just in order count one which is the enticement count then you in the southern district new york is missing as to all three of the alleged victims would have to be missing as to all three or at least then you could be missing as to  the nd and rd victims but as to one of them it could be deficient for other reasons but it has to be insufficient as to all three is right here and as long as evidence the venue or whatever else is a zone one that's that's that's good enough for the government would prevail but it's also th obvious is the easiest one here she is the undercover north carolina detective everything about her record in charlotte i mean there's no evidence of anything at regarding her that occurred in the southern district so that's out regarding all well that's the woman in who lived in was a prostitute and she went around the country and the missing person i was her friend no doubt but is there any evidence that he enticed her in the southern district new york none whatsoever so the evidence and can't win is insufficient on but we have no idea how that relationship came to be and enticement is an element the defendant has to do something and we've cited cases that say that merely asking someone to engage in prostitution doesn't qualify coercion requires both the sub defendant intend to go worse and also that the person so coerced reasonably believe that someone in her situation aware of what she knows reason we believe that she was being coerced sounds to me like she knew she was being coerced this is so i would say but this is that the government alleges coercion accredits are basically two distinct stages where your two factual theories of course st that she was kidnapped from her for a hotel room in queens and then nd after that that she was in coerced to travel to pennsylvania engaged in prostitution so if we start with the st one which is the easiest one this idea that she was kidnapped patently false there is no evidence to support certainly no reasonable verdict  and this sure sounds a lot like that where some guy comes to you and says you've got a nice business here and it would be a shame if anything happened to it you know we know a lot of people in the neighborhood and we watch out  for your business and make sure nobody breaks all the windows and all you have to do is pay us a fee for that service every month and the person is very polite and very smooth and when you cross examine a translator cross examines the victim the question is the ever is his voice did he ever explicitly threaten that he would break any windows or do anything to you or get people to do oh no no no never seen anything like that and those cases result in convictions all the time and indeed one of the things that comes up is the victim is thinking about that man's reputation or about the way people like him operate and do extortion racket taken and i submit that when the with the only evidence of course it comes from the words of the witness whatever contrary testimony she may give later that i submit your honor is just cannot be proved beyond a reasonable doubt when the victim herself says i did not feel like i was being taken and as to the vast differences between this case and the extortion case she admitted again she invited him she gave out she's a security conscious person she normally doesn't give out her room number to the hotel but  we don't know there's no evidence about that we have no idea we know that we do know that there was some communication text phone or something before they physically met in her hotel room but we don't know who initiated the government didn't provide any evidence of that so not only that he did she at the very but at this is i understand you this is a very strange lifestyle to me as well the idea of a choosing fees seems very odd to me and almost doesn't make any sense to me but the choosing fee as the government acknowledges is is money that a woman some testimony that seems to suggest coercion but with that that i do think is the strongest bit on the government side but that testimony and it's in the record it just comes out of nowhere we have no idea what the context of that conversation is and what it means whether it's simply some dispute this discussion about how much it cost to sort of and you extract yourself from this financial relationship that they've created among themselves that this is a this is a business arrangement which she she paid certain amount of money to join his team and then he accommodated her by putting him as part of you know team casino and so there is that statement but but it's not clear from the context what it means and also you don't respect it contradicts everything else she says whenever she's asked about why you feel yet there's no doubt she testified to i felt coerced i felt coerced but i would ask the court to school to scrutinize the testimony and and when every she's asked well why did you feel course afraid this person was going to harm me if i didn't pay and the jury is entitle to conclude on all the facts and circumstances beyond a reasonable doubt that the defendant was exploiting that fear because in that conversation in that context the defendant must be aware of that fear and be exploiting it whether wherever it comes from once the extortionist is aware of it and players on it intentionally does nothing to dispel that fear then we have someone who is exercising coercive power but again defendant's statements a kind of expert testimony about how somebody in that business operates that he was a nice guy because he didn't beat is workers black and blue he just slapped them once in a while but what again  respectfully we know this we know this and the jury knows this but there's no evidence that there's no evidence that she knows how temps work there's no evidence that she knew how you know respectfully pimps operate you didn't he tell her that you know she's in his women aware of that he's hit any women this is a this is a very very short relationship this relationship is less than forty eight hours during which she admits she met and the things mr purcel had no reason to believe that this woman was clearly unhappy with the relationship she had just given him eight hundred dollars and the testimony that she never objected never indicated her unhappiness with the relationship and as a result again she admits that he didn't do nothing to me he never hit her never threatened her never harmed her and finally as the government also mit's mr mr purcell was strategic in his use of coercion there's testimony from sharon or well that's the woman in queens and then another woman alice i'm sorry detective out in terre there was a videotape in which he was perfectly pleasant perfectly cordial because why because again on the government's theory because he had no need to exercise coercion no need to make the person feel like he's going to he's a he's a violent or course of person and we submit that that's exactly the situation is this would the victim one count five was it that she's not she we don't have any evidence that she's aware of his reputation or wary of anything that he had done with other women and that whenever asked why did you feel like you you were scared of course well i don't know he might have done something to me and that we submit is not proof we are real as you're  on a form or it follows a form of a typical search warrant it's addressed to any police officer of the city of new york and normally on warrant authorizes a police officer to go out and search a place go to this house find the computer probable cause that there is child porn on the computer but here the officers are not intended to search any place there the warrant specifically says that it off the court or theorizes facebook to conduct the search of its records not for the police to go to search book and senator computer and find the documents that are covered by the search warrant but authorizes face do it and it says that the warrant slash order is deemed executed when it's served on facebook it's like a subpoena the agent is really told and i suppose read strictly the warrant would now it puzzles me is how do we look at particularity in that context the search warrant to facebook is very broad there's no question of that you say yourself that amounts to give us the entire facebook account but if that's where is the particularity problem because facebook is told exactly what they're supposed to provide there's no doubt whatsoever facebook doesn't have to say oh this isn't anything to do with prostitution this may have something to prostitution then just find the whatever it is mike no account whatever pseudonym is under and give it to the police that's right so they're not exercising any discretion at all disclose all the information and then these sort of particularly the search terms apply to the agents sort of looking through the system and so here the problem with you know the st war in the august th you weren't and the last one to september t you say you know you can search for evidence of you know prostitution but in any offense including but not limited to prostitution that's exactly semantically the same as any offense i get that argument though of course the government would have a counter argument that it's prostitution it's this statute and things like it well that's including i just i understand that argument and i have to grapple with this but that's a less interesting argument and that's one that comes up in any kind of search warrant what's unique about this is the electronic context that's what's novel and complicated my get also the argument that maybe the new rule forty one has a better approach by rule but when we're looking at what the constitution requires i'm having a little trouble finding an analogy like why is this different then a warrant that says to the police go to this man's house find every hard drive  from that he's got every computer device that can store data that he's got that's what you're looking for that's what you get because there is probable cause to believe that there was child pornography this person keeps on a computer now the police come back to their offices and start looking through the computers which most likely have lots of things on them looking for evidence of child pornography so why is that different than what putting aside the question of including but not limited to if the november th teen warrant is interpreted as limited to evidence of prostitution type offenses and the probable cause is broad enough to say this guy's facebook account is basically what he does his pimp business out of they get facebook has no discretion give the whole account that's like find the computer now they've got the computer and they're authorized to look through it for evidence of prostitution again putting aside for the moment your other argument is there something putting aside that argument do you have some reason to say that the police are not given adequate instructions just because if you read the warn it doesn't say that you're supposed to so not just looking at police and ask it doesn't tell the police just look for evidence of prostitution ok we take out the including  that's related to or concerns prosecution it just says it constitutes it is evidence of trust why is that different than the one that says go search for the computers and the thumb drives but then even then you're still saying well but you're limited by sort of these you know you're guided in your way you're looking for you still looking for evidence your guy is your guided by what you're looking for meaning what the probable cause is about it doesn't say typically because again we're we're focused on the evidence go we think of it as the place to be searched is the suspect house the things to be seized are the computer devices and there's not a secondary step that says once you get the computer devices you have to get a different warrant or where you were saying in this warrant these are the specific types of evidence that you're looking for photographs or whatever it's understood what you're looking for differences in in a good case you look through all the time do you give us some instructions about and you don't keep looking but this warrant just says evidence of a do you have to keep looking because they're not you don't know they're all pictures i don't i've seen them all but you don't keep looking if you're sure of it but this please the court my name is sebastian sweat i'm an assistant state's attorney in the southern district of new york i represent the government on appeal and i also represented the government in the proceedings below i want to talk about the venue issue i'm happy to talk about the venue issues so as the court rightly noted there were three victims identified in count one if evidence is sufficient for any of them to count stands i think that what's your best what's wrong with your best one i will your honor so sharon all l was entice as part of a continuing offense by purcell he was on the road he was traveling around with it with women he met her i think through a dating app and began calling her he began soliciting her in fact he attempted to entice her to travel to tennessee he said come meet me in tennessee a woman just left me one of my girls just left me so you come out to tennessee she said no so in order to make his enticement more effective he said i'm coming back to new york let's start with that from and are you saying that that is evidence  then sufficient evidence of venue because if she had said yes to what he wasn't placing her to do she would have to pass through the southern district of new york you know your honor for us and i don't think herself contests this all in and around  honor because he has started recruiting her he started enticing her at least trying to entice her on the road remote reason tyson where for all we know he makes a call from cincinnati and another one from nashville and another one from boston there's nothing that says he ever made a call while he was in the southern district new york and while he was in his car on the way through the southern district of new york or even when he was on the phone in a car on a trip that in fact passes through the southern district of new york all you are saying is that he goes to a lot of places and crisscrosses new york while he's doing it that's not exactly what i'm saying your honor i'm saying this was a continuing offense and under  nd circuit law any act that occurs in a district during the during a continuing offense gives rise to venue and what's the act the act is that he drove back to new york specifically to see her to recruit her in person and we even know that i mean he does at some point get back to long island and makes another call from there and sets up this weekend but we have any notion that he was recently somewhere else and came to see how that works if there's a venue anywhere else that he might have driven through on the way so i think there were about three separate questions there so let me address them one by one do we have evidence that he was somewhere else yes sharon all testified that he told her he was in texas  california i believe she mentioned a number of states where he reported he was traveling she also said that he would call her from the car so her understanding was that he was driving from place to place he wasn't flying he wasn't taking a helicopter or anything like that so i think that answers your question as to was he outside of the district or outside of long island i think there's evidence of that certainly for purposes of venue by a preponderance i think the nd question was is there evidence that he traveled through the southern district of new york to get back and there i don't even think purcell contest that there was testimony from an agent about how you can get on and off of long island by car there was license plate reader data showing he had made similar trips before there was testimony from maria and wood that he had traveled with her across bridges to get from hempstead excuse me to state college pennsylvania so i think the jury could logically infer that his trip from wherever he was to texas or florida or what have you back to long island involved travel through the southern district of new york and i think the rd question is whether that travel itself was essential to the crime whether it was the motivating factor and again i think that sharon always testimony when looking to see if there's any you establishes that fact she says he told me he was coming back to meet up with me and this crime could have been prosecuted in the eastern district of pennsylvania i realize they don't have a sovereign in pennsylvania who could have been prosecuting the eastern district of pennsylvania if there was any evidence at all that of his route for this trip if you somehow googled his search his google maps record and found him traversing  philadelphia on the way back to long island and prosecuted there i think if the evidence establish that he had begun his enticement one location and had traveled to complete the enticement in another location then yes under nd circuit law the continuing offense would have occurred in the eastern district of pennsylvania or in wherever else he traveled to make that final step and what where have we held that enticement is a continuing offense rather than a series of individual all in the southern district of new york we called her from the bronx we called her from manhattan he called her from rockland county and then we also talked to her in long island on one of these honor i respectfully i think that when someone is making an attempt to entice a single person when that person has not succeeded in his enticement in fact when she has rebuffed the st request to travel to tennessee and then he decides that an in person meeting is going to seal the deal so to speak that when he travels there that's part of the offense and would every single call be a separate charge of enticement i'm not prepared to answer that question but i do think here the offense committed against sharon all well involves a period of i think it was several weeks in which she was trying again and again to get her into this life to travel with him and frankly the evidence showed that he at least achieve some level of success when he was in person met same theory would would cover up in terror presumably of course right because if he's starts talking to her from long island and then drives from long island to north carolina on a mission to meet her and finish the seal the deal as you put it then he could be prosecuted in any state that there was evidence that he traveled through even if only over the verrazano bridge on his way from long island to north carolina could be prosecuted in virginia could be prosecuted in delaware maryland district of columbia any of those places your honor i think that that's accurate i think mr purcell presented a wide menu of options because he was basically a two hundred and forty seven pimp all around the country and certainly much of his conduct occurred in and around new york city there were back page ads they were facebook posts there was ample evidence showing that he was he was active and prolific here within the southern district of new york he was active in full effect on long island he was active in prolific in states all across the country so your honor frankly if if if there were unlimited resources and unlimited showing that minimal the cases are legion you say i think there are cases showing that minimal act with a district when the offense has continued in that district is sufficient i think there are there are cases in which a phone call a sufficient there are cases focusing on sharon all well because i think it's hard to view his approach as anything but motivated by a desire to to seal the deal to effectuate his enticement if if he had just seen her on facebook and said you know and then ended up in new york and met with her different different case different factual pattern but where he's talking to her where he's trying to get her to meet him in tennessee and it doesn't work and he decides to go back i think for purposes of venue which is a preponderance standard giving the jury every reasonable inference it's completely fair to say that when he got in his car drove back to long island through the southern district of new york met with her in person and then in fact persuaded her to have to engage in prostitution for one night that that was part of the act is race if he hadn't driven back to the southern district of new york likely she never would have taken notice that she never would have met him in was no physical coercion and yes i see my time is up but i will briefly address it let's talk about the facts she was she had her phone taken from her she was told to change her number and i'm referring to marianne was here she was told that purcell required his women to abide by a series of demeaning and humiliating rules that they had to call him daddy that they had to walk behind him that they couldn't have any other relationships that they had to get a tattoo that said king casino on their  neck he never let her out of his sight she had to use the restroom she had to go to the bathroom with the door open when she was at his apartment his parole officer came by she had no idea for what but she knew that he was someone with a criminal record she asked him if she could go to a funeral or she could go to court he said i'm coming with you she he told her i might let you leave if you give me a one thousand dollars she was told all the money that she made from prostitution we go to him she didn't decide that she wanted to go to state college pennsylvania he said there's a town with horny college boys that's where we're going and all of that is is ample evidence of force and coercion but if we're really getting to what her state of mind was and whether this was a reasonable conclusion because i think that's what the appeal focused on that maybe she felt scared but it wasn't reasonable it wasn't rational i think you look at the text message that purcell center after she ran away she ran away and he sent her a text message that said i'm like you know i'm going to kill your fat ass you nasty bitch stay away from my city so i think at that point the jury looking at everything she had experienced and then looking at how purcel reacted when she did just his rules had clear evidence that there was force that there was coercion that this wasn't some sort of flight of fancy by  is there something in the record that explains what got produced in response to the rd search warrant your honor in the government's brief and i'll pull up the page right now  on page nineteen it explains what was what was produced at trial what was introduced at trial and sort of the timing of it so that's where i would look to find out what's now the government's view is none of the state warrants matter because judge cote signed a warrant in august of two thousand and eighteen purcell never challenge that warrant and all of the evidence that was introduced at trial the way that this is inevitable discovery and that work would never have happened if the case wasn't brought to the southern district of new york by the people with there the evidence that they had collected right you know out of there was evidence completely leaving aside what was in the facebook account there was clear evidence and that there was pimping activity in that account and at some point some there was but is there any evidence that there was any kind of federal investigation or federal interest before what was provided to the u s attorney's office by the d a based on these words your honor i don't know if that's the relevant question the relevant question is not what you're saying that it doesn't matter if these warrants were totally invalid and on lawful and in response to that the district attorney gets a whole heap of evidence and comes to the u s says look at our great evidence we think you've got better penalties than we do why don't you go and take it and you go in and do whatever you're going to do that somehow that constitutes inevitable discovery so as to make it irrelevant that all of this evidence came from invalid warrants i'm not just zooming it does i mean that's a big one that's the question i really want to get to but a little surprised is inevitable discovery the theory you're relying  on to say the judge coats weren't moots everything else your honor i'm relying on the language in united states versus johnson and in that case the court said that there are basically two factors in determining whether evidence that was case the nd federal warrant was completely free of any taint in fact all of those public posts were still there when special agent richards reviewed it collected them and prepared the affidavit the nd question is whether the agents would have applied for the warrant had they not seen the excludable evidence and here i think the answer is that they absolutely wouldn't even be there if they hadn't seen the evidence there would be no federal agents there would be no u s attorney worrying about this case if the case hadn't originated in the district attorney's office and then developed this body of evidence that gets lumped on your desk this body of evidence went well beyond what was in the facebook accounts the district attorney's office brought hundreds of backpage as they had interviews with witnesses who said that cell had told them that they need to be branded they had they had evidence that he was pimping in trafficking all around the country that would have led them to bring the case to the u s attorney's office in any event and that evidence combined with the very public conceptualize this warrant if i were if i were forced to decide whether that more and meets the constitution's particularity requirement how do i think about that well your honor i think that the says that the the twenty four dollars categories constitute evidence intend to demonstrate that an offense was committed including but not limited to which sort of steps outside promoting prostitution in the rd degree  it then says you are therefore commanded to retrieve enter examine copy analyze and to search the target facebook account for the above described evidence i think it's it's clear that the above described evidence is evidence of the crime listed and that the police are authorized to seize rather than what they're supposed to look for once they're looking for it in fact the warrant does this very interesting maneuver of saying that whatever the agents do once they get  arise in the context of looking at the stuff that facebook gives them by describing the search warrant as just serve it like a subpoena and let facebook do the searching does that insulate  what the police do later from any scrutiny as do have they been instructed to look for anything in particular i don't think it necessarily does your honor but i get i think here the the war itself referenced the particular crime that was at issue and as the court has said many times particular you and overbred are tied to probable cause and here there was vastly probable cause and so i think that the agents had the the direction that needed to search the twenty four categories for evidence of promoting prostitution i think that this was was was not overly broad i don't think and i've always been puzzled about how particularity works in the real world in this context because whether or not the evidence says including but not limited to the words as including but not limited to the agents are look at they know what they're looking for they're looking for evidence of prostitution and if they find photographs that are not photographs of a dog with photographs of the defendant engaged in a murder they can seize that to under the point of view doctrine i'm not sure what's the difference between a particular warrant in this context that's relevant to this particular kind of search but it but to qualify for that you have to show the motivation for that was independent as well and obviously you know this is in the middle of the litigation of this particular case it was motivated by the state ones so it's tainted by those ones as are the venue regarding  rockaways we have no idea that he traveled through the southern district even partially motivated by the desire to entice her and so there's no sudden to see value in that and this idea of like he asked her to travel to tennessee that cannot possibly verb you have to take somebody there's no evidence that he transported her and the government just want you to assume that he did because well that's what he does most we have evidence right here that that's not always how he operates he sometimes asks women to travel themselves but he also arranged who tell rooms with her on one of these he did yes or no and that's what we think this case jones in the d c circuit is essentially the same scenario transport has a particular meaning and it's different than entice thing or persuading someone to travel and employee as courting the person even if she uses her own car and drives her own car from maryland to d c what we don't we don't know that again we assume that they travel together we know that they went from one to there's one there's reservations and one place in the resume another but we don't know how they got there maybe they took separate buses or maybe you just say you say we assume it don't you mean a jury could infer it what you are this is a reasonable inference of people going on a guess it is conceivable that they each took separate flights maybe they even did that on purpose to not be seen together or something but that doesn't seem like the most logical inference from your drug this is where this court's decision in polling comes into play right just don't have that again it's a good guess i meant it it's a good guess but it's still a guess and you can't base you know you can't convict somebody based on a good guess and then finally with regard to coersion i understand but i would say that all these things about you know  his little rules and all the things like that what is the evidence of this he asked she agreed she never objected he asked she agreed she never objected and she said when asked well what are the count why didn't you why didn't you refuse she said well i don't know maybe he would have hurt me and as for the for the flight in the final nasty text message your honor i can admit to you we can all get her guess was right she was right  but a good guess is still i guess you know a broken clock is right twice a day ok and you know if somebody looked at a broken clock that they know it and said oh it's two o'clock and i happen to be two o'clock she is correct she was right that she if you refuse something some consequence would happen but it still has to be a reasonable has to be a reasonable belief her belief that her refusal want to result in coersion has to be reasonable based on what she knew and the evidence is insufficient on that thank you can