[00:00:01] Speaker 02:
Good morning.

[00:00:03] Speaker 02:
Kevin Rooney on behalf of the appellant, Mr. Todd Muma.

[00:00:07] Speaker 02:
I'd like to reserve three minutes for rebuttal, please.

[00:00:11] Speaker 02:
The indictment in this case was inadequate.

[00:00:14] Speaker 02:
It did not provide the required notice regarding the offense.

[00:00:18] Speaker 02:
It was not sufficient to apprise Mr. Muma of what he must meet, to use the language of the court's cases.

[00:00:27] Speaker 02:
It was essentially a form.

[00:00:29] Speaker 02:
You violated this statute.

[00:00:31] Speaker 02:
It was a what?

[00:00:32] Speaker 02:
Essentially a form.

[00:00:34] Speaker 01:
But haven't we said, like in the Woodruff case, that you generally can follow the language of the statute?

[00:00:40] Speaker 01:
And that was what was done here.

[00:00:42] Speaker 01:
There were general date ranges given and a general location for purposes of venue.

[00:00:50] Speaker 01:
I mean, there isn't, like, confusing or overlapping dates like in the Hilly case.

[00:00:54] Speaker 01:
Correct.

[00:00:55] Speaker 01:
So why isn't this sufficient under Woodruff?

[00:00:57] Speaker 02:
Because of two different things.

[00:00:59] Speaker 02:
One, the broad time range of the alleged offense or offenses, because that's one of the problems.

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Was there one visual depiction?

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Were there numerous?

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It's not set out.

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So one, it's a three-year time frame in a county.

[00:01:19] Speaker 02:
And the statute... But do they have to list?

[00:01:22] Speaker 01:
I mean, we see a lot of these cases, and sometimes they have hundreds of... Do they need to list all of the hundreds of them in the indictment?

[00:01:30] Speaker 02:
No, certainly not.

[00:01:32] Speaker 01:
Well, so they can generally describe the offense in a date range, and that's sufficient notice, isn't it?

[00:01:39] Speaker 02:
What the defense position is, is that the offense wasn't sufficiently described.

[00:01:46] Speaker 02:
The elements were set out.

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very broad date range was set out, a location that's somewhere in a 6,000 square mile county was set out, and that was it.

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And to be, and this is what I wanted to be delicate about.

[00:02:03] Speaker 03:
But it says he knowingly employ and use a minor to engage in any sexually explicit conduct.

[00:02:09] Speaker 03:
Correct.

[00:02:10] Speaker 03:
So I mean, how were you not on notice any conduct?

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I mean, you asked your client,

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I mean, is there any conduct that could fall within this?

[00:02:21] Speaker 02:
I think that's precisely the problem is that, and first of all, I want to be really clear.

[00:02:30] Speaker 02:
The constitutional, the test is whether this indictment is adequate on its face.

[00:02:38] Speaker 02:
It's certainly a bill of particulars doesn't solve it.

[00:02:42] Speaker 02:
Council's discovery efforts doesn't solve it.

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Council's discussions with the clients doesn't solve it.

[00:02:48] Speaker 02:
What we're talking about is, is this notice that at some point during a three-year period, you did something

[00:03:00] Speaker 02:
that you employed or used a minor to engage in some sexually explicit conduct.

[00:03:07] Speaker 01:
The statute covers a lot of different things, and it picks out employees' uses.

[00:03:13] Speaker 01:
It makes clear that this is a production offense.

[00:03:16] Speaker 02:
I don't know that that's clear, because it also says it was produced or transmitted.

[00:03:22] Speaker 02:
And that's another one of the problems.

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The statute is relatively complex.

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There's several, several different elements to it.

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And none of those, there was no facts

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asserted, no facts pled, with regard to any of the elements.

[00:03:42] Speaker 02:
I agree.

[00:03:43] Speaker 02:
All the elements are set forth.

[00:03:45] Speaker 01:
But here's the problem I'm having, going back to Woodruff.

[00:03:49] Speaker 01:
Woodruff says, with respect to an indictment, it quotes a case about information, but Woodruff is an indictment case.

[00:03:56] Speaker 01:
In the Ninth Circuit, the use of a bare bones information, that is, one employing the statutory language alone,

[00:04:04] Speaker 01:
is quite common and entirely permissible so long as the statute sets forth fully, directly, and clearly all essential elements of the crime to be punished.

[00:04:13] Speaker 01:
Why isn't this sufficient under that standard?

[00:04:16] Speaker 02:
So what the error, the error that the district court found in Woodruff was that the

[00:04:23] Speaker 02:
the impact on interstate commerce, that the indictment did not allege or specify the theory of how interstate commerce was impacted.

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And that was a tangential part.

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Woodruff was a

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Interstate interference with interstate commerce by robbery three and it's back in 1995 three jewelry stores are robbed six hundred and eighteen thousand dollars back in 1995 worth of jewelry is taken and the impact that's a

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marginal a tangential part of the offense, the impact on interstate commerce.

[00:05:06] Speaker 02:
Here, and what I put in the reply brave, was the heart of the offenses.

[00:05:12] Speaker 02:
What exactly was done?

[00:05:15] Speaker 02:
What's the sexually explicit conduct?

[00:05:18] Speaker 02:
What are the visual depictions?

[00:05:20] Speaker 02:
Were they produced?

[00:05:21] Speaker 02:
Were they transmitted?

[00:05:23] Speaker 02:
What instrument was used?

[00:05:25] Speaker 01:
It clearly says produced because I'm looking at the indictment and it says did knowingly employ and use a minor to engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct and the visual depiction was produced or transmitted using materials that had been mailed ship.

[00:05:48] Speaker 01:
You know, the interstate commerce element is either produced or transmitted, but we know that there's production.

[00:05:54] Speaker 02:
Correct.

[00:05:54] Speaker 02:
Correct.

[00:05:54] Speaker 02:
I agree with that.

[00:05:57] Speaker 01:
Can I ask you a question about the forfeiture issue?

[00:06:01] Speaker 01:
Yes.

[00:06:01] Speaker 01:
Do you agree that this dollar amount forfeiture here is a substitute forfeiture?

[00:06:10] Speaker 02:
I don't know that I agree that it's a forfeiture.

[00:06:14] Speaker 02:
It was a money judgment.

[00:06:15] Speaker 01:
Right, but the money judgment is on a substitute theory.

[00:06:18] Speaker 01:
The property to be forfeited was the house.

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The house was sold.

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The money is substituted for the house.

[00:06:25] Speaker 01:
Agreed.

[00:06:25] Speaker 01:
And therefore, okay.

[00:06:26] Speaker 01:
So why isn't there no jury trial in that case under 32.2E?

[00:06:38] Speaker 01:
Because E is a specific provision about substitute property.

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And it says there is no right to a jury trial under Rule 32.2e.

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So why wouldn't that be dispositive of that issue?

[00:06:56] Speaker 01:
I don't think anyone cited this, but we read the rules and it's right there in black and white.

[00:07:01] Speaker 01:
It says the government shows the property is subject to forfeiture under 32.2e1 and then it explains the procedure in e1

[00:07:12] Speaker 01:
is substitute property that qualifies for forfeiture under an applicable statute.

[00:07:16] Speaker 01:
So the rule seems to declare that there's no right to a jury trial if it's a substitute forfeiture and yours is a substitute forfeiture.

[00:07:26] Speaker 02:
You've put me on the spot a little bit by racism.

[00:07:30] Speaker 01:
Before you come up for rebuttal, maybe you can think of that.

[00:07:34] Speaker 02:
Where I think the distinction was, was the government clearly alleged in their forfeiture allegation, they also included substitute assets.

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And everyone agreed that had the defendant asked for a jury trial, he would have been entitled to a jury trial.

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That was the position in the district court.

[00:07:52] Speaker 02:
I see my time has expired with the reservation of time.

[00:07:56] Speaker 02:
We'll give you time for a bottle.

[00:07:58] Speaker 02:
OK.

[00:07:58] Speaker 02:
Thank you, Your Honor.

[00:07:59] Speaker 02:
Thank you.

[00:08:17] Speaker 00:
May it please the court, McKinsey Hightower, on behalf of the United States.

[00:08:21] Speaker 00:
Your honors, Woodruff, as you pointed out, is exactly on point in this case.

[00:08:25] Speaker 00:
The indictment was sufficient.

[00:08:26] Speaker 00:
It alleged what, where, when, and how the offense played out here.

[00:08:32] Speaker 01:
It doesn't even identify the victim.

[00:08:36] Speaker 01:
It doesn't even identify the location of the property.

[00:08:39] Speaker 01:
I mean, I understand that they can be bare bones, but this is about as bare bones as they come, isn't it?

[00:08:48] Speaker 00:
Your honor, I direct your attention to the Moreland case in the Ninth Circuit where they said that the specific victim of issue does not need to be specified because only, if you look to the Hamling case, only facts that are so specific as to guilt need to be specified.

[00:09:05] Speaker 00:
And minor has a legal definition and so does sexually explicit conduct.

[00:09:09] Speaker 00:
So for those reasons, they don't need to be any more specific.

[00:09:12] Speaker 03:
But so when you get, I mean, I guess, are you taking a little bit of a risk when you put in this kind of a bare bones indictment?

[00:09:21] Speaker 03:
Because presumably there could have been victims you weren't aware of.

[00:09:26] Speaker 03:
But if he got convicted on the ones you were aware of during this time period, and then there were victims you weren't aware of, would he be able to claim double jeopardy in a subsequent proceeding?

[00:09:38] Speaker 03:
Because he'd say, well, you didn't identify the victims.

[00:09:42] Speaker 03:
But, you know, I had five victims and, you know, I am therefore presumed to have been charged with all five of those, even though only, you know, one or two of them came up at trial.

[00:09:52] Speaker 03:
I mean, are you putting yourself at a risk?

[00:09:54] Speaker 03:
Does he have a broader double jeopardy claim in the future based on a bare bones indictment like this?

[00:10:01] Speaker 00:
Yes, Your Honor.

[00:10:02] Speaker 00:
He would have a very broad double jeopardy claim in the future.

[00:10:05] Speaker 00:
But I think it's also important to remember that in Russell v. United States, that's a Supreme Court case.

[00:10:10] Speaker 00:
They said that any future looking double jeopardy claims, you consider the entire record.

[00:10:16] Speaker 00:
So in this specific case, the defendant had over four years to know the exact victim in this case.

[00:10:22] Speaker 03:
I see.

[00:10:23] Speaker 03:
So he still, if there were five victims and only two were in this case,

[00:10:28] Speaker 03:
and three weren't mentioned at all, he would not actually get, he would not actually have a double jeopardy claim.

[00:10:34] Speaker 00:
According to the case law at issue here and your honors brought up notice as well and if you look to the record, the defense actually explicitly rejected a bill of particulars in their filings and if someone is so concerned with notice and ensuring that they know or adequate

[00:10:56] Speaker 00:
that he was not seeking a bill of particulars.

[00:11:08] Speaker 00:
Turning now to the forfeiture issue if there's no other questions to that.

[00:11:13] Speaker 00:
I just wanted to briefly correct some of the records.

[00:11:17] Speaker 00:
The Phillips case is directly on point here that states you can receive no jury determination on a money judgment.

[00:11:26] Speaker 03:
And... What about... Council, before he sat down, was suggesting that everyone had agreed that he would get a jury trial if this was a...

[00:11:42] Speaker 03:
under the forfeiture, he thought that everybody had agreed there would be a jury trial.

[00:11:47] Speaker 01:
But it's still been the House.

[00:11:48] Speaker 01:
He would have gotten a jury trial, correct?

[00:11:50] Speaker 00:
Yes, under 32.2 if it had been the house itself unsold.

[00:11:55] Speaker 01:
The whole thing comes down to the fact that this was a substitute property forfeiture.

[00:12:01] Speaker 00:
Exactly.

[00:12:01] Speaker 01:
And yet neither you nor the defense counsel cited the correct rule because it appears to me that this case is entirely governed by subdivision E of 32.2 which nobody cited, which deals with substitute property and says there's no jury right.

[00:12:19] Speaker 01:
Am I wrong in that?

[00:12:21] Speaker 00:
No, Your Honor, you're directly on point.

[00:12:23] Speaker 00:
And the government did allege in the forfeiture allegation any substitute property would be forfeitable.

[00:12:29] Speaker 00:
So for those reasons, we do believe that the issue would be foreclosed by 32.2E, as you pointed out.

[00:12:40] Speaker 00:
And if there's no further questions on any of the issues.

[00:12:42] Speaker 01:
Well, I do have a question about the forfeiture mootness about, because everyone agreed, and the government agreed,

[00:12:49] Speaker 01:
upfront that there was a miscalculation of the amount that $2,500 got double counted.

[00:12:56] Speaker 01:
And the government had said that it should go back for that correction.

[00:12:59] Speaker 01:
But then you file the 28-J letter where you said, oh, actually, it's now moot because it's all been paid out.

[00:13:06] Speaker 01:
And in his response, he said, well, actually, the government didn't say that.

[00:13:10] Speaker 01:
It's paid out because the government garnished it.

[00:13:13] Speaker 01:
And so the government was actually the one who took the amount.

[00:13:16] Speaker 01:
And you can remedy that by ordering them

[00:13:19] Speaker 01:
to undo what they did, what's the correct answer here?

[00:13:24] Speaker 01:
Are they right that it was due to a government garnishment of more than the amount that was warranted?

[00:13:30] Speaker 00:
No.

[00:13:30] Speaker 00:
Just to correct the record a little bit on that, Your Honor, so after lawful final order of restitution was imposed by the district court, the government did place an order of garnishment for $10,000, and then the defense themselves approached the government

[00:13:47] Speaker 00:
and said, we want to get restitution behind us.

[00:13:51] Speaker 00:
You can look to the record at page 46.

[00:13:54] Speaker 00:
And they said, instead of paying $10,000 a month, we want to actually pay $20,000 a month.

[00:14:01] Speaker 00:
And so they proposed doubling the amount that they wished to pay.

[00:14:05] Speaker 00:
And they were also, again, on notice.

[00:14:08] Speaker 00:
In our notice of garnishment, we reminded them that they had not requested a stay, which would have been their natural remedy if they believed there was an error in the restitution.

[00:14:16] Speaker 00:
And since they did not request a stay.

[00:14:18] Speaker 03:
When did the error come up?

[00:14:19] Speaker 03:
Did they know the error at the time, or did that only come up on appeal?

[00:14:23] Speaker 00:
That came up on appeal in their initial brief, Your Honor.

[00:14:27] Speaker 01:
So how was the final payment made?

[00:14:31] Speaker 01:
Was it voluntarily made by the defendant sent in the next round and that was the last one, or was there any sort of a garnishment?

[00:14:39] Speaker 00:
Due to do once we filed the order of garnishment and the defense came forward and we settled on in a double amount the restitution payments were expedited greatly and so Through this the joint settlement.

[00:14:53] Speaker 01:
They paid the last payment And all those payments were just voluntarily sent in including the overpayment Yes, your honor.

[00:15:03] Speaker 00:
Mm-hmm according to the joint settlement

[00:15:07] Speaker 00:
If there's no further questions, I'll give back the remainder of my time and ask the court to affirm the district court's findings.

[00:15:14] Speaker 03:
We'll hear rebuttal.

[00:15:20] Speaker 01:
Can you address this issue about the overpayment?

[00:15:23] Speaker 02:
Yes.

[00:15:25] Speaker 02:
So there's, of course, Mr. Muma has separate counsel on the civil matter that's pending.

[00:15:30] Speaker 02:
There's a civil lawsuit pending by the victim against him.

[00:15:35] Speaker 02:
The government filed the garnishment, and the civil council approached them.

[00:15:42] Speaker 02:
There was apparently $670,000 that was owed or was garnished that was impacted.

[00:15:50] Speaker 02:
Hold on.

[00:15:50] Speaker 03:
The $670,000 wasn't garnished, though.

[00:15:54] Speaker 02:
There was an I don't understand was there an order for six there wasn't no there were six hundred and seventy thousand dollars in total and The garnishment was for the whatever the amount was was for a lesser amount ten thousand dollars Whatever yeah, and I apologize.

[00:16:11] Speaker 02:
I'm not familiar with the exact amount civil council did exactly what council said he arranged for a $20,000 a month payment the

[00:16:23] Speaker 02:
payment of the lawful funds, there was a lawful debt that was being paid at $10,000 a month to Mr. Muma.

[00:16:30] Speaker 02:
He expedited it, paid the $20,000.

[00:16:33] Speaker 02:
That's the situation.

[00:16:36] Speaker 02:
After that payment was made, then the government agreed to release the garnishment.

[00:16:42] Speaker 02:
We can call that voluntary, we can call it, we can characterize that however we want.

[00:16:45] Speaker 03:
But the bottom line is the money wasn't obtained through a garnishment, it was obtained through a settlement.

[00:16:52] Speaker 02:
I would say the garnishment certainly expedited the settlement.

[00:16:57] Speaker 03:
I understand that, but they didn't get the money through a garnishment.

[00:16:59] Speaker 03:
Garnishment is when you go and you get a court order that the money is paid out.

[00:17:05] Speaker 03:
That didn't happen here.

[00:17:07] Speaker 02:
As I understood, and as I understood garnishment, perhaps I don't, is the money was frozen pending a final disposition or, for whatever reason, the person, the third party that had that money didn't pay it directly to the government.

[00:17:20] Speaker 02:
He suspended payments to Mr. Muma while the matter was resolved.

[00:17:26] Speaker 02:
And in any event, what the argument is, is that there's a pending civil lawsuit.

[00:17:36] Speaker 02:
There will be a remedy for Mr. Muma if this court says, one, clearly $2,500 is an arithmetical error that's been conceded, and two,

[00:17:47] Speaker 01:
this $30,000 is- So you're not necessarily asking us to order that that $2,500 be repaid.

[00:17:54] Speaker 01:
You say that if we correct the form of the order to say that the amount was wrong, that that'll have the collateral consequence in the civil context of making clear that he's overpaid and get an offset.

[00:18:08] Speaker 01:
Correct.

[00:18:08] Speaker 01:
Correct.

[00:18:09] Speaker 01:
That's exactly- And therefore it's not moot because that's some relief.

[00:18:12] Speaker 02:
Correct, partial relief.

[00:18:14] Speaker 02:
And then there's also a separate issue of there's $30,000 and I think a fair reading of the record is that some mixture of a down payment on the home and the temporary living expenses and only the temporary living expenses are properly ordered with regard to restitution.

[00:18:34] Speaker 02:
I'd like to turn... What about that issue though?

[00:18:37] Speaker 03:
Because, I mean, I agree it was a little bit ambiguous there.

[00:18:41] Speaker 03:
But what are we supposed to do with that?

[00:18:42] Speaker 03:
I mean, did you ask for a... I asked for a remand to the district court.

[00:18:46] Speaker 03:
But at the time, I mean, was there an objection?

[00:18:50] Speaker 02:
Yes.

[00:18:50] Speaker 02:
Yes.

[00:18:52] Speaker 02:
In district court, that was raised in district court.

[00:18:56] Speaker 02:
I believe it was oral.

[00:18:59] Speaker 03:
Then there must be more than what I just read.

[00:19:01] Speaker 02:
In the excerpt of record, there's definitely a comment by defense counsel

[00:19:07] Speaker 02:
about the down payment.

[00:19:09] Speaker 02:
I flagged that in the brief, and it is in the excerpt of record.

[00:19:13] Speaker 02:
And if I could turn to, again, the adequacy of the indictment.

[00:19:19] Speaker 02:
One of the questions you asked is the breadth of the double jeopardy is uncertain.

[00:19:24] Speaker 02:
And I think that really illustrates the adequacy of this indictment.

[00:19:28] Speaker 03:
Well, but it sounds like it's not really that uncertain.

[00:19:31] Speaker 03:
I mean, the government might be taking a greater risk that it's broader.

[00:19:36] Speaker 03:
If I understand it correctly, you look at the whole record, and so you'd be able to go through and parse this out, not just based on the indictment, but all the evidence.

[00:19:44] Speaker 02:
What I'm saying is the indictment should put Mr. Muma on notice.

[00:19:49] Speaker 02:
It's very clear.

[00:19:50] Speaker 02:
I agree that it's a fine call, because it's very clear in the law that he is not entitled to an exhaustive or detailed recitation of the facts, the evidence, et cetera.

[00:20:03] Speaker 02:
But our position, he's entitled to more than a bare-bones thing that's saying, sometime in the past three years, you violated this statute by actions you took in Fresno County.

[00:20:16] Speaker 02:
And that's just not consistent.

[00:20:19] Speaker 02:
It's very hard for him to establish a variance between the indictment and whatever trial evidence the government puts in because the indictment is so vague.

[00:20:31] Speaker 02:
It's frankly a fact-free indictment.

[00:20:35] Speaker 02:
Rule 7C1 talks about facts as necessary.

[00:20:38] Speaker 03:
So why didn't you ask for specificity?

[00:20:41] Speaker 02:
That was a...

[00:20:44] Speaker 03:
I'm sure there's some strategic reasons behind that, but admittedly you could have.

[00:20:51] Speaker 02:
Certainly.

[00:20:51] Speaker 02:
They certainly could have asked for a bill of particulars, but what counsel did in the district court and very correctly I think laid a great record was saying this indictment is inadequate on its face.

[00:21:05] Speaker 02:
It gives this man

[00:21:07] Speaker 02:
Little notice as possible.

[00:21:09] Speaker 02:
It's like we might as well just have a form that says here's the law you violated it and your violation Happened at some point in the past three years, and how you did it figured out And that's not what the Sixth Amendment.

[00:21:23] Speaker 02:
That's not what rule 7c requires, okay, okay?

[00:21:27] Speaker 03:
Thank you.

[00:21:28] Speaker 03:
Thank you.

[00:21:28] Speaker 03:
Thank you to both counsel for your arguments in the case the case is now submitted