[00:00:00] Speaker 02: Okay. [00:00:02] Speaker 02: All right, you may proceed. [00:00:06] Speaker 03: Unless the court has a different preference, I wanted to focus on issue one in the opening brief, which is sufficiency as evidence to support the child pornography production count. [00:00:17] Speaker 02: And... Counsel, did you raise that count in your Rule 29 motion? [00:00:23] Speaker 03: There were several Rule 29 motions, and I believe that count was covered, yes. [00:00:31] Speaker 03: I think the dispute in the briefing on appeal has been whether this specific theory had been covered by all 29 motions that were filed in the district court. [00:00:43] Speaker 03: And the motions were raised as to all counts on all theories. [00:00:48] Speaker 03: The supplemental brief that was submitted at the end on the post-verdict supplemental brief, it focused on another aspect of the argument, but the brief, I believe, specifically said that it was in addition to what has already been filed. [00:01:02] Speaker 03: So I think the standard review here should be substantial evidence, not plain error. [00:01:06] Speaker 03: I'm not sure it makes a huge difference in a sufficiency evidence analysis anyway, but I believe the standard review should be substantial evidence. [00:01:18] Speaker 03: And before I get into what I think is the issue, I think the issue arises and falls by the issue of how you interpret Section 2251A. [00:01:28] Speaker 03: I want to briefly clarify the chronology in this case. [00:01:31] Speaker 03: So the relationship between my client and VP began somewhere in the late fall of 2017, to which point she's about 15 and some months because she's a July 02 birthday. [00:01:44] Speaker 03: And it lasted through 2018 and it ended in May 2019. [00:01:50] Speaker 03: So the photographs were in April and June of 2018. [00:01:55] Speaker 03: It was exhibits at the jury line and the special verdict to convict. [00:01:59] Speaker 03: They were dated either April 30th or June 9th of 2018. [00:02:03] Speaker 03: The trafficking occurred in January, February, or March of 2019. [00:02:11] Speaker 03: And that's just kind of the basic chronology of the case. [00:02:16] Speaker 04: And just to be clear, the jury specifically identified some of the exhibits, and at least some of those were images that depict Mr. Moore engaged in sexual activity with the victim. [00:02:33] Speaker 04: Okay, so why [00:02:35] Speaker 04: Regardless of who took the photos or why the photos were taken, why isn't that right there enough to satisfy the statutory requirement that he used a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct? [00:02:52] Speaker 03: Well, I think both the statutory language and how this court read the statute has required the defendant to do something [00:03:04] Speaker 03: to bring about recording of the picture. [00:03:07] Speaker 04: What I'm suggesting, and the question is, why isn't engaging in sexual activity with the minor victim while being photographed sufficiently? [00:03:18] Speaker 04: I mean, that's doing something, isn't it? [00:03:20] Speaker 03: Well, it's doing something. [00:03:21] Speaker 03: But again, Congress could have written a statute that said that engaging in sexual sexual conduct was a minor. [00:03:29] Speaker 03: knowing that it's being recorded is a crime. [00:03:31] Speaker 03: They can do that. [00:03:32] Speaker 03: In fact, there are state statutes on sex exploitation of a child that specifically have that language. [00:03:38] Speaker 03: They include, in addition to the language that's used in 2251A, they add terms like permitted, authorized, or just knowingly engaged in sexual conduct, knowing that it was being recorded. [00:03:49] Speaker 04: So you would agree that he used the minor to engage in sexually explicit conduct? [00:03:56] Speaker 04: Like if the statute stopped there, [00:03:58] Speaker 04: I mean, he engaged in sexually explicit conduct with her, right? [00:04:02] Speaker 04: So what's missing? [00:04:05] Speaker 03: Well, I would say he participated in the sexual conduct with a minor. [00:04:08] Speaker 04: Okay, so then the only other requirement is that it be for the purpose of producing a visual depiction, and given that I think there's no dispute that he was aware that it was being photographed, so couldn't the jury infer that it was for that purpose? [00:04:23] Speaker 03: Well, I don't think they could on these facts because, again. [00:04:27] Speaker 02: But didn't he explicitly tell VP that he wanted sexually explicit media to post? [00:04:33] Speaker 02: Not as, I'm sorry, go ahead, Yara. [00:04:34] Speaker 02: To post, that he wanted the sexually explicit media so that he could post it. [00:04:41] Speaker 03: Okay, so the government cited that regarding exhibit 144. [00:04:46] Speaker 03: That is not one of the exhibits on which the jury convicted. [00:04:49] Speaker 03: There is no causal relationship between 144 and any of the exhibits that the jury identified on which, you know, special verdict, on which this verdict relies. [00:05:00] Speaker 03: You know, that's pages 3R, 378, 379. [00:05:02] Speaker 03: So, no, I believe the government is mistaken relying on that because 144, as far as I can tell, has no relationship to 91. [00:05:13] Speaker 01: But I thought that was relevant with respect to exhibit 91. [00:05:17] Speaker 03: I don't believe so, Your Honor. [00:05:18] Speaker 03: I've read the pages of the government, I don't see any connection at all. [00:05:24] Speaker 03: And the Second Circuit's Brocksmire case is relevant here because they're clear that the defendant's conduct has to pertain to the immature recording as to which he's being convicted. [00:05:40] Speaker 03: You can't just holistically rely on some other... [00:05:46] Speaker 03: other event or occurrence, I'm connected to this particular image or video to infer that. [00:05:54] Speaker 04: But, but why, why can't you, I mean, he engaged in the conduct knowing it was being photographed. [00:06:01] Speaker 04: Right. [00:06:02] Speaker 04: And so maybe that was just [00:06:05] Speaker 04: coincidence, maybe he didn't care about the photographs or maybe he was doing it in part because he wanted the photographs and isn't it up to the jury to decide? [00:06:14] Speaker 03: Well, there has to be some basis for the jury to enforce that he wanted these specific photographs or images. [00:06:22] Speaker 04: But I guess what I'm suggesting is why isn't, when you're doing something, whatever it is, knowing that you're being photographed, one reason you might do that is because you want it to be photographed and that seems like a, isn't that a rational inference that a jury could draw? [00:06:40] Speaker 03: I don't absolutely believe some indications that he actually wanted it. [00:06:43] Speaker 03: No. [00:06:45] Speaker 01: Does it make a practical difference that is to say, as I read the record here, the district judge sentenced to 240 months on each count? [00:06:53] Speaker 01: So you're arguing count one. [00:06:55] Speaker 01: If we put aside count one, does the sentence remain the same? [00:07:00] Speaker 03: I think the guideline range goes down slightly. [00:07:04] Speaker 03: I think it was life originally. [00:07:07] Speaker 03: By my calculation and taking into account the Amendment 821, it will go down to 360 to life. [00:07:13] Speaker 03: He got sentenced to 240. [00:07:15] Speaker 01: So you would then be asking for a re-sentencing? [00:07:17] Speaker 03: I would be asking for a re-sentencing. [00:07:19] Speaker 03: I would submit that he might get a slightly lower sentence depending on how he's doing in prison, but he was still looking at a lot of time. [00:07:26] Speaker 03: And that's because the fence level for the traffic is still 36. [00:07:31] Speaker 03: And there is an add-on of five levels. [00:07:34] Speaker 03: So I think basically there might be some change, but it's insignificant. [00:07:41] Speaker 03: To go back to your question, Judge Miller, you have to have at least some basis to infer, not speculate, that he wanted these particular... You're saying it has to be that he has to have wanted this specific photograph. [00:07:59] Speaker 02: He can't have just made the statement and then any photographs that are taken afterwards aren't tied to it in your view? [00:08:08] Speaker 03: Well, in this case, they aren't tied. [00:08:10] Speaker 03: We don't even know time-wise whether the 144 was taken after any of these in question, because I think the discussion about Exhibit 144 talks about, so he wanted to make a couple of posts. [00:08:26] Speaker 03: Presumably, this refers to trafficking, trafficking occurred in 2019. [00:08:30] Speaker 03: these photographs were 2018. [00:08:32] Speaker 03: You know, subsequent activities can't really cause prior activities to have happened. [00:08:40] Speaker 03: And I would like to direct the court to the Larsen case, where Judge Rawlinson was specific, that what made a difference in the sufficiency analysis was that [00:08:51] Speaker 03: The defendant wanted the photos taken. [00:08:54] Speaker 03: It was a situation where it was him and the victim in the selfie that she took. [00:09:01] Speaker 03: He was in it, and the judge emphasized in the opinion that he wanted pictures taken. [00:09:07] Speaker 03: That was a key point in the analysis. [00:09:08] Speaker 03: And I think if you use that as a model, we don't have that here. [00:09:14] Speaker 03: And I see that I've almost run out of time. [00:09:17] Speaker 02: You want to save the remainder of your time? [00:09:19] Speaker 03: Yes, unless the court has [00:09:22] Speaker 03: Thank you. [00:09:23] Speaker 02: Thank you. [00:09:30] Speaker 00: Thank you, Your Honor. [00:09:30] Speaker 00: May it please the court, Jennifer Ivers, representing the United States in this matter. [00:09:35] Speaker 00: Just to clarify one factual point, Exhibit 144 was the minor victim's grand jury testimony. [00:09:42] Speaker 00: And what the government was doing at that stage of the testimony was impeaching her with her [00:09:48] Speaker 00: Prior grand jury testimony about exhibit 91 So hopefully that clarifies what was happening at that point in the record if you if you look back at that knowing that and the exhibit list is in our supplemental excerpts of record and jumping into what active conduct means a Framework that I think could be useful [00:10:11] Speaker 00: in applying this court's precedence to the facts of this case is breaking it down into the context in which the images were created and the content of the images themselves. [00:10:22] Speaker 00: Considering the context, this is not a romantic relationship. [00:10:28] Speaker 00: This is a relationship of sexual, emotional, and physical abuse. [00:10:34] Speaker 00: This is a relationship in which Mr. Moore trafficked the minor victim. [00:10:41] Speaker 00: Council is right, the images involved in this case preceded the testimony about trafficking. [00:10:48] Speaker 00: Regardless, I think it is important to place the minor victim and the defendant in the correct context of what this relationship is. [00:10:56] Speaker 00: And Mr. Moore did say, there is testimony that Mr. Moore said that he wanted exhibit 91, which is the same as exhibit 33, but with a sticker added. [00:11:12] Speaker 00: The jury had additional context of Mr. Moore testifying. [00:11:16] Speaker 00: He testified in this trial that he had the opportunity to assess his demeanor, assess his testimony, assess the arguments that his counsel made, and they found him guilty on all counts. [00:11:28] Speaker 00: And specifically the content of these exhibits as well. [00:11:32] Speaker 00: These images were not incidental to the sexual conduct between Mr. Moore and the minor victim. [00:11:40] Speaker 00: They were clearly posed. [00:11:42] Speaker 00: They were in front of a mirror. [00:11:43] Speaker 00: The minor victim was on her knees and Mr. Moore was standing. [00:11:47] Speaker 00: The view of a mirror selfie depicted all of Mr. Moore's body, whereas if he had taken a selfie, you wouldn't have been able to see that. [00:11:58] Speaker 00: He had his hand on her head. [00:12:00] Speaker 00: He was looking down at her. [00:12:01] Speaker 00: And you can even see, if you compare exhibit 33 and 91 to some of the other exhibits, you can see he's kind of sucking in his gut. [00:12:12] Speaker 00: All of these suggest that these are posed images. [00:12:16] Speaker 00: with the intent to create child pornography. [00:12:19] Speaker 00: And that's exactly what the government argued in closing was both the context and the content of these images. [00:12:24] Speaker 00: I think it's [00:12:27] Speaker 00: If this court is concerned at all about the way the child pornography statute was argued in closing, I think it's worth taking a look at what was actually said. [00:12:38] Speaker 00: And here, the government argued, explained the content of the images with the images on a screen for the jury to look at while talking about those. [00:12:51] Speaker 00: and they're described in the record and repeatedly asked the jury to look at the instructions that the court had given them to consider those instructions and to defer to the court the instructions as the court gave them and then also added the additional context of this is a sex trafficking relationship and based on that argument on on the facts that the jury had in front of it they correctly found Mr. Moore guilty of [00:13:18] Speaker 00: Specifically count one, but all three of the accounts in this case I'm not seeing any questions. [00:13:24] Speaker 04: I have one question about the restitution calculation so the [00:13:29] Speaker 04: The government took the number of online advertisements and assumed that half of those resulted in a commercial sex act and then calculated the revenue based on that. [00:13:42] Speaker 04: What was the basis for assuming that half of the ads led to an act? [00:13:46] Speaker 04: Was there any basis for that number? [00:13:50] Speaker 00: The basis, and I don't know if this is explicit in the record, but having written the sentencing memo, I can say the basis was to try to be a little on the conservative side. [00:14:03] Speaker 00: So not assuming that every single ad that gets posted leads to a commercial sex act, half seemed fair, and Mr. Moore didn't present any argument that wasn't fair. [00:14:18] Speaker 00: And so that was what the court went with. [00:14:25] Speaker 00: I'm not seeing any other questions. [00:14:27] Speaker 00: So I'm going to unless there's anything else, I'm just going to sit down. [00:14:31] Speaker 00: Thank you. [00:14:38] Speaker 03: A couple of brief points. [00:14:40] Speaker 03: I would urge the court to look at the Brock Smart case from the Second Circuit. [00:14:44] Speaker 03: I think it specifically rejects this type of a holistic argument untethered to the actual images in question. [00:14:53] Speaker 03: You can't infer, I mean, they refuse to infer that the defendant wanted certain specific things done based on something that was done in connection with other images. [00:15:03] Speaker 03: It was pretty image-specific analysis, and I would urge the court to adopt the same analysis in this case. [00:15:09] Speaker 03: The reason I talk about chronology is precisely my friends on the other side's argument about putting it in context. [00:15:20] Speaker 03: I think the government is trying to take things that happened years later, at least a year later, and kind of pigeonhole them back into what happened in 2018. [00:15:30] Speaker 03: I just don't, I don't think that's logical. [00:15:32] Speaker 03: There was no evidence that my client did any of the things to indicate his willingness of wanting those specific images in 2018. [00:15:41] Speaker 03: So for that reason, I would urge the court to reverse his conviction, count one, and remand for sentencing, whereas the restitution issue should be addressed. [00:15:50] Speaker 02: All right. [00:15:51] Speaker 02: Thank you, counsel. [00:15:52] Speaker 02: US v. Moore will be submitted, and we'll take up US v. Bauman.