the court my name is rene petra paulo and i represent the appellant edward help with the court's permission i'd like to reserve four minutes for a battle in this trial for communicating with an agent posing as a fourteen year old girl and traveling to meet that girl the government introduced under federal rule of evidence for zero four be evidence that forty years earlier mr hill's had sex with a thirteen year old sex worker when he was serving in the military in thailand and that nearly two years after this offense he communicated with the sixteen year old about how receiving oral sex from her ten year old sister the government offered this evidence a stance at least show motive and intent the erroneous admission of this evidence which was markedly one of the appropriate for a few purposes you don't think that's what play cracked it we would you also agree that at least in the child sexual abuse type of  then it's hard to draw a line between motive and propensity yes i agree and that's the problem in this case there's a complete overlap between motive and considered ok but if we are less than assume we put motiva side and if we if we focus in on intent how about if you take us through the three pieces of evidence that you contend were in appropriately admitted here and why they were not proper  locations ten were under four ok the question that the proponent of the evidence house to answer the question that's not answered in this case is how exactly does the proposed evidence in this case actual sex of the thirteen year old forty years ago and conversations about oral sex from a ten year old two years almost two years after the fact how is that evidence supposed to work in the mind of a jury to establish the proffered purpose of intent not appropriately admitted for purposes of showing intent when that particular as opposed to the the newsgroups and the other of that particular evidence part of that conversation that is appropriate to intensity but it was a nail exactly in doesn't that set it aside from the other two pieces set aside and what doesn't sound doesn't that make it different from the other two pieces of evidence that you were  that the conversation i have a g i f who's currently fourteen i haven't started to work with her yet my first visit is to jury could infer properly reason of lies if that was a reference to the supposed girlfriend who was really the undercover cracked  know i think would have to hang your hat on we talk about a case where a bad is it man is indicted for some minor crime a the openings they the defense opening statement talks about he's been denied sex for thirty years he's sixty you know he's a sixty three year old he wants to have sex with a young woman i mean that's it you know the poor things you know had this tough life i didn't read it that way here on her you know certainly if he had sex before that and with a minor that's isn't i'm incapable of having sex with a minor i would find that repugnant i'd be physically people in which case it would be proper to rebut with he had sex with a minor before this is i am sexually interested in her but i want to wait until appropriate and not heavily sexual relationship absolutely the evidence is sufficient to establish his intent but the question for four of four be isn't is the evidence sufficient it's can we have a sure conviction intent between the mike and misty evidence and the other two pieces of evidence that you challenge right because it centers on the girlfriend which the other two pieces of that when you when i refer to the misty and mike parts of the chat that i say that i believe can come in for intent are limited to the references to the girlfriend ok ok yes your honor but i mean you have at no point e from two thousand and thirteen and it says in order for us to divine intent from these prior bad acts we have to presume something about the defendant's character and that case it was that he was a drug dealer in this case it was the judge ruled on that when i was brought to the judge's bench and and you know defense attorney had had that for since may first judge dealt with it  prove intent without the inference that he was sexually interested in children before and so he sexually interested now that's character that's his propensity his weakness towards sex acts with children peter power in response to that we require the proponent of the evidence to explain how the evidence fits into a chain of inferences the chain that connects the evidence to a proper person purpose no link of which is  whether it was preserve the if it was preserved what was it but assuming assuming harmless or apply the evidence in this case was very strong and one of the is can the government prove beyond a reasonable doubt that the error that the that this the defending of the law he did intent was the only element that was that issue and so for this court to find that the erroneous admission of this restricted to count one no i think the count one error in fact is the count two and here's why the court rules that sex activity count one is the same as sex acts count two she rules that the parties actually treat those terms they conflate them throughout the closing in the rebuttal they say and so when the court and the parties then starts counting all those terms sexual activity and sexual act how can we expect the jury to differentiate between those terms and we actually have u s attorney in closing saying to the jury if you find he intended to have pennsylvania decent contact with this minor so that's the travel or if you find he intended to entice ashley to engage in pennsylvania indecent contact then he's guilty he goes on to the count to immediately thereafter he says to the jury i'm not going to believe the point about why he's also guilty of traveling with intent to engage in sexual word you cannot in my view only in the news week only for myself you cannot have a sexual act without it being sexual activity but you could have sexual activity without it being a sex act chooses to draft a statute as they did with twenty four twenty two b and uses language and sexual activity which any person can be charged with a criminal offense or attempts to do so that's pretty broad like which isn't they use language like any if it isn't broad it's broad but that any is not dispositive and i say that by looking at the two thousand and fifteen case and well how about the article  criminal offense thirty one twenty six of title eighteen the president crimes code talks about indecent assault that's a criminal offense right it is and when we and why isn't this a simple matter of saying that thirty one twenty secs the indecent contact indecent the incident recent assault statute which outlaws indecent conduct the kind of criminal offense that simply folds into the language of twenty four twenty two b and is a dear friend and colleague of mine would say why isn't that game  a form of analysis in going back and forth between sexual act and sexual activity which had recourse to a definition that is actually limited to chapter one zero nine it says used in this chapter but we know that in the travels that statute it actually incorporates that language from that other chapter so we use that language in other chapters notwithstanding that as used in this chapter and we have to reach that instructions under the standard should apply and find that the district judge or assume we don't even assume that under that standard the district court committed some error in hers ructions to the jury why wouldn't you your be or isn't harmless because the erroneous instruction had some b which is a confession to having had sex with a thirteen year old forty years ago over a period of months so in fact everything it lowers the jury away from deciding this case based on the evidence of what chaps were going on have to decide in your view if it goes back i'm not sure about that your honor if you bake it in me man and send it back because of the four of four being our we have a new trial and it's unclear how things would develop during that trial i do believe that there's many reasons if you were to decide this but not to follow the fourth circuit not the least of which is that all the fourth circuit does is cobble together dictionary definitions of the word sexual activity in a way that the supreme court says we shouldn't do we should make a fortress of the dictionary i suppose to read words in the context of the statute which is you look at the neighboring words prostitution or any sexual activity for which any person can be charged had congress really believed that sexual activity for which any person can be charged is just active pursuit of leviton or gratification which is the fourth circuit's definition they would have had no reason to add that extra definition in twenty four twenty seven which is production of child pornography because certainly the actor pursuit but believe it or not gratification would include production to please the court change until on behalf of the united states morning before i move on to the for a for b issue i just like to emphasize that on the first issue the definition of sexual activity we are on planar review so the very fact of the circuit split makes means that you don't have to decide it very fact in the circus that means that it's not clear air the reason they weren't playing or review the reason this wasn't preserved is that the defendants motion to exclude i think that necessarily clear you know i'd like to explain why why i think i think it is clear if you look at the colloquy about the charging but but the issue was cites russell in which the defend defendant had raised an objection to a jury charge but the court hadn't ruled on it this court the discretion ruled on it this court found that that raising of of the objection was enough because because and russell interprets this objection to and this is a quotation a very the the very short and extra supplemental instruction of you know i don't think you want to spend all your time on this  activity i think that you don't have to reset issue first on the harmlessness or prep but the failure to show prejudice probably because this the jury necessarily found that the defendant had the intent to engage in a sexual act the same definition that he advocates for for that enticement count so it's highly unlikely that the jury found that the defendant intended to engage in a sexual act but he only intended to entice a minor to engage in some lesser sexual activity contact course that's not the whole pennsylvania law because pennsylvania law goes much further well that cases that that's true it into you know it can be a back shoulder a leg it doesn't have to be statute that was in the throws supplemental instruction that was stricken by the district court on the basis of taylor that was the part of the instruction that talked about the neck the face the back of the lakes in looking at this issue we have to we have to determine whether the jury instruction was correct and not whether the pennsylvania pennsylvania courts have occasionally interpreted it more broadly i would argue that even in that broader interpretation it would still count as well but the pennsylvania court's interpretation look at what the sexual activity is to figure this out but it we can't lose sight of the essence of the enticement statute in that is entice seeing persuading or engaging a minor to engage in that activity so so we really i think back to my instruction on one count two this is a kind of a very rare case in which you actually know that the jury found that the defendant had the intent to engage in a sexual act you don't have to infer it from the way to  yes and the idea that the you know my opposing counsel mentioned the smith case two thousand and thirteen opinion where evidence that a defendant was a drug dealer two thousand and eight was not admissible to show his intent in two thousand and ten and that's because the miscible and city inference there was that the jury had to draw the inference that because he had he was a drug dealer he doesn't he was also drug dealing she thousand tent it didn't have to do that here in this is why the evidence i invited mr capello a couple of times to to to address each one of those three and try to find differences and i didn't get very far so i've hired with you first of all we have the   in misty yes evidence what you agree that it differs from the other two pieces of evidence under attack here in that it does rightly ask a jury to draw a reasonable inference that the fourteen year old being referred to is the girlfriend issue in this prosecution yes it is different from that evidence and that is that reference to the fourteen year old girlfriend is direct evidence and the evidence of moated in some other cases judge the judge very gave a hypothetical regarding effect case and i mean if you were suggesting motive for example to commit some kind of embezzlement you could use  motive evidence is somebody had some very very deep financial problems that's motive for committing some doesn't mean you need the money here in the in the child sexual abuse area we're kind of something completely different and it seems that what word i think motive is are going to always be relevant to a tent intent and i think that the difference in child pornography cases between point can certainly support intent but for purposes of for a for b there  that the reason that it was relevant for a nonexistent link of which is to show propensity that doesn't have to stay out under orders but it's not there is there is a logical chain of inferences no link which i think the evidence shows that he wasn't that he really wasn't going to forbear and i think that's why we win on harmlessness even if you know we don't get this far forget it and i'm not talking about the harmlessness let's let's just assume hypothetically that the mike and in canada was going to be decided to trial and b i would also say that the argument that he counts as communications that were taken from his phone is a nonstarter because first of all the communications were not entered into evidence  or i guess if you were looking at those opinions broadly and you see the constant conflict as being you know is there sexual act and you feel it then yes but if you find that it's harmless if you are or that he fails to show prejudice an airplane air live you don't even have to we don't even have one week before we found one way or the other on that we could just assume that the seventh circuit reading was correct and even if that was the correct you i'd like to start where we left off and if we assume that the seventh circuit got it right and that judge ambrose herself got it right that sexual activity is no broader than sexual act then the instruction is harmless indecent pennsylvania indecent contact the judge instructions and struck stand and her believe these terms are equal and then she says you can rely on pennsylvania indecent contact to satisfy sexual activity pennsylvania and that both can and cannot satisfy the sexual act definition which you defined it as as a sexual touch right of the internet or sexual parts correct your honor it's the united states attorney in his closing who goes beyond that and tells them even if you find he's telling you the complete truth and all he intended to do was to come here hug kiss and give her hickeys that's pennsylvania and decent contact that sexual activity account one and then he combines it with count two to say if you find he only traveled to engage an indecent contact i'm not going to belabor that belabor the point as to why that's also sexual activity account to again we know that the court view those terms as equal the parties you them as coextensive been synonymous so the jury couldn't have differentiated between the two we can't assume that the jury found that the sex act was an actual touching under the clothing of the genitalia because we don't have a special verdict form so that's why that the erroneous instruction a count one in fact count two and requires reversal of  government hadn't turned over that to the court for already conducting the real you may first according to the defense of the bandon but the trial judge admits that she has to actually review that evidence so that's why it happens at that moment and my comment is never mentioned in the prejudicial what is the prejudice of proof but it's not on fairly prejudicial underfloor oath and she understood it right under fire i'm sorry go ahead under fire for be the reason it's unfair of course it's prejudicial to convict him to write this previous wrong he had sex with a minor it's the words out of his mouth i confess i admit i had actual sex with the thirteen year old so whatever you think he did now whatever intention think he acted with it you can never take th drop of ink out of that glass of milk he admitted i had sex with a thirteen year old not just once but over a period of months that's why it's not simply just prejudice and profound city it's loring that you're right to decide guilt based on that bad act that he was never brought to justice for thank you very much i may i just add whether or not you agree with the trial issues there is also the jury i'm sorry the guideline