is to apply the right amount of pressure to my five year old daughter to get her to do the things she needs to do to succeed in doing this what we might call responsible parenting i've probably violate at the forced labor act in our brief we've asked this court i mean i'm here with with with respect i mean it's a little offensive to bring in a normal parenting situation i mean this was this was slavery well it was not in day slavery judge cost i certainly understand that the government has certainly done a good job laying out the facts of the case but when we're talking about an over breath argument we're talking not only about the facts of the individual case but also the legitimate conduct concede i think that we've argued that it is about association not so much about speech so as the decision to bring people into a family the decision to associate with employers or employees in a smaller into meant employment setting much more so than it is speech so we have asked this court to find the forced labor act unconstitutional because it's overbroad and or vague because it infringes on this st amendment right to association this court should do so facial challenge directly a facial challenge and it was not brought up in the just it was not raised in district court so it is going to be brought up on plane air review of sark our contention is that it's  preserved for error but we must satisfy the plane air review and will certainly argue why we do that in a minute as soon as we get through the elements why we think the statute itself is unconstitutional above kind of hard to do  plain error when other circuits have expressed lee hill that this is not and constitutional and it and that's certainly a challenge that we have but i think there are a couple of different answers for that st in considering that other other circuits have held that it's not that it is constitutional they've done so in the context of speech they haven't done so in the context of association and i think when we look at this very specific we often think of the st amendment as dealing just with speech but of course it has five protections in it one of them being so c h and when we look at this statute in the context of association and i don't think that's been brought up before in any circuit i think we come to a different answer and we come to a different answer because of this really broad definition of serious harm and i know you can bring an overbroad challenge for speech what katie did it doesn't have to be for this statute but what's your best cost i can't think of the case off the top of my head and i mean i apologize for that but i can't think of it but i will certainly provide that to the court and it's certainly something we looked at and we certainly something we believe we can do inside the first amendment now it certainly is true that most st amendment challenges are speech challenges much more than association challenges but i think that we can look i think we can look at this in the context of over breath in the context of association so if i can turn quickly to the argument about why we consider it before us let me say that i think you know everyone here agrees that the facts are kind of ugly this is a difficult hard case but we also think it's a case that gives this court an opportunity to change in amend one of the most important statutes we have and we suggest that that can really be done with the addition of an affirmative defense to this statute so this court has an opportunity to explain to congress that this important statute can be rendered constitutional if the court believes it's unconstitutional by adding that affirmative defense that would allow a defendant to show that his or her conduct it was the type of ordinary pressure that is widely considered to be socially acceptable and to have the conduct then be protected from criminal liability and as we've said a real difficulty here is with the definition of serious harm and when we talk about serious harm what we're talking about is a definition that says any harm whether that harm is reputational financial physical emotional except or any harm that's necessary to get a reasonable person in the same or similar position as the victim to do the labor we contend that this is overbroad and we've provided the court was several hypothetical examples of that from a parent with a child them parent with a teenager employers we've even mentioned judges in a way that people acting responsibly may have violated the forced labor act and we think that this falls this is in a judge to make working her law clerks too much or a parent disciplining her kids too much and i thought for a while for your vagueness challenge doesn't the  but when you get to conduct that the court considers to be clearly prohibited by the statute then it goes to those facts now we would contend that maybe the facts aren't clearly prohibited under holder because of the opinion  tovah and the th circuits explanation of the vagueness problems here but when we're talking about an over breath we're certainly looking to a broader range of to a broader range of conduct and i think we can see this when we look back in the history of this statute to the cause amend ski case and i may be pronouncing that incorrectly out of the supreme court where the statute that initially prohibited  forced labor was declared unconstitutional and the court went directly to things such as parents having their children work for them and i think even though he's been overruled by statute it's reasoning still applies and i think we can also look to the stevens opinion that stevens was about speech much more than it was about association but when we look at stevens we see the eight to one opinion from the supreme court where the chief wrote the opinion in chief justice roberts found the object to section section forty eight dollars to create a criminal prohibition of alarming breath and he was right and what he was really talking about was a statute  that didn't really look to these sort of crush videos that really grew some ugly things that the statute was pretty was designed to prevent but look to the broad array of legal conduct that the statute criminalized and he and justice roberts chief justice roberts went to the fact that the statute went so far as to potentially criminalize hunting magazines in an eight dollars to one dollar opinion were justice alito was the only one who dissented in the dissented because he thought it should have been part of the statute rather than the whole statute supreme court found it overly broad and we think that's true here and we think it's even a clearer case here because the statute in this instance as opposed to stevens has even broader application going to really what we consider to be the fundamental relationships in our lives in other words the decision to bring a child into a family whether it's an adopted child a child from another family or brought into your family biologically the decision to bring someone into wars and little right to a slave a child no absolutely not judge cost i don't i don't believe that at all the fundamental right in my mind is to have the child and to raise that child appropriately and to not they would have been sending him to school giving him you know putting him on your health care plan all things that were not done in this case and judge cost i'm not here to condone or ask the court to condone the specific conduct in this case but i'm asking the court to do is to look to the language of the statute and to ask whether that language creates a problem across the board in other words asking my child to pick up her lego an example that came from my own life she didn't do it so i put the lego away does that fall under the definition of serious harm and i think that when we look at the be serious on earth well it's from the perspective of the victim in that case the victim was a four year old the rest to be reasonable well a reasonable victim in the same or similar circumstances as the person who does it so reasonable four year old probably considers that to be sufficient harm in order to do it but if you don't like that example judge costa we could look to other examples that we provided and that is say a employee who's asked to work late at night he doesn't want to work late or an opec or who's wants to work in the morning and if they refuse to do so they suffer either financial or reputational harm by quitting the job or getting fired from the job and you've suffered either financial or emotional reputational harm not physical harm of course but but a type of harm and enough of the harm to satisfy the definition of serious harm and what i'm trying to urge the court to do is to see the breadth of the problem with serious harm and to understand that the solution in my mind is to is to urge congress to add an affirmative defense everyone agrees that this is a fundamentally important statute but as it's written it's far too encompassing it encompasses way too much and it should be a jury issue so we should be able to ask a jury with what this person has been charged for is that sort of the ordinary pressure that's widely considered to be socially acceptable and if so then they're not going to be guilty of this often split if as you point out judge yesterday i am really confused because this is the nd time you said you need to write something to urge congress to do something are you saying that you think you lose but you want to write something in the opinion that points out that this is troubling it could be remedied not out are you i mean why would we be writing a missive to congress i don't understand your argument in that sure and thank you for asking judge alright my answer is no matter how you come out of this and i certainly don't i don't think it's a losing argument think it's an appropriate and proper argument if you can step away from the spot facts and look at the law generally but what i think this case also does is it provides this court with an opportunity to talk to congress a discussion between the branches of how to remedy a constitutionally deficient statute so if the court reaches the position that this is unconstitutional it doesn't mean that the court just says well it's gone the court has an opportunity to tell congress look it is the fix isn't that hard this might work with an affirmative defense one remedy for this would be an affirmative defense so i'm trying to give the court not only a problem but so if as applied to cinderella is this statute unconstitutional doing all this housework not getting to have a nice rooms with their sisters and not getting to go to the ball not being problem and the only reason i'm asking this is because you want to test the spatially and that's a well an example of a situation of being mistreated in a family and then the nd question i have are you still challenging the restitution even considered cinderella but i think when we looked at a situation like send a rela that we could say that no it's not unconstitutional in those circumstances now i think where you're leading me is that in most instances a facial challenge has to be unconstitutional in all respects but that's not true in the context of the st amendment in the st amendment it could be unconstitutional especially in an overbroad challenge it can be unconstitutional in most to cinderella well i think i don't want to get i mean i haven't read cinderella to my five year old i'd it's been a while since i looked at it but i think when you take a severe scenario we recognize the importance of the need for th statute the statute has a legitimate role in american society and based on american history has an important purpose and i don't dispute that at all what i what i object to is the bretts of it and the vagueness of it but w cinderella let's just take take the argument and say that look she's really been quite mistreated it's to the point where her labor has been exploited and she has been treated in  a in a criminal way and criminal sanctions should apply so i don't have any problem with that there what i have a concern about is how broadly it can be applied so in other words in my mind while while i haven't seen it applied that way it can be applied to an enormous amount of otherwise legitimate conduct and when the happens i think we have a constitutional problem now the answer to your nd question judge iran i'm sorry that i'm speaking so quickly is that yes we're still challenging the restitution amount the real and i realize it's been remanded and come back and the real argument there is that we don't is we think whether it's under the m b are a with v that the court had an obligation to explain its restitution i'm out now and obviously had a problem with ninety six hours they didn't accept our hours and the court said something like given the arguments are based on what i've heard i think forty hours is enough but with the inconsistency that happened here we really think that the court needed to explain itself so that we could have some basis for reasoned appellate review on that amount broad as plainly legitimates we force any hypothetical applications to constitutionally protected activity indeed the areas that defense counsel has highlighted today fall almost exclusively exclusively outside that she would face serious harm unless she works indeed his actions included picking her up from the air when she arrived alone from africa as a child eating and helping to beat her and virtually abuse her shaving h allowing her to remain in exile in the car as a young child until the police brought her home and eat a big he had dated their questioning he took her to a dental clinic to have one of her missing three adult teeth extracted rather than to the family dentist he asked to do so and indeed he was an adult in a household where he and his children enjoyed neil's prepared but a young one after the family was done who took its kids to school but couldn't read herself and  slept on the floor or a mattress is in the children's rooms his actions and his word saying that she was given to the family and that she escaped when she left and his presence in the home clearly established submission evidence for the jury to find that he knowingly here d d s labor by means of serious harm counts right yes you know this whole st issue is the you know the constitutional issue i understand we have to decide it because we were convicted they were convicted of something we have to look at seriously and decide but it isn't it has nothing to do with the for the harboring counts right i mean even if we were to agree that the count one goes away there's still the harboring convictions right well to be clear for it how one here it forced labor conspiracy and the tureen were acquitted on that account to the set that the forced labor go if we agree with them that it's completely unconstitutional and we wipe that conviction off the books they're still or have the absent turning to the specific issue of the jury instruction on harboring the district where properly exercised discretion in crafting the jury on elian our brains have followed this court's pattern instruction which accurately defined it's a court some other number the record moreover the trial and sentencing records supported at least this amount and the records show that d d worked for the tories nearly every day for sixteen years and her days were filled with can you hear me now judged innocent and thank you sorry about that one of the hardest things about this case are that the facts are so emotionally evocative they were reprehensible but we saw that in the tovan case the judge specifically judge rogers specifically talked about how awful the specific facts of those cases were the case was but she then turned to the law and when she turned to the law she found that the forced labor act could not apply in that circumstance without making federal criminals of almost all responsible parents and guardians in the united states and it's our contention that the same facts and law and application apply here and that when we step away from the individual facts of this case and toben was a sufficiency of the evidence case not a constitutional case but when we step away from the specific and repugnant facts of this case and we look to the statute and to what the definition of serious harm is this statute however important it is has a serious constitutional problem and as judge l rod and i discussed i think it's a constitutional problem that has a relatively clean remedy getting congress to do anything is not an easy thing to do but here the addition of a affirmative defense that says you're not criminally responsible if it is the sort of conduct that we recognize as socially useful and appropriate fixes the deficiencies in the statute and with that we asked the court to find the forced labor act unconstitutional we asked the court to find based on the reasoning in tovah mind that the evidence was insufficient to convict mr tour of forced labor we also although we didn't discuss it asked the court to find that the definition of harboring in the charge was insufficient and consistent with this court's precedent and to re mant to the district court in your brief you say you concluded your constitutional challenge i think st you say well you just throw out the conviction but then you say or else remain and for a new trial if it is unconstitutional well why don't we we may end the forced labor  judge cost of that that that would have been an error if i didn't see that when i read it and i apologize for that but obviously if it's unconstitutional it's just thrown out thanks thank you