bigger you can't hit your opponent with a cane you can't hit your opponent with a cane you can't do that proposed instructions that you put in you're basing the whole thing on the suicide bhante or you claim the district court occurred because of the circumstances how can that be plain error ok well let me let me take that in two parts your honor respect i think you've overstated the position a little bit because we do also say and still maintain that a lot of demonstrates clearly and also based on leo calla two thousand and four supreme court case and staples two thousand and four supreme court case that can't is incorrectly decided but friend or sorry thomas thomas girlfriend was under age i reason to believe she was eighteen or nineteen what if what if that's right and that was really the bulk of his defense and that was an error not to it instruct the jury and then it was pla how did it affect your client substantial right ok so then we go to to the third probably a lot of test your honor and so i accept and i accept your premise with affably my client was acquitted on count one which was sexual exploitation of a minor it is dangerous for us too pretend that we know what's going on in injures mind and i have when i read the brief i thought my goodness how in the world we know why the jury acquitted on  well if we go through the elements of the offense first of all the first element was stipulated like they took the the car ride together in california so they definitely drove together and so then the question on count one is what other reasonable explanation could there be and i think this is what the government sites i think it's cost them which is we look at the cases we try to do and i agree it's dangerous and difficult but the only real difference was the men's way of defense it's you know one of the wonderful things about our criminal justice system is that when you get  acquittal that's it it's over the government can't retry the person on that charge jeopardy attaches it's a nonentity so we're left with a charge of production of child exactly what else could the jury have acquitted on count one for for the such abuse the minor sexual abuse the minor is that everything described as they took the girls they went they travel as ours county the purpose was for prostitution true the only thing different is there's no mens rea or and that's the difference but so i think in a sense the substantial rights because he was convicted as doing fifteen mandatory and no juror found that he had culpable state of mind and that's  thing strict liability for fifteen years has no other there's not a statute in on the books that permits this the common law doesn't permit it and so on the product three question the jury didn't have the ability to consider whether or not his belief was reasonable about this woman's age and it was reasonable and if you take the photographs that were uploaded to read book and we show them to our clerks and our friends and we say to them what do you see here i would suggest respectively you have people say these are advertisement for prostitution and you will have nobody say oh my god this child pornography from our positions in our roles in this court we've all seen child pornography that there's no doubt these are children that's how it ends upon three but since i'm at the halfway mark of my time i really do want to talk about why cancer is incorrect and irreconcilable with a lot of us not enough judges appeared to ruin your career perhaps the let me take this out of i could judge hawkins because i think that irreconcilable let me give you three reasons one a lot of says when you find a statute that does not have a mens rea you don't courts do not say oh there's no mens rea the courts then decide what mens rea is necessary to separate the crime from innocent conduct and we give you three quotes milan as we have repeatedly held that mere omission from a criminal in the act meant of any mention of criminal intent should not be read as dispensing with it the rule of construction reflects a basic principle that wrongdoing must be conscious to be criminal when interpret in federal criminal statutes that are silent on the required mental state we read into the statute only that mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct the presumption favor of c n to requirements should apply to each of the statutory elements that criminalize otherwise is a conduct and the delta here is knowledge of age so we have to have see enter and why that's irreconcilable with cantor's because cantor doesn't imply c enter it creates an affirmative the fast that is not what alatas teaches a lot of teachers if it's not knowledge then we don't say no see enter we run down the ladder is  apprentice element that needs be proven beyond a reasonable doubt not in affirmative defense which is what happened you can't or so i think those two points are irreconcilable the mode of decision and the common law traditions and this case has and then you have that fifth amendment jurisprudence which says we cannot give felony ponies and brand people felons and give them extraordinary power these without amends reya so and i think that is why this court does under milligan we have the sasquatch two thousand and four sixteen years after forty years after sixty years after someone strokes after cancer teaches that when congress use the word use that implies criminal recklessness at least you cannot accidentally cannot reasonably have learned that she was a minor quire right yes yes claim yes and cantor makes very clear there has to be some sort of diligent investigation cantor uses the word village an investigation it talks about appropriate not meant to protect someone who just thinks she looked in one thousand it's meant to protect someone who made a reasonable inquiry and was deceived and that's not what was presented here so your argument really is it wasn't plain air because the instruction wasn't necessary because he didn't put on something he would have had to put on in order to run the affirmative defense correct and under bear which defendant relies heavily on i think there's two things that are required to establish plain error as to of the fans one is clear obviously he's entitled to the offense and he presented evidence as to that he didn't know or didn't think she was eighteen but even present any evidence as to the second part and so all would be a closer question of whether in not giving the instruction it certainly wasn't clear obvious and the second thing the bear makes clear is that it has to be clear obvious that he wants to present the defense in there you had a situation where the entire case rested on the public authority decides it was the focus of the defendant's examination it was the focus of the da task force officers examination it was a focus of both parties closing argument that's not the case you know what mistake of age w his theory of defense for sure right the mistake of age was his theory of defense at trial right your honor he references it five times in closing i do not believe it was a serious thoughts if you look primarily in his or his argument today here's what  helpful to me because i didn't have a really strong argument on this point but his argument today is that he shouldn't have the burden it shouldn't be an affirmative defense that cancer has actually been applied lee overruled you want to speak to that yes your honor and that argument again is again under player standard and he can't does not over turn the what is really at issue there which is that yes if the statute to silence asked you scienter as to a particular element there is a presumption that science or should be video the supreme court made very clear that congress intended that twenty to fifty one be strict liability as to age and it distinguish twenty to fifty one which still producers those that are in the best position to  determine whether a victim is in fact a minor or an adult from those who are distributors or consumers that exception still applies if you go back even further to more set which defendant cites things in the fifty's more set recognizes there's always been an exception for the science requirement in the context of sexual abuse of minors i want to doesn't touch on either of those recognized exceptions and so it does not overrule campa you know i'd like to go back and in the us court of the question for guarding i'd like to go back to the affirmative defense and again to get back to whether he really presented this defense i think the most important thing to look at is the defendant's examination there is a hundred pages of testimony from the defendant over fifty on direct and fifty on cross and there are two instances in which he indicated i assume she was eighteen or nineteen thats it she doesn't asked about it once you know what she looked like i thought she looked nineteen or twenty and then asked again what i perceive you have to observe her frequent you know she looked like she was the same age as my girlfriend that's it that's two percent of the entire time he was on the stand and so even if it was a minor theory of his defense it certainly wasn't his main theory of the science and therefore doesn't have a new theory of defense why is man through the fence with this wasn't my girl i had nothing to do with her that i just  just met her this was just a trip by just yet this is the first time i met her isn't that mistake mistaken and i'm not sure what the defense theory was of that was a mistake and i don't think it was a mistake of age it was literally i have nothing to do with this girl i have nothing to do this girl why would even bother to find a whole she was she's just my he argued that he didn't know how she was he thought she was an adult he never argued he made any efforts to ascertain her age and he actually argued the opposite since this was just seemed like an adult  believe she was a yes but he never said anything to satisfy that second prong about the facts which was that he made any effort to learn canter the canter from a defense the jury instruction that he claims he is entitled to i three times for that opinion it called the saw theory of the defense that's just not what it was here even if he had you know put on enough to be an tout the offense that he asked for it wasn't clear obvious he was entitled to it and it certainly isn't clear obvious he was presenting it when you know it just was not an issue in this case was litigated at least if not litigated heavily what they thought about was you know this was thomas girl i'm just a vain twenty one year old on a road trip i didn't take photos i didn't know she's going be prostituting herself and yes he didn't concede that he knew how old she was he didn't focus on it not enough that the district court should have been required to read his mind and potentially go against his trial strategy what the what defense asking that is false to prove count one hundred fifty nine hundred one asked the age we could do it three ways he knew he recklessly disregarded it and most importantly he had a reasonable opportunity to observe the victim the second circuit and this court in polls have made clear that under fifteen ninety one c the reasonable opportunity to observe standard turns that statute into strict liability as to age and here there was no meaningful dispute that  disregarded the reason why opportunity standard and found reasonable doubt as to age just is not likely at all what really happened here is that they held thomas responsible for sex trafficking of a minor the jury knew that homicide already pled guilty to that offense and they held dickerson responsible for this child pornography which was found on his phone on his computer in the t v stand in his home and had been posted on advertisements not for c n n but for his girl daniels the second point your honor as to that is that the defense counsel talks about the elements the real likely scenario here is elements three of nine hundred fifty one the defendant knew or recklessly disregarded the fact that c m was going to be engaged in commercial sex acts that's where if there was an area where we had issues proving beyond a reasonable doubt that's what existed it was undisputed that thomas had pled guilty a lot of times it was undisputed that c m was not dickerson's girl and it was undisputed that he wasn't there when she's arrested for solicitation that's where the issue was and the final point i'd like to raises there is a massive difference between a defendant establishing reasonable doubt as to an element of the offense and proving by clear and convincing evidence that he did not know and cannot reasonably have learned and on that point all you thank you i'll be brief you on the first issue i disagree that there's an obligation of diligent that's occasion to obtain a canter instruction look at eight point one six and the question becomes undertow is there sufficient evidence in the record to support the giving of instruction or not to give me a directed verdict the questions we get a new trial and what he says a woman is has a ray of tattoos on her chest and tattoos on her arms and should be used to be like an adult that's enough when she's the cops he's twenty one she's a lot of evidence about her lying about her right so so so was a reason why he didn't learn her raise enough of the evidence to get them to get the instruction but i want to go back to why cancer is wrong in the first place exciting video says it is no knowledge requirement for twenty two fifty one but against and a lot of stations that doesn't answer the question whether there's any student or we can go down the ladder so just because there is no knowledge doesn't mean mr dixon didn't have to be at least reckless because it is reconciled with a lot of sense counsel do you agree that if we can't or don't find cantor's sting whistle that you lose now then you would you wouldn't either if you don't believe that