local case and the instructions related to that to talk about the unconstitutional vagueness of your reasonable opportunity instruction th this is a case involving it customer a customer solely who was convicted of a sex trafficking of a minor a statute which carries a ten year mandatory minimum mr cole was a customer only and this is what happened and this is this is appropriately curator as as a completely local crime and the question was whether the evidence is sufficient to sustain the stand  there's a few blocks away washing down the street there's a discussion exchange of money sixty dollars was exchanged and attempts at sex and that's the crime that we're talking about here information on facebook and maybe on some other internet sites that has nothing to do with mr kohut mr coysh i didn't look at those and wasn't solicited by any facebook posting or anything involving the internet so as to this particular crime big internet as it has nothing to do absolutely nothing that may relate to conspiracy count but i'm talking here about this ten year mandatory minimum so you've got a perfectly low crime to walk down the street exchange of money nothing they did or state commerce clause is an important constitutional requirement of the statute this is not a statute which that which is based on some congressional findings that state that the very nature  it was anything other than purely local and simply they used you know the fact that this phone was manufactured in china this isn't an instrumental instrumentalities or means in which that can find a jurisdiction so but don't the th the th circuit's sort of apply the range framework to the sex trafficking statute and if if if i'm right i'm not that what's wrong with their approach why should we create a circuit split but i'm not sure that they actually do it when one of the one of the difficulties there is that if you look at these cases primarily we're talking about cases that are big prosecuting  as i understand it those cases take the range of cosa essentially say that congress has determined that there's this aggregate economic fact and so why if that's true i mean i understand your argument about a human being a customer but if that's true of congress this may this aggregate economic effect determination and i'm not sure i'm not sure that that is their future but think that if you look at andersen case which was effect in interstate commerce the government must prove the jurisdictional nexus on a case by case basis as a compared with other statures which permit the finding of regulated activity to just let it go away we can't and that's why it's got to be an actual effect in interstate commerce and that's why in a close call case like this where you look at this evidence what evidence doesn't exist as to an actual effect interstate commerce is  statutes money laundering statutes which to report are in the cases do require actual fact interstate commerce and it's i think it is missing important that since that is the standard on the one hand it has a elementary acquiring either knowledge that the victim was under the age of eighteen or you act in reckless disregard standards now those are obvious defense of this this congress wrote this statute which then does away with the element if you have a reasonable opportunity to observe the statute itself doesn't contain any information as to what the reasonable opportunity to observe the reasonable opportunity to observe that she's under the age of eighteen it's got a built in the whammy here because you know one minute five minutes ten minutes a week it might be mean something different to different people ask for the ambiguity present and the crux of the ambiguity in the problem it's built into this this piece of legislation is that you have cases where you're talking about somebody who doesn't look like they're under the age of eighteen so what does this mean if you have a reasonable opportunity to observe somebody who looks like they're twenty years old yes and if you are you making a facial challenge to the statute is written or how  oh he was a nut he was her presence twice but he was told by her to a by the pimp that she was over eighteen years old so there's contrary evidence and keep and if you look at his police interviews he believed that she was over eighteen years old that's the dilemma statute is not properly before the court because the statute is not big as applied to them the statute sets or three alternate mens rea options united states showed all three but even looking at the one used challenging whether he had a reasonable opportunity to observe his minor victim there is more than enough evidence and the record the record shows they were together for a significant amount of time on three occasions in a close intimate setting on the st day they met in his apartment the entire purpose of the meeting was just that he could inspect her was played out he examined her and touched her up and down the  time they were together for forty five minutes in the defendant's bedroom they were naked and engaged in various sex acts when he was spending he took photos of her naked on his cell phone as she was getting dressed the minor victim testified that they had sex on a rd occasion in this matter i understand the defense counsel contests this but this was testimony that was present in total they were together in close proximity and the most intimate of settings  hours during this time as you noted that he was in her future physical presence he had an opportunity to view her physical attributes and her demeanor he clearly had an opportunity to s victim because he knew that she was under eighteen he told her that she was too beautiful to be eighteen he also told law enforcement that he deleted the naked photos of her on his phone because he didn't want to be accused  pornography your honour's this places the defense case squarely within the statutes parameters and is dispositive here the defendant cannot establish that he did not have a reasonable opportunity to observe his he has not demonstrated that the statute is vague as applied to his particular conduct the supreme court has held that vagueness challenges like these must be analyzed and applied to the specific backs of the case at hand because the jury instruction was a correct statement of the law the instruction was appropriate and was consistent with the law in the statue both the instruction and the statute require the activity to be quote  affecting interstate commerce the defendant argues that the district court error because it did not include an affirmative instruction that added that the effects must be actual not merely probable or potential but like the defendant's proposed instruction the district court's instruction also interprets affecting interstate commerce element to mean and actual effect on interstate commerce even if it is a dimension that actual affects the instruction accurately reflects the statutes tax which used a phrase or affecting passively and clearly convey the interstate commerce standard to the jury no additional instruction using his and williams where the district court in those cases affirmatively instructed the jury that it was not necessary for the government to show that commerce was actually fact it in this case the district court didn't sing the act could be potential or probable notably your honor if there is no other challenge to the instructions here there is no dispute that the act can be done and this or that there is no knowledge requirement with respect to the commerce element as stated by this court in collier and the th circuit in evidence you know honors read as a whole in their entirety the instructions make clear that there must be an actual facts the district court instructed the jury out of all of the elements of the crime charged and identified smith you raised the error was harmless because the government offered ample evidence to satisfy the statutory commerce elements but if i was not prejudiced by its use both parties that are you know under that standard looking only at the facts regarding his individual conduct on the subject of sex trafficking charge because that is what defense counsel focused on here the jury heard testimony that the defendant used to c t e a brain cell phone which was testimony that the defendant's close of the naked minor immediately after the sex acts on his cell phone and the jury was presented with the more than a dozen photos that he took of the minor victim on his cell phone your hon he was waiting for is paid to complete the transaction he was putting money into interstate commerce the th circuit interests and found that the use of money moving at interstate commerce can satisfy the elements the jury also heard testimony judge garner as you raised the night circuit and the th circuit have followed the u s supreme court's decision and gonzales versus right the commerce power reaches purely local activities that are part of an economic class of activities personally engaged in affirmative economic activity that when taken together a tax interstate commerce it further you are looking at the facts on the conspiracy charge further bolsters that finding a heard evidence that his codefendant posted advertisements on facebook which is based in california and has users around the world the other circuits have found that evidence that the defendant use defense counsel based on defendant's jury instructions does not appear disputed that in addition your honor is the fact that the defendant's conduct here was purely intrastate does not change anything and is a no consequence here courts have found that under section five thousand and ninety one a even if the defendant's conduct was purely local to the state of minnesota his activities contribute to the market that congress is comprehensive scheme seeks to stop the leading case on this year honors is united states versus average ins where the court addressed whether soli and trust state commercial sexual activity could satisfy the interstate commerce  nexus the jurisdictional nexus be satisfied on a case by case basis it wasn't satisfied here taking it pictures on a phone they weren't distributed they all go to interstate commerce the phone that's manufactured interstate commerce that doesn't go findings here and the supreme court's language about it being the type of activity that has in aggregate effect on interstate commerce but i disagree with it and i and i'm quite to the anders that this particular criminal statute requires estie every conviction it's an element of the offense they haven't written it out as an element of the offense of the greater congressional finding that's fine in but the statute contains the very elements itself so you can't you can't just cite to the congressional findings in order to get around the facts which are necessary to bring it into court as it goes as an element to the jury so that's what you know and this gets cloudy and a lot of these cases because the jurisdiction all interstate commerce clause elements sometimes just satisfy differently but this is a particular statute that has that has an element and it doesn't say that you can rely on a congressional finding so because the completely local activity is involved here and you struction wasn't adequate as well to bring it into show instruct the jury is propre really just be an actual effect in interstate