asserting your there's and i want to dress that for for be evidence first and then the construct and second because i think the four four b evidence was was pretty important in this particular case given the scenario that was presented in the trial you know we have this is essentially a pending case and not like the old pending cases we used to have ten fifteen years ago it's there it's a new use of it that there's a new way this is done through the internet there's no you know walking the streets and that's how prostituting for mr mickey she was a prostitute herself in fact mr making about her as a prostitute she had her own business going she had her own websites going she had her own postings going and this committee developed a relationship with her that problem an altercation that they had with their relationship or in their relationship versus painting or anything related to prostitution and the government through pictures of lying on the ground  had ample opportunity to argue against that and the judge was just deciding to admit or deny it so to the jury and you as counsel to construe the evidence so you have plenty of opportunity to say oh this is just a domestic does nothing to do with the underlying crime it was just a would look at him and his relationship with women who are known prostitutes and you know they'll just throwing any type of evidence that they have against them to make him say well yeah that's exactly what he was going to that's one of those more before or two for three or you meant that for a for this is the kind it's like it's indicative of the kind of force he uses and the type of coersion he uses on prostitutes so why wouldn't that be considered judgment because there was no relation to prostitution itself there's nothing presented we darting that particular incident that was related to prosecution and the fact that they were that they had a relationship and she was afraid she was a prostitute and they continued this relationship so i mean you're suggesting that somehow to be admissible the evidence would have to be tied to a specific act of prostitution or at least that the the method or at least the idea what the government was trying to present as to why it should be admitted as so this  is his common plan risky more as his method of what he does with prostitutes so they should in some type of evidence which related to prostitution sure if he was driving her to a location to answer an ad or to see a john and something happened where he beat her if she said look i motive which is prostitution i guess is a business relationship but there is i mean that's that's essentially if anybody's involved in a personal relationship in a business relationship that means anything that they do in a personal relationship is relevant to the business that  that's why i at the beginning was was proposed that the method of prostitution is changed you know we don't have women walking the streets anymore it's very rare and so this is mostly done through the internet and so there's anything i hate to say this you're honest but that doesn't mean a lot during a jury trial and jury is going to do what they're going to do they look at the evidence and look at this whole thing and even though they said you can only use it for this they're going to pound it on him and what they had in this case was you know a picture of a woman lying in the street she's was very very confused as to how to proceed the court instructed them that they should find each independent means fear of duress force beyond a reasonable doubt and then they  they have to deliberate they have to find beyond a reasonable doubt these particular factors in order to continue the prosecution so to tell the jury what we know from the jury's know that they were basically nonu down a mess as to any particular form i believe so because then the combination of factors that it basically allows a jury just to say you can have twelve people in a room two people believe one thing ten people believe these two people have no idea what they're think talking about right now is not an major and i thought the supreme court already passed that and i miss robinson and she had so what how would we distinguish this situation from and and richardson case i think we need to look at in this be relatively you know i thought of that if that and so he's in trial and the the court instructs a jury as to how they should approach of a certain thing and then cuts the entire way that this jury is is doing the deliberation  says you know you go find any way you want and i think that that was painfully unfair and i and i understand i understand that the cases that the government sides but unfortunately the circumstances were an injury trial one individual charged with crimes which would send him to prison for a long time i mean the situation he's in by not being prosecuted for example in the state court but my question more precisely is is there some other case we should look to other than the supreme court cases just the cases that i've been presenting are all right thank you  forty in this case a new judge would lie believe somebody asked you know what's the connection of prostitution the government had an expert witness in oceanside police detective named jack reed he testified at page seven forty one of the supplemental excerpts of record that prostitution has certain rules and one of those rules is that quote the girl working as a prostitute is supposed to stay with her pimp end quote here from the testimony of the defendant's ex wife there was testimony or evidence in the record that the argument was about her wanting to leave so we would submit that under the four four b standards there was probative value in this this evidence and not only that i think as i explained in my brief this was somewhat of an unusual situation this was an unwilling victim this victim tell you i see actually testified for the defense even by the time of trial i believe still by the time of the pre sentence report represented that she was in love with this defendant she minimized in denied her status as a victim in fact when she was asked about this incident at trial she still said oh i threw a rock up in the air it was very muddled testimony in those unique situation those unique circumstances the government would submit this evidence this for sure be evidence was independent objective proof of her being a victim the only evidence  violence by the defendant in this case was a deuced both from his ex wife and from other prostitutes and as we tried to explain in the brief we believe in these witnesses otherwise we wouldn't put them forward but there's always a concern that the jury may not there for at least in the unique facts of this case the probative value we believe was particularly heightened by the fact that this was independent evidence this was the defendant's guilty plea and it was valentine's day tw that is an abuse of discretion standard so we believe on this record abuse of discretion is obviously very differential the district court did not abuse that discretion mr carlos a very good attorney when i read the closing argument he spared no argument to it by the time it came the critical time for the jury to say look ladies and gentlemen the government's going to portray this prior conviction in the worst possible light that they were in a relationship it's unconventional we can't judge that you have to you know look at this fairly so he put the right argument forward and we would submit that you know even if this court sees this is for for be evidence of course our first argument is that this was a named victim we would say it's inextricably intertwined this court in two thousand and ten in the united states versus todd case define the mens rea a four fifteen ninety one in a very unique way basically saying you have to have evidence of a pattern of  statute you or i i asked one of the trial attorneys there honestly don't know the best answer i got in this is just one of the unfortunate things in the modern era i think the template that they use for that indictment had come from a previous to the ninety one case that had not only adultery comes but also juveniles or minors and in that case there are going to a lot of on i mean i really don't have a good explanation but our argument would be that it was a technical deficiency when this court looks when i look to the construct of amendment cases of this circuit there is a phrase that continually comes up that it that the instruction is substantially amended or substantially altered to calling for instance in davis which i know my opponent puts heavy reliance on i mean of course that was not a plain error case as this is but more importantly in that case the language that was left out changed that the crime that was the sex trafficking of a minor from one tha involved mens rea a to one that did not in that situation i think the prejudice was manifest that's an entirely different defense here we would submit when there are four and the seed of meanness in a statu and if the jury finds that four four options exist a grand jury's finding that each is individually present we would argue necessarily implies a finding that the combination of any two or more is present and another thing i believe  not to point it out and we would like to emphasize this point a lot of the constructive amendment cases i guess you could say the judge is pulling from left field or it entirely arguably a theory that's not present in the statute this is not such a case and we would also cited a case there was a prosecution it was entirely different victim that was then evidence was introduced at trial that was not the case here and we would submit if this defendant he knew from the indictment of the grand jury found to force threats of force fraud coerce and he therefore was on notice that he had to defend against all four of those grounds in his defense didn't compass that he said you know what these women i'm a pimp they're prostitutes but i'm pretty much just their broker i didn't force anybody to do anything and i mean maybe mr carlson reply can articulate a little more we never saw any evidence below or at least any argument as how the defense would have been any different i mean the fundamental notice concerns that underlies  requires and i think sometimes there is concern you know this statute it is it's only been around since two thousand and legal terms that's not that long there's not a lot of case law out there i think sometimes the trial prosecutors in fact to use the phrase we don't want to get in trouble with the ninth circuit if something changes about the way certain evidence of coersion let's say or what is sufficient to be fraud changes if we have that special verdict we will have clarity and you see a lot of the juvenile cases to where you know  charged with both force and trafficking a minor but it's something that i believe that we again we basically sakho ourselves but just because the government chooses to do that we would say that doesn't now make it a constitutional right richardson that's what he's saying and however it shut down and was shaking the jury could have been confused here they could have been you know they asked the question i would submit this there are deferred there were two instruction they said that just goes to the legal standard and it requires an easy answer and here i would submit the judge moskowitz gave that easy answer yes you see a charge in the conjunctive but you can find it in the disjunctive but i would also point out that when the judge entered or read the supplemental instructions and this is an excerpt of record page eleven he invited the jury to read along and then an excerpt of record page twelve he says did anybody not get that i don't see any hands so we would submit that sure they had the one question they were a conscientious jury but the court took the means to redress any possible confusion and the record has evidence that there was no lingering confusion in the last thing i guess i would say is we there never was a note from the jury that they were hopelessly deadlocked there never was an allen charge so to to assume that we don't know that they were not on the on of us when they asked this question i think it's better explained by the same issue that happened in  added to the to the instruction was very difficult because we didn't get it although we talked a little bit about it in closing arguments it wasn't the same type of theory of prosecution so i didn't have an opportunity to really discuss and to pose and to tell a jury that look you just can't fall back on that you can't fall back on that is some type of catch all you know you need really need to find these things you think about what you want what you solve the evidence was unproven so the bottom line is i didn't get a chance to to to make that argument to the jury and when that judge gave that instruction that jury came back after deliberating for quite some time the jury came back like within and i think for thirty minutes so i mean it was it was a devastating instruction thank you thank you thank you both for the excellent arguments united states versus mickey