morning and welcome to our week of oral arguments in jacksonville judge grant and i are so pleased to have with us this week judge ashley royal from the middle district of georgia judge a royal is a very experienced and highly respected judge in that district well really all over the place and so he doesn't get paid any extra and he's got a big docket at home so we very much appreciate his willingness to help us out this week counsel we have familiarize ourselves with your cases and so we urge you to get to your most important arguments you will not waive any arguments in your briefs if you don't mention them in oral argument which gives you the opportunity to really hit on what you think are your best points we have our lighting system in that we ask you please observe the yellow light will come on when you have two minutes left in your allotted time and then of course the red light means you should stop unless where you're in the process of answering a question from the court appellant please try to limit yourself in rebuttal to arguments that your opponent has made and not raise completely new arguments all right let's begin st all called the case of united states versus brandon phillips zander's please the court i'm barbarous anders i'd like to reserve five minutes for rebuttal i represent brand will focus my argument on count one of the indictment and that's brief in issues one and two the government has conceded that count three conviction and sentence on count three must be bad we're going to accept that concession to start let's look at the statue any person who employs uses induces entices or courses any minor to engage in and then there's a with intent that such minor engage in any and sexually explicit conduct for the purpose of producing a visual depiction if you know that the depiction is dollars does not contain a c and her requirement as to knowledge of minority next we want to compare this statute with the end i meant brandon phillips didn't knowingly mr phillips is currently serving seventeen years in federal prison a question as whether his conviction is based on the grand jury indictment handed down pursuant to the  amendment of the anonymous dates constitution or whether it's based on the district court's instructions to the petit jury i submit that it is the nd which this court needs to correct the instructions given by the court mindon the indictment and more importantly mr brennan philips arena law and when the indictment of the key question here is whether the word knowingly was mere surplusage in the language of our cases or whether constructively amended the indictment so would you address that please i would so diverse as your president but confirms that the statute doesn't have this knowledge of age requirement how and and in that case the government also use knowing we would find that out in footnote to that the government did include the omen and the court says it's mere surplusage what else footnote says we note moreover that the government's inclusion of the word knowingly in the indictment was mere surplusage that's right why isn't that controlling here because if you keep reading for it continues on and says however there was no reliance by i never said one that element and the present tyson have his defense and that's the that's the critical issue did mr brandon phillips rely on that  inclusion of the element in his indictment the verse i did not in cancel the airy the defendant relied entirely on the defense that his conduct was not willful but that's not the case and here right well i disagree with the government's argument on that the government says well i had other things to say when he took the witness stand and then the government proceeds in its brief to simply summarize every word that mr brandon phillips said re read that testimony he continually said as he did not know the age of the person who sent the video is it but does it need to be his entire defense or is it sufficient that he relied on defense relied on that were example do you recognize these videos no i don't think lee remember watching these videos do you remember watching the videos at all he says no and then he goes further there are other excerpts from his testimony in the transcript where he denies receiving fundamentally denies receiving the are asking for days and it certainly seems to me that that's a part of the defense and the case  keep in mind if i may his defending three counts count two in count three count two is the receipt count three is possession the judge instructed the during the government had to prove th knowledge of the an agent so he's defending more than one thing just like can't see larry is defending multiple counts the only count or there are two counts and can't see a larry of money laundering that the holding relates to he had other bank fraud charges and other charges that he used a good faith defense on that were not affected by the hol two that says if you rely on it then it's not mere surplusage and the government has the burden of proof that they played it they prove it so i think that it's interesting and diverse and some of the other cases some of these things do come up pretrial and there could have been a motion or you know there are various stages at which the issue could arise for whenever reason and mr phillips case it cites excitement video the dict and excitement video and he's right as far as it goes he's saying as i'll look at that case you gave me which is consoling arry he never comes back indictments obviously we've got a lot of cases from the supreme court about how to interpret the word knowingly and statutory contacts and this may actually in cases related to child sex obviously knowingly has often been interpreted narrowly how can we be sure that the how do we interpret the indictment to figure out what knowingly even applied to thank you for writing that that's issue two i don't know that knowingly is interpreted narrowly necessarily statutes are normally interpreted narrowly we have a construction of an indictment and i believe it is excitement video itself that says when you have the element  it modifies all of the words following that element so i knowingly modifies all those verbs which are reduced to cause my are trying to judge and the direct object and that's the grammatical argument that comes from excitement video is the only grammatical way to read it if you say you knowingly cause the natural question is caused what caused whom and so i think that that's the no way to read the indictment as it would naturally fall and he's charged with knowingly causing a minor to produce these videos there are some policy arguments behind because of what the producer of child porn or pornography might know or not know some of those cases exist prior to the internet of course but thank you my time is up morning your honour's may please the court my name is zach smith and i'm here today on behalf of the united states the question in this case is about knowledge the knowledge that mr phillips needed to violate eighteen u s c two thousand two hundred and fifty one a and the knowledge that the government was required to prove that he violated that statute and judge prior to go back to your question about diversity the government's position is that that question begins in this court's holding in diverse  that case is on all fours with this case and it but in that case the defendant didn't challenge the interpretation of the indictment that's true your honor but if you look at the the footnote there's no dispute as depiction in that case in diverse so judge prior the way the indictment read according to the court is that the defendant didn't knowingly employ use persuade in ties or cause a minor to gauge in sexually explicit condom similarly in this case the way the indictment reads is that the defendant did knowingly and intentionally use persuade in dus tyson minor to engage in surplusage if a defendant relies on eroni asli charge surplusage an indictment it's the government's position that the no the knowingly and intentionally language and where statute does not contain a men's reya a court will read one into it typically knowingly and all the government did in this case as in diverse so is place the mens rea in the indictment the mens rea that mr phillips had to knowingly intend to entice a minor to engage in sexually explicit conduct it doesn't change the requirement or modify that he had to know that the individual in the depiction was a minor in many ways two thousand two hundred and fifty one is similar to a statutory in a statutory rape case all that needs to be proven is that the individual intended to engage in the actual kind not that the individual knew the person with which using gaging in the conduct was a minor similarly here all the government had to prove was that mr phillips intended to entice knowingly enticed someone to produce sexually to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct so how do we get to that reading do we get to that reading with grammatical principles or do we apply something like a rule of statutory interpretation and that since we know that the statute doesn't require knowing the did does that in fact our interpretation of the indictment in any way i don't think it does your honor and the reason it does it is that in indict this isn't a statutory construction and there are differences between the way a court construction indictment and the way  and where appropriate the court should construe the indictment to be consistent with congressional and as the supreme court stated excitement video in this court clarified in diverse so congress did not intend for the knowledge requirement the mens rea or requirement to go to the age of the person being depicted congress intended the mens rea or requirement to go to the fact that the and i'm having trouble seeing how someone could accidently use persuade induce or entice and seems to me that's what your argument is right it can't be accidental but but those on point as well as the th circuit pattern instruction eighty two dollars which in the notes in comments explicitly states cites diverse so in states that the age of the person being depicted is not  elements is that mr phillips knew that the video showed a person under age eighteen i engaged in sexually explicit conduct so the jury made a finding that mr phillips had knowledge believe under this court's decision in united states b adams even though that argument was not briefed by the government the court is certainly free to consider it and it's the government's position that the  relied on the presence of the word knowingly in the indictment and i think he did here and why would it matter whether that was a defense or his entire defense well if i can judge prior to point i think he did so  began that section saying we do not agree with the government that the district courts use of the word willful in defining the term intentional renders the error harmless and then goes on to talk about this having been mincer cancel areas entire defense correct your one is producing child porn in essence count two is receiving and possessing it without producing you look at top porn you can say i know that person is a child so the question is whether he knew the person was under age person when the person was enticed or induced sin the porn so that is the distinction why it's not harmless  tez case has a lot of facts that are not in our case they address all of their issues up front and pretty much the court ruled this court ruled that there was no reliance it doesn't really come out and say it that way because it doesn't ary but that's because the parties didn't bring that up there was clearly no reliance in that case as to whether or not it is was his whole the fencers entire defense the issue of i didn't know everything the government almost made charo through its cross examination and through its closing that there is some sort of negligence standard that what mr phillips did was negligent and if we want to go there then we need to go there on a case that really brings that issue before this court because the whole line of cases from our set me to staples years sentence or behavior that the government did not prove was evil or bad intent and that is the problem the crime itself is evil if you know that you're inducing a minor to commit the crime so what's happening here behind the scenes is a shift in the statute or in the law regarding this kind of case however we can focus strictly on our case here we can focus strictly on what happened in this case the rule of law that would like for you to the area you don't need to go the extra mile you certainly don't have to excuse the government when it makes up pleading decision the government is a big  interpreted that child prostitution statute which says whoever knowingly persuades induces and entices or coerces any individual who has not attained the age of eighteen years to engage in prostitution and so  and we interpreted that statute under the principle that the common law establishes that under for child sex crimes that harm children sexually the mens rea is typically not held to include the age of the child why would we read this indictment any differently than we read that statute st of all this indictment says knowingly and intentionally on disagree with the government that there is some sort of lesser standard because we  also used intentionally there hasn't ever been any case from the supreme court that carves out child sex cases as difference they have that argument and excitement video but as i rule of law if you wish to carmen is an exception child six cases whether it's trafficking which sounds like that was a trafficking case or the internet enticement cases this is not the case to do that and this is the case to continue with your precedent follow story decisis you will note in most of the child six cases the facts the is particularly where the law enforcement is is is really the person on the other end of the conversation and almost every single one of them long for smith clearly says i am a thirteen year old female or i am i thirteen year old male so that i don't have this dispute and that's what the government saying it did well we're trying to keep this dispute out of this case by adding knowingly and intentionally justice  the court's decision i could see that argument being taken in if we retry this case in a jury instruction or preacher argument judge starr this indictment out is unconstitutional it doesn't contain  into a requirement then we all get together and brief that for judge will he gets a chance to look at everything we rule on that but that's not what happened in mr phillips is case and my argument is that you should reverse as to count one and let judge change will make that argument of mr i mean the government could always really submit a superseding indictment it may not be the end of the story we don't know what's going to happen on the remain on but appreciate your time thank you miss anders i see that you are c j appointed and we appreciate your assistance to the court thank you very well done arguments by both sides thank you very much