[00:00:02] Speaker 03:
Good morning, and may it please the Court, Roth Rajan on behalf of Kenton King. I would like to reserve three minutes for rebuttal, and I will watch the clock.

[00:00:10] Speaker 03:
The warrant requirement, as the Supreme Court has reminded us, forms the bulwark of Fourth Amendment protection. In this case, the government sidestepped this important requirement in two ways. First, officers exceeded the scope of a warrant in searching King's cell phones. And second, the government seized King's electronic data without a warrant. Each error requires this Court to reverse.

[00:00:33] Speaker 03:
Police flagrantly exceeded the scope of a search warrant for King's cell phones. The Fourth Amendment confines a search to the bounds set forth in the search warrant. The warrant here limited police to searching for evidence of offense conduct from a 48-hour window. Rather than confine the search to this period, the forensic examiner chose the most intrusive option available and searched King's entire phones. Worse yet, this expansive search was the practice of the Henderson Police Department. Such a flagrant general search violates the Fourth Amendment and requires suppression of all evidence.

[00:01:08] Speaker 02:
Mr. Rajan, given the fact that Mr. King was alleged to have been using his phone for a number of the charged offenses, why wasn't it permissible for the magistrate to believe that a broader scope might be necessary for the search warrant?

[00:01:21] Speaker 03:
I think factually that may be a little bit confused in this case based on both the statements of the victim and Mr. King himself. The offense conduct, which is what is referenced in the affidavit and described more thoroughly there, refers to a 48-hour window from June 2nd, which is when the victim first made contact with Mr. King, to June 4th, which is when contact terminated and the victim's mother reported the incident to the police. So that's why in this case officers had reasonable notice based on the search warrant affidavit that there was a limitation on the scope of the search that the officers could have undertaken.

[00:02:01] Speaker 02:
But there wouldn't have been potentially relevant information or evidence that law enforcement could have obtained even prior to this, relevant to these criminal charges?

[00:02:11] Speaker 03:
Not relevant to these criminal offenses because of the nature of the offense conduct here. Mr. King met the victim on Omegle on June 2nd. So there was no contact with the victim any time prior to June 2nd in this case. So we know that there's a 48-hour period that contains the relevant evidence. And the forensic examiner in this case didn't even try to incorporate a different timeframe for looking for offense conduct. Rather, the forensic examiner acknowledged to using the most intrusive method possible in searching for data everywhere on Mr. King's phone.

[00:02:45] Speaker 03:
And we know under cases like Riley that the privacy interests that are there in a cell phone are extremely high. And here the forensic examiner had options to limit the search to this 48-hour period. I want to point to three in this case. First, at the initial extraction step, the examiner could have used a logical extraction to specify content categories to search. So here, the warrant's affidavit described the manner of the offenses, the devices used, and the relevant dates, making a logical extraction possible.

[00:03:17] Speaker 03:
Second, the examiner could have limited the retention of any overseas data. SO THE EXAMINER ACKNOWLEDGED HE COULD HAVE REMOVED INFORMATION WHEN PARSING THE RAW DATA AND HE ALREADY DID THAT FOR INACCURATE INFORMATION.

[00:03:30] Speaker 00:
AM I ON THE WRONG PAGE HERE WHERE I'M LOOKING, FOR EXAMPLE, AT THE ORDER OVERRULING THE OBJECTION ZR117?

[00:03:46] Speaker 00:
where the court said Spangler's testimony established that law enforcement encountered the very same situation as in Flores here. He explained that neither process available to law enforcement allowed him to call through and examine the individual files, so like the Flores agents, couldn't whittle the 1,100 pages down, nor could he extract text messages between just a few select people or those created between June 2 and June 4. Is this on the same point you're talking about? Yes, it is. So why is it that we should reverse that analysis?

[00:04:22] Speaker 00:
I'm having trouble seeing what exactly the court got wrong.

[00:04:26] Speaker 03:
So that conclusion is mistaken as a legal matter for a couple of reasons. So first, I think part of the district court's concerns were motivated by a concern for deleted data. but there's simply no record evidence at the time of the warrant and at the time of the search that there was even deleted data. And to the extent the examiner then, through his examination, discovered the possibility of missing files, the common practice which this court endorsed in United States v. Sedigeti is to seek a further warrant once the examiner realizes that there may be files missing.

[00:04:58] Speaker 03:
But I think then what the district court did not address was that even if the initial extraction of the entire device was permissible, there was still a possibility for limiting the retention of any overseas data. So first, at the parsing step, the forensic examiner testified at the evidentiary hearing that he could have removed information, and he already did that for inaccurate information. So that's at 4ER 672 and 673. Then the examiner could have also removed overseas data when generating the portable report for the case agent, And the examiner already did that for duplicative data, which is at the same record page as well.

[00:05:35] Speaker 00:
But, Counsel, I understand your argument of why you think the district court made a legal error. The district court on the same page where I was at says, to borrow language from Flores, in short, the government executed the warrant exactly as it was written. I thus find that Spangler's forensic extraction did not exceed the scope of the fully integrated warrant. Warrant. Is that, are those determinations, how do, what standard do we use in reviewing them?

[00:06:04] Speaker 03:
I believe we review that de novo because that's also a legal conclusion about the reasonableness of the search under the Fourth Amendment, especially because the court is trying to analogize that to the legal conclusion that this court made in Flores.

[00:06:17] Speaker 00:
But in terms of discussing how the government executed the warrant, is that a factual determination or a legal determination?

[00:06:25] Speaker 03:
So those are factual findings, but those factual findings are not in dispute. Rather, I think the district court did not address the record evidence that differentiates this case from Flores. So here we have testimony from the forensic examiner, which I don't think was ever there in Flores, that there were other methods for limiting the retention of overseas data.

[00:06:45] Speaker 00:
And I think it's important in Flores. So, counsel, I apologize for interrupting you.

[00:06:51] Speaker 00:
I'm going to ask you to turn to a different issue. Absolutely. If basically you need more time for rebuttal because of my question, I'm fine with that. And I'm going to focus on this with your friend.

[00:07:07] Speaker 00:
It seems to me that Meek is binding on this court. Yes. And my question, though, is...

[00:07:19] Speaker 00:
Going through the record, it strikes me that even if the district court made an error, and I think Meek commands the result here in terms of what the instruction should have been, it seems to me the error is harmless. It seems to me that, I mean, although the standard is high to show that in a circumstance where you actually requested and didn't get the instruction, where if I'm right about Meek you were entitled to, It seems to me the evidence is absolutely overwhelming that your client knew that the victim was under 18.

[00:07:56] Speaker 00:
The text messages talking about him telling her to put 18 on the ad, the high school year that she was at. Why isn't, if we accept your view of Meek, why isn't the error harmless?

[00:08:12] Speaker 03:
So you're correct that the standard for showing harmlessness in this context is high. It is high. And I think that makes it difficult to show harmlessness on this record. So I want to point to a few record facts. So first, the place that Mr. King met the victim was on an adults-only website. The victim acknowledged that Omegle is limited to only those individuals who are 18 years or older. She also had talked about engaging in sexual conduct before. She had also talked about engaging in prostitution.

[00:08:42] Speaker 00:
He knew she was in high school, right?

[00:08:44] Speaker 03:
Yes. I don't think that's dispositive.

[00:08:46] Speaker 00:
No, it's not dispositive because you could be 18 in high school. But I'm looking, for example, at ER 1976.

[00:08:58] Speaker 00:
The parent lock on my phone along with the tracker she's going to see, put your age as 18. I mean, it just...

[00:09:07] Speaker 00:
What evidence was there from which a jury could have concluded here that after having seen her, dealt with her, have all these text messages, the stuff about put down that you're 18, how could a jury have concluded that he didn't think that she was under 18?

[00:09:25] Speaker 03:
So I would point to the record evidence I cited before, but I would also say that she acknowledged during her testimony that she never mentioned explicitly messaging Mr. King her age and that the only other evidence was that she claimed that she told it to him in person.

[00:09:39] Speaker 00:
Well, yes. I mean, so on the one hand, you can say she never messaged it to him, but at ER 1598, she testified, he asked me how old I was, where I went to school, and just some other questions like that. What age did you tell him?

[00:09:52] UNKNOWN:
15.

[00:09:52] Speaker 00:
So she certainly testified to that. Of course, the jury doesn't have to believe her, but that's what she said.

[00:09:56] Speaker 02:
And can I add to that? I mean, there's also ER 1457 that says it's a text message.

[00:10:02] Speaker 02:
where did you go to school, Foothill, what year of high school, freshman year. So even if she didn't specifically mention her age, the freshman year indication I thought was pretty strong as well.

[00:10:14] Speaker 03:
I think you're right to acknowledge that it is strong, but I think there's also sufficient record evidence to believe that Mr. King did not know when she was lying or she was not lying. Indeed, if you look at her cross-examination in this case, she admitted that she told Mr. King some lies. For instance, she lied... about working as a prostitute before. She lied about engaging in this activity before on Omegle. So even when she mentioned stuff, for instance, her school where she gave two different schools, Mr. King could not reasonably know whether, or at least on this record, for the burden of harmlessness, could not believe that when she was telling the truth and when she was not telling the truth.

[00:10:51] Speaker 03:
I think it's also important to keep in mind for coercion and enticement, because it incorporates several state offenses, It's possible that some of the state offenses could have occurred much earlier on in the conversation, while some of the other incorporated offenses occurred much later on in this conversation. And here we don't have any unanimity as to the specific incorporated offense on which all of the jurors, in fact, agreed in this case. And I think further underscoring issues with credibility of the victim in this case, the jury did acquit Mr. King of the only charge that was largely dependant on the victim's testimony in this case.

[00:11:29] Speaker 03:
So we think that... And what was that charge? That was attempted sex trafficking.

[00:11:33] Speaker 02:
Okay.

[00:11:33] Speaker 03:
So he was acquitted of attempted sex trafficking, the one offense that was largely dependent on her testimony. So given all of this equivocal evidence in this case, we think the government cannot satisfy its burden of showing harmlessness with the jury instruction.

[00:11:47] Speaker 00:
So let me ask you one more question on this issue. As I said, it seems to me that Meek is binding, and I'll be discussing that with your friend. But if meek weren't binding, I have a hard time seeing why in the sentence structure of 2422B, why knowingly modifies who has not attained the age of 18 when it immediately precedes, persuades, induces, entices, or coerces and the Congress certainly knew how to put Sienta as to age in a statute if it wanted to.

[00:12:31] Speaker 00:
So if we were writing on a clean slate, and I know what other circuits have said, why wouldn't we interpret it in a textual way to apply the enumerated Sienta requirement to the verbs that immediately follow it?

[00:12:48] Speaker 03:
So I think this is quite clearly set forth as a textual matter in Rehaif, where the Supreme Court said, talked about transitive verbs that are modified by an adjective. So here, the verbs are persuade, entice, coerce. They're all operating on objects. And with transitive verbs, you're assuming that the transitive verb applies to all objects listed thereafter. And here, the adverb knowingly modifies that initial transitive verb. So if you go back to Rehaif, Rehaif says that the presumption in favor of Sienter therefore compels, as a textual matter, reading this knowingly requirement as applying to all subsequently listed elements.

[00:13:27] Speaker 00:
Even in the context of statutes where knowledge as to the age is generally not required?

[00:13:36] Speaker 03:
So we would first contest the assumption of that question. We believe that knowledge of age is required in this context to tend the constitutional line, because otherwise it would criminalize speech between adults, even for completed offenses. And I think if you're worried about the age appearing so late in the sentence defining the offense, I would point this court back to the Supreme Court's decision in excitement video where there was a much longer gap between the listing of knowingly and then the subsequent listing of the element of the age.

[00:14:07] Speaker 03:
So if knowingly extended throughout the provision in excitement video, I don't see a textual reason why it wouldn't extend through this provision as well.

[00:14:18] Speaker 00:
Are there other issues that you would like to address in your opening presentation? If there are, I'll give you some extra time on your clock now.

[00:14:26] Speaker 03:
If I could briefly just talk about the preservation request. How much time would you want? Two minutes.

[00:14:31] Speaker 00:
Why don't we give you, why don't we put two and a half minutes on the clock now, and we'll also give you a few minutes for rebuttal.

[00:14:39] Speaker 03:
Thank you.

[00:14:42] Speaker 03:
So police unconstitutionally seized Mr. King's text now data without a warrant. police issued a preservation request to TexNow to hold King's data until police could acquire a warrant. The district court erroneously rejected this argument by concluding that King had not shown a but-for-cause relationship between this request and the collection of the data under this warrant, but King did carry his burden. So causation under the Fourth Amendment has two components. The first is an initial burden on the defendant to show a factual nexus between the illegality and the collection of the evidence.

[00:15:18] Speaker 03:
And here, Mr. King satisfied this slight burden for two reasons. First, the warrant referenced the unlawful seizure. The warrant required a disclosure of any information that had been preserved under 18 U.S.C.

[00:15:31] UNKNOWN:
2703 .

[00:15:32] Speaker 03:
And courts have said that a sufficient nexus exists where the government continues this illegal seizure while it procures a search warrant. Second, King's data could have been deleted, for example, by him.

[00:15:45] Speaker 02:
the week between the preservation request and the ultimate collection of the data under the warrant and why do you think that the district court is wrong in analyzing this as this there's no but for cause because these were about internal retention policies and not subject to the press it's not clear that it was a preservation record that preserved these these records so i believe the district court misunderstood the causation inquiries so first

[00:16:11] Speaker 03:
The district court improperly put this at Mr. King's initial burden of showing a factual nexus, but under cases like United States v. Allard, this requirement is satisfied if the seizure continues while the government goes to schedule.

[00:16:24] Speaker 00:
Although going to Judge Sanchez's question, I'm looking at ER 531. The email text now will voluntarily preserve data for a period of 90 days. This preservation will expire on 12-3-2020. I mean, that's an admitted fact, right?

[00:16:41] Speaker 03:
Yeah, that's what the text now was doing in response to the preservation request. But the fact that text now describes it as voluntary does not control the state action inquiry.

[00:16:51] Speaker 02:
But I mean, it almost, the way that I read it, it's almost as if text now is just informing the government what it wouldn't do.

[00:16:57] Speaker 02:
If this were, if it had said, well, our normal policy is this, but we're willing to extend it X, Y, and Z, you know, then I think you might have more of a point. But This just seems to be an iteration of the company's own policy.

[00:17:09] Speaker 03:
I don't think that's correct. So if you look later down in the email, TextNow says text messages generally may be available for a period of up to two years. But this 90 days, the reason why 90 days is important is that if you look at 2703F, it says that upon receiving a preservation request, a company has to preserve the information for a period of 90 days. It does not matter that TextNow said that it was doing it voluntarily. the impetus for the preservation was the government's email.

[00:17:39] Speaker 03:
And if you look at cases like United States v. Reed, the motivation behind the search is sufficient to then satisfy the government agent inquiry.

[00:17:47] Speaker 00:
All right. Thank you, counsel. And we'll give you three minutes for your rebuttal.

[00:18:03] Speaker 04:
Good morning, Your Honors. May it please the Court, Skyla Pearson on behalf of the United States of America, the APLE in this case. With the panel's permission, I'd like to start with the jury instruction issue that Judge Bennett, that you raised, that you said you wanted to talk to me about.

[00:18:22] Speaker 04:
With respect to that issue, the jury instruction was proper in this case because the text of the statute does not require that the government prove that the defendant knew the age of his victim.

[00:18:34] Speaker 00:
So, counsel, you know, I'm sorry to interrupt so early. And a priori, I think I would agree with you. But I am, and I understand your argument about why the Meek Court did what it did. But the language of the Meek Court is knowledge of the person induced is essential to the construction.

[00:19:03] Speaker 00:
there's other language like that. In prosecuting a violation, the government must prove both knowledge or belief that the person induced is a minor. And I just have a lot of trouble seeing under our case law, Miller v. Gamme, how even if we think the Meek Court got it wrong, and you might be able to convince me of that, I just don't see how As a three-judge panel, we can say, eh, they didn't really mean it.

[00:19:34] Speaker 00:
They were talking about attempt sting statutes. That's why they put this language in here. I have trouble seeing how we can say that. So I want you to take your best shot coming back at me at that, why my at least preliminary view is wrong.

[00:19:49] Speaker 04:
Yes, Your Honor. With respect to Meek, I don't think this panel has to determine that Meek was wrong, but I do think the context matters. The context of Meek is, again, an adult decoy case, whereas this case is much different. We're not dealing with someone posing as a child, an adult posing as a child. We're dealing with an actual underage victim in this case.

[00:20:14] Speaker 01:
Well, excuse me. Counsel, if I may, I'm sorry to interrupt you.

[00:20:21] Speaker 01:
you said this court can't find, doesn't have to find that Meek was wrong. Well, we can't find that Meek was wrong, first of all, under the rule of orderliness. Only an en banc court can do that. So the next question is, and I think this really goes to the heart of what Judge Bennett was asking you, and it's certainly something that I'm interested in hearing about, and that is the suggestion which has been made that Meek should be limited in its scope to those circumstances where there was a decoy, so to speak, and not a situation like this where there was a live person.

[00:21:11] Speaker 01:
What do you have to say about that?

[00:21:12] Speaker 04:
I think that's absolutely right, Your Honor. I think Meek should be limited to those circumstances, and I think the language, the plain language of the statute itself can help us get there in addition to the— So you don't think Meek is controlling here? I don't, Your Honor. I think it certainly should play a role in this court's decision, but I don't think it controls the way that this panel needs to read that decision because of its limiting effect.

[00:21:40] Speaker 00:
So, Counsel— When the language of Meek is in prosecuting an alleged violation of 2422B, the government must prove both knowledge or belief that the person induced is a minor and something not relevant here. Must prove. So in the United States' view, we should read that as saying must prove in the case of a sting operation.

[00:22:12] Speaker 00:
Yes, Your Honor. Okay, I understand your argument.

[00:22:16] Speaker 02:
I mean, my concern is when Meek talks about, I understand the context of what you're describing, but it's referring to the elements of the offense, and it's a textual-based analysis. So the elements shouldn't shift, you know, if you're textually construing the statute. And one of the elements that Meek says is knowing that a person under 18 years of age It is part of it. And so it's it's and there's no there's nothing about me before or after that would be limited or try to limit itself to the notion that this would just be with a decoy.

[00:22:56] Speaker 02:
And had it done so, I don't think it would have described as an element. And so it's I think that's the tough hill you have to climb with this.

[00:23:04] Speaker 04:
Your Honor, with respect to the text itself, I think the adverb knowingly certainly is limited to what it's modifying, the verbs that follow. Knowingly persuades, induces, entices, or coerces. And so I think looking at the plain text itself, that adverb knowingly modifying the verbs as it normally does in the English language, that gets us to the plain readings. On top of that, Your Honors, with respect to the knowingly element, if you look to the very next statute under 18 U.S.C.

[00:23:40] Speaker 00:
section— So, Counsel, again, I apologize for interrupting. I do think we have your argument on this point. I would like you to address the United States' view of if we disagree with you on meek, is the putative error here harmless?

[00:23:59] Speaker 04:
The error is— Absolutely harmless. Why don't you tell us why?

[00:24:04] Speaker 04:
Even assuming that this court disagrees with me with my reading on meek or the plain language of the statute, the evidence that the government presented at trial, as Your Honors noted earlier when talking to opposing counsel, is overwhelming. The defendant knew that the victim had just finished her freshman year of high school. The defendant knew that the victim lived with her mom. He knew that she didn't own a pair of high heels, that there were parent locks on her phone, that her mom tracked her location and regularly went through her phone, and the defendant himself told her, knowing all of that, to delete some of their messages between the two.

[00:24:47] Speaker 04:
The defendant picked her up from her mom's house, dropped her back off at her mom's house, told her to set, as your honors noted, the age of the the websites that he wanted to create for her at 18.

[00:25:03] Speaker 04:
The video taken by him instructed her to state her name and tell him where she went to high school. He referred continuously throughout their conversations, used the phrase teen sluts.

[00:25:18] Speaker 02:
Counsel, let me ask you this.

[00:25:20] Speaker 02:
You would agree, you know, if there's been a request for a particular jury instruction and there's instructional error It's difficult to overcome the prejudice standard of a reasonable probability.

[00:25:32] Speaker 02:
Could it be the case that even if there is this evidence, if the jury was not properly instructed to focus in on age as an element of the offense, that that itself is enough to cause the prejudice here? Because they weren't being told to consider what defendant's knowledge of the age was in the context of this count.

[00:25:54] Speaker 04:
No, Your Honor. Because of all of that evidence that the government presented at trial, as well as the arguments in closing arguments, the government presented a closing argument, this issue squarely being before the jury with respect to the defendant knowing that the victim was underage.

[00:26:12] Speaker 00:
Although I might agree with you as to the evidence, I think that's a little bit of an unfair argument. because in a circumstance where the defense has requested an instruction, the court has refused the instruction. I mean, they need to tailor their arguments to the instructions the court is giving, not to the thought that the appellate court might overrule the trial court. So I don't think it's really fair to concentrate on arguments that were made based on the instructions the court gave, which might have been erroneous.

[00:26:50] Speaker 04:
Your Honor, I'd agree with you but for the context of this case and the charges involved in this case. The coercion and enticement was not the only charge presented to the jury and that was talked about and presented arguments to and evidence to with respect to this victim's age. So I think it is a fair argument to make that the issue about the victim's age was squarely before the jury. The jury knew that the the defendant knew the victim was underage.

[00:27:21] Speaker 02:
What other count of conviction did the age of the victim come up in particular?

[00:27:26] Speaker 04:
The one that we did not get the conviction on.

[00:27:29] Speaker 02:
So what about that? I mean, I guess to your friend on the other side, where the jury is focused in on that age, there was an acquittal. And there could be other reasons, right? They might find that that the victim wasn't being trafficked in light of the evidence that was presented. But does that suggest that there might be a reasonable probability of error here, of prejudice?

[00:27:53] Speaker 04:
I don't think so, Your Honor. And again, I'd go back to the strong evidence throughout the case that was presented. I mean, we're not just talking about a few things that would have talked about the age. We're talking about an overwhelming amount of evidence that talked about the victim's age and the defendant's knowledge of the victim's age.

[00:28:15] Speaker 02:
Do you want to turn a little bit to the search warrant issues?

[00:28:18] Speaker 04:
Yes, Your Honor.

[00:28:20] Speaker 04:
With respect to the search warrant issue that came up with the defendant's device, the search warrant was not overbroad because the search warrant allowed for a, quote, bit-by-bit, quote, image of all data information. on the storage devices, and that's in Excerpt of Record 117.

[00:28:46] Speaker 04:
The officers here used the approved two-step approach. It also was not overbroad, Your Honors, because it was tailored to the crimes involved in this case and the means by which the defendant committed these crimes.

[00:29:02] Speaker 02:
What about this 48-hour issue that counsel has raised?

[00:29:06] Speaker 04:
The 48-hour issue, the...

[00:29:10] Speaker 04:
Again, I think that comes down to the fact that there were multiple means by which the defendant committed these crimes. We're not just dealing with something in the abstract. We're looking at crimes that were committed using multiple platforms on a cellular device, not just ones that had to access the web or anything like that, where We're dealing with storage. We're dealing with web access. We're dealing with multiple apps used.

[00:29:41] Speaker 04:
And all of that shows that the search was not overbroad despite that 48-hour time limit.

[00:29:49] Speaker 04:
With respect to the same, the defendant's devices, we also discovered that there was deleted data, and that would not have been discovered or been able to be used. searched and come up with but for the search warrant being done in the way that it was.

[00:30:13] Speaker 04:
If there are no other questions about the defendant's devices, I would like to turn briefly to the preservation notice.

[00:30:23] Speaker 04:
The government issuing a preservation notice under the statute 18 U.S.C. Section 2703F is not a seizure.

[00:30:34] Speaker 04:
Tech's now exercised control over the data of its servers.

[00:30:40] Speaker 04:
In order for the defense to show that there was an error on the district court's part, he needs to show that there was a meaningful interference with the individual's possessory interest. That's out of United States v. Jacobson.

[00:30:55] Speaker 04:
He cannot do so here because the data was not his. It was held and stored by a third party.

[00:31:05] Speaker 04:
The third-party TexNow also did not act as a government agent. The government only made the request to the third-party TexNow to preserve the data. The requirement that TexNow do so was not because of the preservation request made by the government, but because of the statute involved here.

[00:31:27] Speaker 04:
If there are no other questions... Well, so if...

[00:31:31] Speaker 02:
What are the best cases to think about this notion of whether a preservation request turns a third party into a government agent?

[00:31:40] Speaker 04:
I think the best cases to look at are cases – I think I'd point out to the court that there are no cases that have held that a seizure like this, a preservation request, constitute a seizure. And so I don't think the analysis needs to even get to the – the part about representing a government agent.

[00:32:08] Speaker 04:
There are no further questions. The government respectfully requests that the court affirm the district court on all the issues presented.

[00:32:15] Speaker 00:
All right. Thank you, counsel.

[00:32:25] Speaker 03:
I'll begin with the jury instruction issue. So first, addressing the government's attempt to limit it to adult decoys. I think that's wrong first for the reason that Judge Sanchez pointed out. The decision in Meek was a textual analysis based on the longstanding presumption in favor of Sienter and how you read the term knowingly as extending throughout the provision. I think it's important to keep in mind that the attempt violation appears in the exact same sentence after the word knowingly, meaning the textual analysis would apply equally with this offense too.

[00:32:58] Speaker 03:
I also think the constitutional concerns would apply for the reasons we highlighted in our brief. Even for some completed offenses, like lewdness with a minor under Nevada law, that offense can occur virtually and it's a strict liability offense, meaning that it would hold somebody accountable for engaging with lewd text with a person they thought to be an adult but was still in fact a minor. Therefore, the constitutional concerns pointed out in Meek would exist with completed violations as well. On harmlessness, you are right. The standard is no reasonable possibility that the verdict would have been different.

[00:33:31] Speaker 03:
And I think this court has repeatedly emphasized that this is a high and difficult burden to meet. Here, there are several facts that make it impossible to meet on this record. First, the circumstances under which they met. They met on a website restricted to adults where they immediately started talking about adult topics. Second, the possibility that Mr. King did not know when the victim was telling the truth and when the victim was lying. Indeed, the victim on cross-examination acknowledged that she was lying to him over text in order to keep the conversation going.

[00:34:04] Speaker 03:
I would point this court to 8ER-1604. None of the government's evidence is dispositive, largely because it relies— on the victim's testimony in this case, and there was an acquittal on the count that relied most on her testimony, meaning that the jury could have simply disbelieved her given the remaining evidence. I think it's also important to keep in mind the nature of this particular offense. It's a continuing offense that incorporates a whole host of other violations, meaning it's hard to determine what violation, underlying violation, the jury actually fixated on, which makes a harmlessness inquiry even more difficult here.

[00:34:41] Speaker 03:
I also want to briefly address the search issues. So first, the government relies on the bit-by-bit provision of the warrant, but that provision is notably limited to evidence described in the warrant, meaning that the forensic examination still had to be limited by the affidavit. The government then points out that no other circuit for the preservation request issue or no other court has found a violation. That's largely on causation grounds. But here we have a distinctive record where the government never introduced the very policy that talks about data retention.

[00:35:14] Speaker 03:
It introduced the law enforcement policy three years after the investigation, meaning it could not carry its burden on causation. So for any of these reasons, this court should reverse and remand.

[00:35:25] Speaker 00:
All right, we thank counsel for their arguments. The case just argued is submitted.