morning your honour's may please the court my name is jonas lemon and i represent the united states in this government appeal and i'd like to reserve two minutes for rebuttal i will watch the clock your honor the district court erred here by declining to impose the ten year mandatory minimum required by twenty two fifty two b to this child pornography recidivist unhandsome and the court adopted a reading of the statute that's contrary to its plain meaning to the statutory context to congressional intent and to court's binding precedent particularly sullivan and i'll start with sullivan if i may because it controls here and i think it answers a lot of the questions at issue in this case so insolvent this court explained what the phrase relating to means in this statute in twenty two fifty two b to this court also considered how the supreme court's decision affects this statute and this court held that relating to has the normal broadening effect and that the usual categorical approach that was the phrase used by this court the usual categorical approach does not apply so a state prior conviction doesn't need to match element for element any particular federal crime writers there's no basis for distinguishing or limiting sullivan to only the sexual abuse predicate offenses listed in that statute how about the fact that child pornography and explicit sexual conduct is defined and in this in this chapter of this statute doesn't that areas that the fact that there are federal definitions in a different statute is relevant to the relating to inquiry and so you can look at those other federal definitions but because there wasn't an explicit cross reference as in the louis and because this statute has a different historical background than the historical background that the supreme court emphasized and literally it doesn't modify the phrase relating to in the same way as the removal statute at issue in the literally and i think another reason that  n can't be limited in this way is that it would lead to a very strange result so the phrase relating to appears only once in this statute it appears once and then it's followed by a long list of generic federal offenses so if this court were to accept the defense's proposition here it would it would lead to a strange construction and i'm not aware of any other statute that's been interpreted in that in this way where the strict categorical approach applies to some items in that list but not to the other items in that list so put another way that relating to has a broadening effect on some of the terms in the list but not on others what sullivan makes clear is that the phrase relating to has to be given effect it can't be stripped of all meaning and the court said in sullivan that accepting the defense's argument would strip it meaning and that we have to assume that when congress used the phrase relating to new it it was doing and it meant to have that broadening effect that's the holding of sullivan and again there's there's not a way to limit that holding or distinguish it as the defense has argued for all the tools of statutory interpretation your honour's we would submit point in this direction you've got the plain meaning of the words relating to and again the presumption that congress means what it says and you've also got the fact that when congress wants to require the sort of strict equivalence that the defense has been arguing for congress does that explicitly so in scenarios this court said experience indicates that when congress intends to require a state offense to be concurrent to a corresponding federal offense for sentencing and h purposes it will draft such a requirement expressly and here again congress just didn't do that instead it used the term relating to which insall of in this court said shows congress intended to cast a wider net and the district court here also failed to properly consider congressional intent and i think that's a key part of the analysis that this court should really focus on and the question there is did congress in writing this enhanced mit mean to cover repeat offenders like mr rinehar now converse lee as we explain in our briefs if this court were to adopt the defense's reading of the statute it would mean that these sorts of child pornography recidivist enhanced ment's would fail to apply in about forty out of the fifty states that because forty out of the fifty states at least forty have child pornography definitions that are a little bit broader than the federal definition that cannot have been what congress intended in one thousand eight thousand nine hundred six when it added this recidivist language to the statu so on the louis point since judgment you asked about that i think it's it's important to look at what the louis actually says and again to look at how sullivan construed so again sullivan already applied mouli to this statute and distinguishable  in a couple of ways first mouli is particular and is specific to the text of the removal statute and that text is very different from what we have here again the removal statute had that parent had a said and sullivan and the other key part of the supreme court's analysis in the lily was about the historical background and again that's another point of distinction here so the supreme court emphasized that congress and the b i a in that statute had long required this sort of direct link and so in sullivan this court said there's no comparable historical background here we don't have that sort of direct link required mouli also didn't require an identical match between any federal generic offense and any statute of prior conviction and the opinion doesn't actually decide what it means for a state drug crime to relate to a federally defined controlled substance what he says is that the government's position in that case just departed too sharply from the text and from that historical background so the kansas law at issue there which was not even about drugs it was about paraphernalia of drugs that the government's reading of that just was sort of too far afield that the kansas statu e pushed the relating to phrase to the breaking point but that's not what we have here and again the the sullivan decision says that's not what we have here we have different text and we have different historical context and if we read a relating to as you as you advocate for could it result in triggering the mand tory minimum i'm just trying to figure out the extremes on both sides here in new you make a good point with respect to your position on the extreme but  but if prior offense were to teenagers were sexting each other could that offense result in a relating to child pornography that would then result mandatory minimum s i think it potentially could i mean the question then would be you look at the and i see about two minutes but if i could just finish the answers so you'd look at the elements of the federal generic offense and you'd see if the the entire state conduct in the state offense categorically relates to the federal offense so the generic federal elements would be that the defendant knowingly possessed a visual depiction of a minor engaged in sexually explicit conduct and the defendant knew it was a minor so under the hypothetical judgment day that you have put out i mean i think that potentially could qualify but it's not your for a ten year mandatory minimum you know potentially so i i mean i  pressing you a little bit on that because i and i understand you made a really good argument as to why you know you think that under evaluating current state laws it might eliminate some but if we go the way that you advocate for then it would sweep in a lot of conduct that i'm not i don't not sure that congress would have intended that well your honor that the defense hasn't pointed to any state child pornography laws that are you know much much much broader than the federal child pornography laws and without having researched the question i'm not sure that the hypothetical you suggested wouldn't be prosecutable under federal law i know the answer to that but it may well be that that could be a federal child pornography offense as well but if the courts concerned about the sort of the limits i mean one way to address  that is what the eighth circuit did in the male cut case so there they actually said that the federal definition of child pornography is what applies they said the twenty to fifty six definition is what applies but that still doesn't limit the meaning of relating to so you still circuit said we're to use that federal definition of child pornography but then we're going to look at whether the state law stands in some relation bears upon or is associated with that that federal definition and that's the same standard that this court used in sul suggests that our interpretation is inconsistent with sullivan and reads the reads that word out of the statute and that's not the case when you look at the language of the statute you see that the words relating to are broad and we  concede that fact but it has to be anchored to something and that anchor is the federal definition of child pornography when you look at the language carefully you see that in fact what the language speaks to is relating to a set of types of conduct with a subject which is child pornography so the words relating to modify those lists of conduct but doesn't modify the actual subject itself so the statute speaks to relating to the production possession receipt mailing sale distribution shipment or transportation of child pornography state child pornography related statutes involve a wide range of conduct what congress wanted to do here is make clear that the fact that any of these specific terms is not mentioned doesn't limit application of the statute and you see this actually in three eleven point three three eleven point three applies to developing duplicating printing were exchanging child pornography none of those terms is one of the types of conduct described in the twenty two fifty two statute at hand but clearly because of the use of the word relating to it swept up and it would be swept up but for the fact that the definition of child pornography is overbroad under california law this interpretation is entirely consistent with the louie louie speaks to relating to the conduct so that's applied to transportation possession use any number of different types of conduct involving the drugs that are defined in the statute what about the government's contention that th considered overbroad compared to the federal definition that's an argument that was raised in louis and rejected by the majority in that in that case and if congress is concerned about that issue they've amended this statute repeatedly they can determine conclusively what the definition of child pornography is how it should be broadened and which type of content should in fact be included should it include nudity should in i mean there are any number of different things that they could add to the definition that would bring it within the scope and satisfy the government here but they haven't done that and how about bennett the tenth circuit case why should we be persuaded  that's true but the tenth circuit is really the only exert that that's given in any meaningful analysis to this issue the circuit case described by the government didn't engage in meaningful analysis of this issue and our position is that that case the tenth circuit case was wrongly decided for the reasons described by judge hearts in what i think was a very well reasoned dissent and our interpretation is entirely consistent with maloof which speaks to looking at the definition in the statute and the government makes make it makes an argument that in fact the definition of sexual abuse sexual abuse of minor and the other terms in the first clause are defined the point though is that there is a definition of child pornography within the chapter at hand that definition at twenty two fifty six says that whenever the word child pornography is used in this chapter this is the definition so it can't be the case that in fact in the context of twenty to fifty to be two the definition is broader you have the words relating to which broaden the conduct but they don't broaden the definition of child pornography and i think that's absolutely clear and it's absolutely clear clearly consistent with louis and what you hear from the government in particularly in response to judge mcgee is question about limits the government's interpretation has no limits this is extremely important for the reasons the judge mcgee identified which is this is incredibly harsh consequence a person when this law applies to them gets ten years mandatory minimum in prison states around the country defined child pornography in widely varying ways ways that are starkly inconsistent with the federal definition of child pornography the government asked for examples just having done a quick review of these statutes in illinois  criminal statute eleven dash twenty one which describes child pornography includes children but it also covers people with severe or profound intellectual disabilities we also are looking at statutes and convictions from years past  in ohio until one nine hundred ninety child pornography covered images of minors who were nude and nothing else nothing about lewd conduct and so the concern is that unless there is a limit and that limit being the federal definition of child pornography any conviction that has any arguable relationship could qualify a person for the ten year mandatory minimum and i'm not hearing a limit that has meaning from the government and that's the concern the supreme court identified in the lo and the history and i think the government makes a good points regarding the history in particular and so i guess i'd just like to hear your best argument for the history supporting your position and a reading of the mandatory minimum statute we have no quarrel with with the point that congress intended to expand the scope beyond simple categor across the board it is true that the legislative history speaks to that but the legislative history doesn't speak to a desire on the part of congress to expand the scope to conduct or to images that don't meet the federal statutory definition we don't have a legislative history suggesting that in fact congress identified the fact that there are statutes that cover conduct that is potentially violent of the first amendment protections of defendants that expands well beyond what the federal understanding it's we don't see congress saying we don't care about that we want a ten year mandatory minimum to apply to images like that that are broader than the federal definition what they did was include the rape relating to language with respect to conduct to ensure that it covers a wide range of conduct specifically in reference to child pornography that's consistent the federal definition that's in anything more than that really would get into problems of vagueness which i raised related to the johnson case so let me ask you before your time is specifically regarding three eleven point three think is what is that statute  i think we received your supplemental briefing on that i want to act ask you about the men's rights and the lack of mens rea that you argue is present before that second part of that  unconstitutionality well a couple things one is the video obviously was a federal court interpret in a federal statute what we're determining here is whether a state court applying this state statute would have applied as it's written  there is nothing that we have in the record or in case law is suggesting otherwise and in fact the government actually admitted they did better than i did it finding unpublished case law on this point but in fact the unpublished case people the life shows my point at pages five and six you see their explanation of what is required to be proven under three eleven point three there's no indication in there of a requirement of knowledge  to age and if you look at that opinion it also describes what's required three eleven point eleven and it does include that knowledge of age requirement so is there any example i guess someone being prosecuted u nder the statute where there is no mens rea yeah that been shown i guess i mean is there any i guess i would say that people view life confirms that courts have applied this without requiring a knowledge requirement because knowledge is mens rea requirement because the case itself indicates that that's not among the requirements in the statute it describes the fact that in that case they were able to establish knowledge but that was only relevant in that th i will be very brief your honor on the congressional intent point i just want to draw the court's attention to something that we focused on in our reply brief which is that congress has made extensive findings about the close relationship between sexual abuse and child pornography there is nothing in the legislative history to suggest that congress meant to treat the sexual abuse predicates differently from the child pornography predicates and in fact that would be contrary to congress's clearly expressed intent where they say that child pornography directly leads to sexual abuse it's a tool used in sexual abuse and that these two types of offenses are closely linked now on this point that the government's interpretation has no limits that was the same argument that the federal public to put defenders made and sullivan they made that in two different  briefs and this court rejected that argument so what you're hearing from the defense here really i mean they've tried to say that they're distinguishing sullivan but as we said in our reply brief this is really an effort to relive a gate sullivan and this court has already rejected many of those arguments thank you very much