it please the court ellie rouhani for the united states with the owner's permission i'd like to try to reserve three minutes for a bottle and i'll watch my time you know as this appeal presents a single question for review and that is what does  voluntary travel mean in the context of sarna and voluntary travel has to mean only volitional travel for three main reasons st based upon the common law and common sense definition of voluntary ness nd based upon the instructive decision from the nd circuit in united states versus gandhi and rd because of congressional intent and the supreme court's reasoning in car versus united states so i think i need to interrupt you because i think there are two issues here and where the double jeopardy one i think is actually quite difficult so we don't get to the arguments you're just starting to make unless we can get past the double jeopardy issue and could you speak to that st yes your honor and so we can we we have a group of high school kids who have no idea what sort of is so let's not use anagrams and shorthand this is a sex offender registration notification act that covers on a federal level interstate travel by someone who's committed a sex crime in another state that's correct john or soreness stands for the sex offender registration and notification act and in this case mr laws be traveled from arizona to nevada not being in custody and then fail to register in nevada but if i can answer your question judge friedman the reason the double jeopardy never attached in this case is simply this mr law's behe was never at risk of being found guilty and that is the crux of what double jeopardy is about and so in the olson case that was cited in the reply brief this court specifically lays out that there's two parts that this court considers in determining whether jeopardy attaches the st is did the district court consider some uncontested evidence but the nd and more important in this case is was a defendant ever at risk of being found guilty and in this case mr libby was never at risk of being found guilty because in the district court we were only talking about the nd element and  the rd element was hotly contested so how do you deal with the hill case you know it's versus hill so hill was the obscenity case your honor and i think the distinction in hill is that the parties had stipulated to the facts at that point so i know you argued that but when i read it all i could see was that they had stipulated to the fact that pornography was what was talked about in the indictment but i couldn't tell if they had actually stipulated whether he knew that it was pornography or knew what it was or knew that he put it in the u s mail or knew that it was intended for delivery and all the other elements of that statute it doesn't opinion doesn't talk about stipulations as all of them so it seems like it might have been very analogous to our situation it could have been i think the other distinction for hill is your honor that was a factual determination that was made and hill so the district cornhill when he looked at the images the district court determined these are just not obscene as a matter of fact so in this case when judge gordon was considering whether mr libby's travel would have been voluntary he was determining as a matter of law and i think that's another distinction in in hill as in here the judge was the fact finder and in this in  hill the district judge was in fact making a factual determination that the images were not obscene seems like in both cases it's a mix question of law in fact i mean you have to apply the standards of what is obscenity to to the material and here the judge had an idea of what kind of interstate travel was required and looked at the facts that were mostly agreed on by the parties but it wasn't devoid of facts in it and that's fairly typical right so when a district judge is making a determination  law they have to apply some facts to it and judge gordon when he was doing that he says i surmise that this is what's going to come out at trial based upon the proffers of the party now the government made clear and i think that's what was borne out of the revocation hearing we weren't giving judge gordon all of the facts that he needed to consider for voluntary travel there were some facts that we thought were relevant to the question the very narrow question that he was answering as a matter of law i think the other sort of wrinkle in this case your honor is the government's position is this is something that we didn't really bring up himself this is something the judge gordon sort of argued that if you brought up something close to it i mean he charged about why what the purpose of the interstate travel was and that's how they got down this track as far as i can tell right and so that mr lesbia's argument was that under a car he had to be traveling for the purpose of evading so that language doesn't appear anywhere in car to begin with so that for the purpose of evading so the government's position was once you determine that mr laws at least the district level once you determine that mr libby had not registered as a sex offender in nevada his entire argument falls apart that was what we were responding to that's how we read it i think that that piqued judge gordon's interest on another issue and judge ordered an address that he said i don't think you laid it out as clearly as as he seems to think that he has but but i'm interested in this issue and judge gordon saw it as a jurisdictional issue that he needed to address of course later on he determine that it was not just a issue and we agree that it's not just a jurisdictional issue but that's how this developed in the district court and when we're talking about a bench trial why how do we divide the dividing line between sitting before the fact finder who's going to make the decision in the bench trial that involves facts and law and is about whether the person is guilty why should we consider this pretrial proceeding to really just be part of the bench trial your honor i think that i think that the crux has to be was mr laws be at risk of being found guilty so if this same thing exact same thing had occurred after opening statements in the bench trial and judge gordon ruled exactly how he did even though he was one hundred percent wrong you could not appeal the not guilty dismissal i think that's a closer question based upon a hill and patrick i think that in the not very clear under evans i think it's i think  it's i think it's a much narrower question because jeopardy i guess if you think about the quintessential time the jeopardy attaches is when you're st witness a sworn in the district judge starts to hear that evidence in the case of a bench trial so i don't think at that point that we would be appealing this unless it was truly only a question of law there is some authority that suggests that even at a rule twenty nine dollars type of stage that the government can appeal a pure question of law i just think that this question is a little bit in this case because it's a much closer question i think that we have a different we would take a different position and so your honor i think that ultimately what this comes down to and i think this is the so i'm sorry can you just explain that again so you're saying that that because this is a pure question of law it's treated differently but evans was a pure question last i'm not i'm not entirely sure i understand what your distinction of evidence is at that point and your honor i'm not speaking specifically to events i'm speaking at i guess as a general matter there the idea that the government could hypothetically even after a rule twenty nine motion being granted could appeal certain questions of law on it and again that this is a very narrow it's it depends on a lot of different things i don't want to speak too broadly  it is a question of law i think it is very clear in evans but there are other situations where the government might be able to take that appeal i don't want to speak too broadly based upon it without facts to sort of build into that hypothetical your honor so i understand the holding of evans i understand when jeopardy attaches i understand that even if it's a question of law there are instances where the government could appeal but i think there are also instances where the government could appeal and i don't want to speak too broadly without sort of facts to fit into that hypothetical and in terms of voluntar the one point that i think is most important is i recognize the gandhi is not binding but i certainly think it's instructive it's the only case in the country that we could find on both sides that even sort of relates to this issue but i think when you look at car versus united states which relied upon heavily by mr laws being that relied upon heavily by the district court the supreme court specifically says that the government the federal government has a special interest in monitoring and prosecuting sex offenders who are under federal supervision which is exactly what's happening in this case mr lesbia's on federal supervision for a prior sworn offense he traveled from arizona to nevada and he wasn't in custody at that time and i think when you look at that the federal government does have a special interest in prosecuting him and that i think by itself makes his travel voluntary i'm happy to answer any other questions by some time are  you so do you think are you not disputing that voluntariness is required you are right at this point i would agree that voluntary ness is required and i think that that's the position that we took in the district court as well i know that the way that the brief is written is is slightly more open to interpretation i don't think that every act up until the point of the culmination of the crime needs to be voluntary but the position that we took in the district court and that's what you are seventy four and seventy five was that volunt the morning your honour's i'm kathleen bliss and i'm appearing on behalf of mr lester i do think that the double jeopardy issue is something that this court must address and as regarding double jeopardy was mr speedy at risk of being found guilty when these proceedings started in front of judge court and of course he was except that judge gordon found that his travel from nevada to arizona was in custody of course compel and his return travel back from arizona where he was released pursuant to a court order to appear in nevada at the residential house that was also compelled and therefore it could not be involuntary so when you say that he was at risk of being found guilty at this pretrial proceeding i didn't understand him to be talking about whether he was already registered in nevada whether he thought he was already registered in nevada it seems like it was only about this question of whether the travel was enough which is only part of the crime so you can't be found guilty but just that element correct but yes your honor i understand however the point that i'm trying to make here is that the government failed on an essential element and her car i don't think there's any doubt whatsoever that knowingly traveling in interstate commerce is an essential element that the government has to prove and lived in tucson and nothing would have happened but he chose to go back to nevada it was his choice to go back to nevada why is it involuntary your honor i i respectfully disagree he had no choice but to return to nevada or he would be arrested where where the failure report excuse what he could where you poured in arizona there was nothing to stop him from reporting in arizona but he chose to go to nevada his choice well i think there are two issues here heavy chosen to stay in arizona he would have had to report and register as a sex offender enters in arizona no crime no problem but was under an order of modification because only the united states district court for the district of nevada had jurisdiction over him because that was the sentencing district for his offense that he had pleaded guilty to so he had to report back to nevada and there was a modification because if he hadn't had a warrant in oregon he would have likely been accepted to spend the last six months of his custody at a halfway house in nevada however he was denied that and that's pretty typical with the b o p because that was his last place a to a halfway house because he would have been on the streets he had to go back to nevada because he was in under an order to do so and nevada had federal jurisdiction over him for his i believe eight year at the time period of supervisor release so he's under supervised release and in nevada and if he splits which he did he would be press acute good for failure to report so that's why he was revoked so he was clearly under a compulsion a court order to return to nevada so i don't think there was anything voluntary about it at all had he not gone back to nevada had he stuck around in arizona he could have had a violation of a supervised release by judge korten in nevada so that's why it's not like it's this is not factually like gandhi in gandhi you're you're involving three states there and mr gandhi requested a furlough to spend his time in new york there was no jurisdiction of supervision by the federal court in new york so it was like a courtesy furlow transfer he mr mr lusby here did not have the choice he had to report it seems like the government has argued though that he he requested going back to nevada and could've requested staying in arizona and suggest any way that that could have been granted but that's not where the court order lay and we don't have any facts that would support that  have is a court order saying get back to nevada and i mean really this is about a bus ticket ok because the government conceded that had they put him in and u s marshal car and driven him you know across the colorado river and the hoover dam that of course that would have been involuntary travel but the fact that the big p put you want to greyhound bus and chose the cheaper method as opposed to transporting him on a b o p or federal bus it was a matter of convenience for the bureau of prisons so i think that we have to consider that too there's no doubt he was returning to nevada because he had to because of judge gordon's order so you started out by saying he was at risk of being found guilty that only in the sense of he was charged with a crime and judge gordon was ultimately going to be the trier of fact but if he had asked for a jury trial judge gordon couldn't have found him guilty on the basis of anything that was done in the pretrial hearings so i don't get why he was at risk of being found guilty judge gordon could have found that his travel  but he wasn't doing the trial at that point he was acting more like the judge handling pretrial motions but in hill and patrick the courts were were making decisions on motions and so stipulated facts well i akkad this is what i think this is this is the issue that i think you have to to decide and i think it is a very difficult issue the facts worst essentially stipulated here nobody doubts that he was returning to nevada having be his compelled transfer to arizona because there's a b a p prison in nevada g o p bought the best ticket b o p put him on the bus greyhound bus then based upon a ticket transported him so those really are not facts in dispute what's disputed by the government that the court denied as a matter of law is that this scenario was somehow voluntary and judge gordon said as a matter of law it can't be voluntary because he was put on a b p sponsored bus did can you point us to any case where it was clear there were other disputed elements but a pretrial hearing about one element was enough for jeopardy to attach i don't think i can the only thing i've got really is the hill case and the patrick case and i think going back to like the cases of martin lennon and sort  fates i think you have to look at when someone is in jeopardy and what that means and then as a matter of law on a jurisdictional as well as essential element it is gone the other way for mr lusby had judge gordon decided otherwise and accepted the government's argument he did not and so this is something else that i think about with respect to this case because there really isn't a lot out there it's  i think it's a it's a very difficult decision bit so let's go back to nevada you re man back to judge gordon it race judicata that he's found that in essential element cannot be met that the travel was involuntary and therefore the three elements of the sexual offender registration act cannot be met and how about the government so i think the question is whether we can review that so i mean if we reviewed that and decided he was wrong then he'd have to not say that again i remained i don't know i don't know because he's a fire trier of fact and this is something that i'm not i thought about a lot isn't it raced you to kind of it certainly is an admission under the federal evidence the government's concession that can it not under those facts that we had here it can't show that the travel was voluntary because of the because the matter of law decision by judge gordon so if we go back the st thing i'm going to do is argue that we have race judicata as to an element by the court and that the government concedes under those specific facts that were before judge gordon that it can't prove its case judgment of acquittal you could try that it's not going to succeed but it was like to pinion but assuming that the logic of it we should consider wow how do you do you think grundy help sure doesn't hurt you i don't think grandy applies here because i think in you had two distinct factors one being that it appears as though the nd circuit assumed argue window that the travel was voluntary here we don't have that we have a finding as a matter of law that it was in voluntary also in grandy you've got really three states it play you have his drug conviction in pennsylvania you had this sexual offense in maryland i believe he's serving his time request a furlough where he can spend the rest of this time in in the bronx in new york so i think it's just factually an opposite and i think that there the court assumed that the travel is voluntary with the furler west did that answer your question your honor i just want to know your comments thank you and mr libby's already served a term of imprisonment for this behavior no supervised release violation yes and yes yeah he pled guilty to failing to register when he moved from oregon right i understand that but but he's been in custody for a couple of years because he failed to report or failed to arrive at the halfway house that was living on the streets that had nothing to do with right this registration issue which is definitely a disputed issue and the last thing failure to register is would that still in dispute right i assume you are you are getting many didn't fail to register in nevada yes but even if you are new originally registered he didn't register when he was back in the state of nevada living on the streets because we would submit that he had registry right you think he was already registered or at least reasonably thought he was or something like so you have to register where your address is where you have the whole ideas letting authorities know where you are but the knowingly fails to register requirement the rd element we would submit if we got a trial that he thought he had registered in i think we should give even more rebuttal time because we went over the last argument so let's put four minutes on the clock please well of course we can't because it doesn't implicate the underlying policy considerations of double jeopardy and i can point your honour's to united states versus olson of this court and i just want to read one very brief portion because i think it really hits on of evidence during the hearing on the motion to dismiss it did so without subjecting olson to the risk that he would be found guilty and thus without affecting the interests protected by the double jeopardy clause and and twenty nine dollars the court said the trial court made a purely legal determination about the sufficiency of the indictment without applying that evidence to the question of guilt or innocence jeopardy does not attach without the consideration of some or all of the factual elements of the case and so i'm trying to refresh my recollection but i thought olson was really just about the face of the indictment correct and the application of another a previous decision and whether it had rendered that indictment defective and so in that sense i mean we know that just looking at the indictment without looking at any facts is definitely not jeopardy attaching we also have the debate clause case where there are several cases that say that but this isn't just the face of the indictment because there was this discussion of the facts and whether it counted as voluntary and so i just i'm not sure olson is really on point but i but i think that the rule that is derived from olson is on point your honor and the nd part of that is that there has to be a risk of the finding of guilt based upon the resolution of a fact issue and mr bliss just told you that she still contests  that rd element meaning that there was no way the judge gordon could have ever found mr let's be guilty or not guilty for that matter because he didn't know ultimately what additional evidence the government would put forth it seems like at least from what i can tell this is just a novel situation i i'm not sure it's really analogous to the cases either of you are citing exactly so we have a new question but perhaps your honor i think it's also important that i need to dispute what miss blissed said where she said that the facts were essentially stipulated in this case they weren't the government contended that it could prove physically volitional travel which that's the position we've taken on appeal and we still believe that we can prove physically volitional travel will be held a gun to mr disputed i mean i think like when you said you don't contest the voluntariness is as a requirement it seems like you do contest the meaning of voluntariness and so i don't think you really are disputing what happened with the bus ticket and whether he you know could have gone to mcdonald's instead i mean you're just discussing whether that counts and it was your strategy to move to dismiss based on this that's your ruling judge we can't beat that standard specifically because we disagree with your definition we'd like the th circuit to review this and tell you that you're wrong so that we can meet wait until the end of trial i guess that you couldn't and that i don't know it's like this little puzzle that's the issue your honor and so and i'll note that if you look at judge gordon's comments he says i'm not prejudging the facts i know what the government's trying to do judge gordon thought we could take an interlocutory appeal and we're the ones who have to tell him you know sort of not really very kind of trial it's terrible question that's obviously you could've done that but what sufficient for us to take an interlocutory appeal under the limited nature of the statute that was that was the understanding of the department at the time and i'll note that the way that the discussion had transpired i did the department have  there any other case that the department has looked at for figuring this out that we should be looking at or anything else no your honor i'll just note that the way that we looked at the the very limited nature of the interlocutory appeal statute that the government can actually take that appeal that's just not how we read the statute and that's why we s dismissal and so if you look at the language of that i don't there's very specific types of decisions that can be appealed and because judge gordon had denied the motion to dismiss without prejudice just sort of nothing for us to appeal at that point we needed to get clarification and we needed to be able to to have some type of decision to appeal that's why we asked for clarification twice on an emergency basis your honor the other thing that i wanted to answer george wallace's question regarding bundy not assume that the travel was voluntary the nd circuit assumed argue window that if a voluntary miss is required the facts of that case was sufficient to find voluntariness and i don't think that there's a huge distinction between the fact that there was three states versus two states the fact of the matter is mr gandhi was in custody when he was taken from maryland to pennsylvania and he was released from custody in pennsylvania when he traveled to new york so if you focus on that travel from pennsylvania to new violation it was not on a sort of violation specifically because we were concerned about what judge gordon's definition of voluntariness was going to be even in the supervised release context and so he's been punished for the supervised release violation he has not been punished for the  also a sex offender registry no yes but under state law it but i mean it's the same behavior of course prosecuted under both the state and the federal laws and you would run it double jeopardy because separate sobber no your honor i don't know that mr b has not been prosecuted by the state of nevada for this so there's no double jeopardy issues i think it's really important for the government to have an answer on this issue generally because las vegas is very transiently generally a lot of sex offenders happen to come and reside there either under homeless status or in absconder status we just like to have an answer quite frankly to know what we can do about these offenders and i think mr laws be situation kind of highlights that to your honor's unless you have any additional questions the last point that i want to make is if you look at the actual order that of in the judgment the judgment does not say police travel to nevada and then live on the lam the judgment says report to a probation officer within seventy two hours and mr libby didn't do that and mr libby traveled so i just say that there is legal compulsion to honor that i think it's an incidental consequence of what he needed to do to be able to abide by that condition but in the end he's admitted at this point that he did not abide by that condition so i think it's difficult for him to seek the protection of that condition when he's admitted at this point that he's violated it if your honour's have any other questions otherwise we would ask that you remain for further proceedings thank you thank you both sides for the very helpful arguments in this very difficult case that cases admitted