good morning honors john valis on behalf of donald peel the defendant i'm intending to reserve three minutes for a bottle our first argument in the appeal is that the evidence w insufficient for any rational juror to conclude beyond a reasonable doubt that mr peel transported lp from oregon the california on or about march eighteenth two thousand and fourteen with the dominant purpose of having sexual relations with her in violation of california law the argument focuses on the third element that the mr peel must have intended that the sexual activity be must february they drove into arizona california oregon and washington state in washington for two weeks and then they started a second trip on the way back stopped in oregon for about a week crossed into california around march eighteenth and then were stopped and arrested on march nineteenth the i wouldn't say is insufficient to show that the purpose of mr  crossing in from oregon to california was to have sexual relationships with al p because by that point in oregon lp had told mr peel that she was done having sex and she wanted to get straight go home as quickly as possible mr peel agreed with that and she said that he stopped having sex with her right about the time she crossed into border you' let the evidence shows that he transporter across state lines for sexual purposes but you're just saying there's a bent from oregon to california didn't happen that what you're saying i'm saying that he but he did trash border across state lines just not between oregon and california for that purpose not for that purpose because he had my dude that might have been enough evidence for an earl time but not on the way back i wonder how do you take account of his girlfriend's testimony that he had told her that he wanted to groom  p to become a prostitute and why that intent doesn't continue to carry oh well two reasons first that the indictment was very specific of charging specific violations of california law and it did not charge prostitution the twenty four twenty three a statute specifically says that a person could be convicted of transporting across state line for transportation for prostitution or for violation of any other criminal conduct sexual conduct that someone could be in violation of laws the government specifically did not charge that the transportation for prostitution part of the statute and only relied on the second part and then the second reason i don't think the prostitution transportation for prostitution works is really they were at the end of the trip and there was no evidence of prostitution during any part of the trip there was a little discussion as the court noted about talking about her she could have become a prostitute right if you know also why or why doesn't that also bear on his intention whether to have sexual relations with her again in california as he had done essentially every day on the rest of their tr i don't think that the fact that he discussed with her the possibility of her prostituting that goes to his intent to have sexual relationship with that is what lp is specifically by the end of the isn't that part of grooming someone for prostitution in your them to sex with the rumor that they had been on a trip for three weeks there were no acts of prostitution she she never testified she testified nothing about prostitution is a little bit about in las vegas where there were there were some possibility that she could have done it later but that's not that's not charge here it's not in the indictment it would be a constructive amendment of the indictment that's the second argument we have and i think that argument it's the same thing the government specifically asked the jury in closing argument that they could convict also on the transportation for prostitution but that was not charged in the indictment and it was not really the focus of counsel that's the reason i that's the reason i asked the question that i did because grooming someone for prostitution includes or can include having sex with them personally and it seems to me that in that way that evidence supports the charged intention to have sex with her in california as part of the activity of grooming her and i don't even if even if the prostitution ever took place and i think that argument may potentially would have some bearing on the initial portions of the trip but at the at the end of the trip when she says she still doesn't want to have sex with them anymore he agrees they say they're going to go back to los  a as quickly as possible and he had stopped having sex with her at that point the question is when they crossed the state lines did he have the intent to have sex with her in in california and the evidence is whol insufficient it would be purely speculative at that point to say that his intention was to have sex with her in california in the we just kind of  discuss the second argument on the constructive amendment on the third argument that the knowingly element knowingly should apply not only to the transportation element but should also both tell him that she was only sixteen i mean if you're right about that which i have some question about based on brooks why wouldn't that be harmless error in the circumstances  here so there was some evidence but there but it wasn't instructed on the jury there was also contrary evidence alp he test when she was arrested she told the officer first that she was  eighteen mr peel also told the officer that he thought that she was eighteen and the question should be to bring give it to the jury and let the jury decide if that was an element of the offense it would be  by failing to to instruct them that element would be under the higher constitutional harmless error standard and the government i think properly here did not argue harmless error because if the element was never even given to the question of the case to show that that's required under this statute well i think my my best case is the florists figure oh a case which is the supreme court case statute that is that the knowing the mens rea or should apply to each element in the statute this court ruled otherwise and taylor before floors figure but the the ruling in that case which we're not quarrelling with here is much more limited because that was a transportation for prostitution case and in the transportation for prostitution case the court said that because prostitution is illegal generally regardless of the age of the individual being transported knowingly does not apply to the product to the transportation for the purpose of prostitution but here the majority of right the majority of states statutes hold it's a sixteen but in this case were the statute and the indictment incorporates california law and the argument is that because it could potentially  not put people on notice that their conduct is illegal that it should the knowing should also apply to the age of the person being transported i'm sorry i don't really and i don't understand your argument here you you wanted to have the u s reconstruction that you could not be convicted if he reasonably believed that minor was at least eighteen years old and that's california  that's a defense under california law yes so there's this kind of two aspects to the argument i'm making one is under the knowing requirement of the statu and flora's figure that knowingly should apply to the age of the person transported and that and that you didn't ask for instruction that he had to know that she was sixteen and that isn't i don't think the federal loans were so i wasn't the defense attorney but the trial attorney the issue first came up when the prosecutor brought it up in a motion in limine day of what the age arguing that you should exclude any evidence of a mistake of age defense or exclude it the defense then at that time objected and made the same argument in making here that the knowingly  requirement should apply to the age of the defend it because taylor case only applies for transportation for prostitution the court is correct though that then he asked for a specific instruction that under california law it's an affirmative defense that the reasonable mistake of age that the thought the person was over eighteen is a defense to the charge how do you square your position with us versus brooks which seems to hold that under twenty four twenty three a knowledge of the victim's age is not an element and only the  time i know a tailor says that essentially i have to i have to go back and check for brain i just i'm not understanding the theory of why he would be entitled to an instruction with respect to state law well that this statute  the indictment incorporates state law the jury is instructed that state law applies that they have to know that the person transported someone into the state of california for the purpose of having sexual relations with her in violation of california law and it is well is that the intent element applies there it also should be a defense ok that you had a reasonable belief that the individual was over eighteen thank you and i'm going to reserve my remaining time for about in this case taylor is still good law after flora's figaro in light of barnes brooks is also another case that that says there is no requirement for knowledge in this in this type of crime this is a transportation crime and so the knowledge element only applies to the first element of transportation if the court has their questions i'll engage those but if not i'll move on to the next issue with regard to th the state elements or succeed in the state crimes that were put in there were some something put in there for rule seven notice so that so that the defendant has full notice of the sex acts the specific sex acts that we were alleging that he crossed state lines with the intent to have l sexual act sexual conduct and so to further explain for the defendant you measure whether or not it's illicit by reference to state law yes your honor from only for the standpoint of notice and never has this court under davenport particularly never has  point that judge graber raised with regard to the sufficiency of the evidence your honor with regard to some of the evidence that was brought in with regard to grooming that certainly can be evidence of his intent because sex with the defendant isolation from her family isolation from her area the other area that she grew up in creating dependence on him is part of the grooming process and so that does seek to his interest his sexual interest in her and with regard to grooming it can be sex with the defendant or sex with others and of course in this case the defendant is charged with crossing state lines with the intent that lp would engage in sex that someone else could be charged and so the defendant or some other person those sex acts next i'd like to to turn the issue of constructive amendment defense claims that the government  effectively constructively amended the indictment by arguing a different date that simply misrepresents the closing argument we've laid this out in our response our in our answering brief the jury instructions in this case focused on the march eighteenth crossing again and again during some ation and also in rebuttal argument the government focused on the march eighteenth crossing and frankly that is where our best evidence was because that by march eighteenth we have twenty six days or twenty eight days of repeated sex acts sometimes two or three times a day he and by that time the evidence that he had pills in the car to help his sexual performance that he had used sex toys on her that he had kept her high throughout the course of the trip to reduce or inhibitions all of that evidence comes in and is part of the larger picture that we have when he crossed the state lines on in march our strongest case our strongest argument is the march crossing and that is what we argued that is what we chars that is what we argued and so therefore there is no constructive amendment in this case next i'd like to turn it's s e r eighty four and ninety four said that he considered the entire trial record in this case when overruling the defense objection the government at sentencing really needed to provide proponents or prove  preponderance of the evidence that he did again engage in obstreperous behavior and here the court had a chance to consider that the compelling testimony of the cole corsi who said the reason he made all these proposals to to me was because he wanted to keep me off the assistance of counsel that was raised i simply like to point out that the proper venue for for that if that is an issue would be under twenty to fifty five we would need a fuller record to address any allegation that i don't believe the court has any questions with respect to are both distinguishable here because there are transportation for prostitution cases and second they both predate florus figure which has more expansive language  right i'm sorry your mistake so my first point still holds true with brooks that it's only applied to transportation for prostitution prostitution is illegal generally regardless of the age of the victim and that's a distinguishing characteristic thank you thank you it's just argued is submitted  we'll hear the last case on the calendar which is united states versus arthur