two thousand and seven time caught a woman in a sting operative prostitution sting operation after initially lying about her age to police ultimately investigation reflected she was seventeen years old further investigation revealed that on her of motion limit he it was not granted the issues in this particular case and i reckon it while we would seek to critters to present a mistake is to age depends to both statutes the basis for doing so in some respects is the same in some respects is different in with regard to the twenty four dollars or twenty three dollars charge the trafficking of a minor per the purposes of prostitution i st want to point out something that they did not raise in my brief in my preparations the principle doesn't matter now that i think it does matter because i don't know the government's theory if he's guilty as a principal it will matter whether or not he's guilty isn't because i don't i don't we the government would have to proceed to present they've charged him in both bashings so perhaps the grand jury may find him guilty as an accomplice but not as a principle you make of the fact that two thousand four hundred and twenty three does provide an age defense for specific one of the very statute which includes that core is correct i agree but i think just on the face of it that the the adverb modifies the verb which it can be object of that verb is a person eighteen i think just the plain reading up bits and i start back with and i guess that's the general presumption question is this is not is not should this rule be decided according to the case be decided according to that presumption your friend says no other courts they know who i in many other courts say now i think perhaps there's seems arguably a trend in the united states supreme court i when i feel the excitement of video case you look at the actual language of the opinion the statement is that an issue is whether the term knowingly in paragraph one modified the phrase use of a minor and then he went on to say the language was more ambiguous than the language here not only because that phrase use a minor was not the direct contact with her but also because it appeared in different different subsections so it looks like the majority in forestry where a s saying look what we're saying about how knowingly modifies everything after it in this case does not apply to these statutes including the statute at issue here about transporting a minor interstate concurrence is very clear in saying those are different but the but the majority is making a plain that they're different do i concur i do think though even in the very recent case of rape he of but also  extended in knowing requirement to an individual who apparently put forth the defense he didn't know he was here illegally i am here's what you got to come to grips with if you  that we can't let that happen what's what's wrong with that reasoning well because somebody could be be committing an offense without knowing they're committing in a fat and the courts have all said and we don't care because it opens too wide a door we don't care that somebody could say you know it's the famous bad joke punchline she looked eighteen to me you're on our way and the courts are saying we don't think that's funny you don't get the you don't get to hide in there we're not going to accept that and convincing evidence i realize that they are standalone in that regard and that the majority of circuits even this circuit in unpublished opinions has not gone to afford to defend if that happens but you ask the question why and it representing a client who has a mountain of evidence to suggest that the person glide about their age repeatedly to him and to many other people and then coming port than saying i can't put that forth is a defense to my client it seems unfair to him i understand that that that that the congress can punish certain behaviors but i think that mr tyson should at least have been allowed to present the defense that he did not know that she was a minor and the evidence of the record that he did anything to ascertain her age there's nothing in the record it we never really got that far well now we all we all agree about the decisions of our sister circuits we actually have a decision that hamilton case which i know you're well aware of but we obliged to to go the other way with with bonnie president regretted it  considered the predecessor statute but it's largely the same i think it's persuasive authority and i recognise that in making this argument to you i'm swimming upstream like it nevertheless you know as a as a when i say a question of fairness in the if again i'm putting put the argument that my client seeks me to raise your you know from a practical basis he has a convincing argument that he did not know and arguably maybe he  should have if the case in the government perhaps could show that he did not verify or should have taken further steps but again we never but that again up i would presume is that we would be allowed to present that even as a defense which he knew the government would have to come up with evidence to show this person had you know the answer is yes and i think there are many ways that they can do that based on her testimony perhaps his statements of any past history between the two of them her appearance i mean i realize if this is a particular case where it's a very close begin no she was very short of very birthday or relatively close to her th birthday and we're not talking about someone under the age of twelve i mean in pennsylvania and i realized the mistake is an age ready is it mistake as to age is a defense when the relevant age is over fourteen in pennsylvania so essentially pennsylvania draws the ready to say if it's the low fourteen you can't present it as a defense now this is the state of pennsylvania however but when it's over and it might be more likely that you get and i recognize that that could present some people coming forward and saying i didn't know since you've raised this about pennsylvania law what's your what's your best argument for this assertion that you're briefing that this is a  piggy backing statute there that the government was obliged to prove underlying offenses were lawful i concur actually with the government's brief that that pennsylvania doesn't have a statutory defense statute under which my client was being prosecuted in other words i realize he's being prosecuted for prostitution purposes i don't know if it was under the pennsylvania definition under a different states if and under some federal definition of prostitution going on in pennsylvania right sorry this is going on and ask that is correct ok please the court my name is francis i represent the government in this case your honor with respect to others with respect to both of these statutes i think the st thing i want to mention and point out is that the courts have been fairly as as as judge connor said in his opinion there's been a robust consensus that congress has the right and the authority and the power to pass legislation to protect minors  particularly if i can start with two thousand two hundred and fifty one the production of child pornography for legislative history is pretty clear in that case and it has been examined by the supreme court in the it's in the excitement video case where  chief justice rehnquist when in a footnote in excitement video talks about it it's it makes sense in these cases the place the risk of error on the producers of child pornography because the legislation is designed to protect my so i just think the th circuit is is is long it's inconsistent with all the other circuits and other courts follow that decision come of course followed it i have not found any other court that followed the th circuit's decision different talk to the prostitution issue do we are we looking to pennsylvania law to determine what prostitution i don't believe we are that the statute two thousand four hundred and twenty three a talks about transporting a minor in interstate commerce for the purposes or with the intent to engage in prostitution or any other offense or any other crime involved sexual activity that someone could be prosecuted for there is a federal prostitution statute it's two thousand four hundred and twenty one dollars it's part of the man affectively enhance the penalty when you are transporting a minor instead of being a state of an adult so in this particular case the different the the age of the victim doesn't determine whether or not something is a  quack it's a crime to transport anyone across state lines for purposes of prostitution you have to get into this big issue although i don't believe so we're not talking about having to specify an underlying pennsylvania offense here because congress is intent is that they shouldn't congress writes these statutes congress can put in twenty to fifty one there was a version that said it had to be knowingly congress decided no it doesn't have to be knowingly because as a matter of public policy the prevention and the protection of children from sexual exploitation is what i believe the supreme court in new york ferber said a government objective of surpassing importance and so i believe that the supreme court got it right and all the other circuits including this circuit got it right in cochran right we mentioned it on the cochran case we mentioned that's correct