commerce theory in the district court, not the one that was charged in the indictment. [00:02:04] Speaker 01: If that makes sense? [00:02:05] Speaker 03: No. [00:02:07] Speaker 03: I mean, if the position is the same as the receipt [00:02:14] Speaker 03: How do you separate them out? [00:02:16] Speaker 01: Because they're different counts. [00:02:17] Speaker 01: Were they different images? [00:02:19] Speaker 03: Yes, yes, yes, yes. [00:02:21] Speaker 03: They're different images? [00:02:22] Speaker 03: Yes, so count two involves the time. [00:02:23] Speaker 03: See, there's no images in the record that I saw. [00:02:26] Speaker 03: Nobody mentions in the record. [00:02:29] Speaker 03: Well, maybe it'll solve itself if you get us the images. [00:02:36] Speaker 02: But the image of the child, I don't want to describe it. [00:02:42] Speaker 02: That was count one. [00:02:43] Speaker 02: Yes. [00:02:43] Speaker 02: There are different images for count two. [00:02:45] Speaker 02: Exactly. [00:02:46] Speaker 02: And your argument is that, so what if they were acquired through an instrumentality of commerce, they weren't moved themselves in commerce, at least there's no evidence. [00:02:58] Speaker 01: Right. [00:02:58] Speaker 01: That's exactly right. [00:02:59] Speaker 01: I mean, our argument is just a straight application of the Supreme Court's opinion in Staroni, its prodigy, and this court's opinion in Schaeffer and Sturm and everything that's followed. [00:03:10] Speaker 01: Just, that's it, it's very simple. [00:03:14] Speaker 01: So, and I guess to put a pin on the point that you're talking about, if the images are the same, if they, which they aren't, but if they were, then you would have a double jeopardy problem, then you would have to vacate the possession count anyway, because it would be multiplicitous under this court's precedent. [00:03:29] Speaker 01: So, just to make that point. [00:03:32] Speaker 01: But they are different, so you could, so I'm not making that multiplicity argument, I'm just using that to explain why the images have to be different. [00:03:41] Speaker 01: So we obviously think there are a number of problems with this instruction on lascivious exhibition. [00:03:50] Speaker 01: So I can just highlight essentially the four overarching problems. [00:03:59] Speaker 01: One is this idea that we're using the phrase indecent exposure, usually to incite lust, which we don't think is consistent with the ordinary meaning of lascivious. [00:04:09] Speaker 01: The second is the use of the dos factors, which we think are problematic in a non-production case. [00:04:15] Speaker 01: And also because they are sufficiency principles, appellate review sufficiency principles, they should not exist within jury instructions. [00:04:25] Speaker 01: The third point is this idea that the court instructed the jury to look at what a pedophile would think of the image. [00:04:31] Speaker 01: We think that is inconsistent with the Supreme Court's opinion in Williams and the several other circuits don't agree with that. [00:04:38] Speaker 01: And then the fourth point is this idea that they included definitions of virtual or morph pornography, which this case did not involve that. [00:04:46] Speaker 01: The indictment actually didn't include those provisions. [00:04:48] Speaker 01: They shouldn't have been in there anyway. [00:04:50] Speaker 01: And when read literally, those definitions are not helpful in terms of identifying this image as one that is lascivious. [00:05:00] Speaker 01: So that's a ton of problems with this. [00:05:04] Speaker 02: The first three. [00:05:05] Speaker 02: Yeah. [00:05:07] Speaker 02: Aren't they all involved with the DOS factors? [00:05:10] Speaker 01: No, they're not. [00:05:12] Speaker 01: The indecent exposure language is not part of DOS and either is the attraction to pedophiles language. [00:05:21] Speaker 01: I don't know where, I tried to figure out where that came from and there is this 11th circuit pattern instruction that has some of the language maybe but it doesn't appear, I don't understand where the 11th circuit got the language from. [00:05:37] Speaker 01: And I think the pedophile language maybe came from some district courts in Illinois. [00:05:42] Speaker 01: But none of that language appears that I could tell in an appellate decision that says that courts should be giving that language. [00:05:52] Speaker 02: So aside from the DOS factors, I'm taking in the order you mentioned. [00:05:56] Speaker 01: Okay. [00:05:56] Speaker 02: Indecent exposure, that's independent of the DOS. [00:06:01] Speaker 01: It is, yeah. [00:06:02] Speaker 02: And the pedophile language is independent of the DOS. [00:06:05] Speaker 01: Yes, it is. [00:06:06] Speaker 02: Yeah. [00:06:07] Speaker 02: Let me ask about the dos factors. [00:06:08] Speaker 02: Yeah. [00:06:11] Speaker 02: We've said that the fact finder can, maybe should, use the dos factors to determine whether the statute's violated. [00:06:22] Speaker 02: Maybe we were wrong. [00:06:23] Speaker 02: Maybe we should have paid more attention to the six factor. [00:06:26] Speaker 01: We're bound by that, don't you think? [00:06:28] Speaker 01: So I don't think you're bound by that in this case because you've only said that in production cases. [00:06:35] Speaker 02: Yeah. [00:06:36] Speaker 01: Why should it be different? [00:06:37] Speaker 01: So it should be different because the production involves the producer's intent. [00:06:46] Speaker 01: So this court in Wells described the six dots factor as an additional element requiring additional proof to prove a Section 2251 offense. [00:06:58] Speaker 01: And I think that flows from the statutory language that requires [00:07:04] Speaker 01: you know, that the individual produced the image for the purpose of producing an image of sexually explicit conduct. [00:07:12] Speaker 01: So essentially, and then if you read Wells, what this court does with the dos factors is simply go through them and apply them to determine the producer's intent. [00:07:23] Speaker 01: That's all Wells does. [00:07:25] Speaker 01: Doing that in this case makes no sense because Croker did not produce the image. [00:07:33] Speaker 01: So [00:07:35] Speaker 01: So then if we're convicting Croker of knowingly receiving child pornography because it would be based on what some other guy intended when he made the image. [00:07:47] Speaker 01: And that, we don't think that makes really any sense. [00:07:51] Speaker 01: I don't know where that comes from or why you would do that. [00:07:55] Speaker 01: So I do think you can, although I understand lascivious exhibition exists within an umbrella definition, [00:08:03] Speaker 01: I do think it's important to understand that the DOS factors are not definitional. [00:08:08] Speaker 01: And I think there's some confusion about that because they exist within how the court is trying to define, but that's really not what they are. [00:08:16] Speaker 01: The definitional aspect of the instruction was the indecent exposure usually to incite lust. [00:08:23] Speaker 01: What comes after is this instruction that, okay, here are six things. [00:08:27] Speaker 01: You can consider them. [00:08:29] Speaker 01: You don't have to consider them. [00:08:30] Speaker 01: You can give whatever weight you want to them. [00:08:32] Speaker 01: That's not a definition. [00:08:34] Speaker 01: No word in a dictionary is defined that way. [00:08:39] Speaker 01: So I think that's why you can easily take those factors and say, we don't have to deal with them here. [00:08:45] Speaker 01: This is not a production case. [00:08:47] Speaker 01: We don't care about the intent of the producer. [00:08:49] Speaker 01: And I think really you have to do that because of the Supreme Court's opinion in Williams. [00:08:54] Speaker 01: So Williams makes very clear that that case involved the pandering statute subsection, which comes straight after this one. [00:09:02] Speaker 01: Three, subsection three, we're dealing with two. [00:09:05] Speaker 01: And the court essentially explains that if an individual panders non-child pornography, he can't be convicted simply because the individual who receives the image thinks, wow, I think that's child pornography. [00:09:21] Speaker 01: It's not how it works. [00:09:24] Speaker 01: That is the identical reasoning we're using here on both the pedophile language and the intent [00:09:31] Speaker 01: producer's intent language, in that you can't just say just because somebody thinks something is pornography, you're guilty of possessing pornography. [00:09:41] Speaker 01: It actually has to be pornography. [00:09:44] Speaker 01: And I think when you, especially in this case, I mean, maybe there are some cases where this wouldn't matter, but you know, this case was all about how these two guys, these chats, [00:09:58] Speaker 01: The whole thing was how these two guys had pedophilic tendencies. [00:10:02] Speaker 01: And so if you're going to instruct the jury, I mean, this could have been a picture of a kid eating a ham sandwich and a jury could have convicted on these instructions just the way in which they read. [00:10:14] Speaker 01: So hopefully that sort of gets the feel for our argument and how [00:10:24] Speaker 01: You shouldn't be, you have to gauge the image on the content of the image and not what somebody thinks about what the image is. [00:10:35] Speaker 01: And that's the main problem, we think, with the instruction. [00:10:39] Speaker 01: You know, I will note this is something that is also addressed in the Supreme Court cases. [00:10:48] Speaker 01: This is important in this context because you do have a First Amendment baseline. [00:10:53] Speaker 01: So if something is not child pornography, it is actually protective speech. [00:11:00] Speaker 01: And I think that is sort of why this type of instruction is especially problematic because of that baseline. [00:11:09] Speaker 01: If we are instructing juries that they can convict based on, you know, without deciding that the images infect pornography, then we are allowing juries to convict based on protective speech. [00:11:23] Speaker 01: And there's a lot of discussion that if you read Williams, I think Justice Souter's dissent, and Williams is pretty good on that. [00:11:31] Speaker 02: The dissent. [00:11:32] Speaker 01: Well, it's a dissent, but it's not a dissent in that way. [00:11:36] Speaker 01: I mean, that part of it's consistent with the majority opinion. [00:11:42] Speaker 01: I think the only other thing that I would note is the DC Circuit's opinion in Hilly, which we cite, which rejected the dos factors, it actually has, I probably should have cited it more, [00:11:53] Speaker 01: There's a lot of good language in there that is consistent with a lot of what we said and a lot of what the other circuits have said. [00:12:01] Speaker 01: And with that, I will, if there are no further questions, I can reserve, right? [00:12:06] Speaker 02: Well, have you addressed count two, really? [00:12:09] Speaker 01: I mean, I can take 20 seconds, but it's very simple. [00:12:13] Speaker 01: Well, if you don't want to raise it now, I'm not going to let you rebut on that. [00:12:15] Speaker 01: Well, I already did. [00:12:16] Speaker 01: I feel like I already did. [00:12:18] Speaker 01: Okay, that's fine. [00:12:18] Speaker 01: My point is just it's consistent with Staroni. [00:12:22] Speaker 01: The government's argument is not, is just indirect contravention of Staroni, its prodigy, and Sturm Schaeffer and its, it just is. [00:12:33] Speaker 01: I don't know how else to articulate that other than it's inconsistent with the precedent. [00:12:38] Speaker 01: Okay. [00:12:38] Speaker 01: I'll reserve the remainder of time. [00:12:39] Speaker 01: Thank you. [00:12:48] Speaker 04: Good morning, Your Honors. [00:12:51] Speaker 04: James Brown for the United States. [00:12:53] Speaker 04: May it please the court. [00:12:55] Speaker 04: Your honors, to start off with the housekeeping matter about the exhibits and where they are. [00:13:00] Speaker 04: Mr. Hansmeier did file a motion to supplement the record with the exhibits and we filed a response and then I think we sent the exhibits here in conventional format. [00:13:12] Speaker 04: So as far as we know, the exhibits are somewhere with this court. [00:13:16] Speaker 04: Somewhere. [00:13:17] Speaker 04: When I get back, I'll try to figure out what actually happened. [00:13:23] Speaker 04: And if they didn't get sent for some reason, I'll definitely send them. [00:13:26] Speaker 04: And I understand that the court wants all the exhibits, exhibits 1 through 17. [00:13:31] Speaker 04: So I'll definitely try to make that happen. [00:13:34] Speaker 04: I'd like to start with the first issue first. [00:13:41] Speaker 04: And that is the jury instruction. [00:13:42] Speaker 04: And I will address count two. [00:13:45] Speaker 04: As far as the jury instruction goes, [00:13:46] Speaker 04: We think the instruction was a correct statement of law. [00:13:49] Speaker 04: Now, Mr. Koper has four problems with the instructions, and I'll go down those problems in the order that he addressed them. [00:13:58] Speaker 04: The first problem is that the instruction defined lascivious as indecent, used the word indecent exposure. [00:14:05] Speaker 04: That was a correct statement of the law. [00:14:07] Speaker 04: The statute, of course, as the court knows, doesn't define the word lascivious. [00:14:11] Speaker 04: So when the statute doesn't define a word, you go to the dictionary. [00:14:16] Speaker 04: If you go to Black's Law Dictionary and look up the word lascivious, it will use the word indecent to define the word lascivious. [00:14:24] Speaker 04: So because the court used a word that Black's Law says is the same as lascivious and defines the word lascivious, that was not an incorrect statement of the governing law. [00:14:36] Speaker 04: That was a correct statement. [00:14:37] Speaker 02: You're saying Black's Law Dictionary uses the word indecent. [00:14:40] Speaker 04: That's correct. [00:14:42] Speaker 04: And that's Black's Law, Fifth Edition, page 794. [00:14:46] Speaker 04: Black's Law Dictionary, 5th edition, page 794. [00:14:51] Speaker 02: The fact that you're citing the 5th, does that mean that it doesn't appear in later editions? [00:14:57] Speaker 02: We didn't dig that deep. [00:14:59] Speaker 02: I can look and see. [00:15:00] Speaker 02: The 5th edition is pretty old. [00:15:02] Speaker 02: I think there are 12 or something now. [00:15:05] Speaker 04: It may be, and it would surprise me if it weren't defined the same, but we probably need to get the most recent Black's Law Dictionary. [00:15:13] Speaker 04: The second problem that Mr. Coker has with the language is the language of usually to incite lust that the district court used. [00:15:23] Speaker 04: That also comes from Black's Law Dictionary. [00:15:25] Speaker 04: That's a correct statement of the law. [00:15:27] Speaker 04: If you look at Black's Law Dictionary, the same site that I gave before, it defines lascivious as, quote, tending to incite lust, which in our view is the same as usually to incite lust. [00:15:41] Speaker 04: So that's also a correct statement of the law. [00:15:43] Speaker 04: That is sourced from Black's Law Dictionary, or at least Black's Law provides some support for what the District Court did. [00:15:50] Speaker 04: In any event, it's not an incorrect statement of the law, because that's how Black's Law defines lascivious. [00:15:58] Speaker 04: His second issue comes with the dos factors. [00:16:02] Speaker 04: We've argued that the dos factors represent neutral reference points for a jury to consider when determining whether an image is lascivious. [00:16:11] Speaker 04: The reason, of course, and this court knows that they're used is because the statute does not define the term lascivious. [00:16:17] Speaker 02: And the danger- Why should the recipients or producers, why is that person's intent relevant? [00:16:25] Speaker 02: We're talking about the sixth factor. [00:16:27] Speaker 02: That's really what they're challenging is the sixth of the DOS factors. [00:16:32] Speaker 04: We take their point. [00:16:33] Speaker 04: And before answering, I'd like to point out that by our count, seven circuits have applied the DOS factors in possession or receipt cases. [00:16:41] Speaker 04: Seven circuits have. [00:16:43] Speaker 04: Several of the cases that we cite in footnote two of our brief have applied those in possession cases. [00:16:49] Speaker 04: If you look at the 11th circuit's pattern instruction for receiving or possessing child pornography, they use the DOS factors in their pattern instruction. [00:16:59] Speaker 04: I'll give the court a 28-J letter listing all the cases. [00:17:02] Speaker 04: But seven circuits applied the DOS factors in possession cases. [00:17:06] Speaker 04: So it's not a crazy thing for the district court to have done that here. [00:17:09] Speaker 04: It was a correct statement of law. [00:17:11] Speaker 04: Now we get to Your Honor's question. [00:17:12] Speaker 04: Well, what about, what relevance does the producer's intent have in a possession case? [00:17:18] Speaker 04: And Your Honor, here it can be relevant depending on the context. [00:17:22] Speaker 04: And here it is relevant because, well, let me do a wider lens view. [00:17:28] Speaker 04: The intent has the ability, if you look at the intent, you can use that intent to basically exclude all types of images from being child lascivious exhibitions or child pornography. [00:17:41] Speaker 04: If you look at the intent, let's say we have a picture of a child and about to have a birthday party. [00:17:48] Speaker 04: The DOS factors, under the intent factor, you would say there's no way there's any intent that that would be a lascivious exhibition. [00:17:55] Speaker 04: It's a kid's picture to birthday party. [00:17:57] Speaker 04: That intent can exclude a photo that is clinical, that is risque, that is completely innocuous. [00:18:05] Speaker 04: So the intent is relative. [00:18:07] Speaker 02: But that same picture might [00:18:10] Speaker 02: excite a pederast or pedophile. [00:18:15] Speaker 02: So if the pederast or pedophile is the one possessing it, the same picture that you just said wouldn't satisfy the definition, in that circumstance, it would be criminal, is what you're saying. [00:18:29] Speaker 04: No, we're not saying that. [00:18:30] Speaker 04: We want to be crystal clear. [00:18:33] Speaker 04: It takes two things for that to be criminal. [00:18:35] Speaker 04: Number one, as the court just said, the pederast has to have the [00:18:39] Speaker 04: has to think it's lascivious, right, has to think it's actually child pornography. [00:18:43] Speaker 04: That comes from Williams. [00:18:44] Speaker 04: The second part is the image actually has to meet the statutory definition of lascivious. [00:18:48] Speaker 04: There's an objective thing. [00:18:50] Speaker 04: So what Williams was saying in that case, there's an objective consideration. [00:18:54] Speaker 04: So if a peterist thinks that something is exciting, or for lack of a better word, thinks that something is really exciting, that doesn't automatically make it child pornography. [00:19:05] Speaker 02: You suggested the sixth factor was [00:19:08] Speaker 02: included just to limit so that even if all the first five factors are satisfied, if the intent was not to arouse sexual... It can serve a very limiting purpose in that respect and prevent exactly the problem that the court described. [00:19:25] Speaker 04: Is that how it's been used? [00:19:26] Speaker 04: Well, theoretically it could be used. [00:19:29] Speaker 04: I can't cite a case off the top of my head where it's been used like that, but that shows why it's relevant in a possession case. [00:19:37] Speaker 04: get too animated sometimes. [00:19:39] Speaker 04: So now let's get to this case, okay? [00:19:43] Speaker 04: So it was super relevant here because the defendant got the picture from another pedophile and they were talking about the picture and the context in which they were talking about it revealed the producer's intent. [00:20:01] Speaker 04: He intended to take a picture of his son's private parts [00:20:05] Speaker 04: And he was talking to another pedophile about them. [00:20:08] Speaker 04: The pedophile said, yeah, I'd like to see. [00:20:10] Speaker 04: And they sent the picture. [00:20:11] Speaker 04: So that shows the intent behind it of the person who took the picture. [00:20:17] Speaker 04: If he said, when I took the picture, it was just an innocent picture taken by my wife. [00:20:24] Speaker 04: And she thought it was a cute picture and a cute pose. [00:20:27] Speaker 04: And we have it in a scrapbook somewhere for our family photo album. [00:20:31] Speaker 04: then that would be a different thing. [00:20:33] Speaker 04: Then he would be able to argue that there's no intent and use the dos factor to argue that. [00:20:37] Speaker 04: But here, it's probative. [00:20:38] Speaker 04: It's probative because we have the full context of the picture and how it was taken and why it was taken. [00:20:43] Speaker 02: So there's a center requirement here. [00:20:47] Speaker 02: There has to be an intent. [00:20:52] Speaker 04: There has to. [00:20:52] Speaker 04: OK, so to convict on a child pornography charge, Williams page 301. [00:20:58] Speaker 02: For possession. [00:20:58] Speaker 02: For possession. [00:20:59] Speaker 04: OK, possession charge. [00:21:01] Speaker 04: William's case at page 301 says, the defendant must believe the picture contains certain material. [00:21:08] Speaker 04: In other words, he must believe that it's child pornography or it's lascivious, and, quote, that the material, in fact, and not merely in his estimation, must meet the statutory definition. [00:21:19] Speaker 04: So there is a c-inter part on the part of the defendant. [00:21:23] Speaker 04: Can you say that again? [00:21:24] Speaker 04: What language did you just quote? [00:21:28] Speaker 04: the defendant must believe that the picture contains certain material, referring to child pornography. [00:21:35] Speaker 04: And that material, in fact, and not merely in his estimation, must meet the statutory definition. [00:21:40] Speaker 04: Then it goes on, where the material at issue is a harmless picture of a child in a bathtub, and the defendant, knowing that material, erroneous to believe that it constitutes lascivious exhibition of the generals, the statute has no application. [00:21:51] Speaker 04: So the defendant has to think it's child pornography, that's the intent the defendant has to have, but it actually has to [00:21:57] Speaker 04: be child pornography, and whether it actually is child pornography is in part evaluated by the intent of the person who produced the image. [00:22:07] Speaker 04: That's what the six-thous factor is in the possession case. [00:22:10] Speaker 03: What's troublesome is if you don't have that evidence of, well, no matter what the evidence is on the producer, if you can take a picture and I think it's really, really sexy, but nobody else would, [00:22:25] Speaker 03: Does that turn that into a pornographic picture? [00:22:28] Speaker 03: No, no, and that's what would turn me into a possessor of a pornographic, even if I think, wow, look at that. [00:22:34] Speaker 04: Absolutely not. [00:22:35] Speaker 04: And that's what the Williams case stands for. [00:22:37] Speaker 04: The passage that I just read stands for that very proposition. [00:22:40] Speaker 04: It does not turn your honor into a person who possesses prohibited materials. [00:22:46] Speaker 04: Correct. [00:22:47] Speaker 04: The material possessed actually has to meet the statutory definition of a lascivious exhibition. [00:22:52] Speaker 02: I have to study that. [00:22:54] Speaker 02: sentence you quoted, because my impression is it was saying, even if the person is aroused, that's irrelevant if it's not pornography. [00:23:05] Speaker 04: It goes to the intent to possess requirement, but it doesn't go to whether it's Elizabeth's exhibition. [00:23:14] Speaker 04: That's what it does. [00:23:15] Speaker 04: There's two parts to it. [00:23:17] Speaker 04: Somebody has to have, this has to be knowing possession, right? [00:23:20] Speaker 04: And that it also has the thing you possess actually has to be. [00:23:23] Speaker 02: You have to know when you possess you have to know that it's child pornography. [00:23:28] Speaker 02: And I thought what you just quoted is saying you have to know it's child pornography. [00:23:33] Speaker 02: But the fact that you think it's child pornography isn't enough when it's not child. [00:23:37] Speaker 02: It's not enough. [00:23:38] Speaker 04: The fact that you think it's child pornography is not enough. [00:23:40] Speaker 04: That's what the Williams case says. [00:23:44] Speaker 04: That's that's what it says. [00:23:46] Speaker 04: But that goes to point out why the six dos factor is probative in this case. [00:23:51] Speaker 04: So even though it may not be probative in another possession case, it was probative here. [00:23:55] Speaker 04: And for that reason, it was not an incorrect statement of the law. [00:23:59] Speaker 04: Pretty subtle. [00:23:59] Speaker 04: Let me think about that. [00:24:01] Speaker 02: I'm sorry? [00:24:01] Speaker 02: I was just saying, I have to think about this. [00:24:06] Speaker 02: This is subtle. [00:24:08] Speaker 04: I think if the court goes back to page 301 of Williams and reads that, that's the only [00:24:12] Speaker 04: only reading that the court can come up with that's actually reasonable. [00:24:16] Speaker 04: But I'd like to move on to one other point as my time is going, and that is if Mr. Coker objects to the instruction that the material can be attracted to pedophiles. [00:24:28] Speaker 04: That sentence is a correct statement of the law. [00:24:31] Speaker 04: That sentence is an extrapolation of a sentence from the Ferber case where the Ferber court said that to be [00:24:42] Speaker 04: child pornography, and I'm quoting from page 764, a trier of fact need not find that the material appears to the prurient interest of the average person. [00:24:52] Speaker 03: So that's basically the same as... Like this opens up the entire universe to what the individual might think it is. [00:25:05] Speaker 04: Your Honor, that's... We're just going by what the Supreme Court says, a trier of fact [00:25:11] Speaker 04: need not find that the material appears to the premium interest of the average person, which means it can appeal to a person who has non-average interests such as a pedophile. [00:25:19] Speaker 03: That's what it means. [00:25:20] Speaker 03: But that makes something pornographic that is not pornographic. [00:25:23] Speaker 03: No. [00:25:23] Speaker 03: Because you think it is does not make it so. [00:25:26] Speaker 04: We agree with what the court just said, and as we've explained, just because somebody thinks something is pornographic doesn't make it pornographic, because that material has to comply with the statutory definition of a lascivious exhibition. [00:25:38] Speaker 02: So that's, it sounds like what you're saying is just because 98% of people wouldn't be aroused by this child pornography doesn't mean it's not child pornography. [00:25:49] Speaker 02: We're talking about people who like child pornography. [00:25:54] Speaker 04: To be child pornography. [00:25:56] Speaker 04: Okay. [00:25:58] Speaker 04: All right. [00:25:59] Speaker 04: Well, we appreciate it. [00:26:01] Speaker 04: And yes, we'll take the help. [00:26:04] Speaker 04: That being said, [00:26:05] Speaker 04: Okay, here's where the court was going. [00:26:08] Speaker 04: To be obscenity, the triarch fact must find that the material appears to the parent interest of the average person. [00:26:14] Speaker 04: That's what the court said in Miller. [00:26:16] Speaker 04: In fervor, the court made a distinction to be child pornography, which is different from obscenity. [00:26:21] Speaker 04: A triarch fact need not find that material speaks to the parent interest of the average person. [00:26:26] Speaker 04: So that means that the material can appeal to the prurient interest of the non-average person, including a pedophile. [00:26:32] Speaker 04: So what the court statement was, was a correct extrapolation from that statement in fervor. [00:26:36] Speaker 02: You've got one minute. [00:26:37] Speaker 02: Do you want to address count two? [00:26:38] Speaker 02: Because I don't see where you have the interstate transportation. [00:26:43] Speaker 04: Well, I could talk for 10 minutes about count two. [00:26:46] Speaker 04: I think we're going to have to end up standing on our briefs. [00:26:49] Speaker 04: Interstate transportation is transportation by the internet and by the internet and by the computer. [00:26:56] Speaker 02: But we don't have any evidence that it went interstate on the computer, do we? [00:27:00] Speaker 04: OK. [00:27:01] Speaker 04: So let me go at it this way. [00:27:02] Speaker 04: The fact that these pictures had commercial websites indicates that they were widely available on a worldwide basis to users around the world. [00:27:13] Speaker 04: Let's say this court, just for an example, let's say this court [00:27:17] Speaker 04: Let's say this court downloads an image from CNN today. [00:27:21] Speaker 04: Court goes back in chambers and downloads an image from CNN. [00:27:24] Speaker 04: That image that the court downloaded doesn't have to travel outside of Colorado to meet the interstate nexus. [00:27:32] Speaker 04: It is already in interstate commerce. [00:27:34] Speaker 04: It is necessarily traveled [00:27:36] Speaker 04: beyond Colorado before the court downloaded that image. [00:27:39] Speaker 02: I think to be covered by the Commerce Clause, you're probably right. [00:27:43] Speaker 02: But not by the language of this specific statute. [00:27:46] Speaker 02: The image has to have traveled. [00:27:48] Speaker 02: You have to prove that this image that the one person sent to the other had traveled in interstate commerce. [00:27:53] Speaker 04: No. [00:27:54] Speaker 04: We would respectfully disagree. [00:27:56] Speaker 04: And we would point the court to that. [00:27:57] Speaker 04: I see my time is up. [00:27:58] Speaker 04: We would point to the court to the Stern case that we cited on page 24. [00:28:03] Speaker 04: The visual depiction does not refer to a particular item [00:28:06] Speaker 04: It refers to whether the image has been mailed or transported at any point in time. [00:28:10] Speaker 04: That's page 24 of our brief. [00:28:12] Speaker 04: And I thank the Court for asking that question because it's an important point to clarify. [00:28:15] Speaker 02: Thank you, Counselor. [00:28:19] Speaker 04: Please affirm. [00:28:25] Speaker 01: All right. [00:28:30] Speaker 01: Let me try to make four or five points. [00:28:35] Speaker 01: On that point, Sturm is fine. [00:28:39] Speaker 01: Sturm is about the substantive content of the image. [00:28:43] Speaker 01: There's no evidence that the substantive content of any of these images crossed state lines. [00:28:49] Speaker 01: So we talk about Sturm at length. [00:28:51] Speaker 01: Our argument is not inconsistent with Sturm. [00:28:54] Speaker 01: So I'm going to move to the receipt count. [00:28:56] Speaker 01: And I want to make at least three points. [00:28:58] Speaker 01: The first point on Ferber. [00:29:00] Speaker 01: The government is wrong about Ferber. [00:29:02] Speaker 01: That language from Ferber is language that rejects the obscenity standard. [00:29:09] Speaker 01: So the language, the purient interest, what that language means, the Supreme Court was explaining, we are saying child pornography can be something less than obscene. [00:29:20] Speaker 01: And you don't have to take my word for it. [00:29:22] Speaker 01: So in Ashcroft v. [00:29:24] Speaker 01: free speech coalition, the court said, quote, Ferber's judgment about child pornography was based on how it was made, not on what it communicated. [00:29:34] Speaker 01: The government, quote, cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts. [00:29:43] Speaker 01: Protected speech does not become unprotected [00:29:46] Speaker 01: merely because it resembles the latter. [00:29:49] Speaker 01: And then Williams, I did not understand the government's argument about page 301 of Williams. [00:29:55] Speaker 01: That paragraph supports our point that it has to be pornography. [00:30:03] Speaker 01: It can't just be a picture that someone thinks is pornography. [00:30:08] Speaker 01: And that's the problem with the instructions in this case, that it allowed a jury to convict [00:30:15] Speaker 01: because these two guys thought it was pornographic. [00:30:18] Speaker 01: That's the problem. [00:30:19] Speaker 01: If I can try to get these other two points in real fast. [00:30:22] Speaker 01: Well, I just talked about Williams. [00:30:24] Speaker 01: I will say, if you're interested in how Congress could write a statute that encompasses intent, like the viewer's intent or the producer's intent, read the pandering statute, the one that follows. [00:30:37] Speaker 01: So it's 2252 AA3B. [00:30:40] Speaker 01: That has an intent [00:30:44] Speaker 01: Here, I got 10 seconds. [00:30:45] Speaker 01: Oh, I left it at that. [00:30:46] Speaker 01: But just read that language. [00:30:47] Speaker 01: There is language in there that talks, that does that, that includes that. [00:30:51] Speaker 01: That's not in A2. [00:30:53] Speaker 01: Oh, and I'm out of time. [00:30:58] Speaker 02: Yeah. [00:30:59] Speaker 01: Can I make? [00:31:01] Speaker 02: You had 20 seconds for the last point. [00:31:03] Speaker 01: Yes, thank you. [00:31:03] Speaker 01: So the last point is on the indecent exposure language. [00:31:07] Speaker 01: So we don't define [00:31:09] Speaker 01: I hope we don't define terms just because we can find a word in the dictionary. [00:31:15] Speaker 01: So the only dictionary I could find that defines lascivious as indecent was Black's Law Dictionary. [00:31:22] Speaker 01: If you look at any other dictionary, it's not in there. [00:31:25] Speaker 01: And if you look at the instructions that are given in these cases in the appellate decisions, it's not in there. [00:31:31] Speaker 01: And we talk about Carlin's filthy words monologue. [00:31:35] Speaker 01: If you read that case, the Pacifica case, [00:31:38] Speaker 01: the Supreme Court talks about how we shouldn't be using indecent, and it's different than being with cities. [00:31:43] Speaker 02: Let me just ask one question, then you're done. [00:31:45] Speaker 02: Which edition of Blacks did you look at? [00:31:49] Speaker 01: So I think the relevant, as I understand statutory interpretation, the relevant... Just tell me which... Well, I'm not disputing that the word indecent does exist in Blacks. [00:32:00] Speaker 01: I'm not disputing that. [00:32:00] Speaker 01: In the fifth edition? [00:32:01] Speaker 02: Yes. [00:32:02] Speaker 02: Well, okay. [00:32:05] Speaker 01: We should be looking at the definition of the dictionary that existed when this was enacted in 1978. [00:32:10] Speaker 01: And I don't know if that one has indice. [00:32:14] Speaker 01: But my point is I don't think it matters. [00:32:16] Speaker 01: OK, thanks. [00:32:19] Speaker 02: Thank you, counsel. [00:32:21] Speaker 02: Case is submitted.