district court below and with the court's permission i'd like to proceed sort of in a backward order starting with count five which encompasses both the sufficiency and the jury instruction and then kind of work backwards unless the court has any questions on the other issues in the in count five ms gomez was convicted of interstate travel in a directory and we have argued both that that the evidence that was presented by the government was insufficient to sustain a conviction on that count but we also argued in conjunction with that that there was an error by the district court that the defense requested a specific instruction regarding the mens rea and that offense that the district court improperly tonight that it was an accurate statement of the law it wasn't covered by any other offense and i want to an essential element which was the mens rea and allow the government essentially to convict mr gomez with the incorrect mens rea your position i take is that when the government charges  but the jury has to find the elements of that state law fence satisfied beyond the reasonable doubt well your honor it's not the elements in general it's not the labeling of the offense it specifically to this case it's the is something that is special for example in federal law when you charge a conspiracy you don't have to charge as the governor has pointed out in the cases it's cited you don't have to charge all the elements of the substance  travel act especially given the history of the travel acted and the courts have been skeptical or at least cautious that the travel act might be used to turn just about any state offense into a federal offense so when it's different from united states versus conway as far as the elements of the state crime although we would differentiate it based on the mens rea and so in conway in our dello what the courts were talking about there were really violation of this specific statute and that specific statute has been held to require and hire mens rea not just legal malice but actual malice then the jury has to be instructed that they must find actual malice  the jury has to find that they the that there is actual malice in order for that to be a proper conviction of traveling interstate commerce to violate this specific florida statute and  under your under your theory the government in the jury had to find if it had been properly instructed the jury had to find st that for purposes of the federal as acted knowingly and willfully is right and then separately that if she was traveling in aid of a florida extortion offense that she acted with ill will hatred spite or evil intent that's correct your honor i believe that the instruction that was requested by the defense specifically spelled that out and it was supported by state law there was a fits district court of appeals case and what the th district said was actually the fixer said you know if left to our own accord we probably would have held just that the only thing required is legal malice but it did look to the florida supreme court in several florida supreme court decisions and noted that it had to and it was following supreme court florida supreme court law in holding that the requirement was actual malice not legal malice and in fact in that case they certified that question to the supreme court as of i believe was yesterday the day before when i checked i don't think the supreme court had had resolved that issue because there are district court of appeals that had without citing those cases that simply held that  legal malice was sufficient and there was no requirement for actual malice can i ask you about one more case before you move on to the other side of the road united states versus prince which states and it doesn't address the men very high mens rea it's willful but it's not only will phone that the governor would have to prove that the defendant knew that what they were doing was against law the government in those cases has to prove that the defendant intentionally violated no legal duty so it's a legal duty and so that would again apply here so when you're charging the travel act and you're charging as the as the grand jury did in this case a specific statute that requires a higher mens r wasn't covered by any other instruction and it allowed the government to convict miss miss gomez on a lower men's rest standard do any of the nine hundred and fifty two dollars cases from the other circuits addressed could just briefly just touch on the other issues unless the court has any other questions regarding count five so just briefly and i'll go backwards since that's how i started out count four dealt with the phone call them is gone was made with she's all talk and only talking about the travel arrangements so we would argue that that's insufficient counts three and two both or let me ask you a question when we look to believe there were three phone calls compass by that account or do we have to look at  by the account we have to look at we just have to look at the last one i believe your honor count three might have been the one they had several phone calls to it count four i believe the government's theory and maybe my brother as generous would say my correctly but i were i think there was another call from the codefendant to the it's turning on a day but also dealing with travel arrangements and not containing any extortion of communication on count three which i think is probably the most problematic for us as far as extortion and communication that was the codefendant that was involved in that and we believe that the circumstantial evidence is just insufficient for a reasonable inference that has come as was an aider and abettor of that count as to count two that's a text morning in may please the court for leave for the united states with me at counsel table is the briefing a usa eileen cannon i'd like to start with the jury instruction issue and count five and focus on what the issue was one raised by the defendant at the district court the defendant provided and requested an instruction that read as follows order the law requires that the government prove beyond a reasonable doubt that the defendant made the extortionate threat with actual malice that means the government must prove the defendant made the threat with ill will hatred spite or evil intent under the travel acts there is no requirement that the defendant do or commit the crime that's alleged to be the unlawful activity there's no requirement that the defendant commit the state law crime what do what do you do with the language and thereafter performs or attempts to perform thereafter performs or attempts to perform then refers to sub paragraph three which is no twelve dollars or three or at pending on the penalty provision or act here there was i believe it was three which was an act to promote facilitate except to rex utter and i can do what is that act and act to promote manage stablished carry on or facilitate the promotion management establishment or carrying on of any unlawful activity once that act of the act here would be getting off the plane and going to pick up the money that's an act to promote the unlawful activity of extortion isn't that the trouble that's part of the travel it's also an act that is part of remoting the unlawful activity coconspirator got an address decided that she would go directly to that address and put that address into our ways app and that's in exhibit five b so the event took an act act took a step to promote or facilitate the extortion facilitating the extortion by being the one who was going to get the money that was being given as a result of the extortionate threat so it's not like she has to travel and then land and then make an extortionate threat for this to be a violation of the travel has to commit an act to facilitate or promote the extortion which is different i think that's clear both under the structure of the statute of nine hundred and fifty two as well as the case law which the court has appointed defense counsel to throu particularly important here are the cases conway from the th circuit rizzo which is from the th circuit but was cited with approval in conway and then prints those cases hold unanimously in the th circuit has never held otherwise that is is not required that there be a violation of the underlying state law crime for there to be a violation of the travelex that's consistent with the structure of the act as i mentioned the case law  the government's position at the district court here do you have to define the state law crime in any way whatsoever so you do your honor and that's set out i think in the case law as well that a general definition of the crime is acceptable that the reference to state law is definitional and it's important and i think of the court looks at either resort conway conway for instance said arson in violation of maryland law looking at maryland law now and tracing it back there are several statutes criminalizing arson under maryland law i believe the sections are criminal code section six thousand one hundred and one through one hundred and eight and several of those require willful and malicious burning of a structure in order for it to be a crime the defendant conway wanted an instruction on maryland arson which presumably would have included some reference to this man's riot including the definition of maryland arson as charged in the indictment travel in order to commit the unlawful act of arson in violation of the state of maryland state laws of maryland the court said no that's not required it's not required either to prove that the underlying offense happened nor is it required to define the unlawful activity and specific terms as set out by the elements of state law the court there had the option of doing that and chose not so it said state law serves the definition is that arson is a term that's commonly understand understood by people providing a simple definition of arson is sufficient and that's consistent with what the circuit as held throughout its nine definition of of extortion corrects and so that was sufficient under the th circuit case law as previously cited by the government but the emphasis at least in part by defenses that here the government side of the specific statute in the indictment should therefore be required to prove the elements of that specific statute and risen and i'll annoy they charge to travel act in violation of specific eleanore statutes promoting prostitution statutes as we did here the court in rizzo said again it's not required to prove that the underlying state offense was actually committed nor is the court required to lay out the specific elements of that unlawful even going way back to the statute itself consistent with the structure of the statute which clearly punishes traveling in order to promote a crime not traveling to commit the crime itself therefore it's our position consistent with the jurisprudence of the circuit that the jury instruction offered by defense counsel was an incorrect statement of law and that a correct statement of law was already covered by the instruction given by the court even if the court were to disagree with the government on that point the need or case makes clear that jury instruction is reviewed for harmless error and accurate or inappropriate jury instruction is reviewed for for harmless error and there would have been harmless error here if this court were to find that the jury instruction proposed by the defend it was appropriate at the defendant got its way at the trial court there would have been this definition or requirement of malice and the evidence throughout showed malice on behalf of the defendant starting when the victim's father passed away the defendant her group text exhibit twenty two dollars immediately says we can make a fortune of this and specifically tells her friends let's threaten him my sister says that we even ask for five hundred thousand dollars the thing is that if these videos go on t v not only will we  marriage but the ones in the group are married as well we must mention his lover so that he realizes this is for real exhibit one day the defendant or coconspirator refer to themselves as swindlers and campaign they haven't made any money yet by way of the most damning in the voice message sent via whatsapp from the defendant to her sister who she kept updated on the daily happenings of their conspiracy the defendant said we are blackmailing  gabrielsson for one hundred thousand dollars this was malicious this wasn't even just malicious in the least bad way of having elwell as sought by the defendant the evil intent there laughing about ruining this guy's life and ruining his marriage this is a legitimately an evil conversation it's the most malicious apart from threatening life or limb that they could have bent so any argument here that the jury instruction was improper we think would fail boast on the legal grounds are already presented it would also fail under the harmless error standard because there is a boatload of evidence showing the defendants malice here can i ask you to turn to the sufficiency arguments and address mr lopez's argument that with regards to for example count four the communication at issue doesn't reach the level necessary for a jury to find guilt beyond a reasonable doubt i will your honor and i'll point the court st to the standard for analyzing a sufficiency challenge like that where after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt i believe that standard is met here the conversation that was focused on by the government at closing argument and through the presentation of evidence is not the phone call by miss gomez on march th but the call that proceeded that contains the actual threat which was the one that was charged in count four and count four of us charged as telephone call on thirty six but the government clear at closing argument that that call was the one made by mr old and the codefendant earlier and then immediately thereafter gomez called and set up her travel arrangements so that's our theory there would be an aiding and abetting theory for this defendant here that she aided and abetted the extortion was charged both directly and as an aiding and abetting theory but then at trial how do we know which conversation was at issue the government made clear by point of emphasis at trial and in closing argument that it was the threat made and i believe it was it was referenced directly by the exhibit four and then for being at close that this was the communication that was containing the extortion threat and then gomez's followed communication was evidence of her aiding and abetting extortion threat so the actual sarette made which was in exhibit four a i believe lines four through five roldan tells the attorney for the victim that she meaning went to the television station and spoke with the people there and she had it she they gave her the opportunity to interview they offered her a bunch of things a series of things on television that could even be in her best interest but she doesn't want to do that if you're willing to meet with their this implied threat or direct threat that she won't go to television she won't do an interview she won't do all of these things if you're willing to meet with her i think in the context of that entire conversation and for a in the follow up and for b and all of the acts in the three or four weeks leading up to that could lead a rational a rational juror drawing all inferences in favor of the verdict and all credibility findings in favor government to conclude that the elements of the offense had been met counsel was there any pretrial issues raised by the defense that they didn't understand or needed clarification or any challenges to the indictment with regard to it's not specifically stating which call or not making it clear that was aiding and abetting tro or i don't believe so because i don't believe wouldn't they need to raise that at that time i think they would joke that i was not raised i believe was not raised at the district court was not addressed at the district court in the government and its argument of presentation of evidence made clear to the jury what was the focus of that count and were counts herself made so two and three again are in and aiding and abetting theory two is the text message on two hundred and eighteen the night of the victim's father's tribute concert it's the main text message that the codefendant sent to the victim prior to that her and gomez are both discussing what to do should we text them let's ask for twenty thousand dollars gomez's guiding her and telling her what to do says do you have the naked pictures use those and then go as provides the phone number for the victims all of these communications i mean you could look back and satiated in about each communications only by providing the phone number to her codefendant if you like providing someone a gun who you say hey go rob some banks he has a gun split the money with me they were robbed three banks i could be considered aiding and abetting each of those robberies so we're even just this early communication asking do you have the new pictures here's his phone number could be sufficient to find aiding and abetting part of each of these  fenses and twenty three and four even more than that their specific communication back and forth before and after the threats made by the codefendant so the two hundred and eighteen threat is the main threat that initiated the entire extortionat scheme where you say we have these videos we have these pictures of ivan and vegas and other pictures that are even worse will disclose them unless you agree to negotiate with them before that their texting back and forth they agree to ask for st  twenty thousand dollars and and the defendant said make sure you have a phone number here's the right phone number then on february twenty which is the nd charge which i believe was a phone call right before that again text message communications and exhibit the defendant says ask for sixty thousand dollars and then ask for fifty thousand dollars that's not too much look at what he spent in vegas and so then the phone call is made by the codefendant and she asks for sixty thousand dollars so if not will disclose all these pictures it would be scandalous it would be ruinous for him and his wife so she aided and abetted at each and every step these threats that were made by her codefendant and this is set out in the specifically what's required for aiding and abetting which is affirmative act with the intent of facilitating but the court made clear that this comprehends all assistant rendered assistance rendered by words  encouragement support or presence even if that aid relates to only one or some of the crimes phases or elements here the activities by this defendant aided and  travel following the travel constituted the act to start india the travel act conviction i have not seen i don't think the court or the government cited any case where that's the case i guess one of the government's theory if m been arrested immediately after she departed deplaned airplane from from l a and she would not have committed the offense of travel act because under the government's theory it was the further travel that was the act in further to the end other individual a coconspirator and setting up a meeting to get the money isn't that what they said the act was not necessarily the travel from the airport to the meaning is is that what you're referring to and i'm referring to the fact that i think one of the government's theory now that if she had been arrested as soon as she got off the airplane she would not have been guilty of count five i believe that's their theory now was what was the jury charged on with respect to that i don't remember what the i were the parties fighting about in a legal sense in the district court with regards to that count whether or not there was any extortion at all or whether or not she took an act following travel or in connection with travel in the district court i believe the argument was or count five the intent and then also whether there was in fact in the stores an act i don't think there was a battle that i remember i wasn't trial counsel regarding the act and which act was taken was there anything raised in pretrial about the specifics of the indictment itself and the challenges to it that you all did not know what you would your client was charged with i was not a trial counsel but i don't recall from reviewing the record that there was any request for any more precise charge in time can you talk about evidence in the case would you talk about that just a minute yes your honor again this was circumstantial evidence and in order to to find that under some circumstantial evidence it would have to be a reasonable inference that there was in fact this actual as opposed to a legal malice wasn't a jury charged on circumstantial evidence they want to charge as to actual malice worth a charge from sort of the difference between circumstantial evidence and direct evidence that's correct your honor they were and it would just make the argument that the circumstantial evidence here is insufficient for reasonable inference that there was actual malice on the part of ms gomez to governments reliance on that are those text messages and if you look through those text messages and look through the voluminous number of them there are several ways that those could be very specially in the original spanish several ways that those that their statements can be taken i think that is insufficient to demonstrate actual malice as what everybody in this case although both sides  had spanish speakers that were able to to i guess express the underlying dynamics of the spanish language and what actually would have been meant by the text in communications yes your honor and i believe all the text and communications that were in spanish were also translated i don't think there was much of a fight over the translation is what the defense counsel at trial not argue appropriately as to the i guess the evidence that would have demonstrated whether or not your client participated sufficiently to be liable in a criminal matter there was no argument regarding the malice because the district court had ruled that that was not required so in that element there was no argument but there was an argument raised that following the government's case and also following the defense case that the evidence presented it was insufficient i think it can i think the court