morning that please the court my name is travis rossman i represent appellant david given i would like to reserve three minutes for rebuttal the first issue i'd like to discuss today's the confrontation clause issue they've been given its constitutional right to confront and cross examine the witnesses against him concerning their motive or bias trumped any interest that those witnesses may have had under rule four twelve or any other protection concerning their sexual character and reputation there's ample precedent that the confrontation cla right trumps that interest there are some cases cited in the brief the olden case in the lewis case most notably where the courts have found that that right to confront about the particular attack referenced in davis trumps any protections from the rules of evidence rule for twelve itself recognizes that constitutional interests may trump the other interests of rule four twelve rule for twelve c states that constitutional protections may require admission of evidence that would otherwise be bar in this case the credibility motive and bias of the witnesses was critical you had three witnesses with very big credibility problems christine essentially committed the same crime that david given was charged with when she transported chicane in interstate commerce to fort wayne for the purposes of prostitution she initially denied making a deal to get david given but later admitted it and she denied committing a crime and for lying she kayla was a convicted felon she could not identify david given in the courtroom she stated that she was not afraid of him and she admitted that he bought her a bus ticket to go back home when she wanted to leave zero was probably the most problematic she recanted most of her testimony during the trial after the government had opened with a lot of damning facts that she had given the governor she admitted that she had an xanax problem and had a foggy memory and she was on probation for a misdemeanor criminal mischief charge for vandalizing her boyfriend's car so against this background we have the testimony about what happened in fort and the district court limited mr given from exploring the fact that that conduct was for prostitution and that he but the but the evidence in the case that kind and clearly showed that these women had agreed to testify against given by him and one had agreed to get him in order to have a of the charges against them dismissed why do you have to have in the record that it was prostitution that they were charged with it shows their motive for bias it shows why they agreed to testify against him that day it showed what i guess i'm confused i think my mind of same question and just ranch you know that they made a deal with the government right and you were allowed to solicit that testimony at trial and it could be that they were lying because they wanted to curry favor with the government why do you need to show what the charge was that was dropped because it makes them want more like the victims the fact that they were arrested for prostitution that day makes them look look more like victims and less like criminals they can say we're here doing this today because david given put us in this lifestyle he made us go out and prostitute he put us in this lifestyle and so we know what you're arguing at odds with the rule against propensity evidence i mean why isn't this propensity evidence this is what these women are the jury needs to know what these women are and that means that and then they can assume the propriety of their testimony based on what they are it's not propensity evidence we're not saying we don't know why i don't believe them because they're not prostitutes that's not what we're saying we're saying don't believe them because it goes to their motive or bias to testify against him why wouldn't they have the sign motive to testify against him if they had murdered somebody and the police were going to let them off or if they had engaged in the sale of a substantial quantity of drugs well there's to take that example there would have been no argument to be made that david given turned them into murder no argument that he turn them into thieves or anything else by saying we were forced into prostitution we were forced into this lifestyle by this man who made us do this they're making themselves look like victims they're much more sympathetic to the police they're much less likely to be charged opening included a lot of information but she didn't just go away she was put on the stand and she had to say you know what that was my prior print pimp so why isn't there already evidence in the record that the women had engaged in prostitution prior to their relationship with given it wasn't as if this was a claim that he took innocent women from the hinterland and forced them into this lifestyle the evidence showed that this had been a lifestyle in which these women had already him get huge so what good would it do to a good an additional and so they did after the fact well zero was not at fort wayne she was not present there  had a lot of credibility problems and but fort wayne sort of corroborated what she was testifying about but it's not really about it's not so much about the past prostitution it's about what they were doing when they agreed to cooperate to get given the completeness of that deal the complete picture of that deal was not shown to the jury and that helped them to struggling with that have could it not here are women whose records and testimony show they have been prostitutes and now they cut a new deal with a new pimp why isn't that an inclusive explanation for what it is you want to say about them because the district court excluded evidence of prohibited given from testify or from a listening evidence that on the the day they agreed was that that was for prostitution and that was part of their motive they didn't get a forbearance because they were thieves they didn't get a break for something else it was because they continued to prostitute and that was part of their motive to get him now that the other if you nation was background but that takes me to an important point the government was able to admit evidence other evidence of prostitution his background whatever it wanted so they went into z as prior pm even after she recanted recanted they went into evidence so that the prior pimp cut her prior pym burned her all these things that really had nothing to do with given there was testimony about christine's prostitution after her initial escape from given and before she met up with him again again had nothing to do with given so the government gets in evidence of other acts of prostitution for battery and whatever it wants but given can't introduce evidence that the fort wayne incident was for prostitution to show motive robots and again i think that takes us back to an unlevel playing field and it takes us back to the particular attack in davis because in davis they didn't just admit evidence or say that evidence should have been admitted of a generic conviction right we can we can cross examine him about what his convictions for what he did to show that he was trying to curry favor with the police and to blame someone else and that's really what was going on in fort wayne they were blaming someone else and so that implicates the particular attack under davis i think that i hope that answers the question so continuing on if the court finds there's a confrontation clause violation there's additional analysis has to be performed  one one question is did the jury have enough information despite the limitation to assess the theory of bias or improper motive and i think this is really where the government hangs its hat they talk about well the jury probably figured it out which i think is speculative but really the jury had enough information to assess their bias or motive the problem with that is that even if the jury figured it out even if the jury knew what the complete picture of fort wayne was given wasn't able to explore on cross examination he wasn't able to ask them how their bias or motive impacted their decision to cooperate in their way to slant their testimony or what they told the police that day because they just told the police what they wanted to hear so they could walk out and be under arrest and that was the theory and he just did not get to explore that sufficiently the next question is to balance the interest in confrontation against the competing interests and we think that given had a very strong interest in confronting the witnesses concerning their motive or box their testimony was critical to convict him without their testimony there really wasn't much evidence at all it was mostly circumstantial there would have been posts and other things like that that would have been circumstantial and would not have directly proven the case and the government essentially had no interest in protecting the sexual reputation of these witnesses because the government elicited graphic sexual details there was ample testimony about anal sex prostitution pimping all of these distasteful things in the record so and also the government that takes me back to the government listed testimony about the other acts of zia with her pimp before and about christine when she was in kalamazoo and with king david so there really was no interest in protecting their sexual reputations because all of this came out so i think the balancing test strongly favors given and then that brings us to harmless error whether they're any error was harmless beyond a reasonable doubt and again we have to consider the importance of the witnesses testimony and again it was critical whether the testimony was cumulative and it wasn't these witnesses all had a different piece of the puzzle and for different charges the presence or absence of corroborating or contradicting testimony again there was some limited corroborating evidence about travel with posts but there is really not much corroborating evidence about the use of force fraud or coercion and that's the most important charge because it carries the fifteen year mandatory minimum so we look at the extent of cross examination otherwise permitted and i think that that discuss that again it was not enough to show that the victims had a motive to testify against him to make themselves look more like victims and less like criminals and then the overall strength of the government's sentence argument absolutely so turning to the sentencing argument given made an argument sentencing that there was an unwarranted sentencing disparity which is one of the thirty five fifty three  target of the statute right so there was an argument made at sentencing that the statute was primarily and acted to prevent the trafficking of individuals from overseas and was not primarily and acted to combat the activity for which given was convicted that was raised at sentencing and was not addressed by the by the judge although an appeal we have focused more on the black pants matter article thank you see i'm out of time please the court elizabeth hacker for the united states your honor as if it's ok i'd like to start off with the confrontation clause issue move on to the complete defense issue and then briefly touch upon a sentencing issue as well your honour's the district court did not abuse discretion in excluding evidence that the arrest in fort wayne was for prostitution for two reasons first the cross examination that the district court allowed on motive was more than sufficient i would like to point out that which is the kind of most important supreme court case on this issue that court said trial judges retain wide latitude in so far as the confrontation clause is concerned to impose reasonable limits on cross examination based on concerns about among other things prejudice and interrogation that is only marginally relevant more specifically this court has held that where there is a limit on cross examination on motive we ask whether despite those limits the jury still had enough information to assess the motive theory and even if not this court applies a balancing test when the violation against competing state interests wasn't the wasn't the concern here that it was an inconsistent ruling that mr given was not to engage in the very top of presentation of evidence that the government undertook your honor that was the argument here however the  that question is the purpose that the evidence is being used for you would have to concede that there were there was a distinction there was some inconsistency in allowing the government to engage in evaluation of the sexual nature of the conduct prior prostitution and you deny the defendant the opportunity to discuss the prostitution charge your honor and that inconsistency is built into the rule itself for twelve prohibits the introduction of sexual evidence for two purposes to show other sexual behavior and to show sexual predisposition the united states did not introduce that evidence for either of those purposes the united states introduced evidence of what christine did when she prostituted one day in kalamazoo essentially to show how the defendant got her back is actually part of the coercion case she prostituted by herself and she admitted doing that and he was able to find her because he enlisted another  to go out and get her and to bring her back to him this is evidence that the government needed to introduce to show that he would let her go when she escaped from m p would let her go certainly the united states was not trying to show any of the purposes prohibited by rule fo twelve it was not trying to show others here opposing hensel's argument i don't want to put this evidence in for a prohibited reason i want to put it in to show what they were doing in cutting this certainly your honor and the defense was able to show very very clearly that the women had motive to implicate mr gibbon in this crime and they asked the woman repeatedly do you did you wanted to get given you wanted to you wanted to implicate him so you could get out of  jail certainly your honor but as to the defendant's urging that this goes to motive as we said there was plenty of motive evidence in there and also your honor this core art and other courts have not hesitated to exclude evidence that would states versus jackson in that case as here the defendant urged a motive theory they urged that well the victims are really implicating the defend in order to kind of shift suspicion away from their other pips and they said that's why we want to introduce the sexual evidence not for any purpose is prohibited by rule for twelve and the court here said no that's not unnatural and france it is based entirely on speculation and the court excluded it even though the defense urged that it went to motive this court should do the same here this argument that somehow the motive which was there was again extensive motive testimony the argument that motive was somehow enhanced because the crime was prostitution is actually new to this appellate briefing it finds no there's no reference to this in the district court proceedings in the district court certainly did not abuse its discretion by failing to buy this argument that was never made to it so your position is the defense counsel did not request at the trial to be able to to cross examine the charge of the prostitution charge that was the basis of the deal he certainly did your honor but said again it goes to motive in the district court addressed that the district court said you may examine on mode if you may ask the many many questions about what you know that they had a motive to implicate mr given an order to have the charges against them dropped but this is  another kind of argument that he's making here he's making the argument that even though the jury was apprised that they were able to avoid charges and get out of jail here it wasn't enough because they didn't understand what the charges were and somehow i call it kind of the enhanced motive theory somehow their motive would have been enhanced by the jury knowing that it was for prostitution there's simply no indication that he ever made that particular argument in the district court certainly this are court did not abuse discretion by not addressing that particular argument and again it is like in jackson that argument is simply counterintuitive it is not a natural inference and it is based on pure speculation in the district court did not abuse its discretion  not count and say that argument if i may briefly address your honor at opening point the defense counsel made here with respect to the constitution automatically trumping any interest any of the four twelve interests this court has rejected that argument numerous times this court rejected it and bogs and united states versus ogden and daniel versus booker each of those cases clearly say that we actually way the fourth twelve interests gets any kind of constitutional concerns moving on your honor even if there was a constitutional error here the error was harmless beyond a reasonable doubt for two reasons first of all there was substantial corroborating evidence here the jury saw hotel receipts medical records instagram posts and other witness testimony that corroborated the witness's testimony here and again the crux of this case there was an extremely fair across on the women's motive to lie additional information that the arrest was for prostitution would not have at anything to defense motive motive theory moving on to complete defen e the argument fails for two simple reasons the first reason is the district courts for twelve ruling was correct this court's precedent indicates that the right to present a complete defense does not mean there's a right to offer ever or disproportionate to the purpose they're designed to serve now that is clearly not the case here the district court's decision on rule four twelve was correct under the law of this circuit and of other circuits and again this argument kind of the  defense argument essentially boils down to a complaint that the defense was not permitted to illicit other acts of prostitution while the government was but rule for twelve does not work that way introducing this evidence for a permissible purpose as the government did does not open the door to the defense introducing the evidence for it in permissible purpose and again even if there was a complete defense violation here it was harmless for the same reasons as it was harmless under the confrontation clause there was substantial corroborating evidence here and a very very fair across on motive if there are no questions about the confrontation clause issue or incomplete defense issue i can move on to briefly address sentencing right certainly here your honour's the district court did not commit plain error here this court's decision in a leaky instructs is that to be plain error the error must be clear under current law and that a lack of binding case law will preclude a finding of plain air here this court's precedent states that there is no need to address arguments that are meritless the court's decision and depends actually stands for that point and also this court's decision in gale specifically states that the district court not only need not but should not address arguments that are frivolous now this argument the racial disparities argument was frivolous for two reasons first of all the district court as we've argued in our brief was prohibited under the sentencing guidelines from basing the downward departure on race that if we look at the crack cocaine cases we cited a circus decision and maxwell in the fourth circuit's decision and by a number guarding the crack cocaine disparities certainly in both of those cases the court while agreeing that there were important policy implications here held that it was not a reason for a downward departure perhaps more importantly your honour's this article had absolutely very very little to do with sentencing it was mostly about prosecutions of peps the spirit is between prosecutions and in any case they had nothing to do the defense to be raising that issue in this case but even so this is the text of this statute applies clearly to this case if you simply read the text of the statute it applies to this case numerous courts of appeals including this this court of appeals has applied the sex trafficking statute in circumstances very similar to these where women were being trafficked by pimps and this falls certainly into the heartland of cases for which the statute has been applied in any case i don't think that this is a sentencing argument i think that possibly in a motion to dismiss the indictment in the district court the defendant could have raised this issue but it certainly does not go to sentencing which is the argument that was made in the district court isn't there some thinking versus united states supreme court case in ninety six that a defendant may receive a lower sentence if his conduct falls outside the central purpose of the statute your honor we would that is true but we would say that this is the central purpose of this statute i believe that this i mean this statute has been used in these exact types of cases numerous times and possibly even more and more than kind of the international trafficking although certainly been used in that case is there not a separate statutory provision for domestic trafficking is this the one that is use for both international because clearly that is within the next genesis is the discussion of bringing bringing forced labor both sex labor and other law you were internationally and and often in an organized crime arena so are there not two different statutes or two different provisions within the statute you know i'm not sure your honor i think that this particular statute has been used for both international and domestic trafficking there is there is another statute that actually applies to this case as well the transportation statute but with respect to trafficking this statute lines across state lives that's right your hon r this statute has been applied both domestically and for international travel in the text of the statute there is no doubt that the text of the statute applies regardless of whether this is kind of an international operation that there was no plain error and less there is binding case law indicating the other way and the binding case law goes absolutely the other way numerous courts have applied this particular this particular statute with purely domestic cases so i would say that even if the court did need to address it it was not plain error to not do so because the need to address it was not clear under binding case law just very quickly your honor so i would like to address the davis court did so because the motive evidence simply could not get any other in any other way the defendant in that case was absolutely precluded in introducing any evidence of his motive theory in that case and that is the reason that the evidence thank you i'd like to briefly address several points the first is the jackson decision the government decided it relied on it heavily the district court did too in that case the defense was actually allowed to illicit the government the climbed or dismissed prostitution declined to prosecute or dismiss prostitution charges against the minor victims and that's essentially exactly what given was attempting to do here but the district court for him second there was an argument that the motive argument was not presented to the district court or that this is somehow new on appeal heavily dispute that in the de force field transcript defense counsel states we would submit that this evidence for going goes to motive in the fort wayne goes to complete the picture there was ample discussion of this on day one of the trial before jury selection volume four pages one hundred three one hundred thirty were christine testified the sealed expert on day four was testimony in a sealed excerpt to happen there and there was substantial trial moving on to some of the things that we talk about sentencing i think the issue of whether the conduct falls within the heartland of the case is kind of ties into the disparity issue and they're really all one issue we didn't raise it as a standalone issue here but it all goes back to thirty five fifty three a six in the sentencing disparity argument we did not ask for a departure the government has attempted to cast  argument as a request for a downward departure based on race which is clearly prohibited by the guidelines and that was never the argument the argument was that black pants are prosecuted and sinton because you can't have a sentencing without a prosecution in a way different from other defendants and it specifically mentions white businesses and asian businesses that are often punished with a civil forfeiture or a fine for a centrally the same conduct that mr given received two hundred thirty five months in prison for so that's the argument they're turning back to to davis i really think that particular attack is what we have to look at here versus the general attack the general attack is is this person last truthful than the ordinary citizen and that does not carry the same cost to tional protections as the particular attack which goes to bias and motive and again the bias and motive of christine should kayla to testify against him is that they get to blame him for the conduct and excuse themselves just like the witness in davis blamed the defendant for the robbery of the polar bar and excused himself and so really those facts are are really totally will as far as the importance and the application of the particular attack that's constitutionally protected one question on the trafficking victims protection trafficking is that correct i don't dispute that that's the way it's applied but certainly i think the congressional history is discussed in the article and elsewhere would show that that's not really what it was originally intended to do call the next g