her when she was twelve years old that is what is known as a bad fact and it is a truism that bad facts make bad law and it is very difficult in the area of sex trafficking prostitution etc not to have bad fact when i was preparing for this argument there is one area of bad law that i would like to address specifically here with a court that perhaps was not well enough briefed and that is the idea that was touched upon but not decided in youngers or junkers i'm not sure how to pronounce the name of that case but that for a substantive offense under eighteen  c section fifteen ninety one that there need never be proven any commercial sex act and i find that i little slow actually because the whole idea behind this statute is to prohibit commerce and so it is one of those places where the government is saying is that the commercial act which is the basis of federal jurisdiction in the first place need never occur and i'm trying to figure out what in the world a and attempt crime yes they do an infinite regress of attempt depending on what the elements are of the great big crime if you follow being correct yeah and so they have a great big crime then you have attempted to do that when you have an attempt to do one element of it you have attempted to part of an element why can't congress do that oh it's called the constitution ok and they're called the actually it's in the structure of the constitution and it's the fact that the federal government has limited criminal jurisdiction and one of the places where you can see that elucidated or discussed is in the supreme court's opinion in jones versus united states which i did not cite in my case but it's the five twenty nine us eight forty eight it's where arson of a part private dwelling was not sufficient to invoke federal jurisdiction so you have a this is going to the commerce clause or challenge it is a federal it's commerce clause is something that the court has to take into account when ever considering a statute because a court is not supposed to construe a statute in a manner that would create eight eight constitutional doubt about its validity so that underlying every statutory construction is this idea that are we by doing this going into a place that the constitution does not allow congress to go and i believe that by saying you don't have to have the word commercial act if th ability because i don't see any other place where congress would have the ability to regulate this on the facts of this case aren't there some commercial acts that occur and the real question is did the defendant really have control over the guiding those was he still influencing those isn't a kind of a factual point before we get to the big constitutional question i it is there are three different count that are alleged here there is only one count as to one victim and that is k j where no sexual commercial act ever occurred and so that's where this question arises that this question does not arise as to the other two counts because commercial sexual acts actually  beyond reasonable doubt that there was a customer because i was to all of the other ones where there were actual commercial acts they presented evidence of documentary evidence  of the communications between the customer and the person setting up the commercial sexual transaction they presented evidence of advertisements they presented some type of objective evidence that there was actually a a set up and so that there was never any advertising of k j that was presented to the jury there was never any communications with a potential customer presented to the jury this just was absent from the reading the the you can be convicted just for recruiting somebody right now here and then knowing that they will be cost it's a it's a passive will because to engage in a commercial sexual act right i'm on the right statute but that is the correct statute so that per se will be caused means somebody else could cause they do it if you recruited new it right if it is a venture and this is a very interesting thing about where liability lies and where it doesn't so saying that you have somebody who i decide that we will open our marriage to yet a third person and i go out and canvass my friends and say hey we are experimenting with this would you like to go out with my husband for sex and then my husband takes this person out and treats her to dinner which is a type of payment it's a barter because under the statute this works i would then be guilty of violating the statute if it's read that way if they never have any sex and that is the problem here is that when you take out the idea that i am preparing for something that i recruit somebody but they never have to j and the conviction of k j is that it will lead the court to say and unnecessarily so by the way because there are other crimes within the same statutory framework that the government could have charged but did not and so basically they're asking you to save their bacon from a bad charging on where it is putting it against the limitation and constitutional limitations of where federal criminal jurisdiction actually can reach with respect to the idea that there is a where the sexual contact actually occurs and i have caused it well but your hypothetical is eliminating the forced threats of force fraud and coersion part it is not it is not simply simply having recruited somebody who then never engages in a criminal isn't that recruitment enough let me ask it this way aren't you really making an argument that younger should be no your honor youngers was an attempt case i'm saying analyze it under attempt but don't say that the major crime doesn't require sex act that's why you have attempt i can't imagine an attempt that can reach this because otherwise this was not planned it was played as everything but the kitchen sink the jury was  instructed on the attempt as well as everything else and so yes it could have been an attempt but there was never any advertising or anything else that would lead one to presume that she would have committed a criminal sexual act because it never got to that stage with respect to k j you think the will might be the future you know you we say it you know we will get on the plane this afternoon and there will be cause it means in the future you know in the future they will be cause to engage they will be used to cause you think it might mean the future when you say it might be in the future the the the knowledge is with intent that something will happen but i think that you that congress it would be hard pressed to transportation for the purpose for murder for hire ok and so there is a a circuit case out there that says if you join in to  transportation has been completed you are then merely conspiring to murder and the federal government doesn't have jurisdiction over that and so this is exactly what i'm talking about is that jurisdictional hooks are really important to federal statute and so that is that is the danger that i see in the government's arguments the rest of my case i my rape a twelve year old to force you and gauge and sexual contact conduct that's a heinous crime and that's what you have before you here today i'd like first to talk about the government organization or conceptual  it contains two components and they're drawn right from the title the title of the act is sex trafficking of children or by means of force fraud or coercion and the statutes that force plan then to part one part  trafficking acts the sex trafficking and those are contained subdivisions a one and a two the second part the egg or rating means are either you've got a minor or you cause you know that the sexual act will be caused by means of force threats of force fraud or coercion you have sex trafficking acts in a one in a two and then you have aggravating factors alternatives in the remainder of the statute and as we discussed the case this morning i think we might drop in that organization or at least i will in several instances before talking more generally about the issues raised i'd like to respond to some of the arguments made by mr first with respect to commerce clause and jurisdiction there was a stipulation in this case it's found a jury instruction sixteen at district court docket number ninety seven on page twenty and the stipulation was at the interstate commerce element was was satisfied by stipulation in this case interstate commerce of course can relate to communications transportation and other expenditures of funds the conflating commercial sex act with the jurisdictional hook of interstate commerce really doesn't make a lot of sense you could have a commercial  entirely within the borders of a particular state and the government still would be required to prove interstate commerce in any event it was stipulated in the i'm sorry yeah you're going to have a completely  must be appears to be arguing is you need a completed sex act to have to have interstate commerce and the government doesn't agree with that with that formulation in any event there is a stipulation and it's found nowhere in the brief it clearly is waived if it's an argument at all with respect to reading attempt out of the statute because you don't have a completed sex act junkers youngers was an attempt case to the extent you're looking for a case where there was no completed sex act and this court found there was a violation of the statute under an attempt theory it's junkers in junkers to both defendants attempted to solicit or did solicit sex with someone they knew to be a minor and there was never a completed as you pointed out judge judge grounder certainly in the recent decision and wearing out of the seventh circuit collects i think seven circuits including their own that have now held that no completed sex act is required and judge bend your question to make sense from a vagueness point if there is with respect over brett on commercial sex act there really is no no vagueness concern your honor before your honor's before turning to some of the are the other arguments before the court on appeal if i could i would just like to amplify three areas in the briefing where i think the government could have been more helpful to the court than it was first the government notes in several places in the brief that asked to each victim  a one or a two is not contested that is there are sufficiently claims made with respect to some of the victims is day one with respect to some of the victims as day two with respect to some of the victims as to neither a one or a two trafficking act and the government notes that even if this court were to find that for example there was no a one act sufficiently proven that the case proceeded on a two theory as well and there's no sufficiency challenge or aid to the government did not cite any authority of the court for argument your honor the government neglected to note in its brief that there was a special verdict form in this case with respect to the two minor victims k j and c s that is the gotten with respect to that the aggravating factors that ground even if for example the court were to find that that the statute was vague say as to coersion and that was the only means by which a conviction could have been secured under means  was not raised below and under twelve c three the defendant made no attempt in the opening brief to show good cause for not raising it below and under the schrock and fry applications of twelve c three by this court the government  the court not to take it up it wasn't made below where the government could have been more clear in its brief is that the government in labelled twelve c three a waiver provision and i just want to withdraw that characterization this court has been clear in cases like robertson i think judge loken you're on that panel and bloat and judge ben you were on that panel that twelve c three really isn't a waiver provision it's a good cost threshold and then plane here for cannot be taken up by this court secondly if the court would reach the merits of the statute is not to push this under the standards set forth in the chips case with respect to unit or prosecution neither the statutory language nor the statutory structure you can be fairly read that way for this reason your honor the court the question the court was addressing in youngers was the defendant's argument that all of the sex trafficking acts a one and a two must relate to an enterprise sensually must be sure you have a before you your honor but in the context of the question that was being decided and you can have an offense committed by one means or an offense committed by another means and those are still separate offenses in the sense of of violating the statute but the court wasn't answering a duplicity or multiplicity argument in youngers what the court was responding to was the defendant's argument that the that the entire statute was ben there is language that can be extracted as you have done but i don't think that's the question either on its face or in a fact that was being answered answered in youngers your honor if the government set forth in the its briefing as to why the statute is mean to that in that respect finally even if the court decided twelve three didn't part of the claim and decided it was duplicitous it's not plainly erroneous for the court not to sue a spotted the side of the statue was deployed to this this is not clear obvious at best and there's no reasonable probability the result would have been different based on the alternative means of committing the crime and the special verdict forms in this case the defense has not contested sex trafficking acts either under a one or a two as to each victim and there's a special verdict form as to each of the aggravating factors in the second part of the statute so even if the statute were to pursue this there isn't a reasonable probability the result would have been different and there's been no showing of that on appeal this morning thank you very much all your honors i looked at the verdict form last night and what the verdict form does not have is the age of the minor in the verge form which means that it's not an aggravating factor question and it's not because the statute itself has different levels of punishment based on different factors that a person can be trafficking a child does not trafficking a minor does not trafficking a minor with out force etc is a mandatory ten year minimum trafficking a child without force etc that is younger than fourteen years old is a fifteen year minimum and trafficking anyone by force etc it's also a fifteen year minimum so that when you look at these these are different crimes because they have different statutory penalties and the way that the verdict form was set up does not answer which crime was committed for purposes of those  charged crimes in the indictment and the jury was not instructed as to the actual elements of those separate crimes in the jury instructions they're all kind of lumped all together and  charged in an indictment to instruct the jury on that was actual amendment of the indictment that required the reversal of the conviction so here you have that particular instruction being and oh by the way they don't even have to prove this element that i just charged you as an element if the they had a opportunity to observe so that there was a