mark i'm going to pivot wherever i am to the sentencing appeal by the united states to make sure i cover that as well and we'll see how we go when you're dealing with this first issue you understand i guess that we have united states have been amended twenty four twenty three has rescinded amended and some of the litigations working its way through the courts including the circuit i think the principal issue of pet they is whether or not the defendant had relocated abroad because whether he we located abroad whether that provides defense under jackson and also as the statute been remanded so our noncommercial pronk issue i think is a little different but the extent that is covered and with respect to the exit oratorial reach of criminal law the statute issue that would give congress authority in this venue is the foreign commerce clause and this court we contend its decision  clark really compels the conclusion that the noncommercial pronk is insufficient korak address to commercial products and made a finding said this to critical aspects of twenty four twenty three c the commercial product which would permit makes the following congress's reach and that is one the travel industry commerce and then it called the comm that combination with extra territorial commercial conduct and it said no central character except one of the things that bothers me about the case is when we have cases say we can look at our national commerce clause issue and determine the international last aspect and one grain of wheat makes it in a commercial case an interstate conference it's pretty sweeping of what we should go with the international commerce and i just wondering if you've given some thought to that if in fact we're to look to the national calm cases on t commerce clause they just don't seem to be a closing door well i think i think there's two things i think it's a very question as whilst one i think that's part of the debate that's going on right now amongst a circuit court of appeals this is the six marse and when the rehnquist court struck down similarly a number of an act which by congress and clark in this case is the government's argument says that we don't adopt the the trilogy the the statute that's what we think or controls but i would respect in this way though i think it's was broadly and the court is correct your honor is correct to notice that even on the interstate commerce clause there are limitations and i think what clark did was look at the three the three avenues interstate commerce clause in the in commerce clause and pharmacy foreign commerce clause before settling on the rule which apply to this case which would say that congress does not have the authority to regulate noncommercial extra territorial conduct in a that's such a finding is made we would prevail on counts two and three twenty four twenty three seek counsel and noncommercial basis i believe if we took the court your court's question to its conclusion even then mar lopez show there has to be a connection with common with foreign commerce and here the exact conduct that he was charged with one of the problems was it was noncommercial info that if you went and you went on a date with a seventeen year leary says is if two theories go to a jury and we don't know which one jury accept it and one of them is constitution tenable it's a plenary reversal and so the government opted to pursue a noncommercial theory they pursued it they also pursued a and walks out theirs well it didn't seem to me that you made much of an argument about it at best it seemed to me that you were right to this foreign commerce clause argument well i think we have to identify for every reach of congress that you have to identify where the power comes from and us and he lives in paris they can enforce a subpoena against a dumb american domicile the powers and for the cases like the international drug change on the high seas there's never been a chance that's outside of congress already those are two of the cases but i would if that's the question that i'm asking then the evidence is this crime was dependent on the channels and instrumentalities of corn foreign commerce your client was a person in foreign commerce he resided in the united states he frequently traveled between the united states in the philippines he communicated between the united states and the philippine individuals and  money and he arranged to meet with ask you in august of two thousand and twelve through messages exchanged and with her mother over the internet why is that not a rational relationship well because the ultimate holding in clarke is quotes section twenty two twenty four twenty three c's combination of requiring travel in foreign foreign commerce coupled with engagements in a commercial transaction found his discovery violation right before arresting hernandez took the stand they were trying to prove up an extortion plot he told defense counsel he possessed information in his phone which would corroborate that offense judge bryer su decision as it relates to this just coverage issue is an abuse yes i think those cases i couldn't find i read those cases i cannot find anything in any one of those cases which would suggest that the dis court was required to do certain things in fact just the opposite if i read those cases they would suggest the district court has a pretty wide authority and when the district court makes a  way or the other that i should not get involved because it would be because there's no abuse and if i read your cases out of nowhere and i don't find it anywhere in a different  worse i think the government under tailoress united states exclusion requires a finding of willful misconduct with the intent to obtain tactical advantage by defense counsel and that's applied by this court in the rap but there's nothing on this re defense counsel did anything wrong much less committed willful misconduct before i run out of time my counsel i think what they've really done on the on the sentencing issue sort of they're there for three from cross appeal ultimately shows why it's a winner for us their chief real complaint is that they urged judge bryer to group these as separate groups the p s r group them that way they stood up at oral argument sentencing and said we urge you without those findings two separate groups they put their sense of papers two separate groups now they complained that's not right judge bryer erred when he put them in two separate groups but that is affirmative waiver under this court's precedent because not only  good morning may it please the court my name is philip cups and skin i represent the united states began if i may with the question of the legality of two four two three c and specifically the noncommercial aspect of that the constitutionality thereof is no if your dog yes your own galaxy well i did because the court brought up something here that can't just be ignored which is that strain running through the law about congress authority as a sovereign nation to legislate in this area and it's seen most prominently in the curtis right decision from the one nine hundred thirty s where the supreme court very clearly says the national government has powers independent of the constitution and that sounds sort of dizzying to people accustomed to focusing on the domestic sphere because we're taught that in the domestic sphere the government has unlimited powers only those enumer the constitution but the supreme court has been quite clear that is not true in foreign affairs and it explains that if the case were otherwise then courts would be limiting the nation's sovereign powers which is something the court should not do so the question becomes is imposing a penal law on an american abroad within the powers of a sovereign and this is where we don't  think to be frank there is a answer directly on point but all of the available cases say the end seem to suggest the answer is yes so that's black mirror and bowden from the twenty's and thirty's it's more recently cases of this court like king cases the top about the so called nationality principle and that arises in the due process framework but the cases also talk about it more broadly as the principle that americans o allegiance to their nation and that means being subject to the nation's penal laws even when abroad and i find it in clark absolutely and because that's his argument and clark in a way first acknowledges this is an independent source of authority but also i think rightly takes those principles about congress's power as part of a analyzing the markedly different in the foreign arena versus domestic so clark i think both sides agree should control this case we just disagree about which way the government's position is that the commerce piece in clark was an additional fact that helped take that case further into the heartland but it is not a necessary fact and here it remains true that in the words of clarke there is a rational basis for criminalizing this sort of abuse of minors as it relates to congress's goal which is stamping out  boulder i don't think this court can precisely adopt either ballinger of the fourth circuit or pendleton the third circuit simply because clarke says you are not constrained to the traditional three part lopez morrison framework  nevertheless those cases find that even under that more restrictive three part framework it's sufficient so that's the only distinction in fact this court has already said in clark that the power is even broader but certainly on that narrower basis the last bill stands and there was a question earlier george wallace about the the national cases on the commerce clause it's correct that those cases already of course interpret the domestic commerce clause very broadly and so pendleton bole injure the other cases on this issue look to those cases for guidance they all look the cases that we also cite in our papers from the sex offender registration context so sex offender registration laws have been upheld nationwide including by this  so those are domestic applications of the commerce clause where it is simply an individual who travels in commerce one state to another and then fails to register and courts have said that that is a sufficient basis under the domestic commerce clause for congress to legislate so it is clear that even domestically congress has very broad powers and in the foreign arena it is only broader than that and we think plainly the noncommercial abuse of children is related to the broader goal here you will agree and he's pointed out pretty specifically that clarke really doesn't get to the issue we have in front of us correct true it just talks about general precepts and concepts that might get us there but then limited us we've got to push it on so what's our best case to push it on you know i think i'm saying to myself i got a two thousand and six case that didn't do it why am i going further well it didn't do it as a matter of judicial restraint the court made that very clear so then why they didn't do it but well i don't understand i know who the wrote it because in clark the court says no the traditional three part domestic test is too narrow so if anything ballinger is just too restrictive but it's alternate finding of course and then i like i said a moment ago i think the cummings case that's the international kidnapping statute we think the analysis there is right on point it's cited in clarke it's not as relevant to clarke given that clarke involves the commercial piece of it but that's another key reach in less strictly necessary so we didn't devote much time to it in our brief i don't think anybody wants to get there well we do only if the court thinks it's required we've got to get there only if you've got  about how this comes up to trial so the defendant his lawyer is crossing the victim's former boyfriend or direct i'm sorry because it's their witness during direct just starts to say do you have your your cell phone on you today and says yes and maybe one or two more questions there's an objection and they go to sidebar and the district court judge pryor says what are you planning to do here do you have messages are you planning to do messages and the defense counsel says yeah i just learned about this forty minutes ago he has messages and the district says the court says to him pointedly is this subject to reciprocal discovery and the defense counsel gives a non answer she says i just learned about this forty minutes ago so she doesn't say i got copies of the message forty minutes ago maybe not now on appeal the defense says well we don't have there's nothing in the record that says we even have possession custody or control well the district court tried to drill down on that answer and got a non answer from the defense is this hearsay at best it is in your honor that is the far more fundamental reason that this is ultimately nothing we now know exactly what's in the messages because in the context of a rule thirty three motion after trial the defense got translations of all these things and put them forward and said that the trial is fundamentally unfair because these messages were excluded but the court rightfully rejected that on a number of basis hearsay is one of them there is no basis to admit these messages even if they're  authentic and all the other sort of surrounding pieces of admissibility assuming all that they're still hearsay and in the defendant's third cross appeal brief what he says is well no eight zero one they they would be prior inconsistent statements so they're it's a no one no no good either one requires first of all that the prior statement be under oath these purport to be messages over facebook  also have to have a different witness on the stand not the defendant or the the victim's boyfriend so these messages are inadmissible so no matter what the court thinks of the district court's in the moments it didn't know anything about the messages defense counsel had proffered nothing about why the relevant or admissible or authentic there was also the rule sixteen issue but no matter what the court thinks about decision in the moment of trial we now see the messages and we see beyond any doubt that they are it admissible they're also frankly in comprehensible we don't think they even passed the relevance test but  hear we hear your argument you want to go to the district court abusing its discretion on declining to apply the obstruction just sure thank you your honor that too so three c one point one is very clear the two levels are added and  we don't think it was error for the p s r to propose grouping here it is the guidelines contemplate doing it in a more direct way but it actually doesn't change the result in this case so the p s r proposed two separate groups of struction counts and one sex offense counts and the other the government didn't object the defense didn't object the district court did it that way the problem came when the district court refused to play apply the two level of hansen to the much higher offense level for the sex offense and so if the court had group did this would all be very obvious because when groups the only thing that would matter is what are you going to what are you going to say to counter argument that you asked for it you got it and now you want to to check that's just not accurate and it's not how the guidelines work and no the guidelines work but what he's saying is come on you waived your opportunity here you're always arguing waiver when you get to me and i don't put something in the record you've waived it already even if you haven't waived it you ask for the air you invited but the error is not applying to levels and we strenuously told the district court to apply to levels and the district court did not  that is where we could have waived if we had not raised it but we did strenuously and packing forth a little bit with the court in good nature i think for a page or two in the record and the district court said firmly no you're wrong because you would double count and we said your honor respectfully otherwise it's not counted at all yet the court went that way and never applied those two levels or do i have a noble review here i think you do your honor case would suggest i have been overall review of this so this issue i believe would fall  since you didn't make any argument that you didn't even object well so we did object strenuously below again we we very firmly said that the courts should apply to levels ballo brought up this other issue of group being which which didn't change the outcome is the same problem whether they were grouped or not it is the exact same problem and the problem is not of discretion i think this would be the novo as a an issue of the district court understanding how to apply the correct legal standard that's three c one point one and so we think the fr case of this court which is cited the papers a few other cases cited in the papers make very clear that in these circumstances three c one point one must be applied and the district court didn't do it here very good your  importance of the far commerce clause can't be understating this case as this case was charged and as similar cases may be brought a twenty one year old college student to go to the philippines have sex with a seventeen year old by her dinner is one hundred of my law enforcement and you but you can't really compare that to something the philippines wow well they didn't charge with noncommercial claus they charge them differently and the government is the master of his complaint but they charge him with noncommercial sexual conduct abroad  there's limits to that and they're important items to that and i guess we'll find out what happy things the first but there are important issues that because having sex with a seventy year old in the philippines if you're a college graduate turing fifteen mandatory minimum that's extraordinary power it requires this court's close attention the second piece i would read the spec to this with my colleague i don't i don't think judge briar drill down i think when miss jane called resting on the stand and she started getting into discussions about contradictory statements on the three c one point one question the grouping matters that's why there were two groups and that's why judge bryer believed he would double count and the government said that you still have to count them as two groups so judge bryer said you're the one that's make me double count the guidelines and this is this course decision johnson we sign our brief no double counting and now they want to tell us court where you should have double counted they should just count it once and the group them together they express the way their argument by not mak it for the first time to the fourth appeal fourth brief one appeal in this case that's a textbook waiver textbook invited invited or so the court at a minimum sure from the sense that the court thank you thank you for your argument both of you