good morning my name is their exact i represent the appellant leon roberts in this matter may please the court judge or judges the fifth amendment meant mandates that no person shall answer to a crime unless indicted by a grand jury or the sixth amendment requires that a defendant be informed of the nature and cause of an accusation both were violated in this case judge the government agrees the government agrees that both mr roberts fifth and sixth amendment rights were violated when the court constructively amended the indictment by including an additional means of can of convicting mr roberts of the crime of sex trafficking by government argues that the relief granted should be a reversal of the conviction and a retrial i make the additional argument of the rule twenty nine i dunno review judge and we argue under rule twenty rendered rather than a verdict on the original charges and if it does there's no double jeopardy and we get it retried wash why should we depart from what you know they're circuits judge you're referring to the far opinion of the tenth circuit and the macdill opinion of the a circuit i believe judge the and those cases they do stand for that proposition i don't disagree of what those cases stand for however i submit to the court that we shouldn't follow those or this court shouldn't follow those those opinions which are persuasive on this court because the indictment should control the record in review in other words the offenses that are alleged in the indictment should control what but this is just an element not a different offense correct that's correct and so what you're essentially saying is if they had just so i understand if they had sufficient evidence to convict under the indictment as charged then it can be reversed and remanded i think the last clear on that yes and if we view the evidence and even it under your theory if we view the evidence in the light most favorable to the government wasn't there at least circumstantial evidence including him saying he knew she was fourteen for to convict under the evidence as charged there's circumstantial evidence yes your honor i'm not going to disagree with  record on that point however the what i pointed out in my reply brief is the fact that that admission which is probably the the government's strongest argument of knowledge or perhaps reckless disregard is that that admission was done at the time of arrest it wasn't it doesn't it wasn't dated to the time the offense was committed so basically it's an admission that when he did you agree it's still circumstantial evidence and when you combine that with the fact that he knew her exact perth date that he threatened to turn her over to child nat and that anderson told roberts she was under age i mean you can all that evidence at the time of iraq surely the jury can use and so even under your theory isn't it hard to throw it out well judge absolutely if this court rules with this regard what the government argues which is judge the ask this court to look at reasonable opportunity if you just if you're if you just look at reckless disregard which is one means of proving mens rea or actual knowledge which is the other means of which is what was charged in the indictment yes judge i'm not going to argue that the this that that a jury couldn't take away and conclude that that is sufficient evidence to convict i simply argue that that under rule twenty nine and on the looking at the record that it no reasonable jury could find for reckless disregard or actual knowledge however judge i submit to you that that's on the record the only distinction i put in the reply is that those that mission was made at the time he was being detained and essentially arrested and i also want to point out something else in the record because the government does make argument that hey you know that that is sufficient evidence is he is the one that actually called the police and called law enforcement to report her as being an underage person prostituting herself i argue that in the reply that that it's not necessarily unreasonable to conclude that he didn't learn her age at that at the at the moment he was arrested as opposed to earlier that's a good argument and a jury could weigh all the evidence the problem is right is the standard even under your theory the standard is the problem which we view all the evidence in the light most favorable to the government sure now i understand the judge and it's hard for me to argue otherwise what how do you deal with judge wilson's point which is that for these other cases like how are they wrong what how do we adopt a different standard what gives us the authority to do so well the judge number one there persuasive so this court is inclined to can do what what and rule in the in the manner it so chooses and choose to disagree with the tenth and just think that when i would court is reviewing a record under rule twenty nine an appellate court it should stick to what charging the indictment to see if the government proved what  it shouldn't go beyond the four corners of the indictment and look at other possible ways other possible lawful ways of proving the crime in looking to sustain or in this case reverse  she's mean for a firm a conviction it should stick to the four corners of the indictment judge and not say and not look at the case and say what could have the government proved to determine whether the rule twenty nine should be denied didn't the supreme court do that in need or over justice scalia's dissent in meters of the tax case where they missed an element all together in the supreme court said it harmless error because the evidence proved it well judge i don't believe nader was i'm not familiar terribly familiar with that opinion i didn't i didn't see it in our i don't think it was brief but no it wasn't yeah so i'm sorry to spring it on you it's ok judges ok i'll do the best i can when in this moment so i 'm unfamiliar with that but that opinion neither side cited that case however a judge to the best case that i had in my favor was the gryphon opinion and i look it's not directly on all four points but i think that the clearly judge i don't disagree with the fact that they they look at that opinion but they don't look at it in terms of the way the defense looks at it they look at it from the government's perspective and it doesn't dissuade them from determining that even though a particular means of violating the statute wasn't a legend in the indictment they still could look at the record itself see if there was sufficient evidence of that unindicted means and deny the rule twenty nine so i agree with the government on that point in terms of the findings and conclusions of those two cases judge that completes my presentation at this point i'll let any of the for the questions i'll sit thank you good morning your honors may please the court jason wu in behalf of the united states with me at counsel table is kathy koons who tried the case the only remaining disputed issue here is the sufficiency of the evidence and there was sufficient evidence more than on all three of the alternative mens r elements and eighteen u s c fifteen ninety one those being that one roberts knew that his victim was a minor two that he recklessly disregarded that fact or three he had a reasonable opportunity to observe the victim but i'll begin with the first because i think the important thing to recognize is this court does not actually have to reach and decide that unresolved what we might call the far make a deal issue about how to deal with sufficiency of the evidence in a constructive amendment because this court can affirm soley on the basis that there was sufficient evidence of either actual knowledge or reckless disregard which i believe is the point that judge the bar the bar was making why can we do that if it wasn't presented to the so judge the part all three theories were presented to the jury the  judge's instructions instructed on all three mens rea in other words i judge i'm sorry to interrupt you but i thought the government argued tell me if i'm wrong below that to the jury did the reasonable opportunity to observe the government focused some of its presentation on that theory and probably relied on it the most but of course in reciting the jury instructions and explaining them to the jury believe the presentation was essentially something i'm paraphrasing but it was you can find knowledge you can find reckless disregard but please look at this instruction that also says you can rely only on results or toonie so i think the government made clear to the jury this is sort of a you can pick and choose option all three of those mens rea possibilities are on the table and certainly the court instructed the jury that way so that was an available option for them turning to those to judge the bar you already pointed to the strongest evidence of knowledge in the record which is that when roberts was interviewed by the f b i he accurately identified the minor he called her a fourteen year old girl who was living with him in that one hotel room and moreover he accurately identified her birth month and date i think that's actually more than circumstantial evidence that seems pretty direct to me but in any event it's certainly circumstantial evidence that he knew throughout the course of the offense and i'll stress on this regard i have a disagreement with my friend here gets tried twice for the same offense correct correct and just as in any case where we clear i haven't reached that issue yet because as i said i think if you conclude there's sufficient evidence of either knowledge or reckless disregard this case to go back for a retrial but let's say we look at the eighth and the tenth circuits decision and we decide that we're going to follow their decision there's not a whole lot of analysis in those decisions or what's the basis for what's the analysis was the reasoning that we should or should we follow what's the reasoning in those  what he called the facts in the trial process on the one hand and insufficiency of evidence on the other so almost every defect in the trial process even one that is per se reversible results in a retrial and you know as you mentioned a in far there are cases such as burke's in the supreme court holding to that effect and including judge the bar mention nater i believe it also supports that to some extent for instance in that case there is a defect in the jury instructions and so the essential divide here and i think the analysis is that when you have a defect in the jury in the trial process you get a retrial that's the appropriate remedy because a judge then judge gorsuch that in far the the remedy of retrial actually honors the defendant's right to be tried and adjudicated in a fair process if i could give an example i think this might be eliminating because what we have here is really a notice issue the fact that the indictment did not include an element means that arguably the defendant was not on notice of this theory this is no different than a case where for instance the government relies on expert evidence or for for be evidence at trial but fails to give adequate notice of it before trial if this court concluded that such an error was prejudicial it would reverse the remand for a retrial but then when it turns  sufficiency of the evidence it certainly would not act or pretend as if that expert had never testified or that the four for b did not exist would evaluate the sufficiency including that evidence even though it was inadequately noticed and that's analogous to what we have here we have an indictment third element or act third knowledgeable corrects that is correct so the only reason you can is he was found guilty and that's why the double jeopardy clause does correct yes yes your honor and another way you can think about it is sufficiency evidence is somewhat unique in the sense that the party at fault and sufficiency arguably is the jury that's sort of the only claim that a defendant can make where he's essentially saying the jury made a mistake right the jury convicted me but in fact the only reasonable thing the jury could have done was acquit and i think that's why it's a unique circumstance where the remedy is an acquittal by the court and a bar on retrial due to the double jeopardy clause virtually every other type of error or defect in the trial process is made by potentially the court potentially the government or the other parties and therefore the appropriate remedy is a retrial so that you can have a fair  was under age so that case suggest to me section fifty nine one see requires both proof that the defendant had a reasonable opportunity and also a reckless disregard is that correct that's correct your honor however all know concern the pre twenty fifteen version of the statute and the language had quite a significant difference so in the preach thousand and fifteen version the statute that subsection c said the government in cases where the government proves reasonable opportunity to observe then it need not prove actual knowledge and so that led to some interpretive difficulty there was a circuit split on the issue and this court came down on the side that said essentially reasonable opportunity to observe looks to us like an evidentiary substitute or form of proving reckless disregard however in two thousand and fifteen congress amended the statute the version that was operative in this case the subsection c said when the government proves reasonable opportunity to observe it need neither prove actual knowledge nor reasonable disregard therefore it seems clear now that mozi is abrogated going forward in other words it applies to cases under the pre teen and fifteen statute but not go on for now from here on out i'll briefly mention i think if this court considers if this court of dost eight in ten circuit standards and considers the sufficiency evidence on the resolver to the theory the evidence there is even clearer and more powerful as argued by the government the defendant here lived with the minor victim in a single room for more than a month while he was prostituting her and that's more than adequate to show a reasonable opportunity to observe under this court's prior cases including the blake case i cited were just five or six opportunities direct contact with a minor suffice to constitute a reasonable opportunity if there are no judge wilson you asked the question to the government whether why should this court consider and follow the eighth and tenth circuits and something to consider here we don't know what was going on through the jury's mind however what we do know is that the jury was instructed as the law of the case that they could find the defendant guilty of you had a reasonable opportunity to observe the defendant they could have concluded that he had no actual knowledge of her minor status they could have concluded that he had no reckless disregard of her minor status but he certainly had a reasonable opportunity to observe or they could have made that conclusion and if this court follows the eighth and the tenth essentially what will happen is a second bite at the apple from the government's perspective because he's already been for all we know he's already been adjudicated and acquitted on those two theories and yet he's going to be put in jeopardy all the time right when we were first for trial or like every time we reverse for trial is that we don't know what the jury did for example in instruction air where they instruct improperly and then they get a bite at the apple and the double jeopardy clause doesn't protect from that so what what i'm struggling with is the reason i think the ape intenser going to right just to be candid with you is i don't know where you can we can hang our hat on last we say  there's this is some kind of due process violation and maybe you can educate me on that like what would we do under what would we use what constitutional right would we used to say the government doesn't get to retry when this is the error versus every other error that's made judge that the best response i can i can have is that it goes back to the fifth amendment it goes back to the indictment you know the government controls what the indictment says right date they're the ones who present the charges to the grand jury they dictate what the defendant will stand accused of so they have control of that language they need to stick to that language and any review yes i mean i may agree with you from a fundamental fairness perspective that the government has control and they should get it right but where and like what in the constitution gives us the authority to say he doesn't get to be tried again and the only thing i can point to is the double jeopardy clause but that doesn't apply in the circumstance under the theory i just gave you you don't have to accept that obviously isn't and the two of them could but you're opinion carries a lot of weight all now it's only one but i'm just curious like you're saying the fifth amendment but what want in the fifth amendment judge all i can point to is that the fact that you know the possible and again it's possibility we don't know what the jury was thinking but the idea that the de take place before the trial even began when the indictment was returned well judge that's a that's a hard question from my perspective to answer it seems to me that the government before they present the indictment they know their case they know what their evidence is they know what the present to the grand jury so i could argue that the error started from them from the government's perspective by not including the reasonable opportunity language in the indictment because the reason i asked the question is because i guess you could make the argument that it's not a trial here or the or takes place before the trial it's the government's mistake and the i think that's a fair way of putting it judge because again they control the indictment they know their case they dictate it and then they follow through with the trial and then advocate for that very instruction that they're not entitled to have on the indictment that they brought that they drafted and i just think from a fundamental point of view judge