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Case number 18-3045, United States of America versus Charles Morgan Jr.

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at balance.

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Ms.

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Wright for the balance, Mr. Lenners for the appellee.

[00:00:09] Speaker 00:
Good morning, counsel.

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Ms.

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Wright, please proceed when you're ready.

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Thank you.

[00:00:15] Speaker 06:
Good morning.

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May it please the court, Lisa Wright representing Charles Morgan.

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I'd like to reserve two minutes for rebuttal.

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As to whether the government established that the borders ESPA drew on its actual coverage footprints were the product of reliable principles and methods as required by Rule 702.

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Let me try and explain exactly what we're challenging here and why.

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The expert opinion here placed Morgan definitively within the borders of the actual coverage footprints.

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The jury was told that the phone's quote, can't be outside of those footprints and talk into them.

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And also told the phone had to be in those areas and there's no other place in the world that they could have been.

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And we're challenging the actual drawing of those lines, the borders of the so-called blobs, particularly on pages 443 and 444.

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not the part of the process that involves technology and software that's used to gather data or crunch data or plot actual signal measurements, but the final step that SB uses when it takes those known signal measurements and uses them to make predictions about what signal exists in places where no measurement was taken.

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In other words, all the places between the blue lines where Agent Heran drove.

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And those predictions are scientifically educated guesses based on gladiators, expert scientists, but they believe the way radio waves can best be modeled in the real world.

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And in this respect, ESPA is not just a technological tool like a calculator or an Excel spreadsheet that's used in the course of forming an opinion.

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It actually is the expert opinion

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and requiring the government to satisfy rule 702 with respect to such a predictive model like this is the classic application of Daubert, a classic application.

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So to be specific on step-by-step, we're not challenging, for example, the plotting of the wedges on the map.

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That's the government's 28J letter involved a case where the defendant was saying this algorithm that plots these wedges is unreliable.

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And in that case, that's just a plotting that can be done manually with a protractor.

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The data is known.

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So there is no, it's just a depiction of known facts, I guess, visually.

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We're not challenging the gathering of the signal strength data with the driving around to get it.

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That's actual data.

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We're not challenging when agent went back to the office and uploaded you software to upload the data into the program.

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And we're not challenging

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the so-called bread trail maps.

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Those are the actual, again, the actual plotting of coordinates of data points he collected and then, you know, color coding them and that's real data and it's just a way to present it visually and anyone could plot that.

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So what we are challenging, again, is the predictive algorithm and that takes these scattered known, you know, bread trail dots and it uses these scientific assumptions correlations, which we don't know what they are,

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to transform those scattered data points into solid footprints that we are told the model creators believe represent the quote actual definitive.

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So can I ask you a question?

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Can I ask a question about this, which is the particular images that you're talking about on 443 and 444 is, are you challenging the use of that image at all?

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So it's no matter what that image can't be used or are you challenging it because of the way it was accounted for?

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Well, the caption calls it an actual coverage area.

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So I think we are challenging the whole thing, because that's what his testimony was, that it's actual borders.

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Right.

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But then that's the caption.

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And which caption are you talking about?

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Which page?

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Like 443N, I believe 444 both use the phrase actual coverage area.

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I see.

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Yeah.

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And the parenthetical, it says actual code.

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Right.

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So it, but that's words that describe what's on the image.

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So it's, it's not the picture itself.

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It's the way that the picture is the way the jury's led to understand what that picture describes.

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I mean, I, I felt like the fact that it's described that way in the caption and that's an expert opinion that, that, that he is

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has been has been you know cranked out for him to report to the jury and he uses those words actual coverage.

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I do think that's significant.

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Right now, I just want to make sure that I want to isolate what you're exactly talking about is the not the not the use of the picture like if, for example, if the picture was there and it had a different caption.

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then you wouldn't have the same challenge.

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What you're challenging is the fact that it says actual coverage area.

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But it's so definitive, right?

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That the borders are treated as firm actual borders.

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And we don't know exactly whether Gladiator even used them that way.

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So if everything had come in, all these images and maps had come in and the expert had said,

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This is the technology that we use in the ordinary course in doing our job to try to pinpoint these things.

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This is the machine we use.

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This is the image we got and our best judgment.

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This is where we look for the phone.

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but I can't be 100% certain that the phone is in here.

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It's theoretically possible it couldn't be.

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Would you have any objection to that?

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Yeah, I would because I guess I have been focusing on the hard edges, but the fact is that this predictive model is also filling in all the points to create the solid color.

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It is predicting where the color belongs and where there should be a little donut hole

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How prejudicial is this really when you've got the victim witness testifying as to both ends of the interstate commerce jurisdictional requirement and you have other corroboration, but she mentioned the sign when she came into DC and that corroborates it.

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Is this really all that prejudicial anyway?

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I think so, because I think there were a lot of issues with her credibility and go through them that, you know, this was the element that was really the only element that we could challenge.

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And there were a lot of reasons to doubt her and she had lied about how she came to be in the car.

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Her timeline really did not up so in other words, even if you you know you believe she ended up at Mr Morgan's house and there was sexual activity there.

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If there was really doubt about what she was doing and how what her backstory was as far as how she ended up there.

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And, you know, the phone went dead two hours before she.

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ended up at her, um, back at her home, the timeline of how she got from her grandmother's house and what, you know, she claimed to be on a bus that her grandmother said didn't even run that day.

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So it does appear that she wasn't being truthful about, you know, what, what was going on in the hours beforehand.

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And she, she did ultimately admit that she was going to meet this

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that she had met this one person earlier, Pouda, and then she was going to go meet Sean.

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Yeah, that changed a little bit, didn't it?

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And she claims that, oh, I never got with Sean because Mr. Morgan, he intercepted me at Randall Circle.

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And I just think the jury could have a doubt whether what really happened was that she had ended up in Maryland and came across Mr. Morgan there.

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That's a very good possibility.

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I think the government was sufficiently concerned about the credibility on the root.

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They bolstered it with improper hearsay, which we noted in the brief.

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And to me that just shows that they are a little nervous about her credibility on that point.

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And I you know it's really important I think that he she apparently she did not convey to Detective Mancuso it seems on the night of the offense at the time that she's telling the nurse that she was pulled physically pulled by the wrist into the car

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Detective Microsoft under the impression that there isn't a DC offense.

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So it seems like at that point on the first night, there seems to be this feeling that everything took place in Maryland.

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But that's pretty significant.

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And, you know, the timing of the claim it's after he turns the case over PG County, it's

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there seems to be an inference that maybe the significance of the border crossing came clear.

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Now the welcome to DC sign, you know, she does live only like probably a mile and a half from there.

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It's not like it's not a known thing that we all drive by all the time.

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Also, you know, she presumably drove by it on the way when he drove her home.

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So I guess those are the things I would say about the harm.

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That's on the transport, but I also think there's harm on the pornography count because, you know,

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Once her credibility is bolstered by this improper scientific evidence, which does have a big impact on the jury, I think you can't assume that the jury didn't rely in part on the claim.

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that she told him when she got in the car that she was under 14.

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There was a lot of reasons to doubt whether she said that.

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One thing is Mr. Morgan acted like he thought she was of age if he told her she was 14.

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I don't think he would have been giving her his business card, you know, which led the police directly to him asking her if she had a job.

[00:10:12] Speaker 01:
Can I, can I, I don't, I don't want to

[00:10:15] Speaker 01:
If my colleagues have further questions on the Daubert issue, then I want to ask you about the mens rea.

[00:10:21] Speaker 01:
I want to ask you a question about the mens rea, but I want to make sure that I'm not cutting something.

[00:10:26] Speaker 01:
Yeah, so on the mens rea issue.

[00:10:27] Speaker 03:
I think our timer has stopped.

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I'm not asking you to stop, but usually it starts giving us negative numbers.

[00:10:34] Speaker 01:
Oh, yeah.

[00:10:35] Speaker 01:
Yeah, I think the times that I've presided, it's just given us a zero, so we know, but that's okay.

[00:10:41] Speaker 01:
Yeah, thank you.

[00:10:42] Speaker 01:
So on the mens rea issue, I know you start with intent, but can I just start you off unknowingly for a second?

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Just to ask you a question unknowingly, which is if, and you may resist this, but just to accept the premise for these purposes, if we think the cases that say in the prostitution context, that knowingly doesn't travel down to the age, and I know the rationale of those cases is essentially

[00:11:08] Speaker 01:
even if you don't have knowingly affect the age, there's still knowledge of something criminal afoot because the subject matter is prostitution.

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But if we think those cases were correctly decided, then is there a way under the text of the statute to say, well, that knowingly does go to the age when the application is not prostitution and not every sexual activity, but it's a particular sexual activity for which the underlying offense is strict liability?

[00:11:38] Speaker 06:
You know, that is a tricky situation, but I think I would say yes, because that you can have, it means something different when there's a strict liability situation because of what the court said in Burwell, the court was very focused on the fact that there was an intent element already and that the knowingly was just an additional, so sentence enhancement intent, I mean, knowledge element.

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And when that premise isn't there, I mean, I know it is unusual to have a word mean two different things,

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But I think that there needs to be a mens rea.

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There's a very strong presumption the Supreme Court has really made that very, very clear in Figueroa and Reheath and a lot of cases that we assume they wanted it.

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Here at Congress use two words of mens rea.

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What's the best case for the proposition that the same word, and put aside intent for just now, but that the same word like knowingly

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means two different things depending on the application.

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Cause I know I recall it, I think it was an immigration statute.

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There's a case that adopted the least common denominator principle, which indicated that when the word means something in one context, it means something in all those contexts, even if there's some differential equities seemingly at stake.

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And I'm just wondering what would be the textual basis for saying that knowingly,

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means something different in a context in which the underlying offense is strict liability than when it's not.

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I can try to find something on that.

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But I guess I would say if they do have to mean the same thing, then that is the reason that the other courts are wrong, because they weren't thinking about this.

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If this issue were presented to them, they might realize, especially in light of, I think they might say otherwise.

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So we know that a similar issue wasn't presented in those cases.

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I think the only case that I saw that mentions that

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like a piggyback defense is like there's some dicta, I think in the Tyson Third Circuit case where they sort of, I think they suggest that it, they wouldn't have a problem with that.

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I can't remember exactly what they said, but it was definitely not a holding.

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And I mean, I think it's important that, well, I guess this goes to the under 16 was, is there any other question about the under 18?

[00:14:01] Speaker 06:
Yeah, I don't.

[00:14:03] Speaker 01:
I have a question about the under 16, but I don't, I don't have anything.

[00:14:05] Speaker 01:
I'm through.

[00:14:06] Speaker 01:
Yeah.

[00:14:07] Speaker 02:
Yeah, I just, you know, I think the under 16 is a very strong argument because- Before we go to that, can I just ask, I actually find your knowing argument pretty plausible as an original matter, but what do I do with the fact that

[00:14:32] Speaker 02:
We have a lot of court of appeals decisions.

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Many of them are after Flores Figueroa.

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And we have part of our reasoning, not a major part of our reasoning, but part of our reasoning in Burwell was that this, the knowing element of this statute doesn't attach to the age requirement.

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Is this issue still open to us?

[00:15:04] Speaker 06:
I mean, I think it is because I think Burwell specifically mentioned prostitution also.

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And they were, Burwell was sort of comparing this person to like a drug dealer who utilizes a juvenile.

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And I mean, that's just not the situation.

[00:15:21] Speaker 02:
Right, suppose I think

[00:15:24] Speaker 02:
On Judge Srinivasan's question, suppose I think that the flexibility to distinguish between strict liability statutory rape crimes and

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menthraya prostitution crimes is potentially available on the intent element, but not available on the knowing element.

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Knowing is just either you have to know the age or you don't.

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If I think that, I guess I somewhat reluctantly read Burwell as

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I strongly suggestive against you.

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But it's not a holding.

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So I think the issue is technically open.

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And I think I tried to go through and address mostly arguments of the other circuits.

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I may not have been, I do think pretty much everything they say is wrong.

[00:16:30] Speaker 02:
Just one more question on knowing before we move on, which is what about ratification?

[00:16:38] Speaker 02:
We have a whole series of court of appeals decisions

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over the same course of time where we have a whole series of statutory amendments to 2423A.

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Don't we at some point have to conclude that Congress is okay with the Burwell view of knowing?

[00:17:06] Speaker 06:
Well, maybe if there was another area of statutory law, but I have to say your eyes will just go cross-eyed with all these different sex cases that all are saying the same thing in different ways.

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And I don't think Congress is paying any attention to this, I guess is what I would say.

[00:17:26] Speaker 02:
No, but I mean,

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At least according to reading law, the justification for the ratification canon is not that members of Congress are thinking about this, it's that the bar would come to view this question as settled.

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There is a lot of authority and let's stipulate that it's not hugely persuasive, but there's still a lot of it.

[00:17:56] Speaker 06:
But what about Rahef?

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I mean, Rahef was,

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much more extreme example than this, where it was uniform that, and the Supreme Court didn't hesitate to say, well, we're actually reading the words and the words say this.

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I know that, I think, you know, Judge Yuval for what it's worth, I mean, she, I think,

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thought the law was messed up, but she said, I don't see a way around Burwell.

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And I think that there was a way around Burwell, certainly as to the under 16 element.

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But I don't see a reason why this court can't read knowingly as it believes is appropriate.

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despite the fact that the court said by the by and Burwell in prostitution cases.

[00:18:47] Speaker 06:
Here's an example of how this works and just maybe didn't just didn't notice that there is this other circumstance and wouldn't say that if they had.

[00:18:59] Speaker 02:
So on intent.

[00:19:01] Speaker 02:
Yes.

[00:19:02] Speaker 02:
Isn't the more before we come to

[00:19:07] Speaker 02:
which back or whether there is or is not a strong mens rea presumption.

[00:19:13] Speaker 02:
We start with text.

[00:19:16] Speaker 02:
It is the better reading of text.

[00:19:21] Speaker 02:
It's intent to engage in an act chargeable as a crime.

[00:19:28] Speaker 02:
And in that particular formulation,

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The direct object is not the crime, it's the act.

[00:19:40] Speaker 02:
So why shouldn't we read that provision to say that the intent required under the federal statute is to engage in the actus reus of the predicate state crime.

[00:19:59] Speaker 02:
So for statutory rape, it is the intent, the actus reus of that crime is the sex, it's the intent to engage in the sex.

[00:20:11] Speaker 06:
I guess I would say that if your intent is to engage in that sex with an older person, then- Which brings us to the need to import mens rea because it's otherwise innocent conduct.

[00:20:26] Speaker 06:
Right.

[00:20:27] Speaker 06:
I mean, I do think that the word intent can travel down the clause just as it can and unknowingly.

[00:20:34] Speaker 06:
And it's, you know, it's the sexual activity for which you can be charged and you can't be charged if the activity is with a 17 or 16 year old.

[00:20:47] Speaker 06:
But I guess that's the argument.

[00:20:48] Speaker 06:
And that's the logic that Murphy used.

[00:20:53] Speaker 06:
where the issue was doing things for the purpose of violating a statute that required you to be under 16, then you had to know you're 16.

[00:21:02] Speaker 06:
So I would say here, in order to intend the conduct, be chargeable if you're under 16.

[00:21:07] Speaker 06:
you have to know they're under 16.

[00:21:09] Speaker 06:
And, you know, I would note that Murphy and this case are, you know, they're like kind of sister provisions in the same 24, 23.

[00:21:16] Speaker 06:
And it doesn't really make sense to have a requirement that when you travel to meet the victim, you have to know that they're under 16.

[00:21:27] Speaker 06:
But when you make arrangements for them to cross the border and come to you, that,

[00:21:34] Speaker 06:
you don't have to know that doesn't make any sense at all.

[00:21:37] Speaker 06:
So I think Murphy is a very strong case for us.

[00:21:40] Speaker 06:
And we and I think Jones is also very important because the court there really broke it down and said that when when in that case, the language was with the intent to carry on unlawful activity.

[00:21:58] Speaker 06:
I don't see much difference between that and engage in

[00:22:03] Speaker 06:
that's unlawful, it seems the same.

[00:22:05] Speaker 06:
And the court said you have to act with the intent that each element be completed and broke it down and said, you know, you have to find out is the activity prohibited?

[00:22:15] Speaker 06:
And if so, the defendant has to specifically intend, in that case, it was to promote each feature, but here would be for the transpertee to engage in each feature of the activity that is necessary to make it unlawful.

[00:22:27] Speaker 06:
And the age 16 is exactly the feature that's necessary

[00:22:31] Speaker 06:
to make it unlawful.

[00:22:32] Speaker 06:
So we would say that has to be specifically intended.

[00:22:35] Speaker 06:
And I think Judge Huvel really wanted to give that jury instruction.

[00:22:39] Speaker 06:
And she said she thought it was a very, very aggressive use and she just couldn't find a way.

[00:22:45] Speaker 06:
And I think that she was confusing the treating Burwell as if it was addressing intent as opposed to knowing.

[00:22:55] Speaker 06:
And so she

[00:22:55] Speaker 01:
Let me make sure my colleagues don't have further questions on the intent prong of it.

[00:23:00] Speaker 01:
And you do have rebuttal time, which we'll give you.

[00:23:03] Speaker 01:
Okay.

[00:23:05] Speaker 06:
Thank you.

[00:23:06] Speaker 01:
Thank you, Ms.

[00:23:07] Speaker 01:
Wright.

[00:23:07] Speaker 01:
Let's hear from the government, Mr. Lenners.

[00:23:10] Speaker 04:
Thank you.

[00:23:11] Speaker 04:
Excuse me.

[00:23:11] Speaker 04:
Thank you, your honor.

[00:23:13] Speaker 04:
Good morning and may it please the court, Dan Lenners for the United States.

[00:23:17] Speaker 04:
I'll pick up where defense counsel left off.

[00:23:21] Speaker 04:
The court has pointed out many of the

[00:23:24] Speaker 04:
problems with the defense's reading of 2423A.

[00:23:29] Speaker 04:
But one thing that no one has yet touched on is the context in which this statute was enacted.

[00:23:35] Speaker 04:
It is to protect minors from sect crimes.

[00:23:40] Speaker 04:
And historically, in this area of law, strict liability has been recognized and approved.

[00:23:48] Speaker 01:
So can I just make sure on strict liability, then, let me just make sure that I

[00:23:53] Speaker 01:
know that the government's position covers certain circumstances.

[00:23:57] Speaker 01:
So because this is a statute that prohibits the transportation to begin with, and it even prohibits attempts under subsection E. And let's just put that to one side for the moment, actually.

[00:24:09] Speaker 01:
Let's just talk about the transportation part.

[00:24:11] Speaker 01:
Then I take it that if the defendant goes and picks up somebody whom he thinks is of age under state law,

[00:24:23] Speaker 01:
and goes over the border.

[00:24:26] Speaker 01:
And then right when he gets over the border, he asks for an ID.

[00:24:32] Speaker 01:
And she gives it to him.

[00:24:35] Speaker 01:
And he realizes she's underage.

[00:24:37] Speaker 01:
And he says, oh, this is not what I want to be doing.

[00:24:40] Speaker 01:
I'm going to drive you home.

[00:24:42] Speaker 01:
And he takes her back.

[00:24:43] Speaker 01:
The offense is completed, and he's guilty for a 10-year minimum.

[00:24:50] Speaker 04:
I think that's right, your honor.

[00:24:52] Speaker 01:
Okay, but I don't know how you wouldn't say that.

[00:24:54] Speaker 01:
I think that has to be your construction.

[00:24:56] Speaker 01:
I just wanted to make sure there wasn't an interpretation that I was missing.

[00:24:59] Speaker 04:
No, I think that's right, your honor.

[00:25:00] Speaker 04:
And I think that the answer is that That's a possible consequence of Congress incorporating strict liability and an area of law where it's common

[00:25:11] Speaker 04:
and they can rely on prosecution.

[00:25:15] Speaker 01:
That might well be right.

[00:25:16] Speaker 01:
And can I just follow up on one more hypothetical, and just to make sure that I'm understanding the full scope of the government's argument.

[00:25:21] Speaker 01:
So then once you bring in the attempt part of the statute, because subsection E deals with attempt, then even if the defendant goes over the border, meets the person with an intent to bring them back, and then on seeing them over the border, realizes, wait a minute,

[00:25:42] Speaker 01:
This is not what I thought I was getting myself into because the text exchange we had before, she swore that she was 25.

[00:25:49] Speaker 01:
I'm now on site and I see no way she's 25.

[00:25:52] Speaker 01:
I don't want to have anything to do with this.

[00:25:56] Speaker 01:
And he leaves and goes back over the border.

[00:25:58] Speaker 01:
Would he have committed an attempt?

[00:26:05] Speaker 04:
I haven't thought through the implications of attempt.

[00:26:08] Speaker 04:
You need a substantial stab.

[00:26:09] Speaker 04:
that crossing the border would have to be a substantial step, and then you need to have the intent to complete the underlying offense.

[00:26:21] Speaker 04:
I suspect that's chargeable as attempt, but I haven't fully thought through the implications.

[00:26:26] Speaker 02:
But again, I think- Let me give you one more, which is a variation on this theme, which is two people begin an online courtship.

[00:26:40] Speaker 02:
and they represent to each other that they are of age.

[00:26:46] Speaker 02:
They decide that they would like to get together.

[00:26:49] Speaker 02:
And the man in upper Northwest orders a taxi cab for the woman in Chevy Chase to come to his place in DC.

[00:27:05] Speaker 02:
The woman gets in the cab, crosses state lines, and she's underage.

[00:27:11] Speaker 02:
On your theory, that would seem to be a completed offense for the 10-year minimum, even though the offense is completed before the defendant could inspect the victim, which is the core rationale for dispensing with mens rea for statutory rape.

[00:27:37] Speaker 04:
So again, Your Honor, I think that's right.

[00:27:40] Speaker 04:
I think I can concede that there are challenging hypotheticals that make it seem as though application of strict liability in this area is unfair.

[00:27:51] Speaker 04:
But my response to that is when you look at congressional intent and you recognize that they were enacting this legislation, that they criminalized the same conduct with no knowledge of age requirement in 2421A,

[00:28:07] Speaker 04:
and that they recognized that strict liability was common in the area of sex offenses against minors, that these troubling hypotheticals don't require this court to read into the intent provision a knowledge of age requirement that doesn't otherwise exist.

[00:28:28] Speaker 04:
There are challenging hypotheticals, but the Supreme Court has repeatedly made clear

[00:28:33] Speaker 04:
that in the area of sex offense against minors, the presumption of in favor of mens rea doesn't even apply because historically there was no, historically states did not apply mens rea to sex crimes against minors.

[00:28:47] Speaker 02:
It doesn't apply on the theory that for statutory rape, the defendant

[00:28:56] Speaker 02:
in the nature of the crime that the defendant can examine the victim before the offense is completed.

[00:29:02] Speaker 04:
And although there are hypothetical scenarios in which this statute may be violated, the typical scenario and the scenario involved in all of the cases, the person transports the victim in person and has the chance to inspect him or her in person.

[00:29:20] Speaker 01:
And so while there are hypotheticals that take this out, the core scenario- Well, I think the thing about at least a couple of the hypotheticals I asked is those are situations in which there is an inspection.

[00:29:33] Speaker 01:
And then the person decides upon inspection not to go through with it.

[00:29:36] Speaker 01:
And it still fits within the statute.

[00:29:39] Speaker 01:
Yes.

[00:29:41] Speaker 04:
But that would also be an attempted statutory rape.

[00:29:44] Speaker 01:
Right.

[00:29:44] Speaker 01:
But under Maryland laws, as I understand it, attempted statutory rape doesn't exist.

[00:29:49] Speaker 04:
That's true under Maryland law.

[00:29:50] Speaker 04:
That's not generally true as a legal matter, Your Honor.

[00:29:52] Speaker 04:
Lefebvre, section 11.3 talks about how a defendant may be convicted of attempted statutory rape, notwithstanding lack of knowledge that the intended victim was underage.

[00:30:04] Speaker 04:
The model penal code takes the same approach in section 5.01.

[00:30:08] Speaker 03:
And that would be applicable even without inspection.

[00:30:13] Speaker 04:
If you had a substantial step that

[00:30:18] Speaker 04:
presumably would be true.

[00:30:19] Speaker 04:
But the core scenario in which this, what that Congress was aimed at and surely contemplated in passing a statute was actual transportation.

[00:30:30] Speaker 01:
Can I just ask you, you mentioned on your list of reasons why your construction is right, that, and I'm not necessarily suggesting it's not, I just want to explore the contours of it at least.

[00:30:42] Speaker 01:
But one of the reasons you mentioned was the comparison to 2421A.

[00:30:46] Speaker 04:
Yes, Ron.

[00:30:47] Speaker 01:
And on 2421A, though, it also has the same word intent, at least, right?

[00:30:53] Speaker 01:
So would we be in a situation in which if Miss Wright's argument about the right way to construe intent in 2423 were accepted, then wouldn't that also apply in 2421?

[00:31:07] Speaker 01:
And so you wouldn't have a situation in which there would be disparate results as between 2421 and 2423.

[00:31:13] Speaker 01:
There would just be two results that you don't like.

[00:31:16] Speaker 01:
or maybe I'm missing.

[00:31:18] Speaker 04:
No, that's right, Your Honor.

[00:31:20] Speaker 04:
I was saying the comparison of the two, meaning with regard to the knowledge of under 18.

[00:31:24] Speaker 01:
The knowledge part, got it.

[00:31:25] Speaker 04:
Yep.

[00:31:26] Speaker 04:
And so if you start there, if you start with the analysis of did Congress intend in 2423A to have knowledge applied to the victim's age, and if you agree that it doesn't for the reasons we set forth in our brief, it would be extraordinarily odd to find that Congress

[00:31:46] Speaker 04:
meant to backdoor that requirement through the intent provision and also apply it in 2421A, where there is no stated knowledge of age requirement.

[00:31:58] Speaker 04:
It just seems like a perverse result here to find out when Congress was intending to protect minors from sex crimes.

[00:32:05] Speaker 04:
did not apply a knowledge of age requirement in 2423A, if you accept that protocol argument, that they somehow backdoored this requirement through the intent provision.

[00:32:18] Speaker 02:
Sorry, why is it unusual to think that if we're giving one reason why Congress might have the knowledge requirement

[00:32:35] Speaker 02:
be read to do less rather than more is precisely because there is the second mens rea element, which can at least plausibly be read to pick up this unusual case where the predicate offense is a strict liability offense.

[00:33:01] Speaker 02:
I mean, it's a little odd for you to be invoking all of the presumptions for strict liability crimes in a statute that has not one mens rea requirement, but two of them.

[00:33:17] Speaker 04:
So I think it would be odd to conclude that Congress thought the intent provision was doing the work when

[00:33:27] Speaker 04:
for all of the reasons why it did not intend knowingly to apply to age 18.

[00:33:32] Speaker 04:
It would make it harder for the government to prove these offenses and to protect minors from sex crimes.

[00:33:41] Speaker 04:
As this court found in Chin, which wasn't even a sex case, they found it implausible that Congress would have placed on the prosecution the often impossible burden of proving beyond a reasonable doubt that a defendant knew the youth he enticed was under 18.

[00:33:57] Speaker 04:
enticing a youth to commit a drug crime, here it seems even more implausible when there is an express knowingly requirement in the statute that if you agree that that knowingly requirement does not apply to age 18, it's even more implausible that Congress would backdoor without using the word knowledge that requirement through the intent provision, especially given the legislative history indicating that congressmen to import

[00:34:22] Speaker 04:
state and local community standards.

[00:34:25] Speaker 04:
It's not just strict liability crimes where if you agree with the defense's argument that it would raise the mens rea required under state law, it's also the many state laws where recklessness suffices to establish, for example, a defendant's mental state with regard to whether his victim is too intoxicated to consent.

[00:34:47] Speaker 04:
For the defense's argument that those laws would also

[00:34:50] Speaker 04:
the defendant would be required to know that the victim was incapable of consent, not just recklessness.

[00:34:57] Speaker 04:
And so if Congress intended to incorporate these state and local standards, it's not just strict liability crimes that would have the bar raised for prosecutions under 2423.

[00:35:08] Speaker 01:
OK.

[00:35:10] Speaker 01:
Let me make sure my colleagues don't have additional questions for you, Mr. Lenners.

[00:35:14] Speaker 01:
Nothing further.

[00:35:17] Speaker 01:
All right.

[00:35:18] Speaker 01:
Thank you, Mr. Lenners.

[00:35:19] Speaker 01:
Ms.

[00:35:20] Speaker 01:
Wright, we'll give you your two minutes of rebuttal.

[00:35:22] Speaker 06:
Okay.

[00:35:24] Speaker 06:
I guess I would say on the whole backdooring issue that it's a different knowledge of age.

[00:35:30] Speaker 06:
It's different.

[00:35:32] Speaker 06:
it's a different age and it's serving different purpose.

[00:35:36] Speaker 06:
And I think the government's theory was that the knowledge is almost like just a sentence enhancement and it's not reaching into like, there's nothing unusual about saying that when you, that defendants are presumed to know the facts, not the law, but the facts underlying that makes their crime criminal, their conduct criminal.

[00:35:56] Speaker 06:
So I think that's a different, and as far as importing the state crime,

[00:36:01] Speaker 06:
you know, this is really an attempt.

[00:36:04] Speaker 06:
And so it really makes little sense that, it does make sense if it's going to be, have a higher intent element than the substantive crime because you're having to intend that it happened because all you're doing is taking a substantial step with a mental state.

[00:36:22] Speaker 06:
As Murphy says, it's a crime of intent, not a crime of action.

[00:36:27] Speaker 06:
And therefore it's not surprising that there is more.

[00:36:32] Speaker 06:
On the issue of hypotheticals and saying that these don't, it's mostly carrying people.

[00:36:39] Speaker 06:
I mean, that may have been true in the old days, but I think with the internet and, you know, Ubers and all that, I think there's a case that I cite Goodwin.

[00:36:49] Speaker 06:
I don't remember all the details off my head, but I do know that the person was in, the man was in Texas.

[00:36:54] Speaker 06:
And the woman, the young girl 17 I think she was, was in like Minnesota, and she, she basically had a lot of travel difficulties and turned around.

[00:37:04] Speaker 06:
But I mean she was coming she was on a bus to Texas and she was very close to crossing the border.

[00:37:10] Speaker 06:
And that happens.

[00:37:13] Speaker 06:
So these are real hypotheticals and he'd never met her.

[00:37:17] Speaker 06:
You know, she told him how old she was, but I think in that case, she had actually been honest about how old she was.

[00:37:23] Speaker 06:
So he's not, but you can easily see it happening where he did not.

[00:37:27] Speaker 06:
I guess my time is up.

[00:37:29] Speaker 06:
I would ask for all four counts to be reversed for a new trial.

[00:37:34] Speaker 00:
Thank you, counsel.

[00:37:35] Speaker 01:
Thank you to both counsel.

[00:37:36] Speaker 01:
We'll take this case under submission.