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

[00:00:02] Speaker 00:
If I could have a few minutes in rebuttal, Your Honor.

[00:00:06] Speaker 02:
Of course.

[00:00:07] Speaker 02:
You can watch the clock.

[00:00:09] Speaker 02:
Maybe bring the microphone a little bit closer to you if you'd like.

[00:00:16] Speaker 00:
There's a central issue in this case.

[00:00:19] Speaker 00:
There are several issues, but the one I really want to address at the very outset and emphasize

[00:00:26] Speaker 00:
is this whole problem, and I believe it's a problem, of multiple witnesses in a sexual assault case who are testifying as alleged victims to uncharged allegations of sexual abuse.

[00:00:48] Speaker 00:
That's the setting of this case.

[00:00:50] Speaker 00:
Mr. Barrett was charged with the rape and sexual assault of an alleged victim on multiple occasions over a weekend.

[00:01:05] Speaker 00:
She testified, R.G., and she testified to what happened that weekend.

[00:01:12] Speaker 00:
I believe that there are

[00:01:16] Speaker 00:
major problems with her testimony.

[00:01:18] Speaker 00:
I believe that there are issues of real credibility and there are issues with regard to whether the assaults occurred based on a lack of consent.

[00:01:35] Speaker 00:
But what happened here

[00:01:37] Speaker 00:
is that the government, and I believe realizing that they had maybe a case which was difficult to prove because it was he said, she said, essentially, no eyewitnesses, no forensic evidence, a case that occurred years ago, a lack of reporting for four years, I believe, et cetera, et cetera.

[00:02:07] Speaker 00:
So they brought in three witnesses.

[00:02:11] Speaker 00:
One of them, at least, was brought in through a survey.

[00:02:16] Speaker 00:
SF testified, and she responded to a survey somehow that the victim in this case, RG, was involved in.

[00:02:28] Speaker 04:
So can I be, let me just cut to the chase here a little bit.

[00:02:34] Speaker 04:
We may or may not disagree with rules that permit uncharged conduct to be admitted in sexual assault cases.

[00:02:45] Speaker 04:
But we do have rules that permit it.

[00:02:48] Speaker 04:
And so the question here is whether the rules were violated, is it not?

[00:02:53] Speaker 00:
And I agree, Your Honor.

[00:02:54] Speaker 00:
I'm sorry.

[00:02:56] Speaker 00:
Look at that right away.

[00:02:57] Speaker 00:
You have Rule 14-413.

[00:03:02] Speaker 00:
Rule 413 permits, as the court knows, testimony with regard to sexual assaults, additional ones, even if it relates to the propensity of the defendant.

[00:03:18] Speaker 00:
However, it's Rule 403 that bars it if there's undue prejudice.

[00:03:26] Speaker 03:
So are you arguing that because there were three other victims who testified that the cumulative effect of those three additional allegations violates 403?

[00:03:41] Speaker 00:
Yes, I believe 403 was violated in this case because those three witnesses did not satisfy the criteria of the LeMay case, which is the Ninth Circuit case.

[00:03:56] Speaker 00:
which enumerates the five factors that are necessary to in fact admit that testimony under 413.

[00:04:04] Speaker 03:
So I guess what I'm trying to figure out is are you arguing that each one of them shouldn't have been admitted or was it the accumulation of all three of them being admitted that causes the problem?

[00:04:17] Speaker 00:
I believe the cumulative impact was highly prejudicial.

[00:04:22] Speaker 00:
and did not justify its admission because its probative value was slight, if any.

[00:04:29] Speaker 04:
Well, then are you arguing that none of it should have been committed?

[00:04:33] Speaker 00:
I didn't see that.

[00:04:34] Speaker 00:
Well, I wanted to address this SF.

[00:04:37] Speaker 00:
SF was the one who testified to being at a friend's house in Bishop.

[00:04:46] Speaker 00:
And she stayed overnight.

[00:04:48] Speaker 00:
And my client, Mr. Barrett, was in his spare bedroom.

[00:04:51] Speaker 00:
He came over to her den where she was sleeping that night.

[00:04:57] Speaker 00:
And he did some things which are described in the briefs, which, according to SF, constituted some sort of assault.

[00:05:08] Speaker 00:
She told him to stop.

[00:05:09] Speaker 00:
He stopped.

[00:05:10] Speaker 00:
And he left the room.

[00:05:12] Speaker 00:
That had no place in this case.

[00:05:16] Speaker 00:
That was not a sexual assault.

[00:05:18] Speaker 00:
As a matter of fact, there is a stipulation in this case

[00:05:23] Speaker 00:
where a witness by stipulation said that he and his wife, I believe it was a couple in North Carolina, spoke to SF later on and she said nothing happened.

[00:05:38] Speaker 00:
So, Your Honor, that's an example of a uncharged crime, so to speak, that was testified to by one of these alleged victims that should not have been admitted.

[00:05:53] Speaker 04:
Okay.

[00:05:54] Speaker 04:
But it could be argued to the jury that this doesn't amount to a hill of beans.

[00:05:59] Speaker 00:
Well, that's the argument.

[00:06:01] Speaker 00:
But then you have two others.

[00:06:03] Speaker 02:
And if I could address... So, sorry, can I just follow up on Judge Shrier's question, though?

[00:06:07] Speaker 02:
Were there specific separate objections at trial to each of the witnesses, or was it lumped together saying these three shouldn't come in?

[00:06:18] Speaker 00:
Well, I believe there was a motion in Lemony filed with the district court,

[00:06:23] Speaker 00:
And the argument of the defense was that those multiple witnesses should not have testified.

[00:06:30] Speaker 02:
But so is there a separate objection for what you were just saying?

[00:06:34] Speaker 02:
Like, do we have an objection for just that one attempted rape instead of rape that that one shouldn't have come in?

[00:06:40] Speaker 02:
Was there ever a separate objection to that?

[00:06:43] Speaker 00:
I don't recall, Your Honor, except that when the motions in limiting were denied,

[00:06:48] Speaker 00:
by the district court, then of course what followed was the testimony of those three witnesses.

[00:06:55] Speaker 00:
So I'm not sure that there was any additional objections made on the record, obviously.

[00:07:02] Speaker 02:
And so what should we do if we think you might have a good argument as to that one

[00:07:07] Speaker 02:
person and her testimony, maybe she shouldn't have come in.

[00:07:11] Speaker 02:
But if there was no separate objection to her separately, and we think the other ones could have come in, what are we supposed to do at this point?

[00:07:18] Speaker 00:
Well, I think the argument was made in a motion in liminey by defense counsel as to each one of them, and SF was mentioned, and the facts regarding SF, I think, were included in that motion.

[00:07:31] Speaker 00:
That's my recollection.

[00:07:33] Speaker 00:
But there were two others.

[00:07:34] Speaker 03:
But didn't SF testify that he got into bed with her, was touching her, fondling her breasts and genitals, and pushed his erection against her?

[00:07:44] Speaker 00:
Yes.

[00:07:45] Speaker 03:
Wouldn't that constitute a sexual assault?

[00:07:48] Speaker 00:
Well, but that's not the sexual assault that was at issue in this case.

[00:07:53] Speaker 00:
That was in advance, yes.

[00:07:56] Speaker 00:
It could be said that it's a sexual assault.

[00:07:59] Speaker 00:
She told these witnesses by stipulation that nothing happened.

[00:08:03] Speaker 00:
That was her testimony.

[00:08:05] Speaker 03:
What doesn't that come in as a testimony?

[00:08:06] Speaker 00:
I mean, that was related in the stipulation that's in the record.

[00:08:12] Speaker 00:
But there were two other cases.

[00:08:15] Speaker 00:
He meets EB in a climbing gym, and they go hiking together, and they have sex.

[00:08:28] Speaker 00:
they enter into a consensual relationship.

[00:08:32] Speaker 00:
This is not what happened allegedly with regard to the victim in this case.

[00:08:37] Speaker 00:
This is Mr. Barrett having a consensual sexual relationship with EB.

[00:08:43] Speaker 00:
And what happened months later

[00:08:47] Speaker 00:
On one particular night, he's drunk, he's suicidal.

[00:08:52] Speaker 00:
EB calls and gets a friend over because she doesn't know what to do with this man.

[00:08:58] Speaker 00:
And apparently, in this drunken stupor, he gets on top of her, and without consent, according to her, there's sex.

[00:09:11] Speaker 00:
Finally, there's one other victim who testifies to these uncharged allegations, and that's JV.

[00:09:20] Speaker 00:
JV meets my client through Tinder, an application that matches people.

[00:09:29] Speaker 00:
They meet.

[00:09:32] Speaker 00:
They hike.

[00:09:34] Speaker 00:
They go back to a climbing.

[00:09:37] Speaker 02:
You're going to run out of time.

[00:09:38] Speaker 02:
And I have a question about one of the other issues.

[00:09:40] Speaker 02:
So you have this objection to the threats to these other witnesses and the evidence about threats coming in.

[00:09:49] Speaker 02:
And I'm kind of confused on a similar question to what Judge Shrier asked about whether all of that was lumped together.

[00:09:57] Speaker 02:
So what do we do if we think some of that evidence

[00:10:02] Speaker 02:
maybe shouldn't have come in, but other of that evidence that seems to have been all lumped together was proper.

[00:10:08] Speaker 02:
If some of it was okay, but some of it wasn't, but it was only argued as a lump, what do we do now?

[00:10:13] Speaker 00:
Well, Your Honor, if I may, I think the admission of this so-called intimidation evidence under 404B compounded

[00:10:24] Speaker 00:
the mistake made by the district court by allowing all three of these witnesses to testify because the intimidation that they claim was not a common scheme and it wasn't consciousness of guilt.

[00:10:39] Speaker 00:
It occurred over a period of years when he was in a state of panic and

[00:10:44] Speaker 00:
He learned that there was an investigation he might be charged.

[00:10:48] Speaker 02:
Let's just say for a second that I agree with you.

[00:10:51] Speaker 02:
Let's say I agree with everything you just said.

[00:10:53] Speaker 02:
But that evidence was lumped together with the text to the victim here

[00:11:00] Speaker 02:
saying you wanted it.

[00:11:02] Speaker 02:
What if I think that evidence of those texts should come in, but this other threat stuff maybe shouldn't have, but it was only given as a package?

[00:11:11] Speaker 02:
I don't know what to do to separate it out, given that it was all one in the district court.

[00:11:16] Speaker 00:
Well, I think the cumulative impact of allowing all this so-called intimidation evidence creates, along with the multiple witnesses,

[00:11:25] Speaker 04:
It is not fair trial.

[00:11:28] Speaker 04:
The intimidation and the obstruction, I am interested in the sentence.

[00:11:36] Speaker 00:
Well, the obstruction was the sentence.

[00:11:38] Speaker 00:
Yes.

[00:11:40] Speaker 00:
Because, as the court indicates, his sentence was enhanced or the calculation by plus two for obstruction, and we don't believe there was obstruction here.

[00:11:52] Speaker 04:
That is what gave him a life sentence.

[00:11:53] Speaker 04:
Is that correct?

[00:11:55] Speaker 00:
He got a life sentence.

[00:11:59] Speaker 03:
Wasn't the two-point enhancement for obstruction based on his conversation with somebody outside of the jail where he was asking them to fabricate evidence?

[00:12:09] Speaker 03:
Isn't that the two-point enhancement?

[00:12:12] Speaker 00:
I believe that was most of it.

[00:12:15] Speaker 03:
It's not the witness intimidation evidence.

[00:12:18] Speaker 00:
No.

[00:12:20] Speaker 00:
I believe most of it, according to the PSR and according to the court,

[00:12:26] Speaker 00:
was the recorded phone calls, which the court indicated in sentencing he had listened to.

[00:12:32] Speaker 00:
And there was talk between my client and a friend of his about a note, a note he believed was in the victim's car.

[00:12:42] Speaker 00:
And he wanted to retrieve the note.

[00:12:44] Speaker 00:
And they went back and forth.

[00:12:46] Speaker 00:
And my client says, well, if the note's not there, maybe we could just

[00:12:51] Speaker 00:
Prepare one because of what she said about me.

[00:12:54] Speaker 00:
It was all wrong, so we have a right to do it.

[00:12:57] Speaker 00:
Nothing ever happened.

[00:12:59] Speaker 00:
There was no action taken by him.

[00:13:02] Speaker 00:
Obstruction requires action.

[00:13:05] Speaker 03:
A two-point enhancement for obstruction does not require a conviction.

[00:13:08] Speaker 03:
It can be based on things that happened during the defendant being detained, which is what happened here.

[00:13:16] Speaker 00:
That's correct.

[00:13:16] Speaker 00:
No convictions necessary.

[00:13:18] Speaker 00:
But when you look at the cases on obstruction, and I believe some were cited by the government, Lado and Perez, they all required action.

[00:13:28] Speaker 00:
You did witness tampering, or you prevailed on a witness not to testify.

[00:13:37] Speaker 00:
You did things that interfered in an investigation.

[00:13:43] Speaker 02:
Well, isn't attempt to do that enough, though?

[00:13:45] Speaker 02:
Or are you saying attempt isn't enough?

[00:13:47] Speaker 02:
It has to actually, actually interfere?

[00:13:50] Speaker 00:
There was no real attempt, because

[00:13:53] Speaker 00:
No note was prepared.

[00:13:56] Speaker 00:
No note was ever looked at, reviewed.

[00:13:59] Speaker 00:
It was just a discussion.

[00:14:01] Speaker 02:
Why couldn't the threats to these witnesses count to support the enhancement for obstruction?

[00:14:10] Speaker 00:
Well, because I don't believe he ever attempted to obstruct

[00:14:15] Speaker 00:
any investigation in this case.

[00:14:17] Speaker 02:
In other words, before he was indicted... Wasn't there something where he said that he was going to kill someone if they testified or gave statements about the rape?

[00:14:26] Speaker 02:
So why isn't that enough to support the instruction?

[00:14:28] Speaker 00:
What happened is part of a stipulation in this case.

[00:14:33] Speaker 00:
A doctor by the name of Vargas in Mammoth Hospital

[00:14:37] Speaker 00:
received him in the emergency room.

[00:14:40] Speaker 00:
He was suicidal.

[00:14:41] Speaker 00:
He was drunk.

[00:14:43] Speaker 00:
And he said, I want to kill SF because they're conspiring with me to put me away or whatever.

[00:14:50] Speaker 00:
But she says in her stipulation that it never was relayed and he never asked that it be relayed to SF who is one of the multiple witnesses.

[00:15:02] Speaker 00:
It was never received by her.

[00:15:03] Speaker 00:
She didn't get that threat from him.

[00:15:05] Speaker 00:
but other witnesses had the stalking and I mean there were other emails to friends and things so it seems like there was enough evidence to support the two-point I'm really struggling with how there wasn't enough evidence of obstruction well the stalking wasn't in terms of obstruction I don't believe that was EB and he went to her home he stalked her apparently he wanted to go out with her he was a man who was desperate to see this woman again

[00:15:36] Speaker 00:
I don't know of any case that says that that constitutes obstruction.

[00:15:43] Speaker 00:
It's crazy behavior.

[00:15:46] Speaker 03:
Can we go back to the witness intimidation evidence for a minute?

[00:15:51] Speaker 03:
What I'm trying to figure out, was there a motion in Lemony made to preclude the admission of that witness intimidation, or was the motion in Lemony only to preclude evidence that he'd been convicted of witness intimidation?

[00:16:05] Speaker 00:
I think what happened, Your Honor, I think what happened with regard to the 404B on intimidation is that defense counsel for some reason did not argue that it didn't constitute intent, common scheme, lack of mistake.

[00:16:23] Speaker 00:
For some reason he didn't.

[00:16:24] Speaker 00:
But they said it's too prejudicial.

[00:16:28] Speaker 00:
That was their position in the motion in Lumine.

[00:16:31] Speaker 02:
So it was really a 403 motion, not a 404 motion.

[00:16:35] Speaker 02:
That's what happened.

[00:16:36] Speaker 02:
And are you trying to argue to us now that it was somehow plain error to not give a 404 instruction?

[00:16:43] Speaker 00:
Well, that would be part of our argument right now.

[00:16:46] Speaker 02:
But you haven't really specifically said that.

[00:16:48] Speaker 02:
It's sort of been lumped together into it.

[00:16:51] Speaker 02:
It seems like what you've argued is more a 403.

[00:16:53] Speaker 02:
That's right.

[00:16:54] Speaker 00:
And I think to some extent I was reluctant because I realized what was in the record and I realized what defense counsel had done.

[00:17:03] Speaker 00:
And my feeling is that the prejudice argument prevails.

[00:17:10] Speaker 00:
It was unduly prejudicial.

[00:17:12] Speaker 00:
It didn't have the probative value necessary.

[00:17:15] Speaker 00:
But those other elements were not argued under 404b.

[00:17:20] Speaker 02:
We'll still give you a few minutes for rebuttal, but you're way over your time, so why don't we wait and hear from the government.

[00:17:45] Speaker 01:
Good morning, Your Honors.

[00:17:46] Speaker 01:
May it please the Court, Charles Campbell on behalf of the United States.

[00:17:49] Speaker 01:
I'll get to the 413 issue first, but I'd like to begin by correcting a statement about the record.

[00:17:55] Speaker 01:
With regards to the stipulation that was entered as to SF's testimony, the stipulation, it's on supplemental S.E.R.

[00:18:03] Speaker 01:
254 through 55.

[00:18:06] Speaker 01:
The stipulation recounts two parties' memory of the same phone call.

[00:18:12] Speaker 01:
SF recounted that she informed her friends that she had been assaulted by Mr. Barrett.

[00:18:17] Speaker 01:
The friends did not remember that specific allegation and instead just remember that SF had told them that Barrett was dangerous and had assaulted others.

[00:18:27] Speaker 01:
To clear up the record there.

[00:18:29] Speaker 01:
Moving on to the question about the 413 and the admission of multiple witnesses, Judge Alba's order on this point correctly identified the applicable law.

[00:18:42] Speaker 01:
It exhaustively went through the facts, and it reached a supportable conclusion that is ultimately well-founded, well-reasoned, and well-explained.

[00:18:52] Speaker 01:
And it was not an abuse of discretion.

[00:18:54] Speaker 01:
Moreover, to address the question about prejudice,

[00:19:00] Speaker 01:
Defense counsel's arguments at trial were that the 413 witnesses should be excluded as a block.

[00:19:09] Speaker 01:
Defense counsel did not preserve an objection to the admission of any individual 413 witness.

[00:19:14] Speaker 02:
I was just looking at the motion to eliminate that one.

[00:19:17] Speaker 02:
It did argue each of them.

[00:19:19] Speaker 02:
And in the end, the judge excluded one of the assaults against one of them.

[00:19:23] Speaker 02:
So it seems like the judge did sort of understand that it could have been parsed witness by witness.

[00:19:32] Speaker 01:
There was witness by witness argumentation, but the way that Judge de Alba's order was laid out went through the LeMay factors.

[00:19:42] Speaker 01:
And for each factor, it assessed all three witnesses together, which indicates that the way Judge de Alba was approaching it was treating the witnesses as a block.

[00:19:52] Speaker 02:
But didn't she exclude the second assault for one of them?

[00:19:57] Speaker 01:
Yes, Your Honor, Judge De Alba excluded two assaults that E.B.

[00:20:01] Speaker 01:
had mentioned that she could testify about, which does indicate that Judge De Alba was paying attention to each witness.

[00:20:10] Speaker 04:
She had discretion with respect to everything I take in.

[00:20:14] Speaker 01:
That is correct, Your Honor.

[00:20:15] Speaker 03:
And it appears she considered each allegation separately and then the cumulative effect of all of the allegations together based on how she ruled.

[00:20:24] Speaker 01:
That's correct, Your Honor.

[00:20:25] Speaker 01:
Her order specifically identifies guiding precedent from other circuits, as well as an order in a case from the Northern District of California, which had assessed similar facts.

[00:20:37] Speaker 01:
And in looking at those cases and in the text of the order, Judge De Alba explicitly recognized and wrestled with the question of when having multiple 413 witnesses testify to the same persuasive point becomes needlessly cumulative.

[00:20:53] Speaker 04:
Did Judge De Alba handle the pre-trial proceedings?

[00:20:59] Speaker 04:
Is that how this divided up and then Judge Mendez tried the cases?

[00:21:04] Speaker 01:
That is correct, Your Honor.

[00:21:05] Speaker 01:
Judge De Alba was nominated to the Ninth Circuit after the first trial date was continued.

[00:21:12] Speaker 02:
Can I ask you about the intimidation evidence?

[00:21:17] Speaker 02:
I'm really struggling to understand how it could be consciousness of guilt.

[00:21:22] Speaker 02:
Can you try to explain it?

[00:21:24] Speaker 01:
Yes, Your Honor.

[00:21:25] Speaker 01:
The government's theory on this point was that the defendant knew that he had sexually assaulted and or raped the women in question, and that he knew that if those assaults were reported to law enforcement that he would go to prison for a substantial period of time.

[00:21:41] Speaker 01:
The defendant, conscious of his guilt, believed that the best way to avoid being held accountable for his crimes was to intimidate the victims and prevent them from ever reporting.

[00:21:54] Speaker 01:
Thus, the defendant engaged in this years-long pattern of behavior in which he intimidated victims, made them aware that he was following them and knew what their locations were, made public threats.

[00:22:07] Speaker 02:
Well, let's separate a few things.

[00:22:09] Speaker 02:
So there's sort of stalking, which I don't know that it has anything to do with evidence of knowledge of guilt of a rape.

[00:22:17] Speaker 02:
And then there's threats to testify.

[00:22:20] Speaker 02:
And if you hear that someone is going to testify against you, whether you think what they're saying is true or not true, you might just want them not to testify against you.

[00:22:28] Speaker 02:
So I'm a little unsure why the idea that you try to stop someone from testifying against you

[00:22:35] Speaker 02:
shows that you think what they were going to say was true.

[00:22:39] Speaker 01:
Your honor is correct that there are multiple possible inferences that can be drawn from the fact that a defendant tries to persuade a witness not to take the stand.

[00:22:49] Speaker 01:
Judge Alba recognized that in her order, but noted correctly that

[00:22:56] Speaker 01:
the existence of competing inferences does not go to the admissibility of the evidence under Rule 404b, but instead goes to the probative value of the intimidation evidence under the Rule 403 balance.

[00:23:09] Speaker 02:
And it actually is only 403 that we have at issue here, the way this was preserved.

[00:23:15] Speaker 02:
So why is it probative enough to overcome the prejudice here?

[00:23:21] Speaker 02:
I mean, it seems not very probative.

[00:23:25] Speaker 01:
It's probative for two reasons, Your Honor, both of which Judge de Alba identified in her order.

[00:23:31] Speaker 01:
The first is that the testimony from each victim, including the uncharged victims, that they were intimidated, shows the defendant's consciousness of guilt as to the assaults that he committed against those individual victims.

[00:23:47] Speaker 01:
That consciousness of guilt, the fact that he did not want them to testify because he knew he did not want them to testify, did not want them to report, that shows the defendant was aware that he had assaulted each of JV.

[00:23:59] Speaker 02:
Well, I guess that's the question again.

[00:24:00] Speaker 02:
I mean, what if there's just lots of different things you might... If it's equally plausible that he just didn't want them to testify, whether it was true or not, why is it very probative to show that he actually knew he was guilty?

[00:24:19] Speaker 01:
There are different interpretations.

[00:24:21] Speaker 01:
Under the interpretation that the defendant argues, in which your honor seems to be advancing, then in that case, the probative value would be limited.

[00:24:29] Speaker 01:
But the government had a theory of consciousness of guilt.

[00:24:32] Speaker 01:
They argued it to Judge de Alba, and Judge de Alba saw merit in it.

[00:24:36] Speaker 01:
And that was a theory in which, and that is where the probative value stems from.

[00:24:41] Speaker 01:
The argument there being that his consciousness of guilt corroborates the testimony of each 413 victim, and it also corroborates the testimony of KG.

[00:24:51] Speaker 04:
You have to take it in the context, I take it, of the witness's entire testimony, and I suppose the credibility would rise or fall on the whole thing.

[00:25:02] Speaker 01:
That is correct, Your Honor.

[00:25:03] Speaker 01:
The 404, the intimidation evidence was ultimately a small part of what EB and SF testified to, and KG as well.

[00:25:14] Speaker 01:
Even the majority of the credibility analysis that the jury presumably did would have been based on the majority of their testimony on the sexual assault and how they presented on the stand factors like that.

[00:25:26] Speaker 01:
It's worth noting that the other basis for probative value that Judge Alba identified in her order was this notion that there was a common scheme of the defendants to intimidate victims.

[00:25:38] Speaker 01:
And that was specifically relevant as it relates to interpreting the defendant's actions with regards to Kate G.

[00:25:44] Speaker 01:
evidence that the defendant was conscious of his guilt with regards to the assaults on KG is especially probative because that's, of course, the charged conduct.

[00:25:53] Speaker 01:
And the fact, but there is a question, which I think Your Honor has identified, about how to interpret the defendant's actions, the text messages he sends to KG.

[00:26:02] Speaker 01:
For example, the text message in 2019 when KG is in Kentucky and the defendant sends a message essentially saying, I know you're here, I see you.

[00:26:14] Speaker 01:
That may or may not be interpreted as an act of intimidation, but it is more likely to be interpreted as an act of intimidation given the evidence that the defendant had a common scheme to intimidate the women that he had assaulted based on a belief that they were conspiring to ruin his life.

[00:26:32] Speaker 01:
And so those are the two bases for relevance under Rule 403.

[00:26:36] Speaker 02:
Seems like a very thin hook to bring in this other evidence.

[00:26:41] Speaker 02:
And so I'm wondering if it was plain error to not give at least an instruction, a 404 instruction.

[00:26:49] Speaker 01:
Your honor, it wasn't plain air not to give the instruction.

[00:26:52] Speaker 01:
And specifically, the instruction in this instance would have been used to guard against the risk of drawing a propensity inference based on character, which is, of course, forbidden.

[00:27:02] Speaker 01:
But the way that the evidence was introduced here did not lend itself to the jury drawing such an inference.

[00:27:09] Speaker 01:
And that reduces the need for a prejudiced instruction.

[00:27:11] Speaker 02:
Well, why not?

[00:27:12] Speaker 02:
I mean, the jury hears that he's threatening people and stalking people.

[00:27:15] Speaker 02:
Why doesn't that just cause the jury to think this is a bad guy?

[00:27:18] Speaker 02:
Like, maybe we don't.

[00:27:19] Speaker 02:
We're not totally sure whether he did these rapes or not, but clearly this is a bad guy, so he probably did the rapes.

[00:27:24] Speaker 02:
I mean, why isn't that a reasonable thing that the jury might have thought from this?

[00:27:28] Speaker 01:
Two reasons, Your Honor.

[00:27:29] Speaker 01:
First is that the witness had already, the jury had already heard from each witness evidence that the defendant had violently raped several women and violently sexually assaulted a third, a fourth.

[00:27:43] Speaker 01:
that the emotional impact of that evidence was no doubt substantial and would have outweighed any additional impact from learning that the defendant sent threatening text messages and engaged in acts of intimidation after the fact.

[00:27:56] Speaker 01:
So the risk of prejudice was reduced for the intimidation testimony in light of the sexual violence testimony.

[00:28:03] Speaker 01:
And then the second point is that

[00:28:06] Speaker 01:
The risk was, because of the way that the testimony was introduced, there was a reduced risk that the jury would have drawn the forbidden propensity inference, which in this case would have been something along the lines of, the defendant is the type of person who intimidated people, and that makes it more likely that he committed an intimidation.

[00:28:25] Speaker 01:
That wasn't what the government was arguing.

[00:28:28] Speaker 01:
Given that the testimony from KG was already on the record,

[00:28:36] Speaker 01:
And given that the acts of intimidation that KG testified to, specifically things like the 2022 threat, or apologies, like the 2019 text message in Kentucky, those facts were on the record and the defendant did not contest them.

[00:28:52] Speaker 02:
So is 404 limited to the idea that because you did a particular crime, you would do that particular crime again?

[00:28:58] Speaker 02:
Or is it more general that because you did a particular crime, you're a person of bad character and you're more likely to commit other crimes?

[00:29:07] Speaker 01:
404b1 holds it either.

[00:29:10] Speaker 01:
Inference is improper, Your Honor.

[00:29:12] Speaker 02:
So I think your idea that it's limited to whether he would have made threats again is sort of too narrow.

[00:29:22] Speaker 01:
Your Honor is correct that there was the possibility that the jury would think that Barrett is just a bad guy.

[00:29:28] Speaker 01:
But again, the fact that they'd heard evidence of multiple violent sexual assaults, that

[00:29:35] Speaker 01:
Evidence means that the additional prejudicial value that would have come in from hearing the intimidation evidence was very low.

[00:29:44] Speaker 02:
And so I mean, but then that's just assumes that they believed.

[00:29:48] Speaker 02:
I mean, then you didn't need the intimidation evidence and it didn't need to be given.

[00:29:53] Speaker 02:
I mean, if you had your sexual assaults and everyone was going to believe it, then that could have been enough on its own.

[00:29:58] Speaker 02:
So I don't know how that it's like assuming that they definitely believed it.

[00:30:01] Speaker 02:
And I think they may have.

[00:30:03] Speaker 02:
And so then that may be right.

[00:30:04] Speaker 02:
But it also seems that there was a fair amount of consent involved in most of these victims.

[00:30:10] Speaker 02:
And so it doesn't seem like the most straightforward case

[00:30:17] Speaker 01:
Your Honor, if you are correct about the limited probative value or limited... As the government mentioned, the 404b, the intimidation evidence, played a relatively minor role in the case.

[00:30:32] Speaker 01:
And if it was essentially a wash when it came to the jury's interpretation, then that would suggest that there was no prejudice caused to the defendant by the admission, even if the admission was an error.

[00:30:44] Speaker 01:
And the two applicable standards of review for this issue are either abusive discretion or plain error, depending on how you slice it, and both to

[00:30:53] Speaker 01:
obtain a reversal, there needs to be a showing of prejudice.

[00:30:56] Speaker 01:
So your honor is correct that there was no prejudice.

[00:30:59] Speaker 02:
Well, no, I mean, that's what you're arguing, but I'm not sure I'm persuaded because I mean, you're saying there can't have been prejudice because there was such good testimony about violent rape.

[00:31:08] Speaker 02:
And I guess I'm just wondering if it's such strong evidence when each of the victims had consent also.

[00:31:17] Speaker 01:
I'm confused as to what your honor means by the victims consenting.

[00:31:20] Speaker 02:
I mean, so the victims testified to horrific acts, but they also, most of them anyway, had consensual relationships with the defendant either before or after or both.

[00:31:33] Speaker 02:
And that seems to complicate the government's effort here.

[00:31:39] Speaker 02:
I mean, it just makes it a more complicated case for the jury to parse what exactly happened in these relationships.

[00:31:45] Speaker 02:
I think.

[00:31:45] Speaker 02:
You could tell me why that's not true, but it seems like this isn't the easiest case to prove, given the consent.

[00:31:54] Speaker 01:
Your Honor is correct that two of the 413 witnesses, EB and JV, testified about having a consensual relationship with the defendant outside of the scope of the assault.

[00:32:08] Speaker 01:
I believe that makes the evidence of intimidation more probative and it strengthens the inference of consciousness of guilt because the testimony that the witnesses provided shows that the defendant's conduct and specifically his acts of intimidation changed after

[00:32:24] Speaker 01:
the consensual relationship ended.

[00:32:27] Speaker 01:
And once there became a threat that the defendant, that the victims might report what the defendant had done, which is to say, while the defendant was in a relationship with these women, he had control over them and could prevent them from reporting that way.

[00:32:41] Speaker 01:
He did not need to additionally intimidate them.

[00:32:43] Speaker 01:
But then once that relationship ended, the defendant needed to exert new control and so resorted to these acts of intimidation.

[00:32:49] Speaker 01:
But both ultimately show consciousness of guilt.

[00:32:52] Speaker 01:
and both support the probative value of the 403 intimidation evidence.

[00:32:57] Speaker 04:
I can see that I'm out of time if there's no further questions.

[00:33:04] Speaker 04:
The criminal history adjustment that gave him the life sentence was based on which conduct

[00:33:16] Speaker 01:
Your Honor, the obstruction enhancement in the PSR had two independently sufficient bases.

[00:33:21] Speaker 01:
One was the threats the defendant had made and the other was the attempt to fabricate evidence.

[00:33:26] Speaker 01:
Judge Mendez's statements during the sentencing hearing indicate that he

[00:33:31] Speaker 01:
applied the sentencing, the obstruction enhancement on both bases.

[00:33:36] Speaker 01:
So in that instance, the threats would be those listed in the PSR, but specifically acts of, like the defense admission in paragraph 28 of the PSR that he'd made posts online and had asked other individuals to message SF with the subjective intent to intimidate her.

[00:33:54] Speaker 01:
And then with regards to the fabrication evidence, that would be the January calls to MW in which the defendant

[00:34:02] Speaker 01:
not very subtly instructed MW to create a note and plant it in the defendant's truck.

[00:34:09] Speaker 04:
Okay, but that was independent of the evidence with respect to the that was admitted in the trial?

[00:34:21] Speaker 04:
That is correct, Your Honor.

[00:34:23] Speaker 02:
And the evidence of threats didn't need to be admitted at the trial to have an enhancement eventually be given?

[00:34:29] Speaker 01:
That is correct, Your Honor.

[00:34:33] Speaker 01:
If there are no further questions, then I'll ask the court to refer.

[00:34:35] Speaker 01:
Thank you.

[00:34:36] Speaker 02:
Thank you.

[00:34:36] Speaker 02:
Let's put three minutes on the clock for rebuttal, please.

[00:34:51] Speaker 00:
I again want to clarify the issue with regard to what SF said in a stipulation which is in the record, SER 254-255 cited by the government.

[00:35:06] Speaker 00:
She is part of that stipulation and she said,

[00:35:10] Speaker 00:
that she told these friends that Mr. Barrett sexually assaulted me.

[00:35:14] Speaker 00:
That's part of the stipulation.

[00:35:16] Speaker 00:
I didn't read that because he says something different.

[00:35:19] Speaker 00:
That's what I wanted the court to hear.

[00:35:22] Speaker 00:
He says on page 255,

[00:35:27] Speaker 00:
We asked Miss F whether Mr. Barrett had done anything to her.

[00:35:33] Speaker 00:
She stated that he had not.

[00:35:36] Speaker 00:
She stated that Barrett had made a pass at her, and she had shut him down.

[00:35:42] Speaker 00:
This is the third of the multiple witnesses, and she testified.

[00:35:48] Speaker 00:
And I say, respectfully, that she should have been excluded.

[00:35:54] Speaker 00:
At the very minimum, she should have been excluded.

[00:35:57] Speaker 00:
I didn't get a chance to fully say what happened with regard to JV, just very quickly.

[00:36:05] Speaker 00:
She meets him, Tinder, they go to a community house.

[00:36:10] Speaker 00:
He wants to go into a shower.

[00:36:13] Speaker 00:
She says, come into my bedroom, take a shower.

[00:36:17] Speaker 00:
He gets into bed with her, they start kissing, and there's sex without consent, according to her.

[00:36:25] Speaker 00:
But what happens after that?

[00:36:26] Speaker 00:
She has a consensual relationship with him for three months right after the so-called rape.

[00:36:33] Speaker 00:
Three months, they're together.

[00:36:35] Speaker 00:
What I am submitting to the court is that these are not similar to what's charged with regard to R.G.

[00:36:44] Speaker 00:
There was no relationship with R.G.

[00:36:48] Speaker 00:
And therefore, these three should not have been testifying under LeMay.

[00:36:54] Speaker 02:
Is it similar, though, in the sense that, I think it's KG, not RG, that KG did consensual activity with him?

[00:37:06] Speaker 02:
Not sexual activity, but she goes hiking again.

[00:37:10] Speaker 02:
She goes to a shower.

[00:37:11] Speaker 02:
She does a lot of consensual things with him.

[00:37:13] Speaker 02:
So in that sense, it is similar.

[00:37:17] Speaker 00:
Well, I think it goes to a credibility and the credibility of her.

[00:37:22] Speaker 00:
story because she's with other hikers, she's meeting other people, she goes to breakfast with him at the end of the weekend, they see their friends, they're all together, nothing is said, and she does text her parents that she's having a beautiful weekend, and then afterwards she tells her friend, gee, I hope, and I'm paraphrasing, I hope I didn't mess things up because of the way I left it.

[00:37:49] Speaker 00:
That's her text after that.

[00:37:51] Speaker 00:
Finally, I just want to say one thing.

[00:37:53] Speaker 00:
The government had a chance to talk about intimidation, and they said in their answering brief as follows, page 10, when it comes to SF,

[00:38:04] Speaker 00:
They say his threats were explicit.

[00:38:07] Speaker 00:
He told a mutual friend he was going to kill SF.

[00:38:10] Speaker 00:
That's a mutual friend.

[00:38:11] Speaker 00:
That's not SF.

[00:38:13] Speaker 00:
And then he told the doctor in 2022 he was going to kill SF.

[00:38:18] Speaker 00:
That's Dr. Vargas.

[00:38:19] Speaker 00:
Dr. Vargas said he never asked that it be communicated to her.

[00:38:24] Speaker 00:
With regard to EB, it's stalking.

[00:38:27] Speaker 00:
He follows her.

[00:38:28] Speaker 00:
He goes to a workplace.

[00:38:30] Speaker 00:
She takes out a restraining order.

[00:38:32] Speaker 00:
It's a domestic type of situation.

[00:38:37] Speaker 00:
KG, finally, according to the government, this is the intimidation.

[00:38:44] Speaker 00:
He texts her and he says, could we meet again?

[00:38:46] Speaker 00:
Could we be friends?

[00:38:49] Speaker 00:
Three years later, he indicates to her that he wants to join her in a climbing party.

[00:38:56] Speaker 00:
This never should have come in.

[00:38:58] Speaker 00:
and I think the cumulative impact of not only the three additional witnesses, but then the intimidation testimony, which made him to be a bad person, a bad character, just led to a trial which violated his due process.

[00:39:16] Speaker 00:
It was unfair.

[00:39:18] Speaker 00:
I'll submit.

[00:39:19] Speaker 02:
Thank you both sides for the helpful arguments.

[00:39:21] Speaker 02:
This case is submitted and we are adjourned for the day.