our fourth case for this morning is united states against wearing may please the court this is an unusual case ten short paragraphs contain the closed universe of a stipulated that struck all of those twelve ten paragraphs we have to definite facts there was no commercial sex act and two that the channel's interstate commerce the only thing invoking federal jurisdiction was advertised on craigslist from those two pivotal facts cumber all the questions for this court whether or not fifteen ninety one demands a commercial success we've abundantly brief issue really going to meijers you have ton a lot for that but i guess i i remain skeptical about your argument about the future passive voice will be caused to engage because it means it hasn't happened yet and which makes me begin by thinking that the statute focuses on the recruitment and the plan for the for the person so recruited and i have trouble reading the future passive voice is anything but you know a statement of it is my plan this thing is going to happen in the future and to be honest i'm i debated whether i was going to mention this to you or not but i've decided i'm going to go there are languages in the world that actually have a perfective mode for verbs but there's no present perfect tip there's only the past perfect if you finished it in the past and there's the future perfective you're going to finish it in the future and this is basically like a future per fective and i don't think it in any way means that you have to have a crystal ball and know what's going to happen it did just means you are stating that you are going to do this this is what it's going to happen and i think so read the statute it's a pretty good fit for what waring is doing with katie there's a lot to unpack there and i'd agree with you that there are languages like that as a public school kid so i never really learned those languages or the exact percentage speaking about the slavic languages in particular russian i was going to be way off to if you were to read it that way then we'll because actually becomes just an afterthought means it's very significant that you recruit this person knowing that they've not attained the age of eighteen that's and knowing that your plan for them your intent is to engage and have them you force them if you will because to engage it means you're going to do some forcing engage them in a commercial sex act so even if as it happened here luckily enough it gets interrupted  you've already done everything that the statute describes some no you haven't because you need to have that commercial sex i know you don't i mean you recruited them in a way that your intent for the future for next week for a month from now is that you're going to set them up in the commercial sex business unit if you take out and will be because then you're right you have that stature because it has to engage in a commercial sex act if you strike out those words and that's why i brought with the strike out on page seven of the report i don't think well first of all it's not our business to get rid of words that congress put in but will because to engage is just you know i don't know if you've ever worked with legislative counsel on the hill but they do try to to make sure that the statutes are written in english but they don't always achieve and will because just the future tense it is it is you know how do you think that between the time the recruitment happens and the time the commercial sex act takes place the statute doesn't cover it and i guess the other circuits have not read it your way and i'm having trouble reading it that way too it doesn't cover it because you actually need the combination but now you are ninety four could the culmination means it's not in the future anymore means it's already happened your your reading destroys the future tense of to if you had a child who was about to start college you could say you know my daughter will be caused to begin school at the university of illinois this fall and you're very clear in your mind that this is going to happen now hasn't happened maybe she'll change your mind decide to become you know a musician but that's sure in the face of that uncertainty though we don't place criminal liability but it's not uncertain it's it that's that's the point of the recruitment but if the point of the recruitment is to recruit for the purpose of that's how the whole mann act is written that's how many statutes are written but they're not written this way there's no other one in a title eighteen none no other uses will be caught or will be used other than fifty ninety what is the other point your honor is what does an attempt to look like that have we take in an attempt to be a ten year mandatory minimum as soon as where it goes to hurt the middle school that's what you mean makes a proposition but he's done much more than that mean i certainly could imagine that you would say that recruitment is not complete by that time and i'm actually going to make sure that this is correct before i call this your attention but i think there is another statue goes on forever so whoever knowingly transfer safire i'm knowing that such firearm will be you to commit a crime of violence shall be imprisoned so there will be use just very similar to will be caused it hasn't been used yet but they know that it will be used and they commit a crime of violence so i think your argument has to apply to that statute too i don't know if it does i i haven't wasn't prepared on that one so  that i didn't know that one but i think when you really read them you chris and you look at pages eleven through like fourteen that's where it goes into the scientific evidence and and where it is that the knowing what reason is there to believe that the i don't think it's real world you support for us if it is in that knowing the knowing applies to both the reckless disregard of the fact that she's eighteen if a girl looks like she was fifteen but she was actually nineteen you can't convict my client fine yeah i don't know if it were and i actually think knowing the that she will be caused to engage in the commercial sexual act you just have to understand what future tense berra you know it's hard to make predictions especially about the future but it's but but we talk about the future all the time in fairly specific ways and we always use will no use going to be or use a future it but we're going to have the knowing that's modifying bowl and that's what i mean to do i didn't recruit this girl you know to be a babysitter or i didn't recruit this girl to work in my shop i'm really recruiting this girl for commercial sex and if that goes to the purpose that goes to the first no in the knowingly and in tights knowingly recruit that is you're not just the cab drivers but i don't want to enter you know it's actually that you're intentionally you know what you're doing when it comes to the second knowing the second knowing is going to a particular fact a fact it's true that truth is that she's under eighteen if that knowing modifies the fact that she's under eighteen then that fact knowing then and that sense also modifies knowing will because they will never be violated then because there will be cause just always in the future it's not so when it when she is caused is not this statute no is an attempt and the scientists agree with you on the future asset for us but even if you do i still went on the commerce clause because of the commerce clause means anything it's not that it's just hangs out there and we're just waiting for something that they might do all of th statute speak to this is the way it's going to read it's knowingly in or affecting interstate commerce that you've been touched you've recruited you've harbored you transported here we don't have that we have an action separate from the recruitment separate from the enticement that can't trigger  because the advertisement wasn't yet criminalized so i get it you guys want to disagree analingus and you guys are much smarter than i am but the commerce clause is so dead dry and it's the kind that says this is what allows for a federal were trying to capture is a noble offense i don't believe so in it for three reasons first it's in chapter seventy seven and that's all peonage slavery transporting of slave ships and if you look there if you're careful all of those don't have a commerce clause nexus and the reason they don't is because they're actually involved under the thirteenth amendment there's no we don't have to guess what states you've allowed us to do this second they were looking to break up human trafficking something akin to what we think of the thirteenth amendment this is been going on since the turn of since it's world's oldest profession and so i don't think this was a kind of thing that the people of superior will like manages which the federal government teaches how to proceed prosecute prostitution and pandering they've been the state of wisconsin been doing this since you know eight hundred forty eight and the third reason your honor is what the legislature actually stand up and say you know what i want you to i'm wearing to get off no i never would vote was the legislature trying to come together to combat human trafficking to have international treaties to deal with low level prostitution i don't believe me when i didn't make an argument under bond man did i made it and the district court of the so laughed at and i really wanted to focus on my two best because i did you know you never know what you're going to have and i wanted i had a really good bond argument i appreciate that your honor i thought i made it because i feel a little vindicated right now i mean going to the hallway and on the tenth amendment in the district it please the court my name is elizabeth altman and i represent represent the united states in this case the government doesn't disagree that that fifty nine one maybe perhaps in artfully crafted that there may have been not have been a better way to write it but that's not the question for today the question for today or at least the first question for today is whether the statute as written requires a commercial sex act before there can be a conviction and on this point the statute is crystal clear because it is written in the future tense has has just been discussed a commercial sex act simply cannot be required all of the other circuits that have looked at this question that fit the six to eight the ninth and the eleventh they've all found exactly that and i submit that this court should join them the second question for today is whether or not the defendant's actions as a whole were in or affecting interstate commerce tried to i take it mr bugg nice point is though that you need miner has been forced into a second a commercial sex act then the statues violated but not otherwise we disagree obviously i think reading it that way takes will be caused out of the statute we don't we don't want kids or or to have to engage in a sexual act to be able to charge a statute we want to stop actions from occurring we want to be able to charge people you know in stings and undercover operations and girls like like this victim who said no i'm not going to do this that requires us to read the words will be caused as something like and my plan is to force this person to things could they have used with the intent to maybe that would have been a better way to say it why did the government charge fifteen ninety four as well we thought about it and without that charge i'm not sure that that's on the table for us it may not be on the table for you but i think it's our position that should this court vacate this conviction we can still charge him with that and we might be in the same situation we read the case law and the case law said we have a conviction of fifteen ninety one when this happened we thought about it temped we called our people in d c and said you know is this attempt or is this fifty ninety one which and they said it's fifty nine to one and we agree with that i mean that the action verbs are the recruiting the harboring the enticing those things all happened and that's what the crime is yes there has to be the intent to to engage and you have to prove somehow the that the will the will because to engage in a commercial sex act i mean in this instance obviously you know he takes her to the apartment he tries  out more or less he has her couple of clients that fall through so the rest of posts are online all of those things we know his intent and so it was our position that that that that was the correct charge well right the intent or plan or something so what about mr bud nice argument that the recruitment into the active verb in all of this has to be in interstate commerce and just posting her on craigslist is available isn't enough the indictment alleges recruited enticed harbored transported provided obtained and maintained by any means so the minute he puts her on facebook he's providing her to the public here she is coming out or why is the statute amended later then the people who use the the victims and i don't think that advertising necessarily added much all of the cases that talk about posting on facebook were before the advertising was added to the status was craigslist must occur in interstate commerce courts have told us that the offense must occur in interstate commerce and the statute itself says twenty two u s c seventy one zero one b twelve so it's trafficking in persons says substantially affects interstate and foreign commerce so we have the whole of the fence that affects interstate commerce but even if you do want to parse it out by posting her on craigslist he was putting her out there he was making her everything is her part of the that hotels affect interstate commerce we have all the actions that took place at a hotel we did make that argument below and he was communicating with someone on facebook again or an e mail e mail in the apartment saying you know why don't you come meet up with her so it's pretty clear there were multiple uses a multiple ways and her state commerce was affected the one thing i want to say about the amicus brief and this this knowing the strict sense of knowing that they talk about  they talk about this strict sense of knowing and they equate it to the victim's age as well but the statute tells us that knowing the victim's age isn't so strict fifteen ninety one c tells us there are sometimes when you don't have to know the victim's age well this statute says knowing that she does here knowing that the person has not attained the age of eighteen years that doesn't sound ambiguous to me right except sometimes you  know such as you know when you use a minor to sell your goods at this particular that you want you to know but under subsidy of the same statute it says in a prosecution under sub a one in which the defendant but my point is that i disagree with that but he talks about this strict sense of knowing that you must absolutely know and the statute itself says or should know so there's a little stronger than or should know it's ostrich fair enough but not strict and the other thing i would say with regard to that is how can a defendant ever know ever what happened or that a commercial sex act occurred unless he has film or unless he has you know video or something like that i mean you could have him drop a victim off at a hotel where she's supposed to meet with the john john says you know she says i don't want to do this but he's going to beat me up if you don't give me some money that john says ok fine here's the money they both go this strict sense of knowing and this clarity that you can absolutely know something is an illusion particularly when you look at this statute and how it's written unless the court has  felony for the mere propositioning of something that that's what this would be created and then going back to bob onto that you know that we look to the penalty to say would they want to interfere with that kind of structure with this kind of heavy penalty of a ten year mandatory minimum just for that distasteful behavior especially the girl says no two there are no definition of provided there's no definition in the statute that wasn't what was in argue below for the craigslist posting to be provided that that's not it that was an advertisement i mean there's a reason they amended it we know that this isn't advertisements advertises her services we wouldn't say the craigslist posting provides i mean is this a oh we're use of the word provides how do we know something happened it's not that something