[00:00:03] Speaker 01:
Good morning.

[00:00:04] Speaker 01:
May it please the court, Kayla Gaston for the appellant, Eric Honors.

[00:00:08] Speaker 01:
I want to try to talk about two issues today, both the constructive amendment issue and the no contact order.

[00:00:14] Speaker 01:
And we'll see how far I get.

[00:00:16] Speaker 01:
Starting with the constructive amendment, Mr. Honors is entitled to a new trial on count two, which is the child pornography production count based on a constructive amendment.

[00:00:26] Speaker 01:
That's because the trial evidence, the jury instructions, and the closing argument constructively amended the indictment

[00:00:32] Speaker 01:
by permitting the jury to convict Mr. Honors of child pornography based on videos made in Texas and Oklahoma instead of the Kansas conduct charged in count two of the indictment, starting with the language of count two.

[00:00:49] Speaker 02:
What is the definition of when an indictment is constructively amendment?

[00:00:57] Speaker 02:
What's the test?

[00:00:58] Speaker 01:
So I think the best test that I found

[00:01:01] Speaker 01:
Your Honor is certainly right that I think the cases have struggled to identify the line, and they have all said that the line is shadowy or murky.

[00:01:12] Speaker 01:
So that remains true, but the FAR case says that it rises to the level of a constructive amendment when it raises the possibility that the defendant was convicted of an offense other than the one charged in the indictment.

[00:01:26] Speaker 01:
And I think that's sort of

[00:01:28] Speaker 01:
to the extent that there can be a clear test, that's the clearest test.

[00:01:31] Speaker 02:
Does it matter if the fact that was changed or allegedly was changed is an element or a means of committing that element?

[00:01:47] Speaker 01:
No.

[00:01:47] Speaker 01:
It doesn't, and I think this court's cases are very clear about that.

[00:01:51] Speaker 01:
I think all of them, I think Farr, Miller is a case we talk about quite a lot.

[00:01:58] Speaker 01:
Hunter, I think Cerrone even.

[00:01:59] Speaker 01:
Certainly Miller and Farr are very clear, because both of those cases acknowledge that the government, the grand jury was not required to indict with the level of specificity that they did.

[00:02:10] Speaker 01:
But once they did, the government is bound by what the grand jury charged.

[00:02:16] Speaker 01:
So if it is charged in the indictment, if the grand jury charges it, then the government is bound to that, even if they were not required to make that specific of an allegation in the indictment.

[00:02:27] Speaker 01:
And here, the important point, the fact, the thing that was changed, the thing that is broadened, is the location of the conduct.

[00:02:35] Speaker 01:
So count two charges, specifically protection of child pornography in the District of Kansas and nowhere else.

[00:02:43] Speaker 01:
And I think we can see that it charges the District of Kansas and nowhere else if we compare it to the language of Count 1, because the language of Count 1 charges conduct in the District of Kansas and elsewhere.

[00:02:53] Speaker 01:
So this indictment on the face of it is clear that when the grand jury is charging conduct that crosses multiple districts or conduct that occurred in multiple districts, it said so.

[00:03:03] Speaker 01:
And in Count 2, it did not say so.

[00:03:06] Speaker 01:
Yet at trial, the evidence included testimony about videos made in Oklahoma and Texas.

[00:03:12] Speaker 01:
So the Kansas video that was charged as child pornography was shown to the jury, was played to the jury.

[00:03:18] Speaker 01:
This court has it as well.

[00:03:20] Speaker 01:
But the minor victim also testified that Mr. Honors made or made her make other videos in Oklahoma and Texas.

[00:03:28] Speaker 01:
And then the jury instructions were not specific.

[00:03:31] Speaker 01:
And the jury instructions did not instruct the jury that they had to find conduct in the District of Kansas, and in fact instructed the jury that they could convict Mr. Honors if they found he produced any visual depiction with no limitation and no instruction that they needed to find the count based on the Kansas conduct.

[00:03:50] Speaker 00:
And defense counsel objected to that?

[00:03:52] Speaker 01:
Defense counsel did not object.

[00:03:54] Speaker 01:
I don't think this error was

[00:03:56] Speaker 01:
fully crystallized until the closing argument, because in the closing argument, the prosecutor repeatedly and expressly asked the jury to convict Mr. Honors of Count 2 based on the Texas and Oklahoma videos.

[00:04:08] Speaker 01:
So we've cited those arguments extensively in our briefs.

[00:04:12] Speaker 00:
And were those arguments challenged?

[00:04:14] Speaker 01:
So the defense counsel argued at closing that the jury should not consider

[00:04:20] Speaker 01:
the Texas or Oklahoma videos and that they could only consider the Kansas video, but we didn't make the correct... Only consider or... Yeah, so the defense counsel argued that the jury had to convict Mr. Honors only if they found that the Kansas video was child pornography and couldn't base it on the Texas or Oklahoma videos, but we didn't actually make... We admit we're on plain error because we didn't make the correct constructive amendment objection to the district court.

[00:04:46] Speaker 01:
We didn't ask the district court to fix that, but we did raise

[00:04:50] Speaker 01:
that this was a problem in court and to the jury.

[00:04:54] Speaker 01:
But instead the prosecutor doubled down and rebuttal and said actually no, you can convict based on the Texas or Oklahoma videos.

[00:05:03] Speaker 01:
And specifically I think the rebuttal is important because the prosecutor says at page, this is volume three, page 701, we don't need the video in Texas.

[00:05:14] Speaker 01:
BJ testified.

[00:05:15] Speaker 01:
There's an instruction in here, instruction 21,

[00:05:18] Speaker 01:
The evidence of one witness who is entitled to full credit is sufficient for the proof of any fact in this case.

[00:05:23] Speaker 01:
There she's referring to a specific instruction, the jury instruction that the jury received that if a witness testifies and the jury finds her credible, then that testimony is sufficient for the proof of any fact.

[00:05:35] Speaker 01:
So the prosecutor there is saying not only you can convict on the Texas or Oklahoma videos, but here's a path to doing so with the jury instructions as support.

[00:05:46] Speaker 02:
One of the arguments

[00:05:48] Speaker 02:
that the government makes is that this is a continuing offense.

[00:05:55] Speaker 02:
And though it started in Kansas, it continued through the other jurisdictions.

[00:06:02] Speaker 02:
And that we know it's a continuing offense because of the interstate requirement in the crime itself.

[00:06:10] Speaker 02:
How do you respond?

[00:06:11] Speaker 01:
So I have two responses to that.

[00:06:13] Speaker 01:
One is that an offense is a continuing... So we've cited cases, the Cabrales case from the Supreme Court and I think the Smith case from this court are both cases that say even when an offense can be a continuing offense, it actually is a continuing offense only when it's charged that way.

[00:06:28] Speaker 01:
So the conduct needs to be charged in multiple districts for it to be a continuing offense that occurs in multiple districts.

[00:06:36] Speaker 01:
referring back to the difference between count two and count one, we see count one was charged as a continuing offense because it is charged in the District of Kansas and elsewhere.

[00:06:46] Speaker 01:
Count two does not have that language.

[00:06:48] Speaker 01:
It only charges conduct in the District of Kansas.

[00:06:50] Speaker 01:
I think the Cabrera's case and the Smith case are very clear that if it's not charged as a continuing offense, if the facts alleged are not a continuing offense, then it's

[00:07:00] Speaker 01:
And the interstate commerce element doesn't transform the rest of the charged conduct into a continuing offense because using, coercing the minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct, that is charged in Kansas.

[00:07:19] Speaker 01:
So that's the crux of the offense.

[00:07:21] Speaker 01:
The interstate commerce is a separate element that is then about either what was used to create that depiction or how it traveled, that it traveled across state lines or that it was made with, I forget the exact language, made with means that cross state lines.

[00:07:36] Speaker 01:
That is a separate element about other kind of tangential things, how it was made or how it traveled.

[00:07:41] Speaker 01:
It doesn't then transform the actual crux of the conduct, the using or persuading the minor,

[00:07:48] Speaker 01:
to engage in sexually explicit conduct to produce a visual depiction that doesn't mean that that was not charged in the District of Kansas, because the language is clear that it was.

[00:07:56] Speaker 00:
I thought a crime is committed in a jurisdiction, if any element of the crime.

[00:08:05] Speaker 01:
So it can be.

[00:08:05] Speaker 01:
I think, Your Honor, that's the law, is that a crime can be charged in a jurisdiction if an element

[00:08:13] Speaker 01:
I don't want to get this too wrong.

[00:08:15] Speaker 01:
If an element of the crime was committed in that jurisdiction, I think, you know, I think I have to agree that the government could have charged us as a continuing offense.

[00:08:22] Speaker 00:
Or, you know, perhaps... I'm not saying a continuing offense.

[00:08:28] Speaker 00:
Maybe I'm missing something.

[00:08:29] Speaker 00:
But if one element was committed in Kansas, then the fact that other elements are committed in another state maintains

[00:08:41] Speaker 00:
jurisdiction in Kansas.

[00:08:42] Speaker 00:
Yeah.

[00:08:43] Speaker 00:
It doesn't have to be a continuing offense.

[00:08:44] Speaker 00:
Right.

[00:08:44] Speaker 01:
No, I think that's correct.

[00:08:45] Speaker 01:
We're not saying there's some problem with the venue in Kansas or some problem with jurisdiction in Kansas.

[00:08:50] Speaker 00:
What I'm referring to pointing to the... But the offense is committed.

[00:08:54] Speaker 00:
If there's jurisdiction in Kansas and venue in Kansas, that's because an element of the offense was committed in Kansas.

[00:09:02] Speaker 00:
And the fact that

[00:09:05] Speaker 00:
an element was committed in Kansas doesn't mean other elements couldn't be committed in other states.

[00:09:12] Speaker 00:
So you can say this crime was committed in Kansas even though the obnoxious conduct was in Texas or Oklahoma.

[00:09:21] Speaker 01:
So I think that's where I would come back to the Cabrillas case and the Smith cases that say if you're alleging that conduct, then that needs to be in the indictment.

[00:09:30] Speaker 01:
I think the indictment would have needed to say in the District of Kansas and in Texas or and in Oklahoma or and elsewhere to identify that that language, that that conduct was the basis for the charging count too.

[00:09:44] Speaker 01:
And it doesn't do that.

[00:09:48] Speaker 01:
And I'm not saying they couldn't have charged it that way or that they couldn't charge or approve venue in Texas or Oklahoma.

[00:09:55] Speaker 01:
But to do that, that would need to be in the indictment.

[00:10:00] Speaker 00:
So if an element is committed anywhere but Kansas, that specifically has to be stated in the indictment?

[00:10:10] Speaker 01:
I think I'm getting too far into what could be and what has to be included in an indictment.

[00:10:16] Speaker 00:
there's an allegation the crime was committed in Kansas.

[00:10:20] Speaker 00:
And parts of the crime, maybe the worst parts of the crime, actually the worst parts of the crime were committed in Oklahoma and Texas.

[00:10:30] Speaker 00:
But it's true that the crime was committed in Kansas because an element was committed in Kansas and you're not departing from that indictment just because some other elements were committed elsewhere.

[00:10:42] Speaker 01:
So I think you have two responses to that.

[00:10:44] Speaker 01:
One is that

[00:10:45] Speaker 01:
the indictment, we think the language that charging that Mr. Honors produced a visual depiction, a singular visual depiction in the District of Kansas, full stop in count two means that the conduct comprising the child pornography production events occurred in Kansas in count two.

[00:11:03] Speaker 01:
I don't want to strike too far into the grand jury transcript because I know there's some naughty problems that come up with that, but that is the reason why I have moved to add the grand jury transcript to the record, because if you look at that transcript, when the prosecutor

[00:11:18] Speaker 01:
tells the grand jury what the basis is for count two, the prosecutor has the agent specifically identify the video made in Kansas as the basis for count two, describes that video in detail and gives the grand jury screenshots from the Kansas video and doesn't reference Texas or Oklahoma videos as child pornography or as production of child pornography at all.

[00:11:40] Speaker 01:
So to me that supports the language of count two in the indictment.

[00:11:44] Speaker 01:
And again, the question in the constructive amendment isn't what the grand jury is required to charge or how specific the indictment has to be.

[00:11:53] Speaker 01:
This court has said several times, if a limiting language is included in the indictment, then the government is bound by that limitation.

[00:12:00] Speaker 01:
And that's because the grand jury right is that Mr. Honors has a right to be charged only on

[00:12:06] Speaker 01:
that the grand jury indicted him on, because the grand jury interposes a democratic control between the prosecution and the initiation of felony offenses.

[00:12:15] Speaker 01:
So if that's what the grand jury charged, then that's what the government is limited to.

[00:12:20] Speaker 01:
Perhaps just briefly, I want to say this about the no contact order and then reserve the remainder of my time.

[00:12:26] Speaker 01:
I think we've given the court broad reasons and narrow reasons why the no contact order is impermissible.

[00:12:31] Speaker 01:
I think the bottom line is that even if the district court has some inherent authority to impose a no contact order in certain circumstances, this no contact order

[00:12:41] Speaker 01:
is far beyond a district court's inherent authority, primarily because the court's inherent authority, that act needs to be tied to protecting the administration of justice.

[00:12:51] Speaker 01:
And here we have not challenged the no contact order as it applies to the victim.

[00:12:55] Speaker 01:
We have challenged it as it applies to Mr. Honor's wife and Mr. Honor's own children.

[00:13:00] Speaker 01:
And there is no evidence or findings that communications with them would interfere with the administration of justice.

[00:13:07] Speaker 00:
How can you raise the challenge

[00:13:09] Speaker 00:
on behalf of people who aren't your clients.

[00:13:12] Speaker 01:
So I mean, I'm not.

[00:13:13] Speaker 01:
I'm raising a challenge on behalf of Mr. Honors, who has his own constitutional rights to a relationship with his children.

[00:13:19] Speaker 00:
But you're saying you're not complaining.

[00:13:21] Speaker 00:
Maybe I'm missing something.

[00:13:22] Speaker 01:
No, we're not challenging the order as it applies to Mr. Honors contacting the victim.

[00:13:28] Speaker 00:
But as to the family only is what you're saying.

[00:13:32] Speaker 01:
Yeah, but that's as to Mr. Honors' own children and his wife.

[00:13:36] Speaker 01:
What do we do with Grisby?

[00:13:38] Speaker 01:
Well, Grigsby, I think there's a few things you can do with Grigsby.

[00:13:41] Speaker 01:
One, they're unpublished pro se appeals where even the court acknowledges these issues were not briefed.

[00:13:48] Speaker 01:
The court basically says in both cases that Grigsby forfeited actually challenges on the merits of the no-contact orders.

[00:13:54] Speaker 01:
Those were all post convictions, motions to modify the no-contact order and not actually challenges to the merits.

[00:14:02] Speaker 01:
So that's one way.

[00:14:03] Speaker 01:
I think they're also distinguishable in at least the fact that there was a request for that kind of protection in Grigsby.

[00:14:08] Speaker 01:
The mother of the children requested that kind of protection.

[00:14:11] Speaker 01:
We don't have that here.

[00:14:12] Speaker 01:
I think that's a significant fact.

[00:14:15] Speaker 01:
And just the fact that we've raised it on direct appeal, which Mr. Grigsby did not.

[00:14:23] Speaker 01:
I'd like to reserve at least the time I have left.

[00:14:25] Speaker 01:
Thank you.

[00:14:25] Speaker 01:
Thank you, counsel.

[00:14:27] Speaker 00:
Mr. Hart.

[00:14:33] Speaker 03:
Good morning, Your Honors.

[00:14:35] Speaker 03:
My name is Jason Hart.

[00:14:36] Speaker 03:
I'm an Assistant United States Attorney out of the District of Kansas.

[00:14:39] Speaker 03:
I'm typically a trial attorney.

[00:14:41] Speaker 03:
I was on the trial in this case.

[00:14:43] Speaker 03:
I was also the attorney that handled Grigsby, so I can answer some of those questions.

[00:14:49] Speaker 03:
I don't frequently appear in front of you, but I have on occasion.

[00:14:55] Speaker 03:
I will try to make sure I answer your questions.

[00:14:58] Speaker 03:
And if you have any that you want to jump right to, feel free to fire them at me.

[00:15:02] Speaker 00:
We feel free.

[00:15:04] Speaker 00:
I know you feel free.

[00:15:05] Speaker 03:
I just want to encourage you.

[00:15:06] Speaker 02:
Okay, so looking at the indictment, there is a glaring difference between count one and count two.

[00:15:14] Speaker 02:
Count one says Kansas and other jurisdictions or other... And elsewhere.

[00:15:19] Speaker 02:
And elsewhere.

[00:15:20] Speaker 03:
That's all right.

[00:15:21] Speaker 02:
And count two says in the district of Kansas.

[00:15:27] Speaker 02:
It does look to me like what the charge was in the indictment

[00:15:33] Speaker 02:
was the production of a visual depiction of such conduct and that refers back to the conduct that took place in Kansas.

[00:15:48] Speaker 02:
Why haven't you expanded the charge by the jury instruction that says it's not a visual depiction made in Kansas, it's any visual depiction made elsewhere?

[00:16:04] Speaker 03:
Okay, I'm going to try to unpack all that.

[00:16:07] Speaker 03:
First thing, in the transportation charge, which is count number one, where he actually transports her from Kansas to a different location.

[00:16:16] Speaker 03:
We actually have transportation from Kansas through Oklahoma to Texas.

[00:16:21] Speaker 03:
And I would submit to the court that and elsewhere is surplusage.

[00:16:26] Speaker 03:
It's not necessary.

[00:16:27] Speaker 03:
But we put it in there to help the grand jury or the jurors understand that this is not transportation in Kansas, but it's going to be into another state.

[00:16:38] Speaker 03:
But I think it's ultimately surplusage.

[00:16:41] Speaker 03:
And so the fact that it's there doesn't mean it needs to be in the count number two.

[00:16:49] Speaker 03:
But what is also different is count number one actually, it involves different things.

[00:16:54] Speaker 03:
It's the actual act of transportation.

[00:16:56] Speaker 03:
across state lines.

[00:16:58] Speaker 03:
It has to be for a particular purpose, which can be things that happen either in Kansas or elsewhere.

[00:17:04] Speaker 03:
But ultimately, it is that component of it has to contemplate this.

[00:17:11] Speaker 03:
And I almost said production of child pornography, because that's not actually what it's called.

[00:17:14] Speaker 03:
It's sexual exploitation of a child.

[00:17:16] Speaker 03:
And we often refer to the depictions, but that's actually incorrect.

[00:17:21] Speaker 03:
We need to start with the verbs.

[00:17:22] Speaker 03:
And in this particular case, it's use or coerce.

[00:17:26] Speaker 03:
And Judge Hartz, I think, was sort of keying in on this, is that you may have conduct that starts in Kansas, but may be completed elsewhere.

[00:17:36] Speaker 03:
And in this case, where our facts were that the defendant lured her into the semi truck and then wielded a gun at her, which you can see in the videos that he created, had her crying and terrified.

[00:17:52] Speaker 03:
Arguably, he could have completed the coercion at that point, which is an element, it's the verb, but he hadn't necessarily completed the other parts of it, which is the actual sexually, having her engage in sexually explicit conduct, and then producing a visual depiction of such conduct.

[00:18:09] Speaker 02:
But he did produce at least one video, actually three, right?

[00:18:14] Speaker 03:
Actually, more than that.

[00:18:15] Speaker 03:
By his own admission, there are- In Kansas.

[00:18:18] Speaker 02:
No.

[00:18:19] Speaker 02:
Let me finish my- I'm sorry.

[00:18:20] Speaker 03:
Yes.

[00:18:21] Speaker 02:
He did actually make her take a video or he took the video in Kansas, sitting in the driveway in the cab of the truck.

[00:18:31] Speaker 03:
Correct.

[00:18:32] Speaker 02:
And this indictment says that on or about February 15th in the District of Kansas, Verbs, the defendant did persuade and coerce

[00:18:46] Speaker 02:
for the purpose of producing a visual depiction.

[00:18:50] Speaker 02:
Why isn't that limited of such conduct, meaning the conduct in Kansas?

[00:18:56] Speaker 02:
Why isn't that limited?

[00:18:58] Speaker 03:
Well, because it is part, that's not an element of the offense.

[00:19:04] Speaker 03:
The depiction itself is not an element.

[00:19:06] Speaker 03:
It is a means of proof of his purpose, as well as a means of proof of the interstate nexus.

[00:19:13] Speaker 03:
There's three different versions for the interstate nexus.

[00:19:17] Speaker 03:
There is one that he knows.

[00:19:18] Speaker 02:
But it says nothing about Oklahoma or Texas and making more than one video.

[00:19:24] Speaker 03:
And it doesn't have to say that.

[00:19:26] Speaker 02:
Why not?

[00:19:27] Speaker 03:
Because the depiction itself is not an element.

[00:19:31] Speaker 03:
It is a means of proof.

[00:19:33] Speaker 03:
And so what we have to show is that his purpose was to engage her in sexually explicit conduct.

[00:19:40] Speaker 03:
And what's important about that is

[00:19:43] Speaker 03:
Government's exhibit number three, which is sort of the heart of a lot of the argument, the defense was arguing that this isn't actually sexually explicit conduct.

[00:19:52] Speaker 03:
While he has a gun and has made her terrified and he has her disrobe, the argument that the defense counsel made at trial was it was an inadvertent capturing of her genitalia during this, such that it's not a lascivious exhibition of the genitals.

[00:20:11] Speaker 03:
Now, if it had been, as the victim described later, the depictions, the recordings of oral sex, that is per se, sexually explicit conduct under 18 U.S.C.

[00:20:21] Speaker 03:
2256, section two.

[00:20:24] Speaker 03:
If it was the depiction of the sexual intercourse, that would again be per se, sexually explicit conduct under the statute.

[00:20:32] Speaker 03:
But lascivious exhibition then has this sort of qualitative analysis, which we use in the DOST factors,

[00:20:38] Speaker 03:
that the grand jury then has to have some details on and then later the jury has to have some details on to determine if it meets the definition of sexually explicit conduct.

[00:20:52] Speaker 03:
Now I would note in this case that does not appear to be an argument that government's exhibit number three does not depict sexually explicit conduct.

[00:21:02] Speaker 03:
That was made at the trial and they seemingly lost it and have abandoned that.

[00:21:06] Speaker 03:
So that would actually kind of go to my argument about harmless error that we made in our briefing, that we would still achieve the same result.

[00:21:14] Speaker 03:
But in this case, the point is the depictions are means of proof, not elements.

[00:21:22] Speaker 02:
And in this particular- Why is this different than the case where you have in the indictment, it charges one fraudulent statement.

[00:21:31] Speaker 02:
And then when they go to trial, they bring in evidence of a different

[00:21:35] Speaker 02:
fraudulent statement and we said, you can't do that, that was effectively an amendment of the indictment.

[00:21:42] Speaker 03:
I think that may have been the Miller.

[00:21:45] Speaker 03:
Is it Farr or Miller?

[00:21:46] Speaker 02:
I don't know.

[00:21:46] Speaker 03:
I can't remember.

[00:21:47] Speaker 03:
It's one of them.

[00:21:47] Speaker 03:
But the case that you talk about, we discussed in the briefing.

[00:21:51] Speaker 03:
And the difference is that the statement that, in that case, was one, expressly identified in the indictment, and two,

[00:22:01] Speaker 03:
for a false statement, it is specific to the statement itself.

[00:22:05] Speaker 03:
It doesn't talk about using coercing.

[00:22:07] Speaker 03:
It doesn't have all the other verbs.

[00:22:09] Speaker 03:
So it's the false statement itself.

[00:22:11] Speaker 03:
And then that statement has to have, my memory serves, some materiality.

[00:22:16] Speaker 03:
And so when you have that charge, it's not a continuing offense.

[00:22:20] Speaker 03:
It's event specific.

[00:22:22] Speaker 03:
It is sort of transactional in its nature.

[00:22:25] Speaker 03:
Whereas 2251, which involves using

[00:22:29] Speaker 03:
coercing and all the other verbs for a particular purpose and then having the interstate nexus, which includes all these other things, that incorporates a much broader range of conduct over one jurisdiction into the next.

[00:22:47] Speaker 03:
And what is important is in that case, I believe it's either Miller or it's Farr, and I can't remember off the top of my head, but they talk about how the government could have used broad language.

[00:22:58] Speaker 03:
And in this particular case, the indictment is as broad as it could be.

[00:23:03] Speaker 03:
We didn't include any particularly sexually explicit conduct.

[00:23:06] Speaker 03:
We didn't identify that it was oral sex or that it was sexual intercourse or lascivious exhibition.

[00:23:12] Speaker 02:
But it does say he produced a visual depiction of such conduct in the District of Kansas.

[00:23:19] Speaker 03:
Well, that's in part one of the means of proof is that there is a visual depiction that's actually transported.

[00:23:24] Speaker 02:
But it can also be that... Well, the transportation's the prior count.

[00:23:27] Speaker 03:
No, no, no, no, that's of the human.

[00:23:30] Speaker 02:
Right, but you have to show that it affected interstate commerce, but you have limited the indictment to the visual depiction of the sexually explicit conduct that was produced through enticement in the District of Kansas.

[00:23:49] Speaker 03:
No, I have to show that his purpose is to produce a visual depiction of sexually explicit conduct.

[00:23:57] Speaker 03:
And if you were to sit here and look at the sort of the series of images that we have, which the first one is really just blackout and just you hear her crying.

[00:24:09] Speaker 03:
The second is he explains it's a little bit more brief.

[00:24:14] Speaker 03:
There's some commentary that he makes.

[00:24:16] Speaker 03:
I can't remember if it's in that one or the next one where he says he's going to keep her for a couple of days.

[00:24:20] Speaker 03:
But these are evidence of his purpose, his mens rea.

[00:24:24] Speaker 03:
that it's going to become sexually explicit conduct.

[00:24:29] Speaker 03:
That third video where he tells her to disrobe is really good evidence that this is going to be about sexually explicit conduct and he's going to make recordings of it because he is in fact recording her at that time.

[00:24:44] Speaker 03:
But it doesn't have to be that he has stopped and he's done and that we just go, sorry, we don't pay attention to anything else.

[00:24:53] Speaker 03:
As we noted in the arguments on the motion about supplementing the record, as we discussed here, there was presentation about all these other statements that the defendant made, that were presented to the grand jury, that the defendant made about her producing, her producing images, that he then moved to a different phone, that there was additional sexual contact that was recorded down in Texas.

[00:25:17] Speaker 03:
And so I don't think the

[00:25:20] Speaker 03:
indictment itself, there's any language that is limiting.

[00:25:24] Speaker 03:
And in fact, the presentation to the grand jury aligns very closely with what was presented to the jury.

[00:25:31] Speaker 03:
Now, on that point, there was a question about whether this jurisdictional argument was argued or whether this was argued at the trial court level.

[00:25:47] Speaker 03:
And what is interesting is if you go into the record on appeal,

[00:25:51] Speaker 03:
There is some discussion about whether the instruction as to count two needed to include in Kansas.

[00:25:59] Speaker 03:
And defense counsel points you to the record on appeal, volume three, at pages 607 to 608.

[00:26:06] Speaker 03:
And if you read through there, what you will see is that the court takes out the in Kansas, which is number four, and then the date, which is number five, and actually asks trial counsel about that

[00:26:21] Speaker 03:
And they say, and I can't, we have no objection to striking those.

[00:26:26] Speaker 03:
And they basically say, yeah, we agree.

[00:26:28] Speaker 03:
This is not an issue.

[00:26:30] Speaker 03:
But then they turn around in arguments and argue that jurisdiction stopped at the border.

[00:26:37] Speaker 03:
And that then prompts the response from Miss Gordon, who was arguing the case at that, in the oral arguments or closing arguments, prompts a response to clarify that.

[00:26:51] Speaker 03:
Because we had already had all the testimony about, well, even if this image, government's exhibit number three, isn't sexually explicit, as Ms.

[00:27:01] Speaker 03:
Amicks had argued, there's still these other, his purpose is clear that he's going to make recordings.

[00:27:07] Speaker 03:
We actually have recordings.

[00:27:09] Speaker 03:
The recordings we don't have, but we don't necessarily need to have them.

[00:27:14] Speaker 03:
But the devices that were used were transported.

[00:27:17] Speaker 03:
We presented that evidence.

[00:27:19] Speaker 03:
The semi-truck that he used as a sort of mobile studio was transported in interstate commerce.

[00:27:26] Speaker 03:
And he had reason to know from his statements of moving the images that she described from one phone to another phone that those images would then be transported in or affecting interstate commerce.

[00:27:41] Speaker 02:
I'm going to try and move you before you run out of time.

[00:27:44] Speaker 02:
Did the district court have any statutory authority to reopen the procedures after sentencing?

[00:27:53] Speaker 03:
Well, I would say that 18 U.S.C.

[00:27:56] Speaker 03:
3771 provides the court with the authority to accord the victim the rights.

[00:28:05] Speaker 02:
Well, that appears to, as I look at that, it relates to ongoing court proceedings.

[00:28:11] Speaker 02:
And here, we don't have

[00:28:12] Speaker 02:
any victim that's involved because it carved out the victim.

[00:28:18] Speaker 02:
And we don't have witnesses that are being intimidated.

[00:28:24] Speaker 02:
His trial's over.

[00:28:25] Speaker 02:
He's done.

[00:28:26] Speaker 03:
On that point, if we didn't have a restitution claim, I would agree with you that we don't have ongoing proceedings.

[00:28:36] Speaker 03:
But in this particular case, we have a restitution claim.

[00:28:39] Speaker 03:
And that was actually the genesis of getting the guardian ad litem.

[00:28:42] Speaker 03:
When you look at 18 U.S.C.

[00:28:45] Speaker 03:
3664 D, sub part five, it talks about that the victim has the ability, even after the initial restitution request, the victim has the ability to come in after they discover additional losses with, they have 60 days after the discovery to come back into proceedings.

[00:29:03] Speaker 02:
This has nothing to do with restitution.

[00:29:05] Speaker 02:
This is a no contact order that after he was sentenced, the court

[00:29:10] Speaker 02:
first says, well, I don't have any authority, it's in the Bureau of Prisons now, and then comes back and opens it up and enters these no-contact orders.

[00:29:20] Speaker 02:
And I don't see any statutory authority, and to the extent their case is dealing with inherent authority, they're all dealing with the administration of justice in a proceeding because of harassment of jurors,

[00:29:38] Speaker 02:
or witnesses or victims.

[00:29:41] Speaker 02:
And that's just not present here.

[00:29:44] Speaker 03:
Well, I think it is.

[00:29:47] Speaker 03:
And I would say this.

[00:29:49] Speaker 03:
In terms of ongoing proceedings, I think you could have definitely an instance where you have a defendant who is maintaining contact with family members in order to prevent, you don't need therapy.

[00:30:05] Speaker 03:
This didn't really happen.

[00:30:07] Speaker 03:
It wasn't that bad.

[00:30:08] Speaker 03:
all of those things.

[00:30:09] Speaker 03:
And so the idea that there is not ongoing proceedings sort of ignores the fact that the statute clearly contemplates that the victim could come back in at any point in time and within 60 days of finding further losses, which would clearly be something like therapy, make a request.

[00:30:28] Speaker 03:
And it is ongoing harassment of the victim and particularly through the victim's family

[00:30:35] Speaker 03:
that the court is trying to address.

[00:30:37] Speaker 03:
This is ultimately, I think, part and parcel with 3771, which is to accord protection for the victim that would include, I think, in the normal course, the victim's immediate family.

[00:30:53] Speaker 03:
Now, if this was a case where we had a stranger who had abused Minor Victim 1,

[00:31:01] Speaker 03:
And she made a request for a no-contact order relative to her family members.

[00:31:06] Speaker 03:
This court would have no problem going, obviously, yes, that makes sense.

[00:31:10] Speaker 03:
The only thing that complicates this is because of the defendant's relationship to those family members.

[00:31:16] Speaker 00:
And what he's trying to say is, as a convict... You know, you're a couple minutes over time, so I'll let you finish your thought, but... I'm sorry, I didn't even notice that it was...

[00:31:29] Speaker 03:
In this particular instance, because we have a defendant who's been convicted of sexually abusing a minor victim, and he is saying that his rights trump hers, even though he has been convicted of this particularly awful offense.

[00:31:43] Speaker 03:
And we respectfully reject that contingency.

[00:31:47] Speaker 00:
Thank you.

[00:31:54] Speaker 00:
She should have two minutes because he went over.

[00:31:57] Speaker 00:
Give her two minutes total.

[00:31:59] Speaker 01:
Oh, thank you.

[00:32:01] Speaker 01:
I want to come back to the constructive amendment and specifically this point that the discussion that has been brought up about whether the indictment had to charge a specific visual depiction and whether that's an element.

[00:32:15] Speaker 01:
As I said in the brief, I think that's not the question.

[00:32:17] Speaker 01:
I'm going to point the court to the specific quote from Miller, which is,

[00:32:22] Speaker 01:
A constructive amendment occurs when the indictment alleges a violation of the law based on a specific set of facts, but the evidence and instructions suggest that the jury may find the defendant guilty based on a different, even if related, set of facts.

[00:32:34] Speaker 01:
And then in FAR, this court says that the language employed by the government in its indictments becomes an essential and delimiting part of the charge itself, such that if an indictment charges particulars

[00:32:45] Speaker 01:
The jury instructions and evidence introduced to trial must comport with those particulars.

[00:32:49] Speaker 01:
And Miller expressly acknowledges that the government in that case did not have to charge the specific false statement.

[00:32:54] Speaker 01:
But because they did and the grand jury indicted based on that, the government was limited to proving that false statement.

[00:33:00] Speaker 01:
The government here also said that a false statement isn't a continuing offense and that that's some distinction between this case and Miller.

[00:33:07] Speaker 01:
False statements can also be a continuing offense.

[00:33:09] Speaker 01:
We cited Smith, this court's case in Smith, which is about false statements being a continuing offense.

[00:33:15] Speaker 01:
I'll direct you to Smith to read that, but it does acknowledge that it can be charged as a continuing offense.

[00:33:20] Speaker 01:
So again, that's not a distinction between this case and Miller.

[00:33:24] Speaker 01:
We think this case is on all fours with Miller, the indictment charged in the District of Kansas, producing child pornography, using the minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct in the District of Kansas.

[00:33:40] Speaker 01:
The evidence, the jury instructions, and in particular, the closing argument expanded

[00:33:45] Speaker 01:
that by allowing the jury to convict based on the uncharged conduct.

[00:33:53] Speaker 01:
says that the videos in Texas and Oklahoma were per se sexually explicit conduct, I think just proves how prejudicial it was to constructively amend the indictment in this way by telling the jury that they could disregard Mr. Honors' defenses to the charged conduct, to the charged Kansas video, and instead use their imaginations about what would have been depicted on the Texas and Oklahoma videos.

[00:34:17] Speaker 01:
That just proves that this error affected Mr. Honors' substantial rights.

[00:34:22] Speaker 02:
Our case law is pretty confusing on constructive amendment.

[00:34:28] Speaker 02:
Does that mean this error is not plain?

[00:34:31] Speaker 01:
So I don't think it does mean that error is not plain.

[00:34:34] Speaker 01:
large part because this case is so similar to Miller.

[00:34:38] Speaker 01:
And in Miller, it was the same situation where this court was basing a ruling, a plain-error ruling, on the same case law that does say sometimes it's hard to find the difference.

[00:34:49] Speaker 01:
But here, there is not difficult to see that the evidence, jury instructions, and closing argument broadened the basis for conviction beyond the Kansas conduct that was charged in the indictment.

[00:35:02] Speaker 00:
Thank you.

[00:35:02] Speaker 00:
Thank you very much, counsel.

[00:35:07] Speaker 00:
Case is submitted.

[00:35:10] Speaker 00:
Counselor excused.

[00:35:11] Speaker 00:
And if you can provide any guidance that you think would be helpful on whether this needs to be kept confidential.

[00:35:21] Speaker 00:
I'd have a hard time seeing that this was different from other cases like this.

[00:35:25] Speaker 00:
But if you can submit anything that you think could be helpful to the court on that, we appreciate it.

[00:35:33] Speaker 00:
Okay.

[00:35:34] Speaker 00:
Case submitted.

[00:35:34] Speaker 00:
Counselor excused.

[00:35:35] Speaker 00:
Court will be in recess until