the morning may please the court the issues presented for review today are whether the trial court properly instructed the jury on counts one in two of the superseding indictment  section fifty ninety one in a conspiracy to violate section fifty ninety one and then count three of the superseding indictment violations of count three a violation of section twenty four twenty two for enticement minor and then suddenly even if the court did properly instruct the jury in this case on the mens rea or requirement of sections fifty nine he won and twenty four twenty two whether the evidence at trial was otherwise even sufficient to satisfy the government's version with respect to the knowledge requirement for each of those counts in the superseding indictment and once again by talking about section twenty four twenty two this is the count that has to do with enticement of a minor in as an individual who has not yet seen the age of eighteen years old to engage in either student war and sexual activity for which any person can be charged from all kinds an opponent would submit that the court improperly instructed the jury in this case with respect to any knowledge of the minor victim and that section twenty four twenty two should be properly read to require both unknowing to act in this case which is knowing persuasion or induce m succeeding statute in the united states could twenty four twenty three we interpreted the then of a line which and washington mean the exact opposite of what you  than twenty four twenty two and twenty four twenty three that code section deals with a person who knowingly transports an individual doesn't have anything to do with communication this has to do with transporting an individual who has not attained the age of eighteen with differences the judge makes a considerable difference in fact there is a split among the circuits over these signs her requirement for twenty four twenty two because it has to do with communications as opposed to twenty four twenty three which has to with communication as opposed to transportation in a situation with transportation there isn't a knowledge requirement because the defendant in that case by definition has  observe the victim because the have to be in the physical presence of the victim in order to transport that individual but no the you know they say that's not correct they don't actually have to see the person they transport well that's true dealing with perhaps one of those cases they draw distinction twenty twenty or twenty two and twenty or twenty three it in fact i believe in one of those cases it does draw a distinction between twenty four twenty two and twenty four twenty three was an undercover agent actually an adult believing that individual to be a minor and he was charged and convicted are convicted of violation of twenty four twenty three because the wrist some sort of travel between cities of new york together and are in the same subject matter portion of the code which these two are so in that case that if it seems difficult to a poll language into joining code sections and interpret them to be the complete opposite each other and judge again we we would ask that the court consider with the ninth circuit in a s circuit consider which was that because twenty four twenty two has to deal with communications that there would be a sign to requirement twenty four twenty two and this is why if twenty four twenty two didn't require any knowledge of the victim then we could have is a situation where one it all speaking anonymously on line with another adult who happens to be a minor but they're posing as an adult the internet and there are discussion not prostitution which is universally illegal but they're discussing discussing any sexual activity perhaps an adulterous relationship through a dating website and under the government's theory of the construction of the sign for requirement for section twenty four twenty two it's wanted all thinking that they're speaking to another adult on the internet and they have no opportunity to observe that person on the other end of the online communication they certainly on a dating website perhaps when they ask for some photo id on the other end of that communication as far as the criminal act or in that case is concerned it's one adult talking to another adult but under the government's theory of requiring no science to or for having any knowledge of the age of the victim in that case the government story would actually criminalize adult to computer screen so to speak a communication between a goal and a minor but i think in fact the government's theory in this case of acquiring no knowledge whatsoever who's on the other end of that online communication poses an unintended consequence for government prosecutions in cases involving sting operations because under the government's requirement it in the ninth circuit talked about this they said if you don't require any sort of knowledge of the individual with whom you're communicating online what ends up becoming a problem is in the normal use of section twenty four twenty two which is to conduct sting operations of adult police officers posing as minors on the internet and then communicating with somebody in them prosecuting them under twenty four twenty two under the government's theory if there is no knowledge requirement for the age of the person with term you're communicating it in that scenario but the unintended effect could actually be that an adult is communicating with another adult having no knowledge of who that person's true age and that could actually undo the prosecution that sing opera some of our opinion in washington would seem to answer that argument it is in that case we said viewed in context the purpose of twenty four twenty three a is to make a victim's under age status an aggravating factor in order to provide minors with special protection not to make the provision protecting minors more difficult to prove that its general counterpart and judge that is true and in the prosecution of the twenty four funny through the twenty three that was something that the court noted in the washington case we would submit that the proper construction of the sign to requirement which is subject to a circuit split on this victim it was a pornography case involving transportation of pornography through the united states mail and in the excitement video case even though it did involve all a minor affect them in a critical situation involving the exploitation of a minor even in that scenario  or the actual minor victim and in this case was also a question during the trial about that particular conversation and her testimony differs greatly from the coconspirator what she said was that  reaction and he remarks his face was blank there's actually no evidence in the record that he ever responded to that or ever had any reply or communication back acknowledging that he knew the  then the law is any evidence on a point is sufficient own that point the evidence the jury is allowed to believe any and all of any witnesses testimony so if they believe that but  to that would be completely sufficient under the law wouldn't you wouldn't like it but that would be completely sufficient arm of the law to establish that he knew she was under seventeen i was told that yes your honor in our view of the facts in that case that conversation is more n drew an unreasonable efforts in that case that no rational fact finder to support it without i refer you to me you don't think irrational facts founded could believe that if somebody is toe a person's under seventeen he that he knew she was seventy i mean she was seventy well i don't think any rational person could believe that point it in the face of these facts where apparently the minor victim testified he didn't even require move or a boat for his face was blank those were the words he used at trial that it would states as you well know there are three issues on appeal today however only one presents an issue of first impression and that's the issue that mr dean spent the majority of his time discussing which is whether section twenty two forty to be governing enticement of a minor requires the government to prove that the defendant knew of the thick them's minor status and the answer to that is no primarily for the reason the judge a g s identified which is there is analogous fourth circuit case on point both from the jones and the washington decision governing the analogous counterparts to twenty four twenty two which clearly states that knowledge of the victim's minors that it is not something that the government must prove in order to prove that by a lesion of the mann act additionally the government offers at the plane reading of the statute combined with the congressional intent behind chapter one seventeen which is designed to protect minors from the very predatory and potentially destructive world of illegal commercial sets as well the eleventh circuit case in daniels which is directly on point and addresses this very issue all provide the court with many reasons to find that twenty four twenty two does not require the government to prove that the defendant knew that the victim was under age starting with the washington transportation but congressional intent behind the mann act is to make this a criminal be aware statute that if you're going to engage in some type of criminal conduct that puts a minor victim at risk of being subjected to some type of illegal commercial sex act then the defendant bears the risk that that person is under age and therefore may be subjected to heightened punishment under federal law now under twenty four twenty three egg mr dean is correct that governs transportation and he's also correct that some of the ninth circuit cases that he's pointed to you talk about the fact that twenty four twenty two is a communication statute to some extent inducement or enticement could involve communication but where mr dean is respectfully wrong that those cases are in the context of attempt offensive and in this case the once again for your honor we have a completed a fact and the cases that have addressed completed offenses under twenty four twenty two b have universally concluded that knowledge of the defendant of the victim's minor status is not a requirement there are no first amendment protections for actually introducing or enticing a child into in a legal sex act there was an argument this morning that perhaps this court would run the risk of somehow criminalizing legal adult to adult patients and that is simply not true the statute on its plain terms already requires in a legal criminal act in order for the defendant to be guilty regardless of whether or not the scienter requirement extends to the element of age and that's because when you read the plain language of the statue it states that the defendant must have enticed or induced the victim into either prostitution or any other sexual activity for which somebody could be charged with a criminal offense in other words the statute requires criminal conduct and there is no risk that the statute would criminalize otherwise innocent conduct even if the defendant had no knowledge of the victim's age so this is not the case where there is any risk that we would somehow be criminalizing legal adult to adult communications it is by definition already a criminal act and congress has clearly expressed its intent to provide very serious and they can punish mn when the victim of that already illegal act is a child i would add that the government's brief explained that this is true in other contexts determined to also not require scienter of age because there are so many statutory similarities and kind and there is an analogous congressional intent with all of these due spent an enticement of a minor into criminal acts that it's already been ruled upon by this court whether it's in the cook decision here in the washington decision the government's limits that there's no principled distinction between those cases and what the result should be here under twenty four twenty two b and we would ask that you affirm the district court's decision to allow the jury to convict without requiring that the defendant knew of the victim's minor unless there's any other questions from your honour's on twenty four twenty two b i'm happy to briefly address the fifty ninety one issues or the substantial evidence question  ahead mr dean did not address the fifty nine one argument in this morning's oral argument however i would just prefer to know that there is absolutely no case law that the government has been able to identify to support that position specifically m trafficking victims reauthorization protection act and in that instance congress amended the scienter requirement to allow the government to carry its burden of proof by proving either actual knowledge or reckless disregard and as the government brief discusses in detail the act was further amended in two thousand and fifteen to allow the government to discharge its burden by proving either actual knowledge reckless disregard or reasonable opportunity to observe so over the that statute which includes the second the fifth sixth the eighth the ninth tenth and eleventh have all held that the government may discharge its burden under that two thousand and eight version by proving either actual knowledge or reckless disregard there is simply no inconsistency in the case law there is no split of thinking and in all of the fourth circuit on published decisions that i was able to find in my research the fourth circuit has also reiterated that the government may discharge its burden by proving reckless disregard when you look at the record here there is not only plenty of evidence that mr banker had actual knowledge of the victim but there is a bundle substantial evidence particularly taken in the light most favorable to the prosecution that the government satisfied its burden of proving reckless disregard lastly with respect to the question of substantial evidence i understand the defendant's position that the conversation between the coconspirator and the victim and the defendant in their belief is not sufficient however i direct the court's attention  summerville decision which was another sex trafficking of a minor case and in that case the four circuit held a jury verdict when there was one single conversation between a minor victim and the defendant where the minor victim testified that she informed the defendant of her minor status and this court held that that was sufficient to uphold the jury verdict here we have well more than just one person saying there was one conversation you have mr banker's coconspirator testifying to the fact that she specifically informed him victim's age you have a minor victim herself confirming that conversation they provided corroborating details about when that conversation took place where it took place and specifically what was that that conversation was also put in the context of facebook communications and text message communications during which the coconspirator had invited mr banker to come over so that they could tell him something important and that subsequent to that conversation mr banker that reaches out to the minor victim following up on their i'm just saying if he has one person who says she told him then that and the other side argues well he did have an expression on his face and we all throw the evidence but the jury is entitle to believe that one one of the evidence and it please the court briefly in rebuttal now i want to turn to again the science or requirement of twenty four twenty two and the interplay between fifty ninety one and twenty four one three i would respectfully submit to the court that the a requirement the proper mens rea of that should be read into twenty four twenty two requiring knowledge of the age of the victim in that case is actually closer to fifty ninety one then it is to twenty four twenty three and twenty has ruled of course in washington and jones there is no knowledge requirement of the age of the victim and in twenty four twenty three the only speaks to transportation were ordinary circumstances understanding that there are few exceptions under ordinary circumstances when one transports another they have an opportunity to observe that encrypts will he can make an appropriate assessment of their age one hundred fifteen ninety one notably their peeves a knowledge requirement for the age of the victim and that's what congress has written in minor yet in fifty one there is a requirement that says knowing or and reckless disregard the fact that the person is not a paid the age of eighteen or that requirement can be discharged under subsection see if there is a reasonable opportunity to observe the individual and in fifty ninety wander is a science or a requirement for the age of the victim in the case and we would submit that in twenty four twenty two which is also a statute like fifty nine one that deals with recruiting or in placing again a communication another communication statute which is twenty four twenty two in the fact that it involves communications differentiates it from the absence of assigned to a requirement in twenty four twenty three because that's a transportation statute and again i want to turn back to there is a risk that there could be a criminal punishment for an adult engaging in what they believe to be an adult to adult communication with somebody through the cloak of anonymity of the internet with respect to  sexual activity otherwise lawful conduct that would otherwise fall under the purview of twenty four twenty two if that person happens to be posing as an adult on the internet and that there's no reasonable way for somebody engaging in an adult to adult communication on the internet where it's a s that you can observe you're talking to on the other side of the computer that they could otherwise jeopardize themself into a mandatory minimum decade in federal prison in violation of twenty four twenty two having no way of otherwise ascertaining whether speaking with on line and in fact the ninth circuit in the seventh circuit was cognizant of that danger in reading twenty four twenty two without any sort of science or requirement under that statute and what ninth circuit had said is that will unconstitutional showing of legitimate speech disappear and this is in the meat case this appears because twenty four twenty two requires the prosecution to prove that the defendant actually knows or believes a specific part of the inducement is a minor and that knowledge of the the code saying that as in the excitement video decision the supreme court of the united states the age of the victim is the crucial element separating legal innocence adult to adult communications online from what is otherwise wrongful conduct in their social group the people they became associated with she lied on line about her age she had a false birthdate on her facebook profile these folks primarily communicated through facebook the far majority of mr banker's going to cations with her were on the internet where she was lin age and that based on that we would submit that no rational fact finder could find that he knew or had any reason to know that she was under the age of eighteen and in fact the jury's question and during deliberations that second question they submitted but they couldn't reach in and  ty with respect to the counts having to do with knowledge of the age of the victim would suggest that this is something the jury struggled with as well we've asked the four to set aside the verdict for those reasons thank you