morning council that's right please proceed when you're ready thank you good morning may use the court lease right representing charles morgan trees are two minutes for rip out all as to whether the government established that the borders split drew on its actual coverage footprints or the product of reliable principles and methods as required by rule seven out of to let me try to explain exactly what we're challenging here and why the expert opinion here placed morgan d within the borders of the actual coverage footprints the jury was told that the phones quote can't be outside of those footprints and talked into them and also told the phone had to be in those areas and there's no other place in the world that they could have been and we're challenging the actual drawing of those lines the borders of so called blobs particularly on pages forty three dollars forty four cents not the part of the process that involves technology and software that is to gather data or crunch data or plot actual signal signal measurements but the final step that s b uses when it takes those known signal measurements to make and use them to make predictions about what signal exists in places where no measurements taken in other words all the places between the lu lines where agent who ran dry and those projections are scientifically educated guesses based on gladiators experts scientists but they believe the way radio be modeled in the real world and in this respect as but not just a technological tool like a calculator or excel spreadsheet that used to the poorest of forming opinions it's it actually is the expert  requiring the government to satisfy will seven o two with respect to such a predictive model like this is the classic out dauber a classic episode to be specific on step by step we're not challenging for example the plotting of the and in that case those are just that's just a lot in that you've done manually with a protractor on the data is no so there is no just a depiction of known facts i guess this really we're not challenging the gathering of the signal strength dado we're driving around to get it that's actual data we're not challenging you know run egypt went back to the office and upload it is software to upload the data into the program and we're not challenging  the so called red trail maps those are the actual the actual plotting coordinates of data points he collected and then you know color coding them and that's real data and it's just a way to present it visually and an walk that so what we are challenging again is the predictive algorithm and that takes the scattered known you know red tailed dots and they use these scientific assumptions well ations too don't know what they are to transform those three and four hundred and forty four is are you challenging the use of that image at all so it's no matter what that image can't be used are you challenging it because of the way it was accounted for well that is the you think that's significant right now i just want to make sure that i want to isolate what you're exactly talking about is the not the not the use of the picture and i get the for example the picture was there and it had a different caption then you wouldn't have the same challenge wh you're challenging is the fact that it says actual coverage area so definitive right that the borders are good as for our actual borders and we don't know exactly whether gladiator used them that way  so if it if everything had come in all these images and maps would come in and the expert heads and this is the technology that we use in the ordinary course in doing our job to try to pinpoint these things this is the machine we use this is the in which we go out and our best judgment this business is where we look for the phone but i can't be one hundred percent certain that the phone is in here it's theoretically possible it could be would you have any objection to that yeah i would because i guess i have been focusing on the hard edges but the fact is this predictive model is also filling in all the points to create the solid color that is predicting you know where the there were a lot of issues with her credibility d and and go through them that you know this was the element that was really the only element that we could challenge and there were a lot of reasons to doubt her  about how she came to be a car that her timeline really did not ups in other words even if you believe she ended up at mr morgan's house and there was sexual activity there is there risk really doubt about what she was doing and what her backstory was as far as how she ended up there and you know the phone went dead two hours before she ended up with her back at her home the timeline of how she got her grandmother's house and what you know she claimed to be on a bus that her grandmother said in the on that day so it does appear that she wasn't being truthful about you know what what was going on but in the hours for him and the sheaf she did ultimately admit that she was going to meet this but she had know i just think the jury could have a doubt whether what really happened was that she had ended up in maryland and and came across mr morgan there that's a very good possibility and i think the government was sufficiently concerned about the credibility on the route they bolstered it with improper hearsay which we've heard in the brief now to me that just shows that they are a little nervous about her credibility on that point and i you know it's really important i think that he she apparently she so it seems like at that point on the st night there seems to be this feeling that everything to place marilyn's that's pretty significant and you know the timing of the claim that after he turns that you saw over p g county it's  seems to be an inference that maybe the significance of the border crossing in clear now the welcome to d c sign you know she does live only like play a mile and a half there it's not like it's not a known thing that we all drive by all the time  also you know she simply drove by it on the way your d home so i guess those are the things i would say about the harm that's on the transport but i also think there's harm on her not if you count because you know her credibility is you know bolstered by this proper scientific evidence which does have a big impact on the jury i think you can assume that the jury can rely on part on that plane that she told him she got in a car that she was under fourteen there was a lot if we think that cases that say in the prostitution context that knowingly doesn't travel down to the age and i know the rationale those cases essentially even if you don't have knowingly affect the age they're still knowledge of something criminal of flights because the subject matter is prostitution but if we think those cases were a correctly decided then is there a way under the text of the statute to say well that knowingly does go to the age when the application is not prostitution but when it's a part not and not every sexual activity but it's a particular sexual activity for which the underlying offense of strict liability you know that is a tricky situation but i think i would say yes because that you have and have it mean something different when there's a strict liability d situation because of what the court said and earl well was very focused on the fact that there was an intent element already and that the knowingly was just an additional sense in hansen i mean knowledge element and when that promise isn't there i mean i know it is unusual to have the word mean two different things  best what's the best case for the proposition that the same word and put aside intact for just now but that the same word like knowingly means two different things depending on the application because i know i recall i think i was an immigration statute there's a case that had adopted the least common denominator principle which indicated that one over the word means something in one context it means something in all those contexts even if there is some differential equities seemingly at stake and i'm just wondering what would be the textual basis for saying that knowingly means something different in a context in which the underlying offense a strict liability than when it's not i mean i can i can you know try to find something on the i guess i would say if they do have to mean the same thing then that you know reason that the other courts are wrong because they weren't thinking about this they you know if they if this issue were presented to them they might say you know they might realize especially in light of you know that i think there might say otherwise so we know that actually find your are now going argument pretty plausible as an original matter but what do i do with the fact that we have a lot of court of appeals decisions many of them are after florrie speaker row and we have part of our reasoning not a major part of our reasoning but part of our reasoning  burwell was that this the knowing element of this statute doesn't attach to the age requirement is is this issue still open to us  between strict liability statutory rape crimes and mens rea of prostitution crimes is potentially available on the intent element but not available on the knowing element knowing is just either you have to know the age or you don't death just one more question on knowing before we move on which is what about what about ratification we have a whole series of court of appeals decisions over the same course of time where we have a whole series of statutory amendments twenty two thousand four hundred and twenty three dollars a don't we at some point have to conclude that just go d cross eyed with these all these different sects cases that all are saying same thing different ways and i don't think congress is paying any attention to this i guess but i would say now it but view this question is settled there just to be there is a lot of authority and let's stipulate that it's not hugely persuasive but there's still a lot of it but what about the a way around certainly as to the under sixteen but i don't see a reason why this court can't read knowingly as it always is appropriate despite the fact that the court said by the by particular formulation the direct object is not the crime it's the act so why shouldn't we read that provision to say that the intent required under the federal statute is to engage in the actress radius of the predicate state crime so for for statutory rape it is the intent of the actress teresa fact crime is the sex it's the intent to engage in sex because i would say that his if your in travel down the clause just as it can in the knowingly and it's you know it's the sexual activity for which you can be charge and you can't be charged if the activity is w a seventeen or sixteen year old well i guess that's the are going and that's the logic that murphy used where the issue was doing things for the purpose violating a statute that required you to be under sixteen then you had to know sixteen and i'm so i would say here in order to intend the conduct be chargeable if you're under sixteen you have to know they're under sixteen and you know i know that murphy and this case are you know their likes kind of sister and twenty three and it doesn't really make sense to have a requirement that when you travel to meet the victim you have to know the that they're under sixteen but when you make arrangements for them to cross the border and come to you that you don't have to know that doesn't make any sense at all so i think murphy has a very strong case for us emily and and i think jones is also very important because the court there really broke it down and said that what we need in that case the language was with the intent to carry on unlawful activity i don't see much difference between that and engage him activity that's a lawful it seems the same on the court so you have to act with the intent that each element be completed and broken down and said you know you have to find couldn't find a way and i think that she was confusing there they've been treating her well as if it was pressing tennis post knowing and so let me make sure my colleagues for the questions on the on the  strict liability has been recognized and proved so can i just make sure on strict liability then let me just make sure that the i know that the government's position covers certain circumstances so because this is a statute that tree if the defendant goes and picks up somebody whom he thinks is of age under state law and goes over the border and then over the right when he gets over the border he sees he asks for an id and she gives it to him and he realizes she's under age and he says oh i i this is not what i want to be doing i'm going to drive you home and he takes her back the fence is completed the consequence congress or parading strict liability and area of law where it's common and while that might reach that might well be right and it could i just follow up on one more one more hypothetical and just to make sure that i'm understanding the full scope of the government's argument so then wonder once you bring in the attempts part of the statute because subsection a deals with attempts then even if the offender if the defendant goes over the border meets the person with an intent to bring them back and then on seeing them over the border realizes wait a minute this is this is not what i thought i was getting myself into because the text exchange we had before she swore that she was twenty five i'm now on site and i see no way she's twenty five i don't want anything to do with this and he leaves and goes back over the border would he have committed an attempt at the start was the time but you know i haven't followed through them ations but again i think let me get let me give you one more which is a variation on this theme which is two people begin an online courtship and they represent to each other that they are off age they decide that they would like to get together  and the man in upper northwest orders a taxi cab for the woman in chevy chase to come to his place in d c the woman gets in the cab crosses state lines and she is under age on your theory that would seem to be a completed a sense for the ten year minimum even though the offense is completed before defendant could inspect the victim which is the core rationale for dispensing response to that is when you look at congressional and and you recognize that they were interacting this legislation i think from life the same conflict with no knowledge of age or twenty or twenty one and that they recognized that strict liability was amen in the area of sex offenses against minors that the struggling type of subgoals don't require this porch  a knowledge of age requirement doesn't otherwise exist there are challenging hypotheticals the supreme court has repeatedly made clear that in the area of sex offense against minors the presumption of favor mens rea it doesn't even knowledge part got yes and and so if you start there if you start with the analysis of it congress and and in two thousand four hundred and twenty three say you have knowledge applied to the victim's age and if you agree that it doesn't of the if we're giving we one reason why congress might have the knowledge requirement be read to do less rather than more  precisely because there is the nd mens rea element which can at least plausibly be read to pick up this unusual case where the predicate offense is a liability offense i mean it's a little odd it's a little odd for you to be invoking all of the presumptions for strict liability crimes in a statute that has not one men's room a requirement but two of them so i think it would be to conclude that andras thought the intent provision was doing the work sex crimes as this court found in chan which wasn't a sex case they found it impossible that congress would have placed on the prosecution the often impossible burden of proving beyond a reasonable doubt that the defendant knew t standards it's not just your liability crimes where if you agree with the defense argument that it would raise the bench right required under state law it's also the many state laws where recklessness  dooring issue that it's it's a different knowledge of age it's different it's a different age and it's serving different purpose and i think the government's theory was that the knowledge is it's almost like just sends and huntsman and it's not reaching into like that there's nothing unusual about saying that when you that defendants are presumed to know the facts topalov the facts underlying that makes the crime criminal or conduct criminal so i think that's a different enough and as far as importing the state crime you know this is really an attempt and so it really makes little sense that it doesn't make sense it's going to be have a higher intent elements than the substantive crime because you're having to intend that happen because all you're doing is taking a substantial step of the mental state as murphy says it's a crime of intent not a crime of action and therefore it's not surprising we're there is more d on the issue of hypotheticals and saying that the stone it's mostly carrying people i mean that may have been true me old days but i think the internet and you know goobers and all that i think there's a case that i side with when i i don't remember all the details off my head but i do know that the person isn't mammals in texas and the woman the young girl seventeen i think she was was in like minnesota and she she basically had a lot of travel difficulties and turned around but i mean she was coming she was on a busts to texas and she was very close  the border and that that's what happens so these are real hypotheticals and he never met her you know she told him how old she was and i think in that case she had actually been honest about how old she was so he's not but you c easily see it happening where he did not i guess my time is up i would ask for all four counts to be reversed for any trial thank you counsel thank you to both counsel will take this case under submission