[00:00:08] Speaker 03: Next case this morning is 24-1480, United States versus Meyer or Meir. [00:00:17] Speaker 03: I'm not sure exactly which one defense counsel will educate me. [00:00:22] Speaker 03: Defense counsel, please make your appearance and proceed. [00:00:25] Speaker 00: Thank you, your honor. [00:00:26] Speaker 00: May it please the court and counsel. [00:00:28] Speaker 00: My name is Shira Keval. [00:00:30] Speaker 00: I'm an assistant federal public defender in Denver and it's Christopher Meyer is my client. [00:00:34] Speaker 00: I'll endeavor to save one minute if I'm able to. [00:00:38] Speaker 00: At sentencing, the government successfully argued that Mr. Meyer produced the original child pornography videos that he later edited and posted online. [00:00:47] Speaker 00: But the government did more than that. [00:00:49] Speaker 00: It also convinced the district court that Mr. Meyer produced the videos by distributing images and videos of a girl their own age, stripping, having camp sex, and at least in one case, masturbating on camera in order to entice the teenage boys to masturbate on camera in return. [00:01:08] Speaker 00: Because the district court found these factual allegations to be true, it plainly should have applied the seven level enhancement at USSG 2G2.2B3E to each substantive count instead of the cross-reference to the production guideline. [00:01:24] Speaker 02: I'm sorry to interrupt you so quickly, but you said something that I think is really central and that is that your interpretation of what the district judge said was that he approved that. [00:01:42] Speaker 02: And I think you're relying on page 56 of the transcript. [00:01:46] Speaker 02: And so one of the challenges that I have is [00:01:52] Speaker 02: Do I think it is clear, especially since we're under plain error, that when the judge says—because the judge, of course, hasn't seen—I mean, nobody has seen these videos. [00:02:04] Speaker 02: The prosecution hasn't, the law enforcement hasn't, and the judge certainly hasn't. [00:02:08] Speaker 02: And so I don't have page 56 in front of me, but my memory is that the judge says, well, the accounts by the boys and the accounts by Mr. Meyer are all consistent with the fact that the boys had been furnished either a video or a picture of girls. [00:02:34] Speaker 02: And so I think there's a couple of problems with that. [00:02:38] Speaker 02: You know, it's not a trigger for the seven-level enhancement, you know, to send pictures of attractive, you know, 13-year-old girls. [00:02:49] Speaker 02: And it's really not even a trigger if they were nude or in a state of undress. [00:02:57] Speaker 02: It's pretty specific. [00:02:59] Speaker 02: You know, they have to either be masturbating or lascivously exposing their genitalia. [00:03:06] Speaker 02: And, uh, and I know you mentioned that, you know, you think that one of the camera, I think it's count four that, that the girl was masturbating. [00:03:13] Speaker 02: I don't know that the judge ever said, or the, or the boy ever said that the, that the girl was actually masturbating on camera. [00:03:20] Speaker 02: I think he said that we're, that we were mutually masturbating. [00:03:23] Speaker 02: We don't know if the girl was doing that live on camera or, or. [00:03:29] Speaker 02: or simulating it, talking about it through a black screen. [00:03:34] Speaker 02: So, but any event, the key question that I'm trying to ask is on 56, does your argument all stem that we have to embrace your interpretation of rule of page 56 as a specific judicial finding that these, that Mr. Meyer had distributed these, at least one in relevant conduct of these girls [00:03:57] Speaker 02: in it that had lasciviously exposed their genitalia or were actively engaging in the in the act of masturbation in order to find plein air. [00:04:09] Speaker 00: Your honor, I think that that's an important factual finding. [00:04:12] Speaker 00: But I also think that my argument depends on at least one more factual finding, or at least an explanation of the factual findings. [00:04:19] Speaker 00: And I recognize that it's a bit of a complex argument, if you could bear with me. [00:04:23] Speaker 00: On page 57, the district goes on to say the court will also incorporate into its findings the factual statements set forth in the pre-sentence investigation report and in the government's briefing on this issue. [00:04:36] Speaker 00: So I think that if the district court had not made that final statement, I'd be in a much, much worse position. [00:04:41] Speaker 00: But it does. [00:04:43] Speaker 00: So, you know, what happened below is there was, you know, everyone agreed what the evidence was, but there was a disagreement. [00:04:49] Speaker 03: But does the PSR make the specific finding that Judge Bacharach is talking about? [00:04:54] Speaker 03: I don't recall it doing so. [00:04:56] Speaker 03: And I mean, as you pointed out right then, if you then referencing the PSR is not going to solve the problem, is it? [00:05:03] Speaker 00: So it's a combination of the PSR and the government's factual allegation. [00:05:08] Speaker 00: And I understand [00:05:10] Speaker 00: I understand the question if I could have just a moment to answer it. [00:05:14] Speaker 00: What's really important here is, is what the argument was making that was being made and what was being resolved. [00:05:20] Speaker 00: And if you look specifically, you know, the defense made a number of arguments, basically, you know, the government says, look, Mr. Meyer says he produced all of these and the defenses responses. [00:05:29] Speaker 00: Okay. [00:05:29] Speaker 00: He says stuff, but what he says, who knows if it's real. [00:05:32] Speaker 00: And then it says, and even with some of the counts, he gives lots of specific details, but there's some counts where he doesn't say really anything at all, other than this is original content. [00:05:39] Speaker 00: So for example, count five. [00:05:42] Speaker 00: And the government's response is to say, Mr. Myers, you know, he doesn't say details there, but the victims give details. [00:05:51] Speaker 00: And the victims details correspond with details he's given for other counts. [00:05:56] Speaker 00: And when you look at his statements and the details there and the victims statements and the details there, you can see there's this consistent modus operandi and you can presume based on his production of the more detailed videos that he produced the other ones as well. [00:06:14] Speaker 00: That argument was accepted by the district court and it only works if what the victims are saying is true. [00:06:21] Speaker 00: If the victims are not giving true statements, then who cares if there's a correlation between what Mr. Meyer says and what the victims say. [00:06:29] Speaker 00: So the finding... Go ahead. [00:06:33] Speaker 00: the finding that the factual allegations, that we are adopting the factual allegations in the government's brief. [00:06:40] Speaker 00: And then it goes on, it gives a lot of explanations. [00:06:42] Speaker 00: If you look at page 54 and page 56 of volume three, many of the statements obtained from the victims contain details that match with what Mr. Meyer is representing. [00:06:52] Speaker 00: Many of the statements again are detailed and then align with the independent statements of the victims themselves. [00:06:57] Speaker 00: The victim accounts are consistent with one another and consistent with Mr. Meyer's online representation [00:07:03] Speaker 00: that he enticed minor boys to perform sexually using images or videos of a girl. [00:07:07] Speaker 00: And indeed it appears that this is exactly what he did. [00:07:10] Speaker 03: But it's not enough that they're a girl. [00:07:12] Speaker 03: I mean, to Judge Baccarat's point, it's not enough that they're a girl. [00:07:15] Speaker 03: There has to be child pornography for your argument to work. [00:07:19] Speaker 03: And frankly, as I sit here and I'm following the steps of your argument, we're under clear and obvious error here. [00:07:26] Speaker 03: I mean, your argument has so many steps to it. [00:07:28] Speaker 03: How in the world do you make... I mean, it seems to me that's undercutting the view that would have been clear or obvious to the district court that this application applied. [00:07:38] Speaker 03: I'm struggling to understand that. [00:07:40] Speaker 00: Um, so I think there's that's a two part question you're asking about where's the sexually explicit conduct on video and then how is this clear obvious and I'll start with the second one, you know, the government doesn't make that argument doesn't say there's too many steps here the government. [00:07:55] Speaker 00: If that's not what I believed I was coming to respond to but I'm happy well the government said it's not clear obvious error. [00:08:03] Speaker 03: And so, so that's good enough. [00:08:05] Speaker 03: Let's go. [00:08:08] Speaker 00: I think this court's decision in Cantu shows that it can be a really big multi-step process. [00:08:15] Speaker 00: Cantu is like, well, nobody asked the court to go look at Oklahoma's schedules and compare them to the federal schedules and look at Oklahoma state law that explains how the statute is or is not divisible. [00:08:28] Speaker 00: And that doesn't matter when it comes to plain error, as long as all of the steps are plain. [00:08:34] Speaker 03: That's a legal argument. [00:08:35] Speaker 03: We're talking about going back to Judge Bacharach's point, there's nowhere in the record where the district court says, these are minors. [00:08:42] Speaker 03: Okay, they talk about girls, you know, but bait girls, all that, but nowhere does it says they're minors, nowhere that the district court expressly say that they were engaged in these explicit sexual acts that the statute speaks to. [00:08:56] Speaker 03: And so it's one thing to be talking about, you need legal steps. [00:08:59] Speaker 00: to do something it's another thing to say is there a factual finding that you can hang your hat on unless I'm missing something tell me if I'm wrong there is no explicit factual finding here there's no statement out loud from the district court judge that these are minors or that they're engaged in sexually explicit conduct on video I agree with that but I will explain why that finding nonetheless is clear in the record the government says [00:09:28] Speaker 00: in its brief that Mr. Meyer had a consistent modus operandi throughout his sexual exploitation. [00:09:37] Speaker 00: That's volume one, page 50 to 51. [00:09:40] Speaker 00: It says he posed as a young girl, young girl, to talk to minor boys online and encourage and entice them to disrobe and masturbate for the camera. [00:09:48] Speaker 00: That's the consistent modus operandi. [00:09:49] Speaker 00: That's R1 175. [00:09:52] Speaker 00: And it says he repeatedly uses the word girl in his posts. [00:09:56] Speaker 00: And you can infer from all of this modus operandi that he's referring to streaming a video of a girl the same age as his victim in order to induce the victim to disrobe and masturbate. [00:10:08] Speaker 00: That's R1 192. [00:10:10] Speaker 00: So when the district court says the factual allegations in the government's brief, I'm adopting those. [00:10:15] Speaker 00: Those are my factual findings. [00:10:17] Speaker 00: There is a minor girl. [00:10:20] Speaker 00: The government's language in its answer brief about female and women, it did not use that language below. [00:10:26] Speaker 00: It used the word girl consistently. [00:10:29] Speaker 00: It's also explicitly used the word young girl and the same age as his victim. [00:10:33] Speaker 03: so there and and that language context matters and when the when the when that's why we're at play plain error here because when this whole conversation was taking place it was related to production it had nothing to do with this application and so when when one can be more precise when you know that there are consequences to being precise and so the fact that the government is throwing around the word girl and the fact that we're talking about that it may have been the same age as the as the [00:11:02] Speaker 03: as the victims, the individual, the boys who are masturbating, that's a lot to infer. [00:11:09] Speaker 03: And that's a lot for us to say that the court clearly and obviously erred. [00:11:13] Speaker 03: If everybody is looking at A, here's the hand, look at A, and then we're now talking about B and trying to transplant language that went on in the context of an argument about A into B, that's hard. [00:11:28] Speaker 03: And let me just ask a legal question. [00:11:31] Speaker 03: After the Supreme Court in its Davis case said that you could have factual disputes as it relates to plain error, which our case law had for a long time held, that was not true. [00:11:46] Speaker 03: Okay, well, since then, are you aware of any case by us where we've interpreted what that plain error standard looks like post Davis? [00:11:57] Speaker 00: And Your Honor, I want to make clear I'm not making a plain factual error argument. [00:12:01] Speaker 00: A plain factual error argument would be an argument that the evidence compelled a certain finding. [00:12:08] Speaker 00: plainly compel the finding. [00:12:10] Speaker 00: I'm saying the finding happened. [00:12:12] Speaker 00: And because of the finding happened, there was plain legal error and a failure to apply the enhancement. [00:12:17] Speaker 00: I'm saying if the finding happened, then there's no factual error. [00:12:21] Speaker 03: Okay, so you're saying that if we look in this record, there is a, you're saying it's not explicit, but there is a finding by the district court that not only was it a minor, but that minor was engaging in conduct that was covered by the statute. [00:12:37] Speaker 03: That's what you're telling me. [00:12:39] Speaker 03: And because that is true, that it was a legal error by the court not to apply what would have been the natural implication of those factual findings. [00:12:53] Speaker 00: Correct, Your Honor. [00:12:53] Speaker 00: That is my argument. [00:12:55] Speaker 00: And so that last bit, I haven't had a chance to explain. [00:12:58] Speaker 00: Where is that factual finding of sexually explicit conduct on video? [00:13:05] Speaker 00: It is a detail that is given by one of the minors. [00:13:08] Speaker 00: who is part of the relevant conduct page are to 65 to 66 and the minor victim recalls mutually masturbating on camera. [00:13:20] Speaker 00: So doesn't say masturbating in the chat talked about masturbating says mutually masturbating on camera that [00:13:27] Speaker 00: That has one meaning. [00:13:29] Speaker 00: That means you are masturbating on camera. [00:13:31] Speaker 00: No, it doesn't. [00:13:32] Speaker 03: As to Judge Bacharach's point, you could have had this flip down and there could have been no visual at all, or it could have been entirely simulated. [00:13:45] Speaker 03: I mean, we were mutually masturbating on camera. [00:13:48] Speaker 03: Well, it could have been, you know, the simulated masturbation. [00:13:53] Speaker 03: I just don't read it as having one meaning, and it needs to have one meaning, does it not, for your argument to work? [00:14:00] Speaker 00: Yes, Your Honor, it needs to have one meaning. [00:14:02] Speaker 00: But on camera is not the same thing as we mutually masturbated. [00:14:07] Speaker 00: I chatted with girls while I was masturbating. [00:14:09] Speaker 00: We masturbated together. [00:14:11] Speaker 00: It doesn't say that. [00:14:11] Speaker 00: It says mutually masturbating on camera. [00:14:14] Speaker 00: And so if it is stim simulated, but it's on camera, if it's actually happening, but if it's on camera, that meets the definition of child pornography because it's happening on camera. [00:14:27] Speaker 03: Simulated meets the definition. [00:14:29] Speaker 00: If it's on camera, then it does. [00:14:31] Speaker 00: If it's on camera, if it's off screen, I agree with you that it doesn't. [00:14:35] Speaker 00: I agree with the government, but if it is on camera, it's on camera. [00:14:39] Speaker 02: And that's for the Baker roll, right? [00:14:43] Speaker 02: Excuse me? [00:14:44] Speaker 02: I didn't mean to interrupt you. [00:14:45] Speaker 02: I'm sorry. [00:14:46] Speaker 02: I just didn't hear the question. [00:14:48] Speaker 02: What you're talking about is it has to be on camera for the bait girl as well as the boy. [00:14:53] Speaker 00: Correct. [00:14:54] Speaker 00: And that's what mutually masturbating is. [00:14:56] Speaker 00: This is a really, really specific statement from a victim. [00:15:00] Speaker 00: And the government is relying on the truth of the details. [00:15:05] Speaker 00: And I understand they're making a different argument, but their argument is that the modus operandi is specific enough that you can infer from one production that he produced the other. [00:15:14] Speaker 00: That's the government's argument below. [00:15:16] Speaker 00: So even though it's a different argument, the sub argument, the basis of the government's argument is that these details are true. [00:15:23] Speaker 00: These victims are telling the truth. [00:15:25] Speaker 00: Their details are important. [00:15:26] Speaker 00: This is just not what every capper does of just trying to convince a kid to masturbate using a bait girl. [00:15:34] Speaker 00: This is really specific. [00:15:36] Speaker 00: And I see I'm out of time. [00:15:38] Speaker 02: Chief, can I ask one question? [00:15:40] Speaker 02: Of course. [00:15:40] Speaker 02: I'm sorry to do this again. [00:15:45] Speaker 02: First of all, remind me which of the counts this is. [00:15:52] Speaker 02: It's not count six. [00:15:54] Speaker 00: It's relevant conduct. [00:15:56] Speaker 02: No, I know that. [00:15:59] Speaker 02: So what you're talking about, the mutual masturbation on camera, which boy refer to that? [00:16:06] Speaker 00: It is a victim who is not a victim of one of the substantive counts. [00:16:11] Speaker 02: So first of all, did you make this argument? [00:16:16] Speaker 02: I remember you making an argument about count six. [00:16:22] Speaker 02: the, uh, having sex with, uh, cam sex with my girl. [00:16:27] Speaker 02: And you use that as relevant conduct. [00:16:29] Speaker 02: I don't remember you using mutual masturbation on camera as relevant conduct to say that that was going to be interjected for all six of these counts. [00:16:40] Speaker 00: And you, your honor, I made a mistake in the opening brief and I thought that I had three statements from the same victim. [00:16:46] Speaker 00: And I clarified that in the reply brief that actually I had three separate statements. [00:16:50] Speaker 00: And I do focus on this in particular in the reply brief. [00:16:54] Speaker 00: And it's also one of the statements that the government. [00:16:57] Speaker 00: It's in one of their footnotes in their answer brief. [00:16:59] Speaker 00: So they were perfectly aware of this statement. [00:17:01] Speaker 00: They have different reasons. [00:17:02] Speaker 00: They thought it should be disregarded. [00:17:03] Speaker 03: Well, well, you go ahead. [00:17:05] Speaker 03: Judge back. [00:17:06] Speaker 02: I'm sorry. [00:17:07] Speaker 02: No, I apologize. [00:17:11] Speaker 03: You go ahead, G. Look, their awareness of our statement doesn't make an argument. [00:17:18] Speaker 03: I mean, if the first time you put this is in a reply brief and make an argument about it, that's a problem. [00:17:24] Speaker 03: I mean, the fact that they knew the statement existed doesn't make... And your whole argument here today is predicated on this statement. [00:17:34] Speaker 03: and yet you didn't put it in your opening brief. [00:17:38] Speaker 03: And so why is it this whole thing weighed? [00:17:40] Speaker 03: I mean, the government hasn't had a chance to respond to it except for now. [00:17:45] Speaker 00: And, Your Honor, we made a broader argument in the opening brief that I think incorporated this, which was that a bunch of the different statements and victims were describing sexually explicit conduct. [00:17:56] Speaker 00: And in particular, I mentioned the victim of Count Six and referred to these pages in the pre-sentence report [00:18:03] Speaker 00: And talked about how him saying cam sex with his girl correlated with that victim same user it masturbating with excuse me not mutually corresponded with the victim saying masturbating with attractive girls. [00:18:14] Speaker 00: I recognize that I did not use the specific quotation in the opening brief. [00:18:19] Speaker 00: I do not think it is waived. [00:18:21] Speaker 00: I think I have made it. [00:18:22] Speaker 00: I think the government has adequate opportunity to respond to it now. [00:18:25] Speaker 03: Now it's not good enough. [00:18:27] Speaker 03: It's never been good enough. [00:18:28] Speaker 03: I mean, under our case law, that's not good enough. [00:18:31] Speaker 03: And the reality is the argument you talked about as it relates to Count 6 did not have that explicit sexual activity. [00:18:38] Speaker 03: that you're now saying is so apparent in this relevant conduct that was in your footnote, I mean that is now in your reply brief, right? [00:18:47] Speaker 03: Council didn't have that. [00:18:48] Speaker 00: Again, Your Honor, I made a broader argument and the government says, hmm, that's not good enough. [00:18:54] Speaker 00: And so now I've narrowed it down. [00:18:56] Speaker 03: And you've narrowed it down in your reply brief. [00:18:58] Speaker 00: And I'm allowed to narrow an argument. [00:19:01] Speaker 00: I'm not allowed to bring up a new argument. [00:19:03] Speaker 00: I am allowed to narrow an argument. [00:19:04] Speaker 00: And that is what I did in the reply brief. [00:19:06] Speaker 00: And I'm certainly focusing on that narrower argument now because I think it's much more persuasive. [00:19:11] Speaker 00: And that's why I'm doing it at oral argument. [00:19:13] Speaker 00: It is not waived. [00:19:16] Speaker 03: I hear you. [00:19:17] Speaker 03: Do you want to say something, Judge Baccarat? [00:19:19] Speaker 02: Well, I hate to bombard counsel, but I do want to ask one follow-up question. [00:19:27] Speaker 02: I just think it would be helpful if you don't mind. [00:19:32] Speaker 02: So let's say, in one of the other allegations, [00:19:40] Speaker 02: that one of the boys, you know, says just that, that we mutually masturbated. [00:19:48] Speaker 02: And now I want to go back to sort of where we started in the first 10 seconds of the argument. [00:19:54] Speaker 02: And that is the argument that, well, [00:20:01] Speaker 02: interconnected with your overarching argument that, well, it's relevant conduct. [00:20:08] Speaker 02: And so in order to trigger the enhancement for each of these six counts, the conduct has to be relevant to each one of these counts. [00:20:21] Speaker 02: And so let's say we take counts one and two. [00:20:24] Speaker 02: Well, these boys were saying that they were talking to a black screen. [00:20:28] Speaker 02: Most of the boys [00:20:29] Speaker 02: of the, I guess of the, you know, seven boys in count three, the five boys in counts one, two, four, five and six. [00:20:45] Speaker 02: Most of those, [00:20:47] Speaker 02: Well, none of those, in my recollection, involved mutual masturbation on camera. [00:20:53] Speaker 02: Most of them involved a black screen. [00:20:56] Speaker 02: And so if you're hanging your hat for relevant conduct on page 56, and as the linchpin to say, well, this was a modus operandi, this is relevant conduct for each of the boys, [00:21:15] Speaker 02: How can you do that factually if what you're hanging your hat on is none of the six boy victims and it's something that doesn't even arguably [00:21:31] Speaker 02: apply to any of the seven victims on count three, the other victims on counts one, two, four, five, and six. [00:21:41] Speaker 02: So, page 56 doesn't say that. [00:21:44] Speaker 02: I mean, page 56, as I think you candidly acknowledged, I believe, and that is, you just talked about the consistency of the accounts that he furnished [00:21:54] Speaker 02: you know, videos or a picture of a girl. [00:21:58] Speaker 02: But now for the relevant conduct, it's not that, it's this very specific mutual masturbation on camera. [00:22:05] Speaker 02: How can that be relevant conduct for the six counts? [00:22:11] Speaker 00: It is plain under this course case law that relevant conduct for 2G2.2 is the entire course of conduct charged and uncharged. [00:22:20] Speaker 00: I have the case site in my opening brief. [00:22:22] Speaker 00: The government does not argue that that's wrong. [00:22:25] Speaker 00: And I don't think it could. [00:22:26] Speaker 00: I think it's an unusual case because there's more than one distribution count. [00:22:32] Speaker 00: But if the district, if the government's argument below had basically been like everything in the PSR is relevant conduct and the district court had disagreed, the government could have appealed and it a hundred percent would have won. [00:22:44] Speaker 00: There's no question that this was an entire course of conduct. [00:22:50] Speaker 00: that's relevant conduct here. [00:22:51] Speaker 00: Certainly we have the finding that he's operating with a single modus operandi. [00:22:56] Speaker 00: We have the overarching conspiracy, which is not limited to this tour network. [00:23:01] Speaker 00: It's all of his activity doing this capping and posting. [00:23:06] Speaker 00: I don't think there's any way to view the record otherwise. [00:23:09] Speaker 00: And the government's only argument about why maybe that wouldn't be true is this very, very bizarre waiver invited error argument that doesn't work because I'm not challenging [00:23:20] Speaker 00: some successful argument that I made that caused the district court to make an incorrect ruling that now I'm trying to undermine on appeal. [00:23:27] Speaker 00: So they have absolutely no argument why this isn't all relevant conduct. [00:23:32] Speaker 00: I believe that's your question. [00:23:34] Speaker 02: You fully answered it in a very informative way. [00:23:38] Speaker 02: Thank you, counsel. [00:23:39] Speaker 02: Thank you, chief. [00:23:40] Speaker 01: I have one clarification just to when you're speaking of the in reference to count six and the argument in the reply brief about the [00:23:49] Speaker 01: the mutual, the mutual masturbation. [00:23:54] Speaker 01: What is that distinct from the, um, count six where there's a comment, and I don't remember if this is his comment, the defendant's comment, but he had a girl with whom the victim engaged in cam sex. [00:24:09] Speaker 00: So count six, Mr. Meyer described cam sex with his girl. [00:24:14] Speaker 00: This is his own description. [00:24:15] Speaker 00: That's count six. [00:24:16] Speaker 00: That's his own statement. [00:24:18] Speaker 00: So this mutually masturbating on camera is not a child who is part of counts two through six. [00:24:27] Speaker 00: I think it's a child who's probably count one, certainly relevant conduct. [00:24:31] Speaker 00: The other comments are really important. [00:24:35] Speaker 01: I'm just asking, is that cam sex? [00:24:36] Speaker 01: Are you relying on that particular comment from him? [00:24:40] Speaker 00: I think cam sex with my girl is sufficient. [00:24:43] Speaker 00: I think masturbating with attractive girls is pretty close, but I think that what pushes it over the top is mutually masturbating on camera. [00:24:52] Speaker 00: And with that one, that's enough. [00:24:57] Speaker 01: Thank you. [00:25:00] Speaker 03: Thank you, counsel. [00:25:02] Speaker 03: Let's hear from the government. [00:25:08] Speaker 04: Thank you, your honor. [00:25:09] Speaker 04: May it please the court, Kyle Brenton on behalf of the United States. [00:25:14] Speaker 04: I think the court's questioning has helpfully focused what Mr. Meyer is actually arguing. [00:25:22] Speaker 04: And I think we've kind of arrived at the point where the crux of his argument is that the district court actually made a factual finding by implication that no one asked it to make. [00:25:36] Speaker 04: And that, in fact, requires two, at least two, very specific underlying factual predicates to be met. [00:25:46] Speaker 04: Number one, that this bait girl content displayed a minor, so a girl under the age of 18. [00:25:54] Speaker 04: And number two, that the conduct that was depicted in those videos [00:26:00] Speaker 04: meets the definition of sexual exploitation of a minor, which is to say intercourse, masturbation, lascivious exhibition of the genitals. [00:26:08] Speaker 04: And that the district court somehow made this finding of both age and conduct as to at least one victim, and that then that can be generalized across every victim, even where the evidence as to most of the victims, as Judge Backrack noted, [00:26:28] Speaker 04: is directly counter to those factual findings. [00:26:33] Speaker 04: I think while I admire the ingenuity of the guidelines argument here, I think we are well a field of a conclusion that the district court committed plain error in failing to make this factual finding that no one asked it to make. [00:26:49] Speaker 04: I'd like to address first the evidence itself and [00:26:54] Speaker 04: touch on count three and then address the relevant conduct argument. [00:26:58] Speaker 04: Of course, I'm happy to answer any questions the court has. [00:27:01] Speaker 04: I think when we're talking about the evidence, I think it's helpful to keep in mind there are really only two repositories of actual factual information about this conduct and this content. [00:27:16] Speaker 04: Obviously, we've had a lot of talk about what the district court said, what the government said, anything the government or the district court or the PSR said [00:27:24] Speaker 04: ultimately had to derive from these repositories of actual factual information. [00:27:29] Speaker 04: And as the Court noted, the only people who know what was in this content are the victims, all of whom were only interviewed years later, barely remembered it in only the Vegas terms, many of whom declined to even speak with investigators, and Meyer himself, [00:27:47] Speaker 04: who of course never was willing to decrypt his own devices in a way that would have allowed the government and the court to actually view this information. [00:27:55] Speaker 04: So in light of that, we have to really look to the statements of the victims in the interviews and Meyer's statements in his marketing copy on his website about these videos to see whether as to any victim there is sufficient [00:28:17] Speaker 04: information defined by a preponderance that the bait girl was a minor and that it showed the content that is sexual exploitation. [00:28:25] Speaker 03: Let me pause you there for a second. [00:28:27] Speaker 03: If the government had put a certain cast or spin on the facts that were in the PSR or the facts that Mr. Meyer offered, in other words, specifically focusing on this question of modus operandi, [00:28:44] Speaker 03: I understood defense counsel in part to be referring to the government statements before the trial court. [00:28:51] Speaker 03: Well, if the government puts a certain spin on PSR facts, and I don't mean that in a derogatory sense, I mean that in just an interpretation or an inference of what those facts suggest, and then the district court says, oh yeah, I agree with that, and then says, that's my finding. [00:29:11] Speaker 03: Even if we could [00:29:12] Speaker 03: Sitting here now, second guess whether the facts actually are in the PSR are actually to that effect. [00:29:22] Speaker 03: Does that really undercut the fact that the district court, when it made its finding, understood them to mean that based upon the government's statements? [00:29:32] Speaker 03: In other words, what I'm getting at is it seems to me that the government's statements are not entirely relevant. [00:29:38] Speaker 03: You talked about two repositories of facts. [00:29:40] Speaker 03: Yes, true, hard historical facts. [00:29:43] Speaker 03: But if there are inferences to be drawn from those facts and the district court relied on certain inferences that the government made from those facts, why isn't that the world that we're stuck with here? [00:29:57] Speaker 04: Well, Your Honor, I certainly agree with you in the abstract that what you've described in terms of the government's putting an inference or characterization on facts in the PSR, the district court accepting that. [00:30:12] Speaker 04: In some cases, I think that may be true. [00:30:14] Speaker 04: But I think that as you pointed out in questioning my opponent, context matters. [00:30:19] Speaker 04: You know, the state that the spin that whatever and I will I will also use that word in a non pejorative sense. [00:30:27] Speaker 04: But the spin that the government was placing on these facts in their argument was not directed in any way, shape or form. [00:30:36] Speaker 04: to whether this content that nobody ever saw actually met the definition of sexual exploitation of a minor, nor was the district court's comments in adopting those whatever the spin may have been. [00:30:50] Speaker 04: All of that discussion [00:30:52] Speaker 04: went to an entirely different question, which was the question of whether it is reasonable to infer that Meyer was the creator of this content. [00:31:02] Speaker 04: Every single finding inference spin, however you want to put it, goes to that question. [00:31:09] Speaker 04: And that is a very different question from the very specific and frankly crucial question of whether material constitutes [00:31:18] Speaker 04: sexual exploitation of a minor. [00:31:20] Speaker 04: If this issue had been raised, if even the ghost of this issue had been raised, all of that discussion would have looked very different. [00:31:30] Speaker 04: Because it certainly never entered anyone in the government's mind, it never entered the defense's mind, it never entered the district court's mind. [00:31:36] Speaker 04: whether any of this would ever be read in the way that Meyer now suggested should be read in terms of making findings about what this conduct was. [00:31:47] Speaker 02: Mr. Bradley, can I probe you a little bit about that? [00:31:52] Speaker 02: The judge certainly has an obligation, irrespective of what the probation officer says, irrespective of what counsel says, to determine what is the appropriate level of enhancement. [00:32:04] Speaker 02: Is it a five level or is it a seven level? [00:32:06] Speaker 02: And if the judge says hypothetically that, well, the pre-sentence report says that one of the boys was mutually masturbating with a girl on camera and the judge says, well, I'm adopting that. [00:32:22] Speaker 02: Well, maybe the judge shouldn't have done that, but the judge is, and maybe the judge made a mistake in doing that. [00:32:33] Speaker 02: We don't lightly say, well, a judge's factual finding we're going to disregard because he didn't really pay enough attention to it. [00:32:43] Speaker 02: The judge made a finding, hypothetically, and then you go to the guidelines and then it's just a pure legal issue. [00:32:52] Speaker 02: As defense counsel says, the judge has to apply the enhancement under B3 that has the greatest [00:33:00] Speaker 02: you know, level of enhancement. [00:33:02] Speaker 02: And if those findings then would have translated into a level of enhancement, why does it matter if it was dicta or whether or not the judge didn't need to make a finding about the Bay girls? [00:33:12] Speaker 02: The judge did. [00:33:14] Speaker 02: make it. [00:33:15] Speaker 02: And so why isn't that a problem if the judge did adopt the pre-sentence report and the pre-sentence report does contain this information about the boy mutually masturbating on camera with this girl? [00:33:32] Speaker 04: Well, Your Honor, I want to, in answering that question, I mean, I want to take a step back. [00:33:36] Speaker 04: We absolutely do not concede that the pre-sentence report contains any information [00:33:41] Speaker 04: sufficient to conclude by a preponderance that any one victim, either on account or any victim mentioned who was not part of account, saw or was distributed bait girl conduct that meets both the requirements of age and conduct. [00:33:56] Speaker 04: Now, obviously, Chief Judge Holmes asked a lot of questions about waiver, about this particular victim report that Mr. Meyer appears to be almost entirely relying on, though it wasn't in his opening brief. [00:34:13] Speaker 04: I think the waiver point is well taken. [00:34:15] Speaker 04: I will go ahead and address that factually, because I think I have an obligation to, because I do not believe that that [00:34:22] Speaker 04: reports meets the standard of preponderance and I certainly don't believe that it plainly and obviously meets the standard of preponderance. [00:34:29] Speaker 04: So here we're talking about a victim who's identified in our brief with the identifier MVNI3. [00:34:37] Speaker 04: It's on pages 66 and 67 of the PSR. [00:34:41] Speaker 04: This victim was 11 or 12 years old at the time. [00:34:44] Speaker 04: He reported that he chatted with a girl who was quote older than him [00:34:51] Speaker 04: that they mutually masturbated. [00:34:53] Speaker 04: He said he never saw her face. [00:34:56] Speaker 04: And importantly, he also said that he engaged in this kind of conduct online at least two or three other times. [00:35:05] Speaker 04: And so he couldn't say for sure whether the instance that he was reporting was Mr. Meyer or not. [00:35:10] Speaker 04: So I think the problems with this report, and we can talk about each individual [00:35:15] Speaker 04: each victim individually, and I can show you why I don't believe they meet preponderance for this one. [00:35:19] Speaker 04: First of all, he hasn't said how old the girl is. [00:35:23] Speaker 04: He's only said that she's older than he is. [00:35:26] Speaker 04: Certainly, he's on the younger side. [00:35:27] Speaker 04: No question about that. [00:35:28] Speaker 04: But again, where the question is, by a preponderance, does this establish that the girl is a minor? [00:35:35] Speaker 04: The answer is no. [00:35:37] Speaker 04: The information that he never saw her face [00:35:41] Speaker 04: suggests that it's entirely possible, as Chief Judge Holmes suggested, that she may not have been on camera, that it could have been audio, it could have been, you know, he could have just been listening and watching a blank screen, as most of Meyer's other victims were. [00:35:56] Speaker 04: And the fact that he couldn't even be sure that this interaction was the basis, what was ultimately with Meyer and what gave rise to the particular video that was being shown to him, [00:36:09] Speaker 04: All of that undermines a showing by a preponderance, and it most certainly undermines them. [00:36:14] Speaker 04: I mean, that's a thin read for preponderance alone. [00:36:17] Speaker 04: It is far too light to sustain the weight of plain error. [00:36:22] Speaker 03: Let me understand. [00:36:24] Speaker 03: Go ahead. [00:36:24] Speaker 03: I'm sorry. [00:36:24] Speaker 03: Go ahead, Judge Moritz. [00:36:25] Speaker 01: Well, you suggested earlier that you were quite certain that if this had been raised as it should have been raised below, that this would have been a wholly different discussion. [00:36:37] Speaker 01: I push back on that in terms of just all of the government's argument on the MO issue seemed to indicate that they fully accepted these facts as the district court accepted them. [00:36:50] Speaker 01: Nobody was challenging age. [00:36:53] Speaker 01: Nobody was challenging these young victims. [00:36:56] Speaker 01: Nobody was challenging that there was sexually explicit conduct. [00:37:00] Speaker 01: And I don't know, you know, you can say that this is this particular [00:37:05] Speaker 01: Young man's testimony was indefinite on pages 66 and 67, but when he said we mutually masturbated, whether he could see your face or not, it's pretty clear what he's talking about. [00:37:16] Speaker 01: And the government certainly allowed the district court to adopt all these findings, seemed to have no concern about it. [00:37:23] Speaker 01: I question whether if someone would have questioned the victim's ages for whatever reason, if the government at that time would have had any concern about that. [00:37:35] Speaker 01: That's not the approach the government was taking. [00:37:38] Speaker 01: It allowed the district court to pull all of this into the record and the inferences that you can make from it, presumably, and didn't object to that. [00:37:52] Speaker 04: Well, the argument that the government was making was that Meyer was the producer of this material. [00:37:58] Speaker 04: That is the fundamental finding that the government was asking the court to make in order to apply the cross-reference [00:38:05] Speaker 04: of 2G2.2C, which then gives rise to all of the additional sentencing consequences that ensued in this case. [00:38:12] Speaker 01: But the government was also advocating for what he was doing, which was taking these young girls and having them engage in potentially sexually explicit conduct. [00:38:24] Speaker 01: The government didn't seem to question that at all, that that's what was happening. [00:38:28] Speaker 04: I want to push back. [00:38:30] Speaker 04: What he was doing was enticing young boys to perform. [00:38:33] Speaker 01: I'm sorry, but the use of the girls is what we're talking about here. [00:38:38] Speaker 01: The use of the girls and their actions is what we're talking about. [00:38:43] Speaker 01: And the government didn't push back at all on what we're now talking about. [00:38:48] Speaker 04: Because it wasn't at issue at all your honor because the question before the district court was did Meyer produce this content. [00:38:56] Speaker 04: And the answer to that, which the government advocated was yes but no one asked the question. [00:39:03] Speaker 04: Did the content sent to the boys, which is of course different from the content that he was convicted of distributing and ultimately found that he produced, was the content sent to the boys also child sexual exploitation? [00:39:20] Speaker 01: So it's okay for you to now say that on its face somehow, this appears to be, [00:39:29] Speaker 01: the comment about the mutual masturbation. [00:39:32] Speaker 01: We can't even accept it for what it said on its face when the district court accepted it. [00:39:37] Speaker 01: But you're now basically saying, oh, never mind that we said all of this could come in. [00:39:43] Speaker 01: What we allowed to come in isn't accurate. [00:39:46] Speaker 01: It's not truthful. [00:39:47] Speaker 01: It's ambiguous. [00:39:50] Speaker 04: Your Honor, we're not talking about, and we're making no argument about, the truthfulness of what these victims reported. [00:39:56] Speaker 04: Absolutely. [00:39:57] Speaker 04: The question is, what [00:39:59] Speaker 04: Finding what inferences does that support by a preponderance of the evidence and that is what we believe and on its face arguments. [00:40:08] Speaker 01: Do you need an inference when when this young boy said we mutually masturbated together on camera. [00:40:15] Speaker 01: What inference do you need there. [00:40:18] Speaker 04: You need the inference. [00:40:19] Speaker 04: First of all, [00:40:20] Speaker 04: that the girl that he was interacting with was under the age of 18, which is not there as to this victim. [00:40:27] Speaker 04: And you need to exclude the possibility that he was in fact talking to a blank black screen in light of all of the other evidence. [00:40:38] Speaker 04: Mr. Myers came up with his other victims. [00:40:40] Speaker 01: Your best argument is about the age, because we need to have the age and the sexually explicit conduct together in one victim, correct? [00:40:49] Speaker 01: That's correct, Your Honor. [00:40:50] Speaker 01: That's your best argument in terms of what you can say about this particular fact. [00:40:56] Speaker 01: What's not there is the age. [00:40:59] Speaker 04: I agree with Your Honor, and I also think [00:41:01] Speaker 04: As we've argued in the brief, it would be inappropriate, even if it was met as to this one victim, which it is not, to generalize that across every other victim by operation of relative conduct where the evidence shows that that was simply not the case. [00:41:15] Speaker 04: I see that I'm over my time. [00:41:16] Speaker 04: I'm happy to answer any other questions the court has. [00:41:19] Speaker 04: Otherwise, I would ask that the sentence be affirmed. [00:41:22] Speaker 03: I do have one question that I want to get clear in my mind. [00:41:26] Speaker 03: As I understand the argument, [00:41:30] Speaker 03: And I understand it better now that is being made by defense counsel. [00:41:34] Speaker 03: It turns on the fact that there was legal error. [00:41:37] Speaker 03: You get to that legal error by saying that that the court [00:41:43] Speaker 03: that the district court did make a finding based upon the record. [00:41:51] Speaker 03: And even if the finding was through the adoption of the PSR, the district court made a finding that essentially provided the predicates for the application of the enhancement. [00:42:03] Speaker 03: And so it was legal error, clear and obvious error not to apply it. [00:42:08] Speaker 03: Well, it's sort of a two-step process. [00:42:10] Speaker 03: And so what I'm trying to get clear on is [00:42:13] Speaker 03: At the first point, where it's saying, well, the district court based upon this PSR, the district court in effect made the finding. [00:42:24] Speaker 03: under plain error, are we saying that it would have been clearly erroneous for the district court not to make the finding, or it would have been clear or obvious error for the district court not to make that finding, and then clear or obvious error as it relates to the legal issue? [00:42:39] Speaker 03: I hope I'm being clear. [00:42:40] Speaker 03: What I'm trying to say is that there's an underlying factual thing that has to take place here, and how clear does the record have to be before we get to the legal determination? [00:42:52] Speaker 04: Well, I would suggest, Your Honor, it's the latter. [00:42:54] Speaker 04: I believe that in order for Mr. Meyer to prevail, he has to run the table on quite a number of issues. [00:43:00] Speaker 04: He has to first establish that the facts were such that it was clearly and obviously error for the court to not make the finding he wishes the court had made. [00:43:10] Speaker 04: I think if he clears that bar, then it has to be clear and obvious that his guidelines calculation argument that takes 15 pages of his brief to lay out [00:43:21] Speaker 04: and his interpretation of relevant conduct were also so clear and obvious that the district court erred in not walking down that garden path all on its own. [00:43:32] Speaker 04: So that's my responsibility. [00:43:33] Speaker 01: You don't take issue with that, do you? [00:43:35] Speaker 01: I didn't sense that you take any issue once you get past these facts, if we were to assume that these facts that the district court incorporated were sufficient [00:43:48] Speaker 01: For the enhanced seven level enhancement to apply, I didn't see you taking any issue with the rest of the process that Mr. Meyer went through in terms of what the court would also have went through. [00:44:05] Speaker 01: You didn't suggest it wasn't plain. [00:44:08] Speaker 01: My understanding is you're disputing their take on these facts or their inferences that they're making from these facts. [00:44:17] Speaker 04: We certainly have not disputed that had the B3E finding been made, the sort of arithmetical consequences of that would have been as the defendant suggests. [00:44:31] Speaker 04: But let me be really clear about what we are disputing. [00:44:33] Speaker 04: Number one, we're disputing whether it was plain error not to make the finding. [00:44:38] Speaker 04: Number two, we're disputing whether [00:44:41] Speaker 04: A finding as to one particular victim can be generalized to every single count and every single victim as relevant conduct. [00:44:51] Speaker 04: As we show, even if that's not true, even just as to count three, he cannot prevail. [00:44:58] Speaker 04: And number three, we are disputing prong three based on our Molina Martinez type argument. [00:45:04] Speaker 04: So those are the points where we are disputing Mr. Meyer's arguments. [00:45:09] Speaker 03: Okay. [00:45:10] Speaker 01: Thank you. [00:45:11] Speaker 03: Anything more from the panel for the government? [00:45:15] Speaker 03: Thank you. [00:45:16] Speaker 03: Anything for defense counsel before we end? [00:45:20] Speaker 03: Alright, thank you for your arguments, counsel. [00:45:23] Speaker 02: Chief, can I ask one question of defense counsel? [00:45:26] Speaker 03: Sure. [00:45:27] Speaker 02: I think it's a short question, but so I just want to ask you that your position on the last point. [00:45:34] Speaker 02: So I absolutely clearly understand [00:45:37] Speaker 02: that your argument on relevant conduct is that the finding that you identified earlier would be relevant conduct. [00:45:50] Speaker 02: But if the government is right, and I know that you don't agree with his premise, that let's say count one, count two, count four, count five, count six, [00:46:05] Speaker 02: that all of the incidents with the bait girls would be relevant conduct for all of those counts. [00:46:15] Speaker 02: If we mistakenly conclude or if we conclude that the relevant conduct would not bleed over in the count three, then your grouping argument to trigger the seven-level enhancement would fail. [00:46:32] Speaker 02: Correct. [00:46:34] Speaker 00: Your honor, I haven't done the math to know whether they would still be prejudicial error if there was one count where the production cross-reference applied. [00:46:44] Speaker 00: I actually think that it would still lead to a guidelines calculation that was lower, but I still don't really understand the government's argument that they're making now about generalizable across every victim. [00:46:54] Speaker 00: We're not arguing that. [00:46:55] Speaker 03: And as I understand it, they're saying that there was no, that relevant conduct predicate of course of conduct or that kind of thing is not present here. [00:47:05] Speaker 03: And therefore, therefore you have to look at each count individually. [00:47:09] Speaker 03: And that the fact that there was, that there was relevant conduct does not mean that you could, you could apply it across the board to all of these, because that would be necessary in a 1B1.3. [00:47:20] Speaker 03: You'd have to have either a course of conduct or whatever that other [00:47:23] Speaker 03: similar phrases, qualifying phrase, in order for it to work. [00:47:29] Speaker 00: I mean, generously, that's the argument that they're making right now. [00:47:33] Speaker 00: The argument in the brief is that I waived the course of conduct argument, which I did not do. [00:47:39] Speaker 00: I talked about that earlier. [00:47:40] Speaker 00: And because I waived it, then you have to look at each named victim. [00:47:45] Speaker 00: And that's, but they never make any argument about how it is possible that that's actually how the relevant conduct rules operate in the guidelines. [00:47:55] Speaker 00: Uh, and they still haven't explained it today. [00:47:59] Speaker 02: Yeah, I'm sorry. [00:48:02] Speaker 02: I just wanted to say, and that's why I preface my question by saying that I understand that you don't agree with the government's argument about. [00:48:09] Speaker 02: How relevant conduct would would or would not apply, but I'm just asking you if. [00:48:14] Speaker 02: If hypothetically the relevant conduct bleeds over into five of the six counts, but not count three, since count three does include seven units under your seven separate episodes of the boys and all we have to have to trigger the seven level enhancement is five or more. [00:48:35] Speaker 02: units, obviously seven is greater than five, that even if we disregard the relevant conduct or even if we credit the argument for relevant conduct for five of the six counts, but don't apply that to count three, then your grouping argument would not work. [00:48:56] Speaker 00: And your honor, I haven't done the math exactly. [00:48:58] Speaker 00: That sounds right, but I would have to sit down and double check the guidelines calculation in that case. [00:49:05] Speaker 00: I just still don't understand how you could get there. [00:49:08] Speaker 03: Well, since you're teed up here, another part of what the government addressed, and it was a question that I specifically asked, it seems to me that there are two steps to your argument. [00:49:18] Speaker 03: And one is that the court found that, in fact, these two predicates were present. [00:49:27] Speaker 03: And therefore, it committed legal error by not [00:49:30] Speaker 03: uh, by not, uh, uh, reaching the conclusion that we need to reach. [00:49:34] Speaker 03: Well, what if, what if the record was not entirely clear? [00:49:38] Speaker 03: What standard do we judge whether the court could, under plain error, did the court have to commit clear or obvious error in not finding it or, or you're saying it founded as a matter of fact, right? [00:49:51] Speaker 00: I'm trying to understand what we do. [00:49:53] Speaker 00: Yeah, the government's argument that it didn't, there's not enough evidence to reach the preponderance standard. [00:49:58] Speaker 00: That's not responsive to my argument. [00:50:00] Speaker 00: You know, they're not saying, okay, there was a finding, but we're challenging the finding. [00:50:04] Speaker 00: It was clearly erroneous. [00:50:05] Speaker 00: Like, they're not making that argument. [00:50:07] Speaker 00: They're making something that is not responsive to the argument I'm making, which is this finding happened. [00:50:13] Speaker 00: Now, what do we do with it? [00:50:14] Speaker 03: Well, if the finding comes from the district court's adoption of that paragraph, and if the underlying historical facts of that paragraph do not equal up to the legal predicates that are necessary, you lose, right? [00:50:33] Speaker 00: Yes, but? [00:50:35] Speaker 00: It's not just that it adopted the PSR. [00:50:37] Speaker 00: It's that it adopted the factual allegations in the PSR and the factual allegations from the government. [00:50:43] Speaker 00: And the government says there is a modus operandi. [00:50:45] Speaker 00: It's young girls. [00:50:47] Speaker 00: It's same age as. [00:50:49] Speaker 03: And so even if that... Adopted the factual predicate from the government, you mean as in the statements the government made? [00:50:55] Speaker 00: The factual allegations. [00:50:58] Speaker 00: It literally said factual allegations in the government's written materials are my factual findings. [00:51:03] Speaker 00: and the government made the factual allegation that this was a single modus operandi of young girls, approximately the same age as the victims. [00:51:12] Speaker 00: And so, yeah, that paragraph in the piece are standing alone might not be enough to show age, but that finding that the allegation that we're talking about young girls, that makes it enough. [00:51:24] Speaker 03: If those two things do not [00:51:27] Speaker 03: add up to the legal predicates that you believe are present, then you lose, right? [00:51:34] Speaker 00: I believe that that's so, yes. [00:51:36] Speaker 03: Okay. [00:51:36] Speaker 03: All right. [00:51:37] Speaker 03: Case is submitted. [00:51:38] Speaker 03: Thank you, counsel.