this case as the court may be somewhat familiar resulted from an indictment filed in december of two thousand and five charging a multi state prostitution enterprise involving my client and fifteen others prostitution and the two principal charges here sex trafficking in violation of eighteen u s c fifty ninety one and interstate transportation of a minor in violation of eighteen twenty three twenty four now the evidence presented at trial basically involved for the most part activities at a place called the gables truck stop outside of harrisburg in the early part of two thousand and five now rather than go through the issues that i have presented in my brief in syria awesome what i would like to do with my argument time here is a focus on a couple of issues that the resolution of which i think will assist the court in resolving the issues that were actually raised in the brief the first that i would like to address is the nature of this prostitution business for which evidence came out at trial now the in this case and he called it the game the players in this game are the pimps and prostitutes and the most important fact is that the women who participate in this game do so because they choose to do so now you you made that argument and the i think the arguments that i believe you're going to make in terms of they entered voluntarily none of them you know experience prostitutes although i'm not sure that's true with carrie hudson and even if they got paid money which is what they want to you made these arguments to the jury in the jury rejected the argument and we're now have a very deferential standard of review to apply to the verdict do we not well i suppose i suppose that is so but it does still it's a less deferential looking for words in the light most favorable to you you know calling it a game banks also called it a partnership but he called things of that nature that don't help your argument and the jury decided against you so i don't know if you should  i'm not sure that the jury was actually asked to pass on the willingness issue and this goes into another issue that we raised in the brief which is the instruction on the with regard to the elements of the offense and what they should have been instructed to consider is whether a person was caused to have commercial sex by force fraud or coercion or if the person was under eighteen and to have commercial sex however they were properly instructed on the second basis of possible conviction which is that we perceive you under eighteen in the us to have commercial sex there only told the person had argument on the first because the second the evidence was pretty strong here you would have to says plainer if you you would have to show you know almost a miscarriage of justice as to the failure and it was a failure here to give you the second prong of the second prong for purposes of the conviction i understand i think the problem is this the the court below purported to give two alternative bases for conviction for shorter who were or under eighteen which was incomplete even of itself to the jury having heard that they have two different bases for conviction comes back to the single judge of verdicts which doesn't contain any alternatives just as guilty or not guilty so we don't know exactly what is the premise which each of the two but we but there is sufficient evidence for either one well well there isn't because bill clinton there was under eighteen she was under eighteen and there was ample evidence in the record of force in the conspiracy coersion if the if not force well the problem is are we where you used or she was under eighteen but never the added element that you because they have commercial sex just be under eighty so they come back yeah but what i said earlier if it cost to have commercial sex if you look at the evidence in this case i don't know how you can show a miscarriage of justice on that prom i think you're much better off arguing that because of the their years here the inconsistency here between the indictment the instructions the verdict sheet the remarks at sentencing we don't know we cannot say beyond a reasonable jury beyond a reasonable doubt found one rather than the other for purposes of maximum sentencing now i can't i can't make it any clearer than that if you don't want to would dress that that's your you're right but that's where i think you're stronger argument as well that this should be a forty year max not a forty five if the court not a life and not why not i think the court has made my point as well as it can be made on that issue i think in a case like this where the maximum sentence is affected by a factual issue a determination that determination must be made by the jury they were given that opportunity and so the court cannot take it upon itself to  side that it's going to impose a maximum sentence in an area where the jury clearly has to make that determination of what to focus at this time going a little bit on the sentencing in hansoms that were applied in this case and the basis that the court used to apply them which i think were not supported by the record the first and most important i think is the cross reference as it's referred to and that is and requires a finding of some form of criminal sexual abuse in order to be applied and simply put that requires that someone be cause to have commercial sex by force or threat of force or fear now if we look at the four prostitutes the four named prostitutes that were involved in this case with the defendant there is no evidence that he ever coerced any of the four to have commercial sex out of force or fear all of these women were experienced prostitutes we met him went on to prostitution after they left him voluntarily came to him and voluntarily left didn't quite know testify she didn't have a choice about whether she could or could not wor and was very limited but the quote which your honor refers to has to be looked at in context first of all she was picked up in harrisburg taken to toledo where where nothing happened she goes to florida they got an escort service a couple of times no sex takes place they come back to harrisburg will she goes out one time i think gable's lot and immediately then is recruited by wayne banks and that's she was wayne banks for a while then she comes back after banks rested and comes back with the with the defendant now at that time there's a lot of frantic discussions amongst co defendants that it's clinton who had worked for a number of the defendants and for which there is a material witness warrant out somehow he kept from authorities and they were trying to prevail upon my client mr williams since he had contact with her to keep her away from the authorities he never agreed to do that and in fact they the last thing that they wanted to do was to take her to harrisburg and from the worker because that would expose her to arrest and potentially detainment on the material witness warrant but that's exactly what he does he totally ignore telling brings you to harrisburg and she we the reason it came to her support was to try to escape the material witness or at least in her eyes so she doesn't want to go on the lot that night because she's afraid of being arrested has nothing to do with commercial sex and that and that is not even in the government's brief that her whole reluctance and her expressed reluctance on that occasion was i didn't want to go out because of the police it was because of the police and that's exactly what the  was that's exactly the context it was in and it had nothing to do with any reluctance to have commercial sex which she had done willingly in the past what about her i'm not sure i understand that argument but i'm not sure that addresses  her testimony that she didn't have a choice on that particular i think that that's five twenty five and five twenty six in the appendix if you could explain why there is that testimony does not support the notion of coersion she said he was she was asked at trial did you want to go to work that night you said i was scared because of the police i really didn't want to go because of the police well why did you get ready to go to work well i really didn't have a choice you never choice no not really and that's something that terry said you know i just didn't want to go through the problems of me not going you don't want us to look at the madison case you should because  madison case would say that there is no proof you don't need proof that he forced her into a particular sex act that night right and i'm familiar with the madison case and what the medicine medicine case does say is that the force must at least be used to keep women in your employ and i you suggested that evidence is not in this case i am suggesting that the beatings the belts they all this if you understand this prostitution business the way it was described by banks is again ok it's a game of them who can enter or leave but once you agree once you step on that playing field you might get hit and you might get hurt but you can leave the game any time you want but if you want to stay in the game then you have to submit to discipline and the discipline can be for an infraction of rules having nothing to do with having commercial sex that they agreed to do or  could involve not having commercial sex right i mean it it's it's pretty obvious that if any of these women decided they were just going to take three days off and go to the beach that's not going to work with the p partners you have to leave the game or stay in the game all of them and that's so that's not coercion i mean no you can no more than so so in florida you know a sixteen year old in florida can just say oh i'm go leave home how she going to get back to toledo i mean i can't even drive wayne if you're talking about just a clip where she was fired by wayne bass ok and that i think that the notion that a person can be fired from the prostitution business i think undercuts the entire notion that there is anything involuntary about their sexual services the worst discipline you can hose upon the many angela's is slamming her into the car the booze the beating with the belt robert scott is arrested she comes to work voluntarily for terrance williams works for him for a couple of weeks and takes a couple of weeks off goes home where she has a normal what apparently is a normal family a mother and a father and so she thinks the atmosphere there is too strict she comes back out to work for my client without any repercussions whatsoever not punished for leaving or anything of that nature works for  him for a period of time then what she does her rule infraction is to associate with a another family in this case franklin robinson she goes to a party with them and they may have engaged in sex it's hard it's hard to tell but in the rules as outlined by wayne banks a woman who's in the game does not look at another count she did more than look she actually associated with this person in some fashion this is why she got  came back and she was hit with a belt what does she do that she stays with him willingly for another month after having a history that she could leave it any time and go home if that's what she elected to do but she didn't she chose to stay in the game knowing what the consequences are and knowing and having seen my time's up that she could leave at any point because she had done it in the past you know in you're quite right i think the record shows that there is sort of a prefers codependency or i mean there is certainly an element i think of choice here but you know the fact that that some of these women or even most of the might come back at sutter or continue these very destructive relationships that doesn't eliminate does it the the course of aspect i mean it's it strikes me  generically we where would most of these women go if they left and they came from nowhere many of them had no families no one so they could leave but where would they go i out her mother her mother was going to take was taking money again this is this is a statement that was made by the government for which there was really no support what we've got the tran how they construe what happened there that isn't what happened what happened there is that when banks is now under arrest they know that jessica clinton was out there floating around and she go over test and we not only against him frank  maxwell as well like wayne banks has never met my client has no record with him and is trying to persuade some of the other people to intervene and persuade williams that there's a real threat here and the problem is he just doesn't buy it he doesn't see the threat the last thing they want him to do is to bring plant near harrisburg to try to work out which is exactly what he does this is what undercuts the government's assertion of her some kind of conspiracy involving my client they wanted him to do something they wanted him to funnel then please the court money instead smith and a special assistant united states attorney for the middle district of pennsylvania representing the united states the appellee here at counsel table with me is gordon's abroad from whom you heard last week who tried this exactly and you gave me a little bit a chance to prepare and it's something i thought about yesterday and last week as i prepared for this argument that first of all  if it is a problem that the court instructed the jury as it did on count eight it is a problem that affects only the maximum penalty forty five year sentence was imposed it would reduce the i think that there was no plain error here ok and i'm thinking about this court's perhaps seminal case of course a lot of it was a seminal case on plain error but this court seminal case on it is a case called united states versus no block and in no block it was a guilty plea case but the court absolutely miss instructed the defendant on the elements of the offense to which he was pleading guilty it was one of these old nine twenty four c counts and the judge said that the what the government would be required to prove is that you carried or used the firearm during and were in relation to a drug trafficking crime and of course it was absolutely necessary that he carried the gun during and in relation to a drug trafficking crime the judge's instructions of the defendant of what he was pleading guilty to pretty much made it unnecessary for the government to prove the nexus between the gun and the drug crime nevertheless this court held that there was no plane or it was a very why i suggested earlier i don't i would be very difficult for me to find plainer as to the the conviction part of the missing structure which you failed to put the second part in and but i'm more concerned about the sentencing exposure and what i see would characterize shorthand as the instructions which both deal with the disjunctive then you've got the verdict sheet i'll go back to that in just a moment where all there and there was no special into raga toward the court would misspoke when she said that at  sentencing and all the asked whether the defendant was guilty or not guilty of of the crime charged in count eight of the indictment referring you to the superseding indictment which spoke you know in the conjunctiva and then it sentencing the court said that essentially the apprentice issue was submitted to the jury in a special into ragatz or which it was and so we find it very difficult to say that we know what the jury did beyond a reasonable doubt for purposes of whether the maximum sentence in here is forty years or life correct that's my argument what mr smith in your view did the verdict sheet ask the jury to find well as to count it as a jury to find guilty or not guilty  which did correctly charge the offense now knowing how what did it say in the verdict it was can love the verdict sheet on count it was guilty your no no i mean very specific the verdicts lee slip for count eight you tell us in your brief require the jury to find defendant guilty of trek's sex trafficking of children by have not told us is in it alleged the jury is required to find defendant guilty of sex trafficking of children or are  by force fraud or coersion of jessica that's a big difference what that's two different offense well your honor and we don't know what they found him guilty o we don't know which of those offenses for purposes of sentencing the jury found beyond a reasonable doubt he committed yet they did return to count one of finding count one was not the crime charged in count  enticement and out one as to a different crime but the deal with the or business was that a mistaken you're mistaken your brief i think yes apparently  the i have the same concerns as should where it when when i look at page six the quotation that you just read which i was at sixty eight and sixty nine and then i look at the appendix of page eight hundred eighty eight i see two radically different things in there they're almost identical but one has the word or and the other doesn't which is precisely what makes them radically different i thought on page sixty eight to sixty nine i defendant guilty of sex trafficking of children by force fraud or coercion all right sure children by force right older and by older ones by force right but the or is missing after the word children then and then appendix on the charge of sex trafficking of children or by force fraud or coercion and we don't reshape the significance of the difference between those two you know not i know you and not the difference from the verdict slip the difference between the instructions that the court gave and the instructions the court should have given on that and the argument i made was that you do know what the jury found  because there was just an enormous amount of evidence of coercion here and that's why you have the dental point i mean and against that's just because the evidence is sufficient to show coersion and i think you're getting the correct vibrations that at least a couple of us in the panel may be agree on that but but that begs the question they still could have could have chosen the other path to convict just because the evidence is make a difference his substantial rights were very seriously affected by this error if you were using your whole time on this issue well this clearly is the issue that concerns the court so i think very appropriate to use or it's not my time it's the court's time and i want to identify the court that there's no different than here but i think what the defendant has to show here is that the verdict would have been different ok i don't think the mere difference of the five years in the sentencing a stablish is that his substantial rights were affected i think and remembering that plain error is the burden is on the defendant to show playing or he has to show that the verdict would have been different but of course of prend he says the indictment you have to look at the indictment been different because now the verdict let's posit that the verdict is guilty because you have the defendant coming and going so to speak right you've got plenty of evidence on either side of the or the problem is we cannot evidence of age put into the case then i think we would have to accept your argument because we must conclude the jury chose the coersion path but here we've got ample mere fact that the evidence is sufficient to show co worsham does that mean that there's no plain error in my answer that question is no mere sufficiency is not enough to negate the possibility of plain error but this is not a case of merely sufficient evidence to show coercion this is a case to a jury did not properly the jury was not properly charged or in the elements which would control the penalty her either i mean the there are just just too many things i think here to enable us to say with confidence that the jury found be beyond a back on the merger issue we were going to have a resurfacing here we know that it absolutely has to go back all right so it's you know so we can't get you to concede that that part of the recent thing should also involve this this issue regarding that we've been spending so much time on well you're asking me to concede that five years should be taken off the sentence and frankly if that's all that happens in this case i'm not sure the republic will fall on  the other hand on the other hand i think this guy deserved every minute of time that the court gave him you know i don't want to concede that the court shouldn't a given it to him because i think we can't know under pressure we can't we can't know instruction and why they didn't it's clean it's of in the sense that it's clearer but so you've got to fight the battleground and doesn't affect substantial rights well five years off a guy's sentence is substantial i agree i would want to have to do yes ok and county doesn't say entice but it is for straw to coersion and all three of those are a higher level of compulsion than enticement but the evidence of coercion again was so strong that i think the quirk and be satisfied with confidence that the jury didn't do that and that the jury found there to have been coercion because of the beating with the metal end of the belt and this shoving against the steering wheel and breaking ribs and the shoving our head into the windshield and you know everything that jessica jessica klempner a testified to the one woman i don't remember their nationals very well and i've been training myself to only use initials the woman who who was raped by the truck driver and it was still cold she had to go back out on the lake chill yeah and and prostitute herself and who didn't you know who knew what would happen she said she was worried about what would happen if she didn't do that and she had been beaten so i think there is just overwhelming evidence of coercion here and since there is overwhelming evidence of coercion here you don't have to play an error you don't have  that's that's your that's and wrong or even the jury was referred to count eight of the indictment which charges in the conjunct do we know beyond a reasonable doubt the jury see that's the problem for the jury because you charged in the conjunctive but they were charged in that the job in the disjunctive so we really don't know what they found and i remember when i had the same job you had a thousand years ago we used to argue we called in the old days the good will stop wind of cases i understand what you have to chart but none of this stuff is very clear the jury because given the given the failures here in the instructions and and the inconsistency is between the indictment the verdict sheet and the instruction and statute i would think that if that really if you want to try if we want to read the tea leaves and try to figure out what the jury did i would think that looking at the indictment they would have thought that they had to substantial rights because it's up to the defendant to demonstrate that the verdict would have been different but for the error that's my argument sponsor just to go down before you sit down mr smith can you just address an issue that's caused me a lot of thought and perhaps some confusion regarding vulnerable victim because on one level you could say the great majority of women caught up in a manic conspiracy are quote vulnerable but it stands to reason that under the guideline definition of a vulnerable victim  that's going to have to be a much higher threshold than in other cases right otherwise the voter victim enhancement would apply in all men act cases well and let me say i don't completely agree with you and the reason is that guidelines are not statutes this effect there are many instances in which an enhancement automatically applies under the guideline that's applicable to the offense because the the offen involved an element that that triggers that enhancement and i think that is one thing that your honour's concerned with here but that's not a problem under the guidelines because the guidelines that you apply will appl number of different statutory violations and so you yes you it's not double counting because the guideline is broader than the statute and  the fact that that element of vulnerable victim is in the statutory violation that's not true for every statute covered by that guideline so i think i think but in seventeen seventeen of the first circuit said there's there's a much higher they put the government to a much higher test in a manic case to show vulnerable victim well and then we and we follow that well first of all i don't think you should follow it for the reason i just articulated but perhaps more importantly i think these victims were beyond the level of vulnerability that exists even in your average man act case because of the specific characteristics we heard four of them w actually examined by the psychologist dr cooper had some pretty pretty and that didn't come in a trial though that was in the daubert hearing that was evidence of the daubert hearing but the district judge kept it out for trial the  effect on the individual victims in this case the judge was entitled to consider it for sentencing down yeah ok i'm just on it and it was and it was alluded to in the in the pre sentence report and the only objection the only objection to the vulnerable victim and the number of vulnerable victims and handsome months was not that these were that there weren't any vulnerable victims it was that the girls he was involved with were not vulnerable victims and i disagree with that i can't think i can imagine anybody are these through these broad brush references to well there are a lot of girls and they're all vulnerable she did mention j k by name in this particular sense and but i'm it would have been a lot more helpful for me anyway had the district court gone through and to rule on the objections as they are presented to it and the objection here on vulnerable victim was not that none of these victims were vulnerable it was a the objection was simply mr williams was not involved while he also went into the the conspiracy and force and that's the other question is it doesn't matter whether the girls he was involved with were vulnerable because under pinkerton and the relevant conduct rules he's responsible for the foreseeable conduct of his coconspirators i bet you thought i was going to beat up on you on organizing a leader after our argument of last week i did not probation still got it wrong in the pre sentence report amount i think and but i also think elise you had five participant absolutely that she mentioned absolutely mention but i also think he was the he absolutely was the organizer of the leader of the efforts to get jessica klempner away from law enforcement banks help him when he's quoted on the call saying and you know it's all my call yes and banks described him as a middle man i thought you'd be you you'd be pleased now with with with all due respect to mr williams is who per attorney's argument this regard at least this time i'm not going to beat up on you one this issue well and this is this is my swan song your honor so if you want to beat up on  and we've given this just with extra time so feel free to use what you think you need within reason i would like to point to the court something that has not been specifically mentioned  here and that is the liability under the guidelines and there enhancements of my client for acts of coconspirators i believe it was incorrectly stated by mr smith that simply because there  coconspirators that he may be liable for their acts as they relate to the enhancements in the guidelines i believe one b one point three directly contradicts that it says in the notes it is important to note that the scope of conduct for which your defendant can be held accountable under the sentencing guidelines is significantly narrower than the conduct embraced b criminal activity can be attributed to my client would had to be reasonably foreseeable i don't think he indicated otherwise and perhaps we were here last week in this case to in a substantial amount of discussion involved what was reasonably foreseeable facts in my client's case but bear in mind that these two operated independently had never met until the day of trial and i think it would be grossly unfair to attribute to my client acts done by that particular codefendant and others that he had never met of which there were numerous in this organization i think he should be and what should be true to him is only things that he directly participated in either yourself or with others and i think in this case a fair way to look at that are beef for prostitutes that that he was involved in and one last thought that i would i would like to convey to the score is that the notion of the infliction of violence for some other purpose in conjunction with prostitutes to should other than causing a woman to have sex i think does not meet the guidelines i know i mean can or a great deal of resistance and perhaps that i'm cutting too fine a point here but i think that's a different thing but i understand you're saying that if a pimp beats terribly a prostitute because he's jealous because she's sleeping with one of the pimp partners that's not covered by the guideline that he's not put feet if he beats her because she's not working hard enough to earn for him then it is covered that's is that the argument you're made that may yeah i think that's fairly close to the right of reasons why a pimp might beat prostitute that's not covered by that god or yeah and i think that it is long as you consider that distinction i'm i'm i'm finds as one has understood because i think it's an important one here i think not just every act of violence in the course of prostitution is covered by the guideline has to be a very specific kind of force used for a specific kind of purpose and again the notion that you can walk away from the game when ever you want i think as another element and i don't think the force or fear of coercion is merely the fear of having to enter your prior life before it was your life of prostitution it's got to be some other kind of fear but what about vulnerable victim would you addressed seventeen zero and that issue as relative to men actually a says yes i think i think the word that has been omitted in the discussion between the court and opposing counsel is that it has to be unusually vulnerable not merely vulnerable and that's what we don't have economic deprival homelessness drug dependency those elements do not seem to be sufficient and i'm not even sure those elements were present here in any case and these these well what we're finding of the trial court make in that regard to to support that it has if specifically i mean i guess it to help you like my notes indicate that that she found that jessica klum or was quote unusually vulnerable due to her emotional and economic state why was that an abuse of discretion to make that  five i don't know what her emotional state was or what evidence there was of her emotion state that in her economic state didn't seem to be particularly unusual and not sure how that was she was thrown out by robinson left with nothing i mean our mothers g specifically the court said just for clinton there was emotionally vulnerable having left home voluntarily at first with frank robinson but later separated from her family dumped in detroit by robinson left alone penniless and without a means of support resources available to return her home to her former wife now our case law says you kennedy kennedy case from two thousand and nine victims can be particularly vulnerable if they are financially insecure or sick in a state of emergency or otherwise susceptible to the particular kind of criminal conduct at issue right wouldn't you think that would cover the jessica clinton case it might if anything that the court said was factually correct which it is not the facts of the case were that she was left home voluntarily not with frank robinson but because she was on the street it was ultimately picked up by a person by the you should know maxwell and prostituted for him then went to frank robinson and he she was not dumped in detroit but taken happened to be into lido it's a come down take this girl back to lido there was no discussion as to what he would do with her or what they would decided to do alternately he came down stayed one night picked her up took the vax to wheedle which she had any ud mr o'connell too because i guess you have been in this case for a very long time and you have done a very very good job for your client because you both have done well three of you have done a very good