one three six one four seven united states of america birth doula he ferrar arguments not to exceed fifteen minutes per side mr mackler or pal choice punished for contempt and then the government chose to punish him again for the exact same act and that's double jeopardy mr fry was also prosecuted under an unconstitutional statute eighteen u s c fifteen ninety one  going to get into the law under underpinning both of those claims just a moment but i'd like to point out two porton facts just two that i think are very important to keep in the front of your minds first the court found that mr frost conduct had no effect whatsoever on  proceedings now their words there was no actual obstruction caused by his failure to testify at the material in this deposition and second it was stipulated at trial that mr provided all of the information he had to the government prior to this this contempt and then there was a second criminal contempt with regard to the deposition that's exactly right judge that's right and there is an attempt for second civil contempt and the judge refused to grant that second civil contempt the double jeopardy fair to say although again not knowing how that i'm not sure it would been possible for some of the same defendants who have come up again in some other way i just don't know because those trials again have not been set and still haven't been set yet but mr frustrated to judge campbell at trial i'm not testifying in the don case he made that very very clear and then case is a case involving a conspiracy approximately thirty people that's right ok so and then there are separate trials which are being scheduled for various reasons availability of defense counsel for the thirty different defendants and various other that's right and it bears emphasis that both this this court and the district courts have said that a material witness deposition is ancillary to the under lying proceeding for the words they're they're part and parcel of the same proceeding in this case they're very close in time as well mr told judge campbell i'm not going to testify if you don't trial then the government knowing the full scope of his contents no if they were future trials if there are thirty defendants knowing all the implications of that put him on trial a bench trial only indicting or only asking that he be tried for that for contempt certainly they could have argued about the thirty future defendants they could have asked for greater penalties they could have gone for felony content they chose to try him for mr minor contempt with all the facts out there the government got a conviction got a fo sentence and then i'm happy with that four month sentence indicted mr fry again when he simply restated at a deposition i'm not going to testify at trial it's i've cited the gates case because it's really very similar to a situation where someone is asked will you testify that soandso is a communist no i won't we testify this other person is a communist no i won't this one no i won't that's one act of contempt it's not tenet were the questions i know there were eleven questions where there were eleven different you know what about this person the result would have been the same suppose that suppose that the total hypothetical is that somebody is in drug dealing and there are ten people in the neighborhood who are involved in drug dealing and that's what they wanted to testify on and that's what eventually said i'm not going to testify so it doesn't quite match hypothetical i think it really depend your honor the the second i want to some time to talk about this because count three is a different argument to a large extent section eighteen u s c fifteen ninety one d is simply unconstitutional it's unconstitutionally vague as written as you all know the language makes it a crime to in any way interfere with a sex trafficking defined as voluntary not by mistake in other words it's hard to come up with an example where it wouldn't be voluntary you know i guess if he was under the influence of drugs and you know what he was saying it still doesn't get to know him and that would include some sort of corrupt intent or some kind of wrongful intent and every single case that is examined and obstruction statute always whenever there's a challenge to it's constitutional in terms of vagueness the answer is always this is ok because it talks about corrupt intent or because it says wrongfully there are very small number of obstruction types that use word the same as this but there are new cases to my knowledge interpret in that language i don't believe the government can point to any either it's so broadly based that in fact it implicates the first amendment in in a variety of ways you can imagine a situation where a newspaper would print a story telling law enforcement efforts to enforce sex trafficking or law enforcement abuses or law enforcement techniques all of those things would clearly in some way interfere with sex trafficking unfortunate and cannot possibly be enforceable that the statute is just just plainly well doesn't apply to that section that is what i'm saying judge i would say that even if the word knowingly applies to that section because the way knowingly was interpreted or interpreted for the jury by the judge as just means voluntary it would still not pass constitutional muster but the government has conceded in its brief i believe that this is that congress did not assign a knowing element rather because it was silent as to that it was appropriate to assign a knowing element respectfully disagree it was not proper to assign a knowing element would only be proper to sign a wrongful element or a corrupt element which is the phrase normally used even if you can get past that facially unconstitutional point then you can go on to the question about whether or not could normal person understand was prohibited will frankly know as i've said there's such a broad scope of conduct that would be prohibited doesn't encourage arbitrary enforcement and this is an example of where does this is an example of someone who if they did anything they committed contempt were punished for it already to then say that that act of contempt constitutes obstruction of a sex trafficking investigation is really just a way to impose a tremendously disproportionate penalty i mean that that's punishable by up to twenty years under the guidelines and so it does lend itself to arbitrary good afternoon i'm very intense and i represent the united states in this matter to answer judge moore's question to defense counsel if there were ten different drug defendants in this case separately indicted separately and you had to call perhaps one witness to each ten the same witness in each case the government would submit that that would be ten separate contempt violations if that each case that individual elected not to testify that you had sex with half the column for each case because the defendant harming the witness being a defendant would have the opportunity to testify or not testify you would know to you actually call the witness to the stand or outside the presence of the jerde determine whether they would testify but the difference between my hypo and and this actual case is that there was a linkage which as i understand it was the conspiracy count that the particular thirty state defendants were all linked in this conspiracy and that they were charged originally in one indictment right and then they were trials were separated because of convenience reasons another reason and i write about three of the overview of what was happening here lesions so so why isn't it a double jeopardy violation to say that the government can go seriatim and charge this defendant with contempt when he has already announced he's not going to testify as to any of the defendants in the particular conspiracy there's two bases here first trial number one which the government refers t two criminal case ten c r two sixty which is the underlying original trial that related to particular defendants contrary to defense counsel's argument the united states did not move to sever any effect is because you then have to go through another trial with this with the other defendants thus the witness could choose to testify at that time at a later date the fact that you refused to testify am a particular date perhaps being held in contempt might change your mind also that was a civil before we get to the also so the yates case would seem to be on point with this situation in that in yates the supreme court as i understand  it you can't ask eleven questions which are so into a communist was so into a commie this was another person the communist was another person so why isn't this case just like the yates case in which case there would be a double jeopardy violation because the refusal to testify was at separate proceedings related to separate defendants in in the matter additionally they were originally suppose then the case that we have in front of us is the deposition in a case involving potentially some subset of the defendants in that case right  could there only be one contempt riza be say the seven defendants in that case were could there be seven contempt in relation to the deposition of september two thousand and twelve as to those defendants in those future trials in the united states outlined the future trials at the time of the deposition so there were there were named defendants that were the that the deposition concerned yes  so would there be a potential for a bad government to separate a trial a conspiracy case of thirty defendants and seek to have thirty separate i would submit not to be facetious your honor but the government i've find it impossible to believe that any assistant would want to sever their case into thirty separate trials or even two separate trials in a case of this this as with these defendants it creates multitude of issues for the government to try to do that if there were going to be at least for part of trials right this is based upon the severance it could be up to seven trials of the defendant in relation to the least two of those trials had no test one in the united states which was troubling before the deposition for that stated that he didn't have any information so share with that trial but i has if it played out that way now the deposition was to cover all the future trial so therefore one proceeding for each of those future trials so i think the deposition takes care of that that you've been called at that person for that trial but you don't call them anymore ready to drive the united states could call the witness what the effect is if the witness from fees is to testify would be something to be determined at a later time could it be a different charge in contempt could it be another fifteen nineteen one violation or fifty ninety one be violation that would be something that would have to be looked at there are other issues now with this particular yes you could yes and also judge moore in relation to your previous question there is the first trial with judge campbell which was the result of the march through may trial trial number one was under rule forty eight of the rules of criminal procedure and it was an indictment in that case i think that's a distinction also whether or not it's proceeded for under rule forty eight which is the contempt powers of the court which the court then has to sign requested the united states proceed judge campbell when refused to testify at the deposition referred it over and said the united states can go get an indictment if they want to but it didn't refer questions suggests that there could in fact be multiple contempt for the same basic refusal to testify against this group of defendants and it's only happened stance that there was  case and now the second case which was the deposition being only two but that there in fact i think your answer suggests that there could be some more down the pipeline if there were subsequent refusals and other trials i future because he was called to testify and the future trials that's what the deposition covered if you take trial number one he was only testifies to those defendant to that particular trial any testimony had given any have to call it so any trial if we want to try to introduce that testimony we have to make the attempt how the witness now does it become unavailable because therefore there's no issue with contempt because he's unavailable as a witness and therefore even under crawford his grand jury testimony now becomes admissible but those are open questions for the future but as far as this particular case is that double jeopardy is to the first criminal contempt and rule forty eight for the refusal to testify at a trial related to specific dippin the answer is no the united states minutes if he were called in the united states attempted to indict the defendant for contempt again in the saying case related to the same defense perhaps there is argument then that it would be double jeopardy but at this stage there is no such hard with the united states minutes to report it was also dealing with the question of statute in the indictment having to do with the statutes that are cited bad the defense counsel in relation to that argument all have written into the statute the wording to corruptly or willfully but here is the statute was silent as to the intent and therefore knowingly is the proper charge and was properly given that the district court i guess i'm curious about the intent element with regard to mr for in the sense that when he refused to testify for whatever reason how was he to know that he was in the process of obstructing prosecution or stroke obstructing the flow of the case or  enforcement this particular statute that you know i mean like if somebody is going to do something wrong like rob a bank they know that's wrong if somebody is going to commit a crime they basically know that they're committing a crime but here in this case he simply refused to testify at the deposition and yet he got turned around that it was facing an obstruction of enforce ment of this particular statute how was he to know that that would be a consequence of failing to testify the defendant knows why he's being called to testify what the subject matter is that he's being called to testify about which was sex trafficking so it's not unknown to the defendant what the investigation is it's nominate a i've got just situation that you didn't know we were looking at this and we've called you in i'm familiar with you so he knows why his testimony wanted by the united states he knows that he's not providing that he knows that we have to call him as a witness at the trial we don't have that option all the united states would submit that persons within the united states understand what the purpose of a trial is is to put on the proof to attempt to convict an individual of a crime and that by refusing to testify that you are withholding that information that could be used to convict an individual or perhaps from the defendant's standpoint to help acquit the individual so it's not always just going to necessarily be based on the government's desire to have a witness testify so from that perspective denounce it snit's nodes and it's not that  ambiguous as to what his actions were and how it affected the obstruction prevented in the consequences of a potential twenty year offense usually more serious the consequence the more involvement or the more illegal activity so to speak and i guess i'm just a little concerned here about the fact that someone decides not to testify in a deposition and all of a sudden provides the reports up to life in prison and they're actually cases where individuals refused to testify to say that a murder trial i mean they were sentence to this same sentence as not the same as if they committed the the district court's going to determine the sentence in this case he received a fifteen month sentence so the argument that because the possible penalty for example under four one the possible penalties life imprisonment he was also convicted that does a person know that when they go into refused by that they could be facing up to life it's not a question of the you know what the penalty is do you know what actor taking and what the consequences are can you first see what the consequences of those acts are in this case the defendant knew what the x were and could proceed with consequences were thank you very much happy to answer any further questions honors i'll do my best to address some of the questions i think were left open i think it's actually telling that mr benson at least more than once indicated that the reason for the second criminal contempt was because mr fry still is refusing to testify in other words  the government was using criminal contempt as a substitute for civil contempt that's not the way this process is supposed to work the judge the parent doesn't deny that the judge had the ability and may continue to have the ability to hold m for the duration of the proceeding in order to compel this testimony perhaps there are certainly issues with that we would probably argue against if it happened but that's not what we're here today for the government is attempting to use criminal content as a persuasive method that is not a criminal contempt is for saying that you know these are all separate proceedings because they were seven and therefore can lead to separate contempt is sort of belied by the fact that this material witness deposition was going to cover all of the defendants and these people were trial and event which frankly never occurred because he was sentenced and convicted of contempt and that's why there was no actual effect in any of these proceedings that's also why mr for us doing there that day had every reason to believe that if he refused to testify he would remain in confinement and perhaps reason to believe that if you refuse to testify maybe he would be prosecuted again for contempt although it's our position you should have been confident that he wouldn't they still jeopardy he certainly could have been sitting there thinking congress has authorized a twenty year nowhere near years so the reason he was there is important because it goes to what he would have been thinking what he would have known and what the actual effect on the proceedings would have been which was essentially none because no one was ever deprived of any testimony again it was stipulated that he had provided all the information he had prior to trial mr vinson suggested that maybe double jeopardy didn't apply because the first one was a misdemeanor contempt the courts make clear that double jeopardy plies equally to non summary criminal contempt i've never heard anything to suggest that double jeopardy wouldn't attach  under the circumstances of a bench trial versus a jury trial or an indictment the government argues going to the constitutionality of fifty ninety one that the when the law is not clear or when congress doesn't attach a particular imply always appropriate to add a knowing element that is simply not the law the staples case makes it clear that is then a question of law for the court about what mens rea to apply in those circumstances the staples case that was a regulatory type offense in most of the cases where you have something akin to strict liability or regulatory type offenses they're certainly not offenses that implicate again freedom of speech and other lawful and protected conduct or have in this case you know a twenty year knowingly doesn't create enough of a it doesn't create any real criminal intent all knowing means at least the way the jury was instructed was a voluntary act the the enron case i'm sorry the it's not enron but the arthur andersen case reason why it was a purpose is in that case the jury was instructed given instruction that basically undermined the wrongfulness aspect of the statute and the court said that's improper because the because in order to hold someone guilty of obstruction there again has to be that wrongful element of that corrupt intent is the word i've been trying to use because that's that's what's frequently used so knowing isn't enough it doesn't get you to it to corrupt it doesn't get you to wrongful it simply gets you to acting voluntarily not even not even knowing of the possible consequences just your act is voluntary that's it's your best case support your position but there are new cases interpret in this law this language but arthur andersen is probably your best case it's going to look at the importance and that's a supreme court case the importance of requiring a degree of criminal intent in an obstruction case and if that criminal tent isn't properly emphasized to the jury then that your instruction is improper again that language in that statue was ok because it had corrupt intent but the way it was described to the jury was improper because they removed be a specific intent crime i believe that all the case law is referred to this is made it to content is made it something approaching specific content something far beyond what's really a strict liability crime the way the government is interpret it not even general intent there really calling it strict liability you acted bullish and only and therefore you're criminally liable that's what the government is saying it's it's notable that the jury came back and asked whether or not fear can negate the knowing element they asked and they were