good morning your honour's doug keller on behalf of mr bizarre the federal government indicted mr bizarre and ultimate convicted him of sex trafficking via fraud thereby triggering a fifteen year mandatory minimum penalty but way sexual act has been defined for purposes of the general sex crime statues and that's because that courts typically should define some new terms similarly when they appear in statutes governing the same general subject matter and that would mean  appeal to the dictionary i mean the problem is the dictionaries themselves don't agree they provide different definitions and i think this just reflects the fact that most of us will have different opinions and views on what constitutes sex and so it's not surprising  themselves disagree and so we're trying to figure out what congress intended i think the best indication of that is how it defines sexual act for purposes of the general sex crimes statutes well i'm going to statutes do they have the same purpose i mean the the sanction we're talking about is this trafficking commercial trafficking and sacks who are the others abusers who aren't necessarily doing it for money at all not necessarily but i think that the general idea is that you've looked is determined not just for the statues had the identical purpose you know obviously different sections wives have different purposes but instead due date is to govern the same general subject matter and here i think the general sex crime statutes  what's wrong with that reasoning i think the problem with that is i don't think that's what congress intended and i think that if you ask different people what they view as a sex act i suspect you'll get very different answers i understand that was this your court's view i think other people have different views and we're t tell this is the first time the government's ever tried to use this statute to criminalize anything other than that in all sex so we've got a case of first impression here we do and that and so to not to repeat myself but i guess i well i  think the best indication of what congress meant by a sex act is what it said with respect to sexual act and the general sex crimes that you have in the legislative history that tells you that are you trying to compare the two statutes there's nothing particularly helpful in legislative history of course my view is that that's because i don't think anyone thought people would bring a sex trafficking charge against someone who wasn't involved with oral in oral gradual sex i don't think it's a coincidence that there are any cases on the mean this term because i think until this case generally did the government take a cheap shot when we objected the district court judge need to affirm that no that was actually a fair characterization of what defense counsel had done but it was an unfair characterization our position has always been that mr was out in force anyone to do anything instead these women chose to do with they did for money so the government took a very legitimate defense to fraud and turn it into something important and that's that's simply not proper and i shouldn't happen in federal court so at the very least we would ask this court reverse  that a happy ending did from within the statute not entirely your honor we believe that it does fall i know i know you believe it but i'm asking you whether that to me case i mean there's so much discussion about  happy ending is that your case that it's because of the happy ending or is it more than that but we believe it is also more than that as judge wardlaw pointed out that menu which is government's exhibit one hundred page seven fifty one it specifically says the extra two hundred dollars full service extra four hundred dollars in addition an excerpt of record one forty five evidence came out of trial that during an argument with the victim i am the defendant claimed quote to be a pimp including he also claimed that all the girls who came to work for him slept with clients and i have to also and if i refuse that he will bring clients to me and i have to pay him some here there is evidence in addition to just the happy endings that we wanted to meet that the defense on the argument that they brought before this court so as a matter of statutory interpretation i think it's important to keep in around on the sheet well the sheets one piece of evidence the argument that i cited an excerpt of record one forty five is another our point is let's talk about the twenty four twenty two count is this court held judge word li author and opinion rush kelsie it's not at all the victim's understanding it's the defendant's intent even if this defendant is only saying in his ad happy endings and even if the victim say we don't want to have sex with clients we look the government is private prosecute a case involving happy endings this is really a case of for suppression if we decide if we're going to decide one way or the other that happy endings constitutes any sex act i believe it is your honor i tr to pride myself on my research skills i made an exhaustive search i know my opponents are bright lawyer he looked as well and you know since then i believe there i had an e mail a few months ago from some other district i don't remember where they were asking i think they were going to initiate but there's no case that involves that of course on the state's side and we cited a number of these cases going back to the seventy's and eighty's when there was the blooming of them soft parlors there's plenty of state courts that have decided that masturbation for money is i know under the twenty four twenty two pages fifty three of fifty four of our belief that pardon me fifty three and fifty four correct me said that plenty of evidence showed that was still defendant intent which is what matters is instructional see from seasons expressly listen to surcharge for intercourse and then on the next page fifty for the brief i say in an argument with i am and that's the argument i was referencing earlier he claimed to be a legislative history we think there is something very important congress in fact expressly codify the findings in two thousand when it turned to sex trafficking it said prior existing laws were inadequate to deter this evil which is understanding the judge doesn't need to from there starts a fight a definition you could not have a single definition to include every single possible sex act that might qualify for prosecution under this section congress itself i fifteen ninety one ether we found no need to define the term sex act this court would really have to stand commonsense on its head and in order to that to find that masturbation for money direct contact with someone's genitals for says terms of common ordinary understanding a sex act in exchange for money touching somebody's genitals for money that would seem to be a commercial sex act at least that's our position we believe that the court was reasonable in finding as much and i do never mentioned again the supreme court and only vs do you krista for instance that one phrase even if this court had a problem with it this was a three day trial that the closing statements were twenty pages by each party we don't believe that that affected recently just a few points your honor first that we've been talking about the the sex act issue only in context of the sufficiency of the evidence issue but there's also a jury instruction argument and so even if you think that there is sufficient evidence to find that mr bazar knew that these women would commit would have sex that doesn't answer the jury instruction issue which is which is important especially because that closing the government capitalized on the fact that the jury could have believed that happy massage constitute a sex act and for the reasons i've already mentioned i think second woman never had sex with anyone never felt pressure to have sex with anyone never testified that she thought she had have sex with anyone in fact she felt empowered enough that when someone asked her for sex or or all saks she felt empowered enough to say no and something that's very problematic for the government's case that this was a business involving sex it wasn't that was the experience of one woman but not the other woman but briefly on the the closing argument issue the prosecutor didn't mention this victim blaming issue once you mentioned it twice after she mentioned it and i would note she began her battle argument by calling defense counsel by name the blame or after the district court judge told the jury that was a fair comment was pretty obviously a close case since the jury jack did most of the government's case so i certainly think a very emotional charge statement to end the rebuttal argument are sorry to begin their battle argument could have swayed the jury to convict but certainly might have convince someone who was on the fence that they should vote guilty because they didn't want to side with the victim players if the court has no further questions thank you