American court hearing recordings and interviews - Listen to the appeals court argument in United States versus Sean Combs (Diddy)

Episode Date: April 15, 2026

This is the official audio recording of the argument held in the appeal in United States versus Sean Combs (Diddy) brought before the US Court of Appeals for the Second Circuit following the criminal conviction and sentencing.

My name is Mackenzie, and I started to GoFundMe for the adoptive mother of a nonverbal autistic child. The mother had lost her job because she wasn't able to find adequate care for this autistic child. So she really needed some help with living expenses, paying some back bills. So I launched a GoFundMe to help support them during this crisis. And we raised about $10,000 within a go-fundme. just a couple of months. I think that the surprising thing was by telling a clear story and just really being very clear about what we needed, we had some really generous donations from people who were really moved by the situation that this family was struggling with.

GoFundMe is the world's number one fundraising platform trusted by over 200 million people. Start your Gofund me today at gofundme.com. That's gofund me.com. Gofund me.com. This podcast is Supported by GoFundMe. Number 25-2623CR, United States America versus Combs. I understand all counsel are present and prepared for argument. I understand that Ms. Shapiro is appearing for the appellant, and you would like to reserve two minutes for rebuttal. Is that right?

Yes, you are. Good. And before we begin, I also do want to assure everyone that, as in every case, We have read the briefs and the supporting materials thoroughly. We are very well acquainted with the facts of the case, and there is no need to go into any unnecessary detail. Obviously, anything that you need to raise for purposes of argument, you of course will go into.

Anything unnecessary we don't need. With that, Ms. Shapiro. Thank you, Your Honor. May it please the Court. My name is Alexander Shapiro. I represent appellant Sean Combs on this appeal, and I also represented him at trial. This case presents an important issue about respect for jury verdicts and public confidence in our criminal justice system.

Multiple justices have questioned the constitutionality of acquitted conduct sentencing. McClinton made clear... Actually, I'm going to jump in right there, and I appreciate that you're leading with all that. If you were going to the question of the Sixth Amendment issue, is that where you were going? Not quite. Okay, I will. Why don't we lead, one of your arguments is that it would violate the Sixth Amendment to consider acquitted conduct. Let's put it that way.

And I guess I would ask you, is that not a question that is foreclosed? Putting aside whether, in your view, Watts does foreclose this on a part of the Supreme Court, it has certainly been a holding of this court that courts may, sentencing courts may consider acquitted conduct at sentencing. Isn't that right? Courts of this, the panels of this court have held that? Yes, Your Honor. So then my question is, other than preserving your argument for consideration by this court on bunk or by the Supreme Court, how is it that this panel could, in your view, overrule precedence of other panels of this court?

So let me say first, and I'll get this, where I was going. going was towards the guideline. Sure, but let's just start with the six-a-minute first. I think the court doesn't necessarily need to resolve the constitutional question. Assume, though, because you did brief the six-in-law-minute issue. Correct, Your Honor. What it is that you would expect this panel could do in light of prior precedence of this court saying that it is constitutional for a sentencing judge to consider acquitted conduct.

Two things, Your Honor. First, as we've argued in the briefs, we believe the Apprendi line of cases, including the more recent ones, and I would highlight in particular, this wasn't discussed expressly in our briefs, what was alluded to in the amicus briefs, the Erlinger case from 2024. You're saying that those cases implicitly have overruled our circuit's precedence? No, I'm simply saying that those cases further point in the direction. direction of holding that it would be on constitutional. And I guess I understand that.

But we typically cannot, as a panel, overrule a prior precedent of this court, full stop, unless there has been an intervening decision of the Supreme Court or of this on bond court, categorically doing so. We can't find that our precedents have been undermined by subsequent developments and abandoned them. That's why we have the unbank process. I understand, Your Honor, and if this court is not inclined to take up that issue for those reasons. Well, it's not a question of inclination. I'm asking you why we would not be bound by prior precedent,

regardless of the validity of your arguments, which maybe are good ones to take to an en banc court or to the Supreme Court. I'm just talking about sorry to Cicisor. Well, I don't think the court has expressly addressed this issue since the, guideline amendment. I understand that the guideline amendment is a separate issue, but the reason the commission amended the guideline was in light of these constitutional concerns expressed by among other Supreme Court justices. But I also think there's another piece. I guess I'm lost there. You're saying that there have been, I mean, if we have a binding decision of the Supreme Court in Watts, we have binding decisions of panels of this court. You're saying that we can look at dissents of the

Supreme Court, which are not binding, or we can look at statements concurring or dissenting and the denial of cert as overruling binding precedent? You're not suggesting that. Your Honor, again, I don't. No, I just want to, are you suggesting that? We're preserving the argument. That I get. Okay. I really don't want to spend a lot of time on that. If I may. Well, we're going to be here for a while, so don't worry about time. Okay. Good. Thank you very much. So there is a second piece of it, though, that is relevant to that. question which is that in the I believe that precedents of this court in the 3553 analysis including Vaughn and Johnson have held that notwithstanding the rule that

your honor referred to that district courts must specifically explain in their arriving at their my name is McKenzie and I started to go fund me for the adoptive mother of a nonverbal autistic child, the mother had lost her job because she wasn't able to find adequate care for this autistic child. So she really needed some help with living expenses, paying some back bills. So I launched a GoFundMe to help support them during this crisis. And we raised about $10,000 within just a couple of months. I think that the surprise thing was by telling a clear story and just like really being very clear about what we needed, we had some really generous donations from people who were really moved by the situation that

this family was struggling with. GoFundMe is the world's number one fundraising platform trusted by over 200 million people. Start your Gofund me today at gofundme.com. That's gofundme.com. This podcast is supported by Gofund me. sentence, they must specifically consider the acquitted conduct and, sorry, the jury's acquittal when assessing the weight and quality of the evidence that the district court is relying on, and that did not happen here. So I think that's important, too. Now, if I may, I'd like to go.

That line of argument I'm familiar with, and I'm going to apologize, I'm not familiar, where did you raise that issue with the district court below, that even if it is constitutional, to consider acquitted conduct, he should consider the weight and quality of the evidence below? We, well, first of all, our district... That's recorded by Gigante line of cases. It's, we cited the Vaughn case in our papers. Before the district court. Before the district court.

And I believe it was in our reply brief. But I would also just point out that throughout our papers below, we made abundantly clear in over 100 pages of briefing that, for multiple reasons the district court shouldn't consider acquitted conduct. No, that's a distinct. There are various arguments one can make against acquitted conduct. One could make a Sixth Amendment argument. One could make a guidelines argument.

One could also make the Gigante line of argument saying it is permissible and yet you are not, as a district judge, compelled to take into account of quitted conduct because you must also consider the nature and quality. and arguably, I suppose, under some lines of cases, one would ask the district court to adopt a higher standard proof. That's not what I'm really saying. I'm talking about what Vaughn says about what Vaughn says specifically. I'm not suggesting that.

The Vaughn just says that the court should consider the acquittal when assessing the weight and quality of the evidence. Correct. That's it. It's one sentence. in Vaughan, and then it goes as Judge Nardini referred to into citing Cordoba and Gigante. But how did Judge Supermania not do that here? He didn't do it at all.

If you read his statement of reasons, he simply says, I'm only sentencing you for the conduct you were convicted of, and then he goes on to discuss all of the acquitted conduct. But at the sentencing hearing, he acknowledges that the acquittals. And he says, he acknowledges you were acquitted. of these charges, are you arguing that under Vaughn there needs to be a detailed explication as to each fact, how the acquittal on the other charges goes to the, quote, weight and quality of that evidence as to each piece of conduct considered? Or is it enough for the district judge to acknowledge?

I get it. You were acquitted on these charges. No, it's not enough. Obviously, the judge acknowledged that he had been acquitted, but that's not enough. That's just make weight. And I think in both Vaughn and Johnson... Make-wait? In other words, he said, yeah, there was an acquittal, but he didn't explain... You mean he didn't mean it or he wasn't thinking it?

What does make-weight mean? That's a rather disparaging characterization. And I want to understand what you mean by it. Well, what I mean... That's not what I mean. Just to be clear. My point is simply that what Vaughn requires and Johnson requires is not just an acknowledgement that there has been acquittal, but some sort of discussion of why the judge,

notwithstanding the acquittal, finds that the weight and equality of the evidence supports enhancing the sentence. If I may, I'd like to go on. The McClinton made clear the Supreme Court would take up the issue of the constitutionality of acquitted conduct sentencing if the commission didn't act. And the commission did act. And the commission did act. and amended the guideline to ensure that not guilty really means not guilty. In this case is exactly what the guideline was written to address. Mr. Combs was acquitted on sex trafficking conspiracy, but convicted on prostitution charges that didn't require proof of coercion or conspirators.

Well, we're going to get to coercion and all that. But let me pause on a couple of these guideline questions and ask you why we would even need, at least some of them, to get into this debate about the scope of good conduct. Let's start with the leadership enhancement. My understanding is that under the leadership enhancement, as the guidelines provide, it can be imposed if there are at least five criminally responsible participants. Is that correct?

Correct. So you have Mr. Combs who was convicted, correct? Correct. So he's one. You have the two escorts who traveled across state lines. I understand that you are trying to challenge the conviction. on the theory that they were not actually planning to engage in this specified forbidden activity, but assume that they were and that we were to upheld those convictions,

those two would be criminally responsible participants, correct? Well, the district judge relied on Christina Corum and Mr. Combs' employees and certain employees. Yeah, but if there were five, we have enough. Didn't he also rely on the two escorts? I don't think so. Okay, well, let me ask. And I do want to highlight. Here's my question.

Here's my question. Would the two escorts be criminally responsible participants if they travel across state lines with intention to engage in the forbidden activity? Well, this court has to review the findings below. So let's stick with my question. You can go back to it. Would the two escorts be criminally responsible participants under the guidelines if they cross interstate lines with intent to commit the spousy. specified activity. What is forbidden by the

Man Act? Don't think that's clear at all under the Supreme Court precedents about the Man Act. The people transported are often viewed, not viewed as co-conspirators. There's an old case. I'm forgetting the name of it.

No, the question isn't co-conspirators, whether they're criminally responsible. Well, it's this, I mean, for this... It's not the same. The only, the Supreme Court cases, and I apologize that I can't remember the name of it, would only consider someone to be criminally responsible if they were involved in arranging the transport or something like that, but not necessarily the person

who travels. So that would be your argument as to why the two escorts are out, or an argument, why the two escorts are out. And what about the two named victims in this case who, I'm pretty sure the district court cited evidence that they had participated in the arrangement? Well, the government never took the position that they were co-conspirators. I'm not talking about co-conspirators. I'm talking about whether they're criminally responsible under the guidelines. Well, it's the same, for all practical purposes, the same thing.

Really? Yes. Yes, I think it is, clearly. If I cause someone to commit a crime, the person who commits the crime is guilty as principal, and the person who caused the person to commit the crime is guilty as principle. But that is a conceptually different concept. from conspiracy, correct? Yes. Section 2, Section 2, 18 U.S.E. Section 2, Section 2, is not the same as Section 371. Right.

If I may, Your Honor, the district court didn't rely on those others. This court has to review the district court's specific findings. The conspiracy that Mr. Combs was acquitted of clearly required. the jury to find it that he acted with other people. The government argued that he led the conspiracy to the jury, and the jury was also told that if they found any two racketeering acts even of the same type and that he participated with someone else, that was sufficient and yet the jury acquitted.

But that would be sufficient to find RICO? No. It wasn't a RICO charge. It was a RICO conspiracy charge. But you're not guilty of RICO conspiracy if two people agree to commit a predicate. That's not what I said. Right. And that's not what the district court instructed the jury. No, the instructions, the only disputed elements were whether there was an agreement with at least one other co-conspirator, whether Mr. Combs knowingly joined the agreement. Agreement to blank. Agreement to what?

Agreement to participate in the conduct of. a racketeering enterprise. Right. So one could agree to participate in a predicate act without agreeing to participate in the affairs of a racketeering enterprise. But the jury also necessarily, on the facts of this case and the way it was argued to the jury, there's no way that the jury wouldn't have concluded that there was a racketeering enterprise if they concluded that Mr. Combs committed these crimes.

Now you seem to be going into a six amendment of estoppel areas, though, right? No, I think what the court has to look at is what the jury necessarily determined in determining what the acquitted conduct is. That's a lateral estoppel argument under Cole. I mean, there is this thing that we say acquittals don't constitute factual findings of anything, right? They are determinations that somewhere within the elements of an offense, the jury found something not proven beyond a reasonable doubt, but they didn't make an affirmative finding that anything else.

No. Now, we do find sometimes in coal, for example, that from collateral estoppel purposes under dual jeopardy, the jury must have concluded something or another. And that seems like where you're going here. Well, Your Honor, the commission wrote this guideline for a reason, right? And it requires courts to figure out what the acquitted conduct is. And the simplest and clearest way to do that is to look at what elements the government, was required to prove for the counts of acquittal and the counts of conviction.

And so if the jury, in this case, what we have, let's take the sex trafficking counts. The only disputed issue was whether there was coercion or threats or fraud. And that was one element. The government's case focused on that issue. It's arguments focused on that issue. It's evidence focused on that issue. And the jury clearly rejected that argument. So we know.

So, counsel, doesn't the coercion as to the two pieces of evidence that the government relied upon at sentencing, right, which is the threat to, one threat to insurer, one threat to Jane. I think one was to release the tape. The other was we're going to, I'm not going to pay your rent. Doesn't that establish the intent of the Mann Act, that is the intent to violate the Man Act? That's what the district judge used this evidence for. He says it overlaps to this extent. That is, the RICO conspiracy overlaps with the Mann Act.

Insofar we're talking about intent here. And why don't those two pieces of the evidence support his factual finding and that there's intent for purposes of the Man Act? No, Your Honor, for two reasons. First of all, the intent element and the coercion elements or as the government said, totally separate. And under our view of the acquitted conduct guideline, you have to look at it by element,

and this type of analysis shows why the relevance test is problematic. But I want to also... I understand your point about the relevancy test, but isn't that just nomenclature? We look at substance, not at labels? No, I don't think it's nomenclature, because this is a relevant conduct guideline. The whole point of the guideline is to take acquitted conduct.

out of relevant conduct. And a relevance test really is another way of saying, well, acquitted conduct is not relevant unless it's relevant, which makes no sense. But I do want to talk about the specific incidents and why that's not correct. So first of all, with respect to the can incident, there's actually no evidence that there even was a man act offense in connection with the can trip. So the government's argument is that threats were supposedly made on an airplane flight returning from Cannes to New York. Under Broxmeyer, United States against Broxmeyer, 616 F3rd 120 at 127, a 2010 case from this court. The court held that for purposes of the Man Act, the intent to engage in prostitution, which has to be a dominant purpose of the travel, has to

coincide in time. And there's no evidence that even on the airplane, they were planning a so-called freak-off. And moreover, there was no evidence in the record that there was a freak-off other than than Ms. Ventura's testimony. The government relied. Pause, pause, pause. You just said there was no evidence other than a witness's testimony. Correct. Which is another way of saying there was trial evidence. Right, but not biased. The jury is the finder of facts. The jury clearly regis. So this... My name is Mackenzie, and I started to GoFund Me for the adoptive mother of a nonverbal autistic child. The mother had lost her job because she wasn't able to find adequate care for this autistic child.

So she really needed some help with living expenses, paying some back bills. So I launched a GoFundMe to help support them during this crisis. And we raised about $10,000. within just a couple of months. I think that the surprising thing was by telling a clear story and just like really being very clear about what we needed, we had some really generous donations from people who were really moved by the situation that this family was struggling with.

GoFundMe is the world's number one fundraising platform trusted by over 200 million people. Start your GoFundMe today at gofundme.com. That's gofund me.com. Gofund me.com. This podcast is support. by GoFundMe. Not only was this argued to the jury in the summation, but the jury sent back a note asking for, quote, Cassandra Ventura testimony regarding Ken and the events immediately following.

That's a trial transcript page 8085, which is at docket 632 in the district court. And we know that the jury rejected the notion that there was coercion in connection with that incident. With respect to the Man Act. Now you're mixing two things. Let's grant you the notion that they decided coercion had not been proven beyond a reasonable doubt. But I thought you were just arguing a different thing that the defendant did not have an intent for purposes of the Man Act transportation, what, during the conflict? Because then you were saying there was no evidence that a freak off even happened. Now, we're sort of venturing down beyond whether the jury found.

coercion to now say, yes, because you could say the jury found, yes, these events happened, but they weren't coerced. That's fine. But now you're saying they also found that none of this even happened. And I don't see how that follows. That's not what I said. Well, you said there was no evidence that the freak off happened except for Ventura's testimony. And then you were trying to argue the jury necessarily rejected Ventura's testimony.

And I guess you're saying because they rejected the argument of the government that it was, her testimony showed there was coercion, they must have rejected every single thing that Ventura said. That's not what I said. Well, that was the implications. Well, that's not what I meant to imply. The point is that the government relied for its man, the whole Man Act charges were basically an afterthought at this trial. They took up almost no time. The government relied principally on these two charts.

And if you look at government exhibit 1402... I understand that, and you've made that point very well in your breeze. So isn't your argument really that what the government is doing here is mixing and matching? You're taking evidence from the claims that were acquitted to try to support the Man Act sentencing for purposes of the Man Act, but none of that jury was presented to the jury for purposes of the Man Act. Yes, Your Honor. Is that a summation of the court? That's fair. And I think our view of the sentencing guideline as we briefed is that the way it should be interpreted,

and I think this is very simple and straightforward, is that acquitted conduct can only be used when it is also convicted conduct. And if I may, I can point to some hypothetical examples. Before we do that, let me just focus on the Mann Act for one second, and I hope it will inform this, discussion. So the Mann Act is indicted to say that the transport was of either as to count three Ventura or the escorts and as to Count 5, J. Doe or the escorts. But at trial, the government's theory was that count three is violated and count five is violated by transportation of escorts to engage with Ventura and Doe, right? So it's not Ventura and Doe that are transported for those convictions, isn't that right? Because that's what the

government's closing argument is talking about transportation. It's mostly the escorts. Mostly so is it your, do you believe that either the transportation of Ventura or Doe or the transport of the escorts could be the basis of the jury's conviction on three and five? I think it was that if you look at the charts, the focus is on the escorts, for sure.

Well, I was looking at the closing arguments. Yeah. The government's closing argument. I think that's right. So if If the theory advanced at trial is that the escorts are the ones being transported, but we're referring to count three as the Ventura count and Count 5 as the Jane Doe count, because that's the person who was involved when the escort arrived. Then how do we now, in light of that, how would we consider things like the con trip? Well, then I would say then it doesn't count.

But I think what I was getting at, and I don't think I was very clear, so, if I may, I'd like to explain it a little better. The con trip, they were in con and then they flew back to the United States. They were flying home. So the purpose of the trip, even if a freak-off did happen, wasn't to engage in prostitution, it was to come home. And under Miller and Broxmire and the jury instructions in this case, the dominant, a-dominant purpose of the trip has to be to engage in prostitution.

So can I ask you, though, I hadn't. understood the government's argument to be that, that the purpose of flying home from Khan was to engage in the activity. I thought it was the fact that he went, according to the one witness, on the plane, sat next to her, showed her the video, and then immediately turned around and arranged for the escort to travel to the hotel where then the activity happened, was evidence that this is what the thing that happened at the hotel is in fact what he intended to happen, as opposed to his argument that, no, no, I wanted people to travel so that I could have an attractive scene, but if there was actual sexual activity that followed, that was just something that happened. But by showing a video of people engaged in such activity in close proximity,

to the event that actually transpired with the activity. It showed that his purpose in making this whole arrangement was to have the activity occur, and that manifested his intent. But that's not sufficient to establish a man-act violation. The purpose of the travel has to be... Well, it's not sufficient, but it certainly contributes to it, because you have to have intent, right? So I could arrange for the intent of anyone to cross state lines,

and then various activities could happen. but it's not a man act violation unless I transport them with the intent that those events transpire. Right. That's my point. So that's what I'm saying is why does this not go to prove his intent, which is an element of a man act violation, that the reason he had the people, the escorts, travel across state lines, was so the activity. I think that that gets back to the point I was making earlier that under our view of the acquitted conduct guideline, that is just too far afield.

and it's basically like a relevance test. You're saying it tends to prove that. So what evidence, are you saying that some evidence or his intent does count as a offense conduct and some does not? Well, first of all, if you actually look at her testimony, I don't think she testifies to what Your Honor just articulated. And in fact, the testimony establishes that they got to New York and then they had dinner and then he suggested a freak off after that.

And I Well, right, this is a question for the jury to infer about whether the temporal proximity between him showing a video to her on the plane and then immediately getting back to New York and suggesting it and having to play out is why he wanted the escort to be traveling. But there's no basis from which to conclude

that the jury even found that this particular incident constituted a man act. Was this incident cited in connection with the man act charge? Do the government ever point to this and say this is a matter violation? No. The man act, the government's discussion of the man act in its closing argument was focused on this chart. So let me, we have to write an opinion here. And let's just step out of the weeds.

And we have to enunciate a principle, right? And the guidelines, the discussion of the guidelines, talks about line drawing exercises, of course, have to engage in to determine where there's overlap, where acquitted and convicted conduct overlap. Can you articulate a principle that for us to apply, if you were writing the opinion, what principle would you enunciate that is readily administrable by courts to engage in this line drawing exercise?

Can you give me a bright line test of some sort? Yeah, let me try. And if I may, I'll try to illustrate with some hypotheticals. So I think the test should be, and what the commission intended the test to be, that courts cannot use acquitted conduct for guidelines purposes unless the defendant

was also convicted of that conduct. And in order to determine what that means, you would look at whether the same element that has to be proven in connection, with acquitted conduct, it has to be proven in connection with element or elements convicted conduct. So, for example, let's suppose you have a case in which a defendant is charged with drug conspiracy, conspiracy to distribute narcotics as well as several substantive counts of distribution. And the defendant is convicted of the conspiracy and with respect to the

substantive counts is acquitted of some and convicted on others. When determining the drug amount, the court could not count the weight from the ones the defendant was acquitted of for the substantive counts, but could count the ones the defendant was convicted of, as well as any other drug deals that were either proven at trial or a proven at sentencing if they're not charged in separate substantive counts. That's one example. Another one would be you could have a fraud case in which the defendant is charged in securities fraud as well as wire fraud. And it's the same exact scheme to defraud, the same false representations in both counts. But the defendant is acquitted of one and convicted on the other. The way to make sense of that is to say it's clear the defendant has been convicted of the scheme to defraud.

and so you could count the entire loss amount, even though he was, let's say, acquitted of wire fraud, either because maybe the wire, the jury didn't find the wire in furtherance or something like that, but it's clear that they did find the scheme to defraud proven because the same conduct underlies the element in both charges. To what extent does it rely, does your theory rely upon what the government argues in terms of the evidence?

In other words, the case that's presented to the jury in terms of the elements. Is that dependent upon that? Or does that matter? Is that irrelevant? I think it depends on the case. I think you have to look at the indictment and what's the charge and what's the government's theory of the case. So maybe it's sufficient. The theory is presented to the jury, right? It's not their theory of the case in the abstract, what may be in the indictment, but what is actually, they have a case to prove. right so wouldn't it be the evidence and the arguments that the government makes to the jury it's definitely very important and I think that's why you know that's why we think that the the test that's used for collateral estoppel is

and so was any of the evidence and the arguments the government made here in connection with the RICO and the sex trafficking offenses was any of that evidence presented to the jury for purposes of persuading them to convict on the man act? Yes. I'm sorry, were you asking just about the RICO or the... Both. Both. Yes. So to what extent did the government's case

at trial on RICO and sex trafficking overlap with the government's evidence and arguments on the Mann Act? So as the government said, itself said it was totally

separate, but from the sex trafficking counts, the overlap, well, let me just back up. Should the district judge hold the government to that for sentencing purposes? I mean, should the district court say, well, you know, you put on all this evidence that the jury rejected, right? And now you want me to look at this evidence to support a conviction under the support a penalty under this other offense that you were convicted. But you didn't present me that evidence to the jury. I think you have to just start with what are the

elements that the government had to prove. Yes. And so if they didn't have to prove for the Mann Act, if they didn't have to prove coercion, they didn't have to prove a co-conspirator, then we know that there is no convicted conduct that includes coercion or co-conspirators. And that's really the starting point.

And I think the evidence and the arguments just reaffirms in this case that the evidence, evidence that the judge was relying on is totally separate and, in fact, was acquitted conduct. Because, because the defendant was... Well, he's fixing and matching is what he's doing, right? I mean, the district court here reached into the evidence that was used to support the government's RICO and sex trafficking case to, for purposes of establishing the penalty under the Mann Act. Correct.

And he found coercion when the district... excuse me, when the jury had not found coercion, including as to, we know, as to those two specific instances because the government made those arguments and expressly told the jury, which correctly under the jury instructions, that if they found coercion, each of those instances would have been sufficient

to convict on the substantive sex trafficking. Were there limiting instructions given or requested during trial that certain evidence would only be admitted, with respect to certain of the charge offenses? No, and, you know, that wouldn't really have worked here because there was a RICO charge, and as I'm sure Your Honor knows, under RICO basically everything. Everything would have come in as to RICO, but the idea that it's admissible as to RICO, but not admissible say as to the Manna Act.

But that would not have been legally permissible in this case, because the MAN Act was also predicate acts to the RICO. I mean, that just wouldn't have been a valid in store. Well, I guess where I'm going with this is, does that mean that all the evidence that was admitted would have been legally admissible to prove any of the particular offenses? So, you know, going towards Judge Baker's hypothetical, you know, is there a scenario here where the judge was pulling evidence that was not, I don't know what you would say, admitted for purposes of proving the Mann Act? and then it's impermissible, say, for the judge to look at it with respect to the Mann Act when he's in the sentencing period. And I guess what I'm asking is, is that in fact the case here, or was all of the evidence admitted for unlimited purposes such that there is no, as long as it would be relevant and probative to prove up another count, then it would have been permissible for the judge to consider it with respect to that count. Well, I think the reason it's not permissible for him to consider it is because, its acquitted conduct. And the judge

made clear that he accepted. Let's accept that. Let's accept that premise for the purposes of my question that, yes, it would underlie some of the acquitted counts. I think then the question becomes, is it overlapping, right? So would it be permissible, none the less, to consider it with respect to the convicted counts? No.

And right, and I understand your answer is no, and I'm trying to get out why. So is it because it wouldn't have been admissible to prove the Mann Act count? In other words, does your argument depend on that at all? Or I think what I hear you arguing is if there is an element of the acquitted charges that does not match an element of the convicted charges, what is embodied in the element of the acquitted conduct, which is coercion fraud, is now completely off the table for sentencing.

that your argument? So that is our principal argument. Okay. There's a secondary argument, and I hesitate to even raise it, but it's, you know, we've made it, that if you actually, even if you actually adopt the relevance test that the district court imposed, that these things wouldn't have been relevant. But I don't think the court should go there. I find your argument confusing on that because I think the district court, I mean, that's just

to follow that. The brief mischaracterizes sort of caricatures that district courts use the word relevancy. I don't think he's saying relevant in the sense of relevant conduct under the guidelines. I think he's taking relate to in context of having probative value with respect to one of the elements of the convicted offense, which is another way of saying it would have been admissible evidence to prove an element of the charged offense. I think that's right. And our point in the briefing below on that, especially, and I think we make this point in the opening brief as well, is that that test is far too broad.

But it's basically a rule 401 test. Because I think in your brief, you say that blows up the acquitted guideline because it would basically, it's just a circular definition with relevant conduct. And I think that's not what the judge was saying. It would be a smaller subsection of things, much smaller subsection of things, than anything involving relevant. I don't agree, Your Honor, and I think that it's a distinction without a difference because the concept of relevance as the district court was using it,

and as Your Honor seems to be using it, is the same as Rule 401, which is incredibly broad, and as this court has repeatedly held, it's a very low bar, and it basically includes sweeps in many things. Well, no, take this. Dependent is convicted of one bank robbery. at sentencing, the judge considers 10 other bank robberies that were committed on completely different days using and let's posit completely different modus operandi.

But it's relevant conduct. And so the judge considers all 11 bank robberies when calculating the guidelines. I don't think that one would then say that had there been a trial on bank robbery one, all of the other 10 bank robberies would have come in as relevant evidence because under my hypothetical where there was no common M.O. They would not be admissible under 44B.

So I don't think if you draw a Venn diagram, you're going to find perfectly coinciding circles for relevant conduct under 1B1.3 and relevance under the rules of evidence to prove up an offense. Well, even if that's the case on what we're dealing with here, this evidence of coercion would not have come in to prove the man act, clearly it would have violated 404, 403. There are numerous reasons that I think it's pretty indisputable that if all Mr. Combs had been charged on

and all he'd been tried on was Man Act, that we wouldn't have, you know, what about this other evidence coming in? Let's say he was only charged with the man act, and his defense was along the lines of one of the things, the defense raised of trial, which is he never intended for the specified activity to happen after these folks crossed state lines. That it just, you know, it just kind of happened.

And one of the ways the government tried to disprove that or tried to prove his intent was saying, no, no, no, he used to talk about this all the time, what he wanted to happen. In fact, there was one time on a plane that within 24 hours before the event happened, and he actually showed a woman videos of prior episodes where the activity had happened. And sure enough, within 24 hours, that's what he arranged was to happen. Again, that's proof that this is exactly what he intended to happen, and it's not mere coincidence. Why would that not be admissible? That's not what the defense to the man act was.

Most of the case was focused on the coercion and the RICO, and to the extent... I thought that was part of the defense, no? No, it wasn't, Your Honor. that the only arguments that were made specifically about the Mann Act by the defense was that, was the argument that based on the testimony of the, and the evidence in the case was that the escorts were paid for their time. Well, right, that's the same argument. They were paid for their time and everything that happened afterwards was just not something that he was arranging.

He was not transporting them for the purpose of what happened. afterwards. It was just their time. I guess I'm getting a little lost. I apologize. But I think the point here is that the principal point here is getting back to your honor's earlier questions and my dialogue with Judge Baker is that you have to look at the elements. That's our position. You have to look at the elements. This idea that, that you have a relevance test is not consistent with the guideline. And I just want to highlight, I'm sorry. Go ahead.

Sorry. I'm sorry. Well, let's finish your point, then I have a question. I just wanted to highlight, and we've mentioned this in the briefs, but if you look at the history of the guideline, the Department of Justice wanted the commission to use the phrase relates to in the guideline, and the commission rejected that because they thought that was far too broad, and they went instead with the language that's in the guideline.

So the problem that I have with your test of an elements test is that sometimes the problem is we have different elements, right, for the RICO, for the sex trafficking versus the man act. But there's evidence, conduct, that can underlie the government's case, right, in all these sets of charges. And the mere fact that you're acquitted doesn't, by the very plain terms of the guidelines, right? It doesn't take it off the table insofar as that conduct is also convicted conduct. And so what we're trying to discern here is where is the line, right, for purposes of sentencing.

And so you just can't rely upon a test of the out, because it cannot be that, just because in all conduct that is underlying the element of acquittal is then taken off a table, right? It can't be by itself. Well, I don't agree with that because I think it's going to depend on the case, right? And there are going to be cases that are maybe closer than this one. So you're going to have cases, for example, where there are maybe inconsistent verdicts, things like that. That's not the case here. This was very clear.

I sat through this trial for eight weeks. The government's focus from beginning to end was on the sex trafficking and the RICO. The whole where the debate was was, was there coercion or was this sex voluntary? That was the gist of what was being disputed. It was an afterthought. The Man Act was just an afterthought in the government's prosecution. I mean, it was there. but it was effectively a sideshow.

But that's the question, right? Can the government then look to all this, can the district court look to evidence, presumably rejected by the jury and acquitting on these other things for purposes of finding the penalty in this sideshow? And why shouldn't we just hold the government to what it argued?

We should. We should, absolutely. And I think the whole point of this guideline was to deal with the fact, that many people in America, not just Supreme Court justices, not just other judges, but, you know, I've really questioned whether it is both constitutional and right and consistent with respecting jury verdicts to allow acquitted conduct to be used to drive a sentence in this way. And I want to highlight that, and this may have, we mentioned this in our brief, but I'm not sure we gave it the prominence

that should. This sentence was the highest sentence ever imposed for a Mann Act defendant sentenced under the same base offense level and criminal history category. Let me ask you about that. So would this offense be

put, let's take the violence off the table, right? The allegations of violence that the jury rejected in the acquitted accounts. What about the, would this verdict, would this sentence be

substantively reasonable in your view given that we also have factual findings of psychological abuse, emotional abuse, and applying these two women with drugs, one of them became an opioid addict as a result of it. Presumably that's still on the table

if we take away the violence. I think that it would be substantively unreasonable under the correctly calculated guideline range. because it would be multiples, it would require a variance upward based on the acquitted conduct. But the guideline range is just, it's not a per se rule. It's a guideline and it's a starting point,

but then you look at the facts of the case, and we have two statutes to tell us you look at all these factors, and we have one statute that says there's no limitation. And am I correct in understanding that we have this factual finding that we have two women who were plied with drugs to participate in this, and one of them became an opioid addict. So doesn't that support the reasonableness of this, putting aside the violence? Well, a couple of points. First of all, you're correct that that's what the district court found. The evidence in the trial is much more complicated than that.

But if you don't challenge on appeal those factual findings, you're not challenging that factual findings. You're making legal argument. But this court has to review these. sentence based on the guidelines calculation taken as a starting point, and this is actually where I was going. I don't even think I got to this. The Supreme Court in Martinez-Milina and this court in Seabrook and many other cases have held that a guidelines miscalculation is a significant procedural error that requires a remand and resentencing in most cases, even under plain error review. And so, for instance, this court has held that if you accept the guidelines argument,

even in part, a significant upward variance would have been required and a remand is required because the judge would have had to explain that variance. And indeed, this court has held that even where the sentence is within the range of the correct guideline range, a remand is necessary. But sometimes, oh, go ahead. What do we do with the fact that the district judge here, after each guidelines finding, made the statement that he would have imposed the same sentence with or without this increase? It seems to me that if we accept the judge's representation, that that guidelines decision, it was not what drove his ultimate sentence.

That then moves us into the question of whether he could have used the acquitted conduct for the 3553A calculation. But how do we get over that sort of potential harmless error hump that he did make that statement after each increase was imposed? So this court has repeatedly held that the district court cannot insulate itself from appellate review by saying that he would give the same sentence. The Seabrook is one example. We've cited others in our brief. And the Supreme Court in the Molina Martinez case in this court and other cases have pointed out, for example, that this isn't like a new trial and a resentencing, you know. Yeah, but sometimes we have a firm. I mean, I understand.

You can point to some cases where we say, you know what, we're not sure of the guideline error really was harmless. We don't know. The judge said it wasn't, but we don't have a high level of confidence. The judge was very emphatic here. and careful. So it doesn't sound very boilerplate. It doesn't sound like anything the district judge did here. It's also clear that the acquitted conduct drove the sentencing.

And then we would get into the Sixth Amendment issue, right? No, no. I'm talking about the guidelines calculation as the starting point. And the other thing that is really important here is that the district court's guidelines calculation exactly mirrored the PSR, and it seemed clear that the district court was really planning to file. follow the PSR, and indeed, when he imposed the sentence, he initially said he was following the recommendation.

Are you implying that the district court wasn't thinking for himself? No, no, not at all. And what is this argument about tracking the PSR have to do with anything? It has to do with the fact that the guidelines range was very important in the ultimate sentence. And you're saying that the district court must have placed the same weight on the guidelines that the PSR did? No, that's not. What is the implication? I'm trying to understand what your implication is.

Because it sounds like you're going to a place where the district court was not thinking for itself or was somehow implicitly adopting parts of the PSR that it didn't or something. No, Your Honor. That's not what I'm saying. My point is simply that this court has repeatedly held that significant procedural errors requiring me. I mean, two of the cases. That I understand. Now, I want to go back.

What were you talking about with the person? PSR, because I don't understand that point. Okay, what I'm saying is that you don't know what the district judge would have done if he had understood the guideline range to be either 21 to 27, which it would be if you accept all of our guidelines argument, or 30 to 37, if you get rid of the grouping, just for example, even though he told us what he would do. I understand the argument. I would understand.

I don't think you made it quite this way. Maybe this is what you meant to say, that. if we agree with you that all of his guideline enhancements were wrong, he never said, and even if all of my guideline calculations were wrong, I would do the same thing, as opposed to any individual thing. So if we found one guideline error, though, he said to us he would have done the same thing, and you're saying that we don't take that at face value? That's correct, Your Honor, under the precedence.

Well, some of them we do. I mean, there are some cases where we have reversed and remanded, and there are others where we said, well, the judge told us he would. do the same. But we don't have a case where there would be a significant upward variance like this. We don't have another case the government could possibly cite where the sentence was the highest sentence for any person in this criminal history category and base offense level, even including others who had a coercion enhancement. There's no case remotely like that that the government could point to. And indeed, some of these cases involve things like in the Bennett,

case and forget the name of the other one. In a couple of the cases, the judge thinks the guideline, says the guideline range is X, which is a little bit above the statutory maximum, and then sentences well below the statutory maximum. And this court says it has to go back because the judge thought the guideline range was higher than the maximum. So, you know, in that case, clearly there's been a significant departure from, from, um, from what it could have been and the judge gives reasons, but the court sends it back. And that's what the court should do here. That's what's required by those cases.

Okay. I understand your argument. I fully understand your arguments about the acquitted conduct for purpose of the coercion and leadership enhancements, right? Those were four points apiece. But when it comes to the victim, the characterization by the district court of insurer and Jane and the escort as victims. That's not really, as you framed it, it's not really an acquitted conduct argument. You're just arguing with that or disputing the district court's characterization of these people as victims. So that doesn't really fall into the acquitted conduct bucket for purposes of deciding this case.

I mean, I think there's two issues that we're raising there. I don't. The law professors agree with us on that because they don't join you on that. The law professors who filed, by the way, a very helpful brief. I'd like to thank them for that, but that very helpful brief pointedly did not, they stopped when they got past coercion and leadership. That's fair, Your Honor. I think our principal argument on that, we are arguing that the acquittals show that the jury didn't believe the two women were victims,

but our principal argument there is that the term victim should be interpreted according to its plain meaning, which is someone harrowing. or injured by the offense and that the application note is inconsistent with that plain meaning. So even under Stinson, the group in calculation was incorrect, and we're also preserving for further review a challenge to whether Stinson is good law. Right. So for acquitted conduct purposes and looking at a harmless error and how this might have played out, if there was a mistake under the guidelines, we're only looking at,

It's, well, we're talking about... It's almost double. Right. Well, it takes us from, if we did eight, it would take us from, what, that would go from, we went from 50, would take us to 20. It's only, you know, we're talking about eight points, right? It would go to, the range would be 30 to 37 under that scenario, as opposed to 70 to 87, which was the starting point.

Can I ask you? about the definition that the Commission has given us of acquitted conduct. One of the things you pointed to contest the government's view is that there was a government proposal that a quid conduct be defined using the word relating to or something like that. Relate to. Related to. And the government has also pointed to a proposal that was before the sentencing commission that would use the word elements.

And neither one of those was adopted. And instead they took this other definition. Then as far as I can tell, they decided they didn't need to define further and said something along the lines of, don't worry, it won't come up that often. And it's going to be really easy. District judges are going to be able to figure this out. Why should we worry about line from it? And as I recall, there was a letter from the Judicial Conference Committee on Criminal Law,

warning them that this was a very ambiguous guideline and that they very much should provide more clarity. And they didn't. They didn't take an elements test, which I think would have been very clear, and they didn't take the government's relating to, and they gave us one that says, don't worry, district judges are going to figure this out. I don't know, maybe the district had figured it out. I'm having trouble as an appellate judge figuring it out. What are we to make of it if we decide that it is ambiguous? Does the rule of lenity kick in to guidelines issues?

Are there other interpretive principles? There are two interpretive principles. So one would be the rule of lenity and the other would be the related but maybe more important constitutional avoidance principle. And even to the extent, you know, I understand the court's, the panel's position, regarding, or Your Honor's position regarding the binding nature of those precedents we talked about earlier. But putting that aside, I think it's clear that at a minimum, there are serious constitutional concerns with using acquitted conduct. And so I think, you know, if the court finds that the guideline is ambiguous, it should be interpreted, the exception should be

interpreted narrowly in favor of the defendant. And this is, I swear, my last question. I don't about my colleague. Are you aware of any other appellate courts that either have decided this issue or are facing it right now? Is it bubbling through the circuits in other ways where we are soon, perhaps, to benefit from the views of our sister circuits?

I am not aware of any other appellate decisions interpreting the guideline. There are some decisions relating to the Watts issue. Sure, but you're not aware of anything currently in public. My colleague advises me that there's a case pending in the First Circuit on this. Do you have it? That's fine. Well, if it comes out, that's fine.

If it comes out, we'll find it, but that's helpful. Okay. Unless there are any further questions, we have kept you up considerably past the 10 minutes, but don't go away because I'll see you again. I'll have more to say. I hope you have a bottle of water there. We will now hear from the government. Good morning.

It might be afternoon at this point, but may please the court. My name is Christy Slavic, and I represent the United States on this appeal, as I did in the district court proceedings below. Judge Subramanian correctly applied the new acquitted conduct guideline in this case. And moreover, in determining the appropriate sentence under Section 3553A, Judge Subramanian properly considered the aggravated manner in which the defendant carried out his Man Act offenses, which is of course consistent. You say aggravated manner.

Let's talk about that. Why shouldn't we hold you to the way you prosecuted the case? Well, you went to the jury and you said, this man did all these terrible things for purposes of the RICO conspiracy, for purposes of sex trafficking, and they acquitted him. And then on the Man Act,

it was just a sideshow, and you put him, I don't think it was any of an inch any live witness testimony. money. Just look at this, you said, look at these charts. And now you want us to rely on all this acquitted conduct that was presented

to the jury that was presumably rejected for purposes of, or to allow a district court for purposes of the guidelines calculation. So why should we hold you to what you present argued to the jury? Your Honor, I have several responses, but first is that

much of the conduct that the district court focused on in imposing the sentence was not a conduct at all. In fact, it was admitted conduct. The extreme physical violence that took place in the context of these freak-offs and hotel-off. I get all that. I understand that. That's not my question to you. My question to you is, why shouldn't we hold you? It's not what the government's with the district court alike. I'm asking why we shouldn't hold you in terms, or require a district court to hold the government to what,

presented to the jury for deciding the scope of acquitted conduct to look at what you actually presented to the jury for purposes of those charges? And then asking, did it overlap with the acquitted charges? Sure. I don't think there's any overlap. Sure. So just backing up a moment to

talk about how the case was presented. Counts two and four were the sex trafficking counts, and those of course were acquitted counts. Counts three and five were the Man Act counts. both all counts were charged as courses of conduct as opposed to specific instances.

And for counts two and four that related to Cassie, that course of conduct related to the freakoffs that took place between 2009 and 2018, I believe. With respect to counts four and five that related to the hotel nights with Jane, that course of conduct was from 2021. through 2024. So the evidence of the hotel nights and the freakoffs related both to the sex trafficking and to the man act charges. And that's how it was presented to the jury. It was never presented as this evidence relates to sex trafficking and this evidence relates to the man act. There was never a dividing line. But when you get to summation, there is, right? So you say, let's start with count three. The defendant is charged in count three with interstate transportation for the purpose of prostitution related to freakoffs involving Cassie. That's how you describe count three.

I think that's right. And then you go on to talk about all of the evidence about escorts travel. And it doesn't talk in your discussion of count three. And similarly, it's a very, very mirrored for count five when you talk about Jane Doe. It doesn't talk about Ms. Ventura or Ms. Doe being coerced or Ms. Ventura or Ms. Doe being transported. It says count three is about escorts traveling for the purposes of contact with Cassie, and count five is about escorts traveling for the purpose of contact with Jane.

As Judge Baker is saying, where else can we divine the government's theory of those two counts other than summation and why shouldn't we hold you to it? So just to be clear, the government's theory was that the travel involved both Cassie and Jane and escorts.

But I think that... Why isn't what you said in your closing? I don't have the exact words of the closing, but that was... I think your other question is, why shouldn't the government be held to what it argued? We just stop you for a second because the last thing you say on count three is, quote, all of the examples that I just went over showed the defendant caused commercial sex workers to travel across state lines for freakoffs.

The defendant is guilty of count three based on any single one of these instances. Then you say, let's move to count five. So that's how you started and ended count three. So the point was the government, in closing, went over several examples. It was not a comprehensive list of all the instances of travel because... No, but the theory was that he caused commercial sex workers to travel. That was the theory on which you asked the jury to convict Mr. Colms on count three. Sure.

Not that he caused Ms. Ventura to travel or that he coerced Ms. Ventura into something. The theory was he caused commercial sex workers to travel other than the constitutional challenges. There's no sufficiency of the evidence challenge to that for good reason. It looks pretty much like he did. But that's the government's theory, right? That was the government's argument at closing. I think kind of backing up the import of this line of questioning is shouldn't we hold the government to what it argued in closing. And I don't think that that's right.

I think the theory is, if the government made this argument, doesn't that mean that the jury accepted that argument and didn't consider any other possibilities? And I don't think that that's a fair inference. What we're trying to do here is to figure out where, draw this line. So the jury quitted on certain things and convicted on other things. So what does a jury have to rely upon? Don't you think they're listening very intently to the closing argument? Isn't that going to be very, very important in their consideration? Of course, Your Honor, of course. But the jury is in this case, was properly instructed on each element of the Mann Act and had to find each element of the Mann Act met beyond a reasonable Dell. And I think it's, you know, as a logical matter,

I think it's an impossible task to discern the minimum quantum of evidence that would be sufficient to sustain the government's burden. And I think that that sort of inquiry also goes against this court's precedent, specifically the Martinez case that says a court only knows what the jury's verdicts were, not what the jury found. Well, right. And that, I don't think anybody's questioning that. But the problem for the government is that there's a new guideline that says, figure it out, that basically says there is such a thing as acquitted conduct. And as Judge Supermanian pointed out, I think, quite accurately, in speaking with the greatest amount of precision possible, there is no such things as acquitted conduct.

Juries don't acquit people of conduct. They acquit them of charges. They find that certain elements were not proven beyond a reasonable doubt. They don't find that someone's innocent. But now the guidelines have been amended, so there is a thing called acquitted conduct. We've got to figure it out. So the question is, how do we measure that? So we're not looking at general principles like Martinez saying, did the jury find something?

The only place that you're going to find, I think, in our case where we say in acquittally necessarily implies something is in our collateral estoppel branch of double jeopardy jurisprudence. And I think, I guess one question I would have for you is why would that not defeat the government's argument, at least with respect to coercion in this case, if, for example, the jury. had hung on the sex trafficking count, right? If the jury had hung on, well, no, let's, no, my hypothetical is spinning out of control. I guess what I'm wondering is if there were some hypothetical additional count that the jury had hung on here that required a finding of coercion with respect to the two victims, why you would not be collaterally estopped under the double jeopardy clause from retrying the defendant on that count.

Let's say there was a conspiracy to commit sex trafficking. Well, let me just push back on this hypothetical that a foundational issue that I have is that the defendant was not acquitted of coercion. He was acquitted of sex trafficking by force, fraud, and coercion. The jury was never asked, was there coercion? Well, under that theory, there is no such thing as acquitted conduct. So you're kind of fighting the very principle of the guideline. You're saying that because there were three alternate elements, I think, fraud, force, or coercion, that because there are three alternate elements, there is no acquitted conduct.

But you have to accept the premise because the guidelines have been amended. There is such a thing as acquitted conduct. So why don't you tell, actually, let me preempt this way, under your view, with respect to count two, what is the acquitted conduct? So the commission thought very long and hard about this issue, clearly, and they declined to set any bright-line rules defining. Yeah, but here we are. Exactly.

So what's the government's view of what the acquitted conduct is underlying count two? So I think Judge Subraman's test, which is... No, no, no, no, that's, I think Judge Suburbanian's test is what's overlapping conduct. as a first step to Judge Subramanian's test, he described acquitted conduct as conduct that underlies the counts. Yeah, so you tell me what conduct underlies count to. What specific conduct? Well, I think a good example of conduct that could be considered acquitted conduct that the judge did not consider in applying the exception was the intercontinental video. That, of course, was evidence presented at trial that showed the defendant assaulting Cassandra Ventura during the course of...

So that's acquitted conduct in your view. I think that that's a fair characterization. So that's a use of force, but the other conduct that illustrates use of coercion is not acquitted conduct. So the reason that that's acquitted conduct, in my view, is because that does not tend to prove the element. of the Mann Act. No, no, that's the second question. No, no, no. There's two things here.

You can have acquitted conduct and you can have a fence conduct into the guidelines, and they can overlap. And that's by the guidelines, say, where they overlap, you can consider them. So the government sort of doesn't lose

by saying something's acquitted conduct here because then the district judge, if it's overlapping, can still consider it. Right. So let me ask it this way. There is evidence on the flight back from Khan that Mr. Combs sits next to one of the victims and shows these videos of the events that have happened in the past and the government's argument to the jury is that's coercive,

right? This was an implicit threat, right? His discussion of releasing these videos was implicitly, if you do not continue to engage in this conduct, I will release this publicly and that will destroy your reputation, right? That's right. So it seems to me that that's clearly a quitted conduct, I thought the government's argument is that it is also offense conduct. And therefore, because it's overlapping, the judge was allowed to consider it. So I want to ask you about just the first part of my question. Okay. In your view, did what Mr. Combs do on the plane back from Con also constitute acquitted conduct? So I think the answer is maybe. I think it depends on the definition of acquitted conduct.

Okay, under the government's definition, is it acquitted conduct? I think the judge properly... No, no, no, under the government's view, forget it. Let's pretend it's before sentencing him. Under the government's view, is that acquitted conduct? I don't think that because the defendant was not acquitted of coercion, I don't think it's necessarily... Unless you're saying he wasn't acquitted of anything.

Because if there was fraud, if there was forced, there was fraud or coercion, he's guilty, right? What I'm saying is, no, I don't think that that's right. It's not just if there was force, fraud, or coercion, he's guilty. He had to know or recklessly disregard. Right, there are multiple elements. But I think what your argument would lead to is that there's no such thing as acquitted conduct, because there's always multiple elements. One can't, from a jury's acquittal, ever know which of the elements they found unsatisfied.

If so facto, there's never a category, there's never a bucket that's filled with something called acquitted conduct. Tell me why I'm wrong about that. In what world is there a bucket that's full of acquitted conduct in your position? Your Honor, I think the, this case is, I think, presents a lot of gray lines. And I think that the cases that come up in some of the dissents that the panel has already mentioned related to drug cases, for instance, where there's a conviction on a conspiracy account. and an acquittal on a distribution count, or vice versa. And there's a special interrogatory where the jury finds specifically some amount of drugs.

Like, I think that is very easily described as acquitted conduct. Absent is special interrogatory. When does your test yield anything that constitutes acquitted conduct? Your Honor, I think that in those sort of more straightforward cases where facts were presented directly to the jury and rejected by the jury, I think... When does that ever happen except with the special interrogatory? I think that can happen in, for instance, a two-count drug distribution case. In one count there's a conviction, in one count there's an acquittal.

I think the acquitted weight of the drug. Well, but each of those counts, let's assume it's a distribution count. Each of those counts is multiple elements, right? Knowing what the drug was, distributing it purposely, right? I purposely handed it to you. That's I knowingly distributed it. But also knowing that it was heroin, right? Because the defense might have been, oh, I thought it was fake drugs.

I thought I was cheating. Each of those has multiple elements. So you're always going to be in a position, if you're the government, taking the position I think you're taking, of saying, well, I don't know whether the jury found that he didn't know it was heroin, or I didn't know that he thought that he was purposely distributing it or whatever it might be. So I don't understand your argument. I think going back to the guideline itself, which does create a thing called acquitted conduct and convicted conduct, the commission deliberately did not define either term, leaving us in this position.

But it clearly must have something. content. Exactly. I think that's right. And it can't be what we have always said under the Sixth Amendment is true that there is no finding implicit in a verdict of acquittalment. So that's off the table as to what the commission was trying to say. That's right, Your Honor. And what the commission did say is that the court is in the best position to determine what is acquitted conduct and what is convicted conduct. But according to some rule of decision, not in terms of arbitrarily deciding A in one case and B in another. So we are tasked, as the district court was, with coming up with an articulable rule. Sure.

So here we are. And can I ask you please to articulate what is the government's, what's the principle, we have to write an opinion. The same question I posed to your friend, we have to write this opinion. What is the principle that distinguishes acquitted from, um, um, um, um, um, um, um, um, convicted conduct. So acquitted conduct, one thing that I think is supported by the commentary is that conduct that underlies an acquitted charge can be considered acquitted conduct. That's like the first step. The second step, of course, is whether that conduct can nevertheless be considered as relevant conduct.

But that's the that first step, what is acquitted conduct? What Judge Subraman did is said acquitted conduct is conduct that underlies unacquitted count, right? And under that definition, in this case, there was a lot of overlapping conduct. And so he had to determine what overlapping... So how do we know whether there is overlapping conduct? Where do we look to to determine that? I think that's where the judge's discretion, the judge who's overseen the trial, But this is, we're trying to find out what the, the purpose of the guideline is to make sure that the jury's acquittal isn't negated.

So we're trying to understand, and this is difficult, right? We're trying to understand what the jury did. And we have a conviction and we have an acquittal. So we're trying to understand what the jury did. So I think that the appropriate test here is the test that Judge Supermonian articulated, which is to assess whether the conduct can still be considered. as relevant conduct for the purposes of the guidelines, he looked to whether that conduct tended to establish an element of the convicted count.

And in this case, those two narrow instances of... Well, let me ask you that. Why is the coercion tend to, say, with conflict? Why does the coercive nature, or the coercion, strictly speaking, tend to establish the Mann Act as opposed to, let's take the coercion on the equation. The fact, you can still look at the underlying raw facts, Mr. Combs coming back in the plane, sitting next to Ms. Ventura showing the videos and all that. That could evidence could still be considered, say, fairly to ascertain what Mr. Combs' intent would be for the events that would follow.

And yet, it could not say, under the defense's view, be. considered for purposes of establishing coercion because coercion was an element of one of the acquitted offenses. So I think to answer your first question, which is how does the travel in con and the situation on the airplane, how does that establish the Mann Act? I think it's for the reasons that Judge you articulated in your colleague with my colleague. Right, right, right. I'm saying, let's grant you that. Let's hypothesize that the events in the airplane are admissible and we're properly considered by the judge to figure out, did Mr. Combs really intend what was all going to happen was going to happen? Let's just posit that. But isn't there a world in which the guidelines

said, yeah, you know what, that's fine. Consider it for purposes of the Mann Act elements. But you can't draw further conclusion that that was coercive in nature. Well, the guidelines... That's what the jury said did not happen or did not find that happened. And therefore, would it be on. So I think because this acquitted conduct tends to prove an element of the man act. That's the coercive nature of it, the inference that it was coercive, because I think that's really a distinct fact, right? That inference is, coercion is defined in the guideline. The fraud and coercion guideline, or excuse me, enhancement, is set out in the guideline. And the definition under that, coercion under that enhancement. Well, let's assume it is coercive conduct.

I think what Judge Nardini is asking, and I have the same question is, how does the fact of its coerciveness, in form, tend to establish, in whole or in part, an element of the Man Act offense? I think it relates to the temporal proximity between the coercion, the threats, I'll call it, the threats, the transport, and the demand for a freak off. So let's say the conversation instead was, instead of it being coercive on the plane, was when we get back, my plan is to fly some escorts in and you're going to have sex with them, and I'm going to pay them for that. Sure. I think that would establish the intent. Exactly. So why is the additional aspect of that conversation that encounter on the plane that's described, that the coercive aspect of that, why is that add anything to establish a polar in part the man-outher? Because I think it's what he's asking for.

It's the threats are not followed by a request to go to dinner, a request to, you know, ask Cassie to do the dishes. Those threats are followed by a demand for a freak off. So the coercive nature of the threats are directly relevant to the intent to have the freak off, which then later happens. Well, okay. Except you've agreed that it didn't need to be coercive in order to support that. No, not necessarily.

It just so happened in these two specific instances. The threats did amount to coercion under the enhancement. And I think that that was, you know, I think Judge Subraman approached. I asked a hypothetical, and I don't know, it doesn't map onto this case, but I'm trying to make sense of the acquitted conduct guideline. we have a defendant who's charged with murder he points a gun at the victim's head he pulls the trigger at point-blank range

kills the victim he's charged with first and second degree murder the jury acquits a first degree which would have required a finding of free meditation but it convicts a second degree murder let's say it was some sort of heat of passion or something he just did on the moment comes to sentencing is the premeditation, which is purely mens rea, in your view,

acquitted conduct or not? And if so, is the judge, in my hypothetical, allowed to make a finding of premeditation by a preponderance and sentenced the defendant accordingly under the guidelines? So the premeditation, I think... Because what I'm trying to do is draw a distinction between the actions, the physical actions. And I'm going to analogize that to Mr. Combs coming back in the airplane, sitting next to Ms. Ventura, showing the video, saying the words he said.

Those are sort of raw facts. Clearly, they underline my hypothetical. Clearly, the underlying facts of the man reaching over with a gun, pulling the trigger, and killing a victim are raw facts. clearly in my hypothetical they underlie the second degree murder conviction sure but the jury has quitted on first degree murder meaning they have not found premeditation beyond a reasonable down it seems to me that if we pursue the government's theory here which is you can consider the facts surrounding the walking back in the plane the showing the videos and all that

that, and then the judge can draw whatever inferences the judge thinks appropriate because the facts were properly before the jury on the conviction, then the judge, in my hypothetical, would be able to find premeditation by preponderance and sentence accordingly under the guidelines amendment. Is that your view? I think that's right. I think that's right, Judge, assuming I'm tracking your hypothetical. And you don't think that that is. is what the commission was trying to avoid?

No, I think the commission understood that there's overlapping conduct, right? Especially in trials of these nature, this nature, where these different counts rely on the same factual instances to prove the different counts. I guess just from my gut instinct, it seems like my hypothetical would be the prototypical example of what the guidelines as amended we're trying to avoid. So it seems hard then. If that is the government's view of how it would map out in my murder hypothetical, it's hard to accept how plausible the government's reading of the guideline is.

Your Honor, I think hypotheticals are, I find very difficult in this context. The Commission understood that these situations are incredibly fact. intensive and that's in large part because they only come up after a trial and trials are all different right and evidence comes in in different ways and and weaves together differently this is a very fact intensive inquiry I think what judge Subraman did here is he he looked at the entire record all eight weeks and imagine that being like like a pizza right he's thinking about the the entire trial as a pizza, all the facts, all the evidence adduced during that eight weeks. But in considering the guidelines, he's not considering that whole pizza pie.

He's considering a slice. And what's in that slice, it's what tends to prove the man act. And that's why when he looks at the two specific incidents of coercion, those incidents are specifically tied to transportation. They're tied to the manner. And I guess that's where I'm suggesting that. I don't know how to follow the pizza in that, of course, I won't try. That it's a little bit more analogous in my murder hypothetical, that the judge in my hypothetical can consider the physical actions of people,

pointing the gun shooting, the bullet hitting, the victim dying, but would not be able to consider the additional inference of premeditation So you can still be considering the slice if the slice is considered the evidence of the foot before the jury. But I'm suggesting or imposition the possibility that the guideline might limit the inferences that can be drawn to the extent those inferences are part of acquitted conduct. And not also inferences that would themselves constitute an element. of the offense? I think that's right. Again, I find it very difficult to think about these hypotheticals in the abstract. But I think here that that slice of conduct that the judge considered, those two very narrow instances of transportation, I think undoubtedly tend to prove the man

act and also meet the requirements of the enhancement under the guidelines. change the subject a little bit. We talked about any number of issues today. Can I ask you specifically about the leadership enhancement? Of course. Of course. Of the very specific questions we were talking about with your colleague on the other side was whether as the government submits there are at an irreducible minimum five criminally

responsible participants in the Mann Act. And the government, as I understood your brief, said, well, there's Mr. Combs, number one, there are the two victims. That's right. Cassie and Jane, yes. And the government posited that the two escorts who were transported across state lines. No, that's actually, that's slightly inaccurate. Yeah, it's... So when you clarify.

Of course. The five criminally liable participants besides Mr. Combs are, as you said, Jane and Cassie, the two victims. And then two of the owner... of an escort service. They weren't escorts themselves, but they were owners of the service who facilitated the transport of escorts who worked for that service.

So your argument is that because they were involved in the transportation, and obviously, in your view, the evidence showed that this whole thing was clearly designed for prostitution. That's right. You're up to five. That's right. If we were to agree with you on that point, does that make

the whole question of acquittance? conduct with respect to the leadership enhancement go away? Yes, Your Honor. And I believe it also, it could go away in another independent way, which is that the conduct was otherwise extensive, which is another prong of the leadership enhancement. And I don't think that the defendant even challenges that in his reply. So the leadership enhancement is met in both of those ways. With respect to... Were those who remind me, and I should know this, and I don't recall, did the government present

arguments that the escorts and their employers were members of the alleged racketeering enterprise? No, Your Honor. The only individual that the government identified as a criminally responsible party. for the purposes of the leadership enhancement was Christina Corum, who was an employee of Mr. Combs and who was alleged. My question was about in terms of when you argued the RICO conspiracy count to the jury, did you argue that the escorts or their employers were members of the RICO conspiracy? No. So I take it your argument would be that to the extent the district judge could permissibly consider the escorts and their employees.

there would have been no overlap at all with acquitted conduct. Exactly. That would be your argument. Exactly. And then can you remind us who the judge said, I know I have this here, who the judge said were participants? Who were criminally liable participants? For the purposes of the increase, right? James and Collins.

Ventura. Ventura, Jane, Corum. Corum, who was the only employee. And then James and Bridget Collins. Bridgett Creshover Collins, yes. Those are the two escort employers. If we were to say to drop out for them. That's right.

You still have five participants. That's right. And that's, okay. And that meets the enhancement. That's right. And then he also said the services are numerous outsiders that were peculiar and necessary defense. That's right.

And that is to say. But some of whom he included among that number of his assistance. That's right. But the assistants were not alleged to have been part of the racketeering. enterprise. So that is, like I said, that's another way to support the application of the leadership enhancement in that case without even touching acquitted conduct or potential acquitted

conduct. You know, with respect to the 3553A factors, you touched on this briefly with my colleague, but as judge you pointed out, the case law is binding that under the 3553A factors, sentencing courts can consider acquitted conduct. But I just point out that what the judge did here, what really drove his Section 3553A analysis, didn't rely on acquitted conduct. It didn't even rely on disputed issues to begin with. And let me just give you an example. In assessing the history and characteristics of the defendant, the court found that the defendant abused the power and control he had over the lives of women. He professed to love dearly. He abused them physically, emotionally, and psychologically.

That's not acquitted conduct. That was all admitted conduct. The defendant admitted from the outset of the trial that the defendant engaged in horrific domestic violence. And so all of that conduct was admitted. In assessing the seriousness of the offense, the court noted that the defendant applied Ms. Ventura and Jane with drugs. That was also admitted. The defendant admitted to personal use quantities of drugs that he shared with his girlfriends during freakoffs.

That was admitted. In thinking about the seriousness of the offense, the court found that the conduct occurred for over a decade and with tremendous frequency over that time period. That has nothing to do with acquitted conduct. On the drugs, let me just ask. If you had said he had drugs of his own and he shared them with Ms. Ventura and Ms. Doe, I understand your argument that's not acquitted conduct. You've just said he plied them with it, which sounds to me very much like coercion, which is what you're not. we've been talking about, may or may not be a put in time. The testimony was that the drugs were shared at these freakoffs and hotel nights with the

girlfriends so that they could get through the freakoffs and the hotel nights. The word you just was plied, which to me is using the drugs to get their compliance and participation, which, again, goes back to coercion. But there are least facts that he shared drugs, is the point. But did Judge Supermanian talk about plying? Shared drugs. Those were Judge Subramanians. So that sounds like he's talking about coercion. Well, I think the point of that is that he shared them, not just shared them with drugs,

like shared them with girlfriends trying to be nice, but he shared them in the context of freakoffs and hotel nights so that those women could get through the hotel nights and freakoffs. They both testify. You're saying there's sort of a level of misconducts that falls short of coercion? Is that what you're suggesting? That's exactly right. admitted and that those categories of misconduct involve physical abuse which was fully admitted. Did Judge Supermanian say anything to suggest that he was thinking about a category

of misconduct short of coercion or do we need to interpret those statements in light of what he had previously stated, which was that there was coercion and that even if he called could not consider the coercion of the guidelines, he would nevertheless do it under the 3553A factors. So why should we, in other words, considering he already said there was coercion, why would we not read those comments as his illustrations of the coercion rather than a suggestion on his part that they were misconduct that fell short of coercion? I think you can, you read the words of the conduct that he's describing,

and what I've just read is admitted conduct. So call it coercion, call it physical abuse, it's admitted. Well, but again, the words the judge uses are you plied them to drugs, forcing Ms. Ventura into addiction. That may well be true, but our question is not whether that's supported by the fact. Our question is, doesn't that show the district court considering the conduct that is coercive? because plying and forcing don't sound like something different than coercion. I think that in this case where the drug use and the drug sharing was admitted,

I think that that can't be acquitted conduct. I think that that's admitted conduct. And I think that the judge is free to consider it, and especially in the 3553A context, where there aren't restrictions on considering acquitted conduct. under the binding precedent of this court. So I think that the judge was, I wouldn't necessarily agree that he's describing coercion. And I think even if he were, he would be free to rely on that in imposing the sentence under the 3553A factors.

At which point, then we get into the constitutional question, if it is in fact acquitted conduct. That was not. That's right. Yeah. That's right. We've been talking a lot about the guidelines and Judge Sumanian's application of the acquitted conduct guidelines. And the last thing that I would say on this is that even if Judge Sumanian made an error in his application and interpretation of the acquitted conduct guideline, which we don't think he did, but even if he did, that error would be harmless.

And that is because he unequivocally and explicitly stated that he would impose the same sentence regardless of the acquitted conduct guideline. He reviewed voluminous sentencing submissions. He noted at the outset of the proceeding that there was a general lack of guidance with respect to this guideline. He considered the arguments of all the parties, and he provided detailed reasons for his application of the various enhancements. Could you remind me, I think I asked this question to your colleague on the other side.

Just remind me, I recall that as he found individual sentencing guideline enhancements, he then would say, I impose this enhancement, even if the quitted guideline conduct, even if the acquitted conduct guideline does not permit me to do so, I would have closed the same sentence anyway. So he did this with respect to each of the three enhancements, right? So, he said he say something at the end that one could read as a wrap-around, and even if I have erred with respect to all three enhancements, or did he only say that those three points? So I think when you look carefully at the record, he noted that his sentence would be the same, regardless of the acquitted conduct guideline with, excuse me, with respect to the fraud and coercion

enhancement and with respect to the leadership enhancement. I don't think he made the same sentence, the same statement, with respect to the victim grouping enhancement. So let me ask you this, wouldn't there be an argument on the other side that even if we were to take a face value, the district judge's statement that he would have imposed the same sentence, even if any one given guidelines enhancement was erroneous, if we were to conclude that two or more were erroneous, then we don't know what the sentencing judge's intentions would be and we would normally send it back.

Is that, would you agree or disagree with that statement? No, I think I disagree, assuming I'm tracking this correctly. And I would point to the JAS and DARA cases from this circuit where both courts were interpreting a new guideline enhancement. And like in the case here where the court, where Judge Sumanian was interpreting the new acquitted conduct guideline. And in those cases, the courts noted that this was a new guideline, there was some ambiguity, and that even if they got that guideline wrong, which the court ultimately, decided they did, they would impose the same sentence regardless. And that's exactly the situation that we have here. With respect to the acquitted conduct guideline, which is the guideline that could affect the fraud and coercion enhancement and the leadership enhancement, Judge Subraman

specifically said that it doesn't matter if the acquitted conduct guideline applies here or not, I would impose the same sentence. He did not say that with respect to the victim, grouping enhancement, which has nothing to do with the acquitted conduct guideline. And I think that's a good example of why Judge Subraman's statements that he would impose the same sentence regardless are not just simple incantations of magic words to evade appellate review. He specifically noted the ambiguity of this particular guideline that would affect those enhancements, and therefore or any potential error, which of course we would submit there is none, any potential error would be harmless here. Can I see this question? Would his 50-month sentence be substantively unreasonable in the absence of the district court's factual findings as to violence and corruption?

Just as an initial matter, the substantive unreasonable argument, I think, was waived. That was not raised by defense until the reply brings. That's, again, a matter of nomenclature. They make a pretty good argument in an opening brief that in substance is that the sentence was substantively unreasonable. So I understand your point about later. So in determining whether something was, whether a sentence was substantively unreasonable, this court has to review in light of the 3553A factors. And as I mentioned, the 3553A factors were very thought.

fully considered by the district judge. I realize that if we took off the table the violence and coercion, this past muster as, would this be a substantively reasonable sentence? Your Honor, I don't think you have to because under the 3553A factors, all acquitted conduct can be considered. But even if you did. I realize that, but I just, let's assuming for the purposes of my hypothetical, assuming that we take off the table the violence and the coercion, right, with.

this sentence be substantively unreasonable? Your Honor, with the caveat that I strongly disagree that we need to take anything off the table for a 3553A, a sentence is only substantively unreasonable if it is manifestly unjust or shocks the conscience. And we see that sort of dynamic in some of the other cases. I'm thinking of the Jones case in which Justice Scalia dissented. I can't remember the difference between the guidelines without consideration of acquitted conduct, but it was something astronomically high. And here, the 50-month sentence was below guidelines and reflected the fact that the judge really did consider the fact of the acquittals. If the judge had just ignored the

acquittals and sentenced on the trafficking or the racketeering, the sentence would have been at least 15 years. There's a 15-year mandatory minimum term with a trafficking charge. This 50-month sentence was well below and well in line with other cases in this district. Judge Subramanian was very focused on other Mann Act sentences and asked the parties to provide a list of Man Act cases and the sentences. And so he was fully aware of the different ranges of sentences that Man Act defendants get. And that, you know, was a consideration, of course, under the 3553A factors, but it was appropriately weighed against other 3553A factors in this case.

That was a no? I just want to be clear. Was that a no? I don't remember the original question, but I think that's a no. You're on. Let me rephrase by a visual question. I said you're very good at evading my question. It's pretty good, actually.

If I was a district judge, I would say the witness will be responsive to the question. So would his 50-month sentence be substantively unreasonable in the absence of the factual findings of violence and coercion? And the answer is no. Thank you, Judge Nardini. That's what I thought you were going, but I wanted to make sure that we had an answer to the question. And let me just ask you on the substantive reasonableness point, I think what I think I heard you said is that it wasn't raised in the blue brief, right? That's right. And this is a procedural unreasonableness claim that the guidelines weren't followed and there's violation of Sixth Amendment.

That's what your response is. Sorry, say that again? And that it's a procedural reasonableness challenge that goes to the guidelines and then to the Sixth Amendment. That's right. about fact finding, that's what I understood your response to me? That's true. That's right. Much more succinct than I put that. The response. I understood

what your view of the framework is. Yes, that's right. The only thing that I want to add relates back to the Mann Act and I just would correct the record that in closing in the government's closing

argument, the summary chart that the government pointed to did include the incident related to Jane that took place, and I think it was October of 2023, where the defendant made threats to Jane's rent. Do you have a page number in the appendix, just so we have it handy? I have the government exhibit, which is 1406. 1406?

Yes. Yeah, we'll find it. Okay, I think we have exhausted our supply of questions. Counsel, you're saying that that argument was raised in your closing about Jane. Yes, it was in the summary chart that the government relied on. lines and that that's sufficient to say that you were arguing that jane was transported as a premise for the man act conviction in count five that's right and that's at line 38 on government exhibit 1406 yeah again even though the actual verbal summation says for the defendant's hotel nights with jane

there are also many examples of the defendant transporting escorts and that's that's the discussion you have verbally and you do say in passing here by the way check out 1406 you should refer to that chart. It has a lot of information in it. That's right, Your Honor. Okay. Thank you. I'm sorry. I'm sorry. Just to clarify, the escort traveled for that particular hotel night. It was not Jane who traveled. Just to clarify.

So that exhibit 1406 is going to show us in your view that the escort traveled for that episode with Jane. That's right. That Judge Subramanian talked about at sentencing. That's right, Your Honor. Okay. Thank you very much to the government. believe it or not you have you have reserved two minutes but we're going to give you a little bit longer

because this has been extensive but we're not going to go crazy because we have kept you up considerably past your initial time why don't we try to give it to five though thank you our highlights I'll go as quickly as I can because your briefs I will say this on both sides briefs are excellent really do a great job laying out the issues

this has been very helpful but why don't we give five minutes of rebuttal so I'll just ask the courtroom there we thank you just just real quickly on the point about Jane I don't want to dwell on that. Our argument about Jane, which is set forth in the reply brief, is that is not that that hotel night didn't occur. It's that it wasn't connected to any threat,

and there's no evidence of any threat. With respect to the harmless error issue, I want to highlight a couple of points. First of all, under all the case law, Gall, Rita, and their progeny, substantive unreasonableness is determined based on the guidelines as a starting point, just as the guidelines are a starting point. Yeah, but you didn't raise substantive unreasonable. No, what we raised...

You have a pre-full of procedural. What we've argued is that if we're right about the guide, one of the reasons we'll write, that a remand is required, is that if we're right about the guidelines, the sentence would be subsidized. Sure, that I get the anchoring. That's the point there. And we rely on the Jones case also for the point that acquitted conduct,

using acquitted conduct would make the sentence unreasonable. With respect to, I do want to be clear on the 3553. My friend on the other side kept saying that we admitted that our client plied Cassie with drugs and so on. None of that was admitted. That's not what was admitted. What was admitted was the unfortunate domestic violence only with respect to Cassie. But you don't dispute the district court's factual front. The district court made factual findings that he plied them with drugs.

Well, we do, we did dispute that below, but more to the point. That's a fact we take as a given because that factual. The evidence was quite mixed and there was a lot of debate about this in the trial. And I think one of your honors in their questions got at the fact that the government's arguments about the drugs were part of their arguments about coercion, the way in which the drugs were used and so forth. I don't want to dwell on that. I just want to be clear that that was heavily debated at trial,

and that was part of what he was acquitted of when he was acquitted of sex trafficking. With respect to the leadership, just real quick, we do contest the otherwise extensive as well, and this court's case law actually highlights that with respect to otherwise extensive, extensive. It is kind of a head counting exercise anyway, and the owners of those escrow services were not criminally responsible. There wasn't evidence of that. Those were legitimate businesses, and there's actually text messages where one of the people is telling Mr. Combs that you're just paying for their time. But most importantly, I want to turn to the acquitted conduct guideline.

Under the government's view, the guideline would be totally pointless. McClinton itself, which is probably the proximate cause of the commission sitting down to write the guideline, illustrates the point. In McClinton, the defendant was acquitted of a murder charge and convicted of a charge that involved an armed robbery. And so clearly using the gun was related, underlied the robbery conviction, yet the defendant was acquitted of murder. I was telling myself I wasn't going to ask you any questions in the rebuttal, but I am. Could you respond to the hypothetical I gave to the government about the first and second degree murder case where the defendant is acquitted of first degree premeditated murder, convicted of second degree murder? What in your view, assuming the only difference in the elements is premeditation or not, just posit that.

what is the acquitted conduct in that case? I assume that the government would have had to put in some kind of evidence that... Oh, I'm sorry, I'll remind you. My hypothetical is, let's say this is the only evidence in the case. The defendant reaches over with his loaded gun, puts it at the temple of the victim, pulls the trigger, and the person dies. That is the sum total of the evidence, and the jury quits of premeditation, but convicts of second.

degree. In my hyper-simplified hypothetical, what is the acquitted conduct? I mean, I guess I feel like I would have to know more facts, but obviously the defendant was acquitted of having decided to shoot the person with premeditation. Maybe it was in the heat of a fight or something like that. So they were acquitted of the premeditation, but convicted of killing the other person intentionally, nonetheless. I guess where I was thinking is that all of my evidence is acquitted conduct, the pointing, the pulling the trigger, and the killing, and the premeditation is all acquitted conduct.

And the convicted conduct is just the death. You can look at all of the conduct, the point of the gun, the pulling the trigger, the shooting, because that constitutes an element of the same. of the second-degree murder, but you can't look at the premeditation because it's an element of the first count. But it's not an element of the second count. I think that's correct.

I think that that is correct. You know, it's similar to another, my time is running out, but there's a hypothetical that's discussed in the hearings that led to the guideline in which someone poses that there's an arson and there's a charge that the arson was racially motivated.

and the defendant is convicted of an arson charge, but acquitted of the charge that involves the racial motivation element, which is similar to that hypothetical. And I think the answer is the defendant is guilty of arson, but you can't enhance the sentence based on a racial motivation. And I think that's just like this case where, you know, the Mann Act doesn't require proof of the coercion. I stole a couple of your minutes, so we'll give you two more minutes. I just, just in closing, you know, 12 New Yorkers took two months out of their lives to serve this jury. They listened to 34 witnesses, reviewed thousands of text messages, videos, and other evidence, and deliberated for two and a half days. Their unanimous verdict was not guilty on the

most serious charges, and the jury did not authorize punishment for sex trafficking or conspiracy, but that's what drove the sentence. Here, we submitted the evidence that my friend on the other side describes, which I would urge your honors to look at, which is a docket 510-4 of the district court shows that this was the highest sentence ever for this type of charge with this type of criminal history. And in closing, this appeal has been expedited and actually, I forgot to say, we'll rest on our briefs. We have also argued the convictions should be reversed, but if the court doesn't do that, the appeal has been expedited,

and we would, understanding the complexity of the issue and the importance of the decision and respectfully request that the court, regardless of the outcome, endeavor, to decide the case as quickly as possible. Thank you, Your Honors. Okay. Thank you very much. We will reserve decision, as we do in all cases.

Let me just close by thanking counsel on both sides. This is an exceptionally difficult case. This is a question of first impression, not only for this court, apparently for any federal court of appeals in the country, and we appreciate the quality of the briefing and argument on both sides today. So thank you very much.