[00:00:04] Speaker 03:
Oh, that was fast.

[00:00:07] Speaker 03:
All right.

[00:00:07] Speaker 03:
So do we have Mr. George there too?

[00:00:10] Speaker 03:
Oh, okay.

[00:00:11] Speaker 03:
Well, but this is like a theater.

[00:00:16] Speaker 03:
You both made a change very quickly.

[00:00:19] Speaker 02:
You were ready.

[00:00:19] Speaker 02:
Okay.

[00:00:21] Speaker 02:
Thank you.

[00:00:21] Speaker 02:
Ten minutes each side.

[00:00:23] Speaker 02:
All right.

[00:00:23] Speaker 02:
Thank you.

[00:00:23] Speaker 02:
Good morning, Your Honors.

[00:00:24] Speaker 02:
May it please the court.

[00:00:25] Speaker 02:
I'm Kathleen Foley here on behalf of Petitioner.

[00:00:27] Speaker 02:
I aspire to reserve two minutes for rebuttal, please.

[00:00:30] Speaker 02:
This is a simple case.

[00:00:32] Speaker 02:
In Esquivel-Quintana v. Sessions, the Supreme Court decided unanimously that the word abuse in the phrase sexual abuse of a minor unambiguously excludes consensual sex with someone 16 or older because a 16-year-old can legally consent to sex.

[00:00:47] Speaker 02:
That holding applies equally to the word abuse in the phrase crime of child abuse, which Congress added to the INA at the same time.

[00:00:53] Speaker 02:
Esquivel-Quintana controls here.

[00:00:55] Speaker 02:
Petitioner was convicted of violating California Penal Code Section 288.2b.

[00:01:00] Speaker 02:
which criminalize consensual communication, proposing consensual sexual conduct between people who, under Esquivel Quintana, are free to consent.

[00:01:07] Speaker 03:
So if we read Esquivel Quintana versus Sessions as limited to statutory rape offenses that criminalize conduct based solely on the age of the participants, does it still support your position?

[00:01:23] Speaker 03:
And how?

[00:01:24] Speaker 02:
I would push back on the premise there, but let me answer your actual question first.

[00:01:29] Speaker 02:
I think it does still support our position because it's a definitive ruling on the generic age of consent at the time both of these provisions were enacted.

[00:01:37] Speaker 02:
And so if the court were not to accept our overarching argument that Escobal-Quintana directly controls the outcome here, it would have to decide whether consensual communication between 17-year-old sexual partners constituted child abuse.

[00:01:53] Speaker 02:
I think, by the way, that the premise on which this court has to decide this case is that child abuse requires harm.

[00:01:59] Speaker 02:
That's the position the government has defended in its letter brief that is consistent with this court's holding in Frigoso, although I understand the court may or may not feel itself bound by that.

[00:02:10] Speaker 02:
And that's something that dictionary definitions support, contemporary dictionary definitions.

[00:02:15] Speaker 02:
But I do want to push back on the notion that this is limited to statutory rape.

[00:02:20] Speaker 02:
The Supreme Court didn't limit its holding to crimes without a mens rea.

[00:02:25] Speaker 02:
The government latches onto the word solely in the sentence your honor just read.

[00:02:30] Speaker 02:
That is where sexual intercourse is abusive solely because of the ages of the participants.

[00:02:34] Speaker 03:
I think the attorney's general assertion is there's no realistic probability that California would charge a violation of Section 288.2g where the victim was not actually a child.

[00:02:46] Speaker 02:
Well, the government hasn't argued here that there isn't a realistic probability of prosecution.

[00:02:51] Speaker 02:
So I don't know that that issue is before the court.

[00:02:53] Speaker 02:
But even if it were, the circuit law is clear that where the state statute expressly sweeps more broadly than does the generic crime, then there's a realistic probability and no legal imagination is necessary in those circumstances for there to be a realistic probability.

[00:03:10] Speaker 02:
But going back to the Supreme Court's use of the word solely, the Supreme Court was there acknowledging that for purposes of the generic crime, the age of consent may be different where the participant and the victim are in some kind of special relationship.

[00:03:25] Speaker 02:
It expressly carved that out in several places in its opinion.

[00:03:28] Speaker 02:
It didn't need to decide that issue, though, because in the statute issue in Esquivel-Quintana, just like the statute issue here, there was no special relationship element.

[00:03:37] Speaker 02:
And what the Supreme Court did decide is that absent such an element, the generic age of consent is 16.

[00:03:42] Speaker 02:
And we think that's controlled.

[00:03:44] Speaker 01:
But the big distinction between Esquivalda and this case is that this statute requires harmful material, right?

[00:03:50] Speaker 01:
So I don't know how you can distinguish that away.

[00:03:52] Speaker 01:
I mean, that's like a very big difference than just same age.

[00:03:57] Speaker 01:
Even if you're same age, if you're sending harmful material, that just is different.

[00:04:01] Speaker 02:
Well, I think what is harmful really varies depending on the age of the recipient.

[00:04:07] Speaker 02:
you know, certainly 30-year-olds sending obscene material back and forth.

[00:04:12] Speaker 01:
But even a 17-year-old sending harmful material to another 17-year-old maybe probably should be fined to be criminalized.

[00:04:19] Speaker 02:
I just think that if, I think that as the Fifth Circuit reasoned in Shaw versus Sessions, if it's not abused to have actual sexual intercourse as a 17-year-old, then it simply can't be abused

[00:04:31] Speaker 02:
to send explicit communications describing that contact, soliciting that contact, perhaps even photographs back and forth that might be consensually exchanged.

[00:04:41] Speaker 02:
And all of that be swept in by the statute here, and the government doesn't meaningfully dispute that.

[00:04:47] Speaker 01:
So I guess you could consensually send harmful material and that should be fine.

[00:04:53] Speaker 01:
Is that your argument?

[00:04:54] Speaker 02:
You could consensually send and receive material that under California's definition of harmful matter,

[00:05:01] Speaker 01:
Do you have it off the top of your head?

[00:05:03] Speaker 01:
I don't have it.

[00:05:03] Speaker 01:
What harmful material means?

[00:05:05] Speaker 02:
I do, yeah, I hear it.

[00:05:06] Speaker 02:
It's California Penal Code Section 313A.

[00:05:09] Speaker 02:
Harmful matter means matter taken as a whole, which to the average person applying contemporary statewide standards appeals to the prurient interest and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

[00:05:27] Speaker 02:
But the state doesn't get to decide what's harmful in this context.

[00:05:32] Speaker 02:
It gets to prescribe certain elements of crimes and then the court decides for itself whether the conduct, the minimum culpable conduct under the state statute matches the generic crime.

[00:05:44] Speaker 03:
So what exactly happened here?

[00:05:47] Speaker 02:
So the facts of this case are that the petitioner, when he was 37 years old, was sending text messages, no images, to a girl who was 15 and then 16 years old for about a two month period.

[00:06:00] Speaker 02:
He didn't ask her to meet up.

[00:06:02] Speaker 02:
He didn't, again, send any images, and he didn't even ask her to not tell anyone about these messages.

[00:06:08] Speaker 02:
But again, the categorical approach, which the court must apply here, mandates that the particular facts of this case not be considered, and... Right.

[00:06:17] Speaker 03:
I understand that, but you're not...

[00:06:19] Speaker 03:
But if we were speculating, yours is not one of the things that we're speculating could happen to 17-year-olds.

[00:06:26] Speaker 02:
That's true.

[00:06:26] Speaker 02:
The case at issue was not to 17-year-olds.

[00:06:28] Speaker 02:
But the point is that, and the government, again, does not dispute that two 17-year-olds exchanging consensual messages who are in an ongoing sexual relationship would be swept in by the statute.

[00:06:39] Speaker 02:
And that's the primary reason that it's overbroad.

[00:06:42] Speaker 03:
So if we read 1227 as including child endangerment,

[00:06:49] Speaker 03:
Why would a violation of 288 to G not be encompassed by 1227?

[00:06:56] Speaker 02:
Well, as we argue in our opening letter brief, we think that the statutory phrase, crime of child abuse, child neglect, or child abandonment, even if it's considered as a unitary concept, is best read to cover non-injurious conduct, only where there's some duty to care for the child.

[00:07:14] Speaker 03:
and that neither We argue in our opening brief that that's an offer to distribute a harmful matter But I guess what I'm saying is let's assume that we don't all agree at the end of it the the three people that you see here are the ones that are going to be telling you that so if we if we don't agree with how you're reading it sure why wouldn't I

[00:07:38] Speaker 03:
288 2g not be encompassed by 1227 if that's a hypothetical you're saying there's reasons we shouldn't read it that way but if we did your question is why wouldn't be child neglect if we read 1227 as including child endangerment if that if we publish on that and say that it does then do you lose

[00:07:59] Speaker 02:
No, we don't lose, because there's, under Esquivel-Quintana, the generic age of consent is 16, and there's simply no danger to someone who is of an illegal age to consent to sexual intercourse, and that's by extension, explicit messaging about that intercourse in the consensual exchange of messages.

[00:08:17] Speaker 02:
And again, the minimum culpable conduct here would be 17-year-olds exchanging messages.

[00:08:23] Speaker 02:
And they would not be endangered by that because they could legally consent to the underlying conduct that's described.

[00:08:29] Speaker 01:
I think you raised this earlier, but why do we think that there's a realistic probability that California would prosecute that?

[00:08:34] Speaker 02:
So again, the government hasn't argued that there's not a realistic probability.

[00:08:37] Speaker 02:
So I don't see that issue being before the court.

[00:08:39] Speaker 02:
But the California statute defines a minor as being someone under the age of 18.

[00:08:44] Speaker 02:
So it expressly sweeps more broadly than what we're arguing the generic definition is.

[00:08:48] Speaker 01:
But you don't have a case of anything like that?

[00:08:51] Speaker 01:
Like if a 17-year-old on 17-year-old

[00:08:53] Speaker 02:
No, no.

[00:08:54] Speaker 02:
But again, under this court's case law, in cases like Chavez Solis, the court has said that where the state statute expressly sweeps more broadly than the generic definition, no legal imagination is required to find a realistic probability.

[00:09:11] Speaker 02:
So we believe that we have some.

[00:09:12] Speaker 03:
Do you want to save the balance of your time?

[00:09:13] Speaker 02:
I would.

[00:09:14] Speaker 02:
Thank you.

[00:09:14] Speaker 02:
Thank you.

[00:09:29] Speaker 03:
Good morning.

[00:09:30] Speaker 00:
Good morning, Your Honor.

[00:09:31] Speaker 00:
May it please the Court, Matthew George for the Attorney General.

[00:09:34] Speaker 00:
I want to jump into this hypothetical that's been proposed by petitioner here about the consensual activity between 17-year-olds.

[00:09:42] Speaker 00:
I think the first point is, as the Court has already sort of brought up, of the Duenas-Alvarez type of position.

[00:09:48] Speaker 00:
I guess I wasn't as explicit as I should have been in the letter brief about that, but that's the point I was getting at about whether they haven't shown that to be the case.

[00:09:57] Speaker 00:
And so that's one response.

[00:09:59] Speaker 01:
The other issue... They haven't shown that, what, that it's a realistic probability?

[00:10:04] Speaker 00:
Correct.

[00:10:04] Speaker 00:
They haven't shown us a case or shown the facts in this case meet that hypothetical scenario.

[00:10:10] Speaker 00:
The other issue with that, with this sort of hypothetical, is I think our sort of lay picturing of what that factual scenario looks like, and it also ignores the statutory language about the intents in this statute, which are the intent to arouse and the intent to seduce.

[00:10:28] Speaker 00:
And so it's not simply

[00:10:30] Speaker 00:
sort of a strict liability type of situation where consensual teenagers were sending sexy pics or whatever it might be.

[00:10:38] Speaker 00:
It necessarily includes that intent to arouse and that intent to seduce, which the California courts have said gets us into the harm in this case, the emotional harm, the injury to morals.

[00:10:50] Speaker 00:
It requires this exploitation, this predation, this grooming type of activity.

[00:10:56] Speaker 01:
So then how does that fall into Esquivel-Quintana territory, though?

[00:11:01] Speaker 00:
That's sort of the situation where we're looking at an apple and an orange and we're saying they're both fruit.

[00:11:08] Speaker 00:
Esquivel obviously involves sexual abuse of a minor.

[00:11:12] Speaker 00:
This case involves the crime of child abuse.

[00:11:15] Speaker 00:
They both have the word abuse.

[00:11:17] Speaker 00:
However, as the board explicitly points out in Velasquez's Herrera, the concept of child abuse is separate from both the words child and abuse.

[00:11:26] Speaker 01:
And looking at blacks, at least the... No, as I read it, as Keval Kuntan is saying, sex between two minors, two 17-year-olds is not illegal, cannot be legal.

[00:11:37] Speaker 01:
But the point here is that if you send, if two 17-year-olds send each other communications to try and have sex, then that could be, right?

[00:11:47] Speaker 00:
That could be a crime of child abuse.

[00:11:50] Speaker 00:
Yes.

[00:11:50] Speaker 00:
Well, it is here, yes.

[00:11:52] Speaker 01:
But I guess I'm not saying it's a problem.

[00:11:54] Speaker 01:
But Esquivel is saying if two 17-year-olds are having sex, that that's not child abuse, correct?

[00:12:00] Speaker 01:
No, that's not sexual abuse of a minor.

[00:12:02] Speaker 01:
Right.

[00:12:03] Speaker 01:
But then if a 17-year-old propositions another 17-year-old, you're saying that could be a crime of child abuse.

[00:12:09] Speaker 00:
If it met the definition of the statute in this case, yeah, it met a conviction in this case, yes.

[00:12:14] Speaker 00:
Going beyond that in terms of more hypothetical contact, I'm not really sure because we're looking at this particular issue.

[00:12:23] Speaker 01:
In addition... I guess I'm just confused about if having sex between two 17-year-olds is not child abuse, but sending material to another 17-year-old to procure sex is.

[00:12:35] Speaker 01:
How can that be a distinction?

[00:12:37] Speaker 00:
It might not be sexual abuse of a minor, and that's where Schauff comes in.

[00:12:41] Speaker 00:
Schauff was a sexual abuse of a minor case.

[00:12:44] Speaker 00:
And so what they were just maybe a natural extension of that is if the activity itself wouldn't be sexual abuse of a minor, then sort of communicating about that activity might not be sexual abuse of a minor.

[00:12:55] Speaker 00:
But that's distinct from crime of child abuse.

[00:12:58] Speaker 01:
I see.

[00:12:59] Speaker 00:
OK.

[00:13:00] Speaker 00:
And if you look at blacks or any legal dictionary, sexual abuse like child abuse is defined separately.

[00:13:07] Speaker 00:
It's a distinct concept itself.

[00:13:09] Speaker 01:
Then abuse of a minor is different than child abuse?

[00:13:12] Speaker 00:
I couldn't find abuse of a minor, but child abuse is defined separately, sexual abuse is defined separately, including the concept of like rape is one definition of sexual abuse, not necessarily of a minor.

[00:13:26] Speaker 03:
Well, so is the statute overbroad because it might cover the transmission of harmful materials to an individual that the defendant believes to be a minor but is actually an adult?

[00:13:38] Speaker 00:
Not this statute, because this statute requires a completed crime.

[00:13:42] Speaker 00:
And that's what the California courts have told us in column specifically.

[00:13:46] Speaker 00:
That's a case I cited in the brief.

[00:13:49] Speaker 00:
A conviction under this statute requires the completed crime, which requires both that the victim is an actual minor and that the victim actually received the harmful material.

[00:14:01] Speaker 00:
So maybe that's a question for a different statute.

[00:14:04] Speaker 00:
That's not the statute we have here.

[00:14:06] Speaker 00:
That's not the conviction we have here.

[00:14:08] Speaker 01:
OK, thank you.

[00:14:09] Speaker 01:
So you're saying that Esquivel-Quintana would have come out differently if the crime was of child abuse versus sexual abuse of a minor.

[00:14:17] Speaker 00:
It very well may have, Your Honor, yes.

[00:14:19] Speaker 01:
I'm not sure I would believe that.

[00:14:22] Speaker 00:
I guess what's the difference between those two?

[00:14:23] Speaker 00:
Well, they're different words.

[00:14:26] Speaker 00:
I mean, it gets into some of the

[00:14:28] Speaker 00:
the tools we use to define this crime, the generic definition of the crime.

[00:14:32] Speaker 00:
One is we're looking at if they're in different sections of the immigration nationality.

[00:14:37] Speaker 01:
How is it child abuse if a 17-year-old is having consensual sex with another 17-year-old?

[00:14:43] Speaker 00:
If they're having sex?

[00:14:44] Speaker 00:
Well, I don't know.

[00:14:46] Speaker 01:
We have to look at the... No, under your definition of child abuse, how is that child abuse?

[00:14:51] Speaker 01:
How is that child abuse having?

[00:14:53] Speaker 01:
Two 17-year-olds having consensual sex.

[00:14:55] Speaker 01:
How is that child abuse?

[00:14:56] Speaker 00:
I'm not sure that would be, because I don't know if there's maltreatment of the child.

[00:14:59] Speaker 00:
I mean, unless the state has defined it in that way.

[00:15:02] Speaker 00:
Like here, because we have those.

[00:15:04] Speaker 01:
Well, you just said that if Quintana Esquivaldo looked at child abuse, then it could have come out differently.

[00:15:14] Speaker 00:
Right.

[00:15:15] Speaker 01:
So you have to show me how two 17-year-olds having consensual sex could be child abuse.

[00:15:20] Speaker 01:
how it could be.

[00:15:21] Speaker 01:
Yes.

[00:15:23] Speaker 00:
I mean, it would depend on the crime being charged.

[00:15:27] Speaker 00:
I mean, it could be an abusive situation.

[00:15:30] Speaker 00:
It could be... It's consensual.

[00:15:32] Speaker 00:
Right.

[00:15:34] Speaker 00:
If it's consensual, there's no age difference.

[00:15:36] Speaker 00:
Yes.

[00:15:37] Speaker 00:
I mean, it wouldn't be sexual abuse of a minor.

[00:15:41] Speaker 00:
I'm not... But you're saying it could be child abuse, right?

[00:15:44] Speaker 00:
I'm not sure I am necessarily saying it could be child abuse.

[00:15:48] Speaker 03:
Well, aren't we, if we, wouldn't we read Esquivel Cantana as solely limited to statutory rape offenses that criminalize conduct based solely on the age of the participants?

[00:16:02] Speaker 00:
Yes, Your Honor.

[00:16:02] Speaker 00:
I mean, that's explicitly what Esquivel says it's limited to.

[00:16:05] Speaker 00:
And if you look at cases like Shaw, I mean, that is another sexual abuse of a minor case.

[00:16:11] Speaker 00:
Now, sexual abuse could be a subset of child abuse.

[00:16:14] Speaker 00:
It's sort of, if you look at the Venn diagram of child abuse being the big circle, maybe it's a wholly encompassed circle within it.

[00:16:21] Speaker 00:
And maybe, OK, if it's a consensual activity between two 17-year-olds, maybe that hole is removed from the bigger one.

[00:16:27] Speaker 00:
But we still have the bigger circle encompassing child abuse.

[00:16:33] Speaker 00:
And that's what we have.

[00:16:35] Speaker 01:
I think that's a better distinction of Quintana Esquivel than just saying they're different words.

[00:16:41] Speaker 00:
The fact that one's limited to statutory rape versus... I mean, that's what Esquivel itself says, that that's what it's limited to.

[00:16:48] Speaker 00:
And some of the same principles in terms of looking at the generic definition.

[00:16:52] Speaker 00:
For example, they're in different statutory sections.

[00:16:56] Speaker 00:
Sexual abuse of a minor is an aggravated felony versus a kind of child abuse is in

[00:17:03] Speaker 00:
a different subsection of the Immigration and Nationality Act.

[00:17:06] Speaker 00:
It doesn't impose all of the penalties that an aggravated felony would impose.

[00:17:11] Speaker 00:
In a different section with different penalties, so on and so forth, that's one factor that courts have looked at in terms of distinguishing that language and looking at Esquivel in terms of what impact it has.

[00:17:25] Speaker 00:
And many courts have said it has no impact in the child abuse realm.

[00:17:30] Speaker 00:
Thompson is a case out of the Fourth Circuit where they say it simply doesn't apply because it only really applies where the crime is based solely on an age difference, where we have explicit intents like we do here, an intent to arouse, an intent to seduce.

[00:17:46] Speaker 00:
That's bringing in more of that harmful language and making more of a distinction into that.

[00:17:56] Speaker 00:
In terms of, again, to the generic definition, I feel like in this case, we've been arguing more on sort of the negative and what shouldn't be included.

[00:18:05] Speaker 00:
But in terms of a generic definition, even if it's just child abuse, Velasquez-Harrera is a good starting point, at least, as is the plurality decision in Diaz-Rodriguez.

[00:18:19] Speaker 00:
Obviously, that's been vacated.

[00:18:20] Speaker 00:
They both engage in the same, in terms of what value does Esquivalt

[00:18:24] Speaker 00:
Provide to us, it's engaging in that analysis of what do we look at to interpret the statutory language.

[00:18:30] Speaker 00:
It's looking at dictionary definitions.

[00:18:32] Speaker 00:
It's looking at the statutory construction.

[00:18:34] Speaker 00:
It's looking at the 50-state survey of what was going on in all the states in these types of child abuse, child neglect, child abandonment type of crimes.

[00:18:48] Speaker 00:
Even if we're just sort of going to apply the definition that Velasquez Herrera set out,

[00:18:53] Speaker 00:
even if we're going to say some sort of, it doesn't necessarily require physical harm, however slight it can also include emotional harm, it can include injury to morals, and that's what Frigoso as well recognized.

[00:19:05] Speaker 00:
That could be the harm, if we're going to say harm is required.

[00:19:08] Speaker 00:
This statute meets that harm because of that intent to arouse, because of that intent to seduce.

[00:19:13] Speaker 00:
It's not simply sending consensual material, it's including those bad intents, and that's what California courts have said get us into.

[00:19:23] Speaker 00:
That predation exploitation injury to morals type of area I see my time is up unless there's any other questions Don't appear to be thank you I'm very briefly because I don't have much time

[00:19:52] Speaker 02:
I heard my friend concede that two 17-year-olds having consensual sex would not constitute child abuse.

[00:19:59] Speaker 02:
I believe that would suffice to resolve this case.

[00:20:02] Speaker 02:
But anyway, I would note that California's definition of harmful matter doesn't actually require harm.

[00:20:07] Speaker 02:
It's simply a description of matter.

[00:20:09] Speaker 02:
So there's no finding of harm here with respect to a conviction.

[00:20:15] Speaker 02:
That's just not baked into the statute.

[00:20:17] Speaker 02:
I also want to note that intent to seduce

[00:20:21] Speaker 02:
or arouse someone who is of an age to consent, just like knowledge that they are of an age to consent, although of a minor, simply can't convert conduct that's not abusive into abusive conduct.

[00:20:33] Speaker 02:
That would be the equivalent of finding that having an evil meaning mind in and of itself can render a conduct that is legal, illegal.

[00:20:41] Speaker 02:
And there's just no basis for that.

[00:20:44] Speaker 02:
Esquivel Contana doesn't supply a basis for that.

[00:20:46] Speaker 02:
especially since the statute at issue in Esquivel-Quintana essentially baked in a mens rea element in that if the defendant asserted a mistake of age defense, the prosecutor would have to prove mens rea beyond a reasonable doubt.

[00:20:59] Speaker 02:
And that's not something the Supreme Court mentioned, and it certainly would have if that were important.

[00:21:05] Speaker 02:
We'd ask the court to grant the petition.

[00:21:07] Speaker 03:
Thank you.

[00:21:08] Speaker 03:
All right.

[00:21:08] Speaker 03:
Thank you both for your argument in this matter.

[00:21:10] Speaker 03:
It will stand submitted.