[00:00:04] Speaker 04:
Good morning, counsel.

[00:00:05] Speaker 04:
Good morning.

[00:00:06] Speaker 03:
Can you hear me?

[00:00:07] Speaker 03:
Yes.

[00:00:09] Speaker 03:
Edie Cunningham for Mr. Smith.

[00:00:12] Speaker 03:
I'd like to reserve three minutes, and I will watch my time.

[00:00:15] Speaker 03:
All right.

[00:00:15] Speaker 03:
This case came down to whether it was realistic to make a lot of money in Las Vegas as an escort without engaging in illicit sex.

[00:00:27] Speaker 03:
The government's experts said no, that escorting and prostitution are really the same thing.

[00:00:34] Speaker 03:
That testimony needed to be challenged.

[00:00:37] Speaker 03:
In addition, the failure to object to the use of the moniker P and another individual's conviction for sex trafficking compounded the prejudice.

[00:00:49] Speaker 03:
I'll first address the expert issue.

[00:00:50] Speaker 03:
Under the circumstances of this case, the failure to consult with an expert and really to call an expert constituted deficient performance.

[00:01:05] Speaker 03:
counsel needed to investigate the prevalence of legal escorting in Las Vegas.

[00:01:11] Speaker 01:
Can I ask counsel so I take the government's argument to be that in this case defense counsel was able to effectively cross-examine the government experts and have both of them concede that there could be legal escort services and trial counsel was able to argue in opening and closing

[00:01:32] Speaker 01:
that these conversations related to legal services.

[00:01:36] Speaker 01:
So why, in this case, was there a need to investigate and put on a defense expert?

[00:01:43] Speaker 03:
Well, the experts did not concede much on Cross.

[00:01:46] Speaker 03:
All they said was that it was theoretically possible.

[00:01:49] Speaker 03:
One said she had never seen it in 13 years, and it's just a name that you slap on prostitution to make it not seem so bad.

[00:01:58] Speaker 03:
The other one said, I've seen it a handful of times in 18 years.

[00:02:03] Speaker 03:
But Dr. Brintz, an investigation would have revealed that it was actually quite common in Las Vegas.

[00:02:10] Speaker 03:
Dr. Brintz opined, many escorts in Las Vegas do not have sex.

[00:02:16] Speaker 03:
So cross-examination was not what was really needed.

[00:02:20] Speaker 03:
Also, this court has said in Valencia Lopez, page 901, note 8, that cross-examination is not an effective way

[00:02:30] Speaker 03:
to challenge the reliability of expert testimony.

[00:02:35] Speaker 03:
If expert testimony is going to be put on, it needs to be challenged before the jury even hears it.

[00:02:44] Speaker 01:
Can I ask you this?

[00:02:46] Speaker 01:
I take it your argument is the expert testimony would have been helpful to describe its prevalence in Las Vegas, that it wasn't a rare thing.

[00:02:56] Speaker 01:
Why would that matter in this context if the jury got to hear the conversations and they could weigh for themselves whether the conversations with the defendant and Vanessa talked about illicit sexual services or not?

[00:03:13] Speaker 01:
Why would the prevalence of escort services in Vegas matter when the jury is keyed in on what was happening in these conversations?

[00:03:24] Speaker 03:
My client always said, I want you to get out of the notion that you have to have sex or do illegal things to make a lot of money in Las Vegas.

[00:03:32] Speaker 03:
Las Vegas is a different kind of place.

[00:03:34] Speaker 03:
People will pay a lot of money to be seen with a beautiful young woman, to go out to dinner.

[00:03:39] Speaker 03:
And this is exactly what Dr. Brent's declaration confirmed.

[00:03:45] Speaker 03:
It was the undercover agent posing as Vanessa who always brought the conversation to

[00:03:52] Speaker 03:
the possibility of illicit sex.

[00:03:54] Speaker 03:
And of course, my client couldn't control what this person did once she got to Las Vegas, but he was trying to encourage her that, look, you can make a lot of money here without doing it.

[00:04:05] Speaker 03:
But when the government's experts said, really, there's no such thing as legal prostitution, excuse me, legal escorting, that everything that is escorting is really prostitution,

[00:04:18] Speaker 03:
then of course the jury is going to draw the inference from those conversations that he's talking about, in all likelihood, talking about illegal prostitution.

[00:04:28] Speaker 03:
Juries are instructed that acquittal is only appropriate if there is a reasonable possibility of innocence.

[00:04:36] Speaker 03:
And the experts were saying that just wasn't reasonable, that maybe this was theoretically true, but it was not to be believed.

[00:04:47] Speaker 03:
And the other reason that it wasn't sufficient to cross was that in closing, the government was able to argue, well, you know, you heard the defendant talk about escorting.

[00:04:57] Speaker 03:
Well, our expert, D'Cofle, she told you what escorting really is.

[00:05:01] Speaker 03:
And then, as you say, defense counsel did argue vigorously in closing argument, but then in rebuttal, the government came back and said, you know, he wants you to rely on your common notions.

[00:05:12] Speaker 03:
We put on experts who told you what was going on here and what these terms mean.

[00:05:17] Speaker 03:
So in the context of this case, when there was no risk at all to investigating the prevalence of legal escorting in Las Vegas, it was clear from the outset that it was going to be the central issue of the case because it came down to what those words in those messages and recordings meant.

[00:05:40] Speaker 02:
He was found not guilty on count two.

[00:05:43] Speaker 02:
And what's the distinction between count one and count two that makes the quantum of evidence that the jury found him not guilty of that one, but guilty on count one?

[00:05:55] Speaker 03:
the jury to find beyond a reasonable doubt that he enticed or persuaded Vanessa to go to Las Vegas.

[00:06:03] Speaker 03:
And you know, it was her, well first of all she's the one, it was the undercover agent targeting my client, friending him on Facebook that started the whole thing and then when my client would seem to lose

[00:06:15] Speaker 02:
So I guess the question is then this issue of the expert witness, you know, whether or not escorting can mean prostitution or is legal, that doesn't affect count two, right?

[00:06:27] Speaker 03:
No, because it didn't really matter.

[00:06:29] Speaker 03:
The issue there was whether he enticed or persuaded her to go.

[00:06:35] Speaker 02:
Because it could affect the prejudice prong, right?

[00:06:38] Speaker 02:
If all the evidence is overwhelming in count one, I just wonder why they found him not guilty in count two.

[00:06:49] Speaker 03:
And I do think that's relevant to the prejudice prong.

[00:06:51] Speaker 03:
I think that it shows that the jury had concerns about this case.

[00:06:55] Speaker 03:
And if they had had evidence that legal escorting was a realistic possibility in Las Vegas and making a lot of money on it,

[00:07:03] Speaker 03:
there is more than a reasonable probability that at least one juror would have harbored a reasonable doubt about Count 1, and that's all that we need to show to establish prejudice.

[00:07:16] Speaker 02:
But if the enticement is what distinguishes Count 1 and Count 2, then I'm not sure that really matters.

[00:07:24] Speaker 03:
Well, I understand your point.

[00:07:25] Speaker 03:
All I'm saying is that I think the jury, if they had had the evidence to work with, or alternatively, if the government's experts had not been allowed to testify that escorting and prostitution are the same thing, then it is likely that my client would not have been convicted.

[00:07:44] Speaker 03:
And we do not have to show that it's likely, but I think it is likely under these circumstances, and we've certainly shown

[00:07:51] Speaker 03:
a non-speculative possibility that at least one juror would have harbored a reasonable doubt in the absence of the government's expert testimony or if an expert such as Dr. Brentz had testified that indeed many escorts in Las Vegas do not have sex and they make a very good living at it.

[00:08:12] Speaker 01:
You were going to bring up the use of the word P in that message to him from someone else.

[00:08:19] Speaker 01:
I had a question about that.

[00:08:21] Speaker 01:
The government introduced evidence that the defendant had himself posted these various memes about pimps and prostitution.

[00:08:30] Speaker 01:
So why would this, you know, multiple messages related to that, why would this particular message and the letter P be, like, move the needle in any kind of discernible way?

[00:08:41] Speaker 03:
Well, Your Honor, I agree that it's a small point, but it could have tipped the scales.

[00:08:47] Speaker 03:
I think I included it here as more part of the cumulative error analysis because this was a close case and something like that could have tipped the scales.

[00:08:57] Speaker 03:
And I think under the rationale of Jason Smith, it clearly was offered to prove the truth of the matter asserted.

[00:09:03] Speaker 03:
And I would also note- Can I ask about that?

[00:09:06] Speaker 01:
Because the panel on direct appeal

[00:09:11] Speaker 01:
found no error because it could have been used, not for the truth of matter asserted, but to demonstrate motive and intent.

[00:09:19] Speaker 01:
So is this issue properly before us?

[00:09:22] Speaker 03:
Your Honor, on direct appeal, this court did not address this specific issue.

[00:09:27] Speaker 03:
This is hearsay within another out-of-court statement.

[00:09:32] Speaker 03:
And what the court ruled was that that larger out-of-court statement, hey, this person seems like she might be one of them people.

[00:09:40] Speaker 03:
that that was admitted for a non-hearsay purpose.

[00:09:45] Speaker 03:
But if you go back and look at the decision, they didn't even mention or touch on the hearsay within the hearsay, which is what I'm focusing on here.

[00:09:54] Speaker 04:
And you're- Counsel, the memes that the defendant posted, did any of them identify him- did he identify himself as P in any of those?

[00:10:05] Speaker 03:
No, Your Honor, not that I recall.

[00:10:07] Speaker 03:
And to place those memes in context,

[00:10:10] Speaker 03:
I think there were something like 500 memes that they found and a handful of them arguably could relate to prostitution.

[00:10:18] Speaker 03:
And even the agent conceded that these terms used in these memes were prevalent in hip hop culture and music.

[00:10:26] Speaker 03:
So, you know, the government hones in on just a few of the memes, but by far the majority of the memes were positive and uplifting and had nothing to do with prostitution.

[00:10:40] Speaker 04:
Could you briefly discuss the reference to someone else who was in the messages who was identified as having been convicted of trafficking?

[00:10:51] Speaker 03:
Yes, Your Honor.

[00:10:51] Speaker 03:
There was no reason to bring that in.

[00:10:54] Speaker 03:
I mean, the government argues in this appeal that they were just offering it to show why these undercover cops targeted my client.

[00:11:04] Speaker 03:
I believe the Mitchell Mula post was more than sufficient.

[00:11:08] Speaker 03:
I have concerns about that use.

[00:11:11] Speaker 03:
I didn't challenge it, but that in itself is concerning.

[00:11:15] Speaker 03:
But certainly to throw in that one of the other people that was tagged in this post was convicted of human trafficking, again, that just piles on.

[00:11:23] Speaker 03:
And even the district court, you know, when he heard that,

[00:11:27] Speaker 03:
He called a sidebar and said, don't you want to make a 403 objection?

[00:11:31] Speaker 03:
And counsel said, we'll deal with it in closing.

[00:11:34] Speaker 03:
Well, he didn't deal with it in closing, and he could have filed a motion in Lumine or... Well, counsel, he did deal with it in closing.

[00:11:44] Speaker 01:
He said that anyone can be tagged, and he used this example of

[00:11:48] Speaker 01:
if an FBI agent were tagged in some sort of way and they had no control over it.

[00:11:51] Speaker 01:
I mean, it may not have been effective in your mind, but he did deal with it in some way, didn't he?

[00:11:56] Speaker 03:
Well, that's the middle move.

[00:11:57] Speaker 03:
But did he deal with the 403 aspect of it?

[00:11:59] Speaker 03:
That's the problem.

[00:12:01] Speaker 03:
Exactly, Your Honor.

[00:12:02] Speaker 03:
He didn't deal with

[00:12:04] Speaker 03:
The other person who had been convicted of trafficking, he dealt with the Mula post, but not the fact that somebody else who was tagged had been convicted, which is just going to invite the jury to say, well, if somebody else who was tagged in this post did it, then this person must have done it too.

[00:12:23] Speaker 03:
I can understand why they didn't touch on it.

[00:12:25] Speaker 01:
I guess the argument is he has no control over someone else tagging him in any message.

[00:12:31] Speaker 01:
And so therefore, there's no reason to connect him in any associational way with anything about that post.

[00:12:38] Speaker 03:
I understand.

[00:12:39] Speaker 03:
I understand.

[00:12:40] Speaker 04:
I'd like to reserve- Even if the government connected him with the person, even if there may not be a reason to, the government connected him with that person.

[00:12:49] Speaker 04:
And so the jury is left with the impression that birds of a feather flock together because this person was convicted of trafficking.

[00:12:57] Speaker 04:
We have this similar type of case against the defendant.

[00:13:02] Speaker 04:
So I think that's why the judge had the concern about 403 that the attorney didn't follow up on.

[00:13:09] Speaker 04:
Yes, your honor.

[00:13:11] Speaker 03:
And if I may reserve my time.

[00:13:13] Speaker 03:
All right.

[00:13:13] Speaker 03:
Thank you, counsel.

[00:13:24] Speaker 00:
Good morning, your honors.

[00:13:25] Speaker 00:
May it please the court.

[00:13:26] Speaker 00:
My name is Bridget Minder.

[00:13:28] Speaker 00:
I represent the United States.

[00:13:31] Speaker 00:
The jury found defendant guilty because, in this court's words, there was extensive evidence of guilt.

[00:13:39] Speaker 00:
That extensive evidence included hundreds of Facebook and text messages that the defendant exchanged with Vanessa, an undercover agent.

[00:13:49] Speaker 00:
It also included defendant's Facebook messages, contemporaneous Facebook messages with a woman named Bunny Jordan, who was actively engaging in prostitution and who defendant was also

[00:14:01] Speaker 00:
trying to convince to come to Las Vegas and work with him.

[00:14:04] Speaker 00:
It included unchallenged testimony.

[00:14:08] Speaker 00:
Testimony that's not challenged in this appeal by law enforcement experts.

[00:14:15] Speaker 00:
Excuse me.

[00:14:16] Speaker 00:
I'm going to confuse experts and exports.

[00:14:19] Speaker 00:
Those words are similar.

[00:14:20] Speaker 00:
Sorry about that.

[00:14:22] Speaker 00:
Unchallenged testimony from law enforcement experts

[00:14:27] Speaker 00:
about how pimps recruit prostitutes.

[00:14:30] Speaker 04:
The counsel isn't at the point that the defense attorney should have had an expert to challenge the testimony that was presented by the prosecution.

[00:14:42] Speaker 00:
Judge Robinson, as I understand the defendant's appeal and their 2255, they're only challenging a specific portion of the testimony, and that is about the prevalence of legal escorting in Las Vegas.

[00:14:56] Speaker 00:
There's been no challenge to the bulk of expert testimony, which is about the techniques that pimps use to recruit prostitutes.

[00:15:06] Speaker 00:
Detective Descoufles, and I believe Detective Rousseau, testified about how

[00:15:11] Speaker 00:
Pimps would start by flattering a young woman and talk about how they could come and try dancing or escorting, using words to disguise what becomes prostitution.

[00:15:26] Speaker 04:
Well, that's part of the expert testimony that would have been proffered is whether or not it's escort services or prostitution services that were being solicited.

[00:15:40] Speaker 00:
Your honor, as I understand the defendant's arguments and Dr. Brent's affidavits, their purported sex industry expert, it is specific to the prevalence of legal escorting.

[00:15:50] Speaker 00:
Dr. Brent's doesn't talk at all about how pimps recruit prostitutes.

[00:15:56] Speaker 00:
So that testimony is unchallenged and this court must take it.

[00:15:59] Speaker 04:
We actually don't know what would have

[00:16:02] Speaker 04:
transpired if the defense expert had been allowed to testify.

[00:16:06] Speaker 04:
I'm from Las Vegas, so I have a little bit of familiarity with it, that there is an academic study of the sex industry in Las Vegas.

[00:16:22] Speaker 04:
So the expert could have opined on any or all of this, depending on what questions were asked.

[00:16:30] Speaker 04:
We don't know because the expert wasn't, the defense attorney said he never even thought about calling an expert.

[00:16:38] Speaker 00:
True, Your Honor.

[00:16:39] Speaker 00:
The defendant filed, along with his reply in the 2255 briefing, just a single statement by the defendant's trial counsel saying he did not consider calling

[00:16:53] Speaker 00:
such an expert, but that doesn't render his performance ineffective.

[00:16:57] Speaker 00:
It was a reasonable strategy under Strickland, Harrington, and this court's authority to

[00:17:09] Speaker 00:
pursue cross-examination of the government's experts rather than present his own experts.

[00:17:14] Speaker 01:
As Harrington made clear... Can I ask, one of your arguments in your briefing is that there could have been downsides to putting on a defense expert with cross-examination.

[00:17:25] Speaker 01:
What kind of downsides might have emerged in your view?

[00:17:30] Speaker 00:
Several, Judge Sanchez.

[00:17:32] Speaker 00:
For example, one, this is a paid expert, assuming it's Dr. Brentz.

[00:17:36] Speaker 00:
This is a paid expert who has long advocated for the legalization of prostitution.

[00:17:41] Speaker 00:
So there may be credibility issues.

[00:17:43] Speaker 00:
But more importantly, it's hard to think that an expert like Dr. Brentz or someone else could deny that many of the statements the defendant made, for example, in his recorded

[00:17:58] Speaker 00:
phone call were inconsistent with an intent to engage in prostitution.

[00:18:02] Speaker 00:
And we've quoted these in our brief.

[00:18:04] Speaker 00:
It's the defendant.

[00:18:05] Speaker 04:
The problem with some of those statements is they were directed

[00:18:08] Speaker 04:
This was not the typical grooming situation.

[00:18:14] Speaker 04:
Most of the statements regarding prostitution were initiated by the undercover officer.

[00:18:20] Speaker 04:
And so it's a little bit different than a scenario where the person who's seeking to entice someone or seeking to groom someone is initiating the conversation about prostitution.

[00:18:36] Speaker 00:
Judge Rawlinson, I take your point, but I think that there are places in the record where it's clear that the defendant is the one who's jumping to prostitution.

[00:18:46] Speaker 00:
And importantly, the defendant doesn't deny that he's interested in prostitution.

[00:18:53] Speaker 00:
And if the court will allow me, let me give you a few examples.

[00:18:57] Speaker 00:
At 4ER591, this is one of the Facebook messages that the defendant is exchanging with Vanessa.

[00:19:04] Speaker 00:
says, I heard pimps hit their girls.

[00:19:08] Speaker 00:
And his response right away is, I don't even like the word pimp.

[00:19:12] Speaker 00:
It's not, I wouldn't be your pimp.

[00:19:14] Speaker 00:
I'm not talking about prostitution.

[00:19:16] Speaker 00:
It's, I don't like the word pimp.

[00:19:18] Speaker 04:
So that could have two meanings.

[00:19:21] Speaker 04:
It could be, I don't like that because that's not what I do.

[00:19:24] Speaker 04:
Or it could be, I don't like that because that's what I do and I don't want to be called.

[00:19:29] Speaker 04:
So that doesn't necessarily mean he's wanting her to be a prostitute.

[00:19:34] Speaker 00:
And the defendant's trial counsel vigorously argued that in his opening and in his closing.

[00:19:40] Speaker 00:
And it was for the jury to decide, based on the totality of the evidence, whether or not the defendant's intent was for Vanessa to engage in prostitution.

[00:19:51] Speaker 00:
And Judge Boumete asked my opposing counsel a question about the difference between count one and count two.

[00:19:59] Speaker 00:
That sort of exemplifies what we're looking at here.

[00:20:02] Speaker 00:
The jury unquestionably found that the defendant intended for Vanessa to engage in prostitution.

[00:20:09] Speaker 00:
The difference between count one and two is who was the driving force behind that?

[00:20:13] Speaker 00:
Whose idea was it?

[00:20:15] Speaker 00:
And they couldn't reach a verdict on count two.

[00:20:18] Speaker 00:
So some jurors had some questions about that.

[00:20:21] Speaker 00:
But as to count one, they looked at the totality of the evidence as this court must, excuse me,

[00:20:29] Speaker 00:
When deciding whether defendant was was prejudiced and all of the evidence that they saw the Facebook messages, the recorded phone call, the messages with Miss Jordan with bunny Jordan are particularly damning.

[00:20:42] Speaker 00:
This is somebody these messages are contemporaneous.

[00:20:47] Speaker 00:
to when the defendant is talking with Vanessa.

[00:20:50] Speaker 00:
So he's messaging at least two women at the same time.

[00:20:54] Speaker 00:
Miss Jordan is actively engaging in prostitution.

[00:20:57] Speaker 00:
There's no question about that.

[00:20:59] Speaker 00:
He's talking about, come to Las Vegas.

[00:21:02] Speaker 00:
I want to get you in a service.

[00:21:04] Speaker 00:
And she says, hey, I'm already on P411, and I'm on XE, and I'm on Backpage.

[00:21:10] Speaker 00:
Detective Descoufles, one of the government's experts, our blind expert, testified that P411 and XE

[00:21:17] Speaker 00:
are basically Yelp for prostitutes.

[00:21:20] Speaker 00:
These are services where prostitutes advertise themselves.

[00:21:24] Speaker 00:
Their clients can list or write reviews, say what practices they'll do, what acts they won't do.

[00:21:32] Speaker 00:
Both Detective Russo and Detective Dacoufle talked about Backpage being a common place

[00:21:40] Speaker 00:
where prostitutes advertise.

[00:21:43] Speaker 00:
Ms.

[00:21:43] Speaker 00:
Jordan's also talking about a trick coming to her hotel room and it being a slow day and making less than $1,000.

[00:21:52] Speaker 00:
Now, the defendant casts this in the light of

[00:21:59] Speaker 00:
you know, Mr. Smith, the defendant, was just trying to help Ms.

[00:22:02] Speaker 00:
Jordan get a fresh start.

[00:22:04] Speaker 00:
That's not what an objective view of the evidence shows.

[00:22:07] Speaker 00:
And I think that's one example of the way in which defendant's briefs view the record in this case with rose-colored glasses.

[00:22:16] Speaker 02:
One of the issues was that, in the R&R, was that

[00:22:21] Speaker 02:
that the magistrate judge said that if Brents was to testify, she would have to confront some of the statements made by Mr. Smith and have to concede that they were sexual in nature.

[00:22:29] Speaker 02:
Of course, Ms.

[00:22:30] Speaker 02:
Brents provides an affidavit saying that she would not testify that way.

[00:22:34] Speaker 02:
What's the government's response to it?

[00:22:36] Speaker 00:
Well, I believe that she said she wouldn't testify, or she would testify that defendant's statements were not consistent with an intent to engage in prostitution.

[00:22:50] Speaker 00:
And so I have two responses to that, Judge Bumate.

[00:22:54] Speaker 00:
One is that that is ultimate issue type of testimony about what defendant's intent was or was not that's not allowable under Rule 704.

[00:23:05] Speaker 00:
The second one that I think is important to point out is that Dr. Brentz has not reviewed all of the evidence in this case.

[00:23:12] Speaker 00:
And her affidavits make that crystal clear.

[00:23:15] Speaker 00:
Her first affidavit that's on ER

[00:23:19] Speaker 00:
2ER93 at paragraph 5, it says that she had only reviewed the defendant's opening brief from the appeal.

[00:23:28] Speaker 00:
My opposing counsel is an excellent writer.

[00:23:30] Speaker 00:
When I reviewed her opening brief on appeal, I thought I had a bad case.

[00:23:35] Speaker 00:
So, you know, if that's all that Dr. Brens is reviewing, I can see why she might have felt that way.

[00:23:42] Speaker 02:
And her second... It's true that her second affidavit doesn't go line by line of what the statements that Mr. Smith said, you know, and doesn't say that that's not consistent with prostitution, right?

[00:23:55] Speaker 00:
Correct.

[00:23:55] Speaker 00:
Her second affidavit, and she makes clear in that one, and that's at 2ER 141 paragraph 3, the only additional material that she had reviewed at that point was the judge's report and recommendation and a transcript of the call.

[00:24:10] Speaker 00:
She hadn't reviewed the trial transcripts.

[00:24:13] Speaker 00:
She hadn't reviewed the Bunny Jordan chats.

[00:24:15] Speaker 00:
She hadn't reviewed the Facebook chats.

[00:24:17] Speaker 00:
And so it's hard to see how Dr. Brent's

[00:24:22] Speaker 00:
opinion is one that this court should give much credibility to, and clearly the trial court did not, based on her background, some of the positions that she's taken in the past, and the fact that she wasn't sitting in the jury box like the jurors were.

[00:24:38] Speaker 00:
She hadn't reviewed all of the evidence in this case.

[00:24:42] Speaker 01:
Could you speak briefly about the Mitchell-Moula tag and

[00:24:47] Speaker 01:
and counsel's failure to object at the time and deal with it in closing and the potential prejudice to that.

[00:24:53] Speaker 00:
Yes, Your Honor.

[00:24:55] Speaker 00:
So as to effectiveness, first I would note that this was not something that appellate counsel challenged on direct appeal, as you noted.

[00:25:07] Speaker 00:
I think that it was relevant and admissible to explain the origins of the case.

[00:25:14] Speaker 00:
An objection could have

[00:25:16] Speaker 00:
I apologize, Judge Robinson, go ahead.

[00:25:18] Speaker 04:
I was going to say, how was it relevant that another person had been convicted of sex trafficking?

[00:25:25] Speaker 00:
Well, it explains, Judge, why the government reached out to the folks that were tagged in this.

[00:25:31] Speaker 00:
There's lots of crazy things on Facebook, right?

[00:25:34] Speaker 00:
I get tagged in stuff from people I went to elementary school with that I do not want to be tagged in.

[00:25:40] Speaker 00:
There was a reason why the government reached out.

[00:25:43] Speaker 00:
Now, I take defense counsel's point

[00:25:45] Speaker 00:
that they didn't need it.

[00:25:48] Speaker 00:
We can look in hindsight as to whether that was a wise decision and we needed it or not.

[00:25:53] Speaker 00:
But that's not the test for ineffective assistance of counsel.

[00:25:57] Speaker 00:
But I want to clarify on the prejudice front on this one a couple of things.

[00:26:02] Speaker 00:
This was not as significant a moment at the trial as the appellate briefing has built it up to be.

[00:26:11] Speaker 00:
I was trial counsel.

[00:26:12] Speaker 00:
I was there.

[00:26:13] Speaker 00:
Sidebars in this courtroom are common.

[00:26:16] Speaker 00:
Those of us who were former prosecutors or practiced or were district court judges know that some judges never have a sidebar during trial and it's common for some.

[00:26:28] Speaker 00:
And this is a courtroom where Sue Esponte sidebars was not uncommon.

[00:26:33] Speaker 00:
An example of that is a Sue Esponte sidebar during my opening statement at 2ER175.

[00:26:38] Speaker 04:
And then- Counsel, the point on this one is that the judge suggested that there should be a 403 objection.

[00:26:47] Speaker 04:
The judge is- And counsel did not pick up on that hint.

[00:26:50] Speaker 04:
If a judge tells you that probably you want to do something, that's a pretty good signal that it's meritorious.

[00:26:58] Speaker 00:
I usually try to follow judges' directions as well, Your Honor, and I'm trying not to interrupt you as well, so I apologize for that.

[00:27:06] Speaker 00:
I think the judge's real concern here, and this is clear from a reading of the record,

[00:27:11] Speaker 00:
was not the 403 concern initially.

[00:27:14] Speaker 00:
It was that the government was going to try to use this as a back door to get in evidence about the defendant's criminal history.

[00:27:24] Speaker 00:
The defendant had some criminal history related to prostitution.

[00:27:30] Speaker 00:
I believe an arrest that had not evolved into a conviction.

[00:27:33] Speaker 00:
And the judge's concern was whether the government was going to try to get it in that way.

[00:27:39] Speaker 01:
And I'm pulling up the... As I understand it from my reading, the district court was asking if there's any evidence of a connection between the defendant and someone else on the tag.

[00:27:52] Speaker 01:
So I took it to mean that he was concerned about some sort of associational, you know, thing, aspersion being cast on him.

[00:28:00] Speaker 00:
I took it the same way, Judge Sanchez.

[00:28:02] Speaker 00:
That's the way that I remember the moment, both at sidebar and

[00:28:07] Speaker 00:
at the subsequent questioning and to address the judge's concern, the government in just a couple questions later, 3ER 353 said, but just to be clear, Mr. Mitchell Mula tagged these people.

[00:28:22] Speaker 00:
They didn't ask to be included in this post.

[00:28:24] Speaker 00:
That's correct.

[00:28:25] Speaker 00:
The government was trying to distance the defendant based on the judge's concern at sidebar from that.

[00:28:31] Speaker 00:
And I would note just on effectiveness, the trial counsel did object

[00:28:36] Speaker 00:
to another person's criminal history.

[00:28:38] Speaker 00:
The woman whose car defendant borrowed to drive from Las Vegas to Phoenix, he borrowed a woman's Prius.

[00:28:46] Speaker 00:
It was a friend of his.

[00:28:47] Speaker 00:
She had arrests and I believe conviction, at least one conviction that was prostitution related.

[00:28:54] Speaker 00:
And defense counsel did strategically object

[00:28:58] Speaker 00:
to that evidence coming in.

[00:29:01] Speaker 00:
I think while we may have had a different strategy, had one of us been defense counsel and misused all the government's expert, would have dealt with the issue differently of the Mitchell Moolah post, defendant trial counsel was strategic about it.

[00:29:17] Speaker 00:
He set it on the record.

[00:29:18] Speaker 00:
I plan to deal with it in my closing.

[00:29:20] Speaker 00:
He did deal with it in his closing in the way that I think Judge Sanchez recounted about coming up with this hypothetical.

[00:29:27] Speaker 00:
about the special agent.

[00:29:30] Speaker 00:
I see my time is up.

[00:29:33] Speaker 00:
I'd be happy to answer any other questions, but otherwise the government would ask that the court affirm the district court's denial of defendants 2255 as to all claims.

[00:29:43] Speaker 00:
Thank you, counsel.

[00:29:44] Speaker 00:
Thank you very much.

[00:29:51] Speaker 03:
Just a few points to rebut.

[00:29:53] Speaker 03:
First of all,

[00:29:54] Speaker 03:
Neither the jury nor this court had the full context when reviewing this case in the direct appeal because they did not know that legal escorting is indeed quite common in Las Vegas.

[00:30:09] Speaker 03:
As to Buddy Jordan, that was extensively discussed in my opening brief with detailed citations to the record of their communications because that was pertinent to an issue I raised on direct appeal.

[00:30:24] Speaker 03:
So yes, the expert did have that information.

[00:30:26] Speaker 03:
And also, that needed to be placed in context.

[00:30:31] Speaker 03:
If Dr. Brentz had testified at defendant's trial, that would have explained.

[00:30:37] Speaker 03:
And again, it was Bunny Jordan, an old friend of the defendant's.

[00:30:41] Speaker 03:
They'd obviously had a personal, probably sexual relationship.

[00:30:45] Speaker 03:
She reached out to him, and he's like, get out of that bad situation.

[00:30:49] Speaker 03:
You can make a lot of money escorting in Las Vegas.

[00:30:52] Speaker 03:
So very similar thing.

[00:30:53] Speaker 03:
The context was needed there.

[00:30:55] Speaker 03:
The detectives actually admitted that my client was not acting like a pimp.

[00:31:01] Speaker 03:
He was giving Vanessa a choice.

[00:31:03] Speaker 03:
He wasn't pressuring her.

[00:31:05] Speaker 03:
He used his own name and his own contact information.

[00:31:08] Speaker 03:
So again, having the full context that, yes, it was indeed common to make money in Las Vegas as a legal escort was very important.

[00:31:20] Speaker 03:
Under these circumstances,

[00:31:22] Speaker 03:
my defense counsel either needed to put on its own expert or preclude the government's testimony that escorting and prostitution are interchangeable.

[00:31:34] Speaker 03:
And there would have been good basis to do both.

[00:31:39] Speaker 03:
The downsides, well, these government experts had the imprimatur of the government.

[00:31:46] Speaker 03:
It was crucial if they were going to be able to testify in that way to counter it.

[00:31:52] Speaker 03:
And Dr. Brintz, as one of you pointed out, said she would have not been forced to agree that what my client said had to do with prostitution.

[00:32:01] Speaker 03:
Now, you know, it was the district judge or actually the magistrate who brought that up, but it wouldn't have been damaging because she would not have backed down from her position.

[00:32:17] Speaker 04:
Counsel, do you think that she was subject to

[00:32:21] Speaker 04:
challenged because she advocates for the legalization of prostitution?

[00:32:28] Speaker 03:
No, Your Honor.

[00:32:29] Speaker 03:
I mean, just the government's experts are subject to challenge because they obviously have a bias in favor of the government.

[00:32:37] Speaker 03:
I think, you know, Dr. Brents, and I should point out that the government does not question the truthfulness or accuracy of her affidavit.

[00:32:45] Speaker 03:
And she clearly says there are

[00:32:48] Speaker 03:
Many people who have sex in Las Vegas to make money for that, and there are many people who don't and who make a lot of money without doing anything illegal at all.

[00:32:58] Speaker 03:
And that was the key point.

[00:33:00] Speaker 03:
All right.

[00:33:00] Speaker 03:
Thank you, counsel.

[00:33:01] Speaker 04:
Thank you to both counsel for your helpful arguments.

[00:33:05] Speaker 04:
The case just argued is submitted for a decision by the court.