[00:00:00] Speaker 02: The next case on calendar is United States versus Mitchell 25-1795. [00:00:09] Speaker 02: Each side will have 15 minutes. [00:00:35] Speaker 01: May it please the court. [00:00:36] Speaker 01: My name is Stephanie Bond. [00:00:38] Speaker 01: I represent the appellant in this case. [00:00:40] Speaker 01: I am hoping to reserve two minutes for rebuttal. [00:00:44] Speaker 01: The district court aired when it decided that a vehicle, even without evidence that it was used in the interstate system, sufficiently satisfied the use of the instrumentality of interstate commerce element of the offense. [00:01:01] Speaker 01: In reaching this conclusion, the district court misinterpreted and misapplied this court's holding in United States versus stack house in stack house, which a phone, wasn't it? [00:01:15] Speaker 01: Yes, a phone. [00:01:16] Speaker 01: And more importantly, in my case, uh, given the facts of my case, that the victims were traveled across state line. [00:01:25] Speaker 01: So in stack house, it was both. [00:01:27] Speaker 01: They said that first of all, the victims, [00:01:30] Speaker 01: cross state line in a vehicle and the defendants used cell phones in furtherance of the offense. [00:01:38] Speaker 01: So they found two different instrumentalities that were used in furtherance of the offense. [00:01:43] Speaker 01: In my case, in Mr. Mitchell's case, he did not cross state line. [00:01:48] Speaker 01: He did not use an interstate to travel [00:01:53] Speaker 01: He did not use a cell phone at all, definitely not in furtherance of the offense. [00:01:58] Speaker 01: The victim herself testified that he did not use a cell phone at all during the time that she was with him. [00:02:05] Speaker 03: The vehicle in question was not an electric vehicle, is that right? [00:02:09] Speaker 01: That is correct, Your Honor. [00:02:11] Speaker 01: It was a gas-powered vehicle. [00:02:12] Speaker 01: It was a private vehicle. [00:02:14] Speaker 03: I've lived in Arizona all my life. [00:02:17] Speaker 03: I've had family members in the automobile business. [00:02:20] Speaker 03: there's no non-electric vehicle manufactured in Arizona. [00:02:27] Speaker 03: That car had to come from Interstate Commerce, right? [00:02:30] Speaker 03: The vehicle. [00:02:31] Speaker 01: Well, so Judge, we could surmise that, but that's not what the government proved. [00:02:37] Speaker 01: That's not what the government argued. [00:02:40] Speaker 01: That's not what the district court considered. [00:02:42] Speaker 01: That very well might be true. [00:02:44] Speaker 01: I don't know that for a fact. [00:02:46] Speaker 02: Well, isn't it [00:02:47] Speaker 02: Judicially noticeable that the parts of a car had to have come from outside of the state. [00:02:53] Speaker 01: Well, Judge, it might have been judicially noticeable if the government had argued that and they had asked the court and presented the court with some kind of evidence to take judicial notice. [00:03:02] Speaker 02: So this jurisdictional question, would we figure this out de novo? [00:03:05] Speaker 02: Is there any reason we can't take judicial notice? [00:03:08] Speaker 02: Is there any reason it had to have been presented differently originally? [00:03:12] Speaker 01: Judge, I do believe it has to be presented differently. [00:03:14] Speaker 01: And the reason why is because it's the facts of the case. [00:03:18] Speaker 01: We're not asking this court to make a huge broad decision saying never, ever, ever could a vehicle be an interstate travel. [00:03:27] Speaker 01: What we're asking this court to say is if an individual uses his own vehicle and he travels only on state roads in a rural area, is that interstate commerce? [00:03:43] Speaker 01: That's what we're asking the court to decide. [00:03:46] Speaker 01: And we're asking the court to decide that based really on the only case we have that is actually on point is the 10th Circuit case. [00:03:55] Speaker 03: Your argument is that this was the government's burden. [00:03:58] Speaker 03: Absolutely. [00:03:59] Speaker 03: Impact on interstate commerce is an element of this offense, and they didn't step up and prove that. [00:04:06] Speaker 01: That's correct, Judge. [00:04:07] Speaker 01: They did not prove it at all, especially during the trial. [00:04:10] Speaker 01: And this was a twofold, because obviously we objected before trial saying that this is not a case that can be a kidnapping case in this federal court. [00:04:20] Speaker 04: Council, in our Stackhouse decision pointing to the cell phones, did our court focus on the fact that the cell phone had traveled in interstate commerce? [00:04:31] Speaker 01: Judge, my reading of Stackhouse was it was more that there was a cell phone used, not that it had traveled. [00:04:37] Speaker 04: Yes, and isn't it that the cell phone itself is an instrumentality of interstate commerce, that it is used in interstate commerce, that is that the calls cross state lines, that we're bouncing things off of towers, that there may be other places? [00:04:51] Speaker 01: And that's my understanding, yes, of the Stackhouse. [00:04:53] Speaker 04: Okay, so in this case, I want to make sure, you seem to be very, I appreciated the care with which you [00:04:58] Speaker 04: defined that he was using his own car and only on state roads within the borders. [00:05:05] Speaker 04: So if he had picked up this girl and taken her to a small plane and flown her from the border to Flagstaff, but still well within Arizona and had been his own plane, do you think that would satisfy the interstate commerce? [00:05:19] Speaker 01: Well, Judge, there would be an argument that that might satisfy interstate Congress. [00:05:23] Speaker 04: Even though it's purely interstate and it was his vehicle, without consideration as to whether the plane itself was manufactured in Kansas and brought into the state. [00:05:33] Speaker 01: Well, Judge, I wouldn't suggest that the fact that the plane is manufactured here, those type of things flown here. [00:05:41] Speaker 01: I would go based more upon the fact that there is case law and specifically [00:05:46] Speaker 01: some of the case law that's been cited in our briefs that dealt only with aircrafts. [00:05:51] Speaker 01: And so I think aircrafts are different because they're up in the sky. [00:05:54] Speaker 04: If he had traveled on Interstate 10, would that make a difference? [00:05:58] Speaker 01: I think that'd make a difference. [00:05:59] Speaker 04: Even though it was entirely within the state. [00:06:02] Speaker 01: I think that if he had traveled on the Interstate, I think that that would have been an argument that the government could have made, and I think that's something the court could have considered. [00:06:10] Speaker 01: I personally don't believe that our [00:06:16] Speaker 01: that our legislature intended for the government to have the ability to prosecute any crime in which a car is being used. [00:06:26] Speaker 01: We're talking Congress, right? [00:06:27] Speaker 01: Correct. [00:06:29] Speaker 01: And that's really exactly what we're talking about. [00:06:32] Speaker 01: Obviously they didn't say this in the kidnapping statute, but they talk about it and there's a lot of cases that talk about it for the Commerce Clause. [00:06:38] Speaker 01: And, you know, specifically we have a lot of cases about other statutes that dealt with whether a vehicle was or was not an interstate commerce. [00:06:48] Speaker 02: And what do we do with the statement in FAES versus FAA that says we have held that cars are instrumentalities of interstate commerce? [00:06:57] Speaker 01: Well, so that was kind of a distinction I made in the brief that the government had said, a car can be an instrument of interstate commerce. [00:07:05] Speaker 01: But the statement is very blanket. [00:07:07] Speaker 01: Cars are instrumentalities of interstate commerce. [00:07:10] Speaker 01: Well, so I guess, Judge, what I would point out to you is I don't believe that that is that broad. [00:07:16] Speaker 01: I believe that [00:07:18] Speaker 01: there's always the facts, and that's kind of what the commerce clause is about. [00:07:23] Speaker 01: Are there facts that support the commerce clause? [00:07:24] Speaker 02: So when we're talking about an instrumentality of interstate commerce, isn't that something that carries commerce? [00:07:29] Speaker 02: I mean, would your client need to have us believe that he didn't carry groceries that came from outside the state in the car, and so it was an instrumentality of interstate commerce. [00:07:38] Speaker 02: He didn't carry anything else that ever came from outside the state as part of commerce. [00:07:44] Speaker 01: So, Your Honor, [00:07:46] Speaker 01: The argument that you are asserting is essentially exactly what the Supreme Court and the court in Cheveria disagreed with. [00:07:56] Speaker 01: Specifically, they had said, and this is what I'm quoting from United States versus Lopez, which was Supreme Court in 1995, [00:08:05] Speaker 01: that to transform any crime that uses a vehicle into a federal matter allows the government to regulate everything that moves. [00:08:14] Speaker 01: And that is basically what the court is proposing in that, is that anything that moves, any time a car moves, any time a car is used, that implicates the government being able to prosecute a case. [00:08:25] Speaker 01: And that is not what we have said. [00:08:27] Speaker 01: And specifically, I would take the court all the way back to 1824 [00:08:33] Speaker 01: in Gibbons versus Ogden, where the Supreme Court said that the broad classification of all vehicles as an instrumentality of interstate commerce is rejected. [00:08:45] Speaker 01: That that is not just the broad classification. [00:08:48] Speaker 01: That is not [00:08:50] Speaker 04: what interstate commerce is. [00:08:51] Speaker 04: And that was the way that I read the 10th Circus case. [00:08:54] Speaker 04: It just said that you can't classify all vehicles as, it didn't say cars, it said vehicles. [00:09:01] Speaker 04: It had in mind perhaps ATVs, razors side by sides, things like that, that have limited mileage. [00:09:09] Speaker 04: Or as Judge Hawkins pointed out, we have some questions about the capacity of electric vehicles, especially in large Western states. [00:09:19] Speaker 04: But this was not any of those things. [00:09:22] Speaker 01: Correct. [00:09:22] Speaker 01: And I think that's the reason why this is not something that this court has to get into right now. [00:09:27] Speaker 01: I mean, this court is making a decision based upon this case as to the fact that Mr. Mitchell's case. [00:09:32] Speaker 04: And if you were writing our opinion, what would we say? [00:09:34] Speaker 01: I would say that as the car is used in this case, it did not affect interstate commerce. [00:09:41] Speaker 01: and therefore it was not a federal matter. [00:09:43] Speaker 04: You used a different term. [00:09:44] Speaker 04: Affecting interstate commerce is different from being an instrumentality of Congress. [00:09:47] Speaker 04: Those are different classifications by the court. [00:09:50] Speaker 01: Well, and I would agree with you on that because I think that a car can be an instrumentality and is in certain circumstances an instrumentality. [00:09:58] Speaker 01: I don't think anybody disagrees with that. [00:10:01] Speaker 01: Again, if I use a car and I cross state line, that is an instrumentality of commerce right there. [00:10:07] Speaker 04: I cross state line. [00:10:08] Speaker 04: Do you have to cross state lines during the [00:10:10] Speaker 04: commission of the crime? [00:10:12] Speaker 01: Well, that is one way you could get federal jurisdiction. [00:10:15] Speaker 04: But you could possibly... But would that be necessary to show? [00:10:18] Speaker 04: Is that the government's burden to show that during the commission of the crime that you crossed a state line? [00:10:24] Speaker 01: In that circumstance, yes, it would be the government's burden. [00:10:27] Speaker 04: And if it didn't show that the car crossed a state line during the commission of the crime, then it would not satisfy the statute. [00:10:33] Speaker 01: That is correct. [00:10:34] Speaker 04: Okay. [00:10:34] Speaker 04: And then why doesn't the airplane fit the same category? [00:10:37] Speaker 01: Well, Judge, I think there's differences with the airplanes because we're talking about airspace. [00:10:42] Speaker 04: And we're talking about airspace- Yeah, but if it was all Arizona airspace, you know, the airspace goes from the land to the heavens. [00:10:47] Speaker 01: But airspace is regulated by the FCC. [00:10:50] Speaker 01: It's regulated by the federal government. [00:10:52] Speaker 01: So I think that in that respect, airspace is different. [00:10:56] Speaker 01: And that's the reason why I think, yeah, you know what, if he used an interstate, if he had gone on I-10, maybe the court could have said, [00:11:05] Speaker 01: They have jurisdiction because he used an interstate, a federal interstate, in furtherance of this crime. [00:11:12] Speaker 04: That's pretty narrow, especially when there are state roads that cross international and state borders. [00:11:19] Speaker 04: So you don't have to be on an interstate to be able to cross a border on a road. [00:11:23] Speaker 01: Well, and Judge, I personally don't believe that a vehicle, a personal vehicle used, even if it goes on an interstate and does not cross lines, I don't believe they have federal jurisdiction. [00:11:33] Speaker 01: I'm just saying that based upon what your scenario is, that might be. [00:11:37] Speaker 01: Maybe. [00:11:38] Speaker 01: Maybe there's an argument to be made if it was interstate. [00:11:41] Speaker 01: But there wasn't an interstate in here. [00:11:43] Speaker 01: And it didn't even cross an interstate. [00:11:45] Speaker 01: It didn't cross a border. [00:11:46] Speaker 01: It didn't do any of those kinds of things. [00:11:49] Speaker 01: And so I'm not asking this court to make a broad, huge decision that at any point in any time if a person uses a vehicle intrastate, that means that the Federal Commerce Clause has been satisfied. [00:12:04] Speaker 01: I'm not asking that. [00:12:05] Speaker 01: I'm asking the court to say in this circumstance, the fact that it was a personal vehicle, it was [00:12:12] Speaker 01: a rural road that was just a state road that never crossed the state line. [00:12:17] Speaker 01: How far from the international border were they? [00:12:20] Speaker 01: Probably about 30 miles, I'm going to guess, maybe a tad bit less. [00:12:25] Speaker 01: And how did the victim get from Mexico into Arizona? [00:12:29] Speaker 01: She walked, she was a student in the United States, but she lived in Mexico. [00:12:34] Speaker 01: So she actually crossed the interstate border. [00:12:36] Speaker 01: Did she walk across the border? [00:12:37] Speaker 01: She did. [00:12:38] Speaker 04: And then she got picked up by him. [00:12:40] Speaker 01: She got picked up in the United States. [00:12:42] Speaker 01: But not 30 miles north of the border. [00:12:43] Speaker 01: No, she got picked up by him probably five miles from the border. [00:12:48] Speaker 04: Did she take a bus to get five miles on the border? [00:12:52] Speaker 04: No, she walked. [00:12:52] Speaker 04: She walked five miles to this bus stop? [00:12:55] Speaker 01: Yeah, and you know Judge, that was a lot of issues that we were talking about during the trial, because we found it very weird that she walked there, given that all of her friends that she crossed with took a ride to the school. [00:13:05] Speaker 01: The school is actually, the school itself was about a block away from where she was picked up. [00:13:12] Speaker 01: And of course we, as a defense, we were claiming that this was not [00:13:17] Speaker 01: what she was trying to make it seem. [00:13:19] Speaker 01: This was not some kind of independent, you know, abduction that happened just out of the blue. [00:13:24] Speaker 02: Why would whether she walked or took a bus relate to that, though? [00:13:28] Speaker 02: I'm confused by that. [00:13:30] Speaker 01: Well, because our contention was that she had planned all along to ditch school that day. [00:13:34] Speaker 01: And so the fact that she wanted to get rid of her friends didn't made a big issue. [00:13:39] Speaker 03: Wash that out. [00:13:40] Speaker 03: I'm sorry. [00:13:41] Speaker 03: Didn't the jury verdict wash that argument out? [00:13:45] Speaker 01: Well, it's hard to say what the jury verdict did and didn't wash out because obviously, judges, you've seen, we had so much prosecutorial misconduct in this case, so many things that they heard and considered that they were not supposed to hear and consider, that it's a big muddle. [00:14:01] Speaker 01: I don't know. [00:14:02] Speaker 01: I don't know if they believed her or if they believed the scientific DNA evidence that was precluded that the government brought in. [00:14:10] Speaker 01: I don't know if they looked at the badge that the government showed acting like it was Mr. Mitchell's badge because this is a color of law case. [00:14:20] Speaker 01: So the badge is pretty important. [00:14:22] Speaker 01: I don't know what they looked at. [00:14:24] Speaker 01: I just know what their verdict was and how long it took them to make that verdict. [00:14:31] Speaker 02: Do you want to save some time for rebuttal or did you have another question? [00:14:33] Speaker 02: Sorry. [00:14:34] Speaker 02: Judge Hawkins, did you have a question? [00:14:36] Speaker 02: No, I'm fine. [00:14:37] Speaker 02: Okay. [00:14:37] Speaker 02: Thank you. [00:14:48] Speaker 00: Good morning, Your Honors. [00:14:49] Speaker 00: May it please the court, Katie Neff, on the behalf of the United States. [00:14:55] Speaker 00: Your Honors, you should affirm the judgments of conviction because the defendant cannot show reversible error or plain error, particularly in light of the lack of prejudice and the overwhelming evidence of guilt. [00:15:08] Speaker 00: Counsel, did you try this case? [00:15:10] Speaker 00: I did not, Your Honor. [00:15:11] Speaker 03: It was tried in the District of Arizona, right? [00:15:15] Speaker 00: That's correct. [00:15:16] Speaker 03: Tried in Tucson? [00:15:17] Speaker 00: That's my understanding. [00:15:19] Speaker 03: Now, I'm 50 years away from it, but I used to be a prosecutor myself. [00:15:25] Speaker 03: And before we proceeded in criminal cases, the one thing I always looked at was a listing of the elements of a crime. [00:15:34] Speaker 03: And would you agree that impact on interstate commerce or the use of instrumentalities of interstate commerce is an element of this crime? [00:15:46] Speaker 00: I do agree with that, Your Honor. [00:15:48] Speaker 03: An element the government was required to prove. [00:15:51] Speaker 00: That's correct, Your Honor. [00:15:52] Speaker 03: And is your friend on the other side correct that she raised this issue before a jury was impaneled? [00:16:01] Speaker 00: She did, Your Honor. [00:16:02] Speaker 00: She filed motions requesting dismissal based on the issues of interstate commerce. [00:16:10] Speaker 03: But her understanding... So the government was on notice [00:16:14] Speaker 03: that this would be a substantial part of the defense in this case, that instrumentalities of interstate commerce or impact on interstate commerce were critical. [00:16:29] Speaker 00: That's correct, your honor. [00:16:30] Speaker 03: What proof did the government offer that instrumentalities of interstate commerce or impact on interstate commerce were apparent in this case? [00:16:43] Speaker 00: So the prosecution elicited evidence that the defendant used his vehicle to, in furtherance of the kidnapping, that he forced the victim, under color of law, to get into his vehicle and then drove 45 minutes. [00:16:58] Speaker 03: We understand that. [00:16:59] Speaker 03: But the instrumentality that we're dealing with here is a car, right? [00:17:04] Speaker 00: Yes, Your Honor. [00:17:05] Speaker 03: Okay. [00:17:06] Speaker 03: On notice that this is an element of the crime, [00:17:10] Speaker 03: Could the government have established that this particular vehicle was in fact an instrumentality of interstate commerce? [00:17:19] Speaker 00: Well, I think given the case law at the time, [00:17:23] Speaker 00: Cars have been held many times over to be instrumentalities of interstate commerce. [00:17:27] Speaker 00: And I think my friend is conflating the holdings of United States versus Lopez. [00:17:33] Speaker 00: The Supreme Court there made very clear that there are three categories. [00:17:37] Speaker 00: The second category is instrumentality of interstate commerce. [00:17:41] Speaker 00: And once you have that, you can regulate completely intrastate activities as long as you're regulating an instrumentality of interstate commerce. [00:17:52] Speaker 00: She wants to add a test that to do a case by case basis, but this court expressly rejected a case by case analysis for once an instrumentality, like when there is an instrumentality of interstate commerce. [00:18:07] Speaker 00: And the circuits that have considered this issue have all resoundedly agreed that cars are instrumentalities as a class. [00:18:15] Speaker 03: Focusing on this case, did the government [00:18:19] Speaker 03: at or prior to trial, asked the district court to take judicial notice that the vehicle involved in this awful crime was an instrumentality of interstate commerce. [00:18:34] Speaker 00: I don't believe that that was specifically asked, but I also don't believe that that was required because there was proof that a vehicle was used. [00:18:43] Speaker 00: And going back to this court's opinion in Stackhouse, [00:18:48] Speaker 00: The defense in that case did try to argue that something more was necessary for fully interstate activities that were regulated. [00:18:57] Speaker 00: And this court rejected that, didn't get to the question because a cell phone is an instrumentality of interstate commerce. [00:19:04] Speaker 00: So there wasn't this need to look into, you know, did it cross state borders? [00:19:08] Speaker 00: Did it have an impact on interstate commerce? [00:19:11] Speaker 00: Once we know that it's an instrumentality of interstate commerce. [00:19:15] Speaker 02: And what makes it an instrumentality? [00:19:16] Speaker 02: Is it because the gas that it uses comes from outside the state, that it carries groceries that come from outside the state? [00:19:22] Speaker 02: What is the thing that makes it? [00:19:23] Speaker 00: So in some of the other cases by other circuits, the reasoning is that a channel of interstate commerce is where goods can flow easily and where services can be rendered. [00:19:37] Speaker 00: across state lines. [00:19:39] Speaker 00: But those things that move along those channels are the instrumentality. [00:19:44] Speaker 00: So the vehicle would be, you know, we know that they're fully capable and very frequently used for interstate travel. [00:19:51] Speaker 00: And so that's what makes them as a class instrumentalities of interstate commerce. [00:19:55] Speaker 02: That's interesting because does that mean that if your idea is that cars do move across state lines and that makes them instrumentalities, [00:20:05] Speaker 02: Why wouldn't that require every car to do that to count as an instrumentality? [00:20:10] Speaker 02: I feel like your argument should be something more like what I was asking. [00:20:17] Speaker 02: If you're actually saying that a car needs to cross state lines to be an instrumentality of interstate commerce and [00:20:24] Speaker 02: the defense is saying this one wasn't actually crossing state lines, it seems like you have a problem with your argument. [00:20:30] Speaker 02: But if your argument is something more like, no, anything that carries goods and commerce, which is like groceries, gas, everything else, that's enough. [00:20:37] Speaker 02: It obviously, I mean, I think it had to have been doing that with gas at least. [00:20:40] Speaker 02: So, but you didn't answer my question that way. [00:20:43] Speaker 02: Instead, you said this thing about crossing state lines, which they're saying he didn't do. [00:20:46] Speaker 02: So now why don't you have a problem? [00:20:48] Speaker 00: So, Your Honor, I think both of those would be strong support for why a vehicle as a class or instrumentalities of interstate commerce. [00:20:56] Speaker 00: And every circuit, save the 10th circuit, every circuit that has looked at this issue has decided that a vehicle are, including this circuit, vehicles as a class are instrumentalities of interstate commerce. [00:21:08] Speaker 00: And so a case-by-case analysis is not necessary. [00:21:11] Speaker 00: And it may very well be because of what Your Honor pointed out that they're used for carrying goods, they're used for carrying [00:21:17] Speaker 00: you know, transporting for services for interstate commerce. [00:21:23] Speaker 00: And so, you know, when you look at all of the circuits and the findings, including most recently this came after our briefs were submitted, the 11th circuit recently found regarding this kidnapping statute that the car or the truck that was used completely intrastate was an instrumentality of interstate commerce. [00:21:45] Speaker 00: And so the notion that something more is needed, this court rejected that, and United States versus Lopez has never required that. [00:21:55] Speaker 00: But I want to get back to some of the other points that counsel raised. [00:21:58] Speaker 00: The evidence in this case was overwhelming, and I think that that's important to note when you're looking at all of the challenges that she brings. [00:22:06] Speaker 00: The defendant was a Customs and Border Protection officer who used the power of his position to force a middle school girl into his vehicle [00:22:15] Speaker 00: where he then repeatedly raped her. [00:22:17] Speaker 00: And the victim's account of those attacks are corroborated by a mountain of evidence. [00:22:23] Speaker 00: She testified that he kept her in his apartment, excuse me, she testified that he saw her outside of her middle school, forced her into his vehicle, drove her a long distance to his apartment, and then kept her there for hours. [00:22:37] Speaker 00: That's corroborated by the defendant's own admissions to those facts. [00:22:41] Speaker 00: She testified that while they were at the apartment, he forced her to drink alcohol. [00:22:45] Speaker 00: That's corroborated by searches that were found in his phone where he's searching underage drinking. [00:22:51] Speaker 00: And also the alcohol that she described he served her was also found inside of his bedroom. [00:22:57] Speaker 00: It's corroborated by the injuries that she sustained from those attacks that, you know, he raped her vaginally and anally. [00:23:09] Speaker 00: He at times blindfolded her and he at times choked her where she thought she was going to die. [00:23:17] Speaker 00: And this is all corroborated by searches that are found in his phone. [00:23:20] Speaker 00: In his phone, he had searches about how to cover up a rape. [00:23:24] Speaker 00: He had searches about how long you could smother someone before they die. [00:23:29] Speaker 00: And finally, the forensic evidence found on the victim also strongly corroborate her testimony. [00:23:35] Speaker 00: She was found to have these injuries bruising and also a laceration in her vaginal area. [00:23:42] Speaker 00: She was found to have the presence of sperm in her vaginal area very shortly after these attacks. [00:23:47] Speaker 00: And the defendant's DNA was matched to DNA found on her underwear. [00:23:52] Speaker 00: So, you know, I think when you consider the totality of the evidence, all of the evidence, the defendant just simply cannot meet his burden that this court needs to move to the nuclear option of reversal. [00:24:06] Speaker 03: Does the record tell us whether Mitchell watched her across the border? [00:24:15] Speaker 00: The record does tell us that he recognized her at previous times, not with respect to that specific instance, but he did recognize her as a crosser at the Board of Entry where he worked. [00:24:28] Speaker 00: And so even if we were to do a case by case analysis, this has international commerce nexus potentially. [00:24:36] Speaker 00: which of course Congress has the ability to regulate. [00:24:41] Speaker 00: Unless the court has any questions about any other issues, we would ask that you affirm. [00:24:49] Speaker 00: Thank you. [00:24:50] Speaker 02: Thank you. [00:24:50] Speaker 02: I think we had about a minute left. [00:24:57] Speaker 01: Your Honor, first I'd like to point out that I disagree with Appellee that other circuits found instrumentality [00:25:06] Speaker 01: And that is part of the thing that I put in my reply brief showing that the cases that the government cited trying to make that claim were not true. [00:25:15] Speaker 01: In fact, the only one that maybe, maybe agrees and there were facts obviously that they cross state lines was the Proto case [00:25:27] Speaker 01: which was out of the 6th Circuit. [00:25:31] Speaker 01: Otherwise, the 10th Circuit, obviously, I'm sorry, I apologize. [00:25:35] Speaker 01: The 7th Circuit had Proto, and that was the one that did cross state lines, although I think the holding, there's an argument that they could say the holding was pretty broad. [00:25:46] Speaker 01: The 6th Circuit in Small and obviously the 10th Circuit in Chavarrio have both said, [00:25:54] Speaker 01: that vehicles alone are not instrumentalities. [00:25:57] Speaker 01: There's got to be something more that happened that interstate commerce was a part of. [00:26:04] Speaker 03: Why isn't his knowledge that she crossed the border sufficient for interstate commerce? [00:26:13] Speaker 01: Well, because that had nothing to do with, in furtherance of this crime, the fact that she crossed the border. [00:26:19] Speaker 01: She crossed the border every single day to come to school. [00:26:23] Speaker 01: It wasn't anything special about this particular day and this particular crime that implicated anything about it. [00:26:29] Speaker 01: Every day, she crossed the border to come to school. [00:26:33] Speaker 01: And again, Judge, there was no evidence that she actually ever intercepted my client at the border patrol station, at the CBP station. [00:26:44] Speaker 01: There was quite a bit of evidence which went to our issue of prejudice. [00:26:49] Speaker 01: regarding the introduction of the DNA and so forth, that his roommate, who by the way was present in the apartment the entire time that the victim was there, well I shouldn't say that, I apologize, he was there for about four hours out of the six hours. [00:27:06] Speaker 03: I get your point. [00:27:07] Speaker 01: He intercepted her multiple times, even on the day of the incident. [00:27:14] Speaker 01: But that obviously wasn't something that the government claimed had anything to do with my client. [00:27:18] Speaker 01: And I would disagree considerably with the government's portrayal of the evidence in this case. [00:27:27] Speaker 01: The evidence was not. [00:27:28] Speaker 02: You've used up your time, so I think I need to cut you off unless my colleagues have any questions. [00:27:32] Speaker 02: Thank you both sides for the helpful arguments. [00:27:34] Speaker 02: Thank you. [00:27:34] Speaker 02: This case is submitted, and we are adjourned.