[00:00:00] Speaker 04:
Submitted and Counselor excused.

[00:00:29] Speaker 04:
The next case for argument is United States versus Sweet, docket 23-5049.

[00:00:37] Speaker 04:
Counsel.

[00:00:49] Speaker 00:
Good morning, Your Honor.

[00:00:51] Speaker 00:
Good morning.

[00:00:52] Speaker 00:
And may it please the court.

[00:00:54] Speaker 00:
I'm Mia Yaffe on behalf of Mr. Alexander Sweet.

[00:00:58] Speaker 01:
So this appeal follows Mr. Sweet's trial on a number of child pornography charges, and as most relevant here, an enticement charge.

[00:01:07] Speaker 01:
And that's the charge that carried Mr. Sweet's life sentence.

[00:01:10] Speaker 01:
And there are two remaining issues on appeal at this stage.

[00:01:13] Speaker 01:
The first is issue one in the briefs, the sufficiency of count one of the indictment, which is the enticement count.

[00:01:20] Speaker 01:
And the second is plea and prosecute oral misconduct during closing arguments.

[00:01:25] Speaker 01:
And I'd like to start with the first issue, and because I think

[00:01:28] Speaker 01:
going to inform both the preservation and merits questions in this case, just with a high-level framing of what we're talking about when we're talking about an insufficiently specific indictment.

[00:01:39] Speaker 01:
So the basic doctrinal principle here is that an indictment has to allege enough factual detail to provide the accused with a basic understanding of the events that were presented to the grand jury and for which he must answer for in court.

[00:01:53] Speaker 01:
And in other words, the question to ask is, does the language of this indictment

[00:01:58] Speaker 01:
tell the defendant what particular criminal act he's on trial for, or does it just explain a generic type of crime?

[00:02:06] Speaker 01:
And I want to be clear, because this comes up in the answer brief a bit in different places, that this is a different inquiry than what courts consider when you're talking about a bill of particulars or even discovery.

[00:02:16] Speaker 01:
So if you think of a spectrum of information, you might receive... Well, let me ask this.

[00:02:20] Speaker 03:
Sure.

[00:02:21] Speaker 03:
Was this incident with the young child, was that before the grand jury?

[00:02:27] Speaker 01:
So we don't have the grand jury transcripts in the record.

[00:02:31] Speaker 03:
What I will point to, though, is that- Was it before anybody?

[00:02:35] Speaker 03:
And it appears that the court asked, is he charged with that?

[00:02:40] Speaker 03:
No.

[00:02:41] Speaker 03:
Is there a notice of that?

[00:02:43] Speaker 03:
No.

[00:02:43] Speaker 03:
There's no video of it?

[00:02:46] Speaker 03:
No.

[00:02:46] Speaker 03:
I don't- So you just said that the people are told of the- I thought you said the grand jury.

[00:02:54] Speaker 01:
Correct.

[00:02:55] Speaker 03:
Is told all the facts.

[00:02:57] Speaker 03:
a person to know what he's charged with.

[00:02:59] Speaker 01:
This is exactly the issue.

[00:03:00] Speaker 03:
How does that square with what the court asked and what the answers were?

[00:03:07] Speaker 01:
Yeah, it doesn't square.

[00:03:08] Speaker 03:
It doesn't square at all.

[00:03:09] Speaker 01:
It doesn't square.

[00:03:10] Speaker 01:
The indictment is not specific enough on this point.

[00:03:13] Speaker 01:
And I'll just point also, while we don't know exactly what was before the grand jury in the record, what we do know is that three days before the original indictment, which, as the government points out, count one is identical and both the original and the superseding indictment,

[00:03:26] Speaker 01:
Three days before, there's a preliminary probable cause hearing in front of the court.

[00:03:31] Speaker 01:
The government puts forward its evidence, and there's nothing about this looted molestation.

[00:03:35] Speaker 01:
So I think the reasonable inference here is that this wasn't before the grand jury, though I can't say that for sure.

[00:03:40] Speaker 01:
But we do also have the answer brief, where what the government says is, maybe Mr. Sweet didn't know about it, but the investigation was still missing and ongoing at the time that the indictment was filed, which to me suggests the government saying, yeah, this might not have been before.

[00:03:56] Speaker 01:
the grand jury, and that's a huge problem because the government doesn't dispute, or at least I don't understand them to be disputing.

[00:04:04] Speaker 01:
But this was a distinct theory of prosecution of enticement in this case, right?

[00:04:09] Speaker 01:
And we know that both based on language and the answer brief where they talk about the government's trial theory, but also because it was argued to the jury, including arguments, as a distinct way of convicting Mr. Sweet on enticement.

[00:04:23] Speaker 01:
And because it's presented to the jury and the jury instructions as a distinct way of convicting Mr. Sweet on enticement.

[00:04:30] Speaker 01:
So I think there's no question here.

[00:04:31] Speaker 01:
But what we're talking about is the type of thing you need to have an indictment, not just in discovery, which is, what are you on trial for?

[00:04:40] Speaker 01:
As the indictment reads, it says, Mr. Sweet, you're accused of enticing MLC to do a bad thing.

[00:04:46] Speaker 03:
Did you ever seek a bill of particulars in this case?

[00:04:49] Speaker 01:
We did not, but that's neither here nor there for an indictment sufficiency issue, Your Honor.

[00:04:55] Speaker 01:
And we know this from the Supreme Court's decision in Russell.

[00:04:58] Speaker 01:
That was consolidated, six different cases there.

[00:05:01] Speaker 01:
Four of the six, I believe is the number, never requested a bill of particulars.

[00:05:05] Speaker 01:
And the Supreme Court specifically says, that's not what we're talking about.

[00:05:09] Speaker 01:
A bill of particulars cannot cure.

[00:05:11] Speaker 03:
No, I'm just curious as to whether you had done that.

[00:05:14] Speaker 01:
But no, we did not do that in this case, Your Honor.

[00:05:17] Speaker 03:
Are you going to do it in the next case?

[00:05:19] Speaker 03:
Are you going to do it in the next case?

[00:05:21] Speaker 01:
Well, I suppose it would be good practice, but it certainly wouldn't solve the issue, regardless of whether we do or do not.

[00:05:28] Speaker 01:
Because the point is, do we know that this theory of prosecution was before the grand jury?

[00:05:33] Speaker 01:
And are you aware from the day the indictment is filed of what it is you're going to have to answer for in court?

[00:05:38] Speaker 05:
But counsel, can I ask, the lewd molestation may have been

[00:05:42] Speaker 05:
but it wasn't the only theory, because I read the charging documents that counts two through seven are basically subsumed as sexual activity in count one.

[00:05:50] Speaker 05:
And because the jury reached verdicts on those counts, how can we conclude then, or why can't we just conclude there was a unanimous verdict on this element in count one, and we know that counts two through seven could support it?

[00:06:05] Speaker 01:
Sure.

[00:06:05] Speaker 01:
So I think this gets to the harmless error part of this case, and I'll just

[00:06:09] Speaker 01:
This is the constitutional standard of harmless error that the government needs to prove as their burden.

[00:06:16] Speaker 01:
The reason we can't say it's harmless in this case is because the sexual conduct itself doesn't prove the actus reus the heart of an enticement charge because what we know from cases like Isabella and Faust and the court's recent decision to flex

[00:06:32] Speaker 01:
is that the core of what you're criminalizing in count one is the act of persuasion.

[00:06:39] Speaker 01:
The knowing efforts that the defendant takes to persuade a minor to do something unlawful.

[00:06:47] Speaker 01:
So the fact that there is in fact unlawful sexual conduct or activity that occurs in this case might be circumstantial evidence to some degree of

[00:06:58] Speaker 01:
persuasion, but it's not dispositive evidence of persuasion, and that's really what we need from the enticement charge.

[00:07:03] Speaker 01:
It's what makes it different than just possession of child pornography.

[00:07:07] Speaker 01:
And I will note that the production counts have some overlap with the enticement charge, right?

[00:07:13] Speaker 01:
But we know from Isabella, again, that production is a broader, at least in terms of the verbs that we're talking about, production is broader, and you can commit production of child pornography without committing enticement

[00:07:27] Speaker 01:
to produce child pornography.

[00:07:30] Speaker 04:
But on the evidence in this case, can you?

[00:07:33] Speaker 04:
In other words, the jury heard more than simply the sexual acts.

[00:07:38] Speaker 04:
The jury heard how this began, how these two people met, her age, his ability to persuade her to do things that young people typically don't do.

[00:07:50] Speaker 04:
Why isn't that enough?

[00:07:51] Speaker 01:
So, you know, we're not on the sufficiency of the evidence.

[00:07:54] Speaker 01:
claim here perhaps that could be enough to meet a sufficiency of the evidence standard, but it's not dispositive here, and that's because however this court or people in this room might consider this, how controversial this relationship is, it is a lawful relationship that they are in.

[00:08:11] Speaker 01:
Mr. Sweet and them will see you're dating for approximately two years.

[00:08:15] Speaker 01:
A lot of their conversations are sexual in nature, but they are allowed to be because there is some lawful sexual activity that can occur between them.

[00:08:24] Speaker 01:
So the existence of sexual conversations doesn't show what's at issue here, which is, did Mr. Sweet knowingly entice, persuade, induce MLC to commit child pornography or to commit a lewd molestation against another child?

[00:08:43] Speaker 01:
It is also possible on these facts.

[00:08:45] Speaker 01:
And this is not an endorsement of the conduct.

[00:08:48] Speaker 01:
But it is also possible on these facts that when you're in a relationship with someone, either party can have the idea to make a sexual video.

[00:08:57] Speaker 01:
Mr. Sweet certainly should not have gone along with it, but Emily never testifies that it's his idea.

[00:09:02] Speaker 01:
She's silent on whose idea it was.

[00:09:04] Speaker 01:
She doesn't talk about any of the communications.

[00:09:06] Speaker 01:
that lead up to their making child pornography.

[00:09:09] Speaker 01:
The only specific thing we know from the record, the only specific evidence of persuasion and enticement in this case, is for the lewd molestation theory.

[00:09:18] Speaker 01:
And that's, MLC testifies specifically, Mr. Sweet came over when I was babysitting another child and he told me that I needed to do this thing, I needed to do this molestation of this other child or he would do it himself.

[00:09:33] Speaker 01:
And I think that's,

[00:09:34] Speaker 01:
That is an act that is criminalized by the enticement statute.

[00:09:38] Speaker 01:
And that is the clearest evidence of enticement we have in this case.

[00:09:41] Speaker 01:
And it's not a theory that should have been before the jury on this indictment.

[00:09:45] Speaker 05:
Counsel, let's say that when the government began to introduce that evidence of the lewd molestation, there's a sidebar for the objection.

[00:09:54] Speaker 05:
And the court asked the prosecutor, was any notice provided to us?

[00:09:58] Speaker 05:
And that dialogue went back and forth.

[00:10:00] Speaker 05:
Let's say that the judge at that point sustains the objection.

[00:10:04] Speaker 05:
Is the indictment still facially deficient?

[00:10:07] Speaker 01:
I think the indictment is probably deficient at that point, Your Honor, but there wouldn't be prejudice where it would be a reversible error on appeal.

[00:10:15] Speaker 01:
And the reason for that in this kind of unique case is that you have the conduct for the other theory, the government's other theory of enticement portrayed in the other six counts in the indictment.

[00:10:28] Speaker 01:
So we know that those facts were before the grand jury because they're in those counts.

[00:10:32] Speaker 01:
and we know that Mr. Sweet had notice of it, and I'll just point this court to its opinion in Staggs, United States versus Staggs, where it's a continuing criminal enterprise case, but they basically review the specificity of the indictment, and they say, you know, in this circumstance where count one doesn't incorporate, by reference, the other counts, but the information that's required to underlie count one is in those other counts, we're not gonna find a grand jury or a notice problem.

[00:11:00] Speaker 01:
And so I think in this limited,

[00:11:02] Speaker 01:
context, had the court sustained the objection, the harm would arguably have been mitigated.

[00:11:12] Speaker 01:
That's not what the court did.

[00:11:13] Speaker 01:
And so we are presented with serious harm to Mr. Swee.

[00:11:17] Speaker 04:
Does it matter that the defendant would have known about this conduct that the jury found?

[00:11:22] Speaker 04:
In other words, it wasn't a complete surprise to him.

[00:11:24] Speaker 04:
Now, what are they saying with the babysat

[00:11:27] Speaker 04:
child and therefore as the defender read the indictment, he would say to himself, well, it could be this, it could be that.

[00:11:36] Speaker 04:
I don't know what they know and how they know it.

[00:11:39] Speaker 04:
And so we're going to file a motion on rule 12.

[00:11:43] Speaker 01:
So a few things.

[00:11:44] Speaker 01:
At the start of this case, we don't know that the defendant knows that.

[00:11:48] Speaker 01:
We don't know what happened.

[00:11:50] Speaker 01:
And we presume that the law tells us we presume that a defendant is innocent of

[00:11:55] Speaker 01:
the charges brought against him for purposes of understanding the specificity of an indictment.

[00:11:59] Speaker 01:
So I don't think it's a fair assumption that when this indictment is filed, Mr. Sweet somehow knows of this conduct.

[00:12:05] Speaker 04:
But the conduct had happened or it hadn't happened, and the jury found that it had happened.

[00:12:10] Speaker 01:
Well, possibly, Your Honor.

[00:12:12] Speaker 01:
That's the point here.

[00:12:13] Speaker 01:
There's a high likelihood that that is what the jury found.

[00:12:16] Speaker 01:
But the point is that Mr. Sweet was prejudiced because throughout the pretrial proceedings, he doesn't know he's

[00:12:22] Speaker 01:
getting prepared to defend against this theory of the case.

[00:12:26] Speaker 01:
And then at trial, he's hit with it for the first time.

[00:12:28] Speaker 01:
There's no dispute from either party here that this was totally sprung upon Mr. Slee at trial.

[00:12:34] Speaker 01:
But the court itself, as Your Honor was pointing out, is surprised that this comes up.

[00:12:39] Speaker 01:
In fact, three days before, three or four days before the start of trial, the court issues an order denying a continuance for Mr. Slee, and it refers to all seven counts as each related.

[00:12:51] Speaker 01:
to child pornography, so I think there's no question here that this is something that a pro se defendant is being confronted with at trial for the very first time.

[00:13:00] Speaker 01:
It's hard for me to understand.

[00:13:02] Speaker 01:
There would be no prejudice there, but regardless, this court has equated a lack of notice with prejudice in these types of cases.

[00:13:12] Speaker 01:
I think I might reserve the remainder of my time for rebuttal, unless the court has further questions.

[00:13:39] Speaker 02:
May it please the court, Thomas Duncan for the United States.

[00:13:43] Speaker 02:
Mr. Sweet was not convicted because he was prejudicially surprised by the government's trial theory.

[00:13:50] Speaker 03:
How do you know?

[00:13:52] Speaker 02:
We know that for several reasons.

[00:13:54] Speaker 02:
The first reason is Mr. Sweet did nothing during the trial to indicate that he was actually surprised by the evidence.

[00:14:03] Speaker 02:
The other reason we know is that the evidence of enticement, especially the non-lewd molestation-based enticement, was overwhelming.

[00:14:13] Speaker 02:
Did you submit special interrogatories to the jury?

[00:14:17] Speaker 02:
No.

[00:14:17] Speaker 02:
And that's actually meaningful in this case and cuts in the government's favor, because during the jury instruction conference,

[00:14:24] Speaker 02:
Mr. Sweet, who was working collaboratively with Mr. Campbell throughout the trial.

[00:14:30] Speaker 02:
Mr. Campbell cross-examined most of the witnesses and delivered the closing argument.

[00:14:34] Speaker 02:
But during that closing instruction or jury instruction conference, Mr. Sweet asked for a special verdict form as to the child pornography counts.

[00:14:44] Speaker 02:
In other words, which videos do you find constituted the child pornography?

[00:14:49] Speaker 02:
Specifically, and the government's response to that was,

[00:14:51] Speaker 02:
Well, Your Honor, at this point, the indictment is what it is, and any challenges to the integrity of the indictment have been waived.

[00:15:02] Speaker 02:
The defendant specifically didn't ask for a special verdict for him as to counsel.

[00:15:06] Speaker 02:
Why was he pro se?

[00:15:07] Speaker 02:
I didn't understand that.

[00:15:09] Speaker 02:
Mr. Sweet, by all accounts, had very strong opinions about the types of arguments that he wanted to raise.

[00:15:17] Speaker 02:
Even when Mr. Campbell agreed to file a motion to dismiss on Mr. Sweet's behalf, Mr. Sweet revealed at an ex parte hearing on the motion to withdraw counsel, Mr. Campbell relied on a different theory.

[00:15:32] Speaker 02:
Mr. Campbell relied on a right to privacy theory, whereas Mr. Sweet wanted to raise a First Amendment theory.

[00:15:38] Speaker 02:
Mr. Sweep, throughout the process, filed a number of pro se motions, and he wanted not only the motions that he wanted, including to be able to say that it's not child pornography if she factually consents, and it's not child pornography if we're married, he also filed, it should be noted, a Rule 12b3 motion.

[00:15:58] Speaker 02:
It was a Rule 12b3b1 motion.

[00:16:02] Speaker 02:
He alleged that count one was duplicitous,

[00:16:05] Speaker 02:
because it joined together attempted enticement and enticement.

[00:16:10] Speaker 02:
The court ruled on that on the merits.

[00:16:14] Speaker 02:
And that's at the record of volume one at pages 348 to 349.

[00:16:19] Speaker 05:
Counsel, you said, and you began by saying that Mr. Sweet did nothing to express his surprise.

[00:16:25] Speaker 05:
He objected to the evidence.

[00:16:27] Speaker 05:
And before he, as I read the sidebar, what he articulated was somewhat unintelligible.

[00:16:34] Speaker 05:
But the court on its own really pressed the notice evidence from the beginning.

[00:16:38] Speaker 05:
So other than objecting, what else did you need to do?

[00:16:42] Speaker 02:
He could have done what he did at any point during the trial, at numerous points during the trial, which is ask for a sidebar, ask for a bench conference, or have Mr. Campbell ask for a sidebar or ask for a bench conference to revisit evidence that had just come in, or to ask for discovery that he hadn't yet been allowed to view.

[00:17:05] Speaker 02:
He specifically, at a break in the trial, asked for the trial exploitation materials because he wanted to watch the videos during the break.

[00:17:12] Speaker 02:
And it should be noted the government was very gracious throughout this process, including during the trial, about letting Mr. Sweet view whatever discovery he needed to view.

[00:17:22] Speaker 02:
So there's been no indication in this case, including from the appellant, that Mr. Sweet lacked notice of the fact of the lewd molestation.

[00:17:30] Speaker 05:
Does the government concede that it did not provide any notice of these events to Mr. Sweet prior to introducing it at trial?

[00:17:38] Speaker 02:
Absolutely not.

[00:17:39] Speaker 02:
We do not concede that.

[00:17:41] Speaker 02:
There's no evidence in the record either way about what discovery was turned over, about what emails were exchanged between counsel.

[00:17:48] Speaker 02:
And the reason there's nothing in the record about what the discovery showed about the facts underlying the indictment is that the appellant never raised a Rule 12b-3 motion or anything like it.

[00:17:59] Speaker 03:
Well, the court sort of covered that.

[00:18:02] Speaker 03:
Sorry, Your Honor?

[00:18:03] Speaker 03:
The court sort of covered that and said, you know, was there any notice?

[00:18:07] Speaker 03:
No.

[00:18:09] Speaker 03:
You can't argue that, well, maybe he did know, because the government said he didn't know.

[00:18:16] Speaker 03:
No, Your Honor, with respect, what Mr. Snow said was... Is he charged with that?

[00:18:24] Speaker 03:
No, sir.

[00:18:26] Speaker 03:
He's charged with everything within the boundaries of any activity that someone could be charged with.

[00:18:32] Speaker 03:
That's a little vague.

[00:18:33] Speaker 03:
Is there notice of that?

[00:18:35] Speaker 03:
There is no notice of that, Your Honor.

[00:18:38] Speaker 03:
The way it's pled, any sexual activity could be prosecuted.

[00:18:43] Speaker 03:
That's a little vague.

[00:18:45] Speaker 03:
Is there a video on it?

[00:18:46] Speaker 03:
No, there's no video.

[00:18:49] Speaker 03:
I mean, yes.

[00:18:51] Speaker 03:
And there's nothing to suggest that he knew that he was about to be sandbagged.

[00:18:57] Speaker 02:
Well, with respect, Your Honor, there's several things that indicate that he wasn't sandbagged.

[00:19:02] Speaker 02:
Number one, this was a defendant, even though he was pro se.

[00:19:06] Speaker 02:
who knew how to tell the court when he felt like he was being sandbagged at several points during the trial.

[00:19:12] Speaker 02:
He made a Brady motion during the trial.

[00:19:14] Speaker 02:
He said that there's a friend that he, that Mr. Sweep showed these nude videos of MLC's genitalia to, but he said, well, there's a rule 11 that hasn't been turned over.

[00:19:27] Speaker 02:
That was Mr. Sweep bringing that up pro se, a break in the trial.

[00:19:31] Speaker 02:
Not only that,

[00:19:33] Speaker 02:
I would respond partially and bring back to what Judge Federico said about the colloquy.

[00:19:40] Speaker 02:
Mr. Sweet was, I wouldn't call it unintelligible, the only other thing he said besides objection was in response to what the government said, which was he's charged with anything that could be charged with a sexual act, Mr. Sweet corrected and said was enticed through the means of interstate commerce to effect that.

[00:19:59] Speaker 02:
So in other words, Mr. Sweet to the extent

[00:20:02] Speaker 02:
We can discern what he was raising, and it seems like from another part of the record, which I can get into, he was raising a relevance or a 403 objection, but what we can discern from the record is that he was saying, you can't prove that I enticed her to do that through the means of interstate or foreign commerce.

[00:20:21] Speaker 02:
Again, we don't know what objections specifically he was raising, but 10 pages earlier, he objected to the evidence that he had raped MLC with his gun.

[00:20:33] Speaker 02:
And when he raised that objection, he said, this goes to relevance, and Mr. Snow made very similar remarks to what he did in this colloquy, which was, he's charged with everything that could be charged as an illegal act.

[00:20:50] Speaker 02:
under count one.

[00:20:52] Speaker 02:
That's the indictment that we've got at this point.

[00:20:55] Speaker 02:
And Mr. Sweet says, well, I'm not charged with rape in the first degree.

[00:20:59] Speaker 02:
In other words, Mr. Sweet didn't raise these objections because he didn't know about these facts or because these facts hadn't been turned over at all in discovery.

[00:21:09] Speaker 02:
He was raising these objections because

[00:21:11] Speaker 02:
he didn't see how this wouldn't be more prejudicial than probative, given that he's not specifically charged with the rape rate instrumentation.

[00:21:19] Speaker 02:
As far as the government can see, the only reason why we're here talking about the lewd molestation and not the rape with firearm evidence is that the rape with firearm evidence was, that theory was disclosed in the trial brief.

[00:21:34] Speaker 02:
However, the trial brief is kind of red herring in this case, because number one,

[00:21:39] Speaker 02:
The government never has to file a trial brief.

[00:21:41] Speaker 02:
And number two, it doesn't give rise to any rights on behalf of the defendant when the government chooses to file a trial brief.

[00:21:48] Speaker 05:
Did the court order a trial brief?

[00:21:50] Speaker 02:
There's a trial briefing schedule, Your Honor, but there are... Through a court order?

[00:21:55] Speaker 05:
There's a trial briefing... I mean, is it a suggestion?

[00:21:57] Speaker 05:
Well, here's the briefing schedule if you want to follow it, or did the court order the government to file a trial brief?

[00:22:02] Speaker 02:
The court did not order the government to file a trial brief.

[00:22:05] Speaker 02:
And the way it works in the Northern District is

[00:22:07] Speaker 02:
If the government wants to submit voir dire or jury instructions or a trial brief, there's a deadline for that, just as there's a deadline for motions, pretrial motions.

[00:22:18] Speaker 02:
And in this case, the other thing that I would point out on the waiver issue, the court specifically reminded Mr. Sweep that if he wanted to raise a motion for a bill of particulars by the motion's deadline, under Rule 7F, he cited chapter and verse.

[00:22:34] Speaker 02:
He could file that by March 9th.

[00:22:37] Speaker 02:
And Mr. Sweet had the representation of counsel through that pretrial deadline.

[00:22:44] Speaker 02:
In this case, I want to respond to something that my colleague mentioned in her presentation, saying that somehow lewd molestation was the strongest evidence of enticement.

[00:22:56] Speaker 02:
The lewd enticement was the weakest evidence of enticement in this case.

[00:23:00] Speaker 02:
In this case, the evidence that Mr. Sweet enticed MLC to make and possess child pornography was legion.

[00:23:13] Speaker 02:
He sent a 15-year-old nude photograph of herself.

[00:23:17] Speaker 02:
And then he bought her a phone, he told her how to set up the phone, he told her when to press play when they made videos, and he told her what sex acts to do during the videos.

[00:23:28] Speaker 02:
And then he displayed power over her during the relationship by telling her when she woke up naked with vomit in her hair, oh, you're naked with vomit in your hair because I had sex with you last night after I gave you alcohol and drugs.

[00:23:42] Speaker 02:
And then he exhibited power over her by telling her, oh, by the way, here are some of the videos that we took when you were still 15 before we met in person during the first few months of our courtship where you showed your genitals.

[00:23:56] Speaker 02:
I showed those to my buddy.

[00:23:58] Speaker 02:
I just want to let you know that.

[00:24:00] Speaker 02:
And he let her know that he had a gun on him at all times.

[00:24:03] Speaker 02:
So this is not a case where the evidence as to enticement on the non-lewd molestation

[00:24:11] Speaker 02:
crimes was weak or was in question.

[00:24:14] Speaker 02:
In fact, as Mr. Campbell ably pointed out in closing argument, the lewd molestation was the weakest because it was the only one that wasn't corroborated.

[00:24:23] Speaker 02:
Even the rape in the first degree, the rape by the firearm was corroborated by the fact that Mr. Sweet used to be an armed security guard and Mr. Sweet had a holster in his car.

[00:24:40] Speaker 02:
In this case, the question on merits is whether the indictment conforms to minimal constitutional standards.

[00:24:50] Speaker 02:
And this court has never held that an indictment for enticement must spell out the enticement predicates in order to be constitutionally sufficient.

[00:25:00] Speaker 02:
So for the court to wade into that,

[00:25:02] Speaker 02:
This would not be the case to do that, to breach new ground, because the claim was not preserved in any way.

[00:25:12] Speaker 02:
And if the court had found, all right, I understand you're making basically a rule 12b3 motion, the court would have inquired, as the court did in Flex and as the court did in Doe, whether you could have gotten notice of this through discovery.

[00:25:27] Speaker 02:
Because that won't cure a defective indictment, but it will cure the prejudice.

[00:25:32] Speaker 02:
which, as this court said in Mobley, the defendant can't just cite a defective indictment.

[00:25:38] Speaker 02:
The defendant also has to come forward with evidence of prejudice.

[00:25:42] Speaker 02:
In this case, there's every evidence that Mr. Sweet and Mr. Campbell did an able job of countering the lewd molestation evidence and that the evidence on all the other enticement predicates were strong.

[00:25:55] Speaker 03:
Unless the court... I think his suggestion was made in the government's brief that

[00:26:03] Speaker 03:
In all probability, he was convicted on the enticement charge.

[00:26:09] Speaker 02:
Yes, Your Honor, and specifically on the non-lewd molestation predicates.

[00:26:13] Speaker 03:
And how do we know that?

[00:26:16] Speaker 03:
Well, again, it was good evidence.

[00:26:19] Speaker 03:
They might have discounted it and said, we get that little kid evidence.

[00:26:24] Speaker 03:
That's what really did it.

[00:26:26] Speaker 03:
We don't know that for sure.

[00:26:28] Speaker 03:
Right, we don't.

[00:26:29] Speaker 02:
That's right.

[00:26:29] Speaker 02:
But it's not just the strength of the case on the trial pornography, enticement predicates, or the weakness of the case on the lute molestation predicates that leads to the lack of prejudice.

[00:26:41] Speaker 02:
It's the fact that as in

[00:26:43] Speaker 02:
Doe, there was never a request for a bill of particulars.

[00:26:47] Speaker 02:
There was never a request for a continuance.

[00:26:49] Speaker 02:
There was never a request for ... And he doesn't have to use any magic words here.

[00:26:54] Speaker 02:
The court was very understanding of the fact that Mr. Sweet was pro se.

[00:27:00] Speaker 02:
At various points, the court said, take your time.

[00:27:02] Speaker 02:
I want to hear what you have to say.

[00:27:04] Speaker 02:
anything you want to raise before we start back up again.

[00:27:07] Speaker 02:
And at several points, he did raise things that, you know, I didn't get notice of this, I didn't get discovery on this, nothing on the lewd molestation except the word objection.

[00:27:17] Speaker 02:
And under Hernandez Rodriguez, that is not the court, the suesponte, explicitly raising anything with regard to the sufficiency of the indictment.

[00:27:28] Speaker 05:
So for all those reasons, you've got to- Council, before you say that, can I ask you about the third issue, the plein air argument?

[00:27:34] Speaker 05:
Yes.

[00:27:36] Speaker 05:
Does the government make any concessions as to whether or not the closing argument was plain or error that was plain and is resting your arguments on the third and fourth prongs?

[00:27:46] Speaker 02:
No.

[00:27:47] Speaker 02:
We'd also argue that it was not plain error.

[00:27:51] Speaker 02:
It certainly didn't affect Mr. Sweet's substantial rights.

[00:27:54] Speaker 02:
But there's nothing erroneous about pointing out that the defense was engaged in blaming of the victim.

[00:28:02] Speaker 02:
That's what Mr. Sweet was doing through a lot of his cross-examination questions, very vivid details that he was asking the victim to recall about sex acts, both consensual and non-consensual, and details.

[00:28:17] Speaker 02:
And there's nothing wrong about pointing that out.

[00:28:20] Speaker 02:
There's nothing wrong about making reasonable inferences based on the evidence, including those Facebook and Instagram posts that showed that Mr. Sweet had a demonstrated history with

[00:28:31] Speaker 05:
underage girls.

[00:28:33] Speaker 05:
Was she the only witness that he cross-examined at trial?

[00:28:36] Speaker 02:
Yes.

[00:28:37] Speaker 02:
Yes.

[00:28:37] Speaker 02:
Mr. Campbell cross-examined all the other witnesses.

[00:28:41] Speaker 02:
With that, the government would ask the court to affirm.

[00:28:59] Speaker 01:
I'm going to start with a few points on the first issue and then just touch on the plain error, prosecutable conduct.

[00:29:04] Speaker 01:
So as I understand, kind of the thrust of the government's argument just now is that they're trying to walk back this concession.

[00:29:10] Speaker 01:
They make a trial.

[00:29:11] Speaker 01:
The Mr. Sweet has no notice of a basic theory of prosecution.

[00:29:16] Speaker 01:
And that is because my client appears to have a litigious nature that's just not relevant to this inquiry.

[00:29:22] Speaker 03:
Slow down just a little bit.

[00:29:23] Speaker 01:
My apologies.

[00:29:24] Speaker 01:
So none of the things the government suggests that Mr. Swee could have done after the harm had already occurred in this case bear on the question of whether there's harm.

[00:29:35] Speaker 01:
Okay, he could have objected another time.

[00:29:37] Speaker 01:
The government's already said.

[00:29:39] Speaker 01:
He's surprised.

[00:29:40] Speaker 01:
We haven't told him about this theory of prosecution.

[00:29:43] Speaker 01:
The court's aware of it.

[00:29:44] Speaker 01:
We don't need the defendant to repeat what the court has already asked the government about and what the government has responded to.

[00:29:49] Speaker 01:
There's no basis in law for this idea that because the client is particularly litigious, then has to continue to be extremely forceful after we already know that an error was put before the judge, and the judge has ruled on it.

[00:30:03] Speaker 01:
And again, it's not about how clear Mr. Sweet's objection was at trial.

[00:30:08] Speaker 01:
He says, objection, and immediately the district court starts talking.

[00:30:11] Speaker 01:
The question that we're asking here is, was the substance of this wrong?

[00:30:16] Speaker 01:
But before the district court in some way, sui sponte or by a litigant, did the district court appreciate that there was a surprise theory thrown upon Mr. Sweet at trial because the indictment was pled very broadly?

[00:30:29] Speaker 01:
Of course it did.

[00:30:30] Speaker 01:
We see that in the colloquy with the government.

[00:30:33] Speaker 01:
It's not about what Mr. Sweet does under the Cremia de la Grega doctrine.

[00:30:37] Speaker 01:
It's does the court know that this is an issue and does it rule on it?

[00:30:42] Speaker 01:
And the answer here is yes.

[00:30:44] Speaker 01:
With respect to harm, I think the government just said we don't know for sure what the jury convicted him under.

[00:30:49] Speaker 01:
Well, that's not harmlessness beyond a reasonable doubt.

[00:30:52] Speaker 01:
They need to prove that this loom molestation theory did not contribute to the verdict and they can't do that here.

[00:30:59] Speaker 01:
Because there was specific evidence of his persuasion,

[00:31:02] Speaker 01:
for the living molestation theory that we don't see for any of the other accounts.

[00:31:06] Speaker 01:
I want to correct the record a little bit because there's no indication that these videos were made when she was 15.

[00:31:13] Speaker 01:
There's a year of conversation that happens between Mr. Sweet and MLC where she's turning 16 over the course of that conversation and the photographs start out as sexually related.

[00:31:26] Speaker 01:
The only child pornography that's before the

[00:31:29] Speaker 01:
Jury occurs in September 2020, November 2020, and July 2021.

[00:31:33] Speaker 01:
So from an attempt, enticement perspective, I don't think that the government can show harmlessness if I might address the possible total misconduct.

[00:31:45] Speaker 01:
I understand the government here to be saying that because these questions were really sensitive and they were about sexual topics, that that was an inappropriate type of cross-examination and maybe that would be true if this case were about a robbery offense, but it's about very uncomfortable sexual activity and Mr. Sweet is exercising his right

[00:32:06] Speaker 01:
to cross-examine the primary factual witness that the government puts forward and he does so by asking details about the facts of this case.

[00:32:14] Speaker 01:
And I don't think that that's any different than saying it was wrong for you to exercise your right to cross-examination in this case.

[00:32:22] Speaker 01:
In terms of the Facebook posts,

[00:32:24] Speaker 01:
These do not show that the government did not distort the evidence in closing arguments.

[00:32:29] Speaker 01:
The Facebook posts were not dated.

[00:32:31] Speaker 01:
They don't say he has a history with multiple different 16-year-olds, and they could easily have been understood by the jury to be about MSD.

[00:32:38] Speaker 01:
Thank you.

[00:32:40] Speaker 04:
Thank you, counsel, for excellent arguments.

[00:32:44] Speaker 04:
The case is submitted.

[00:32:45] Speaker 04:
Counselor, excuse and we will stand in recess for 10 minutes or so.