me please the court i'm christi gibbons i'm an assistant federal public defender in the western district of louisiana and i represent the juvenile in this matter this is a case where someone was found guilty of something that they were not charged with now because we're talking about a juvenile matter it's an adjudication of delinquency but that's basically what we're talking about and we know that because in her ruling district judg gave a very specific ruling on her verdict and she said this is a tough decision not one of my favorite days on this job but i think the evidence is sufficient to determine m t c a delinquent based on the events of february twenty third two thousand and fifteen in which he in my opinion had an intent to commit a sexual act or actually was committing a sexual act just not the one that everybody thought he was going to commit what is the sexual act about everyone thought he was committing or was going to commit penetration the the juvenile was brought into federal court on a juvenile information and that juvenile bill of information is very specific it says that he knowingly in gauged and attempted to engage in a sexual act as that term is defined in title eighteen c twenty two forty six to see that is the sexual act of penetration with using either fingers penis or an object it's very specific in the juvenile information what he's charged with the case proceeded to trial and the government president a case in opening closing rebuttal and an attempt in allegations of penetration this case was about penetration and that the sexual act everyone was talking about repeatedly said in in the case was penetration that's the sexual act how he committed the sexual act could have been with different ways but the sexual act is penetration and the judge says he wasn't committing that sexual act  all or all talking about meaning penetration he was doing something else and i'm finding him delinquent based on that and that your honor is that it could have very well meant to say well rather than contrition by organ he was to tempting to penetrate her some other way you could read the judges of remark and different and their different context i disagree your honor in combination with the bow of information in the trial transcript where it is penetration it's not it that's one when anyone's talking about sexual act in there talking about penetration it's not it was it was you know his penis or his fingers the sexual act is penetration the judge says it's not that sexual act that's not what he was doing he was doing something else he wasn't trying to penetrate her that's what the judges words say and that is a violation of his due process right s the juvenile is entitle to due process it's undeniable there spring portlaw he gets due process and part of due process is a notice in of being afforded a meaningful opportunity to present defense and prepare and you have to know with specificity what the allegation is against you and here the allegation was you committed the sexual act that you were tempting to commit the sexual act of penetration that was what the defense was about verdict not only a violation of due process but also renders the proceedings fundamentally unfair because you can see there was no objection at that time there was no objection i did do concede that however i maintain that objection would have been  and it would have been futile because the judge had taken a break before coming out she says it's a tough decision her decision was well formed at that time now but it was not we don't know that it would be futile because you don't know if she could clarify that oh i mean that he's on his way attempting or i'm finding him totally on this other thing and you're right i should we should i'm in the information this is this you don't know that the judge couldn't have cured it or would have realized her  but she not if she had a chance to hear an objection in order to secure it she would have had to change the verdict and in fact point that wouldn't that i couldn't she could say oh i can't do this i forgot and so therefore i can't find a map and i do find he did this if they want to do an information at some point you know or but she couldn't have said oh you're right i'm wrong it wasn't he was you know attempting to you know whatever it was it wasn't with the evidence the judge heard i know it's disputed from the defense side but the with the judge heard was that the young girl's panties had been pulled down the juvenile was behind her i mean what what other what other conclusion other than some attempt to penetrate either by hand or by some other method could have been contemplated here what else could the judge be thinking well she i submit that her words while she was not since i'm thinking that it was penetration and his pants were up they were sweatpants they were a little bit down but his penis was not exposed his hands were on the floor so they were not near and that's not the evidence she hurt if she heard that  here there was some evidence to support the judge's conclusion ultimate conclusion of intent to penetrate with but i submit that's not what her ultimate decision was her decision was he was yaki talking about penetration he wasn't trying to penetrate her he was doing some he was doing committing a sexual act just not the one that everybody thought he was going to commit that is a different sexual act of penetration sexual act could be a variety of ways under the statute and in it could be mouse to the genitals it can be penis to vagina see is penetration or it can be touching the genitals without not through clothing there are a variety of ways but that's not what he's charged with he's charged very specifically with penetration and that's what the notice was in that's what the case was about and that's not what the judge found and to go back to the issue of no objection i would also submit that it an objection that is would have been futile but also plain error even under plain error the juvenile still prevails on this claim and that's because it's clear and obvious for a judge to change a charging document on her own without any notice to anyone or the defendant and that this doing that affected his substantial right he has the right to due process he has the right to present a defense in this case he went to trial in pursuit of defense on one thing and he was found guilty on something else that he didn't present a defense on to the juvenile could of there are several ways first of all it's almost impossible to answer that in the sense that we still don't know what he was defending against so it's there it's difficult to know what the defense would have been but he  could have a very big part would have been his decision to testify he might not have testified knowing what the other with the judge was going to consider in mind not he might not a needed to testify in the government in his in its brief says you know what the fact that he did testify you know we should construe that against him so that's huge prejudice he wouldn't have he might not have testified depending on what the evidence would have been in the cross examination would have been different argument would have been different there are possible motions that could have been filed we don't know but there are many ways that defense would be different and it's it's that the lack of a defense is the projects he didn't even defend against the thing that the judge found him a delinquent on and so all of those things and that goes to the integrity and fairness of the procedure and proceeding for the plane so even with playing air the the juvenile prevails for all those herself found that the government did not prove their case she found that you know you are all talking about one sexual act which is premature ation but he was doing something else that shows the insufficiency of the evidence right there and and with that either way the juvenile prevails either it was part of his due process was violated by having to go to trial with out and being found guilty of something he wasn't he wasn't charged with or the there was insufficient evidence for the charging document and he was he was found not guilty of that and to do now prevails i'd like to now turn to the second issue which is the registration of the under the sex offender registration notification act what is the what of the circuits or people courts have dealt with whether or not you can you can make this analogous eighth amendment claim that you know similar to how juveniles in finding adults so you know you don't have punishment for someone but the critical distinction with smith and why smith is not applicable to a discussion about juveniles is sniffed with  adults in smith the court said you know you already had a public conviction anybody could of found that out they can go to the court house they can do anything they want they can find out you have the sex offense your employer your your housing every so we don't we can't say that sort of creates this new barrier for you because you already had a barrier but smith says we acknowledge that registration is stigma that it's it creates these lasting problems and it's serious understand that we can't say that someone is your problem here but the problem i have here is so the judgment of the trial court is yes to register until his twenty first birthday so that's a hope we have before us here so why isn't the juveniles arguments are premature about mark time registration does any need to challenge that in some separate proceeding after he turns twenty one your honor i submit that jurisdiction is proper in this case under under both sections and the reason i turns on the punishment angle but because someone it is punishment as it applies to juveniles that is subsumed in the sentence and in the final decision that that punishment makes it part of the sentence it makes it part of the final decision and because it's punishment we get to the eighth amendment does the juvenile have any opportunity once he turns twenty one to challenge his sworn or registration the only thing the juvenile could do would be to bring a civil action however some ways that would not be advantageous for him by having to you know or wait until he like violates someone are anything like that which he would not do but there's nothing saying that you can't have both and that only applied to the twenty first birthday but i don't see that in the judgment the judgment just says you have to comply with or nah that is without where does it does the judgment say you have to comply with someone until you're twenty one were doesn't it just says you have to comply with so we're not it does just say you have to comply with someone a i think the understanding is under the federal juvenile delinquency act any penalty only goes to twenty first birthday but the the the effect it is for the rest of his life right and so this is sort of a friendly question the judgment doesn't say it says you have to register pursuant to and sort of automatically trigger something for the rest of his life so it's not it's remediated or lack of jurisdiction because twenty one this this particular judgment may be completed that's correct or it's not it doesn't solve it because they're at twenty one it's not like when he turns twenty one he doesn't have to register anymore he is mandated to register for the rest of his life as being based on this juvenile conviction and under the supreme court decision where juveniles are treated differently for sentencing juveniles are different the moral the last culpable you know that's that's also the whole point of the federal juvenile delinquency act is we don't want them to have the stigma of a federal criminal conviction we want to rehabilitate juveniles and so with all of that  doesn't matter you have to wouldn't throw you with the worst penalty bout that the adults can have which is lifetime registration a sauna which is admittedly stigmatizing it limits liberty there's affects on employment schooling housing travel you're asking us to create a circuit split i am asking that this court have a ruling yet in that and that is what is proper it can be a circuit split if that's what the law made and that's a hard thing to ask for i understand that but i also think that eighth amendment violation for a juvenile who is based on something he did as a juvenile he will have to register as a sex offender for the rest of his life is the type of situation where this court should take a stand in and have this declared unconstitutional in if it results in a split it results in a split but this court should do the right thing in this case up think my time's about my name is force phillips and i represent the united states in this appeal this court should affirm the district court's adjudication of delinquency because substantial evidence supports the district court's verdict moreover there's the court's comment when issuing that verdict i'm the most plausible explanation for the district court's comment is i think what the court's already suggested here today that the district court judge was merely saying well i find you've committed a sexual act perhaps not  penetration if it wasn't in c but it was going to be an a or b do you believe that would be appropriate or and should there have been a min of the information well your honor even if it weren't attempt to change the  information to a different definition under twenty to forty six that still would not cause that's an open top of the event to relief here and that's for a whole host of reasons the first being that this comment had no formal w finding of fact the rules of procedure offer parties an opportunity to request formal factual findings that might have the ability to to cause an amendment to the filing document that was not done here accordingly and had no effect saying that it's either attempted digital penetration or attempted sexual intercourse inside that no your honor she did not but that's that's the record reflects that that has to be what the comment meant there's been no indication with the evidence offered in the record that any other there's any imprecision there the fact of the matter is the defendant's not entitle to believe absent a showing of prejudice and the defendant has really not alleged how it's defense would have would have changed at all based on the the the fact is that that comment does not cause a constructive amendment to the bill of information because the law regarding destructive limits has been a pluggable to juvenile proceedings and at most this was a change in the the verb reconstruct from the charges but still i mean i guess i have the problem of the whole due process argument this is actually in your favor it to his whole theory was she pulled down her panties i had nothing to do with it and i was trying to get her to put her panties back up and that's when mom walked in the room i just don't see how under any theory this whole defense would have changed i mean my reading the facts of this case wrong no that's correct and to circle back to judge jolly's question these four sexual locks contained in twenty to forty six there are different means of proving the encompassed element of a sexual act so even to the extent the district court's comment was an effort to change the sexual act from from subsection a to subsection the the fact is that this court's decision should be undergirded by is there substantial evidence to support the finding of a sexual act under twenty two forty six  indictment and that law does not apply here the defendant does not contend that applies you instead the defendant's asserting that there was a process when did somehow unfair as a result to change a violation of due process would be a fifth amendment to the question of prejudice goes hand in hand with the question of whether the process was rendered unfair and as judge argues suggested earlier there's simply no indication that the alleged comment caused any prejudice here there's evidence on the record the defendant was engaging or attempting to engage in a sexual act with the victim to recant that evidence the victim testified that the defendant pulled her pants down and with her on all fours position himself behind her in a manner that's patently sexual and in touched her exposed bottom but that's not all the evidence we have we also have evidence from the victim's mother who witnessed the scene she testifies that when she walked in she saw the victim on all fo the victim with his hands down beside the victim's hands not assisting her and pulling up her pants and that his pants were partially lowered suggesting penetration with that habitants on record there's no really no credible argument whether any reasonable finder of fact could have found that a substantial step occurred that's where the weirdness i mean did this to the district court statement not that sexual act is problematic because you know we're saying oh this was the step towards penetration the district court statement seems to say this is not penetration that forgot that they're going for and that's that's you know if this was a jury verdict and they came back with something like this on there they'd be sent back for some clarification why shouldn't this be sent back for some clarification of this was a jury that i mean they were just asked to be found guilty or not guilty of a sexual act and so there wouldn't have been any underlying you know which sexual act could we do have required juries to to specify you know which sexual act occurred or required you know name a day in which sexual act occurred and so i'm not sure why we would be imposing upon the district judge any higher bur what the law was and i would have laid out twenty to forty six he and so they would have had to look at the sexual act being defined what this we left to do open to do we don't know the judge said twenty two forty c with respect to the charge stated in the information with the charge of the information be sufficient enough that if the judge was thinking in her mind he was going gage and oral sex with the charge covered her not the joint of that the charge would not have covered oral sex we would be under question of whether rather that that change in the factual basis might have caused prejudice which which you know into the harmless  amendment that's because the defendant doesn't object to the requirement that he register persona he objects to the requirement that he be required to register potentially for the duration of his life at least for a period of twenty five years  twenty first birthday but the judgment says you must register with zorra and it's that act that triggers this lifetime restriction and carmichael it appears that it carmichael's actually harmful to your case not helpful in carmichael because they do government actually conceded that they've sworn a requirement was part of the judge that was part of the judgment and so it's part of the judgment and the only reason carmichael didn't have jurisdiction was because it was a prison condition there is no other and so something had to happen was that there had to be a prison thing for the d n a in that case here nothing has to happen in order to trigger the sor the judgment which he is seeking to appeal from stops on the twenty first birthday that the basis for the eighth amendment claim here is that registering for potentially life twenty five years is under the harsh unusual punishment the district court's judgment does not cause that the judgment has no effect past his twenty first birthday but because it requires him to lifetime register the judgment is what requires him to lifetime register he has to register and because of sarina it is a life time register your own at home would i would  purpose with ensuring law enforcement has information regarding sex offenders locations and ensuring the public can protect itself its purpose is not retributive that its purpose is not punished and the effect of the defendant sites and his brief  so severe as to render it punishment and there's really no case law to support the proposition that all this one is clearly not being ever this but to adult it might become punitive when applied to juveniles  cite several supreme court decisions that that suggest that in the context the most serious punishments were talking life imprisonment without parole and that a sentence that might be appropriate might not be prone us attorney general's guidance cited in the brief on this issue now it states that sorts or does not acquire does not require states disclose the identities of sex offenders are required to register as a result of a juvenile adjudication and not juveniles salute but i can also say that the the guidelines attorney general's guidelines state that state jurisdictions are not required to disclose sex offender registration status to a whole host of entities  including private employers volunteer organizations housing entities i cannot say for a fact that includes governmental employers your honor i'd have to return to the statute but it certainly suggests that there's greater protections for juveniles and so want to doesn't limit its acknowledgment that juveniles are different than adult offenders when it comes to requiring public disclosure of their identities it also gives juvenile offenders this opportunity to remove themselves from the sex offender registration after a period of twenty five years that opportunity exists soley with respect to juveniles adult offenders are allowed this this opportunity to demonstrate rehabilitation that is exclusive to to conduct committed before an offender comes of age for that then that's eighteenth birthday whether that would apply with respect to sort of i think it would not because someone is fundamentally different than capital punishment only different than term eleven president without if we agreed with you that we lacked jurisdiction or been he could never challenge this view no you don't and your brief pretty much acknowledges you didn't seem to be a good vehicle for the direct appeal is not turning to anyone well you're out of the he's required to register for sort of as you pointed out right now as a result the sense in judgment so that that controversy is sufficiently right that we're not saying it's not attaches as soon as the verdict is rendered and the district courts adjudication are excuse me verdict in that case conviction and sentence would require him not to have a firearm and we do on those those computer cases where there when there are conditions of their probation and their out information in there while they're in prison they're still challenging those even though that hasn't come to pass yet we let them say challenge it right in the in the criminal case right been  factual proceedings and so it doesn't matter if she picked any of those other sexual acts it's ok because that's just a minor thing there's a supreme court case this their own case it's right on point  it's in the sense of the supreme court says no if the government charges in a charging document that was an indictment but if the government charges someone with a specific fact regarding the element of the offen and in that case it was hobbs act robbery the indictment said in the it affected interstate commerce because of saying he was importing sand at trial there was sand and the government said oh also it went to still mill and that was doing products that would go out and interstate commerce so the jury instruction was you could do either one in the supreme court that absolutely not there's a specific essential element in just like here it's a specific it's it's a specific subsection you can't come in and say ok we can find you guilty of a different subsection but cases directly on point but this is a juvenile proceeding it is in so there was no grand jury indictment however the fundamental aspect of that aside from the grand jury is notice in due process in the juvenile was entitle to a fundamentally fair proceeding he's entitled to present a defense and know what he's up against you know in that also goes to the due process cross examination questions you decide whether the defendant's going to testify you might you might make a completely different closing argument you would there are different things to that defense if you know what you're defending against and to go to the point of  the government argues that the comic by the judge had no formal weight as a finding of fact the judge has absolute discretion to make whatever finding she wants and as your judge dolly said this was  expression of her verdict it wasn't just a finding of fact her verdict was i find you i find you delinquent based on a different thing than what you're charged with and that's an absolute violation of due process and his notice and the fundamental fairness and just very briefly on the astonishing that this case this court itself has noted that there's a serious stigma with sex offender registration and it can't be overcome because the federal regulation says you know what we're going to let you we're going to say if you have a mission to finish thank you it can't be overcome because the federal court the