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Good morning, Your Honors.

[00:00:04] Speaker 03:
Myra Sun, appearing for Devon Smith.

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Mr. Smith, as the Court knows, was convicted of multiple counts of violating 18 United States Code Section 1591, which uses a number of verbs to talk about activity that would facilitate sexual conduct by others, briefly.

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And I'd like to focus on the two first issues in this case.

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The first is the district court's decision to greatly limit the amount of sexual conduct evidence that could be admitted under federal rule of evidence 412.

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And the restriction on Mr. Smith's cross-examination of PC, the victim and believer count three.

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and this evidence consisted of both proof which would have been elicited from PC that she had prior to moving into her apartment and engaging in commercial sex from there that she had been in and the district courts ruling or the magistrate courts ruling was that she had relationships with

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these two men with these colorful names Pyrex and 50 shades and

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Our position is that this is not sexual conduct that Mr. Smith sought to admit for purposes of sexual predisposition and any conclusions that the jury could draw from it.

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Instead, he wanted to use it, and I think in my reply brief I tried to make an analogy to any sort of illegal commercial activity that was being engaged in from that apartment.

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that it did not have anything to do with making PC less credible because of sexual predisposition.

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It would have made her less credible when she said, as she was allowed to testify, that she moved into her apartment, and then Mr. Smith moved in, and then she began working as an escort for him.

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I mean that patently is not what she said was the historical fact.

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How do you distinguish our decision in Haynes which approved the exclusion of this sort of evidence of prior prostitution activity?

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I understand that.

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And I think, and many cases say what Haynes said, this is that difficult case, both in terms of the kind of sexual activity, how it was conducted, and who conceivably could be said to have controlled it.

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And that's why I think this is sort of an unusual case.

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And it brings up the problem of a very poor fit, in my view, between federal rule of evidence 412 and commercial sex prosecutions.

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Because as the court knows, this began as a rape shield law and was extended to any sexual

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any sexual offenses.

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And I know that most courts say that sexual predisposition is not relevant to anything.

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And I think Mr. Smith's point was this is not sexual predisposition for purpose of impugning of someone's reputation or saying that they are somewhat less worthy of credibility.

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The only thing that it would have attacked about credibility is when he says, I was not the trafficker in this apartment.

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She was.

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And that, of course, when we bring up the fact that he was entitled to put on a meaningful defense, that is the reason her evidence had to be admitted, or that evidence had to be admitted.

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And then there was also evidence of, and then there's a problem of the district court's 412 ruling, which diligently said anything

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any commercial sex that occurred while the government says trafficking was going on can be admitted, which is why this activity between MR and PC was admitted, and nothing else.

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And so the other set of, the other relationship involved this person, Miles, and the

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I don't like to use the word soap opera, because I don't think that this should be taken lightly.

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But I do believe that the record shows there was a very complex relationship between PC, Mr. Smith, and MR. Wasn't that fully explored by defense counsel at the trial?

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what the relationship and and his defense that you know this she was a trafficker and she was I think that that he did get to bring that out but the other piece of it of course because the government was able to put on this expert that says that there's an emotional manipulation a messy relationship

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Involves manipulation that isn't necessarily for the purpose of trafficking.

[00:05:45] Speaker 02:
I think that that is What real life is like but to go back to to roll to the statute for 112 It's it's pretty clear on its text that it bars this I mean it seems as though

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Congress did not make an exception depending on the theory of the defense to the exclusion of the evidence.

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I understand what you're arguing.

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I think Federal Rule of Evidence 412 does make an exception.

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for evidence that would show someone else was guilty of the crime and again that matters more in a rape case and it's just in this case what we have here is two people living in an apartment and the question is who's in control of the trafficking that occurs and it's different in that way and that is why I think the evidence has to be looked at so in terms of miles very quickly the government brought that up and he

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It was portrayed as a one-time situation in which P.C.

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was trying to get a relationship going outside of Mr. Smith.

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And then he came in and engaged in what her roommate, her other roommate, Mrs. Simphle, said happened, that he struck P.C.

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that he suggested to Miles that she, quote, unquote, hose for me.

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And I understand that that mattered.

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The government was going to be able to bring that in.

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But when Mr. Smith was precluded from bringing in evidence about Miles, which included the fact that this was really an ongoing relationship, there were a number of texts showing that

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PC was seeing Miles generally and that she, you know, she was saying, and one of them I think she said, I need a break from him.

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And another she talks to Mr. Smith about the fact that Miles damaged her car in some way and he's like, do you want me to do something about it?

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That just isn't the kind of straightforward fit.

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And this goes to the expert testimony too that says that

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traffickers try to isolate their victims and keep them from relationships with others.

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It was pretty... Can I ask you about the Miles testimony that you've now mentioned a couple times?

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Because it was not clear to me from your brief what specific testimony about Miles you were objecting to the exclusion of.

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And when I, to the extent I could tell,

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I looked at some of the pages, and some of them seem not to have anything to do with sexual relationships, so I guess they're not excludable under 412.

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But they also didn't really seem relevant, so perhaps they are excludable under 401.

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So what was it about Miles that was excluded that you think should have been allowed in?

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I believe that, first of all, the dates on the texts are, one of them was February, one was March, which shows that this went on for some time, and also... I'm sorry, which texts?

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Let's see.

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The ones I'm thinking of were...

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I actually found it.

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Volume 8 of the Excerpt of Record, 1431.

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There were texts on both March 31 and April 9.

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And March 31 is what I call the windshield one.

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where they have a conversation about Miles having damaged, I think, her windshield.

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And then another in which she says, I'm intoxicated and I'm talking about seeing him.

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And there's another which I did not write down here, which she says that she needs a break from him.

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So again, this has to do with excluding.

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That was all excluded.

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That was excluded.

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And what was the basis for that?

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I have to acknowledge that some of these were actually in the exhibit that the government introduced.

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It was a sort of an omnibus exhibit of some of, but not all of, the texts.

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I believe what happened here, and this goes to my hearsay issue, which I wasn't going to talk about too much, but basically Mr. Smith's lawyer believed that any time he tried to bring in anything that Mr. Smith said, even though my position is that saying things like, do you want me to do anything?

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Shaking my head, what is that guy doing?

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with versus miles would not have been offered for the truth of the matter asserted it would have been offered to show state of mind and also to rebut this idea that he was like towering over her and saying don't you get involved with that guy

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Because that, again, these texts show that this was much more complicated than that.

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And again, this all was excluded on the ground that it showed some predisposition on the part of PC.

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But for our purposes, what it means is

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Who was in power here?

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Was there the intimidation or the manipulation that the expert says happens in these cases?

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Or was it just this messy, I think they are millennials, household?

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I'd like to leave myself a little bit of time for rebuttal.

[00:11:29] Speaker 02:
OK, thank you.

[00:11:48] Speaker 01:
May it please the court, Jennifer Ivers representing the United States in this matter.

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Mr. Smith received a fair trial in this case.

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The district court correctly applied the rules of evidence as well as this court's precedent.

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And beyond that, did

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a good job appropriately balancing Mr. Smith's need to present a defense against the importance of not admitting irrelevant evidence that would have caused shame and embarrassment to the victims in this case.

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The case law is pretty settled on a lot of the arguments that have been made in these briefs, so I think it'd be better use of my time to focus on the record, which is extensive.

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Mr. Smith was allowed to make many arguments that he was not responsible for trafficking, either PC or the minor victim.

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He made those in opening throughout cross-examination and in closing, and there were very minimal guardrails placed by the district court on what he was allowed to say.

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For example, in cross-examining PC, he said,

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You wrote, I just want to be the little mama, that was her nickname, who's single and F with money only, that's correct.

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And at the time you were escorting and made that statement, you were 26 years old.

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You were a grown adult, right?

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And this is a free country, right?

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That's at excerpt of record 756.

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And then continuing on 762 to 63, he asked, so you did have some bad luck with jobs, and so you did start being an escort.

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You also said it's easy money on the side, but it's risky too.

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Words to that effect, right?

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And then in closing,

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argued, the issue is, did Von use force, fraud, or coercion?

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I would turn it back.

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What did Lil Mama, that's again PC, tell us?

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I just want to be the Lil Mama who is single and F for money only.

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That is what she told us.

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So there goes force.

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There goes coercion.

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She's a grownup adult who is free and independent and she's throwing money at him, okay, to buy his love or whatever was motivating her.

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He also

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The second argument that Mr. Smith makes relates to whether PC had a motivation to lie, partly based on what they argued was police coercion, and partly based on an immunity agreement that she received.

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He asked many, many questions about those things.

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He asked, in his opening, he said she was facing really radical charges, and she got immunity, so she's allowed to come in and talk about things that you're going to hear, and she doesn't get in trouble.

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During her cross-examination, now 25 months later, with an immunity agreement, and Devon is your pimp,

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That's it, 859 to 60.

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At 874 to 76, and this relates to the argument about mandatory minimums, you took pictures of her, right?

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And Devon never took any pictures.

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You did help her do her ad.

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Her, in this case, is referring to the minor victim.

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And there's no charges pending against you for that.

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You took videos of her too, correct?

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And you went on a couple dates with her.

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and there was sexual contact during those dates, it's fair to say there was sexual contact between you and her, so you have no charges for the sex acts with a minor, correct?

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You have no charges for sex trafficking of a minor, correct?

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And you have no charges for any type of pornographic materials or anything of that nature, correct?

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So these are the cross-examination questions and arguments in opening and closing that Mr. Smith was allowed to make.

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And in addition to those arguments, the jury also heard overwhelming evidence of Mr. Smith's guilt.

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Many of those were from his own statements and his text messages.

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And I think I can

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It seems like on the text message issue, Council and I might have been talking past each other a little bit, and I think I can clarify the record a little bit on that.

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If you look at excerpt of record 711 through 718, that's our discussion of the piercing objection and the text messages that Council proposed to admit.

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Almost all of the text messages that he sought to admit were included in the government's exhibits, and the

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Excerpt of record in the 1400s, those are the government's exhibits that were admitted at trial.

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The 1500s are the ones that defense counsel proposed, and of those, there are no statements by Mr. Smith in the exhibits that weren't admitted.

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So if the argument, and it sounds like the argument is based on my reading of the reply brief,

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that counsel was seeking to admit Mr. Smith's statements from those messages, they were already admitted.

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And he made it pretty clear on excerpt of record 718, I explained almost all of the exhibits from cue to the end.

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I don't think they have any statements of the defendant.

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It's all text between PC and other folks.

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And counsel said, no, they're her statements.

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They're brought in because of her, Judge, her statements.

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He was specifically seeking to admit her statements.

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The things that Mr. Smith said,

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or go ahead and call the cops, it's just going to backfire on you.

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He said, go ahead and try to make at least $800 a day, which is, that's a lot of work in one day.

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Trust me, I'm the nicest P daddy you could ever meet.

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I got a female that I know want to work.

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Don't let her know I let you have half your money because she's going to think that she can have that privilege like you.

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You're the only girl I do that for because you're my main.

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Main is another word for bottom in this case.

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The minor victim's testimony was quite compelling.

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She said, I was told that I had to sell my body to be able to get privileges.

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And she explained that privileges included having a place to live.

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She said, Devon said for PC to teach me.

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Devon also said that I had to start posting my own ads.

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He said, since I'm working for him, I had to go down on him and have sex with him.

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And she said, doing dates was not fun.

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It made her feel disgusted and disappointed.

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Ultimately, the jury heard the arguments that Mr. Smith is now saying that he wasn't permitted to make and they rejected them.

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They heard overwhelming evidence of Mr. Smith's guilt and they found him guilty of all counts.

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And I would simply ask this court to uphold those convictions.

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And unless the court has any additional questions, those are my remarks.

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Did you concede that the sentence should be vacated and remanded?

[00:18:18] Speaker 01:
Yes.

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For count one, the maximum penalty is 20 years, and the sentence exceeded that.

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So I would simply ask to allow the district court to re-sentence Mr. Smith on that count alone.

[00:18:30] Speaker 02:
OK.

[00:18:32] Speaker 02:
Thank you.

[00:18:32] Speaker 02:
Thank you.

[00:18:39] Speaker 03:
Your Honor, when the district court said that at sentencing that he did not regard the text as telling a story that was a linear,

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account of trafficking, he might have been thinking about the kind of scenario that experts often proffer, that the expert did proffer.

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There are, and I don't have the page sites, but the whole picture of the relationship between Mr. Smith and PC

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is not just what the government is saying.

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I discussed what P Daddy might have meant in the context of Mr. Smith's relationship with PC.

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And for example, there's another one in which he's

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talking to her about the limited amount of money and how much trouble she would be in basically without him.

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But we have to remember that Mr. Smith, and we are not appealing the conviction on count one, was engaged in his own

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activity.

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We have to remember that PC found the apartment.

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It was Mr. Smith who moved in after 50 Shades tried to rob her.

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And she, in fact, surrounded herself with a lot of people and made it a kind of a party house.

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Those are not things Mr. Smith did.

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On the other hand, when we talk about the government says that Mr. Smith was given ample opportunity to show that PC was responsible and he was not, I think actually the fact goes to whether the exclusion of this other evidence is harmful or not, and I think it was very harmful.

[00:20:44] Speaker 03:
I know in these cases they usually say, well, a person doesn't, just because a person is trafficking, is trafficked before, doesn't mean she agreed to be trafficked again or fought to be freed from trafficking and wanted to do her own sexual activity for money.

[00:21:04] Speaker 03:
Doesn't mean she would agree to it with Mr. Smith.

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But his defense is that he never

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was involved in that.

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He never asked her to do it.

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She was doing it already.

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And she continued to operate it herself.

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And again, the ample evidence the government talks about him being permitted to introduce was all about PC training up MR. And there's absolutely no evidence that Mr. Smith did that.

[00:21:33] Speaker 03:
But again, it's harmful.

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when he's not allowed to tell the whole story.

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Because it's much more likely then that she isn't, that there's no record of Mr. Smith directly coercing MR because he was not the one to do it.

[00:21:51] Speaker 03:
And I think MR's testimony is not in fact certain about that.

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I'll give you one quick example.

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When she talks about having to get tattoos, there are photographs of them, and they were taken by PC.

[00:22:02] Speaker 03:
And she said, and she was asked, and did Mr. Smith want you to get those tattoos?

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And her answer started to be, I believe Devon told her to do that.

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And that was objected to his hearsay.

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And that was sustained.

[00:22:18] Speaker 03:
I quickly want to talk about the

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about restriction on cross-examination.

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It was just that the court has to understand that PC, who had no record, would be much more likely than people in many cases, including in Larson, to be influenced by the fact that she's looking at a mandatory sentence.

[00:22:44] Speaker 03:
And that is the emphasis I want to put on that particular issue.

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She was not able to.

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She was truly trapped, and obviously with more onerous charges.

[00:23:00] Speaker 03:
And the district court's decision, which is basically based on the idea that I can't let the jury know that Mr. Smith is looking at a penalty like that.

[00:23:08] Speaker 03:
There's a jury instruction about that.

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It's given all the time.

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It was given in this case.

[00:23:12] Speaker 03:
So I don't believe the district court's ruling on that was right under the standard in Larson.

[00:23:19] Speaker 03:
Thank you.

[00:23:20] Speaker 02:
All right.

[00:23:20] Speaker 02:
Thank you very much.

[00:23:22] Speaker 02:
USB Smith will be submitted.