i want to start by talking about the standard every year on the first issue which is whether the evidence was sufficient to prove that moore was a criminal rather than a victim of louis's sex trafficking or organization and the government has argued that this doesn't get another review because it wasn't preserved by proper rule twenty nine motions at the end of the trial that at the end of the close of evidence and at the end of the trial that was race and if you look at the record it's at four thirty one and four ninety seven and i think it's pretty clear from what you read there that the argument was that they had failed to prove that more cause to transportation harboring prostitution in any of the acts that followed or in that there was any causation involved in any of this and i think if you look at that and look at what comes before and after that i think it's very clear that everyone understood she was challenging all three counts they were challenging all three coun indictment beyond that the government seems to argue that and this court only has to judge the sufficiency of the evidence but the causation standard as knowledge that  in the two minor victim cmin camp will be cause to engage in stuff to sex trafficking instead of them or did cause them to be engaged in sex trafficking which was alleged in the indictment so if you look at the actual language  communicated with the johns they wouldn't have been cause to participate in underage prostitute he would say well i think the problem areas that lewis was directing what more did he was in control of her he was telling her to make the reservations he was telling her to go online and do that and there was evidence that he was violent towards the girls that he hit and that he had slapped them that he was in control of the money where they went what they wore and how they manage the business didn't shoot deposit the money on her own account she did but she only uses it in his direction and in the way that he said she had to ask permission to get money for food for the girls she drove victims to their date again and either at his direction or at their request so you know she's doing a bit she's being you know essentially direct and told to do it under threat of you know threat of violence mean he's hit the other girls and there was testimony that he had been violent towards done so you know i guess you have to wonder whether you know can someone who is themselves that much of a victim really have  violence i know there was actual violence against salman k m i don't recall specifically that patient or where i can find tell you to find testimony of actual violence against moore if that's what you're asking ok to get back to the point i was trying to make is that they're trying to change the standard that you have to review this by from that she did cause a sex trafficking to that she had knowledge that it will be caused to engage in sex trafficking those are two different standards and this whole issue came up during the jury instruction jury instruction conference and that was discussed and the government ultimately accepted the instruction and that was given which said they have to prove that she did cause  it and they say they literally said we're going to stick with what has been charged in the indictment and the government has not cross appealed that issue so even if you want to take it up on review even though it has an across  sufficient to prove more under this sort of more relaxed standard that's sort of the book of their argument again they really have to prove what they've alleged in that's very clear out of the united states versus lockhart case which was just december of last year  that if they even if it's possible and or the statute to convict someone and someone based upon a less culpability if it's not alleged that way you can't uphold the conviction best based upon that in this case and let me go back to garcia gonzalez case which is discussed in the briefs and just sort of point that out in that case the sex trafficking was that the defendant knowingly recruited enticed harbor transported and tane or maintained the victims and then the other element was that the defendant committed such act knowing or in reckless disregard of the fact that the victim would because to engage in the commercial act that was the language in the in the indictment and then the jury instructor has a was injured jury was instructed accordingly they sent out a jury no that said does the sex act have to occur to find the defendant guilty of sex trafficking under section fifty nine one and the government and the court came back and said no you don't and this went up on appeal and in the appeal in this court the court said the future verb tense of will be cost indicates that the sex act does not have to occur to satisfy the elements of fifty nine one so that was in that case they're defining what the phrase will be because means for the purposes of section fifty nine you want so the problem is that the knowledge that something will be caused is differen is different in a lesser standard then that she actually did cause it and it varies the indictment also charged with aiding and abetting yes she was and i'm sure the next question is how does this differ from different from aiding and abetting well if you do the aiding and abetting instruction that allows the jury to convict on a foreseeable const conduct of a coconspirator which has actually occurred if you allow the government to have its way on this then you will also be she caused it but then in their brief they're arguing that it's enough that she had knowledge that it would be cost and then their argument is the evidence is enough that there was knowledge that it will because they don't they don't get  affirmative on that they have to prove what they what they allege in the indictment they have to prove that she caused it and if you allow the government to interpret the knowledge will be caused instruction as as the way they're t rying to do it here then it's it goes beyond even the aiding and abetting instruction because it least in aiding and abetting instruction they have to do foreseeable conduct of a coconspirator which is actually incurred and this is date defines for us what the meaning of knowledge that something will be caused is within the purpose of fifty nine one and that sort of sets up the argument that you kid you can't do that unless it's alleged and then if you alleged in the indictment to form the basis of the jury's verdict there's a constructive amendment to the united and so they're arguing it's enough here that she had knowledge that it was going to happen even if yeah they said it did concurrent cause i mean did the government have to prove beyond a reasonable doubt that lewis himself would have been unable to dress the girls the rooms handle them you know deposit the money work on the internet  well i mean i don't i just don't understand your are well you know again i think we're going back to you know sort of the stockholm syndrome situation which is someone who is so wonder somebody else has control you  know i was not well we were the trial counsel was certainly had the opportunity to put that to the jury and the jury were not persuaded well i don't i mean that's why we're here right because we were to look at what the jury whether what what is in the evidence supports the jury's verdict the way it was alleged well i mean you are hearing the evidence but you're arguing that the evidence doesn't prove that the defendant caused bank robberies but it was like confession avoidance he didn't say that he didn't take part in the bank robbery he said he wasn't in have the mens rea and wasn't responsible but all this is this is the first part did the defendant call the stockholm syndrome essentially admit it and did what he did and what think the difference here is is sort of what initiated the whole process because in this case it was selina who recruited c m the first of the two minor girls and then it was c m who recruited k m there's no evidence that moore was the recruiter that brought the girls into the situation in the first place and once they're in the situation and they're being instructed by salinas they're being instructed by mr lewis about what they're supposed to do and how they're supposed to do it and mr lewis is in control of money in telling everybody what to do i think i think that's a little different than the situation the patty hearst because it does people are all involved ahead of her instead of coming in after her so in any of it i think you have to be cautious very cautious here about allowing this sort of will knowledge of something will be cause prove to be enough when it's not alleged because then you really are expanding the aiding and abetting beyond something that actually occurred but also potentially the sex acts which was attended which is not actually occurred even though we know in this case that the girls did engage in sex acts and that's what can't really be disputed but you run the risk of adopting their point of view and then in the next case that comes up and that's what happens and i think that's a that's a bad idea of sentencing is well there were some of the issues i i don't think it was about whether the sentence was  reasonable given her the disparity of her involvement from louis's and whether or not the her arguments for a downward variance were adequately dealt with by the by the courts you know the fourth circuit lisa said that you know if the motion for downward variance is made it's not enough to sort of do just generalities i think thirty five fifty three is fine if you know you really have to address each specific one of those points that is raised in support of the downward variance and explain why you're saying no i'd the record is it's i'm not sure it doesn't to me it doesn't really like it necessarily addresses all of those i think it's pretty weak and of course you can go go through and and review but i just don't think it necessarily does the issues that were brought were the and the motion for down variance if you want to look at it it's a twenty two nine five through twenty two ninety nine basically but they talk about relevant conduct in the specifics of the rele t conduct and just the specifics of the characteristics of the defendants and that's one thing and i don't think really the court went through those with sort of the fine tooth comb that the four circuit would suggest at least is necessary in those in those circumstances conclude by saying that i think to the extent that it can argue that morse role was integral to the criminal venture i really don't think that you can say that her purpose was to make the venture successful which is necessary for the aiding and abetting you know i think she was doing it because she was being told to do it by bush and she was being controlled by him and i think the evidence really well supports that over and over again and the evidence says you know he was the one giving all the instructions i also want to point out that the government's statement of facts i think is somewhat argumentative and it's not a completely accurate flexion of the record and only have a few couple seconds left but for example on page four they said that you know she withheld sleep and food from them and a c m specifically testified that moore never withheld sleep or food from them starts just one point there are a number of them in that statement of facts that are argumentative or that are inaccurate and i thank you  in abetting theory of liability committed and sex trafficking even under a heightened standard that a principal knowingly cause the minors can engage in sex but the evidence in this case clearly reflects and most of these elements were admitted by the defendant at trial that she created and paid for online ads on back page dot com for both of the minors to commit sex acts with men she personally answered the phone calls and internet inquiries from these men she made the logistical arrangements for the dates she set the prices for the dates depending on how the men who called her talked on the phone she drove the girls to out calls in a dodge charger that was paid for with money that was paid for the miners to engage in sex she deposited the money in her own bank account she instructed one of the girls on code words to send her as soon as the men showed up  provided cam with detailed rules that they would have to follow during the sex acts she died to cm's brown hair blonde so she would make additional money because blondes make more money she was served and paid for motel rooms at the girls where he gained her expertise yes your honor and also would show how she knew her actions would cause the girls to engage in sex acts as one of the pieces of evidence in support of that so even under a heightened standard that was charged in the indictment she caused the girls to engage in sex acts that was met here and i and i agree with defense counsel that garcia dissolve and it's clearly sets forth the difference between what it means to knowingly cause a minor to engage in a sex act  versus knowing the minor would be cause and that is whether the sex acts occurred and that's absolutely undisputed in this case at the sex acts occurred over the course of the three months and this is consistent with the prosecutors argue minute trial during closing argument on pages five thirty and five thirty one of the record when they were discussing what this element means and the prosecutor said it means that the sex acts occurred because the sex acts occurred over and over and over so merely because the indictment charge this language of causing versus would be caused doesn't affect the sufficiency determination on these facts i would like to distinguish briefly this case from la carte and this is not a la carte situation this is not a constructive amendment situation in fact massage you know and that no two that's the supreme court case that recently came out in two thousand and sixteen left open the question of whether the government would be held to a standard when they charge an element in the indictment that the language of the statue it's awkward to put in sentence form and the prosecutor in this case use an artful phrasing that didn't track the language of the statute in this exact situation so just that's that's not law card this is sufficiency it's not a constructive amendment i think the court is well aware of the government's position on the standard of her view when looking at the record it may be perhaps defense counsel intended to challenge different elements of the statute but in their rule twenty nine motion they only refer to that causation element which is of course element three counts one in two it's not an element of the transport which of course there were concurrent sentences in this count so it's not in an element of count three and it's only in reference to element three accounts went into but one moment and just here i absolutely agree with the comment that judge jones made as far as and the arguments thought the defendant here was a victim and that she was under the cool words and of the defendant was clearly put forth a trial that was something that was relayed to the jury over and over again and in closing argument i would just remind the court that the defendant testified in this case and she did not claim that the defendant made any sort of violent actions toward her and even in the sentencing transcript the judge had an opportunity to evaluate this in light of the motion for downward variance and he disagreed with this assessment of the testimony if you didn't do it it was your her defense was course i i have read it and from what i have read i do not see any sort of her saying there were threats of violence against her at all and also there is contrariness in the record you see she has the freedom to come and go she please she can take whatever  wants to but the miners don't have that same option she gets to go out to get her nails done she gets to collect the money and spend money for things there was a lot of evidence in the record that louis was certainly more culpable of course he had a much greater sentence and response to where they involve the hmong he moved to houston after after she did so they met up once she was working in the strip club and prostituting herself in houston they knew each other from plants but it wasn't working for him no she wasn't and he joined her later after she was already in the business in houston there was no emotional relationship between more lou if there was just a i don't agree with not there was some sort of emotional relationship which the court recognized at sentencing that she mitigated her sentence because he felt like she was under some control of him so adopt the court took that into consideration when it emotional but not romantic there wasn't there was a suggestion that she was actually involved with another female prostitute there was some evidence  control all the girls to some degree and as far as the controller slowly go back to that and point to some places in the record lewis was in charge of what more did and how the money was spent that's it for seventeen for eighteen for twenty five and ten sixty three is multiple times in the record that moore did not keep the money even if she was handed it with first pair count she was not in charge of it that's it for sixty nine ninety eight and ten twenty eight that she had to ask us for money to get food shop to do anything that was a ten twenty seven that louis would always be the one to tell them that they had to create the ads which you know were paid for with the money the cmyk am made and through moore's bank account but also again and more at lewis's instruction that's a four sixteen ten one hundred one that lewis also directed use of the money to buy the girl's clothes and what they were going to buy and literally like lewis's involvement was maybe you know she's in the dresser because she's a woman and maybe she's going up to the counter in handing the money over but it's again it's all this is direction and that is at multiple places for sixty ten twenty one ten twenty five ten forty seven ten forty nine the food issues at four sixteen ten twenty two the drugs is came at the end so the earlier numbers are certainly testimony from the girls during the government's case in chief the business about the charger the car that was bought and louis controlled that he even kept the keys that's a couple of places for thirty cues at that point right well and said take them here and do that so yeah and you know there's also testimony and in that regard that she you know drove down when she was ordered or asked her allowed to do two to do settle for eighteen for thirty four sixty one for ninety four ninety six repeated places in the record that that occurs so that's that's that the other thing is the question about was lewis involved earlier on you know or was already prostituting herself before lewis came down from flint and they've known each other in school high school flint and it was only after lewis became involved that this sort of morphed into entice ing minors when she was on her own it was just her another girl who was our twenty's who were doing it so it's his involvement which is the instigating factor of getting the minors involved is not her and celine is the one who goes after c n n and then see him as the one who