At the trial of United States v. Alexander, 24 Cr. 676 (S.D.N.Y. 2026), the government showed the jury a text message six times. The message said “try to orgy them out.” Every single time they read it aloud, they left out the word “try.” Defense attorney Howard Srebnick caught it in summation and said so plainly: “As if the word ‘orgy’ means rape them. That’s what the government is defining orgy. Our government defines orgy in the dictionary of... their dictionary means rape.”
Six readings. One word dropped. Every time. If you want to understand what this prosecution is actually doing, start there.
Nobody is here to defend the Alexander brothers’ character. Multiple witnesses described conduct that is, at minimum, repugnant. Fine. But a criminal trial is not a character hearing, and the question before the court has nothing to do with whether these men are decent human beings. The question is whether what they did satisfies the specific statutory elements of 18 U.S.C. § 1591 and, on Count 12, 18 U.S.C. § 2251. That question turns on what those statutes say. And the government has been remarkably creative about not answering it directly.
Section 1591 came out of the Trafficking Victims Protection Act of 2000. Congress was not thinking about Hamptons house parties. It was thinking about transnational criminal networks, women moved across borders, forced prostitution, organized commercial exploitation. The statute’s title is right there: “Sex trafficking of children or by force, fraud, or coercion.” A “commercial sex act” means one “on account of which anything of value is given to or received by any person.” Coercion means “threats of serious harm” or a “scheme or pattern” designed to make someone believe that non-compliance would result in serious harm. Those are the tools of traffickers. Not the vocabulary of a statute meant to federalize every sexual assault in America.
Prosecutor Andrew Jones had a different read. He told the jury: “It’s not only about pimps and prostitutes; federal sex trafficking, the law is violated whenever a defendant knows he will give a thing of value to a victim to cause that victim to engage in a sex act using force, fraud, or coercion.” Srebnick stood up immediately: “Misstating the law.” The court overruled him. But Srebnick was right. Jones’s formulation does to the statute exactly what the prosecution did to that text message: it drops a word. The word “commercial” is gone. Under Jones’s theory, any sexual assault where the defendant ever gave the victim anything, a drink, a room, a ride to the party, becomes federal sex trafficking. That is not statutory interpretation. It is statutory replacement.
The Second Circuit handed the government the tools to do this, case by case. United States v. Raniere, 55 F.4th 354 (2d Cir. 2022), is where the real damage was done. The court held that “anything of value” in the commercial sex act definition doesn’t need monetary content. Intangible, subjective benefits count, like the sense of status a woman might feel from her position in Raniere’s cult. The court’s logic: “any” is broad, “value” is subjective. Maybe so. But the court never wrestled with the word sitting right in front of those: “commercial.” That word is load-bearing. It’s the reason the statute targets the commercial sex trade rather than all of human intimacy. Strip it out, as Raniere effectively did, and there’s nothing left to distinguish a sex trafficking charge from a sexual assault charge. The fence between those two things is gone.
Judge Valeri Caproni’s instruction in Alexander went further still, telling the jury that a commercial sex act can be satisfied by “recreation or entertainment.” Srebnick asked for those words to come out. “Denied. Next.” So under the instruction the jury received, hosting a party before an assault is the commercial transaction. The invitation is the thing of value. Raniere at least involved a structured organization with deliberate psychological control mechanisms. What happened in Alexander goes beyond that framework entirely, and the court didn’t blink.
Count 12 is the place where the government’s conflation of bad behavior with criminal production becomes impossible to ignore. Oren Alexander is charged under § 2251 with sexually exploiting a minor, specifically for filming himself with the 17-year-old Amelia Rosen in 2009. The government’s pitch to the jury is essentially: video exists, minor was present, therefore production. But § 2251 has a specific intent element that the government has been quietly skating past. The statute requires that the defendant engage in sexually explicit conduct with a minor for the purpose of producing a visual depiction. Not “while” producing one. Not “and also” producing one. For the purpose of it.
That language draws a line Congress drew deliberately. On one side of it: the pornography producer, the person who arranges a sexual encounter with a minor because he wants a video, who sets up the camera first, whose entire purpose is the recording. That person is § 2251’s target. On the other side: someone already in the middle of a sexual encounter who picks up a phone. Different conduct. Different mental state. The Fourth Circuit addressed this directly in United States v. Palomino-Coronado, 805 F.3d 127 (4th Cir. 2015), holding that the government must prove production was the purpose behind engaging in the sexual conduct, not just that the defendant intentionally pressed record. The evidence in this case most naturally suggests that Oren Alexander and Ido Berniker were already having sex with Rosen when the camera came on. If that’s what happened, § 2251 does not reach it, whatever else might.
This is not a defense of what occurred in that room. Whatever happened may be criminal under New York law, under other federal statutes, under theories the government chose not to pursue. But Count 12 charges production of child pornography. Production has a meaning. The government cannot simply gesture at a video and call the element satisfied. The purpose of producing the depiction has to be a reason the sexual conduct happened, not an afterthought that followed it. Congress wrote that requirement into the statute. It is not a technicality to be argued around.
The age element compounds the problem. The Second Circuit has held that § 1591(c) imposes strict liability for age if the defendant had a “reasonable opportunity to observe” the victim. No knowledge required. No reckless disregard required. Just opportunity to look. United States v. Robinson, 694 F.3d 190 (2d Cir. 2012); United States v. Concepcion, 139 F.4th 242 (2d Cir. 2025). The result is a ten-year mandatory minimum that attaches without any proof of guilty mind on one of its most critical elements, which sits in direct tension with what Morissette v. United States, 342 U.S. 246 (1952), established as the baseline presumption of criminal law. Srebnick argued for actual knowledge at the time of recruitment. Caproni: “That’s not the law. The law does not impose a knowledge of age at the time of the recruitment. Denied.” And when he pressed: “Again, take it up with the Second Circuit.”
The reckless disregard theory is no cleaner. Jones told the jury the defendants’ “sex no matter what” mindset meant they “recklessly disregarded or closed their eyes to the fact that force, fraud, or coercion would be used.” Reckless disregard is a forward-looking mental state. It requires a conscious awareness of a substantial risk at the moment of the conduct. What Jones described is a backward inference drawn from outcome: force was used, therefore they must have known it was coming. That’s not a mental state. It’s a closing argument. Srebnick asked for an instruction requiring the defendants to have known “definitively” that force would be used. The court: “That’s not the law in the Second Circuit. That might be the law down south, but it is not the law here.”
The charge conference was where the gap between the statute and the prosecution’s theory became fully visible. Defense attorney Zach Intrater argued that the Count 12 instruction needed one additional word to align with how the case law had developed. The court: “It is entirely changing the law.” Intrater: “But the statute has to be informed by how the case law has developed.” Sent to the Second Circuit. His answer: “I just wish I had the words to convince you on this, because I don’t think there has ever been a case like this before in this circuit.” That is a lawyer telling a federal judge, as plainly as he can say it, that the law being applied to his client has no precedent. The court’s response was to point him upstairs.
Defense attorney Marc Agnifilo asked to read the indictment’s action verbs to the jury. Not argument. Just the words Congress wrote. The government called it jury nullification. The court agreed: “Of course it is.” Both of them concluded that letting the jury hear what the statute actually charges might produce an acquittal, and they treated that as a reason to keep the language away from the jury. That exchange is worth sitting with. The prosecution’s own position is that the statutory text, read honestly, might not reach what the defendants did.
The rule of lenity says ambiguities in criminal statutes go to the defendant. The void-for-vagueness doctrine says criminal laws must give fair notice of what they prohibit. The Supreme Court has said courts cannot add words to a statute or cover cases Congress chose not to include. Lamie v. United States Trustee, 540 U.S. 526, 538 (2004). These doctrines exist because the alternative, criminal liability defined by prosecutorial preference rather than statutory text, is not law. It is power.
Justice McKenna said it in 1917, dissenting in Caminetti v. United States, 242 U.S. 470, when the Court stretched the Mann Act past its evident purpose: extending a statute to cover cases the legislature didn’t intend produces mischief, whatever the motivation. That was over a century ago. The mischief he described is what is happening in this courtroom right now.
The Alexanders may face serious criminal liability. But the charges have to fit the statutes, and the statutes have to mean what they say. A sex trafficking charge built on the entertainment value of a party invitation is not what § 1591 was written to reach. A production charge that ignores the question of why the camera came on is not what § 2251 was written to reach. When the prosecution drops a word from a text message six times, argues that reading the statute aloud would be nullification, and defense counsel tells the court that no case like this has ever been brought in this circuit, those are not incidental details. They are the story.
