[00:00:00] Speaker 02:
We'll turn now to 24-2117.

[00:00:02] Speaker 02:
And I'm not going to be able to pronounce the name of the defendant, US versus Bindway.

[00:00:11] Speaker 03:
I believe it's Binduce.

[00:00:13] Speaker 02:
Binduce, OK.

[00:00:26] Speaker 03:
Mr. Boland?

[00:00:29] Speaker 03:
May it please the court, my name is John Bolin of the firm of Bolin and Schall, appearing on behalf of Mr. Jonathan Binduz.

[00:00:40] Speaker 03:
Now I suspect that we can all agree that we don't want to live in a world where it's okay for a high school coach to ask a 15-year-old student for nude photographs.

[00:00:52] Speaker 03:
The good news is, of course, that that's not okay.

[00:00:54] Speaker 03:
There's a federal statute

[00:00:56] Speaker 03:
for enticement of a minor, section 2422, of which Mr. Bendous was convicted in this case.

[00:01:03] Speaker 03:
And of course, there are state level statutes prohibiting that and other criminal sexual behavior with minors.

[00:01:12] Speaker 03:
But we're here for something else, which is whether those text messages can constitute coercion of a child for the purpose of producing child pornography.

[00:01:23] Speaker 03:
And our contention is that there's insufficient evidence of those particular elements.

[00:01:31] Speaker 03:
There were certainly many sexual discussions between the two.

[00:01:33] Speaker 03:
There were requests to see parts of Jane Doe's body, that sort of thing, but there is simply no request in these 17,000 text messages.

[00:01:47] Speaker 03:
from Mr. Bendues that she create a photograph or a video of sexual activity or of lascivious exhibition of the genitals or pubic area of the minor in this case.

[00:02:02] Speaker 02:
Well, it may not be coercion, but I believe the statutory language was employed, used, persuaded, induced, enticed, or coerced.

[00:02:11] Speaker 02:
Yes, Your Honor, it is.

[00:02:14] Speaker 02:
We could totally agree with you that there wasn't coercion and still uphold the conviction on the ground that it was enticed or induced, couldn't we?

[00:02:23] Speaker 02:
No, Your Honor.

[00:02:23] Speaker 02:
I don't believe that there is evidence of enticement or inducement.

[00:02:26] Speaker 02:
No, no, no.

[00:02:28] Speaker 02:
Abstractly.

[00:02:29] Speaker 02:
Even if you're right that there wasn't coercion, there still could be grounds, these other grounds.

[00:02:34] Speaker 03:
Yes, Your Honor.

[00:02:34] Speaker 02:
If you just mentioned coercion, I thought, gee, I must have misremembered the statute.

[00:02:42] Speaker 03:
No, you're correct, Your Honor.

[00:02:43] Speaker 03:
I was just using one of the many different ways that you could prove it.

[00:02:47] Speaker 01:
But either way, since there was no request for... Well, how about I sent you a pic of my manhood, and what have you sent me, question mark, question mark?

[00:02:56] Speaker 01:
I mean, he wants reciprocal pictures.

[00:03:01] Speaker 03:
Well, there's no question that he did ask for nude photographs.

[00:03:05] Speaker 03:
But the references that the government relies on in this case

[00:03:10] Speaker 03:
are never any more specific than that.

[00:03:15] Speaker 03:
I think that that particular exchange that the court is pointing out is not a specific request.

[00:03:23] Speaker 03:
And because this case is quite different from your ordinary case that goes under this statute, I think that's the problem.

[00:03:32] Speaker 01:
How specific do you think it needs to be?

[00:03:36] Speaker 03:
Well, it has to reach the point where a jury could determine beyond a reasonable doubt that his intent was to convince her to send a video.

[00:03:48] Speaker 03:
His purpose was to convince her to send a video specifically of sexual conduct.

[00:03:57] Speaker 03:
And reading those 17,000 text messages, it's certainly sufficient evidence

[00:04:05] Speaker 03:
that he induced her into sexual contact, into sexual discussions, and even, you know, to send nude photographs, but he just hasn't taken that final step in those text messages.

[00:04:20] Speaker 01:
Does it matter how she interpreted it?

[00:04:22] Speaker 01:
I mean, it's pretty clear she interpreted it that he wanted a video, and I mean, I don't want to get too graphic here, but she talks about a video of her fingering herself.

[00:04:34] Speaker 01:
I mean, she certainly understood that's what he wanted.

[00:04:37] Speaker 01:
Does that mean that the jury could look at that and infer it was his intent for her to understand that?

[00:04:46] Speaker 03:
Well, I don't think you could infer from that fact that she thought he was trying to get her to do that.

[00:04:54] Speaker 03:
At most I think you could infer that she decided to do that.

[00:05:01] Speaker 03:
And I think there's a very small but important difference in that this conduct just hasn't crossed the line.

[00:05:08] Speaker 01:
She offered to send him a sneak peek, which she understood to be nudes.

[00:05:13] Speaker 01:
And he said, F, a sneak peek, I want more baby.

[00:05:18] Speaker 01:
And then she responded that she was too tired to take a video right now.

[00:05:22] Speaker 01:
I mean, it seems to me that a jury could look at that and

[00:05:31] Speaker 01:
it would be sufficient evidence under the requirements of the statute.

[00:05:38] Speaker 03:
Respectfully, Your Honor, we disagree because it just hasn't crossed that line into asking for that type of video.

[00:05:44] Speaker 01:
So you think he had to say, I want you to send me a video of you performing a sex act on yourself.

[00:05:54] Speaker 03:
He wouldn't have to use that formal language, but he'd have to make some kind of request like that in order to transform this because

[00:06:01] Speaker 03:
In the ordinary case, the criminal defendant is often using the camera themselves.

[00:06:10] Speaker 03:
Often they may have a sort of customer base for this or a place where they upload these photographs.

[00:06:18] Speaker 03:
That's what we all think of when we think of someone producing pornography.

[00:06:23] Speaker 03:
But in this case, Mr. Bindu's had an inappropriate sexual relationship with Jane Doe.

[00:06:31] Speaker 03:
And through their text messages, these videos were exchanged, but there isn't enough evidence to take that into the world of producing child pornography.

[00:06:45] Speaker 01:
He says he wants, he's still waiting to watch you though.

[00:06:49] Speaker 01:
No, I want to watch you with yourself.

[00:06:51] Speaker 01:
I mean, that doesn't sound like a nude photo.

[00:06:53] Speaker 01:
That sounds like action.

[00:06:55] Speaker 03:
Yes, Your Honor, that particular exchange was from her comments of how she wanted him to watch her while having sex, and she said, but I guess you don't really have to watch me because you can feel me, which implies that this whole, that portion of the discussion was all about in-person sexual contact, and so that he wanted to watch her in person as opposed to create a video and send it to me, as we may be thinking.

[00:07:23] Speaker 03:
Now we also raised as an issue in our brief whether the district court erred in allowing the government's expert witness who showed up to testify about grooming behaviors.

[00:07:37] Speaker 01:
I was confused by your brief of whether you're arguing that the district court failed to perform its gatekeeping function or applied the wrong standard in doing so or whether you're saying that the court

[00:07:52] Speaker 01:
applied the correct standard but abused its discretion.

[00:07:56] Speaker 01:
And the reason it matters is there are different standards of review.

[00:07:59] Speaker 03:
Yes, Your Honor.

[00:08:02] Speaker 03:
The court, in our opinion, just abused its discretion when attempting to fulfill its gatekeeping role.

[00:08:14] Speaker 03:
Because the court did give Mr. Bindus all the procedural

[00:08:19] Speaker 03:
process that he was entitled to.

[00:08:22] Speaker 03:
There was a Dowbrook hearing, and the court made its decision according to the proper principles of law.

[00:08:31] Speaker 03:
But of course, the court, in our view, misapplied those principles of law.

[00:08:38] Speaker 03:
And in doing so, it led in an expert testimony and argument from the government

[00:08:45] Speaker 03:
that Mr. Bindus had groomed this victim.

[00:08:51] Speaker 03:
But the topic of grooming is not an established scientific term.

[00:08:58] Speaker 03:
Our expert pointed out to the court there was no consensus among anyone in the field as to what grooming is or isn't.

[00:09:08] Speaker 03:
And so ultimately our argument is that the label grooming had no meaning at all other than to inflame the passions of the jury against Mr. Bindus.

[00:09:17] Speaker 03:
The jury was entitled to and certainly did read much of the 17,000 text messages that were put in evidence in this case.

[00:09:28] Speaker 03:
Ms.

[00:09:28] Speaker 03:
Doe testified extensively about them as well on the stand.

[00:09:32] Speaker 03:
And so they had the entire interaction between the two right in front of them.

[00:09:36] Speaker 03:
And so the expert testimony that would characterize this as grooming was unnecessary, irrelevant, and also prejudicial.

[00:09:51] Speaker 03:
So under any of those factors, we believe that the expert testimony should have been excluded, and of course that it's inclusion prejudice, Mr. Bindus, because

[00:10:06] Speaker 03:
the jury was presented in this case, as we just discussed, for example, with a sort of abnormal application of the trial pornography statute.

[00:10:17] Speaker 03:
And so the jury had to make that leap or inference, as Judge McHugh mentioned, to get from this interaction

[00:10:28] Speaker 03:
and those text messages to their interactions as a whole being evidence that he induced Ms.

[00:10:36] Speaker 02:
Doe to create these videos.

[00:10:38] Speaker 02:
Are you familiar with this is an unreported decision, but there's a recent unreported order in judgment of our court, United States versus Rivera.

[00:10:46] Speaker 02:
Are you familiar with that?

[00:10:48] Speaker 02:
Yes, Your Honor, yes.

[00:10:51] Speaker 02:
I did review that case.

[00:10:53] Speaker 02:
Do you distinguish that?

[00:10:55] Speaker 02:
I realize it's not binding on us.

[00:10:57] Speaker 02:
Can you distinguish the situation there?

[00:11:00] Speaker 03:
It's not binding on this court and I think that the decision is incorrect and that this court should not follow it.

[00:11:09] Speaker 03:
I think that, you know, grooming is, the grooming decisions are still all over the map because this is, well, I don't know that it's very new but, you know, in applying

[00:11:24] Speaker 03:
these standards to our normal Daubert standards, it doesn't fit.

[00:11:31] Speaker 02:
Well, the normal standards are perhaps scientific expertise, things like that, but the rule doesn't require it to be scientific evidence.

[00:11:42] Speaker 02:
It seems to me it's kind of like the testimony you get when there's been sexual assault on a very small child.

[00:11:53] Speaker 02:
Well, not necessarily a very small child.

[00:11:56] Speaker 02:
And there'll be an expert come in and say it's not unusual for young girls not to report this sort of assault for long periods of time.

[00:12:07] Speaker 02:
And how is that, how is the evidence, the type of evidence we're talking about here different from that type of evidence, which is, I think, well recognized as admissible?

[00:12:19] Speaker 03:
You're correct, that is a well-recognized form of evidence, Your Honor.

[00:12:24] Speaker 03:
And that points to, this is a new argument from the government on appeal, that instead of the scientific style evidence being grooming, that an officer is allowed to speak about things that are based on their experience as a police officer.

[00:12:45] Speaker 03:
And the government cites the Garza case in that regard,

[00:12:48] Speaker 03:
which is specifically about using code words in the drug trade.

[00:12:53] Speaker 03:
And that's something that the jury doesn't understand and that a police officer in the drug world would.

[00:12:58] Speaker 03:
But that is quite different from the FBI coming in and saying, we've established a constellation of behaviors that some sex offenders exhibit and we can't tell you if you see those behaviors whether grooming is happening or not.

[00:13:18] Speaker 03:
until we know that there has been inappropriate sexual contact between parties.

[00:13:23] Speaker 02:
I thought the point that the government was trying to make, the prosecutor was trying to make, was that you don't have to coerce these young girls into this conduct.

[00:13:34] Speaker 02:
It can be done through subtler, less forceful behavior by the adult male.

[00:13:43] Speaker 02:
And just because I'm not sure that

[00:13:49] Speaker 02:
people in general would appreciate that that sort of thing happens.

[00:13:53] Speaker 02:
So isn't that what the purpose of this testimony is?

[00:13:57] Speaker 02:
And isn't that very similar to saying, you know, lots of these young girls don't report the sexual assault for months or years even?

[00:14:08] Speaker 02:
Isn't that the same sort of thing?

[00:14:12] Speaker 02:
Just explaining, yeah, this may not be

[00:14:15] Speaker 02:
This is something you're not familiar with, members of the jury, but this sort of thing happens.

[00:14:20] Speaker 02:
Isn't that the nature of the testimony here and isn't that valuable to the jury?

[00:14:25] Speaker 03:
No, Your Honor, that's not really what Agent O'Donnell testified to.

[00:14:30] Speaker 03:
He testified to certain grooming behaviors like isolating a victim and pretending to be their friend, that sort of thing.

[00:14:39] Speaker 03:
But he couldn't, in the end, say whether those behaviors constituted grooming

[00:14:45] Speaker 03:
in a particular case or not or how the jury could take those behaviors and do anything with those facts.

[00:14:52] Speaker 03:
And because Agent O'Donnell had not actually reviewed the facts of this case and didn't talk about this case at all, he couldn't make the point that young girls can be persuaded in a different way under these dynamics because he

[00:15:08] Speaker 03:
He didn't know that, and he didn't really testify to that kind of facts.

[00:15:12] Speaker 01:
Well, wouldn't you be more upset if he had actually come in and said to the jury, and this case is grooming, he groomed her?

[00:15:21] Speaker 03:
Yes, Your Honor, absolutely.

[00:15:23] Speaker 01:
Yeah, so, I mean, that's typically how it's done, isn't it?

[00:15:26] Speaker 01:
They don't say, this young girl didn't report the abuse for many years because of this.

[00:15:37] Speaker 01:
It's been shown that the delay can be explained.

[00:15:42] Speaker 03:
I see that I'm out of time to answer the question.

[00:15:44] Speaker 03:
Yes.

[00:15:45] Speaker 03:
Okay, thank you.

[00:15:50] Speaker 03:
That just made me lose my train of thought.

[00:15:53] Speaker 03:
Thank you.

[00:15:56] Speaker 03:
Yes, we would be, of course, more angry, as the court put it, if he was talking about the case specifically, but our contention is that

[00:16:06] Speaker 03:
Both are impermissible.

[00:16:07] Speaker 03:
He shouldn't have been allowed to testify in either way.

[00:16:11] Speaker 03:
Thank you.

[00:16:11] Speaker 03:
Thank you, counsel.

[00:16:13] Speaker 03:
Ms.

[00:16:14] Speaker 03:
Roybaugh.

[00:16:23] Speaker 00:
Good morning.

[00:16:24] Speaker 00:
May it please the court, Jamie Roybaugh on behalf of the United States.

[00:16:28] Speaker 00:
Because Mr. Boland started on the sufficiency of the production count, I'm going to start there as well.

[00:16:34] Speaker 00:
As the court is aware, our primary witness at trial was the victim herself.

[00:16:40] Speaker 00:
She testified that during the time frame of the charging time frame she was 14 years old.

[00:16:46] Speaker 00:
Towards the end of that charging time frame she turned 15 years old.

[00:16:49] Speaker 00:
And really the core of our evidence

[00:16:53] Speaker 00:
which I would represent against Mr. Bendous was quite overwhelming, was the 17,275 text messages that the jury got to see.

[00:17:04] Speaker 00:
Those text messages provided the jury with a very clear picture of how a relationship between a coach and a 14-year-old athlete turns into a sexual relationship.

[00:17:15] Speaker 00:
And I think there was no better evidence for the jury than to see Mr. Binduz's own words.

[00:17:21] Speaker 00:
So by the time we got to the conclusion of the charging time frame, there was really no reasonable debate in the courtroom about whether he used, coerced, enticed the minor into producing child pornography for his benefit.

[00:17:36] Speaker 00:
Of course, this court reviews

[00:17:37] Speaker 00:
Sufficiency questions, when viewing the evidence in the light most favorable to the government, you ask the question of whether a reasonable jury could have found Mr. Bendu's guilty beyond a reasonable doubt, and I would submit that that answer is a very firm yes.

[00:17:53] Speaker 00:
Your Honor, as you pointed out, there were multiple ways that we could prove the production count.

[00:17:58] Speaker 00:
It was that he employed or used or persuaded or induced or enticed or coerced the minor into producing the images.

[00:18:08] Speaker 00:
And what I would point to, I sort of just disagree with the characterization that because he never asked her for an explicit, could you please send me a video depicting sexually explicit conduct, that type of ask I don't think is required.

[00:18:25] Speaker 00:
But I would actually submit that that evidence is in the record.

[00:18:30] Speaker 00:
So I'm going to step back a couple of months in terms of the charging time frame.

[00:18:35] Speaker 00:
We charged dates of June, which is actually the production, the metadata on the images showed that those were produced in June.

[00:18:43] Speaker 00:
But I would point the court to a couple of months back, I would say so far is beginning in March.

[00:18:53] Speaker 00:
You can see how that line between Mr. Bendues and the minor gets moved just a bit more every time until he gets what he wants.

[00:19:02] Speaker 00:
And I would submit that is evidence of coercion.

[00:19:04] Speaker 00:
That is evidence of enticement.

[00:19:07] Speaker 00:
And when the court has to look at the totality of the circumstances in this case,

[00:19:12] Speaker 00:
What we have is an adult with a position of trust within the community who is abusing that position of trust to have this relationship with the minor.

[00:19:21] Speaker 00:
She is an athlete on two of his teams.

[00:19:24] Speaker 00:
So for example, the most innocents, so to speak, of the exchanges, I would point the court to the second supplemental record, pages 324 to 325.

[00:19:38] Speaker 00:
Mr. Bindus took a screenshot of our minor victim that was a photo of her as a child.

[00:19:45] Speaker 00:
He took that from her mother's Instagram account.

[00:19:48] Speaker 00:
And he sent it to her with an emoji that had heart eyes that said, so cute, right?

[00:19:52] Speaker 00:
That's not, I guess, necessarily in and of itself an exchange that would rise to the level of a federal criminal violation.

[00:20:01] Speaker 00:
But that line gets moved slowly between March and June.

[00:20:04] Speaker 00:
So, you know, for example, if we move to April the 10th of 2021, the discussion is a little bit more explicit.

[00:20:11] Speaker 00:
At this point, Mr. Vinduz is talking to the minor about the size of her breasts and what size of bra that she wears.

[00:20:18] Speaker 00:
And so I would point the court to, again, the second supplemental record, pages 1080 to 1091.

[00:20:27] Speaker 00:
And Mr. Bendous tells her, ha-ha, now I'm curious, right?

[00:20:31] Speaker 00:
And you'll notice a lot of the messages that Mr. Bendous sent had the phrase ha-ha in it.

[00:20:37] Speaker 00:
And it was kind of like a wink-wink, right, is how those were interpreted.

[00:20:41] Speaker 00:
I think how they were testified to at trial again.

[00:20:43] Speaker 00:
But she sends him a photo, and she's wearing a dress.

[00:20:47] Speaker 00:
And she says, this is what I looked like in my Easter dress.

[00:20:51] Speaker 00:
The conversation, as you'll see through that portion of the exchange, turns graphic, as many of these did.

[00:20:58] Speaker 00:
And the victim said, ha ha, you get the PG version of how you'd see me.

[00:21:03] Speaker 00:
And he said, PG is for kids.

[00:21:05] Speaker 00:
That's at the second supplemental record at page 1091.

[00:21:09] Speaker 00:
And so again, he's pushing her to give him more, right?

[00:21:14] Speaker 00:
And I think that was the theme that was really reflected in the case, is that every time

[00:21:19] Speaker 00:
Jane Doe sent something.

[00:21:22] Speaker 00:
He wanted more.

[00:21:23] Speaker 00:
And so those discussions did get more explicit when he tells her things such as on April the 10th, ha ha, I had you sending non-PG versions in mind.

[00:21:34] Speaker 00:
At one point, you know, he is more explicit and says on May the 2nd, send nudes.

[00:21:42] Speaker 00:
That's at page 2051 of the second supplemental record.

[00:21:48] Speaker 00:
And I would point the court again to what I'll say is the hardest part of this trial was distilling the trial presentation because of how much evidence there was.

[00:21:59] Speaker 00:
That problem represents itself here today as well.

[00:22:02] Speaker 00:
There are just so many examples.

[00:22:06] Speaker 00:
But when HEAT, for example, May the 8th,

[00:22:11] Speaker 00:
Jane Doe sends Mr. Bindu's photos of some crafts and some paintings that she had done, and that conversation turns into him saying, you can give me another image if you feel like it.

[00:22:24] Speaker 00:
Jane Doe says that she's wearing pajamas, and he responds, dang, guess I'm not worth a little extra effort.

[00:22:31] Speaker 00:
That's at page 2191 of the second supplemental record.

[00:22:35] Speaker 00:
So there are discussions in April and May that are slowly moving that line back, that by the time we get to the end of May and the beginning of June, it is not unclear in any way what he wants.

[00:22:49] Speaker 00:
Judge McHugh, you pointed out an exchange on May the 25th of 2021 where Jane Doe is discussing that she's too tired to take a video and Mr. Bindus responds with, that is an excuse.

[00:23:04] Speaker 00:
Again, with the dynamic that this is her high school coach, that they are in a relationship that she believes he's going to marry her one day because he has set a wedding date that is fake.

[00:23:16] Speaker 00:
You know, she is in a position where she wants to make him happy.

[00:23:19] Speaker 00:
She testified to that at trial, that him being happy with her and with what she was doing was something that was important to her.

[00:23:27] Speaker 00:
But on that exchange, which is on page 2680 of the second supplemental record, Jane Doe is extremely graphic about the type of video that if she's going to send him, what it's going to entail.

[00:23:40] Speaker 00:
And I think that the court can infer Mr. Binduz's intent

[00:23:44] Speaker 00:
when he responds, oh, expletive baby, I can't wait.

[00:23:49] Speaker 00:
He does not say no.

[00:23:50] Speaker 00:
And I think some of the characterization in the brief was that, well, just because he didn't say no, then that means that he is not guilty of a federal crime.

[00:24:01] Speaker 00:
And I would say that that's not the standard.

[00:24:04] Speaker 00:
You know, again, there is ample evidence in this record that he is using the minor.

[00:24:09] Speaker 00:
that he is employing the minor, that he is at this point in the time frame has already had sex with the minor multiple times, that it is not unclear to her exactly what he wants to see.

[00:24:21] Speaker 00:
So by the time we get to June 11th, where he says, I'm still waiting to watch you,

[00:24:26] Speaker 00:
with yourself when viewed in the context that just a few weeks earlier she had described essentially a masturbation video and he confirmed that that is what he wanted.

[00:24:37] Speaker 00:
So I would disagree with the characterization that he just didn't say no.

[00:24:43] Speaker 00:
In fact, he said yes.

[00:24:46] Speaker 00:
So, in terms of the actual production timeframe, which was June the 12th to the 13th, again, I think that when the court views that in context, you will see that there was overwhelming evidence that he did make that request.

[00:25:00] Speaker 00:
So, what's important, I think, at page 2982 of the... Yes, Judge?

[00:25:06] Speaker 02:
You need to save some time for the expert testimony.

[00:25:08] Speaker 00:
I will.

[00:25:09] Speaker 00:
I'll wrap up this final point and then move to that.

[00:25:12] Speaker 00:
Mr. Bindus sends Jane Doe a text message that says, I'm wondering if you're able to call.

[00:25:17] Speaker 00:
There was evidence at trial that the two in fact had a 19-minute phone call that was just after 11 p.m.

[00:25:24] Speaker 00:
And then you can read the exchange that follows that really goes from page 2983

[00:25:30] Speaker 00:
I would say to about page 3000, the discussion is very explicit.

[00:25:36] Speaker 00:
It's very sexual.

[00:25:37] Speaker 00:
The two talk about sexual acts that they intend to perform on one another.

[00:25:41] Speaker 00:
And Mr. Bindus says, are you going to show me?

[00:25:46] Speaker 00:
That is the request.

[00:25:48] Speaker 00:
That is the explicit request.

[00:25:49] Speaker 00:
And then when Jane Doe says, is that what you want?

[00:25:52] Speaker 00:
He says, of course.

[00:25:54] Speaker 00:
I also think that the court can infer Mr. Binduz's intent was quite clear in his reaction to the videos after Jane Doe sent them.

[00:26:04] Speaker 00:
He said that he couldn't find it in himself to get rid of them, that when he deleted them, he was devastated, and then he asked for them again.

[00:26:11] Speaker 00:
So that is my argument on the sufficiency of the evidence.

[00:26:17] Speaker 00:
Any reasonable jury presented with these facts could have found Mr. Binduz guilty.

[00:26:22] Speaker 01:
I'm going to switch you to the expert.

[00:26:25] Speaker 01:
Yes.

[00:26:26] Speaker 01:
In United States versus Isabella, we were dealing with an attempt case.

[00:26:33] Speaker 01:
And in order to show both specific intent and a substantial step, we held that evidence testimony about grooming was essential for the jury to understand

[00:26:49] Speaker 01:
what was being attempted by the conduct.

[00:26:53] Speaker 01:
Here we have a completed offense and so I'm not sure really what grooming has to do with the crimes that this particular man was charged with.

[00:27:08] Speaker 01:
Can you

[00:27:09] Speaker 01:
Deal with that.

[00:27:10] Speaker 00:
Yes, Your Honor.

[00:27:11] Speaker 00:
First, I would say that dating back to the Batten case in 2010, grooming is an accepted topic of expert testimony in this circuit.

[00:27:19] Speaker 00:
It was raised again in the Isabella case, and then in the Flex case in 2024, and as recently in the Rivera case earlier this year.

[00:27:28] Speaker 00:
Essentially, I'm receiving the court's question as an irrelevance question.

[00:27:35] Speaker 00:
And I think that grooming is proper modus operandi testimony.

[00:27:41] Speaker 00:
And I think that's how it's been interpreted in our circuit.

[00:27:45] Speaker 00:
And certainly it is helpful in this particular case.

[00:27:49] Speaker 00:
I took a rough note of something Mr. Boland said about to the extent of when you think of people producing child pornography, it's in an online forum, right?

[00:27:57] Speaker 00:
Uploading it and sharing it.

[00:27:59] Speaker 00:
And I think that's precisely why it was particularly helpful to the jury in this case.

[00:28:04] Speaker 00:
one of the findings that the district court made is that the average person may not be familiar with all of the different methods that sex offenders can use, and certainly every sex offender utilizes a different method, so to speak.

[00:28:18] Speaker 00:
And so I would submit that it was particularly helpful in this case, again, because

[00:28:23] Speaker 00:
The question of how, how did this happen?

[00:28:27] Speaker 00:
How does a high school coach end up in a sexual relationship with a minor?

[00:28:33] Speaker 00:
And how does it appear that the minor almost seems like she's consenting to the activity?

[00:28:40] Speaker 00:
That was a big, I think, narrative at trial as well that the defense couldn't.

[00:28:44] Speaker 00:
Well, she couldn't consent.

[00:28:45] Speaker 00:
Could she legally?

[00:28:47] Speaker 00:
That was an interesting discussion we had.

[00:28:49] Speaker 00:
There was no jury instruction to that effect, but that was sort of the argument.

[00:28:53] Speaker 00:
she pursued him.

[00:28:54] Speaker 00:
I think at one point, Mr. Benduz's trial counsel asked Mr. O'Donnell, or Asian O'Donnell, if it's possible for a minor to groom an adult.

[00:29:03] Speaker 00:
And the narrative painted on cross-examination of Jane Doe at trial was, but isn't it true that you wanted this?

[00:29:10] Speaker 00:
You sent this explicit text message, you did this.

[00:29:13] Speaker 00:
And so I would submit that in this case it was particularly helpful to

[00:29:19] Speaker 00:
members of the jury who may be inclined to sort of blame the victim, right?

[00:29:24] Speaker 00:
They needed to understand that Mr. Bindus was actually engaging in a pattern of activity that was intended to get her to submit to sexual contact.

[00:29:33] Speaker 00:
The other thing that I think is very helpful to point out, part of the argument at the district court, and it's renewed again here today, is that there's different definitions of grooming.

[00:29:45] Speaker 00:
Different experts utilize different definitions.

[00:29:48] Speaker 00:
There are different definitions of the term grooming within our own circuit law.

[00:29:53] Speaker 00:
And so if you look at those four cases that I highlighted, Batten, Isabella, Flex, and Rivera, they all define grooming in a different way as well.

[00:30:02] Speaker 00:
But there is no case in the Tenth Circuit that says that grooming cannot be a recognized method of expert testimony.

[00:30:11] Speaker 01:
But it's gotta be relevant to something.

[00:30:14] Speaker 01:
Yes.

[00:30:14] Speaker 01:
Yeah.

[00:30:15] Speaker 01:
I actually think Judge Hart's made

[00:30:17] Speaker 01:
a better argument than I saw in the brief, which is that it goes to enticement.

[00:30:22] Speaker 00:
I think, yes, it went certainly to both counts, and I think it helped the jury understand, you know, its purpose was to educate.

[00:30:33] Speaker 00:
Its purpose was not to say Mr. Bendous did or did not groom the victim.

[00:30:39] Speaker 00:
That was open for argument, and it was not contested that the parties could argue that.

[00:30:46] Speaker 00:
Blind testimony, I certainly think, is less prejudicial to a defendant than, as the court pointed out, if Agent O'Donnell had come in and said, I reviewed these facts and this was grooming.

[00:30:57] Speaker 00:
That was just simply not the facts that we had at trial.

[00:30:59] Speaker 00:
One thing I would point out, just in closing, is that during Agent O'Donnell's testimony, I asked him about the differences in the grooming literature.

[00:31:11] Speaker 00:
That's not something that we sort of shied away from, and he acknowledged

[00:31:16] Speaker 00:
that there are differences in the academic literature, but the purposes of grooming in everyone's definition is to engage a child in sexual contact and to prevent disclosure.

[00:31:25] Speaker 00:
So I see I'm out of time unless there are further questions.

[00:31:30] Speaker 00:
Thanks very much.

[00:31:34] Speaker 02:
Cases submitted, counsel excused, and we're going to take a brief break.