[00:00:00] Speaker 04:
Thank you, Council.

[00:00:00] Speaker 04:
Case is submitted.

[00:00:01] Speaker 04:
Council are excused.

[00:00:03] Speaker 04:
We'll turn to our last case of the day, US versus Lee, 24-7015.

[00:00:36] Speaker 04:
Mr. Casey, when you're ready.

[00:00:43] Speaker 01:
May it please the court, my name is Andrew Casey.

[00:00:46] Speaker 01:
I'm here on behalf of Giovante Lee.

[00:00:48] Speaker 01:
I know it's the last argument of the morning.

[00:00:50] Speaker 01:
Thank you all for having me here.

[00:00:54] Speaker 04:
I think we're still awake.

[00:00:55] Speaker 04:
I think we can listen.

[00:00:56] Speaker 01:
Excellent.

[00:00:58] Speaker 01:
What I want to be able to structure my argument today, because I know that there are six issues that were briefed

[00:01:05] Speaker 01:
I'm not trying to describe any of the issues as harmless in any way, but I think that I want to start with the most harmful of issues, which is the issue about the pattern enhancement, and then I'll move on to the other issues.

[00:01:19] Speaker 01:
Of course, the moment that you all tell me, move on to something else, I'm happy to.

[00:01:24] Speaker 01:
Whenever I was looking at the pattern enhancement prior to sentencing and also in briefing and getting ready for today,

[00:01:31] Speaker 01:
The 2G2.2B5 enhancement requires a finding that the government showed that there was a pattern involving sexual abuse or exploitation of a minor.

[00:01:41] Speaker 01:
The commentary in the guidelines though is very specific, but this does not include possession, receipt, access with intent to view.

[00:01:50] Speaker 01:
And I noted the government had cited Coates, the Coates decision from the circuit, which is a 2023 case.

[00:01:58] Speaker 01:
And that had discussed a separate situation where he had had 2001 and 2002 convictions for child exploitation crimes, which fit the language that was within that particular enhancement.

[00:02:12] Speaker 01:
In this particular one, I find that there would be a lot of issues as to why we can't apply this particular enhancement and why it was error to apply the enhancement.

[00:02:23] Speaker 01:
First is that Ampley notes

[00:02:25] Speaker 01:
that there were numerous other instances of JD, the minor in this case, making videos to satisfy the pattern.

[00:02:36] Speaker 01:
And I'll remind the quick facts of this case is that there are two phones at issue here.

[00:02:43] Speaker 01:
There was the phone that was liable to the receipt charge in count four, and then there was another rose gold iPhone that was related to the possession count five.

[00:02:54] Speaker 01:
In the pattern part that we're discussing here, there was testimony that was elicited from JD to suggest that there were other videos made.

[00:03:05] Speaker 01:
And I want to make sure that that part of the record is cited to specifically.

[00:03:09] Speaker 01:
I have that as page 86 of the third record on appeal.

[00:03:14] Speaker 01:
These are the sealed transcripts.

[00:03:16] Speaker 01:
And I have this testimony from JD to be far more vague than I think that the government has identified it to be.

[00:03:25] Speaker 01:
First is there was a description about how videos were recorded.

[00:03:30] Speaker 01:
And there was questions, what did you do with the videos?

[00:03:33] Speaker 01:
And JD had answered nothing.

[00:03:35] Speaker 01:
Did you ever transmit it to anybody?

[00:03:37] Speaker 01:
No.

[00:03:38] Speaker 01:
Did you know if the defendant ever sent it to anybody?

[00:03:40] Speaker 01:
No.

[00:03:41] Speaker 01:
You're saying that you never sent a video.

[00:03:43] Speaker 01:
I don't know.

[00:03:44] Speaker 01:
You don't recall?

[00:03:45] Speaker 01:
I don't recall.

[00:03:46] Speaker 01:
Did you give him permission to send videos to anybody?

[00:03:49] Speaker 01:
I don't.

[00:03:50] Speaker 01:
And the answer was no.

[00:03:52] Speaker 01:
And the reason why this is important is because there were no other videos of JD found or any other type of the list of material of JD found.

[00:04:02] Speaker 01:
There was one video in this case, which is the one that was presented to the jury.

[00:04:07] Speaker 01:
It was a video that was recorded by JD herself.

[00:04:11] Speaker 01:
And it was on a male that we can't see his face.

[00:04:14] Speaker 01:
He either appears to be asleep or at least he's turned in a different way.

[00:04:19] Speaker 01:
And the officer, Agent Smalley at trial had testified that he couldn't identify who it was in the video based upon that.

[00:04:29] Speaker 01:
And so I don't think that that's a significant basis to be able to then uphold that there was a pattern of some type of sexual exploitation.

[00:04:38] Speaker 01:
that was going.

[00:04:38] Speaker 03:
The other... Don't there only have to be two videos?

[00:04:42] Speaker 03:
Two or more.

[00:04:42] Speaker 03:
Yes, Your Honor.

[00:04:43] Speaker 03:
And so we could just go with MW, couldn't we?

[00:04:46] Speaker 03:
With what?

[00:04:48] Speaker 03:
MW, the two videos from the jail.

[00:04:50] Speaker 01:
Okay.

[00:04:51] Speaker 01:
That was the next subset of the argument.

[00:04:53] Speaker 01:
With MW, I don't believe that this is the creation of a video as we look at it from the way that we describe JD.

[00:05:01] Speaker 01:
I don't think that it's child exploitation at all.

[00:05:04] Speaker 01:
when we're talking about the MW circumstance.

[00:05:06] Speaker 03:
Isn't it defined as child exploitation if you entice and induce someone under 18 years old to produce that sort of a video?

[00:05:15] Speaker 01:
So I think that there certainly are other crimes about enticing somebody to produce a video.

[00:05:21] Speaker 01:
Here, the one thing that I think is startling is this is the jail recording system.

[00:05:27] Speaker 01:
This is not anything that is maintained by either the defendant or MW at the time.

[00:05:31] Speaker 01:
Neither of them, I mean, presumably all of my clients know that they're being recorded in there, but they don't have access to any of the types of recording, nor do they have any ability to transmit them in any particular way.

[00:05:43] Speaker 03:
But still, you don't have to under the wording of the enhancement.

[00:05:47] Speaker 03:
You don't have to be able to capture that and be able to transport and so forth.

[00:05:52] Speaker 03:
It's the simple creation of it, enticing someone under 18 years old to do that.

[00:05:56] Speaker 03:
And that was done.

[00:05:58] Speaker 01:
Well, I believe that certainly that there was jail discussions about show me a body part and then a body part was shown.

[00:06:05] Speaker 03:
And full body.

[00:06:06] Speaker 01:
Full body part that was shown by the lady that was carrying his baby at the time.

[00:06:11] Speaker 01:
And it's unique in this particular instance because of who it is that controls the video if there was actual production of it.

[00:06:20] Speaker 01:
I don't think that the pattern can apply to that particular circumstance.

[00:06:23] Speaker 03:
Well, what in the definition is missing in the definition

[00:06:27] Speaker 03:
of sexual abuse or pattern.

[00:06:29] Speaker 03:
Pattern means any combination of two or more separate instances of sexual abuse or sexual exploitation of a minor, and whether it's even part of the instant offense.

[00:06:39] Speaker 03:
And then sexual abuse or exploitation is defined as any of these acts and any of these statutes.

[00:06:46] Speaker 03:
And among those acts is producing or enticing someone to do a video like this.

[00:06:56] Speaker 03:
Under 18 years of age, it just... I'm struggling to see why the MW videos don't qualify, and if there are two of them, why it's not a pattern.

[00:07:06] Speaker 03:
Now, if you're arguing that the guideline is unconstitutional somehow because it exceeds the statute, that's one argument, but I don't understand you to say that.

[00:07:16] Speaker 03:
By the terms of these guidelines, text as well as the application note, I don't understand your argument.

[00:07:26] Speaker 03:
There were two videos that he solicited.

[00:07:29] Speaker 03:
He asked for these to be done.

[00:07:31] Speaker 03:
The young girl complied and bared her full body.

[00:07:37] Speaker 01:
Can you have a counter hypothetical or a counter reference to this?

[00:07:41] Speaker 01:
Maybe this will help make my argument make some sense.

[00:07:44] Speaker 01:
Whenever I'm thinking about this case, I'm thinking about it.

[00:07:47] Speaker 01:
not differently at all than if we have two folks around that age who are talking with each other over FaceTime or one of those apps where you're talking to each other over a phone and one of them shows each other a body part.

[00:08:01] Speaker 01:
There's no recording that happens with it.

[00:08:03] Speaker 01:
It's just simply over the course of the

[00:08:07] Speaker 01:
of the internet broadways or the signals that are going through.

[00:08:13] Speaker 01:
I think that's far more consistent here with what's happening rather than him actually creating the video because again, this is not something that he's able to take back with him.

[00:08:22] Speaker 01:
This isn't anything along those lines.

[00:08:24] Speaker 03:
It doesn't have to be.

[00:08:26] Speaker 03:
It doesn't have to be something where there's a record or a cassette or whatever instrument.

[00:08:32] Speaker 03:
It can be live streamed and it's good enough under the statute

[00:08:35] Speaker 03:
as one of the qualifying acts that would be sexual exploitation of a minor?

[00:08:41] Speaker 01:
I think that my question would be, without conceding the idea that it's sexual exploitation of a minor, is to note all the different backgrounds about whether or not that should have been strictly applied to it.

[00:08:52] Speaker 01:
No, I did not say that it was unconstitutionally vague as far as that goes.

[00:08:57] Speaker 01:
But those were my issues that I had with the way that we were presenting that pattern enhancement

[00:09:04] Speaker 01:
is because the pattern has to involve sexual abuse or exploitation of a minor.

[00:09:10] Speaker 01:
And I think that when we're looking at what enticing means in the full context of all the other statutes that are being charged with here, which of course he's not charged at all with enticing or exploitation or anything along those lines.

[00:09:25] Speaker 03:
Do you think he needs to be?

[00:09:26] Speaker 03:
Here?

[00:09:27] Speaker 03:
Yes, for the guideline application to apply?

[00:09:29] Speaker 01:
No, he certainly doesn't need to for the guideline application to apply.

[00:09:32] Speaker 01:
I mean, the guideline would exist if it was acquitted conduct or any number of different things.

[00:09:37] Speaker 01:
But I do think in this particular case, there's a reason he's not charged with it, and it's because there is no real enticement in that sense.

[00:09:44] Speaker 01:
He asked her to disrobe.

[00:09:47] Speaker 01:
That's true.

[00:09:48] Speaker 01:
There was discussion about him asking her to do that.

[00:09:51] Speaker 03:
All right.

[00:09:51] Speaker 03:
And under 2251A, which is one of the offenses that

[00:09:55] Speaker 03:
counts as a sexual abuse or exploitation, it says that anything producing a visual depiction of conduct for the purpose of transmitting a live visual depiction counts.

[00:10:08] Speaker 03:
So the notion that you have to have recorded and be able to transmit it to others and so forth, I don't think that's part of the statute.

[00:10:15] Speaker 01:
I think part of the statute that I am arguing about, though, is production and whether or not this is producing in that particular sense.

[00:10:22] Speaker 03:
I guess just a matter of reading the statute and deciding it alive, as the statute says, producing any visual depiction for the purpose of transmitting a live visual depiction, which it was transmitted to him at the jail.

[00:10:39] Speaker 01:
That's true.

[00:10:40] Speaker 01:
It was transmitted to him.

[00:10:41] Speaker 01:
He was able to see it.

[00:10:42] Speaker 03:
So the statutory terms are met.

[00:10:46] Speaker 03:
And if the statutory terms are met, then you have your sexual exploitation

[00:10:51] Speaker 03:
For purposes of the guideline, all you need is two.

[00:10:54] Speaker 03:
You ask her twice.

[00:10:55] Speaker 03:
Seems like the guideline applies.

[00:10:57] Speaker 01:
I understand the court's position.

[00:10:59] Speaker 01:
I'd stand on the argument with it.

[00:11:01] Speaker 01:
Does the court mind if we... Yeah, try another issue.

[00:11:04] Speaker 01:
All right, excellent.

[00:11:07] Speaker 01:
On count four, we discussed the receipt issue, and I'll acknowledge at the beginning that

[00:11:12] Speaker 01:
Although we're talking about de novo review, we're also talking about the lower preponderance of evidence standard in this case because of the way that we've crafted the venue rules.

[00:11:23] Speaker 01:
And so it is a much lower burden upon the government in order to do so.

[00:11:27] Speaker 01:
I attempted to cite very specifically to the record about what Agent Smalley was describing in terms of what he knew about receipt in this particular case, which makes it

[00:11:38] Speaker 01:
which makes it distinct from the possession because we're talking about receipt on the number that he was set to differently.

[00:11:46] Speaker 01:
And I think that some of the things that are important when we're talking about this with the Cabrales decision or

[00:11:52] Speaker 01:
that specific part and on top of Agent Smalley acknowledging that he had no idea where it was produced is that I think that this case is a lot more distinct than what was cited under the Cameron decision by the government in this case.

[00:12:10] Speaker 01:
They had cited a first circuit decision where the case involved receipt and transport to describe a continuing offense.

[00:12:18] Speaker 01:
I would note that the facts there were New York and Maine were the two different parts, but that there was a laptop that had had the videos.

[00:12:27] Speaker 01:
That laptop would have received it in one state, and then the transportation, which was the secondary charge, would have gone to the other state.

[00:12:37] Speaker 01:
I think that that's different here.

[00:12:40] Speaker 01:
than what they were able to show with the transmission or receipt count for count four.

[00:12:45] Speaker 01:
And I don't believe that even under the lower burden of preponderance of evidence, they were able to satisfy that part of it.

[00:12:51] Speaker 01:
Which brings to count five, which is the constructive possession of the rose gold iPhone.

[00:12:56] Speaker 01:
I think the arguments that are poor for us are that this was found in a bedroom at his mother's house, which was in the Ardmore area.

[00:13:05] Speaker 01:
I think that the arguments that are

[00:13:06] Speaker 01:
that are hard for the, for the app Ali in this case, though, or that the rose gold iPhone was specifically identified as belonging to JD.

[00:13:16] Speaker 01:
And I think I've wanted to address one of the clearly used it said that again.

[00:13:22] Speaker 04:
The defendant clearly used the phone and it was found in his bedroom.

[00:13:26] Speaker 04:
Was it.

[00:13:27] Speaker 01:
It was found in what they were describing as his bedroom.

[00:13:30] Speaker 01:
Now, when you look at the pictures of the bedroom, it's barren.

[00:13:32] Speaker 01:
There's a plywood floor.

[00:13:35] Speaker 01:
There's a mattress without any types of blankets or any types of things on it.

[00:13:38] Speaker 01:
It does have some things in the closet, like his social security number, which, you know... It's pretty good.

[00:13:43] Speaker 01:
But it's at his mom's house.

[00:13:45] Speaker 01:
I imagine a lot of people keep social security cards at their parents' house and different things like that.

[00:13:50] Speaker 01:
But that's where the rose gold iPhone was.

[00:13:51] Speaker 01:
Now, that means that there's direct control of the iPhone.

[00:13:55] Speaker 01:
What the government tried to point to to show that he had opened it was that there was email communications.

[00:14:00] Speaker 01:
And I pulled that part of the transcript.

[00:14:02] Speaker 01:
It's page 301 of that record.

[00:14:05] Speaker 01:
And that was specifically because

[00:14:07] Speaker 01:
On that phone, there was an email address where the Chickasaw Nation had sent emails to him related to any number of types of things related to his benefits.

[00:14:19] Speaker 01:
And I don't think that shows enough to show that he's using that particular phone.

[00:14:23] Speaker 01:
It just means that that phone had access to his email and would have received emails on it.

[00:14:27] Speaker 01:
which isn't abnormal for boyfriends and girlfriends to be able to have access to each other's emails on the phone.

[00:14:33] Speaker 01:
Sometimes it's not even that difficult, not even that different for wives and husbands to do the same thing.

[00:14:39] Speaker 01:
But I don't think that that's enough to show that he knew that there was illicit material on the phone or that he had accessed it on the phone.

[00:14:48] Speaker 01:
There's just the phone there, but there's no evidence.

[00:14:51] Speaker 00:
And he actually referred to this illicit material that was on the phone?

[00:14:56] Speaker 00:
Didn't he respond to a message from the victim about it?

[00:15:00] Speaker 01:
There was discussion on the jail calls that the government had referenced to say that this case that they're talking about is about videos that were sent to each other.

[00:15:11] Speaker 01:
There were text messages that were sent that were vague to the idea of, I'm finna post it.

[00:15:17] Speaker 01:
I'm fixing to put all our stuff on Facebook.

[00:15:20] Speaker 01:
Nothing that specifically described the video or describes anything about the

[00:15:24] Speaker 01:
I have got about seven seconds left, so I apologize for not having more to talk to you about.

[00:15:31] Speaker 01:
Thank you all so much.

[00:15:31] Speaker 02:
Good morning, Your Honors.

[00:15:46] Speaker 02:
Patrick Flanagan on behalf of the United States.

[00:15:50] Speaker 02:
May it please the Court, the United States,

[00:15:52] Speaker 02:
is requesting that the judgment and sentence in this case be affirmed with regards to taking an order of just how the defendant presented his argument.

[00:16:04] Speaker 02:
Judge Phillips, I think you expressed it.

[00:16:06] Speaker 02:
The party's stipulation for sentencing an MW provided sufficient support for the assessment of that enhancement in the sentence that the judge handed down.

[00:16:20] Speaker 02:
That was covered at length.

[00:16:21] Speaker 02:
I'd rather speak more to the venue of the receipt charge.

[00:16:28] Speaker 02:
The jury was properly instructed.

[00:16:31] Speaker 02:
The standard of review for the jury's verdict is very deferential to support the verdict.

[00:16:42] Speaker 02:
And this was a continuing offense

[00:16:44] Speaker 02:
where venues governed by 18 United States codes, Section 3237A, there was sufficient record evidence regarding this offense to establish where the video was from and where it ended up.

[00:16:58] Speaker 02:
And that was the Eastern District of Oklahoma.

[00:17:01] Speaker 02:
There was testimony from the victim in her testimony that these videos were recorded in the Eastern District of Oklahoma.

[00:17:08] Speaker 02:
There was testimony in the record with Special Agent Smalley.

[00:17:11] Speaker 02:
And that's a page.

[00:17:14] Speaker 02:
Pardon me.

[00:17:17] Speaker 02:
356 and 362 of the trial transcript that shows that the video was recorded on the day it was, in fact, transmitted to the defendant's number.

[00:17:27] Speaker 02:
There was acknowledgement from the defendant in text messages regarding receipt, and it was ultimately discovered in his bedroom in the Eastern District of Oklahoma when the search was conducted by officers of the Chickasaw Nation police force.

[00:17:42] Speaker 04:
When you say continuing offense,

[00:17:44] Speaker 04:
What's your understanding of what made this a continuing offense?

[00:17:49] Speaker 02:
Your Honor, the elements that have to be proven for this offense involve means and methods of interstate commerce.

[00:17:57] Speaker 02:
And this was transmitted through means and methods of interstate commerce.

[00:18:02] Speaker 02:
Based on that, the clear language of 3237A makes it a continuing offense for purposes of venue.

[00:18:12] Speaker 04:
So either end of the commerce?

[00:18:14] Speaker 04:
Could be the location for venue?

[00:18:16] Speaker 02:
Yes, Your Honor.

[00:18:17] Speaker 02:
Under 3237A, it reads in the second part, any offense involving the use of the mail's transportation in interstate or foreign commerce or the importation of an object or person into the United States is a continuing offense and except as otherwise expressly provided by enactment of Congress may be inquired of and prosecuted in any district from

[00:18:40] Speaker 02:
through or into which such commerce, mail matter, or imported object or person moves.

[00:18:46] Speaker 02:
Based on the evidence in this case and that was presented at trial, that was the Eastern District where it started and where it ended.

[00:18:53] Speaker 02:
Based on that, venue was proven and the jury found such after being properly instructed.

[00:19:03] Speaker 02:
The other arguments that my colleague didn't get to address during his oral argument were issues of proof, mainly.

[00:19:12] Speaker 02:
Let me ask you about one of those.

[00:19:14] Speaker 04:
Yes.

[00:19:15] Speaker 04:
What's the evidence that the defendant intended to shoot and harm the girlfriend?

[00:19:24] Speaker 04:
Because he aimed low, apparently.

[00:19:29] Speaker 04:
She had had opportunities to shoot her before she got in the car and didn't.

[00:19:38] Speaker 04:
Give us your best case of how the intent element

[00:19:43] Speaker 02:
was satisfied.

[00:19:45] Speaker 02:
Your Honor, that does come to my argument regarding assault, of whether the specific intent under the assault with the dangerous weapons statute is objective or subjective.

[00:19:55] Speaker 02:
In regards to objectivity, the Fifth Circuit has opined in Schaeffer that it's an objective standard.

[00:20:01] Speaker 04:
Let's take it and say, let's assume it's an objective test.

[00:20:06] Speaker 04:
What would you have to prove?

[00:20:09] Speaker 02:
Your Honor, we would have to prove that a recently prudent person in the position of the victim would have assumed the defendant's intent was to inflict bodily harm.

[00:20:19] Speaker 02:
She actually testified she didn't think it was, right?

[00:20:22] Speaker 02:
She testified that, but other evidence at trial called that statement into question.

[00:20:30] Speaker 02:
And regarding the standard of evidence for sufficiency of evidence,

[00:20:35] Speaker 02:
On review, the Court of Appeals considers both circumstantial and direct evidence, but does not weigh the evidence or consider the credibility of witnesses.

[00:20:43] Speaker 02:
Reversal for insufficient evidence is proper, only when no reasonable jury could find the defendant guilty beyond reasonable doubt.

[00:20:50] Speaker 04:
And you said the Fifth Circuit states the test regarding intent as whether the victim, the alleged victim, would have reasonably inferred that

[00:21:04] Speaker 02:
the assailant was trying to hurt her.

[00:21:06] Speaker 02:
Whether a reasonable person in the place of the victim, Your Honor.

[00:21:09] Speaker 02:
It's not the victim itself.

[00:21:12] Speaker 02:
The reason for the objective standard is sometimes you actually have foolhardy people.

[00:21:16] Speaker 02:
Like a Navy SEAL may not be as apprehensive as a 10-year-old, but in an objective standard, their subjective knowledge, experience doesn't matter.

[00:21:27] Speaker 02:
In this case, you had the discharge of a firearm into an occupied vehicle of two people.

[00:21:33] Speaker 02:
You had it stopped only by an amplifier that wasn't actually hooked up.

[00:21:38] Speaker 04:
Where was the amplifier?

[00:21:39] Speaker 04:
The amplifier was in the trunk of the vehicle.

[00:21:41] Speaker 04:
When it was only stopped by the amplifier, what path did the vehicle have?

[00:21:45] Speaker 04:
Could it have hurt?

[00:21:47] Speaker 04:
The girlfriend was in the front seat, is that right?

[00:21:51] Speaker 02:
Yes, sir.

[00:21:52] Speaker 04:
Could that bullet have hurt her if it wasn't stopped by the amplifier?

[00:21:56] Speaker 02:
If it wasn't stopped, it could have.

[00:21:57] Speaker 02:
There was not evidence done to see whether it would have or not, but it was on what the jury could find of a trajectory that would have hurt her.

[00:22:07] Speaker 02:
I thought the PSR said it would have.

[00:22:10] Speaker 02:
The PSR may have said it would have.

[00:22:11] Speaker 02:
I don't recall exactly.

[00:22:12] Speaker 02:
That was the argument that was, in fact, submitted to the jury.

[00:22:16] Speaker 02:
We did argue that to the jury that it would have, that it was in line.

[00:22:20] Speaker 02:
There was no, as the defense noted, there was no kind of trajectory analysis that was performed or in the record regarding that case.

[00:22:28] Speaker 02:
That was an argument we made that the jury could use their common sense to so conclude.

[00:22:33] Speaker 02:
Regarding other evidence of the defendant's intent,

[00:22:35] Speaker 02:
Once the firearm was discharged, he was observed by eyewitnesses, including the first witness, Miss Holly, who testified he looked up, saw her, and then fled the scene.

[00:22:48] Speaker 02:
This court has long held that evidence of flight is evidence of consciousness of guilt and therefore guilt.

[00:22:54] Speaker 02:
That would be further evidence of his intent at the time he discharged the firearm and what a reasonable person in the position of the victim would have believed the defense intent was at that point.

[00:23:06] Speaker 02:
Um, there was further flight, uh, subsequent to the search of the defendant's room.

[00:23:13] Speaker 02:
Uh, that's referenced in his, in the evidence that was presented at trial and government's exhibit 54, when he admitted he was on the run, um, after the search.

[00:23:24] Speaker 02:
What was the distance that was shot?

[00:23:26] Speaker 02:
How far had the car gone from his firearm?

[00:23:29] Speaker 02:
So the, the distance that was stated in trial was 20 feet.

[00:23:34] Speaker 02:
When,

[00:23:35] Speaker 02:
The victim testified, and Mr. Artis was conducting that.

[00:23:39] Speaker 02:
I believe the record is she said, from me to you.

[00:23:42] Speaker 02:
And he said, 20 feet.

[00:23:43] Speaker 02:
And she said, yes.

[00:23:46] Speaker 02:
So 20 feet, discharge of a firearm into an occupied vehicle, and then subsequent flight and evasion.

[00:24:03] Speaker 02:
Just with regards to the objective standard, the 11th Circuit has adopted that as well as the 5th.

[00:24:08] Speaker 02:
That's a case, US v Gilbert, 692, Federal 2nd, 1340, and that's as far back as 1982.

[00:24:15] Speaker 02:
The 9th Circuit has cited favorably to the objective standard, and that was in US v Miller.

[00:24:23] Speaker 02:
It's an unpublished opinion from 1993, 9 Federal 3rd, 1555.

[00:24:31] Speaker 02:
This case is a lot like the Perez case that we cite in our brief from the Fifth Circuit, where they say any kind of discharge of a firearm, a reasonable person would view that as an intent to cause bodily harm.

[00:24:45] Speaker 02:
So for those reasons, we're asking that the verdict for

[00:24:50] Speaker 02:
Count three and count four be affirmed because there was sufficient evidence for a jury to find the specific intent in that element and find the defendant guilty of both assault with a dangerous weapon with intent to do bodily harm in Indian country and the 924C violation.

[00:25:15] Speaker 02:
One more time, getting back to the pattern enhancement that the court assessed with sentencing.

[00:25:24] Speaker 02:
Judge Phillips, you did note that the enticement and procurement and transmission of, even if it hadn't been recorded, would have been enough.

[00:25:32] Speaker 02:
And we submit that it is.

[00:25:33] Speaker 02:
If there are no further questions.

[00:25:35] Speaker 02:
What statute were you lying on?

[00:25:37] Speaker 02:
Were you lying on 2251A?

[00:25:39] Speaker 02:
I was relying on 2251A, the enticement, procurement, and persuasion of a transmission in interstate commerce of an individual under 18, exposing all of her body.

[00:25:52] Speaker 02:
That was why the party sentencing stipulation was crafted.

[00:25:57] Speaker 02:
Was it recorded?

[00:25:59] Speaker 02:
It was, in fact, recorded.

[00:26:00] Speaker 02:
So the agents viewed it?

[00:26:01] Speaker 02:
Yes.

[00:26:02] Speaker 02:
That was the crux of Special Agent Smalley's stipulation for sentencing, was that he viewed it, and this is what he viewed.

[00:26:08] Speaker 03:
Okay.

[00:26:09] Speaker 03:
Can I ask you one stray question?

[00:26:11] Speaker 03:
Sure.

[00:26:12] Speaker 03:
And it may be waivable, but weren't the possession and the receipt counts multiplicitous?

[00:26:18] Speaker 03:
Didn't one have to get dismissed and wasn't?

[00:26:20] Speaker 02:
Your Honor, there is case law from this court that possession, where it's possession with

[00:26:26] Speaker 02:
in interstate commerce in possession with the Indian country would be barred by double jeopardy.

[00:26:33] Speaker 02:
It could certainly be argued that Count 5 was multiplicitous with Count 4.

[00:26:39] Speaker 02:
It's somewhat moot in that he received a concurrent sentence and it's not any additional time.

[00:26:47] Speaker 02:
In addition, an element that had to be proven for Count 5 that didn't have to be proven for Count 4 was the Indian country status of the area in which he possessed it.

[00:26:59] Speaker 02:
That is an additional element that did not have to be proven with Count 4 as part of the elements.

[00:27:09] Speaker 02:
If there... Sorry, Your Honor.

[00:27:13] Speaker 02:
If there are no further questions, I'll yield the rest of my time.

[00:27:16] Speaker 02:
Thank you.

[00:27:17] Speaker 04:
Thank you, counsel.

[00:27:18] Speaker 04:
I think you'd like two seconds.

[00:27:21] Speaker 04:
You don't need it.

[00:27:21] Speaker 04:
Thank you, Your Honor.

[00:27:23] Speaker 01:
Pardon?

[00:27:24] Speaker 01:
I only had seven seconds.

[00:27:25] Speaker 04:
OK.

[00:27:26] Speaker 04:
Thank you, counsel.

[00:27:29] Speaker 04:
Case submitted.

[00:27:30] Speaker 04:
Counselor excused.

[00:27:31] Speaker 04:
Court will be in recess until 9 tomorrow morning.