[00:00:00] Speaker 00:
Case number 22-3035 et al.

[00:00:04] Speaker 00:
United States of America versus Brittany Jones, also known as Brittany Elise Nancy Jones, about.

[00:00:10] Speaker 00:
Mr. Jones for balance, Brittany Jones.

[00:00:12] Speaker 00:
Ms.

[00:00:13] Speaker 00:
Millian for balance, Willis Lewis.

[00:00:15] Speaker 00:
Mr. Goodhand, Freddie Eppoli.

[00:00:18] Speaker 06:
Good morning, counsel.

[00:00:20] Speaker 06:
Mr. Jones, please proceed when you're ready.

[00:00:23] Speaker 06:
Thank you, Ernest.

[00:00:25] Speaker 05:
Good morning.

[00:00:26] Speaker 05:
May it please the court.

[00:00:28] Speaker 05:
I'm Anton Jones and I represent Brittany Jones, the appellate in this particular case.

[00:00:33] Speaker 05:
This case focused on several issues.

[00:00:35] Speaker 05:
One of the issues that we were more concerned about is the variance in the indictment.

[00:00:40] Speaker 05:
As the court is aware from reading pleadings, that in this case, there was a jury returned a verdict in which my client was found guilty of a conspiracy.

[00:00:57] Speaker 05:
Conspiracy and indictment alleged have taken place on April

[00:01:03] Speaker 05:
April the 19th, excuse me, April the 25th through May the 19th.

[00:01:12] Speaker 05:
The evidence in the case showed that Ms.

[00:01:14] Speaker 05:
Jones was

[00:01:16] Speaker 05:
Assuming arguing though she was involved in the conspiracy at all.

[00:01:19] Speaker 05:
Her involvement took place a shorter period of time.

[00:01:22] Speaker 05:
Her involvement only included April the 26th and April the 27th.

[00:01:27] Speaker 05:
In that particular time, our position is that there were multiple conspiracies here.

[00:01:33] Speaker 05:
What happened was Ms.

[00:01:35] Speaker 05:
Jones is alleged to have met the two victims in this particular case on April the 26th and

[00:01:43] Speaker 05:
ended her involvement with him on April 27, when she was physically threatened and forced or banished from the enterprise.

[00:01:56] Speaker 05:
At that particular time, there was uncertainty as to what was going to take place, although the overwhelming indication was that there was going to be

[00:02:07] Speaker 05:
some sort of sexual trafficking or maybe even strip parties but the two people involved or two victims involved were going to be involved in that.

[00:02:19] Speaker 05:
However,

[00:02:21] Speaker 05:
There was an incident in which Brittany Jones was instructed to transport the individuals to a location and nothing took place at that particular location.

[00:02:30] Speaker 05:
Because of that, Brittany Jones was banished from the organization.

[00:02:35] Speaker 05:
After that, what happened was that the individuals were transported to a hotel.

[00:02:43] Speaker 05:
And at the hotel, there were sexual acts that were performed for customers.

[00:02:49] Speaker 05:
Brittany Jones wasn't there.

[00:02:50] Speaker 05:
She wasn't involved.

[00:02:51] Speaker 05:
She had been banished from the group.

[00:02:54] Speaker 05:
All that evidence came out in a trial.

[00:02:57] Speaker 05:
Next what came out is after that first stint at the hotel, there was another stint at the hotel.

[00:03:02] Speaker 05:
And then, subsequent to that, the individuals left or escaped.

[00:03:08] Speaker 05:
And that was approximately May the 11th,

[00:03:13] Speaker 05:
Transplant.

[00:03:14] Speaker 05:
Now, our position is all the evidence came through at trial talking about what happened at the hotels, who was involved in it.

[00:03:24] Speaker 05:
And our position is that's a variance in the conspiracies here.

[00:03:31] Speaker 05:
There was one conspiracy in which Brittany Jones may allegedly been involved in, but a separate conspiracy in which she was banished outside of it.

[00:03:42] Speaker 05:
And that's what transpired here.

[00:03:44] Speaker 03:
The record shows that Ms.

[00:03:48] Speaker 03:
Jones had ZS and THY there as, I think she said, girls who wanted to work.

[00:04:00] Speaker 03:
And she's the one who, when the work at the one person's house didn't turn out, contacted Mr. Lewis about getting work for them.

[00:04:12] Speaker 03:
and then drove them to Mr. Lewis.

[00:04:18] Speaker 03:
And then actually, well, after that contact with Mr. Lewis, drove them to another location where they were supposed to have this commercial work performed.

[00:04:30] Speaker 03:
And it was only after that fell through

[00:04:34] Speaker 03:
that she separated from Mr. Lewis, but she actually was the one who took the girls to him, told him they wanted to do this type of work, and made an effort at that first opportunity.

[00:04:51] Speaker 05:
Yes.

[00:04:51] Speaker 03:
Am I reading the facts correctly?

[00:04:53] Speaker 05:
Yes.

[00:04:54] Speaker 05:
I would agree, but there's something to add to that.

[00:04:57] Speaker 05:
Yes, she did come in contact with him, met with Mr. Lewis, and they were supposed to do something that the residents involving with Mr. Lewis was at, and that didn't work out.

[00:05:08] Speaker 05:
Then there was a customer that was supposed to meet one of the young ladies at Greenbelt.

[00:05:15] Speaker 05:
They called

[00:05:18] Speaker 05:
Ms.

[00:05:18] Speaker 05:
Jones to take them there.

[00:05:21] Speaker 05:
She went there.

[00:05:22] Speaker 05:
She didn't like how the situation was.

[00:05:24] Speaker 05:
That didn't work out.

[00:05:26] Speaker 05:
They came back and she explained that to Mr. Lewis, who became upset.

[00:05:33] Speaker 05:
that it didn't work out and that Brittany Jones was one of the reasons.

[00:05:37] Speaker 03:
I understand that she was upset and then she's like, okay, goodbye.

[00:05:41] Speaker 03:
But even if we assume there were two stages, it's weird that she was the bridge that brought ZS and THY to Mr. Lewis, informed Mr. Lewis that they were looking for commercial sex work.

[00:05:59] Speaker 03:
and made a first run out to Greenbelt with them.

[00:06:06] Speaker 03:
She made a judgment call, brought them back to Mr. Lutz.

[00:06:12] Speaker 03:
So at a bare minimum, even if we assume we had two series of events, she was the bridge between the two, and she's the one who maybe performed the most significant act

[00:06:25] Speaker 03:
in instigating the sexual mistreatment of these girls by bringing them to Mr. Lewis and telling him what he could do with them.

[00:06:38] Speaker 05:
Well, it's unclear whether they were going to have commercial sexual acts at first when she brought in Mr. Lewis or they're going to be involved in

[00:06:44] Speaker 03:
She told him they were looking for work.

[00:06:46] Speaker 05:
Right, which also could involve striptease, because they were talking about stripping as well.

[00:06:54] Speaker 05:
So it was unclear exactly what.

[00:06:58] Speaker 05:
However, I must agree that going to Greenbelt, there was going to be some, at least there was thought of commercial sexual activity.

[00:07:06] Speaker 05:
However, there was no indication of all of them staying in a hotel, having people come to the hotel.

[00:07:12] Speaker 05:
All that happened.

[00:07:13] Speaker 05:
Next, that's a totally different enterprise where she was already, where she was banished from.

[00:07:18] Speaker 05:
And given that, that overlap had nothing to do with Britney Jones.

[00:07:23] Speaker 05:
And that's where the variances and the conspiracies, because it became a different operation, a different term.

[00:07:30] Speaker 05:
It's almost as if you and I were going to be involved as partners in the business.

[00:07:37] Speaker 05:
You bring the supplies to the business.

[00:07:39] Speaker 05:
You purchase, take care of the supplies.

[00:07:41] Speaker 05:
I'm the marketing person or something to speak.

[00:07:43] Speaker 05:
You don't like the way my marketing is going.

[00:07:46] Speaker 05:
You terminate the marketing.

[00:07:50] Speaker 05:
You get someone else.

[00:07:51] Speaker 05:
You do some other marketing.

[00:07:53] Speaker 05:
I don't get money.

[00:07:54] Speaker 05:
I'm not involved in your enterprise anymore.

[00:07:57] Speaker 05:
Just like Ms.

[00:07:57] Speaker 05:
Jones wasn't involved in the enterprise that Mrs. Lewis subsequently took.

[00:08:02] Speaker 01:
Mr. Jones, conspiracy law tends to be very broad.

[00:08:06] Speaker 01:
It's very encompassing of a lot of different time periods and events and people.

[00:08:12] Speaker 01:
It seems to me that you're asking us to make new law here that will make conspiracy harder to prove, that will

[00:08:20] Speaker 01:
It's just, this is not consistent with my understanding of how conspiracy law works.

[00:08:25] Speaker 01:
Cause you know, sometimes we see cases with, you know, drug conspiracies that lasted 20 years and some people come in and out of the conspiracy and some people were in it just for the first five years.

[00:08:34] Speaker 01:
It's still one conspiracy.

[00:08:35] Speaker 01:
I just don't see how your theory fits in with general conspiracy law.

[00:08:41] Speaker 05:
Well, she was forced out and it's almost a withdrawal.

[00:08:45] Speaker 05:
There's a withdrawal before that.

[00:08:46] Speaker 01:
They didn't argue withdrawal, but also withdrawal is a very high standard.

[00:08:49] Speaker 05:
No, I understand, but she was banished out of the conspiracy at that particular time.

[00:08:56] Speaker 05:
If there were a conspiracy.

[00:08:56] Speaker 01:
So you're asking us to make a ruling that in conspiracy law generally, if somebody is banished or forced out, they're not part of the conspiracy, even though

[00:09:07] Speaker 01:
were in it to begin with.

[00:09:09] Speaker 01:
I just don't understand what you're asking for here and what that would do to our law about conspiracy generally.

[00:09:14] Speaker 05:
Well, the facts here would, I mean, the facts here would indicate that there's no dispute she was banished.

[00:09:21] Speaker 05:
She was put out.

[00:09:21] Speaker 05:
She was forced out.

[00:09:22] Speaker 05:
There's no dispute with respect to that.

[00:09:24] Speaker 01:
I'm just saying that that's not, I don't think that's an uncommon thing.

[00:09:27] Speaker 01:
Like just in the, in the

[00:09:30] Speaker 01:
the world of conspiracies.

[00:09:31] Speaker 01:
There's so many of them.

[00:09:32] Speaker 01:
They last for a long time.

[00:09:33] Speaker 01:
People come in and out of them all the time.

[00:09:35] Speaker 01:
And I don't think we've ever held that under these circumstances, you're not in the conspiracy or you're not liable for part of the conspiracy you were there for.

[00:09:45] Speaker 05:
And I may be liable for the part of the conspiracy you're here for, but in this particular case, it's clear that the conspiracy had evolved or had changed here from.

[00:09:58] Speaker 01:
That's what I'm saying.

[00:09:59] Speaker 01:
I just don't think that that's unusual.

[00:10:00] Speaker 01:
I think a lot of conspiracies evolve over time.

[00:10:03] Speaker 01:
Some of them last decades.

[00:10:08] Speaker 05:
I understand that.

[00:10:09] Speaker 05:
But the fact scenario here is somewhat different

[00:10:15] Speaker 05:
in the sense that we're not talking about a drug case or something along those lines.

[00:10:19] Speaker 01:
We're talking about... But our holding would apply to all conspiracies.

[00:10:23] Speaker 01:
Whatever you ask us to hold, it's going to apply to all conspiracies.

[00:10:27] Speaker 01:
And I just don't see how this fits.

[00:10:34] Speaker 05:
Well, it would seem that it would be appropriate given the fact that

[00:10:44] Speaker 05:
Brittany Jones had nothing to do with anything with respect to the hotel situation.

[00:10:50] Speaker 05:
That could have been addressed with respect for the proper jury instruction indicating that.

[00:10:58] Speaker 01:
But that's not how conspiracy law works, is it?

[00:11:00] Speaker 01:
I mean, there's an overarching goal that everybody is involved in, the trafficking of these minors.

[00:11:09] Speaker 01:
And your client's role was

[00:11:13] Speaker 01:
soliciting them, bringing them, transporting them.

[00:11:15] Speaker 01:
And then she wasn't there for the hotel part, but that doesn't mean she wasn't part of the conspiracy and promoting its overarching goal.

[00:11:28] Speaker 05:
It would have, it would have been different because in this particular case, she was supposed to be part of this conspiracy and supposed to receive some of the proceeds.

[00:11:36] Speaker 05:
At least that's what the testimony was.

[00:11:37] Speaker 05:
In this particular case, it's clear that she wasn't supposed to receive any of the proceeds involving the hotel or being involved, anything involved in a hotel at all.

[00:11:49] Speaker 05:
And that's one thing that's a bit different because we know she was not supposed to be involved and that

[00:11:58] Speaker 05:
separate conspiracy.

[00:12:01] Speaker 05:
And that's what we say.

[00:12:04] Speaker 05:
That's clearly the separate conspiracy.

[00:12:06] Speaker 05:
It's clearly various in this particular case with respect to that particular conspiracy.

[00:12:12] Speaker 05:
And we believe all the evidence generated on that is extremely prejudicial to Ms.

[00:12:22] Speaker 05:
Jones.

[00:12:24] Speaker 06:
make sure my colleagues don't have additional questions for you.

[00:12:27] Speaker 06:
Thank you.

[00:12:28] Speaker 06:
We'll give you a little bit of time for rebuttal.

[00:12:29] Speaker 06:
We're having a clock malfunction, so we up here can look at that clock and then, Mr. Rothenberg, can you give the council the iPad?

[00:12:39] Speaker 06:
We'll put an iPad up at the lectern so you can see the time remaining for additional councils today.

[00:12:47] Speaker 06:
All right.

[00:12:47] Speaker 06:
Thank you.

[00:12:48] Speaker 06:
Thank you.

[00:12:56] Speaker 04:
Thanks.

[00:13:04] Speaker 02:
May I please the court?

[00:13:06] Speaker 02:
Good morning, Your Honors.

[00:13:07] Speaker 02:
Courtney Million on behalf of Mr. Lewis.

[00:13:09] Speaker 02:
I'd like to reserve two minutes for rebuttal.

[00:13:12] Speaker 02:
Mr. Lewis received a fundamentally unfair trial and sentence.

[00:13:18] Speaker 02:
It was fundamentally unfair because the district court made replete evidentiary errors, one of which the government admits to, that combined create a prejudicial error requiring

[00:13:29] Speaker 02:
reversal and gave a plainly erroneous jury instruction and it abdicated its fundamental responsibility at sentencing to make fact findings in support of its guideline determinations and to offer a reasoned basis for its decision, particularly in the face of an express objection from defense counsel.

[00:13:49] Speaker 02:
I'd like to start with the trial errors, but I, of course, welcome questions on all issues.

[00:13:53] Speaker 02:
I would like to begin with the district court's Rule 16 error.

[00:13:57] Speaker 02:
The district court forbade defense counsel from cross-examining two of the government's important witnesses about statements made in jail phone calls because the district court erroneously believed that those had been improperly withheld under defense counsel's reciprocal discovery obligation.

[00:14:16] Speaker 01:
The government admits that this is error.

[00:14:19] Speaker 01:
How do we know how the defense was prejudiced by that?

[00:14:21] Speaker 01:
Because no record was made as to what the cross-examination would have been.

[00:14:25] Speaker 02:
So a couple of responses to that.

[00:14:29] Speaker 02:
The burden is on the government to show harmlessness.

[00:14:31] Speaker 02:
The burden is not on defense counsel.

[00:14:33] Speaker 01:
There's just nothing in the record, though, to show what the harm was because we don't know what that cross-examination would have been.

[00:14:41] Speaker 01:
First of all, I'm not sure that's the case, but I... So what would the cross-examination have been and where is that in the record?

[00:14:47] Speaker 02:
So we don't have a specific discussion of what the cross-examination of those particular witnesses would have been because that information... Isn't that necessary to know what the harm was from this error?

[00:14:59] Speaker 02:
I mean, to the extent it's necessary to know what the harm was, the government fails to prove harmlessness.

[00:15:04] Speaker 01:
Regardless of the burden, I just don't see anything in the record that allows us to evaluate the harmlessness or not.

[00:15:11] Speaker 02:
A couple of points on where I think we can understand where the harm comes from.

[00:15:16] Speaker 02:
First, the government fought tooth and nail to keep this evidence out.

[00:15:19] Speaker 01:
It filed reconsideration motions.

[00:15:21] Speaker 01:
Not what the analysis is, is it?

[00:15:23] Speaker 01:
It has to show

[00:15:24] Speaker 01:
how the trial would have been different if this cross-examination had taken place.

[00:15:29] Speaker 01:
And it's kind of the job of the defense attorney to make a record and say, your honor, this is what we want to cross-examine about.

[00:15:38] Speaker 01:
Sometime during the course of, or even after the witness is done, like you have to make a record or else we can't evaluate how this affected the trial.

[00:15:48] Speaker 01:
We just don't know.

[00:15:49] Speaker 01:
It's not there.

[00:15:50] Speaker 01:
We don't know what this cross-examination would have been.

[00:15:52] Speaker 02:
So I mean, obviously, ideally, I wish a proper had been made.

[00:15:56] Speaker 02:
I think that would make things simpler for everyone here.

[00:16:00] Speaker 01:
How do we how do we do this?

[00:16:02] Speaker 01:
You're saying we can still do it.

[00:16:03] Speaker 01:
It's just not as simple.

[00:16:04] Speaker 01:
I just don't see how we can evaluate this.

[00:16:07] Speaker 01:
And it can't be just based on how hard they fought like that doesn't show harmless error.

[00:16:11] Speaker 02:
So I didn't finish my answer on what is in the record.

[00:16:15] Speaker 02:
So I want to make a couple of points on this.

[00:16:18] Speaker 02:
First of all, I think we can understand the absence of harmlessness here in part because we have evidence of what happened when those jail calls were used with other witnesses.

[00:16:29] Speaker 02:
And we discuss at length in our briefing what happened with Taylor and the way that evidence was powerfully used to impeach her, the fact that she wanted her phone hidden, the fact that she was

[00:16:40] Speaker 02:
talking with her father about engaging.

[00:16:42] Speaker 02:
I mean, the defense at trial was that it's Taylor's fault rather than.

[00:16:46] Speaker 01:
Doesn't it have to be tailored to the testimony of the witness that you wanted to impeach?

[00:16:53] Speaker 01:
Like just saying that this same evidence was very effective in impeaching some other witness who had different testimony doesn't tell me how you would have used it with respect to the ones that you're saying there was error with respect to.

[00:17:08] Speaker 02:
I mean, I don't think that the case law says you cannot ever look at what was introduced and how evidence was used effectively.

[00:17:15] Speaker 01:
But I still don't understand how your client was prejudiced by not being able to use those jail calls to impeach

[00:17:25] Speaker 01:
the particular witnesses that you're saying were the source of the error?

[00:17:30] Speaker 02:
To the extent we don't know precisely how it would have been used, I mean, I think, I mean, I realize I'm repeating myself here, but I think that's the government's problem because it's their burden to prove harmlessness.

[00:17:41] Speaker 02:
The reason this is not in the record is because they fought tooth and nail to keep it out.

[00:17:45] Speaker 01:
What if they prove harmlessness by saying it's just not in the record and we don't know what the harm is?

[00:17:51] Speaker 01:
I just don't think this is a burden issue.

[00:17:52] Speaker 01:
I think this is a gap in the record issue.

[00:17:55] Speaker 02:
I mean, it sounds like we disagree on this point.

[00:17:57] Speaker 02:
And you're obviously the judge here.

[00:17:59] Speaker 02:
But I would also just note that in this dialogue, I mean,

[00:18:04] Speaker 02:
The district court was extremely angry and incorrect in its assessment.

[00:18:09] Speaker 01:
If I agree with you that there was error here, I still have to assess harmlessness.

[00:18:14] Speaker 02:
That's kind of what I'm trying to focus on.

[00:18:15] Speaker 02:
I just want to finish the point quickly.

[00:18:17] Speaker 02:
The court cut off defense counsel and said bring in the jury.

[00:18:21] Speaker 02:
I think to the extent there's fault in a record not being made, it falls with the district court.

[00:18:27] Speaker 01:
We've got very experienced defense counsel here.

[00:18:29] Speaker 01:
And after the witness testifies,

[00:18:33] Speaker 01:
that what they should have done, which I think you agree, is, Your Honor, I just want to make a record on your exclusion of the jail calls.

[00:18:42] Speaker 01:
And I just want to say this is what we would have shown.

[00:18:45] Speaker 01:
That's what should have happened.

[00:18:48] Speaker 02:
I still think this is reversible error given where the burden falls, but I understand that your honor obviously doesn't agree with me on that point.

[00:18:55] Speaker 06:
Do you have a case or cases that establish that proposition that in this kind of situation, because of where the burden lies, the absence of a record falls to the detriment of the government?

[00:19:08] Speaker 02:
I don't have a particular case, but I think it follows from intuitive first principles.

[00:19:13] Speaker 02:
And I've not seen a case where a court has said you can't establish harm based on how this evidence was used with respect to different witnesses, nor that if it's not in the record, the defendant necessarily loses because of this burden issue.

[00:19:35] Speaker 02:
I have not seen that.

[00:19:37] Speaker 06:
Well, I mean, I take a point on the use of the evidence for another person, because in theory, if that evidence directly applied, I mean, there's no reason not to use it.

[00:19:45] Speaker 06:
I understand that.

[00:19:46] Speaker 06:
But there's a separate question about whether you project evidence that's targeted at somebody else to this scenario.

[00:19:52] Speaker 06:
But on the initial question of whether in a circumstance in which there's an arguable error, but there's a question about harmlessness and there was no record made through a proffer or anything like that,

[00:20:06] Speaker 06:
that it's on the government that they can't prove.

[00:20:09] Speaker 06:
I totally understand the legal point that the consequence of that error falls on the government when the burden is on them to establish homelessness.

[00:20:19] Speaker 06:
But in a circumstance in which there hasn't been a record developed by the defense or a request to make that record that was denied, I'm just wondering whether we have law that tells us what we do in that situation.

[00:20:33] Speaker 06:
I don't have a specific case to say to you.

[00:20:36] Speaker 03:
What do we take?

[00:20:37] Speaker 03:
You haven't raised an ineffective assistance of counsel claim for failure to make the proffer, although I think, as you said, ideally, that would have been done here.

[00:20:47] Speaker 03:
It would have made at least our analysis much easier.

[00:20:52] Speaker 03:
If the absence of the proffer were materially prejudicial in a Strickland sense, then wouldn't you have made an ineffective assistance of counsel claim here?

[00:21:06] Speaker 02:
I work for the federal public defender.

[00:21:09] Speaker 02:
The lawyers below were members of the federal public defender's office.

[00:21:12] Speaker 02:
I cannot make that argument.

[00:21:13] Speaker 02:
There's a conflict there.

[00:21:20] Speaker 01:
Can you address the sentencing here?

[00:21:23] Speaker 01:
I do think it's problematic the way the sentencing proceeded.

[00:21:31] Speaker 01:
There's a number of sentencing errors that you've asserted.

[00:21:34] Speaker 01:
If we think that there's an overarching problem with the failure to make findings and address specific arguments, is that just kind of a global remand or do we need to address every issue that you've raised?

[00:21:52] Speaker 02:
I think, first of all, I think a global remand would be appropriate here.

[00:21:56] Speaker 02:
I do think, particularly on the vulnerable victim enhancement, we've made a clear argument that on this record, it just could not be sustained.

[00:22:05] Speaker 02:
So I think it would be.

[00:22:06] Speaker 01:
I was wondering about that.

[00:22:07] Speaker 01:
Is that something that we should decide, or should the district court decide in the first instance?

[00:22:11] Speaker 01:
Because the district court never said which theory it was relying on in applying that.

[00:22:18] Speaker 02:
So I mean, I think ultimately that is to your honor's discretion.

[00:22:22] Speaker 02:
We would obviously encourage, and I think clarity would be appreciated on what the appropriate test is for the vulnerable victim enhancement.

[00:22:29] Speaker 02:
I think we're likely to end up back here if there is some clarity on that particular question, which there's case law in the circuit saying it's an open question how we should understand the vulnerable victim enhancement.

[00:22:43] Speaker 02:
But I do think.

[00:22:45] Speaker 02:
the court can offer that clarity or can, quite frankly, it's within its discretion and how it resolves its case to sort of

[00:22:54] Speaker 02:
What is the right test?

[00:22:56] Speaker 03:
I find this very courts are all over the place.

[00:22:59] Speaker 03:
I find it rather difficult to wrestle with.

[00:23:01] Speaker 03:
So what is the right test for defining whether someone's a vulnerable victim, at least in a context like this, where you're dealing with sexual abuse of minors, where everyone is almost inherently vulnerable because they are minors abused by older people.

[00:23:22] Speaker 03:
What is the right test?

[00:23:25] Speaker 02:
The right test is someone vulnerable relative to a typical victim of the offense.

[00:23:31] Speaker 03:
How do we decide who a typical victim of an offense like this is?

[00:23:35] Speaker 02:
One is case law.

[00:23:39] Speaker 02:
I mean, there's considerable case law on youth, on poverty, on

[00:23:47] Speaker 02:
disassociation from family and friends, remoteness, being the kind of things that are tragically prototypical of victims of sex trafficking.

[00:23:58] Speaker 03:
Because they're also tragically prototypical of what it means to be vulnerable to this crime.

[00:24:06] Speaker 02:
But I think that feeds into the point that this is what animated Congress to make this a crime, and a crime with such a severe guidelines range.

[00:24:17] Speaker 02:
I mean, we're talking about life here.

[00:24:20] Speaker 02:
The idea that vulnerable people are preyed upon is baked into the guideline here.

[00:24:25] Speaker 02:
And given the discussion in the guidelines commentary about how if it's incorporated into the offense guideline and the example with the bank teller, that indicates that the type of tests we're talking about here is vulnerable relative to the offensive conviction.

[00:24:43] Speaker 02:
And just to the extent the court's concerned.

[00:24:45] Speaker 01:
I have some concerns with this theory, counsel, because

[00:24:49] Speaker 01:
It just seems to me that the bank teller analogy is if that guy was about bank robbery, you don't get an enhancement because it's a bank teller.

[00:25:01] Speaker 01:
It seems to me the correct way to apply that to this situation is it's a minor, so you don't get

[00:25:10] Speaker 01:
to be considered unusually vulnerable because you're a minor.

[00:25:14] Speaker 01:
But that doesn't address being a runaway, being from foster care, being homeless, being drug addicted, being mentally.

[00:25:20] Speaker 01:
It just seems to me troubling as I was reading some of the cases that were being cited that we're going to say that people who are homeless and from foster care and some of them are 12 years old are not unusually vulnerable because as a class, they all are unusually vulnerable.

[00:25:38] Speaker 01:
I just think that's really

[00:25:40] Speaker 01:
difficult to apply.

[00:25:43] Speaker 01:
I just I just I find that really troubling.

[00:25:46] Speaker 02:
I guess I would say I mean to the extent the court is concerned that

[00:25:54] Speaker 02:
These sentences are not going to be high in sex trafficking cases when vulnerable people are being preyed upon.

[00:26:00] Speaker 02:
I mean, the guidelines, again, are exceptionally high here.

[00:26:06] Speaker 02:
So I just don't think that one needs the vulnerable victim enhancement to capture this type of concern.

[00:26:11] Speaker 01:
I think I also have a logistical issue, which is the trial judge then has to make a finding in each of these cases what the typical vulnerable victim is.

[00:26:21] Speaker 01:
Are the parties going to brief that like how?

[00:26:24] Speaker 02:
I mean, so I, I, I mean, as I said, I think it can be resolved based on case.

[00:26:30] Speaker 01:
But if your honor doesn't think you're going to submit a brief to the sentencing court that says based on this case law.

[00:26:38] Speaker 01:
I guess you would need statistics or something.

[00:26:40] Speaker 01:
Typical victims of trafficking have these characteristics.

[00:26:46] Speaker 01:
I just think there's a difficult logistical fact-finding issue as well that would be incorporated into this theory.

[00:26:57] Speaker 02:
So I mean, as I've said, I'm not so sure it's that difficult, given that you can rely on case law.

[00:27:01] Speaker 02:
But setting that aside, I mean, I think sentencing's are difficult.

[00:27:05] Speaker 02:
We have very complicated questions sometimes, like a portioning loss and things like that that district courts are required to engage in that involves statistics and numbers and things like that.

[00:27:15] Speaker 01:
And I just think- So I guess in each case, you would have to say,

[00:27:21] Speaker 01:
Runaways.

[00:27:22] Speaker 01:
X percentage of trafficking victims are runaways.

[00:27:29] Speaker 01:
I think that would be one way to do that.

[00:27:30] Speaker 01:
I don't think the case- Homelessness.

[00:27:31] Speaker 01:
X percentage of trafficking victims are homeless.

[00:27:35] Speaker 01:
I think this is hard.

[00:27:39] Speaker 01:
Even if those statistics exist, I think this is difficult.

[00:27:43] Speaker 02:
The fact that it's difficult doesn't mean that it's not the right task.

[00:27:46] Speaker 01:
No, I agree.

[00:27:47] Speaker 01:
I agree.

[00:27:47] Speaker 01:
But I'm just saying this whole thing troubles me, both logistically and analytically, just for courts to be finding, making factual findings, that a homeless, penniless runaway who's been through foster care and is desperate is not unusually vulnerable.

[00:28:07] Speaker 01:
It's hard for me to swallow.

[00:28:09] Speaker 02:
And I would also sort of pick.

[00:28:13] Speaker 02:
In response to that, I would also note the district court also just didn't make fact findings about what Mr. Lewis knew or should have known.

[00:28:19] Speaker 01:
We're just talking about the proper test here, and I'm in trouble with it.

[00:28:22] Speaker 02:
Yeah.

[00:28:22] Speaker 02:
I mean, and perhaps that counsel's in favor of just sort of a broader remand where these issues can be more sort of flowing back.

[00:28:29] Speaker 06:
Is your idea of the way that this should work?

[00:28:32] Speaker 06:
We have the option of, if there was error, to remand without setting the law on this.

[00:28:38] Speaker 06:
and allowing for some further development.

[00:28:39] Speaker 06:
But is your idea of the way that this should work?

[00:28:41] Speaker 06:
It's actually just about majority, non-majority.

[00:28:46] Speaker 06:
So it would have to be a situation in which the circumstances of the particular victim are unusual in that they're less than

[00:28:55] Speaker 06:
50%.

[00:28:55] Speaker 06:
And I know we can always do the percentage game where we say exactly what percent.

[00:28:59] Speaker 06:
That's not what I'm trying to do.

[00:29:00] Speaker 06:
I'm just trying to know, what's your idea of the overarching standard?

[00:29:04] Speaker 06:
Would it be that the circumstances of the particular victim are unusual in that if you combine all the circumstances, less than a majority of the victims of this particular offense will have those characteristics?

[00:29:19] Speaker 02:
So I don't think it's quite that, because you could be unusually unvulnerable.

[00:29:25] Speaker 02:
It could be that it's not this particular assortment of characteristics of someone are not typical, but that assortment of characteristics actually makes them less vulnerable than the typical victim.

[00:29:37] Speaker 02:
So I don't think it's just identifying characteristics and then saying, do most people have these or not?

[00:29:45] Speaker 02:
one needs to and I don't have a fully fledged out answer because candidly I am personally satisfied by the case law the way the case law has resolved this because I think

[00:29:57] Speaker 02:
Sometimes we have great precision in sentencing.

[00:30:00] Speaker 02:
But oftentimes, it is a bit of a gut instinct.

[00:30:03] Speaker 02:
And often, I would wish there would be a lot more precision in how we do this kind of stuff.

[00:30:08] Speaker 02:
And courts say, no, no, no.

[00:30:10] Speaker 06:
But what is the gut instinct?

[00:30:11] Speaker 06:
I don't deny any of that.

[00:30:12] Speaker 06:
But what is the gut instinct towards?

[00:30:14] Speaker 06:
What would we expect the judge to have a gut instinct by reference to?

[00:30:26] Speaker 02:
I mean, the idea that someone who is in poverty or doesn't have resources or is young are the kinds of things that are typical of victims of sex trafficking.

[00:30:40] Speaker 02:
And in this case, we have testimony from an expert that these are the kind of adversities that she sees all the time in her practice.

[00:30:49] Speaker 02:
So I think there is stuff in the record about this as well.

[00:30:53] Speaker 06:
But I mean, people who are not young are also victims of sex trafficking.

[00:30:59] Speaker 02:
True.

[00:31:00] Speaker 02:
But the guideline here is based on the idea that, I mean, the only reason we're applying 2G1.3 is because the victims here are minors.

[00:31:12] Speaker 06:
Right.

[00:31:12] Speaker 06:
But I'm trying to determine whether it's unusual or atypical.

[00:31:16] Speaker 02:
Well, it is not unusual of sex trafficking of minors for someone to be a minor.

[00:31:22] Speaker 06:
If you use that as the baseline.

[00:31:24] Speaker 02:
Yes.

[00:31:27] Speaker 02:
And I mean, and that baseline comes from the guidelines.

[00:31:30] Speaker 02:
That comes from the fact that 2G1.3, which is the guideline they're sentenced under, only applies if it's sex trafficking of a minor.

[00:31:39] Speaker 03:
Do you have a case or a circumstance where someone was found to be vulnerable, a vulnerable victim under the sentencing guideline that you think was appropriate that didn't involve reference to common criteria?

[00:31:55] Speaker 03:
I'm starting to figure out what would make someone vulnerable.

[00:32:01] Speaker 02:
So I think what would make someone vulnerable.

[00:32:04] Speaker 03:
There's no cases.

[00:32:06] Speaker 02:
So we cite a case out of the 10th Circuit.

[00:32:09] Speaker 02:
I want to say it's called Smith, but it's in the briefing, where the victim in that case was found unusually vulnerable because she was found to be unusually small and weak relative to other minors.

[00:32:24] Speaker 02:
Um.

[00:32:25] Speaker 03:
Physically small and weak.

[00:32:26] Speaker 02:
Yes.

[00:32:27] Speaker 02:
I mean I don't find that especially satisfying but that at least like begins to engage with the the proper analysis and is certainly not something found here.

[00:32:36] Speaker 02:
To me a better example would be um and I don't have a specific case but I'm not saying it doesn't exist or like if someone was handicapped and that's why they were trafficked.

[00:32:45] Speaker 02:
I I feel pretty comfortable saying that that is someone who is unusually vulnerable by virtue of you know their handicap.

[00:32:53] Speaker 01:
Can somebody be unusually vulnerable based on the combination of factors that there.

[00:32:59] Speaker 01:
A runway as well as penny list as well as from foster care as well as drug addicted as opposed to looking at each one.

[00:33:08] Speaker 01:
Separately.

[00:33:09] Speaker 02:
I.

[00:33:13] Speaker 02:
I think probably, yes.

[00:33:16] Speaker 02:
But I mean, I don't want to get ahead of myself given that this is going to end up getting litigated below.

[00:33:22] Speaker 02:
I think that makes sense.

[00:33:23] Speaker 02:
But I think the factors identified here are ones the case law say doesn't make you unusually vulnerable.

[00:33:27] Speaker 02:
They're talking about this.

[00:33:28] Speaker 01:
I'm just asking if these factors in combination come up with a different.

[00:33:32] Speaker 01:
I would not say that these particular.

[00:33:33] Speaker 02:
I mean, whether a particular set of factors that exist might.

[00:33:38] Speaker 06:
I suppose that.

[00:33:39] Speaker 06:
I guess the question is, I mean, just to follow on, I guess the question is,

[00:33:43] Speaker 06:
You could have several factors that in and of themselves wouldn't be atypical and take age out of it because even if you take age of the baseline because of the way this guideline is framed, but these other factors, they might individually be.

[00:33:55] Speaker 06:
more typical than not, but to have multiple of them in the same one, you could do probabilities in 0.51 times 0.51 is something around 0.25.

[00:34:05] Speaker 06:
And so if you layer multiple of them together, then you might be in an unusual situation, whereas you wouldn't be if you just took each one of them as independent.

[00:34:16] Speaker 06:
So it seems like you'd have to be able to take into account multiple considerations in combination.

[00:34:23] Speaker 02:
I think that makes sense to me.

[00:34:25] Speaker 02:
And I suspect, I mean, I don't want to keep returning to the idea of meeting a mushy test, but I would have a very hard time arguing that that was like reversible error and a misapplication of the test if that's what the district court had on here.

[00:34:37] Speaker 06:
To take them into account in combination.

[00:34:39] Speaker 06:
Yes.

[00:34:44] Speaker 03:
Did you want to talk about the reckless disregard instruction?

[00:34:47] Speaker 03:
If my colleagues are done, I'm sorry.

[00:34:49] Speaker 03:
On this one, yeah.

[00:34:56] Speaker 03:
The district court used at least a paraphrase of an instruction that had been given in other contexts.

[00:35:05] Speaker 03:
There doesn't seem to be any settled law.

[00:35:08] Speaker 03:
So on what basis could we find clear error?

[00:35:13] Speaker 02:
So I think a couple of responses to that.

[00:35:17] Speaker 02:
I think this is more than a paraphrase.

[00:35:18] Speaker 02:
First, I think it's more than a paraphrase of the instruction.

[00:35:21] Speaker 02:
And I do think the law is settled enough for the court to find plain errors.

[00:35:26] Speaker 02:
On the paraphrase of the instruction, there's a very important difference between the instruction that is in sand and the instruction that the district court gave.

[00:35:36] Speaker 02:
And that is that the instruction in sand at the end of it references the coercion of a minor, that the minor was coerced.

[00:35:44] Speaker 02:
And this just repeats the phrase, the fact, the fact, the fact.

[00:35:48] Speaker 02:
And if you read it, I think the only fair reading of it is that the court has essentially said that you don't

[00:35:58] Speaker 02:
need to be aware of the facts from which one would draw an inference because it just keeps repeating the term fact.

[00:36:04] Speaker 02:
And I think the law is at the very least settled on the idea that you need to be aware of the facts from which one would draw an inference of

[00:36:17] Speaker 02:
you're like that there's a risk of coercion.

[00:36:21] Speaker 02:
But that's not the instruction given here, given the way the fact is repeated.

[00:36:25] Speaker 02:
And when we interpret a repeated word used throughout something like a statute or an instruction or anything, we tend to think it refers to the same thing.

[00:36:34] Speaker 03:
What about the fact that he said high rather than highest probability?

[00:36:40] Speaker 03:
Is that material?

[00:36:44] Speaker 03:
I'm sorry, say that again.

[00:36:45] Speaker 03:
It just required them to find indicates a high probability of the fact at issue, putting your points about the fact at issue.

[00:36:53] Speaker 03:
But the modern, the sand instruction required to find the highest probability.

[00:37:01] Speaker 02:
I mean, that is obviously a problem as well, because it's lowering the standard on, you know, one's knowledge of the fact or appreciation of the fact.

[00:37:13] Speaker 01:
We're on plain error review though, aren't we?

[00:37:15] Speaker 01:
Yes.

[00:37:15] Speaker 01:
So you have to show plain, clear, and obvious error.

[00:37:18] Speaker 01:
So even if you're right, it has to be something more.

[00:37:21] Speaker 01:
And is it even plain?

[00:37:24] Speaker 01:
Like, is this something that we've already decided?

[00:37:27] Speaker 02:
So we don't have a specific case that has decided under this statute the meaning of recklessness.

[00:37:35] Speaker 02:
I cite a case called Woodhall.

[00:37:37] Speaker 01:
Is that fatal to your argument, though?

[00:37:39] Speaker 01:
I don't think it's fatal.

[00:37:40] Speaker 02:
I think case law is clear that you don't need a case directly on point if a norm is well established.

[00:37:48] Speaker 01:
And if you've got one out of circuit.

[00:37:51] Speaker 01:
Well, that's an in-circuit case.

[00:37:54] Speaker 02:
It's an in-circuit case.

[00:37:55] Speaker 02:
And it's interpreting the meaning of recklessness to require subjective knowledge of the risk.

[00:38:03] Speaker 02:
And in particular, it's a statute that it's whether you're reckless as to whether a 1512 offense is being committed.

[00:38:10] Speaker 02:
So it's not a statute that is 1591.

[00:38:17] Speaker 02:
the sex trafficking statute issue here.

[00:38:21] Speaker 02:
It's not a case about where they're interpreting the exact statute of issue here, but it is a statute that makes reference to it.

[00:38:28] Speaker 02:
It is very, very close to this case.

[00:38:31] Speaker 02:
And it's interpreting it to require subjective intent.

[00:38:37] Speaker 02:
Excuse me, subjective awareness of the risk.

[00:38:40] Speaker 06:
Can I ask on this issue for the other prongs of plain error analysis when you get further down the line, what's the theory under which the reckless disregard would have been the way in which the jury would have found Lewis guilty of these offenses as opposed to

[00:39:00] Speaker 06:
something more than reckless disregard because he was the one who was alleged to have used the force and coercion.

[00:39:06] Speaker 06:
And we have separate issues about whether there were evidentiary errors that allowed the jury to find that element.

[00:39:13] Speaker 06:
But if we just assume those away for present purpose, and I do have a question about those, but if we assume those away for present purposes, then what's the theory under which the reckless disregard part of the statute comes into play on the facts of this case?

[00:39:27] Speaker 02:
So the government's theory is that Mr. Lewis knew about the coercion and was doing it himself.

[00:39:33] Speaker 02:
But the defense's theory is that's not true, that Taylor was the one engaging in all of this.

[00:39:39] Speaker 02:
And so I think the jury could well have convicted Mr. Lewis on the idea that he

[00:39:48] Speaker 02:
a lower standard of reckless disregard that allowed for an objective appreciation of a risk rather than a subjective appreciation, given that the defense's theory was that Taylor was the one doing this, and Mr. Lewis was off to the sidelines.

[00:40:05] Speaker 02:
And I want to apologize, but I really need to grab my water.

[00:40:08] Speaker 02:
Sure.

[00:40:11] Speaker 06:
And then for purposes of the plain error standard,

[00:40:15] Speaker 06:
fact that the defense has the theory.

[00:40:18] Speaker 06:
I get that the defense has the theory, but in terms of whether the subsequent parts of the plain error standard are satisfied, and take your time.

[00:40:26] Speaker 06:
I don't want to...

[00:40:27] Speaker 02:
I'm sorry, please finish what you're saying and I can hear if I can't speak.

[00:40:35] Speaker 06:
Sure, absolutely.

[00:40:38] Speaker 06:
How do we factor in that the defense, yes, the defense has that theory, but in order to determine whether the subsequent prongs of plain error are satisfied, I don't think we take the defense's theory as a given.

[00:40:49] Speaker 02:
I don't think we do, but we cite case law about the idea that when there's conflicting evidence on a particular point, that can make the plain error standard review on third and fourth prong.

[00:41:04] Speaker 02:
And here, the government argues about Mr. Lewis knowing and cites its particular parts of the record for the proposition.

[00:41:12] Speaker 02:
And in our briefing, we go through and cite conflicting parts of the record.

[00:41:15] Speaker 02:
And I think when you have that conflicting evidence under the case law that we've cited,

[00:41:19] Speaker 02:
You know, remand is appropriate here.

[00:41:23] Speaker 06:
And I have one question about an antecedent point.

[00:41:26] Speaker 06:
And that's just about your argument about the gun, not the gang part of it, but the gun part of it with mans.

[00:41:33] Speaker 06:
So even if we assume that there was an error under 40443 in admitting that evidence, the government makes a harmlessness argument.

[00:41:44] Speaker 06:
What's your response to the harmlessness argument?

[00:41:48] Speaker 06:
I take the point that the burden is on the government, but what's your best argument that the government has not satisfied its burden?

[00:41:57] Speaker 02:
I think when a jury hears evidence like someone held a gun to my head and threatened me, someone's wife who they have a consistent relationship with, I think that is a bell that just does not get unrung here.

[00:42:13] Speaker 02:
I mean, that is like devastating, horrific information that if I was sitting on the jury, I would think it's

[00:42:22] Speaker 02:
not because of guilt or innocence in this case, but this is a dangerous man who needs to be locked up.

[00:42:27] Speaker 02:
And I just think something as graphic and horrific as that is the kind of thing that demonstrates error, particularly when you have things here like there was no instruction about the proper use of this evidence given at the time.

[00:42:51] Speaker 02:
We're talking about cumulative errors here.

[00:42:53] Speaker 02:
We've obviously alleged additional errors, including the fact that the defense was not allowed to cross-examine mismans with the jury, with the jail calls.

[00:43:06] Speaker 02:
I think that establishes the harm.

[00:43:10] Speaker 06:
But if there were a lot of other evidence of

[00:43:14] Speaker 06:
force, coercion, et cetera, then I don't know that the law is that if there's one particularly graphic one that is necessarily non-harmless.

[00:43:26] Speaker 02:
I mean, I think in the 404B context, the law sometimes does reverse.

[00:43:32] Speaker 02:
And we cite cases where there was cross-examination or it was brought out that domestic violence was committed.

[00:43:43] Speaker 02:
independent from whether there was some evidence of guilt.

[00:43:47] Speaker 02:
I mean, this was a very hard-fought case.

[00:43:50] Speaker 02:
And the government brought out its witnesses.

[00:43:54] Speaker 02:
Its star witness was Taylor.

[00:43:56] Speaker 02:
And the defense did an exceptional job of

[00:44:02] Speaker 02:
you know, impeaching her reliability.

[00:44:04] Speaker 02:
And, you know, often, particularly today, you have more neutral evidence that is not a witness testimony demonstrating guilt here, but the government

[00:44:17] Speaker 02:
And there are text messages and cell site and all of that.

[00:44:21] Speaker 02:
But this is a case where Taylor herself has admitted she was constantly using Mr. Lewis's phone.

[00:44:27] Speaker 02:
So that type of objective evidence just is not powerful in the way it would normally be in a case.

[00:44:32] Speaker 02:
I think this is a very close case.

[00:44:35] Speaker 02:
And I think in that context, hearing about something as horrifying as holding a gun to your wife's head because of some dispute,

[00:44:47] Speaker 02:
I mean, I don't see how a jury would properly put that out of their mind and not draw the just incredibly overwhelming inference that this man needs to be locked up because he's a threat to his wife and women more generally.

[00:45:05] Speaker 06:
Let me make sure my colleagues don't have additional questions at this time.

[00:45:07] Speaker 06:
OK.

[00:45:07] Speaker 06:
Thank you, Ms.

[00:45:08] Speaker 06:
Miller.

[00:45:08] Speaker 06:
I'll give you a little time for rebuttal.

[00:45:22] Speaker 07:
Good morning, your honor.

[00:45:24] Speaker 07:
It's been pleased.

[00:45:24] Speaker 07:
The court did a good hand for the United States.

[00:45:28] Speaker 07:
With the court's permission, I'd like to take the issues raised by my opponent in the same order that were raised just now, starting very briefly first with the variants.

[00:45:39] Speaker 07:
Much of this has been discussed in our brief, but.

[00:45:42] Speaker 07:
Most fundamentally, this notion of two separate conspiracies, I think, is belied by the fact that Lewis and Jones would simply work together to traffic the miners.

[00:45:56] Speaker 07:
Jones was instrumental in getting the victims to Mr. Lewis.

[00:46:00] Speaker 07:
And this notion that she exited the conspiracy early because of the banishment, well,

[00:46:07] Speaker 07:
You know, in the narcotics context, a supplier could provide three kilos of cocaine and then step out of the conspiracy.

[00:46:14] Speaker 07:
So I don't think that answers the question.

[00:46:16] Speaker 03:
Do you agree she was banished?

[00:46:22] Speaker 07:
It certainly seems like the tenor of the interaction on that April day was such that Lewis was unhappy with her.

[00:46:31] Speaker 07:
I think it wasn't necessarily Lewis who banished her, but Taylor took her aside and said something to the effect of, you need to make yourself scarce or we'll both end up dead.

[00:46:42] Speaker 07:
So, but there definitely seems to- April 27th.

[00:46:45] Speaker 03:
On April 27th, during the conspiracy, Mr. Lewis emailed a copy of his loyalty contract to Ms.

[00:46:53] Speaker 03:
Jones.

[00:46:54] Speaker 03:
It seems like, at least in Mr. Lewis's eyes, she was not banished.

[00:46:58] Speaker 03:
He needed to be cooling down her a couple days.

[00:47:03] Speaker 03:
Possibly, it certainly seemed to suggest that... You would agree with the banishment characterization given that there was a later contact between the two of them related to this process.

[00:47:14] Speaker 07:
I think inferences can be drawn on either side.

[00:47:16] Speaker 07:
My point simply is that it's irrelevant to the ultimate decision in terms of variance.

[00:47:22] Speaker 07:
With respect to the gun and the issue of harmlessness, as we've articulated, we think there are a couple routes for permissible admission of the gun.

[00:47:31] Speaker 07:
First, it was direct evidence of the felon in possession.

[00:47:35] Speaker 03:
Second, we do think it related... Did you argue those as the basis for admission to the district court?

[00:47:41] Speaker 07:
Certainly there was... The government.

[00:47:42] Speaker 07:
I'm sorry?

[00:47:43] Speaker 07:
Did the government argue those?

[00:47:45] Speaker 07:
Well, my opponent has conceded its relevant direct evidence.

[00:47:48] Speaker 03:
This is a discretionary judgment whether something comes in.

[00:47:52] Speaker 03:
And there's other circuits have said, you know, if you just want to show a felon in possession, that's fine, but don't go further and have much more graphic evidence about how the gun was then used.

[00:48:07] Speaker 03:
And so, since there's a balancing required and the government did not at trial argue, we want this admitted for felon in possession purposes, how could this court make that balancing, whether this evidence and the sort of toxicity of it was warranted to show felon in possession?

[00:48:31] Speaker 07:
I think when there are alternative bases for admission, this court can make a determination even if it wasn't relied on by the district court.

[00:48:44] Speaker 03:
What is your best case that when it involves an exercise of discretion by the district court?

[00:48:52] Speaker 03:
that this court can make that discretionary decision in the first instance.

[00:48:57] Speaker 03:
This court can make all kinds of legal rulings in the first instance, but generally when something involves an exercise of the district court's discretion, especially something as sensitive as

[00:49:08] Speaker 03:
as a balancing of prejudice and probitiveness and exactly how much information needs to be let in to demonstrate, for example, a felon in possession.

[00:49:19] Speaker 03:
That's a judgment that needs to be made by the judge that is sitting in the courtroom all day, every day.

[00:49:26] Speaker 07:
But my opponent, you know, when this was litigated during Manza's testimony, my opponent didn't raise the issue of 403 at all.

[00:49:35] Speaker 03:
And so I think to the extent that... I'm asking you if you have a case that has said that this court can, in the first instance, make that type a very delicate balancing when it wasn't argued that way to the district court, and the district court didn't have a chance to exercise its expert discretion on the issue.

[00:49:54] Speaker 03:
What is your...

[00:49:56] Speaker 07:
I don't have a case.

[00:49:58] Speaker 07:
I don't have a case.

[00:50:00] Speaker 07:
I apologize.

[00:50:00] Speaker 03:
There were many cases where a court of appeals had made that type of discretionary judgment in the first instance.

[00:50:06] Speaker 07:
I think this court assesses discretionary decisions all the time.

[00:50:11] Speaker 03:
And they're made by the district court judge, absolutely.

[00:50:14] Speaker 03:
We do not make the discretionary decision.

[00:50:16] Speaker 03:
We evaluate their discretionary decisions, but we don't have the discretionary decision of whether this, to the degree, the way it was introduced here, the story about the gun to our temple,

[00:50:28] Speaker 07:
I agree.

[00:50:28] Speaker 07:
I agree.

[00:50:29] Speaker 07:
That's a missing that's a missing fact.

[00:50:32] Speaker 03:
Yes.

[00:50:32] Speaker 03:
In fact, it's a missing discretionary judgment and there's Court of Appeals decision.

[00:50:36] Speaker 03:
I think the Seventh Circuit that said you can let the fact that she could a witness could testify to the fact that they saw the person with the gun but could not in that case go further and testify things about Russian roulette being played with the gun.

[00:50:53] Speaker 03:
And it seems to me it's very similar to this case.

[00:50:55] Speaker 07:
Well, I'm not familiar with the Seventh Circuit decision, I apologize, but even if this court were to disagree with the conclusion that this was properly admitted, it's certainly harmless.

[00:51:05] Speaker 07:
This was an eight-day trial.

[00:51:06] Speaker 01:
But on Judge Millett's point, wouldn't it be plain error review?

[00:51:10] Speaker 01:
If it was never raised as a 403 issue, the court never ruled that way.

[00:51:14] Speaker 01:
There's no case on point, but it's plain error review.

[00:51:17] Speaker 07:
I think it would be, and that gets to my core point when I mentioned that defense counsel would have when this was posited to the district court with respect to the gun and mans.

[00:51:29] Speaker 07:
Certainly defendant was on notice of the gun to the head incident.

[00:51:33] Speaker 07:
That was part of the government's pretrial motion in Lemony relating to the 404B evidence.

[00:51:40] Speaker 01:
Right, so they should argue it's substantially more prejudicial.

[00:51:44] Speaker 01:
It should be excluded under 403.

[00:51:46] Speaker 01:
And if they didn't know it was coming and it came, they should have objected contemporaneously and made a 403 argument.

[00:51:52] Speaker 01:
And then we'd be where we are.

[00:51:54] Speaker 01:
But if they never did that, we're on plain error review.

[00:51:57] Speaker 01:
I think that's accurate.

[00:51:58] Speaker 03:
Why are we on plain error when they made this objection repeatedly before the district court, and again, a trial objected to the admission of this evidence?

[00:52:05] Speaker 07:
Well, they addressed the 404b argument that was related to the gun.

[00:52:12] Speaker 07:
But again, to my mind, the district court... They're objecting to the admission of this evidence.

[00:52:18] Speaker 03:
Yes, but you're... You're the one who wants to bring up a whole new balancing thing for felon in possession.

[00:52:21] Speaker 03:
They couldn't... On appeal, you want to bring that up.

[00:52:24] Speaker 03:
That's not something they could have anticipated.

[00:52:26] Speaker 03:
Again, I think it's not too much to ask when you object to evidence, you articulate why you think it's inappropriately... And if you've already had an entire motion in limine before the district court, what's your best case when you've had an entire motion in limine that has spelled all this out and now you're in front of a jury and you make your objection again?

[00:52:46] Speaker 03:
What's your best case that that is not sufficient to get plain error review?

[00:52:52] Speaker 07:
Well, again, I think I understand plain error review to stand for the proposition that you can't sort of sandbag the district court and allow evidence to come in.

[00:53:02] Speaker 07:
In this case, again, it seems, again, my opponent doesn't disagree with the notion that this is relevant to the felon in possession.

[00:53:09] Speaker 07:
And if we understand that concession to stand for the proposition that has some probative value, then I don't think it's so much to ask the

[00:53:16] Speaker 07:
the district court to consider what your basis for objection is.

[00:53:20] Speaker 03:
But it's not asked to admit this as evidence of felon in possession.

[00:53:24] Speaker 03:
It's not the government's position.

[00:53:27] Speaker 03:
I don't understand this world where the government doesn't have to make arguments, but the defense is supposed to have objected to the unmade arguments.

[00:53:35] Speaker 03:
Well, again, as my opponent has- And if they don't object to unmade arguments, we apply plain error review.

[00:53:41] Speaker 07:
Sure.

[00:53:43] Speaker 07:
We disagree on this.

[00:53:45] Speaker 07:
But again, even if we're not.

[00:53:46] Speaker 03:
Do you have a case where you didn't object to an argument that's not made until appeal and that's treated as plain error?

[00:53:55] Speaker 07:
I don't have the case.

[00:53:56] Speaker 03:
I can't imagine.

[00:53:58] Speaker 03:
I mean, what are defense attorneys supposed to do?

[00:54:01] Speaker 03:
I'm objecting to this.

[00:54:02] Speaker 03:
And by the way, if the government in some future time wants to argue this, I'm objecting to that.

[00:54:06] Speaker 07:
Well, again, this was not something completely foreign to the defendant.

[00:54:10] Speaker 07:
That's not the question.

[00:54:12] Speaker 03:
Completely foreign isn't the question.

[00:54:14] Speaker 03:
The question is whether it was the basis on which the government sought admission of the evidence.

[00:54:18] Speaker 07:
Well, the defendant did make a 403 analysis in its response to the government's pretrial motion.

[00:54:24] Speaker 07:
So the notion that this was a latent, emotional fact is something that everybody was on notice of.

[00:54:34] Speaker 06:
They did invoke 403?

[00:54:35] Speaker 06:
I'm sorry?

[00:54:36] Speaker 06:
If they did invoke 403, then why are we talking about plain error?

[00:54:39] Speaker 07:
Well, they invoked 403 in response to the government's pretrial motion.

[00:54:42] Speaker 07:
And my point is later they did not make that argument with respect to the actual admission.

[00:54:52] Speaker 06:
So what were they supposed to do?

[00:54:54] Speaker 06:
I thought what happened was pretrial, this issue came up, and then it was tabled.

[00:54:59] Speaker 07:
Yes, it was tabled.

[00:55:01] Speaker 07:
Yes, absolutely.

[00:55:02] Speaker 06:
So then the objections that were made before don't carry through?

[00:55:06] Speaker 07:
there's a there's an obligation to well, I think they were answering that they were answering the 404 B argument that was made in the government's motion and the gun had a separate purpose when we got to trial, it was direct evidence of the felon in possession and if they wanted

[00:55:21] Speaker 07:
And that's an important part of the balancing.

[00:55:23] Speaker 07:
You ask the question of how is this relevant and what probative value does it bring?

[00:55:27] Speaker 07:
And the gun, obviously there was much discussion of the gun at the trial.

[00:55:33] Speaker 07:
So the gun is relevant evidence related into at least one of the counts of the indictment.

[00:55:39] Speaker 06:
When there's a back and forth at the trial, the theory that was being asserted for the admission of the evidence was not felon in possession.

[00:55:49] Speaker 07:
It did not, it did not specifically rise, no.

[00:55:53] Speaker 06:
Yeah, because it had to do with, it wasn't coming in for that purpose, it was coming for a different purpose.

[00:55:58] Speaker 07:
Well, again, that was the way it was argued pre-trial for sure.

[00:56:03] Speaker 07:
Then it was pushed off.

[00:56:05] Speaker 07:
But I certainly think it's a fair inference that everybody understood that this also had relevance to the felony possession.

[00:56:10] Speaker 03:
I don't understand fair inference that everyone understood.

[00:56:13] Speaker 03:
Where in your brief to us have you argued that this issue, the admission of this testimony, is subject to plain error review?

[00:56:20] Speaker 07:
You know, it's not in our brief.

[00:56:22] Speaker 03:
You didn't argue that it was abuse of discretion review.

[00:56:25] Speaker 07:
Yes.

[00:56:25] Speaker 07:
Yes.

[00:56:26] Speaker 03:
OK.

[00:56:26] Speaker 03:
So even if one thought it was, you have forfeited that.

[00:56:31] Speaker 07:
I could see the court's perspective on that.

[00:56:32] Speaker 03:
Or maybe we should understand that you understood the record the same way defense understood the record.

[00:56:38] Speaker 03:
And that is that this was a preserved argument.

[00:56:41] Speaker 03:
And that the shift to felon in possession is something that's made on appeal, but was not made before the district court judge.

[00:56:49] Speaker 07:
Well, again, it wasn't overtly made for sure.

[00:56:51] Speaker 03:
Overly made.

[00:56:52] Speaker 03:
I mean, what was made and what the district court relied on was that this would be this very, very potentially toxic or potentially prejudicial, but certainly toxic evidence was going to be admitted subject to the government connecting it up

[00:57:17] Speaker 03:
to the argument that it was argued that this would show coercion, that he was someone who engaged in coercive levels of force.

[00:57:25] Speaker 03:
And the government promised, in limine and at trial, that it was gonna connect it up to show that the girls were aware of this incident, correct?

[00:57:37] Speaker 04:
Yes, do it.

[00:57:38] Speaker 03:
Okay, what evidence did the government ever have

[00:57:46] Speaker 03:
that the girls saw this incident?

[00:57:50] Speaker 07:
That the girls were aware of this incident?

[00:57:52] Speaker 07:
There is no evidence that I don't.

[00:57:54] Speaker 03:
Was there ever?

[00:57:54] Speaker 07:
I'm sorry?

[00:57:56] Speaker 07:
Was there ever?

[00:57:56] Speaker 07:
Not in the trial that I saw.

[00:57:59] Speaker 03:
No.

[00:57:59] Speaker 03:
And by the time this came on, Ms.

[00:58:01] Speaker 03:
Timmons testified near the end of the trial, correct?

[00:58:06] Speaker 07:
Yeah, I don't know exactly.

[00:58:07] Speaker 03:
CS had already testified, and the government didn't ask her.

[00:58:12] Speaker 03:
if she was aware of this incident, had even heard of this incident, let alone seen this incident.

[00:58:19] Speaker 03:
So the government right there with ZS on the stand, it didn't do what it said it would do.

[00:58:26] Speaker 03:
And every other witness pre-man never had any foundation laid for connecting this incident to the argument about use of coercive force against the girls.

[00:58:41] Speaker 05:
True.

[00:58:42] Speaker 03:
Yet the government, when Ms.

[00:58:43] Speaker 03:
Mann comes to testify near the end of the trial, goes ahead and puts it in knowing that the promise it made to the district court judge about connecting it up was not going to happen.

[00:58:58] Speaker 03:
It hadn't happened.

[00:58:59] Speaker 03:
The questions weren't asked of anybody, let alone the most material witness, ZS.

[00:59:04] Speaker 03:
It was nowhere in the grand jury testimony of THY that was read into the record.

[00:59:10] Speaker 03:
And as you've said, there was never any evidence in the record that did tie it up.

[00:59:14] Speaker 03:
And yet the government went ahead and put it forward.

[00:59:18] Speaker 03:
before the jury.

[00:59:19] Speaker 03:
What are we supposed to do with that?

[00:59:21] Speaker 07:
Well, there were two routes for admission pursuant to 404B relating to this incident.

[00:59:27] Speaker 07:
The first, as Your Honor has identified, was that the girl's knowledge would constitute direct evidence of the climate of fear.

[00:59:36] Speaker 07:
But the other route to admission for this 404B evidence, and was argued pre-trial,

[00:59:44] Speaker 07:
was the same rationale that was used with respect to Ashley Taylor.

[00:59:48] Speaker 07:
That is, it answered the question of whether the defendant, Lewis, acted knowingly with an intent to coerce, use force or threats of force.

[01:00:02] Speaker 07:
In this context, it showed that he did it both with respect to the victims, the minor victims, but also his underlings in the conspiracy, both Ashley Taylor and his wife, who was also a co-conspirator.

[01:00:18] Speaker 03:
So in fact, when you look at the... There's some offense here for coercing underlings that was charged?

[01:00:26] Speaker 03:
I don't understand how this evidence was relevant to the charges before the jury.

[01:00:33] Speaker 03:
He's a violent man who should be locked up.

[01:00:40] Speaker 07:
I don't think it's that simple.

[01:00:41] Speaker 07:
I think the 404B relates to, and this is the Getty's case from the Eighth Circuit.

[01:00:49] Speaker 07:
This was a 1591 prosecution.

[01:00:51] Speaker 07:
It involved prior acts of violence, physical assault, and a threat to kill his ex-girlfriend by the time of trial.

[01:01:01] Speaker 07:
And Getty said, the ex-girlfriend's testimony about the defendant's earlier use of force against her was relevant to the issue of the defendant's intent, which was a material issue at trial.

[01:01:12] Speaker 07:
So I think this was a second.

[01:01:15] Speaker 03:
I don't know all the details of that case right now off the top of my head, but it doesn't connect it up for me.

[01:01:21] Speaker 03:
How was this relevant to his intent to use force to coerce

[01:01:28] Speaker 03:
the girls into commercial sexual acts?

[01:01:32] Speaker 07:
Well, it showed that when you're asking the question, coercion was put in play.

[01:01:39] Speaker 03:
Coercion for a particular purpose, not does he coerce people to do other things.

[01:01:47] Speaker 03:
I mean, that's propensity.

[01:01:48] Speaker 03:
That's saying he's just a violent man.

[01:01:50] Speaker 03:
That is exactly the definition of propensity.

[01:01:53] Speaker 03:
How do you define propensity?

[01:01:58] Speaker 07:
That's the definition that I understand.

[01:02:00] Speaker 07:
I don't think that's what this was used for.

[01:02:04] Speaker 06:
I will say... Taking the government's theory is, if Lewis were in the presence of the two miners brandishing a firearm against his wife who was there, and then he said, this is what happens when you don't pay attention to me and do what I say.

[01:02:25] Speaker 06:
and he says that in the miner's presence to the miners, then I can see that's a theory about forcing coercion.

[01:02:34] Speaker 06:
I'm a coercive guy.

[01:02:35] Speaker 06:
I use coercion.

[01:02:37] Speaker 06:
You see how I'm doing this.

[01:02:38] Speaker 06:
Don't disobey me.

[01:02:40] Speaker 06:
Do what I need you to do.

[01:02:42] Speaker 06:
And then you may not need that kind of explicit connection made by Lewis himself.

[01:02:50] Speaker 06:
But I take it, is that roughly the government's theory?

[01:02:53] Speaker 07:
That was the first route of admission that I was articulating.

[01:02:57] Speaker 07:
Again, the second route of, I'm sorry, go ahead, Your Honor.

[01:03:00] Speaker 07:
No, go ahead.

[01:03:00] Speaker 07:
The second route to admission is a mirror image of what the child court did with respect to Ashley Taylor and that ruling preceded this one and it was, apologies,

[01:03:13] Speaker 07:
That's the July 12, 2022 PM transcript.

[01:03:19] Speaker 07:
At 54, the court considered violent acts against Ashley Taylor that were not necessarily known to the victims.

[01:03:30] Speaker 07:
And the court said,

[01:03:32] Speaker 07:
Taylor was Lewis's bottom, who was acting on his behalf because she was afraid of his violence.

[01:03:38] Speaker 07:
And then the court did a 403 balancing test analysis at that point.

[01:03:43] Speaker 07:
Again, that's page 54.

[01:03:44] Speaker 03:
You may have gone to Taylor's own liability.

[01:03:47] Speaker 07:
The rest be in a defense.

[01:03:50] Speaker 07:
Well, again, the government offered as proof of the mens rea relating to defendant Lewis, and that was the... Mens rea for what?

[01:03:58] Speaker 07:
Mens rea of defendant Lewis.

[01:04:00] Speaker 06:
For what?

[01:04:00] Speaker 06:
For which element?

[01:04:01] Speaker 06:
To show what?

[01:04:03] Speaker 07:
Intent to commit coercion, force, force of threats.

[01:04:08] Speaker 07:
For what?

[01:04:09] Speaker 03:
I'm sorry, I misunderstood.

[01:04:11] Speaker 03:
I'm sorry, I just didn't quite hear you.

[01:04:12] Speaker 03:
Intent to commit coercion for what?

[01:04:15] Speaker 07:
was a force force of threats.

[01:04:17] Speaker 07:
I'm a threat of forces.

[01:04:19] Speaker 03:
I'm sorry.

[01:04:19] Speaker 03:
The abstract.

[01:04:20] Speaker 07:
Uh no, it related to the defendant's activity in the course of this conspiracy.

[01:04:25] Speaker 03:
Okay.

[01:04:25] Speaker 03:
Um you know what?

[01:04:26] Speaker 03:
It's an incident with Ms.

[01:04:27] Speaker 03:
Manzaker.

[01:04:29] Speaker 07:
I'm sorry.

[01:04:29] Speaker 03:
When did the incident with Ms.

[01:04:30] Speaker 03:
Manzaker?

[01:04:32] Speaker 07:
Uh it was specified uh within the time frame in the conspiracy.

[01:04:36] Speaker 03:
No, it was specified as April 2019.

[01:04:39] Speaker 07:
Well, I believe that I I

[01:04:46] Speaker 03:
I don't, they never asked her the date.

[01:04:49] Speaker 03:
And the conspiracy didn't even start until the 25th of April.

[01:04:55] Speaker 07:
So the vast majority of April was not even part of the conspiracy.

[01:05:02] Speaker 07:
trial assistant at page 82 of the 517 transcript AM said she was confining it to the time frame of April 2019.

[01:05:11] Speaker 07:
But of course.

[01:05:11] Speaker 03:
That's not the conspiracy.

[01:05:13] Speaker 03:
Well, 24 days of April 2019 are not the conspiracy.

[01:05:16] Speaker 07:
Well, I understand.

[01:05:17] Speaker 03:
23.

[01:05:17] Speaker 07:
I honor a ballot.

[01:05:20] Speaker 07:
We know that.

[01:05:21] Speaker 07:
Conspiracy indictments don't always necessarily have precise dates.

[01:05:26] Speaker 03:
We pretty precise.

[01:05:27] Speaker 03:
We know the dates that were found.

[01:05:29] Speaker 03:
This one has a pretty precise one.

[01:05:31] Speaker 03:
Yeah, I happen to honor about second.

[01:05:33] Speaker 03:
Yeah, fall within this conspiracy.

[01:05:36] Speaker 03:
I

[01:05:36] Speaker 03:
I think it could.

[01:05:37] Speaker 03:
If he's violent on April 1st or 2nd.

[01:05:39] Speaker 07:
I think it could well, if we're talking about on or about.

[01:05:42] Speaker 03:
The government didn't tie this up.

[01:05:45] Speaker 03:
It didn't tie it up to the girls as it had promised the district court, the whole basis for letting it in.

[01:05:50] Speaker 03:
It's got no tie up to the conspiracy itself because it didn't ask the date, which would have been the obvious thing to do.

[01:05:57] Speaker 03:
In fact, it even argued that, wow, this was important.

[01:06:00] Speaker 03:
The fact that the gun was held to her head was how she would remember the date, but never asked her the date.

[01:06:06] Speaker 03:
This was, I think, as you said, to show propensity for coercive force.

[01:06:11] Speaker 03:
That's what you said.

[01:06:11] Speaker 03:
And that's just not admissible.

[01:06:15] Speaker 07:
For the record, I just want to be clear.

[01:06:17] Speaker 07:
I'm not conceding this was propensity evidence, if you're suggesting that my answer is reflect that.

[01:06:22] Speaker 07:
I want to make clear that's not what I'm doing.

[01:06:23] Speaker 03:
We asked you what it was relevant for when you said to use coercive force.

[01:06:27] Speaker 07:
The intent.

[01:06:28] Speaker 07:
That's intent.

[01:06:29] Speaker 07:
Intent to use coercive force.

[01:06:31] Speaker 07:
If I can, I would like to address the harmless part of this.

[01:06:36] Speaker 06:
Yeah, I want to hear that actually, but can I just, I want to make sure I understand this.

[01:06:39] Speaker 06:
So this, the provision says knowing or in reckless disregard of the fact that forced threats, forced fraud or coercion will be used to cause the person to engage in a commercial sex act.

[01:06:49] Speaker 06:
For this, for the gone evidence vis-a-vis mans, who is the person that's going to, that's

[01:06:57] Speaker 06:
that's the subject of the force, fraud, or coercion to cause them to engage in a commercial sex act?

[01:07:05] Speaker 07:
The subject is the victims.

[01:07:08] Speaker 07:
The minors?

[01:07:09] Speaker 07:
Yes.

[01:07:10] Speaker 07:
Not mans?

[01:07:12] Speaker 07:
No, but I think that would be right.

[01:07:15] Speaker 07:
Yeah, no.

[01:07:16] Speaker 07:
So the minors?

[01:07:17] Speaker 06:
Yes, yes, yes.

[01:07:19] Speaker 06:
So then just to understand the theory, the theory is that because he used a gun against mans,

[01:07:27] Speaker 06:
How does that bear on force, coercion, or fraud to cause the minors to engage in a commercial sex act?

[01:07:37] Speaker 07:
Well, I think it facilitated his ability to operate the conspiracy.

[01:07:42] Speaker 07:
That is, she was part of the cash app, part of the conspiracy.

[01:07:47] Speaker 07:
And in fact, later in her testimony, she made reference to the fact that she only did that because she was... I see.

[01:07:52] Speaker 06:
So it's forcing mans.

[01:07:56] Speaker 07:
Yes.

[01:07:57] Speaker 07:
And just as, I'm sorry, just as he forced Taylor to participate and work with him in the course of the conspiracy, that informs, I think, the intent analysis of 404B.

[01:08:12] Speaker 06:
So he used force against mans to enable the conspiracy that involved sex trafficking of the two minors?

[01:08:20] Speaker 06:
Yes.

[01:08:20] Speaker 06:
That's the second theory?

[01:08:21] Speaker 06:
Yes.

[01:08:23] Speaker 06:
OK, then on harmlessness.

[01:08:25] Speaker 06:
Sure.

[01:08:25] Speaker 06:
So what are the burdens on the government to establish harmlessness if it's an error?

[01:08:30] Speaker 07:
Sure.

[01:08:31] Speaker 07:
It didn't involve this substantial and injurious effect.

[01:08:35] Speaker 07:
I think we have several features of this case that demonstrate that wasn't what was going on here, and that this court can be confident.

[01:08:42] Speaker 07:
Number one, this was an eight-day trial.

[01:08:44] Speaker 07:
There were over 1,400 pages of testimony.

[01:08:47] Speaker 07:
This was 16 lines of transcript.

[01:08:51] Speaker 07:
Critically, it also wasn't mentioned in closing arguments, neither the government's initial opening or its rebuttal.

[01:08:58] Speaker 07:
More saliently, even in that, we have the acquittal of Mr. Lewis on one of the counts of the indictment.

[01:09:08] Speaker 07:
That suggests that the jury was not engaged in sort of a broad brush attack or engaged in propensity-based guilt or innocence adjudication.

[01:09:18] Speaker 07:
if they were considering him as just simply an evil man, they wouldn't have had an acquittal with respect to count 13.

[01:09:26] Speaker 07:
I would also say the jury heard plenty of other evidence regarding Lewis's violent nature.

[01:09:32] Speaker 07:
He choked Ashley Taylor, the testimony relating to that.

[01:09:38] Speaker 07:
I'm sorry.

[01:09:39] Speaker 07:
Oh, I'm sorry.

[01:09:40] Speaker 07:
He choked Ashley Tabler.

[01:09:42] Speaker 07:
And the testimony relating to that was he said to her, if you keep fucking up, I'll kill you.

[01:09:47] Speaker 07:
That's May 13 AM transcript 7576.

[01:09:52] Speaker 07:
He grabbed and threatened Jones and said, I'm going to shoot the whole shit up.

[01:09:58] Speaker 07:
That's page 117 of the 512 22 PM transcript.

[01:10:04] Speaker 07:
He also told Fowler that he'd arrange for a kidnapping to keep him quiet.

[01:10:09] Speaker 03:
How does this go to coercion of the minors again?

[01:10:17] Speaker 03:
Because ZS testified that she never saw this violence.

[01:10:21] Speaker 03:
So I get that there is conflicting testimony, right?

[01:10:25] Speaker 03:
Taylor says one thing, ZS says never saw, she never saw violence.

[01:10:29] Speaker 07:
Well, the testimony relating to the choking was that the victim, the minor saw that.

[01:10:34] Speaker 03:
I understand, but then ZS said she never saw violence and he was never violent towards her or THY that she had seen and she didn't see any of this violence against Taylor.

[01:10:47] Speaker 03:
So, I understand you get your evidence, but there's a clear conflict in the evidence, so that doesn't help so much with harmlessness, does it?

[01:10:55] Speaker 07:
I think it does.

[01:10:57] Speaker 07:
This evidence was not challenged.

[01:11:00] Speaker 03:
I was wondering whether it was challenged, whether it was evidence that the girls

[01:11:08] Speaker 03:
were aware of his threats related to this operation, to them or to this operation.

[01:11:17] Speaker 07:
And with the pieces of testimony I just cited, I believe the testimony indicated they were aware.

[01:11:23] Speaker 03:
What does the essay about whether she saw him engage in any of the violence acts you referenced?

[01:11:27] Speaker 03:
Obviously not the Mr. Fowler one.

[01:11:30] Speaker 07:
That might have conflicted with Taylor's testimony, but I don't think conflicts in testimony necessarily negate the harmlessness point that I'm making.

[01:11:41] Speaker 03:
I think it's really so much more important, doesn't it?

[01:11:45] Speaker 06:
There was also substantial evidence of... Can I just ask on all this evidence, let's suppose it's undisputed that the miners never knew about or saw any of this.

[01:11:58] Speaker 06:
I know you would resist that because there's at least conflicting evidence you'd say, but just as a matter of theory, if that was never something the miners were aware of, would it still be

[01:12:12] Speaker 06:
Would you still be making a harmless argument, or does your harmless argument contingent on accepting the proposition that the minors were aware of or saw?

[01:12:21] Speaker 07:
No, not at all.

[01:12:22] Speaker 07:
I mean, I think what this back and forth was reflective of is that I had cited that there were other instances of violence that the jury heard.

[01:12:33] Speaker 07:
And there is somewhat contradictory evidence relating to whether or not

[01:12:40] Speaker 07:
the girls saw that the defendant choked Taylor.

[01:12:43] Speaker 01:
Isn't it correct that your harmlessness argument that you're making right now addresses the idea that rule 403 was violated and there was unduly prejudicial

[01:12:55] Speaker 01:
evidence about his violence that might have influenced the jury.

[01:12:58] Speaker 01:
You're saying that that is really cumulative of all the properly admitted evidence that showed he was extremely violent.

[01:13:06] Speaker 01:
I thought that was- That's what I'm getting at.

[01:13:09] Speaker 01:
And that's why- Not the knowledge of the victims, which is a separate issue, which maybe you could address.

[01:13:15] Speaker 01:
But what you're arguing right now is saying to the extent that Rule 403 was violated and there was

[01:13:23] Speaker 01:
inadmissible to prejudicial evidence of violence that was cumulative of lots of other evidence properly admitted of violence.

[01:13:30] Speaker 01:
Is that right?

[01:13:31] Speaker 06:
That's exactly it, albeit much more artfully.

[01:13:35] Speaker 06:
But you have to show that it was harmless as to the jury's finding of guilt, including the forced coercion or fraud element, right?

[01:13:47] Speaker 06:
Yes.

[01:13:48] Speaker 06:
And what

[01:13:50] Speaker 06:
Is your theory that even if the victims, the minor victims didn't know about any of this, that it still shows harmlessness?

[01:13:59] Speaker 07:
Yes, yes, again, because from our perspective, the citations I've just provided was properly admitted evidence that the jury heard otherwise.

[01:14:10] Speaker 07:
And so if you're asking the question of how can we be comfortable with the idea that this jury wasn't influenced by this testimony, we can consider whether or not they had

[01:14:22] Speaker 07:
pieces of testimony that were of the same ilk.

[01:14:26] Speaker 07:
And we know they had testimony that was of the same ilk when we look at the descriptions of the assault on Taylor, the descriptions of the assault on Jones, and the defendant's own admissions when he told Fowler that to keep a witness

[01:14:40] Speaker 07:
he had kidnapped somebody previously and in fact was a member of the Crips.

[01:14:47] Speaker 07:
So I think that's just a piece of the harmless error analysis here.

[01:14:50] Speaker 07:
I want to make that clear.

[01:14:51] Speaker 07:
The fact that it wasn't mentioned in the closings that this was a lengthy trial.

[01:14:58] Speaker 07:
tiny bit of testimony, wasn't emphasized.

[01:15:01] Speaker 07:
We have the acquittal on count 13.

[01:15:03] Speaker 07:
And we do have a limiting instruction, which if this court decides this was improperly admitted, we know that the court instructed the jury, this is at the May 19th transcript, page 42, that

[01:15:17] Speaker 07:
You've heard evidence of other acts not charged in indictment.

[01:15:22] Speaker 07:
You may consider them for only the limited purpose that he acted knowingly.

[01:15:26] Speaker 07:
So we already have them not being able to use it just for guilt or innocence.

[01:15:32] Speaker 07:
And then I would be remiss if I didn't.

[01:15:36] Speaker 07:
at least go through some of the powerful corroborating evidence that supported both the minor victim's testimony and Taylor's testimony.

[01:15:46] Speaker 07:
We have the loyalty contract that the defendant wrote that was on his computer.

[01:15:51] Speaker 07:
We have the handwritten notes of the rules he had for the victims that were found in the trunk of his Cadillac.

[01:15:58] Speaker 07:
We have contemporaneous texts from Taylor to the girls

[01:16:03] Speaker 07:
quoting Lewis.

[01:16:04] Speaker 07:
One, for example, said, even though the girls had claimed they were sick and couldn't take commercial sex acts, she said, you could only sleep if it was OK with Lewis.

[01:16:16] Speaker 07:
In another case, they asked if they could sleep.

[01:16:20] Speaker 07:
Taylor responded, Lewis said there was not enough money being generated.

[01:16:24] Speaker 07:
That's exhibit 115B.

[01:16:27] Speaker 07:
We also have the cooperator Fowler, who was in the jail cell with Lewis for, I think, a good month.

[01:16:36] Speaker 07:
And Lewis revealed many details of the conspiracy.

[01:16:42] Speaker 07:
He talked about the loyalty contract to Fowler.

[01:16:45] Speaker 07:
He talked about the cash app transactions.

[01:16:47] Speaker 07:
He showed him paperwork for that.

[01:16:49] Speaker 07:
He even showed him paperwork relating to the motels.

[01:16:53] Speaker 07:
In addition, we have the stealth site location information, which corroborated Taylor and the victim's testimony relating to the travels of Jones and Lewis.

[01:17:05] Speaker 07:
We also have motel receipts in the defendant's name.

[01:17:08] Speaker 07:
We have cash app transactions that were admitted into evidence.

[01:17:12] Speaker 07:
And then we even.

[01:17:12] Speaker 03:
I think a lot of this that you're talking about now goes to whether he was involved in

[01:17:20] Speaker 03:
the commercial sex activities, that's just a separate question from whether he was coercing, engaged in coercion.

[01:17:30] Speaker 03:
So I mean, I think that's all your travel, he had all the financial information, all that kind of stuff, definitely goes to that, but I'm not sure it goes to this coercion question.

[01:17:44] Speaker 07:
Well, the loyalty contract, just to pick an example, sorry.

[01:17:47] Speaker 03:
But then again, you got to the testimony.

[01:17:48] Speaker 03:
They didn't feel they had to sign it.

[01:17:50] Speaker 03:
They didn't feel it bound them to anything.

[01:17:52] Speaker 03:
So sure.

[01:17:55] Speaker 03:
But again, that goes to what's in this business.

[01:17:59] Speaker 03:
I think when the victim himself says didn't feel pressure to me, I can sign it or not.

[01:18:07] Speaker 07:
Well, it was a constellation of factors here.

[01:18:11] Speaker 07:
The loyalty contract was one element, the omnipresence of the gun, the assaults that I've already mentioned on Taylor and Jones that were known to the children.

[01:18:27] Speaker 03:
Whether they were known is a disputed fact.

[01:18:31] Speaker 03:
I don't vote for harmlessness.

[01:18:32] Speaker 03:
We don't take the view in favor of the government in deciding whether something the government did that was mistaken.

[01:18:41] Speaker 07:
I think even in the context of harmlessness, all reasonable inferences should be drawn in favor of the government.

[01:18:48] Speaker 03:
Is that our case law?

[01:18:50] Speaker 03:
Because we have jury verdicts, I think that's... No, but the whole point is that the government's error, if we agree that that's what happened here, or the district court's error, whichever way you look at it, we're trying to decide whether it was prejudicial

[01:19:09] Speaker 03:
we have to look at the whole record and whether it could have had an impact on the outcome of the case.

[01:19:15] Speaker 03:
And I'm not aware of any case that says, in doing so, we assume hotly contested factual disputes in favor of the party responsible for fear.

[01:19:26] Speaker 07:
I think my point is more limited.

[01:19:28] Speaker 07:
You can't dispense with the evidence, but I suppose you can limit its value if it was in fact.

[01:19:35] Speaker 03:
Not limited.

[01:19:35] Speaker 03:
If you go, well, it actually cuts the other way if what the argument is bears on something that is in fact factually contested.

[01:19:43] Speaker 03:
And so the improper evidence could have tilted the jury's view on that disputed question of fact.

[01:19:54] Speaker 07:
I think that's a proper way to analyze harmlessness.

[01:19:58] Speaker 07:
But again, that's just a piece of the puzzle that we have for harmlessness here.

[01:20:06] Speaker 03:
Colleagues, are you done on this?

[01:20:08] Speaker 03:
Yeah.

[01:20:10] Speaker 03:
Could you talk about the reckless disregard instruction?

[01:20:15] Speaker 03:
Certainly, Your Honor.

[01:20:17] Speaker 03:
So this instruction that was given has no precedent.

[01:20:20] Speaker 03:
It doesn't match the Judge Sands instruction in some pretty critical ways.

[01:20:27] Speaker 03:
It doesn't match the background, well-established, long-standing rule of what reckless disregard means in the criminal context at all.

[01:20:35] Speaker 03:
It totally omits subjective inquiry.

[01:20:39] Speaker 03:
So how was this not, and given

[01:20:45] Speaker 03:
how contested the question of coercion was.

[01:20:51] Speaker 03:
How was this not a harmful error?

[01:20:54] Speaker 03:
How was it not an error that was harmful and prejudicial in a plain error sense?

[01:21:00] Speaker 07:
In a plain error sense, I think most fundamentally, I think the prong too is, I'm sorry.

[01:21:07] Speaker 07:
I think prong two has particular resonance here.

[01:21:12] Speaker 07:
I know of no authority that has defined reckless disregard in the 1591 context.

[01:21:23] Speaker 07:
This one wasn't a mirror image of Judge Sands' instruction, but it was very close to it.

[01:21:30] Speaker 03:
No, with its pretty serious deviations, high probability and highest probability.

[01:21:36] Speaker 03:
Just in plain English, material difference.

[01:21:40] Speaker 03:
And the fact at issue, the fact at issue, the fact at issue, and the fact, I think, must have kept changing through that sentence.

[01:21:46] Speaker 03:
Or I don't know if the jury even knew which fact or fact they were supposed, and they were told just one fact.

[01:21:52] Speaker 03:
When there were multiple facts that had to be resolved in that instruction, that's pretty important.

[01:21:59] Speaker 03:
errors.

[01:22:00] Speaker 07:
Well, even if we discount, and I don't think you should, but even if you could discount Judge Sands, my appointment has not- I'm not discounting Judge Sands.

[01:22:08] Speaker 03:
I'm discounting the instruction that was given here that was material departure from even Judge Sands.

[01:22:15] Speaker 03:
It departed from everything that has ever been before as a reckless disregard instruction.

[01:22:21] Speaker 07:
Uh, it was, there were, there was a variation for sure.

[01:22:26] Speaker 07:
Um, but again, um, but again, I understand plein air stand for the concept that unless you can show, um, a settled rule of law, um, that there's a settled rule of law as to what reckless disregard means in the criminal law context.

[01:22:42] Speaker 07:
Well, again, I don't think that's what the cases reflect.

[01:22:45] Speaker 07:
And that's what we've already in our brief.

[01:22:47] Speaker 07:
And in fact, if you look at the farmer's case, the farmer said, this is 511 US at 836.

[01:23:01] Speaker 07:
Recklessness is not self-defining.

[01:23:04] Speaker 07:
So I think if we are accepting the proposition that they're- Of course, tell us what it means in the criminal law context.

[01:23:10] Speaker 07:
I can.

[01:23:12] Speaker 03:
Well, generally... We have cases saying what it means in the criminal law context.

[01:23:18] Speaker 07:
I'm sorry, do I?

[01:23:19] Speaker 03:
We have case... No, sorry.

[01:23:20] Speaker 03:
This court has case saying what its longstanding background meaning is in the criminal law context.

[01:23:27] Speaker 03:
Supreme court said the same thing in Farmer.

[01:23:29] Speaker 03:
And there's nothing in the tax of 1591 that I hear the government arguing

[01:23:35] Speaker 03:
pointed in the other direction, but even if we say at most there's two options, there's the long-standing criminal definition, criminal law definition, or there's this Judge Sands, call it a definition for purposes of an instruction, but we had neither one here.

[01:23:56] Speaker 03:
And coercion was a very contested issue here, and the evidence is, you know, a lot of the evidence that was used is troubling in its own right, and it's given ZS's own testimony.

[01:24:08] Speaker 03:
It's a really close call.

[01:24:09] Speaker 03:
I'm not saying the government couldn't have won on a proper instruction, but we have an instruction that doesn't fit anything.

[01:24:18] Speaker 03:
Are you aware of any court anywhere that has used this?

[01:24:22] Speaker 03:
construction from this case, for reckless disregard.

[01:24:27] Speaker 07:
I think I cited two in the 1324.

[01:24:29] Speaker 03:
Not the Judge Sands one.

[01:24:32] Speaker 03:
The one that was used in this case.

[01:24:33] Speaker 07:
I don't know of any.

[01:24:35] Speaker 03:
There's no one that's ever been used.

[01:24:37] Speaker 07:
But in the 1324 context, there is similarity.

[01:24:40] Speaker 03:
I may follow the Judge Sands.

[01:24:42] Speaker 03:
Yes.

[01:24:42] Speaker 03:
But I'm not talking about the Judge Sands one, because this one is not.

[01:24:46] Speaker 07:
Again, I think it was very close.

[01:24:49] Speaker 07:
And if we're talking about variations at the edges, then I think we're pretty solidly in the plain error context, not showing clear or obvious error.

[01:24:58] Speaker 03:
If reasonable minds can- If there were a legal rule that the government had to show a high probability that something happened, and the court instructed the jury that you must find that it happened by the highest probability

[01:25:13] Speaker 03:
That matter to the government?

[01:25:15] Speaker 07:
Well, I think that excises.

[01:25:16] Speaker 07:
That matter to the government?

[01:25:17] Speaker 07:
I think that excises.

[01:25:18] Speaker 03:
If that matter to the government, if the law was high probability, that's all the government has to show, and a jury was instead told, you must find it by the highest probability, would that be a difference, a material difference in the government's view between the law and the instruction?

[01:25:35] Speaker 07:
I'm not sure I would say it was.

[01:25:37] Speaker 07:
Really?

[01:25:38] Speaker 07:
I don't see the significance.

[01:25:40] Speaker 07:
Between high and highest.

[01:25:42] Speaker 03:
I don't.

[01:25:42] Speaker 03:
More probable than not or beyond a reasonable doubt.

[01:25:44] Speaker 03:
Not much difference.

[01:25:45] Speaker 07:
Um I think um.

[01:25:47] Speaker 03:
Highest probability is is is as high as can possibly be.

[01:25:50] Speaker 03:
That's like almost like a reasonable.

[01:25:51] Speaker 03:
I'm not saying it's the same thing but it's a very high standard almost like reasonable doubt.

[01:25:57] Speaker 03:
High probability.

[01:25:57] Speaker 03:
It's just more likely than not.

[01:26:01] Speaker 07:
Uh you know again.

[01:26:02] Speaker 03:
Even less than more likely than not.

[01:26:03] Speaker 03:
I'm not sure.

[01:26:05] Speaker 07:
Again, we disagree about this, but if we're talking about plain error and clear obvious error, number one- The fact that issue, the fact that issue, the fact that issue, that's not Judge Stan's instruction.

[01:26:20] Speaker 07:
If I could turn to prongs three and four, because I don't think the critical question here is whether or not this was a close case on coercion.

[01:26:27] Speaker 07:
I don't think it was.

[01:26:29] Speaker 07:
I think the critical question here is whether or not there was any sense that

[01:26:35] Speaker 07:
this defendant was somehow or another a big player in the larger conspiracy, where the jury would have to beckon to the notion of an ostrich sticking its head in the sand.

[01:26:49] Speaker 07:
And that's the analogy used by the Carson decision out of the Seventh Circuit.

[01:26:54] Speaker 07:
This would have more resonance

[01:26:58] Speaker 07:
The government had even mentioned reckless disregard in its closings.

[01:27:02] Speaker 07:
It didn't.

[01:27:02] Speaker 07:
The primary theory here.

[01:27:04] Speaker 06:
Is that so?

[01:27:04] Speaker 06:
I was going to ask that question.

[01:27:06] Speaker 06:
Was reckless disregard part of the government's argument?

[01:27:10] Speaker 06:
No.

[01:27:11] Speaker 06:
The jury obviously could have found it anyway, could have found it on that theory.

[01:27:14] Speaker 06:
But in terms of the way that was presented to the jury by the government.

[01:27:18] Speaker 07:
It was presented to the jury in one way.

[01:27:22] Speaker 07:
either you believe that this man was the main player or you didn't believe that this man was a main player.

[01:27:29] Speaker 07:
Reckless disregard just simply didn't come into play.

[01:27:32] Speaker 07:
And that's, I think, the Carson's analysis here is when you have significant evidence relating to

[01:27:42] Speaker 07:
the actor himself who is either doing the forcing or the threatening or the coercion, then you don't have to beckon to reckless disregard as a lesser standard of proof relating to mens reta.

[01:27:55] Speaker 07:
And I think Carson is directly on point in this regard.

[01:28:00] Speaker 07:
It was a 1591 case.

[01:28:02] Speaker 07:
It was an erroneous instruction that they found there, but they said,

[01:28:05] Speaker 07:
That makes no difference except in those cases where you have characters like the driver who just drops off the girls at a designated point.

[01:28:14] Speaker 07:
And that is not this.

[01:28:16] Speaker 07:
The jury would have had to go off on a frolic and a detour to rely on any purportedly erroneous instruction relating to reckless disregard.

[01:28:26] Speaker 03:
Did Carson not predate Congress's amendment of the statute to change what reckless disregard meant?

[01:28:33] Speaker 07:
I don't know the answer to that, I apologize.

[01:28:36] Speaker 07:
I thought Carson dealt with a reckless disregard, erroneous instruction.

[01:28:44] Speaker 03:
It did, but it was before Congress amended the statute to resolve what may have been a circuit conflict or confusion on a different aspect of reckless disregard.

[01:28:55] Speaker 07:
But I think the analysis still holds.

[01:28:57] Speaker 07:
If they conclude their reckless disregard instruction was erroneous, but they nonetheless say it didn't have an impact under the prongs three and four, I think that analysis applies here.

[01:29:07] Speaker 06:
And then there's one aspect of the sentencing at least that, if we can go to that, there's one aspect of the sentencing at least as to which the government doesn't dispute that findings need to have been made that weren't.

[01:29:25] Speaker 06:
and so I'm right about that right?

[01:29:29] Speaker 07:
I'm sorry I missed the front end of your question.

[01:29:31] Speaker 06:
There's one aspect of the sentencing as to which the government does does not dispute that findings needed to have been made but weren't.

[01:29:38] Speaker 07:
I think we said remand may be appropriate and

[01:29:43] Speaker 07:
And in that respect, I want to pause here if I could and just grab 20 seconds of the court's time.

[01:29:48] Speaker 07:
Something that wasn't apparent to me when I was writing the brief, but as we were getting ready for argument, was brought to my attention.

[01:29:55] Speaker 07:
And I think it's just important.

[01:29:56] Speaker 07:
This court, of course, has an independent duty to do a harmlessness analysis.

[01:30:01] Speaker 07:
But when you look at the base offense level vis-a-vis the final adjusted offense level,

[01:30:08] Speaker 07:
I would note that even on the adjustments that my opponent challenges, we would still come out to a 43 adjusted defense level.

[01:30:24] Speaker 07:
And so I read the calculations to stand for the proposition that we're not in a different guideline range category.

[01:30:33] Speaker 07:
We're in a similar guideline range category.

[01:30:36] Speaker 07:
I bring this to the court's attention.

[01:30:38] Speaker 03:
That's true.

[01:30:39] Speaker 03:
If there's remand on all three, the computer leadership and vulnerable victim, I think you're out of the life sentence and into, it's 360 to life, but there is, you're in a range that is not automatically life.

[01:30:54] Speaker 07:
Well, my opponent, I don't think, is disagreeing with the notion that at least a two-level adjustment for leadership would be appropriate.

[01:31:03] Speaker 07:
So I'm only saying the two points for computer, the two points for vulnerable victim, and the two points for leader enhancement would still get you to 43.

[01:31:11] Speaker 07:
And that puts you in the same guy-high range.

[01:31:14] Speaker 07:
But again, I bring this to the core.

[01:31:15] Speaker 03:
You took two votes for computer, but you agree that we have to remand for fact-finding on that.

[01:31:20] Speaker 03:
Two points for leadership, but the district court didn't make findings about how many people were let here.

[01:31:25] Speaker 03:
And then two points for vulnerable victim.

[01:31:29] Speaker 03:
But even if we had a test for what vulnerable victim means, you have to find.

[01:31:35] Speaker 03:
And there were no district court findings that Mr. Lewis was aware of the facts that made these girls vulnerable, even if we look at the facts that are common too.

[01:31:48] Speaker 03:
sex, minor sex trafficking victim.

[01:31:52] Speaker 07:
No, I agree that the court did not make findings in fact relating to the vulnerable victim.

[01:31:57] Speaker 07:
On that note, as my opponent was arguing, one question related to whether this should be a global remand or a more nuanced remand.

[01:32:08] Speaker 07:
McCance, I think, speaks to this.

[01:32:10] Speaker 07:
McCance went so far as to say that although the parties urge us to rule on the proper interpretation of this, in that case, sophisticated means enhancement in the guidelines, it would be inappropriate for us to do so in the absence of more specific factual findings by the district court.

[01:32:28] Speaker 07:
And excuse me, that's 434 F3rd at 564.

[01:32:32] Speaker 07:
So at least in the context of McCants, a case we cited relating to when you do have important missing factual findings on pivotal sentencing factors, McCants says, well, we shouldn't be in the process.

[01:32:47] Speaker 07:
I read McCants sample.

[01:32:48] Speaker 07:
We shouldn't be in the manner of issuing advisory opinions on the nature of the enhancement, because I read McCance's campaign proposition.

[01:33:00] Speaker 07:
It may be mooted out if the court doesn't even find the vulnerable victim enhancement.

[01:33:10] Speaker 06:
Any more questions?

[01:33:13] Speaker 01:
I had just one comment.

[01:33:15] Speaker 01:
I think that this sentence was problematic.

[01:33:18] Speaker 01:
because the district court, after hearing lengthy allocutions from both sides, did not address the arguments that were made by the defense or the government when it

[01:33:31] Speaker 01:
gave its sentence.

[01:33:33] Speaker 01:
And I just want to note that the government has an obligation to also make a record here.

[01:33:39] Speaker 01:
And I don't see why the prosecutor didn't say, your honor, we'd asked for the record that you make some factual findings on issues A, B, C, and D. We've got the defense attorney doing that.

[01:33:51] Speaker 01:
I see nothing from the government doing this.

[01:33:54] Speaker 01:
And I just don't understand why the government is not protecting the record and making a record

[01:33:59] Speaker 01:
to support a conviction that it fought hard to achieve.

[01:34:04] Speaker 07:
Well, I can assume the government.

[01:34:07] Speaker 07:
I haven't discussed this with anybody, but I can assume the government was relying on its own pleadings relating to these were hotly contested issues for sure.

[01:34:15] Speaker 01:
So you're defending this.

[01:34:16] Speaker 01:
You think that this is an appropriate.

[01:34:19] Speaker 01:
a strategic or legal performance by an AUSA at a sentencing hearing after making allocution and hearing the defense arguments and seeing a record that clearly is going to go up in appeal.

[01:34:32] Speaker 01:
and probably going to get reversed because there are no factual findings that the AOC should sit there mutely?

[01:34:38] Speaker 07:
I'm just suggesting that we could maybe ascertain why there weren't more vocal objections.

[01:34:46] Speaker 01:
I just don't see why you would defend this.

[01:34:48] Speaker 01:
I'm only making this comment for future reference for the government.

[01:34:55] Speaker 07:
Thank you, counsel.

[01:34:58] Speaker 07:
We would ask that you affirm the judgment and conviction.

[01:35:01] Speaker 07:
Thank you, Your Honor.

[01:35:08] Speaker 06:
Mr. Jones, we'll give you two minutes for a rebuttal.

[01:35:24] Speaker 05:
Well, the only issue I want to make, since this is rebuttal, the only issue I want to make is with respect to when my client was involved in the alleged conspiracy.

[01:35:36] Speaker 05:
She got involved April the 26th and was out April the 27th.

[01:35:42] Speaker 05:
Why that is important is because the loyalty contract that came through on her phone, that was presented on April the 27th before she went to Greenbelt

[01:35:54] Speaker 03:
the young people and after both after she had been banished because when she came back when nothing worked out I don't see how that helps she was aware of the loyalty contract he was going to use with these girls that she said wanted to work and she was bringing to him for that work and she's seen the loyalty contract I just don't know how you can say she was divorced from what happened with those girls as part of his trafficking of them

[01:36:23] Speaker 03:
Well, it's clear that the contact says, OK, here's what's going to happen when you bring them here.

[01:36:27] Speaker 03:
Here's how I'm going to get them work.

[01:36:29] Speaker 03:
And here's here's what I'm going to require of them.

[01:36:32] Speaker 03:
It didn't mean driving on up to take them to him twice.

[01:36:36] Speaker 03:
She takes them to them and then she goes off to Greenbelt and brings them right back to him.

[01:36:40] Speaker 05:
And nothing happened in Greenville because she stopped it, at least according to the evidence, because she stopped it.

[01:36:46] Speaker 03:
And because she stopped it, she was- They didn't keep driving and take the girls away from Mr. Lewis.

[01:36:51] Speaker 03:
She had the loyalty contract.

[01:36:52] Speaker 03:
She knew Mr. Lewis.

[01:36:53] Speaker 03:
She knew what he did.

[01:36:54] Speaker 03:
That's why she took them to them for work.

[01:36:57] Speaker 03:
And so I just don't quite understand how that allows her to sort of wash her hands of this, of what happened afterwards.

[01:37:04] Speaker 05:
Well, that time she was threatened with physical violence to herself, and she elected to do the rest of it.

[01:37:13] Speaker 03:
I'd peel out from there for then, sure.

[01:37:15] Speaker 03:
But that doesn't mean she's not responsible for what happened.

[01:37:19] Speaker 03:
Or part of the conspiracy, I should say, not responsibility.

[01:37:21] Speaker 03:
Responsibility has many forms in a case like this, many responsible people.

[01:37:25] Speaker 03:
But she's part of that part of the conspiracy.

[01:37:29] Speaker 05:
how would this conspiracy shifted from there?

[01:37:32] Speaker 05:
Because at that juncture, they were not going in any hotels.

[01:37:35] Speaker 05:
They weren't staying in hotels.

[01:37:36] Speaker 05:
And they did immediately leave there and go to the Motel 6 and then stay there for possibly four days.

[01:37:44] Speaker 05:
And after they went to the condo lodge.

[01:37:46] Speaker 05:
So that...

[01:37:48] Speaker 05:
had nothing to do with her because that's when they met the people and they were having the commercial sexual acts.

[01:37:56] Speaker 05:
There were none done while she was there or her getting any funds from that, participating in it of the like.

[01:38:05] Speaker 05:
She was out of it and vanished.

[01:38:11] Speaker 06:
Okay, let me make sure my colleagues don't have additional questions for you.

[01:38:15] Speaker 06:
Thank you, Mr. Johnson.

[01:38:16] Speaker 06:
All right, thanks.

[01:38:23] Speaker 06:
Samillion will also give you two minutes for rebuttal.

[01:38:26] Speaker 02:
Thank you, Your Honor.

[01:38:27] Speaker 02:
We've been here for a long time, so I don't want to keep us here too much longer.

[01:38:30] Speaker 02:
But I just want to note the government has raised a new argument at the podium about harmlessness as sentencing.

[01:38:37] Speaker 02:
And I would just note that it's this idea about the two points not affecting the guidelines range is something that's been waived because it's not been briefed.

[01:38:44] Speaker 02:
You're not supposed to bring it up for the first time at the podium.

[01:38:47] Speaker 02:
And I'd also just note that

[01:38:49] Speaker 02:
notwithstanding that fact, Mr. Lewis received a two-point enhancement for obstruction of justice based on the acquitted conduct related to Mr. Fowler and the guidelines range has since been amended and on remand we would, you know,

[01:39:05] Speaker 02:
raised the argument that the guidelines have changed and those two points didn't apply.

[01:39:09] Speaker 02:
So even then, this issue is irrelevant given that, you know, on remand we're going to be talking about a different guidelines range.

[01:39:16] Speaker 02:
So that is sort of the main point I had.

[01:39:19] Speaker 02:
If there are other questions from your honors, I'm happy for them.

[01:39:24] Speaker 06:
Thank you.

[01:39:24] Speaker 06:
Thank you, counsel.

[01:39:26] Speaker 06:
Thank you to all counsel.

[01:39:27] Speaker 06:
We'll take this case under submission.