anyway the issues that i have raised have tried to raise them as best they could with the most important of the least important and i want to start with the biggest one i thought of this case which was the jury instruction on the  offense of sex trafficking and i realise we do not yet have a case right on point on the sea interstate commerce clause as to whether or not that should be considered an element of the offense where the defendant must have the that interrupt you mean in this circuit right yes where the other circuits i believe there was two circuits of by recall that have said that the interstate commerce causes the matter of procedure so therefore the defendant in the does not need the mens rea however as i've tried to point out in my brief and i still believe that the u s supreme court case gov on this issue specifically talks about talks about the interstate commerce clause the traveling interstate commerce not applying to the mens rea a but as i've tried to point out to my this court even pointed out that the elements of the offense did not take place after the mens rea hour which is i think the big distinction here this particular statute has the word knowingly right at the beginning or do you know i do not know i will look at it but but it just seems that this statute fall squarely within the most recent us supreme court case law which says that's how we should inter but the statu e i also point out this statute requires language that was not used in the jury instruction given that the jury which which was to mr collyer would which i believe was a huge difference in the way the statute says that the jury instruction should have been and i do believe that to be a constructive amendment of the statute and this court said that that's per se reversible you do have one case i did point out that there was this court said we're not sure if it should be per se reversed or not but you do have at least one or two cases saying it is per se reversible so i guess i would argue that it should be per se were st of all and i do believe it's enough of a distinction in the statute versus the jury instructions submitted to the jury that it could make a difference in what even stronger than the claim there that it's automatically reversible now perhaps i'm wrong on that but but i just thought it was automatically reversible if it's reversible per se on but in any event i think the statute is clearly different from the jury instruction given to the jury and i tried to make sort of an example that i could think of and that is you know we know that a gun would someone to die but we don't know whether a gun would to someone to die and it whether it be a homicide or a suicide and there is a distinct difference between that on so the the rd issue that i wanted this court to talk about is willful blindness instruction now with the willful blindness instruction this court seems to say in case after case that if the facts are so clear that either the defendant knew that it happened or the defendant didn't know that it happened then we don't need willful blindness and that the willful blindness instruction this for those situations where it looks like the defendant deliberately ignored what happening and it seems to me in this case that the facts as presented to dave in the government and they're happily brief say it's so clear the defendant knew what was happening and i ask myself then why are we having a willful blindness instruction if it is so entirely clear enough the facts are so clear that the defendant knew that sex trafficking was taking place then why in the world are we having this will blindness instruction because this court seems to say in case after case that if it's blacker way it and there's no gray we don't need the instruction so counsel isn't it because he wasn't necessarily in the room at the time but there was video evidence it all down even with seen him go in and out in the condoms and everything else it just seems that either the government's point that he knew is the case or if you go with mr color ears struggled presentation of what he wanted to do and what he wanted to try to present to the jury was that these women saying contracts and they weren't supposed to have sexual activity and that was sort of his theme when it didn't happen in say you know th deceased didn't seem like there was any gray but but that was sort of the issue there if i want to move on to my issue number four the cross examination testimony that they're talking to other witnesses versus when a witness is not in the middle of her testimony and i think maybe that's the distinction here is we had a break where the witness then left and we know from the record the witness did meet with government officials and then the witness got back on the stand now i understand the seaquest aeration rule has been expanded by court cases to what it means and i almost read a due process argument sort of combine within that as well because i know even the courts when they talk about the sequester ration rule they talk about the history i think prior to the establishment of the actual rule itself in the rules of evidence so it just seems to me that this was very troubling that this occurred and i you know i think it's nearly impossible to ever get a witness to say that they were coerced out in the hall in the lobby i don't you never get that to actually happen but i think what was a stablished in this case is it was conceded that she met with these agents and clearly just looking at her testimony there was much more testimony about the things that she was alleging mr collyer was doing to her reverses what she testified prior before the break so all that's my point on that i know that only affects one of the convictions but i thought it was an important point to make i thought the computer point was a very important point you had fifty six thousand documents on the computer and as you know originally he was represented by counsel then he wasn't represented by counsel and then he was representing during this trial very difficult trial transcript to read i'm sure even for the court but what i think we can see is that his attorney had fifty six thousand documents on his computer the mr color was very in tune with this case and also you know participating in the case extensively and he was bringing in his own computer as well and when the judge took away the computer and said that he can only view the computer with u s marshals i think that that really hindered his ability to properly cross examine properly or preparing we know that he was not allowed to prepare at night we know that he was probably any like the record is the record but it just i think it seems very clear that he was not allowed much beyond that but it just seems like he was denied a great rate in the right i mean the government says he doesn't have a right to computer but he does have a right to his discovery and the as a right to have his and they gave him a disk right with this with this with the stuff on there oh yes they did and i think his attorney had it i think then the judge said that mr caller could have a but again not having access to it as your as you having witnesses on the stand as you're going home in the evening preparing for your defense and next day i thought it was a huge problem so i thought that there was was wrong not to allow him to have his discovery present as he was cross examining witnesses and as he was going home in the evening preparing for court so i don't know how you would establish prejudice otherwise i just i don't know how i could make more of a record than the record i have on that issue the counsel issue again the government says that that i didn't present all the whole statement of what was said when that when his attorney told the judge that he wasn't feeling you know fit for the for the case but i mean if you do read even what the government's the whole entire i guess wouldn't be testimony but the transcript of what was said by his attorney it seems pretty clear he he said to the court i don't feel effective are these long trials mr collyer hearing that really a better term freaked out and wanted a different a turning judge erickson did not want to give me an attorney at that point because they were just beginning trial and he didn't want to do that but  it does present a problem where mr collyer has heard this information he would like a different attorney and nothing's done about it other than to discuss continue on with his current attorney no continuance is granted and i know that's a tough call when you're in trial like that especially with very complex cases like this but it did seem to be a very disturbing moment where perhaps something in more should taken place under the circumstances and frankly this reading that transcript i wish you would have gotten another attorney because the transcript of this is crazy as he's annele in this case pro se after getting rid of his attorney after in that commentary and i think it made a very difficult trial for everyone at that point so i'm not sure proceeding to trial versus continuing the trial would mattered the next issue i believe i brought up was the prior background of the witness it was testifying and in that particular issue i do think  it just seems to me that if i can get around the roy case which i apologize i know it's ok personally but but if if the if we know the witness has this prior sexual activity where she is on her own you have to politics too much it's in your brief ok ok thank you that's all complexes cases but but anyway if she's if we know that she's got this predisposition the disini to me that that should have been allowed to be presented to the jury because that would have helped them decide whether or not she was predisposed and might have done it without any fraud force or coercion from mr hall or which is what the jury this court maybe you will be the inevitable discovery and i to me my only thoughts on that are i know that there are some case law that says that you know if you haven't been able to get a search warrant and the only reason you got a search warrant for the phone is because of something you knew it just seems to me that the information to get a search warrant for the phone would have never been known maybe they would have got a search warrant for other things but i don't think it's entirely clear that they would have got a search warrant specifically for the cell phone and i think that's where i might disagree with the inevitable discovery issue on their what impact is the fact that color was unsupervised release at the time have  color wasn't necessarily put on notice he was on the very intense of probation but i if you look at his search closet didn't mention anything particularly about a phone i know judge  a phone could be read into that search clause but i don't see the reading of a cell phone within the in this lastly all this quickly the you know the issue eight is whether or not there's another evidence for the verdicts i mean what the court decided that an issue and i and i mean i think the probably or government and i are at it as a disagreement as he briefly had an attorney he filed what i would call the aff supposedly if you read the statute his attorney was supposed to say that this was done in good faith clearly that wasn't done under the circumstances was that required i would say with having an attorney one week versus the next week not maybe this court could say that it wasn't required and maybe we should have a different judge for sentencing thank you thank you counsel ms pool me and please the court's counsel mr mckay your honour's my name is jennifer paul and i represent the united states in this case and i will try to address the defendant's arguments that were raised here today and i'll try to do so in turn although i may jump around a bit you must request it otherwise first on appeal mr collyer argues for the st time that the district court committed air when it instructed the jury that the government was not required to prove that the mens rea element knowingly extended to the interstate commerce element under the plane our standard of review this court should reject that argument st your hon as judge burton recognized every circuit court that has considered this issue has determined that the knowledge requirement does not extend to the interstate commerce element counsel how many do you believe of decided i believe that the nd circuit yes the court did in fact say that but the court said ordinarily ordinarily this is what courts should do this is how courts should read it but the court also said there may be a special context or background circumstances that may warrant a different reading of the statute and this very court has said a special circumstance or rather a special context occurs when the interstate commerce element provides a jurisdictional hook they said that or this court said that in garcia hernandez the two thousand and fifteen decision where this court refused to extend the knowledge requirement to the interstate nexus element in the firearms statute the court went on to explain i think very helpfully that the interstate commerce and that statute did not distinguish the innocent conduct from the criminal conduct the court explained that the criminal conduct the wrongful conduct was the knowing possession of the firearm similarly in this case the innocent conduct or rather the crucial element distinguishing innocent conduct from the wrongful conduct is not whether the defendant knew that his using a hotel or posting advertisements on back page dot com affected interstate commerce rather it was his advertising his maintaining his recruiting these young women by force fraud or coercion for the purpose of them engaging in commercial sex act that's the wrongful conduct conduct and that's what congress sought to criminalize your honor i think it's into think it's helpful also to look at the remaining elements of the statute i think they support the united states government's argument here  instance the other mill and elements in the statute whether the victim or the victim status as a minor and the use of force fraud or correlation those elements do not require actual knowledge an individual can violate  require actual knowledge for these essential elements your honour's i would submit that it doesn't make sense that congress read the statute as requiring knowledge of the interstate commerce which traditionally doesn't require mens rea oh now i just want to take a moment to briefly talk about a case that the defendant raised in his reply brief and i think it's important that the defendant  raised the u s v lost in case and in that case your honour's the th circuit determined that the knowing term a knowingly term extended to the interstate commerce element interstate commerce element but this statute your honour's is very unique and very different than five thousand nine hundred and one because it has different elements depending on where the criminal conduct occurs for example if the cockfighting or fall fighting happens in a jurisdiction that legalizes cockfighting then the government is required to prove that the defendant had knowledge that at least one of the birds involved in that cockfighting traveled in interstate co in contrast if the criminal conduct happens in a jurisdiction that legalizes excuse me that criminalizes cockfighting then the government need only prove that the defendant participated or sponsored the cockfighting again no court has determined that the mens rea applies to the interstate commerce here and as the th circuit recognized in the united states v sawyer there's nothing in the language of the statute nothing in the legislative history that would suggest that congress intended to mitigate a sex traffickers wrongful conduct simply because he's just not aware of congress's congressional power to regulate interstate commerce so based upon all those decisions based upon the fact that there's no preceden this court on this very issue it cannot be said that the district court committed plain air here your honor likewise the district court did not commit air much less plain air when instructed the jury that force fraud or coersion would cause the victim to engage in a commercial sex act versus will be used to cause the victim to engage in criminal sex act i would submit that this is a distinction without a difference because it will be used and would cause our both future tenses and importantly the lower courts and even the circuit courts including this court use those terms interchangeabl necessarily when addressing this very issue raised by the defendant but in the context of other in the context of other arguments they're using these terms interchangeably now the defendant i if i understand th correct correctly the defendant seems to suggest that would cause carries less certainty if you will then will be used to cause that is he seems to argue that the defendant or rather the government was merely required to show that this was a possibility or this was a hypothetical well could cause and would cause are not equivalent and the jury instructions very clearly reflect that the government was required to show that the especially as applied in this case because the united states argued during closing arguments presented overwhelming evidence that the defendants use of force his beating the girls his threatening to beat the girls  ok again so because the circuits have held that five hundred and ninety one does not require the government to prove the completion of a commercial sex act and based upon the arguments just presented the fact that the lower court and even the circuit courts have used these different teams terms interchangeably it cannot be said that the district court committed plain air in this case i have no doubt in my mind had judge erickson been presented with this issue he would have very happily obliged here he would have changed the language but he didn't wasn't given that opportunity your honor so it can't be said again that he committed plain error here next the defendant raises the issue of the court's willful blindness instruction the court to not abused its discretion in providing a willful blindness instruction because despite the overwhelming evidence of the defendant's guilt the fact that he's hosting these girls advertisements on back page dot com buying a monterrey taking them to the hotels giving them condoms taking all their money despite all of that your honour's he claimed that he did not have knowledge that they were engaging in prostitution it was his belief that they were either doing exotic dances or that they were giving foot massages foot massage that was his business plan if you will now this was a defense  mr collyer engineered very early in the in this case even before he was charged specifically the defendant had the women sign contracts wherein they engaged or excuse me the in t not to engage and prostitution the government's expert witness at trial a former minneapolis police officer and currently a special investigator for the b c a testified that the pimps use of these contracts is very common it's a get out of jail if you will card that they when they get apprehended they say listen i've got this contract here so this is something the defendant created disclaimers that this is not for prostitution everything else about the ad screamed prostitution the women were wearing lingerie they were posed in sexually suggestive manners and many of the cases the images reflected just the women's breasts or just the women's rear and the price of the massages going far exceeded what any reputable massage therapist as it was charging in the marketplace then there was also some language in some of the ads what's your closest case on this point and i'm just trying to remember your burger i would submit it's a nice factual you know the united states the louis case and most recently the ybarra sanchez case that was just issued by this court last week your hon defense the government had all this evidence of actual knowledge and i think as his honor correctly pointed out we didn't have knowledge that the defendant observed the commercial sex we are evidence we didn't have evidence that the defendant told these girls go into the hotel room and perform acts of prostitution no what we did have was that the defend it was giving him condoms we did have the defendant telling these women that go in you've got to do what you gotta do to get the money keep the man happy whatever it takes and then he took all the money that's what we had so based upon the situation in this case the defendant's defense the defendant's very specific defense here and this court's decisions in the lewis and just want to or getting closer i want to make sure that i raise a couple of issues so i'm going to skip an issue and i may come back to your honor but i want to address this issue of the defendant's computer  i didn't hear mr mccabe reference the fact why the computer was seized st this person i want to point out the vendor doesn't have a right to a computer that was stated by a district court in the gator decision it was a district court decision however second even though a computer was given and given to the defendant in this case it was only taken away after he used it inappropriately he used it to  league record a witness's testimony and this fact was brought to the court's attention by the united states marshal service had he not done that the defendant would have had the right to keep that computer throughout the trial i should also mention that this computer was taken from the defendant very late in the proceedings it was at the very very end of the government's case in chief and ate their trial how long was the trial three weeks your honor but it was a very slow trial which i think at this is about fifteen days  real trial something that really is something you're halfway through yes i would and i think that it was taken away during the nd or the rd of the last witness during the government's case in chief your still remains that he had access to the computer at all computer i'll be in the presence of the united states marshal service and he had access to his standby counsel who had all of the discovery and on top of that we provided him additional copy of all the discovery which of course one of included any of the recordings that he may have made at that point victim using his counsel's cell phone during the trial and that contact was precluded by the court's directive the court's order that the defendant had no contact with the victims and this was this was recurring even before the trial started all this problem that the defendant was attempting to reach out to individuals there is also allegations of witness tampering the united states charge attempt attempted witness tampering in this case because the defendant was reaching out to individuals in chicago asking suspect the defense was acquitted of those charges because we couldn't show that the victims were actually contacted by these individuals from chicago but nonetheless be charged as an attempt but i mention all of this because this was all going on and the defendant was very concerned about the security of the witnesses in this case so when this happened yes the defendant took away his right to the computer which as i said is a right that i don't think he was entitled to but nonetheless took it away but he still had plenty of other  but for those outbursts i think that he would have missed it in a court then instructed the defendant to pass notes rather than talk to him so that mr kirschner could listen to the testimony so your honour's there is an explanation for m statements about his missing some of the testimony in that case just very briefly muster other questions on that issue i want to also address the issue number seven and that was the  risk offenders so what does that mean it means that this could offend it can do absolutely nothing without the permission of his in or his probationary officers every morning he has to call in and give them this is on the record every morning he has to call in and tell his team of i asked our agents where he is going to be and according to those i r s agents they testified that every minute needs to be accounted for also all he was  hearing that when he transported this defendant from the d l c facility to the d l c residence and more had he would have explained these conditions to him and told him for example i get to search your phone i get to search your residence and i might add that this was on controverted testimony and there was also a minnesota department of corrections policy that provided that these i r s agents must search the computer and the phone in the event that there's reasonable suspicion that the individuals the supervisor lea oh thank you again your honour's and ms poole stance are a couple the questions that have been raised before i as i look at the statute there's just the one line judge benton the gash on either side up yet just one is not yet one wouldn't have been helpful or mattered or changed the decision of the jury by presentation of that evidence and i would argue in this case it could have changed the outcome with this particular witness presenting that evidence if you go with mr call ears theme in theory that that you know these women were not supposed to engage in sexual activities i really want to focus though on this on this  would would cause or would be used because distinction i know the government wants to say it doesn't matter we use these words interchangeably hyde i respectfully disagree i think there's a huge difference and i hope this court really looks upon this coersion will be used to cause these women to engage in sexual activity one says he just simply asked to know it could cause that's pretty easy to prove it's a low burden the other says we have to prove the government has to prove that he knows that this force or fraud or coercion will be used it will be used to  one i really hope this court takes some time to look at this because to me it was a huge huge distinction and i think it this case should be reversed on that alone thank you thank you mr mckay case number eighteen and twenty five is submitted for decision by the court that concludes the court's docket and we will stand in recess until further call