[00:00:10] Speaker 01:
Good morning.

[00:00:11] Speaker 01:
May it please the court.

[00:00:12] Speaker 01:
Justin Lonergan for Mr. Hutton.

[00:00:13] Speaker 01:
If I may reserve two minutes for rebuttal.

[00:00:16] Speaker 01:
Very well.

[00:00:18] Speaker 01:
Dubin versus United States was a necessary reset to how courts interpret criminal statutes that involve potentially limitless terms such as the word use.

[00:00:30] Speaker 01:
The impact of Dubin is that this court's pre-Dubin methodology for looking at the word use in the context of Section 2251 cannot stand.

[00:00:41] Speaker 01:
And instead, this court has the opportunity, as noted in Mendez, to essentially write on a clean slate.

[00:00:47] Speaker 01:
And properly applying the methodology that Dubin sets out means that the word use has to have a causal element between a defendant's actions

[00:00:59] Speaker 01:
and a child's sexually explicit conduct.

[00:01:02] Speaker 01:
And to be sure, this still results in a broad statute, but not so broad as to encompass what happened with Mr. Hutton, however objectionable it might be morally or socially.

[00:01:16] Speaker 01:
The United States says that Dubin is a wholly different context, and that really misses the point of what Dubin is about and how this court looks at and adjusts to higher intervening authority.

[00:01:30] Speaker 01:
Since the parties briefed this, Your Honor.

[00:01:35] Speaker 03:
My recollection of this is Boehm and other cases sort of resolved this issue negatively.

[00:01:43] Speaker 03:
I mean, we've interpreted uses in the past broadly.

[00:01:47] Speaker 03:
As I understand your argument, maybe this is what you're getting to, your argument that Dubin has changed that analysis.

[00:01:54] Speaker 03:
Is that correct?

[00:01:55] Speaker 01:
That is correct, Your Honor.

[00:01:56] Speaker 01:
The last time this court looked at this situation in Bohm, that progeny is no longer reconcilable with how the Supreme Court looks at statutory interpretation.

[00:02:08] Speaker 03:
The problem you run into is Miller v. Gammie in our court, which is it just sets such a high standard.

[00:02:16] Speaker 03:
I mean, and I'm wondering if you can address it.

[00:02:19] Speaker 03:
Because when I read Dubin, I mean, I wasn't, to be honest with you, I wasn't even sure that it changed the analysis that much.

[00:02:27] Speaker 03:
It's a different issue.

[00:02:30] Speaker 03:
But whether it does that, it has to be

[00:02:33] Speaker 03:
clearly irreconcilable with Boehm.

[00:02:36] Speaker 03:
And so maybe you can explain why you think that's the case.

[00:02:40] Speaker 01:
Yes, Your Honor, and if I may, I'd like to take the court back to the concurrence in Duarte where this issue was, the Miller v. Gammie issue was discussed.

[00:02:52] Speaker 01:
Judge Dyke wrote, quote, our court applies a more flexible approach than other circuits when determining whether circuit precedent has been abrogated by intervening authority, citing to Miller v. Gammie.

[00:03:06] Speaker 01:
And the concurrence went on to really explain that, quote, in contrast to the more restrictive standards our sister circuits require to abrogate a prior decision of ours, the intervening authority need only be, quote, closely related, close quote, to the prior circuit precedent and need not expressly overrule its holding.

[00:03:26] Speaker 01:
That came after the parties briefed Mr. Hutton's case and it's informative to how we look at Dubin because Dubin is not about identity theft.

[00:03:36] Speaker 01:
Dubin is a case of how do we synthesize and to what level do we look at various factors in statutory interpretation.

[00:03:45] Speaker 01:
Dubin set out

[00:03:47] Speaker 01:
Essentially, I'd suggest about five different layers of analysis that a court goes through that weren't, that wasn't looked at in Larson.

[00:03:55] Speaker 01:
Larson basically looked at two things, plain meaning and a brief note of statutory canons with Nostra Taurus Socius.

[00:04:05] Speaker 01:
And the way that Larson looked at that is clearly irreconcilable with Dubin because Larson said,

[00:04:13] Speaker 01:
that essentially there was a plain meaning to the word use.

[00:04:19] Speaker 01:
But what Larson didn't look at and what Dubin tells us to look at is in fact to the authority that Larson cited to, Merriam-Webster even, as a starting point.

[00:04:28] Speaker 01:
The word use has seven potential definitions, not just one that Larson picked.

[00:04:33] Speaker 01:
And Larson said, and didn't talk about those other definitions, but Larson said basically that the circuit was going to broadly interpret the use element.

[00:04:41] Speaker 01:
But this court, since Dubin, pointing out U.S.

[00:04:45] Speaker 01:
v. Patterson has said, and Patterson kind of doubles down on Dubin,

[00:04:51] Speaker 01:
that a statute's meaning does not always turn solely on the broadest imaginable definitions of its component words.

[00:04:59] Speaker 03:
But those are general statements.

[00:05:01] Speaker 03:
And it seems to me that clearly irreconcilable requires, I mean, I don't think that Bohm disagreed with that proposition.

[00:05:10] Speaker 03:
And the fact that it can have several meanings doesn't change the fact that in Bohm we chose one meaning.

[00:05:18] Speaker 03:
And Dubin does not require us to choose another meaning.

[00:05:22] Speaker 03:
Yes, we could, but I'm not sure we even have the authority to do that en banc.

[00:05:27] Speaker 03:
Or excuse me, as a panel, I think it would have to go en banc.

[00:05:30] Speaker 01:
Understood.

[00:05:31] Speaker 01:
And I think where the problem continues, where we get into this area where it does turn back to this panel being able to have authority, is if you keep looking at the things that Dubin told us to look at, kind of the next thing is the text and those canons of construction, such as Nausatorre Associates, where Larson only looked at one verb.

[00:05:54] Speaker 01:
employees.

[00:05:55] Speaker 01:
Congress gave us five.

[00:05:58] Speaker 01:
Congress gave us a set of verbs out of which we are supposed to, post-Dubin, synthesize what each of those words means.

[00:06:07] Speaker 00:
Counsel, the problem that I think I have with saying that Dubin overrules or requires us to recognize as overruled cases like Larson is that what the Supreme Court ultimately did was to talk about

[00:06:23] Speaker 00:
active versus passive basically that use means doing something affirmative basically.

[00:06:32] Speaker 00:
And in Larson, that's exactly what was required.

[00:06:41] Speaker 00:
that Larson had used the minor to produce the pornographic images, that we said the evidence established that Larson directed the minor's actions at a minimum engaging in active conduct.

[00:07:01] Speaker 00:
So why isn't that consistent with what Dubin says?

[00:07:05] Speaker 01:
Because Dubin takes the court

[00:07:09] Speaker 01:
beyond just looking at one plain meaning of the word, it also takes the court into the overall statutory construct.

[00:07:25] Speaker 01:
And what 2251 is about, as this court has said as far back as

[00:07:30] Speaker 01:
free speech coalition is the active participation of the child.

[00:07:37] Speaker 01:
And Dubin requires, and this is where all of Dubin's factors interplay.

[00:07:43] Speaker 01:
There's certainly arguments.

[00:07:45] Speaker 00:
Your argument really isn't even about use, it seems to me.

[00:07:50] Speaker 00:
Your argument is about what it means to cause the minor to engage in the sexually explicit conduct.

[00:08:00] Speaker 00:
Which is really a different piece of the statute.

[00:08:04] Speaker 00:
So I guess, and Larson didn't deal with that because there was a different kind of, the child was with the defendant when the photographs were taken.

[00:08:21] Speaker 00:
So I'm not really sure why this is a Dubin problem.

[00:08:27] Speaker 01:
The issue that we are phrasing to the court is that the court needs to look at the entirety of the statutory text as noted in the reply brief.

[00:08:38] Speaker 01:
We've broken down that we can't just focus on images or we can't just focus on

[00:08:46] Speaker 01:
broad concepts.

[00:08:47] Speaker 01:
We have to remain true as well to the actual text of the statute.

[00:08:52] Speaker 01:
As Your Honor is suggesting, I think we're getting, and we recognize this, some of this is influenced by the very, very broad definition of lasciviousness, which is not before the court, but it certainly does

[00:09:09] Speaker 01:
factor into how do we interpret use because that's been essentially the shift since Larson is that the circuit has essentially adopted this subject of the depiction rule which largely

[00:09:26] Speaker 01:
wipes away the statutory text.

[00:09:28] Speaker 00:
Well, that has definitely been criticized.

[00:09:31] Speaker 00:
But it seems to me there are three separate things that you've been talking about, and I'm trying to sort of separate them out in my mind.

[00:09:38] Speaker 00:
One is the meaning of the word use or use.

[00:09:41] Speaker 00:
The second is, what does it mean for a minor to engage in sexually explicit conduct?

[00:09:48] Speaker 00:
And the third is this sort of lasciviousness

[00:09:53] Speaker 00:
prong or requirement.

[00:09:55] Speaker 00:
Those seem like separate things to me, not one thing.

[00:10:00] Speaker 00:
So specifically, what is it you think is different here than in Larson, if anything?

[00:10:12] Speaker 01:
The difference in here, Your Honor, is that Larson

[00:10:19] Speaker 01:
Larson had a very different set of circumstances.

[00:10:22] Speaker 01:
Larson had that really active conduct that I think nobody would say is outside of the statute.

[00:10:31] Speaker 01:
But what is concerning is... In what way?

[00:10:34] Speaker 01:
What was the active conduct?

[00:10:35] Speaker 01:
Your Honor, the active conduct... The active conduct there, Your Honor, was

[00:10:45] Speaker 01:
You essentially had the defendant engaged in this relationship with the minor and he was with her physically in that presence of the minor making these photographs.

[00:10:59] Speaker 01:
The minor was there.

[00:11:00] Speaker 01:
I don't understand how that changes.

[00:11:01] Speaker 03:
This is on the use point?

[00:11:04] Speaker 03:
This is on the use point, correct.

[00:11:06] Speaker 03:
I really don't understand how that distinction would make a difference on use.

[00:11:10] Speaker 01:
Because that example of use is so much broader than where the circuit has gone since Larson.

[00:11:17] Speaker 01:
We've moved away from a defendant being essentially actively, physically with the child causing those images to be produced to now a spot where there is no interaction whatsoever with a defendant and the child.

[00:11:35] Speaker 01:
And there's nothing that a defendant does to

[00:11:39] Speaker 01:
essentially move the child in a certain direction or to cause the child to do anything.

[00:11:44] Speaker 01:
What we had here was the young woman was doing as she always did, showering, using the toilet.

[00:11:52] Speaker 01:
Nothing that Mr. Hutton did had any influence on that conduct.

[00:11:58] Speaker 01:
He didn't direct her to use that bathroom.

[00:12:00] Speaker 01:
He didn't instruct her to use it at certain times or forbid her from using another bathroom.

[00:12:05] Speaker 03:
His conduct was entirely passive in the sense of... If this statute wouldn't be used for this conduct, I think you'd suggested it should have been brought under a voyeurism statute.

[00:12:19] Speaker 03:
I thought that came up in some context.

[00:12:21] Speaker 01:
It was talked about how if Congress meant for this to encompass essentially voyeurism, Congress could have had that statute.

[00:12:28] Speaker 01:
And it may be that this is just simply not a federal charge.

[00:12:33] Speaker 01:
It has to be at the state level.

[00:12:35] Speaker 01:
It very well could be a state level thing.

[00:12:37] Speaker 01:
And that's one of the things that Dubin emphasizes is

[00:12:40] Speaker 01:
this getting back to restraint in the breadth of criminal statutes.

[00:12:45] Speaker 01:
Not everything's a federal problem, and Congress has the ability to get at what are some legitimate societal issues.

[00:12:53] Speaker 01:
We see with the 1801 charge, which is different because it's a special territorial and maritime jurisdiction basis, but Congress knows how to write in

[00:13:05] Speaker 01:
photographing or creating depictions of private areas, which is essentially what happened in this case.

[00:13:12] Speaker 01:
So there is a certain point where we always have to be mindful of not expanding a statute beyond its terms or beyond its fair meaning just because we're concerned about someone's conduct.

[00:13:25] Speaker 01:
That's one of the things that the Supreme Court repeatedly emphasized.

[00:13:28] Speaker 01:
In addition to the significance of the penalty, that is something that Dubin brought

[00:13:35] Speaker 01:
fourth as well is Justice Sotomayor was repeatedly concerned about the mandatory minimum in that case and how such a, quote, harsh penalty would have to be taken into account when we're differentiating conduct.

[00:13:52] Speaker 01:
So Dubin really got at the significance of the statutory penalty as a factor in statutory interpretation, something that Larson never really broached or that any case since Larson has broached.

[00:14:07] Speaker 01:
We pointed the court to the Seventh Circuit in

[00:14:12] Speaker 01:
Howard, where the Seventh Circuit engaged in the kind of canon analysis that we believe is necessary post-Dubin.

[00:14:20] Speaker 01:
This was a pre-Dubin decision.

[00:14:22] Speaker 01:
But the Seventh Circuit noted, five of the six verbs on the statutory list require some action by the offender to cause the minor's direct engagement in sexually explicit conduct.

[00:14:35] Speaker 01:
That's the kind of analysis that we need to be having with statutes as broad as 2251.

[00:14:41] Speaker 01:
It's the kind of analysis that post-Dubin, this court has adopted in Oracle in civil context where the court reminded us that, quote, so when several items in a list share an attribute,

[00:14:58] Speaker 01:
It favors interpreting the other items as possessing that attribute as well.

[00:15:02] Speaker 01:
So this court has continued to see Dubin as requiring a more intense focus on statutory interpretation than Larson and its progeny.

[00:15:10] Speaker 01:
And I see that amount of time.

[00:15:12] Speaker 01:
Thank you.

[00:15:12] Speaker 01:
We'll go ahead and give you two minutes for rebuttal.

[00:15:14] Speaker 01:
Thank you, Your Honor.

[00:15:21] Speaker 02:
Good morning again, Your Honors.

[00:15:23] Speaker 02:
Ian Gerricks for the United States from the Eastern District of Washington.

[00:15:27] Speaker 02:
As discussed with my colleague here, this appeal focuses largely on Dubin.

[00:15:34] Speaker 02:
And as the Court has already expressed its sentiment that Dubin doesn't really change the analysis.

[00:15:39] Speaker 02:
And in anything, if looking closely at Dubin compared to Larson and then Mendez in this Court and Bohm,

[00:15:46] Speaker 02:
Dubin actually furthered the fact that a defendant can use a child for purposes of 2251A.

[00:15:54] Speaker 02:
In Dubin, for example, the Supreme Court actually went one step further than this court in Larson in that Justice Sotomayor, the first piece she looked at was, what is the title of the statute?

[00:16:09] Speaker 02:
In the Ninth Circuit and Larson, the court did not look at the title of the statute.

[00:16:15] Speaker 02:
If there's some ambiguity,

[00:16:17] Speaker 02:
you can look at the title of the statute.

[00:16:19] Speaker 02:
And 2251A is sexual exploitation of minors.

[00:16:24] Speaker 02:
And that helps create the context that there is actually a crime.

[00:16:29] Speaker 00:
This has not really been part of the discussion in our prior cases quite the way it strikes me looking at the statutory text.

[00:16:40] Speaker 00:
But 2251A criminalizes using a minor to engage in sexually explicit conduct.

[00:16:52] Speaker 00:
And I'm not really sure why

[00:16:57] Speaker 00:
simply doing what anyone does in the bathroom, taking a shower or using the toilet or whatever, is sexually explicit conduct that is causing, using the person to engage in that.

[00:17:13] Speaker 00:
That just strikes me as peculiar, and I know that our cases say that it's good enough, but it strikes me as a very strange

[00:17:26] Speaker 00:
sort of interpretation of engaging in sexually explicit conduct.

[00:17:31] Speaker 02:
Is the court, Judge Graber, are you concerned about the word use or the actual term sexually explicit?

[00:17:38] Speaker 00:
No.

[00:17:38] Speaker 00:
Causing, well, enticing or using the minor to engage in sexually explicit conduct is taking a shower, engaging in sexually explicit conduct.

[00:17:48] Speaker 00:
That's what I'm getting at.

[00:17:49] Speaker 00:
It's not the use part of it.

[00:17:52] Speaker 00:
you know, enticement part of it.

[00:17:55] Speaker 02:
And that's part of the definition.

[00:17:57] Speaker 02:
It doesn't have to be... Part of that definitional statute includes items that would be obvious, masturbation, sexual intercourse, but there's also the words, the lascivious display of the genitals, pubic area, and... Yeah, that also... I mean, I guess that's where I think that the criticisms that have been leveled in the past have some purchase in my mind, which is that it really...

[00:18:23] Speaker 00:
It can't entirely be in the eye of the beholder, it seems to me.

[00:18:27] Speaker 00:
That is what our law says, but that strikes me as very peculiar, because depending on the culture that you come from, it may be that looking at a woman's toes in sandals is wildly lascivious to the viewer, but it isn't what we normally have in mind.

[00:18:46] Speaker 02:
And, well, these criticisms have been level perhaps for almost 40 years since DOST and the court's adoption of that in 1987 in Wiegand.

[00:18:55] Speaker 02:
And the courts have resoundingly and other circuits have actually adopted the DOST factors, not just this circuit.

[00:19:04] Speaker 02:
And although pedophiles like Mr. Hutton have leveled these claims for 40 years, this court has consistently rejected them.

[00:19:11] Speaker 02:
And it's not just from the eye of the beholder.

[00:19:14] Speaker 02:
And the reason why defendants rule 29 motion here goes nowhere is because the district court actually found on five of the objective factors, because Dost, in defining what these lascivious images are,

[00:19:30] Speaker 02:
the first five factors are objective.

[00:19:32] Speaker 02:
The sixth one is what the display did it intend to arouse the sexual desire of the viewer, the defendant, or like-minded pedophiles.

[00:19:42] Speaker 02:
And here, the district court actually hit all five of the DOS, the first five DOS factors, finding the focal, and the court has seen these images as supplied by the government.

[00:19:54] Speaker 02:
The district court saw them, whether or not, and you have a

[00:19:59] Speaker 02:
a minor the district court found that a bathroom can be of sexual and being on the toilet can be of a sexual nature that's a specific finding the district court the district court found factor number one the focal point of the visual depiction is on the child's genitalia or pubic area here you have images right up close of the of the females pubic area when she comes up close to the hidden camera that's factor one the scene is uh...

[00:20:27] Speaker 02:
It can be associated with sexual activity.

[00:20:30] Speaker 02:
The district court found based on the DOS factor, which has not been overruled, that a bathroom or like a bedroom can be that type of setting.

[00:20:39] Speaker 02:
Whether or not there's an unnatural pose, the district court found that as well in instances where the minor had kind of stretched out her chest area.

[00:20:50] Speaker 02:
Whether or not the child is fully or partially clothed or nude, here obviously she's nude many times, district court found that.

[00:20:57] Speaker 02:
Five, whether or not there's a coyness involved and the district court found that as well.

[00:21:03] Speaker 02:
None of those are, those are objective factors and those were found by the district court.

[00:21:08] Speaker 02:
So this court can affirm just on those factors alone and not even get into this challenge of whether or not the six factor applies.

[00:21:18] Speaker 02:
Defendant Hutton is trying to say that the six factor, whether or not it arouses the sexual interest of the defendant or like-minded pedophiles, subsumes all of those five factors, but that is not the case.

[00:21:31] Speaker 02:
But the six factor, which this court and other courts have repeatedly affirmed

[00:21:38] Speaker 02:
We again and bone and Mendez and Larson is that subjective interest of the pedophile and what was that scene created to Arouse him and as the district court found here

[00:21:53] Speaker 02:
There could not be a clearer record of factual findings than what the district court made here on the record after this bench trial.

[00:22:01] Speaker 02:
It is bulletproof, so to speak.

[00:22:05] Speaker 03:
These seem to be legal arguments that are being raised by the defendant.

[00:22:13] Speaker 03:
They are.

[00:22:14] Speaker 03:
I don't disagree with you, but I think that might be why

[00:22:17] Speaker 03:
The defendant has sort of walked away from some of the factual issues.

[00:22:21] Speaker 03:
Well, I guess lascivious.

[00:22:22] Speaker 03:
Your point is lascivious.

[00:22:24] Speaker 03:
He does raise some factual.

[00:22:28] Speaker 03:
I mean his are pure legal issues as I understand them.

[00:22:32] Speaker 03:
He is whether you whether this is covered by use which doesn't depend on the factual findings.

[00:22:37] Speaker 02:
Yes but he also challenges the void for vagueness as to whether or not a reasonable adult would think that secretly placing a camera in the bathroom with your teenage daughter having a prior conviction for communicating illicitly with minors knowing that she's in there and he

[00:22:55] Speaker 02:
limits the captured images just to when she's nude.

[00:23:00] Speaker 02:
No reasonable person would think that's child pornography or a sexual, and that's just a preposterous argument.

[00:23:07] Speaker 02:
So he's trying to say that there's a void for vagueness challenge, that would be the legal algebra, but he's not challenging

[00:23:14] Speaker 02:
the facts under the law.

[00:23:16] Speaker 02:
Therefore, I mean, factually and based on clear error, this court has to affirm.

[00:23:22] Speaker 03:
I don't hear him to be suggesting that the facts here aren't bad.

[00:23:26] Speaker 03:
I mean, I think everybody agrees they're bad.

[00:23:28] Speaker 03:
We're trying to address some legal technicalities on the definition of use, lasciviousness.

[00:23:37] Speaker 03:
I mean, even overbreath is really ultimately a legal question.

[00:23:44] Speaker 02:
There are two issues, the two legal issues of the void for vagueness as to lasciviousness, whether or not a reasonable person would know that this type of situation is the lascivious display.

[00:23:56] Speaker 02:
And he cites Williams, the Supreme Court case from 2007.

[00:23:59] Speaker 02:
And it was basically a side note in Justice Scalia's opinion about

[00:24:06] Speaker 02:
that situation and for 17 years no court has found void for vagueness based on Williams and it's been cited repeatedly and therefore there is no and the argument that a reasonable person would not think this is a sexual exploitation of a minder is preposterous in the government's view and it has never gone anywhere in 17 years.

[00:24:29] Speaker 03:
That's his third argument.

[00:24:31] Speaker 03:
You might have put it there for a reason.

[00:24:33] Speaker 02:
Right.

[00:24:34] Speaker 02:
And the first argument goes to the use and the employing and back to what Dubin.

[00:24:41] Speaker 02:
Dubin doesn't change the analysis at all.

[00:24:44] Speaker 02:
Dubin dealt with, you had an aggravated identity, 1028A, aggravated identity theft statute.

[00:24:51] Speaker 02:
The crux in Dubin, the court,

[00:24:53] Speaker 02:
Supreme Court analyzed the meaning of the word use.

[00:24:58] Speaker 02:
And it found, just like in Larson and Mendez and Bohm, that the word use, its plain language definition includes employ and avail oneself of.

[00:25:09] Speaker 02:
And that's exactly what Larson said, employ or avail oneself of.

[00:25:13] Speaker 02:
In addition, the court looked to the

[00:25:18] Speaker 02:
term noceter associis, the associated words, it's known by its association.

[00:25:24] Speaker 02:
And you look at those words in conjunction with the other words in the statute.

[00:25:31] Speaker 02:
And then finally, you have to look at the surplusage.

[00:25:35] Speaker 02:
If there are words that aren't in there, were they really intended to be in there?

[00:25:39] Speaker 02:
And then where Dubin actually pushes it against the defense's point is unlike Larson, which didn't focus on the title of the statute, now the Supreme Court's telling us, which is obvious, look at the title of the statute, sexual exploitation of minors, and therefore you can

[00:25:57] Speaker 02:
So Dubin dealt with aggravated identity theft, yet the government in that case, Supreme Court found, well, they're really just over billing.

[00:26:05] Speaker 02:
The crux of the crime was not when a medical provider used its imp...

[00:26:12] Speaker 02:
his employee's name and Medicare number to overbill based on that person's work because he really wasn't qualified for the work that he was billing for.

[00:26:24] Speaker 02:
The identity wasn't really the issue.

[00:26:27] Speaker 02:
The crux of the crime was the fraud.

[00:26:30] Speaker 02:
And then aggravated identity theft, you have a number of different ways that crime can be committed.

[00:26:37] Speaker 02:
It's not aggravated identity theft as to Medicare fraud.

[00:26:41] Speaker 02:
There's aggravated identity theft and a number of predicate means.

[00:26:45] Speaker 02:
Here we have 2251A sexual exploitation of minors and using a minor for the purpose of creating a sexually explicit conduct.

[00:26:59] Speaker 02:
In this term, the court, the government would point to the Eleventh Circuit's recent decision in Dawson, which explains the noceter asoces analysis a little bit better.

[00:27:14] Speaker 02:
What Judge Graber was getting at in Larson is that Larson was saying this is active conduct, use connotes

[00:27:21] Speaker 02:
active conduct.

[00:27:22] Speaker 02:
In Dawson, unlike the defense is trying to say here it's purely passive, in Dawson the 11th Circuit says they're all active.

[00:27:31] Speaker 02:
They're just different levels of active.

[00:27:33] Speaker 02:
And in that definition you have the defendant employs, uses

[00:27:40] Speaker 02:
induces, entices, persuades, or coerces this minor to engage in the sexually explicit conduct.

[00:27:47] Speaker 02:
And it divided, it put employ and use together as active, yet not as active as inducing, enticing, and persuading.

[00:27:57] Speaker 02:
That's a step above a more action.

[00:28:00] Speaker 02:
And then finally, coercing.

[00:28:01] Speaker 02:
So in Dawson, the court says there's a spectrum of activity that

[00:28:07] Speaker 02:
that Congress intended to penalize or criminalize in terms of this word use and that it fits in that statute that a defendant uses.

[00:28:17] Speaker 02:
And in fact, here when you look at under Dubin, the crux of the crime, because ultimately Justice Sotomayor and the court looked at the plane meeting, the words in conjunction with others, but really what is the crux of the crime?

[00:28:35] Speaker 02:
It was in Dubin, it was unrelated to aggravated identity theft, this Medicare overbilling.

[00:28:41] Speaker 02:
Here, you don't have the crime of sexual exploitation of minors unless the minor is used.

[00:28:49] Speaker 02:
There is the minor.

[00:28:51] Speaker 02:
And that is what makes the crime.

[00:28:53] Speaker 02:
And the minor is engaged in sexually explicit conduct, which is defined under the dose-weakened factors, which this court has resoundingly affirmed in

[00:29:04] Speaker 02:
in Bohm and in Mendez, where in similar situations in Mendez, you didn't have action, or you didn't have a defendant directing the girl to be in the bedroom.

[00:29:18] Speaker 02:
He just put a secret hidden camera in there, and she just did the conduct.

[00:29:22] Speaker 02:
It happened to be masturbation, so no question about lasciviousness.

[00:29:26] Speaker 02:
And then in Bohm, one step further, the facts are identical.

[00:29:30] Speaker 02:
The only distinction between Bohm and here

[00:29:33] Speaker 02:
is that the defendant in Boehm directed her to a particular bedroom of the house.

[00:29:38] Speaker 03:
I mean, lascivious says it's the exhibition of particular parts of the body of any person.

[00:29:47] Speaker 03:
If it did include, I mean, could Congress define that however they wanted?

[00:29:51] Speaker 03:
If it did include feet, as the hypothetical was there, would we have a different, I mean, at some point, wouldn't we have to step in and say, wait, this has gone too far?

[00:30:03] Speaker 02:
Well, there is a point in Dubin where I think the court points out ultimately it's not the government that's going to decide what to charge.

[00:30:13] Speaker 02:
The court has to set the rails of what's in the definable statute.

[00:30:17] Speaker 02:
But that's not the issue here.

[00:30:18] Speaker 03:
I understand it's not an issue here, but I'm actually kind of saying that as support that it says anus, genitals, or pubic area.

[00:30:25] Speaker 03:
That's what we're dealing with.

[00:30:26] Speaker 03:
I mean, if it were toes and somebody liked toes, that regardless of the perpetrator's interest, that wouldn't be covered by the statute, right?

[00:30:39] Speaker 03:
Right.

[00:30:39] Speaker 03:
Because it wouldn't fall within the definition of listening.

[00:30:42] Speaker 02:
Correct.

[00:30:42] Speaker 02:
And here it specifically falls in the definition of the sexually explicit conduct.

[00:30:49] Speaker 02:
I see that I'm out of time.

[00:30:51] Speaker 02:
Unless the court has further questions, the government would submit on its brief.

[00:30:55] Speaker 02:
Thank you, counsel.

[00:30:55] Speaker 02:
Thank you, your honor.

[00:31:08] Speaker 01:
Very briefly, Your Honor, the point of the statutory title really hits at what we're getting at with Dubin.

[00:31:15] Speaker 01:
If the Supreme Court thought that the title of 1028A resolved the issue, it would have stopped there, but it didn't.

[00:31:23] Speaker 01:
it went through a series of components of analysis, starting with the title, which sometimes is not as clear as we might like.

[00:31:33] Speaker 01:
And then we go to the next step, including the statutory text, which the government doesn't talk much about.

[00:31:39] Speaker 01:
And if the text is not totally clear, then we go into the canons of construction.

[00:31:45] Speaker 01:
And that's where Dubin tells us to go, that Larson didn't go, is that there is a methodology

[00:31:52] Speaker 01:
not simply picking a couple tools that seem to support a broad interpretation.

[00:31:59] Speaker 01:
Dubin tells us, step back, don't assume the conclusion first.

[00:32:03] Speaker 01:
Go through the methodology.

[00:32:04] Speaker 01:
And when we do, that reset points us towards requiring, as the Mendez Court said, a causal element.

[00:32:13] Speaker 01:
That's all I have, unless there are any questions.

[00:32:16] Speaker 01:
Thank you very much.

[00:32:17] Speaker 01:
Thank you, Your Honor.

[00:32:18] Speaker 01:
Thanks to both of you for your briefing and argument.

[00:32:20] Speaker 01:
In this case, this matter is submitted.