[00:00:00] Speaker 01: Case number 19-3027, United States of America versus Charles Healy, a balance. [00:00:06] Speaker 01: Mr. Seligman, for the balance, Mr. Goodhand, for the appellee. [00:00:13] Speaker 01: Good morning, counsel. [00:00:14] Speaker 01: This is Judge Rogers. [00:00:16] Speaker 01: Judge Henderson has asked me to preside. [00:00:19] Speaker 01: She is available and is listening to the oral argument and will ask questions as she wishes. [00:00:30] Speaker 01: So, counsel for appellant, would you proceed? [00:00:36] Speaker 00: Good morning, Your Honor. [00:00:37] Speaker 00: This is Richard Seligman on behalf of Charles. [00:00:40] Speaker 00: Pelley, the appellant submits there was insufficient evidence to establish production of child pornography, attempted production or possession under the sexual exploitation. [00:00:52] Speaker 00: Act of Children Act. [00:00:55] Speaker 00: There were two key videos at issue and on their face, the content does not show Mr. Heller used JAA, a 15 year old girl to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct. [00:01:13] Speaker 01: So what's your strongest case for the proposition that the girl [00:01:22] Speaker 01: must be engaged in sexual conduct beyond either being nude or being seen emphasizing sexual parts of her body. [00:01:47] Speaker 00: The statute is the clear terms of the statute. [00:01:52] Speaker 00: call for it to be sexually explicit conduct and the definition of sexually explicit conduct. [00:02:01] Speaker 00: In this case, the argument and general agreement was that the definition, which was the fifth definition under the statute, [00:02:10] Speaker 00: The other definitions were explicit sex acts. [00:02:15] Speaker 00: And the fifth one was the civius exhibition of genitals or public or public area of any person. [00:02:24] Speaker 01: And that was- What I'm trying to get you to focus on and help me with is- Okay, I'm sorry. [00:02:30] Speaker 01: I understand your plain text argument, but I also understand that other circuits [00:02:40] Speaker 01: have not taken it as far as you would like us to take it. [00:02:45] Speaker 01: And I wanna know what is your strongest case supporting your position that if, for example, the girl is simply seen as I've described, that that necessarily [00:03:10] Speaker 01: means the government has failed to bear its burden of proof. [00:03:19] Speaker 00: Well, our argument, yes, is that the photograph itself or the video must show sexually explicit conduct. [00:03:31] Speaker 01: I understand that, and I'm asking you for your strongest case. [00:03:34] Speaker 00: You mean the case decided in another circuit? [00:03:39] Speaker 01: Yes. [00:03:42] Speaker 00: Well, the best case we have is the case decided in the Fifth Circuit, which was the Steen case. [00:03:51] Speaker 00: And in that case, they looked at similar circumstances, although the facts were of a woman laying on a tanning [00:04:08] Speaker 00: And that was, there was nothing overtly sexual about that. [00:04:15] Speaker 01: And they found that- And that's your strongest case? [00:04:19] Speaker 00: Well, it's the strongest decided opinion. [00:04:21] Speaker 01: Also, I think that- So you think that case, I just need to be clear here that you think that taking a portrait of a girl lying naked [00:04:38] Speaker 01: is not enough, that it's not consistent with the plain text of the statute. [00:04:44] Speaker 01: And what I'm suggesting by my question is looking at what the other circuits have done, I don't see them to have adopted that approach. [00:05:01] Speaker 00: Well, I think the circuits have all said that you do look primarily at the [00:05:07] Speaker 00: photograph itself to assess it. [00:05:10] Speaker 00: But the argument to the government is that you can look beyond that. [00:05:14] Speaker 00: And specifically, the instruction in this case, which we had problems with, was that you can not only look beyond the four corners of the video, you could look at other things such as the intent [00:05:30] Speaker 00: or of the viewer to gain their own sexual satisfaction, whether that's the maker of the video or the viewer. [00:05:40] Speaker 00: And that intent we submit is not an element of the statute. [00:05:46] Speaker 00: The intent is the intent to produce the sexually explicit video. [00:05:53] Speaker 00: and that the argument then comes in by the government you can look at surrounding circumstances but we submit that there are no surrounding circumstances that support the production the intent to produce they try to bring in the [00:06:15] Speaker 00: unrelated behavior of the defendant in abusing these children at various times over a five or six year period. [00:06:26] Speaker 00: But those aren't in any way directly connected to the videotaping in this case, which was surreptitious. [00:06:36] Speaker 00: so that our position is you have to look and and the defendant's position and will preserve throughout was you have to look at the four square or the face of the video itself make that determination and the use of these dos factors and specifically the sixth dos factor which tends to bring the jury away from or the court in this instance away from [00:07:05] Speaker 00: viewing the specific content of the video is the problem. [00:07:12] Speaker 00: The intent of the statute was to deal with broad-based abuse of children in the pornography industry, and that's why there was a federal statute that was enacted. [00:07:30] Speaker 00: There really wasn't [00:07:31] Speaker 00: tended to deal with individual cases like this. [00:07:36] Speaker 00: And so the thrust was bond production and distribution. [00:07:41] Speaker 00: And there's none of that. [00:07:43] Speaker 00: There wasn't produced, there's no evidence. [00:07:44] Speaker 02: Council, can I interrupt you? [00:07:46] Speaker 02: I wanna just ask a couple of questions regarding standard of review. [00:07:54] Speaker 02: You say that there was an objection to the DOS factors [00:08:01] Speaker 02: But twice the defense counsel, both when it was the defense counsel from the federal public defender and when it was Ms. [00:08:11] Speaker 02: Slate, on two separate occasions, defense counsel submitted proposed jury instructions. [00:08:19] Speaker 02: Those are ECF 71 and ECF 85. [00:08:22] Speaker 02: And both of them included the six dose factors. [00:08:30] Speaker 02: So [00:08:31] Speaker 02: What is the basis for saying that the defense below objected to the dose factors? [00:08:40] Speaker 00: Well, the transcripts show that they were objected to, that the judge did not agree with the objections. [00:08:50] Speaker 00: And this was prior to and during the development of the jury instruction. [00:08:56] Speaker 00: So the fact that they were in there [00:09:00] Speaker 00: Let me start with the fact that the judge decided this in her motion and a ruling on the motion dismissed and stuck with her position to use the DOS factors in that. [00:09:11] Speaker 00: There was also argument that the five DOS factors were not really problematic in this case because those focused on actions. [00:09:24] Speaker 00: and focused on the behavior itself. [00:09:28] Speaker 02: Let me ask a specific question. [00:09:32] Speaker 02: In the supplemental appendix on March 28th, defense counsel says we previously objected to the DOS factors. [00:09:44] Speaker 02: The problem that I have with that is that defense counsel, that same lawyer submitted proposed jury instructions that included the DOS factors [00:09:54] Speaker 02: in them on February 28th. [00:09:57] Speaker 02: What is the prior objection? [00:10:01] Speaker 02: Where is the prior objection that council is talking about from that March 28th transcript? [00:10:19] Speaker 00: she objected in that transcript and they're asking where prior to that before March 28? [00:10:26] Speaker 02: So on supplemental appendix page three, Ms. [00:10:32] Speaker 02: Slate says, the defense of course objected to the instructions that the court is giving the DOS instructions. [00:10:43] Speaker 02: And I'm asking you, where is that objection? [00:10:46] Speaker 02: Because a month earlier on February 28th, the defense submitted proposed instructions that had the DOST instructions in them. [00:10:57] Speaker 00: Well, my recollection of the record is that the initial instructions were submitted by prior counsel. [00:11:07] Speaker 00: And they were both, I think, joint submissions with the government. [00:11:13] Speaker 00: And, uh, I think at each time it was submitted, the court had already ruled essentially that she was going to, uh, give the dos factor. [00:11:26] Speaker 00: So I think, so there was no, it was, it was really nothing to object to it at that point, but it was made, but I'll point out counsel that ECF 85 was, was submitted by Ms. [00:11:40] Speaker 02: Slate on February 28th. [00:11:43] Speaker 02: and the government submitted proposed instructions for each offense, and the defense submitted their own instructions for that for each offense. [00:11:54] Speaker 02: But let's move on from that. [00:11:57] Speaker 02: There's case law that says that we are supposed to judge sufficiency [00:12:13] Speaker 02: on how the evidence viewed in the light most favorable to the government would be viewed by a properly instructed jury. [00:12:26] Speaker 02: Is that the standard that you believe that we should follow in this case? [00:12:36] Speaker 02: In other words, even if [00:12:38] Speaker 02: the jury was improperly instructed if we agree, even if we were assuming we were to agree with that, we wouldn't use those improper instructions to do the sufficiency analysis. [00:12:51] Speaker 02: We would use whatever we believe the proper instructions would be. [00:12:57] Speaker 00: Yes, I think that that's correct. [00:13:00] Speaker 00: And [00:13:01] Speaker 00: It's essentially our position if I did not articulate it as succinctly as your honor has. [00:13:13] Speaker 00: All right. [00:13:14] Speaker 02: I think I interrupted your presentation and I hope I didn't interrupt your answering Judge Rogers' question. [00:13:22] Speaker 00: Well, I think what we want to get to at this point is talk about the evidence or lack thereof. [00:13:28] Speaker 00: And there was really no evidence of production, which is the statutory offense. [00:13:36] Speaker 00: The argument to the government was you could look to the prior focus of the defendant on his sexual interest in these children. [00:13:48] Speaker 00: And from that, [00:13:51] Speaker 00: and fur that he intended to that he would do to do this videotape for his own sexual [00:14:03] Speaker 00: gratification and that our submission is that's not relevant to the analysis in this case and that and I think there is support from some of the language and Steen and other cases that were been cited in our briefs for that point. [00:14:23] Speaker 00: And there was no evidence of her engaging in explicit conduct. [00:14:27] Speaker 00: There was no evidence the defendant attempted to modify the videos over a lengthy period of time that it was on its computer. [00:14:34] Speaker 00: There was no evidence the defendant attempted to zoom in on the genitals. [00:14:41] Speaker 00: So looking just at the four corners of this, there was no evidence she tried to have her engage in [00:14:50] Speaker 00: explicit sexual conduct for the purpose of the video, and he did not distribute or attempt to distribute the child pornography or videos. [00:15:02] Speaker 00: So our position is looking at those four corners. [00:15:06] Speaker 00: The evidence does not support either the judge's findings in the motion dismissed or in her [00:15:18] Speaker 00: There's one important addition that I'd like to make to that if I have time, and that's to say that the judge added some factors which I think further undermine the instruction and were likely to confuse the jury. [00:15:37] Speaker 00: Although the judge acknowledged that the nudity on its own is not enough for a visual depiction to qualify as a lascivious exhibition, [00:15:48] Speaker 00: the court added, but for the image to constitute a lascivious exhibition, the minor is not required to exhibit lust, want-ness, or sexual coyness, and the image need not depict overt sexual activity or behavior. [00:16:03] Speaker 00: We submit that that last part does not follow the statute that specifically err in our view, although, and it was objected to at the time. [00:16:17] Speaker 00: by counsel. [00:16:22] Speaker 00: I don't know what my time is on this because this the video is not showing my monitor is not showing it looks like I show you have almost six minutes left. [00:16:33] Speaker 02: Okay, six minutes over Judge Rogers. [00:16:36] Speaker 01: Oh, that's the red. [00:16:39] Speaker 01: Thank you. [00:16:39] Speaker 01: All right. [00:16:41] Speaker 01: So council, why don't we hear from the government and we'll give you some time on rebuttal. [00:16:47] Speaker 00: Thank you. [00:16:50] Speaker 03: Good morning, Your Honors. [00:16:51] Speaker 03: May it please the court, David Goodham for the United States. [00:16:55] Speaker 03: Addressing the last topic that my opponent was positing, the erroneous instruction relating to the necessity for an overt sexual act by the victim, the minor here, the court properly, in essence, instructed the jury that [00:17:16] Speaker 03: It's not necessary that the minor engage in a lascivious act, but it's permissible to look to see if the producer of the video engaged in a lascivious act. [00:17:27] Speaker 03: And that's consistent with the numerous authorities that we've cited at pages 29 and 30 of our brief. [00:17:35] Speaker 02: But the problem is, counsel, how is that consistent with the statute? [00:17:40] Speaker 02: The statute says prohibits [00:17:45] Speaker 02: using the language from 2251A, using a minor to, quote, engage in any sexually explicit conduct. [00:17:58] Speaker 02: So the focus on the statute is, what is the conduct of the minor? [00:18:06] Speaker 02: The conduct of the minor doesn't change [00:18:11] Speaker 02: based on what's in the mind of the person filming or the mind of the person viewing the conduct. [00:18:20] Speaker 02: The conduct is whatever the conduct is. [00:18:23] Speaker 02: So how can any instruction that focuses on what other people perceive or what other people intend have anything to do with what the statute is saying and it's playing text? [00:18:41] Speaker 03: I think getting more granular into this, the plain text, that the Congress has identified and defined sexually explicit conduct in six categories. [00:18:53] Speaker 03: And all the parties agreed that we were in the sixth category here, which is the lascivious exhibition of genitalia or pubic area. [00:19:02] Speaker 03: And so what the courts have done have looked at the phrase lascivious exhibition, and they have gleaned from that phrasing, lascivious exhibition, which, lascivious, the plain language of lascivious is [00:19:21] Speaker 03: tends to arouse sexual desire. [00:19:26] Speaker 03: And then the plain language of exhibit is displayed in order to attract notice. [00:19:33] Speaker 03: So what the courts have done in looking at the plain language of lascivious exhibition, excuse me, in particular, I would point the court to court Todd, they've said it's a depiction which brings forth to view the genitals or pubic area of a minor in order to excite lustfulness. [00:19:50] Speaker 03: So I think what the courts have appropriately concluded is the plain language of lascivious exhibition of genitalia can encompass a scenario like this. [00:20:03] Speaker 03: Whereas the other five categories, it is true, refer to sexually explicit conduct, you know, bestiality, masturbation, sexual intercourse. [00:20:13] Speaker 03: I think Congress presciently anticipated the possibility that we have here, which is, [00:20:20] Speaker 03: a producer who surreptitiously videotapes a minor in a vulnerable state for the purpose of inciting sexual desire of a viewer. [00:20:34] Speaker 03: And so it's the plain language of a lascivious exhibition that I would suggest gets you to a consideration both of the mens rea of the producer, number one, and number two, most critically, [00:20:49] Speaker 03: no requirement that the child have engaged in explicit sexual act herself. [00:20:57] Speaker 03: And I would suggest that it can also commensurate with the general purpose of the sexual exploitation statute. [00:21:07] Speaker 03: Congress passed this statute to ensure that minors would not become sex objects. [00:21:13] Speaker 03: It's emotionally damaging, it's psychologically damaging. [00:21:17] Speaker 02: And I get all of that counsel, but I think that what your answer elides is that you're using the B definition or the second definition of lascivious from the various dictionaries. [00:21:36] Speaker 02: The A definition or the first definition is of or marked by lust from Webster's new [00:21:47] Speaker 02: Collegiate Dictionary, I'm sorry, New Riverside University Dictionary from 1984, or other contemporaneous dictionaries from around the time, 1984, was of or characterized by lust, lewd, lustful. [00:22:15] Speaker 02: So it's, it's [00:22:16] Speaker 02: The A definition is all or all focused on one. [00:22:23] Speaker 02: How would you characterize the actions of the person in the B definition that you want us to adopt the exciting sexual desires definition? [00:22:43] Speaker 02: Um, [00:22:44] Speaker 02: is a definition that is focused on what would be the impact of a viewer. [00:22:52] Speaker 02: And I guess the problem that I have with that is I don't understand how that really works. [00:23:04] Speaker 02: So let's suppose this prosecution wasn't of Mr. Hilley who made the video [00:23:12] Speaker 02: but he had uploaded it to the internet and someone had downloaded it and that person had been prosecuted and convicted of possessing the video as child pornography under I'm getting 2252. [00:23:39] Speaker 02: So how does this [00:23:44] Speaker 02: How does your definition work in that circumstance? [00:23:53] Speaker 03: Well, I think it still works in that circumstance because if we cannot ascertain, for example, let's take an example. [00:24:05] Speaker 03: If Mr. Hilly was suspecting his daughter, for example, of stealing his medicine and put a surreptitious camera in the vent of the ceiling to figure out whether she was stealing his medicine. [00:24:22] Speaker 03: That would be a much more difficult case, I think, for the government because we don't have the sort of sexual exploitation, the treatment of a victim, the minor, as a sexual object. [00:24:36] Speaker 03: And we also would not have the other indicia from Dost of, for example, sexual coyness or wantonness. [00:24:44] Speaker 03: So that would be a tougher case. [00:24:46] Speaker 03: But I don't think when you combine lascivious exhibition, which is draw attention to genitalia, [00:24:52] Speaker 03: with the sexual exploitation purpose of Congress that you excise a review, a permissible review of intent of the producer in that context. [00:25:05] Speaker 02: I would add that- But I'm asking you about someone charged with possessing. [00:25:10] Speaker 02: Okay. [00:25:11] Speaker 02: Who just possesses the video. [00:25:14] Speaker 03: Right, I'm sorry. [00:25:16] Speaker 02: And you're prosecuting them and we've got a sufficiency case. [00:25:20] Speaker 02: What's your argument for why it's sufficient for them? [00:25:25] Speaker 02: And recall that the statutory language about engaging in sexually explicit conduct is the same in 2252 as it is in 2251 for all intents and purposes. [00:25:44] Speaker 03: Well, I think we would have to show that the videotape that had been passed on and was possessed by the downstream user, if you will, we would still have to show that the lascivious exhibition of genitalia was created [00:26:06] Speaker 03: for the purpose of a sexual response in the viewer. [00:26:11] Speaker 03: And so, you know, we would have to show that, I think, via other indicia relating to the producer. [00:26:18] Speaker 03: And if that happened, if the person in possession had a lascivious exhibition of genitalia on an image, that would qualify as possession of child pornography, I believe. [00:26:32] Speaker 02: Here's, I guess, what I'm trying to- [00:26:35] Speaker 01: Go ahead. [00:26:36] Speaker 02: Here's what I'm trying to get at. [00:26:38] Speaker 02: Let's suppose you have a young baby recently born and who's taking a bath. [00:26:51] Speaker 02: The parents are bathing the child and they take a video of this that they send to the grandparents so that they can see, you know, baby's first bath. [00:27:05] Speaker 02: in the video in passing shows the baby's genitalia. [00:27:15] Speaker 02: Are you saying that that video would meet the definition under 2251A? [00:27:22] Speaker 02: No. [00:27:23] Speaker 03: And why not? [00:27:28] Speaker 03: It would be hard for the government to ascertain either from the four corners of the video. [00:27:39] Speaker 03: revelation of genitalia, number one. [00:27:42] Speaker 03: Number two, you have, in the four corners of the video, in the hexaedron you posited, innocuous, innocent activity that is just taking photos of a child. [00:27:54] Speaker 03: Absent some indicia of mens rea on the part of the producer, the camera person, that this would be used for the purpose of exciting sexual arousal. [00:28:04] Speaker 03: If that's absent, then I don't think we have child pornography. [00:28:08] Speaker 02: Now, let's suppose at the same time that this was happening, there was a hidden camera in the bathroom and the defendant zoomed in on the child's genitalia basically throughout the video that the defendant made. [00:28:30] Speaker 02: Is that a violation of 2251A? [00:28:34] Speaker 03: Some courts have looked at the, you know, that's one of the dos factors some courts have looked at the zooming capability of camera coupled with focus. [00:28:43] Speaker 03: And again, this is a multi factor analysis that is, you know, lascivious. [00:28:51] Speaker 03: You can plug in different factors and come up with a different sort of constellation, if you will, that would lead to the ultimate conclusion that this was an image that is an image of an exhibition of genitalia or pubic area for the purpose of arousing sexual desire. [00:29:11] Speaker 02: So here's, I guess, what I'm trying to get at to cut to the chase, is that the statute says that it's a crime to use a minor to engage in sexually explicit conduct, and here it would be lascivious, that the conduct would be lascivious exhibition of the anus, genitals, et cetera, et cetera. [00:29:37] Speaker 02: So if [00:29:40] Speaker 02: If the conduct is the same that the child is engaging in, whether it's the parents filming the child or whether it's the person with the hidden camera filming the child. [00:29:58] Speaker 02: So how can it be in one instance, the conduct that's the exact same [00:30:05] Speaker 02: is sexually explicit conduct or a lascivious exhibition, but the exact same conduct of the parents and the child, just because it's videotaped differently, becomes a lascivious exhibition. [00:30:25] Speaker 02: I don't understand that. [00:30:26] Speaker 02: The conduct hasn't changed. [00:30:29] Speaker 03: Again, I think this emanates from the importation of lascivious exhibition of genitalia into the definition of sexually explicit conduct. [00:30:44] Speaker 03: So at that point, what all the courts of appeals have concluded is by expressly identifying that as a permissible sexually explicit conduct, that is, lascivious exhibition, that does permit the jury and or a court to look outside the four corners of the image itself [00:31:06] Speaker 03: And asked whether the producer was engaging in lascivious conduct and that's again a feature of we don't want to demand that children [00:31:17] Speaker 03: display wantonness. [00:31:18] Speaker 03: We don't want to demand that the children display sexual coiness. [00:31:22] Speaker 03: We don't want to demand that children engage in... Let me make sure I understand what you just said. [00:31:29] Speaker 02: You believe that the statute can be construed that when it says a person who uses a minor to engage in any lascivious exhibition, that that can be construed to mean that [00:31:47] Speaker 03: the that the person doing the filming um if they're engaging in a lascivious exhibition that that's covered by the statute um not that they're engaging in a lascivious exhibition um that they're engaging in lascivious conduct that is that they are taking the images um and um um [00:32:11] Speaker 03: they are using them for the purposes of, or intending to use them for the purpose of arousing sexual desire. [00:32:20] Speaker 03: And what I think is that Congress understood when they had this catch-all category, if you will, number six in the definitions, they understood that children might well be sexually exploited when they are surreptitiously photographed. [00:32:35] Speaker 03: So even though we have here the innocent conduct of a minor, [00:32:40] Speaker 03: post shower, grooming, but we have a strong indicia that the producer had created that image for his own sexual desire in this case, but perhaps other sexual desires of others in certain cases, because he himself was engaged in contemporary sexual abuse of that minor. [00:33:01] Speaker 02: Why isn't the best reading of the statute, according to just its plain text, that what Congress is doing here by saying it's unlawful to use a minor to engage in sexually explicit conduct, [00:33:27] Speaker 02: And then they have a list of, like, sex acts. [00:33:33] Speaker 02: And then they have kind of the catch-all, the last one, lascivious exhibition, that what they're saying is that, Ken, would you characterize the child's conduct, whatever it is that the child is doing, as a lascivious exhibition? [00:33:57] Speaker 02: and perhaps the impact of the conduct on the viewer would be relevant, but I don't see how the intent of the filmer, so to speak, would be relevant to how you characterize the child's conduct. [00:34:24] Speaker 03: Well, a couple responses. [00:34:26] Speaker 03: First, I do think that the courts are in agreement that at least one definition of lascivious does permit you to look at whether it was done for the purpose of arousing sexual desire, number one. [00:34:37] Speaker 03: But number two, most critically, I think if you were to excise from coverage the conduct that we have here, [00:34:46] Speaker 03: you would be opening up a category of child pornography in this day and age with the technology that we have for surreptitious recording. [00:34:55] Speaker 03: You would be opening up the category of child pornography permissible to be to be put on the dark web of a vast panoply of actions. [00:35:05] Speaker 03: I mean there's no there's a reason there are eight courts of appeals [00:35:09] Speaker 03: have looked at the sexual exploitation statute, eight courts of appeals have looked at it, and in identical circumstances to what we have here, which is surreptitious recording of a minor in a vulnerable nude state, those eight courts of appeals have all concluded that that falls into the category of lascivious exhibition. [00:35:31] Speaker 02: Not all of them. [00:35:32] Speaker 02: I mean, the Steen case, they found that the evidence was insufficient. [00:35:37] Speaker 03: Sure. [00:35:38] Speaker 03: Esteem, I would suggest esteem is pretty easily distinguished because there was a stranger who poked his camera over the top of an adjoining wall to take a photograph of a woman on a tanning bed. [00:35:54] Speaker 03: Emphasis on stranger, I would suggest. [00:35:56] Speaker 03: And without any sort of the contemporaneous indicia. [00:36:00] Speaker 02: So whether the woman [00:36:04] Speaker 02: is engaging in a lascivious exhibition would vary depending on whether a stranger is taking the picture as opposed to her stepfather. [00:36:20] Speaker 02: No, I'm sorry. [00:36:21] Speaker 02: How does that have anything to do with whether it's a lascivious exhibition? [00:36:26] Speaker 03: It emanates from, again, our definition of lascivious is that was the production of the image done for the purpose of arousing sexual desire? [00:36:37] Speaker 03: My only point by emphasizing stranger there is that it's difficult to understand whether here we have the contemporaneous evidence of [00:36:46] Speaker 03: simultaneous sexual abuse. [00:36:49] Speaker 03: So it's easier for a jury to take that evidence and conclude we have sufficient evidence of lascivious actions on the part of the producer. [00:37:00] Speaker 03: And I think that's what Holmes gets at from the 11th Circuit, you know, this notion that it's the actions of the producer that can be lascivious and that lead to a lascivious exhibition of genitalia. [00:37:14] Speaker 02: But there are several courts of appeals that have criticized the dose, even though they've said, well, the dose factors are relevant. [00:37:24] Speaker 02: They've said things like, well, sometimes they're relevant. [00:37:27] Speaker 02: Sometimes they aren't. [00:37:29] Speaker 02: They might be relevant in production cases, but they're not necessarily relevant in possession cases. [00:37:35] Speaker 02: We'll figure that out when we can figure that out. [00:37:39] Speaker 02: Several courts have said the intent of the specific defendant [00:37:44] Speaker 03: isn't relevant you're telling us that it is right actually yes i am and and and so you would agree that there are several courts of appeals that have that have disagreed with that contention right no no and i think the district court got it right when she said every circuit court of appeals it is true your honor [00:38:04] Speaker 03: that some courts of appeals, and particularly the Seventh Circuit, has indicated a reluctance to use DOS routinely. [00:38:12] Speaker 03: I may be wrong, but I don't think any court, because even the Seventh Circuit, I think the language from Price is, of course, [00:38:22] Speaker 03: intent is a part of the analysis of lascivious exhibition. [00:38:27] Speaker 03: And that gets at, the price goes on to offer the examples of, of course intent is part of that analysis because otherwise you might have a doctor who has filmed genitalia for the purpose of diagnosis, or you might have a mother [00:38:46] Speaker 03: who filmed her children and had a focus on genitalia. [00:38:50] Speaker 03: So every court, and again, I may be wrong, but every court that I know of, some have, it is true, the Seventh Circuit is not enamored with the dos factors, but every court that I know of has considered as part of the plain language definition of lascivious exhibition, the intent of the producer to arouse sexual desire. [00:39:15] Speaker 01: All right, but that response, and this is what I was trying to get focused with my questions to counsel for appellant, is we've had peeping Tom statutes on the books for years. [00:39:31] Speaker 01: We've also had these pornography statutes, but I haven't seen the court say, and maybe I'm wrong, [00:39:45] Speaker 01: that mere peeping Tom, and that gets your stranger in there, somehow undercuts the argument that counsel for appellant is making that the statute in speaking of [00:40:12] Speaker 01: such minor engage in any sexually explicit conduct for the purpose of producing any visual depiction means that mere peeping Tom evidence is sufficient. [00:40:36] Speaker 01: And I agree that the statute is not [00:40:42] Speaker 01: organized in a way that makes it easy to focus on precisely what Congress was intending to do. [00:40:52] Speaker 01: But if it wants to go beyond peeping Tom, I thought that's what it was getting at by talking about sexually explicit conduct, focusing on the subject being viewed [00:41:11] Speaker 01: or being taped. [00:41:15] Speaker 01: And I don't see the argument here. [00:41:19] Speaker 01: And I didn't see it in the other courts. [00:41:21] Speaker 01: And all the courts indicate some discomfort about this whole area. [00:41:26] Speaker 01: But the question is, what did Congress intend? [00:41:34] Speaker 01: Maybe we don't need to reach that for some procedural reasons, but I did want to understand what the government's view of this statute is. [00:41:43] Speaker 01: And your responses to Judge Wilkins make me concerned that you are taking the government's burden to be a peeping Tom burden as a result of [00:42:03] Speaker 01: videotaping either directly or surreptitiously? [00:42:09] Speaker 01: And where am I mistaken in understanding the government's position? [00:42:15] Speaker 03: I think the voyeurism statute that your honor is referring to compared to the child pornography statutes that we're talking about, they're addressing different considerations. [00:42:28] Speaker 03: In the voyeurism statutes, there is no requirement of sexually explicit images, number one. [00:42:36] Speaker 03: But number two, they're getting at reasonable expectations of privacy. [00:42:40] Speaker 03: So I don't disagree that there will be instances where there is an overlap [00:42:44] Speaker 03: but what Congress was very concerned about, and it's difficult to look at the legislative history and the Supreme Court decisions in Ferber, for example, and not understand that Congress, and frankly, look at the title of the statute, sexual exploitation, Congress was very concerned about the treatment of children as sex objects, and the psychological- Counsel, let me say the earlier cases focused on [00:43:15] Speaker 01: more direct treatment, not simply a videotape of a minor doing normal things, taking a bath, going to the bathroom, personal hygiene, that type of thing. [00:43:33] Speaker 03: Yeah, I think that's a fair, and I think the DOST standard, in fact, arose in the late 80s. [00:43:40] Speaker 03: And I think the First Circuit has suggested that DOST, in fact, is over-generous to the defendant because DOST looks at, it really does ask the question [00:43:53] Speaker 03: Does the minor for self exhibit wantonness or sexual coyness, but I think as technology and our understanding of the possibilities of child pornography have unfolded. [00:44:06] Speaker 03: The courts have said Congress must have wanted to include in this category exactly what we have here, which is surreptitious recording done for the purposes of sexual arousal as referenced by the producers' mens rea. [00:44:22] Speaker 03: And so yes, I don't disagree that the earlier cases and when the DOS factors, for example, were first enunciated, it was easier to say, oh, look at the way the photographer has posed this person. [00:44:34] Speaker 03: Look at the way the photographer has used unnatural clothing. [00:44:39] Speaker 03: But as things have unfolded, I think the courts have quite properly recognized there's a category of cases. [00:44:46] Speaker 03: And again, these are the decisions we cited at pages 29 and 30 of our brief, eight different cases. [00:44:53] Speaker 03: There's a category of cases where you have a producer who is taking advantage of a vulnerable child victim's [00:45:02] Speaker 03: nudity and using it for the purposes of arousing his or other viewers' sexual desire. [00:45:12] Speaker 03: And so I don't disagree that there has been sort of an evolution, if you will, [00:45:18] Speaker 03: But again, eight courts of appeals have have expressed confidence and comfortableness with this notion of the exactly the conduct we're talking about here and circling back around to my core point. [00:45:31] Speaker 03: That's because we don't want to demand that children [00:45:34] Speaker 03: who, of course, are children, display some sort of sexual acquaintance, some sort of wantonness, some sort of overt sexual activity. [00:45:43] Speaker 03: They can become sex objects and be exploited in this category of surreptitious filming cases as much as... But, Council, there are some people who could take any photograph of [00:46:02] Speaker 02: or video of a child and be aroused by it and objectify the child and view the child as a sex object. [00:46:18] Speaker 02: So if we start going down that road and considering that as like a relevant consideration, then [00:46:30] Speaker 02: than any picture of a child's genitalia is essentially child pornography. [00:46:42] Speaker 03: Well, Your Honor, I totally agree with that concern. [00:46:44] Speaker 03: And that's why in one of the footnotes in our brief, we've identified that there is an ongoing tweaking, if you will, of the DOS factors such that, in particular, I would direct the Court's attention to the recent decision from the Second Circuit for [00:47:01] Speaker 03: which talks about a jury, a properly instructed jury in this context, should be told that the intent of the producer should not be the sole determining factor in assessing lascivious, it must. [00:47:16] Speaker 03: in fact, be considered in the context of the other five factors to ask the question of when we have a focus, for example, on genitalia, does that focus get informed by intent evidence relating to the producer of the video? [00:47:34] Speaker 03: So I don't disagree. [00:47:35] Speaker 03: And if you look at Spore, you will see language in there where they talk about there is a danger associated with [00:47:44] Speaker 03: focusing too much on intent. [00:47:47] Speaker 03: And so what they're counseling, the spore case, second circuit is counseling, use intent to inform the four corners analysis that is represented in the five other factors. [00:47:58] Speaker 02: Here's what I'm trying to, I appreciate that answer. [00:48:01] Speaker 02: Here's what I'm trying to get at. [00:48:04] Speaker 02: So in my prior hypo about the baby taking a bath, and it's filmed by the parents and it's sent to the grandparents. [00:48:14] Speaker 02: You agree that that's not a lascivious exhibition of the child's genitalia, right? [00:48:26] Speaker 03: Yeah. [00:48:28] Speaker 02: So let's suppose that video was intercepted from the email and someone took the same video and they edited it to zoom in on [00:48:43] Speaker 02: the baby's genitalia and like cut all the other parts of the video out that weren't doing that. [00:48:51] Speaker 02: So they just kind of had, and then they distributed that. [00:49:01] Speaker 02: And then somebody is in possession of that. [00:49:07] Speaker 02: Is that person who possesses that edited video in possession of child pornography? [00:49:13] Speaker 03: I think that's much closer to lascivious exhibition, absolutely, because if you look at the four corners of the video, if you have, as you posited, this notion of a zoom focus on genitalia, to the, to the, to the excision of, for example, the human, the human nature of the baby, and or the infant. [00:49:34] Speaker 03: then you're getting much closer to the notion that the zooming, the editing, all of that activity was done with the intent to arouse sexual desire. [00:49:46] Speaker 03: And perhaps it was used that way. [00:49:48] Speaker 02: So I think- So just so that we're clear, the same conduct by the child and the parents can be [00:50:03] Speaker 02: sexually explicit conduct in the second context, but it's not sexually explicit conduct in the second context. [00:50:14] Speaker 02: Because I'm sorry, the original video, neither the parents nor the child are engaging in sexually explicit conduct. [00:50:30] Speaker 02: But [00:50:31] Speaker 02: But in the edited video, now the child is engaged in sexually explicit conduct or the person who's filming [00:50:43] Speaker 02: Editing is the one who's engaged in sexually explicit conduct. [00:50:51] Speaker 02: Who's engaging in the sexually explicit conduct in your edited video? [00:50:56] Speaker 03: It's the producer who has created a lascivious exhibition of genitalia. [00:51:03] Speaker 02: But that's not what the statute says. [00:51:06] Speaker 02: The statute says that [00:51:11] Speaker 02: the minor has to engage in a lascivious exhibition. [00:51:17] Speaker 03: And what the courts have said is you can [00:51:22] Speaker 03: You, of course, need an exhibition of genitalia or pubic area. [00:51:28] Speaker 03: So we start off with that as a base. [00:51:32] Speaker 03: But you can ask the question of lasciviousness. [00:51:35] Speaker 03: You just don't have to necessarily look at only the conduct of the child. [00:51:40] Speaker 03: You can look at the conduct of the producer. [00:51:42] Speaker 03: That's how I read the statute, Your Honor. [00:51:44] Speaker 03: And I would suggest that's consistent, but with the plain meaning of lascivious and Congress intent with [00:51:50] Speaker 03: passing sexual exploitation statute. [00:51:53] Speaker 01: All right, let me be sure. [00:51:56] Speaker 01: Judge Henderson, would you like to pose any questions? [00:52:00] Speaker 01: No, thank you. [00:52:05] Speaker 01: All right. [00:52:05] Speaker 01: Anything that's necessary, Judge Wilkins, further before? [00:52:10] Speaker 02: One question on standard of review for sufficiency. [00:52:17] Speaker 02: Does the government agree [00:52:19] Speaker 02: that we review sufficiency on what a properly instructed jury could find based on the evidence and like most favorable to the government. [00:52:35] Speaker 02: And we have to determine what a properly instructed jury is. [00:52:39] Speaker 02: And that may or may not be the same thing as how the jury was instructed in this case or [00:52:49] Speaker 02: what challenges to those instructions are preserved? [00:52:57] Speaker 03: Well, I'm actually not familiar necessarily of the cases, and I apologize. [00:53:03] Speaker 03: But of course, this court's review, this court [00:53:07] Speaker 03: applies the law. [00:53:08] Speaker 03: It's de novo review. [00:53:11] Speaker 03: So I don't know if you're, when you're in the context of sufficiency of the evidence, if this court articulates the law, I think then you can take out of the equation the jurors that were misinstructed. [00:53:23] Speaker 03: So again, I apologize. [00:53:25] Speaker 03: I'm not familiar with this area of the law. [00:53:26] Speaker 03: I've never encountered a case where you had a badly instructed jury on the one hand, but perhaps sufficient evidence on the other. [00:53:33] Speaker 03: I apologize. [00:53:34] Speaker 03: But I'm not sure I agree with the notion that you have to ask the question, would this same jury have come to this conclusion if they had been properly instructed? [00:53:42] Speaker 03: I think this court could do that job once it concluded, once it decided what the law was based on the fact that- Counsel, you're familiar with harmless error. [00:53:53] Speaker 01: Of course. [00:53:53] Speaker 01: There's prudence. [00:53:54] Speaker 01: All right. [00:53:54] Speaker 01: Well, a lot of those cases deal with that. [00:53:57] Speaker 01: So I appreciate the fact that this is a complicated case and lots to absorb. [00:54:04] Speaker 01: But having been in the US attorney's office, you are familiar with the notion that even though the jury was misinstructed, it was a harmless error. [00:54:18] Speaker 01: Normally, the cases revolve around giving the strength of the government's evidence. [00:54:23] Speaker 01: So when we look at it, I thought Judge Wilkins asked an intriguing question. [00:54:33] Speaker 01: Do we ignore that harmless era jurisprudence and say, hypothetically, that the jury was erroneously instructed, end of case, [00:54:49] Speaker 01: and not go further and say, oh, and that in the appellate court's view, that error could have affected the outcome of the case. [00:55:03] Speaker 01: Or do we just ignore it and say, had the jury been properly instructed, it still would have found guilt? [00:55:11] Speaker 01: And I thought initially those were basically two ways of asking the same question. [00:55:16] Speaker 01: And based on what you have been discussing today with Judge Wilkins, I've wondered if I was correct about that. [00:55:24] Speaker 03: Well, I apologize. [00:55:25] Speaker 03: Maybe I misunderstood Judge Wilkins' question. [00:55:27] Speaker 03: I thought he was asking in the context of sufficiency of the evidence. [00:55:30] Speaker 03: Of course, if you're asking the question, was there harmless error based on an erroneous jury instruction? [00:55:36] Speaker 03: I mean, we know from Nader, for example, even if you're missing an instruction, this court is permitted to do an analysis of whether or not there was, for example, overwhelming and uncontested evidence that would have met that challenge. [00:55:50] Speaker 01: And that's what I thought. [00:55:51] Speaker 01: And maybe I was mistaken why we were spending all this time on trying to understand this statute and what it requires so that we as an appellate court looking at this. [00:56:06] Speaker 01: And let's suppose it's de novo here, either because counsel didn't preserve the error [00:56:16] Speaker 01: uh, the objection in the district court or for some other reason. [00:56:22] Speaker 02: I think, I think Judge Rogers, I may have, I probably, I'm in fact, I'm sure I did not ask my question in the most artful manner. [00:56:33] Speaker 02: The, so maybe I can clear this, clear this up. [00:56:39] Speaker 02: If the evidence was insufficient, then we [00:56:46] Speaker 02: toss the verdict aside, and there is no second trial because of double jeopardy in the due process clause. [00:56:57] Speaker 02: So that's a different analysis than whether there was an error in the jury instructions and whether that error was preserved or not, and whether it's harmless error or plain error, however we review that. [00:57:14] Speaker 02: What some courts have said from my research is that when you do your sufficiency analysis, you say, what would a properly instructed jury have been instructed? [00:57:30] Speaker 02: And then taking the evidence in light most favorable to the government, et cetera, could the jury reasonably have found beyond the reasonable doubt all of the elements [00:57:43] Speaker 02: based on those proper instructions. [00:57:47] Speaker 02: And so you don't base that on how the jury was actually instructed, but what the proper instructions would have been. [00:57:58] Speaker 02: And so I'm just trying to get the government's position as to whether they agree that that's how we're supposed to do the sufficiency analysis. [00:58:12] Speaker 03: It certainly, again, with the caveat that I'm sort of having to look at this case law, it certainly makes sense to the extent that if you're asking to assess whether or not there is enough evidence to support guilt, this court of appeals is presumed to know and understand and correctly articulate the law. [00:58:33] Speaker 03: And they would apply, you would apply that law when you're assessing that question. [00:58:39] Speaker 01: All right. [00:58:40] Speaker 01: Thank you, council, very much. [00:58:42] Speaker 01: Why don't we give appellants council a couple of minutes? [00:58:50] Speaker 00: Thank you. [00:58:53] Speaker 00: Your honor, what I'd like to respond to is this whole discussion about what if somebody modifies the photograph in the process. [00:59:05] Speaker 00: And of course, that's part of the assessment under the DAS [00:59:09] Speaker 00: or any other assessment that's been used by the courts. [00:59:14] Speaker 00: But the statute has been modified to include simulated conduct in a separate section, I think under definitions. [00:59:24] Speaker 00: So the situation that was postulated by Judge Wilkins, I think would be handled under that. [00:59:32] Speaker 00: If somebody used the child [00:59:37] Speaker 00: in the form of taking an innocent photograph and then modifying it so that it was sexually explicit conduct or lascivious, which I would say is sort of is a lesser level. [00:59:54] Speaker 00: It's not a specific sex act, but it's behavior of the child being exhibited in the photo, which [01:00:06] Speaker 00: is sexual in nature. [01:00:08] Speaker 00: And whether it's the production part of it is an important aspect in terms of holding the defendant who does that intentionally accountable. [01:00:20] Speaker 00: But it's still the original statute and the statute we're talking about in this case that was charged, the Portion of the Statute, doesn't involve simulation. [01:00:34] Speaker 00: It wasn't done. [01:00:36] Speaker 00: There are no facts to support that. [01:00:38] Speaker 00: So really, we have to look at what was there on the four corners of the photograph and the judge's instructions. [01:00:47] Speaker 01: All right, so Council, I'm looking at your brief, your opening brief on page 48. [01:00:55] Speaker 01: And maybe that's where I got confused as to what your argument was. [01:01:03] Speaker 00: Mm-hmm. [01:01:03] Speaker 00: Well, what? [01:01:06] Speaker 01: In your conclusion, you submit there was insufficient evidence, counts one to seven. [01:01:17] Speaker 01: And those counts should be vacated and dismissed or alternatively vacated and remanded for a new trial because the jury instructions did not accurately state the law. [01:01:32] Speaker 00: That's our position. [01:01:34] Speaker 00: I'm not changing that position. [01:01:37] Speaker 00: I'm not changing that position. [01:01:38] Speaker 00: I was just trying to respond to the lengthy discussion that was going on in terms of the intention. [01:01:45] Speaker 00: The assertion was made by the government that Congress in enacting and adding the lascivious exhibition was getting away really from a requirement of there being some sort of act by the child. [01:02:03] Speaker 00: And what I'm saying is I don't believe that that's so, that it still had an act. [01:02:09] Speaker 00: It was just a lesser type of act than the intercourse or the other listed actions. [01:02:20] Speaker 00: But to the extent, the other part of it was dealt with by the simulation. [01:02:25] Speaker 00: That's all I was trying to articulate just now. [01:02:28] Speaker 00: And I would submit with that. [01:02:33] Speaker 01: Thank you very much, counsel. [01:02:35] Speaker 01: All right, the court will take the case under advisement.