[00:00:04] Speaker 02:
Good morning, Your Honors.

[00:00:06] Speaker 02:
My name is Jason Saunders of Gordon and Saunders, and I represent the appellate, Kobe Williams, in this case.

[00:00:11] Speaker 02:
I'd like to reserve three minutes, if I may.

[00:00:13] Speaker 02:
Okay, please keep track of your time.

[00:00:15] Speaker 02:
Thank you.

[00:00:15] Speaker 02:
Thank you.

[00:00:16] Speaker 02:
This case involves three issues on appeal.

[00:00:19] Speaker 02:
One is whether the government presented sufficient evidence that Mr. Williams tried to entice, induce, coerce, or persuade Rebecca to have sex with him as a minor.

[00:00:32] Speaker 02:
to whether or not the trial court erred in failing to suppress the decoy advertisement when the published advertisement wasn't preserved and this was something used against my client to show that he answered this particular ad and yet it was unavailable to him.

[00:00:51] Speaker 02:
And lastly, when the court imposed a sentence enhancement of obstruction of justice, whether he failed to properly independently review the facts and make independent findings on that.

[00:01:05] Speaker 03:
The government concedes this issue, is that correct?

[00:01:07] Speaker 02:
Yeah.

[00:01:08] Speaker 02:
And briefly on that, I would just say on remand, it should go back, allow the parties just to brief the matter, and then let the court make independent facts.

[00:01:18] Speaker 03:
OK.

[00:01:19] Speaker 03:
We'll hear from your friend on the other side about what

[00:01:21] Speaker 03:
he thinks is the right remedy, but I think given your representation that that issue's been conceded, perhaps you want to spend your time on the first two issues.

[00:01:30] Speaker 02:
Yes.

[00:01:30] Speaker 02:
In fact, I'd like to spend most of my time on the first issue.

[00:01:33] Speaker 02:
The enticement statute.

[00:01:36] Speaker 02:
So I know the court is very aware of the facts of this case, but I want to point out a very salient part.

[00:01:42] Speaker 02:
This is a sting operation in Washington state where Washington law enforcement

[00:01:49] Speaker 02:
puts out an ad in Craigslist and other websites.

[00:01:53] Speaker 02:
They're trying to induce a client under state law to want to have sex with a minor.

[00:01:58] Speaker 02:
They're trying to lure him to come to the hotel and arrest him there so they can charge him with rape of a child and communicating with a minor for immoral purposes.

[00:02:09] Speaker 02:
And the reason I say that, and that actually did happen in this case,

[00:02:15] Speaker 02:
they did charge originally in the state court and there was even a plea offer but then the federal government took over.

[00:02:23] Speaker 02:
The reason why I think that's very germane to this argument is because

[00:02:27] Speaker 02:
The police did not try to get my client to say any words or do any conduct to try to entice the victim in this case, Fiction of Rebecca, into having sex with him.

[00:02:42] Speaker 02:
Instead, they just tried to get him to go to the hotel where they'd arrest him for attempted rape.

[00:02:48] Speaker 02:
So we don't have that as part of the sting operation itself.

[00:02:52] Speaker 02:
And that's, I think, an important factor.

[00:02:56] Speaker 04:
As I understand your argument from the briefs and then what you've stated here, does this rest on your interpretation of what entice means?

[00:03:07] Speaker 02:
Um, well, entice, you know, all those words are their common meaning.

[00:03:12] Speaker 02:
And entice, I think it's words or conduct that my client is trying to convey to the victim to say, I want these sexual acts performed.

[00:03:23] Speaker 02:
I want to meet you at this place.

[00:03:26] Speaker 02:
I want

[00:03:28] Speaker 02:
I want to have sex with you.

[00:03:30] Speaker 02:
But that's not what happened in this case.

[00:03:32] Speaker 02:
In this case, it was Rebecca who started the entire conversation about sex.

[00:03:38] Speaker 02:
Hey, I'm here.

[00:03:39] Speaker 02:
Sex for money.

[00:03:41] Speaker 02:
I don't want a boyfriend.

[00:03:42] Speaker 02:
Let's have sex.

[00:03:43] Speaker 02:
Here's the cost of the sex.

[00:03:45] Speaker 02:
Here's, I'm going to go to a hotel.

[00:03:47] Speaker 02:
My client repeatedly talked about that he did not want to have sex with a minor.

[00:03:54] Speaker 02:
He was steadfast in that.

[00:03:55] Speaker 02:
And he said he wouldn't have sex with a minor.

[00:03:57] Speaker 02:
He would come there and walk away if he found out that she was a minor.

[00:04:00] Speaker 02:
But he never believed that she was a minor.

[00:04:03] Speaker 04:
Well, that of course kind of gets to the crux of the case.

[00:04:06] Speaker 04:
And you had argued that there needed to be some evidence

[00:04:12] Speaker 04:
transforming or overcoming Rebecca in some way.

[00:04:15] Speaker 04:
So to do that, it would seem to me you'd have to amend the statute or you'd have to read words into the statute.

[00:04:22] Speaker 04:
So on that regard, which verb in the statute do you think this transform or overcome is either read into or imputed to?

[00:04:35] Speaker 02:
Well, I think the height decision that I cited, it talks about all four words and their definitions, but it talks about the intent of the client in those words to try to compel, force, coerce, entice.

[00:04:53] Speaker 02:
So it's talking about she might not have wanted to do it, but

[00:04:58] Speaker 04:
Yeah, you know, I don't think you can just mush all the words together because coerce does have quite a different meaning, for example, than entice or persuading you, you know, we've persuaded you to come here to the Ninth Circuit today and we thank you.

[00:05:14] Speaker 04:
But we haven't really coerced you.

[00:05:16] Speaker 04:
So, I mean, each of the words does have different meanings and so it seemed to me it would have to be somehow either under induce or entice that you,

[00:05:27] Speaker 04:
are trying to make the distinction, is that correct?

[00:05:30] Speaker 02:
I think so.

[00:05:31] Speaker 02:
I think you're right, Your Honor.

[00:05:32] Speaker 02:
But I think if we step back even more, what we have in this case, and all circuit courts agree, that what you're trying to do is find the defendant is trying to gain the assent of the victim, right?

[00:05:49] Speaker 02:
So we're just trying to have her say, yes, I'll do what you're proposing.

[00:05:54] Speaker 02:
I'll do the things that you're proposing.

[00:05:56] Speaker 02:
and in that case I cited the Mahana case and I think that's a very interesting case because it's very similar to the facts here where there's a

[00:06:08] Speaker 02:
There's a boy, Brett, who says to Mr. Mahana, I'm gay.

[00:06:17] Speaker 02:
Are you interested in men?

[00:06:18] Speaker 02:
He says yes.

[00:06:20] Speaker 02:
The boy says, I'm interested in older men.

[00:06:24] Speaker 02:
I get into them.

[00:06:24] Speaker 02:
Do you want to have oral sex?

[00:06:26] Speaker 02:
And they meet at a place.

[00:06:28] Speaker 02:
And in that case, the court said, well,

[00:06:31] Speaker 02:
All that conversation stemmed from the alleged victim.

[00:06:35] Speaker 02:
It didn't stem from him.

[00:06:37] Speaker 02:
And therefore, you don't have sufficiency for the enticement statute.

[00:06:42] Speaker 02:
And I think that's very important.

[00:06:44] Speaker 02:
Because the same thing happens here.

[00:06:46] Speaker 02:
When it's Rebecca who is eliciting and encouraging and enticing and inducing my client to have sex with her,

[00:06:56] Speaker 02:
He's not inducing her.

[00:06:57] Speaker 02:
She's inducing him.

[00:06:59] Speaker 02:
And like I said, the reason why is because that's not how this sting operation was set up.

[00:07:04] Speaker 02:
They don't care at that time that there's any enticement by her.

[00:07:10] Speaker 02:
And they don't care that he's not enticing because that's not what they're looking for for their state sting operation.

[00:07:19] Speaker 01:
What was your defense at trial?

[00:07:21] Speaker 02:
The defense at trial was that she was a minor.

[00:07:24] Speaker 02:
And he said, I never believed that she was a minor.

[00:07:28] Speaker 02:
But he was steadfast in saying that he was not going to go over there repeatedly throughout his text if she was a minor.

[00:07:35] Speaker 02:
And that's why he kept trying to get confirmation.

[00:07:38] Speaker 02:
Let's meet somewhere else.

[00:07:40] Speaker 02:
Let's try to meet somewhere so I can verify that you're of age, because he believed she was.

[00:07:48] Speaker 02:
And so that was his defense at trial.

[00:07:49] Speaker 01:
Weren't there, you know, the messages?

[00:07:52] Speaker 01:
Didn't the messages make it clear that she was a minor?

[00:07:56] Speaker 01:
That she was 13, only 13?

[00:07:59] Speaker 02:
I would argue that she repeatedly said it.

[00:08:01] Speaker 02:
But, you know, he's a... And his defense was, I didn't know she was 13?

[00:08:06] Speaker 02:
Well, just because someone says something doesn't mean it's true, right?

[00:08:10] Speaker 02:
So he took the fact that many different things.

[00:08:14] Speaker 02:
One of the facts is the photo that she sent.

[00:08:17] Speaker 02:
He saw that there's facial recognition software used and it's pretty easy to

[00:08:22] Speaker 02:
it's pretty obvious that it is, but also in how she expressed herself and how she relayed.

[00:08:29] Speaker 02:
Even the picture that she sent, she was in the driver's seat.

[00:08:33] Speaker 02:
She had some t-shirt on with a 1990s band sublime.

[00:08:38] Speaker 02:
But he was convinced in his own mind that she was not 13.

[00:08:43] Speaker 02:
But if she was, he wasn't going to have sex with her.

[00:08:46] Speaker 02:
And that was his defense at trial.

[00:08:53] Speaker 02:
The government seems to think, in its answering brief, that as long as Mr. Williams intended to have sex with a child and drove out to have sex with a child, he's guilty of the offense.

[00:09:05] Speaker 02:
But that is not the case at all.

[00:09:07] Speaker 02:
This court was very clear and ehler that the statute for the enticement statute is designed to protect children from the act of solicitation itself, not the act of sex.

[00:09:22] Speaker 02:
The state also cites dingra.

[00:09:26] Speaker 02:
I hope I'm pronouncing that correctly.

[00:09:28] Speaker 02:
I think that's an interesting case.

[00:09:30] Speaker 02:
The government's trying to argue that.

[00:09:33] Speaker 02:
In that case, they were talking about, it doesn't matter if you're a willing participant, because at the end of the day, what matters is the defendant's frame of mind.

[00:09:44] Speaker 02:
And I agree with that, and I understand that, and I know that the case law is clear on that, but that's not our argument.

[00:09:50] Speaker 02:
Our argument is that some word, some conduct, some thing in the record has to show that he was trying to induce her to have sex.

[00:09:59] Speaker 02:
And I think it was interesting because the facts in those case.

[00:10:03] Speaker 04:
What about that exchange which little odd where he talks about willing to help her out with her education.

[00:10:12] Speaker 04:
Yeah.

[00:10:14] Speaker 04:
But she says I'm and he's going to give her money for tuition like he's some kind of, you know, foundation helping out youth.

[00:10:24] Speaker 04:
But she says I'm 13, you want me to lie?

[00:10:26] Speaker 04:
And so it's out there.

[00:10:30] Speaker 04:
Now, he doesn't have to believe that.

[00:10:33] Speaker 04:
And so they say, OK, we're going to talk more tomorrow.

[00:10:38] Speaker 04:
Why isn't that sufficient?

[00:10:41] Speaker 02:
Well, she's already

[00:10:45] Speaker 02:
originated the conversation.

[00:10:47] Speaker 02:
She's also already repeatedly said what she wants to do and for what amount of money.

[00:10:54] Speaker 02:
Him saying, I'm bringing over money and you can do something with that money is not an inducement, it's already done.

[00:11:03] Speaker 02:
What's interesting in this case is that he never tried to entice her to do anything.

[00:11:10] Speaker 02:
or get her assent, her assent was always there.

[00:11:15] Speaker 04:
So you're just basically saying he set up a consensual relationship with somebody who's 13?

[00:11:22] Speaker 02:
Yeah, you know, I don't know if it's... That's difficult to kind of digest.

[00:11:27] Speaker 02:
I'm not saying that, Your Honor, as much as I'm saying that that one line is not sufficient for enticement when all the record shows that she was already talking about the money that she would have him pay and where it's going to be, and repeatedly saying, come over for money, come over for sex for money, that's all I want.

[00:11:49] Speaker 02:
Repeated, repeated, and repeated.

[00:11:51] Speaker 02:
What's interesting too is in the Mahana case, the evidence also showed that the defendant was reluctant to have sex with the minor and repeated that and that was important in the decision.

[00:12:06] Speaker 02:
We have that here too.

[00:12:08] Speaker 02:
And what's important for the enticement statute is when you're saying I'm not going to have sex with you if you're not 18 and over, that shows the opposite of

[00:12:20] Speaker 02:
It's showing discouragement.

[00:12:23] Speaker 02:
It's showing reluctance.

[00:12:25] Speaker 02:
It's showing, I'm not going to do this.

[00:12:27] Speaker 02:
It's saying,

[00:12:29] Speaker 02:
this will be the end if it turns out that you're not of age.

[00:12:33] Speaker 02:
So it's the opposite of enticement.

[00:12:35] Speaker 02:
And I think that's important to bring out too.

[00:12:38] Speaker 02:
But what I was talking about, I'm sorry to return to it, Dingra quickly, was that this was a case too, where Dingra saw a young girl's comment on a home page about having sex with her boyfriend.

[00:12:51] Speaker 02:
wanted specific facts of what acts she performed, wanted to have oral sex, he wanted her to have oral sex on him.

[00:13:04] Speaker 02:
And that's the opposite of what occurred in this case.

[00:13:07] Speaker 02:
This is a case where she was

[00:13:10] Speaker 02:
enticing him and luring him to have sex with her so they could arrest him when he came out for rape of a child, which is the Washington law.

[00:13:20] Speaker 04:
I thought that case basically said that your willingness or consent is irrelevant.

[00:13:29] Speaker 02:
Yeah.

[00:13:32] Speaker 02:
The willingness of the participant is relevant, but that's why I was citing Eller before, because really it's not wanting to have sex with a minor that is

[00:13:48] Speaker 02:
important.

[00:13:50] Speaker 02:
Solicitation is what we're trying to prevent and prohibit.

[00:13:54] Speaker 02:
So did he solicit?

[00:13:57] Speaker 02:
Did he do any solicitation of her to have sex with him?

[00:14:01] Speaker 02:
And the answer is the record doesn't show it.

[00:14:05] Speaker 02:
There's also one last case that the state cites is Goitsky.

[00:14:09] Speaker 02:
It's the same idea where

[00:14:11] Speaker 02:
The court found that conversation with the minor describing the defendant wanting sexual acts such as rubbing the boy's bum and putting his penis in the boy's mouth, and proposing the rendezvous was sufficient to find him guilty.

[00:14:26] Speaker 02:
But these are all cases where it is the defendant who is acting and

[00:14:33] Speaker 02:
eliciting and enticing the victim and this is this case is the entire opposite because they just didn't care about it and they weren't hoping that he would say it and they never he never did say it if I can move on if the court has any other questions on that one

[00:14:52] Speaker 03:
Council, you're almost out of time, and I know you wanted to reserve some time.

[00:14:55] Speaker 03:
I'll put a couple minutes on the clock for your rebuttal, but I know you had another issue that you didn't address.

[00:15:03] Speaker 03:
I don't think we have any questions right now, so perhaps you can raise some of that on your rebuttal.

[00:15:08] Speaker 01:
I will do that.

[00:15:09] Speaker 01:
Okay.

[00:15:09] Speaker 03:
Thank you.

[00:15:37] Speaker 00:
Excuse me.

[00:15:38] Speaker 00:
Good morning, your honors.

[00:15:39] Speaker 00:
May it please the court.

[00:15:40] Speaker 00:
David Herzog on behalf of the United States.

[00:15:42] Speaker 00:
I was not trial counsel.

[00:15:43] Speaker 00:
Below.

[00:15:44] Speaker 00:
My intent was paid sex with an adult escort.

[00:15:49] Speaker 00:
That's at SCR 190.

[00:15:51] Speaker 00:
The defendant testified as to what he was there to do, which was have sex with what he claimed to believe was an adult, Rebecca.

[00:16:00] Speaker 00:
He's entitled to do that.

[00:16:01] Speaker 00:
He's entitled to take the stand.

[00:16:03] Speaker 00:
And the jury is entitled to disbelieve him.

[00:16:06] Speaker 00:
And on a Rule 29 standard, where the standard review is so deferential to the jury's findings, the sufficiency evidence here is demonstrated.

[00:16:16] Speaker 00:
With regard to what the jury could rely on in order to find that he persuaded, induced, enticed, or coerced, there were four days of communications between July 23rd and 26th of 2023.

[00:16:31] Speaker 03:
How should the court interpret the term entice under the statute?

[00:16:35] Speaker 00:
I think the court should look to Eller.

[00:16:38] Speaker 00:
I think Eller and Meek give the court the definition of it.

[00:16:41] Speaker 00:
What Eller talks about actually is, not to dodge the court's question, but it's persuade.

[00:16:46] Speaker 00:
And what does it mean to persuade, which is one of the other words in the statute.

[00:16:50] Speaker 00:
And what Eller says is, negotiating what a person will do in exchange for what amount of money is, and this is a direct quote from Eller, the essence of persuasion.

[00:17:00] Speaker 00:
So when the defendant said, can you just take a pic, I'm curious what the product is for 2,500, and then she sends a picture, the age regress photograph, and then he agrees to 2,500, and that's at 2 ER 138 to 140.

[00:17:16] Speaker 00:
And then, at 2 ER 150, the defendant lays out for her what he expects to get for the money he's paying.

[00:17:24] Speaker 00:
And he says, sex, obviously.

[00:17:28] Speaker 00:
Those statements, combined with his statement that he was there to have sex with Rebecca, made the only issue for the jury at trial.

[00:17:34] Speaker 00:
Did he believe that she was an adult or a minor?

[00:17:37] Speaker 00:
And on this evidence, on the fact that she kept saying, I'm 13, I'm 13, I'm 13, the jury could conclude that fairly.

[00:17:43] Speaker 00:
Any rational juror could.

[00:17:46] Speaker 00:
And the fact that the defendant, I think, was a law enforcement officer and certainly was preparing to set up a trial defense if he did get caught, I think is how those statements, I'm going to back away if you're really 13.

[00:17:56] Speaker 00:
I think that's how those can be read as he was preparing his trial defense.

[00:17:59] Speaker 00:
And he's entitled to do that.

[00:18:00] Speaker 00:
But when he takes the stand and says, I didn't believe she was a kid, the jury's entitled to reject that.

[00:18:07] Speaker 00:
And that's all throughout all of these cases in this area, which is going back to Dingra.

[00:18:14] Speaker 00:
So that's Meek, Makabagal, Getski, and McCarran.

[00:18:19] Speaker 00:
The fact that he negotiated and said with her, said to Rebecca, for $1,800, I would really like to take a weekend, spend time with you, sex, obviously.

[00:18:30] Speaker 00:
Under Eller, that is persuasion, right?

[00:18:33] Speaker 00:
That is the essence of persuasion.

[00:18:34] Speaker 00:
What am I going to get for what amount of money?

[00:18:36] Speaker 00:
And they're negotiating, right?

[00:18:38] Speaker 00:
$2,500 for all night or $1,800 for all night, and they settle on

[00:18:41] Speaker 00:
1800 and then for substantial step.

[00:18:44] Speaker 00:
He shows up to the hotel.

[00:18:45] Speaker 00:
He has the money.

[00:18:46] Speaker 00:
He has more money than he needs.

[00:18:47] Speaker 00:
He got the money out.

[00:18:48] Speaker 00:
He drove two hours.

[00:18:49] Speaker 00:
Those are all substantial steps under all of the 2422 B cases in this court.

[00:18:55] Speaker 00:
With regards to did he persuade her or did he did she persuade him?

[00:18:59] Speaker 00:
I would refer to this court's your honor's decision in Dingra and your honor's decision in Meek.

[00:19:05] Speaker 00:
There's a sense in which, Your Honor, it's a terrible draw for the defense with the court having authored both of those two opinions, which I think resolve this.

[00:19:12] Speaker 04:
It's precedent or precedent, whether I authored it or not.

[00:19:15] Speaker 00:
Yes, Your Honor.

[00:19:16] Speaker 00:
What the defendant said at 2 ER 156 is, do you do anal?

[00:19:21] Speaker 00:
And his defense at trial was, one of the reasons I was trying to cheat on my wife was that she would not have anal sex with me.

[00:19:28] Speaker 00:
And so when he says to this person who keeps saying I'm 13, do you do anal?

[00:19:32] Speaker 00:
And she says, I can try it for a little extra.

[00:19:34] Speaker 00:
That is persuasion.

[00:19:35] Speaker 00:
He's trying to get her to engage in a specific sexual act, and that is Getzke McCarran, Elder Makapagal Meek.

[00:19:43] Speaker 00:
Also, the fact that he keeps telling her he's an officer is persuasive.

[00:19:48] Speaker 00:
What he says is, I think it's both persuasive, and to answer the court's question, it does induce or entice, because he does it for two reasons.

[00:19:55] Speaker 00:
One, to show her that he's safe.

[00:19:58] Speaker 00:
I'm a cop.

[00:19:59] Speaker 00:
This is what he says.

[00:20:00] Speaker 00:
This is at 2ER 149.

[00:20:03] Speaker 00:
I'm a cop and I will lose my job by doing this, but I'm not afraid.

[00:20:06] Speaker 00:
You know if I make the transaction and proposal that you are in the clear.

[00:20:12] Speaker 00:
These transactions are hard for a cop that's not looking to arrest anyone.

[00:20:16] Speaker 00:
So he indicates he does have the power to arrest, which is coercive.

[00:20:20] Speaker 00:
That's why I suggested meeting for coffee.

[00:20:22] Speaker 00:
Cops need people like you.

[00:20:23] Speaker 00:
I know how to make the transaction safe on your part.

[00:20:28] Speaker 00:
Then, when the undercover detective, the female undercover detective whose photo was age-regressed, she also talked to him on the phone three times.

[00:20:36] Speaker 00:
She said, I told him I was nervous that he was a cop, and he said everything is going to be fine.

[00:20:40] Speaker 00:
That's 2ER231.

[00:20:43] Speaker 00:
At SER181, defendant admitted he was trying to be charming, which is the nature of inducement and enticement.

[00:20:49] Speaker 00:
He's trying to get her to have sex with him.

[00:20:51] Speaker 00:
And he admitted that he flattered Rebecca to have sex with her.

[00:20:54] Speaker 00:
Here the court forgive me for using the language directly, but this is that to er 149 Rebecca says to him so you a cop and you trying to fuck me Doesn't make sense and what the defendant says in response is are you saying that cops don't engage in this type of behavior?

[00:21:11] Speaker 00:
We're only human.

[00:21:12] Speaker 00:
What do you want me to do?

[00:21:14] Speaker 00:
I?

[00:21:15] Speaker 00:
I will introduce myself, show you my credentials and give you money.

[00:21:18] Speaker 00:
It could only harm me.

[00:21:20] Speaker 00:
Well, that's coercive and entice of and persuasive persuasive.

[00:21:24] Speaker 00:
I'm safe because I'm an officer, but I have the ability to arrest you also.

[00:21:28] Speaker 00:
So that's also coercive.

[00:21:30] Speaker 00:
What she said at some point there is, nothing I do is legal.

[00:21:33] Speaker 00:
Everything I do is illegal.

[00:21:34] Speaker 00:
And the defendant talks to her about he'll check on whether it's legal for her to have sex with his 18-year-old son because he knows she's a minor.

[00:21:42] Speaker 00:
I would also just submit that the other facts of the case lend to the jury's finding, rational finding, that he did believe that she was a minor.

[00:21:51] Speaker 00:
because what he said when he was arrested wasn't, oh my gosh, she's an adult, you guys, don't worry, it's an adult.

[00:21:57] Speaker 00:
I always believed it was an adult.

[00:21:58] Speaker 00:
He says, I found a child screaming out for help.

[00:22:01] Speaker 00:
I'm a one-man trafficking organization.

[00:22:03] Speaker 00:
I'm here to save her.

[00:22:05] Speaker 00:
The jury could believe that the inconsistency between those statements meant that he was not telling the truth.

[00:22:12] Speaker 00:
Also, when he testified, and the defense is just in a very bad spot testifying at trial, he had to admit that he lied.

[00:22:19] Speaker 00:
He lied to Rebecca.

[00:22:20] Speaker 00:
He lied to the officers.

[00:22:21] Speaker 00:
He lied about his boss.

[00:22:22] Speaker 00:
He lied to his wife.

[00:22:25] Speaker 00:
After taking the stand, admitting that you're a liar, setting up a defense that requires the jury to believe you is an uphill battle.

[00:22:31] Speaker 00:
And the defendant lost that battle with the jury.

[00:22:36] Speaker 00:
The standard being, and this is Gillick, the reviewing court must respect the exclusive province of the jury to determine credibility, resolve evidentiary conflicts and draw reasonable inferences from the facts.

[00:22:51] Speaker 00:
Then you have to resolve all conflicts in favor of the verdict here.

[00:22:57] Speaker 00:
So with regard to the

[00:23:01] Speaker 00:
I'm not sure what evidence there was in the record to show that this defendant met at least one.

[00:23:05] Speaker 00:
It only had to be one of the four verbs, but in the government's view, he met all four.

[00:23:08] Speaker 00:
It was coercive to tell her he was an officer.

[00:23:10] Speaker 00:
He did persuade her under Eller by negotiating, what am I going to get for what amount of money?

[00:23:15] Speaker 00:
He did induce or entice her by asking her, will you have anal sex with me?

[00:23:18] Speaker 00:
My wife won't, as the testimony at trial revealed.

[00:23:27] Speaker 00:
And so I should just submit to the court that the overwhelming question in this case for the jury was, what did he believe?

[00:23:36] Speaker 00:
Did he believe he was showing up to have sex with a minor?

[00:23:39] Speaker 00:
Or did he believe he was showing up to have sex with an adult?

[00:23:40] Speaker 00:
Because as the court has noted, both things are in the text messages.

[00:23:43] Speaker 00:
I'm 13.

[00:23:44] Speaker 00:
I'm 13.

[00:23:45] Speaker 00:
No, you're not.

[00:23:45] Speaker 00:
I'll back out.

[00:23:47] Speaker 00:
OK.

[00:23:48] Speaker 00:
That is a fact question.

[00:23:49] Speaker 00:
That is the exclusive province of the jury.

[00:23:52] Speaker 00:
The jury is entitled, in a highly differential standard, to rely on that.

[00:23:58] Speaker 00:
I think the other arguments that are lurking in the defendant's arguments on the sufficiency of the evidence have been foreclosed by the court.

[00:24:06] Speaker 00:
Of course, it can be an intermediary.

[00:24:08] Speaker 00:
It can be a law enforcement officer undercover.

[00:24:10] Speaker 00:
That's Eller, Meek, Makabagal, Dingra.

[00:24:13] Speaker 00:
And the law enforcement officer can play the role of the minor or the role of an adult with access to a minor.

[00:24:21] Speaker 00:
And that's McCarran.

[00:24:25] Speaker 00:
So I would just submit to the court that the evidence here was overwhelming.

[00:24:28] Speaker 00:
And that's what the district court found, right, on the rule 29 motion or rule 33 motion after trial.

[00:24:33] Speaker 00:
The district court found that the government had produced overwhelming evidence that his intent was to have sex with a child, and the jury could rely on that.

[00:24:41] Speaker 03:
With respect to the warning and Moses advertisement, I understand that there may be several different ways to resolve this claim.

[00:24:51] Speaker 03:
Can you sort of walk us through the government's arguments and which argument you're sort of relying on?

[00:25:00] Speaker 00:
Yes, your honor.

[00:25:01] Speaker 00:
Well, I would submit to the court.

[00:25:02] Speaker 00:
It's a loser, both on merits and procedure.

[00:25:06] Speaker 00:
On the procedure, it's waived, right?

[00:25:09] Speaker 00:
The argument for the district court was, is it going to be authenticated at trial?

[00:25:15] Speaker 00:
That was the pre-trial motion.

[00:25:17] Speaker 00:
And the judge said what judges always say.

[00:25:18] Speaker 00:
Let's see how the evidence comes in, the government can tie it up.

[00:25:21] Speaker 00:
So that was the actual claim.

[00:25:23] Speaker 00:
The claim now that

[00:25:26] Speaker 00:
Unraised below the government that the court should have sua sponte with no objection omitted that advertisement because the final version wasn't posted.

[00:25:37] Speaker 00:
It would go it just goes to weight not credibility the and this is that this is trial exhibit number one.

[00:25:45] Speaker 00:
page 8 in the record, it's at 3 ER 352.

[00:25:48] Speaker 00:
This is the Craigslist posting warning in Moses confirmation email.

[00:25:55] Speaker 00:
And you'll note that when after the after Officer Martinez posted the warning in Moses ad, what he got back was this email as he testified.

[00:26:03] Speaker 00:
This email says what you think you're posting warning in Moses, not yours or mine.

[00:26:10] Speaker 00:
So the only evidence before the jury about the post was that it did indicate her age.

[00:26:15] Speaker 00:
I want to be very clear.

[00:26:17] Speaker 00:
The only person who could post Rebecca's phone number was Detective Martinez.

[00:26:23] Speaker 00:
There is no Rebecca.

[00:26:26] Speaker 00:
The defendant can take the stand and say, I responded to a different ad that Rebecca posted with her correct phone number, but that's not possible because there was no Rebecca.

[00:26:35] Speaker 03:
So the only seems really sort of inconsistent from where I'm sitting to understand the defense's argument that

[00:26:43] Speaker 03:
The court should take into account the fact that Rebecca was a fictional prostitute soliciting sexual services for purposes of the enticement claim, but at the same time rely on this advertisement that he claims he responded to with respect to this individual who he, for this argument, is arguing existed as a real person.

[00:27:02] Speaker 00:
Yes, your honor.

[00:27:03] Speaker 00:
I think the jury probably had the same trouble, which is that those claims are inconsistent.

[00:27:09] Speaker 00:
I would submit to the court, and I want to be very clear, there never was a yours or mine advertisement.

[00:27:14] Speaker 00:
The defendant's entitled to take the stand and say that, and the government's then entitled to cross him, show he's lying, and then the jury can evaluate the weight of his testimony and credibility.

[00:27:24] Speaker 00:
There was never, there could not have been a yours or mine ad with the correct phone number.

[00:27:28] Speaker 00:
So when he, two hours after the warning in Moses' ad, called and texted that number, when he responded to the correct phone number, it had to be from the warning in Moses' ad, which says she was 13.

[00:27:39] Speaker 04:
But even... But there's no evidence about a Craig's listing.

[00:27:44] Speaker 04:
Craig's listing, correct?

[00:27:47] Speaker 03:
There was no evidence of the original ad that was... Well, there's two aspects.

[00:27:54] Speaker 04:
The original ad is the warning

[00:27:58] Speaker 04:
in Moses, but he says, no, no, I got it from Craigslist listing.

[00:28:03] Speaker 00:
Which is that I think he is saying that yours or mine was also on Craigslist is what I understand.

[00:28:10] Speaker 00:
And just to be very clear about that.

[00:28:11] Speaker 04:
There is no evidence of that.

[00:28:14] Speaker 04:
at least no physical evidence.

[00:28:16] Speaker 00:
That is correct.

[00:28:16] Speaker 00:
And of course, the defendant had subpoena power and could have subpoenaed Craigslist and said... There was testimony from the officers.

[00:28:22] Speaker 00:
Martina said... Yeah, we never... That that was the only... That that phone number is linked to his investigation and nothing else.

[00:28:28] Speaker 00:
Nothing else, yeah.

[00:28:29] Speaker 00:
Right.

[00:28:29] Speaker 00:
And so the evidence that the jury heard was, and just to be clear, the jury saw the draft ad that had her, be careful, she's a prostitute, she's 13, here's her phone number.

[00:28:39] Speaker 00:
They saw that draft and then they saw the confirmation email from Craigslist saying, warning in Moses ad was posted.

[00:28:45] Speaker 00:
What the defendant is now saying the government should have preserved and produced was the final advertisement from Craigslist saying that same information.

[00:28:54] Speaker 00:
That goes to the weight, not the admissibility.

[00:28:55] Speaker 00:
I mean, that's up to the jury to decide.

[00:28:57] Speaker 00:
do we believe that because he responded to the right phone number that was the ad that was posted and of course they did because that's the only way that Troy or defendant could have gotten the right phone number is from that ad and so the the

[00:29:12] Speaker 00:
The jury could have been in the jury room and said, you know what?

[00:29:16] Speaker 00:
I think all 12 of us need to see that final ad.

[00:29:18] Speaker 00:
If we don't see that, we're going to acquit.

[00:29:20] Speaker 00:
And that would have been a fair outcome.

[00:29:22] Speaker 00:
But they didn't.

[00:29:22] Speaker 00:
They knew that the phone number had been sent out.

[00:29:25] Speaker 00:
It had to be the warning in Moses' ad.

[00:29:27] Speaker 00:
There was no yours or mine ad.

[00:29:29] Speaker 00:
If this court were to credit the defendant's claim and order us to produce the yours or mine ad, we couldn't do it because it doesn't exist.

[00:29:39] Speaker 03:
With your remaining time, can you address the issue of the resentencing and sort of what you believe to be the appropriate remand since the government, I understand, is conceding this point?

[00:29:52] Speaker 00:
I think we have to, Your Honor.

[00:29:53] Speaker 00:
I think that under Castro-Ponce, the standard for that particular enhancement is slightly higher, which I think makes sense because you don't want to chill a defendant's testimony.

[00:30:02] Speaker 00:
here, the defendant clearly challenged it, said, Your Honor, we need a ruling on this.

[00:30:06] Speaker 00:
I don't think we should get the plus two.

[00:30:07] Speaker 00:
I need you to find willful material false.

[00:30:10] Speaker 00:
And the court said it's in the PSIR.

[00:30:12] Speaker 00:
I'm getting it.

[00:30:14] Speaker 00:
That is insufficient.

[00:30:15] Speaker 00:
Under Castor Ponce, I think we have to concede that that was error.

[00:30:18] Speaker 00:
So this case, I think, should go back to that judge for the findings of fact necessary to support that enhancement.

[00:30:24] Speaker 04:
And the judge... So are you essentially in agreement with the defense argument as to the scope of the remand?

[00:30:31] Speaker 00:
I think that's correct.

[00:30:32] Speaker 00:
I think that the court, the government's view is that the court should affirm the convictions, affirm the sentence to the extent it is proper, but remand exclusively for a consideration of the factors, the three factors, willful, material, false, that go to the obstruction enhancement and ask the district judge, please reevaluate that.

[00:30:52] Speaker 00:
If you make those findings, imposing enhancement and re-sentence with,

[00:30:55] Speaker 00:
If you don't, then you can be sentenced with the enhancement not in play.

[00:31:00] Speaker 04:
I think that's the... I know this court has a... Basically a limited remand for resentencing with respect...

[00:31:07] Speaker 00:
to the enhancement under that section.

[00:31:28] Speaker 01:
Or that enhancement should be vacated and sent back?

[00:31:33] Speaker 00:
Yes, Your Honor.

[00:31:33] Speaker 00:
I think under this Court's precedent, the whole sentence, I think, would be vacated with the limited remand on re-sentence with the enhancement, either supported or not supported by the facts that the District Court considers.

[00:31:46] Speaker 01:
Theoretically, the District Court could choose not to impose it.

[00:31:49] Speaker 00:
That's right.

[00:31:49] Speaker 00:
That's right.

[00:31:50] Speaker 01:
Say I can't make these findings.

[00:31:51] Speaker 00:
Sure.

[00:31:52] Speaker 00:
And that's why I think it's helpful for us to brief it, to show the court, well, this is where the government thinks the defendant was willful, material, and false.

[00:31:58] Speaker 00:
He found it the first time, saying it's in the PSIR, it's all over the PSIR, but that is, I do agree, that's insufficient under Castor Ponds.

[00:32:04] Speaker 00:
And I understand why.

[00:32:04] Speaker 00:
I mean, you're talking about chilling a defendant's First Amendment rights.

[00:32:07] Speaker 00:
If I could just make one brief comment before my time is up about publishing.

[00:32:12] Speaker 00:
Often times the judges of this court will ask, is there a reason for us to publish in any given case?

[00:32:16] Speaker 00:
I would submit to the court, this case does present four reasons for publishing.

[00:32:23] Speaker 00:
The first is that it will help practitioners know what kind of conduct constitutes the meeting of the four verbs here.

[00:32:31] Speaker 00:
The only version of the fact pattern that hasn't been published on is this one, because you have multiple variables, right?

[00:32:40] Speaker 00:
Is the undercover acting as a parent or a child?

[00:32:43] Speaker 00:
Is there payment or not?

[00:32:45] Speaker 00:
Is there a law enforcement officer or not?

[00:32:47] Speaker 00:
And starting with Rajkowski, which is a 2422A case, and then Dingra,

[00:32:53] Speaker 00:
All the other variables have been published on, but not this one.

[00:33:00] Speaker 00:
I think it would be helpful because this argument, we have to overcome the will.

[00:33:05] Speaker 00:
That argument is made in a lot of 2422B cases.

[00:33:07] Speaker 00:
This is the area in which I practice.

[00:33:09] Speaker 00:
This happens a lot.

[00:33:10] Speaker 00:
It would be helpful also.

[00:33:12] Speaker 00:
This court has been very clear that it does not endorse Height, which is the D.C.

[00:33:17] Speaker 00:
Circuit version of this case that said you do have to overcome the will.

[00:33:21] Speaker 00:
This court has not ever expressly disavowed Height.

[00:33:25] Speaker 00:
And in Ehler, Judge Owens actually cited Height for the persuasion standard.

[00:33:30] Speaker 00:
And so I think it would be helpful to have a clear published opinion that in the Ninth Circuit, Height is not the law.

[00:33:37] Speaker 00:
Eller is the law, Macabagal, Meek, you do not have to overcome the will of the minor to call that for a 2422B.

[00:33:45] Speaker 00:
And I think that actually may be more efficient for the court then too, because we can file motions for summary affirmance when that's the only argument made.

[00:33:51] Speaker 03:
Thank you, counsel.

[00:33:52] Speaker 03:
Thank you.

[00:34:00] Speaker 03:
Mr. Saunders, we'll put four minutes on the clock for you for rebuttal.

[00:34:05] Speaker 02:
Thank you, Your Honor.

[00:34:06] Speaker 02:
Just quickly for the enticement statute.

[00:34:08] Speaker 02:
I think at a certain point when the police are the ones who are enticing my client to do all kinds of acts, they're the ones who are initiating contact about sex for money.

[00:34:21] Speaker 02:
They're the ones who are talking about a meeting place.

[00:34:23] Speaker 02:
If client finally succumbs to their wishes and is trying to negotiate a price or do something else and goes out there, the enticement is already done.

[00:34:32] Speaker 02:
The enticement was the detective enticing client to go there.

[00:34:37] Speaker 02:
Did you ever argue that he was entrapped?

[00:34:40] Speaker 02:
Well, that's a good point.

[00:34:42] Speaker 02:
He never got to argue that.

[00:34:44] Speaker 02:
I think one of the reasons why is because they never saw the original ad, and they didn't get the ad for the yours and mine as well.

[00:34:52] Speaker 02:
And it's crucial for entrapment that the defense is given an opportunity to the complete record.

[00:35:00] Speaker 02:
So to have a meaningful defense, he's got to see what the ad is.

[00:35:05] Speaker 02:
He's got to respond to it.

[00:35:07] Speaker 02:
All he could do at trial is say, well, you know, I never saw the ad.

[00:35:11] Speaker 03:
What's your argument that when Mr. Williams refers to the missing published decoy advertisement in his argument that the government committed a Brady and Trombetta violation, which ad is he referring to?

[00:35:23] Speaker 03:
The warning in Moses ad or the yours and mine?

[00:35:25] Speaker 03:
Both.

[00:35:26] Speaker 02:
I mean my argument was both and I'm sorry if that wasn't clear in the briefing my argument is obviously this is a crucial part of the There's only four elements as a state is going to Four factors that the state's going to produce at trial one is the craigslist ad in every sting operation One of the text messages the third one will be maybe a female officer having a telephone call with

[00:35:51] Speaker 02:
the defendant, and then finally the footage of the arrest.

[00:35:54] Speaker 02:
There's only four things.

[00:35:55] Speaker 02:
This goes to the heart of the matter.

[00:35:57] Speaker 02:
This is not tangential.

[00:35:59] Speaker 02:
It's an important thing.

[00:36:02] Speaker 03:
How is the advertisement exculpatory?

[00:36:05] Speaker 02:
Well, you know, I would even argue that when you're not producing the original product, it's exculpatory, and he shouldn't even have to prove that.

[00:36:17] Speaker 02:
I understand from Betta.

[00:36:18] Speaker 02:
But I guess my argument is, you know, this is your case.

[00:36:23] Speaker 02:
It's the heart of the matter.

[00:36:25] Speaker 02:
It's not tangential.

[00:36:27] Speaker 02:
It's material.

[00:36:28] Speaker 02:
And the fact that it's absent exculpates my client.

[00:36:32] Speaker 04:
Well, your argument first time around really did sound like entrapment.

[00:36:37] Speaker 04:
You know, they set him up.

[00:36:39] Speaker 04:
They did this, this, and this.

[00:36:40] Speaker 04:
So we have the draft ad and we have the confirmation.

[00:36:46] Speaker 04:
And you, of course, say we're missing the middle piece.

[00:36:51] Speaker 04:
Or the final piece.

[00:36:51] Speaker 04:
That'll ultimately be evidentiary.

[00:36:53] Speaker 04:
And there was testimony about that.

[00:36:56] Speaker 04:
As to the yours or mine, if it didn't exist,

[00:37:00] Speaker 04:
I'm having some trouble understanding, you know, why you didn't argue, well, there's entrapment and it existed, but they're not showing it to us, but it existed.

[00:37:11] Speaker 04:
Well, he doesn't have it.

[00:37:12] Speaker 04:
And they say, well, it's impossible to exist because there's only one number that you can call and you'll get, you know, the officer on the other end.

[00:37:22] Speaker 04:
So it just, it sort of smells like entrapment.

[00:37:26] Speaker 04:
but your argument now doesn't really get him out of the soup is what my concern is.

[00:37:32] Speaker 02:
I understand.

[00:37:35] Speaker 02:
Many things didn't quite get argued below.

[00:37:43] Speaker 02:
Document that shows there's a yours in mind Advertisement that clients saw on his phone at a certain time, so it's it's out there.

[00:37:52] Speaker 02:
It's not a made-up thing I don't know what it says.

[00:37:55] Speaker 02:
I this is not a proper place to talk about things outside the record Well, yeah, let's just come back is that in the record.

[00:38:03] Speaker 02:
It's not in the record your honor any testimony about that Yes, he testified.

[00:38:08] Speaker 04:
That's what he saw so they could believe him and

[00:38:11] Speaker 02:
Right.

[00:38:11] Speaker 02:
Exactly, Your Honor.

[00:38:13] Speaker 02:
But I think that's what I'm trying to argue is that, you know, this is more than a discovery violation not to include that published piece.

[00:38:21] Speaker 02:
It's crucial to the case.

[00:38:22] Speaker 02:
It's not tangential.

[00:38:24] Speaker 02:
And really, it's something that in every one of these sting operations, I can't understand why any police officer wouldn't know how to print screen when the thing is published.

[00:38:33] Speaker 03:
I think that's why I'm sort of focused on whether or not it's and how it's exculpatory or material because without having, you know,

[00:38:40] Speaker 03:
it's a he said she said here that that your client says this existed the government says it doesn't we really don't have to resolve that disagreement if you

[00:38:49] Speaker 03:
unless you can also show that it's material and exculpatory.

[00:38:54] Speaker 03:
I'm having trouble with those issues.

[00:38:56] Speaker 02:
It's hard to do that with a missing document, right?

[00:39:00] Speaker 02:
Why?

[00:39:01] Speaker 03:
It seems to me that you could argue... I don't understand the legal argument as to why having the document, as even your client describes it existed, how

[00:39:13] Speaker 03:
does that provide something different than having testimony from an officer as to the language and content of the advertisement?

[00:39:24] Speaker 02:
That's the officer's testimony.

[00:39:27] Speaker 02:
Of course that's not as good as the written record, a record that should exist.

[00:39:32] Speaker 02:
This is a very important piece of the government's argument.

[00:39:36] Speaker 02:
So I'm just saying that

[00:39:39] Speaker 02:
We don't know what it says.

[00:39:40] Speaker 02:
We have testimony that he says what it says, and we have a draft of something earlier, but that's just his testimony.

[00:39:47] Speaker 04:
The real evidence... You know, I'm having some trouble wrapping my head around it because one, he never saw it according to his testimony, but two, it also had our age in it.

[00:39:57] Speaker 04:
So that's not exculpatory.

[00:39:59] Speaker 02:
So says the police officer.

[00:40:01] Speaker 02:
But we don't know because we don't have it.

[00:40:03] Speaker 04:
Well, we have...

[00:40:05] Speaker 04:
We have a draft of a draft and we have confirmation we don't have it.

[00:40:08] Speaker 04:
You're correct.

[00:40:09] Speaker 04:
Yeah.

[00:40:10] Speaker 02:
Yeah.

[00:40:10] Speaker 02:
And that really is the government's duty to present a complete record of what happened, especially in these sting operations where this is integral to their case and it should be produced and it wasn't.

[00:40:23] Speaker 02:
Thank you, Your Honours.

[00:40:24] Speaker 02:
Thank you very much.

[00:40:26] Speaker 03:
Thank you to both counsel for your argument.

[00:40:27] Speaker 03:
It was very helpful.

[00:40:28] Speaker 03:
And today is the last day that this panel is sitting with Judge McEwen.

[00:40:33] Speaker 03:
So on behalf of this composition of the panel, I'd like to thank our court staff, IT, and we will stand in resource until tomorrow.

[00:40:42] Speaker 03:
Thank you.

[00:40:54] Speaker 01:
All rise.

[00:40:54] Speaker 01:
This court for this session stands