[00:00:00] Speaker 03: 19-71322 and I believe that council in both cases are on both sides are appearing remotely and so [00:00:27] Speaker 03: All right, so each side has ten minutes. [00:00:29] Speaker 03: We're ready. [00:00:30] Speaker 03: Thank you. [00:00:34] Speaker 00: Good morning, Your Honors. [00:00:35] Speaker 00: May it please the Court. [00:00:36] Speaker 00: My name is Octavian Jumanca, counsel for petitioner, Mr. Gonzalez-Gadinas. [00:00:40] Speaker 00: I would like to reserve two minutes for rebuttal possible. [00:00:46] Speaker 00: Before the Court, there are two questions. [00:00:49] Speaker 00: One is whether Mr. Gonzalez-Gadinas is removable from the United States for his conviction under [00:00:54] Speaker 00: ORS organ revised statute 163.670, and if so, if the immigration judge erred in precluding relief through cancellation of removal on account of his conviction despite finding the petitioner as rehabilitated. [00:01:09] Speaker 00: I believe the court need not afford any change in deference under Skidmore to the agency's interpretation of a crime of child abuse to hold that this statute is not a crime of child abuse. [00:01:19] Speaker 00: That is because this statute closely mirrors the language and scope of CPC 288 C1, which this court had previously held in Menendez, is not a crime of child abuse under the previous Chevron difference. [00:01:34] Speaker 00: in that it did not require proof of an actual injury or a sufficiently high risk of harm as an element of the offense, and it did not require that a defendant act with a mens rea of at least criminal negligence. [00:01:46] Speaker 00: First, this statute criminalizes using a child in a display of sexually explicit conduct, including lewd exhibition for someone to observe or record. [00:01:56] Speaker 00: These elements do not require the government to prove actual injury, and you do not require to prove a sufficiently high risk of harm as an element. [00:02:03] Speaker 00: that absence under Menendez, Menendez did not turn on whether the conduct is morally troubling. [00:02:10] Speaker 00: In the ordinary case, it turned on what the statute requires to convict. [00:02:13] Speaker 00: Here, Oregon can obtain a conviction based on the existence of a display that fits the statute's definition, without litigating injury and without litigating high-risk endangerment as a required element. [00:02:24] Speaker 00: Second, it does not contain the kind of mens rea for [00:02:28] Speaker 00: that Menendez uses as a dividing line. [00:02:31] Speaker 00: The statutes operating verbs employ, authorize, permit, compel, induce, do not themselves impose a mens rea of at least criminal negligence with respect to harm or risk of harm. [00:02:43] Speaker 00: And critically, the statute is not an endangerment statute. [00:02:47] Speaker 00: does not ask whether the defendant created a danger to the child's well-being. [00:02:51] Speaker 00: It asks whether the defendant used, caused, or allowed participation in a statutorily defined display. [00:02:58] Speaker 00: So even if the government characterizes the offense as intentional sexual wrongdoing, the point under Menendez is the statute still does not require the prosecution prove the defendant acted with at least [00:03:11] Speaker 00: criminal negligence as to the injury or endangerment because injury endangerment is not an element the jury must find at all. [00:03:20] Speaker 00: As you may have noticed, I sometimes use the past tense in referring to the statute, and that is because this statute presents a unique situation in which the Oregon Court of Appeals has actually issued a ruling narrowing the precise statutory text that issued before this court, specifically regarding the admittedly excessively broad definition that Oregon had previously afforded to the term lewd exhibition. [00:03:44] Speaker 00: And that was in 2023 in State v. Paris Sanchez, where they focused on the display term. [00:03:51] Speaker 00: There, the counts were not based on photographs, recordings, or staging a child for an audience. [00:03:57] Speaker 00: They were based on repeated intrusive live viewing of the defendant's minor daughter in ordinary undressed contexts, conduct that the state argued became lewd solely because of the defendant's own subjective sexual motivation. [00:04:13] Speaker 00: Court of Appeals recognized that to decide the statutory question, the facts sparkly presented, does sexual gratification alone transform passive observation [00:04:27] Speaker 00: into lewd exhibition. [00:04:30] Speaker 00: Those facts matter because adopting a purely subjective test would mean the same objectively ordinary nudity could become felony display depending entirely on what's in the viewers' head. [00:04:41] Speaker 00: A move the court said did not support and raises constitutional due process problems. [00:04:48] Speaker 00: Sarah Sanchez squarely acknowledged the pitfalls created by Oregon [00:04:53] Speaker 00: by earlier Oregon cases that drifted towards subjective conception of lewd exhibition, where the observer's intent could do too much work. [00:05:03] Speaker 00: The court explained why that approach created over-breath. [00:05:07] Speaker 00: When a minor's nudity or sexual activity is self-initiated, another person's unexpected observation or recording of it does not automatically transform the situation into lewd exhibition or mean that the observer permitted the child to engage in it. [00:05:22] Speaker 00: What Perisensis does is recognize this glaring hole in the statute and corrects that by making the inquiry objective. [00:05:32] Speaker 00: The defendant permitted the child's actual participation in the conduct. [00:05:37] Speaker 00: The conduct is objectively limited. [00:05:39] Speaker 01: Can you go back to your mens rea argument? [00:05:41] Speaker 01: You're saying that it doesn't meet the criminal negligence standard? [00:05:47] Speaker 00: Yes, for the injury requirement. [00:05:51] Speaker 00: So much like in Menendez, this statute does not require any mens rea as to an actual injury to the child or pricing the child at a higher risk of harm. [00:06:06] Speaker 01: But you have to use it, you have to have intent, you agree that it's intent or knowledge that you're using a child in a display of sexually explicit conduct, correct? [00:06:14] Speaker 00: Well, that sort of really bleeds into this Paris Sanchez case because it sort of goes into the whole... But the Orkin case, the Orkin courts have repeatedly interpreted the statute to require immense rate of intent or knowledge. [00:06:29] Speaker 03: Am I wrong? [00:06:31] Speaker 00: As to the conduct or the age? [00:06:40] Speaker 00: your honor I'm not saying that you're wrong what I am saying is that at the very least when it comes to the actual harm or risk [00:06:49] Speaker 00: there has been a glaring change in the way this statute is now being prosecuted after 2023 and the way it was previously prosecuted, which goes to the actual risk of harm or any actual harm to the child. [00:07:06] Speaker 00: And that would be the second reason. [00:07:08] Speaker 01: But if you intentionally or with knowledge use a child in the display of sexually explicit conduct, how does that not lead to a risk of harm? [00:07:16] Speaker 00: Well, that's what Paracentra's exemplified there, is that a child, I mean, the whole issue was that if the conduct is self-initiated by the child and there's a... No, but you're using intent and knowledge that you're going to explicitly display the child sexually. [00:07:34] Speaker 01: It seems like it's slam-dunk for harm to the child. [00:07:41] Speaker 00: The courts in Oregon have prosecuted cases in which the display included just self-initiated undressing, and then just by virtue of the fact that a defendant was... I just don't think kids can consent to their being sexually displayed, even if it's consensual. [00:08:00] Speaker 01: It's still harmful to them, even if they don't understand it. [00:08:04] Speaker 00: Well, that's exactly what this case in Oregon recognizes, that there can be a prosecution, and there was a prosecution where there was a self-initiated undressing, somebody observed, and then the court or the jury had to determine whether the viewer subjectively was aroused, and if so, he was punishable under the statute. [00:08:24] Speaker 00: And the question was, does that really create a risk or a harm to that child? [00:08:29] Speaker 00: And if you read the concurrence in that case, [00:08:32] Speaker 00: The court recognizes that at most something like this would qualify as an invasion of privacy under a different statutory law. [00:08:40] Speaker 00: And that's why they chose to restrain the definition of this element within the statute and adopt the federal generic definition and an objective definition as well. [00:08:52] Speaker 00: And I'll, Your Honor, if you have any more questions for me, otherwise I'll reserve my time. [00:08:58] Speaker 03: All right. [00:08:59] Speaker 03: You can do that. [00:08:59] Speaker 03: Thank you. [00:09:01] Speaker 03: All right, we'll hear from the government. [00:09:08] Speaker 02: Thank you, Your Honor. [00:09:09] Speaker 02: Good morning. [00:09:10] Speaker 02: May it please the Court, Kylie Kane on behalf of the Attorney General. [00:09:14] Speaker 02: Your Honors, Mr. Gonzalez was convicted of what the Oregon State Court described as the most serious – one of the most serious crimes in the state. [00:09:22] Speaker 02: It is one of only four that are described as major felony sex crimes, a Class A felony [00:09:28] Speaker 02: And the minimum conduct criminalized under this statute is knowingly causing a child to engage in lewd exhibition of their intimate parts for a person to observe or record. [00:09:40] Speaker 02: And it's what the Oregon State Courts essentially call production of child pornography for display. [00:09:47] Speaker 02: I think the Paris Sanchez case that my friend is referring to doesn't have that much impact on whether or not this case [00:09:56] Speaker 02: conviction falls under the generic definition of child abuse, it probably has pretty big impact for a criminal defendant that might be facing this charge, state court, because it goes to what the prosecution has to show. [00:10:08] Speaker 02: But under the old interpretation and under the new interpretation, it went from like a subjective [00:10:15] Speaker 02: defendant's intent to more objective criteria. [00:10:19] Speaker 02: Both of them require that you're showing a child sexual or other intimate parts or a salacious intent or focused on sex. [00:10:29] Speaker 02: So all the Parisian chess case really did was change sort of the, I guess, evidentiary inquiry into the prosecution's burden to show what sexual explicit conduct really means. [00:10:44] Speaker 02: And I take Judge Fudeme's point, and we made this point in the brief, that essentially, I mean, all over these Oregon state court decisions indicate that a child cannot consent to this kind of conduct. [00:10:55] Speaker 02: Now, my friend on the other side is suggesting that what could happen is a child could self-initiate this sort of conduct and send it, I guess, to a defendant and they could be convicted. [00:11:05] Speaker 02: But that's not at all true, because there has to be an intentional or knowing act [00:11:11] Speaker 02: that induces or coerces or permits a child to engage in conduct that they cannot consent to under Oregon state law. [00:11:20] Speaker 02: And the Oregon Supreme Court has said, and this is in the state... So what would you say is the mens re? [00:11:29] Speaker 03: It's intentional or knowing. [00:11:31] Speaker 03: Okay, intent or knowledge, right? [00:11:33] Speaker 02: Yes, yes. [00:11:35] Speaker 02: And I didn't think that that was actually in dispute. [00:11:37] Speaker 02: And I think there's a little bit of blurring, I guess, about conduct versus the mens rea here. [00:11:43] Speaker 02: I think my friend probably does agree it's intentional or knowing. [00:11:47] Speaker 02: What we're actually fighting over is whether the act itself, I guess, meets the maltreatment definition under Velazquez or whatever the court may come up with. [00:11:57] Speaker 02: And the minimum conduct here has to be lewd. [00:12:01] Speaker 02: It has to be lewd. [00:12:02] Speaker 02: And all the Pereira Sanchez Oregon Appellate Court decision did was change its definition to an objective one rather than a subjective one. [00:12:12] Speaker 02: But that didn't change the mens rea for the statute. [00:12:15] Speaker 02: And I think that's where I can disagree with his argument a little bit. [00:12:19] Speaker 02: You know, one of the through lines through a lot of the Oregon State Court decisions is that children cannot consent to this kind of conduct and that itself makes the conduct harmful. [00:12:31] Speaker 02: So even under a very restrictive definition of crime of child abuse, generic definition that might require harm, would require intentionality or knowledge, this would easily clear that bar using Oregon state law to support that. [00:12:46] Speaker 02: These convictions require harm to a child because a child producing themselves for child pornography is harmful, per se. [00:12:55] Speaker 02: And that's where the government's position could clear even the highest. [00:12:57] Speaker 01: So you're saying in this case, we don't have to reach what's the definition of a crime of child abuse, child neglect, or child abandonment under any definition it meets the threshold. [00:13:09] Speaker 01: Is that your position? [00:13:10] Speaker 02: I would think so. [00:13:10] Speaker 02: I mean, I could not imagine one. [00:13:12] Speaker 02: And Mr. Gonzalez's counsel is not advancing any definition that this wouldn't clear. [00:13:18] Speaker 02: Yes. [00:13:19] Speaker 02: It doesn't really implicate the endangerment offenses or the criminal negligence, mens rea, and those things that you've discussed in these other cases. [00:13:29] Speaker 02: If the court doesn't have further questions, I'm happy to yield my time. [00:13:32] Speaker 02: I think the Oregon state law clearly clears the bar here and I have nothing further to add unless you have further inquiry. [00:13:41] Speaker 03: We do not have further questions. [00:13:43] Speaker 03: Thank you. [00:13:44] Speaker 02: Okay. [00:13:44] Speaker 02: Thank you very much. [00:13:45] Speaker 03: All right. [00:13:46] Speaker 03: We'll go back to your friend on the other side has a few a little over a minute for rebuttal. [00:13:52] Speaker 03: Go ahead. [00:13:56] Speaker 03: Oh, we can't hear you. [00:14:00] Speaker 00: I would like to go back to the actual harm element here. [00:14:06] Speaker 00: I do think it's important to understand just how crucial the definition of subjective versus objective intent is here because we can imagine multiple scenarios where [00:14:19] Speaker 00: A subjective intent is just what the jury decides was in the mind of the person viewing or displaying or even seeing a child, even a fully clothed child may have felt based on what the jury fears as evidence at the trial. [00:14:38] Speaker 00: It does not create a [00:14:41] Speaker 00: standard that is uniform. [00:14:43] Speaker 00: It opens the door for criminal conduct that falls way outside of the scope of what's recognized as a general generic federal offense here. [00:14:53] Speaker 00: That is why this statute mirrors that [00:14:56] Speaker 00: within the one in Menendez where the court similarly said it was not a crime of child abuse because there is no actual harm and the statute as it was before this definition did not require a showing that this child was placed at a sufficiently high risk of harm. [00:15:15] Speaker 00: Now granted, after the court's redefinition of this case and change of the term of lewd and levicious [00:15:25] Speaker 00: One could say that yes, this is now a crime of child abuse. [00:15:28] Speaker 00: However, this case shows that prior to this case, it fell outside of that scope, outside of the generic federal definition and criminalized conduct, outside of that scope. [00:15:40] Speaker 00: And that is why it's categorically not a crime of child abuse. [00:15:42] Speaker 00: Thank you, Your Honors. [00:15:43] Speaker 03: All right. [00:15:44] Speaker 03: Thank you both for your argument today. [00:15:46] Speaker 03: This matter will stand submitted.