slavery the congressional findings that are cited in mr bell's brief i think may not may not constitute controlling authority on any of the issues that mr bell is raising but i think they do illustrate a very serious problem that that that  was passed to really address one thing that you don't find in the congressional findings accompanying the trafficking victims protection act is anything relating to a single parent traveling from hotel to hotel with three adult prostitutes and advertising themselves and back page dot com nevertheless john l bell is sitting in a federal prison serving a thirty year prison sentence because he happened to pass through a district in which that kind of activity was prosecuted as a sex trafficking council doesn't it the the rule grab them and here is whether or not there were threats or physical force that killed at least one or two of these ladies against their will to perform for the defendant yes your honor that's exactly right now when i get to the division five i think the congressional findings are appropriate for another reason i think because they do illustrate the the rows of well the length the length of the defendant sentences to growth to grossly disproportionate to the seriousness of the offense but with respect to the sufficiency issue despite the fact that we do mention the congressional findings in our brief we are looking at the face of eighteen u s c fifteen ninety one to determine whether all the elements of the offense are established and that's that's our argument under division one belief if the testimony of the victims who or were his associates if you want can use that term if they are to be believed or if their testimony is counted as credible which we are essentially required to do at this level wouldn't there be sufficient evidence in the  standard is very high for this court for us to challenge the sufficiency of the evidence that's true i think this the testimony of the of the of the victims the so called victims may establish part of that element but not the entirety of the element it's not enough that the government established that there were threats that there were threats of force that there was coercion force all those things it's not enough that the government established that the government must also establish that the commercial sex acts that these women engaged in with the products of the force threats of force coercion you know all of the fifty ninety one factors and it's not only that but not only must the government describe prove that the government must also prove that the defendant did short of proving that and that's really our argument and division one granted the government did put on evidence of the relationship between mr beilin these women the government did put on evidence showing that these women came from very tragic backgrounds at their compliance with his desire or they can call the question and resolving a sufficiency claim is whether or not any rational finder of fact could find beyond reasonable doubt we could in a reasonable jury conclude based on  him telling her to your family or her members of your family that that that's a sufficient basis for making a conclusion if you believe the witness that you complied with his demands because of concern for the safety of your family well it's our it's our position that looking at the entire record which the court doesn't resolve and sufficiency claims no reasonable jury could reach that conclusion we don't just look at the evidence supporting supporting conviction we look at the entire record to make that determination and that if the fact of the matter is we do resolve inferences in favor of the jury's verdict while you do it that's good that's correct your honor but in view of the fact that again the i think the most telling piece of evidence in this case is the fact that every single one of these women except possibly save or addison which is addressed in another division of my brief every single one of these women were free to leave when they wanted to leave they are free to come back when they wanted to come back they did leave when they wanted to leave they didn't come back when they wanted to come back there's no question about that when these women left him they would when they were with him they would engage in prostitution when they were with them without exception these women went out and either by themselves or with other parents would go out and gauge and prostitution and then if the ones that wanted to come back returned to him even after the holster the whole operation was over after june a eighteen each one of these women went out and gave to prostitution after that and one of them made efforts to contact him again to try to have yourself brought back into the fold under those circumstances it's our position and no rational finder of fact could find the entirety of that element that mr bell did what he did knowing or acting in reckless disregard for the fact that three or four threats afford courson or fraud resulted in their engaging in commercial sex acts that's a that's our position in division division  you want to switch to another division yes on the sentence you say you'll come back to the findings when you get to the center yeah and i see that the pre sentence report set forth your contention at length that in set in essence you're saying if there was length and he did very downward to some extent can you refresh my memory what he said about this argument i think judge christopher basically said were for close by eight circuit case law and that's basically all you had to say about the eighth circuit  amendment argument no i mean i gather you were also arguing though just that in his discretion under the statute he should impose a lesser sentence and that of course could avoid any constitutional problem so he must have concluded you're saying under each circuit precedent that there be no constitutional problem but what did he say as to why he exercised his discretion to impose three sixty you know i first here in the last i can't off the top of my head tell you the exact the exact reason there was a specific reason why he chose to very down from i think the guideline sentence in this case i believe was life in the judge very down to three hundred sixty months did not read or did not resolve amendment argument in our favor and just very quickly a very tersely basically stated the case law is against us and that was as much as he had to say about the eighth amendment issue and on appeal you that's implicit in the other arguments i'm making in this appeal but with respect to the eighth amendment argument it starts off with an assumption that under the under the elements of eighteen u s c fifteen ninety one assuming that all the elements then then the snow ever the less the sentence that was imposed in this particular case was constitutionally disproportionate because of the fact that if you look at the congressional findings you look at what congress intended to prohibit when they and fifteen ninety one as i said at the outset nothing in there about a single pimp with three adult prostitutes they talk about people that engage in massive international and domestic human slavery schemes of sex trafficking schemes many of them involving children and things like that nothing about this type of an offense what's your best case on this point from the supreme court would be harm line no i mean no harm and i know comes out against the defendant but it talks about motive analysis is there any better case there's nothing there's nothing better than that factually unfortunately now this is how would i go about saying what is the maximum allowed by the amendment if we adopted your approach because how do we know whether it would be three hundred to forty or what i'm looking at this particular case and in this particular case the the sentence of the best possible sentence permissible under the  my brief you know the sort of pandering pimping and everything he might be looking at a five year indeterminate prison sentence in the state of iowa for doing what he did in this case you think one hundred eighty months is the maximum  demand meant well it's the it's the maximum amount of a lot by the it's members because it's the minimum statutory sentence well it doesn't necessarily mean it's constitutional i thought you were giving us constitutional theory as it was trumped any statute as applied in this case and i would i guess if i'm making it as applied argument i have to look at the statutory meant statutory minimum while the statutory maximum is life right the statutory minimum is fifteen years the court could not go below fifteen years would be happy to see that kind of understand the rationale for my my rationale is looking at the congressional findings at a company that eighteen u s c fifteen ninety one it spoke to something much more serious than what the defendant did congress prescribe the sentencing range of fifteen years to life if we're going to punish what mr bell was doing under fifty ninety one this is got to fall at the very bottom of the continuum this is got to be at the very low range of sentencing for this slavery if ali's doing is traveling from state to state and with three women three adult women if they're going to punish him along that continuum the eighth amendment basically would scream that the very bottom of the statutory range is what should be opposed in this case is your nother federal statute that would apply here to the interstate activity while the other the other charge defenses yeah so you're saying you could have left off could have left off well i'm not saying and the other of course under the other statutes i guess he got a fifteen year sentence so if it's if it's excessive under the i got a thirty year sentence if it's excessive for the sex trafficking offens it's excessive for the interstate transportation can but did the judge give him thirty years can currently on the other yes because that would seem to be if you gave him thirty years even without regard to the international statute i can't tell you off the top of my head wh approach and that and then how doesn't that undercut your argument that this was all based on the statute that isn't really fitting the facts here well i'm not i'm not arguing that i'm not arguing that it would be i'm arguing that a thirty year sentence is excessive i'm not arguing that a fifteen under the under these circumstances i'm not arguing that a fifteen year sentence would necessarily be excessive because he didn't get a sentence by the way he got one hundred eighty months on counts two and three and two hundred forty months on counts four five six and seven sixty on county eight in one twenty on nine ten eleven and twelve all to be served currently yes so i at whatever statutory minimum is were involved in those cases and then at the under those circumstances we might be talking under those circumstances about what sentence might pass constitutional muster my my argument is basically you know i raise we could gresham ill findings that accompany fifteen ninety one my argument is really based on that you know it would be a different it would be a different argument if if he wasn't convicted under addison was nothing but really a name that was used in the discovery tiffany out and was not called by the government as a witness there is nothing in the discovery that indicated she had any information or anything that would be anything that would be helpful to either party including the defendant three months after trial we're given information that she exists that she has something to say we sent our investigator to talk to her i talked to her and and basically that's when we discover what she was would have testified to if she had been contacted starr position that no amount of philippians would have would have resulted in bringing her to testify at trial there is absolutely no reason based on the information and then provided to the by by the government or even the information that was available to the government at the time of trial that indicated reasonable any any level of diligence would have resulted in her being brought to testify at trial  testimony if she was allowed to testify would not be simply impeaching would not be simply cumulative i talked about the evidence rebut which she provided she would have indicated that saber addison knew prior to coming into this it could be the central issue of contested fact in this case if in fact a jury which it may very well may have done would have hung its hat on on the fact i'd say for addison's testimony fits a radisson was the only witness who testified this trial was involved the new york an ization who i did was not in the organization long enough for us to actually have information regarding her ability to walk away and return to the to the organization any time she wanted to because she was only there  free days the only evidence we have of that basically is the fact that the three of them were allowed to leave and go to the shopping mall the day they were actually arrested we don't have that kind of evidence if we would have had to from the tiffany addison's testimony at the time o trial we would have had it would have gone directly to really the what may have been the central contested issue of fact in this case which was saber absence of willingness or lack of willingness to be part of this organization was th the fact that she didn't have access to tiffany before trial or that she didn't know there was a tiffany we knew that we knew that of the chip and he hasn't existed that was it we didn't have access to or we had no way to contact or no reason to contact her because there's nothing in the discovery indicated she would have any relevant burns first i'll respond to some of the things brought up by mr burns and then there's a couple of points that i would like to make to the court if i may first of all the characterization trial by the defense has been that this is really not a big deal because this is just a pimp hauling three adult females as prostitutes across the country that's not accurate the record that was made in count one there is this hour the record that was presented was of there were five or coconspirators two of whom were immediately involved in the cell that were taken out in almost on a brassica and they were they were traveling from the east coast to the rocky mountains so this is a potentially much larger operation because this defendant sought them out grew them and create upon them he became intimately knowledgeable of each one of his victims and he used the vulnerabilities of those victims to cause them to commit sex acts that they might not otherwise have committed so what was the evidence that the threats  an individual that he knew was in the psychiatric hospital and he induced her to think with significant evidence at trial that she had a real hole in her life with regard to a male figure and love that he loved her that she would quote be his first in his last that they would have children together that all the money she would make him would ultimately be theirs to build their future all of those things being knowingly and peyton clee falls so did she say it and then he pointed that's why i then engaged in commercial sex acts several times your honor so it's in the record several times that that not only that she did that but that's a significant part of why she came back and that's borne out even more by the fact and this is actually evidence that was produced by the defense months after she was rescued in omaha nebraska she actually tried to have contact with the defendant still because she cared for him but what we know on the record is that from november of two thousand and ten to january of two thousand and eleven the defendant engaged in a rapid succession of claimed romantic relationships with jennifer eleven and courtney mayberry and then brittany lawson who he made his bottom bitch or the managing prostitute that is psychological a fact like you're describing within the meaning of coercion under the statute i think your honor it's both it's strictly within the meaning of coercion under the definition of serious harm in fifty ninety one efore it specifically says psychological and other it also specifically refers to the background of the victim that's a very broad concept that takes you back to what's the history of the victim so if it's yes yes and also if you look at the definition of force and the government has never claimed that anything is other than given an instruction number twenty but the definition of force which tracks much of the case law the term force means any any form of power violence or physical pressure directed against another person physical this person specifically limited to defining pressure and then that definition goes on to say as the jury was instructed power means dominance control or influence so the term force includes any form of dominance control or influence and by that a statutory definition no where is that  physical violence the the case indicates that almost from the beginning jennifer eleven neck was she was slapped harshly on the way from i believe it was maryland to south carolina on her unarguable trip after she'd been recruited by the defendant because she disrespected the defendant and shortly thereafter beginning in south carolina and then continuing in little rock arkansas she learned pim she was physically beaten when she refused in little rock to go out and work truck stops she was severely beaten and cho in incident in little rock when she discovered the defendant with court vary because again remember the defendant had led her to believe that this was forever love and the defendant found her i'm sorry miss olwen ex found the defendant with ms mayberry who had just been recruited by the defendant to be of him for him and the defendant severely beat her beater backwards into a bathtub and left her line there there was also a beating in augusta georgia when the defendant returned from fanning his pimp sat around a couple of state area and found her asleep when she was supposed to be making money for for him prostituting he be touring clued in kicking her and doing damage to her wrist he didn't have the victim's link there their physical chastisement and there was a significant issue about her being forced to engage in anal sex which she did not want to engage in because it really bothered her and she was again forced into that by the physical violence of the threats of physical violence that i think the record through player references to that and also i think under the general heading if you look at saber addison she is somewhat different from jennifer eleven o'clock courtney based upon a physical act against her in fact when she was found in omaha nebraska the uncontested record is she was served of serve to be any fetal position crying violently she was clearly extremely traumatized by by the fear of the defendant in fact mentioning that the government would indicate as part of its response with regard to sentencing that the defense has conveniently chosen the wrong statues for comparative purposes number one that's even if you reach comparative purposes because the government argues that under the state of the law the statute it's very clear as to its coverage and what penalties apply within the statu and therefore there is no need to do in fact that you should not do a comparative analysis what you mean by comparative in now there is did statutes the state statutes or other federal statute your honor under state statutes t comparable statutes would be kidnapping or sexual abuse treason resulting in serious physical injury which carry penalties up to life with regard to federal statutes again i would argue that a fair examination of the record with regard to save or a is comparable to kidnapping which could carry penalties in these circumstances of the life imprisonment the defendant knew though with regard to prick particularly vary the vulnerabilities of these people because he again became very intimate with him with them in this rapid succession from november of two thousand and ten to january of two thousand and eleven and that the record is clear at this same time that he was engaging in dalliances for the purposes of having them be prostitutes for him with jenner for eleven neck and then rapidly courtney may vary and then rapidly britney lawson the defendant also had a wife and a child in another location that he wanted to go home to so the government would argue that clearly this was a situation of of fraud intentional to see which prostitution case no absolutely not you're not a limiting principle because i assume all ins agents some sort of psychological interaction with women actually in in this in this case there was limited testimony that there may be such a thing and this is my term and it is not a good term as a benevolent pym as opposed to a malevolent pym which the government argues this defendant is  someone who does not necessarily use the psychological pressure someone who does not necessarily use the physical coercion is still there may be a distinguishing factor if there are no pimps out there that do not engage in these activities then all pimps are covered by this statute and the reason is is because it's slavery and what happens is that the law in two thousand in the t v p a is the government argues in its brief in reaction to a united states supreme court case where the united states supreme court actually encouraged congress to act said that that is where we are at in our society we have to advance the conditions of slavery beyond physical slavery or an abuse of law we have to advance it to cover non physical types of activities so bill was very clear there do not have to be change there do not have to be cages other things cause people to lose their will to be subjugated and in this case the defendant intentionally and knowingly took advantage of the vulnerability of two of the victims jennifer eleven next who had a psychiatric history of substance abuse history definitely was looking for a male figure for love in her life various factors in the government sets forth but the fact is not only did she have objective plea these vulnerabilities but the defendant got close to her learned her vulnerabilities and took advantage of them courtney may vary and britney lawson described jennifer eleven neck separately as having the mind of a child that was accurate and the defendant took advantage of that in that sense there's no difference in terms of the subjugation of the will of the victim to taking minors across state  engage in prostitution a woman with serious mental health problems with the mind of a child with regard to courtney mayberry there was a terrible history and she was only barely eighteen at the time of this encounter with the defendant within the last four years of her life she had been supporting herself by prostitution for a variety of reasons that were set forth briefly in the record she engaged the defendant because she wanted to have a pimp for purposes of security and stability that was made extremely clear by her the defendant got very close to her as he did to jennifer eleven and he even went so far with her as to write poetry to her again making the same promises that he made to general for eleven it just months before and so he got her to engage in commercial sex acts for him by the use of those false promises and again this is detailed in the government's brief and there's a significant record although it's short record with regard to those issues to show her background as as the stature clearly sets forth as appropriate to look at these things and then finally saber addison it's not an issue so much although there is clearly non physical coercion there were clearly i think as one of the judges noted earlier with regard to both jennifer levin nick and save radisson there were threats not only against those individuals themselves but against their families and specifically in each case against a young minor child that each of those women  had also there was a threat and this ties back to the idea also that this is just one pimp dragging three adult prostitutes across state lines there were specific threats that if anything happened to the defendant he had other people on the outside who could take care of the victims their families of the minor children so even the defendant himself and gauged in the broader concept of the conspiracy as part of the aspect of threat and control s on the sentence do you recall what we've anything the judge said about why the three hundred sixty months was warranted i do you're on he knew he in russia my memory he indicated that the government argued for two level enhanced meant for vulnerable victim under the guidelines which took the guideline application to life imprisonment judge found that in fact the conditions of oral victim were met including specifically that the defendant had to know of the vulnerabilities but the judge felt that because the concept of vulnerable victim victim was tied up quite a bit in element three of sex trafficking that guideline i understand that but i mean you know mr burns argued at some length in the pre sentence report or in the sentencing brief and i think the pre sentence rader indicated a little sympathy as well that what's described in the congressional findings may be more elaborate than the evidence here did the judge have any response to that no your honor but the government also counterbalance agree with that are you really just didn't really come in i don't think the judge had a lot of comment on that specific and again the government would argue we don't reach that analysis and part of that is the junkers are youngers case that the government cited in its twenty eight jailer which is a sex trafficking case out of south dakota  where the court has determined that in fact johns or consumers of sex trafficking are subject to the sex trafficking statute and can be convicted just as the sellers there's no limitation in any sense in the statute in that case turn specifically upon an analysis of the plain language of the statute so in terms of a statutory argument the government would argue that the plain language of the statute does not limit the penalties  internationalize sex trafficking it wouldn't make sense why should congress any more protect a person who is kidnapped in venezuela as is the defense example and brought into this country first for sex slavery then an american citizen who is kidnapped in this country and taken into sex slavery why should we protect anymore and we should protect those international people but why should we protect any more  those people than we would people that are co opted out of mental health institutes are very susceptible to the fraudulent representation of many pimps and because of that subjugated into the slavery of sex trafficking which is one of the most intimate forms of abuse of a human being that can occur is the sexual aspect of the human being it just it takes away not only the body and the mind but spirit so why should would that that's really the gravel min of this offense that's why it's so serious so again in terms of constitutional proportionality i'd suggest that that's not an appropriate analysis of the defenses given that on the plain language of the statute this is a broad statute and it recent reaches the very essence of what it means to be a human bein that's what's being protected here the closest analogy would be serious sexual abuse resulting in physical injury in a state case or kidnapping federal briefly to comment on tiffany addison the government totally argues that the that the defendant did not know about tiffany addison other than from the discovery file tiffany addison was in louisiana texarkana and the defendant drove her home in june of two thousand and eleven just weeks before they were arrested in omaha the the defendant had intimate knowledge of tiffany addison and her her relationship to this case long before the government's discovery file what went on here was not kidnapping the kidnapping cases the kidnapper does not allow as victims to leave and come back whenever they want to and kidnapping cases individuals don't come back and join the fold after they've been gone for three months or two weeks or whatever this isn't this isn't slavery i know it's in the government's brief they do they cited a number of cases where they talked about the experience of the priest of a war slaves who would be allowed to go into town to do shopping and go back to their owners it's a whole different set of circumstances today in those days had an individual gone into town in took off and not come back the government would have brought them back in this case these women who were allowed to leave and come back whenever they wanted to and had they gone to law enforcement had they not wanted to come back the government would not have returned them to mr bell the government would have prosecuted mr bell for whatever crimes he supposedly committed judge call and hit this really on the head hit the nail on the head when the ellen judge evel malevolent temps there is evidence in the record actually from britney lawson who talked about finally going back to mr bell after trying out two other pims because mr bell is basically the best of all the pimps if there is such a thing as a benevolent pimp under the facts of this case mr bell is essentially the benevolent pimp but the fact of the matter is that the controlling nature of the relationship the aberrational violence things like that are all inherent in prostitution cases and if you want to characterize every prostitution case involving a single parent and three adult prostitutes a sex trafficking we're going to be charging people who were looking at a ticket before with offenses that are going to carry prison sentences of thirty years