filed some of the original motions and in another attorney was retained to pursue the appeal so i do understand the case has been argued before your honor i mean it could be for another panel this court which means that we will be unable to which is a somewhat different issue than was presented in the me case the me case as i understand it one of course to the applicability of twenty four twenty three and twenty four twenty two in sting operations i did raise two other issues in my brief which if your honor so let me briefly address i would appreciate the court's indulgence in that respect the other issue i raised with respect to the indictment is that in this case  client was charged in a sting operation but the indictment on its face did not with respect to count one allege that my client believed that the individual was in fact under the age of eighteen it asserted in a straightforward fashion travel not only with the intent to have sex with somebody other than the age of eighteen but also that had that act been completed it would have violated chapter one o nine of the federal code and in this regard that is a requirement and the government alleged in the indictment in my case that is mr vail's case that my client attempted to have sex with somebody between the ages of twelve and sixteen it was my argument below much my argument here that that specific allegation was not surplus that was rather something that the government was required to prove in order for my client to be convicted of count one and they failed to show that insofar as the only allegation was that my client got on a plane to travel from chicago to san francisco and with hopes of meeting the undercover agent who was posing as a minor because the allegations were specifically set forth in the enticement because they were not proven there is the individual argument regardless of how the court decides on the applicability of the statutes that he is not guilty of count one now the government in response argues that this was not a constructive amendment of the indictment because  essentially as i said earlier it was surplusage and i think the argument boils down to a situation where you have an indictment which alleges a specific act under a statute and that specific allegation is not proved i think the best analogy might be if somebody specific factual allegation contained in the indictment and in fact they prove a totally different bank even though the indictment says on its face alleges that he violated the law and they allege the elements that is that by force  he took money from the federal a short institution a factual allegation which gives me specific reference as to what i have to defend in the indictment must be proven by the government here the specific allegation was that my client attempted to have sex with somebody between the ages of repeat it a great length again it almost sounds from a very similar kind of argument when you allege in an indictment specifically that my client intended to have sex with somebody between the ages or under the age of eighteen and do not say in the allegation or somebody who the defendant believed was under the age of eighteen you have a fatal flaw in the indictment and my client cannot be convicted as a factual matter the final argument then your honour's and and i will obviously keep this brief in light of your honor's opening statements is that my client also was denied the acceptance of responsibility in this case and i would plead to the court that this court reversed that finding my client and your honors know from having reviewed the issues i think for you with respect to the legality of the applicability of twenty four twenty three and twenty four twenty two that these are very complex issues and and ones that many of us have struggled  with in the district courts as the sting operations have been used to prosecute individual across the country and my client submitted to the district court all of the facts that are before you for purposes of that defendant can do in a situation such as this to get acceptance of responsibility and i say that your honors because when you have an indictment which is charged in the fashion in which this one was that is that simply says he traveled with the intent to have sex with a minor and the indictment does not use the words or believed was a minor i could not in any under any of the of clickable criminal rules file a motion to dismiss or challenge the legality of the flexibility of the statutes in any fashion i had to go to trial in order to preserve the issue we couldn't even enter a conditional plea because of the manner in which the indictment was drafted and so having been put in that position i don't understand think here's the problem your honor the conditional please preserve a pretrial motion either a motion to suppress or a motion to dismiss i could not file a motion to dismiss because the manner in which the indictment was drafted  if i did the look of the indictment on its face presenting no legal issues that said that my client traveled with the intent to have sex with somebody under the age of eighteen if in fact it had been a real person under the age of  eighteen it would have been a valid charge and i could not have challenged it so the manner in which i had a challenge was to say well i think what you're really alleging here what the proof is going to show a trial that it isn't somebody under the age of eighteen it's an adult but my client  child at the end of the rainbow then you have to dismiss the indictment because there's no violation of the statute that would have been your honor the equivalent of a civil motion for summary judgment that is knowing the facts as we did going into this knowing the facts that we believe that when those facts are shown at trial you would not have a violation of the law but there there is no ability that we have in a criminal case to file that kind of motion in the conditional plea again presupposes that in fact  this was available to you in principle but felt that you were not just challenging the legal intent but actually challenging the intent to meet a minor what judge hamilton ruled after the fact is that during the course of our stipulated facts trials both parties used the witness in this case an agent to highlight aspects of the of the transcripts i think that she construed i think fairly read she construed some of my questions of the agent in the highlights as essentially having my client suggest that he had not in fact initiated some of the contact or had not had in fact essentially been led to come to san francisco by actions of the agents now in the end i did not raise an entrapment defense but i think that the record was was not disputed in that regard so the question becomes i guess when one looks at undisputed facts and a  a district court judges judge hamilton did hear mr hanson because you've highlighted certain aspects of that i believe that you're not really accepting responsibility whether that is in fact something subjective a clearly erroneous review by you and i would suggest it would not be the case when in fact as i said those facts were undisputed as was the case here but your honor you know you go back to another question which is whether she suggested this was available to me another context and we did discuss that and it was it was an illegal search because the statutes that were being used were illegal but she denied that and it would have come to this court in a very different posture if in fact i had simply entered a conditional plea with respect to the motion to suppress so in that regard your honor when one  was confronted as i was with the necessity of going to trial and then having a client who essentially i think the record fairly shows came to california certainly hoping to have sex with tammy the undercover agent  but also having clearly indicated that his intent was only to engage in activities that she saw fit that when i when my client indicated that to the probation officer at the end of of the day the judge felt that that was insufficient discussions with an undercover agent and says to the undercover agent as my client did we'll do what you want to do and time and again if you look at wall of the e mails well what do you want to do it was like two children i don't know what do you want to do i don't know what you what do you want to do and you go back and forth with that kind of exchange the concern was that my client came to california hoping to have sex with a minor there's no issue and he's taken responsibility for that what's a probation officer demanded was something different probation officer wanted him to say i was going to come here and have sex with this minor regardless sensually having my client admit that he was coming to commit a rape or at least some other kind of abusive sexual contact and that was not the case and so my client had to say in some equivocal form i was coming to san francisco with the hopes and prayers that i was going to have sex with somebody who was with tampa but i can't say for sure what the nature of that  contact was going to be because that was going to depend on what she and i decided at the time we met in the last conversations leading up to his trip went back and forth can we take a shower together can sleep together i won't hurry you and all of that went went back and forth and so that's you had an admission of wrongdoing and admission of remorse but in the context of somewhat of a conditional intent and the issue of conditional retention intent is a fascinating legal issue with respect to this far enough it doesn't need a critical element it's not trying either to travel across the country to meet with a fourteen year old that's not prohibited but for him it is traveling for the purposes of doing that and he never admitted to it so the question is is he is she sort of saying well i hope it works out is different than saying i traveled there for the purpose of having sex if it didn't work out of course it didn't but that's now so he's kind of it and that's that's why these cases become somewhat difficult when you have no clear agreement between the parties as to what exactly it would be i hate to sound like you know i intimate sexual contact that would be illegal correct it would be with a fourteen year old yes right and so i think in that regard i would hope the court would remain at it with the instructions that he received the three points and i have about two minutes left in case there's any rebutt this hope versus purpose counsel for the first time admitted today that traveling with the hope of having sex in the same is traveling for the purpose of having sex it's not always are you below the record is clear in fact the defendant argued why he took the trip to have sex and the judge said well you have since you have admitted you came here for the purpose of having sex you told us that was your hope and it's going and the reason i think that the judge could have found d i think with respect to count wants a close call constitutes not even a close call i think it's within the judge's discretion and reviewed unclear as to whether he accepted responsibility is also a separate issue if the let's say let's say the judge in her mind argue that those facts didn't show the purposes of acceptance of responsibility as acknowledgement that he that what he did was wrong and he was remorseful for i don't think that if you look closely at the application  says that in in that case the course of terminations we based primarily on pretrial statements and conduct so even even if he had fallen on stored for the probation officer or at sentencing the guidelines  that really the court means we're looking at pretrial statements as to whether he gets acceptance even after going to trial but what were the factual issues that he challenged trial and he he challenged many factual issues with respect to count one the twenty four twenty three b charge your honor mr vaile argued in his rule twenty nine brief that he denied traveling to california with the intent of engaging in a prohibited sexual act with hamming and i quote there was insufficient evidence produced a trial to indicate that mr vaile intended to engage in any prohibited sex act that seems to me to be a factual denial but he's guilty of the crime he what's the practical icily well and and mainly we end up saying well it's a mixed question and i think that that's right your honor the question when i come back to it is in the senate talks about being prejudiced and not being able to bring a motion to dismiss  conditional plea and i frankly first of all he didn't bring motion to dismiss and so we don't know what would have happened and he didn't try to enter into a conditional even try to make an open plea of guilty my argument would be if if the defendant had come and phone conversations the government also introduced they for for be witness to show the defendants intent with respect to the twenty four twenty two b charge and the senate opposed the introduction of that system only so you know and there was a motion  trial maybe he was forced to go to trial but he wasn't forced to make factual the trial and this would be a much different case and i don't think the government would be saying that he's not incredible acceptance if he'd gone to trial and just raise the issues that you're on  what you see in front of you is not a carbon copy of what was brought below and if it were then i think the government would agree that he was entitled to acceptance but he did more than raise factual issues he did more  if i'm looking at the district courts to rule twenty nine order to thank that he did speak try to tell you sufficiency of the evidence on whether there was a substantial that's correct and whether these things like hugging and kissing were actually the kind of sexual activity that might be covered as being illegal so he if we accept that he challenge those on the evidence which would be a factual challenge that relates to travel statute if you go to the trammel statute is there mean and that the agents fear chats and conversations to sack sort of traveling to california and i think when you look at the film this rule twenty nine motion that he would then relies on cross examination to say that the defendant did not intend to engage in a prohibited sexual act with tammy and this was on the supplemental a search was excerpts of record pages seventy two and seventy three which has the under twenty two and twenty three and then she says that's the end there but they also correct that such activities would not necessarily satisfy the more narrow definition required under twenty two forty six two which is incorporated in what we're now calling the travel statute so i guess i'm packed my question is if this challenge didn't link up with the travel statute that the government under the plain language of the statute has met the elements now with respect to the constructive amendment argument that the council has made today with respect to count one of the indictment there are a language in the indictment that stated that the defendant used the phrase knowingly attempted and the district court found that this was surplusage and because proceeding in the information was surplusage and that therefore in merely instructed instructed to the jury without that knowingly requirement this court on march thirtieth held that the district court did not air by your honors there is a fundamental misunderstanding i think on the part of the government between a factual dispute and arguing whether the facts that a survive the law the acceptance of responsibility for vision and the guidelines clearly enable the defendant to say  or to challenge whether or not under spewed at facts to satisfy the elements of the offense and that's what we did below the government said that we made a number of factual challenges and that's simply not true the facts were undisputed with respect to all of the tapes no additional evidence was entered whatsoever by the defendant we did not cross examined jane doe who was called even though we legally challenge the a plug ability of her testimony and so we never made a single factual dispute i did argue in the rule twenty nine that the facts presented by the government did not satisfy the elements of the two statutes addition and again the guidelines allow me to do so without losing myself and responsibility points and so when the government says that we have made factual disputes on a number of issues that's simply not true your honor judge mckeown with respect to the apply what would happen with the acceptance of responsibility on the two different counts and with respect to count one that was the only issue that was raised with restarted whether or not my kind excepted responsibility was the only one on which the probation officer indicated she was not satisfied and it was the only one that the judge addressed at sentencing and so i don't think there was any issue with respect to your honor third point the third point your honor relates this was before the government had unilateral ability to decide whether we get that or not in this case from the very beginning i indicated to the government we indicated the government we willing to proceed on stipulated facts trial in fact we suggested at the very earliest stages of this simply be given to judge hamilton without any witnesses testifying or simply submit all of all of the material to her and so  very early on in the proceedings endeavored and in fact succeeded in having this case go to the judge on the legal issues without any expenditure of governmental resources so we believe we be entitled to that as well thank you very much