may please the court my name is warrants going i represent david allen vickers i did not represent mr vickers at trial your honors know that this case involved two counts of violating the man act  one with respect to one individual and one with respect to another individual mr vickers was convicted at trial on both counts and sentenced to life in prison our primary argument on appeal a fundamental requirement under this court's holdings in general although this court has not held specifically with respect to the mann act and th entire understanding of an indictment giving someone sufficient notice to defend and sufficient opportunity to zoom in error in the indictment you still have to show prejudice well your honor i think this is a very fund that the nature of this error is so fundamental that it that it comes with the tongue prejudice quite frankly you're arguing that it's  not they are doesn't not that the fact that there's no need to show prejudice but that in fact it's the absence of that language is in and that in and of itself prejudicial not the government says that because the information is provided in a billet particulars that mr vickers and his counsel were on notice however this court has said that a bill of particulars is not a substitute for a new type and that  statutes in question and the jury of course judge but that's all after the what where's the prejudice in light of all of that that's all after them so that's all after the fact you can't seems to me respectfully that you can't say that because the judge charging the jury that they had to find a certain violation but that cures the defect and the indictment in fact i would suggest but the fact that the government asked for that jury charge indicates that the government realized too late that it had made a mistake an indictment that it had failed to include something in the indicted we would disagree with you on this with what prejudice did your client suffer well he the the prejudice that he suffered was that he was not put on notice through the indictment before trial of the statute that he was alleged he was unable to prepare a defense well he before trial not i'm not talking speaking about the jury instructions or any argument about the jury instructions but before before the first day of trial all he had was a bill of particulars and that particulars describes the state's in the statutes that are referred to as your honor it does say is no argument about that but that is not the that is not the way this court and frankly the supreme court has stated that we are or or the government is to give notice to a defendant of what's going on furthermore he was hunting a bill of particulars it looks like august of two thousand and fourteen and the trial is not until two thousand and fifteen looks like february two thousand and fifteen so we have the information for several months well he had information as to what the government and its view was alleging were the statutes but of course it's not the government to charges people it's the grand jury that charges people and the grand jury charges people through an entitlement the government can't say oh well we're telling you that this is what we think the case is we are telling you that this is what we think the statutes are it's up to the grand jury to was  objection me to the absence of specific statute in the entire argument a motion to dismiss our argument is that there that the motion to dismiss the indictment that was filed and the rule twenty nine motion that was is our position that there is sufficient material in the record to indicate that mr vickers did object to the indictment and that the judge ruled on that objection the nine mr vickers objections moreover this is in our view the kind of defect that is so overwhelming and so important that the court should view the waiver issue i'm looking at the motion to dismiss i don't think an argument was made that the indictment should be dismissed because it failed to specify that's correct judge to be the specific that specific language was not listed in the motion but other grounds were listed in the motion dismissed indictment and moreover the rule twenty nine motion time the government argues that mr vickers waived an objection and it's our position that first first and foremost he did not weigh and second that even if his objection wasn't as explicit as it perhaps might have been that under the circumstances that his time comes to the way here from the government morning may please the court my name is aaron mango and i represent the united states in this matter and i was trial counsel before the district court as well this court should affirm mr vickers convictions and sentence in all respects i'm going to focus on the first point obviously since that was the focus of mr gore's args arguments here this argument was completely waived by mr vickers by not asserting with particularity that the indictment was defective on the particular grounds that he now argues on appeal there as judge chin as you as you observed in the original motion to dismiss it never said the indictment is defective because the underlying state crimes are foreign crimes that mr vickers could be charged with are  they're not listed so therefore the indictments defective that argument was never made in moreover even after the court decided that motion to dismiss that had some vague language  about the dates in the indictment aren't specific enough to allow it was a request for a bill of particulars there was a request for a bill of particulars in that motion but then but the magistrate court issued a report and recommendation in that it was its peers it docket entry number twenty four somehow it didn't make it into the record and i apologize about that but it's on the docket at number twenty four in the magistrate judge explicitly found that the indictment included all elements of the twenty four twenty three a charge and then what happened next was mr vickers filed objections to that report and recommendation it documentary twenty nine and he did not object to the magistrate judges reporting recommendation on that ground it didn't happen he didn't argue that the indictment was defective he simply argued that well we need more specification about dates  and and then the government provided a bill of particulars apart from the waiver issue though is it fair to infer that the grand jury was not presented with the particulars of new jersey law pennsylvania law and so on speak outside of the record i mean i'm just listening at what is before us it seems to me that the indictment doesn't specify the particular crimes and you could take the position that it doesn't have to right and although it's a little curious still to have this criminal act dependent upon others that remain unspecified so is that is is it your position that it's sufficient without naming th the other criminal acts and why why is that so why does that give the defendant nuff notice is it as a general matter about how to what is being charged with absolutely judge the indictment was absolutely sufficient to put the defendant on notice as to the essential elements of the crime which which this court has repeatedly stated are are simply did he transport a minor across state lines with the intent to commit  criminal sexual activity paraphrasing and the any sexual activity for to any person can be charged with a criminal offense unspecified unspecified in this isn't in this is an intent statute this is not a the that there has to be a completed sexual act very similar to the twenty four twenty two b statute the person persuasion and enticement statute which this court and the other courts and mr vickers  well relies on to support his argument still the intent is tied to activity for which someone can be charged with a criminal off and it is why shouldn't the grand jury determine that and hear that because you can't determine the the the the specifics don't need to you're saying as a general matter though the specifics do not need to be before the grand jury correct judge and this court has said several times that perfection in an indictment is not the lodestar technicalities does not control our some circuits and i know that this is an element the specific state crime is an element t respectfully hopefully this court will look to is judge carney what you asked about was prejudice and judge chin as well there was no prejudice in this case this court's decision this circuit's decision in stringer which was an aggravated identity theft case in which the argument was the indictment was defective because it didn't name the specific person to which the identity was stolen and that in that decision the court focused on the fairness that the fairness to a defendant to have to list that out and found that there was no this was not the type of statute where it was fundamentally unfair to use the mr karzai argument it was such a fundamental defect or fundamental unfairness here this is if you look at the criminal complaint that the first item that was in this case documentary number one it contained two paragraphs at the end of the new york statute and in new jersey statute which ultimately found their way in the bill of particulars in the second bill of particulars in the third bill  particulars in the jury instructions and on the verdict sheet that mr vickers was ultimately convicted off standard is is we would have to find that it was harmless beyond a reasonable doubt yes and so i want to address that yes why do you think there are assuming there was harmless beyond reasonable doubt well judge this this court has never addressed the issue and whether the underlying state crimes has to be in the indictment the indictment clearly and there's no question tracked practically verbatim the statue which this court has also said makes it makes an indictment sufficient and that technical violations do not control rather it's common sense and reason that that would control so here it is this was a harmless error and if the court even one gets there because certainly the defendant again we do heavily rely on the fact that the defendant or mr vickers waive this argument because a second a superseding indictment was returned a second superseding indictment was returned mr vickers counsel filed another motion to dismiss but that was only on statute of limitations grounds he didn't preserve it in even before the magistrate judge he did not perceive this argument he only argued after so so what that informers is that he was completely satisfied with the bill of particulars the multiple ones which came as judge  noted nearly six months before trial that the that mr vickers was completely satisfied with his understanding of the state crimes and foreign crimes for which he could be charged it did not he  argue that he was prejudiced in presenting a defense in fact there is absolutely no prejudice here in this case that can be shown with that unless there's any other questions i'll rely on my papers on the other you with with all due respect to my colleague i mean this sincerely of course his recollection of what the grand jury was presented with is completely irrelevant i'm not challenging his recollection but it has nothing to do with how this court  decides this case the fact that the criminal complaint contained mention certain statutes of course the grand jury and there's again no we haven't set the grand jury saw the criminal complaint you're you're not arguing that prejudice relevant you're kind of arguing that we should infer a prejudice but so what is the prejudice well in light of the criminal complaint the bill a particular this court has all of the circumstances again judge chin this court has made very clear that an indictment is not just my colleague said that it doesn't have to be perfect well that's true it doesn't have to have every comma in every place and it doesn't have to be grammatically perfect but it does have to advise the defendant of the charges and and this we believe this court should hold that the specific states that it is an element of the  court has not looked at that it's clear that most circuits have already helped out of the circuits that have addressed that i don't know about most but there are many that have held the other way there's a split yes there is a there is a split but i think and again it's not a matter of counting three versus two but but i think the the idea is that that's that that's what it should do and the government acknowledge that at least indirectly and requiring and requesting  jury charge to that effect it's clear that it's the accepted practice i don't know why the western district here chose not to present the grand jury with the in an indictment that included the offense they we had that available to them and they should have done that and then there would be no problem here there would be no issue but i don't think it's that they can rely on a saying that  that you know between certain dates mr vickers did knowingly transport victim one person known to the grand jury an individual would not attained the age of eighteen right but i want to just focus on with the intent that such individuals engage in sexual activity and so on about the criminal offense that to me the fact that the that the allegation presented to the jury is that the individual had not attained age of eighteen and was being transported for sexual activity for example you're on the age of consent in new york is seventeen so the fact that that was the circumstance in and of itself and