good morning runners please the court i'd like to try to reserve four minutes for reporter i'd like to focus first on the issue of the defective indictment and then move on to the multiple conviction in hanssen if that suits your honour's the indictment is fatally defective as to the production count because it fails to allege the material element of specific intent namely mr divorce belief that the person named mystery is a minor that he believed that she was a minor while the completed crime under eighteen u s c twenty five fifty one is a strict liability crime the attempt crime under johnson is held to be a separate crime one that has separate elements and each element which must be addressed and in the indictment and found by the grand jury the belief  mystery was a minor was not contained in the indictment the grand jury did not find it and in fact the government did not proceed on the attempt theory until shortly before fact finding so we have no way to know what the jury grand jury believed her found regarding mr de four's mens rea out on the attempt crime the allotment the indictment says mr de vore did knowingly employ a used persuade induce entice and coerce an attempt to employ use persuade induced entice and coerce a minor to engage in sexual explicit conduct it says nothing about his belief that she was a minor mr de vore argued this in district court well before the fact finding so the issue was properly preserved at that time our supreme court has held since at least eight hundred eighty eight that all the material facts and circumstances in the definition of the offense must be stated or the indictment will be defective five put all of that case law in my opening brief and won't repeat it there  the government argues that mr divorce contention regarding the belief element should be rejected because the language of the indictment tracks the language of the statute but us feet keith rejected this same argument saying at page four sixty four an indictment isn't adequate when it fails to allege an essential element of the offense even when it tracks the language of the statute so i think it's pretty clear that we need that element in the enticement and without it it's defective it makes sense on a commonsense level that we would need that element in the attempt version of the crime and not the completed first of the crime as the case the relatively recent case of armaan explained in a bit more detail when the defendant a repellent is in personal contact with the victim the defendant has all the information he or she needs in order to ascertain whether the victim is a minor or not the personal contact should do it but when there is no personal contact then it's necessary to examine the basis the factual basis for the defendant's belief that the victim is a minor and that becomes a real issue that's why it's so important that it be put in the indictment in that farm and gives a pretty good explanation of that and and looks back to excitement video for for that reason the district court relied on an elk booth which is a montana district court case and who said that the attempt language necessarily includes the mens rea of the intent  that relating to should not take us out of using the strict categorical approach when looking at those prior priors for the sentencing enhanced meant justice ginsburg wrote some very specific language and about how the lading too can broaden us into although she didn't say in to bake ness where you were saying anything relating to sexual and in exploitation of a child i believe in the government's brief they say basically anything sexual a child doesn't want to do that could also be sexual abuse which is contained in the twenty five year enhanced meant we have such will exploitation in the thirty five year enhanced meant these are different terms but when you look at it through this long range lens of relating to those can become commingled you can't really tell the difference because we're just saying anything sexual child with a child no we just had a recent memorandum disposition by another panel clark clark seem to does but given the curtailed nature of of the analysis and clarke i think that it doesn't supersede reinhart i'll save the rest of my time if that's right thank you  an attempt which is a specific attack a specific intent crime with respect to the multiple convictions and handsome and in this case i think clarke is a complete answer it's not presidential but it's persuasive it had rinehart in front of it there was a twenty section twenty two fifty six i think but why doesn't that you know if you look if you want to know what constitutes sexual exploitation of the children look at subdivision a and lays it all out right there because melodeon reinhart are an exception to the general rule about how we read a under the categorical approach how we read anon anon code citation when it we have a nontraditional offense and they say they recognize the general rule and  the general rule with regard to the import of the phrase relating to but they say when congress has actually identified a defined crime we're not going to apply that general here it's not a defined crime because the supreme court has made clear that the heading of a statute is not a definitional term we don't have any anyplace that congress has said sexual exploitation well where were you under determine what the generic definition of sexual exploitation of children is we would apply where would you go the same principles this court used and sullivan and serious and say what is the common sense ordinary meaning of exploitation so you would look at all the twenty to fifty one i think it would be helpful but of course the whole chapter involves sexual exploitation and it is not limited to production and indeed twenty to fifty one itself is not limited to production twenty to fifty one d is an advertising offense so i think the argument that that it is just that sexual exploitation of children is limited to production offenses under the meaning of chapter one ten simply falls apart on its own weight because of twenty one d and the other provisions of chapter one ten i also think it is it is it doesn't make a lot of sense to think that congress would have you named a number of different federal offense hate to use that term but you know how do you know when something falls on one side and the other group stick rivals and the other side well i think there's so lease and sullivan and serious are an example of this court or examples of this court drawing that line it is a broad provision but it is not a vague one because it has to involve exploitative abusive or misuse of conduct and it has to be sexual so for example i think the lease deals with a situation in which the victim is seventeen it's consensual it's statutory rape and says that doesn't count as abuse so there it's definitely possible to draw lines using these ideas of misuse or exploitation and sexual and there's conduct that's on one side of it and conduct that isn't on the other and luly and and reinhart are an exception to the general rule we this court applies when it's when it's following the general categorical pro choice and has relating to language if the court has no further questions we specifically says that if you continue to use relating to the way it has been used it has a reach then i think it says it stops nowhere so reinhart follows  believe that this court should also follow milian not categorize either maloney or on her saying i wish it was able to go to a specific definitional section and twenty two fifty six right right yes and the sexual exploitation is not defined in twenty two fifty six not as such but i think that does not already respond to the government's argument that the chapter the entire chapter is defined is labeled sexual exploitation and other abuses of children i can only respond by saying that if you view it the way the government wants to view it you run a sin to a vagueness problem because it's difficult to distinguish their definition of sexual exploitation from sexual abuse or perhaps any other crimes and it just becomes vague and then we have that problem i think this just gets us into opening the door so w more distinctions between crimes i think it's important to acknowledge the real world fact that there is some tension between mouli sullivan sign nereus reinhart clarke this is not an easy road and i think what we're trying to navigate it