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

[00:00:02] Speaker 00:
My name is Paige Nichols, and I'm here on behalf of the appellant, Stephen Spradley.

[00:00:06] Speaker 00:
May it please the Court?

[00:00:08] Speaker 00:
A jury convicted Mr. Spradley of crossing the Missouri-Kansas border intending to have commercial sex with a minor.

[00:00:17] Speaker 00:
We've raised several trial issues in the brief.

[00:00:20] Speaker 00:
I'm happy to talk about any of those or sufficiency, but I thought I'd start with the Allen Instruction.

[00:00:26] Speaker 00:
This instruction told the jurors that if they failed to agree on a verdict, the case must be tried again, which would require a large investment of time and effort for no good reason.

[00:00:38] Speaker 00:
This is a bad instruction.

[00:00:40] Speaker 00:
This court has said so more than once.

[00:00:43] Speaker 00:
It's not true that the case must be tried again.

[00:00:46] Speaker 00:
That's what this court has noted before.

[00:00:48] Speaker 00:
And the costs of retrying the case are, frankly, none of the jury's business.

[00:00:53] Speaker 00:
This jury was deciding whether or not Mr. Spradley was guilty.

[00:00:58] Speaker 00:
And the costs of retrying the case have nothing to do with that.

[00:01:01] Speaker 00:
So the language really has no legitimate purpose.

[00:01:03] Speaker 00:
It can only be read to pressure the jurors to reach a verdict.

[00:01:08] Speaker 00:
I don't read the government's brief as actually defending the language of that paragraph two of the pattern instruction.

[00:01:16] Speaker 00:
The government argues that it just wasn't coercive here.

[00:01:20] Speaker 00:
And so I think we're on the same page, or at least I don't think the government disagrees that there are problems with this language.

[00:01:27] Speaker 00:
But the language isn't the only problem in our case.

[00:01:30] Speaker 00:
In our case, we also have indications that the language was coercive and the procedure

[00:01:38] Speaker 00:
during which it was given to the jury was coercive because of timing factors, especially, right?

[00:01:46] Speaker 00:
This court has repeatedly said that we ought to be giving allentype instructions with the original instructions instead of in response to a deadlock.

[00:01:56] Speaker 00:
Here, we did have that occur here.

[00:01:59] Speaker 00:
And then we have... Before you get to the next point, Ms.

[00:02:03] Speaker 02:
Nichols, can I ask you a question?

[00:02:05] Speaker 02:
I'm a little worried that our cases seem

[00:02:11] Speaker 02:
Blatantly inconsistent.

[00:02:13] Speaker 02:
So that's not your problem.

[00:02:15] Speaker 02:
That's our problem.

[00:02:18] Speaker 02:
But I'm worried about your argument that seems consistent with McElhaney, but seems inconsistent with Cornelius, where as I interpret Cornelius, it weighs against coercion when the instruction is given after the judge is informed that the jury is deadlocked.

[00:02:40] Speaker 00:
I think I can bring these together.

[00:02:42] Speaker 02:
I think.

[00:02:43] Speaker 02:
I'm going to try.

[00:02:43] Speaker 00:
In order to interpret the recent

[00:02:50] Speaker 00:
expressions that you've just shared here.

[00:02:55] Speaker 00:
In order for those to be consistent with the earlier case law, I think it's easy to read those as, look, it's not as bad to give the instruction in response to an announced deadlock as it is to give the instruction sua sponte, just because the judge thinks the jury's taking too long.

[00:03:11] Speaker 00:
But it is best to give them with the original instructions and not in response to a deadlock.

[00:03:17] Speaker 00:
So I don't think this court can really say that this weighs in the government's favor.

[00:03:25] Speaker 00:
Maybe you'll decide it's neutral, but it certainly isn't in the government's favor.

[00:03:29] Speaker 00:
And I think plenty of cases in earlier times have emphasized that.

[00:03:36] Speaker 00:
So that's what I believe.

[00:03:37] Speaker 00:
what I have to offer for that one.

[00:03:39] Speaker 00:
But also with respect to timing, I want to note here we have a pretty short trial.

[00:03:43] Speaker 00:
If you clock all the time stamps through the record, we have about four and a half hours of evidence, four witnesses, a single count.

[00:03:52] Speaker 00:
And then the jury goes off to deliberate and

[00:03:55] Speaker 00:
It takes about five and a half hours of deliberations interrupted by one question about evidence, but they work for five and a half hours before they announce their deadlock.

[00:04:08] Speaker 00:
In this case where we have only one count and it's a pretty simple count and four witnesses, that is a reasonable time to deliberate before declaring a deadlock.

[00:04:18] Speaker 00:
And post-Alan instruction, they deliberate for less than an hour before they convict.

[00:04:25] Speaker 02:
And I'm sorry to keep interrupting you.

[00:04:28] Speaker 00:
That's what we're here for.

[00:04:29] Speaker 02:
I apologize.

[00:04:31] Speaker 02:
But there I worry about Arne.

[00:04:34] Speaker 02:
Your point seems well taken that, okay, well, then the judge gives an Allen instruction.

[00:04:39] Speaker 02:
They deliberate for less than an hour.

[00:04:42] Speaker 02:
That's also true in Arne.

[00:04:45] Speaker 02:
And the court found that the Allen instruction wasn't coercive.

[00:04:49] Speaker 00:
Right.

[00:04:50] Speaker 00:
And so I recognize that some of the timing issues are similar in Arnie.

[00:04:54] Speaker 00:
But in Arnie, the defendant didn't challenge the language that we're challenging here.

[00:04:57] Speaker 00:
So it doesn't really help us because the court isn't considering the impact of the language.

[00:05:02] Speaker 00:
It's just considering the giving of the instruction generally.

[00:05:05] Speaker 00:
So I don't think Arnie forecloses our argument here or really tells the court much about how to view the language that we're focused on.

[00:05:16] Speaker 00:
I did want to mention as well in this case, as opposed to some of the cases where this court has found no Allen error, the evidence is not overwhelming.

[00:05:26] Speaker 00:
Additionally, we've got a jury that is telling us that they did their work.

[00:05:31] Speaker 00:
They followed those two instructions I have mentioned that went with the original instructions, the Allen-ish instructions.

[00:05:39] Speaker 00:
The jury comes back and tells the judge, we did what you told us to do, and those were instructions 18 and 20.

[00:05:45] Speaker 00:
We did what you told us to do.

[00:05:47] Speaker 00:
We looked at the evidence.

[00:05:49] Speaker 00:
We deliberated with logic and transparency.

[00:05:52] Speaker 00:
We searched the evidence in the exhibits, and we are still deadlocked.

[00:05:57] Speaker 00:
So again, the jury did its work, followed the instructions of the court.

[00:06:01] Speaker 03:
Do you think that five hours of deliberation, regardless of whether it's one count or 20,

[00:06:13] Speaker 03:
an extensive period of time to indicate that there's a deadlock that cannot be changed?

[00:06:25] Speaker 03:
Do you really think five hours?

[00:06:28] Speaker 00:
Sure, absolutely.

[00:06:28] Speaker 00:
When you have a jury that lets the court know that they've done the work they were asked to do, we see verdicts in much less time than that.

[00:06:35] Speaker 03:
Let me ask you, yes, do you think it would have been okay if the court had said,

[00:06:44] Speaker 03:
Well, okay, we're going to take a break for the weekend.

[00:06:48] Speaker 03:
Said nothing, you know, didn't give an Alan instruction or anything.

[00:06:51] Speaker 03:
Said nothing and brought him back in on the next Monday and said, you know, go back and continue to deliberate.

[00:07:00] Speaker 03:
Would that have been okay?

[00:07:02] Speaker 00:
It would have been much better because we would not have had that language about if you don't do this, then the case will happen.

[00:07:10] Speaker 03:
But you still think that you'd have a basis to get it reversed?

[00:07:15] Speaker 00:
I would probably be less, it's much less likely I would have raised this issue if we didn't have this language, especially given that the language, I mean this court.

[00:07:24] Speaker 03:
Let me ask this.

[00:07:24] Speaker 03:
You make some issue out of the proposition that when the jurors were leaving,

[00:07:36] Speaker 03:
after the Allen Instruction, two jurors alerted the court deputy that they had a question.

[00:07:46] Speaker 03:
And you suggest that the judge should have brought him back in and

[00:07:52] Speaker 03:
I think you say poll them, right?

[00:07:55] Speaker 00:
I don't believe I suggested polling, but to find out what the question was.

[00:08:00] Speaker 03:
Do you really think that's advisable for a district judge to ask open-ended questions in the presence of the jury about what are you thinking, your deliberation?

[00:08:14] Speaker 00:
No, I think that what should have happened is I actually understand what the district court did.

[00:08:19] Speaker 00:
The district court chose not to ask the jurors to submit the question because some of them had already left.

[00:08:26] Speaker 00:
The point is, I'm not saying the judge should have brought those two jurors in.

[00:08:32] Speaker 00:
Ideally, on Monday, before they go back in to deliberate, the judge would have asked the jurors to reduce their questions if they still had them deriding, like all their other questions, right?

[00:08:43] Speaker 00:
Give it to the bailiff.

[00:08:43] Speaker 00:
The bailiff would bring it to the court, and then everybody would decide how to answer it.

[00:08:47] Speaker 00:
But the only thing I'm asking this Court to do here is not to say the judge erred there.

[00:08:52] Speaker 00:
It just happens to be another piece of the record where the jurors, from the jurors' perspective... Okay.

[00:08:58] Speaker 03:
I understand your point that this is a factor.

[00:09:00] Speaker 03:
It's not in and of itself there.

[00:09:02] Speaker 03:
I understand that.

[00:09:03] Speaker 03:
But in order to be a factor, doesn't there have to be an objection saying, oh, Judge, you should

[00:09:13] Speaker 03:
tell them to reduce their questions to writing and send them back in.

[00:09:18] Speaker 03:
And that didn't happen, right?

[00:09:20] Speaker 00:
Well, the lawyer asked the judge to hear the questions.

[00:09:23] Speaker 00:
I'm not sure he specifically said have them put in.

[00:09:27] Speaker 00:
He wanted the judge to hear the questions in one way or another.

[00:09:30] Speaker 00:
I can't remember exactly the wording.

[00:09:33] Speaker 03:
But did the lawyer say that on Thursday or on Monday?

[00:09:37] Speaker 00:
On Thursday, because the lawyer said, I think it might have something to do with deadlock.

[00:09:41] Speaker 03:
But they're coming back, and then when they come back on Monday or whenever they came back.

[00:09:44] Speaker 03:
Shouldn't the lawyer have said he or she wanted to preserve that factor?

[00:09:52] Speaker 03:
Judge, would you please guide the jury and tell them that the questions they may have should be reduced to writing?

[00:10:02] Speaker 00:
I sure wish that had happened.

[00:10:03] Speaker 00:
There's nothing on the record.

[00:10:04] Speaker 00:
On Monday, the first thing on the Monday record is we've got a verdict.

[00:10:08] Speaker 00:
So it may be that the jurors got in there and deliberated so quickly.

[00:10:12] Speaker 00:
I don't know what happened because there's no record there.

[00:10:16] Speaker 00:
If this court chooses not to take that part of the record into account in considering the Allen Instruction, that's fine.

[00:10:22] Speaker 00:
I think we have enough grounds for arguing for reversal anyway.

[00:10:26] Speaker 00:
This case is, you know, the McElhenney

[00:10:29] Speaker 00:
McElhinney case is really pretty good for us.

[00:10:35] Speaker 00:
McElhinney was stronger in some ways.

[00:10:37] Speaker 00:
The language the court used in that case was stronger.

[00:10:40] Speaker 00:
But our case is stronger in other ways.

[00:10:42] Speaker 00:
Our judge didn't give the jurors an option about going back in to deliberate.

[00:10:46] Speaker 00:
In McElhinney, the court actually asked the jurors, hey, are you willing to keep trying?

[00:10:51] Speaker 00:
I'd like to see you try.

[00:10:52] Speaker 00:
Are you willing to try?

[00:10:53] Speaker 00:
And the jurors answered, yes, yeah, we're willing to try.

[00:10:55] Speaker 00:
Our judge told our jurors that if they didn't agree, the case must be tried again.

[00:11:00] Speaker 00:
In McElhinney, the judge actually said, I don't know what's going to happen.

[00:11:03] Speaker 00:
It might be tried again.

[00:11:05] Speaker 03:
Isn't the jury instruction given part of the pattern jury instructions?

[00:11:10] Speaker 00:
It is part of the pattern, unfortunately.

[00:11:11] Speaker 00:
And I think this is the perfect opportunity for this court to make it clear that judges should not be giving that part of the pattern instruction.

[00:11:21] Speaker 00:
And the other point I wanted to make about McElhinney was, in McElhinney, after the instruction was given in our case, again, it's less than an hour before they convict in McElhinney, it was several hours, plus the jurors asked to review some more evidence.

[00:11:36] Speaker 00:
They asked for a readback.

[00:11:37] Speaker 00:
And so they did the work after the Allen instruction that our jurors did before the Allen instruction.

[00:11:45] Speaker 03:
But this jury had, what, Friday, Saturday, Sunday, three days

[00:11:54] Speaker 03:
with all this on their minds.

[00:11:57] Speaker 03:
It was on their minds.

[00:11:58] Speaker 03:
And then they come back in, and they do deliberate.

[00:12:02] Speaker 03:
And they do what they're supposed to do, and that is to

[00:12:09] Speaker 03:
be willing to change their minds.

[00:12:11] Speaker 00:
Somebody change their mind.

[00:12:12] Speaker 00:
We know that.

[00:12:13] Speaker 00:
Right.

[00:12:14] Speaker 00:
So if I may speak to the weekend and then reserve the rest of my time.

[00:12:20] Speaker 03:
So you're diminishing the continued deliberation and thoughtfulness.

[00:12:29] Speaker 00:
I'm not diminishing it.

[00:12:30] Speaker 00:
This court has said a short deliberation after the Allen charge is evidence, some evidence, of coercion.

[00:12:37] Speaker 03:
Now, how much actually time was it

[00:12:38] Speaker 00:
after the When they returned on Monday, how long they take you know we don't know exactly what time they came in the judge suggested they come in at 830 and What time the verdict come in the verdict comes in let me just I got a note here with this times I

[00:12:58] Speaker 00:
The jurors returned the verdict in open court at 9.30.

[00:13:04] Speaker 00:
And the minute sheet says they continued deliberations at 9 o'clock.

[00:13:07] Speaker 00:
So it looks like about half an hour.

[00:13:10] Speaker 00:
All right.

[00:13:10] Speaker 00:
I think at this point, I'd like to reserve the rest of my time for rebuttal, if that's OK?

[00:13:14] Speaker 00:
Sure.

[00:13:15] Speaker 00:
All right.

[00:13:15] Speaker 00:
Thank you.

[00:13:37] Speaker 01:
Good morning, Your Honor.

[00:13:40] Speaker 01:
James Brown for the United States.

[00:13:41] Speaker 01:
May it please the Court.

[00:13:43] Speaker 01:
Your Honor, this morning we're asking this Court to affirm the defendant's conviction.

[00:13:47] Speaker 01:
We think that all of the issues in this case can be viewed through the lens of the fact that there was overwhelming evidence against the defendant in this case.

[00:13:57] Speaker 01:
The first exchange that Ashley, who was the undercover agent, had with defendant

[00:14:02] Speaker 01:
She just said, needing to make some money, recently graduated and looking to make money for a new ride to cosmetology school.

[00:14:09] Speaker 01:
That was it.

[00:14:10] Speaker 01:
It was a neutral request for money.

[00:14:15] Speaker 01:
The defendant immediately responded by stating, I'll give you $500 to spend the weekend trading orgasms with me.

[00:14:22] Speaker 01:
He immediately injected the notion of money for sex.

[00:14:25] Speaker 02:
That's not illegal, is it?

[00:14:26] Speaker 02:
I mean, I guess maybe you're paying a prostitute.

[00:14:31] Speaker 02:
Well, it is illegal.

[00:14:32] Speaker 02:
It's not a violation of 2426.

[00:14:34] Speaker 01:
No, but there are other things.

[00:14:36] Speaker 01:
That's just the first element.

[00:14:37] Speaker 01:
The second element is he's the one who suggests that they continue to suggest that they have sexual relations even after she said that she was 17.

[00:14:45] Speaker 01:
She said, I'm 17.

[00:14:46] Speaker 01:
Is that a problem?

[00:14:47] Speaker 01:
He said, let me send you a picture.

[00:14:49] Speaker 02:
And that is not a violation of the count in which she was adjudicated guilty.

[00:14:55] Speaker 01:
No, then we get to the third part.

[00:14:57] Speaker 01:
Then he suggested, why don't I come from Kansas City, Missouri to Kansas so we can do this?

[00:15:03] Speaker 01:
Those three things equal the violation.

[00:15:07] Speaker 01:
So there's overwhelming.

[00:15:08] Speaker 02:
After Ashley says, I think, that, well, I can't get there.

[00:15:14] Speaker 02:
I don't have a ride to get to you.

[00:15:17] Speaker 02:
If she had come to him, he wouldn't have been guilty of this charge.

[00:15:21] Speaker 02:
He wouldn't have crossed state lines in order to have commercial sex with a minor.

[00:15:27] Speaker 01:
Well, maybe, correct.

[00:15:31] Speaker 01:
We'll concede that.

[00:15:32] Speaker 01:
But the fact is, on these facts, he's the one who said, he's the one who suggested he'd cross state lines to come have sexual relations.

[00:15:41] Speaker 01:
He offered to drive from his house in Kansas City, Missouri, to Topeka.

[00:15:45] Speaker 01:
Basically, we have overwhelming evidence on each of the elements.

[00:15:48] Speaker 01:
Absolutely.

[00:15:50] Speaker 02:
Because there was no instruction on his proposed defense of entrapment in which we view the evidence not favorably to you, but favorably to the defendant.

[00:16:01] Speaker 02:
Now, so how viewing the evidence favorably to the defendant do we say that there is no evidence in which we can find either predisposition or inducement?

[00:16:15] Speaker 02:
Well, let's first of all.

[00:16:18] Speaker 02:
And I don't want to mess you up.

[00:16:19] Speaker 02:
If you weren't planning to talk about entrapment, I don't want to mess you up in your presentation.

[00:16:28] Speaker 02:
Your comments sort of spurred those questions.

[00:16:31] Speaker 01:
All right.

[00:16:31] Speaker 01:
Well, I'll talk about, obviously, whatever the court wants me to talk about.

[00:16:35] Speaker 01:
That's why I'm here.

[00:16:36] Speaker 01:
So I'll obviously answer the court's questions about entrapment.

[00:16:40] Speaker 01:
You know, the entrapment, there has to be an evidentiary basis

[00:16:44] Speaker 01:
for an entrapment instruction to be given.

[00:16:47] Speaker 01:
And he has to show an evidentiary basis for inducement and an evidentiary basis for predisposition.

[00:16:52] Speaker 01:
Let's talk about predisposition first.

[00:16:56] Speaker 01:
This defendant was eager and willing to commit the crime.

[00:17:01] Speaker 01:
So when we go to predisposition, there's no question that he wasn't predisposed.

[00:17:04] Speaker 01:
We know that from his very first email.

[00:17:06] Speaker 01:
I'll give you $500 to trade orgasms for the weekend when she didn't even mention sex in her first email.

[00:17:17] Speaker 01:
Well, it shows that he's predisposed to trade sex for money.

[00:17:22] Speaker 01:
And then when she said, I'm 17, is that a problem?

[00:17:25] Speaker 01:
He says, oh, let me send you a picture.

[00:17:27] Speaker 01:
And then when she says, I can't get to Missouri, he goes, oh, I'll drive from Kansas City, Missouri, to Kansas.

[00:17:33] Speaker 01:
So he was a willing and eager participant in this.

[00:17:37] Speaker 01:
And there's no way to get around that.

[00:17:39] Speaker 01:
There's no way to soft glove that.

[00:17:40] Speaker 01:
He was an eager and willing participant.

[00:17:42] Speaker 02:
So let me push back a little.

[00:17:45] Speaker 02:
and just play devil's advocate.

[00:17:49] Speaker 02:
So let's say predisposition.

[00:17:52] Speaker 02:
He's predisposed to give her $500 to have sex.

[00:17:57] Speaker 02:
Well, all of the text messages have this LOL.

[00:18:02] Speaker 02:
He comes to her.

[00:18:04] Speaker 02:
He doesn't have $500.

[00:18:06] Speaker 02:
You have a valid point.

[00:18:08] Speaker 02:
Well, there's ATMs.

[00:18:10] Speaker 02:
Well, that's true if I was viewing the evidence favorably to you, but I'm not under our law.

[00:18:17] Speaker 02:
I'm supposed to view it favorably to Ms.

[00:18:19] Speaker 02:
Nichols.

[00:18:20] Speaker 02:
And couldn't a reasonable fact finder, viewing the evidence favorably to the defendant, say, no, he was not predisposed to give her $500 for sex.

[00:18:38] Speaker 02:
Maybe he wanted to have sex with this attractive young lady for free.

[00:18:42] Speaker 02:
But a reasonable fact finder could find that he was not going to give her $500 to have sex.

[00:18:49] Speaker 02:
And that would have been an equivalent.

[00:18:50] Speaker 01:
We don't think that's reasonable given all the history of the text messages.

[00:18:55] Speaker 01:
And as far as the LOLs, I don't know if the court does a lot of texting, but LOL is common in almost lots and lots of texts.

[00:19:04] Speaker 01:
People use LOL all the time.

[00:19:06] Speaker 01:
It means laughing out loud.

[00:19:07] Speaker 01:
It's just sort of a cutesy thing that you put on an email.

[00:19:11] Speaker 01:
So that really doesn't mean anything.

[00:19:12] Speaker 01:
They try to make it like, oh, that means it's all a big joke and it's all

[00:19:16] Speaker 01:
You know, it's all a big joke between them.

[00:19:19] Speaker 01:
But the LOL, there's no evidence that the LOL really means anything.

[00:19:23] Speaker 02:
So as a matter of law, you have the evidence favorably to defend it.

[00:19:30] Speaker 02:
I guess we adjudicate, we issue an opinion saying LOL has no legal significance.

[00:19:36] Speaker 02:
Well, not on hand.

[00:19:37] Speaker 02:
It can't possibly be.

[00:19:39] Speaker 02:
that it's just a big joke.

[00:19:41] Speaker 02:
I really want to be your boyfriend.

[00:19:42] Speaker 02:
The guy's obviously very lonely.

[00:19:45] Speaker 02:
There's talk about, what do you want?

[00:19:47] Speaker 02:
You know, hugs and kisses and lots of sex.

[00:19:50] Speaker 02:
Well, he clearly is a terribly lonely guy.

[00:19:54] Speaker 02:
Ashley knows that.

[00:19:56] Speaker 02:
And so I'm just wondering, you know, I think you've got a strong

[00:20:01] Speaker 02:
argument on entrapment, if I was viewing the evidence favorably to you, I just don't know how you, with the LOL that he doesn't have $500, do you say as a matter of law, no reasonable fact finder could conclude that he was anything other than predisposed to not only to have sex with her, but to cross state lines and to pay her for $500 to do that?

[00:20:25] Speaker 01:
We'd like to just gently reiterate that we think the court may be placing a little bit too much emphasis on the LOL.

[00:20:31] Speaker 01:
But let me go to inducement.

[00:20:35] Speaker 01:
Inducement requires some threats or fraudulent statements or harassment or undue persuasion or something.

[00:20:45] Speaker 01:
Here, the inducement consisted of Ashley posting an ad saying, I need money to buy a car to go to cosmetology school.

[00:20:52] Speaker 01:
The defendant said,

[00:20:53] Speaker 01:
Oh, I'm going to pay you $500 to have sex with me and trade orgasms for the weekend.

[00:20:57] Speaker 01:
I don't care if you're 17, and I'll come from Kansas City, Missouri to Topeka to do this.

[00:21:02] Speaker 01:
That's inducement, as this court said.

[00:21:05] Speaker 02:
I thought that the inducement was, I can't get to you, so you have to get to me.

[00:21:11] Speaker 02:
If the law really is for predisposition or inducement, that you have to have fraud or anything like that,

[00:21:22] Speaker 02:
This is a little bit of an unusual entrapment.

[00:21:25] Speaker 01:
Well, Your Honor, we don't see how saying, I can't get to you is really inducement.

[00:21:33] Speaker 01:
It's putting the ball in his court, but that's not saying, you need to come to me.

[00:21:38] Speaker 01:
You need to come here.

[00:21:39] Speaker 01:
You need to get in your car and drive across the state line.

[00:21:42] Speaker 01:
That's just saying, I'm here stuck in Topeka and my mom took my car or whatever it is.

[00:21:47] Speaker 01:
She took me off social media.

[00:21:50] Speaker 01:
So we don't think that's inducement.

[00:21:52] Speaker 02:
Would you make a picture of it?

[00:21:54] Speaker 02:
Oh, I'm sorry.

[00:21:54] Speaker 02:
You were going to say something else.

[00:21:57] Speaker 01:
No, I don't want to interrupt the court.

[00:21:58] Speaker 01:
Please go ahead.

[00:22:00] Speaker 01:
I would just direct the court's attention to this court's statement or tease that inducement implicates the obvious question of whether the defendant was eager or reluctant.

[00:22:09] Speaker 01:
The idea being that if somebody is eager, as he obviously was, it's really hard to find inducement, right?

[00:22:17] Speaker 01:
I mean, how do you induce somebody who's willing and eager to commit a crime?

[00:22:22] Speaker 01:
It's really hard to do.

[00:22:23] Speaker 01:
And I don't think there's any question that he was eager and willing to commit this crime.

[00:22:28] Speaker 02:
Can I ask you one last question?

[00:22:29] Speaker 02:
And I promise to quit barring you on interest.

[00:22:34] Speaker 01:
I'm happy to answer any question.

[00:22:36] Speaker 02:
Well, I don't want to take your time.

[00:22:38] Speaker 02:
What about that filtered picture of this woman who's clearly not 17 years old?

[00:22:44] Speaker 02:
Viewing the evidence favorably to the defendant,

[00:22:47] Speaker 02:
Can we really say, as a matter of law, that he knew that this girl was under 18?

[00:22:56] Speaker 01:
Look, the filtered picture.

[00:22:58] Speaker 01:
A filtered picture is filtered.

[00:23:03] Speaker 01:
It's not accurate.

[00:23:04] Speaker 01:
The court may say, obviously, that she looked over 17.

[00:23:07] Speaker 01:
If you walk down the street and look at young women, they dress like they're very

[00:23:16] Speaker 02:
I've got a 16 year old daughter, I take judicial notice.

[00:23:20] Speaker 01:
Okay, so not all 17 year olds dress like they're young girls.

[00:23:23] Speaker 01:
Some of them dress like they're older women, right?

[00:23:26] Speaker 01:
He had no basis to think that she was over 17 just from the look of that photo.

[00:23:31] Speaker 01:
That photo doesn't portray any particular characteristic that would indicate that she's not 17.

[00:23:38] Speaker 01:
That is sort of something that they made up.

[00:23:41] Speaker 01:
after trial and put in their briefs and go, obviously, she doesn't look 17.

[00:23:46] Speaker 01:
We don't know how he perceived that photo.

[00:23:48] Speaker 02:
Well, if we don't know.

[00:23:51] Speaker 01:
His response was, you're a doll.

[00:23:54] Speaker 01:
You're a doll.

[00:23:54] Speaker 01:
Oh, you're only 17.

[00:23:55] Speaker 01:
Let me send you one of my pictures.

[00:23:57] Speaker 01:
That was his response.

[00:23:58] Speaker 01:
He never told her she didn't look 17.

[00:23:59] Speaker 01:
Well, I promised to shut up, so I'll shut up.

[00:24:01] Speaker 01:
I didn't mean to interrupt.

[00:24:02] Speaker 01:
Did I interrupt your honor?

[00:24:03] Speaker 01:
You did not.

[00:24:04] Speaker 01:
I interrupted you.

[00:24:05] Speaker 01:
I'm sorry.

[00:24:06] Speaker 01:
You go ahead.

[00:24:07] Speaker 01:
OK.

[00:24:07] Speaker 01:
We just think the photo is a non-issue.

[00:24:09] Speaker 01:
I got it.

[00:24:10] Speaker 01:
The photo is a non-issue.

[00:24:11] Speaker 01:
Now, I could move to the Allen instruction if the court is finished with the trial.

[00:24:16] Speaker 03:
Wait a minute before you leave this.

[00:24:21] Speaker 03:
This was not Spradley's first rodeo.

[00:24:25] Speaker 03:
at least in looking for sex.

[00:24:29] Speaker 03:
Is that correct?

[00:24:31] Speaker 03:
What was that evidence?

[00:24:33] Speaker 01:
The evidence was inconclusive and ambiguous.

[00:24:35] Speaker 01:
We tried to put on evidence that he had contacted other people, and I think that we were not able to put on everything we wanted to put on, and it came out as a wash, really.

[00:24:50] Speaker 01:
I don't think we had any conclusive or determinative evidence that he had done this before.

[00:24:56] Speaker 01:
I think we had suggestions in the evidence that it had happened, but nothing super concrete that we can rely on.

[00:25:01] Speaker 01:
Otherwise, I would have relied on it in the brief.

[00:25:05] Speaker 03:
You want to talk about the Allen Instruction?

[00:25:07] Speaker 03:
Yes.

[00:25:08] Speaker 03:
But as you get into that, you would concede that it's not correct what the instruction provided, and that is that it would have to be tried all over again.

[00:25:23] Speaker 03:
That's just wrong, right?

[00:25:26] Speaker 01:
We acknowledge that.

[00:25:27] Speaker 01:
Of course we acknowledge that.

[00:25:29] Speaker 01:
We'd ask the court to change the pattern instruction.

[00:25:31] Speaker 01:
It's hard to get that right in every case, because the district courts rely on the pattern instructions.

[00:25:36] Speaker 03:
But our precedent has affirmed in other circumstances where that very pattern instruction has been used, correct?

[00:25:48] Speaker 03:
making the same inaccurate statements?

[00:25:50] Speaker 01:
Similar inaccurate statements have been affirmed in at least three cases which we point out.

[00:25:55] Speaker 03:
In those cases, do we know whether the issue was specifically raised and therefore the fact that we signed off on this particular jury instruction?

[00:26:10] Speaker 03:
that since the issue was never raised, it's property before us, and to say that that renders this Allen instruction problematic.

[00:26:21] Speaker 01:
Okay.

[00:26:21] Speaker 01:
I cite three cases.

[00:26:23] Speaker 01:
The first one, Arnie, it was not raised.

[00:26:25] Speaker 01:
In Smith, it was directly raised.

[00:26:28] Speaker 01:
but there was also some softening language in that instruction.

[00:26:32] Speaker 01:
First it said the case will be put to the, the parties will be put to the expense of another trial, and then in a couple sentences later, if the case is retried.

[00:26:41] Speaker 01:
So there's some softening, but it was raised.

[00:26:43] Speaker 03:
It was softened with an if, if it's raised.

[00:26:45] Speaker 01:
Right.

[00:26:46] Speaker 01:
And then Hernandez Garcia was raised

[00:26:48] Speaker 01:
The language was considered by this court on appeal under a plain error standard.

[00:26:52] Speaker 01:
It was not raised below.

[00:26:54] Speaker 01:
But Hernandez Garcia, my colleague says, well, that's plain error, so that's distinguishable.

[00:26:59] Speaker 01:
But if we look at page 876, the court said, plain error in this context means error that affects the defendant's fundamental right to a fair and impartial trial.

[00:27:13] Speaker 01:
So the court didn't just decide it on the basis that the error wasn't plain under our law.

[00:27:18] Speaker 01:
The court decided on the basis that there was no violation of the defendant's fundamental right to a fair and impartial trial, which is basically the same as a harmless error standard.

[00:27:30] Speaker 03:
So we think that... So essentially, there is no precedent that says this instruction is OK.

[00:27:38] Speaker 01:
There is precedent that strongly suggests that it does not violate a defendant's fundamental right to a fair trial.

[00:27:45] Speaker 01:
There is not any exact situation that matches this situation.

[00:27:49] Speaker 03:
Exactly.

[00:27:50] Speaker 03:
Then you're saying that, because it was raised here, that we should apply a harmless error standard?

[00:28:00] Speaker 03:
Correct, Your Honor.

[00:28:03] Speaker 01:
Correct.

[00:28:04] Speaker 01:
Now, on that point, the defendant says,

[00:28:08] Speaker 01:
that we do not argue harmless error under this issue, which is issue two.

[00:28:14] Speaker 01:
Under issue two, we do not discuss this.

[00:28:16] Speaker 01:
We do not discuss harmless error.

[00:28:17] Speaker 01:
However, under the cumulative error analysis, what we do argue, we do argue harmless error applies to all the errors.

[00:28:25] Speaker 01:
On page 41, we say, in light of this evidence, no alleged error committed by the court would have affected the result of the trial and is therefore harmless.

[00:28:32] Speaker 01:
So we think that encompasses

[00:28:34] Speaker 01:
Any Allen errors?

[00:28:36] Speaker 01:
Mr. Brown, here's a problem I have with that.

[00:28:43] Speaker 03:
Frequently, and I emphasize frequently, the United States government raises a waiver in forfeiture against defendants.

[00:28:56] Speaker 03:
The fact that you put harmless air in the cumulative air section

[00:29:02] Speaker 03:
is not the same as putting harmless error in the substantive section on issue 2.

[00:29:10] Speaker 03:
Doesn't that, in fairness in applying harmless error, mean that you waived the argument of harmless error on the Alan S. Church?

[00:29:20] Speaker 01:
The point is very well taken that we argue that what the court said in almost every case, and we rely on that and fight about that all the time.

[00:29:27] Speaker 01:
That's true.

[00:29:28] Speaker 01:
But in this case, we actually did say none of the alleged errors

[00:29:32] Speaker 01:
could amount to anything because they're harmless.

[00:29:35] Speaker 01:
We actually did say that, and that does encompass any Allen error.

[00:29:39] Speaker 01:
We say none of the alleged errors.

[00:29:41] Speaker 01:
So that does encompass it.

[00:29:42] Speaker 01:
We could have been stronger.

[00:29:43] Speaker 01:
We should have been clearer.

[00:29:45] Speaker 01:
No question about that.

[00:29:47] Speaker 01:
But the fact that we weren't does not mean that there's a waiver if we address it in another part of the brief.

[00:29:52] Speaker 01:
We understand the court's reluctance to look at it that way, based upon the history of how we argued this, but we think it is still there.

[00:29:58] Speaker 01:
If the court wants to disregard it, obviously the court has discretion to say,

[00:30:01] Speaker 01:
No, government, you missed the boat here.

[00:30:03] Speaker 01:
That's not enough.

[00:30:04] Speaker 01:
And we'd accept that.

[00:30:06] Speaker 01:
Thank you.

[00:30:08] Speaker 01:
We'd ask the court to affirm.

[00:30:10] Speaker 01:
Thank you.

[00:30:19] Speaker 02:
You have an extra minute and a half, because he went over.

[00:30:28] Speaker 02:
And you can thank Judge Murphy for that.

[00:30:30] Speaker 00:
Thank you, Judge Murphy.

[00:30:34] Speaker 03:
I'm not going to acknowledge that.

[00:30:37] Speaker 00:
Excuse me.

[00:30:39] Speaker 00:
The government has certainly given this court some evidence of predisposition.

[00:30:43] Speaker 00:
But what matters is whether there's some evidence of lack of predisposition and some evidence of inducement.

[00:30:48] Speaker 00:
We've got both.

[00:30:49] Speaker 00:
I'll give you the list.

[00:30:51] Speaker 00:
Pardon me.

[00:30:52] Speaker 00:
Inducement.

[00:30:53] Speaker 00:
One, the officer waits to say she's 17 until he's got a fish on the hook.

[00:30:58] Speaker 00:
Two, the officer knows the legal age of consent in Kansas is 16 and deliberately makes her 17 over that age.

[00:31:04] Speaker 00:
Three, officer, as the judge pointed out, has Ashley ask him to pick her up in Kansas.

[00:31:09] Speaker 00:
Her car won't make it to Kansas City.

[00:31:11] Speaker 00:
Four, the officer has Ashley keep coming back to the money.

[00:31:14] Speaker 00:
Are you bringing the money?

[00:31:15] Speaker 00:
Are you bringing the money?

[00:31:17] Speaker 00:
Even while he's trying to have a deeper conversation.

[00:31:18] Speaker 00:
Five, that filtered picture.

[00:31:20] Speaker 00:
Yes, send a picture of her that looks like she's

[00:31:25] Speaker 00:
Maybe, like you don't know how old she is.

[00:31:27] Speaker 00:
Okay, predisposition.

[00:31:29] Speaker 03:
Before you go there, you're into this issue now.

[00:31:38] Speaker 03:
Do we consider, Bradley testified, correct?

[00:31:43] Speaker 00:
Yes.

[00:31:44] Speaker 03:
And the question is whether there's, you know,

[00:31:51] Speaker 03:
evidence that says that the jury instruction should have been given.

[00:31:55] Speaker 03:
In analyzing that, do you consider the evidence both in the government's case in chief and in the defendant's case where the defendant testified?

[00:32:06] Speaker 03:
Yes, it can come from either one.

[00:32:09] Speaker 03:
My question is, when Spradley testified, did he ever say, I did not think Ashley was under 18?

[00:32:22] Speaker 00:
Yes, he said there were signs that there's no way this 17 year old would want to I don't remember the exact language, but it is in his testimony And I'm quite sure I pointed it out in the brief He believed everybody online was lying anyway that people understated their specifically say I didn't believe she was 18 I believe he does I think he's quite specific about that if I may list the some evidence of

[00:32:52] Speaker 00:
lack of predisposition.

[00:32:54] Speaker 00:
One, he said during cross-examination that he had never communicated with any other women on dating apps who said they were under 18.

[00:33:04] Speaker 00:
The phone guy, the guy who looked at his phone, said there were no images on there that would be considered child pornography.

[00:33:12] Speaker 00:
And he also said that he had never previously paid for sex and that he didn't

[00:33:22] Speaker 00:
ever, he never have, I don't pay for sex, I never have, he said I would pay money, I would pay someone money to spend time with me.

[00:33:30] Speaker 03:
So all of that is sufficient evidence of... What is his testimony vis-a-vis the picture, the image of Ashley that was not Ashley?

[00:33:39] Speaker 00:
He said he had put it through some kind of heuristics and determined that it had been highly filtered so he didn't think that it was believable that this is what she actually looked like.

[00:33:49] Speaker 03:
Okay, did he relate that image in any way to her age?

[00:33:54] Speaker 00:
I think he does.

[00:33:55] Speaker 00:
I do think he does.

[00:33:56] Speaker 00:
And his testimony is quite short.

[00:33:57] Speaker 00:
I'm pretty sure I talk about this in the brief.

[00:34:00] Speaker 00:
I'm sorry, I don't have the citations or the exact language for you right now.

[00:34:03] Speaker 03:
It was a long time ago.

[00:34:04] Speaker 03:
I need my memory refresh.

[00:34:06] Speaker 00:
Well, it was just yesterday I reread his testimony, so you'd think.

[00:34:08] Speaker 00:
But at any rate, we've got several errors in this case.

[00:34:13] Speaker 00:
We think this is a cumulative error case.

[00:34:15] Speaker 00:
At the very least, we've got Allen error and or we've got entrapment error.

[00:34:19] Speaker 00:
And this court should reverse.

[00:34:20] Speaker 00:
Thank you.

[00:34:24] Speaker 02:
All right.

[00:34:25] Speaker 02:
Thank you.

[00:34:25] Speaker 02:
This matter is submitted.

[00:34:26] Speaker 02:
And just an editorial comment, I thought both sides, frankly, as always, wrote excellent briefs and did an excellent job in your arguments today.

[00:34:40] Speaker 02:
This matter is submitted.

[00:34:41] Speaker 02:
And I think we're in recess till 830 tomorrow.

[00:34:44] Speaker 02:
OK.