[00:00:00] Speaker 05: We'll go on to the next case on the calendar, please. [00:00:02] Speaker 03: I appreciate your time, Your Honor. [00:00:03] Speaker 03: Thank you very much. [00:00:03] Speaker 05: Thank you. [00:00:04] Speaker 05: The next case is United States versus Sparks. [00:00:08] Speaker 05: That is case number 23-4066. [00:00:30] Speaker ?: Is that true? [00:01:04] Speaker 00: Good morning. [00:01:05] Speaker 03: I may please the court. [00:01:08] Speaker 03: Evgenia Parkman for the appellant, Kenneth Sparks. [00:01:10] Speaker 03: I'd like to reserve three minutes for rebuttal, and I'll keep an eye on the clock, Your Honor. [00:01:13] Speaker 05: Sure, go right ahead. [00:01:14] Speaker 03: I'll dive right into the Fourth Amendment issue, which is case dispositive. [00:01:18] Speaker 03: And it boils down to a woman's clothing is not a reason to suspect that she's a prostitute. [00:01:23] Speaker 03: Here, Officer Sparks stopped [00:01:25] Speaker 03: Mr. Officer Flannery stopped Mr. Sparks and his passenger for expired registration and questioned them about prostitution. [00:01:35] Speaker 03: It was around nine in the morning on a Tuesday at the Twin Peaks viewpoint on top of one of San Francisco's seven hills, a touristy place, not a time or a place associated with prostitution. [00:01:46] Speaker 05: But apparently a place where the police had had a number of car break-ins, they were worried about that? [00:01:51] Speaker 04: Correct, Your Honor. [00:01:54] Speaker 04: This is a tough one, I have to say. [00:01:56] Speaker 04: I mean, they come upon them, they have a probable cause to stop the car, and then they roll down the window due to officer safety reasons. [00:02:03] Speaker 04: That seems undisputed. [00:02:04] Speaker 04: And there's all kinds of indicia of prostitution with somebody who's dressed as a prostitute. [00:02:12] Speaker 04: So why wouldn't that arouse reasonable suspicion? [00:02:15] Speaker 03: Well, I think that we have to look at the case law. [00:02:17] Speaker 03: And the case law, when [00:02:20] Speaker 03: The crime that's being suspected is prostitution, generally requires at least one of three very broad factors to support suspicion of prostitution. [00:02:28] Speaker 03: And those factors are behavior that indicates solicitation. [00:02:33] Speaker 03: or a history of prostitution that's known to the officers. [00:02:36] Speaker 02: Well, you know, I remember you talked about this in your brief, so I think we're probably all familiar with that. [00:02:41] Speaker 02: The only thing that stood out to me when I read that in your brief is it seems like what you're really doing is summarizing what most of the cases have, but the reason they have that is because I'm guessing most of the cases involve somebody, you know, officers being in an area where prostitution normally happens, and so they, you know, they're dealing with the same players, all that. [00:03:01] Speaker 02: So all those factors that you talked about being [00:03:03] Speaker 02: typical in a case, it makes sense to those of you too. [00:03:05] Speaker 02: This is a little different because they're not there looking to bust prostitutes. [00:03:15] Speaker 02: They're there for a different reason, but they see the indicia. [00:03:18] Speaker 02: I think one of your arguments was, yeah, but there was a whole bunch of other stuff in the backseat too. [00:03:24] Speaker 02: There was other stuff. [00:03:30] Speaker 02: Does the case, it seems to me that if you see indicia of what you think is criminal activity and you see a bunch of other stuff, the other stuff doesn't really, doesn't really outweigh, you know, it's not like you, not like you, you know, if you see a bag of cocaine and you see a bunch of suitcases or something, you know, that look like you're, you don't be like, well, it looks like somebody's trapped. [00:03:48] Speaker 02: The cocaine is enough. [00:03:50] Speaker 02: So why is that not enough here that they saw some indicia that looked like [00:03:54] Speaker 05: I don't think you're challenging that. [00:04:01] Speaker 03: Correct your Honor. [00:04:01] Speaker 05: We'll follow up on Judge Van Dyke's question. [00:04:05] Speaker 05: Well, actually, first Judge Bessis. [00:04:07] Speaker 05: The next step is he asked him to roll down the window for officer safety. [00:04:09] Speaker 05: I don't think you're challenging that. [00:04:11] Speaker 03: Not in the reply brief. [00:04:12] Speaker 05: Okay, so then you get to Judge Van Dyke's point, which is what's seen in the backseat. [00:04:17] Speaker 05: Why isn't that enough, as Judge Van Dyke asked? [00:04:19] Speaker 02: Correct. [00:04:20] Speaker 05: To suspect prostitution. [00:04:21] Speaker 02: And specifically, I'm not sure why it helps. [00:04:26] Speaker 02: Sure, there's other stuff there, but I think your argument, as I understood it, was mostly, yeah, but there's a whole bunch of other stuff. [00:04:32] Speaker 02: But I don't think that's normally how we think of when you see an issue of [00:04:36] Speaker 02: criminal activity, you don't think, oh, but there's a whole bunch of other stuff, so that indicia should have been overlooked. [00:04:41] Speaker 03: I appreciate the court's point. [00:04:43] Speaker 03: And I think it's the indicia is tied to times and places where prostitution frequently occurs. [00:04:48] Speaker 03: And when you take things like clothing and money, which are the two items that Officer Flannery is referring to as indicia, [00:04:55] Speaker 03: And you're taking them out of, for example, the mission, the epicenter of prostitution in San Francisco. [00:05:00] Speaker 03: And you're taking them to the Twin Peaks viewpoint, where there's no testimony that prostitution has ever occurred there, that Officer Flaner or anyone else has observed prostitution. [00:05:08] Speaker 03: And you're saying that those things become indicia. [00:05:10] Speaker 04: Right. [00:05:11] Speaker 04: But I mean, there was testimony from the officers that the things that they observed in the backseat were things that are associated with prostitution. [00:05:18] Speaker 04: Not exclusively, but that's one thing they're associated with. [00:05:21] Speaker 04: And that they observed the demeanor of the passenger looking straight ahead, which was these are officers that have some training in sex trafficking. [00:05:29] Speaker 04: And that created a reasonable suspicion, which is the only thing we're asking here. [00:05:35] Speaker 03: But I think it's important that it's only Officer Flannery and his experience is tied to the mission where prostitution frequently occurs. [00:05:44] Speaker 03: It's not that far away. [00:05:45] Speaker 03: I mean, it's just up the hill. [00:05:48] Speaker 03: Sure, but I think he has to give an explanation. [00:05:50] Speaker 03: I think if we have a person wearing something and with clothes on, in particular clothes with cash, at night on a block where prostitution frequently occurs, then I think [00:06:02] Speaker 03: There is reasonable suspicion under the case law. [00:06:04] Speaker 05: But what we're grappling is the opposite. [00:06:06] Speaker 05: Why isn't there here? [00:06:08] Speaker 05: Why wasn't this in there? [00:06:08] Speaker 03: I guess one way of looking at it is two things I'd like to say. [00:06:12] Speaker 03: One is when you remove behavior, when you remove location, when you remove history, then the officer is just asking the question, is this the type of woman that looks like a prostitute? [00:06:23] Speaker 05: Well, he's not. [00:06:23] Speaker 05: He's not. [00:06:24] Speaker 05: He's got stuff in the back seat. [00:06:25] Speaker 05: It's not just any old stuff. [00:06:27] Speaker 05: It's pretty unique, right? [00:06:29] Speaker 05: Clear heels, a blue wig, cash is strewn about. [00:06:33] Speaker 05: And he sees a passenger who looks very young, who is, according to our record, staring straight ahead, very scantily clad in a red lace dress, very, very short, I think short enough that her underwear was showing. [00:06:48] Speaker 05: And it was chilly. [00:06:49] Speaker 05: So that looks odd. [00:06:51] Speaker 05: And he's got to be concerned about why wouldn't he be concerned about a young youth trafficking. [00:06:58] Speaker 03: I think in this situation, in this location, just a number of innocent explanations far outnumber the possible criminal explanation. [00:07:05] Speaker 03: They could have been doing an Instagram photo shoot. [00:07:07] Speaker 03: They could have been out all night. [00:07:08] Speaker 03: She could have been a stripper. [00:07:10] Speaker 03: That's just the way she could have liked the dress. [00:07:13] Speaker 03: They could make arrests, though. [00:07:15] Speaker 05: I think that's right. [00:07:16] Speaker 05: So they take the next step. [00:07:18] Speaker 05: again, because we're very concerned about a child. [00:07:20] Speaker 05: And then things, it just kept continuing. [00:07:23] Speaker 05: It seemed to me there was more and more and more, asking for the identification. [00:07:26] Speaker 05: The identification didn't check out. [00:07:29] Speaker 05: And you know the record, of course, very, very well. [00:07:32] Speaker 03: So the initial prolongation happened about two minutes in. [00:07:37] Speaker 03: At that point, the passenger was on her phone for the beginning of the stop. [00:07:44] Speaker 03: I think being on your phone is not really avoiding the officer or, I'm not sure if that's a fair inference to say that she was acting odd or very nervously when she's on her phone trying to stop. [00:07:55] Speaker 05: So is that the place you want us to pinpoint that two minutes was not reasonable, that first two minutes? [00:07:59] Speaker 03: Right, so the officer asks the passenger for her name and asks for identification and then asks the driver [00:08:07] Speaker 03: how they know each other. [00:08:09] Speaker 03: So that is prolonging the stop without reasonable suspicion of prostitution. [00:08:13] Speaker 05: But you think it's over right there. [00:08:14] Speaker 05: You think it's over. [00:08:15] Speaker 03: Absolutely. [00:08:15] Speaker 03: I think at that point the officer needs reasonable suspicion. [00:08:17] Speaker 03: And I think there's also a lot of unclarity in the record because the district court kind of went very quickly over this about what the officer observed when. [00:08:24] Speaker 03: And I think at the very least we need a remand to see if he saw the blue wig before the prolongation. [00:08:29] Speaker 05: I think I interrupted Judge Bress who was trying to ask a question. [00:08:31] Speaker 04: I was going to ask, you know, there were condoms in the vehicle also, but it seems that they were noticed later. [00:08:38] Speaker 04: So if they had been noticed earlier, initially would this be different? [00:08:44] Speaker 04: are certainly different. [00:08:45] Speaker 03: I think it would be a much closer question. [00:08:47] Speaker 03: I would have a much tougher argument that it's not reasonable suspicion. [00:08:52] Speaker 04: What's the difference? [00:08:55] Speaker 04: Condoms are associated with sexual activity, but we have lots of other things in the [00:09:00] Speaker 04: car that they interpreted, turns out absolutely correctly, as indicia of commercial sex activity, including the cash that's strewn all over the car. [00:09:11] Speaker 04: Most people don't have that in their car, just wads of cash all over the place. [00:09:16] Speaker 03: I don't think that's supported by the record. [00:09:18] Speaker 03: I think it's true that in his talking about what's going on, Officer Flannery's saying there's wigs all over the car, there's cash all over the car, but as [00:09:27] Speaker 03: If we look at the pictures, it seems like the cash is just in the passenger side panel. [00:09:33] Speaker 02: And all of the... I thought your argument was that you couldn't see the condoms from the driver's side in the passenger side panel, but I thought from the pictures that the cash was fairly evident. [00:09:47] Speaker 03: Yes, that's correct. [00:09:48] Speaker 02: I'm just saying that it's not strewn all over. [00:09:50] Speaker 02: If you lock up the bike car, you wouldn't see cash just laying around in the car. [00:09:55] Speaker 03: Well, but there's not testimony. [00:09:57] Speaker 03: I think if the testimony is, I observed so much cash, and in particular denominations, in a particular location that suggested to me, based on my experience and training, that it is the product of prostitution, especially when seen with whatever else. [00:10:15] Speaker 03: That would be one thing. [00:10:16] Speaker 03: But the declaration is, I observed cash. [00:10:19] Speaker 03: Not cash here, there, how much cash. [00:10:23] Speaker 03: It's just not clear from the record how much cash there is, where it is. [00:10:28] Speaker 03: And if we look at the actual evidence that's in the record now, we see that the cash is not all over the car. [00:10:34] Speaker 03: It's in a particular spot. [00:10:36] Speaker 02: So we're down to five minutes. [00:10:37] Speaker 02: And you're also a big thing in this case. [00:10:40] Speaker 02: I mean, I don't want to cut off the probable cause reasonable suspicion. [00:10:44] Speaker 02: The other big thing is your argument about the interpretation of the statute, and particularly, I think, the causation issues. [00:10:50] Speaker 02: Did you want to talk about that? [00:10:52] Speaker 02: I thought that was kind of an interesting and challenging issue. [00:10:57] Speaker 03: Yes, Your Honor, and particularly focusing on the causation. [00:10:59] Speaker 03: The statute requires the government to prove, it states, that the defendant must have knowledge or reckless disregard that [00:11:07] Speaker 03: the person will be caused to engage in a commercial sex act. [00:11:11] Speaker 03: Not that the person will engage as the district court instructs the jury, but will be caused to engage. [00:11:16] Speaker 03: And I think the be caused part has particular meaning. [00:11:19] Speaker 03: And the place to look for what it means is a different part of the Traffic and Victims Protection Act, the initial bill that introduced- Yeah, and it seemed to me your argument, just to cut to the nub, it seemed to me it was your time. [00:11:33] Speaker 02: will be caused, you wanted to point out that somebody else has to involve somebody else causing it, somebody other than the two actors, the trafficker and the third person. [00:11:46] Speaker 02: But when you're dealing with a minor, [00:11:50] Speaker 02: When you're dealing with it, why is it inappropriate to say if you're sending a minor in to engage in prostitution, and you know or are acting in reckless disregard of the fact that you're sending in a minor to engage in prostitution, then you know that they will be caused, because for minors, we don't think of them as being able to give consent, right? [00:12:12] Speaker 02: So there's a difference between minors, and so the minor will be caused to engage in prostitution, even if there's no [00:12:19] Speaker 02: third party pimp or if there's no, just the very fact that they will engage in prostitution means they will be caused, even if it's just the other person they're engaging in prostitution with. [00:12:29] Speaker 02: You see what I'm saying? [00:12:30] Speaker 02: They would be caused by that. [00:12:31] Speaker 03: I think it's ultimately a jury question, but I think there's two problems with kind of reading this not consent part as defining what will be caused mean, as sort of reading that language as a politically correct way of saying that a minor is never [00:12:46] Speaker 03: induced to engage in prostitution. [00:12:48] Speaker 02: I think the first- To be clear, I think that language applies both for minors and adults, right? [00:12:53] Speaker 02: That same language is in the statute if you had an adult who was violating it first, an adult who, because they were being coerced or against their will. [00:13:04] Speaker 02: Is that correct? [00:13:05] Speaker 03: No, the first part of the statute is if you're [00:13:09] Speaker 03: caused to engage by forced fraud or coercion, or if you're under 18 and caused to engage. [00:13:14] Speaker 03: But looking at the 7102, it actually says induced to engage by forced fraud or coercion, or under 18 and induced to engage. [00:13:21] Speaker 04: How much does this really matter? [00:13:22] Speaker 04: I mean, isn't there overwhelming evidence that the defendant caused her to [00:13:28] Speaker 04: engaged in prostitution, fully facilitated this by taking her all over the blades and by assisting and picking her up in Merced. [00:13:37] Speaker 04: We can have the legal argument about what causation means, and I tend to think Judge Chabrie did a nice job in trying to make sense of all this, but at the same time, isn't there an overwhelming indication that he was the cause of her engaging in commercial sex activity as a minor? [00:13:51] Speaker 03: No, Your Honor. [00:13:53] Speaker 03: The defense was that they were both independent sex workers and while they pooled their resources and he gave her some advice, neither was causing the other. [00:14:00] Speaker 03: And actually the government said it will not rely on coercion or even soft coercion theory of Mr. Sparks. [00:14:09] Speaker 04: harboring, transporting all the other actus reus that he knowingly engaged in. [00:14:14] Speaker 03: So I think that's the first part of the statute, and I think he did transport her for the purpose of prostitution. [00:14:20] Speaker 03: But the second part, the cause to engage, I'm saying, means that either he or someone else has to induce her to engage in the planned prostitution. [00:14:28] Speaker 04: And I want to return to... Well, I'm not sure. [00:14:31] Speaker 04: I mean, where are you getting that from the statute? [00:14:33] Speaker 04: Because there's a clause here that says force threats of force fraud coercion, but that doesn't apply for minors. [00:14:40] Speaker 03: Correct. [00:14:40] Speaker 03: So that part says caused by those things. [00:14:44] Speaker 03: And the second part says just caused to engage. [00:14:46] Speaker 03: And what I want to point the court to is what's now been codified as 22 USC 7102 subsection 11, which defines severe forms of trafficking. [00:14:58] Speaker 03: which comes from the same act and it says that severe forms of trafficking is where a person is induced to engage in [00:15:09] Speaker 03: prostitution through forced fraud or coercion, or is under 18 and is induced to engage in prostitution. [00:15:14] Speaker 03: And other courts, including Judge Smith on this court, have drawn the connection between that part of the TVPA and 1591, saying that what 1591 really prohibits is severe forms of trafficking, which shows that Congress used induced and cause as synonyms. [00:15:30] Speaker 03: And it's especially apparent if you look at the first part, that if you swap induced for cause in the forced fraud or coercion part, they would mean the same thing. [00:15:37] Speaker 03: So in the second part, [00:15:38] Speaker 03: induce, cosmos also mean induce. [00:15:40] Speaker 03: I want to return to one thing that Judge Van Dyke asked about this statute of minors not being able to consent. [00:15:48] Speaker 03: Minors not being able to consent. [00:15:50] Speaker 03: And I think that's a non sequitur for two reasons. [00:15:53] Speaker 03: One is this statute applies to persons who are under 18. [00:15:57] Speaker 03: In most states, the age of consent is either 16 or 17. [00:16:01] Speaker 03: not 18. [00:16:02] Speaker 03: So it applies even to people who can consent to sexual intercourse. [00:16:08] Speaker 03: And second, this statute deals with prostitution, which in 49 out of the 50 states is illegal anyway. [00:16:15] Speaker 03: So no one can consent to prostitution. [00:16:18] Speaker 03: So I think that this minors not being able to consent is not a useful way to determine what cause to engage actually means. [00:16:28] Speaker 03: I see that time. [00:16:28] Speaker 05: You are out of time. [00:16:29] Speaker 05: I'll put a little time on the clock when you come back. [00:16:32] Speaker 03: Thank you. [00:16:44] Speaker 01: Good morning, Your Honors. [00:16:45] Speaker 02: Kelly Bohl? [00:16:47] Speaker 02: I don't know if my colleagues want to start with [00:16:50] Speaker 02: with the reasonable suspicion. [00:16:52] Speaker 02: You got good morning. [00:16:54] Speaker 02: Judge Press is so nice. [00:16:55] Speaker 02: My hardest question for you guys, what about the mom who's taking their child to school knowing that they're very much opposed to it, but knowing that their child has this bad habit of being a prostitute after school hours. [00:17:14] Speaker 02: So the mother is transporting [00:17:18] Speaker 02: their child to school, knowing that that might happen, not wanting it to happen, or what about the halfway house that is feeding a child and therefore providing for them, not wanting them. [00:17:33] Speaker 02: So you understand. [00:17:35] Speaker 02: It seemed to me under the government's very, under your causation argument, as in your briefs, that those people would be roped in and be liable under the statute. [00:17:46] Speaker 02: What is your answer to that? [00:17:48] Speaker 01: Thank you, Your Honor. [00:17:49] Speaker 01: I want to answer Your Honor's hypotheticals directly, but I want to start by pointing to this is a challenge to the jury instructions that were given in this case, and Judge Chabria, in this case, actually gave stronger language, or arguably stronger language on the cause. [00:18:04] Speaker 02: Yeah, no, I know he gave, but your argument seemed [00:18:09] Speaker 02: more extreme than that. [00:18:10] Speaker 02: You're right, Justice Chaubert didn't accept that, but why is your argument defensible, I guess? [00:18:16] Speaker 01: Well, Your Honor, again, the government's argument is only that the jury instructions were not error here, but to answer, to go directly to Your Honor's hypotheticals, it is based on the government's reading of the plain language of the statute, but also on this Court's prior decisions. [00:18:29] Speaker 01: and specifically in order, and Judge Christen in particular is familiar with several of these, the Bachman case, the Hornbuckle case, and the Hines case. [00:18:38] Speaker 01: And I'll walk through each of those in just a moment, but again, to answer your honor's question directly, this court has analyzed the will-be-caused language in a few different instances, and one of the things that has been repeatedly said by this court and many other circuits are the exact points that your honor made to my colleague across the aisle, which is that Congress has clearly expressed intent [00:18:58] Speaker 01: to protect children from sex trafficking. [00:19:01] Speaker 02: They have, over the years, broadened the ability for the government to try to go after the entire... So, are you saying the mom or the halfway house would be liable under this statute, under the hypothetical I've given? [00:19:17] Speaker 01: Your Honor, it does depend on the facts of the circumstances, right? [00:19:20] Speaker 01: And so I want to both meet your hypothetical, but say that even in the hypothetical, we don't know all of the facts. [00:19:26] Speaker 05: Well, in his hypothetical, because I think that's the one you need to answer, please. [00:19:29] Speaker 05: In his hypothetical, the mom is regretful of this, transports the child, doesn't wish for this to happen, but knows it's going to. [00:19:39] Speaker 01: Your Honor, it would depend on whether or not the mother, knowing or reckless disregard, that her daughter will be caused to engage in sex trafficking. [00:19:48] Speaker 04: There's something, the statute is weirdly written, because it says will be caused to, and something is causing that. [00:19:56] Speaker 04: So what is the something? [00:19:57] Speaker 04: And it seems like it has to be what's the actus reus that's in A1 that you have to knowingly undertake. [00:20:05] Speaker 04: that one would think that a mother who transports someone to the blade may result in, may cause, maybe perhaps on those facts, that person will be caused to engage in illegal sex activity, but someone who takes somebody to school, knowing that later they may take an Uber to the blade, maybe will not. [00:20:28] Speaker 04: And that, we have to read something into will be caused. [00:20:31] Speaker 04: We've got to give some meaning to that. [00:20:33] Speaker 04: It's hard to see how it would be totally detached from the actus reus, if that's the government's argument. [00:20:37] Speaker 04: That seems unpersuasive, but I'm not sure that it is. [00:20:39] Speaker 01: Well, again, Your Honor, the government's argument is simply that the jury instructions did adequately capture the statute, and Judge Cabrera required as a result of, so he did require a tie. [00:20:51] Speaker 04: But do you think that was, I mean, you thought that was overkill? [00:20:55] Speaker 01: Your Honor, it's just simply that that is more protective under the government's reading. [00:20:59] Speaker 02: Well, the reason I'm asking this is because your argument is that Judge Chabria's instruction was incorrect, right? [00:21:07] Speaker 02: It was too protective. [00:21:09] Speaker 02: But if you don't go with his instruction, if you go with your position, then, you know, let's take the... If there's too much distance for the mom taking the child to school, there's the halfway house. [00:21:19] Speaker 02: Like, literally, the reason they exist is to try to help these youth who are engaged in prostitution. [00:21:25] Speaker 02: They do not want them to be involved in prostitution, but they know that some of them are going to do it. [00:21:28] Speaker 02: So they feed them, and they give them a place to sleep. [00:21:30] Speaker 02: And they know that they are facilitating prostitution. [00:21:36] Speaker 02: Or the argument could definitely be made that they are facilitating prostitution. [00:21:39] Speaker 02: So how could they not? [00:21:42] Speaker 02: It's assumed, for the sake of the hypothetical, that it's 100% clear. [00:21:47] Speaker 02: Everybody agrees. [00:21:47] Speaker 02: They do not want these kids engaging in prostitution. [00:21:51] Speaker 02: But it seems to me, under your argument, [00:21:55] Speaker 02: they would be pulled in. [00:21:58] Speaker 02: So why is Judge Chabria's answer to that not the correct answer? [00:22:03] Speaker 02: I mean, that's not just, that helps us in deciding this case. [00:22:07] Speaker 02: If that's the correct answer, then that's what the instructions should be going forward so that in a future case, we don't end up with somebody, you know, somebody's making these arguments and the facts aren't, and the instructions aren't so helpful to the government. [00:22:22] Speaker 01: Well, Your Honor, I want to start by saying I respectfully disagree. [00:22:25] Speaker 01: The government does not think that Judge Chabria got the instruction wrong. [00:22:29] Speaker 02: I think his instruction was too, you know, added too much causation, required too much causation. [00:22:36] Speaker 01: Well, Your Honor, the best I can do is the hypotheticals Your Honor provides, and of course, my colleague across the aisle, are unsupported in any case law or prosecution that has been brought to... Is that your argument? [00:22:47] Speaker 02: I mean, maybe one that, yeah, that would be covered under the law, but no prosecutor would ever bring that case. [00:22:53] Speaker 02: Is that...? [00:22:54] Speaker 01: Your Honor, I think that there is nothing that the defense has pointed to to show otherwise, and I would point the court, if I may, to the 11th... It's a little frightening, though, to have like a statute that [00:23:04] Speaker 02: that pulls in, I mean, it does seem, nobody would think that that's what Congress wanted to, you know, that's what they meant to criminalize. [00:23:15] Speaker 02: And so it seems to point out that maybe there's a problem with the interpretation statute. [00:23:20] Speaker 02: That's why I'm fixated on this. [00:23:23] Speaker 01: Your Honor, if I may, I would respectfully disagree that there's no indication that Congress would intend this. [00:23:29] Speaker 01: I believe that Congress intended to give [00:23:31] Speaker 01: a broad tool to combat the entire apparatus of sex trafficking. [00:23:34] Speaker 02: Congress did not mean to criminalize parents who have a wayward child, where the parent is still doing something to support and help that child, knowing they're doing that thing but wishing they weren't. [00:23:47] Speaker 02: And I'm sure they didn't mean to do halfway houses, criminalize halfway houses either. [00:23:51] Speaker 02: Is that your position? [00:23:51] Speaker 01: But your honor, if I may, to point to the Hornbuckle case that was before this court, sometimes the most nefarious types of these cases [00:23:59] Speaker 01: do involve a parent, and it may not be the loving parent that the hypothetical that your honor posed, but it may be the parent that is forcing the child into sex trafficking and taking some of the proceeds. [00:24:09] Speaker 01: Right. [00:24:09] Speaker 02: So, exactly. [00:24:10] Speaker 02: So if there's a parent that is doing it, what is the distinction between those? [00:24:14] Speaker 02: There's a difference in inducing the person. [00:24:19] Speaker 02: That's what their position is. [00:24:21] Speaker 02: So their answer is that that would draw the distinction between those. [00:24:24] Speaker 02: And you're saying you don't need that, but [00:24:26] Speaker 02: But how do you not rope in the person who's just trying to be helpful, but not trying to actually encourage the prostitution? [00:24:36] Speaker 01: Well, Your Honor, if I may, I'd like to point to some examples from the case law. [00:24:39] Speaker 01: So I was starting to say a moment ago, the 11th Circuit in Gatlin is the only circuit I've found that has analyzed this exact question, which is at 990, excuse me, F4, 1050, 1060 to 1061. [00:24:55] Speaker 01: It analyzes this exact question, and it also analyzes what the defendant is arguing here, that mere assistance when a sex worker is otherwise acting independently is not enough to meet that will-be cause for a minor, and the Eleventh Circuit rejects that. [00:25:09] Speaker 01: And I would argue that that is very much aligned with this court's opinions in Hornbuckle, [00:25:13] Speaker 01: and Backman and Haynes. [00:25:15] Speaker 01: And in Hornbuckle, this court, Judge Kristen, analyzed the will-be-caused language and said that that is not broad enough to bring in whether or not the person was independently engaging in sex work on her own. [00:25:29] Speaker 01: It's often a her. [00:25:30] Speaker 04: And then... So I know you say Judge Chabria's instruction wasn't error, but what would the perfect instruction have been? [00:25:38] Speaker 01: Well, Your Honor, I would actually point to the Ninth Circuit model instruction, which was updated after this case and after the jury instruction in this case, and I believe perhaps even influenced by Judge Chabrier's comments. [00:25:50] Speaker 01: And if the court looks at the Ninth Circuit model jury instruction 20.25, it lists as a separate element that the defendant knew or was in reckless disregard of the fact that the person would be caused to engage in a commercial sex act. [00:26:05] Speaker 04: So the distinction is would be caused, which more closely tracks the statute, but is somewhat awkwardly phrased, or as a result of, that's the difference? [00:26:14] Speaker 01: Well, again, Your Honor, Judge Chabria here said as a result of Mr. Sparks' action, Ms. [00:26:19] Speaker 01: Garcia would be caused to engage. [00:26:21] Speaker 01: So Judge Chabria added the as a result of Mr. Sparks' action, tying it to that first element. [00:26:27] Speaker 04: But so if you didn't have that, what is the relationship between [00:26:34] Speaker 04: the knowingly acts and then the will be caused? [00:26:38] Speaker 01: Well, that's where I go back. [00:26:39] Speaker 01: I point the court back to the Bachman case, which says there is no but for causation and there is no proximate cause requirement based on the language of this statute. [00:26:47] Speaker 02: I mean, he added the as a result in order to try to get out the hypothetical, said I. That's how he got. [00:26:55] Speaker 02: And so he didn't accept the defendant's arguments, but he did add [00:27:01] Speaker 02: the as a result, and I'm just trying to figure out why the government, what is the problem with the as a result? [00:27:08] Speaker 02: Why does that create a problem? [00:27:09] Speaker 02: It solves the loving parent going to jail problem, and what is the problem? [00:27:16] Speaker 02: What's the downside of that? [00:27:18] Speaker 01: Well, again, Your Honor, the government does not have a problem and does not mean to indicate that it has a problem with Judge Chabria's instructions that were given in this case. [00:27:27] Speaker 01: In fact, we're here to defend them. [00:27:28] Speaker 01: We're also simply doing a statutory analysis, because that's what the opposing side did. [00:27:34] Speaker 01: And looking at the plain language of the statute and this court's prior interpretation of it, including the Bachman case, the Bachman-Clayes case, [00:27:42] Speaker 01: clearly states that there is no but for causation in the language of the statute. [00:27:47] Speaker 01: And so the government is guided by this court's prior decisions, the plain language of the statute, and here the district court did not err in instructing that as a result of Mr. Sparks' action, Ms. [00:27:59] Speaker 01: Garcia would be [00:28:01] Speaker 01: would engage in commercial sex. [00:28:04] Speaker 01: And I go back to a point that Judge Bress made to my colleague across the aisle, which is, of course, here there's overwhelming evidence that the standard was met. [00:28:12] Speaker 01: Whatever the causation standard here, this is not the case that was anywhere close to the line. [00:28:17] Speaker 01: It's certainly not the hypotheticals that your honors are struggling with, and it's not even a constitutional challenge to the breadth of the statute that's before the court here. [00:28:25] Speaker 01: So when we come to the facts of this case and we come to the instructions that Judge Chabria gave, the government would argue that this is not the case to find what the contours. [00:28:34] Speaker 01: and the outer limits of the statute are. [00:28:37] Speaker 01: And here, just to list off some of those, we have Mr. Sparks driving the victim to and from Merced to the Blade when the victim requested to go to Sacramento or to other places to support family members. [00:28:50] Speaker 01: Those requests were denied. [00:28:53] Speaker 01: We have Sparks [00:28:55] Speaker 01: coaching the Miss Garcia on how to prostitute herself, how much to charge, where to go, which blade to go to, when to switch from the Oakland blade to the San Francisco blade. [00:29:06] Speaker 05: How much to charge on where to go and how to dress and there's communications about sharing the money or taking the money or it does seem to be really overwhelming. [00:29:15] Speaker 01: That's correct, Your Honor. [00:29:16] Speaker 05: So what about Judge, it's actually Judge Van Dyke's, I think I was going to attribute this to Judge Bras, but I think it's Judge Van Dyke's question which is [00:29:25] Speaker 05: do we need to get this ironed out going forward or the government does seem to be advocating a very expansive view. [00:29:33] Speaker 05: But here today you're saying you think Judge Chabia got this right. [00:29:36] Speaker 05: We now have a new model jury instruction that presumably would be used going forward, not necessarily. [00:29:42] Speaker 05: Is this the case to jump in? [00:29:45] Speaker 02: What is the difference between the jury instruction, the old and the new? [00:29:49] Speaker 05: Maybe could you just answer first, is this the case where we should be jumping in on this? [00:29:52] Speaker 01: No, Your Honor. [00:29:53] Speaker 01: The government's position is that Judge Chabria adequately covered it here. [00:29:57] Speaker 01: The Ninth Circuit model instructions cover it going forward. [00:29:59] Speaker 05: Okay. [00:29:59] Speaker 02: And then, please, the difference between the model and... Well, between... You say there's new jury instructions that actually came out after Judge Chabria gave the jury instructions in this case. [00:30:09] Speaker 02: What is the difference? [00:30:11] Speaker 01: That's correct your honor I do apologize I don't have the old version in front of me but my recollection is that there was no separate element broken out for this causation question that the court is concerned with so now the model jury instructions break out the two pieces [00:30:26] Speaker 01: And just to back up in the short time I have left to answer your honor's questions, the government reads this as there's the knowing and then there's the actus, the action, the list of verbs. [00:30:36] Speaker 01: Then there is the type, whether the person was a minor or whether they were coerced or fraudulently induced, et cetera, or forced into the prostitution. [00:30:44] Speaker 01: Then, and the defendant has to know or be in reckless disregard of the type that they were coerced. [00:30:50] Speaker 01: That the victim will be caused to engage in. [00:30:53] Speaker 01: There's two parts to that second piece and the model jury instructions now break those out as two separate elements. [00:31:00] Speaker 01: The defendant has to know or be in reckless disregard that the person was a minor and [00:31:04] Speaker 01: the defendant has to know or recklessly disregard that the person would be caused to engage in the Commercial Sex Act. [00:31:11] Speaker 01: That's now a separate element in the new model of jury instructions. [00:31:14] Speaker 01: I do not believe it was. [00:31:14] Speaker 05: But wait a minute, the existing statute doesn't require that. [00:31:16] Speaker 05: The existing, so now I am concerned, the existing statute speaks on subpart C about if there's an opportunity to have observed [00:31:24] Speaker 01: That's correct, Your Honor, and then that's also listed in the, and I think that's why the model jury instruction lists those as two separate elements, because then the reasonable opportunity to observe, so long as the government pleads that appropriately in the indictment, then that removes for just the whether or not the person was a minor, that piece, it removes the mens rea. [00:31:43] Speaker 01: Thank you. [00:31:44] Speaker 02: Did that answer your question? [00:31:45] Speaker 02: I think so, although it sounds like the way you're explaining it, if they've just taken the statutory language and more [00:31:54] Speaker 02: and made a two-part jury. [00:31:55] Speaker 02: So it's still sort of, and I think this jury, if I recall, this is the case that I'm recalling, the jury actually had a question about, had questions about some of this. [00:32:06] Speaker 02: They too were struggling with, they asked, is this the one where they asked the court for clarification or am I thinking of a different case? [00:32:14] Speaker 01: I don't believe so, Your Honor. [00:32:16] Speaker 01: The deliberations here are pretty short. [00:32:17] Speaker 01: I do think they had a question about the coercion count, which they ultimately acquitted on, but I could double-check the record if my memory's not serving me well. [00:32:26] Speaker 02: I can look at that. [00:32:26] Speaker 02: I can look that up. [00:32:27] Speaker 02: But it's... Yeah, okay. [00:32:29] Speaker 04: But... The new instruction is... The number again is... 20.25, Your Honor. [00:32:40] Speaker 01: Thank you for your honor's generous amount of time. [00:32:43] Speaker 01: If there's no further questions, the government respectfully requests that this court affirm. [00:32:47] Speaker 01: Thank you. [00:33:05] Speaker 03: If I may make three points, your honor. [00:33:08] Speaker 03: I really encourage the court to look at ER 3842, which are the only factual findings by the district court about what substantiates reasonable suspicion. [00:33:17] Speaker 03: And I think it shows how unclear the record is about what Officer Flannery observed and when. [00:33:23] Speaker 03: And I think the only fair reading of the record that we know he observed is cash, the dress, and not engaging with the officer for the first two minutes of the stop. [00:33:33] Speaker 03: And my argument is those things are not sufficient for reasonable suspicion. [00:33:37] Speaker 03: Second, I think [00:33:39] Speaker 03: I think the biggest impediment to that interpretation is it doesn't work for [00:33:56] Speaker 03: the adult version of this offense, which also uses the word cause. [00:33:59] Speaker 03: You can't say that it's those things, the transportation, the harboring, that is then causing the defendant through force fraud or coercion that's inconsistent with this case law. [00:34:12] Speaker 03: Rather, it has to be that those things, you did those things while knowing that there's a modus operandi that's going to cause the adult through force fraud or coercion to engage, but not those things that are causing. [00:34:23] Speaker 03: And so you can't interpret those two things differently [00:34:26] Speaker 03: in the first part of the statute and the second part of the statute. [00:34:30] Speaker 03: I think especially with the rule of lending, you then have to interpret both cause and both parts as meaning to induce. [00:34:36] Speaker 04: Do you think the instruction that you were given, your client was given, was on this as a result of is actually more favorable than our current model instruction? [00:34:48] Speaker 03: I think [00:34:50] Speaker 03: compared to the model instruction. [00:34:51] Speaker 03: I don't think so. [00:34:53] Speaker 03: I think because the model instruction retains would-be-caused-to-engage, it allows the jury to interpret would-be-caused-to-engage as induced. [00:35:02] Speaker 03: I think that's the language of the statute. [00:35:04] Speaker 03: I think that would-be-caused-as-a-synonym for induced. [00:35:07] Speaker 03: So I think that's the problem. [00:35:08] Speaker 03: I think the problem with changing the instruction is it used to say that you recruit transport for prostitution. [00:35:13] Speaker 03: So it made explicit [00:35:15] Speaker 03: that the act is raised in the first part has to be for prostitution, not recruit to college or transport to the grocery store. [00:35:22] Speaker 03: But you do those things for prostitution. [00:35:24] Speaker 03: And I think that makes it extra clear that then the second part of the statute that would be caused to engage has to mean something different. [00:35:30] Speaker 03: It's not that the person would just be caused to engage in prostitution because you already proved that in part one. [00:35:35] Speaker 03: And that supports the definition that the second part, the second cause there involves induce. [00:35:40] Speaker 03: And the last point I wanted to make is to point the court to this [00:35:44] Speaker 03: this court's decision in Hornbuckle, 784 F3rd at 556. [00:35:49] Speaker 03: There, in evaluating whether the undue influence enhancement applies, the court looked to whether the minors [00:35:59] Speaker 03: Voluntariness was compromised through things like preying upon the minor or manipulation. [00:36:05] Speaker 03: And what I'm saying is that that's exactly what would be cause to language is getting at. [00:36:09] Speaker 03: It's the defendant has to know or recklessly disregard that the minor's voluntariness was overcome. [00:36:14] Speaker 03: Not that he did it, but he knows or recklessly disregard it. [00:36:16] Speaker 05: I'm going to stop you there. [00:36:17] Speaker 05: You're way over time. [00:36:19] Speaker 05: Thank you both for your arguments. [00:36:20] Speaker 05: We're going to take a five minute recess before we come back for the last argument.