good morning your honour's may please the court carolyn wigan from the federal defender's office for mr clemens and i am going to try to reserve five minutes for rebuttal your honor so i know there are many issues in this appeal and i will start by just addressing count one and count one mr clemens is charged for a trip to the philippines for the purpose of having illicit sex your hon that trip occurred in charley between thailand and the philippines we all hand in the united states that was in the pardon me it was planned when he was in the united states he began contemplating it in the united states he did not buy an airline ticket he e mailed with directions on what he wanted to do he e mailed someone in the philippines trying to set up a sexual encounter but he never planned to travel between the united states and the philippines he said someday i'll make it to the philippines sometime this fall hopefully i'll make it there but he didn't actually buy a plane ticket set up date set up any plans for true looked like he was intending some point end up in the philippines and it looks like yes and we don't dispute that but the question is was the travel the crime here is not the government could have pursued illegal sex in the philippines for this trip it did not do that it pursued the charge of travel with intent with the purpose for the purpose or illicit sex we maintain that travel took place between thailand in the for an american citizen who travels in foreign commerce right and the charms of war and why are rabble from thailand to the philippines that's foreign commerce is an american citizen he travels for the purpose of illicit sex all the elements of the statute are there now you may have an argument saying yes but the in the white man said he traveled from the united states and they have to prove all the facts of the indictment my question to you is is that accurate you have to prove all the facts of the indictment supposing that and said he travels in the united states wearing a gray suit do you have to prove that he also wore gray suit well  of in two parts not could i answer that question in two parts sure i believe the government and our side are in agreement that foreign commerce has been interpreted under that statute to me travel with a nexus to united states we do not deny that a trip that is truly travel a vacation to end to begin and end in the united states you're constantly traveling during that even if you have layovers in multiple didn't really raise that issue so i apologize that i'm not that i think the weingarten decision says it best but they talk about case law and statutes interpret foreign commerce and what can congress do under this power for foreign commerce and they say it it means a tie to the united states in a foreign country what are you contesting that he didn't set up the whole plan to have sex with little girls in the philippines while he was in the united states country in the philippines so what's your definition of travel under this provision and what case to rely on to support it i think jackson is the clearest case we have on the meaning of travel i think travel can be obviously from the united states problem foreign commerce can be from the united states to a foreign country it can also be a vacation that is or a business trip that is going to start in the u s it can the length of time is not particularly important but it's a journey that will start and in the united states it's not a one way ticket is it your position that when he went to i guess is thailand that he intended to live there permanently certainly that he intended to set up residence or domicile there there's not a lot of evidence did he do anything to give up his residence his residency in the united states well he he moved there he accepted a job with a thai based company that was he was there on the front thirty day and then ninety day this is correct which is what one would get if one were coming there with permission to work in the country or any evidence what he would have had to do to get a permanent or permanent residency and in thailand well your honor  agreed he was residing in thailand starting in september of two thousand and thirteen and i think when we look at as jackson says what do we normally mean when we use the word travel we mean you're on a i trip of a duration and you're coming home  and we know you are and we also can look at the pepe case did he return to united states at all during the time that he was he was in thailand he visited a couple of times we see united states citizen ye and then you had four points for the child being well you have to count each of those three victims under three separately for united for unit reasons so it was seven years old  seven year old correct and then there's we dispute paragraph fifty that for level of a computer and the role of just that's to roll adjustment is t paragraph fifty nine that that's a sexual act or sexual contact the district court found that that was a kneeling nude child play nine years old in front of another victim with a tongue extended toward her vagina right so right let's just so you're arguing that that's not a sexual act with no parent there's a statutory definition that makes pretty clear there has to be contact and there's not in that picture and that's use of a computer in a role adjustment right and then so you even so it's still going to be a separate unit even if you take it down to a forty right for a nickel correct and then the ten year old has all the same adjustments right that would i can see where that would land at forty and be a unit ok so that's three units so if you group you still come i haven't gone that far with the analysis so i'm not prepared to but ok i accept that for the sake of argument and then you complain about grouping not grouping four with three so we still come up with three and a half three so you're still going to have forty three if you're at the forty six and one exceptions you're never going to get more than two points and that's forty four while you're on obviously i'm hoping to four with with the others you're still going to have three in a to forty two i'm hoping that we get reversal on account for its part of it ok and i think if the guidelines were wrong i think that we send it back down even if you uphold all the counts which i think i have strong arguments but that just takes away a unit if you get a reversal in for correct you're still a three and a half units still saying unless i'm missing something still saying you're going to be at a forty three ok and then if you get two levels down from the what three for acceptance you go down to forty one dollars that's not going to happen well that's just if it does you do not ever get more than two ok i'd like to come back to district court and argue all that if if you agree that there were serious errors made at sentencing i don't think they're going to matter that's my point well during i i would like a shot at it if if you were to create that's your job you've done a good job  st of all he either admitting it as to count thirty five and six or did not deny any of the facts in this case he he had no benefit to himself allow the government to take over his his e mail account and that allowed for sting operation which was the only way they stopped the two women in the philippines the only way they found the victims who were then important witnesses against him in his own case so i think that his help to the government at his own expense was deeply discounted and he should get acceptance i think both of the trips in care described in count one in two did not have a nexus to the united states or were not specific enough and as to count four i think this is a situation where congress has said if liability is going to be based on the offer to get custody that offer has to travel in interstate or foreign commerce mr clements organized someone in the philippines to make offers that are these three little girls to pay for them to be available to produce child pornography which is a serious offense he's going to do very serious time as you point out regardless of what happens with this appeal but i do think that for count four we don't have the offer being made in our state or foreign commerce and i will try to reserve my time unless there's any questions i can address now that's defendant substantial rights in this case for that i don't respect the guidelines they unless only the most unusual course could affect the guidelines but it's the government's position that the district court did not abuse its discretion and withholding the two points for acceptance that the images constituting are characterized as sexual contact which is an alternative basis for application of the two evelyn hanson though those are those images  over whether they satisfy the specific statutory definition for sexual contact the images that the government offered in its motion to supplement the record or images of the same victims and that are undeniably satisfy the requirements for application of that and what they presented to the just record at the time of sentencing they were if they were included in discovery or honor and the just that's not my question to where they presented to the district court at the time of sentencing yes or no they were not present or judge but did the probation department have them when they calculated the guidelines yes your honor the probation department did have them and the on st i'd like to address cal for the buying count in that count your honor the jury was presented with overwhelming evidence sufficient to for irrational jury to have convicted defendant on that count as counsel pointed out a obtain custody or control of a minor with knowledge that as a result the minor will be used to produce images of child pornography in this case your honor the record contained many multiple instances in yahoo servers through the united states and back to manila in those offers the defendant specifically offered to otherwise obtain custody or control of the three minor victims at least  clemens directed his coconspirator to pose the victims and he required that they appear in very specific ways he sent sample images for ms tended to match those child victims and posed them in accordance with he old the way their faces looked the way their expressions were he controlled how their hair look he controlled whether their bodies were all oiled or not and what clothing they wore indisputably the record establishes that he obtained control of those commerce to take personal custody and control over the victims in september of two thousand and fourteen for example from the united states while visiting his mother or back at his mother's residence a residence that he frequently shared mr clemens sent a message to his coconspirator in which he stated this is that supplemental excerpt of record two hundred and twenty four dollars i would like to do more photo shoots with nicole if she agrees i'm going to clean up his language to sex during my next visit i want to have a photo session with us together having sex for my collection three days later the defendant paid his coconspirator to lend handed five hundred dollars in the message supporting that payment he wrote quote in return we get nicole for a photo shoot and sex with me for three days that's it essie are two hundred and twenty six dollars on october th two thousand and fourteen the defendant confirmed that the five hundred dollars he had paid a month earlier was so that he could personally take custody and control in the cold he wrote quote i have her for as long as i want it might be a couple of weeks and she will not be able to go home at night she stays with me that's it essie are two hundred and sixty two on the same day the defendant offered to buy angel another  victim for sex in explicit photo shoots he wrote once i pay the money and full angel is ours to do as we please i will be it will be more than just sex with her i will need at least seven more photo shoots in the next few months that's not so that still gives a level forty two dollars even if you take out the pictures are the other two the ten year old  require that the offer be transmitted in communicated or transported by means of facility going to dinner for commerce or in or affecting interstate or foreign commerce by any means and the government argued both at trial and argued today that the offers that mr clemens sent to his coconspirator were supported by and caused financial transactions from mr clements bank account in the united states to through western union to pay mr hand in manila in that contain sufficient evidence for the jury to have convicted the defendant as the court pointed out this superseding indictment a nd superseding indictment did allege that the defendant traveled from the united states to manila through thailand and that that allegation accounts for the holding of the nd circuit in two thousand and eleven in its opinion in weingarten although this court has not required a territorial nexus between the united states and travel in foreign commerce in an abundance of caution the government both alleged and proved the territorial nexus in here that territorial nexus is demonstrated in chats in the st eighteen pages of the government supplement a supplemental excerpt of record those chats chronicle the defendant's communications with a separate criminal partner neely a cruise between approximately august st two thousand and thirteen require yes ok and in this case there is abundant evidence of that territorial nexus in the form of those communications i referenced and you tell me why under the statute a territorial nexus is required the statute is an extraterritorial apple i haven't mind this an american citizen who lives abroad and earns money and doesn't reported on his i r s return is committing nexus of you know i say so in this trial well here your honor the statute punishes its languages it punishes a u s citizen who travels in foreign commerce with the purpose of engaging it was essential cravell between thailand and philippines and foreign commerce the jury instructions in this case instructed the jury that travel in foreign commerce means travel from the united states and on the basis that we had a real and it was during struction see in this case your honor yes and on the basis of those instructions we the government offered sufficient ever surprise that this was trouble from united states so the argument the counsel made on behalf of our client was that was that he traveled from the from thailand to the philippines not from the united states what you what your definition of travel and under the statute and what case do you rely will iran or the the government contends consistent with cases in both the th circuit and the rd the rd circuit that if  any united states citizen forms a provable intent to travel for the purpose of engaging in illicit sexual conduct in a foreign country he's guilty when he boards that means of travel and leaves the u s territory that's the  c is where the sex occurs not as in two thousand four hundred and twenty three b which is where the intent is formed similarly a case that was argued below is breed amiss the th circuit case in that case the district here the district court cited the district court from the northern district of texas is opinion in that case in that case the defendant left dallas traveled ultimately to cambodia but st made three a to at least two intervening stops business stops evidence of the defendant's formation of his intent to travel for that illicit purpose at trial and so the district court where i do most our cases seem to suggest that one could leave the united states rabble to thailand  analysis from residency to travel and and inquiry into the meaning of travel to travel means what it says it means as a person permanently resettled from the united states in a foreign country or evidence to otherwise an were both there were both his acts and his statements st his acts he moved to thailand he was not he was there on and on a visa that required him to leave st every thirty days later every ninety days he did he comply with that piece and left frequently he was gone from he returned to united states st approximately eight months after he left in september of two thousand and thirteen he spent a month in the united states in california at the res where he was later arrested in july two thousand and fifteen after he returned from that st visit he returned back to united states four months later he went back to thailand and returned to the united states seven months later his regular returns to the united states established cadence of activity that indicated his intent to return to the united states and not to permanently resettle moreover his words establish that in april two thousand and fourteen the defendant ordered a computer to his home in sacramento a written e mail criticising the manner in which the computer was complaining about the manner in which the computer was delivered he wrote i ordered a computer to my home he didn't say my mom's own the home that i stay at when i'm not living in my permanent residence in thailand he wrote my home interpretation of the meaning of travel in pepe mr clemens continued to travel in pepe the defendant had been living in cambodia for five years returned to united states for a brief trip and was later prosecuted for expressly noted that the government if it was able could prove that the defendant was still travelling after five years if he could offer facts sufficient to obtain a can a conviction those facts were offered in this case and the jury both saw them and they were argued in in closing in it's in the record that the defense argument was this isn't travel the intervening stop in thailand breaks the of the territorial nexus the jury rejected that argument and it did so on the basis of the evidence in the its discretion that standard sixteen is extremely high and here that the record supported the district court's determination that acceptance was not appropriate clemens argues that this court in appropriately relied on his silence or his unwillingness to speak about incriminating statements during his interview with probation but that is not what the district court did the district court considered the government's reference to not claim and silence but what clemens did say what he said about his acceptance really was this series of self serving argument for acceptance and the government's primary argument was that the weight of the evidence the nature and circumstance of this crime were so serious so severe that even in light of the defendant's very modest cooperation his his his willingness to offer his password to agents after they after they asked but after some some time passed from his july two thousand and fifteen arrest that that that effort was outweighed by the seriousness and gravity of the offense that is not an abuse of discretion so off the top dollar the application to us one dollar would not have altered the guideline calculations that is the defend it was not entitled to the three point reduction available under two x one point one because as the provision into x one point one b two states if a coconspirator or the defendant completes all the x believe necessary on their part for successful completion of the substantive offense the three level reduction is not available here there was sufficient evidence in the record that m completed all of the portions of her part of the conspiracy for both counts that this guideline would have applied to the conspiracy to produce and the conspiracy to travel with the intent to engage in with sexual conduct that is on one hand concerning the production conspiracy she certainly made the images in conformity with the defense instructions and sent them to him and with respect to the conspiracy to travel she followed every direction that he gave she used the computer that he paid for she used to come the camera that he paid for she identified victims consistent with his request when she identified victims that he wanted further photographs taken out she took those additional photo sessions and when he instructed her to find a place for him doing gauging this illicit sexual conduct  she said to him i will do that and she set whether she did that is not necessary but she agreed to do that and agree to take additional steps in furtherance of the conspiracy all those facts are sufficient to for the district court well it in so far as in so far as the court did not apply to x one point one it may have been eric clearly applies to the to the conspiracy counts the but it is not substantial it's not  count i would encourage this court to look at its own decision in coralville which i cited in the opening and reply briefs in that case a defendant reaches out to co defendants and says please extort this person who lives in phoenix the co defendants travel to phoenix and they go ahead and make the extortion a threat entirely within phoenix and that in that case this court recognize the extortion the threat is not was not made in interstate commerce yes somebody asked co defendants to go do that in within a certain state but the actual threat was made entirely in trust eight hear the offer which my counsel has talked about many of the appalling offers mr clemens made they were all asking lion within the philippines to make offers and in fact all the offers ended up happening face to face in the philippines so that's our position on count four with respect to this issue of travel which amended to four dollars to three dollars c again and now it says if you travel in foreign commerce or if you reside temporarily or permanently in a foreign country and have  is criminalized so i think it's it and then it goes back and relook at clark and says oh now we understand that travel means something differently than residents because congress chose to amend the statute so i would say you would have to say mr clemens was at least temporarily residing in foreign in thailand i don't know he may have had plans to permanently it really didn't get addressed below but certainly was temporarily very in an apartment with a job that was required jumping through quite a few official hoops to obtain and so i think what the district courts there was it looked at the question of well can two months could a person be in trouble for two months i would say yes a person can be in trouble for two months but mr clements was not in trouble for two months he was a resident of cambodia and i know there is evidence that he was contemplating this trip in the united states but i would point out the crime is actually travel with intent it's not he was contemplating sex while he was in thailand he's continuing to talk to her and it is for two months this purpose which started and you know it just continues well he wants to get to the philippines and have sex but his purpose in traveling to thailand is to move to thailand take up residence start a job then he planned another trip now married he was planning it already had another was that i did he testified  did not so how do we have any information about his purpose well there's lots of text messages that came into evidence between himself and the person in the philippines  so for that reason we know he's thinking of this trip but he is thinking of a trip between a foreign country and the philippines and we say that's not enough for counts wanted to thank you