where a young woman was tricked into traveling to cite pand had her travel documents taken from her was forced into a brothel and forced to engage in involuntary sex congress did not limit fifteen ninety one to that sort of jurisdictional nexus of transnational engagements or international crimes it is now applied routinely in the southern district the central district other districts to a wide variety of cases that involve prostitution and pandering but one thing that congress did and one thing that it did in act in fifty ninety one is elements this particular finding that trafficking includes quote all the elements of the crime of forcible r when it involves the involuntary participation of another person in sex acts by means of fraud force or coercion in that sense congress was very specific about the limitations of what would ultimately be the highest punishment off of the under fifty ninety one the mandatory minimum that mr ray was convicted under this is important because the statute itself says that these means will be used to cause a person to to cause kalen to engage in involuntary so what about her testimony he's six five right for starters it's anti a very large man i think does a fair reading and she was sixteen and doesn't she testify about being picked up by her neck she doesn't realize about being here to get medical care in line by grades to get treated in the yard and at that point in the transcript she says something about you know why did this happen and he said she says something about and to be sure i'm paraphrasing she refused to iron his clothing and then she says or express that she didn't want to engage in prostitution that day why isn't that sufficient and i would like to get more specific about what the question was well cancer was trying to make that argument done his way or the follow up question because clearly that didn't give the prosecutor the answer she wanted she leads with when you say being lazy does that mean you didn't want to go to work as a prostitute and after in the end all of that to look at the the evidence in the light most favorable to the government and determine whether any rational juror could find beyond a reasonable doubt that the elements are satisfied that doesn't do it like counsel perhaps the most classic explanation of reasonable doubt is when there are two inferences that can be drawn one that would be that would lead to innocence and the other that would lead to guilt well that if you isolate that one instance being the irony of the prostitution but my colleague  found that constituted force threats of force or coercion certainly coercion and those three things are demonstrated by that evidence but not the critical crux which is used to that's another summarization of how the government characterize what i believe is your three sixty five through sixty six question at any time if you want to leave and yes can you tell us about that first time that you wanted to leave he told me at first yeah you could go but then i wanted to go and he wouldn't let me leave so then the questions become much less specific they go into the general she starts talking in the third person what would he say or do we put his hands on us what do you mean he put his hands on you just hit you when was answer choky he would hit you he would choke you like him you want the government has reduced to saying that she was not allowed to leave and therefore spoken to his brother so when you take the totality of what my colleagues and i have referred to here is now had more than enough for a jury to determine that there was force threats of force or coercion under the terms of the statute but not those things used to cause her to engage in violence when reacting to government but with respect counsel you yourself i thought agreed that one of the things with respect to the ironing to learning arni or that she didn't want to go out and perform sex so she said that the jury believe that that's a clear cause a link is it not well let's look at how the government characterized this evidence the prosecutor went back to  kaylin redirect to try to to become more clear because she herself did not get the answer that she that within her question and she asked that e r three ninety two the time you talked about where pumpkin choked you because you slept late on do you remember that yes you know why he was upset that you were sleeping late no and when we get to the closing argument the government itself the one who should believe this evidence proves beyond a reasonable doubt that these things forced her to engage in involuntary sex we have your three o seven the government rebuttal where the prosecutor says quote he also hit her head or use force towards kalen when she was lazy when she slept then and importantly quote perhaps  wanted her to get up so she would get up and work perhaps that is not proof beyond a reasonable doubt that does not satisfy the jackson level standard that is not what a rational juror would accept as proof beyond what it will what can i can i mr ray was doing in two thousand and fourteen well he did the he did a lot of things the arguments of closing and the sound bites are all through the through the briefing so and since you have limited time in the motion limited they argued something else they didn't argue and now and the motion eliminate they argued knowledge lapse it's a mistake and whatnot the court sort of gave an indicative ruling didn't really rely on it then there was the testimony and then there's the i think very concerning argument in closing right right  concerning and the prosecutor articulated the same words in closing at that i believe november ninth and limon a hearing when she said he did it before he engaged in this pattern and so it's certainly foreseeable he would do it again and even the court said that sounds like propensity to me and it never changed it never changed the way she argued it in closing the way it was presented in trial and what the government has now said on appeal is it taking a different tack that right the analogy about making lunches that's where for me that there's some very troubling language that i think you know checks and confusion is very troubling and when we take it in the context of of the charge of self i think we do have to look to  judgments concurrence to understand that if there's going to be some notion of modus operandi m o that he did it this time he's going to do it again or to use the majority's analogy that if one player does it once another clerk will use wes show what he will do here even the majority in tod two said in the let me just get back to my quote the knowledge requirement is such that if things go  we're talking about an abuse of discretion standard right i understand clearly why you think or three be out of predominate here but the reality is the charge from ten leeway in that against potential prejudice i agree you don't think the judge did it right but when we look at this from our perspective we have to look at this for purposes of a standard of abuse of discretion why why should we find that the judge abused its discretion here because even relying on this court's case law that i don't disagree with i believe i cited the case hearst when demo is used this court has determined  that and they didn't argue in the motion limit either because this is to be a blatant violation there's no identity issue here it's not a signature crime that we need to used to indicate identity but they've got some other reasons that you knowledge after some mistake and what not well they did walk into in the know using language from top to to try to argue that that's why this is it is otherwise admissible evidence but the concern i think on appeal is even with the benefit of reflection and we've all said things on record that we wish said differently for sure but on reflection the government on appeal is harking back to the majority opinion in todd to end and indicating confusion or at least taking the position that now they think they need to show this and that's the collision course it seems to me with four four b well i'd like to hear the government are going on sure it will articulate that well whatever it is they think that under four four be other exceptions would apply here right to judge smith has invited you to talk about four o still have the problem of his conduct being how did this really unfairly prejudice your client given his you want to save any of your time your way that i think it's up to you i do i want to say that when you come back you can reflect more of what the government has to say on this issue i disagree that there is a serious for for be this year's order in this case this is evidence for four b first of all the talks about this being ten years old yes it was that any one of four or three you just  at the end the judge said few pages later this is this is relevant and admitted on what basis counsel it's prior bad acts it's virtually identical conduct let me give you that for purposes of just speed up your argument absolutely and you can't use it to show that he did the same thing again in the future on this occasion and listen to this closing argument quote and he used coercion and force and threats of force previously this is the defendant's m o again it's not ammo there's no identity issue in this case this is what he does to the jury this is what he does he's a pimp and he uses force so i've submitted to you that the government has proven beyond a reasonable doubt that use of force that's of force and coercion were used to have galen kaitlin in gaijin commercial sex they're arguing directly that since he did it before and he did it before he pled guilty before or since he did it before we have proven to you that he did it this time why is this not a very concerning for people for b problem or first of all you're i disagree with the idea that modus operandi i know my opponent has said that you seem to assume that mo because of the majority opinion and it's about making lunches it's the analogy about making lunches are you relying on tod two or do you have something else or will have something else to plain language for for being let's set aside modus operandi in the end it's really not so much what i say what the lawyer said below it is knowledge an exception knowledge play and intent writes of the problem i've got is usually there's so many exceptions to for a four beat it all comes in and usually we don't have an a prosecutor making this kind of blatant argument here the girl goes to the heart of world for beat but instead argues knowledge intent something but the government's position has shifted a lot between the motion limiting the way it was used in trial the way it's used in closing and then most dramatically the argument you're making operandi multiple times it says what the statute requires is proof that this defendant had a pattern of living off the proceeds of prostitutes todd had multiple victims every fifty ninety one case i have litigated before this court has right before closing argument and then remarkably during the closing argument of the prosecutor in this court has myriad cases that say we presume juries follow their instructions here every effort was taken to make sure that those instructions were there and it's interesting when you look at the jewel of the rule thirty conference the defense counsel below didn't even request those limiting instructions it was the government that made sure if that's peterson did that and that's  but i just would like to hear the government response about whether this is a permissible argument quote and he used coercion force and threat force previously this is the defendant's m o this is what he does he's a pimp he uses force i submit to you the government has proven  she tethers that argument i understand it maybe she should have bent over backwards to make a doubly clear maybe that one sentence wasn't that well crafted that when you have a record with three separate jury instructions if it's again it's just not one sentence but go ahead right that's the one i think that's the only one that i will concede maybe you should have been stronger but when i look at the other ones excerpt of record three fourteen the defendant knew exactly that is how we behave th intent that was his knowledge in this case that's four times four words that are true for four b are alluded to the prosecutor below never said ladies and gentlemen he did it before the case is over i submit believe with d l all the stipulated facts even said that when she spoke to another black woman ten years ago that she got hit in the face just like kaylynn argued here but i think strong issue with my opponent say that there was only thin evidence of you had a very strong force and coercion yes and here even aside from the fact that kayla testifies which she tried to leave she wouldn't let or she got beaten you know in the other thing too i want to make a point about this comment iron clothes is just no no big deal under the definition of coercion coercion is listed is junk of lee in the statute it has to mean something besides force it refers to fostering an environment of fear where if you just upset no no i believe anything that you know two months after the answer is no yes thank you counselor made me ask you this putting aside the sufficiency of the evidence argument for a moment and prosecution said some things that were confusing as it happens in almost every case what standard what burden does the defense have to meet at this point to overturn a mistaken ruling by the district court that allowed what is characterized as am oh evidence but was really propensity of us what what standard does the defense have to meet to overturn this  verdict in the case if i understand you want to correctly would be nor constitutional error i think they would have to show more likely than not that the error materially affected the verdict from our understanding and is there any evidence presented that you're aware of that that would air argue my think there is and i guess that's what i'm wrestling with a certainly judge christina suggested that this is a government a very strong case so if you have a very strong case and let's just say there was a questionable ruling about the application of ammo evidence unless the defense shows that the verdict would have been different is there an ability on the defense's part to overturn  pattern intended to cause someone to engage in voluntary acts and this is the to and then he for the term serious harm circumstances to compel a reasonable person in the same background  continue performing commercial sex activity and were to avoid incurring the harm before you get any of that you have to show the person was unwilling to engage in that activity counsel i don't know you like this sufficiency of the argument  point but can i ask you the same question that i ask your opposing counsel let's assume for a moment that the district court probably should have barred the evidence and if we found that was true given the strength of the government's case overall i know you don't agree with that but if we found it that way do you believe that the defense has introduced sufficient evidence in the record  that it would show the jury would have likely ruled in your client's favor yes your honor if the jury was following what is required by the statute by some trepidation by tied to and not misled by words like would instead of will be used all the evidence in the light most favorable to the government he's sixty five he's got all these house rules i'm talking to people you have to give me the money i get to see yourself and you have rights and he's use what the government has to prove and it's not that he was a bad boss that he did these things to facilitate make it easier to pet these when we have to show that he did these things to make her have sex unwillingly and they just haven't done that on that on th