constructive and then claim it's important to note that his claim relies on it express provision of the fifth amendment the united states constitution that specifies that no person shall be held to answer for a capital or otherwise infamous but the united states constitution the fifth amendment expressly gives grand jurors sure but we're asking the grand jury to do is to is to is to say whether we should hold somebody over because there's there's reason to believe that they have they have violated ok so that's not really i entered i appreciate i appreciate the nuance i think it's a very good point but not really a problem in your case well it's not it's not the basis for your appeal i think your honor that that we have to look back to the united states gets up and says oh i think instructions no problem judge i think right now he didn't object or he didn't say no no he didn't say please judge don't do this to do it that i believe that they think lee the government also has an obligation to run the government gave its instructions and your cut and your client got his instructions of the court chose from instructions having been the district court it kind of makes me aggravated when somebody comes up above me and now says i give bad instructions when they don't even object so you're getting some of those questions right plain error for the district courts to have failed to include dates instructions to juries that it's not required by statute as an element of crime first of all in terms  of plain air going back to what is offended that should apply i don't believe it's been fully resolved by the court but we had in the past the court has held that that when you've had but i believe that was in and that case was i believe for itself on the rule of the case doctrine in attics pressley address an issue but i think in addressing constructive amendment claim the reason i started out with the language of the fifth amendment is specifically argued to the jury said ladies and gentlemen you'll hear these calls and you'll hear the defendant's ability ability to manipulate b and they will also be additional evidence of his sex trafficking of her jury actually came out with an acquittal verdict and come for comfort concern june two thousand and fourteen which comes right into the middle of count three january two thousand and fourteen to january two thousand and fifteen for the jury flat in this case the jury made a determination if the jury spoke so loudly then i have a tough time wondering why there was any confusion in their mind as to count one through three because they specifically ask a question about count four well i think we're trying to and if the jury did do something that that the trial judge and defense counsel on both sides to not pick up well the problem is if you're going to use the jury and what the jury did on one side it's a little tough not to see that they were confused as to count one and three when the only place they asked the question was on count four and count ones through three they were confused and they came back with a verdict i think i think that that's speculation your honor well i know but that's why because you want to speculate as to what they did on down for an hour late here about count three now three in the count three as i understand it it was limited to january two thousand and fourteen to january two thousand and fifteen right correct your honor and you conceded or your client did that this was a continuing of fancy correct correct and as i understand it and i'm just trying to get this through the evidence the defendant contacted b m in january february of two thousand and fourteen after seeing your ad on the back page and asking her to come to work she went to las vegas in february two thousand and fourteen on the first day slapped her and took her to the street to solicit it went back to she went back to seattle she returned to las vegas in april two thousand and fourteen and work through august and from thanksgiving until january two thousand and fifteen she worked again so it seems to me there's no evidence except during the dates of january two thousand and fourteen january two thousand and fifty well there are sixty one day and eighty six day period in which they were hard but that's during that time period i mean i'm just trying to say i looked at the evidence because i thought you might have a point but what we were really looking at is january two thousand and fourteen to january two thousand and fifteen i looked at all the evidence to put in there as to what how she could be convicted and basically i haven't got anything the first contact is in january february of two thousand and fourteen seeing the ad on the back page clear to going back to january going back from thanksgiving to january of two thousand and fifteen she works again that's the time period you concede it's a continuing offense and i'm still trying to figure out why there's any other evidence which convict her outside that time period well because the government argued extensively that mr poe continued beyond those and this is this is an outlying case it's  a real i way i called her from the call of corrupt and the government specifically argued that it went way up through october of two thousand and fifteen that listens our government's argument to the the defendant made it made a confession about joining the conspiracy around the date of of of the offense that the written question this is a highly unique case where there are no dates or timeframes and also a continuing offense starting on or about you know january two thousand and fourteen and continuing on or about january two thousand and fifteen what is it you want the jury to do when he gets back there  do they have to agree as to what happened on november first and march fifteenth and july fourth well first of all the government never presented a jury instruction to the jury never present instruction defining what a continuing defense is we could we could talk about the legal next for you is there is that set out as a separate issue in your brief is that is that a failure by the district court i think believe that was presented there is this playing is this pla believe i believe it's plainly or did you present did you present a definition as to a continuing offense i argued that that first of all a believe the ninth circuit has not established that  these are continuing offenses or the defense counsel made that concession below that's what i started on appeal and i also said that there think sense of evidence for the jury could have found that it was not a continuing offense because of the times they were apart the times that b m initiated contact with mr powell the times that she she went to work with with with other parents so that was ample grounds to show that and most importantly the perez talking about what you need to do to forfeit versus waive jury instruction we think based on both the law now and paras there was waiver of the jury instruction issue here but under any standard there was no constructive amendment in this case because the evidence of the defendant's guilt was confined to the period charged in the indictment and also in closing argument argument the government on page fifteen seventy eight said i'm now going to describe count three to you and on page fifteen seventy nine said the count begins in january twenty fifth scene and generate twenty fifteen now counsel comes back and says but in closing in opening argument the government characterized the communications while mr powell was in the federal penitentiary as additional evidence of sex trafficking but if you look at that evidence and the way it was characterized in closing it was additional evidence that she had sex trafficked or not that he was continuing to do so and in particular the government focused on evidence that in november of two thousand and fourteen he forced b m to strip naked and did a body cavity search on her because he was missing a debit card and they had a come back and forth exchange when he was in prison where he said he felt really bad about that and he thought that that was a despicable thing for him to have done and the government said that's evident of his guilty knowledge of sex trafficking that's evidence that he's guilty of count three as charged during the relevant period  i also think that this isn't there isn't a unanimity problem here because it's a continued fence as this court's question suggests i'd be happy to address it with either the will for twelve or rule for three evidence of if the court has questions about them well just on the unanimity i mean i think i think it's an interesting i think it's an interesting question just at least from a metaphysical standpoint if not from anything else what so what does the jury have to agree on but that something  occurred during this time so they have to agree that the specific instances occurred well the supreme court in this court has been clear that you don't have to agree on alternative means a jury doesn't have to and so for a continuing offense they have to agree that during the relevant period charged he committed the offense and i think united states against miller makes clear that evidence that you know the jury could have found a couple of different things were the way he violated the statute doesn't mean that he that there wasn't unanimity if we knew it i mean it's it's odd if if if the if a march incident for example were were in in question and half the jury said well i think he did the thing in march and half him said i don't think he did but they they flipped as as an incident in october with the other half thinking he did it does does that satisfy the unanimity requirement i think it does under this court's precedents in the supreme court's precedents i also think that the evidence the only  that suggest that that might be a problem are when there really is a gap in the evidence if you look at one of the cases that counsel relies on there with the drug conspiracy and there is evidence of a drug sale in december and in june and the jury asked the question what do we do if we think there are two separate conspiracies and so when there's some sort of evidence of genuine confusion on the part of the jury about the elements of the offense then you might have unanimity problem but here there's no there's no such evidence there's there's no  problem all the evidence is during the period charged and our theory was this was an offense that began when he started to recruit her and he slapped her so that you have the elements of you know recruiting or harboring there's a whole list of things you can do alternative means and the force fraud or coercion element and it continued because every time there were they were a part the record shows that within a couple of days they were in touch again and he was recruiting her again oh i would the papers submitted to the district court about the submission of the assault conviction what counsel for the defense said was this is not similar not this is overly prejudicial in the reply brief on appeal counsel says this was a pivotal moment in the case because this is why the jury thought he was a bad guy that's just not consistent with the record they heard extensive evidence from d m that he was violent they also heard from an expert witness about pimps and prostitutes about the the nature of the violence in a pencil a ship so the idea that this was the source us worse of prejudice or sort of the only reason you didn't have any you didn't have anything here that involved a tire iron that you know we did not your honor but we did have evidence of a violence he slapped her he kicked her in the legs and again we had a expert witness talking about the fact that pimps are violent and that's where we're just like there's a million this was so graphic you know the bloody towels and the broken skull and all of that stuff what how did that have anything to do with this case and why isn't it prejudicial well you're on the newly graduated again when you're looking at the abuse of discretion standard of review and you look at what the defense said to the district court about why it should be kept out what the defense said to the district court about why it should be kept out was it's not similar not it's so prejudicial so the district wasn't asked to rule on question and didn't really focus on it and then when it came in defense the defense had a standing objection was but i also think that if it was error or if it was an abuse of discretion it wasn't harmful because there was additional evidence also because it was ten pages of testimony in a sixteen or seventeen hundred page record the suggestion that this was the reason he convicted it's just not convincing it's just not borne out by the evidence given all the other evidence of his violent that's your arms your yeah that's right your honor but it's harmless error plus an abuse of discretion standard so that's why and i'm catching my answer the way i am so you're saying you agree violently sure of the crime is just similar except that now was done in the context of a prostitution operation right that's right your honor and i will also note that there was evidence that we sought to to submit to the trial judge before trial that b m and one of the to juveniles was aware of this assault conviction on the facts of it and the court didn't allow us to submit the present that and so the jury because they thought it would be the court but that would be too prejudicial and it was in the context of this prostitution operation and probably showed that powell was willing to use violence in the operation that's right honor and it also was similar in the sense that it was a hotel room and they were using the internet to solicit dates and so there were similarity factors and those were the factors that were focused on when we we asked to be able to present it and the court made the ruling cautionary instruction before each witness list supposed to testify about these acts and that never took place and also in order in the final instructions there's also the supposed to be provision about modus operandi as it was transpiring during the trial neither the government nor defense counsel caught that and overall in terms of looking at the air as to certainly the jury unanimously unanimity issue with clearly race and let a gated but in terms of the constructive amendment issue i think it's important to look at the fact that both parties have responsibility before the district  made a specific finding that dates and times matter and and he specifically stated it mattered because you don't know what the jury will really come out and make a decision for the from the appellate court perspective in terms of why do we have know requirement for counsel to object who is at fault i think i think you have to i think it's a point to look at the whole picture the responsibilities of both parties when the party presents jury instructions they're supposed to flag issue