united states versus right sexual conduct the government by alleging these crimes in the indictment was required to prove one or both of those crimes occurred therefore the court was required to instruct the jury to the state crimes the court's instruction did not include all of the elements under illinois law and did not follow the illinois pattern jury instructions there's areal error clearly confuse the jury who had questions only about that instruction even new trial in this case harmless error cannot change this outcome in this case because the government failed to prove these elements beyond a reasonable doubt and the element of intent to cross state lines for sexual activity isn't this a different sort of a crime though the government doesn't have to prove the two state offenses the government only has to prove that your client traveled in interstate commerce with intent to commit those offens so it's in a little different posture i think in and importantly different posture than if this case were being tried in the illinois courts i agree it's working affirmative violation of the statutory rape and the rape  of those elements in this case so we're relying on the knob i think that's how one says i'm a novice for that proposition which was a travel act case i believe that held the government approved in the end or at that charge indiana offenses had to prove the elements of the indiana offense as part of the federal offense the government could have chosen to charge different offenses but whatever they choose to charge as part of this offense has to be proven beyond a reasonable doubt and the jury has to be also approved of a field to prove the force element and failed to prove the lack of consent the government argues that those are two sides of the same coin they are however two different elements of the illinois offenses the government proved neither of them and finally the government did not prove the reason to believe the lex there was over seventy mm she herself was representing herself to be twenty twenty one and told mr frey that she was first twenty or twenty one  seventeen the only evidence toward that was alexia said that she assumed her mother had told mr ray that she was fourteen but the mother did not testify as such and actually said that all she said to mr ray was i can't reddington said that kerry told him he found out later that she was fourteen and the evidence was back and forth about when that later was whether it was later as and later the first meeting but before the second right or later as then after the sexual encounter and that of course is relevant in this case i will talk briefly about something that i'd like to move on to the jurisdictional issue as well the bottom line of the sentencing issues finally this case comes to this court in another issue as well and that's the jurisdictional issue which was briefed in our second brief and we maintain as we have the entire time that the district did not have jurisdiction to modify the judgment that was currently under appeal under thirty five eighty three each you in for various reasons primarily the question of may the court do it timeliness at any time is different from the authority to act thirty five thirty five eighty three to just say at any time that does not necessarily mean the court has authority at that time to modify the judgment particularly where the judgment is on n in those cases and it was it was not considered fully by the the panel's i know it's unusual for this court to overturn decisions that this court has made within the last year but the reasons for that  plenty and it also did not discuss any of the jurisdictional issues that we have raised did not discuss that qusay case preserving judicial resources it did not request it did not distinguish between issues that are actually briefed on appeal versus issues that can be modified in the district court that have nothing to do with the appeal essentially what happened is the government saw the brief that i had filed and found a way to change the record after i had filed the brief and this is an issue is the reason we have the jurisdictional whirls so we all are on the same playing court when we brief cases so this court is on the same field as i am as the government is the district court can't change the playing field mids midstream i mix my metaphors at this point but i think you get the point is that when in our system of justice the way this works  record that comes up to this court and the parties brief that this court makes a decision and then the parties follow whatever happens the district has to modify something it modify something if it's affirmed it's affirmed whether it is in the original matter than what does the phrase at any time in thirty five of the three to mean that means the court may do it at any time the question of jurisdiction is a separate issue i don't believe that congress was intending to confer special jurisdiction to the district court at the same time over the same issues and with one court changing those issues there is a there is a method to do that which is under rules twelve point one and circuit will fifty seven and that and fifty seven jurisdictions back so that you know there are ways to deal with that that are appropriate that don't change the playing field at the time that we're breaking it came right that's the generally applicable rule this one is specific to this situation and usually the more specific controls i think that rule fifty seven certainly includes that because it says or any other rule i think it's intended to cover all rules including subsection to a thirty five eighty three well this is a statute not a rule sure sure but i again it goes back to any time is a timeliness issue is is when you can do it rather than giving thirty days sixty days within a year it says that any time i will also point out that aside from jurisdiction to the district or did not follow thirty five eighty three or any of the rules that it would require to follow with the judgment and the conditions of supervised release certainly even if the district court had jurisdiction to do what it did it did not do it properly and amend and follow the rules thirty five fifty three thirty five eighty three and thirty two as far holland thank you good morning your honour's and may please the court dealing with the issues in the order i guess from the briefs of this with the ones that have been raised in this particular case on the sufficiency point your honor we believe as we've stated in our brief there was more than sufficient evidence for the jury to find that mr ray's intent when he took alexia across state lines a was to engage in criminal sexual activity there's more than enough evidence for the jury to try to find that and like to respond specifically to his christian sins claim that there wasn't sufficient evidence on the statutory rape point mr weddington himself testified you know on this is on page fifty five of the volume one of the trial transcripts did you ask him did you ask ray if he knew she was fourteen before he had sex with her yes how did he answer he said yes and again on page sixty two reciting his grand jury testimony which of course is substantive evidence as well you know i said did you do anything with her when she told you how old she was he said yes he did i said what did you all do he told me they had sex i said well why did you do that when you knew she was fourteen and he just said he didn't know why he did it he just said he did it so that that evidence alone is enough evidence even without alexia's evidence and alexia's evidence as well was essentially that she told him she was fourteen i think only because she thought her mother had already told him that she was fourteen was what which actually was not true her mother had said that much she does say i guess i was like i'm sorry i'm really fourteen and how did he respond when you told him you were fourteen he was cool with it he said just don't tell nobody that's volume two page fifty one so again children are exactly what she said but she does remember that he was cool with the fact that she was fourteen so there's more than sufficient evidence that he knew she was fourteen there is more than sufficient evidence based as well on on on the comments you know i paid for this room i'm going to get what i want the prior discussions about the fact that he wanted to have sex with her and she said i don't think so i don't want to do that on my kids see if that that he did intend and specially in light of the bonzi decision to engage in for sexual activity and that at minimum he intended to commit statutory rape turning to the instructor an instructional question your honour's the government and the district court more accurately just to court through its jury instructions did not eliminate the illinois defenses or the illinois elements regarding force and mistake of age there is no requirement that the pattern instructions be followed this was not a case where we were trying to illinois and offenses in federal court this was a case where the illinois offenses do get incorporated in part because of the way that the statute is written the defendant had to have intended or it had his dominant purpose in crossing the state line to be illegal sexual activity that's court's instructions twenty one the government needed to show that the dominant purpose of the defendant's interstate travel was to engage in sexual conduct with alexia and if you read through the instructions it does incorporate all of those defenses and all of the elements that are being complained about in instruction number seventeen it lists the three elements from this court's pattern that are at issue in the federal offense two of them that somebody was trying to get in that person was a minor were centrally conceded and then the next five to six instructions all deal with the third element did he intend to engage in sexual activity which if it had occurred or did it occur at the defendant could be charged with the criminal offense of aggravated criminal sexual abuse it sets forth what those statutes are and it sets forth further definitions further explanations and one of those explanations is in instruction twenty what instruction twenty says is it does label them as defenses there are defenses in federal and federal and state in which the defendant has the burden of proof there are defenses on which the government retains the burden of proof to disprove and you know don't normally walk into courtrooms knowing what defenses are what an element or frankly even what a burden of proof is they're instructed on it and what they were instructed here if one reads instruct parts of instructions twenty is if the defendant reasonably believed alexia was seventeen or older then he lacked the intense necessary to engage in conduct that war did violate the statute which is necessary for the government to prove the federal offense reading down further after it discusses the force the defendant does not have to prove his reasonable belief in alexia's age or that she consented rather the government must prove the defendant acted with the intent to violate illinois law as charged in the indictment so if one reads all of defendant you know the burden is on the government to prove intent if the defendant reasonably believe alexy was seventeen year old didn't have any intent and that was all explained in the instructions it was also all argued to the jury they think through the instructions in the argument the jury was well aware i don't think that there's any way the food the jury somehow thought that they could convict even if mr ray genuinely thought that alexy was seventeen defense centered on the age issue and knowledge of  is a understand it i think that's correct i mean reading the closing argument i think it was a bit of a scattershot approach your honor i mean there was certainly i mean i think there was an even argue our an argument that you didn't necessarily even know that the sex occurred in illinois so there were a whole bunch of arguments in this case but i would say yes the principal arguments were you know maybe weddington has a beef he didn't know no one would know the girl was trying to pretend that she was older and on the force she wasn't credible that that this wasn't forced think those were the humans so so yes this was all teed up this was all very clear to the jury as to what they were supposed to find the instructions adequately i mean the burden is just to the district court abuse its discretion given the instructions there's no requirement that pattern instructions could be given i think we can always look at instructions later on after the issues have been fully framed in our own appeal and say i could've written this a little better about a little better but on the standard here which is did the district court of use its discretion and did the instructions misguide the jury to its prejudice which is the standard in this case  intent and i think that was the district court's goal was to try to really get the jury to look at what mattered what matters is his intent here's how these things play into the intent as it was you know the jury was asking questions like will we see this is this a separate offense do we have offense and i think the district was concerned that he didn't want the eldest on focusing on that i mean that really could have been to the defendant's detriment if the jury said well we're sure that this happened and didn't think about the fact that the intent had to be formed before i mean you know so i don't i think it would depend on the facts this is a case i mean i suppose in general the district court would probably not have gone wrong by by following the pattern instructions here but i do think that that was the district court's concern there are such situations and there are cases of course if the if the offense here had not been consummated the mere fact that those elements had been ticked off would not matter and the reality you know would be if a defendant cross state lines intending to force someone to have sex and then the defendant consented without the force being used that would still be a violation of federal offense be hard to prove but here but it would still be an offense and that was i think the district court's concern is if we overly focus on the patterns and wed ourselves to the patterns we're not really focusing on the actual twenty four twenty three charge here  i would say i think i would basically stand on our brief on the guidelines issues in the district courts explanation issue unless the court has questions because i'm i'm quite certain the court has questions on the supervised release matterson but you know the guidelines i think were properly followed here this car eliminates the double counting argument and there was sufficient evidence from which the jury could could or from which the district court could if it could find force as far as the explanation goes i had to admit in our brief the findings it covered everything yes and i mean yes if the defendant had said no i think you didn't address efficiently why you know part of history or my criminal history that only consists of reckless driving is enough you know that and i'm sure that the district court would have been more than happy to spell that out more but i don't think that there's anything here that would justify reversal of that so we come to the supervised release release issued your honour's the court is now being asked for the fourth time i guess to consider question of whether bremer and taylor are correct where the courts should be instead of overruled those decisions and create a circuit split with the first circuit i think that the issues are reasonably well teed up i do agree that it can't make any difference that it was tailor it was the defendant that moved in here it was the government that moved griggs is a judge made doctrine and statutes can overrule that i think the jolan case you know there's a fairly vigorous dispute about this about how exactly do we interpret the restitution statute where it says you get ninety days after words to appeal and earth excuse me to fix and finalize the amount of restitution and of course the dissent in that case him to suggest well you know you can't be doing anything in the district court all the cases on appeal so this must mean we have to wait ninety days before there's a final judgment and the majority opinion says no no that's not true in fact this happens all the time district courts can you know issue a judgment and then have an issue that sort of still pending and still in reserve and happens is we consolidate those issues on appeal and that's that's what hat is has happened here there's of those supervised release issues that are are being taken care of and then those become consolidated and those become briefed and issued on appeal i mean do consolidating does consolidated briefing present greater challenges for this court than a standard singletrack appeal i'm i'm certain that it does but at the same time that is something that this court can and certainly does on a regular basis deal with in the restitution context as to why congress would want this i think that demario explains that i think that this court's decisions explain that as well sent supervised release is often as it was in taylor as it was in tomorrow something that is ongoing in the court the release issues when defendants are on supervision that need to be dealt with and neal that the courts more recent decision points out you know you can modify these at any time you have to wait until the defendant starts supervised release to suggest that there are changes in situations where these things need to be modified so there is a normal default rule it's a good default rule that says we don't do this but there are exceptions and there are reasons for doing this that this court has sort of revolutionize revolutionise supervise release practice in this circuit and it's an ongoing fight that we're having as we have cases coming back two three four times as we continually revisit these conditions i think the court needs to think about what the best remedies are for doing that now circuit rule fifty seven and could add a suit fifty seven b that dealt with this kind of situation if it felt it needed more notice or it felt it wanted to have these kinds of situations was all but i mean i think our view was that this was an opportunity in some respects to try to get some kind of agreement resolution without having to go through the full briefing in the full analysis of the full review that this court has done and in case after case in the supervised release context that we do not believe that the district court abused its discretion in its decision to modify any of those conditions the statute does allow the district court to proceed while the court of appeals is proceeding as the concurring opinion in taylor pointed out the phrase at any time appears at least thirty five times in the criminal and civil rules if there is a special jurisdictional doctrine that comes with the phrase at any time don't we have a conflict within the circuit and a potential problem for the thirty five some odd times this phrase appears in the rules i think your honor that if to the extent that make you says that to make you points out that that it is in dicta because in that particular case the rule that it was analyzing rule thirty six the court found did not apply rule thirty six did not apply but where they were never going to let state  i do think that is not consistent with dolan i think that dolan says that the majority in dolan says essentially we believe you can do this the district court can act on restitution in the district court while the case is pending and the dissent says we disagree with that but in the opening the reason that they say they disagree with that is because the statute doesn't they read the statute to say that you can modify restitution at any time and does appear even in the dissent to suggest at any time has some sort of jurisdictional significance that could overrule the judge made doctrine so i would say that that would be how i would distinguish from q i wouldn't like your ground of distinguishing make you it sounds like you're asking us to  the problem i'm raising use among whatever else can be said we seem to have an interest circuit term for it and normally it's a good idea to clear that up well i think we've offered the reasons in our brief why we do not believe there is an interest  conflict to the extent that this court believes there is an interest circuit circuit conflict we would suggest that in light of mickey in light of tomorrow in light of reimer in light of taylor and in light of dolan that to the extent there is a split the decision that she is i'll start with the supervised release is yours and work backwards i will say the government says the courts change landscape in the circuit courts change the landscape about supervised release nationally air has changed to standard conditions for the entire country is in the process of changing all editions so whatever this court does will be looked at in other circuits when these issues start to trickle down it's an important issue for various reasons and dolenz not control dolan is a is the restitution statute wh specifically leaves open an issue in the district court for determination later it's specifically says you can leave it open in the district court in doma and said i'm leaving this open i'm going to make a decision in this many times it did actually take longer than the ninety days the court said that was fine but when it goes into the court of appeals the court of appeals knew that issue was still pending the parties knew that issue was still pending and you than another appeal would likely follow unless the defendant got everything he wanted in this case that's this completely different these issues were settled by the district court decided it came up here it was brief was filed that's the reason now that's not the only reason to change brain mind killer but that's the reason why it matters practically for this court and practically for litigants about how to approach an appeal how to argue an appeal how to write a brief it approaches those issues i have and i would disagree that there is that restitution issue does not come up very often dischord it does come up occasionally but certainly not with any regularity and certainly not with the regularity that this issue is coming up there will be a point where this issue probably goes away but it is still coming up and as the court has questions about the jurisdictional issue i'm going to talk a little bit about the instruction instructions absolutely misled the jury i'm not trying to say that the illinois or fan should again charge as the offense in this case as with twenty four twenty three i found that instruction was fine we have no problems with them instruction but when the government alleges an illinois offense and the district court instructs the jury on that offense the instruction has to include all the elements of that offense and the illinois law is district court eliminated those elements and while they were in a defensive jury instruction i will say that any juror lay person comes into the room will look at an instruction that is titled defenses and think the defend t because the layperson's understanding of the word defenses the defendant has to prove so when you have something labeled defense as it automatically shifts the burden in the jury's mind to the defendant and that was an error in this case