[00:00:03] Speaker 01:
And our next case is United States versus Manuel Perez, case number 24-3040.

[00:01:01] Speaker 01:
You may approach.

[00:01:30] Speaker 03:
Thank you.

[00:01:31] Speaker 03:
Good morning, your honors.

[00:01:32] Speaker 03:
I'm Rebecca Abel.

[00:01:33] Speaker 03:
May it please the court?

[00:01:34] Speaker 03:
I represent Manuel Perez in this appeal.

[00:01:38] Speaker 03:
And by apologies, I have a little tickle in the throat.

[00:01:41] Speaker 03:
I would like to reserve three minutes for rebuttal, and I'll try and watch my clock.

[00:01:45] Speaker 03:
I'm going to focus my argument on the first two issues raised in the opening brief, which concern errors in the jury instructions.

[00:01:52] Speaker 03:
The first error was a constructive amendment to the 2242B statute, which was for abusive sexual contact.

[00:02:00] Speaker 03:
That statute includes six body parts, but only one was charged, the buttocks.

[00:02:05] Speaker 03:
I'll refer to it as the butt going forward.

[00:02:08] Speaker 03:
And this case really does revolve around whether Mr. Perez did or did not touch Eileen's butt.

[00:02:16] Speaker 03:
However, the jury instruction included six body parts, and of most issue here is one of them, which was the inner thigh.

[00:02:25] Speaker 01:
We're reviewing this under plain error, is that correct?

[00:02:28] Speaker 03:
Your honor, I do think there's a basis to review de novo.

[00:02:30] Speaker 03:
But for purposes of today's argument, I do believe that the defense has demonstrated plain error for the purposes of both the first and second issue, the constructive amendment.

[00:02:40] Speaker 01:
I mean, but it was an objective to below.

[00:02:41] Speaker 01:
Yes, you're correct.

[00:02:43] Speaker 03:
That's correct.

[00:02:44] Speaker 01:
OK.

[00:02:44] Speaker 03:
Yes.

[00:02:45] Speaker 03:
And I do believe that plain error has been established.

[00:02:48] Speaker 03:
As to the first, a constructive amendment for a long time in the case law was automatic reversal, regardless of whether it was de novo or plain error.

[00:02:57] Speaker 03:
And since then, the cases have demonstrated that there is a need to show prejudice.

[00:03:01] Speaker 03:
But that prejudice standard is not as substantial as it is in other contexts of just jury instruction error.

[00:03:10] Speaker 03:
And that's because any time there's evidence about the unindicted conduct, we can look to that unindicted conduct and wonder could or might have, and that is the standard, could or might have.

[00:03:22] Speaker 03:
the jury have convicted on that comment.

[00:03:24] Speaker 01:
So my concern with this argument or my skepticism about it is that I don't see any evidence at trial that the defendant touched one of the victims in the inner thigh.

[00:03:38] Speaker 01:
And so I think inner thigh was what you were keying in on and it was one of the listed phrases in the instruction, but there wasn't any evidence adduced about inner thigh, was there?

[00:03:49] Speaker 03:
Yes, Your Honor.

[00:03:49] Speaker 03:
I do believe there was.

[00:03:50] Speaker 03:
And I just want to step back for a second.

[00:03:52] Speaker 01:
About inner thigh or touching the outer thigh?

[00:03:56] Speaker 01:
What was that evidence?

[00:03:57] Speaker 03:
Your Honor, specifically, thigh was mentioned 15 times by Eileen.

[00:04:02] Speaker 03:
And specifically, that Mr. Perez moved his hand inward.

[00:04:05] Speaker 03:
And then at closing, the government did.

[00:04:07] Speaker 02:
I thought that inward referred to the rotation of his hand, not where he moved his hand on the victim's body.

[00:04:18] Speaker 03:
I think they were joint.

[00:04:19] Speaker 03:
I think I take your your honor's point, but I do think that those two things could easily be misconstrued in the first instance, but that the repeated references to thigh, which which were at issue.

[00:04:30] Speaker 03:
So as to Caitlin, all of the touches were allegedly honor around the thigh.

[00:04:35] Speaker 00:
Well, can I just jump in?

[00:04:36] Speaker 00:
I mean, remember the jury's hearing this after having heard the testimony of AAS.

[00:04:41] Speaker 00:
I think she reenacted it, right?

[00:04:43] Speaker 00:
She did a physical reenactment.

[00:04:45] Speaker 00:
So these words are not just in a vacuum.

[00:04:47] Speaker 00:
The jury has now seen and heard the victim describe exactly what she believed happened.

[00:04:54] Speaker 00:
That goes a long way to putting that jury instruction in context and eliminates confusion, doesn't it?

[00:05:00] Speaker 03:
I agree that there was reenactment by Eileen as well as by defense counsel, and there was an impeachment video played in which reenactment was done by a special agent.

[00:05:11] Speaker 03:
So there were multiple different efforts at reenactment, but I actually think that it encourages further confusion because it's very clear that there was a question about what body part was touched.

[00:05:21] Speaker 03:
The jury may have thought, I see a lot of fighting about the butt, but no one here mentioned the inner thigh.

[00:05:26] Speaker 03:
But you've talked about thigh dozens of times throughout this trial.

[00:05:30] Speaker 03:
And maybe the defense just conceded that point.

[00:05:33] Speaker 03:
I'm not really sure I understand.

[00:05:34] Speaker 03:
And I think that really goes to the heart of the question.

[00:05:37] Speaker 03:
There was a lot of conversation about what body part was touched.

[00:05:41] Speaker 03:
That was really one of the two fights of the trial.

[00:05:44] Speaker 03:
And given that there was so much discussion about thigh, one victim was only ever touched on the thigh, and the second victim had

[00:05:51] Speaker 03:
two separate touches, one of which was only on the thigh, and there was movement of the hand in an inward direction.

[00:05:57] Speaker 03:
I think that members of the jury could or might have reasonably been confused about, well, why aren't we just... Even when the government and their closing arguments focused on buttock?

[00:06:08] Speaker 03:
Yes, Your Honor.

[00:06:09] Speaker 03:
And I would point to the defense counsel, who honestly caused additional issues.

[00:06:14] Speaker 03:
He referenced at two separate points the multiple body parts in the statute, explicitly referencing the inner thigh, and didn't note that that wasn't charged.

[00:06:25] Speaker 03:
There was no correction offered by the court.

[00:06:28] Speaker 03:
He cites all the parts of the statute and just sort of asserts that they can't meet that burden.

[00:06:36] Speaker 01:
OK.

[00:06:37] Speaker 01:
What about your assault argument?

[00:06:38] Speaker 03:
Yes, Your Honor.

[00:06:39] Speaker 03:
So the second issue relates to the charge of simple assault.

[00:06:44] Speaker 03:
And it is a simple assault charge.

[00:06:46] Speaker 03:
The statute itself, 113A5, is a simple assault charge.

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And the law in the Ninth Circuit has been clear for 40 years that simple assault, as charged under the intent to frighten prong, now there are two prongs, an attempted battery and an intent to frighten.

[00:07:04] Speaker 03:
But here, the jury instruction, number 20,

[00:07:06] Speaker 03:
expressly charged only the intent to frighten element.

[00:07:11] Speaker 03:
And under that element, the case law has been clear, Skeet, Lamont, Jim, that it's a specific intent crime, and that it requires an intent to frighten, as the actual name requires.

[00:07:22] Speaker 03:
Acosta, a 2012 case, says this is an intent to frighten.

[00:07:29] Speaker 01:
Well, let me just ask you about what's been clear in the Ninth Circuit.

[00:07:36] Speaker 01:
refers to the simple assault as a specific intent crime.

[00:07:41] Speaker 01:
And Lamott recognizes that at common law, that would be the case.

[00:07:46] Speaker 01:
But Lamott spoke about a different, one of the statutory provisions and called that a general intent crime.

[00:07:52] Speaker 01:
And I think we've had an unpublished case that notes this confusion as to whether this simple assault under the statute is a general intent or a specific intent crime.

[00:08:05] Speaker 01:
I don't think it's clear, but tell me what you think about that.

[00:08:08] Speaker 03:
I do think it's clear.

[00:08:09] Speaker 03:
The Lamont case dealt with the assault by strangulation, which is under the section 113, but is a completely different prong.

[00:08:17] Speaker 03:
And it then goes down the analysis of why that one is different.

[00:08:21] Speaker 03:
That's why Lamont discusses simple assault.

[00:08:24] Speaker 03:
And I want to be clear that the statute itself says the word simple assault.

[00:08:28] Speaker 01:
And when we have the word simple come joined by assault we import the common-law understanding of that and and I would point well I mean I guess what you know going back to Lamont Lamont talked about how that is generally true but in that case where that statutory provision assault by strangulation did not have the phrase with intent to

[00:08:49] Speaker 01:
It construed that among for other reasons as being a general intent crime and here the simple assault It's the same thing.

[00:08:56] Speaker 01:
It's it's not one of those phrases that has with intent to

[00:09:00] Speaker 03:
But it does, and I would point the court to Jim, which Jim points out that it actually includes the phrase willfulness.

[00:09:06] Speaker 03:
And willfulness implies a specific intent.

[00:09:08] Speaker 03:
That's what Jim says.

[00:09:10] Speaker 01:
But that's the other prong, right?

[00:09:11] Speaker 01:
That's not the prong that we're dealing with.

[00:09:13] Speaker 03:
No, Your Honor.

[00:09:13] Speaker 03:
The court in Jim imposes the willfulness on both prongs.

[00:09:20] Speaker 03:
Jim dealt with a 111 statute, a federal officer case, assault on a federal officer.

[00:09:25] Speaker 03:
And it goes through and says, why is 113 different?

[00:09:29] Speaker 03:
113 is different because it applied the common law definition, and it included a willfulness element.

[00:09:36] Speaker 03:
And then it defines why 111 is different, because it includes no such willfulness requirement.

[00:09:42] Speaker 03:
And I think when you read Skeet plus Jim plus Lamont, I believe in that order,

[00:09:47] Speaker 03:
the courts have reinforced what they have held all along, which is that the common law definition of intent to frighten requires exactly what the title implies, an intent to frighten.

[00:09:58] Speaker 03:
And I would point the court to Ornelas, O-R-N-E-L-A-S, which is a case dealing with attempted robbery, a different statute.

[00:10:07] Speaker 03:
But in that case, the court expressly held that because the statute imported the common law,

[00:10:14] Speaker 03:
all we need to do is look at the common law and if the common law says we have a specific intent requirement, that's sufficient.

[00:10:20] Speaker 03:
And found plain error based only on the fact that the common law is so required.

[00:10:25] Speaker 03:
Not pointing to the lengthy line of cases Skeet, Lamont, and Jim that we have here that do in fact say what the common law says, which is that intent to frighten assault does have a specific intent requirement.

[00:10:39] Speaker 01:
And I take it your argument then is if it is a specific intent crime then there are

[00:10:43] Speaker 01:
diminished capacity defenses and other things that could have been applied here.

[00:10:48] Speaker 03:
Yes, Your Honor.

[00:10:50] Speaker 01:
So let me just on that point.

[00:10:52] Speaker 01:
The defense here did bring forward quite a bit of evidence about diminished capacity and intoxication.

[00:11:01] Speaker 01:
So why would there be a substantial injury to the rights of the defendant here if much of that evidence already came into the trial?

[00:11:09] Speaker 03:
Because the jury instruction expressly precluded the jury from considering it.

[00:11:13] Speaker 03:
It said, and this was a jury instruction that was jointly proposed, that diminished capacity cannot be applied to the simple assault and can only be applied to the abusive sexual contact statute.

[00:11:25] Speaker 03:
That, in fact, was repeated by the government in its closing and, of course, repeated by the court in its statement of the jury instructions.

[00:11:31] Speaker 03:
So all that evidence that did come in was

[00:11:35] Speaker 03:
The jury was then told disregard as to the alleged offense against Caitlin at the time.

[00:11:40] Speaker 03:
You can't consider that.

[00:11:42] Speaker 03:
And so we know that evidence is there.

[00:11:44] Speaker 03:
And we know the jury was told not to consider it.

[00:11:46] Speaker 03:
And I think it raises pretty strong evidence that there was an absence of intent.

[00:11:54] Speaker 03:
And I'll address what I think often comes up.

[00:11:57] Speaker 03:
Well, they disregarded it as to the felony.

[00:12:00] Speaker 03:
There was an intent requirement as to the felony, and it was disregarded.

[00:12:03] Speaker 03:
But that intent requirement is drastically different than an intent to frighten.

[00:12:07] Speaker 03:
The government pursued that intent requirement as an intent to arouse himself.

[00:12:12] Speaker 03:
That is a very different type of intent than an intent to frighten, particularly when we're talking about intoxication.

[00:12:17] Speaker 01:
Let me ask you about the supervised release condition, the sort of limited ability for him to be able to see his daughters during this period of time.

[00:12:26] Speaker 01:
Why is that substantively unreasonable after the courts made its findings on bail and then replicated them and added to them at sentencing?

[00:12:36] Speaker 03:
So I think, as to substantiveness, which is what I hear the court asking, I really think Wolf Child makes very clear that you really need a record of a suggestion that Mr. Perez posed a sexual risk to his own daughters.

[00:12:48] Speaker 03:
And there's just no evidence of that here.

[00:12:50] Speaker 01:
But why does it have to be a sexual risk?

[00:12:52] Speaker 01:
Because, you know, he got himself intoxicated in front of his daughter.

[00:12:57] Speaker 01:
Autistic daughter I believe right and and the district court keyed in on that as a basis for saying you know He's not going to have Contact cut off, but it'll have to be with the supervision of mom for a period of time

[00:13:14] Speaker 03:
So I think that what the court failed to examine was all the relevant facts surrounding the relationship.

[00:13:20] Speaker 03:
There was an earlier order, that order predated by many months the ultimate sentencing in which there was substantial new evidence.

[00:13:27] Speaker 03:
And in neither the order nor at sentencing was there a discussion of the relationship that he had with his daughter and specifically the testimony from the wife in a penalty of perjury declaration from her that said she had no concern and did not want this condition.

[00:13:42] Speaker 03:
and in fact trusted him both before and after the alleged offense.

[00:13:46] Speaker 00:
But more importantly... Can I just jump in?

[00:13:49] Speaker 00:
I actually have some concerns about this condition.

[00:13:52] Speaker 00:
Let me make sure that I understand.

[00:13:54] Speaker 00:
Now, when we talk about the wife, that's his second wife, right?

[00:13:57] Speaker 00:
Not the biological mother of the defendant's autistic daughter.

[00:14:01] Speaker 00:
no it is she uh... her name is erica bolano she is the mother of the seven year old daughter but there was a reference to the defendant being the primary caretaker for his daughter for an older daughter so there was an older who now at this point would be eighteen honestly so less relevant so that that's helpful but i'm not i didn't quite understand the district court's basis for the restriction uh... now was it out of concern that he posed a threat of uh... sexually sexual misconduct with the daughter or

[00:14:31] Speaker 00:
was based on his fact that he seemed to have an alcohol problem.

[00:14:34] Speaker 03:
Certainly not the former there was zero evidence of any sexual risk to his daughters.

[00:14:40] Speaker 03:
In fact, this is as the Probation office went on at length.

[00:14:45] Speaker 03:
This is aberrant conduct.

[00:14:45] Speaker 03:
This is a single offender There is no evidence of any past allegations.

[00:14:49] Speaker 00:
It looked like he was on vacation and partied too hard I'm not excusing it at all.

[00:14:53] Speaker 00:
He what he did was completely I don't agree with you on the conviction I think it's gonna in my view should stand but the supervisor really seems a little much and I'm trying to figure out What is it that?

[00:15:04] Speaker 00:
that really drove the district court to that condition.

[00:15:07] Speaker 03:
Your Honor, I do think it was the latter of the two things you proposed, which was an alcohol concern.

[00:15:12] Speaker 03:
And to the extent there's an alcohol concern, there are alcohol conditions in place to address it.

[00:15:16] Speaker 00:
Typically, in supervised release, you enter a condition saying the defendant is barred from consuming alcohol.

[00:15:23] Speaker 00:
Correct, Your Honor.

[00:15:24] Speaker 00:
You don't go farther than that.

[00:15:25] Speaker 03:
Agreed, Your Honor.

[00:15:26] Speaker 03:
I think that would have been sufficient, particularly here where the concern was alcohol driven and that the conduct here undisputedly was a question about it.

[00:15:35] Speaker 00:
So if we came out that way, just on that one issue, what would you suggest?

[00:15:38] Speaker 00:
Would we remand for reconsideration of that condition?

[00:15:41] Speaker 03:
Your honor, I think this was very thoroughly considered.

[00:15:45] Speaker 03:
This is not for lack of her effort, the district judge consideration.

[00:15:50] Speaker 02:
I think it was designed to be punitive and therefore should just be struck as punitive is not a basis for... Wasn't the district court, in addition to the concern about the drinking, also concerned that this assault happened in the presence of

[00:16:06] Speaker 02:
your client's child.

[00:16:08] Speaker 02:
I mean, that seems a separate concern altogether.

[00:16:11] Speaker 03:
It also happened in the presence of nine other grown people.

[00:16:15] Speaker 03:
And so this is not a situation where it was secretive or hidden from her or really in any way involved her.

[00:16:22] Speaker 03:
She was physically present, as were other adults and children in the area.

[00:16:26] Speaker 03:
This is a jacuzzi on a cruise ship.

[00:16:28] Speaker 03:
There were many people in the area.

[00:16:30] Speaker 03:
So I don't know that that motivation would substantiate barring him from being in his home, the family home,

[00:16:37] Speaker 03:
all day and being required to be essentially chaperoned by his wife in any interaction with his daughters.

[00:16:45] Speaker 01:
I'm a little surprised to hear you say that you thought that the district court gave thorough consideration to it because I thought one of the procedural due process claims was that there needed to be more analysis at sentencing under Wolf Child

[00:16:59] Speaker 01:
and consideration of this extra material from the family and the wife, then was given for bail purposes.

[00:17:07] Speaker 01:
So aren't those two things running headlong into each other?

[00:17:10] Speaker 03:
Your Honor, I agree there could be more elucidation, but I don't know that... I do believe that the court reconsidered.

[00:17:17] Speaker 03:
She did not provide substantial additional reasoning at the time of sentencing.

[00:17:20] Speaker 03:
which I think would be helpful, but I don't know that even with all the reasoning in the world, we would end up in a world in which there was substantive reasonableness on this record, given that there is no evidence of any sexual risk or sexual abuse of any child that he was ever related to, or any risk of any sexual abuse other than the charges in this case.

[00:17:41] Speaker 00:
Okay.

[00:17:41] Speaker 00:
Can I just one... I know we're getting a little... So, for the supervised release condition,

[00:17:47] Speaker 00:
Was it a three-year term?

[00:17:49] Speaker 00:
All right.

[00:17:50] Speaker 00:
But the judge said after 12 months, the defendant could petition for reconsider.

[00:17:54] Speaker 00:
Where is he in that 12-month sequence right now?

[00:17:57] Speaker 03:
He's in custody until October.

[00:17:59] Speaker 00:
Oh, he's still in custody?

[00:18:00] Speaker 03:
He is, Your Honor.

[00:18:01] Speaker 00:
Hasn't even started yet.

[00:18:02] Speaker 03:
No.

[00:18:03] Speaker 03:
And in fact, that 12-month period would leave him not living in the family home for four and a half years, even if that early termination were provided for.

[00:18:11] Speaker 00:
And I actually think that 12 months... Why is that?

[00:18:14] Speaker 03:
Because he had the exact same condition during his bail during his bond and he was on bond during the entirety of this case.

[00:18:22] Speaker 01:
And so after his release, he would not be able to live in the family home either.

[00:18:26] Speaker 03:
Correct.

[00:18:27] Speaker 03:
And potentially for five additional years, the early termination.

[00:18:31] Speaker 00:
I'm sorry.

[00:18:31] Speaker 00:
I'm not following.

[00:18:32] Speaker 00:
I didn't see that.

[00:18:34] Speaker 00:
Why would he not be able to live at home for five years?

[00:18:36] Speaker 03:
If this condition were not terminated early in the 12-month period that is contemplated, it would prolong for the entire five-year period, which would leave him outside of the family home for eight and a half years.

[00:18:48] Speaker 03:
And I do want to be clear that I actually think that the 12-month period does more harm than good.

[00:18:53] Speaker 03:
As Your Honor knows, there is an early termination provision in the statute 15.

[00:18:57] Speaker 00:
You can always ask for early termination.

[00:18:59] Speaker 03:
Exactly, Your Honor.

[00:18:59] Speaker 03:
And in fact, such a condition does not require a psychological evaluation as this one does.

[00:19:05] Speaker 03:
So I actually think that the 12-month period imposes additional burdens on the defense that would not otherwise be available.

[00:19:12] Speaker 03:
And those burdens are substantial.

[00:19:13] Speaker 03:
Obtaining a psychological evaluation is complicated and difficult.

[00:19:17] Speaker 03:
But more importantly, it required the consent of the probation office.

[00:19:21] Speaker 03:
And Wolf Child itself said that interference of the probation officer in things like conditions that interfere with familial association

[00:19:28] Speaker 03:
Is it doesn't help the matter in fact it can encourage further abuses of discretion because we don't know what will or will not be permitted, okay?

[00:19:38] Speaker 01:
Thank you very much.

[00:19:39] Speaker 01:
We'll give you a little time for a bottle.

[00:19:40] Speaker 04:
Thank you Good morning your honors may it please the court have a morale on behalf of the United States and

[00:19:57] Speaker 04:
I want to begin here with the standard of review for the jury instructions.

[00:20:01] Speaker 04:
Judge Sanchez, I heard you gesturing toward whether plain error or de novo review applies here.

[00:20:09] Speaker 04:
The defense counsel has not made any argument for de novo review here.

[00:20:13] Speaker 04:
But even if she had, de novo review is not appropriate.

[00:20:16] Speaker 04:
This court's exception to the plain error rule applies only where there is a pure issue of law and no prejudice to the non-moving party.

[00:20:25] Speaker 04:
Here, the constructive amendment claim

[00:20:27] Speaker 04:
is a necessarily inherently factual claim.

[00:20:32] Speaker 04:
It's asking this court to comb the record and to decide whether there are any facts in the record that would have supported a conviction for touching any other body part than what was alleged in the indictment.

[00:20:43] Speaker 04:
That's a factual analysis that is inappropriate and does not fall within this court's exception to the plain error rule.

[00:20:50] Speaker 04:
Moreover, as this court recognized last week in Thompson,

[00:20:54] Speaker 04:
This rule is always discretionary, and it's particularly inappropriate to exercise it here in light of Rule 30D, which was specifically amended in 2002 after the Supreme Court's case in Jones, where the Supreme Court recognized, look, the way that Rule 30 was drafted at the time didn't actually maybe even barred any form of appellate review for forfeited jury instructions.

[00:21:19] Speaker 04:
We have always applied a plain error review for forfeit injury instructions.

[00:21:23] Speaker 04:
And then, lo and behold, in 2002, committee adds subsection D, which refers the court to 52B, which sets out the plain error.

[00:21:32] Speaker 01:
Ms.

[00:21:32] Speaker 01:
Miller, I think...

[00:21:35] Speaker 01:
I think we're with you on the plain error side of things, but I'm interested in the simple assault side of this and whether under plain error review the law was clearly established that this is a specific intent crime because I don't think it is at all and I wanted to hear your thoughts about that.

[00:21:52] Speaker 04:
I think we agree with you, Your Honor, that the law is not specifically established, that simple assault is perhaps not so simple after all, and that this is not a plain error.

[00:22:02] Speaker 04:
And I think the government's Rule 28-J letter highlights a case go bare.

[00:22:07] Speaker 04:
And in go bare, the interesting part there is that the court is saying, okay, what is the least violent form of an assault?

[00:22:16] Speaker 04:
And it's the assault we have charged here in the indictment.

[00:22:19] Speaker 04:
And the way the court defines the assault there is intentionally using a display of force that reasonably causes a victim to fear immediate bodily harm.

[00:22:27] Speaker 04:
That is the exact same language that the court used in its instruction for simple assault.

[00:22:33] Speaker 01:
And in Gobert... And you see that as a general intent crime, correct?

[00:22:38] Speaker 04:
Yes, Your Honor.

[00:22:42] Speaker 04:
Gobert can be interpreted to say, look, the words intentionally using a display of force

[00:22:48] Speaker 04:
is a threat to inflict injury.

[00:22:51] Speaker 01:
So if you interpret Gobert as saying... Right, but there's a difference in my mind between an intent to use force, an intent to act in some kind of way versus the intent to instill fear in another person.

[00:23:04] Speaker 01:
And if it's an intent to instill fear, then that's the specific intent to cause fear under the common law.

[00:23:09] Speaker 01:
But under the model penal code instructions that were here, I think it's just, it was what you just read under Gobert, isn't it?

[00:23:18] Speaker 04:
Yes.

[00:23:20] Speaker 04:
So I don't think that it's at all clear or the error, to the extent it is error, is plain at all.

[00:23:27] Speaker 04:
And I think defense counsel has been latching on to this one sentence of Skeet that is arguably dicta.

[00:23:34] Speaker 04:
But I think you actually have to look to the facts of Skeet to understand the significance or perhaps lack of significance in that sentence, which is

[00:23:42] Speaker 04:
You have Raymond shooting between Robert and Shirley.

[00:23:45] Speaker 04:
And it's not entirely clear from that factual record whether Raymond intends to shoot Robert or not.

[00:23:52] Speaker 04:
But surely, if Raymond had intended to shoot Robert, then there would be no question there's an assault there.

[00:23:58] Speaker 04:
But if he didn't intend to shoot Robert, he could still be found guilty of simple assault if he intended to at least threaten bodily injury.

[00:24:06] Speaker 04:
So I think Gobert and Skeet make clear that this

[00:24:09] Speaker 04:
may not be error at all, much less plain error.

[00:24:12] Speaker 04:
And I think the government reads cases like Lamott, Fleming, Sutton, Jim, and even the First Circuit's case in Bays to suggest that if this is error, it's not plain, because guess what?

[00:24:25] Speaker 04:
Few areas of the law pose more difficulty

[00:24:29] Speaker 04:
and the proper definition of the mens rea, especially the difference between general and specific intent, which has caused this court a good deal of confusion.

[00:24:39] Speaker 00:
You know, when we're dealing with statutes, we start with the language of the statute.

[00:24:44] Speaker 00:
Is there anything you see in 113, was it A5, that is in any way indicative, words that are indicative of a mens rea requirement?

[00:24:52] Speaker 04:
No.

[00:24:52] Speaker 04:
And thank you, Your Honor, for that question.

[00:24:56] Speaker 04:
There's no words, there's no kind of magic words that I think the First Circuit recognized in Bayes.

[00:25:01] Speaker 04:
In other subsections of 113, it uses a specific language of with the intent to.

[00:25:06] Speaker 04:
That's a big clue to the court that this is a specific intent crime.

[00:25:11] Speaker 04:
And that's why, for example, in the abuse of sexual contact, it does include the language with the intent to abuse, harass, humiliate, degrade, et cetera.

[00:25:20] Speaker 04:
That was very clearly a specific intent crime.

[00:25:22] Speaker 04:
I think this court's

[00:25:24] Speaker 04:
Jurisprudence on 113A5 did not give that same clear red light to the court of this is a specific intent crime.

[00:25:32] Speaker 04:
But even if this court finds that it was plain error, the defendant has not shown that it affected his substantial rights.

[00:25:39] Speaker 04:
And I think this is actually a really

[00:25:42] Speaker 04:
unique case in that the defendant was allowed to bring his diminished capacity defense with respect to the abuse of sexual contact claim and the jury rejected it.

[00:25:52] Speaker 04:
The jury found that he had the ability to form the intent to abuse, harass, humiliate, degrade Eileen.

[00:25:59] Speaker 04:
And there's no way that the jury would have said, OK, sure, he had these.

[00:26:03] Speaker 01:
But I mean, I take counsel's point.

[00:26:05] Speaker 01:
That's a different claim and a different set of allegations to that victim.

[00:26:09] Speaker 01:
And here, there was no allegation for this victim touching of an inappropriate area of the body.

[00:26:18] Speaker 01:
And so that's why I assume the government brought forward the simple assault offense rather than the inappropriate touching one.

[00:26:26] Speaker 01:
And if you can't have a diminished capacity defense,

[00:26:29] Speaker 01:
for this claim, why wouldn't that be prejudicial to the defendant?

[00:26:33] Speaker 04:
I'm sorry.

[00:26:33] Speaker 04:
Could you repeat the last part?

[00:26:34] Speaker 01:
I mean, if we were to agree with opposing counsel that this was clear that it should have been a specific intent instruction, I have a hard time seeing why it wouldn't have prejudiced the defendant based on the erroneous jury instruction.

[00:26:49] Speaker 04:
Well, I think at the most basic level, the jury found that the defendant had an ability to form an intent.

[00:26:56] Speaker 04:
And then the question becomes,

[00:26:58] Speaker 04:
What was that intent?

[00:27:00] Speaker 04:
With Eileen, the intent could have been abusing her, harassing her, humiliating her.

[00:27:05] Speaker 04:
And the jury found that.

[00:27:08] Speaker 04:
Katie, if this court decides that the standard is an intent to instill fear of bodily harm or threaten her, the evidence is there.

[00:27:16] Speaker 00:
And I would point the court... I just have to, you know, it's fairly basic that the jury has to decide every element of a charged offense.

[00:27:24] Speaker 00:
So if the charged offense is not a specific intent offense, they by definition did not decide the specific intent element.

[00:27:31] Speaker 00:
So I

[00:27:32] Speaker 00:
I agree with my colleague.

[00:27:34] Speaker 00:
I just don't see how that can't be anything but per se prejudicial.

[00:27:37] Speaker 00:
In other words, the defendant was essentially convicted of a crime for which he was not put on notice in the indictment and did not have an opportunity to consider his defense to and present arguments about a trial.

[00:27:49] Speaker 04:
Well, thank you, Judge Shinato.

[00:27:51] Speaker 04:
I think this court's plain error analysis still requires the jury, still requires for us to show, for example, harmlessness.

[00:28:02] Speaker 00:
And if we satisfy this harmlessness standard under Conti, that the omitted element from the jury instruction... I'm talking about cases like Apprendi and Alleyne, which do not have... you don't have to have a sort of a harmless error analysis.

[00:28:18] Speaker 00:
That's a violation of the Sixth Amendment.

[00:28:20] Speaker 00:
You don't have to say, well, was it harmless?

[00:28:22] Speaker 00:
That was something that I think Apprendi and Alleyne were crystal clear on.

[00:28:27] Speaker 04:
Yes, your honor and I'm happy to provide a 28 J letter to in that regard, but I believe just your thoughts will be I believe that you know Conti was a case where the jury instruction was omitted a portion of the jury instruction was omitted and here the court applied plain error and said look The government can show that this error was harmless beyond a reasonable doubt And therefore there's no this didn't affect the defendant's substantial rights and they still applied the plain error framework

[00:28:57] Speaker 04:
So in this context, beyond just the fact that the jury found that the defendant could form and did form the intent to, the requisite intent with respect to Eileen, it would have found it here and could have found it here with Katie and arguably that evidence was stronger because with Katie, actually there were three touches of Katie and in between touch two and three, Katie moved across the jacuzzi.

[00:29:24] Speaker 04:
her testimony was that she gave the defendant an intimidating look at that not an intimidating look a disapproving look at that point when she moved across the jacuzzi and she saw the defendant move away a little bit and that gave her the reassurance that hey Maybe this is over and that's when she returned to her seat and the defendant touched her for a third time That is evidence of intent there's always there's obviously that the

[00:29:51] Speaker 04:
The time when Katie got out of the jacuzzi and the defendant gave her an intimidating look and mouthed the words, don't tell to her.

[00:29:58] Speaker 04:
as she was getting out with her father.

[00:30:00] Speaker 04:
And that is corroborated by a third party with no relationship to Katie.

[00:30:05] Speaker 02:
I was going to ask about supervise.

[00:30:08] Speaker 02:
Yeah, I was as well.

[00:30:10] Speaker 01:
Okay.

[00:30:12] Speaker 02:
So can you just talk about or tell us where we can find an adequate justification for the imposition of a psychological evaluation before condition six can be modified after 12 months?

[00:30:26] Speaker 04:
Sure.

[00:30:27] Speaker 04:
I think, Your Honor, the court talked about it extensively during its two-hour sentencing hearing in this case, and the court specifically wanted the expertise of a psychologist to ensure that it was safe.

[00:30:43] Speaker 04:
to have the defendant return to full custody and full supervision of his daughter here.

[00:30:49] Speaker 02:
Why would that be reasonable in the absence of evidence that he poses a sexual threat to his children?

[00:30:54] Speaker 04:
Well, Your Honor, I don't read Wolf Child to say that he has to pose a sexual threat, and I don't think the district court either.

[00:31:00] Speaker 04:
I think the district court's findings were keyed towards the defendant's irresponsible parenting.

[00:31:05] Speaker 04:
and the fact that he presented a danger in the way that, just based on the evidence that was presented.

[00:31:12] Speaker 00:
Can I just jump in?

[00:31:13] Speaker 00:
Every criminal defendant with a family can be accused of irresponsible parenting.

[00:31:18] Speaker 00:
I have never seen a condition of this sort that goes to the essence of family life being imposed.

[00:31:26] Speaker 00:
And this was not the kind of egregious case that I typically see in my courtroom.

[00:31:31] Speaker 00:
I mean, it was a condemnable case.

[00:31:33] Speaker 00:
I agree with that.

[00:31:34] Speaker 00:
But this was not, you know, those extra steps I'm sure you're familiar with from your own practice.

[00:31:38] Speaker 00:
So your colleague here surprised me, and I think it makes some sense, that this is effectively a five-year ban from being at home.

[00:31:45] Speaker 00:
I did not appreciate that.

[00:31:47] Speaker 00:
The way it read to me was he could not visit, I think that was the word, between 10 a.m., 10 p.m.

[00:31:54] Speaker 00:
and 6 a.m.

[00:31:55] Speaker 00:
I just assumed, apparently wrongly, that that meant they'd be, you know, he couldn't go into their rooms at night, but he would still be in the house.

[00:32:02] Speaker 00:
Now, your colleague is saying that actually he's banned from the house.

[00:32:05] Speaker 00:
Now, I'd like to know your view.

[00:32:08] Speaker 00:
Can he live at home?

[00:32:09] Speaker 00:
Would he be violating his supervisor's release condition if he lived 24 hours, seven days a week at home?

[00:32:15] Speaker 00:
And if so, isn't that a massively disproportionate restriction?

[00:32:20] Speaker 04:
Well, Your Honor, I'd like to begin actually with a history of this condition.

[00:32:23] Speaker 04:
And this is a condition that the defendant affirmatively requested from the district court.

[00:32:28] Speaker 04:
And this was proposed in November after trial.

[00:32:32] Speaker 04:
The defendant asked if the court would impose this condition and the court granted his stipulation So the existence of this condition is because of the defendant's own making now to answer you mean from from bail release He was already out on bail, but when he asked for this condition was it subject to bail release procedure proceedings

[00:32:51] Speaker 01:
I'm trying to understand when he asked for this condition.

[00:32:54] Speaker 04:
He had asked, it was a modification after trial.

[00:32:56] Speaker 04:
So I believe, and I'd have to double check the record.

[00:32:59] Speaker 04:
Before sentencing?

[00:33:00] Speaker 04:
After conviction, before sentencing.

[00:33:03] Speaker 00:
Okay, that's totally different.

[00:33:04] Speaker 00:
That's still not sentencing though.

[00:33:05] Speaker 00:
Yeah.

[00:33:06] Speaker 04:
Sure.

[00:33:06] Speaker 04:
But the existence of this condition being in place originated with the defendant.

[00:33:11] Speaker 00:
No, I'm sorry, but that's so he could remain outside of custody.

[00:33:14] Speaker 00:
That's a totally different dynamic than post-trial sentencing.

[00:33:18] Speaker 04:
Sure.

[00:33:18] Speaker 04:
And I agree with that, Your Honor.

[00:33:21] Speaker 04:
But as for the particularized findings here, I think that I want to answer your question directly.

[00:33:28] Speaker 04:
My interpretation and the court's interpretation of these conditions is that he may only be at home between 6 a.m.

[00:33:34] Speaker 04:
to 10 p.m.

[00:33:35] Speaker 04:
He may not reside at home.

[00:33:36] Speaker 04:
And that has been the case.

[00:33:37] Speaker 04:
And I'm going to answer that very handily.

[00:33:39] Speaker 04:
But I think the court did, this is an extraordinary effort by the district court to make particularized findings based on evidence here.

[00:33:49] Speaker 04:
And it's not just that the child is autistic and nonverbal.

[00:33:53] Speaker 04:
It's also that he testified that his daughter liked to throw herself into bodies of water.

[00:33:58] Speaker 04:
They were in a jacuzzi.

[00:33:59] Speaker 04:
They were on a cruise ship.

[00:34:01] Speaker 04:
And this defendant, according to his own testimony, is getting blackout drunk.

[00:34:05] Speaker 04:
And then there's also the flight of the defendant, where he's throwing his stroller down a flight of stairs.

[00:34:10] Speaker 04:
There was so much evidence of trial of just irresponsible parenting.

[00:34:14] Speaker 04:
but with enough cognition to be able to manipulate.

[00:34:18] Speaker 00:
He wasn't convicted of irresponsible parenting.

[00:34:20] Speaker 04:
He was not, Your Honor.

[00:34:22] Speaker 00:
I just don't see how any district court has the business of saying for five years this man cannot live at home.

[00:34:28] Speaker 04:
And it's not a five-year ban entirely.

[00:34:31] Speaker 04:
The court recognized that that might be too harsh and therefore

[00:34:34] Speaker 04:
It built in this kind of check-in provision to say, at the 12-month mark, let's check in.

[00:34:39] Speaker 04:
And I think the court recognizes that, look, the transition back from prison to the community.

[00:34:44] Speaker 01:
Well, then why not make it one year?

[00:34:46] Speaker 04:
What?

[00:34:47] Speaker 01:
Well, then why not make it one year subject to extension?

[00:34:49] Speaker 01:
I mean, at this moment, it is a five-year condition unless it's modified by the district court.

[00:34:54] Speaker 02:
Right?

[00:34:55] Speaker 02:
And with a psychological evaluation on top of that.

[00:34:59] Speaker 04:
I'm sorry, I didn't hear you.

[00:35:00] Speaker 02:
And it has a psychological evaluation provision if he wants to try and modify it.

[00:35:05] Speaker 04:
Yes, it does have the psychological condition.

[00:35:08] Speaker 04:
I think the court was well within its discretion.

[00:35:10] Speaker 04:
Ultimately, this is an abuse of discretion standard.

[00:35:13] Speaker 04:
And the court, while this court may disagree wholeheartedly, that's not reason to reverse.

[00:35:18] Speaker 01:
Well, I mean, under Wolf Child, we pay very close attention to this sort of familial cutoff type release conditions.

[00:35:27] Speaker 01:
And one concern that I have is,

[00:35:29] Speaker 01:
And I agree that the district court was very thorough in the bail release stage of things, of analyzing this.

[00:35:39] Speaker 01:
But the court there also noted that it questioned whether Wolf Child would even apply in that context and then went on to kind of analyze it under Wolf Child anyway.

[00:35:48] Speaker 01:
But then when you get to sentencing where wolf child clearly applies There's no discussion about the family saying we don't need this.

[00:35:56] Speaker 01:
We don't want this We don't believe there's a concern of of this need for mother to supervise so constantly Was it inadequate for the court not to address those very specific pieces of evidence that had not come up?

[00:36:10] Speaker 01:
Well that had come up newly again and in sentencing

[00:36:13] Speaker 04:
So, your honor, I see a amount of time that I may answer.

[00:36:16] Speaker 04:
I think the court did address the quote-unquote new evidence that the defense counsel brought with respect to Ms.

[00:36:22] Speaker 04:
Bolanos' declaration and letters of support from friends and family.

[00:36:27] Speaker 04:
The court did read that.

[00:36:28] Speaker 04:
In fact, it stepped off the bench.

[00:36:30] Speaker 04:
in sentencing to consider the totality of all of that evidence and the totality of defense counsel's argument.

[00:36:36] Speaker 01:
But it didn't address it, did it?

[00:36:38] Speaker 04:
I mean, did the court... It did address it by basically changing what its original condition was going to be, which was a five-year term without any type of check-in or psychological counseling or psychological evaluation.

[00:36:51] Speaker 04:
And it said, look, at the 12-month mark, let's come back and reconsider this.

[00:36:54] Speaker 04:
And this court's case in Blinkensop, this court has recognized that that contributes towards the reasonableness of the condition.

[00:37:01] Speaker 04:
But ultimately, even under Wolf Child, while this court does give a close look, it says that this district court is in a better position.

[00:37:09] Speaker 04:
It has at its disposal all the evidence, its own impressions of the defendant, and it has wide latitude.

[00:37:14] Speaker 04:
And that is why the district court should be granted considerable deference.

[00:37:20] Speaker 00:
Listen, I'm all for district court discretion, but there are limits.

[00:37:24] Speaker 00:
Can I just ask one closing question?

[00:37:27] Speaker 00:
It's unclear to me what this psych report is supposed to do.

[00:37:30] Speaker 00:
I didn't see any diagnosis from somebody that he had a condition that the psych report was going to give an update on remediation or treatment or control, and bad parenting is not a psychological condition.

[00:37:44] Speaker 00:
I don't understand what the judge is looking for in this psych report that relates to

[00:37:50] Speaker 00:
the concern about not being a good parent?

[00:37:53] Speaker 04:
I think it's within the discretion of the court to seek professional input on this person's disposition post imprisonment during this volatile adjustment period of transitioning back to the community.

[00:38:06] Speaker 04:
Check in how he's doing.

[00:38:08] Speaker 04:
Look, this is a man who's willing to assault a 13 and 19 year old girl in a jacuzzi back to back in front of his daughter.

[00:38:14] Speaker 04:
I think the court was well within its discretion to have concerns about that and to seek professional guidance about that.

[00:38:20] Speaker 04:
And I think defendant himself also, you know, he's putting his mental condition.

[00:38:25] Speaker 00:
I'm not contesting the request.

[00:38:26] Speaker 00:
I just don't know what the content will be that would be useful.

[00:38:29] Speaker 00:
Do you have any insight into that?

[00:38:30] Speaker 04:
I don't have any insight, but surely the court requests it and believes that it would be helpful to its decision making and the district court is in the best position to make that assessment, Your Honor.

[00:38:43] Speaker 04:
Thank you.

[00:38:43] Speaker 04:
Thank you.

[00:38:48] Speaker 03:
Thank you, Your Honor, for the additional time.

[00:38:55] Speaker 03:
I do want to briefly hit the simple assault.

[00:38:58] Speaker 03:
And I understand the court to be asking, and it was a good question about the language of the statute.

[00:39:03] Speaker 03:
And I want to be clear, the statute has only two words, and they are simple and assault.

[00:39:07] Speaker 03:
So I think when you see those words, there's nothing to do except look to the common law.

[00:39:11] Speaker 03:
I don't really know what else we would do except look to the common law.

[00:39:15] Speaker 03:
And when we look to the common law, and the defense cited a treatise, lafave, and I'm going to L-A-F-A-V-E.

[00:39:22] Speaker 03:
I don't know if there's an accent on the E or not.

[00:39:25] Speaker 03:
That treatise, which this court has cited numerous times in Ornelas, went on at length about how much it respected and referred to that treatise in the context of a different common law statute there and attempted robbery, but wholeheartedly adopted the understanding of what the mens rea was.

[00:39:41] Speaker 03:
And they are finding a specific intent element from the common law in which it looked to a treatise.

[00:39:45] Speaker 03:
If you take those exact same steps here, we end up in the place in which there is a specific intent requirement for the simple assault.

[00:39:52] Speaker 01:
I think what's tough with your position, counsel, is that we could do that, but then why would it have been plain error for the district court to have just thought that up?

[00:40:01] Speaker 01:
when there's a model instruction that says general intent.

[00:40:06] Speaker 01:
And so I think that's the difficulty with reviewing this under a plain error review standard.

[00:40:11] Speaker 03:
Ornelas finds plain error and does exactly what the court defines.

[00:40:14] Speaker 03:
Exactly those steps, and Ornelas comes to the conclusion that it's plain error.

[00:40:17] Speaker 03:
Now, in the end, it doesn't find substantial rights were violated, but for the reasons you've already discussed, I think that that exists here.

[00:40:23] Speaker 03:
But it does.

[00:40:23] Speaker 03:
It says, well, what else was the court to do?

[00:40:25] Speaker 03:
You got to look at the common law.

[00:40:26] Speaker 03:
Not looking at the common law would be error.

[00:40:28] Speaker 03:
And we don't accept the model instructions and turn a blind eye and hope that they say what we want them to.

[00:40:34] Speaker 03:
I wish we could as a trial attorney.

[00:40:37] Speaker 03:
But often the model instructions are plain error.

[00:40:39] Speaker 03:
And in fact, in this court's decision in Perez, which is an en banc decision, many cases involve Paul, involve plain error model instructions.

[00:40:49] Speaker 03:
So I don't think that answers the question.

[00:40:51] Speaker 03:
In fact, it begs it.

[00:40:52] Speaker 03:
because the model instruction in a comment cites to skeet, it at least opened the door to let's look further at this question, and because there was so much evidence of intent here.

[00:41:02] Speaker 03:
There's some notice, right?

[00:41:03] Speaker 03:
We're talking about intent.

[00:41:05] Speaker 03:
We're having a voluntary intoxication fight.

[00:41:08] Speaker 03:
What is the intent requirement could have been considered with some effort.

[00:41:11] Speaker 03:
I do briefly want to talk about the supervised release condition, and I understand potentially some court's interest in going with the procedural error.

[00:41:20] Speaker 03:
It's the easy way.

[00:41:21] Speaker 03:
Make them say why again they want this condition.

[00:41:24] Speaker 03:
But I just don't think the record here, no matter how you read it, no matter what you look at, offers any support for this condition or any way that it could justify eight and a half years of Mr. Perez not being able to live with his family and not being able to be in the same room as his children without a supervisor.

[00:41:42] Speaker 03:
And I think that

[00:41:44] Speaker 03:
For that reason, a substantive reasonableness reversal would be appropriate.

[00:41:49] Speaker 03:
And that the history of the condition, in fact, makes it worse.

[00:41:53] Speaker 03:
As Your Honor noted, it was in a bail context.

[00:41:56] Speaker 03:
But more importantly, before that, he was completely prohibited from being with his family at all.

[00:42:01] Speaker 03:
He sought the modification so that he could have some time with his children.

[00:42:05] Speaker 03:
And now what he's seeking to do is to return home.

[00:42:07] Speaker 03:
With that, Your Honor would request reversal.

[00:42:10] Speaker 01:
Thank you.

[00:42:10] Speaker 01:
Thank you.

[00:42:12] Speaker 01:
And thank you both for your very helpful arguments.

[00:42:14] Speaker 01:
The matter will stand submitted and court is adjourned.