for two reasons st monk objected to the use of the term sex trafficking in the count one element structure that term is not part of the statutory language that exists only in the heading of a statu asking the jury to find whether or not he was guilty of sex trafficking when the offense is engaging in not unlawful commercial sex act basically prostitutions sex trafficking gives light in the statute itself does that make any difference not in this case shaan because there is no definition in the criminal code of what the term sex trafficking means i went back and looked at it too and there was a new original and that went quite frankly a definition of that term but was not carried over into the criminal code it was carried over into the provisions of the at the main purpose for the act to stop sex trafficking among countries it was more an issue question of what that means in the mind of the jury you know not whether it was part of the ending of the statute clearly it's not part of the statute so if it was there wouldn't be a problem but clearly it's not part of the statute so then it becomes  question whether the congress critter in or anybody else whether the jury is going to look at it in eight pejorative manner and right of way you know designate mr money has an evil person because well we're telling the reckless disregard standard that there was force trying to force or coercion of employed to get this individual to submit to a commercial sex act now clearly this individual didn't the defendant acted knowingly that's one way to commit the violation or even reckless disregard of the fact through its use of force roderick regime was used to get the person to commit in the commercial indictment simply says that mr monk acted knowing or necklace just regard that the person was a minor and really be allowed to engage in a commercial sex act that is sufficient insufficient under the statute and frankly under this court's decision in united states vs all where the court seemed to say that that modification goes along with the term knowing to date did he act no additional qualifiers modify reckless disregard mens rea and that none of that under under any rate none of it was in count one of the indictment with respect to either knowing or reckless disregard so based on used her combination to him to get the person to engage in a commercial sector why that person is engaged in her was eighteen i think you're right it would modify both of those you know paul seems to suggest you know that and twelve and we submit that chappell here is not really relevant because in that case that the question was the conduct of knowing or reckless disregard and chappell didn't deal with the version of the statute which merely applied to knowing conduct and instead was or charge or two thousand and eight version which put in this reckless disregard of facts of fraud force threats of course and  tnot being used so i think that's the distinction in chapal of why it doesn't really apply but i would note in a way that hakim about six years later actually you know takes a bit of a contrary approach to chappel all looking at it eighty five dollars said rd eleven all for a said the defendants violate suspects if he knowingly recruits entices or benefits from just a patient knowing that force threats of force  is on the district courts are charging a mr monnett five thousand dollars fee under the victims of trafficking and are assessing that because no month during his pre sent justify assessing him that fee under the victims of trafficking act and the court in this case did not engage in any kind of the financial needs analysis this court in united states versus kelly said should be paying thirty seven thousand dollars a year keep you in prison and so it's only fair that five thousand dollars of your fines be charged and put into the asking at the sets when we would submit that even though it's going to be in prison for ten years a prisoner for commissary fees or whatever comes along eight thousand dollars is not that much money particularly when as an immigrant you have no one else through life not to help provide you with the extra funds needed for a month and more comfortable existence in prison in a nd the fact that the people of the united states but a for his incarceration this court has has in the past said the cost of incarceration is also did not meet the standard this court has imposed to decide you know whether he should or is that you know so it's also a question of the burdens of proof and how the court applied you know any finding burma how many interpreters are there for that language in south dakota not to enter one was from oklahoma or what i believe to be eric and correct me was from illinois so they took turns during the trial you mean i'm assistant u s attorney eric holder in representing the united states in this appeal the record in this case supports zamboanga conviction and judgment the indictment here in this case was not effective the district c did not plainly early in failing to dismiss it or in its instructions that were provided to the jury the district court did not abuse its discretion using the statutory title that was used to distinguish between the two  fenses here the term trafficking which is contained in the heading of the statute and the district court in not clearly earlier in imposing the five thousand dollars special assessment your honors i'm going to focus i guess at least at st on the argument with regard to the statutory text and the error that's being assigned or alleged there judge kalitan as you noted it's a very difficult and that's a tough burden to meet len the defect in the end when is not presented to the district court for consideration is of course set in for just a couple of years ago maybe just last year that the defense appellant has to show cause and prejudice to show good cause for why it wasn't brought up the indictment in this case of the defendant was indicted in august august twenty one two thousand and eighteen he made his appearance after the interpreter's were found located he made his initial appearance on september fourteen two thousand and eighteen after that no pretrial motion was brought no defect in the indictment was alleged and i will submit to the court that's because there was no error in the indictment in this case the statutory language judge grass if i may there are the word knowing or knowingly is contained in two parts s a number of other things where does those things knowingly and there's a nd part of it that applies to anything under five thousand and ninety one and that reads knowing or except when an act constituting the violation of paragraph one is advertising in wreckers in reckless disregard of the fact that means of force or threats will be used or that person of eighteen years because to engage in a commercial sex act that was a whole lot of words i guess what i want to do as i want to point out to the court i guess the statutory then the nd floor is there isn't a politically here so i'm going to basically ignore the except where the act constituting the violation of paragraph one is advertised so you cut that out and it says no any more in reckless disregard of the fact and then it's a eighteen years the disjunctive nature of this allows for both of those charges for both of those men's read out to be used knowing or in reckless disregard statute can be violated by both knowing or recklessly disregarding that the child that the person being used was under the age of eighteen the court there noted camas it was reversed it was reversing a district court that had instructed the jury in that case on knowing or reckless disregard the distinction is that the statute was amended after that so the statute as it existed in two thousand and seven only lot of knowing only allowed for conviction if the defendant knew the child was under the age of eighteen chapelle court brief it may not be dispositive here because the the exact issue was not being raised as it is in this case but it's a very strong and very good indication that that's how the court viewed it in two thousand worry about knowing or reckless disregard it puts both of them together and i believe that that actually just as you indicated just across the bat does this argument that this conclusion w actually goes through a very detailed analysis of the language of the use of orders in both parts of the nd half of the statute and also the use of the words of the just perhaps not as eloquently and so the authority from other courts does support the united states argument that respect as the court has noted with regard to the term trafficking the heavy the word trafficking used in the heading the court has wide discretion the district court that is in formulating the instructions that it's going to use here it used the title of the crime to refer to the crime as it was charged in numerous other cases and as long as i have been trying cases the charge is referred to by name the term trafficking is no more pejorative then other headings other names that are used for crimes such as murder assault kidnapping it is just the name that's assigned to it the district court here clearly instructed the jury clearly instructed them that they have to find that all of the elements were met that word wasn't contained it wasn't one of the elements that they had to find it was met but they were instructed that they had to in order to find the defendant guilty find all the elements had met here clearly by virtue of their verdict the jury did that the pejorative nature of this i have yet to understand i was not able to find in the appellants briefing where the prejudice actually came in how the defendant had shown any prejudice and i don't believe that there is any particularly in light of the instructions in the way that the court laid them out and gave the game the jury only one option and that was if you're going to find the defendant guilty after find that the elements were met as to the special assessment the procedural way that it went down is the pre sentence investigation report contained the five thousand dollars special assessment it was listed in there is something that's a political mess because the statute it's section th a title eighteen mandates that the assessment shall be imposed a lesser finding is made that the person is indigent that's my paraphrase of it of course the kelly case analyze that and said that much like statutory fines and much like other monetary penalties they apply at least in some circumstances they apply unless the defend shows that he is indigent here the defense objected they objected to the five thousand dollars hands but but they did not object to the fact that there was eight thousand dollars in his account that information came from the defendant and was given to the pre sentence investigation writer pre sentence investigation report writer the probation officer it was included in there when the district court pressed defense counsel at the sentencing hearing that years ago isn't even really that he pressed he just asked are you suggesting that there was no eight thousand dollars bank account well i have known and no information to the contrary i have no information otherwise  i believe on the sentencing transcript at page nine or ten that was the response it was months berber after he was convicted and he was convicted and believe it was mentioned earlier  that the united states had to show that the defendant was subject to that assessment he was mung was convicted under section five thousand and ninety one dollars that's part of chapter seventy seven dollars of title eighteen and that is mandatory that those crimes under chapter seventy seven dollars are mandatory for that special assessment because it applied mom had the bird then to rebut it or to show that he was indigent sentencing he admitted that there is no evidence to suggest that he didn't have eight thousand dollars in the account that he had already admitted to the probation officer because of that there was no error by the united states of minutes that there was no problem with the indictment there was no abuse of discretion in instructing the jury in using a term from the heading of the statute w chards both knowing and reckless disregard conduct and completely admitted that phrase in the statute for any purpose so even under the government's view of that all their data is defective that phrase is just simply entitle to use eight instruction that is an abuse of that description in this case it is good because it used language in the instruction that was highly prejudicial over perturbed nature count one simply should have been referred to as the commercial sex