[00:00:11] Speaker 04:
Morning, Your Honor.

[00:00:12] Speaker 04:
Edward Robinson on behalf of Mr. Bradford.

[00:00:14] Speaker 04:
If it may please the court, I'd like to reserve two minutes for rebuttal.

[00:00:18] Speaker 02:
Okay, please watch the clock.

[00:00:20] Speaker 04:
I will.

[00:00:22] Speaker 04:
I'll begin with the argument that we made in our brief about duplicity.

[00:00:27] Speaker 04:
And again, you know, the standard of review is that we're to assess only whether or not the indictment charged two different counts in two different violations in one count.

[00:00:40] Speaker 04:
Our position is that because the statute 1591 carves out a distinct exception for the knowledge requirement that the government has to prove beyond a reasonable doubt when it comes to advertising, and because there was a general verdict in this case, Mr. Bradford faced the real probability or possibility

[00:01:02] Speaker 04:
that he did not receive a unanimous verdict.

[00:01:05] Speaker 04:
In other words, the government could have argued and a jury could have found that Mr. Bradford was guilty of that count based upon reckless indifference to the age of the minor

[00:01:18] Speaker 04:
or evidence of his reasonable opportunity to view the minor when, in fact, one of the means to use the government's characterization of advertising required that the government prove beyond a reasonable doubt that Mr. Bradford had actual knowledge of the minor.

[00:01:37] Speaker 03:
So, Counsel, is there any error in the instructions?

[00:01:41] Speaker 04:
We objected to the instructions as instructed

[00:01:47] Speaker 04:
there's only error when you combine those instructions with a general verdict form.

[00:01:54] Speaker 03:
So only if advertising constitutes a separate and distinct crime is there error in the instructions.

[00:01:59] Speaker 03:
Otherwise, advertising certainly was properly instructed.

[00:02:02] Speaker 03:
In other words, the jury was told, if you believe that he's been advertising, then you must show that he actually knew the age of the child.

[00:02:08] Speaker 04:
That's correct.

[00:02:10] Speaker 03:
And otherwise, you could be recklessly indifferent to the age of the child.

[00:02:13] Speaker 03:
That would also constitute a violation of the same statute.

[00:02:16] Speaker 04:
of the same statute under a different means enticing harboring transporting that type of thing and because those crimes as I as I've described them were combined in one count

[00:02:31] Speaker 04:
And because there was a general verdict form in this case, the problem with duplicity became paramount.

[00:02:39] Speaker 04:
The vice of duplicity is that a defendant could be convicted based on a non-unanimous jury verdict, a lessened burden of proof in this case.

[00:02:50] Speaker 03:
Well, it wouldn't be a lessened burden to prove.

[00:02:53] Speaker 03:
Your problem is that you're afraid that the jury may have said, six of them may have said, well, we think that he was recklessly indifferent to the age of the minor.

[00:03:02] Speaker 03:
While six of them said, well, we think that he knowingly advertised this minor.

[00:03:10] Speaker 03:
And why would that present a problem, since both of those are sufficient to constitute a violation of that statute?

[00:03:19] Speaker 03:
Can you tell me what the equity would be?

[00:03:20] Speaker 03:
What's the equity?

[00:03:21] Speaker 03:
In what way might your client have been wronged?

[00:03:26] Speaker 04:
Assuming that we knew what you just posited as the manner in which the jury divided, maybe there would be nothing wrong.

[00:03:33] Speaker 04:
But again, because we don't know and because this review is only on the count as pled in the indictment,

[00:03:41] Speaker 04:
We're engaging in the type of speculation that the Ramirez decision talks about.

[00:03:47] Speaker 04:
We just don't know how this jury concluded that Mr. Bradford was guilty of that count.

[00:03:54] Speaker 02:
The government points to the plurality of it in SHAD, which said that felony murder and premeditation, and pointing, not knowing which one in the jury.

[00:04:09] Speaker 02:
was found was okay.

[00:04:11] Speaker 02:
That didn't raise a duplicity problem.

[00:04:14] Speaker 02:
What do we do with that?

[00:04:16] Speaker 04:
Well, we look at the language in Shad.

[00:04:18] Speaker 04:
And again, it's a plurality opinion.

[00:04:21] Speaker 04:
And in that opinion, the Supreme Court said that

[00:04:27] Speaker 04:
Their decision was not to suggest, and I'm going to quote a little bit here, that the due process clause places no limit on a state's capacity to define different courses of conduct or states of mind, and that nothing in our history suggests that the due process clause would permit a state to convict anyone under a charge of crime so generic that any combination of jury findings could be supportable.

[00:04:53] Speaker 04:
And this is what I'd like to focus on with respect to that language in Shad, as applied to this case.

[00:05:02] Speaker 04:
Mr. Bradford, with respect to that count, could have, with respect to the advertising count, because actual knowledge of the minor's age was what the government had to prove beyond a reasonable doubt, he could have presented a defense that he had a subjective belief that the victim was over the age of 18.

[00:05:23] Speaker 04:
That defense, rooted in the Constitution, he has a right to present a defense, is not a defense to enticing, harboring, transporting, because all the government, according to the statute, has to prove in that circumstance is that he either was recklessly indifferent or, and this is where it becomes almost like a strict liability offense, he had a reasonable opportunity to view the minor.

[00:05:53] Speaker 04:
And clearly a jury could say, now again, we're engaging in the hypothetical, or excuse me, the speculative natures to how they would deliberate, a jury could say, well, look, I think she looks like she's 18.

[00:06:10] Speaker 04:
I think that he could have believed she was over the age of 18.

[00:06:15] Speaker 04:
But the law says if he's recklessly indifferent, and here he is out pandering people, I mean, that's a fair assumption, possibly.

[00:06:23] Speaker 04:
Because of the videotapes that they saw of him, he had a reasonable opportunity clearly to view that victim.

[00:06:33] Speaker 04:
We're going to disregard the defense that Mr. Bradford could have presented, that he had a subjective belief as to the age of the child, and we're going to convict him.

[00:06:43] Speaker 04:
Judge, by the way, this is where I get to the lessened burden of proof.

[00:06:46] Speaker 04:
because there could have been that mixture in the jury composition where some say yes, some say no with respect to the actual knowledge.

[00:06:57] Speaker 04:
But more importantly, the ability to present a defense to this count is compromised by the fact that it's a duplicitous count.

[00:07:10] Speaker 01:
the statute, whether it carves out separate offenses, looking through the factors in the case law, including congressional intent, and it seemed pretty clear that the different

[00:07:20] Speaker 01:
Menzeria wasn't to protect publishers, right?

[00:07:26] Speaker 01:
Something different if you have a website that publishes advertisement and you don't have any interaction with the victims involved.

[00:07:34] Speaker 01:
How do you get around that?

[00:07:35] Speaker 01:
I mean, with this four-factor test and you look through the statute, it seems like Congress was pretty clear that this is criminal sex trafficking and there are different means of perpetrating that crime.

[00:07:47] Speaker 04:
I'll address it this way.

[00:07:50] Speaker 04:
The district court, in denying our motion to dismiss and overruling our objections to the jury instructions, looked at the mal case and focused on the fact that, as you've just indicated, Judge Bade, that like the 26th USC 7201 tax charge, the conduct is described in only one section.

[00:08:12] Speaker 04:
But that's the tax, the tax count that the circuit relied on in mall to say there was no duplicity where one is to evade tax, one is to evade the payment of tax.

[00:08:29] Speaker 04:
Overlooked what the court, I believe it is in spies said or focused on, and that is that in a situation where Congress does not

[00:08:39] Speaker 04:
limit the methods or means by which the crime could be committed, then there's no duplicity.

[00:08:47] Speaker 04:
Here we clearly have a limitation in the statute itself, because the statute reads... So, counsel, I want to interrupt you at this point.

[00:08:56] Speaker 03:
So if you're correct, then your client actually could have been charged with an additional count, couldn't he?

[00:09:02] Speaker 03:
He could have, yes.

[00:09:03] Speaker 03:
And that wouldn't be multiplicitous.

[00:09:07] Speaker 03:
Wouldn't that be your argument if he had been charged with both advertising and recruiting, enticing, harboring, transporting, and so on?

[00:09:15] Speaker 03:
Wouldn't you be here arguing that this is now a multiplicitous count?

[00:09:19] Speaker 03:
Maybe I would.

[00:09:21] Speaker 04:
But I don't know that.

[00:09:21] Speaker 03:
I mean, at some point, the court, we simply have to decide what the statute means and which way this goes.

[00:09:30] Speaker 03:
But your client, I mean, I understand you've got an obligation to this client.

[00:09:34] Speaker 03:
But you may have future clients that, if we agreed with you, might end up with additional counts.

[00:09:42] Speaker 04:
We'll cross that bridge, I guess.

[00:09:43] Speaker 03:
I understand.

[00:09:44] Speaker 04:
If I may, I have 26 seconds left.

[00:09:47] Speaker 04:
So unless any further questions, I'll let you.

[00:09:49] Speaker 02:
That's fine.

[00:09:49] Speaker 04:
Thank you.

[00:09:50] Speaker 04:
Thank you.

[00:10:03] Speaker 00:
Good morning, Your Honors.

[00:10:04] Speaker 00:
Ronnie Katzenstein on behalf of the United States, and may it please the Court.

[00:10:10] Speaker 00:
I'll go right to the mens rea question.

[00:10:13] Speaker 00:
Of course, the statute does provide for a different mens rea for the advertising way of committing this offense.

[00:10:23] Speaker 00:
But we know from Shadvi, Arizona, as Judge Akuta has indicated, that just because different means of committing an offense listed in a statute have different mens rea, that does not mean that those different means create different crimes.

[00:10:43] Speaker 00:
And Shadvi, Arizona, upheld

[00:10:46] Speaker 00:
a Arizona statute that allowed first degree murder to be proved by on the one hand premeditation or on the other hand felony murder where those two ways of proving that crime had clearly different mens rea.

[00:11:07] Speaker 00:
premeditation has the mens rea of intent to kill, whereas felony murder has the mens rea of intent to commit the underlying felony.

[00:11:21] Speaker 00:
Those two different mens rea didn't break the Arizona statute into two separate crimes, and that's exactly the situation we have here.

[00:11:32] Speaker 00:
The different mens rea for advertising here is to ensure, and I think Judge Beatty was alluding to this, that all of the persons captured by the statute have equivalent levels of blameworthiness and culpability.

[00:11:50] Speaker 00:
That is what Shod put as the limit on when different means might break, where the mens rea is different, might break the statute into different crimes.

[00:12:01] Speaker 00:
by carving out the reckless indifference mens rea for advertising, Congress was clearly ensuring that what was captured were individuals who were similarly blameworthy and that publishers or distributors who might not know the purpose of the ads being put on their sites were not swept up

[00:12:24] Speaker 00:
within this statute and shod is significant and instructive in another way as well because shod in shod the Supreme Court said that the question here is one of statutory where the question whether statutory alternatives

[00:12:42] Speaker 00:
constitute independent elements of the offense is a substantial question of statutory construction.

[00:12:50] Speaker 00:
And then the Supreme Court cited this court's case in Yuko Oil.

[00:12:55] Speaker 00:
And if we apply the analysis set forth in Yuko Oil,

[00:12:59] Speaker 00:
It is clear that the string of verbs at issue in this case describe different means of committing the singular crime of sex trafficking and not individual offenses.

[00:13:12] Speaker 00:
I've gone through that in my brief, but let me just say briefly that the Yuko oil factors include the language of the statute, and the statute itself refers to the alternative verbs that we're dealing with here.

[00:13:25] Speaker 00:
as the act constituting the violation of paragraph A1.

[00:13:30] Speaker 00:
And also if you look at the shape of the statute, the form of the statute, Congress clearly understood how to distinguish harms.

[00:13:38] Speaker 00:
It did so when it divided A1 and A2.

[00:13:42] Speaker 00:
It knew how to provide for different penalties.

[00:13:46] Speaker 00:
It did so in section B, and none of it was based on

[00:13:51] Speaker 00:
which verb in A1 was implicated in the crime at issue.

[00:13:57] Speaker 00:
Next, Yuko tells us to look at the nature of the prescribed conduct, and here the various verbs are overlapping.

[00:14:06] Speaker 00:
Again, you can recruit by enticing, soliciting, patronizing, or obtaining.

[00:14:12] Speaker 00:
You can provide by transporting or advertising.

[00:14:15] Speaker 00:
You can maintain by harboring.

[00:14:18] Speaker 00:
There is an overlap here, which again suggests that these are means and not individual crimes.

[00:14:25] Speaker 00:
Finally, there's, as Judge Bybee was indicating, if the logic of defense's argument were taken, moved forward, that individual defendants could be prosecuted twice and also punished twice.

[00:14:42] Speaker 00:
Their punishment could be doubled by charging the different

[00:14:48] Speaker 00:
verbs in separate counts, which is clearly not what was intended by the statute.

[00:14:54] Speaker 00:
So I would suggest, again, that if we apply the Yuko factors, there can be little doubt that these are means of the offense by which the offense can be committed, not separate crimes.

[00:15:07] Speaker 00:
And that is what every, no court has held that these individual verbs set out

[00:15:15] Speaker 00:
individual crimes it is true that there is no case addressing this particular string of verbs at least I haven't found such a case the cases that we have cited like Mickey and Paul.

[00:15:30] Speaker 00:
address the string of verbs of force, threats of force, fraud, or coercion, but there's nothing about that list of verbs that is distinguished from the list of verbs at issue in this case.

[00:15:44] Speaker 00:
They are similarly

[00:15:46] Speaker 00:
situated in the statute.

[00:15:48] Speaker 01:
Your opposing counsel isn't arguing, at least as I understand his argument, that each of those verbs is a separate offense, harboring, enticing, soliciting, that each of those is a separate crime, but it's just advertising as opposed to the rest of the verbs in that clause, because of the different mens rea.

[00:16:07] Speaker 01:
So that does seem to distinguish this statute from the other statutes at issue in the cases you're citing.

[00:16:14] Speaker 01:
How can we

[00:16:15] Speaker 01:
reconcile that?

[00:16:18] Speaker 00:
Because I think Shad teaches us that mens rea

[00:16:24] Speaker 00:
Different, you can have different mens rea as means, just as you can have different facts, different actions as means, they are not treated differently.

[00:16:36] Speaker 00:
And that the limit on when those different mens rea break a statute into separate crimes is whether they reach the level of addressing different levels of culpability and blameworthiness.

[00:16:50] Speaker 00:
And here, that's not what we have.

[00:16:52] Speaker 00:
We have, in fact, different levels of mens rea designed to ensure that the culpability is consistent across all of those verbs.

[00:17:02] Speaker 02:
Hushad, of course, was a plurality.

[00:17:06] Speaker 02:
So are there any cases that would be binding?

[00:17:09] Speaker 00:
I'm sorry?

[00:17:10] Speaker 02:
Are there any cases that would be binding on us?

[00:17:15] Speaker 00:
Cases applying, Shod, in this context?

[00:17:20] Speaker 00:
Well, I think Yuko would apply that.

[00:17:25] Speaker 00:
Many cases here.

[00:17:28] Speaker 00:
Arreola, I think, also.

[00:17:30] Speaker 00:
It was a different mens rea for one offense.

[00:17:34] Speaker 00:
I'm not sure that I think, again, where we have an attempt case, for example, where there has been a different mens rea in attempt, those have been broken out.

[00:17:53] Speaker 00:
And I did want to address the attempt

[00:17:57] Speaker 00:
situation which counsel has also alluded to in his brief.

[00:18:03] Speaker 00:
But I can't, it's not coming to me at the moment a case to respond to your question Judge Akuta.

[00:18:13] Speaker 00:
I did want to mention in attempt

[00:18:15] Speaker 00:
The attempt cases are, of course, different as well, because attempt is its own crime.

[00:18:20] Speaker 00:
There's no dispute as to that.

[00:18:23] Speaker 00:
It's also interesting, I think, that attempt is a lesser included offense of the substantive crime, and you cannot be convicted of both the lesser included offense and the greater offense.

[00:18:35] Speaker 00:
And as Judge Bybee pointed out,

[00:18:37] Speaker 00:
This is different here because, again, if we followed the arguments that defense is making here, the defendant could be doubly punished and doubly punished

[00:18:52] Speaker 00:
conduct, which is of a piece with itself, all overlapping conduct.

[00:19:00] Speaker 00:
If there are no other questions on that?

[00:19:03] Speaker 00:
Apparently not.

[00:19:04] Speaker 00:
I'll just mention briefly on the sentence.

[00:19:08] Speaker 00:
There was no error here by the court, certainly no plain error in its addressing

[00:19:13] Speaker 00:
of the mitigation arguments.

[00:19:15] Speaker 00:
The court made clear that it had considered everything in the context of having seen the trial, reading all of the briefs, seeing the arguments.

[00:19:23] Speaker 00:
It alluded in its statements, if you read the record as a whole, to the mitigation arguments that the defendant had made.

[00:19:31] Speaker 00:
So again, no error, let alone plain error here.

[00:19:35] Speaker 00:
This was a within-guidelines sentence that was substantively reasonable.

[00:19:40] Speaker 00:
And if the Court has no other questions, I will respectfully request that the conviction and sentence be affirmed.

[00:20:00] Speaker 04:
Thank you.

[00:20:01] Speaker 04:
I'll just add, and I think I can do this very quickly, that mens rea, in this case, actual knowledge versus the deliberate recklessness and ability to observe, those are elements that the government had to prove beyond a reasonable doubt.

[00:20:21] Speaker 04:
And so they're not means.

[00:20:24] Speaker 04:
Those are elements that are tied to the means.

[00:20:27] Speaker 04:
And in this case, the means of advertising requires an element of actual knowledge.

[00:20:33] Speaker 04:
And I'll submit it on that.

[00:20:34] Speaker 04:
Thank you.

[00:20:36] Speaker 02:
Thank both sides for their argument.

[00:20:38] Speaker 02:
The case of United States versus Bradford is submitted.