specific issues st that a message from mr monti hold that he wanted to see the miner again does not constitute federal enticement nd that the transportation of a minor that occurred wholly within puerto rico from one municipalit another does not constitute a federal offense st as the enticement statute the communication between mr monty hall and the minor female on the messaging out kick does not constitute enticement thus the district court erred is twenty nine motion as to this count we are relying here on a witness's recollection of a message that occurred eighteen months prior in order to substantiate a critical element of a very serious federal offense  she tossed there was no actual evidence of the conversation produced in trial b minor testified that what she could remember was we discussed nothing in particular only that he wanted to see me again the judge the evidence here was that testimony by the miner that over alleged six days span where they communicated on kick he said i want to see you again the enticement element of the statute here is of the most important of the court communicated throughout the sixty's so i guess we could make a reasonable inference that yes there was multiple communications but a number or how frequent or how often there was no testimony as to that but the answering honest question can we look to these other in a cumulative thing and we would suggest that st all these communications that existed they were in person communications so it doesn't constitute federal enticement notwithstanding we don't think the court needs to bifurcate the in person communications versus the interstate commerce communications in this particular case we think even if the court were to consider the cumulative evidence and we would suggest is still minimal it still doesn't rise to the level of what should constitute enticement under the federal statute and that brings me back to the argument i was making initially congress has made the choice to criminalize the persuasion not the performance of the sexual acts themselves so  yes your honor and there is an age difference in this case but we argue that this is not a strict liability statute so there may be that would go into the cumulative pile and we want to stress that the focus of the court should be on what constituted the interstate commerce persuasion which in this case was minimal yes we can look to the overall factors but even if we do that falls far short of what enticement should carry  the non interstate commerce communications the face to face interactions and the testimony that had to do with it still wouldn't rise to the level of what the federal enticement statute requires enticements not to find she  enticement requires the the luring the inducement the tempting and the court's look to whether the defendant through his actions overcame the will of the minor whether the he can somehow through his persuasion or an enticement what we do know is that on november th which is the day the st encounter this miner made plans with her friends to skip school she went to a meeting place to meet two men she never met she had never spoken to seen  weren't friends on facebook she had no idea who she he was she was predisposed to engage in the conduct at issue and voluntarily went on november th without any not even face to face communications with the dishpan and so there's nothing in the record to establish that mr montijo compromised her volition however misguided it may have been and we do not mean to minimize this is a very serious offense and that a person in their twenty's had sex with a minor and that is a criminal act and he could have been persecuted under separate state crimes but the government chose to do a federal enticement an arsonist into the court is what transpired in this case certainly doesn't rise to the level of enticement that this court has found mentioned in the reply to the dissent on bank mentioned that can cut both ways and so st we need when we do such transfer petitions with the plain meaning of the mark commonwealth or in the commonwealth commonwealth has no definition in the statute in the manner so we have to look to whether it's to find anywhere else and it has a multitude of definitions throughout the united states code and the commonwealth is referred to as the commonwealth of virginia kentucky pennsylvania massachusetts sometimes we see the commonwealth of puerto rico sometimes we see the commonwealth of the marin island the commonwealth nations in fact in the federal relations act i think gives puerto rico more sovereignty it's not even defined as the common welfare it's just the finest puerto rico of so given that there's no clear definition of isabella struggling with the to look to what are the reasons the commonwealth has included even if we're unclear as to the definition the record is there there's nothing to indicate senator coats i did this this word commonwealth at the very end of the one thousand and eight dollars congressional hearings with question is why territory wouldn't we would see say that the passage of the constitution in the one thousand nine hundred and fifty s we look to see whether puerto rico should be treated as a state under the federal agents act and in this case in the manner good morning may it please the court julian mcmahon you notice for the united states the government in this case presented sufficient evidence that monty hall knowingly used kick to persuade the minor to return to the motel and have sex when we look at the evidence as a whole here just like your honor stated we look at all of the stimulus of evidence and it showed the use of kick was for the purpose  they form a chat and not only did miner two but miner one also testified about this that they formed a chat and they planned to go to motel as planned they go in they pick them up at school next to the food truck and they get into the car with these two gentlemen prior to getting into the car with these two gentlemen the two gentleman text and we have the text where one of them says what should i wear i'm horny this morning so this goes to show the intent of picking up these two miners and taking them to the hotel they get them and they take them to a housing project where they offer to thirteen year old girls smokes and drinks then they transport them to  motel a motel that it's not a typical motel maybe that you see in the states it's a motel where you drive in to a garage no one can see you get out of the car no names are taken only your license plate is taken it's an occupancy of two persons per room and you pay twenty dollars to have the room for six hours the jury was able to see the type of room where it was where it was just a double sized bed lawn chairs and mirrors all over the wall couple number one the miner testifies goes into the room and has sex couple number two which is mr monty hall and and d p p they go into the room and he tells her into a grooming behavior you don't have and you don't have to do anything you want to but you have beautiful eyes you have beautiful hair one couple number one gets out of the room they go back and drop the girls off that afternoon you have mr monti who talked to his codefendant asking have the girl said anything they start a nd chat where he says i want to see you again it minutely the government doesn't have the transcripts of the chats but she said i wanted to see you again and the minor testified that she no your honor and that question was not posed but when we look at what the statute requires there's four different verbs none of them which are defined by the statute so we use the common definition and one of them is persuade and the other   mention or to stimulate the occurrence or the cause of seeing her again she testified that she believed it was to go to the same motel if it was not to go have s look at they go to a motel when they're offering these two young minors smokes and drinks prior to go to the hotel when they're taking them out of school when they have all of the the resources to be able to do this that some way that they're appealing to their mental state and and saying yes let's engage in this criminal sexual activity and that is what the jury was able to see from the cumulative effect of all of the evidence presented was there any evidence victim did state that she had sex with the individual it was that it was on the nd time where it was the nd victim that walked in and saw mr melendez with the nd victim but i do not believe the record states that but i can definitely double check and write a twenty j if the sport so decides what states if she knew that the victim number one had sex with a codefendant on the st time transportation the st type of transportation is the crossing of a line per se interstate or foreign transportation but then there is the nd type of transportation that's transportation in a commonwealth in a territory or possession  nd type of transportation to territory and possession that point the rico felt wearily within that definition seven years later congress passed public law six hundred dollars which allowed puerto rico a greater  greater degree of self autonomy in the an accident of that of the puerto rican constitution nothing however has changed congress's intent that travel wholly within point that rico should not being compassed in that man's act and was not decided and just as a footnote we don't believe that we need to this was not decided correctly i'm sorry and a footnote but as a side note what you well as your honor may know if the government doesn't have  n ability to appeal to the supreme court as a matter of right it needs to be approved by the solicitor general and we did not receive that approval and that is why that the case did not know there was no application for a writ of cert in that case and how did commonwealth come about what we know that it is the nine hundred and ninety eight protect act which was called the protection of children from sexual predators act it amended twenty four hundred and twenty three dollars a and a plethora of other statutes that dealt with children imposed harsher penalties on the predators of children now as this court also noticed st though never addressed the application of children because at that time the statute had been divided into but what we have is congress clarifying that clearly by adding the word commonwealth meant to encompass both the legal it went out without any discussion and while opponents hang their hat that there isn't anything on the record well your honor quite frankly it's a clarification it's a clarification that even no point but he was a territory which something was argued by the government and mother not the ward was but the court when the court specifically used puerto rico as a territory but back then when we look at a lot of the cases that dealt with statutory interpretation it seemed that public clock six hundred dollars was a territory plus and a lot of the cases of this very circuit didn't go so far to say that it's a state but it said that it was fraught with uncertainty i believe that's what it was used in the past so this is a clarification and to support that your hon is an outstanding yes why because in the protect act congress was wanting to do was widespread protection for child sex becomes it was not harvey no exceptions and then we also have to look at what was going on at that time at nine hundred and ninety eight dollars now a lot has been said that there isn't anything on the record as to why commonwealth was added at that point but if we take judicial notice of what was occurring less than a month prior the senate approved resolut enactment of the puerto rico constitution public law six hundred partially because of the savings class now if i may finish my train of thought partially because because of the train rico because with public last six hundred dollars they gave puerto rico more autonomy but the relationship between the united states and puerto rico remained the same so they didn't have to go in and rewrite everything and that is why one of the reasons why the a which shows that congress wanted expansive coverage for protection of mine of minors against sexual predators now if i make by i know i mean grossly over my time but just man chief judge explain mann act in that nd type of class of transportation within any commonwealth territory or possession now the commonwealth territories and possessions that aren't states that phrase intends to turn constitutional territor for example puerto rico the northern mariana islands that's why there's that separate within language the nd type of transportation but when senator dan coats wanted to include commonwealth as a state he did and twenty six provides heightened penalties for repeat sex offenders that have state convictions and he used to the definition state in that section specifically to include the united states the district of columbia and the commonwealth state or territory because they wanted anybody who had a previous conviction to get heightened penalties when they wanted to include the word commonwealth as a state they did and the fact that they didn't do it that was clear from the record it was mr melendez codefendant and the st two minors secondly you don't have to do anything you want to do but you have beautiful eyes and hair it was not in one single sentence that way and it's not clear statements were made if you read through the transcripts of the testimony that mr monti who was the one that said that he wanted to do it rendezvous they used the word wealth on spanish to go out again again that was in the group chat and it's not clear that whether it was even one of the girls who said that the minor testified that she knew what the word was that she knew what the word taken outing meant so just to clarify and i still say even with those three things clarified we still have to ask where there is no doubt the one thousand nine hundred amendments were to be tougher on predators and words protect minor children there is no doubt in the congressional record the penalties worse defense a substantially but the government offers no  now why congress meant to punish persons who commit this offense wholly within puerto rico but not of persons who would engage in this in any of the states and i want to clarify in preparing for this i checked pacer and i cannot find a single instance where this kind of behavior two thousand four hundred and twenty three a is prosecuted in the commonwealth of the northern mariana islands which is a commonwealth in the virgin islands in won't it simply isn't done there it's only done here in puerto rico by the federal prosecutors in this jurisdiction so to say that they want to that there is this thing that we want to protect transportation current call wholly within territories or camos it's not done in any of the other territories are common not just in this jurisdiction cases only began being prosecuted in puerto rico sort of around the early two thousand for reasons i guess the dawn of the internet age but it's only prosecuted here and even in island nation the island state of hawaii there's no intrust state hawaii transportation it just it belies common sense and congressional that congress would intend this absurd result only here for the three million two hundred thousand people living in puerto rico i think thank you both will take a five minute recess all ri