Oral argument — United States v. Brittany Jones

Case number 22-3035 et al. United States of America v. Brittany Jones also known as Brittany Elise Nancy Jones et al. Mr. Jones for Fallon Brittany Jones, Ms. Milligan for Fallon Willis Lewis, Mr. Goodhand for the Eppley. Good morning counsel. Mr. Jones please proceed when you're ready. Thank you. Good morning. May it please the court. I'm Axel Jones and I represent Brittany Jones, the appellate in this particular case. This case focused on several issues. One of the issues that we're more concerned about is the variance in the indictment. As the court is aware from reading our pleadings that in this case there was an allegation, well there was a jury returned a verdict in which my client was found guilty of a conspiracy. Conspiracy and indictment alleged that have taken place on April the 19th, April the 25th through May the 19th. The evidence in the case showed that Ms. Jones was assuming argument though she was involved in the conspiracy at all. Her involvement took place in a shorter period of time. Her involvement only included April the 26th and April the 27th. In that particular time my position is that there were multiple conspiracies here. What happened was Ms. Jones is alleged to have met the two victims in this particular case on April the 26th and ended her involvement with him on April the 27th when she was physically threatened and forced or banished from the enterprise. At that particular time there was uncertainty as to what was going to take place although the overwhelming indication was that there were or there was going to be some sort of sexual trafficking or maybe even strip parties but there were two people involved or two victims involved were going to be involved in that. However, it was an incident in which Brittany Jones was instructed to transport the individuals to a location and nothing took place at that particular location. Because of that Brittany Jones was banished from the organization. After that what happened was that the individuals were transported to a hotel. In that hotel there were sexual acts that were performed for customers. Brittany Jones wasn't there. She wasn't involved. She had been banished from the group. All that evidence came out in trial. Next what came out is after that first stint at a hotel there was another stint at a hotel and then subsequent to that the individuals left or escaped and that was approximately May the 11th when that transpired. Now our position is all the evidence came through at trial talking about what happened at the hotels, who was involved in it, and our position is that's the variance in the in the conspiracies here. It was one conspiracy in which Brittany Jones may allegedly been involved in but a separate conspiracy in which she was banished outside of it and that's what transpired here. The record shows that Ms. Jones was had had ZS and THY there as I think she said girls who wanted to work and she 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 and then drove them to Mr. Lewis 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 and it was only after that fell through 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. Am I reading the facts correctly? Yes I would agree but it's something to add to that yes she did come in contact with them met with Mr. Lewis and they were supposed to do something at the residence involving where Mr. Lewis is at and that didn't work out. Then there was a customer that was supposed to meet one of the young ladies at Greenbelt they called Ms. Jones to take them there she went there she didn't like how the situation was that didn't work out they came back and she explained that to Mr. Lewis who became upset that it didn't work out and that Brittany Jones was one of the reasons. I understand that she's upset and then she's like okay goodbye but she 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 and made a first run out to Greenbelt with them that went so she made a judgment call brought them back to Mr. Lewis. So at a bare minimum she was even if we assume that we had two series of events she was the bridge between the two and she's the one who maybe performed most significant act in instigating the sexual mistreatment of these girls by bringing them to Mr. Lewis and telling him what he could do with them. Well it's unclear whether they were going to have commercial sexual acts at first when she brought in Mr. Lewis or they were going to be involved in she told him they were looking for work right which also also could involve striptease because they were talking about having they were talking about stripping as well so that it was unclear exactly what however I would I must agree that going to Greenbelt there was going to be some at least there was thought of commercial sexual activity however there was no indication all of them stayed in a hotel having people come to the hotel all that happened next that's a totally different enterprise where she was already where she was vanished from and given that that overlap had nothing to do with Brittany Johnson that's what the variances in the conspiracy because it was became a different operation a different term it's almost as if you and I were going to be involved as partners in the business you bring the supplies to the view person take care of supplies I'm the marketing person or something to you don't like the way my marketing is going you you terminate the marketing you get someone else you do some other marketing I don't get money from I'm not involved in your enterprise anymore just like miss Jones wasn't involved in the enterprise and mr. Lewis subsequently took so mr. Jones conspiracy law tends to be very broad it's very encompassing of a lot of different time periods and and people you know it seems to me that you're asking us to make new law here that will make conspiracy harder to prove that will it just this is not consistent with my understanding of how conspiracy law works because you know sometimes we see cases but 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 it's still one conspiracy I just don't see how your theory fits in with general conspiracy law well she was forced out it's almost a withdrawal this withdrawal before they didn't argue withdrawal but also withdrawal is a very high standard no I understand but she was banished out of the conspiracy at that particular time if there were because we're asking us to make a ruling that in conspiracy law generally if somebody is banished or out they're not part of the conspiracy even though they were in it to begin with I just don't understand what you're asking for here and what that would do to our law about conspiracy generally well the facts here would I mean the facts here would indicate that this no dispute she was banished she was put out she was forced out there's no dispute with respect to that that's not I don't think that's an uncommon thing like just in the in the world of conspiracies there's so many of them they last for a long time people come in and out of them all the time and then I don't think we've ever held that you know under these circumstances you're you're not in a conspiracy or you're not liable for the part of the conspiracy you were there for which may be liable for the partners conspiracy you here for but in this particular case it's clear that the conspiracy had evolved or a changed here from that's what I'm saying I just don't think that that's unusual I think a lot of conspiracies evolve over time some of them last decades I understand that but the fact scenario here is somewhat different in the system we not talking about a drug case or something along those lines we're talking about but our holding would apply to all conspiracies whatever you ask us to hold it's going to apply to all conspiracies and I just don't see how this fits well it would seem that it would be appropriate given the fact that Brittany Jones had nothing to do with anything with respect to the hotel situation that could be could have been addressed with respect for the proper jury instruction indicating that that's not how conspiracy law works is it I mean there's an overarching goal that everybody is involved in the trafficking of these minors and your clients role was soliciting them bringing them transporting them 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 it would have it would have been different because in this particular case she was supposed to be part of the conspiracy opposed to receive some of the proceeds at least that's what the testimony was and this is a place 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 and that's one thing that's a bit different because we know she was not supposed to be involved in that separate conspiracy that's what we wish that's what we say that's clearly the separate proficiency is clearly various in this particular case with respect to that particular stirs the end we believe all the evidence generated on that is it's extremely prejudicial to miss Jones make sure my colleagues don't have additional questions for you thank you we'll give you a little bit of time for rebuttal we're having a clock malfunction so we up here can look at that clock and then Srothmore can you give the council the iPad we'll put in we'll put an iPad up at the left turn so you can see the time remaining for additional council say all right thank you thank you thank you it's not may please the court good morning your honors 40 million on behalf mr. Lewis I'd like to reserve two minutes for rebuttal mr. Lewis received a fundamentally unfair trial and sentence it was fundamentally unfair because the district court may replete evidentiary errors one of which the government admits to that combined create a prejudicial error requiring reversal gave a plainly erroneous jury instruction and it abdicated its 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 I'd like to start with the trial errors but I of course welcome questions on all issues I would like to begin with the district courts rule 16 error 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 the government admits that this is there I know how they tell the defense was prejudiced by that because no record was made as to what the cross-examination would have been so a government to show harmlessness the burden is not on defense counsel there's just nothing in the record though to show what what the harm was because we don't know what that cross-examination would have been first of all I'm not sure that's the case but I so what what what would the cross-examination have been and where is that in the record 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 I mean to the extent it's necessary to know what the harm was the government fails to prove harmless regardless of the burden I just don't see anything the record that allows us to evaluate the harmlessness or not so a couple of points on where I think we can understand where the heart harm comes from first the government fought tooth and nail to get this evidence out it filed reconsideration motion what the analysis is is it it has to show how the trial would have been different if this cross-examination had taken place 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 sometimes during the courses 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 we just don't know it's not fair we don't know what this cross-examination would have been so I'm ideally I wish a proper had been made I think that would make him simpler for everyone here how do we how do we do this you're saying we can still do it it's just not as simple I just don't see how we can evaluate this and it can't be just based on how hard they fought like that doesn't show harmless error so I didn't finish my answer on okay I want to make a couple of points on this first of all I think we can understand harmlessness in part because the absence of harmlessness here in part because we have evidence of what happened when those jail calls were used with other witnesses and we discuss it lengthen 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 talking with her father about engaging I mean her the defense and I always Taylor's fault rather than have to be tailored to the the testimony of the witness that you wanted to impeach 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 were saying there was error with respect to I I mean I don't think that the case law says you cannot ever look at what was introduced and how evidence I still don't understand like how how your client was prejudiced by not being able to use those jail calls to impeach the particular witnesses that you're saying 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 problem because it's their burden to prove harmlessness the reason this is not in the record is because they fought tooth and nail to keep it out by saying it's just not in the record and we don't know what the harm I just don't think this is a burden issue I think this is a gap in the record issue it sounds like we disagree on this point and you're obviously the judge here but I would also just note that in this dialogue I mean that the district court was extremely angry and incorrect and if I agree if I agree with you that there was error here I still have to assess harmlessness I just want to finish the point quickly the court cut off defense counsel and said bring in the jury there was I think to the extent there's fault in a record not being made we've got very experienced defense counsel here and after the witness testifies 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 and I just want to say this is what we would have shown that's what should have happened I still I still think this is reversible error given where the burden falls but I understand that your honor obviously doesn't agree with me at that point do you have a case or cases that establish that proposition that in this kind of because of where the burden lies the absence of a record falls to the detriment of the government I don't have a particular case but I think it follows from like intuitive first principles and I've not seen a case where you know 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 I have not seen that particular I mean I take a point on the piece of the evidence for another person because in theory if that evidence directly applied I mean there's no reason not to use it I understand that but there's a separate question about whether you project evidence that's targeted at somebody else to this scenario 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 that it's on the government that they can't prove 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 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 what do we take them you haven't raised an ineffective assistance of counsel claim for failure to make the proffer although I think kind of as you said ideally that would have been done here would have made at least our analysis much easier if the absence of the proffer were materially prejudicial I'm in a strickland sense then would you have made an effective assistance a council claim here I I work for the Federal Public Defender the lawyers below were members of the Federal Public Defender's Office I cannot make that argument there's a conflict can you address the sentencing here I do think it's problematic the way the sentencing proceeded and I guess there's a number of sentencing errors that you've asserted 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 I think I'm first of all I think the global remand would be appropriate here that I do think particularly on the vulnerable victim enhancement we did we've made a clear argument that on this record it just could not be sustained so I think it would I was wondering about that is that something that we should decide or should the district court decide in the first instance because the district court never said which theory it was relying on you know in applying that so I mean I think ultimately that is to your honors discretion we would obviously encourage and I think clarity would be appreciated on like what the appropriate test is for the vulnerable victim enhancement I think you know we're likely to end up back here if there isn't some clarity on that particular question which you know there's people on the circuit saying you know it's an open question how we should understand a vulnerable victim enhancement but I do think you know the court can offer that clarity or can quite frankly you know it's within its discretion and how it resolves this case to sort of what is doing this very courts are all over the place I find it rather difficult to wrestle with so what is the right test for defining whether she was a vulnerable victim at least in context like this where you're dealing with a sexual abuse of minors where everyone is almost inherently vulnerable because they are minors abused by older people what is the right yes the right test is is someone vulnerable relative to a typical victim of the effects how do we decide what typical victim of an offense like this is I one is case law I mean there's considerable case law on youth on poverty on you know disassociation from family and friends remoteness being the kind of things that are tragically prototypical of victims of sex trafficking they're also tragically prototypical what it means to be vulnerable for this crime true but I think that feeds into the point that this is you know what animated Congress to make this a crime and a crime was such a severe guidelines range I mean we're talking about life here the idea that people are vulnerable people are preyed upon is baked into the guideline here and you know given the discussion in the guidelines commentary about how if it's incorporated into the offense guideline and you know the example with the bank teller that indicates that the type of test we're talking about here is vulnerable relative to the offensive conviction and I just to the extent the court concerns with this theory counsel because it just seems to me that the bank teller analogy is you know if you're if that guy was about bank robbery you don't get an enhancement because it's a bank teller it seems to me the correct way to apply that to this situation is it's a minor so you don't get to be considered unusually vulnerable because you're a minor but that doesn't address being a runaway being from foster care being homeless being drug addicted being mentally 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 I just think that's really difficult to apply I just I just I find that really troubling I guess I would say I mean to the extent the court is concerned that you know these sentences are not going to be high in sex trafficking cases when vulnerable people are being preyed upon I mean the guidelines again are exceptionally high here so I just don't think that one needs the vulnerable victim enhancement to capture this type of concern I think I serve a logistical issue which is the trial judge that has to make a finding in each of these cases what the typical vulnerable victim is in are the parties going to brief that like I mean so I I mean as I said I think it can be resolved based on case law but if your honor doesn't I know so you're going to submit a brief to the sentencing court that says based on this case law or I guess you need statistics or something typical victims of trafficking have these characteristics I just think there's a difficult logistical fact fact-finding issue as well that would be incorporated into this theory I think so I'm I mean as I've said I'm not so sure it's that difficult given that you can rely on cases but setting that aside I mean I think sentencing's are difficult we have very complicated questions sometimes like apportioning loss and things like that that district courts are required to engagement that involves statistics and numbers and things like that and you know I I just think I think case you would have to say runaways X percentage of trafficking victims are runaways I think that would be one way to do that I don't think a percentage of trafficking victims are homeless it just seems it I think this is hard I mean if those statistics exist I think this is difficult the fact that it's difficult doesn't mean that it's not the right time no I agree I agree but I'm just saying this whole thing troubles me both logistically and analytically just for for courts to be finding making factual findings that a homeless penniless runaway who's been through foster care and is desperate is not unusual he's it's hard for me to swallow and I would I would also sort of in response to that I would also know the district court also just didn't make fact findings about what mr. Lewis we're just talking about the proper test here and I'm in trouble with it yeah I mean and perhaps that counsels in favor of just sort of a broader remand where these issues can be more truth is your idea of the way that this should work we have the option of if there was error to remand without setting the law on this and allowing for some further development but is your idea of the way that this should work is it's it's actually just about majority non-majority so as it would have to be a situation in which the circumstances of the particular victim are unusual in that they're less than 50% and I know I know we can always do the percentage game where we say you know exactly what percent I that's not what I'm trying to do I'm just trying to know what's your of the overarching standard would it be that the circumstances of this 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 so I don't think it's quite that because if you could be unusually unvulnerable like it could be that it's not this particular assortment of characteristics of someone are like not typical but that assortment of characteristics actually makes them less vulnerable than the typical victim so I don't think it's just like identifying characteristics and then saying to most people have these or not I think it needs one needs to and I don't have a fully fledged answer because candidly I I'm personally satisfied by the case the way that case law has resolved this because I think you know sometimes we have great precision and sentencing but oftentimes it is a bit of a gut instinct and you know often I would wish there would be a lot more precision and how we do this kind of stuff and court saying what is the gut instinct deny it Evan what is the gut instinct towards what would be what would we expect the judge to have a gut instinct by reference to the I mean the idea that someone who is like in poverty or doesn't have resources or is young are the kinds of things that are typical of victims of sex trafficking and you know in this case we have testimony from an expert that these are the kind of adversities that she sees all all the time in her in her practice so I think this is you know there is stuff in the record about this well but I mean people who are not young are also victims of sex trafficking true but the guideline here is based on the idea that I mean the only reason we're applying 2g 1.3 is because the mixes your our minors right but I'm trying to determine whether it's unusual or atypical or well it is not unusual of sex trafficking of minors for someone to be a minor if you use that as the baseline yes and I mean in that baseline comes from the guidelines that comes from the fact that 2g 1.3 which is the guideline or sentence under only applies if it's sex trafficking of minor do you have a case or a circumstance for 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 I'm having I'm starting to figure out what would make someone vulnerable so I think what would make someone vulnerable are there any conditional cases so we cite a case out of the Tenth Circuit I want to say it's called Smith but it's in the briefing where the victim in that case is found on you know usually vulnerable because she was found to be like unusually sort of like small and weak relative to other minors physically small and weak yes I mean I don't find that especially satisfying but that at least like begins to engage with the proper analysis and is certainly not something found here to me a better example would be 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 I I feel pretty comfortable saying that that is someone who is unusually vulnerable by virtue of their handicap can somebody be unusually vulnerable based on the combination of factors that they're a runaway as well as penniless as well as from foster care as well as drug addicted as opposed to looking at each one separately I think probably yes but I do I don't want to get ahead of myself given that you know this is gonna end up getting litigated below I I think that makes sense but I think the factors identified here are ones the case law say doesn't make you unusually vulnerable they're talking I'm just asking if these factors in combination I would not say that I'm up with it in particular I mean whether a particular set of factors that exist might I guess the question is I mean just a follow-up I guess the question is if you could have several factors that in and of themselves wouldn't be a typical 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 more typical than not but to have multiple of them in the same one you can do prior probabilities and 0.51 point times 0.51 is something around 0.25 and so if you layer multiple of them together then you might be in an unusual situation or as you wouldn't be if you just took each one of them as it seems like you'd have to be able to take into account multiple considerations in combination I think that makes sense to me and I suspect yeah I mean I don't want to keep returning to the idea of meeting a motion test but I would have a very hard time arguing that that was like reversible error and the misapplication of the test if that's what the district wanted to take into account in combination did you want to talk about the reckless disregard instruction if my colleagues are done sorry yeah you know the district court used at least a paraphrase of an instruction that had been given in their context there doesn't seem to be any settled law so on what basis could we find clear so I think I a couple of responses to that I think this is more than a pair of first I think it's more than a paraphrase the instruction and I do think the law is is settled enough for the court to find clean air on that the paraphrase of the instruction there's an important a very important difference between the instruction that is in sand and the instruction that the district court gave and that is that the instruction in sand at the end of it references that's the coercion of her minor that the minor was coerced and this just repeats the phrase tough act tough act tough act and if you read it it's I think the fair is the only fair reading of it is that the court has essentially said that you don't need to be aware of the facts from which one would draw an inference because it just keeps repeating the term fact 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 you're like that there's a risk of coercion but that's not the instruction given here given the way the fact is repeated and when we you know 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 we're going to fact that he said high rather than highest probability this is that material I'm sorry I guess required them to find indicates a high probability of the fact of issue taking your points about the fact of issue but the modern the sand instruction required to find the highest probability 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 or appreciation of the fact we're in plain error review though aren't we yes so you have to show plain clear and obvious error so even if you're right it has to be something more and if it even plain like is this is this something that we've already decided so I we don't have a specific case that has decided under this statute the meaning of recklessness I cite a case called Woodhull is that fatal to your argument though I don't think it's fatal I think case law is clear that if it's you know you don't need a case directly on point if enormous yes and if you've got one out-of-circuit case it's an in circuit case and it's interpreting the meaning of recklessness to require subjective knowledge of the risk it's and in particular it's in a statute that it's whether you're reckless as to whether a 1512 offense is being committed so it is I mean it's not a statute that is 15 excuse me 1591 the sex trafficking statute issue here it's not a case about where they're interpreting the exact statute at issue here but it is a statute that makes reference to it it is very very close to this case and it it's interpreting it to require subjective intent excuse me subjective awareness of the risk can ask on this issue for the other prongs of planar 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 something more than reckless disregard because he was the one who was alleged to have used the force and coercion and we have separate issues about whether there are evidentiary errors that allowed the jury to find that element but if we just assume those away for present purpose and I do have a question about those that 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 under on the facts of this case so the government's theory is that mr. Lewis knew about the coercion and was doing it himself but the defense's theory is that's not true that Taylor was the one engaging and all of this and so I think the jury can well have convicted mr. Lewis on the idea that he you know I lowered 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 it's Taylor was the one doing this mr. Lewis was off to the and then for purposes of the plain error standard the fact that the defense has has the theory 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 I don't want to I'm sorry please finish what you're saying and I can hear how do we factor in that the defense yes the defense has that theory but in order to determine whether the subsequent prompts a plain error are satisfied we don't I don't think we take the defense's theory as a given I I don't think we do but the we cite case law about the idea that when there's evidence on a particular point that can make the plain error standard or review on third and fourth prong and here you know we the government argues about mr. Lewis knowing insights you know it's particular parts of the record for the proposition and you know in our briefing we go through insight you know conflicting parts of the record and I think when you have that conflicting evidence under the case law that we've cited it's you know remand is appropriate here and I have one question about an antecedent point if and that's just about the your argument about the gun not the gang part of it but the gun part of it with man's so if we even if we assume that there was an error under 40443 in admitting that evidence the government makes a harmlessness argument yes what's your response to the homelessness argument and I take it that I think the point of the burden is on the government but what's your best argument that the government has not satisfied its burden 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 I mean that is like devastating horrific information that if I was sitting on a jury I would think not because of guilt or innocence in this case but this is a dangerous man who needs to be locked up and I think 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 the you know we're talking about cumulative errors here we've obviously alleged additional errors and including the fact that the defense is not allowed to cross-examine misman's with the jury with the jail calls I think that establishes the harm but there are a lot of other evidence of force coercion etc then I don't know that the law is that if there's one particularly graphic one that is necessarily non-harmless I mean I think in the 404 B context the law sometimes does reverse and we say cases where there was cross-examination or or you know it was brought out that domestic violence was committed and you know independent from whether you know there were some evidence of guilt I mean this was a very hard-fought case and the government brought out you know its witnesses its star witness was Taylor and the defense did an exceptional job of you know impeaching her reliability and you know often particularly today you have more neutral evidence that is not a witness testimony demonstrating guilt here but the government and there are text messages and cell site and all of that but this is a case where Taylor itself herself has admitted she was constantly using mr. Lewis's phone so that type of objective evidence just is not powerful in the way it would normally be in a case I just I think this is a very close case and I think in that context hearing about something as horrifying as holding a gun to your wife's head because of some dispute yeah 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 that this man lock needs to be locked up because threat to you know his wife and women were generally additional questions okay thank you miss a little time for a bottle morning your honor please the court gave a good hand to the United States 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 much of this has been discussed in our brief but 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 Jones was instrumental in getting the victims to to mr. Lewis and you know this notion that she exited the conspiracy early because of the banishment well you know in a narcotics context a supplier could provide three kilos of cocaine and then step out of the conspiracy so I don't think that answers the question pretty much to be banished I'm sorry do you agree she was banished it certainly seems like the the tenor of the interaction on that April day was such that Lewis was unhappy with her I think it wasn't necessarily lose 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 so but they're definitely 27 I'm sorry on April 27th during the conspiracy of Lewis mr. Lewis emailed a copy of his loyalty contract to miss Jones yes it seems like at least in mr. Lewis's eyes she was not banished yes need to cool need to be cooling down for a couple days possibly 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 I think inferences can be drawn on either side my point simply is that it's irrelevant to the ultimate decision on in terms of variance with respect to this 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 first it was direct evidence of the felon in possession second we do think it related did you argue those as the basis for admission to the district court I'm sorry did the government argue those well my opponent has conceded it's relevant direct evidence this is a discretionary judgment whether something comes in and if and there's other circuits have said you know if you just want to show fill in a possession that's fine but don't go further and have much more graphic evidence about how the gun was then used 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 but whether this evidence and the toxicity of it was warranted to show felon in possession I think I think this judgment for the first time well I think this court balancing judgment I think when their alternative basis for admission this court can make a determination even if it wasn't relied on by the district court your best case that when it involves a discretion and exercise of discretion by the district court but this court can make that decision discretionary decision in the first instance this court can make all kinds of legal rulings for instance generally when something involves an exercise of the district court's discretion especially something as sensitive as as you know a balancing of prejudice and proactiveness and exactly how much information needs to be let in to demonstrate for example felon in possession sure that that that's a judgment that needs to be made by the judge that is sitting in the courtroom well all day every day my opponent you know when this was litigated during man's testimony my opponent didn't raise the issue of 403 at all and so I think into 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 of 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 this expert discretion on the issue what is your best case I don't have a case I don't I don't have a case of any case where a court of appeals had made that type of discretionary judgment in the first instance I think I think this this court assesses discretionary decisions all the time but they're made by the district court judge absolutely we don't we do not make the discretionary decision we evaluate their discretionary insurance but we don't have the discretionary decision of whether this to the degree the way it was introduced here the story about the guns or temple I agree I agree that's a missing that's a missing fact yes I'm looking fact it's a missing discretionary judgment and there's court of appeals decision I think in the Seventh Circuit that said you can let the fact that she could take a witness could testify the fact that they saw the person with the gun but could not in that case go further and testify and things about Russian roulette being played with a gun and it seems to me that's very similar to this case well I'm not familiar with the seven circumcision I apologize but even if this court were to disagree with the conclusion that this was properly admitted it's certainly harmless this was an 8k trial but on judgment less point wouldn't be plain error review if the district if it was never raised as a issue the court ever ruled that way there's no case on point but it's plain error review I agree on 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 man's certainly defendant was on notice of the gun to the head incident that was part of the government's free trial motion in limine relating to the 404 be evidence right so they should argue it's substantially more prejudicial I think that should be excluded under 403 and if they didn't know it was coming it came they should have objected contemporaneously and made a 403 argument and then we'd be where we are but if they never did that we're on plain error review I think that's accurate why are we on plane air when they made this objection repeatedly before they just record and again a trial objecting to the admissions evidence well they addressed they addressed the the 404 be argument that was related to the gun but again to my mind the district court objected to the admission of this evidence yes but you're the one who wants to bring up a whole new balancing thing for felon in possession they couldn't just on appeal you want to bring that up well they could have been just again I think it's not too much to ask when you object to evidence you articulate why you think it's inappropriately you've got an entire motion in limine before the district court what's your best case when you've had an entire motion and eliminate this spelled all this out and now you're in front of a jury and don't and you want to just you make your objection again what's your best case that that is not sufficient we get plain error review 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 and allow evidence to come in in this case again it seems again my opponent doesn't disagree with the notion that this is to the felon in possession 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 to the district court to consider what your basis for objection is not asked to admit this as evidence of felon in possession well at the government's position 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 well again I think they don't object to unmade arguments we apply plain error review sure we disagree on this but again even if we're not in a square we didn't object to an argument that's not made until appeal and that's true this player I don't have the case I can't imagine I mean what our defense attorneys supposed to do I'm a Jeff objecting this and by the way if the future time wants to argue this I'm objecting to that well again this is not something completely foreign to the defendant was not the question this was completely foreign isn't the question the question is whether it was the basis on which the government thought admission of the evidence well the defendant did make a 403 analysis in its response to the government's pretrial motion so the notion that this was a latent emotional fact is something that they did about 403 I'm sorry if they didn't vote for a three then why are we talking about plain error well they invoked 403 in response to the government's pretrial motion and my point is later they did not make that argument with respect to the actual admission so is that what were they supposed to do and I thought what happened was the trial this issue came up and then it was tabled it was absolutely so then the objections that were made before don't carry through 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 and that's an important part of the balancing you ask the question of how is this relevant and what probative value does it bring and the gun obviously it was much discussion of gun at the gun at the trial so the gun is relevant evidence relating to at least one of the counts of the indictment when there's a 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 it did not arise no yeah because it was that had to do with it wasn't coming in for that purpose it was coming for a different purpose well again you know that was that was the way it was argued pretrial for sure then it was pushed off but I certainly think it's a fair inference that everybody understood that this also had relevance to the film I don't understand fair inference that everyone understood where in your brief to us have you argued that this issue the admission of this testimony is subject to plain error review you know it's not in our brief you know argue that it was abuse of discretion review yes yeah okay so even if one thought it was you have forfeited that I could see the course or maybe we should understand that you understood the record the same way defense understood the record and that is that this was a preserved argument and that the shift to felon in possession is something that's made on appeal but was not made before the district court judge well again it wasn't overly made for sure 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 to the argument that the girl it was argued that this would show coercion that he was someone who engaged in coercive levels of force and the government promised in limine and at trial but it was going to connect it up to to show that the girls were aware of this incident correct yes okay what evidence did the government ever have that the girl saw this incident did the girls were aware of this incident there is no evidence was there ever I'm sorry was there ever not in the trial that I saw no and by the time this came on mr. man's testified at the end of it near the end of the trial correct yeah I testified and the government didn't ask her if she was aware of this incident had even heard of this incident let alone seen this incident so the government's right there with the s on the stand it didn't do what it said it would do and every other witness pre man never had any foundation leg connect for this incident to the argument about use of course of force against the girls true yet the government when this man's comes to testify near the end of the trial goes ahead and puts it in knowing that the promise that made to the district court judge about connecting it up was not going to happen it hadn't happened the questions weren't asked of anybody let alone the most material witness vs it was nowhere in the grand jury testimony of th why that was read into the record and as you said there's no there was never any evidence in the record that did tie it up and get the government went ahead and put it forward before the jury well what are we supposed to do with that well there there were two routes for admission pursuant to 404 be relating to this to this incident the first as your honor is identified was the girls knowledge would inform would constitute direct evidence of the climate of fear but the other at the other route to admission for this 404 be evidence and was already a pretrial was the same rationale that was used with respect to Ashley Taylor that is it answered the question of whether the defendant Lewis acted knowingly with intent to coerce use force or threats of force and 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 actually Taylor and and his his wife who is also a co-conspirator so and in fact when you look at the there's some offense here for coercing underlings that was charged no but I think it's I don't understand how that's this evidence was relevant to the charges before the jury well again oh she was a violent man who should be locked up I don't think it's that simple I think excuse me I think the 404 be relates to and this is the Getty's case from the 8th Circuit this was a 1591 prosecution that revolved involved prior acts of violence physical assault and a threat to kill his his girlfriend his ex-girlfriend by the time of trial 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 a trial so I think this is this was all the details of that case right now off the top of my head but I'm spent it doesn't connect it up for me how is this relevant to his intent to use force to coerce the girls into commercial sexual acts well it showed that when you're asking a question coercion coercion was put in play for a particular purpose not does coerce people to do other things that's propensity that's saying he's just a violent man that is that is exactly the definition of propensity well again and how do you define propensity that's the definition that I understand great yes I don't I don't think that's that's what this was used for I will say I think of the government's theory is if Lewis were in the presence of the two minors 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 and he echoes he says that to in the miners presence to the miners then I can see that's a theory about forcing coercion I'm a coercive guy I use coercion you see how I'm doing this don't disobey me do what I need you to do that is that if and then I mean you may not need that kind of explicit connected connection made by Lewis himself but I take it is that roughly the government's theory is that if that is that was the first route of admission that I was articulating again the second route of I'm sorry go ahead you're on no go ahead oh the second route to admission is is a mirror image of what the trial court did with respect to Ashley Taylor and that ruling preceded this one and it was apologies that's the July 12 20 22 p.m. transcript at 54 the court considered violent acts against Ashley Taylor that were not necessarily known to to the victims and the court said Taylor was Lewis's bottom who is acting on his behalf because she was afraid of his violence and then the court did a 403 balancing test analysis at that point again that's page 54 may have gone to Taylor's own liability I that's being a defense well again the government offered as proof of the mens rea relating to defendant Lewis and that was the for what mens rea of defendant Lewis for what for which element for to show what intent to commit coercion force force threats for what I'm sorry I misunderstood sorry I just didn't quite hearing it intent to commit coercion for what worse force of threats I'm a threat of force I'm sorry abstract I know it related to the defendant's activity in the course of this conspiracy okay incident with misman's occur I'm sorry when did the incident with misman's occur it was specified within the time frame in the conspiracy no it was specified as April 2019 well I believe that I believe the question was I don't they never asked you the date and here she didn't even start till the 25th April so the mass majority of April was not even part of the conspiracy right that was the the the trial assistant at page 82 of the 517 transcript a.m. said she was confining it to the time frame of April 2019 of course that's not the conspiracy well four days of April 2019 or not the conspiracy well I understand honor about we know that conspiracy indictments don't always necessarily have precise days we pretty precise we know the dates the eyes were found this one has a pretty precise one yeah on or about your second yeah well within this conspiracy I think violent on April 1st or so I think it could well if we're talking about honor about the government didn't tie this up it didn't tie it up to the girls as it had promised the district court the whole basis for letting it in it's got no tie up to the conspiracy itself because it didn't it didn't ask the date which would have been the obvious thing to do in fact even argued that well this was important the fact that the gun was held to her head was how she would remember the date but never asked her the date I think as you said to show propensity for coercive force that's what you said and that's not admissible for the record I just want to clear I'm not conceding this was propensity evidence if you're suggesting that my answers reflect that I want to make a clue that's not what I asked you what was relevant for and you said to use coercive force did the intent that's intense absence if I can I would like to address the harmless part of this I want to hear that actually because I just I want to make sure I understand so so this the provision says knowing and wrestling reckless disregard of the fact that force threats force fraud or coercion will be used to cause the person to engage in a commercial sex act for this for the gun evidence these are the man's who is the person that's going that's that's the subject of the force fraud or coercion to cause them to engage in a commercial sex act ah the subject is the victims the honors yes you're not man no but I think that would I think that would be right yeah no so the minors yes yes yes so then the dish to understand the theory the theory is that because he used a gun against man's how does that bear on force coercion or fraud to cause the minors to engage in a commercial sex act well I think it facilitated his ability to operate the conspiracy that is she was part of the cash app part of the conspiracy and in fact later in her testimony she made reference to the fact that she only did that because she was he so yeah enforces it's forcing man's yes and justice I'm sorry justice she forced Taylor to participate and work with him in the course of the conspiracy that informs I think the intent analysis of 404 B so he used force against man's to enable the conspiracy yes that involves sex trafficking of the two minors yes that's the second theory yes okay then on harmless sure the burdens on the government to establish harmlessness if it's sure they're not a didn't involve a substantial and injurious effect I think I think we have several features of this case to demonstrate that wasn't what was going on here and that this court can be competent number one this was an eight-day trial there were over 1,400 pages of testimony this was 16 lines of transcript critically it also wasn't mentioned in closing arguments neither the government's initial opening or its rebuttal more saliently even in that we have the acquittal of mr. Lewis on one of the counts of the indictment that suggests that the jury was not engaged in sort of a broad-brush attack or or engage in propensity-based guilt or instance adjudication if they were considering him as just simply an evil man they wouldn't have had an acquittal with respect to count 13 I would also say the jury heard plenty of other evidence regarding Lewis's violent nature he choked Ashley Taylor the testimony relating to that I'm sorry oh I'm sorry he choked Ashley Taylor and the testimony relating to that was he said to her if you keep fucking up I'll kill you that's May 13th a.m. transcript 75 76 he grabbed and threatened Jones and said I'm going to shoot the whole shit up that's page 117 at the 512 22 p.m. transcript he also told Fowler that he deranged for a kidnapping to keep him quiet how does this go to how does this go to coercion of the miners again because the S testified that she never saw this violence I get that there's conflicting testimony right Taylor says one thing yes this never saw she never saw violence well the testimony relating to the choking was that the minor saw that I understand but then CS 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 so I understand your evidence but there's a clear conflict in the evidence so that doesn't help so much of harmlessness does it I think it does this evidence was not challenged and that's when the weather is challenged it was probably there was evidence that the girls were aware of his threats related to this operation to them or to this operation and with the pieces of testimony I just cited I believe the testimony the indicated it we're aware say about whether she saw him engage in any of the violence acts you reference obviously not that mr. one there might have that might have conflicted with Taylor's testimony but I believe Taylor but I don't think conflicts in testimony necessarily negate the harmlessness point that I'm making I think it's really so much more important doesn't it there was also substantial evidence I just asked on this on this on all this evidence if let's suppose it's undisputed that the miners never knew or never knew about or saw any of this just I know you resist that because there's at least conflicting evidence each day but just as a matter of theory if that was never something the miners were aware of would it still be would you still be making the harmlessness argument or does your homelessness argument contingent on accepting the proposition that the saw no not at all I mean I think what this back-and-forth was reflective of is that I decided that there were other instances of violence that the jury heard and there is there is somewhat contradictory evidence relating to whether or not the girls saw that the defendant choked Taylor but 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 evidence about his violence that might have influenced the jury you're saying that that is really cumulative of all the properly admitted evidence that showed he was extremely violent I thought that was not the knowledge of the victims which is a separate issue which maybe you could address but this is what you're arguing right now is saying to the extent that rule 403 was violated and there was inadmissible to prejudicial evidence of violence that was cumulative of lots of other evidence properly made of violence is that right that's exactly it but for our police don't you have to show that it was as to the jury's finding of guilt including the forced coercion or fraud element right yes and what is your theory that even if the victims the minor victims didn't know about any of this that it still shows harmlessness yes yes again because from our perspective the citations I've just provided were was properly admitted evidence that the jury heard otherwise 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 pieces of testimony that were of the same ilk 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 defendants own admissions when he told Fowler that to keep a witness quiet he had kidnapped somebody previously and in fact you know well was a member of the Crips so I think that's just a piece of the harmless error analysis here I want to make that clear the fact that it wasn't mentioned in the in the closing that this was a lengthy trial tiny bit of testimony wasn't emphasized we have the on count 13 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 you've heard evidence of other acts not charged in the indictment you may not you may consider them for only a limited purpose that he acted knowingly so we already have them not being able to use it just for guilt or innocence and then I would be remiss if I didn't at least go through some of the powerful corroborating evidence that supported both the victims the minor victims testimony and Taylor's testimony we have the loyalty contract that the defendant wrote that was on his computer we have the hand note and written notes of the rules he had for the victims that were found in the trunk of his Cadillac we have contemporaneous text from the defendant from Taylor to the girls quoting Lewis one for example said even though the girls had claimed they were sick and couldn't take commercial sex acts he said they could only she said you could only sleep if it was okay with Lewis in another case they asked if they could sleep Taylor responded Lewis said there was not enough money being generated that's exhibit 112 D we also have the cooperator Fowler who was in the jail cell with Lewis for I think a good month and teller will excuse me Lewis revealed many details of the of the conspiracy talked about the loyalty contract to Fowler he talked about the cash app transactions he showed him paperwork for that he even showed him paperwork relating to the motels in addition we have still site location information which corroborated Taylor and the victims testimony relating to the travels of Jones and Lewis we also have motel we received in the defendant's name we have cash app transactions that were admitted into evidence and then we even think a lot of this that you're talking about now goes to whether he was involved in the commercial sex activities that's just a separate question from whether he was coercing engaging coercion 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 I'm not sure it goes to this coercion question well the loyalty contract just to pick an example so never then again you got to the S testimony they didn't feel they had to sign it they didn't feel it it bound them to anything so sure but it goes to what the in this business when the victim itself says didn't feel pressure to me I can sign it or not well the constellation of factors here 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 the the that I mean whether they were known is the disputed fact I don't go for a harmlessness we do I well we don't take the view in favor of the government in deciding whether something the government that did that was mistaken I think all I think even in the context of harmless it's all reasonable inferences should be drawn in favor of the government because we have jury verdicts I think that's that's the whole point is that that the government's error if we agree that that's what happened here or the district courts error whichever way you look at it we're trying to decide whether it was prejudicial we have to look at the whole record sure it could have had an impact on the outcome of the case and I don't I'm not aware of any case that says and we assume in doing so we assume hotly contested factual disputes in favor of the party responsible for I think my point is more limited you can't dispense with the evidence but I suppose you can right you can you can limit its value if it was not limited go well it actually cuts the other way if it if what's the argument is bears on something that is in fact factually contested and so the the improper evidence would could have tilted the jury's view on that disputed question of fact I think that's a proper way to analyze harmlessness but again that's just a piece of the puzzle that we have harmless in this year colleagues are they gonna be done on this yeah did you want could you talk about the the reckless disregard instruction certainly your honor so this instruction that was given has no precedent it doesn't match the judge sans instruction in some pretty critical ways it doesn't match the background well-established long-standing rule of what reckless disregard means in the criminal context at all it totally omits subjective inquiry so how was this not and given a contested the question of coercion was I was just not a harmful error I was an error that was harmful and prejudicial well in a plain error sense in a plain error sense I think most fundamentally I think the wrong to is I'm sorry I think wrong to has particular resonance here I know of no authority that has defined reckless disregard in the 1591 context this one wasn't a mirror image of judge it stands his instruction but it was very close to it no it was it's a pretty serious deviations high probability and highest probability some plain English material difference I don't the fact of issue the fact that issue the fact that issue and the fact I think must have kept changing through that sentence or or I don't know if the jury even knew which fact or fact they were spoke and they were told just one fact when there were multiple facts that had to be resolved in that instruction that's that's pretty important errors well even if we discount even it and I don't think you should but even if you could discount judge stands my point has not I'm just the instruction was given here that was material departure from even judge it's part of from everything that has ever been before as a reckless disregard instruction it was there were there was a variation for sure but again variation but again I understand plain air stand for the concept that unless you can show a settled rule of law as to what reckless disregard means in the criminal law context well again I don't think that's I don't think that's what the cases reflect and that's what we've already in our brief and in fact if you look at the farmers case they the farmers said reckless is this is 511 us at 836 recklessness is not self-defining so I think if we are accepting the proposition or told us what it means in the criminal law context I can I will generally have cases saying what it means in the criminal law context I'm sorry do I we have case no this court has case saying what it's what is long-standing background meaning is in the criminal law context Supreme Court said the same thing in farmer and there's nothing in the text of 1591 that I see here the government arguing pointed in the other direction but even if we say at most there's two options there's the long-standing criminal definition from a law definition or there's this judge Sands I'm called a definition for purposes of an instruction but we had neither one here and coercion was a very contested issue here and the evidence is you know a lot of things that was used as troubling in its own right and it's it's what wins vs his own testimony it's really really it's a really close but I'm not saying the government couldn't have one on a proper instruction but we have an instruction it doesn't fit anything are you aware of any court anywhere that has used this instruction from this case for reckless disregard regard I think I think I said it too in the 1320 not the judge fans one the one that was used in this case I don't know never been used but in the 1324 context there is there is similar they follow the judge fans yes but I'm not talking about a judge hands on this one is not I think was very close and if we're talking about variations at the edges then I think we're pretty solidly in the plain air context not showing clear obvious air it's reasonable minds here are a legal rule of the government had to show a high probability that something happened and the court instructed the jury that you must find the highest that it happened by the highest probability that well I think that to the government I think that matter to the government if a jury if the law was high probability that's all the government has to show and a jury wasn't said 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 I'm not sure I would say it was I don't really I don't see the significance between highest I don't probably not or beyond a reasonable doubt not much difference I think highest probability is as high as can possibly be that's like almost like a reasonable I'm not saying it's the same thing but it's a very high standard almost like reasonable doubt high probability that's just more likely than that you know again even less than more likely than that I'm not sure again we disagree about this but if we're talking about plain error and clear obvious error number one fact that issue the fact that issue the fact that issue that's not just dance instruction if I could turn to prongs three and four because I don't think I don't be a critical question here is whether or not this is a closed case on coercion I don't think it was I think the critical question here is whether or not there was any sense that this defendant was somehow or another a bit player in the larger conspiracy where the court where the jury would have to beckon to the nose notion of an ostrich sticking its head in the sand and that's the that's the analogy used by the Carson decision out of Seventh Circuit this would have more resonance if the government had even mentioned reckless disregard as closing the primary theory here is that so I was gonna ask that question was reckless disregard part of the government's no no the government jury obviously could have found it anyway could have found about it there but I just in terms of the way that was presented to the jury by the government it was presented to the jury in one way either you believe that this man was the main player or you didn't believe that this man was the player reckless disregard just simply didn't come into play and that's I think the Carson's analysis here is when you have significant evidence relating to 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 as a lesser standard of proof relating to mens rea and I think I think Carson is directly on point in this regard it was a 1591 case it was an erroneous instruction that they found there but they said 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 and that is not this the jury would have had to go off on a erroneous instruction relating to reckless disregard to Carson that predate Congress's amendment of the statute to change what reckless disregard meant I don't know the answer to that I apologize I thought Carson dealt with a reckless disregard at the erroneous instruction but it did it did but it was okay before Congress amended the statute to resolve them I think what may have been a circuit conflict or confusion on a different aspect of reckless disregard but I think the analysis still holds 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 and then on there's one aspect of the sentencing at least that if we can go to that there's one aspect in the sensing at least as to which the government doesn't dispute that findings need to be made need to have been made that weren't and so I'm right about that right I'm sorry I missed the front end of your question 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 I think we said remand may be appropriate and in that respect I want to pause here if I could and just grab 20 seconds of the court's time 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 and I think it's just important this court of course has an independent duty to do a harmlessness analysis but when you look at the base offense level these would be the final adjusted offense level I would note that even on the adjustments that my opponent challenges we would still come out to a 43 basis adjusted offense level and so I read the the calculations to stand for the proposition that we're not in a different guideline range category we're in a similar guideline range category now I bring this to the court's attention so that's true if if there's remand on all three of the computer leadership and vulnerable victim I think you're out of the license and into which 360 to life but there is you're in a range that is not automatically life well I haven't I didn't I haven't my opponent I don't think is disagreeing with the notion that at least a two-level adjustment for leadership would be appropriate 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 and that puts you in the same guy all right but again you're doing this for computer but you agree that we have to remand for fact-finding on that two points for leadership but the district court didn't make findings about how many people were let here and then two points for vulnerable victim but even if we had a test for what's vulnerable victim means you have to fight 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 the facts that are common to check my sex minor sex sex trafficking victim no I agree that the court did not make findings fact relating to the vulnerability on that note is my opponent was arguing one question related to whether there should be a wants to remand McCann's I think speaks to this McCann's went so far as to say that although the parties are just rule on the proper interpretation of this in that case sophisticated means enhancement in the guidelines who would be inappropriate for us to do so in the absence of more specific factual findings by the district court and excuse me that's for 34 f-3rd at five six four so at least in the context of McCann's the case we cited relating to when you do have important missing factual findings on little sentencing factors we can't says well we shouldn't be in the process I read we can't stand for we should mean them in the in the manner of issuing advisory opinions on the name the nature of the enhancement because I I read McCann's example proposition it may be if the court doesn't even find vulnerable victim enhancement any more questions I had just one comment I think that this sentencing was problematic because the district court after hearing lengthy allocations from both sides did not address the arguments that were made by the defense or the when it gave its sentence and I just want to note that the government has an obligation to also make a record here 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 ABC and D we've got the defense attorney doing that I hear I see nothing from the government doing this and I just don't understand why the is not protecting the record and making a record to support a conviction that it fought hard to achieve well I can assume the government 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 so you're defending this do you think that this is an appropriate strategic or legal performance by an angel I'm just at a sentencing hearing after making allocution and hearing the defense arguments and seeing a record that clearly is going to go up an appeal and probably can get reversed because there are no factual findings that this a you say should sit there mutely I'm just you know I'm just suggesting that we could be the ascertaining why more vocal I don't I just don't see why you would just send this I'm only making this comment for future reference for the government thank you we would ask that you perm the judgment and conviction thank you mr. Jones will give you two minutes for a rebuttal you well the only issue I want to make us we that's this is to be bottled the only issue I want to make is roomies respect to when my client was involved in the alleged conspiracy she got involved April the 26th and was out people to 27 why that is important is because the loyalty contract that came through on phone that was presented on April 27 before she went to Greenville with the young people and after what was after she had been vanished when she came back but nothing worked out I don't say 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 seeing 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 well it's clear that the context is okay here's what's going to happen when you bring him here here's how I'm going to get them work and here's here's what I'm going to require of them it didn't mean it's driving one up sticking to him twice she takes them to them and then she goes off to Greenbelt and brings them right back to him and nothing happened in Greenbelt because she stopped it because she stopped in because she stopped it she was thank you driving and take the girls away from mr. Lewis she had the loyalty contract she knew mr. Lewis she knew what he did that's why she took him to them for work and so I just don't quite understand how that allows you to sort of wash your hands of this of what happened afterwards well that's not she was threatened with physical violence to herself and she elected to peel out from there for them sure but that doesn't mean she's not responsible for what happened or a part of the conspiracies they don't respect responsibility has many forms in a case like this many responsible people but how is part of that part of the conspiracy how was this conspiracy shifted from there because at that juncture they were not going in any hotels it weren't staying in hotels and they did immediately leave there and go to the motel six and then after stay there for approximately four days and after they went to the condo Lodge so that had nothing to do with her because that's when they met the people and they were having the commercial sexual act there were none done while she was there or her getting any funds from that big participating in it of the life she was out of it and banished okay let me make sure my colleagues don't have additional questions for you thank you mr. Johnson all right thanks million will also give you two minutes for about thank you your honor and we've been here for a long time so I don't want to keep us here too much longer but I just want to note the government has raised a new argument at the podium about harmlessness is sentencing 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 you know you're not spring it up for the first time at the podium and I'd also just note that 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 it's been amended and on the remand we would you know raise the argument that the guidelines have changed and those two points shouldn't apply so even then this issue is relevant given that you know on remand we're going to be talking about a different violence range so that is the main point I had if there are other questions from your honors and happy for them thank you counsel thank you to all counsel we'll take this case under submission