[00:00:00] Speaker 04:
I think we will go to our next case, which is United States versus so.

[00:00:37] Speaker 04:
Let's call 24-2081 United States versus so.

[00:00:41] Speaker 04:
Skinner?

[00:00:43] Speaker 01:
Good morning, Your Honor's counsel.

[00:00:45] Speaker 01:
My name is Amanda Skinner and I'm here on behalf of Mr. So.

[00:00:48] Speaker 01:
The question in this case is whether the government can use an expanded statute of limitations for cases involving the sexual abuse of a child to prosecute Mr. So for a violation of a non-age specific statute 24 years after the conduct.

[00:01:02] Speaker 01:
This question turns on whether a fact specific or categorical approach is used to determine whether a case, quote, involves the sexual abuse of a child.

[00:01:12] Speaker 01:
The district court in this case determined that a fact-specific approach was supported by the text of the statute, the context, and the legislative history, and that there would be no practical difficulty or unfairness by using a fact-specific approach.

[00:01:28] Speaker 01:
But we disagree with these findings and this is a case where, you know, typically I try to stay away from hypotheticals because the court can easily say, well, that was an interesting hypothetical that you presented us, but we need not address it today to rule against your client.

[00:01:45] Speaker 01:
This case is really different.

[00:01:47] Speaker 01:
If this court finds that a fact-specific approach is what is used, you are opening the floodgates for the government to charge any crime so long as somewhere in the factual allegation, whether it was an element of the offense or not, involved

[00:02:05] Speaker 01:
the sexual abuse, physical abuse, or kidnapping of a child.

[00:02:09] Speaker 01:
And none of those terms are defined.

[00:02:12] Speaker 01:
And that is where we get into a problem and why I'm going to engage in hypotheticals today.

[00:02:18] Speaker 01:
In our reply brief, we gave what I think is our best example of a head start teacher in Indian country.

[00:02:26] Speaker 01:
who is told that a child is abused.

[00:02:30] Speaker 01:
A child reports abuse to her.

[00:02:31] Speaker 01:
A child comes in with a broken arm.

[00:02:33] Speaker 01:
She takes the child to the school nurse, doesn't say anything.

[00:02:37] Speaker 01:
Police investigate, tribal police investigate.

[00:02:40] Speaker 01:
30 years later, the US Attorney's Office can come in, take a look at the x-rays of the broken arm, take a look at those police reports, and see that the child said, I told Ms.

[00:02:50] Speaker 01:
Henderson that my dad broke my arm.

[00:02:53] Speaker 01:
And she didn't do anything.

[00:02:56] Speaker 01:
Maybe Mrs. Henderson knew his dad.

[00:02:58] Speaker 01:
Maybe there was some reason why she didn't report.

[00:03:03] Speaker 01:
But so long as the government pursues an indictment and presents evidence at trial that this child was abused and the jury finds that the child in the case was actually abused, she would be on the hook for up to six months in prison for the lifetime of that child under a fact-specific approach.

[00:03:24] Speaker 02:
And I think- But why can't we conclude that that's a good policy argument?

[00:03:29] Speaker 02:
But also, that's exactly what Congress intended when it passed the statute.

[00:03:32] Speaker 01:
Because I think Congress's intent has been misread by the circuits that have addressed this.

[00:03:39] Speaker 01:
Originally, when I got this case, I was looking at the statutory language in the original act in the 90s, and then Adam Walsh.

[00:03:48] Speaker 01:
And it's clear, Congress's goal is to protect children from child sexual and physical abuse and kidnapping.

[00:03:55] Speaker 01:
But when you actually look at how much is contained

[00:03:59] Speaker 01:
in this congressional record and the history of it, we're not talking about only federal cases.

[00:04:05] Speaker 01:
I think sometimes in the federal system, we get blinders on and think that we're only talking about our own law.

[00:04:13] Speaker 01:
These laws clearly dealt with state crimes.

[00:04:16] Speaker 01:
In even the original act, there's a provision for funding for training of prosecutors in state cases so that the state can go after these.

[00:04:25] Speaker 01:
And typically, child sexual abuse cases are prosecuted by the state.

[00:04:30] Speaker 03:
I mean, but don't it doesn't that can't can't that play the other way to that Congress was seeing the terrible crimes that were occurring on the state in the states and so they said well if it's within federal jurisdiction We're gonna have this extended limitations period.

[00:04:45] Speaker 01:
Yes, and I think that your question is important because it turns on federal jurisdiction these cases that Congress wanted to prosecute and

[00:04:54] Speaker 01:
included all state crimes under the Assimilated Crimes Act for anyone on a military base and anyone in Indian country.

[00:05:01] Speaker 03:
Another example I'll give you is a deep- But that's federal, I mean, that's federal jurisdiction.

[00:05:07] Speaker 01:
And so my answer on that is to just address that Congress did intend this to apply to a lot of laws.

[00:05:13] Speaker 01:
Every single law that they would have jurisdiction over that would have an element, an easily identifiable crime against a child.

[00:05:23] Speaker 01:
And if you committed a DUI with your child in the car on a military base 40 years ago, if it's a fact-specific approach, you're on the hook for that prosecution.

[00:05:32] Speaker 03:
So I guess the nature of this argument is,

[00:05:36] Speaker 03:
It's not like it appears that there were only a handful of federal laws aimed at children at this time.

[00:05:45] Speaker 03:
This was aiming much more broadly, scooping up all of the state's crimes against children that could be prosecuted by the federal government under the Assimilated Crimes Act or because it occurred on an Indian reservation.

[00:06:01] Speaker 01:
Yes, exactly, Your Honor.

[00:06:03] Speaker 01:
And I think that's reflected in Congress's use of the language.

[00:06:06] Speaker 01:
We want to cast a wide net.

[00:06:08] Speaker 01:
It's not an all-encompassing net.

[00:06:11] Speaker 01:
Courts are constantly confronted with uncomfortable situations like this one, where the facts are that Mr. So did sexually abuse a child under the age of 18.

[00:06:20] Speaker 01:
But the decision can't be made just on his facts to allow the government to pursue prosecution solely against Mr. So when doing so would create the sort of practical difficulties that we can avoid by using the categorical approach.

[00:06:35] Speaker 01:
And part of this turns on the government choosing the appropriate statute.

[00:06:38] Speaker 01:
This was a crime in Indian country and they had

[00:06:41] Speaker 01:
numerous New Mexico state statutes that apply to sexually abusing a sleeping child under the age of 18.

[00:06:48] Speaker 01:
I believe that that is a third degree felony under a New Mexico statute 30-9-10A4.

[00:06:57] Speaker 01:
And the courts have found that the force of the event itself qualifies as force.

[00:07:04] Speaker 01:
The other thing I would point out, when we're looking at what was Congress trying to do here,

[00:07:10] Speaker 01:
you know, there's going to be some misinterpretation or different interpretations depending on the district court judge.

[00:07:18] Speaker 01:
And I think that the best example of those situations come from our circuit, Kepler and Majeed.

[00:07:26] Speaker 01:
First of all, this shows us that we have some very motivated prosecutors who are willing to push this issue.

[00:07:32] Speaker 01:
In Kepler, they charged a

[00:07:35] Speaker 01:
generic state assault offense where it happened that a 13-year-old was injured.

[00:07:41] Speaker 01:
And the government pushed for the district court to find that the injury the child sustained in that case was subject to the expanded statute of limitations.

[00:07:51] Speaker 01:
Now, the court used a fact-specific approach and found that the, quote, little nick that the child received did not amount to child abuse.

[00:07:59] Speaker 01:
But when I read cases, I like to just start right with the court's language.

[00:08:03] Speaker 01:
I don't look at summaries.

[00:08:04] Speaker 01:
And I was reading this case assuming the court was barreling towards a finding that that was child abuse.

[00:08:11] Speaker 01:
Because when you look at the Black's Law Dictionary definition of child abuse or just the general meaning of child abuse, I think half of this courtroom this morning would probably agree that murdering someone's sibling in front of them and injuring them with a ricochet bullet

[00:08:26] Speaker 01:
is abusive conduct.

[00:08:28] Speaker 01:
And some of the definition, if you look to 3509 definition, which we're not conceding that that's an accurate definition, that can include mental injury.

[00:08:42] Speaker 01:
So if we go fact specific, we really are opening the floodgates.

[00:08:45] Speaker 01:
And Majid takes it even further.

[00:08:48] Speaker 01:
Majid is a case where defendants were charged with forced labor violations.

[00:08:55] Speaker 01:
Some of the victims were alleged to be children, but not all of them.

[00:09:00] Speaker 01:
And in Majeed, we have a district court judge who said, you know what, you're fine under the 10-year statute of limitations government.

[00:09:07] Speaker 01:
This was an ongoing offense.

[00:09:09] Speaker 01:
So we're not even going to get into whether the expanded statute is

[00:09:13] Speaker 01:
necessary.

[00:09:14] Speaker 01:
But the government pushed and said, we are going to introduce evidence at trial about these child victims, and we want to defend against the statute of limitations argument if it comes up on appeal.

[00:09:27] Speaker 01:
And so the defendants had requested dates of birth and nexus evidence about these children that were involved in the indictment.

[00:09:36] Speaker 01:
And the district court, in my view, got the first part right and said, OK, government, you need to provide dates of birth

[00:09:43] Speaker 01:
to the defendants, but you're not entitled to any nexus information.

[00:09:47] Speaker 01:
The government doesn't have to tell you whether one of your clients specifically abused child one.

[00:09:53] Speaker 01:
They don't even have to show you how that abuse was connected to the forced labor.

[00:09:59] Speaker 01:
This was a school situation.

[00:10:00] Speaker 01:
I think a defense attorney could make an argument that the abuse was separate from any forced labor that the child was forced to do.

[00:10:09] Speaker 01:
Maybe it was punishment for not paying attention in class

[00:10:13] Speaker 01:
something along those lines, but these examples you know from our circuit where this is an issue of first impression really highlight for us the problems with giving the government the opportunity to have an expanded statute of limitations that would apply to literally any statute.

[00:10:29] Speaker 04:
Is your argument at bottom is it one of statutory interpretation or is it really a due process or constitutional theory?

[00:10:41] Speaker 01:
I think it's statutory interpretation, if you agree with me, that the context and the history and the text show that Congress was not intending to capture people that didn't plead to a categorically child sex offense charge.

[00:10:57] Speaker 01:
But due process is also implicated.

[00:11:00] Speaker 01:
And Congress has the opportunity to come in and modify a statute if they don't like how the courts are interpreting this.

[00:11:07] Speaker 01:
But this is, you know, kind of bringing into focus our divided government and our three co-equal branches because if the attorney general under the executive branch has the opportunity to use this statute to go after an airman for a DUI 30 years ago on base because the record shows his four-year-old was in the car, that's negligent child abuse in most states.

[00:11:32] Speaker 01:
And with no definition in the federal statute of what constitutes child physical abuse, sexual abuse, or even kidnapping, we are in a situation where depending on the prosecutor, depending on the district court judge, you're going to have wildly different outcomes.

[00:11:53] Speaker 01:
And I think that, of course, implicates due process.

[00:11:55] Speaker 02:
Counsel, do you acknowledge that if we agree with your argument, we're going to cause a circuit split?

[00:12:02] Speaker 01:
I tried to deal with Schneider and Weingartner and now Maxwell without necessarily having to say it's a circuit split, because those are cases where the defendant necessarily

[00:12:20] Speaker 01:
pled to an offense that requires the physical or the sexual abuse of a minor.

[00:12:26] Speaker 02:
I mean, I just don't think... But those cases, I mean, Weingart and Schneider were transportation cases.

[00:12:31] Speaker 01:
Right.

[00:12:31] Speaker 01:
I mean, so it seems to me they may have better arguments than... Well, under the definition adopted by the court in Schneider, the court determined that sexual abuse includes persuasion, inducement, enticement, or coercion to engage in conduct.

[00:12:46] Speaker 01:
So you don't even have to actually have followed through on the abuse.

[00:12:50] Speaker 01:
So it will create a circuit split if you read Schneider and Weingartner as saying that you have to use a fact-specific approach.

[00:13:05] Speaker 01:
But I'm not really concerned about a circuit

[00:13:08] Speaker 01:
split in this case because I think that the fears that we lay out or the hypotheticals that we lay out are real and they weren't addressed in Weingartner or Schneider.

[00:13:20] Speaker 01:
The defendants didn't make those arguments and Weingartner especially, we laid it out in our reply

[00:13:27] Speaker 01:
The leader decision in Maxwell just is not sufficient to explain why that panel determined that in the 2255 context you lose because it's not quote obvious that the categorical approach applied and now in direct appeal in defendant Maxwell's case, we're going to rely on Weingartner.

[00:13:45] Speaker 01:
There's no analysis as to how they got there.

[00:13:48] Speaker 01:
They didn't delve deeper

[00:13:49] Speaker 01:
into the congressional intent or statutory interpretation principles.

[00:13:53] Speaker 01:
So to the extent that this creates a circuit split, I think this court is on good ground to say, we've seen where this is going just based on two district court cases, Majeed and Kepler.

[00:14:04] Speaker 01:
This cannot be the way that Congress intended for us to view this language.

[00:14:08] Speaker 02:
Council, can I ask you a quick procedural question?

[00:14:10] Speaker 02:
Your right to appeal in the plea agreement was to the decision of the district court's June 8th order.

[00:14:16] Speaker 02:
But that denied your motion to dismiss a motion to strike regarding the superseding indictment.

[00:14:20] Speaker 02:
Your client then pled to an information, though.

[00:14:23] Speaker 02:
So even if we agree with you, the order that you're challenging deals with a different charging document.

[00:14:28] Speaker 02:
So how does your client get any relief when he pled to something different?

[00:14:35] Speaker 01:
And this may not be answering.

[00:14:36] Speaker 01:
I think I know what you're getting at.

[00:14:37] Speaker 01:
But we're not challenging the surplusage issue, because we want to be logically consistent.

[00:14:43] Speaker 01:
If this court rules that fact-specific applies, then of course that had to be in the language.

[00:14:47] Speaker 01:
He had to admit that as part of the plea.

[00:14:49] Speaker 01:
But if this court rules that the categorical approach applies, then

[00:14:55] Speaker 01:
It's a remand for a dismissal because there's no statute of limitations regardless of the charging instrument.

[00:15:01] Speaker 02:
So it applies to the information, the count and the information equally to the superseding indictment.

[00:15:05] Speaker 01:
Yes, that's our argument.

[00:15:07] Speaker 01:
And if I could reserve the last 30 seconds.

[00:15:09] Speaker 01:
Thank you.

[00:15:24] Speaker 00:
Good morning, Your Honors.

[00:15:25] Speaker 00:
May it please the court.

[00:15:26] Speaker 00:
Meg Tomlinson on behalf of the United States.

[00:15:30] Speaker 00:
Tom So sexually abused his female relative, Jane Doe, when she was a minor.

[00:15:35] Speaker 00:
He approached her while she was sleeping, digitally penetrated her, and then followed her when she ran to the bathroom trying to escape from him.

[00:15:44] Speaker 00:
He committed this offense between 1998 and 2000, but like many minor victims of sexual abuse, Doe did not disclose the abuse right away and didn't report it to law enforcement until about two decades later.

[00:15:56] Speaker 00:
When she did, the case was investigated and so was charged with sexual abuse in Indian country, excuse me, in 2022.

[00:16:05] Speaker 00:
At the time Soe committed this offense, the statute of limitations for sex offenses against children lasted until the child turned 25.

[00:16:12] Speaker 00:
But in 2003, well before Jane Doe turned 25, Congress passed the Protect Act, which expanded the statute of limitations for sex offenses against children to the life of the child.

[00:16:24] Speaker 00:
The district court correctly applied a fact-specific approach to determine that so sexual abuse of Doe was covered by this expanded statute of limitations, and this court should affirm.

[00:16:35] Speaker 00:
So as my colleague noted, this case really turns on whether this court finds that Section 3283, which is the expanded statute of limitations in this case, whether its use of the phrase offense involving dictates application of the categorical approach.

[00:16:52] Speaker 00:
The Supreme Court in Nijawan and other cases has been clear that the phrase offense has multiple plain meanings.

[00:16:58] Speaker 00:
It can refer sort of in the generic sense to the elements of, you know, the specific elements of an offense, or it can refer more broadly to a defendant's conduct that makes him guilty for the offense with which he's charged.

[00:17:12] Speaker 00:
So the plain statutory language just of the expanded statute of limitations really doesn't answer the question as to whether a categorical approach applies in this case or the factual, fact-specific approach that the district court applied.

[00:17:25] Speaker 00:
is more appropriate.

[00:17:27] Speaker 00:
And so, to sort of back up a little bit, the language that is now codified at Section 3283 first appeared in the Victims of Child Abuse Act of 1990.

[00:17:38] Speaker 00:
Congress's stated purpose in passing that act was to improve the investigation and prosecution of child abuse offenses.

[00:17:45] Speaker 00:
So, a very broad purpose, a very broad intent to

[00:17:50] Speaker 00:
improve issues that Congress noted with the prosecution of cases involving the abuse of a child.

[00:17:57] Speaker 00:
And Congress made specific findings in that statute as to the types of issues that it was concerned about.

[00:18:03] Speaker 00:
the complexity of investigating and prosecuting these kinds of offenses.

[00:18:07] Speaker 00:
It noted issues in reporting these offenses that make the prosecution, especially the timely prosecution of these offenses, very difficult.

[00:18:16] Speaker 00:
And it stated that one of its goals was to improve the successful prosecution of these kinds of cases.

[00:18:24] Speaker 00:
I think it's broad intent in expanding prosecutions of these types of cases is very clearly reflected throughout the text of the statute that initially expanded this statute of limitations.

[00:18:37] Speaker 04:
Why isn't the categorical approach really a nice compromise between the ability of the government to pursue these types of crimes that Congress directed it to and the

[00:18:52] Speaker 04:
rights of a defendant to, you know, not have to defend himself against 30 or 40-year-old violations.

[00:19:04] Speaker 00:
I think that what Congress was doing here is saying that because of the difficulties in reporting child abuse cases, because a child

[00:19:12] Speaker 00:
at the time might not know that what was happening to them was wrong, might not have the ability to or the words to describe what happened to them until years down the road.

[00:19:22] Speaker 00:
The fact that a defendant would have to answer for that kind of conduct decades down the road really is not, Congress is absolutely within its right to make that determination.

[00:19:36] Speaker 00:
And I think that the text of the statute makes clear that that is the determination that Congress was making.

[00:19:42] Speaker 00:
And I think when you look at the context of when this expanded statute of limitations was passed, nowhere in that initial expansion is there any reference to offenses whose elements include the age of a child or specific forms of abuse of a child.

[00:19:59] Speaker 00:
And that makes sense, because at the time, there were only two federal sexual abuse statutes that contained elements relating to the victim's age.

[00:20:06] Speaker 00:
There was 2241C, which relates to

[00:20:10] Speaker 00:
the sexual abuse of a child under the age of 12.

[00:20:13] Speaker 00:
And there was 2243, which relates to the sexual abuse of a child between the ages of 12 and 15, where the offender is at least four years older.

[00:20:20] Speaker 03:
Well, what if you take into account what was just argued about the Assimilated Crimes Act, that in addition, there were 50 states' worth of child abuse laws that were incorporated by this.

[00:20:33] Speaker 03:
So it was very, I mean, they were reaching much more than just two.

[00:20:39] Speaker 00:
I think two things.

[00:20:40] Speaker 00:
First, Congress is, of course, not expanding statute of limitations for state crimes prosecuted in state court.

[00:20:45] Speaker 00:
It could only be doing that for these federal offenses.

[00:20:48] Speaker 00:
But even in the assimilated offense scenario, I think this court has been very clear that when there is a federal statute that could prosecute that same offense, federal prosecutors are stuck with that federal statute.

[00:21:02] Speaker 00:
So we can't go and assimilate a state sexual abuse statute if there's a federal sexual abuse statute that's on point.

[00:21:09] Speaker 00:
and that would cover that same conduct.

[00:21:11] Speaker 00:
So I really do think that we are stuck with looking at the federal offenses for the most part in this case.

[00:21:18] Speaker 00:
And also in the assimilated offense context, that's really a pretty niche scenario.

[00:21:23] Speaker 00:
Here in the 10th Circuit, we do have a lot of these cases because we have

[00:21:27] Speaker 00:
a lot of Indian country offenses, military bases, that kinds of thing.

[00:21:31] Speaker 00:
But when you're looking at the broad United States, the majority of the federal offenses that are being prosecuted are not assimilated state offenses.

[00:21:40] Speaker 00:
They're going to be federal offenses, in this case, that involve some sort of abuse of a child.

[00:21:47] Speaker 02:
Well, your argument about we're confined to only charge federal statutes when there are applicable federal statutes may be sound regarding sexual offenses, but I heard the argument made previously that talking really about physical child abuse offenses, which are primarily state-based, and as you just acknowledged, whether it's an Indian country or military bases, these are pretty commonly charged.

[00:22:12] Speaker 02:
Would you agree that kind of negates your point about how confining this may be if we were to say it's only federal law?

[00:22:21] Speaker 00:
I don't.

[00:22:22] Speaker 00:
If I'm understanding the question correctly, I do think it still stands that when we're talking about across the entire country of federal offenses that are being prosecuted, it's limited jurisdictions in which we're assimilating child abuse offenses from state law.

[00:22:40] Speaker 00:
It's absolutely the case that in

[00:22:43] Speaker 00:
districts that have expanded territories where those types of assimilated offenses apply.

[00:22:47] Speaker 00:
Certainly it might be more common that we would be assimilating state offenses and that perhaps we're not limited to just looking at the types of federal offenses that would apply to child abuse.

[00:22:59] Speaker 00:
But I don't know that

[00:23:00] Speaker 00:
that it would be appropriate to suggest that that sort of expanded state assimilated defense world is exactly what Congress was looking at here.

[00:23:11] Speaker 00:
And my colleague mentioned the Majid case.

[00:23:13] Speaker 00:
I think that's a good example of a federal offense that has the elements that were being prosecuted have nothing on their face to do with child abuse.

[00:23:21] Speaker 00:
But certainly the conduct that was involved in that offense, I think it's beyond dispute involved child abuse.

[00:23:27] Speaker 00:
That was a case where

[00:23:29] Speaker 00:
The defendants were forcing children to engage in unpaid labor.

[00:23:34] Speaker 00:
Part of the mechanism for forcing that labor involved withholding food from the children, denying them medical treatment, and I think hitting them with a paddle if they were to break the rules of the organization they were being forced to work for.

[00:23:46] Speaker 00:
I think we would all agree that that is an offense that involves child abuse.

[00:23:52] Speaker 00:
And I think the district court in that case was absolutely right to

[00:23:57] Speaker 00:
find that the expanded statute of limitations would apply to a case like that.

[00:24:01] Speaker 00:
And I actually think the district court's opinion in that case sort of brings me to my next point, which is sort of the practical and procedural concerns with applying a categorical versus a fact-specific approach.

[00:24:14] Speaker 00:
in this case.

[00:24:15] Speaker 00:
So the district court in this case and the other, the second and third circuits that have considered this question have found that the types of procedural or fairness considerations that lead courts to apply a categorical approach in other contexts don't apply here.

[00:24:33] Speaker 00:
The categorical approach is really often limited to post-conviction contexts, whether we're talking about a prior conviction that is leading to an enhanced sentence down the road.

[00:24:43] Speaker 02:
Isn't it exclusively limited to post-conviction at this point?

[00:24:46] Speaker 00:
It is very nearly exclusively limited to that context.

[00:24:52] Speaker 00:
In United States versus Davis, or I think it's Davis versus United States, the Supreme Court case,

[00:24:57] Speaker 00:
they did apply it in the context of evaluating the residual clause of 924C to find that it was unconstitutionally vague.

[00:25:05] Speaker 00:
I think that is a very unique scenario because the court was relying heavily on the fact that the language it was evaluating in 924C is identical to language in the Armed Criminals Act where the court had already held that the categorical approach applied.

[00:25:21] Speaker 00:
So putting aside that minor exception,

[00:25:23] Speaker 00:
Judge, you're absolutely right that it has been exclusively held to apply in the post-conviction context.

[00:25:29] Speaker 00:
And the categorical approach makes a lot more sense in that context.

[00:25:32] Speaker 00:
There is an inherent difficulty in asking one court to determine a contested fact from a prior proceeding when the court doesn't have a complete evidentiary record.

[00:25:43] Speaker 00:
Perhaps that fact wasn't determined in that prior proceeding, and so there are

[00:25:48] Speaker 00:
not only logistical concerns, but also perhaps the Sixth Amendment concern for having a judge determine something that hadn't been previously determined by a jury.

[00:25:56] Speaker 00:
That concern really doesn't exist here.

[00:25:59] Speaker 00:
A fact-specific approach in this context would really just ask,

[00:26:04] Speaker 00:
the fact finder, whether it's the district court or a jury, to determine whether the defendant is alleged or had been proven to have engaged in abusive conduct against a minor.

[00:26:15] Speaker 00:
And making that determination involves consideration really just of the exact same evidence that's going to be necessary to prove those charges at trial and

[00:26:25] Speaker 00:
would bear on any other issue that might be litigated in the case before the district court prior to trial.

[00:26:32] Speaker 00:
So there's really no practical difficulty or unfairness.

[00:26:35] Speaker 00:
And to get back to my point about Majeed, there the district court made the determination that this expanded statute of limitations applied just looking at the facts that were alleged in the indictment.

[00:26:46] Speaker 00:
So the applicability of this expanded statute of limitations is going to be clear on the face of the indictment or with very limited additional evidence that is evidence that is going to come out in the case otherwise.

[00:27:01] Speaker 00:
I think the fact that, as my colleague noted, the district court there agreed to

[00:27:07] Speaker 00:
require the United States to provide to defense the birth dates of the alleged victims also highlights the fact that this is really an easy determination that in many cases will turn on the otherwise pretty undisputed fact of how old the victim is alleged to be.

[00:27:26] Speaker 00:
The other thing I did want to respond to is sort of this example about the

[00:27:34] Speaker 00:
delayed prosecution of a person who fails to report child abuse in Indian country or something like that.

[00:27:43] Speaker 00:
First of all, I think it's interesting in this context to suggest that the fact of specific approach is one that's going to lead to absurd results when I think if there's something to commend the categorical approach, it's probably not that it avoids absurd results.

[00:27:58] Speaker 00:
I think that has borne out in other cases.

[00:28:03] Speaker 00:
So with that case, you know, that offense in particular, it's not clear to me at all that it wouldn't apply for the, it wouldn't qualify for the expanded statute of limitations even under a categorical approach.

[00:28:16] Speaker 00:
That is an offense, excuse me, where the elements do involve child abuse.

[00:28:22] Speaker 00:
And so even assuming there was a case where the facts were egregious enough that 30 years down the road,

[00:28:29] Speaker 00:
the United States decided to prosecute a misdemeanor with a maximum of six months in prison, assuming there's a factual scenario where that would be the case.

[00:28:41] Speaker 00:
I think a categorical approach could just as easily say that that offense does involve child abuse.

[00:28:48] Speaker 00:
And I think the more absurd result is looking at a case like this, where the indictment

[00:28:53] Speaker 00:
specifically alleges that the defendant committed sexual abuse, that the victim in the case was under the age of 18.

[00:29:00] Speaker 00:
Those just from the face of the indictment, it's clear that this is a case involving the sexual abuse of a child under the age of 18.

[00:29:10] Speaker 00:
And so unless this court has additional questions, I would see the remainder of my time.

[00:29:15] Speaker 04:
Thank you, counsel.

[00:29:16] Speaker 04:
Ms.

[00:29:16] Speaker 04:
Skinner, you have some rebuttal.

[00:29:27] Speaker 01:
If the language restricted the government to only charging cases where the defendant perpetrated the abuse, this wouldn't be an issue.

[00:29:36] Speaker 01:
But that's not what the language says.

[00:29:38] Speaker 01:
It doesn't say abusive conduct against.

[00:29:41] Speaker 04:
Could you add a minute, please?

[00:29:42] Speaker 04:
I was going to give you the last time.

[00:29:44] Speaker 01:
Thank you.

[00:29:45] Speaker 01:
It does not say abusive conduct against a minor.

[00:29:49] Speaker 01:
If that were true, child pornography production cases wouldn't be included.

[00:29:53] Speaker 01:
It says cases involving.

[00:29:56] Speaker 01:
child sexual abuse.

[00:29:57] Speaker 01:
And that's the problem.

[00:29:58] Speaker 01:
We don't have a definition of involving.

[00:30:01] Speaker 01:
We don't have a definition of child sexual abuse.

[00:30:04] Speaker 01:
So this really does open the floodgates for the government to save a shaky charging decision by relying on this expanded statute.

[00:30:13] Speaker 01:
And I think they've shown they're willing to do it in Kepler and Majeed.

[00:30:19] Speaker 01:
So we would ask the court to determine that the categorical approach is what's required by the plain language, the history, the context, and also fundamental fairness concerns under due process.

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

[00:30:31] Speaker 04:
Well done, right, within the time.

[00:30:33] Speaker 04:
Council, our excuse in the case submitted, the court will take a vote.