[00:00:02] Speaker 03:
Good morning, and may it please the court, Ruth Rogin, on behalf of Kenton King.

[00:00:05] Speaker 03:
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.

[00:00:16] Speaker 03:
In this case, the government sidestepped this important requirement in two ways.

[00:00:21] Speaker 03:
First, officers exceeded the scope of a warrant in searching King's cell phones.

[00:00:25] Speaker 03:
And second, the government seized King's electronic data without a warrant.

[00:00:30] Speaker 03:
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.

[00:00:37] Speaker 03:
The Fourth Amendment confined the search to the bounds set forth in the search warrant.

[00:00:41] Speaker 03:
The warrant here limited police to searching for evidence of offence conduct from a 48-hour window.

[00:00:48] Speaker 03:
Rather than confine the search to this period, the forensic examiner chose the most intrusive option available and searched King's entire phones.

[00:00:57] Speaker 03:
Worse yet, this expansive search was the practice of the Henderson Police Department.

[00:01:03] Speaker 03:
Such a flagrant general search violates the Fourth Amendment and requires suppression of all evidence.

[00:01:08] Speaker 04:
Mr. Rajan, given the fact that Mr. King was alleged to have been using his phone for a number of the charged offenses, why was it impermissible 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.

[00:01:29] Speaker 03:
The offence conduct, which is what is referenced in the affidavit and described more thoroughly there, refers to a 48-hour window

[00:01:37] Speaker 03:
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.

[00:01:49] Speaker 03:
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 04:
But there wouldn't have been potentially relevant information or evidence that the law enforcement could have obtained even prior to this 40, relevant to these criminal charges?

[00:02:12] Speaker 03:
Not relevant to these criminal offenses because of the nature of the offense conduct here.

[00:02:16] Speaker 03:
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.

[00:02:25] Speaker 03:
So we know that there's a 48-hour period that contains the relevant evidence.

[00:02:30] Speaker 03:
And the forensic examiner in this case didn't even try to incorporate a different time frame for looking for offence 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.

[00:02:51] Speaker 03:
And here, the forensic examiner had options to limit the search to this 48-hour period.

[00:02:57] Speaker 03:
I want to point to three in this case.

[00:03:00] Speaker 03:
First, at the initial extraction step, the examiner could have used a logical extraction to specify content categories to search.

[00:03:08] Speaker 03:
So here, the Warren'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 01:
Council, am I on the wrong page here where I'm looking for example at the

[00:03:39] Speaker 01:
the order overruling the objection, ZR 117, where the court said Spangler's testimony established that law enforcement encountered the very same situation as in Flora's fear.

[00:03:53] Speaker 01:
He explained that neither process available to law enforcement allowed him to cull through and examine the individual files, so like the Flora's agents,

[00:04:01] Speaker 01:
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.

[00:04:12] Speaker 01:
Is this on the same point you're talking about?

[00:04:14] Speaker 01:
Yes, it is.

[00:04:15] Speaker 01:
So why is it that we should reverse that analysis?

[00:04:22] Speaker 01:
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.

[00:04:30] Speaker 03:
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.

[00:04:42] Speaker 03:
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 versus Zadigetti 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 possibility for limiting the retention of any overseas data.

[00:05:10] Speaker 03:
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.

[00:05:20] Speaker 03:
So that's at 4ER 672 and 673.

[00:05:23] Speaker 03:
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 01:
Council, I understand your argument of why you think the district court made a legal error.

[00:05:42] Speaker 01:
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.

[00:05:52] Speaker 01:
I thus find that Spangler's forensic extraction did not exceed the scope of the fully integrated warrant.

[00:05:59] Speaker 01:
Are those determinations?

[00:06:01] Speaker 01:
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 01:
But in terms of discussing how the government executed the warrant,

[00:06:21] Speaker 01:
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.

[00:06:29] Speaker 03:
Rather, I think the district court did not address the record evidence that differentiates this case from Flores.

[00:06:35] Speaker 03:
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 01:
And I think it's important in Flores.

[00:06:47] Speaker 01:
So counsel, I apologize for interrupting you.

[00:06:50] Speaker 01:
I'm going to ask you to turn to a different issue.

[00:06:54] Speaker 01:
And if basically you need more time for rebuttal because of my question, I'm fine with that.

[00:07:03] Speaker 01:
And I'm going to focus on this with your friend.

[00:07:06] Speaker 01:
It seems to me that Meek is binding on this court.

[00:07:14] Speaker 01:
Yes, and my question though is going through the record.

[00:07:21] Speaker 01:
It strikes me that even if the district court made an error and I think me commands.

[00:07:28] Speaker 01:
The result here in terms of what the instruction should have been, it seems to me the error is harmless.

[00:07:35] Speaker 01:
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 me, you were entitled to, it seems to me the evidence is absolutely overwhelming.

[00:07:49] Speaker 01:
that your client knew that the victim was under 18.

[00:07:56] Speaker 01:
The text messages talking about him telling her to put 18 on the ad, the high school year that she was at.

[00:08:05] Speaker 01:
Why isn't, if we accept your view of Meek,

[00:08:09] Speaker 01:
Why isn't the error harmless?

[00:08:12] Speaker 03:
So you're correct that this standard for showing harmlessness in this context is high.

[00:08:17] Speaker 03:
It is high.

[00:08:18] Speaker 03:
And I think that makes it difficult to show harmlessness on this record.

[00:08:21] Speaker 03:
So I want to point to a few record facts.

[00:08:23] Speaker 03:
So first, the place that Mr. King met the victim was on an adults-only website.

[00:08:29] Speaker 03:
The victim acknowledged that Omegle is limited to

[00:08:32] Speaker 03:
only those individuals who are 18 years or older.

[00:08:36] Speaker 03:
She also had talked about engaging in sexual conduct before.

[00:08:39] Speaker 03:
She had also talked about engaging in prostitution before.

[00:08:42] Speaker 01:
He knew she was in high school, right?

[00:08:44] Speaker 01:
Yes.

[00:08:44] Speaker 01:
I don't think that's dispositive.

[00:08:46] Speaker 01:
No, it's not dispositive, because you could be 18 in high school.

[00:08:51] Speaker 01:
But I'm looking, for example, at ER 1976.

[00:08:57] Speaker 01:
The the parent lock on my phone along with the tracker she's going to see put your age is 18 I mean it just

[00:09:07] Speaker 01:
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

[00:09:32] Speaker 01:
Mentioned explicitly messaging mr. King her age and that the only other evidence was that she claimed that she told it to him 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 15 so she certainly testified to that the jury doesn't have to believe her, but that's what she said

[00:09:56] Speaker 04:
And can I add to that?

[00:09:57] Speaker 04:
I mean, you know, there's also ER 1457 that says, it's a text message.

[00:10:02] Speaker 04:
Where did you go to school?

[00:10:03] Speaker 04:
Foothill.

[00:10:04] Speaker 04:
What year of high school?

[00:10:05] Speaker 04:
Freshman year.

[00:10:06] Speaker 04:
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.

[00:10:23] Speaker 03:
Indeed, if you look at her cross-examination in this case, she admitted that she told Mr. King some lies.

[00:10:29] Speaker 03:
For instance, she lied about working as a prostitute before.

[00:10:32] Speaker 03:
She lied about engaging in this activity before on Omegle.

[00:10:36] Speaker 03:
So even when she mentioned stuff,

[00:10:38] Speaker 03:
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 precaution and enticement because it incorporates several state offenses.

[00:10:58] Speaker 03:
It's possible that some of the state offenses could have occurred much earlier on.

[00:11:03] Speaker 03:
in the conversation, while some of the other incorporated offenses occurred much later on in this conversation.

[00:11:09] Speaker 03:
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.

[00:11:17] Speaker 03:
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 dependent

[00:11:27] Speaker 03:
on the victim's testimony in this case.

[00:11:29] Speaker 03:
So we think that... What was that charge?

[00:11:31] Speaker 03:
That was attempted sex trafficking.

[00:11:33] Speaker 03:
Okay.

[00:11:33] Speaker 03:
So he was acquitted of attempted sex trafficking, the one offense that was largely dependent on her testimony.

[00:11:38] Speaker 03:
So given all of this equivocal evidence in this case, we think the government cannot satisfy its burden of showing harmlessness.

[00:11:46] Speaker 01:
Well with the jury instruction 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

[00:12:00] Speaker 01:
Have a hard time seeing why in the sentence structure of 24 22 be why?

[00:12:10] Speaker 01:
knowingly Modifies who has not attained the age of 18 when it immediately pursuits proceeds

[00:12:20] Speaker 01:
precedes, persuades, induces, entices, or coerces.

[00:12:25] Speaker 01:
And the Congress certainly knew how to put scienter as to age in a statute if it wanted to.

[00:12:31] Speaker 01:
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 scienter 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 talked about transitive verbs that are modified by an adjective.

[00:12:57] Speaker 03:
So here, the verbs are persuade, entice, coerce.

[00:13:01] Speaker 03:
They're all operating on objects.

[00:13:03] Speaker 03:
And with transitive verbs, you're assuming that the transitive verb applies to all objects listed thereafter.

[00:13:08] Speaker 03:
And here, the adverb knowingly modifies that initial transitive verb.

[00:13:13] Speaker 03:
So if you go back to Rehaif, Rehaif says that the presumption in favor of scienter

[00:13:18] Speaker 03:
therefore compels, as a textual matter, reading this knowingly requirement as applying to all the subsequently listed elements.

[00:13:27] Speaker 01:
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.

[00:13:40] Speaker 03:
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.

[00:13:51] Speaker 03:
And I think if you're worried about

[00:13:52] Speaker 03:
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.

[00:14:16] Speaker 01:
So are there other issues that you would like to address in your opening presentation?

[00:14:22] Speaker 01:
If there are, I'll give you some extra time on your clock now.

[00:14:26] Speaker 03:
Sure.

[00:14:26] Speaker 03:
If I could briefly just talk about the preservation request.

[00:14:29] Speaker 03:
How much time would you want?

[00:14:30] Speaker 01:
Two minutes is probably.

[00:14:32] Speaker 01:
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.

[00:14:47] Speaker 03:
Police issued a preservation request to text now to hold King's data until police could acquire a warrant.

[00:14:55] Speaker 03:
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.

[00:15:05] Speaker 03:
But King did carry his burden.

[00:15:07] Speaker 03:
So causation under the Fourth Amendment has two components.

[00:15:10] Speaker 03:
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 the slight burden for two reasons.

[00:15:22] Speaker 03:
First, the warrant referenced the unlawful seizure.

[00:15:25] Speaker 03:
The warrant required a disclosure of any information.

[00:15:28] Speaker 03:
that had been preserved under 18 U.S.E.

[00:15:30] Speaker 03:
2703 F, and courts have said that a sufficient nexus exists where the government continues this illegal seizure while it procures a search warrant.

[00:15:41] Speaker 03:
Second, King's data could have been deleted, for example, by him in the week between the preservation request and the ultimate collection of the data under the warrant.

[00:15:50] Speaker 04:
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.

[00:16:03] Speaker 04:
It's not clear that it was a preservation record that preserve these these records.

[00:16:06] Speaker 03:
So I believe the district court misunderstood the causation inquiry.

[00:16:10] Speaker 03:
So first, the district court improperly put this at Mr. King's initial burden of showing a factual nexus.

[00:16:16] Speaker 03:
But under cases like United States versus Allard, this requirement is satisfied if the seizure continues while the government goes to step.

[00:16:24] Speaker 01:
Although going to Judge Sanchez's question, I'm looking at ER 531.

[00:16:29] Speaker 01:
The email, TexNow, will voluntarily preserve data for a period of 90 days.

[00:16:34] Speaker 01:
This preservation will expire on 12-3-2020.

[00:16:37] Speaker 01:
I mean, that's an admitted fact, right?

[00:16:41] Speaker 03:
Yeah, that's what TexNow was doing in response to the preservation request.

[00:16:46] Speaker 03:
But the fact that TexNow describes it as voluntary does not control the state action inquiry.

[00:16:51] Speaker 04:
The way that I read it, it's almost as if TexNOW is just informing the government what it wouldn't do.

[00:16:57] Speaker 04:
If it had said, well, our normal policy is this, but we're willing to extend it X, Y, and Z, 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.

[00:17:10] Speaker 03:
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.

[00:17:18] Speaker 03:
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.

[00:17:31] Speaker 03:
It does not matter that TextNow said that it was doing it voluntarily.

[00:17:35] Speaker 03:
The impetus for the preservation was the government's email.

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

[00:17:47] Speaker 01:
All right.

[00:17:48] Speaker 01:
Thank you, counsel.

[00:17:48] Speaker 01:
And we'll give you three minutes for your rebuttal.

[00:18:03] Speaker 02:
Good morning, Your Honors, and may it please the Court, Skyler Pearson on behalf of the United States of America, the appellee in this case.

[00:18:10] Speaker 02:
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 02:
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 01:
So counsel, I'm sorry to interrupt so early.

[00:18:36] Speaker 01:
And a priori, I think I would agree with you, but I am

[00:18:43] Speaker 01:
And I understand your argument about why the Meek Court did what it did.

[00:18:51] Speaker 01:
But the language of the Meek Court is knowledge of the person induced is essential to the construction.

[00:19:00] Speaker 01:
And there's other language like that.

[00:19:05] Speaker 01:
In prosecuting a violation, the government must

[00:19:08] Speaker 01:
prove both knowledge or belief that the person induced is a minor.

[00:19:14] Speaker 01:
And I just have a lot of trouble seeing under our case law, Miller versus Gammie, 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

[00:19:29] Speaker 01:
as a three-judge panel, we can say, eh, they didn't really mean it.

[00:19:35] Speaker 01:
They were talking about attempt sting statutes.

[00:19:38] Speaker 01:
That's why they put this language in here.

[00:19:40] Speaker 01:
I have trouble seeing how we can say that.

[00:19:42] Speaker 01:
So why don't you take your best shot at coming back at me at that, why my at least preliminary view is wrong.

[00:19:49] Speaker 02:
Yes, Your Honor.

[00:19:50] Speaker 02:
With respect to Meek, I don't think this panel has to determine that Meek was wrong.

[00:19:57] Speaker 02:
But I do think the context matters.

[00:19:59] Speaker 02:
The context of Meek is, again, an adult decoy case, whereas this case is much different.

[00:20:06] Speaker 02:
We're not dealing with someone posing as a child, an adult posing as a child.

[00:20:12] Speaker 02:
We're dealing with an actual underage victim in this case.

[00:20:15] Speaker 00:
Well, excuse me.

[00:20:17] Speaker 00:
If I may, I'm sorry to interrupt you.

[00:20:21] Speaker 00:
You said this court can't find, doesn't have to find that Meek was wrong.

[00:20:26] Speaker 00:
Well, we can't find that Meek was wrong, first of all, under the rule of orderliness.

[00:20:31] Speaker 00:
Only an en banc court can do that.

[00:20:33] Speaker 00:
So the next question is,

[00:20:36] Speaker 00:
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

[00:21:06] Speaker 02:
person so what what do you have to say about that 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 you don't think meek is controlling here

[00:21:26] Speaker 02:
I don't, your honor.

[00:21:28] Speaker 02:
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 01:
So counsel, when the language of MIECH is

[00:21:46] Speaker 01:
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.

[00:22:02] Speaker 01:
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 01:
Yes, Your Honor.

[00:22:13] Speaker 01:
OK.

[00:22:14] Speaker 01:
I understand your argument.

[00:22:16] Speaker 04:
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.

[00:22:29] Speaker 04:
So the elements shouldn't shift, you know, if you're textually construing the statute.

[00:22:34] Speaker 04:
And one of the elements that Meek says is knowingly, knowing that a person under 18 years of age is part of it, and so it's,

[00:22:44] Speaker 04:
And there's no, there's nothing about Meek 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 04:
And had it done so, I don't think it would have described as an element.

[00:23:00] Speaker 04:
And so it's, I think that's the tough hill you have to climb with this.

[00:23:04] Speaker 02:
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.

[00:23:13] Speaker 02:
Knowingly persuades, induces, entices, or coerces.

[00:23:19] Speaker 02:
And so I think looking at the plain text itself,

[00:23:23] Speaker 02:
that adverb knowingly modifying the verbs as it normally does in the English language, that gets us to the plain reading.

[00:23:31] Speaker 02:
On top of that, Your Honors, with respect to the knowingly element, if you look to the very next statute under 18 USC section.

[00:23:43] Speaker 01:
Again, I apologize for interrupting.

[00:23:45] Speaker 01:
I do think we have your argument on this point.

[00:23:49] Speaker 01:
I would like you to address the United States' view of if we disagree with you on Meek, is the error, the putative error here harmless?

[00:23:59] Speaker 02:
The error is absolutely harmless.

[00:24:01] Speaker 02:
Why don't you tell us why?

[00:24:04] Speaker 02:
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 Honours noted earlier when talking to opposing counsel, is overwhelming.

[00:24:20] Speaker 02:
The defendant knew that the victim had just finished her freshman year of high school.

[00:24:26] Speaker 02:
The defendant knew that the victim lived with her mom.

[00:24:29] Speaker 02:
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.

[00:24:40] Speaker 02:
And the defendant himself told her, knowing all of that, to delete some of their messages between the two.

[00:24:47] Speaker 02:
The defendant picked her up from her mom's house, dropped her back off at her mom's house.

[00:24:53] Speaker 02:
told her to set, as your honors noted, the age of the websites that he wanted to create for her at 18.

[00:25:03] Speaker 02:
The video taken by him instructed her to state her name and tell him where she went to high school.

[00:25:12] Speaker 02:
He referred continuously throughout their conversations, used the phrase teen sluts.

[00:25:17] Speaker 04:
Council, let me ask you this.

[00:25:20] Speaker 04:
You would agree, 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 04:
Could it be the case that even if there is this evidence, if the jury was not properly instructed to,

[00:25:38] Speaker 04:
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.

[00:25:53] Speaker 02:
No, Your Honor.

[00:25:55] Speaker 02:
Because of all of that evidence that the government presented at trial, as well as the arguments in closing arguments, the government presented at closing argument, this issue squarely being before the jury with respect to the defendant knowing that the victim was underage.

[00:26:12] Speaker 01:
Although I might agree with you as to the evidence, I think that's a little bit of an unfair argument.

[00:26:19] Speaker 01:
because in a circumstance where the defense has requested an instruction, the court has refused the instruction.

[00:26:28] Speaker 01:
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.

[00:26:40] Speaker 01:
So I don't think it's really fair.

[00:26:42] Speaker 01:
to concentrate on arguments that were made based on the instructions the court gave, which might have been erroneous.

[00:26:50] Speaker 02:
Your Honor, I'd agree with you but for the context of this case and the charges involved in this case.

[00:26:57] Speaker 02:
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.

[00:27:08] Speaker 02:
So I think it is a fair argument to make that the issue about the victim's age was squarely before the jury.

[00:27:15] Speaker 02:
The jury knew that the

[00:27:18] Speaker 02:
the defendant knew the victim was underage.

[00:27:21] Speaker 04:
What other count of conviction did the age of the victim come up in particular?

[00:27:27] Speaker 02:
The one that we did not get the conviction on.

[00:27:29] Speaker 04:
So what about that?

[00:27:31] Speaker 04:
I mean, I guess to your friend on the other side, where the jury is focused in on that age, there was an acquittal.

[00:27:40] Speaker 04:
And there could be other reasons, right?

[00:27:42] Speaker 04:
They might find that the victim wasn't being trafficked in light of the evidence that was presented.

[00:27:47] Speaker 04:
But does that suggest that there might be a reasonable probability of error here, of prejudice?

[00:27:53] Speaker 02:
I don't think so, Your Honor.

[00:27:54] Speaker 02:
And again, I'd go back to the strong evidence throughout the case that was presented.

[00:27:59] Speaker 02:
I mean, we're not just talking about a few things that would have talked about the age.

[00:28:05] Speaker 02:
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 04:
Do you want to turn a little bit to the search warrant issues?

[00:28:18] Speaker 02:
Yes, Your Honor.

[00:28:20] Speaker 02:
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 on the storage devices, and that's in Excerpt of Record 117.

[00:28:46] Speaker 02:
The officers here used the approved two-step approach.

[00:28:52] Speaker 02:
It also was not overbroad, Your Honours, 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 04:
What about this 48-hour issue that Council has raised?

[00:29:06] Speaker 02:
The 48-hour issue, the

[00:29:10] Speaker 02:
Again, I think that comes down to the fact that there were multiple means by which the defendant committed these crimes.

[00:29:20] Speaker 02:
We're not just dealing with something in the abstract.

[00:29:23] Speaker 02:
We're looking at crimes that were committed

[00:29:27] Speaker 02:
using multiple platforms on a cellular device, not just, you know, 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, and all of that shows that the search was not overbroad despite that 48-hour time limit.

[00:29:49] Speaker 02:
With respect to

[00:29:51] Speaker 02:
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 searched and come up with but for the search warrant being done in the way that it was.

[00:30:13] Speaker 02:
If there are no other questions about the defendant's devices, I would like to turn briefly to the preservation notice.

[00:30:22] Speaker 02:
The government issuing a preservation notice under the statute 18 U.S.C.

[00:30:29] Speaker 02:
Section 2703 F is not a seizure.

[00:30:34] Speaker 02:
Techs now exercise control over the data of its servers.

[00:30:40] Speaker 02:
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.

[00:30:50] Speaker 02:
That's out of United States versus Jacobson.

[00:30:55] Speaker 02:
He cannot do so here, because the data was not his.

[00:31:00] Speaker 02:
It was held and stored by a third party.

[00:31:05] Speaker 02:
The third party TextNow also did not act as a government agent.

[00:31:09] Speaker 02:
The government only made the request to the third party TextNow to preserve the data.

[00:31:15] Speaker 02:
The requirement that TextNow do so was not because of the preservation request made by the government, but because of the statute involved here.

[00:31:27] Speaker 02:
If there are no other questions.

[00:31:28] Speaker 04:
Well, so 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 02:
I think the best cases to look at are cases.

[00:31:44] Speaker 02:
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,

[00:31:53] Speaker 02:
constitute a seizure.

[00:31:56] Speaker 02:
And so I don't think the analysis needs to even get to the fact or the part about representing a government agent.

[00:32:08] Speaker 02:
There are no further questions.

[00:32:09] Speaker 02:
The government respectfully requests that the court affirm the district court on all the issues presented.

[00:32:25] Speaker 03:
I'll begin with the jury instruction issue.

[00:32:27] Speaker 03:
So first, addressing the government's attempt to limit it to adult decoys.

[00:32:31] Speaker 03:
I think that's wrong first for the reason that Judge Sanchez pointed out.

[00:32:35] Speaker 03:
The decision in Meek was a textual analysis based on the long-standing presumption in favor

[00:32:41] Speaker 03:
of scienter and how you read the term knowingly as extending throughout the provision.

[00:32:46] Speaker 03:
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.

[00:33:08] Speaker 03:
That offense can occur virtually, and it's a strict liability offense, meaning that it would hold somebody accountable for engaging with lewd texts with a person they thought to be an adult, but was still, in fact, a minor.

[00:33:19] Speaker 03:
Therefore, the constitutional concerns pointed out in Meek would exist with completed violations as well.

[00:33:25] Speaker 03:
On harmlessness, you are right.

[00:33:27] Speaker 03:
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.

[00:33:38] Speaker 03:
Here, there are several facts that make it impossible to meet on this record.

[00:33:42] Speaker 03:
First, the circumstances under which they met.

[00:33:44] Speaker 03:
They met on a website restricted to adults where they immediately started talking about adult topics.

[00:33:50] Speaker 03:
Second, the possibility that Mr. King did not know when the victim was telling the truth and when the victim was lying.

[00:33:57] Speaker 03:
Indeed, the victim on cross-examination acknowledged that she was lying to him over text in order to keep the conversation going.

[00:34:05] Speaker 03:
I would point this court to 8ER-1604.

[00:34:08] Speaker 03:
None of the government's evidence is dispositive, largely because it relies on the victim's testimony in this case.

[00:34:15] Speaker 03:
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.

[00:34:23] Speaker 03:
I think it's also important to keep in mind the nature of this particular offense.

[00:34:27] Speaker 03:
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.

[00:34:44] Speaker 03:
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.

[00:34:57] Speaker 03:
The government then points out that no other circuit for the preservation request issue or no other court has found a violation.

[00:35:05] Speaker 03:
That's largely on causation grounds.

[00:35:07] Speaker 03:
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.

[00:35:22] Speaker 03:
So for any of these reasons, this court should reverse and remand.

[00:35:25] Speaker 01:
All right, we thank counsel for their arguments.