come on one united states which we're going to speak to your honor good morning may it please the court and counsel i'm jane three assistant federal public defender and i represent m of the victim and that's in application no two there are three major problems with the application of cold war to the facts in this case the first problem i at the hotel and hobbs new mexico did not engage in prostitution when she was approached by a person who came to her door and evidently propositioned her for a certain amount of money  she refused she evidently let him into the room said and i quote she wouldn't do anything for eighty dollars and then he got up and left the room did your client admit that he was nineteenth war that the the so called blackmail the it was it was that the exchange about the posting of the illicit sexual tape for not giving him one hundred dollars that it happened on may seventeenth of twenty seventeen on june the next event that happened was on june sixth of twenty seventeen ms morales reported to the  though that she was being intimidated by him the evidence as presented simply was that she reported to the law that police that he was trying to post these videos of her she did not mention intimidation she was upset they were in a tumultuous relationship and they were breaking up and i believe her her words to the lubbock police department work he's so upset with me that he is trying to post these videos and that's what she  reporting the district court took from that that that was evidence that unless unless you company him to new mexico she was under the threat of exposure and that's one of the reasons they ended up in the casino in homs your honor there was no evidence presented at any time and i don't believe they were in the district court found that that trip to from may seventeenth when the video exchange happened over their telephones the june sixth police report there was no evidence presented that there was any correlation or anything other than a voluntary conclusion of the different court determination he said regardless even without consideration of the text messages between dependent and morales the court still five to work more hours when they got to  know and holmes so he collared double barreled through there it looks like to be in that the argument about the tapes and the phone and all that was one thing but the district court finally says well forget all that even after this event of the man coming to the hotel room and propositioning her for eighty dollars so by definition by definition of coercion and that is conduct that negates the voluntariness of the victim and event of the victim in the future as do all the cases cited in my brief refer to someone forcing typically young women to do something against their will who have no other recourse and that fort by definition happens before hand so your gear client benefits them because he was caught by the police before she could be forced into the next e well so your client your client wins on this element because he was caught by the police before he could force the victim to engage him a future prostitution your honor if it happens in a future case then it would be appropriate for a future case with respect to the facts of this case and this crime there is no evidence that any portion happened on the part of mr swears in to ms ms morales before the man approached her room at the coercion under the application your honor your honor it would be coercion if there was another man waiting in the hall and mr swearin said to ms morales if you don't engage in prostitution with this man then i'm going to beat you up that would be a set of facts were dressed would be appropriate is there a page case that you could point to supports your argument or are we here on the question of well your honor were the cases cited in my brief i don't i don't have a case specifically on point there are many out there frankly that i was able to find but the five that are mentioned in my brief all refer to cases where women were either brought to the united states on false pretenses that there was a man here that was going to marry them then they get here and are essentially imprisoned and forced into prostitution or where they're brought here on some other sort of false pretense and basically again kidnapped imprisoned and forest by threat of beating and rape that if they don't engage in prostitution they're going to the beatings will continue there is a third one where women were brought here on the pretense that they were what they were paying a smuggling fee of sixteen to eighteen thousand dollars when they brought right here they would be able to pay it off by working in restaurants and diners and so forth they with the money and then were imprisoned and made to prostitute themselves in order to pay the smuggling fee what about the evidence from the record that he made her take some photographs too so he could post obama a prostitution website or website advertising her your honor there is no evidence in the record that he made her take the photographs the evidence in the record fields was that the photographs were taken on that page thirty eight of the transcript of record on appeal when they were going through the text messages back and forth between the two there is no allegation that he was making her take the photos the the the allegation what are the the facts were that there were already intimate videos there of the two of them he wanted to post them to publish them and she did not want him to do that now there is no suggestion that he made her take inappropriate pictures of her so with that then the second the second problem with the with the district courts finding first that there was no will no act of prostitution that was coerced by mr swear o which was on june fourteenth there is no evidence in the record that there was any coercion with respect to that trip and in fact ms morales nowhere said that she made that trip in voluntarily the third matter and we've already discussed it to some degree is that is the fight that the district court relied on as well to apply the darius and handsome and and as to as i stated the fight happened after the event at the hotel room there is nothing that happened at the hotel and there also is nothing in any of the reports at any time that the video business when he could be coercing her in a more general manner and if that coercion resulted in her crossing the state line with him that's enough isn't that he didn't have to direct the threat to publish the video to a trip to homs duty your honor the definition is conduct that negates the voluntariness of the victim and i i propose that there has to be some possible connection by the way that is worded between the coercion and the event if it were not that your honor i think that there are a myriad add of life experiences to which duress could be applied if somebody has an argument here or go and makes a threat and a year later something happens does that make it directs and hanson all conduct so how do you how do you get around the first circuit case that's been brought up anderson case where the victim expressly disavowed the idea that she'd been coerced into traveling to engage in prostitution but the first circuit said no he forcibly raped the victim of week before and he was providing her with with drugs sometimes and that that negated the voluntariness even though she says they had nothing to do with the trip and that was a case where i believe it was that anderson case was one where the conduct was apparent between the rape the beating the drugging that that's what was going on and the fact that the victim subsequently said there was no dr was outweighed by the actual conduct of the aggressor in that case in this case we have a month before a threat to publish a video a voluntary then trip by three people to a casino a situation where a man comes to a door and the alleged victim or the ms morales refuses him does not engage in prostitution and then makes a report to the police that that mr stewart didn't beat her up because of that and of course as we know she subsequently took back that statement to the lovett police department and to the victim advocate she she retracted that whole thing and said she was just mad at him and made it up is it your position that she actually had to go through with an act of prostitution for the enhancement to apply it  well yes your honor i mean at least be put in a position where she felt like she had to prostitute because of a threat that was coming from him yes your honor and clearly she was not put in that position because she didn't do it she she simply told the man to go away she wasn't going to do it and that was the end of it and i think that's the strongest argument that coercion the coercion handsome it should not  good morning may it please the court counsel my name is maria song and i'm an assistant united states attorney in los cruces new mexico if i could i would like to start with just clarifying one thing judge carson you asked  all of this was in the context of miss morales explaining that sware just wanted to put girls on the road that this all related to prostitution the reason why that's important is because it is because it goes directly to the fact that  feeling pressure she was feeling coerced by the defended the district court in this case found that the enhancement applied for two separate reasons our position is that either reason independently warrants application of the enhancement but certainly taking both of them together supports application of the enhancement first we have the black male incident that occurred in may and i would also point out it started on may seventeenth but it all do anything you ask please don't post them i think that statement is very important to what she was perceiving as happening at the time it clearly goes to show that her volunteering as was being  because she was basically telling swear jane i will do anything you ask these don't post them and she also references that the defending is blackmailing kurt and the district court specifically found that all of those actions in may related to prostitution and were relevant to the events that happened in hobbs new mexico on june fourteenth then she took a different position when she was interviewed for the pre s court specifically said that those statements cut against her credibility because they were caught the district court specifically did not credit those statements by a smallest finding that they were contrary to the evidence that had been presented in the case and the fact that she wanted swear gen out of jail cuts against her credibility and so it's our position that this court should give those statements no weight because the district court specifically did not find her credible with regard to her later statements if we were going to give those statements any weight would we have to find that that would we have to conclude the district court's finding was clearer your honor i don't think that it's a factual determination the credibility determinations  something different and this court is very deferential to credibility determinations on appeal and what's the i mean what would the standard be them for determining whether the district court's credibility determination was proper or not well this court has held that credibility findings made at sentencings are virtually unlimited unreviewable on appeal and this court if affords the district court great deference when it makes credibility findings so what our position is that those credibility findings are not subject to a clearly erroneous standard this court should simply defer to the credibility findings made by the district court with regard to the conduct that actually occurred on june fourteenth and the occurrence position is that mr morris would have had to actually engage in prostitution in order for the enhancement to apply  is not our position judge tim could bitch i believe you brought up what about a situation where there's another man waiting in the lobby that's exactly what was going on in this case for this court to hold that the enhancement does not apply under these back to do we know there were multiple persons responding to the website the evidence we have in the record is that there were back page ads that specific men waiting but we do know generally that all of this conduct was related to prostitution and that the defendant had a desire to engage in prostitution scheme this it matter so judge martin  talked about the coercion that occurred in hobbs does it matter that the travel across state lines had already occurred at that time and that's the course him occurred on new mexico soil instead of coercing her in texas to come to new mexico your honor it's our position that it doesn't i think what this court should focus on is whether or not and his actions further and his manner and purposes it's also our position that any run of a conduct counts and so if you look at relevant conduct and there won't be one point three that tells us that we can also consider any harm that resulted and because of the crime so it's our position that the beatings that took place are a direct harm that resulted from the defendant transporting this mollusk across state lines to engage in prostitution case without that would be evidence of harm as opposed to evidence of coercion while the her position is that the harm that you're looking at is that it is because of the beatings it's foreseeable that in the future  going to feel coerced to engage in prostitution and so basically she beats her up on the fourteenth so that next time this situation comes out she knows that if she refuses again like she did on the fourteenth that she's going to be beaten up all of that her body terry is right and so you're opposing counsel would say that what that means is that next time he brought her across state lines to have her and ga prostitution that the prior beating him hobbs would be evidence of coercion in that case but not for this particular case and your honor i disagree with that i think that what this court should focus on is whether or not the defendant's actions further his mantra purposes and it's our position that that offense it's a continuing offense and all of this type of conduct is part and parcel for h trafficking worse previous courts have found that conduct like this is done in order to tear down the psychological the victim psychological state of mind so that they know in the future hey if i don't do what this person is telling me i'm going to get it so i better just succumb to what they want me to do but clip my microphone is not working to speak a little louder but outline for me exactly because you were saying you started out saying that there were two separate reasons specifically for the corps and you identified the black male i want you to fire for me specifically and keeping in keeping with the guideline as to the application note of what constitutes coercion what is your position in addition to blackmail do you maintain the facts show in this case we've been talking about a lot of hypotheticals i want to know in this while your honor i think that's actually separate from the blackmail because she made those statements on june fourteenth so there are the black me all this where jim was blackmailing her to put it that that he was going to post a sex video of the two of them what she told sergeant body and this on june fourteenth is that he had forced her to take provocative photos of herself to post online in order to promote his prostitution scheme so my position is that's a separate offense but that also goes to show that she was being coerced and lastly when they're in hobbs new mexico and she refuses to have sex with the gentleman who showed up to the hotel and then but but opposing counsel saying that occurred after before and our position is that it doesn't matter whether whether it occurred after the mere fact that i think what's important to you is to look at the timeline of those events on june fourteenth the gentleman shows refusing and what's your authority for looking at the upper case looking at the application and my authority for that is that this court can consider any relevant conduct in applying the application and if you look at all of it conduct basically it also encompasses any harm that resulted because of the offense do you or do you have any cases where the coercion occurred after the state line was crossed and your honor i believe there is a case cited in the briefs it's the bryant case out of the sixth circuit where the coercion occurred after they cross state lines however i do point out that bryant isn't totally on point it didn't deal with the application of this enhanced minutes it dealt with a fifteen ninety one prosecution where the united states has to prove fraud force or coercion where it's an worship in this case you you're required to show that the defendant coerced the victim into crossing state lines right that's not our position ok so you think that the victim could voluntarily cross state lines and there doesn't what it waited and you could still get there yes your honor because the way that the application reads is it the portion can occur as part  position is that as part of the offense encompasses any relevant conduct related to the offensive can make it so under your position they could have talked in lubbock we can assume that there was never any blackmail or forcing her to put the provocative pictures up and he proposes to her hey let me take you over to hobbs to engage in prostitution that she could agree voluntarily they cross over to hobbs and she changes her mind at that point and then he beats her up and hobbs and she and gauges and the that at that point you would still be able to get the enhancement our position is that we would if if the no i don't want to do this anymore he still sends the individual to the hotel room she refuses and then keep the it's her up after the fact my position be that the that and hanson it would still apply to those circumstances so  the voluntariness can go to either the transporting or across state lines every in the course and go to the transport element or to the prostitution element yes and as any part of the offense and i think what this court should focus on is the defendant's actions not how the victim is taking ed but what this court should focus on is looking at what the defendant intended with his actions what were his actions meant to negate the voluntar until they get to hobbs it's all voluntary until that time even though he intended to mitigate or volunteer in a starting way back in libya well your honor our position would be that if using caging in conduct that's intended to be coercive that the application should apply under those circumstances because traditionally when we look at hands minutes under the guidelines we're trying to punish more egregious culpable behavior by the defend it i see that i only want would like to reiterate that the action immediately preceding the gentleman arriving in the hotel room with ms morales was that mr swears and and the other woman who was with them went out for hamburger us went out and got something to eat a man arrives ms morales declines his advances and the man leaves so there was no coercion intended at that point to negate