[00:00:02] Speaker 00:
December 12-3084, United States of America versus Peter Sikorski, also known as Petro Sikorski, appellant.

[00:00:10] Speaker 00:
Mr. Jeffress for the appellant, Mr. Ewing for the appellant.

[00:00:19] Speaker 05:
Good morning, Your Honor.

[00:00:20] Speaker 05:
May it please the Court, John Jeffress on behalf of the appellant, Mr. Sikorski.

[00:00:25] Speaker 05:
The district court's sentence in this case involved two significant guideline errors, as well as a clearly erroneous factual finding.

[00:00:32] Speaker 05:
Mr. Zagorski's sentence should therefore be vacated and the case remanded for re-sentencing.

[00:00:39] Speaker 05:
This case is about the sentencing guidelines and how the government, which is the architect of the sting operation here, chooses to present the underlying facts to defendants such as Mr. Zagorski.

[00:00:51] Speaker 05:
The way the government presented this sting is so as to lower the moral barriers to entry for defendants such as Mr. Zukorski, which in turn lowers the necessary degree of culpability.

[00:01:04] Speaker 05:
Specifically, the way Detective Palchek sells this sting is that he has been involved in a sexual relationship with the fictitious minor for a very long time.

[00:01:14] Speaker 05:
and that engaging in a webcam show, which is Detective Palachek's idea, is something they both affirmatively want to do and, in fact, had attempted to do very recently with a different third party.

[00:01:28] Speaker 03:
You seem to be framing it in terms of the requisite intent for the defendant, but isn't the real

[00:01:38] Speaker 03:
effect of what you're saying on the application of those magic verbs in sight, promote, et cetera, et cetera.

[00:01:49] Speaker 03:
And if something seems to be looming up, let's say this encounter, and all the energy for it seems to have been coming from the government side, not all, but most of the energy,

[00:02:07] Speaker 03:
then that draws in question whether there's been inciting, et cetera, by the defendant, right?

[00:02:14] Speaker 05:
Yes.

[00:02:15] Speaker 05:
I mean, these are verbs of causation, I think.

[00:02:17] Speaker 05:
And so you sort of look at which side of the equation is the impetus for the conduct that the guideline seeks to penalize.

[00:02:26] Speaker 03:
I mean, there's no law of life that says there can't be impetus from two sides.

[00:02:31] Speaker 05:
No, and here it is, I think we all recognize it's certainly Detective Palachek's idea.

[00:02:36] Speaker 05:
But we wouldn't rest alone on the fact that it's his idea.

[00:02:39] Speaker 05:
We'd rest also on how he presents this.

[00:02:44] Speaker 05:
I think these guideline provisions, the central blameworthy choice that these guideline provisions seek to penalize more greatly

[00:02:53] Speaker 05:
is whether you are willing to entice a minor to do these things, whether you're willing to speak to a minor in a way that... Can I ask why the focus on entice?

[00:03:04] Speaker 04:
Because I get that the district court used that word in its oral rendition, sort of in a summary of what the district court was doing.

[00:03:12] Speaker 04:
But in explaining its reasons, the district court referred back to the government's memorandum and the probation office's response to your objections?

[00:03:22] Speaker 04:
And those, at least the government's memorandum specifically focuses on the blanket word under the initial provision, which is cause.

[00:03:29] Speaker 04:
Right.

[00:03:29] Speaker 04:
So, I mean cause is not as good for you.

[00:03:32] Speaker 05:
Cause is not as good.

[00:03:33] Speaker 04:
Right.

[00:03:33] Speaker 04:
But it seems to me that that's the word that's an issue because the district court did rely on the government's memorandum and the government's memorandum specifically identifies cause and in fact has an ellipsis about with respect to the rest of the provision.

[00:03:45] Speaker 05:
Yeah, well, I think the government rightfully has not, you know, relied on that here, because I think the theory of causation is still too attenuated to really make this point.

[00:03:56] Speaker 04:
Why?

[00:03:56] Speaker 04:
Why is it attenuated?

[00:03:57] Speaker 05:
Because, I mean, basically, their theory has to be, okay, he indirectly, I mean, first of all, the way Detective Palachek presents this, again, is to prevent Mr. Zuborsky from having to struggle with this issue.

[00:04:08] Speaker 05:
And the way he presents it is, I've already caused this.

[00:04:11] Speaker 05:
This is going to happen.

[00:04:12] Speaker 05:
We've tried to make it happen.

[00:04:13] Speaker 05:
It'll happen with someone else.

[00:04:15] Speaker 05:
Let's prevent Mr. Zagorski from ever having to say, am I going to reach out to a minor and do something like that?

[00:04:21] Speaker 04:
No, but instead of paying with videos, if it's just a payment with cash,

[00:04:28] Speaker 04:
And if the adult intermediary says, you know, if you pay me a certain amount of money, then we'll have a webcam show to your liking.

[00:04:37] Speaker 05:
Well, who is that causation theory focused on?

[00:04:41] Speaker 05:
It's focused not on the minor.

[00:04:42] Speaker 05:
It's not saying, I'll then give these images to you.

[00:04:45] Speaker 04:
Sure it is.

[00:04:46] Speaker 04:
It is focused on the minor because the minor's not going to appear for the webcam unless the individual pays the money.

[00:04:50] Speaker 05:
Well, but the money's not going to them.

[00:04:53] Speaker 05:
I mean, why does that?

[00:04:54] Speaker 04:
I don't understand why that matters because it's still causing.

[00:04:58] Speaker 04:
It's still bringing about by causation because the individual says if you pay me X amount of money, I will have a video.

[00:05:06] Speaker 04:
I'll have the person appear for you.

[00:05:08] Speaker 04:
That's costs.

[00:05:09] Speaker 05:
Well, I mean, what your honor is describing is an indirect theory of causation, which would be through the adult intermediary.

[00:05:16] Speaker 04:
The adult intermediary isn't saying... I don't think it's an indirect theory.

[00:05:19] Speaker 04:
It's true that there's a step.

[00:05:21] Speaker 04:
But I'm not sure.

[00:05:22] Speaker 04:
The theory doesn't seem indirect.

[00:05:23] Speaker 04:
The theory seems directly direct to make direct squared.

[00:05:27] Speaker 04:
Because what you're saying is, if you give me x amount of dollars, this will happen.

[00:05:33] Speaker 04:
And I can make it happen.

[00:05:35] Speaker 04:
There's no playing in the joints on whether I can make it happen.

[00:05:37] Speaker 04:
It will happen.

[00:05:38] Speaker 04:
That's causation.

[00:05:39] Speaker 05:
It's been happening.

[00:05:41] Speaker 05:
It just tried to happen recently with someone else.

[00:05:43] Speaker 04:
Well, how about this?

[00:05:44] Speaker 04:
If you don't give it to me, it won't happen.

[00:05:46] Speaker 05:
Now he doesn't say that.

[00:05:47] Speaker 04:
But I mean, it's hard to imagine that that can't be read into.

[00:05:50] Speaker 05:
I mean, if he said that or if he said, you know, she's never done this before.

[00:05:54] Speaker 05:
But look, look, if you give me this, if you give me this, I'll make it happen.

[00:05:58] Speaker 04:
But I don't understand why it matters if she's done it before.

[00:06:01] Speaker 04:
I guess because of the point is I will make it happen for you if you give me X amount of money.

[00:06:06] Speaker 05:
Because he could certainly I could certainly just because it's happened before.

[00:06:09] Speaker 05:
I'm not resting solely on that.

[00:06:10] Speaker 05:
He could certainly re entice.

[00:06:11] Speaker 05:
But the question is, is whether he has that sort of intent or whether he takes a substantial step towards that merely agreeing to trade.

[00:06:17] Speaker 05:
I mean, you have to look at under the attempt analysis is obviously an attempt, even though

[00:06:21] Speaker 05:
that section doesn't say it applies to attempts, but even assuming that it does, to look at, does he have that kind of mindset to try and persuade that minor?

[00:06:31] Speaker 05:
And merely by agreeing to the UC's proposal, hey, look, if you give me this, that sounds, we'll give you the webcam show, that is attenuated, because that's not saying that he's causing it.

[00:06:41] Speaker 05:
They're already doing it.

[00:06:43] Speaker 05:
It's just in this specific instance, look, I'll make this available to you.

[00:06:45] Speaker 04:
I'm not even sure why it has to be that you have to cause, you just have to cause the thing to happen.

[00:06:51] Speaker 04:
And there's an adult intermediary who claims to have, and by all assumptions does have, because that's the nature of these dynamics, complete custody and control to tell a minor what to do.

[00:07:02] Speaker 04:
And the adult intermediary says, I can get this to happen for you if you pay me $100.

[00:07:07] Speaker 04:
Now, your theory seems to me to indicate that, well, as long as the adult intermediary goes on and says, I'll give a dollar of that $100 to the minor,

[00:07:16] Speaker 04:
then all of a sudden we've got an incredible difference.

[00:07:19] Speaker 04:
And that just, it's hard to imagine that that's what the framers of the guidelines had in mind.

[00:07:24] Speaker 05:
I mean, I think they're focused on the effect of the mire, and they're focused on the intent of the defendant.

[00:07:29] Speaker 05:
I mean, this is all fictitious, right?

[00:07:31] Speaker 05:
None of this really even exists.

[00:07:32] Speaker 05:
So clearly we're just focusing on the intent of the defendant.

[00:07:35] Speaker 05:
And, you know, I mean, you look at different things.

[00:07:37] Speaker 05:
You look at, you know, how often did he contact the police officer?

[00:07:40] Speaker 05:
In this case, the police officer contacted him 10 of the 11 times.

[00:07:44] Speaker 05:
You look at, you know, what did he say that could possibly be construed as persuasion or causation of the minor to participate in this conduct?

[00:07:50] Speaker 05:
And there's just nothing like that.

[00:07:52] Speaker 04:
Well, let's just strip all that away just for present purposes.

[00:07:55] Speaker 04:
I know the facts are complicated, and there's facts that support either side.

[00:07:58] Speaker 04:
But let's just suppose that the defendant goes into a, and I may be getting the terms wrong, a chat room.

[00:08:03] Speaker 04:
and says to an undercover agent, does anybody out there have a minor that they can get to appear on a webcam?

[00:08:11] Speaker 04:
I'll offer X amount of dollars for that to happen.

[00:08:15] Speaker 04:
Okay, and then it's an undercover officer and that officer says, I do, I can make it happen if you pay X amount.

[00:08:22] Speaker 04:
Would you agree that in that situation the guideline would be implicated?

[00:08:25] Speaker 05:
Well, yeah, that's seeking by notice or advertisement.

[00:08:27] Speaker 04:
So, I mean, the guideline already- Oh, no, okay, okay.

[00:08:30] Speaker 04:
The language is different, but just for causing.

[00:08:32] Speaker 05:
I mean, I think the fact that they put that in there, seeking by notice or advertisement, shows that they did expressly seek to manage that situation.

[00:08:40] Speaker 05:
I mean, what Haidt and other canons of statutory construction teach us is that you look at the word by the company that it keeps.

[00:08:46] Speaker 05:
And in this case, I do think what the sentencing guidelines were focusing on is someone who will take that morally blameworthy step of attempting to persuade a minor, as Haidt says, to move her by persuasion or influence to participate in this program.

[00:08:59] Speaker 04:
Haidt didn't have cause.

[00:09:00] Speaker 04:
I'm sorry.

[00:09:03] Speaker 03:
I'm not sure why you keep fighting on cause, which I think is one of your most vulnerable areas.

[00:09:08] Speaker 03:
Government, if I understand it correctly, to win on this has to win on 1b6.

[00:09:14] Speaker 03:
It doesn't have the word cause, and it does have the requirement of the computer.

[00:09:22] Speaker 03:
So isn't that the strongest domain for your argument?

[00:09:29] Speaker 05:
Certainly, that's why we think the two-level increase under B6 – yeah, B6.

[00:09:36] Speaker 03:
That's what you're fighting.

[00:09:37] Speaker 05:
That's the second issue.

[00:09:38] Speaker 03:
The first would be the cross-reference from – That's right, but even if you – unless I'm completely mistaken, you can lose on the cross-reference, and then if the thing to which it refers doesn't apply, then

[00:09:55] Speaker 03:
The height goes up, right?

[00:09:59] Speaker 05:
Well, first they do have this cross-reference, which, as Judge Rassen points out, has the, you know, you move to 2G 2.1.

[00:10:10] Speaker 05:
Yes.

[00:10:11] Speaker 05:
All right.

[00:10:11] Speaker 05:
And so that puts you in a different guideline altogether.

[00:10:14] Speaker 05:
And that does have the word cause.

[00:10:16] Speaker 04:
And that one has 10 levels, right?

[00:10:17] Speaker 04:
That's the one that bumps it up from 22 to 32.

[00:10:19] Speaker 04:
And then there's a separate argument as to a different sentencing.

[00:10:23] Speaker 05:
So we only reached the two-level one if the cross-reference was correct.

[00:10:26] Speaker 05:
But if the cross-reference was correct, then we do reach the second issue, which Your Honor rightly points out.

[00:10:30] Speaker 05:
I mean, there's just nothing here.

[00:10:32] Speaker 05:
I mean, in terms of the computer, in terms of the persuasion of the minor or the custodian.

[00:10:36] Speaker 05:
No.

[00:10:37] Speaker 05:
And on that issue, and I think on both of these issues, what happens on that November 8 phone call, which I think, with respect, the district court judge misconstrued, is very important.

[00:10:45] Speaker 05:
Because during that phone call, he's given the opportunity to show whether he's someone that would engage in this kind of conduct.

[00:10:51] Speaker 05:
I mean not only has he given the opportunity really, he's given every encouragement beforehand by the police officer and then really during the call by the other police officer who's portraying this minor, he's given encouragement by her to do that as well.

[00:11:06] Speaker 05:
And so what does he show during that phone call?

[00:11:08] Speaker 05:
He shows that he's just not willing to take this step.

[00:11:10] Speaker 05:
He's just not this kind of offender.

[00:11:11] Speaker 04:
But he definitely wants to take a step of offering out videos in exchange for a webcam.

[00:11:15] Speaker 04:
He says that repeatedly.

[00:11:16] Speaker 05:
He says that after, okay, the government, he says that after it's been, it's been propositioned to him by- Yeah, the seed was planted initially by the undercover agents, there's no doubt about that.

[00:11:26] Speaker 05:
But look at who he thinks he's dealing with in that situation.

[00:11:29] Speaker 05:
He thinks he's dealing with someone who's already got this thing ongoing, and it's just whether he's going to be included.

[00:11:33] Speaker 05:
And I think, you know, Judge Boasberg's opinion in the Nitschke case, we cited, is very,

[00:11:38] Speaker 05:
is very correct here.

[00:11:39] Speaker 05:
It's just whether you're going to join in on an activity that's already going on.

[00:11:43] Speaker 04:
No, but there's a big difference with Nicheke because in Nicheke, I think Judge Bozer was careful to explain in a separate section of the opinion that this is not a case in which the adult intermediary claims to have custody or control over the minor.

[00:11:56] Speaker 04:
And that makes that case quite different.

[00:11:58] Speaker 04:
This is very much a case in which you have an adult intermediary who's presumed to have custody and control over the mine.

[00:12:03] Speaker 05:
Well, the custody and control, I think, was just one small part of Niski.

[00:12:07] Speaker 05:
But even if it had been under this scenario, I think it still would have come out.

[00:12:09] Speaker 05:
Because what you're really looking at, ultimately, again, is the defendant's intent.

[00:12:13] Speaker 05:
Is he the kind of defendant who's going to take this step?

[00:12:16] Speaker 04:
And initially, you're dealing with the statute, am I right?

[00:12:18] Speaker 04:
Yeah, you're dealing with the statute.

[00:12:19] Speaker 04:
Yeah, and here, first of all, the guideline has the word cause, which the statute doesn't, and height makes a big difference and makes something of that.

[00:12:27] Speaker 04:
And secondly, here you have the separate provision that explains the guideline that says this section is to be, quote, construed broadly, close quote.

[00:12:33] Speaker 04:
So you've got kind of an anti-rule of lenity.

[00:12:35] Speaker 05:
That's true, but also in contrast to other sections in this area, you know, the guideline commentary to that section specifically says this can involve an adult intermediary, whereas this one doesn't.

[00:12:45] Speaker 05:
So, I mean, I think they're already in the assumption to turn a world where the defendant is directly communicating with a minor.

[00:12:51] Speaker 05:
And the government could construct this thing operation very differently.

[00:12:54] Speaker 05:
to see whether a defendant would take that morally blameworthy step.

[00:12:58] Speaker 05:
But he didn't do that here.

[00:12:59] Speaker 05:
And it's much as if he didn't do it.

[00:13:03] Speaker 05:
It's that despite being given the opportunity and, I would say, the encouragement to do it, he didn't do it.

[00:13:08] Speaker 05:
So he just shouldn't be punished.

[00:13:11] Speaker 05:
His guidelines shouldn't be calculated as if he's that kind of a defendant.

[00:13:15] Speaker 02:
both in brief and a few moments ago here, you said assuming that the guideline covers attempt.

[00:13:26] Speaker 02:
Which is something you would expect to see after arguing that it doesn't.

[00:13:31] Speaker 02:
And then saying, well, okay, assuming it does going on from there, but I don't see you arguing that it doesn't.

[00:13:35] Speaker 05:
Well, I mean, there is one case out there from another circuit that says that it does.

[00:13:41] Speaker 05:
We couldn't find much law on this.

[00:13:45] Speaker 05:
So that wasn't what we chose to rest our primary arguments on this.

[00:13:47] Speaker 05:
But the statute 2422B, which this guideline largely tracks,

[00:13:53] Speaker 05:
does say, anyone who engages in this conduct, entice, induce, persuade, coerce, or attempts to do so, she wouldn't be punished under this statute.

[00:14:02] Speaker 05:
The Skyline provision, which largely tracks that statute, doesn't say or attempts to do so.

[00:14:07] Speaker 05:
So I mean, it is a noticeable omission from this statute, but that's been our argument up to this point.

[00:14:14] Speaker 04:
Right.

[00:14:14] Speaker 04:
The way you read it, you assume that it's an attempt, and then you rest it on the other.

[00:14:17] Speaker 04:
That's correct.

[00:14:18] Speaker 04:
Is that right?

[00:14:19] Speaker 04:
That's correct.

[00:14:19] Speaker 04:
It's fair to say, OK.

[00:14:21] Speaker 05:
So, unless there are more questions, well, just jumping to the B6 issue, the second issue, if they do find that the cross-reference applies, sentencing is still required here because of the issue your honor pointed out, which is the two-level enhancement.

[00:14:36] Speaker 05:
There is just, the government, there is no record evidence that this call was for the purpose which the district court found, which was for Mr. Zagorski to entice the Bible.

[00:14:46] Speaker 04:
But what about the computer used to solicit?

[00:14:48] Speaker 05:
And that's the other issue.

[00:14:49] Speaker 05:
I mean, he's not even if the district court was relying on the phone call for that finding.

[00:14:54] Speaker 04:
Why do you say that?

[00:14:56] Speaker 05:
Well, I mean, in his oral ruling, the district court did not did not specify another.

[00:15:00] Speaker 05:
It didn't really break down the two different issues.

[00:15:03] Speaker 05:
Didn't break down the enhancement versus the two level.

[00:15:05] Speaker 05:
I'm sorry.

[00:15:06] Speaker 05:
Didn't break down the cross reference versus the two level enhancement.

[00:15:09] Speaker 05:
Didn't address them separately, sort of addressed them in one

[00:15:11] Speaker 04:
Right.

[00:15:12] Speaker 05:
And during that opinion relied heavily on the phone call, on the November 8 phone call.

[00:15:16] Speaker 04:
Well, he relied on the phone call, but he also said he was relying on the reasons given by the government and its memorandum and by the probation office, which, correct me if I'm wrong, but I don't remember those being focused on the phone call as opposed to the computer use.

[00:15:28] Speaker 05:
Well, even assuming that he didn't rely on the phone call, if I could just go to my other arguments, then I mean, looking at the flip side of what your honor just said, which is the word cause is used in the cross-reference, the word cause is not used.

[00:15:38] Speaker 04:
But solicitous.

[00:15:39] Speaker 05:
solicit in two, and it's unclear which subsection the district court was relying on.

[00:15:46] Speaker 05:
Probation relied on one thing, the government relied on another thing, so we really don't even know exactly how that ruling breaks out in terms of the specific subsections, but Your Honor is referring to

[00:15:54] Speaker 05:
the little to subsection, and that would be solicit with.

[00:15:58] Speaker 05:
And the word solicit just can't possibly apply to this situation, not under its dictionary term.

[00:16:03] Speaker 05:
I mean, this is all, the dynamics of this thing operation, all of these ideas are coming from the officer.

[00:16:11] Speaker 04:
I'm sorry, if the officer forgets, you're right, the officer introduces the idea, and then the officer sort of lets that go for the next few exchanges, and then the defendant raises it again and says, hey, don't forget, we've got this offer on the table to perform a webcam.

[00:16:28] Speaker 04:
I'd still like to give you some videos in exchange for a webcam.

[00:16:31] Speaker 04:
At that point, isn't the defendant soliciting?

[00:16:33] Speaker 05:
No, I don't think that, well, that's not quite how it happened here.

[00:16:36] Speaker 05:
I mean, I think the officer brought it up more often.

[00:16:39] Speaker 05:
But no, if someone solicits you and says, you know, hey, I'll give you tickets to a baseball game if you give me $5.

[00:16:44] Speaker 05:
And then the next day you say, hey, you want to give me tickets to that baseball game for $5?

[00:16:48] Speaker 05:
Here's $5.

[00:16:48] Speaker 05:
I don't think he's solicited.

[00:16:49] Speaker 05:
I think that's the word, solicit.

[00:16:52] Speaker 05:
And again, we're trying to look at capture of culpability.

[00:16:54] Speaker 05:
And so we look at what the defendants would do sort of left to their own devices or with just opportunities presented to them, not what's affirmatively proposed and pushed by the undercover officer.

[00:17:08] Speaker 05:
So I think that's why that provision doesn't apply.

[00:17:11] Speaker 02:
Thank you.

[00:17:18] Speaker 01:
Good morning.

[00:17:18] Speaker 01:
May it please the Court of James Ewing for the United States.

[00:17:21] Speaker 01:
This Court should not disturb the District Court's below-guidelines sentence because the District Court's application of the guidelines and its calculation of the guidelines was correct.

[00:17:29] Speaker 01:
Turning first to the cross-reference and the issue of whether the cross-reference applied, Judge Turner-Boston, we agree with the questioning that you were

[00:17:39] Speaker 01:
We're doing an appellant's counsel in the sense that this was an express quid pro quo of seeking to cause this webcam show by offering child pornography in return.

[00:17:52] Speaker 01:
And in addition, this is not a situation where this was some sort of indirect persuasion, inducement, or enticing object.

[00:18:02] Speaker 04:
You don't dispute the fundamental point being made by opposing counsel, which is that the idea came from the undercover agent.

[00:18:07] Speaker 01:
Well, okay, so the webcam itself was first mentioned by the undercover, but I do want to take on this concept that this was kind of all, you know, the government's idea.

[00:18:17] Speaker 01:
If you go back to the very first chat on October 24th of 2011, Appellant is the person that brings up child sex first.

[00:18:25] Speaker 01:
He said, you ever play with young?

[00:18:26] Speaker 01:
Appellant is the person who brings up child pornography first.

[00:18:29] Speaker 01:
You ever take any pics?

[00:18:31] Speaker 01:
Appellant is the person who initially asked, you know, hey, I know you probably won't send them to me, but I would ask otherwise for some of these pictures.

[00:18:41] Speaker 01:
So this is not a situation where, you know, this appellant is somehow having to be led by the nose down this path.

[00:18:47] Speaker 04:
But with respect to the webcam, which the entire argument for purposes of the cross-reference rests on,

[00:18:53] Speaker 04:
the idea that the defendant is offering something up, you can call it videos, you can call it a substitute for currency, but he's offering something up in exchange for getting a webcam presentation by a minor whom the person who he's dealing with controls.

[00:19:08] Speaker 01:
That's correct, Your Honor, because this is a live broadcast that's mentioned in the cross-reference.

[00:19:13] Speaker 01:
But even going back to the concept that this may have been the undercover agent's idea first, but then just look at what happened after that.

[00:19:22] Speaker 01:
You look at appendix 73 from appellate.

[00:19:25] Speaker 01:
So when are we going to do CAM?

[00:19:27] Speaker 01:
Appendix 77.

[00:19:28] Speaker 01:
Let's do CAM soon.

[00:19:30] Speaker 01:
Appendix 85.

[00:19:31] Speaker 01:
How about Cam?

[00:19:32] Speaker 01:
So he's being proactive about this.

[00:19:36] Speaker 01:
He is insistent about this.

[00:19:37] Speaker 01:
This is what he wants to happen.

[00:19:39] Speaker 01:
He is trying to make this occur.

[00:19:41] Speaker 01:
So that's the context leading up to, from October 24th to this phone call on November 8th in five chat sessions.

[00:19:49] Speaker 04:
And are you relying on the word cause in the way that

[00:19:54] Speaker 04:
Because your briefing sort of put a lot of the words together and did not run away from the word entice.

[00:20:02] Speaker 04:
Embrace the word entice, and you may have an argument that says they all apply.

[00:20:05] Speaker 04:
But it seemed significant to me that in your memorandum in the district court,

[00:20:10] Speaker 01:
in this in connection with sentencing you relied on the word cause and then it looks out the rest of the provision right we're relying on cause and and the commentary which talks about persuade induce entice we know for example from the Johnson case that the commentary is authoritative authoritative

[00:20:26] Speaker 01:
on essentially the same, as long as that doesn't violate a statute or the Constitution, that it's authoritative on the same level as the guidelines itself.

[00:20:33] Speaker 01:
And we do think that, you know, going back to the factual findings that the district court made about this phone call on November 8, he made two factual findings, neither of which are clearly erroneous.

[00:20:45] Speaker 01:
First, he said that the purpose of this phone call was to make the 12-year-old child, which, oh, by the way, a parent was speaking to directly on that phone call,

[00:20:55] Speaker 01:
to make that 12-year-old child comfortable with the idea of doing this webcam show and potentially having... I mean, that isn't the way Palchak presented it, right?

[00:21:06] Speaker 01:
I'm sorry, meaning what, Your Honor?

[00:21:08] Speaker 03:
Palchak didn't say...

[00:21:11] Speaker 03:
be good if you came into this, we had a conversation with her so as to ease her anxiety or something, nothing like that.

[00:21:19] Speaker 01:
Well, actually, Appellant said that himself at Appendix page 74.

[00:21:23] Speaker 01:
He specifically said, and this is before the phone call, if you want, I can talk to her on the phone first, and then we can do CAM.

[00:21:30] Speaker 01:
So Appellant himself.

[00:21:31] Speaker 03:
That sets up the sequence.

[00:21:32] Speaker 03:
It doesn't set up the purpose.

[00:21:35] Speaker 01:
Right, but the purpose is looking at the purpose.

[00:21:37] Speaker 03:
Didn't Palchak explicitly say this as an assurance that I'm not a scam?

[00:21:45] Speaker 01:
Right, well, Your Honor, our position is it could be both things.

[00:21:50] Speaker 03:
I understand it could be both.

[00:21:52] Speaker 03:
The question is, what is the evidence for its purpose?

[00:21:57] Speaker 03:
When you get to the effect, of course, it may be different.

[00:22:00] Speaker 03:
But when you get to the issue of purpose,

[00:22:03] Speaker 03:
I haven't seen anything you've said yet that suggests that that was a purpose of the defendant.

[00:22:10] Speaker 01:
Well, for example, going to the purpose of the defendant to make this child comfortable to do this webcam show.

[00:22:17] Speaker 01:
For example, before the call took place, the detective and the appellant are kind of gaming out the call and see how it's going to go.

[00:22:26] Speaker 01:
The appellant says, you know, is she going to ask me any sexual questions?

[00:22:30] Speaker 01:
and talking about, you know, what she is going to be willing to do on the webcam show, what she's going to wear, you know, telling Detective Palchak, you know, I prefer gowns or skirts, and talking about different things that she would do on this.

[00:22:45] Speaker 03:
Yeah, he's doing that in the context of Palchak having assured him that the girl will do what he says, he Palchak says.

[00:22:53] Speaker 01:
Well, the fact that... Right?

[00:22:54] Speaker 01:
Right.

[00:22:55] Speaker 01:
Your Honor, the fact that this

[00:22:58] Speaker 01:
12-year-old child who might have been willing in a general sense does not go to whether this appellant could form the intent to cause her to do this webcam show.

[00:23:08] Speaker 03:
It doesn't preclude it, certainly, but it sets up a context in which we have to look at the other statements.

[00:23:16] Speaker 03:
And incidentally, the

[00:23:20] Speaker 03:
opening brief of the defendant says that for purposes of these six, a phone does not count as a computer, and I didn't see any response by you to that.

[00:23:33] Speaker 01:
I believe there's case law that agrees with that, Your Honor.

[00:23:36] Speaker 01:
You didn't assert it at all.

[00:23:38] Speaker 01:
We're not relying.

[00:23:40] Speaker 01:
There's some case law that talks about smartphones and things of that nature.

[00:23:43] Speaker 01:
We're not relying on the phone call for the application of the B6.

[00:23:50] Speaker 01:
As to that, an appellant was correct.

[00:23:52] Speaker 01:
You don't get there until the cross-reference is properly applied because that's in too...

[00:23:58] Speaker 01:
So, kind of jumping to that, we would rely on the use, on the appellant's use of the computer to persuade, induce, entice the minor.

[00:24:07] Speaker 01:
If you look at the commentary to that particular provision, it expressly contemplates this contact with an adult intermediary.

[00:24:16] Speaker 01:
It says... No, no.

[00:24:17] Speaker 03:
I think it's now clear circuit law.

[00:24:22] Speaker 03:
the conversations with the adult intermediary count.

[00:24:26] Speaker 03:
And if he seeks to entice the child through the adult intermediary, it's covered.

[00:24:33] Speaker 03:
But you still have to have the enticement.

[00:24:38] Speaker 01:
And again, we're still talking about the two, the two B six as opposed to the cross reference, because I mean, I think in the cross reference, the phone call is is part and parcel.

[00:24:46] Speaker 04:
I agree with you entirely.

[00:24:47] Speaker 04:
You didn't use the word solicit just now.

[00:24:49] Speaker 04:
And when in response to Judge Williams on the B six one, you use persuade induce entice, but you didn't use solicit.

[00:24:58] Speaker 04:
Is that

[00:24:59] Speaker 04:
Well, was that an inadvertent emission?

[00:25:00] Speaker 01:
It was inadvertent here today.

[00:25:03] Speaker 01:
I mean, I think all four of those, we would argue that all four of those pertain to appellant's kind of conduct.

[00:25:11] Speaker 01:
Now we're talking about B6, we're kind of limiting it to the computer aspect.

[00:25:16] Speaker 01:
He is persuading, inducing, enticing, soliciting that minor not

[00:25:25] Speaker 01:
I mean, he's going through the adult intermediary, but we know from height that, and that's in the 2422 context, we know that it's possible to persuade, induce, entice a minor through an adult intermediary.

[00:25:36] Speaker 01:
That's what's going on here, really, kind of in two ways.

[00:25:39] Speaker 01:
One, again, limiting just to the computer for the B6 argument, he's directly, well,

[00:25:48] Speaker 01:
He's enticing, persuading, inducing, enticing the minor by talking about things like, what is she going to do on the webcam show?

[00:25:56] Speaker 01:
What sorts of things will she say to me?

[00:25:59] Speaker 03:
And then at one instance, in the... Those sound like questions as to what's on offer from you, Mr. Palchak.

[00:26:08] Speaker 01:
Well, it goes to kind of who is the target?

[00:26:11] Speaker 01:
Who is the target of this kind of persuasion?

[00:26:15] Speaker 03:
There's no doubt that

[00:26:17] Speaker 03:
The defendant is interested in what the minor does, but the question is, what is he doing to persuade, induce, incite, solicit, and so forth, the minor?

[00:26:33] Speaker 01:
Well, for example, at one point, he asked Detective Palachek, do you think she would dominate me if asked?

[00:26:40] Speaker 01:
So this is a concept of, what are we going to be able to get her to do?

[00:26:46] Speaker 03:
I mean, that sounds like you go up to a store and you ask, how does this work?

[00:26:54] Speaker 03:
There's a gizmo in a plastic case.

[00:26:58] Speaker 03:
What does it do?

[00:27:00] Speaker 03:
The person behind the counter says it does ABC.

[00:27:04] Speaker 03:
You aren't trying to persuade the machine to do A, B, and C.

[00:27:07] Speaker 01:
Well, I guess the concept of, for example, the word entice, to lure, and Haidt described, to lure, induce, tempt, incite, just because this 12-year-old child might become generally willing does not mean that she's willing to do these things with a pellet.

[00:27:28] Speaker 01:
He's trying to lure her to do certain actions, to wear certain things, to take certain actions.

[00:27:36] Speaker 03:
Palchak's certification of her readiness have that qualification?

[00:27:42] Speaker 03:
She does it all the time, but she might not do it with you.

[00:27:44] Speaker 03:
I didn't see that.

[00:27:46] Speaker 01:
I don't think it was, it wasn't as strong as she does it all the time, Your Honor.

[00:27:50] Speaker 01:
There was some discussion about her potentially doing it with another father who, in that webcam show, never even occurred.

[00:27:57] Speaker 01:
So there was some aspect of Detective Palchak saying, you know,

[00:28:03] Speaker 01:
She's generally willing, but that doesn't get us to whether this appellant can't, that doesn't mean that this appellant can't persuade, induce, entice this interesting lady.

[00:28:11] Speaker 03:
I agree that the two are consistent, but it requires factual data to add the second point.

[00:28:19] Speaker 03:
And it's tougher for the government where the record shows this apparent, some very substantial level of willingness pre-existing.

[00:28:33] Speaker 01:
I guess we believe that the record does support that.

[00:28:36] Speaker 01:
It's somewhat odd to be talking about a willing 12-year-old child when it comes to having sexual interaction with an adult.

[00:28:45] Speaker 01:
Because I mean, of course, the law says that a 12-year-old child can't consent to sex.

[00:28:50] Speaker 01:
But to the extent that we need that persuade-induce entice of the child.

[00:28:55] Speaker 03:
If you're relying on that, then the whole entice, persuade, induce

[00:29:00] Speaker 03:
verbiage is meaningless.

[00:29:02] Speaker 02:
The whole bending of the will idea goes off.

[00:29:05] Speaker 01:
Well, in a way, that kind of goes back to Judge Schreiner-Boston's questions about the word cause.

[00:29:09] Speaker 01:
I mean, if you're causing, now we're talking back with the cross-reference again, but if you're causing this 12-year-old child, whether you're doing by this express quid pro quo or otherwise, then that's enough for the application of the guidelines.

[00:29:24] Speaker 01:
We agree that the second issue is more narrow.

[00:29:29] Speaker 04:
Can I ask on the second issue, is the end game with respect to the second issue the webcam?

[00:29:36] Speaker 04:
Or is it some direct contact?

[00:29:41] Speaker 04:
face-to-face interaction.

[00:29:42] Speaker 01:
I think it could be either your honor because both are both are discussed in the in the kind of the context of those five web chats between October 24th and November 8th.

[00:29:50] Speaker 04:
What's interesting is that going back to your argument did your argument relate to all of it or did it relate specifically to the production of a webcam video?

[00:30:00] Speaker 01:
You talk about in the brief, Your Honor?

[00:30:02] Speaker 04:
In the brief or before the... Well, I believe that we focused on the webcam, but the concept that these two were talking about this potential, you know, in-person meeting... Which is, if you focused on the webcam, can I just ask one quick follow-up question, which is, if you focused on the webcam, one of the responses that you gave to Judge Williams was the notion that the defendant introduced this idea of being dominated.

[00:30:22] Speaker 01:
Right.

[00:30:22] Speaker 01:
Well, that would go to that.

[00:30:24] Speaker 04:
That can't apply to the webcam.

[00:30:25] Speaker 01:
Correct.

[00:30:25] Speaker 01:
So that would go to a potential in-person meeting, which would also pertain.

[00:30:31] Speaker 01:
I mean, this is a difference between the cross-reference specifically pertains to either the webcam show or production of some sort of other type of child pornography.

[00:30:40] Speaker 01:
The 2B6 can go to either.

[00:30:44] Speaker 01:
It can go to an in-person interaction, or it could go to production of child pornography.

[00:30:50] Speaker 04:
And how much did each of these arguments contribute to the guidelines?

[00:30:53] Speaker 04:
I mean, there's a separate argument as to whether the guideline sentence matters at all.

[00:30:56] Speaker 04:
I'm not talking about that.

[00:30:57] Speaker 04:
But in terms of the development of the application of the guidelines here, how much did the first argument contribute to the sentencing range, and how much did the second one?

[00:31:08] Speaker 01:
I'm sorry, I'm not really fully understanding your question.

[00:31:10] Speaker 01:
With respect to the cross reference.

[00:31:12] Speaker 01:
Okay, right.

[00:31:13] Speaker 01:
So the cross reference raised it by 10 levels.

[00:31:16] Speaker 01:
And once you're kind of over there, the second issue raised it by two levels.

[00:31:20] Speaker 01:
So it would have been, you know, kind of the cross reference is a big ticket item, if you will.

[00:31:25] Speaker 01:
I see I've got about a little bit of time left.

[00:31:28] Speaker 01:
I would just note that we did brief a harmlessness argument here.

[00:31:32] Speaker 01:
We believe that that's a valid argument.

[00:31:36] Speaker 01:
This was a 99-month sentence.

[00:31:38] Speaker 01:
The precincts report writer, the district court, and the government calculated the guidelines at 240 months.

[00:31:46] Speaker 01:
The district court said, I think the child pornography guidelines are flawed.

[00:31:50] Speaker 01:
I don't think they're rational.

[00:31:52] Speaker 01:
And if you look at how he was kind of

[00:31:56] Speaker 01:
coming up with this 99-month issue, he talks specifically about looking at similarly situated defendants that he had sentenced.

[00:32:04] Speaker 01:
So he's not basing, even assuming error in the guidelines, which we don't believe that there was, he's not using the guidelines for the purposes of his sentence.

[00:32:13] Speaker 03:
Haven't we had quite a few cases where the sentence is well below the guidelines minimum?

[00:32:19] Speaker 03:
But in order to make sure that the district judge uses the guidelines as the frame for departure.

[00:32:28] Speaker 03:
the calculation is correct, right?

[00:32:30] Speaker 01:
That's the hype case says that your honor hype is a little different because the well for a couple of reasons.

[00:32:37] Speaker 01:
First, the sentence that ended up coming out was was in the range that the appellant calculated here, even giving appellant the benefit of the doubt that his 151 month to 188 month sentence is correct.

[00:32:50] Speaker 01:
We're still 52 months below that.

[00:32:52] Speaker 01:
And what hype said what this court said in hype was a properly

[00:32:56] Speaker 01:
I properly calculated guideline range, likely would have helped appellant.

[00:33:01] Speaker 01:
That likely would have helped language just simply doesn't apply here.

[00:33:05] Speaker 01:
Because Judge Wilkins, basically, through the child pornography guidelines under the bus, he said he wasn't relying.

[00:33:12] Speaker 01:
I mean, he didn't say... That's a strong formulation of it.

[00:33:15] Speaker 01:
Well, he said they're not rational.

[00:33:17] Speaker 03:
He said that... If every time a district judge said that of the guidelines...

[00:33:25] Speaker 03:
These cases would never come up, right?

[00:33:28] Speaker 03:
All error would be harmless.

[00:33:30] Speaker 01:
I guess my only point in bringing that up, Your Honor, is that that likely would have helped language from Hite simply doesn't apply here based on Judge Wilkins' language.

[00:33:39] Speaker 01:
If there are no further questions, we would ask that the judgment of the district court be affirmed.

[00:33:45] Speaker 04:
Mr. Jefferson, we'll give you two minutes.

[00:33:47] Speaker 04:
I know we at least I occupied a lot of your time.

[00:33:50] Speaker 05:
Thank you.

[00:33:50] Speaker 05:
I just very briefly.

[00:33:52] Speaker 05:
There are a couple of things that the government said.

[00:33:54] Speaker 05:
They also get wrong in their brief.

[00:33:56] Speaker 05:
So I want to point out

[00:33:58] Speaker 05:
One is that the undercover officer mentioned that Mr. Zagorski was the first to bring up the issue of child sex.

[00:34:04] Speaker 05:
That's not really how this played out.

[00:34:06] Speaker 05:
On appendix page 59, when the undercover officer is introduced, he wants to get right to the point.

[00:34:11] Speaker 05:
And so when he introduces himself, he says he's into young.

[00:34:16] Speaker 05:
And then he says, dating a girl that has a 12-year-old, been dating her for a while, nothing too serious.

[00:34:21] Speaker 05:
So he's already strongly suggested this activity.

[00:34:24] Speaker 05:
It did not come out of left field from Mr. Zagorski.

[00:34:27] Speaker 05:
Second, is that the phone call was not first brought up on Appendix page 74 by Mr. Zygorski.

[00:34:33] Speaker 05:
As Judge Sherman already said, noted in my argument, it was brought up first by the detective on Appendix page 64.

[00:34:42] Speaker 05:
And I think the way that it was brought up shows why our interpretation of that phone call is correct, which is just that he says,

[00:34:49] Speaker 05:
He first brings up that phone call by saying, now, I will have to get a few of your videos before the cam thing.

[00:34:57] Speaker 05:
That is way risky for me.

[00:34:59] Speaker 05:
I will let you talk with her before on the phone.

[00:35:02] Speaker 05:
So, I mean, he's accompanying it or pairing it with a security concern, but then that is really the only

[00:35:09] Speaker 05:
understanding of that phone call that's played on between the two of them from then on and, you know, really the record is littered with security references to the officer not being a scam.

[00:35:19] Speaker 05:
So the point is to show that he's real, and that's the only thing that actually – that's the only thing that is actually accomplished on that phone call.

[00:35:26] Speaker 03:
If your assertion in your opening brief, which is not refuted by the government's brief,

[00:35:33] Speaker 03:
that the phone doesn't count for purposes of B6, if that's correct, or at least must be assumed as correct for purposes of this litigation, do you have to – well, does the phone call have any significance?

[00:35:51] Speaker 03:
I mean, I think the government is using it to color

[00:35:56] Speaker 03:
the things that go on over the computer.

[00:35:59] Speaker 05:
I'm not sure that's what the district court did.

[00:36:01] Speaker 05:
And I'm not sure that's what the government's doing.

[00:36:03] Speaker 05:
But the phone call, I mean, I think, first, a smartphone can be used as a computer if it's used on the internet and stuff like that.

[00:36:10] Speaker 05:
But as the government acknowledged, I don't think they're taking that position here, that a phone call... You break it down by the use as opposed to...

[00:36:17] Speaker 03:
what the person has in his hand.

[00:36:19] Speaker 05:
And I think it could be used as evidence to illuminate the chats, but largely the chats speak for themselves, and I think they're pretty clear, so nothing from the phone call really adds to that.

[00:36:28] Speaker 05:
I mean, Mr. Sragorski says very little of substance.

[00:36:31] Speaker 04:
But I thought the phone call was relevant not just to B-6, but also to the cross-reference, because the way the district court described it,

[00:36:38] Speaker 04:
The phone call had a purpose, and the purpose was to, I forget the colloquialism that's used.

[00:36:45] Speaker 04:
Comfort.

[00:36:45] Speaker 04:
Comfort, right.

[00:36:46] Speaker 05:
Right.

[00:36:47] Speaker 05:
But that's not the way it's characterized in any sense between the detective and Mr. Zagorski.

[00:36:53] Speaker 04:
Oh, I'm just talking about the potential relevance of the phone call goes not just to the second issue, but also goes to the first issue.

[00:36:59] Speaker 04:
You have a factual argument as to why the district court got wrong on what the phone call did.

[00:37:03] Speaker 02:
The district court actually said the entire purpose of the call.

[00:37:06] Speaker 02:
Right.

[00:37:07] Speaker 02:
It's to comfort the minor.

[00:37:11] Speaker 05:
In fact, the record evidence, I don't think it would be much more clear that it's for the purpose of comforting Mr. Zuckerberg.

[00:37:17] Speaker 02:
At the very least, it's not the entire purpose.

[00:37:19] Speaker 05:
Not the entire, but I don't think it's any purpose.

[00:37:22] Speaker 05:
And what goes on in the phone call, I think, only corroborates that.

[00:37:27] Speaker 04:
But do you agree that we'd have to say that the district court clearly erred in order to sustain your argument on that?

[00:37:32] Speaker 04:
Because that is a factual issue.

[00:37:34] Speaker 05:
If that's a factual issue, I mean, I was wondering for this whether maybe that's an application of guidelines to the facts, but the air in one sense of that, but even under the higher standard, which would be clearly erroneous, I think that it's a clearly erroneous finding.

[00:37:45] Speaker 05:
And just to be clear, I think I said this, but we're not saying that you cannot re-entice a minor who's already purportedly been enticed.

[00:37:54] Speaker 05:
That's not our position.

[00:37:55] Speaker 05:
We're just saying it didn't happen here, which is especially noticeable on that November 8th phone call where, of course, he's given the opportunity to have that kind of interaction with the fictitious minor and doesn't do so.

[00:38:08] Speaker 05:
And so, I mean, that's really what we're saying when we're looking at his intent.

[00:38:13] Speaker 05:
And then, Your Honor, just to point out on the B6B issue.

[00:38:16] Speaker 05:
On B6, let me just ask you a question.

[00:38:19] Speaker 02:
The latter part of B6, too, is using the computer, et cetera, to solicit participation with AMIA.

[00:38:28] Speaker 05:
Yeah.

[00:38:29] Speaker 02:
I think that's presumably that's speed.

[00:38:32] Speaker 02:
at least includes, maybe only includes, soliciting someone other than the minor or something.

[00:38:40] Speaker 05:
That's right.

[00:38:41] Speaker 02:
And that's what the Second Circuit is saying.

[00:38:44] Speaker 05:
That's what the Second Circuit is saying.

[00:38:46] Speaker 05:
But I just hear, you know, there was no reason to solicit Detective Palachek to do this because he said this is something he's already been doing for many years and does regularly.

[00:38:56] Speaker 05:
You know, in any event, Mr. Zagorski didn't solicit him because he didn't propose or urge him.

[00:39:01] Speaker 02:
Wait, wait, wait, wait.

[00:39:02] Speaker 02:
He sent, he distributed porn to him, right?

[00:39:06] Speaker 02:
He did do that.

[00:39:07] Speaker 02:
And isn't that by way of soliciting the participation with a minor in the custody of the UC?

[00:39:17] Speaker 05:
I mean, the way it's customarily proposed is to approach with a proposal and, you know, solicit.

[00:39:23] Speaker 05:
And that's not what Mr. Zagorski did.

[00:39:25] Speaker 05:
Mr. Zagorski was the one that was solicited by the UC.

[00:39:27] Speaker 05:
The UC, you know, again, this was his proposal.

[00:39:30] Speaker 05:
So he approached Mr. Zagorski with a proposal.

[00:39:32] Speaker 02:
Well, I mean, suppose that the sequence is, as I think you've suggested, okay, the UC introduces, let's say, the webcam, puts that on the table, right?

[00:39:41] Speaker 02:
But as the government says, the defendant keeps coming back to it.

[00:39:44] Speaker 02:
soliciting.

[00:39:47] Speaker 02:
I don't see why the first to put it on the table precludes a subsequent solicitation.

[00:39:52] Speaker 05:
If you look at the cases, I think what that's usually used for, solicit with, is someone who approaches someone who is purporting or is the parent or something like that and tries to urge them to do different things with their minor.

[00:40:03] Speaker 05:
That's really not what

[00:40:05] Speaker 05:
is happening here.

[00:40:06] Speaker 05:
The sequence just doesn't play out that way.

[00:40:09] Speaker 05:
Detective Palchik solicits him, and then yes, he does, you know, after that say, are you going to do this or are you going to do this?

[00:40:15] Speaker 05:
But I don't think that fits.

[00:40:16] Speaker 02:
So the second, the are you going to do it or are you going to do it is not solicited?

[00:40:21] Speaker 05:
Are you going to do it?

[00:40:22] Speaker 05:
No.

[00:40:22] Speaker 05:
Not after it's been brought up by Detective Palchik and, I mean, brought up multiple times.

[00:40:26] Speaker 02:
So there's only one solicitation that's possible?

[00:40:29] Speaker 05:
I mean, I suppose there could be a sufficient lapse of time or subjects and everything for there to be a resolicitation.

[00:40:35] Speaker 04:
Now, as I understand the facts here, Mr. Zygorski said at least one juncture that if we do the webcam, I'll then send you some more videos.

[00:40:46] Speaker 05:
At one point, yeah, that's it.

[00:40:48] Speaker 04:
So that's not dealing with, that's dealing with the future compensation, right?

[00:40:55] Speaker 04:
So in a way, that's its own act of solicitation.

[00:40:58] Speaker 05:
Well, I mean, you know, the sensing guidelines, they already have a specific

[00:41:02] Speaker 05:
five-point enhancement for trading it for a thing of value, right?

[00:41:06] Speaker 05:
Trading for the child for a thing of value.

[00:41:08] Speaker 05:
So he's already sort of been punished, and I think that's what the government's getting at.

[00:41:12] Speaker 05:
That could be the only real theory, is that he's trading this.

[00:41:14] Speaker 05:
He's offering consideration for it.

[00:41:16] Speaker 04:
But if he introduces that idea of trading it, would you not consider that to be solicitation just because there's another provision that deals with trading?

[00:41:23] Speaker 05:
If it had been his idea, if he brought it up and said, hey, how about you give me a webcam in exchange, I'll give you, then maybe that would be solicited.

[00:41:29] Speaker 04:
Right.

[00:41:30] Speaker 04:
And so then the only question is, does the fact that the undercover agent was the first one to introduce it mean that forever the defendant's insulated from it because the idea was introduced by somebody else?

[00:41:39] Speaker 05:
I mean, he's not really soliciting the officer to have sex with the minor.

[00:41:45] Speaker 05:
I mean, that's not really what's discussed in their proposal for the webcam.

[00:41:48] Speaker 05:
What's discussed is the minor lifting her skirt and other things, which I think the government is canning on how it comes very close to whether he was even soliciting sexual activity at all.

[00:41:56] Speaker 04:
The government has to... I'm sorry to belabor this, but there's some focus on the word solicit participation with a minor.

[00:42:05] Speaker 04:
And as I understand the way the webcam would work,

[00:42:09] Speaker 04:
It is a sexual...

[00:42:12] Speaker 04:
relationship between, or at least for that finite period, between the person who's on one end of the webcam and the person on the other end.

[00:42:19] Speaker 04:
It's just that they're not physically proximate, but there is an exchange going on, and isn't there at that moment during the webcam?

[00:42:26] Speaker 05:
You mean what the plan for the webcam was going to be?

[00:42:29] Speaker 04:
Well, just as a general matter, the way this would work is you have a webcam which is a live exchange.

[00:42:35] Speaker 05:
In both ways, right?

[00:42:36] Speaker 04:
Right.

[00:42:36] Speaker 04:
So it is participation with the minor as between the defendant and the minor.

[00:42:41] Speaker 05:
Yeah, although, I mean, I think what the other circuits have said is that has to be, as Judge Ginsburg pointed out, you have to be soliciting a third party.

[00:42:48] Speaker 02:
I think that soliciting sex with a minor, pardon me, by a minor, participation with a minor, the defendant must be soliciting someone other than the minor.

[00:43:03] Speaker 04:
I see.

[00:43:04] Speaker 04:
And I hear you that it would be the adult intermediary.

[00:43:06] Speaker 02:
That would be that.

[00:43:06] Speaker 02:
They were talking about the webcam, at least the idea of the webcam was that the minor and the UC would be on the camera.

[00:43:15] Speaker 05:
Well, they would be on the camera.

[00:43:16] Speaker 05:
But I mean, as the government pointed out, I mean, the really references that are in here is like, you know, could she left her skirt and stuff like that.

[00:43:21] Speaker 05:
And we looked at whether that qualified.

[00:43:23] Speaker 05:
I mean, that is a sexual lascivious, I think, demonstration, but it's not necessarily sex between

[00:43:28] Speaker 05:
the UC and the minor, which is what it would have to be for that small two, B6 to apply, B6B.

[00:43:36] Speaker 04:
Sexually explicit.

[00:43:38] Speaker 04:
That seems like sexually explicit material.

[00:43:41] Speaker 05:
It says sex with a minor, right?

[00:43:44] Speaker 04:
I bet the overarching information says it.

[00:43:47] Speaker 02:
Participation with a minor.

[00:43:50] Speaker 04:
In sexually explicit conduct.

[00:43:59] Speaker 05:
Yes.

[00:44:00] Speaker 05:
I mean, I think that the main thing we're resting on is that it's not solicitation by him.

[00:44:08] Speaker 05:
But two is solicit participation with the minor.

[00:44:11] Speaker 05:
So solicit participation by the UC with a minor.

[00:44:14] Speaker 05:
In sex.

[00:44:16] Speaker 05:
Right.

[00:44:16] Speaker 05:
So I mean, they'd have to be having it.

[00:44:17] Speaker 04:
In sexually explicit conduct.

[00:44:19] Speaker 04:
Right.

[00:44:20] Speaker 05:
I mean, here, I think what the government said, and what we agree with, is that most of the references are just seeing her do various things, not necessarily sexual.

[00:44:30] Speaker 05:
conduct between the UC and the minor.

[00:44:33] Speaker 05:
Really that's not talked about much at all in this.

[00:44:36] Speaker 05:
And then finally I just want to, your honor said the B6 could be related to a later possible sexual encounter, like a live sexual encounter.

[00:44:44] Speaker 05:
But actually, B6B specifically says if – I mean, B6 says if for the purpose of producing sexually explicit material or for the purpose of transmitting such material live, the offense involved these things.

[00:44:58] Speaker 05:
So I think that could not apply to a later sexual encounter.

[00:45:00] Speaker 05:
It would have to apply to what was going to go on in the webcam.

[00:45:02] Speaker 04:
Right.

[00:45:03] Speaker 04:
Unless that was going to be transmitted.

[00:45:05] Speaker 04:
Unless a life-sexual encounter, we're going to be transmitted.

[00:45:07] Speaker 05:
We're going to be transmitted at the much later date, with three of them there.

[00:45:11] Speaker 05:
OK.

[00:45:11] Speaker 05:
Thank you.

[00:45:12] Speaker 05:
Thank you very much.

[00:45:12] Speaker 04:
Thank you.

[00:45:13] Speaker 04:
In case it's submitted.