[00:00:00] Speaker 03:
Good afternoon, Council.

[00:00:03] Speaker 03:
The case before us this afternoon is 24-2146, United States versus Aguilar.

[00:00:11] Speaker 03:
Council for Appellant, if you would make your appearance and then you may proceed.

[00:00:17] Speaker 01:
Good afternoon, Your Honor.

[00:00:18] Speaker 01:
It's Nicholas Hart on behalf of Appellant Kyle Aguilar.

[00:00:22] Speaker 01:
Mr. Aguilar was convicted following a jury trial of two counts of abusive sexual contact of a minor in Indian country

[00:00:30] Speaker 01:
for a single course of conduct.

[00:00:33] Speaker 01:
Those convictions present two issues which have been raised in this appeal.

[00:00:37] Speaker 01:
First, whether the convictions were multiplicitous in violation of the Double Jeopardy Clause, and second, whether those convictions were supported by sufficient evidence.

[00:00:47] Speaker 01:
To start with the Double Jeopardy Clause,

[00:00:50] Speaker 01:
The primary argument that Mr. Aguilar has advanced is that when we look at the structure of the definitions, the plain language, when we look at the plain language of the definition section of Chapter 109A, there is a structural difference between the definition of sexual act found in Section 2246-2 and the definition of sexual contact, which is what Mr. Aguilar was convicted of in Section 2246-3.

[00:01:20] Speaker 01:
this structural difference must be given some meaning.

[00:01:23] Speaker 01:
Congress must have intended something in creating this structural difference.

[00:01:28] Speaker 01:
And the only logical meaning that could be given to this structural difference is that it delineates the way the courses of conduct should be considered by this court in that including a single section or subsection needs to be given

[00:01:46] Speaker 01:
uh... the meaning that it is it's own course of conduct what rather than the separate acts within it did you just around it mr heart i

[00:01:55] Speaker 03:
It is quite true that there is a difference in structure between those two statutes, but one of the things that occurs to me is when I look at 2L from the Eighth Circuit, when I look at the Ninth Circuit Yazee decision, when I look at our own Garcia Lanone decision in the footnote, all of them talk about the notion of

[00:02:17] Speaker 03:
the statute being framed in singular terms and what significance should attach to that.

[00:02:24] Speaker 03:
And what we have here in section 6.3 or is it let's say 2246.3 is a situation in which you have intentional touching being phrased singularly

[00:02:42] Speaker 03:
You also have these various body parts being phrased disjunctively.

[00:02:47] Speaker 03:
And Garcia-Lamone pointed that out, and so did, I believe, Toulk as being signifying a single act or a separate act statute.

[00:02:59] Speaker 03:
So what do you do with that?

[00:03:02] Speaker 01:
So I do think that Toulk and Garcia-Lamone are different from what we're asking the court to do in this case.

[00:03:07] Speaker 01:
First, Toulk dealt with 2246-2.

[00:03:11] Speaker 01:
where we have that structural difference in addition to the singularity language that the court is talking about.

[00:03:18] Speaker 01:
So we do think that that difference there is, you know, shows what we're talking about.

[00:03:23] Speaker 01:
But also in Garcia-Lamone, what the court was dealing with was really the reverse, is whether multiple carbon copies of the same offense can be charged as singular, as a singular count.

[00:03:36] Speaker 01:
If anything, we believe that Garcia-Lamone

[00:03:39] Speaker 01:
And this court's application actually supports Mr. Aguilar's position because what the court said in Garcia-Lamone is that nothing in the statutory text requires the government to charge separate counts for repeated conduct.

[00:03:54] Speaker 01:
In other words, the multiple so-called acts, even multiple courses of conduct can be charged in a separate count without violating the constitution, was the conclusion of Garcia-Lamone.

[00:04:07] Speaker 01:
Now here, when we look at the singularity language, I don't think that it's enough that we could just look at that language alone and say that it has to be a separate act offense.

[00:04:18] Speaker 03:
Well, it's not just that language alone.

[00:04:21] Speaker 03:
It's the fact that that language, as it relates to subsection three, is phrased disjunctively.

[00:04:29] Speaker 03:
They're separate acts.

[00:04:30] Speaker 03:
And drawing upon the Ninth Circuit decision in Yazzie, it talked about if Congress had meant to criminalize an episode

[00:04:39] Speaker 03:
It could have done that.

[00:04:40] Speaker 03:
It did not do that.

[00:04:41] Speaker 03:
What we have here is a separate body parts and we have set in their praise disjunctively.

[00:04:47] Speaker 03:
Why shouldn't that have meaning?

[00:04:50] Speaker 01:
I think, Your Honor, if we look at the Supreme Court dealt with this even recently in Pulsifer saying that we expect Congress to speak clearly for everything that it means, but we can't always expect that it will do so.

[00:05:03] Speaker 01:
And that's why we look for all of these different clues.

[00:05:07] Speaker 03:
So I think the failure to... I'm giving you clues and I'm asking you to tell me why those clues do not point in the direction of a separate act.

[00:05:15] Speaker 03:
In particular, the disjunctive point which Garcia-Lamone pointed out, which 2L pointed out, why doesn't that speak or bespeak the notion of a separate act of offense?

[00:05:29] Speaker 01:
I don't think that the disjunctive part denotes a separate act of defense.

[00:05:35] Speaker 01:
Surely, Congress could not have used the conjunctive here because its intent was never to say that every single body part needed to be touched at the same time.

[00:05:49] Speaker 00:
They could have gotten around that with the and slash or if they really wanted to.

[00:05:56] Speaker 01:
they could have potentially.

[00:05:59] Speaker 00:
It could have been drafted to lead to a different result, and it wasn't.

[00:06:11] Speaker 01:
We think, Your Honor, that by putting the emphasis on the singularity and the disjunctive, what Tuelk did with a separate statute is

[00:06:25] Speaker 01:
with a separate section, I'm sorry, not a separate statute, with 6-2, would take away the reading that more than one body part could still remain a single violation of the statute.

[00:06:43] Speaker 01:
In other words, there is no dispute here, I think, that if the government charged a violation of Section 2246-3,

[00:06:55] Speaker 01:
as the touching of more than one body part, and specifically did so, that that would be an appropriate charge under the statute.

[00:07:04] Speaker 01:
That's what Garcia-Lamone concluded.

[00:07:07] Speaker 01:
But just because the disjunctive says that the separate could be a single violation doesn't also eliminate the result that

[00:07:20] Speaker 01:
touching more than one body part simultaneously or in rapid succession could, you know, has to be or is appropriately a separate act of violation.

[00:07:33] Speaker 00:
Simultaneously presents a slightly different problem, but we don't have that, so happily we don't need to decide it.

[00:07:39] Speaker 00:
But touching sequentially, I mean, it strikes me that the body parts described are different in terms of

[00:07:50] Speaker 00:
likely seriousness that the victim would experience.

[00:07:55] Speaker 00:
That is, being touched on one part of her body might be perceived more offensive or more invasive than another part.

[00:08:04] Speaker 00:
I mean, I'm not sure that the victim would have the same response depending on which part of her body was touched.

[00:08:10] Speaker 00:
So in that regard, it seems to make perfect sense that the court would view those as separate matters.

[00:08:21] Speaker 01:
I'm not so sure, Your Honor, that a victim or even a jury during a trial would view the touching of any one of these separately.

[00:08:34] Speaker 01:
Certainly the touching of anyone is treated the exact same under the law.

[00:08:39] Speaker 01:
So I don't know that there's a seriousness type analysis here.

[00:08:43] Speaker 01:
I also think that Congress delineated

[00:08:46] Speaker 01:
in 2246-2, what it thought were the more serious sexual conduct from 2246-3, and that that's the seriousness delineation that the court should lean on.

[00:09:00] Speaker 03:
If I could... Mr. Hart, I'm sorry, I didn't mean to interrupt, but if I can ask, I want to make sure I understood your point about Garcia-Lamon.

[00:09:09] Speaker 03:
Are you saying that it would not have been problematic in your view here

[00:09:15] Speaker 03:
if this had been charged as one count involving these two acts.

[00:09:21] Speaker 03:
I mean, drawing on the reasoning of Garcia-Lamone.

[00:09:25] Speaker 01:
That's correct, Your Honor.

[00:09:26] Speaker 01:
If we apply Garcia-Lamone to this case and Mr. Aguilar was charged in one count instead of two, then Garcia-Lamone would say that that is appropriate.

[00:09:37] Speaker 03:
Listing both of these acts?

[00:09:40] Speaker 01:
Correct.

[00:09:41] Speaker 03:
Okay.

[00:09:42] Speaker 01:
That's the way that I read Garcia-Lamone.

[00:09:44] Speaker 00:
Let's consider

[00:09:45] Speaker 00:
that if that had been pled that way and said both of these acts of touching are being charged, then we've got the problem.

[00:09:54] Speaker 00:
What if one of those acts of touching is shown, but not the other?

[00:09:57] Speaker 00:
Then is there an acquittal?

[00:10:00] Speaker 01:
That's certainly what was argued during the directed verdict is that only- You can see why the government wouldn't want to charge that way.

[00:10:09] Speaker 01:
I could see why the government may not want to charge that way, but certainly

[00:10:13] Speaker 01:
Under Garcia Lamone, this court has now said that that is appropriate in charging separate courses of conduct in a single count.

[00:10:25] Speaker 01:
So the government may choose to charge the way they did in this case, but we still believe that the manner in which it was charged in this case is inappropriate because it is a single course of conduct.

[00:10:37] Speaker 00:
But the government, according to you, the government has to pick and choose.

[00:10:41] Speaker 00:
If they don't want to take the responsibility of proving all of them, they have to pick and choose and hope that they pick the one body part that they can most strongly show was touched, and that that body part picked will have the most resonance with the jury to get a conviction.

[00:10:59] Speaker 01:
You know, that could be one of the results of what the government could have done.

[00:11:05] Speaker 00:
And you can see why Congress might not have drafted it to put that kind of a speculative anticipatory burden on the government, but rather to allow the government some flexibility as long as notice has been adequately provided for the defendant.

[00:11:23] Speaker 01:
I understand what you're saying, Your Honor.

[00:11:26] Speaker 01:
I still think that

[00:11:29] Speaker 01:
The meaning that the result right now is that if two elk is extended and 22, 46, two is read the exact same way as 22, 46, three, then there's absolutely no meaning given to the separate delineations in 22, 46, two as compared to 22, 46, three.

[00:11:50] Speaker 01:
And that's Mr. Aguilar's primary argument is there has to be some purpose

[00:11:55] Speaker 01:
that Congress listed out separate acts and separate subsections in one and did not in the other.

[00:12:01] Speaker 01:
And we think the only logical purpose there is that it is a course of conduct offense.

[00:12:08] Speaker 01:
If there are no more questions at this time, Your Honor, I would like to reserve the remaining time for rebuttal.

[00:12:17] Speaker ?:
Okay.

[00:12:23] Speaker 03:
Council for the government, please.

[00:12:26] Speaker 04:
I'm James Braun on behalf of the United States.

[00:12:29] Speaker 04:
And it's OK with the court.

[00:12:33] Speaker 04:
I'll address each of the defendant's arguments in turn.

[00:12:37] Speaker 04:
First, the district court correctly ruled that the two counts charging Aguilar with abuse of sexual contact are not multiplicitous.

[00:12:45] Speaker 04:
Aguilar argues that Section 2244 is solely a course of conduct defense, meaning that multiple acts of touching during a single incident

[00:12:53] Speaker 04:
are a single criminal offense.

[00:12:55] Speaker 04:
But as the Eighth Circuit recently held in Hollow Horn Bear, Section 2244 defines a separate act of offense.

[00:13:02] Speaker 04:
Accordingly, each act of touching a separate body part listed in Section 2246-3 is a distinct criminal violation.

[00:13:10] Speaker 00:
May I ask, just for an analogy, what if we had a different case here where the defendant had held the victim in custody someplace in a dungeon or something,

[00:13:23] Speaker 00:
and over the course of several days repeatedly raped her.

[00:13:27] Speaker 00:
Would they have to charge all those rapes as one crime, or could they charge them as separate crimes, even though the conduct was the same?

[00:13:37] Speaker 04:
We wouldn't have to charge them either way necessarily.

[00:13:39] Speaker 04:
Under Garcia-Limone, that allows for some flexibility.

[00:13:42] Speaker 04:
depending on the facts of the case.

[00:13:45] Speaker 04:
The question here is whether Section 2244 is solely a course of conduct defense or a separate act defense.

[00:13:52] Speaker 00:
So the government would have no problem with charging each of those postulate rapes separately.

[00:13:58] Speaker 04:
Right.

[00:14:00] Speaker 04:
That's right.

[00:14:00] Speaker 04:
Or as in Garcia-Lamone, where the victim had a hard time differentiating exactly what happened on each occasion, it was easier considering the nature of a child victim

[00:14:13] Speaker 04:
to charge a single charge for a continuing course of events or activity over a long period of time.

[00:14:24] Speaker 04:
But here where we have discrete touchings of different body parts, it's clear under Section 2244 that you have separate criminal violations.

[00:14:34] Speaker 00:
Well, I'm not, you say, discrete.

[00:14:36] Speaker 00:
touchings.

[00:14:36] Speaker 00:
I mean, I guess we don't know about that because it's unclear, but it may just be that it wasn't really, he didn't say, now I'm going to touch this part of you, now I'm going to touch that part of you.

[00:14:47] Speaker 00:
It was just a kind of a course of conduct.

[00:14:49] Speaker 00:
It was, I don't think it was very discreet.

[00:14:52] Speaker 00:
I mean, I don't know that.

[00:14:53] Speaker 00:
I don't think the record establishes it, but what I can glean from the record is that it was kind of just one fairly short

[00:15:04] Speaker 00:
conduct that involved touching of many things, not exactly simultaneously, but very connected with each other.

[00:15:12] Speaker 04:
Well, we use distinct in terms of separate.

[00:15:17] Speaker 04:
He touched her breast, he touched her vagina, he touched her butt.

[00:15:22] Speaker 04:
Those were separate touchings.

[00:15:24] Speaker 04:
And even if they were during the same incident,

[00:15:27] Speaker 04:
they were separate and to that extent discreet.

[00:15:30] Speaker 04:
She describes them separately.

[00:15:32] Speaker 00:
Several of those body parts could be touched simultaneously.

[00:15:35] Speaker 00:
What if they were touched simultaneously?

[00:15:37] Speaker 00:
I mean, anus and vagina could be touched at the very same moment.

[00:15:41] Speaker 00:
Then what?

[00:15:41] Speaker 00:
Can you charge those separately?

[00:15:44] Speaker 04:
Perhaps not, that might be a tougher case because there, if you're applying the verb test and looking at the appropriate verb, which is touching, and that arguably would be a single touching of multiple body parts.

[00:15:56] Speaker 04:
But here where you have separate touchings of separate body parts, you have distinct crimes.

[00:16:02] Speaker 03:
Judge Ebell used the word earlier, sequential.

[00:16:07] Speaker 03:
Would you agree with that as fitting this context?

[00:16:10] Speaker 04:
Yes, these were sequential touches.

[00:16:12] Speaker 04:
She described it that way, don't it?

[00:16:13] Speaker 04:
That he started by touching her butt, then her breasts, and then her vagina.

[00:16:20] Speaker 03:
You referenced the A-circuit's decision and hollow bear, hollow horn bear, I think you described it.

[00:16:28] Speaker 03:
I looked at your brief.

[00:16:29] Speaker 03:
I don't see any citation of that.

[00:16:31] Speaker 03:
I mean, would you file a 28-J letter unless you've included in your brief and I missed it?

[00:16:37] Speaker 04:
And I'm sorry, you're right.

[00:16:39] Speaker 04:
We filed a 28-J letter.

[00:16:40] Speaker 04:
Oh, on that one?

[00:16:41] Speaker 00:
Did you really?

[00:16:42] Speaker 04:
Okay, Ben, I'm sorry I missed that.

[00:16:45] Speaker 00:
Give us the site to that, would you please?

[00:16:47] Speaker 04:
So, Hollow Horn Bear is at 144 F-4th, 1105.

[00:16:53] Speaker 04:
And yes, we did file a 28-J letter, and I apologize if the court doesn't have that in front of it.

[00:16:59] Speaker 04:
But there, the court, the Eighth Circuit, extended 2-ELK to 22-54, or I'm sorry, 22-44.

[00:17:08] Speaker 04:
and held that the same reasoning from 2L applies to Section 2244.

[00:17:12] Speaker 00:
Do you think we have three circuits now?

[00:17:18] Speaker 00:
We have the eighth.

[00:17:20] Speaker 00:
Oh, that was another eighth circuit case.

[00:17:21] Speaker 00:
So we still don't, that didn't add an additional circuit.

[00:17:24] Speaker 00:
Because two elk is an eighth circuit as well.

[00:17:27] Speaker 04:
Right.

[00:17:27] Speaker 04:
The significance of hollow horn bear would be to extend two elk, which was a 2241 C case to 2244, which is what we have here.

[00:17:36] Speaker 04:
And to say the same reasoning applies.

[00:17:38] Speaker 00:
So we have one circuit.

[00:17:40] Speaker 00:
We have eighth circuit.

[00:17:42] Speaker 00:
going your way.

[00:17:43] Speaker 00:
And arguably, is it the Ninth that also goes your way?

[00:17:47] Speaker 00:
I can't remember.

[00:17:47] Speaker 04:
Yes, the Ninth and Yazzie followed Two Elk with regard to 2241C.

[00:17:53] Speaker 00:
And no other service have weighed in on this.

[00:17:57] Speaker 04:
No, no.

[00:17:58] Speaker 04:
But of course, this court did cite those cases favorably in Garcia-Limone.

[00:18:03] Speaker 04:
And Garcia-Limone involved both 2241C and 2244.

[00:18:07] Speaker 04:
And he recognized

[00:18:11] Speaker 04:
that even though in that case it was appropriate to charge it as a course of conduct, that it could also be charged separately and that the case law recognizes the propriety of that in this circumstance.

[00:18:25] Speaker 03:
Let me ask you, the example was offered that let's assume that there had been the charging of these two touchings in the context of one count.

[00:18:40] Speaker 03:
Would you have to be able to show beyond a reasonable doubt that both touchings occurred?

[00:18:47] Speaker 03:
I mean, in other words, if the jury were to find that one touching was not, that they couldn't find beyond a reasonable doubt that one touching occurred with the requisite mens rea, would that count fail or could that count still survive?

[00:19:04] Speaker 04:
We believe the count would still survive.

[00:19:06] Speaker 04:
But then as Garcia-Lamone recognized, it would be a

[00:19:09] Speaker 04:
unanimity issue.

[00:19:11] Speaker 04:
And there you'd probably need a special verdict form where the jury would have to show that they were unanimously agreeing on which act.

[00:19:19] Speaker 04:
And so if they couldn't agree that, say, the touching the breast occurred, they could unanimously agree that the touching the vagina occurred.

[00:19:27] Speaker 04:
And there with a special verdict, you would have a unanimous verdict on one of those acts.

[00:19:31] Speaker 04:
And I think Garcia-Lamone would allow for that.

[00:19:35] Speaker 04:
But here, the facts where the victim was able to testify about separate touchings, how it started with the massage, then he touched her butt, then her breasts, and then her vagina.

[00:19:48] Speaker 04:
She described separate touchings, and that allowed, appropriately, for it to be charged as separate and distinct offenses.

[00:19:56] Speaker 04:
And that is not a multiplicity problem, then, under Two-Elk, Hollow Horn Bear, and Garcia-Lamone.

[00:20:08] Speaker 03:
What about, let's shift a little bit to the sufficiency of the evidence, unless there's something burning that you still wanted to say on the question of double jeopardy.

[00:20:19] Speaker 04:
Well, the only thing that I would follow up on with the multiplicity is to follow up on Judge Ebell's point about how Congress could have worded the statute differently.

[00:20:28] Speaker 04:
And they could have worded it differently to say any sexual contact.

[00:20:32] Speaker 04:
And then under the case law, there might be some ambiguity.

[00:20:37] Speaker 04:
But we don't have that here.

[00:20:40] Speaker 04:
Here, the statute refers singularly to sexual contact, and then it defines sexual contact in the disjunctive.

[00:20:47] Speaker 04:
And as Hollow Horn Bear says, reading those statutes together, 2246.3 and 2244, evidence is Congress's intent to treat each separate touching as a distinct offense.

[00:21:04] Speaker 04:
And with that, yes, we can move on to sufficiency.

[00:21:07] Speaker 04:
Sure.

[00:21:08] Speaker 03:
No, and I appreciate that point.

[00:21:12] Speaker 03:
On the sufficiency front, what should we make of, on the intent question, what should we make of Liana Sandoval's testimony?

[00:21:24] Speaker 03:
And can that be

[00:21:26] Speaker 03:
in light of the fact that her testimony related to the second incident, not the one that was at play in counts two and three.

[00:21:36] Speaker 04:
Right.

[00:21:36] Speaker 04:
We argue that in our answer brief, and the defense doesn't challenge the propriety of that.

[00:21:41] Speaker 04:
That testimony was admitted without limitation.

[00:21:44] Speaker 04:
And so although it wasn't argued that way to the jury, that evidence was before the jury.

[00:21:50] Speaker 04:
And juries are free to consider evidence even of acquitted conduct when

[00:21:56] Speaker 04:
they're determining guilt on each count.

[00:22:00] Speaker 04:
And that was evidence that was properly before them.

[00:22:03] Speaker 04:
And it could have been admissible in a separate trial, even if the counts had been severed.

[00:22:09] Speaker 03:
And just sort of by virtue of capitalization, what I see that at least arguably is inextricably intertwined.

[00:22:20] Speaker 03:
I mean, or would you view it differently?

[00:22:23] Speaker 03:
In other words, this would be part of the overall

[00:22:26] Speaker 03:
course of conduct.

[00:22:29] Speaker 03:
I don't mean it as it relates to the double jeopardy issue we were talking about earlier, but I'm talking about course of conduct of the defendant.

[00:22:37] Speaker 03:
In other words, it would not necessarily be 404B evidence, but would be evidence that one would view otherwise.

[00:22:43] Speaker 03:
Do you have a different view?

[00:22:45] Speaker 04:
Arguably, it could be considered inextricably intertwined.

[00:22:48] Speaker 04:
It could also have been admissible under either 413, I believe it would be 413 or 414.

[00:22:55] Speaker 04:
Okay.

[00:22:57] Speaker 04:
involving sexual assault cases.

[00:23:01] Speaker 04:
It would have been independently admissible.

[00:23:05] Speaker 04:
Our position is that there wouldn't be a problem with considering that evidence of the defendant's intent.

[00:23:13] Speaker 04:
Again, the defense hasn't, in their reply, hasn't taken issue with that.

[00:23:18] Speaker 03:
Okay, and I understand that.

[00:23:20] Speaker 03:
And so how far does that evidence get you?

[00:23:22] Speaker 03:
I mean, you have Sandoval saying in a separate incident that it was her opinion that he was gratifying himself.

[00:23:30] Speaker 03:
What does that get you as it relates to the incident that's at issue in two and three?

[00:23:37] Speaker 04:
It adds to the equation, but we're not arguing it's sufficient in and of itself.

[00:23:41] Speaker 04:
And in fact, even without that evidence, we believe there is sufficient evidence of intent.

[00:23:47] Speaker 04:
When you look at the circumstances, this court's decision in Normand T allows for intent to be inferred from looking at the circumstances.

[00:23:56] Speaker 04:
And here, when you look at the circumstances where the defendant starts by giving the victim a massage and then moves to touching more intimate parts,

[00:24:07] Speaker 04:
sequentially, that evidence is that it wasn't inadvertent, that it was intentional.

[00:24:14] Speaker 04:
And there's no non-sexual reason for him to be doing that.

[00:24:18] Speaker 04:
He's not a father giving a bath to an infant child or a soccer coach, slapping a player on the rear end after a goal, or a doctor giving a medical examination.

[00:24:27] Speaker 04:
He's an uncle who laid down uninvited next to his teenage niece.

[00:24:33] Speaker 04:
There was simply no non-sexual reason

[00:24:36] Speaker 00:
When he entered the room, had she locked it and he was able to unlock the room or was it just shut?

[00:24:43] Speaker 04:
She testified, I believe, that she had locked the door.

[00:24:46] Speaker 00:
And did he have a key to unlock it?

[00:24:48] Speaker 00:
How did he get in there?

[00:24:50] Speaker 04:
I don't believe the record establishes how he unlocked it.

[00:24:53] Speaker 00:
But it was established that she had locked it.

[00:24:56] Speaker 04:
Right.

[00:24:56] Speaker 00:
All right.

[00:24:57] Speaker 00:
Thank you.

[00:24:59] Speaker 04:
And so given those circumstances where there's no non-sexual reason for him to be touching her in this manner,

[00:25:05] Speaker 04:
The way he touched her evidences that it wasn't inadvertent.

[00:25:09] Speaker 04:
It was intentional.

[00:25:10] Speaker 04:
It was one body part after the other.

[00:25:14] Speaker 04:
That's strong evidence of his intent when he's touching her, that it's not a non-sexual inadvertent touching.

[00:25:21] Speaker 02:
Now, is it your position then that we could ignore Sandoval's testimony and that the touching alone under the circumstances is enough evidence to sustain the verdict?

[00:25:35] Speaker 04:
Yes.

[00:25:37] Speaker 04:
Yes.

[00:25:37] Speaker 04:
I mean, to the extent that's a difficult question that the court doesn't need to go there because of the circumstances, in addition to the fact that Aguilar chose to testify and his testimony could be used against him by the jury.

[00:25:51] Speaker 04:
He didn't simply deny that he had touched Doe in a sexual manner, as he seems to imply in his reply brief.

[00:25:57] Speaker 04:
And he didn't testify that he inadvertently touched her breasts and vagina.

[00:26:02] Speaker 04:
Instead, he testified that he didn't touch those body parts at all.

[00:26:06] Speaker 04:
He was specifically asked, have you ever touched those vagina either directly or through the clothes?

[00:26:12] Speaker 04:
And he answered, no.

[00:26:13] Speaker 04:
He was asked specifically, have you ever touched those breasts either directly or through the clothes?

[00:26:18] Speaker 04:
He answered, no.

[00:26:19] Speaker 04:
That's a page 587 of the transcript.

[00:26:23] Speaker 03:
So what does that do for you?

[00:26:26] Speaker 03:
I'm sorry, Judge Carson.

[00:26:27] Speaker 03:
No, go ahead.

[00:26:29] Speaker 03:
I mean, what's the import of that?

[00:26:31] Speaker 03:
I mean, why do you think that's helpful?

[00:26:33] Speaker 04:
Well, the import of that is that Doa testified that he did touch her.

[00:26:36] Speaker 04:
He testified that he didn't.

[00:26:38] Speaker 04:
The jury could reasonably conclude that his testimony was false.

[00:26:41] Speaker 04:
And the reason he would give false testimony about that is because he knew that his touching was unlawful.

[00:26:49] Speaker 04:
He knew it was inappropriate.

[00:26:50] Speaker 04:
Otherwise, there'd be no reason for him to lie about it.

[00:26:53] Speaker 04:
If it was inadvertent, he would have said so.

[00:26:55] Speaker 04:
Instead, he said he didn't do it at all.

[00:26:57] Speaker 04:
The jury clearly didn't believe that.

[00:26:59] Speaker 04:
And by not believing that, they can believe the opposite.

[00:27:02] Speaker 04:
And the opposite is that he did it to gratify himself.

[00:27:07] Speaker 02:
And that's drawing from principles similar to our Jane case where the defendant testified as to a lack of knowledge.

[00:27:14] Speaker 02:
And we said that could be used.

[00:27:17] Speaker 02:
The jury could have considered that if they didn't believe her to

[00:27:22] Speaker 02:
show that she did grab the knowledge.

[00:27:25] Speaker 04:
Right.

[00:27:27] Speaker 04:
And so when you add those together, the circumstances along with the defendant's testimony that the jury could disbelieve and in fact believe the opposite, that is more than sufficient to show the defendant's intent.

[00:27:40] Speaker 04:
And I see that I'm out of time.

[00:27:43] Speaker 03:
Thank you.

[00:27:44] Speaker 03:
Thank you, counsel.

[00:27:44] Speaker 04:
I ask that the court affirm.

[00:27:49] Speaker 03:
Mr. Hart, please.

[00:27:52] Speaker 01:
Thank you, Your Honor.

[00:27:54] Speaker 01:
To briefly correct just one thing about the record, when I talk about the door being locked, the testimony in the transcript, and this is from the testimony of Jane Doe, of the alleged victim, is that these were doors that locked without a key that are common in households where they could be locked and unlocked from both sides, right?

[00:28:16] Speaker 01:
So even though the door she testified was locked,

[00:28:20] Speaker 01:
She also testified that it's very easy, even from the outside, to still open the door when it's locked, because all it requires is that you turn the middle portion of the doorknob.

[00:28:32] Speaker 01:
Now, as far as the sufficiency arguments put forward by the government, there's just too much speculation.

[00:28:41] Speaker 01:
I think it's exactly what Judge Berzon touched on in Decrane, is that what we're dealing with is that the only way

[00:28:49] Speaker 01:
that the jury could have gotten to the intent of Mr. Aguilar in any of these alleged touchings is through speculation.

[00:28:59] Speaker 01:
The testimony of Jane Doe was that these touchings were so fast that she does not, so fast she just immediately jumped up and that she left the room.

[00:29:12] Speaker 01:
The testimony is that Mr. Aguilar didn't say anything to her and she doesn't remember having any conversation.

[00:29:18] Speaker 01:
He didn't linger.

[00:29:19] Speaker 01:
on any body parts.

[00:29:20] Speaker 01:
There's no testimony about rubbing or any of the other things that this court normally looks to as to determine whether or not a touching in and of itself has some type of indicia of intent.

[00:29:37] Speaker 02:
Don't you have a problem though because your client said unequivocally that he didn't do it?

[00:29:44] Speaker 02:
at trial.

[00:29:45] Speaker 02:
So when he testifies, I didn't do it, and there's an alternative story told by the victim that he did do it.

[00:29:56] Speaker 02:
I mean, isn't it hard for him to come and say, well, it's speculation about why I might have done it.

[00:30:03] Speaker 02:
I didn't touch her for that long.

[00:30:09] Speaker 02:
I didn't rub her.

[00:30:10] Speaker 02:
I just touched her.

[00:30:12] Speaker 02:
And then when you tack onto that, the idea that the jury could hold his own testimony against him that they didn't believe.

[00:30:20] Speaker 02:
I mean, doesn't that create a problem for you?

[00:30:22] Speaker 01:
I don't think it creates a problem, your honor, because the testimony that he didn't do it doesn't eliminate the possibility or the inference and the evidence that it could have been mistaken and that he didn't know.

[00:30:37] Speaker 02:
Well, he said he didn't do it.

[00:30:38] Speaker 02:
I mean, if it was mistaken, he said, I didn't mean to.

[00:30:42] Speaker 02:
That's what the testimony would have been there.

[00:30:45] Speaker 02:
I didn't do it is directly contradicting the victim's testimony.

[00:30:50] Speaker 01:
The testimony was also that he was heavily drinking, that he was intoxicated.

[00:30:55] Speaker 01:
There's all this testimony that the government put in about the situation.

[00:31:00] Speaker 01:
I see that I'm out of time.

[00:31:02] Speaker 01:
Please continue.

[00:31:03] Speaker 01:
So there is all of this testimony that the court puts, that the government put in to kind of create the atmosphere and that doesn't eliminate the inference that a jury could have made or even that the court can make that it may be a mistaken or unintentional touching.

[00:31:27] Speaker 03:
So his statement that he didn't do it, if I'm under following you with your reference to intoxication, that the jury could have found that he just is mistaken about whether he touched her because he was drunk.

[00:31:39] Speaker 03:
And therefore the question then is still existent as to whether he touched her to gratify himself.

[00:31:46] Speaker 03:
Do I understand that chain of logic?

[00:31:49] Speaker 01:
Yes, your chain of logic is that saying that he didn't do it alone does not eliminate him.

[00:31:57] Speaker 01:
from being able to say that a look at the evidence by the court after a conviction, that it's not sufficient because there wasn't enough to get this across without speculation.

[00:32:09] Speaker 01:
That's what we're saying.

[00:32:12] Speaker 01:
This isn't a case what we think like Zhang.

[00:32:18] Speaker 03:
Anything else from my colleagues?

[00:32:20] Speaker 03:
No, not me.

[00:32:23] Speaker 03:
All right, case is submitted.

[00:32:24] Speaker 03:
Thank you for your arguments.

[00:32:26] Speaker 03:
Thank you, Your Honors.

[00:32:27] Speaker 01:
Thank you, Your Honors.