specifically that the law requires as we read it not only that mr price knew he was engaging in sexual contact with another person but also that he knew the sexual contact was without that other person's permission  we believe that's the only reasonable reading especially in light of multiple supreme court precedents particularly floors they wrote which makes clear that we are in a phrase in a criminal statute that introduces the elements of a crime with the word knowingly it applies to every element of that sentence and that would be the case here this is not a very complicated provision in the statute the language you simply know leading gauges in sexual contact with another person without that other person's permission it would seem odd that the knowingly would not apply to that other person's permission you have to we've asked that the court instruct the jury that they have to establish both that the defendant knew he was engaging in sexual contact with the other person and knew that he did not have that other person's permission essentially what the court instructed the jury here was that it had to prove that the defendant knew he was engaging in sexual contact which there was no dispute about and then merely the defendant had to indicate it was without her permission the victim that indicate it was out without permission obviously the jury will have to look at all of the circumstances of the case to determine if in fact that's true in other cases you couple other circuit cases that have dealt with this situation they generally they have pun the specific legal question here because they said regardless there it clearly was based on the evidence presented clear that the senate did not have the other person's permission  isn't it just obvious that you don't go and sexually assault a perfect stranger on an airplane sitting next to you well that certainly would be wrong or indeed be the presumption that you don't do that well yes or not but of course that's the he awoke to feel her hand rubbing up against his hand they then grasped hands started to he started to massage her hand and that that led to additional massaging of other parts of her body you know if you had had the instruction you have credibility determination absolutely right and if that's correct even with the instruction you would presumably you're on again what what matters is whether or not and you know whether he knew he lacked the consent that's up to the jury to decide whether they believe that he knew or didn't correct but without giving that instruction to the jury the jury was committed to convict him merely based on the purported victim's testimony that she in fact had not given permission that was in the fact that he believed he was engaging in a consensual act the mere fact of the jury instructions the mere fact that she said that it was not consensual would be enough to convict him  and our position is you know sex on a plane while many might find that offensive is not itself a criminal act right so if in fact the parties were gaging in a consensual act and it may in fact at started off consensually and at one point she may have decided she didn't want to go forward and those are all things that the jury could certainly could consider but the question is whether he knew he did not have the permission and that's what the jury was  he was immediately placed in handcuffs were first let's take a step back the plane landed at a remote gate ok so already a decision had been made to separate the plane and mr price from the rest of the airport ok plane and immediately took mr price and let him off the plane at which point he was immediately placed in handcuffs he behind his back he was patted down just before that he was separated from his property and he was then forced to stand at times or sit at times in the area where passengers were disembarking for between an hour and an hour and a half right and the only reason given by the police for why he was forced to be there and that why a police officer was standing there was well because he wasn't really and the fact is based on the facts in this case it's pretty clear he was not free to leave from the moment he was taken off the plane and well you don't think there was probable cause to arrest him either day not at that time your honor all that we knew at that point when he was removed from the plane is that there are going to communication from the plane we need l police to me airplane we have a molester farmer on board which doesn't exactly explain anything about what was actually happening on board or whether mr price was involved in that in any way and then once it landed in the door opened of the flight purser the lead flight attendant met the police who indicated only quote female passenger had complained about being touched by a male passenger again that's sides right if he didn't have to decide to immediately handcuff him and remove him from the plane right they certainly could have done a lot short of that and they certainly did need to then keep him in handcuffs for between an hour and an hour and a half before he was then transported to custom where protection which was about ten minutes away still in handcuffs and then once he arrived at customs border protection put him in handcuffs and would not necessarily your honor i mean even if one is searching someone's bag as they land at the airport they don't typically read every piece of paper that's inside a bag but that's essentially what was done here they took this piece of paper that he had written there was probable cause to arrest him for something i wasn't sure what at that point yes at that point but if it but again we can send that based on the circumstances as a whole he would not have felt that he was free to leave after he had been after you've left the flight and had been handcuffed behind his back and separated from his bags and again it what do you contend is the consequence of that let's assume we agree with you that he was arrested without probable cause but then he was themselves mr price was questioning kept questioning i'm sorry so am i under arrest am i under arrest it's like it's just like on t v don't worry about it well but am i under arrest well we're required to do this two step process say the government need not prove that the government knew the other person had reached that age yes right there with them do not say anything that the government need not prove your honor it's we actually look at the legislative history here the purpose of the act was to modernize and reform federal rape statutes and it's of the focus of the trial was on the conduct of the defendant not the measure of the conduct and with respect knowledge nothing in the that the majority in a non binding case from out of district in a six five decision ruled against the government in that case the government today would would argue that that case was wrongly decided now for the last i think that within the dissenting opinion there's a useful information one of those use a piece of information is that it's actually in that case twenty two forty two which is another one of the statutes among the fore originally to contain language which would have criminalized someone who is knowingly engaging in a sexual act with another person and then it said quote if such other person is known by the offender to be and then a bunch of ways someone can be incapacitated then two years later upon the actual passage of that act the known by the offender to be was  if anything congress explicitly removed that requirement from twenty two forty two forty twenty two forty four doesn't actually have similar language one way or the other but twenty two forty two is certainly the closest to twenty three forty four b among all of the crimes within the statute importantly also i think it's worth mentioning that there is a unique nature to sex crimes and in particular if you look at the excitement video case in that case the court stated that in production cases the risk of error should fall on the producers because they are in the best position to know the age of the victim likewise here when someone like the defendant has his hands down some stranger's pants on a plane he's in the best position to know whether or not there is there's consent when i want to get back to those you know in order to prove this case beyond a reasonable doubt the government had to show that the defendant did not have permission to touch the victim and permission in this case was defined in this was the fence instruction that permission c expressed or implied expressed permissions obviously verbal permission and an instruction was an implied permission means permission acme implied from words or actions now here the jury upon reaching its verdict found that there was no permission and therefore necessarily concluded that no one could and didn't find that he knew there was no privilege what they found was that you cannot infer from words or actions that there was permission and i would submit to the court that knowledge is really just inference that's that's what we're learning from the world around us knowledge is based on these inferences and so people could not have the difference between saying you have to know that you don't have permission and from thing it doesn't that's not a required element that's that then we go to a different question for i think what judge or law was which was asking earlier about whether another should be an objective standard i the defendant that government doesn't have to show that the defendant knew that they had to have knowledge to the cases they didn't eliminate the knowledge knew they when they say you don't have to have knowledge of certain elements they said they could easily have said that and in fact you know we have some state statutes that might well comply with what you say where the defendant is able to make the argument of implied permission that he's inferring from words or actions that that there is permission that is the same argument as that he knows whether or not there is permission it really gets down to an objective person standard which is whether or not a reasonable person would infer well but generally in criminal law all that you have to show mens right well there already are two mens re knowingly engaging in the sexual contact as well that would allow i mean if she wanted to engage in that that wouldn't be a crime at all as well as the specific intent of gratifying his own sexual desires in addition to that though the jury still has to that it was objective fully nonconsensual so it's not as if defendants are going to be convicted left and right here it's up to the jury to determine based on her statements based on his statements based on all of the facts in the case whether or not there was objective leave permission and that makes sense because as a society we don't want as judge or law was talking about earlier people just be able to get up on the stand and say oh i didn't know i mean just what makes this case a little odd just on its facts is you think if she truly argument we talked about people are fighting is actually a concept known as i believe it's tonic immobility where people are frozen and they don't know how to respond and the jury heard all of this evidence and still found him guilty here now saying that she should have had to put up some amount of resistance was also something that was explicitly rejected by congress so you know for millennia i think there is this notion of utmost resist that a victim had to put up some resistance in order to prevail in these cases and in the house report and it's page seven no twelve the the house explicitly rejected this notion of the most resistance instead focusing the inquiry on the conduct of the defendant not whether or not the victim did anything i would further say that the fact that here the victim did not sane thing to not touch him back she did not in any way reciprocate what he was left with that's you know he says she did what he says that i nationally he touched her hand and she touched him back and i will submit to you this is an economy class on a plane thirty five thousand feet in the air with with a shared armrest so the notion that their hands vagina airplane was on a normal thing to do in a public place he described their whole interaction as very impersonal with no eye contact he said that when he's doing something like this that is out of limits or against a conscience it's not he's not looking to make eye contact with someone he agreed it's her job his job not to touch or without her without her permission and most importantly he said and this is a quote that he knew it was wrong to be engaging like this with someone who's a total stranger without having first in the brief in which the facts are very similar and in that case the court found that no reasonable person would infer under those circumstances that cohen had the permission of the stranger beside him to move his hand up or thigh to her groin the reason that's relevant is that the no reasonable is distinguishable from flora's figaro for many grammatical reasons that are laid out in the brief most notably that the phrase at issue isn't that verbal propositional phrase as opposed to an adjective propositional phrase but rather than get in a whole grammar discussion move on to the he at some point is arrested sounds like the defendant admits he was arrested by the time that he was interviewed by that point they found a note in his bag that he had written to her simply minutes that conduct happened that was suspect p who are the only people who are allowed to go on a plane and why expedia couldn't have gone on there but directed them to the defendant and the victim so he actually identified the people that purser also have spoken to both of them in henry i think made some officer safety and passenger safety when hundreds of people are walking right by him was a good reason to handcuff him within that period of time they spoke to numerous flight attendants they spoke to the victim and they  i think the government in in our brief we said that there's could have been probable cause of the time that the purser came out and identified two people to that point of the pilot's statement and you have the purser's statement but what i will say is what the district court found which was that found or isn't probable cause at that point the government hasn't isn't relying on any of the information obtained during that time so said his next step was through customs and border protection what was when once you well the district court found that at the earliest it didn't make an actual finding that the earliest he was arrested when he was transported to tom bradley i'm not sure if he was even arrested at that point because at that point he's still just making his way through customs he doesn't have absolute right size he's going through customs and as the district found below they have every right to search his bag and find that note and upon the finding of the note i think there's absolutely probable cause to arrest him and then the last thing i'll just address as quickly the miranda issue  this is clear i think in the briefs but the the defendant ever said they didn't understand the specific rights he was only possible confusion was whether or not or why the rights are being read to him at all and i would submit that that doesn't yes certainly with respect to this particular statute the berger decision at least deals with a provision in the sexual abuse act of one thousand eight hundred six so it's it's dealing with the same act but a different provision of the act but there is not a publish easily applies to this context the same reasoning applies to this context and is the reason that this court should adopt in terms of serving the statute in terms of the issue of  the arrest perhaps i wasn't i mean i've been clear before there was other stuff happening before the touching between am and mr price they had engaged  in drinks together they had conversation together there was more than just all of a sudden she awoke and he was touching her they in fact had been engaging in what appeared to be a relationship i didn't instruction on permission this problem because the jury found that you had to necessarily find that there was no implied permission which cover all of these other circumstantial pieces of evidence well it goes to what the jury was told is that all they had to find was whether he had the bad other person's permission and she said he didn't have my permission and so clearly the jury was permitted based solely on her testimony to make that finding now he then tried to do the best he could given the jury instructions that were given to say look i thought it was consensual but with now explain why he wrote the never telling her after the fact that she could always say no yes because again he thought that this that clearly this was a misunderstanding because he thought that this was consensual act that that the two of them were engaging in the jury rejected that well yes the jury clearly rejected that based on the jury instructions that were given where they did not have to make a determination as to whether he knew he lack they were permitted to convict him based solely on her testimony without regard to whether or not he knew he left the consent to begin with if you know the fact is the jury wasn't told if he believed it was consensual that that was  basis for finding him not guilty there was all the sense of the opposite that they could convict him solely on her statement that i didn't consent and that's why we have a problem with with those your instructions unless the