good morning everyone and welcome our first case this morning is united states versus croce i think it's pronounced its case number sixteen thirty eight forty five district court committed numerous reversible errors in this case today i would like to focus on four of them first the government concedes that gross was wrongfully convicted for retaliation and that charge became a vehicle for the admission of highly prejudicial prejudicial evidence that very well may have tainted the jury's consideration of the separate sex trafficking counts seconds the court violated gross's right to confront the key witness against him consideration of the sex trafficking counts for these other reasons mr gross's conviction should be reversed i'd like to turn first to the retaliation conviction now the government concedes that this conviction should be vacated because the jury instructions failed to include a required elements of the offense and there was no evidence presented at trial to support that element but vacating this count alone is not enough to ameliorate the harm that was done because this charge became a vehicle for admission of highly prejudicial evidence that very well may have tainted the jury's consideration of the separate sex trafficking charge and whilst there was nothing wrong with the charge there was an error in the jury instructions there was an error in the instructions but the government now also concedes that there was no evidence presented during trial to support that necessary elements well that doesn't mean that there's something wrong with the charge that means there's something wrong with the proofs so i am not sure where this article in this argument about the collateral damages is going clearly the count has to be vacated the there was instructional error that's fatal to the count and a failure of proof it's also failed so we can't find harmless error but the collateral damage argument isn't going anywhere if if there's nothing wrong with the charge or your honor and we just don't know whether she reported the victim reported this abuse to a federal agent or a state agent certainly there was a failure of proof but if the government had proof that tissue or had cooperated with federal law enforcement agents presumably that proof would have been present during the trial and it never was and so based on the record we have this is a charge that never should have been brought without cooperation with federal law enforcement there is no federal crime but the evidence would have been admissible anyway as part of the course of conduct of this crime as an ongoing conspiracy i disagree your honor this encounter during which grossed retaliated against his shower was the very last interaction that he ever had with her she was asked whether she had any contact with gross following this incident and she said that she had not apart from him attempting to contact her on facebook and that's in dock at one twenty four at page one sixteen why does that make it and it missable because it was the last encounter will in this case it's possible conceivably that a court that the district court could have found that this evidence was relevant to prove the conspiracy or more particularly the sex trafficking counts because the conspiracy pertains to transporting people across state lines for prostitution and didn't require force and so this could have conceivably been thought relevant to the sex trafficking counts however the fact that it occurred after any act of prostitution would have been something that the district court would have had to give strong consideration to in considering whether the probative value of this evidence outweighed the substantial prejudice because this was the most graphic and disturbing testimony that the jury heard during the entire trial witnesses testified that gross brutally attacked beating her to the point that she thought she was going to die to the point that she lost consciousness and  herself and her head swelled up like a pumpkin the jury heard nothing close to this at any other point during the trial this was a watershed moment in terms of the evidence because it was so inflammatory and so disturbing and so there's a very real possibility that the jury relied upon this evidence in convicting gross for the separate sex trafficking counts and that possibility was exacerbated by the way the government argued this evidence during its closing it in reviewing the evidence of violence it described this retaliation incident and told the jury that this was the quote worst evidence of violence that grossly perpetrated against the victims and told the jury that it was an example of force upon which  in convicting him for trafficking so there is a real risk that this was something that the jury did rely upon in convicting gross and this was evidence that on this record the jury never should have heard i'd like to turn now to the second issue which is that the district court violated his right to confront the key witness against him in this case now prior to trial the district court ruled that evidence of the victim's prostitution history before meeting gross would be inadmissible but during the government's direct examination of marie cause star its key and first witness in terms of the victims who were trafficked the government opens the door to this evidence by a listening substantial testimony from stir that she had never previously engaged in prostitution at the government invitation stirred testified that she did not know how to set up a prostitution call did not know how much to charge had never set them up on her own and had never taken calls for anyone else and gross informed the court that stern had created an impression that gross had groomed her into participating in prostitution for the first time and that there would be testimony from another witness who would contradict star testimony but the district court refused to allow gross to cross examine starr on the truthfulness of that testimony and in totally for closing gross's ability to expose to the jury that stirs testimony may have been untruthful on this point i think that's an overstatement of what the court did the court at sidebar said we're not going to get into this now and then after the next break which i think was an overnight break  raised the issue again and clarified that if there was impeachment evidence of the defendant could enter it and as far as i can tell from the record there was never therefore open the door on her direct testimony the district court did acknowledge that the door had been opened and that impeachment evidence would be permissible but it did not indicate that there would be an opportunity for example to recall mr that it would permit cross examination of mr on this issue what the district court indicated with that ruling consistent with gross's representation that another witness would contradict that testimony is that impeachment through that separate witness would be permissible nothing in the district court's conversation with counsel at that point indicated that the district court was willing to overrule its refusal to allow cross examination of stir on this point and this violated gross's right to confront the key witness against him gross was unable to show the jury during stirrers testimony what the judge actually said during her testimony is well word we're going to have to discuss that at another time we're not going to get into it with the witness now meaning let's do it later and the defense never came back to it later outside of the introduction of the testimony through another witness there is nothing stopping the defense from recalling reka started impeach her well i think what they're at least attempt in the pavement what the district courts indication there was is that we're not going to go into it with this witness we're not going to do it now meaning you can do it later and then the court came back to the matter at the break and clarified that he recognized that there was an opportunity for impeachment because the government had opened the witness your honor i just think that there's nothing in what the district court said that indicated that it was going to permit recalling to stir in cross examining mr it refused to permit that in the moment and said the judge did not refuse plainly did not refuse to permit he said no we're just not going to get into it now we need to talk about it later because i need to know what you're asking and then there was a discussion at the break but the cross examine dread it often happens during the course of trial if the judge can't sort out a trial at sidebar parties a comeback to it later and then revisit the matter and the judge plainly indicated he was willing to admit this but he did not indicate that while mr was on the stand and that's customary in the flow of trial that the judge would postpone it until a break and aerate more completely than can be done at sidebar and the judge plainly indicated a recognition that there was impeachment and impeachment opportunities that the government open the door to this and then the defense never came back to it respectfully your honor i disagree that the district court's instructions can be interpreted that way i believe the district court made clear that he was not going to permit cross examination of star on this topic but i'd like to now turn to the third issue which is that the erroneous instruction on reckless disregard lowered the mens rea a for the sex trafficking charges to such a degree that it effectively omitted this element of the offense the jury was instructed that it could convict gross if he was aware of but consciously or carelessly disregarded facts and circumstances that would reveal that force threats or coercion would be used the government concedes that this instruction erroneous lee allowed the jury to convict mere negligence because it was given an option of convicting if it merely found that gross carelessly disregarded those facts it additionally there's a separate problem with this instruction which is that it fails to incorporate the components of criminal recklessness required by former versus brennan that the defendant have drawn actually subjectively drawn the inference that there was a substantial risk of harm why isn't this argument wa did not leave this arguments the government makes that argument relying on the fact that gross indicated no objection in response to the twenty two pages of the proposed jury instructions that the court put forth well actually it went beyond that the defense submitted proposed jury instructions and then at the instructions conference ultimately indicated no objection to the court's rulings on the proposed jury instructions and accepted the judge's proposed instructions and then there was an additional discussion of an argument unrelated to this particular instruction about the mens rea or for this count and then there was another indication that after a further edition the defense had no objection so this goes beyond sort of roche consent to the court's proposed instructions there was actually a dialogue there was not a dialogue on this particular not in this particular instruction right but if there's if there's a dialogue on the instructions more broadly and the defense takes no opportunity to correct a mistake an instruction or does not take advantage of an opportunity to correct a mistake in the instructions then there's a wa honor i disagree that the facts here reflect a knowing and intentional relinquishment of a no right what this reflects is that this error was simply missed by both parties the government today concedes that it was an error and we're certainly not suggesting that the government was aware of the error at the time the government missed the error and gross missed the error and there's nothing in the record that would indicate that there was intentional strategic decision made to forgo there doesn't need to be a strategic decision no a waiver can be found when there is an opportunity to have checked and a substantial opportunity in an actual dialogue about the jury instructions and there is no effort made twenty two pages i don't think comes close to revealing and knowing an intentional relinquishment of this particular error ok that would fix part of the problem your honor that would have not allowed the jury to convict gross simply for carelessly ignoring facts and circumstances well carelessly shouldn't be in this instruction at all  so it's it's plainly erroneous but i'm not sure that it matters in the context of this case because we're talking about the defendant's own actions and you can't carelessly disregard your own actions the carelessly idea in this mistaken instruction is when somebody else is doing coercion here it's the defendant himself who is doing the coercion and so this is just  herring in this in the context of this case i disagree your honor what the instructions allow the jury to convict is if they found that gross was aware of underlying facts and circumstances but carelessly disregarded them so for example one of the government's chief theories in this case was that gross manipulated the women's access to heroin and a predicate fact for that theory is that the women were heroin addicts so if the jury found that gross was aware of their heroin addiction but carelessly disregarded it that would be in there is no other possible conclusion on this record that he carelessly just ignored it know that he was well aware of their heroin addiction and was preying on them as a consequence of that deliberately that there is just no other interpretation of this this is the completely harmless error i disagree or on i think in particular it's important to focus on amanda ryan with respect to this the facts with amanda ryan were far weaker than with the other victims she's someone who had total agency over her circumstances engaged in prostitution of her own accord and the government's case changed on one incident and so with respect to her in particular i don't of review and the overwhelming evidence presented at trial demonstrates that the defendant systematically abused threatened and coerced the three victims to cause them to engage in prostitution for his financial gain i'll  begin by talking about the confrontation clause issue the defendant concedes that this court's decision in united states against carson forecloses his argument that his convictions for sex trafficking related to lisa teacher and amanda ryan must be vacated because he was not permitted to introduce evidence of the victim's prior prostitution so i begin with the defendant's continued challenge that the district courts limitation on his ability to cross examine reka stir about her alleged prior prostitution was error  record acted well within its broad discretion to limit this line of inquiry the confrontation clause requires only that the defendant have a reasonable opportunity to impeach a witness is credibility and he had ample opportunity to do so here it is for court permitted the defendant to cross examine stirrer on a range of topics that reflect on her credibility including her past ras prior incarceration passenger going to action and meetings with the government to prepare for her testimony moreover this report permitted the defendant to question a different witness for any adult who contradicted certain statements that she had never engaged in prior prostitution and finally the district court was reasonably concerned that excessive discussion of stirrers alleged prior prostitution which is irrelevant  testifying and had left the stand for this record explained to the parties that it believed that the government had open the door and starts prior prostitution and would permit the defendant to have an opportunity to challenge that that  testimony at that time the defendant could have requested to recall stern and he chose not to do so nor did he ask the district court for permission to put on his own witness that would contradict starr's testimony and stad the defendant appeared satisfied to cross examine the government's witness brandy attitude about stars alleged prior prostitution you think he's not recalling because you didn't hear with it's possible your honor however i think in this situation what we really have here is the defendant believed that by cross examining brandy atty she would have reasonable opportunity to impeach kister on this point and the fact is the jury already heard ample testimony that would have that much of her memory about the relevant events was hazy because she was because of her heavy drug use so why the defendant chose not to recall stor i certainly couldn't say for certain but i think on this record it's clear that the defend thought he had had ample opportunity to impeach stirrers credibility turning to the issue of the jury instruction that the defendant waived this challenge to the reckless disregard definition by affirmative stating that he had no further objections to the text of the instruction on at least three occasions when it was at issue and i think this court's decision in united states against carson provides a meaningful point of comparison on the waiver issue in that case the same erroneous jury instruction was proposed in the district court and the defendant raise a specific objection to it saying that it quote lowers the burden of proof and we believe eliminates mens rea at this court said that even with that objection the defendant's challenge to the instruction was a close call and for future because the objection wasn't raised with the requisite level of specificity comparing that to our case it's difficult to see how the defendant the defendant's repeated statements that he had no objection to the instruction could constitute forfeiture but even if the defendant didn't waive his challenge here the defendant cannot show that his substantial rights were violated there's no reasonable probability that absent this error in a jury instruction the jury would have reached a different verdict the sex trafficking statute contains two theories of conviction one defendant know or two that the defendant acts  reckless disregard that means of force threats of force or coersion will cause a victim to engage in prostitution and carson court pointed out that an instructional error on the reckless disregard definition does not impact substantial rights were the instructions include the proper definition of knowingly and the overwhelming evidence supports a verdict under that definition and is already discussed overwhelming evidence here supported the jury's verdict portion of the statute is designed to get at the third party not the person engaging in the forcible or course of conduct next address the issue of the retaliation evidence  defendant states that the introduction of the retaliation evidence prejudice him on the sex trafficking counts but the defendant way this argument on appeal by failing to raise that in his opening brief which directly addressed the retaliation charge and the fact that it needed to vacated however the defendant never discussed that any kind of evidence that came in to prove the retaliation would have prejudice the jury on the sex trafficking charges but even if the argument isn't waived tissue is testimony about the events and april twenty fourth teen was evidence of count eight which was an attempted sex trafficking charge related to tissue or as evidence of attempted sex trafficking it was highly relevant and would have been introduced to prove the charge whether or not the defendant had been charged with believed that the evidence from twenty twelve and twenty thirty overflowed to prove that c we've got two minutes left defendant in that case had said there was no objection to the entirety of the jury instructions that were put forth and the court held to hear that that was did not appear to be unknowing an intentional relinquishments of the argument the defendant then raised on appeal any objection to the well on the merits assuming we get to the merits or on plane or review even if this is a forfeiture and not a waiver and the confrontation clause argument in this context is sort of a balancing test and you haven't addressed that yet perhaps you'd like to use a moment to do that i'm sorry one of the questions about the confrontation clause argument yes i kept you busy with arguments about the waiver so you might want to take a moment to address the merits so with respect to the confrontation clause the way this court analyzes harmlessness is it has to assume that the fully damaging potential of the cross examination was realized and then ask whether the refusal to permit cross examination was nevertheless harmless and in this case the fully realized down edge of the cross examination that gross wanted would have been the revelation that store had lied to the jury during her direct testimony the damage of this to the government's case would have been enormous stirrer was the government's key witness she gave the most extensive testimony during of any witness during the course of the trial was the first of the trafficking victims to testify and really framed these issues for the jury but there was a lot of impeachment evidence admitted on this point in particular certainly through the cross examination certain criminal history etc so why doesn't the balance come out in favor of harmlessness here if i may briefly respond this case is similar to davis versus alaska and in that case defense counsel was permitted to question the witness on various topics pertaining to the witnesses credibility and nevertheless the court held there was a confrontation clause error because the defense counsel was not able to question the witness on the particular point for which the witness gave arguably on truthful testimony and so here the fact that there were questions going to stores general credibility is not enough and briefly with respect to eddie's testimony because the district court refused to allow gross to argue in closing the eddies testimony showed stern's testimony to be untruthful it really eliminated whatever value of his testimony may have had and in addition the jury was permit was prevented from seeing stirs