[00:00:07] Speaker 02:
Good morning, Your Honors.

[00:00:08] Speaker 02:
Gretchen Fusilier on behalf of the appellant, Michael Dunbar, if it please the court.

[00:00:14] Speaker 02:
This case is essentially about a 17-year-old minor who casually met Mr. Dunbar at a drive-through Burger King in Arizona where she was working at the drive-through window.

[00:00:29] Speaker 02:
They exchanged telephone numbers.

[00:00:30] Speaker 02:
She gave him

[00:00:33] Speaker 02:
not a WhatsApp, but another social and not Facebook.

[00:00:38] Speaker 02:
Just a few hours after that casual meeting, she called him.

[00:00:42] Speaker 02:
In a way, it was a solicitation because she invited him to her apartment where she lived alone with another girl, Paloma.

[00:00:50] Speaker 02:
She no longer lived at home.

[00:00:52] Speaker 02:
And she allowed him to stay there for three days.

[00:00:56] Speaker 02:
They had sex.

[00:00:56] Speaker 02:
They went to a party.

[00:00:57] Speaker 02:
They went to a nightclub.

[00:00:59] Speaker 02:
She had false ID.

[00:01:00] Speaker 02:
She had a young baby.

[00:01:01] Speaker 02:
So all of the indicia at that point

[00:01:06] Speaker 02:
and she represented that she was 21 years old.

[00:01:09] Speaker 02:
All of that information at that point, I think to a reasonable person, would have had no doubt that she was 21 years old.

[00:01:17] Speaker 02:
However, at some point they decided, she says that he sold her a dream and that was commercial sex.

[00:01:28] Speaker 02:
They drove to San Diego where they were, well her mother, who at some point

[00:01:35] Speaker 02:
indicated that her daughter, this minor female, had solicited men on the internet.

[00:01:44] Speaker 02:
And on one occasion, she contacted the man, said that her daughter was a minor, the texting stopped, and the mother told her daughter, you can get someone in real trouble for this.

[00:01:54] Speaker 02:
But all right, so she contacted Mr. Dunbar.

[00:01:58] Speaker 02:
Mr. Dunbar did not initiate the contact with her.

[00:02:02] Speaker 01:
they went to arizona i mean they've came to san diego and uh... so counsel were were familiar with the facts and what happened in the underlying case but it seems that what you're leading up to is an argument that mister dunbar should have been permitted to prevent excuse me to present a defense

[00:02:20] Speaker 01:
that he was not aware of the victim's age and that he'd been misled as to her age.

[00:02:27] Speaker 01:
But that seems to be foreclosed by our decision in Davis, which says if the government proves a reasonable opportunity to observe the victim, then it's relieved from proving the defendant's knowledge or recklessness regarding the victim's age.

[00:02:42] Speaker 01:
So it's beyond dispute that he had a reasonable opportunity to observe her.

[00:02:47] Speaker 01:
So how does his I didn't know defense survive Davis and in fact the language of the statute itself?

[00:02:54] Speaker 02:
In Lindsay, the Ninth Circuit indicated that section 2423 G was a viable defense against 2423 A, transportation for commercial sex of a minor.

[00:03:13] Speaker 02:
That's what Mr. Dunbar was trying to get the courts to allow him to present to the jury that he had clear and convincing evidence, which is required under 2423G, that he reasonably believed she was 21 years of age.

[00:03:32] Speaker 02:
The courts denied that based on the case of US versus Taylor.

[00:03:37] Speaker 02:
And Taylor indicated that the, essentially,

[00:03:41] Speaker 02:
or 2423A, the government did not need to prove knowledge of age.

[00:03:47] Speaker 02:
However, Taylor did not prohibit, and Taylor was decided in 2001.

[00:03:56] Speaker 02:
Section G was added in 2019.

[00:04:03] Speaker 02:
Obviously, the Congress knew that Taylor existed.

[00:04:07] Speaker 02:
That subsection was not prohibited by Taylor

[00:04:12] Speaker 02:
raising a defense by a separate independent statute or subsection of the statute.

[00:04:19] Speaker 02:
One looks at the totality of the evidence of the opportunity to observe.

[00:04:28] Speaker 02:
That's not done in a vacuum.

[00:04:32] Speaker 02:
Based on Lindsay's comment by the Ninth Circuit that 2423G likely applies to 2423G.

[00:04:42] Speaker 02:
23A and given the fact that the reasonable opportunity to observe requires someone to see what the facts are that they are observing and to assess for themselves whether or not that leads to a reasonable conclusion that the person is younger than 18 years old.

[00:05:04] Speaker 02:
When one looks at all of the circumstances that Mr. Dunbar

[00:05:10] Speaker 02:
had to observe, it all leads to the indication that she was 21 years old.

[00:05:18] Speaker 02:
She even mentioned to Detective Pena that, you know, I look 21 years old.

[00:05:24] Speaker 02:
I tell everybody I'm 21 years old.

[00:05:27] Speaker 02:
And when I have my makeup on, when I'm dressed, people believe she's 21 years old.

[00:05:37] Speaker 02:
For those reasons, I believe that there was a reasonable opportunity to observe, although we also indicate in our first argument that the indictment was constructively amended by the jury instruction that included 1591C, the reasonable opportunity to observe.

[00:06:03] Speaker 02:
because it was not really charged in the indictment.

[00:06:07] Speaker 01:
Okay, so I want to back up a minute to your 2423G argument.

[00:06:12] Speaker 01:
So 2423G applies by its terms to a prosecution under this section based on illicit sexual conduct as defined in subsection F2.

[00:06:23] Speaker 01:
So there's some pretty specific statutory language with definitions.

[00:06:27] Speaker 01:
And then that phrase, illicit sexual conduct, is used in various subsections of 2423, B, C, and D, but not subsection A, which is the charge defense.

[00:06:40] Speaker 01:
So you want us to then apply 2423G to subsection A, even though by its own terms it doesn't seem to apply.

[00:06:50] Speaker 02:
It doesn't seem to matter because 2423G

[00:06:54] Speaker 02:
gives the definition of illicit sex conduct.

[00:06:57] Speaker 02:
And that is found in section F2, which relates to, which then refers to section 1591.

[00:07:03] Speaker 02:
1591 to D3 indicates that illicit sexual conduct includes any sexual act where one receives or provides money.

[00:07:18] Speaker 02:
2423A,

[00:07:24] Speaker 02:
charges prostitution, which is a commercial sex act.

[00:07:27] Speaker 03:
So why doesn't A say, unlike B, C, and D, illicit sexual conduct?

[00:07:33] Speaker 03:
Doesn't Congress trying to make a distinction between B, C, and D that illicit sexual conduct is required for those but not for A?

[00:07:42] Speaker 02:
Well, I think, Your Honor, that same inquiry is why would they have a distinct subsection where they go to the trouble of defining

[00:07:53] Speaker 02:
illicit sexual conduct as the basis for mounting this defense.

[00:08:00] Speaker 02:
And under that subsection of 2423G, Congress has very specifically included A in the section which it says this section provides a defense if you can prove it by clearing convincing evidence.

[00:08:20] Speaker 03:
But A charges, among other things, prostitution.

[00:08:24] Speaker 03:
B, C, D does not require proof of prostitution.

[00:08:28] Speaker 03:
It requires travel with intent to engage in illicit sexual conduct, engaging in illicit sexual conduct in a foreign place, illicit sexual conduct in certain organizations.

[00:08:41] Speaker 03:
So there you do have to prove

[00:08:43] Speaker 03:
illicit sexual conduct, and we get the defense that is also provided.

[00:08:48] Speaker 02:
But none of that is allowed or even provided in the text of the statute for A. But subsection G indicates this is a defense to 2423.

[00:09:00] Speaker 02:
It doesn't say it's a defense to 2423 BC.

[00:09:05] Speaker 02:
I'm not reading that.

[00:09:07] Speaker 03:
Maybe I'm looking at the wrong version of it.

[00:09:09] Speaker 03:
What exactly does G say?

[00:09:12] Speaker 02:
G indicates that this defense of reasonable belief that the minor is not a minor, is older than 18.

[00:09:24] Speaker 03:
Doesn't the beginning of that phrase, doesn't the beginning of that paragraph read, in a prosecution under this section based on illicit sexual conduct?

[00:09:32] Speaker 02:
That's correct.

[00:09:33] Speaker 03:
Okay.

[00:09:33] Speaker 03:
So for B, C, and D, you have to have illicit sexual conduct.

[00:09:37] Speaker 02:
You don't have to have that for A, therefore the defense doesn't apply to A. But G defines what that segment, what that section, what illicit sexual conduct is.

[00:09:52] Speaker 02:
So if it wanted to exclude A, it would...

[00:09:55] Speaker 02:
Obviously, it didn't have to say anything because the other B, C and D had illicit sexual conduct within their language.

[00:10:03] Speaker 02:
But G actually defines what it means by illicit sexual conduct and that refers to subsection F2 and 1591 D3.

[00:10:17] Speaker 02:
And I think that if they had not and if 1591 D3 had not said

[00:10:26] Speaker 02:
If this covers anything that is of sexual conduct, where someone receives or gives something of value, prostitution is that.

[00:10:37] Speaker 02:
And therefore, prostitution fits into that category of illicit sexual conduct under 2423G.

[00:10:50] Speaker 01:
All right.

[00:10:52] Speaker 01:
Thank you.

[00:10:52] Speaker 01:
We've taken a little bit over time, and I don't recall that you requested time for rebuttal, but I will give you a couple of minutes.

[00:10:59] Speaker 01:
All right.

[00:11:00] Speaker 02:
I think there's just one minute that was requested.

[00:11:02] Speaker 02:
Thank you.

[00:11:07] Speaker 00:
May it please the court, Benjamin Hawley for the United States.

[00:11:09] Speaker 00:
As to the 2423A, it is a standard canon of statutory construction that when a specific defined phrase is used in parts of a statute and not in another part, then it only

[00:11:20] Speaker 00:
Anything referencing that only applies to those parts where it is used.

[00:11:23] Speaker 00:
The affirmative defense specifically references illicit sexual conduct, which is not a phrase used in subsection A. And that is why every circuit to consider the issue has held that the affirmative defense does not apply to that subsection.

[00:11:37] Speaker 00:
That was the section that was charged here, and therefore it does not apply to Mr. Bentley.

[00:11:42] Speaker 03:
What would be the reason for that?

[00:11:44] Speaker 03:
Why wouldn't Congress allow that affirmative defense for a charge under A?

[00:11:49] Speaker 00:
Because B, C, D, and E are all focused on the defendant traveling or moving, going to someone for the illicit sexual conduct.

[00:11:57] Speaker 00:
Subsection A is instead transporting the minor for interstate or foreign commerce for prostitution or something.

[00:12:05] Speaker 03:
But if they don't reasonably know that that person's a minor, why wouldn't that defense, I mean, what would be the rationale that Congress would have had for not putting that defense in for A?

[00:12:17] Speaker 03:
I'm not following that.

[00:12:18] Speaker 00:
Sure.

[00:12:19] Speaker 00:
So I believe it was the Seventh Circuit case we cited in our brief, and I'm sorry I don't have the name on the top of my head, said that in that situation the defendant is already doing something illegal.

[00:12:27] Speaker 00:
They're trafficking someone across state lines for the purposes of prostitution.

[00:12:33] Speaker 00:
That that person ends up being a minor is essentially the defendant's assuming that risk and the onus is on them to, I suppose, be extra sure that the person they're transporting already illegally is not a minor.

[00:12:43] Speaker 00:
So to the extent we balance those risks, Congress decided to put that on the defendant as opposed to the government proving that.

[00:12:49] Speaker 00:
Similar rationale applies to 1591 under count one that subsection C specifically says, as long as there's a reasonable opportunity to observe, then we do not have to prove actual knowledge or reckless disregard of age.

[00:13:01] Speaker 00:
And again, that was charged in the indictment.

[00:13:03] Speaker 00:
It was litigated at length pre-trial.

[00:13:05] Speaker 00:
It was in the jury instructions.

[00:13:06] Speaker 00:
There was no constructive amendment, even on de novo review, but certainly on plain error.

[00:13:12] Speaker 00:
I'm happy to answer any other questions the court may have.

[00:13:15] Speaker 01:
Thank you.

[00:13:16] Speaker 00:
Thank you.

[00:13:21] Speaker 02:
Just briefly, just briefly, this circuit in United States versus Lindsay clearly said that, quote, the Section 2423G defense likely applies to 2423 prosecutions.

[00:13:40] Speaker 02:
And there would be no reason for the circuit to take that position if it realized that 2423A

[00:13:49] Speaker 02:
did not have the specific language of illicit sexual conduct, knowing that subsection G has defined that terminology.

[00:14:02] Speaker 02:
And I would submit it at that.

[00:14:04] Speaker 01:
Thank you.

[00:14:05] Speaker 01:
I'm sorry, Judge, did you have a question?

[00:14:08] Speaker 01:
Thank you, counsel, both for your arguments this morning.

[00:14:11] Speaker 01:
And this case is submitted, and we are adjourned for this week.

[00:14:34] Speaker 02:
This court for this session stands adjourned.