court peter flory from arcadius keyes we raised two separate issues in this case and one to address the second issue first and that is the issue of whether or not the officers were allowed to invade the province of the jury by expressing their guilt as to the defendant in this case one of the greatest gifts that our founding fathers stowed upon us was the guarantee of the right to have a jury be the entity that determines the guilt of the citizen accused our courts have been a staunch bulwark in protecting that right not really not on remarkably they have held a judge cannot turn to the jury and say i think this guy's nor can a prosecutor say i believe this person is guilty and nor can a witness especially not a lead case agent in that in that case detective campbell was one of the witnesses in this case he length his testimony spans over sixty pages of the record he was established as a person who is experienced in investigating sex trafficking cases that had great knowledge great amount of knowledge on sex trafficking and that he was he decoded certain phrases for the jury involved in the case based on his knowledge and expertise he explained to the jury the normal reactions of certain victims of sex remind me just he's testifying as a lay witness with personal knowledge direct did keys when keys made the confession was it to the special agent detective campbell was not present during that interview  would we look to see that clear there was no objection lay below this is a plane it is plane air ok so just i mean how do you start with just the back end of that how is it a miscarriage when both victims testify in detail as to the sexual assaults and your client victims testify he assaulted it goes to the integrity of the proceedings which is another problem for and that is the the integrity of the importance of the constitutional right here is the right to have the jury determine guilt and to protect that zealous and and it would be important to make a clear decision on that again the government in this case is are going to was not even any error in this case so it's all remind me what was key says  defense was simple the government has to prove that he caused the young the girl the victims to engage in prostitution their own testimony was that before they even even had met mr ickes their plan was to engage in prostitution they had met other men before they met mr keyes and had sex with the man in the exchange for drugs they that was their plan all along so defense a was heating and cause them to engage in prostitution they jane doe to testified if i recall correctly that she had represent ourselves to the other men and mr keyes that she that she she was eighteen and that they appeared to believe her absolutely gutted by the opinion testimony of the two officers again there were there were three issues did did did mr keyes cause jane those one into it to engage in prostitution knowing or in reckless two to engage in commercial sex acts in the northern district of texas i do and what was the time period from march to the middle from the middle of march to the middle of april two thousand and fifteen just as an indictment prosecution ok based on your investigation do you believe that the defendant either knew or had a reasonable opportunity to observe jane doe one and jane doe two during that time period i believe he did do you believe that the defendant  to engage in commercial sex acts by force fraud or coercion absolutely detective helberg was then called to the stand same same basic scenario establishes as been a few days as an investigator of sex trafficking cases is intimate knowledge of those types of cases and his investigation of the case and the fact that he interviewed the defendant in a reviewed all the evidence and at the end of his testimony are you aware of whether or not the defendant caused jane go one to engage in commercial sex acts when she wasn't with jane doe two when jane doe two wasn't present absolutely based on all the information that you learned during investigation the entirety of it did you believe that jane doe one had been compelled to engage in commercial sex acts t force fraud or coercion absolutely and did you believe that offended based on your of as occasion had a opportunity to observe the girls absolutely and based on your investigation do you believe he compelled them to do b who do you believe compelled them to engage in those commercial sex acts mr keyes he we even went further than they asked him they put forth to defend his defense of statements that were made in the interview in the he said i believe he was absolutely lying when he said those things the none of those are permissible and they definitely would have a tendency to sway a jury and therefore route would ask the court to find jury trial for the trial jury to review personally every any evidence at all with regard to the second issue which is multiplicity mr keyes was convicted twice of trafficking but as i understand the record dad wanted to leave or jane doe one particular had wanted to leave earlier i was surprised and there was evidence of force being used and then i guess quite a few commercial sex acts after she ten for one and well in excess of ten and also commercial sex acts before that force event i believe so that was the testimony of the victim and again with regard to the strength of the case the credibility of both victims was severely challenged jame go to testified that she had been hallucinating so well at this period of time and both victims testified that they were the series of events that it's trafficking i and he so it is it is not just every discreet act in the jury was certainly not instructed to find discrete acts it was the same basic acts were the only difference between the two convictions was the force element or the under age element not the underlying acts that your original one the original indictment is just jane it's it's it's it's trafficking single count mine are correct but then they supersede and they put in jane doe two age count two and they add the third count that you say is multiplicity s but that's the force as one in three then are the ones at issue did the district court ever resolve your pretrial motion and not but it's perfectly appropriate and common for judges when there's a multiplicity motion to wait to see if the government wants to elect sentencing fair to united states versus martinez a twenty one six fifty nine the central inquiry for preservation purposes is the specificity and clarity of the objection not the defendant's persistence in seeking relief  and is anything cassio three twenty five a third at six forty two once a party raises an objection in writing if you subsequently fails to lodge an oral on the record objection the error is nevertheless preserved for appeal  would you agree that under the facts are alleged at least by the united states that your client again under the allegations solicit soliciting an active commercial sex after being told she was under age record to begin the commercial sex at some point jane doe one says by the way i'm underage then there's more solicitation of commercials act then she says i don't want to do this anymore force is applied i got on the allegations government the allegation is he's doing this that he's trafficking this person by force during this period of time and he's trafficking this person who is under age during this period of time any one of those acts are in support of each of those counts interchangeable but i guess i'm maybe it's judge has concern a little bit it's i would think that the more likely motion when you're looking at in the document it says from on or about march till april and the testimony is it's there being prostituted up to a dozen different men a day that your argument would be duplicity how do i defend against this we're talking about hundreds of possible felony prosecutions but you elected not to do it instead you say it's multiplicity hard to of prosecution is not in every district discreet act of commercial sex it's the scheme it's the individual a person traffic it's trafficking an individual is this a fox and i think it's an offense to solicit somebody doing good commercial sex acts so if somebody doesn't have million times over a fifty year period that's one crime perhaps with regard to soliciting that could be i don't see any case if you do it once in twenty eighty and into the same in this case the district court correctly decided that counts one count three were both properly that imposing sentences against keys for counts one in three were proper this decision was proper for two reasons that the government has explained either because these are two separate crimes that force fraud and coercion is a separate crime from trafficking a child or in the alternative under the continuous transaction test the evidence at trial supported counts one and counts three because the evidence at trial supported multiple different acts over the period of time some of which involved the defense the key is reasonable opportunity to observe that attorney's manual i would have thought there'd be some guidance on the unit or prosecution more for that i think the question is supposing counsel was asked as to duplicity than multiplicity is the does the government agreed with opposing counsel's view that you can only charge march to april as one count because it's each child prostitute it were could you have charged many many incidents in this instance the government agrees that you can bring a trafficking charge and a fifteen ninety one for each victim however the government disagrees with keys that there is one child one crime under and under and one which is what was charged here in both counts one and counts three a one is listed with specific  acts recruiting in thai scene harboring transporting providing obtaining maintaining patronizing or soliciting by contrast a two is what talks about a venture a scheme a two may support the type of charge that keyes is arguing here that for a period of time there can be one event one trafficking but the way that the statute is written is not trafficking if that's not the office here a one is specific crimes and both counts one and counts three were both a one crimes here now as explained in the government's brief in this instance you have different elements and you know that  from a child because the two have different mandatory minimum statute penalty provisions in addition you have different intent requirements for the two and so for those reasons the government contends that the block berger test is appropriate because these are two separate the unanimous finding by the jury as to either of those either of those prongs and we know that where you have where the jury has to unanimously decide something that is an element and then again under mathis we know that where there is a penalty or there separate penalties those are considered elements and so here if you consider these two separate crimes be one and be two the is that the blocker test should apply now of note to say that the government can s soliciting because it seems to me that those are separate crimes is your honor and that is the government's the point that under the continuous transaction test if this court were to determine or not not use the block of the test and determine that this is one statute that this is one crime or that the fifty nine to one is one crime in this case the evidence at trial did support that there were multiple crimes that occurred over the period of time and so yes counts one and counts three are supported by the evidence in trial because the evidence at trial showed that he is he harbored he provided he recruited he obtained he transported and he solicited jane doe one over the month period of time he did so there's separate evidence showing that during this time he not only had the reasonable opportunity to observe jane doe one and observe that she was under the age of eighteen there's also separate evidence but during this time he's knew or crime being committed one act may make it more simple one criminal act but the government wants to charge multiple fences that's block over here i would say i would i wonder why a blocker or even applies because you have numerous criminal act and someone asking is if you're would you be satisfied by a finding that we don't even apply blocker because there are multiple criminal acts yes your honor i believe that i believe that a finding that the district court judgments was district court judgment is correct because there were multiple acts presented  trial is a correct result i also believe that because you have two separate penalty provisions with different mandatory minimums along with two separate intent requirements where force fraud of course in is involved and where there's a child involved that under crime what do you make of the fact that under fifteen ninety one b two it specifically said as if the b want to fence was not so affected by this actually what i'm trying to say is  seems to say that it's available only if there is no force or fraud it would seem to me that that makes it hard to charge both for the same act because be one is about force m b two is about specifically not force but that's why i'm injecting my alternative theory because i'm not sure your theory works about offense an offense that does not involve force suggest that congress doesn't intend this to be something of a charge warrant something which are going to be want to be to well for example i think going to your point that there were two separate there were different acts that were involved here right so you could look at the two as saying if the office when you're talking about the oftens involved if the often is the there was a solicitation of somebody who had reasonable opportunity to observe was under the age of eighteen that enticement or harboring so on and so forth that that is a complete oftens were you know prostituting minors is often going to involve force is there no circuit th as the multiplicity issue and how the government charges there anything you would recommend that we look to at the circuit level instead of the district opinion side like northern district of ohio what's the best  unfortunately i don't believe that there is a circuit opinion that is directly addressed this but however as i mentioned the todd decision the ninth circuit case six twenty seven s third three twenty nine it says it refers to these three penalty provisions or in three different crimes two involving children it's important to get it straight to help government prosecute and defendants defend but am i right that there were concurrent life sentences on each count so we're really talking about the special assessment yes your honor that's that's what this reduces to in terms of the defendant's multiplicity exposure is just one hundred dollars special session in this case that's correct and under the grouping in the guidelines count counts were grouped together because it was the same thing so in this case the only thing we're talking about is this mandatory did you handle this oh no i did not i only asked that because you seem prepared it was interesting when i read the pretrial hearing do you remember what the government's response was when the defendant raised the multiplicity it was your honor will consolidate that's how we do it in for work but if that's the answer they gave that's inconsistent with your legal position here because if your position is correct that these are separate crimes if what the government's doing in fort worth is consolidating that would be duplicitous do you agree yes your honor but avery i believe thought about that yes your honor and the government in this case a below the district court filed a motion defending that in saying that these counts were not multiplicity us there were some comments made that would suggest that they could be consolidated or will and would be dismissed upon you know if there was there were two judgments or two convictions on from the jury however the district court correctly rejected that and correctly imposed both sentences because these are two separate crimes and even if it's the same crime the evidence at trial was overwhelming and supported the imposition of counts one and counts three with the evidence of trauma been overwhelming with testimony or suppression order to turn the detector yes your honor in this case the government is not defending some of the statements the government is defending the statements made by detective helper regarding the interview his his observations during the interview of the  keys i believe that those are appropriate to the church will decision ok i'm sorry to interrupt is your question but therefore he was present when they were when keyes was confessing detective however confessed to i'm sorry he's confessed to detective harbert so detect was there when he was confessing and that confession was admitted into evidence and the jury reviewed it the reason i think the jury reviewed it was because they specifically requested for speakers and a d v d player to watch that interview and so detective hubbard made certain statements regarding whether he thought that the defendant's statements in the interview were truthful or not i believe the state of those statements were appropriate under the church hall opinion however the other statements the summary statements the opinion s those are a handful i believe detective hubbard there's two maybe three at the end of his testimony detective can't i'm sorry a special agent campbell there's three at the end of his testimony if you were to take those out the record is overwhelming with evidence in this case or does specifically objected to no none of the challenge statements in this case we saw that with no jerk correct so we're talking about plain error review here  and where you have a handful of statements at the end of the agent's testimony that is not approach that is not sufficient to show that there is a reasonable probability that the outcome would have been different here you have two girls both of whom were children when they were testifying two years later the jury got to observe those two girls they talked about their stories they said that they hadn't seen each all jane doe one testify that she had not seen jane doe two until the morning that morning in the courtroom their stories of what happened were almost identical any differences were on the margins and keys himself admitted to quite a bit of this when in his interview with detective  detective howard in fact the account with jane doe one where she says she finally escaped because an older prostitute told her that keyes was treating her so poorly and they needed to leave she went to a house and the are an apartment and then less than twenty four hours later she's came with guns put a gun in her face had friends come with guns and the only reason that she didn't have to go back with keys or that she didn't die was because the people in that apartment and the trap house next door came out with bigger guns now this was corroborated in large part by key's own statement to help her that yes he did in fact see her at that house that day and yes there was some sort of skirmish under those circumstances the record is is it is full of evidence that would support that what jane jo's one in two said what was that was was believable not only do you have there consistent statements largely corroborated by many of the statements by keyes himself but you also have physical evidence you have the the photo of keys on facebook going down to houston that jane doe one specifically referenced you have the hotel records showing that he was paying for these hotel rooms during the time period you have the back page ads and you have his e mail showing that he had over two hundred back page ads during this time period so in that instance the case subpoena case that the government cited in that case there were also two agents that gave lay opinion testimony i mean in that case this court found this being a wrangle case i'm sorry five hundred f third at four hundred  those were two agents that gave way opinion testimony and i was found to be harmless error because the evidence the record supported the jury verdict notwithstanding those statements and the second circuit case the garcia case cited by the defense and that case there was impermissible lay opinion testimony but not withstanding the second circuit found that that was harmless and that was that was not even a plainer standard that was actually going in closing say and you heard from the summary agent that he said this rule this guy's guilty no your honor that's exactly where i was going you know the government did not rely on these handful of summary statements in its closing argument and if you were to take out those handfuls of those summary statements the evidence in this case was overwhelming against keys and certainly could have satisfied the the jury could have supported the jury's verdict and the fact that these miners were provided with tremendous amount of drugs be considered  i believe it could be could certainly could be considered coercion dr wolfe testified that this is a common it's common for traffickers to kind of control their victims by keeping them high on drugs keeping them sleep deprived and that's exactly what these girls said happened in this case and i believe that not i believe the jury certainly was it was certainly appropriate for the jury to believe that jane doe one was not free to leave because when she did leave that he's had a reasonable opportunity to observe the girls he confessed that he saw these girls completely naked before he engaged in the transaction with black to bring them to transport them to his apartment and start pumping them out himself before he bought him before he bought them yes eighteen both girls testified that he is new and was told that they were both under the age of eighteen and then we know that jane doe two left she was there was some transaction with with a with a john for lack of better word after that used she recounts a specific instance at the executive in where she was high on drugs and she was rolling around on the floor because she was tired presumably she did not want to do is any more and she is said hold a gun and said something to the effect but with regard to the question of the multiplicity issue of discrete acts i am not saying that the government couldn't charge separate discrete acts i don't know the answer to that because that's not the issue in the case for instance if the government had charge this case that each of the separate come arsenal sex acts was a different crime that might be permissible it might and might not i don't know the answer to that that's not the issue in this can there really isn't any circuit direction on that but it doesn't matter for this case in any of it what is better now and then and then allergy in this case would be a set it was one commercial sex that and the person was under eighteen and force was used could he get two convictions for that that's what we have in this case why can't you say it's not presented why can't we affirm our background because the only difference in this case about whether or not he got convicted of one counter two count was whether or not force was used and whether or not she was under eighteen the same exact and the way this case was presented to the jury the way it was alleged the way it was instructed is the same exact acts would have been the basis for his for his cause and for everything else other than those two elements are you saying what is it exactly that prevents this court if it sides to to affirm on this ground that the supreme court decision and bell in this court's decision in evidence w say if this is if there's a single transaction and a single put the statutory provision that unless congress has made it absolutely clear that they intend to double punishments there should be only one punishment i understand that's the issue that you believe is presented and that's not it's a fair point that's i think how it was largely briefed but this alternative theory that we've been talking about today is there anything that prevents this court from affirming on that alternative ground yes because you cannot find that the jury found separate acts and there's no the way it was presenting to the jury that's this jury verdict had to rely on the same acts and you certainly can't say that it didn't so you can't you can just find the only difference between a two verdicts as what i said the force or the underage i believe it was before the jury that there were these three time periods right the first time period where there was commercial sex acts the second cut in favor of this affirms on alternate grounds the time periods are very broad day in other words they are capacious enough to cover up the jury could find all or any of the acts within that time period the basis of each  so there's no way for this court to say the jury found discrete acts and therefore this is not a multiplicities verdict was that double jeopardy analysis does not inform the debate with regard to whether or not mathis the analysis creates it renders a statute divisible or indivisible the obviously these conquered the issue here is congressional intent did congress and separate punishments and the statute was created before mathis before the and it be like furthermore it's just even if there's it is an element which it would have to be to be to get the fifteen the life to get that the government have to prove that the victim is under fourteen it's like it's akin to the drug statute you can get a conviction for a certain amount of drugs and it would be a higher sentence for a higher amount of drugs and the higher amount of drugs would be an element but it doesn't create separate can punishments case where there is a conviction the government can point to testimony be low that if believed be if believed by a jury taken out of it taken out of the context of the fight that was had in the jury would sound overwhelming because that were not because you're not here of value waiting the witness the cross examination the all the defense arguments or anything else you look at the cold record what supports it and it looks pristine and it looks strong yet again and ignores the fact that the girls admitted they were on drugs one of them a solution aiding during this period ok counsel thank you very much i'm sorry that's a guy paul you have your arguments we appreciate it  we will call the second case seventeen for one