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

[00:00:01] Speaker 03:
Our final case for oral argument is 23-7055, United States versus Garcia-Lamone.

[00:00:10] Speaker 00:
Good morning again, Your Honors.

[00:00:11] Speaker 00:
My name is Kathleen Shen and I represent the appellate Mr. Edgar Garcia-Lamone.

[00:00:15] Speaker 00:
Mr. Garcia-Lamone's convictions and sentences on counts two and three of the indictment should be vacated and those counts should be dismissed for three related reasons.

[00:00:24] Speaker 00:
First, those counts should have been dismissed because they do not identify the factual incidents that are the basis of the charges.

[00:00:31] Speaker 00:
That violates long-standing 10th Circuit and Supreme Court precedent, which holds that an indictment must identify the elements of the charge and the factual circumstances underlying them.

[00:00:43] Speaker 00:
This requirement is rooted in the Fifth and Sixth Amendments, including the grand jury clause and the requirements of fair notice.

[00:00:50] Speaker 00:
Counts two and three don't serve their constitutional functions.

[00:00:54] Speaker 00:
In addition to the unprecedented eight-year time period, which covers the entire period during which DC lived with the defendant, the counts do not include any other detail identifying the factual circumstances of the underlying criminal act.

[00:01:09] Speaker 00:
And that's a case even though DC ultimately did give evidence regarding specific acts, multiple specific acts.

[00:01:17] Speaker 00:
And as a result,

[00:01:18] Speaker 00:
In this case, for one, there is a serious risk that Mr. Garcia was prosecuted on the basis of facts that were not found by the grand jury.

[00:01:26] Speaker 00:
The indictment doesn't specify the incident that was the basis of the grand jury's charging decision on either accounts two or three.

[00:01:33] Speaker 00:
And there's no way to know that Mr. Garcia-Lamone's conviction at trial was based on those same facts.

[00:01:39] Speaker 00:
And given that the government, in fact, relied on numerous acts, including acts that DC could not remember or describe, it is, in fact, likely

[00:01:48] Speaker 00:
that the conviction was based on an act other than the act that was the basis of the indictment.

[00:01:52] Speaker 00:
The charges also were not sufficiently specific to enable Mr. Garcia-Lamon to prepare his defense.

[00:02:00] Speaker 00:
The indictment did not inform him what allegation of sexual abuse he would face at trial, and even if he

[00:02:06] Speaker 00:
could have defended against certain allegations, there was nothing that prevented the government from shifting its theory of liability to a different allegation altogether.

[00:02:13] Speaker 00:
And that sort of leads into this third concern, which is that the vagueness of the counts posed a serious risk of unfairness at trial.

[00:02:21] Speaker 00:
Again, they didn't prevent the government from shifting theories.

[00:02:24] Speaker 00:
according to the vicissitudes at trial, as the Supreme Court noted as a concern in Russell.

[00:02:31] Speaker 00:
And they also, because they didn't identify any specific incident of sexual abuse, they didn't require the jury to deliberate upon any specific factual detail.

[00:02:39] Speaker 00:
And there is a real risk in this case that Mr. Garcia-Lamone may have been convicted because where there's smoke, there must be fire.

[00:02:45] Speaker 00:
And of course, that's a concern the Supreme Court discussed in Richardson when it was construing the continuing criminal enterprise statute.

[00:02:51] Speaker 03:
The indictment, it did allege at least one sexual act, admittedly within a lengthy period of time.

[00:03:01] Speaker 03:
And then we do have testimony of at least three specific instances that are within the period of time.

[00:03:15] Speaker 03:
Why isn't that adequate notice that he's being accused of violating these statutes and there's going to be evidence produced at trial that will support the allegation?

[00:03:28] Speaker 00:
So I think the constitutional harm is really the clearest when you consider the grand jury right.

[00:03:33] Speaker 00:
And so a sufficient indictment ensures that the factual predicate of the indictment is identical to that of the conviction.

[00:03:40] Speaker 00:
And the very purpose of the grand jury clause is to ensure that the defendant's charges are based on the judgment of the grand jury, which is acting independently of either the prosecuting attorney or the judge.

[00:03:54] Speaker 00:
And so whereas here, the indictment doesn't specify, for example, which of, for example, three acts is the basis of the charge, there's no way to know what act was in the grand jury's mind when it passed the indictment.

[00:04:08] Speaker 00:
And of course, as a Supreme Court

[00:04:11] Speaker 00:
held in Russell to allow the prosecutor or the court to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of his basic protections that the grand jury clause secures.

[00:04:24] Speaker 00:
Because otherwise, the defendant could be convicted on the basis of facts that were not found by and maybe not even presented to the grand jury which indicted him.

[00:04:32] Speaker 00:
So in this case, for example, Judge Timkovich, you alluded to perhaps there's three specific acts that we can identify from DC's trial testimony.

[00:04:41] Speaker 03:
The government argued, and I think the district court credited the notion that the indictment described a generalized scheme to commit sexual abuse.

[00:04:54] Speaker 03:
And rather than pointing to a specific instance, they say, well, this is like money laundering or

[00:05:01] Speaker 03:
check a broad scheme to commit an act.

[00:05:05] Speaker 03:
What's the flaw in that argument?

[00:05:08] Speaker 00:
There's, I think, many flaws in that argument.

[00:05:10] Speaker 00:
And I think it's clear both in our second issue, the statutes here, 2241C and 2244, in which Congress has defined the crimes of aggravated sexual abuse and abusive sexual contact, don't permit charging by scheme.

[00:05:26] Speaker 00:
Those statutes plainly define or criminalize singular sexual acts.

[00:05:35] Speaker 00:
The government has pointed to nothing in the language of the statutes that would permit this theory of charging multiple acts as one offense.

[00:05:44] Speaker 00:
And I believe every court of appeals that's reached the issue has held

[00:05:48] Speaker 00:
as the Ninth Circuit held in Yazzie, that these statutes criminalize the individual sexual act.

[00:05:55] Speaker 00:
There's also very good reason not to interpret the statutes that way, besides their text, of course.

[00:06:02] Speaker 00:
And if you look at the Richardson case, there the Supreme Court was considering a statute which by its plain language does criminalize, does make one crime out of multiple acts, which as the Supreme Court recognizes,

[00:06:13] Speaker 00:
is very odd.

[00:06:14] Speaker 00:
That's not how crimes are typically prosecuted.

[00:06:17] Speaker 00:
That's not what our Anglo-American tradition of crime provides for.

[00:06:21] Speaker 00:
But there, Congress said, no, there is a crime.

[00:06:24] Speaker 00:
It's for a series of violations.

[00:06:26] Speaker 00:
But even in those circumstances, the Supreme Court said, we're not going to allow the government just to prove some unknown or gesture at some series of crimes and let the jury decide which of those crimes is the basis of the indictment and which of those crimes can be the basis of the conviction.

[00:06:42] Speaker 00:
If you want to have a constitutionally valid CCE count, the government has to plead each of the underlying factual incidents that forms each violation of federal criminal law.

[00:06:53] Speaker 00:
And that is what ensures both that the grand jury is finding specific acts and that the trial jury's verdict is ultimately on the basis of the same facts that were found by the grand jury.

[00:07:09] Speaker 00:
Again, Your Honor, I think it's really notable that in the Second Circuit case, Montague, where the Second Circuit held that facts and circumstances were not required to be applied for CCE violations that generated multiple dissents, the SG confessed error, the Supreme Court sent it back, and on remand, the indictment, those counts were dismissed.

[00:07:31] Speaker 03:
So if we approve the indictment, does that necessarily mean

[00:07:37] Speaker 03:
jury instructions are not erroneous.

[00:07:41] Speaker 03:
I'm sorry, Your Honor, I don't understand.

[00:07:42] Speaker 03:
If we disagree with you on the indictment, does that take away your argument that the jury instructions are flawed?

[00:07:50] Speaker 00:
So I think you're referring to my constructive amendment claim.

[00:07:54] Speaker 00:
And I think that if you think the indictment is constitutionally sufficient, it still doesn't resolve the problem that the language of the indictment is plainly charging Mr.

[00:08:05] Speaker 00:
Garcia-Lamone with asexual act and an act of abusive sexual conduct.

[00:08:11] Speaker 00:
It doesn't specify what act that is and then the government's evidence and arguments at trial create a serious risk and I think indeed a probability that there is a disconnect between the basis of the trial jury's verdict and whatever the act and the indictment was.

[00:08:34] Speaker 01:
I'm following what you're saying, but let me go back to your wording as to the issues that you've raised.

[00:08:41] Speaker 01:
I understand Councils 2 and 3 were failure to provide sufficient notice of the charged defenses.

[00:08:50] Speaker 01:
Were you trial counsel below?

[00:08:51] Speaker 00:
I was not, Your Honor.

[00:08:52] Speaker 01:
Well, was there ever a bill of particulars filed on behalf of the defendant through his counsel to make that more specific as to what was concerning the people?

[00:09:02] Speaker 00:
I have two responses to that, Your Honor.

[00:09:04] Speaker 00:
So first, trial counsel did file a timely motion to dismiss.

[00:09:10] Speaker 00:
And in response to that, the government's position was, we are not relying on any specific act.

[00:09:15] Speaker 00:
This is charging you with any act that occurred within the eight-year period, and the district court ultimately... That doesn't answer my question, counsel.

[00:09:23] Speaker 01:
My question is, was there ever a bill...

[00:09:25] Speaker 01:
If your client doesn't know or doesn't know how to defend himself because it's not clear enough, the normal procedure would be to file for a bill of particulars.

[00:09:35] Speaker 01:
And that was not done in this case?

[00:09:37] Speaker 00:
Your Honor, I don't believe a motion for a bill of particulars was filed, but I don't think that defeats our claims here for two reasons.

[00:09:43] Speaker 00:
So first, the Supreme Court has held a bill of particulars can't cure a defective indictment because it doesn't solve the problem of

[00:09:52] Speaker 00:
knowing what was in the grand jury's mind, and that's exactly what the Supreme Court is talking about.

[00:09:57] Speaker 01:
That's not what you've said.

[00:09:58] Speaker 01:
Your position is for failure to provide sufficient notice of the charged offenses.

[00:10:04] Speaker 00:
Your Honor, I believe the brief also discusses the grand jury concern that's clearly briefed.

[00:10:09] Speaker 01:
Well, it may, but I'm not there yet.

[00:10:12] Speaker 01:
I'm looking at your first issues.

[00:10:15] Speaker 01:
Yes, Your Honor.

[00:10:16] Speaker 00:
So the first issue, the sufficiency of the indictment, is determined by whether it meets multiple constitutional functions, one of which is to provide the defendant with notice, and another is the grand jury function.

[00:10:27] Speaker 00:
And the Supreme Court specifically said in Russell that a bill of particulars can't save a deficient indictment because it is the role of the grand jury acting independently of the prosecutor to decide what the charges are.

[00:10:41] Speaker 00:
And so for a prosecutor to come in afterwards and say, no, no, this is what the charges mean,

[00:10:46] Speaker 00:
It actually deprives the defendant of his grand jury right.

[00:10:48] Speaker 00:
Second, it would have been futile for Mr. Garcia-Lamone to seek a bill of particulars in this case because the government's position was, and they made this clear in its response to the motion to dismiss, that it would, in fact, seek to rely on any of these events at trial.

[00:11:04] Speaker 00:
Its position was that it was not limited to any specific event, and that is actually what the district court held.

[00:11:11] Speaker 00:
that Mr. Garcia-Lamone could be convicted on the basis of any event occurring during the eight-year period if it was proven at trial.

[00:11:18] Speaker 00:
So the rulings in this case made clear that a bill of particulars would not have solved the problem because the government's position was that it was not relying on any particular incident of sexual abuse.

[00:11:30] Speaker 00:
And I think that's clear, not just, so one, that's what they said they were doing for child, the district court ruled that was permissible.

[00:11:37] Speaker 00:
And then if you actually look at the way they argued this case in closing, they say what he says is sexual abuse, what she says is sexual abuse, and she even talked about things that she doesn't remember happening.

[00:11:47] Speaker 00:
So they're clearly inviting the jury to convict on the basis of not only what's in the discovery, but DC's general allegations

[00:11:56] Speaker 00:
at trial that this happened times that she couldn't even remember or describe, and obviously that wouldn't have been a discovery either.

[00:12:03] Speaker 00:
The government's theory was that they did not have to prove any particular act of sexual abuse

[00:12:09] Speaker 00:
That is not consistent with what the Constitution requires of a pleading, and the government's theory violated both the language of the statutes, created serious constitutional concerns, and constructively amended the indictment, which, again, does not... Can we assume, though, that based on the unanimity instruction that the jury found at least one sexual act within that time period?

[00:12:33] Speaker 00:
No, Your Honor.

[00:12:34] Speaker 00:
Two reasons.

[00:12:35] Speaker 00:
So first, the actual

[00:12:36] Speaker 00:
Unanimity instruction in this case only requires unanimity as to the count.

[00:12:40] Speaker 00:
It doesn't require unanimity as to the act.

[00:12:42] Speaker 00:
And again, these errors were in the indictment.

[00:12:45] Speaker 00:
This is a pretrial error.

[00:12:46] Speaker 00:
So I don't think the unanimity instruction really was necessary, because the problem is at the indictment itself.

[00:12:53] Speaker 00:
Finally, the unanimity instruction wouldn't have solved the grand jury problem, and it wouldn't have given Mr. Garcia notice and an adequate opportunity to prepare for trial.

[00:13:03] Speaker 00:
Your honor, I'm happy to answer any more questions, but I also want to reserve some time for rebuttals.

[00:13:07] Speaker 00:
Thank you.

[00:13:22] Speaker 04:
Good morning.

[00:13:23] Speaker 04:
May it please the court, my name is Benjamin Traster and I represent the United States.

[00:13:28] Speaker 04:
For approximately seven or eight years,

[00:13:31] Speaker 04:
the defendant opportunistically engaged in sexually assaulting and sexually abusing the victim, DC.

[00:13:39] Speaker 04:
This case asks how such regular carbon copy type instances of sexual abuse has to be charged in an indictment, where a victim, a young victim in particular, becomes accustomed and inured to such regular sexual abuse, such that in fact that sexual abuse becomes essentially indistinct over time.

[00:14:01] Speaker 04:
Secondarily, in a case like this, where the abuse was a fact of life for the victim and accommodated, and where the victim admitted at trial she had trouble with dates, so much so that she admitted she had trouble remembering the birthdays of her step-siblings,

[00:14:19] Speaker 04:
And where the defendant also, and this is important, confessed largely to sexually abusing the victim as well.

[00:14:27] Speaker 04:
Where he also provided a wide date range during which the abuse occurred.

[00:14:33] Speaker 04:
This case asks also whether there are any alternative ways to charge this particular type of sexual abuse.

[00:14:40] Speaker 03:
I really didn't see another case quite like this one.

[00:14:46] Speaker 03:
the government's charged a scheme of sexual abuse.

[00:14:52] Speaker 03:
Is this a first of its kind, or are there some other examples out there that I might have overlooked?

[00:14:58] Speaker 04:
I don't think so.

[00:14:59] Speaker 04:
I do think that there is a case out of the Sixth Circuit, and we cited it, the Valentine versus Canta, I'm not sure how it's pronounced, case.

[00:15:07] Speaker 04:
And what's actually interesting about that case is the way that it was a state case on a habeas petition, and the way that that case was

[00:15:15] Speaker 04:
of note, I should mention that the way that that indictment was charged, and of course the question as to whether the indictment was sufficient.

[00:15:22] Speaker 04:
There were like 20 counts of sexual abuse, weren't there?

[00:15:24] Speaker 04:
That's exactly right.

[00:15:25] Speaker 04:
20 identical counts of one, I believe one type of sexual abuse and 20 identical counts of another type of sexual abuse.

[00:15:32] Speaker 04:
And what the court ultimately found was

[00:15:34] Speaker 04:
that in fact that way of charging was problematic and ultimately found that was I believe 10 months or 17 months period of time in that case.

[00:15:46] Speaker 03:
But at least in that case the jury unanimously found what they dismissed 19 of the 20 but they relied on one count where the jury

[00:15:56] Speaker 03:
found a sexual act.

[00:15:59] Speaker 04:
I actually, I'm not sure on that.

[00:16:01] Speaker 04:
And what I mean is that the jury may have found, I think the jury actually found the defendant guilty.

[00:16:07] Speaker 04:
of 35 different counts, and what the courts on appeal had problems with was differentiating.

[00:16:13] Speaker 04:
How do you differentiate something like those 35 counts?

[00:16:16] Speaker 04:
So it was a later court on appeal that said, we will find you guilty of one count of each, because... That just seems pretty dissimilar.

[00:16:25] Speaker 03:
I mean, that's kind of a suggestion by the Sixth Circuit.

[00:16:29] Speaker 03:
their own habeas.

[00:16:30] Speaker 03:
Here we're talking about the indictment.

[00:16:34] Speaker 03:
From out of the gates, the government's theory here was that this was a scheme, right?

[00:16:39] Speaker 04:
I don't know that that's exactly correct, that this was a scheme, or I think that there are sort of

[00:16:46] Speaker 04:
maybe distinctions without a difference as to how this is described.

[00:16:49] Speaker 04:
This was always described as a continuous course of conduct.

[00:16:53] Speaker 04:
Numerous instances of regular carbon copy type sexual abuse.

[00:16:59] Speaker 04:
And the reason why that's important is because

[00:17:03] Speaker 04:
Number one, Judge Timkovich, you were just asking about unanimity.

[00:17:06] Speaker 04:
I think that there's a footnote in the Jaynes case.

[00:17:09] Speaker 04:
The Jaynes case is about numerous instances of forgery where the district court relied on the Jaynes case to say that any one particular instance of sexual abuse in this case is sufficient to find the count.

[00:17:25] Speaker 04:
to allow the jury to find guilt on a particular count.

[00:17:31] Speaker 03:
I do agree with that.

[00:17:32] Speaker 03:
But I do have one concern about the way this case unfolded.

[00:17:38] Speaker 03:
And the prosecutor highlighted specific acts of sexual abuse over the time period.

[00:17:47] Speaker 03:
But how can I be assured that the jury unanimously found

[00:17:55] Speaker 03:
that Mr. Gay committed abuse on this date as described by the victim.

[00:18:04] Speaker 03:
In other words, we've got three or four instances.

[00:18:07] Speaker 03:
I might have four of the jurors agree that he committed abuse on Monday, four different ones on Tuesday, and four different on Wednesday.

[00:18:16] Speaker 03:
But no 12 of them ever agreed that he committed

[00:18:21] Speaker 03:
in an act of sexual abuse.

[00:18:23] Speaker 03:
And it seems to me that this record permits that type of problem.

[00:18:30] Speaker 04:
Well, I would disagree.

[00:18:32] Speaker 04:
And the reason that I would disagree is based on the footnote that I just referenced in the Jane's case.

[00:18:36] Speaker 04:
It's footnote seven.

[00:18:37] Speaker 04:
And what that footnote actually lays out is how the jury in that case, where there were initially 64 different forged checks, but I think they whittled it down to ultimately saying it was either five or 10 different checks.

[00:18:49] Speaker 04:
How could the jury in that case find that there was a forgery?

[00:18:52] Speaker 04:
How do they know which of those checks established the forgery?

[00:18:56] Speaker 04:
And the court laid out in that case exactly how that logic works, and I think it applies in this case as well.

[00:19:02] Speaker 04:
In this case, the victim testified about these instances of sexual abuse.

[00:19:08] Speaker 04:
I would argue it was well more than just three instances because she

[00:19:11] Speaker 04:
said it was every time she was, first of all, when she lived with her mother and father, it was repeated.

[00:19:17] Speaker 04:
And then even when she was living with her biological father, when she came back for visitation, it would go on.

[00:19:24] Speaker 04:
But the logic is the jury had to believe her.

[00:19:27] Speaker 04:
The jury believed her because they found the defendant guilty.

[00:19:30] Speaker 04:
The defendant never

[00:19:34] Speaker 04:
He admitted to some kinds of sexual abuse, but he minimized the sexual abuse that he committed.

[00:19:39] Speaker 04:
Ultimately, when the jury believed her, because the sexual abuse was, in effect, carbon copy type sexual abuse, the jury had no way, if the jury believed one instance, the jury believed all of the instances.

[00:19:52] Speaker 03:
And there was no way for the... Why would we assume that?

[00:19:54] Speaker 04:
It's not assuming it, I think logically it has to be.

[00:19:57] Speaker 04:
The jury simply had two people to decide from.

[00:20:01] Speaker 04:
Did the jury decide that they believed the victim or did the jury decide that they believed the defendant's words, not when he testified, he didn't testify, but in his statements, in his interview with the police, in his statements over jail communications.

[00:20:16] Speaker 04:
So I think what the jury did was the jury had to have said,

[00:20:19] Speaker 04:
we believe the victim in this case and we believe how this abuse went down over all of these instances.

[00:20:28] Speaker 03:
Even if they don't agree that abuse occurred on a specific discrete time period?

[00:20:37] Speaker 04:
Well, I think there, I mean, unfortunately, there was a long time period, and that time period was over the course of, as I said, seven or eight years.

[00:20:47] Speaker 04:
So I think that there were discrete instances, and the victim testified to discrete instances.

[00:20:54] Speaker 04:
She just couldn't provide dates of those discrete instances, and I think that that's actually in some respects

[00:21:00] Speaker 04:
The question as to the sufficiency of the indictment that the defendant challenges, the defendant challenges whether or not there were factual elements that were included in the indictment.

[00:21:09] Speaker 04:
Well, of course there were.

[00:21:10] Speaker 04:
And the government even chose from among the different theories of which sexual act the government was prosecuting, which was one of four different definitions that could be prosecuted.

[00:21:22] Speaker 04:
So the indictment satisfied the requirements of an indictment according to the circuits case law and according to Supreme Court case law.

[00:21:35] Speaker 04:
I think for what it's worth, the defendant relies on the Russell case, which is a little sui generis in terms of why there needed to be such additional facts.

[00:21:46] Speaker 04:
But I would also note, and I want to point out, that the defendant also relies particularly for the duplicity and constructive amendment argument, and you could hear it from counsel in her argument, the defendant puts a lot of weight on the word uh.

[00:22:00] Speaker 04:
A sexual act means that that definition has to be one singular sexual, one singular instance.

[00:22:07] Speaker 04:
But I would argue to the court that the statute actually is more capacious than that.

[00:22:12] Speaker 04:
So the statute prescribes

[00:22:14] Speaker 04:
whoever engages, knowingly engages in asexual act.

[00:22:18] Speaker 04:
Well, by definition, 2246 provides four different sexual acts.

[00:22:24] Speaker 04:
A good comparison to show how that word, ah, is referring to one of many definitions in 2246 is that if you compare that to the other charge, count three, which is abusive sexual contact, that charge prescribes knowingly engages

[00:22:43] Speaker 04:
in or causes sexual contact.

[00:22:47] Speaker 04:
So there is no singular ah anymore when you don't have multiple different pathways in that definition for a sexual act.

[00:22:55] Speaker 04:
And what I would suggest is that, in fact, if the court looks at the definition of the word engage, what the court's going to find is that it's not as limiting as what the defendant wants it to be.

[00:23:07] Speaker 04:
And I apologize, I didn't put this in the brief.

[00:23:10] Speaker 04:
For example, Merriam-Webster defines one of, and I think the most appropriate definition for the word engage, is begin and carry on an enterprise or activity, or do or take part in something.

[00:23:23] Speaker 04:
OED describes it as entering upon an action.

[00:23:28] Speaker 04:
I think that that text, that definition in and of itself implies that there is the ability when you're engaging in something that it may in fact be ongoing.

[00:23:38] Speaker 04:
And I think that also provides an avenue in the text for an ongoing, ongoing instances of abuse.

[00:23:45] Speaker 02:
And I think that- Council, can I just stop you there?

[00:23:48] Speaker 02:
Sure.

[00:23:49] Speaker 02:
So can you address the Yasi case out of the Ninth Circuit?

[00:23:53] Speaker 04:
You know, Your Honor, I apologize.

[00:23:55] Speaker 04:
I'm not familiar with it.

[00:23:56] Speaker 04:
I can't.

[00:23:58] Speaker 02:
OK.

[00:23:59] Speaker 02:
Well, I guess I'm trying to pin you down on, and this is where Judge Timkovich started, which is, do you have an example of where this statute has been used in the way you're suggesting?

[00:24:13] Speaker 02:
Do you have any case?

[00:24:16] Speaker 02:
anywhere where there has been some interpretation that a sexual act doesn't mean it can be a scheme of sexual acts.

[00:24:28] Speaker 04:
Well, again, I would go back to the way that that clause is written.

[00:24:32] Speaker 04:
Engages in... Okay, so no.

[00:24:34] Speaker 04:
No, not that I'm aware of.

[00:24:36] Speaker 04:
The only case that I would point to is in the recent case that was decided in July by this court, United States v. Sweet, there was a reference to a case out of the Ninth Circuit, the Lopez case.

[00:24:48] Speaker 04:
And in that Lopez case, what they do is they describe

[00:24:52] Speaker 04:
essentially the meaning of the word any and ah.

[00:24:55] Speaker 04:
And one of the things that the court describes with the meaning of ah is that it has a generalizing intent.

[00:25:00] Speaker 04:
And I think that that again goes to the fact that it's not this singular specific, it's not engaging in one single sexual act.

[00:25:08] Speaker 04:
Sexual act has a very specific definition.

[00:25:10] Speaker 04:
It is

[00:25:12] Speaker 04:
defined in 2246.

[00:25:15] Speaker 04:
And in this case, it's 2246-2, which has four parts to it.

[00:25:18] Speaker 04:
And so even in the indictment, I believe that the indictment refers to 2246-2D, which is the intentional touching directly and not through the clothing of the genitalia and for the purpose of degrading, abusing, humiliating, et cetera.

[00:25:36] Speaker 04:
So I think that the fact that it is asexual acts, and that's in contrast to the abusive sexual contact statute, which refers to not a sexual contact, it refers to sexual contact, which doesn't have those choices.

[00:25:52] Speaker 04:
I think grammatically that is the only way to make sense of engaging in a sexual act when it is a cross-reference to the definition.

[00:25:59] Speaker 04:
But I don't have a case that says this is how 2241 or 2244 has been previously operated.

[00:26:10] Speaker 04:
But I would also point to, I think, both policy-wise and reasoning-wise, that the Valentine case points out, and I think the defendant has to concede, that child abuse is not like a continuing criminal enterprise.

[00:26:23] Speaker 04:
Child abuse, child sexual abuse, is not like other crimes.

[00:26:27] Speaker 04:
And so because of that, the defendant in the reply brief talks about drug distribution as though that is somehow similar as how it's investigated, how it's reported to child sexual abuse.

[00:26:40] Speaker 04:
And that's simply not the case.

[00:26:42] Speaker 04:
And this is the case of a victim and a defendant who both agreed that sexual abuse occurred.

[00:26:48] Speaker 04:
The defendant told the police, told agents that the sexual abuse occurred began

[00:26:53] Speaker 04:
at times when she was five or six.

[00:26:56] Speaker 04:
And then in a jail phone call, he told his wife that it happened when she was, I believe, 10, he told her.

[00:27:02] Speaker 04:
There was a wide range even there.

[00:27:04] Speaker 04:
Not only that, but I would also point out when we're talking about what the indictment gave the defendant notice of, the defendant filed, first of all, the government filed a trial brief.

[00:27:17] Speaker 04:
The defendant filed a trial brief, docket number, numbers 121 and 123.

[00:27:22] Speaker 04:
The defendant later filed a motion to reconsider.

[00:27:26] Speaker 04:
And in it, the defendant talked of events occurring in a broad timeframe, talked about unspecific dates.

[00:27:32] Speaker 04:
The defendant knew exactly how the victim was going to testify that she could not provide specific dates, but also talked about this lengthy period of time.

[00:27:41] Speaker 04:
So the defendant was on notice and suffered no prejudice even if there was any fault in the indictment, which I don't believe there were any deficiencies in the indictment.

[00:27:52] Speaker 04:
Very quickly, on duplicity, the indictment charged one offense, the knowing touching directly and not through the clothing.

[00:28:00] Speaker 04:
And it wasn't constructively amended at all during the trial.

[00:28:04] Speaker 04:
There was sufficient evidence for the jury to find unanimously that an instance of sexual abuse occurred, and I think logically they did.

[00:28:13] Speaker 04:
With that, the government would ask this court to affirm the conviction of the defendant.

[00:28:18] Speaker 04:
Thank you.

[00:28:43] Speaker 00:
Your Honor, I think there's a lot of things I would like to respond to, but I feel that the core of the disagreement with the government is by view of what a federal crime is.

[00:28:52] Speaker 00:
A federal crime is made up of a specific factual incident.

[00:28:55] Speaker 00:
When a grand jury charges someone with a crime, it's not charging them with having ever engaged in some type of conduct.

[00:29:01] Speaker 00:
It's charging them with having engaged in a specific criminal act as a matter of historical fact.

[00:29:06] Speaker 00:
And that is what an indictment is required to plead.

[00:29:10] Speaker 00:
It's required to identify the facts and circumstances and to definitely identify the essential facts of the crime and not just the type of crime that the government believes occurred.

[00:29:23] Speaker 00:
There's no constitutional exception for heinous crimes and as this court is sadly aware, prosecutors often have to charge child sexual abuse offenses

[00:29:35] Speaker 00:
involving similar issues with memory, but they do so without violating the basic pleading requirements set forth in the Fifth Amendment and without running roughshod over the plain language of the statutes.

[00:29:46] Speaker 00:
I think Jaynes is distinguishable for many reasons.

[00:29:50] Speaker 00:
Apart from the dicta reasons, the indictment in Jaynes actually identified each of the specific incidents of check fraud that went to the grand jury and went to the trial jury.

[00:29:59] Speaker 00:
So it's a totally different circumstances from this case, where

[00:30:03] Speaker 00:
the specific acts are not identified anywhere.

[00:30:07] Speaker 00:
Valentine, at one point I did want to make, is besides it being a state habeas case, that means it involved a different statute and also involved different constitutional interests.

[00:30:16] Speaker 00:
Of course, the grand jury clause has never been incorporated against the states.

[00:30:19] Speaker 00:
And so the petitioner in Valentine wouldn't have had the same interest in knowing that his verdict was based on the same act that was found by the grand jury.

[00:30:27] Speaker 00:
And finally,

[00:30:30] Speaker 00:
with the government's belated statutory interpretation argument, which I think shows, again, his reluctance to engage in the text, I think, is another big disconnect.

[00:30:43] Speaker 00:
It's not up to the prosecutor to decide what the indictment meant, and it's not up to the prosecutor to decide what is a crime.

[00:30:49] Speaker 00:
Those roles belong to the grand jury, and they belong to Congress.

[00:30:53] Speaker 00:
And when you look at the statute and you look at the indictment, they simply did not permit

[00:30:58] Speaker 00:
The prosecution and conviction of Mr.. Garcia lemon here, so we would ask for his conviction sentence to be vacated and for those counts to be dismissed Thank you.

[00:31:05] Speaker 03:
Thank you counsel.

[00:31:06] Speaker 03:
We very much appreciate the argument your excuse the case submitted and we're in recess until tomorrow at 830