morning your owners may please cory assistant federal defender alina shell on behalf of helen hernandez mr hernandez in this case was charged with and ultimately convicted of eight counts of sexual think that the record is confusing about the means of culpability the government rest its had on the government proposed joint proposed instructions that limited the theory of culpability to persuasion and it was their discussion about judge says where are you reading that from what are you talking about when the objection was made by the state to the fence council's argument on focusing on persuade and correct correction and  saying we're reading that from so that's my basis is why there might have been some confusion about where that came from my understanding you have to rest assured that i guess on fact that that was jointly agreed explicit conduct and again at one sixteen says the defendant persuaded and so the judge had accepted your instructions apparently the judge had given the jury the jointly proposed instructions yes here and then there's a discussion during went back but the implication here is what if i make it elaborate on what happened next your honor so the government first i would point out at the age ph for ten than an instruction your honor i would say that she did say i will continue my argument but that was only what he did with using the track in the language of the statute he did your honor but that was only time because the judge was right there on him to i mean and then addition he so i guess i'm not sure what to do with that and i'm not quite sure what your what you're asking what's the problem is because it became i think a little bit compiz in because it was surrounded also by an objection that somehow the defense was arguing and said and i think if we can clear that consensus not permissable defense to child exploitation so please help and ravel what happened and exactly precisely what you're saying was there i will address the first what happened and then i'll talk about what i believe  implication of structural error in this case which is actually something that the government raised in their answer in brief in preparing for a closing argument and indeed in preparing for trial the defendant in this case reasonably relied on the got to persuasion at least they've got they've got to this way should i disagree on that point obviously by asking a question like how did you ever excuse me have you ever taken anything like have you ever done this before had you ever sent any pictures before whose idea was this he didn't ask you did he offer you some sort of dazzling incentive to do this did you say if you send me this picture she thinks she did it to please him so that's an incentive well in a in a relationship your other people do things  disagree that consent was ever an issue in this case the government made it an issue after during cross examination the defense counsel asked natasha chapman questions that went to whether  persuasion she testify not only did she say she did it because she thought he would like it there was also testimony and you'll forgive me for just a second i stand on it well this time the connotation that it's a relationship that embodies the idea of consent how can you have a relationship between a teacher who think an advantage of the student how can how can that be a relationship legally it's not a relationship your honor however if she wasn't able to ask questions like that and if he wasn't able to argue of my knowledge and i actually that was a concern of ours when we were doing the briefing which is why we identified her by her initials and c but later as i was looking at the record there's no indication that there was anything you know that there was the concern that your morning makes me sick or i wanted to make two corrections to my brief before i respond to what defense counsel said well first of all on page twenty nine in describing the windsor case i wrongly described brief i incorrectly stated that the victim said the defendant told her that she might go to jail i said that on page seven and page twenty upon further reflection and looking at her statement it was it was confusing to me when i read it i misunderstood it but i want to be absolutely clear that the government is not taking the position that you said that it is actually thanks to him he's his concern was about him going to jail and the way that she quoted her statement on the stand she quoted him and i just got confused and i apologize and i hope i'm not wasting the court's time but i just wanted to get that out there so under the past in this case it was that coach but not  teachers and coaches so i don't think there's a distinction but i wanted to one thing that didn't come up during defendant's argument that i think is very important as and just to lay out the sequence we found proposed jury instructions before trial that the state only the word persuades during our opening statement the government listed all of the words in the statu during the charging conference the week incorrectly but we during the charging conference and during the subsequent jury instruction we limit it was only the wor persuades where you the trial how so no i was not your own i'm using the the royal we so during that the jury instruction that was given before closing argument that's april twenty third right a proposed instruction that was incorrect because let me take it back one more step without an indictment that included all of the ways that he can violate the statute next we filed a proposed jury instruction that improperly limited it to persuasion next during our opening statement we recited all of the ways that he could violate the you know murder with a hatchet all along and then at the last minute we come along and say well it doesn't matter if you did the murder with a hatchet he hated that because that's ambushed and that's that's not fair and those are the those are the cases that that the defense is relying on  what happened here is confusion we charge the proc we didn't surprise the defense with this is really what i'm arguing with the we were clear in the indictment we were clear during our opening statement we incorrectly  defense argument seems to be he didn't have to persuade her to do it because they loved each other and i mean i don't think a personal about it but i have to persuade my significant other to do things in spite of the fact that we love it doesn't that it's not like you can't have to persuade somebody to do something just because you have this relationship and i think that the argument they're making goes to more i think at the time the that our trial counsel saw this thought that the jury might get confused somehow that his love for this girl could somehow notified persuasion and ask to be victim here to send in pictures once again this is it's it's counterfactual and there's there's nothing in the record about it i did i don't know how we would have handled that situation i'm guessing we wouldn't you had a different question i was curious and why the government question of jury instructions to form the jury about an r s section to a one point five for all i didn't get that  that was a little bit confusing your honor what happened was that the defense made an argument something along the lines of the only reason that this i'm out of time just manfully said to the courts question the only the fence made an argument something along the lines of the only reason this conduct was even illegal is because he was her stuff aco church is the only reason that this site struck that the defense made an argument that said the age of consent in the vatican is sixteen and these are two people that love each other they decided to turn this into a federal crime and so our trial attorneys responded by saying even under nevada this would have been a problem but by doing that they didn't mean to somehow i dumped in graft nevada law on to on to federal law they just made it to rebut what would have otherwise been a potentially confusing argument really what the government is advocating is a reading of the statute that would render those words meaningless congress clearly shows all of these different means of violation with the intent that these mean very different things and i just would say that i