united states versus murphy commerce with the intent to do something which the law forbids and in the context of statutory rape that means travel with the intent to gape engage in sexual contact with a person whom he knows to be below the age of consent it's virtually self evident that a person who travels with the intent to meet another consenting adult doesn't commit any crime let alone a crime carrying thirty years in prison or this crime was complete when he crosses state lines that's correct not only had sex with the of the victim isn't the deciding factor what is important is that the person has criminal intent when they undertake the travel and that's not possible unless you believe that the person you're come going to meet is  sixteen and it's all over the record it's stated repeatedly that the defendant in this case honestly believed the representations that were being made by the complainant that she was sixteen while he pled guilty but the pervasive confusion going on as to what the elements are and it's clear that the defendant doesn't understand that a lack of knowledge is a defense in this case it's clear from his statements on the record it's clear from what the attorneys are saying on the record that there's a pervasive misunderstanding about what the the offense requires and that leads in turn to to the eleven b three error in the fact that not only does he not affirmatively allocute to having the necessary mens rea he's affirmative disclaiming it repeatedly stating that he believed the defendant when she made her representations so there's there's or is there anything in the record to indicate that he had the intent to have sex with someone who age twelve to fifteen now no i know he been he had sex with her before so i mean but but that might go very well to the fact that as to what he could observe from or or the or the fact that  him when he met or the first time because he's charged with traveling interstate on the second sexual act as opposed to the first sexual act right you know there was only one charge and i'm not sure it was tied to a specific  i'm not talking about whether what his assertions are talking about what was what was colloquy to and how the crime was represented to him to satisfy rule because if there is an error the and if there is an error it's a  relevant in the sense of understanding the context of all of us but the reality is is that when when the crime was described to him it was not described to him as crossing a state line believing that she was under sixty correct that's correct and the government when it was asked to be put to its proof did not indicate how they were going to prove that he believed she was under sixteen didn't offer didn't say we're going to prove the facebook page and that he visited the facebook page or anything else like that of the country there was a stipulation stating that the complaint it had affirmatively misrepresented her age to him so it seems to me the the elements were wrong from the beginning even in the  whenever he has an opportunity he he was guilty of twenty two forty three right i mean if he just wasn't charged with that statute he was guilty of statutory r well so i wondered what do you charge for that there's a different mens rea requirement are under twenty to forty or it's still for liability crime absent the affirmative defense it's still the case that if the defendant legitimately and honestly and reasonably believes the person to be of the age of consent that a crime has not been committed but there is a burden shifting mechanism at that work that night falls on the church with a trick question the judge chin was asked if it was just you know i understand it but i think the reason he wasn't charged with it is because it would have had to take place within a federal jurisdiction right right so if she had traveled and they had met on the army base or in the air force base where he worked then argue you'd have that offense but that's not the case  in the country i guess there's a case out of kentucky a district court case that goes against you but there's no case in which this specific issue has been litigated the term i mean they just have it's just hasn't come up with this context it hasn't well there's the seventh and eighth circuit cases which we cited which i think clearly support our interpretation of the statute beyond that is the statute itself is i would say plain on its face as i said the intent element is built right into the title of the statute and in that sense it's perhaps not that surprising that the issue hasn't parked its and it's in sans jury instructions so in that sense it's perhaps not surprising it hasn't percolated to the supreme court but what i would say from a plain error standpoint is that the government's construction of the statute is inconsistent with the supreme court's holding in the excitement video case because what the supreme court said is when you have a statute like this that criminalizes otherwise innocent conduct of conduct like travel then it's essential to have that main men's a knowledge component built in as to the age of the victim because if you don't you have a statute that's criminalizing potentially innocent conduct in is it's constitutionally unclear  morning your honor may it please the court sarkar on behalf of the united states does the government agree that the second element is intent to engage in illicit sexual conduct it is your honor and that is we're talking about what is baked into the statute of twenty five or twenty three he never i mean what evidence is there that he had the intent to house with a twelve to fifteen year old well your honor i think we're getting one step ahead of ourselves because twenty four twenty three the intent is to engage in illicit sexual conduct which is then defined in subsection f one as activity with someone under the age of eighteen so if there is an intent requirement to age in twenty four twenty three it is that as stated in the statute activity with someone under the age of eight you can't read intent because of the fact that if he accomplishes the actual sexual act that's an absolute liability c teacher she told him if he had a single phone call with her and she says i'm twenty one years old and he said i'm on my way and he crossed state lines she's actually twelve does it commit a crime no your honor because he would have reason to believe she was not under the age of eighteen ok there's a twenty one arose out of this case when she says she's sixteen well she falls within twenty four twenty three b she falls within the definition of f one of twenty four twenty three b she's under eighteen so if she's between the ages of eighteen and twelve it's your old age no your honor it for what the predicate offense of twenty four twenty three b is it is relevant for example if she were seventeen and he cross state lines to engage in a less that sexual conduct with her which was a production of child pornography then that would be a crime under twenty four twenty three be the predicate offense here the underlying offense requires that she be between twelve and fifteen and but he has to intend to commit that crime or he has to intend to engage in illicit sexual conduct with someone under the age of eighteen and the illicit sexual conduct as such was somewhere between the ages of twelve and sixteen he has to intend to commit the crime well your honor i don't believe so no i think yes and you're ignoring the reference to chapter one of nine that's in the nation it doesn't under eighteen years of age that would be in violation of chapter one and so then you go to one on my name which includes twenty two forty three and that's where you pick up the twelve to fifteen right which does not which the twenty to forty three does not carry dateline his knowledge of his age other than the victim being under the age of eighteen yes your honor the government believes it's the only way you can read those two statutes together is that he travels with the intent to engage in some illicit sexual debated it with my clerks but but and says things i knew it was wrong i knew but i couldn't turn back so in terms of what his purpose was the government leaves and satisfied under sun section after  indictment which sets forth the specific nature of what he was being charged with traveling with the intent to engage in conduct with someone under the age of eighteen and then having  well your honor under twenty four twenty three b the intent reaches illicit sexual conduct which is defined as a series of crimes involving individuals under the age of eighteen so for example your honor if someone were to travel across state lines with the intent of engaging in sex with someone under seventeen which might not be snatched sorry rape and engages in that type of conduct and say photograph the victim or takes videos and touch that would be the production of child pornography but eighteen is sort of like you know the umbrella and then you have to look at specific violations in what is there in one online that the government  is relying on that some other section your honor it's section obviously two two four three a which is a sexual abuse of a minor and that is a strict liability statute subsection d says you know when you have sex with a minor a strict liability but traveling to get there is you have to have the intent to have sex with a minor and you didn't charge him with forty three so you've got to travel with the intent that's why that's why when someone motel that's crying because he or she is crossing the state line intending to such a fourteen representation of the univision is age is relevant to understanding the intent to try to cross a line and so i have a hard time understanding then how a full fell across a state line intended to have sex with a nineteen year old week suddenly commits a crime of absolute liability because she turns out to be sixty well your honor those cases are charge attempts they're not charge as completed offenses as it was here is what you and i both agree that crossing the state line with the intent you don't have to have had sex and that's he wasn't charged with having had sex with every he was charged have it crosses state lines trailing cross a line intending to have sex with sexual relations that's correct your honor yes ok and knowing believing her to be under the age of eighteen and then being having met her on occasions and having reason to know that she was under the age of sixteen i get all the epithets that wasn't that wasn't what happened in the context of the of the approval of the colleague i mean that's the problem i understand your honor  mean i you know that he may win the fight he may win the battle and lose the war because if this goes to trial the odds are he's going to be convicted well and your honor we have noted as well in footnote a to the brief that there were other  potentially harsher penalties available so in terms of what the prejudice may be to the defendant he doesn't allege that he was prejudiced in that way and in fact we would face a host of potential charges that carry much higher right minimum sentences the so that the government's position is that if he intended to have sex with someone under the age of eighteen that's sufficient that's the government's position that illicit sexual conduct yes well and that the being under eighteen would qualify for illicit sexual contact if he had that and would know the the actual victim would have to be under the age of sixteen but as it relates to his intent yes ok thank you  you know i would like to talk well i guess i would just say that i think the discussion here today if anything highlights the confusion that was present at the time of the plea i think the government's continued position with respect to what the statute requires is not correct and it highlights the fact that that was an error under eleven b one g and he never had sex with this young lady and just been charged with traveling and i think the it would have been a much clearer situation i think the confusion comes out of the bleed over the fact that he actually had sex with her and somehow that kind of plays into everybody's thought process it's possible and people seem as if it was the substantive offense as opposed to what was actually charged here i would note just briefly on the sentencing issue of it to the extent that's relevant i think is another troubling issue because if he had been convicted under that statute his advisory guidelines would have been twenty four to thirty months of substantively having sex with a with an underage person judge brian had problems with the fact that he continued to kind of deny that he i think the sentence ultimately i guideline driven here because the guideline that ends up being a political under this travel offense is meant to be tailored to sex tourism cases and sex trafficking cases it was never i think it's just an oversight of the sentencing commission that they didn't anticipate that the o g would use