[00:00:00] Speaker 04:
May it please the court.

[00:00:07] Speaker 00:
Good morning.

[00:00:12] Speaker 00:
I'm Neil Van Dalsum.

[00:00:14] Speaker 00:
I represent the appellant Jerry Asbill.

[00:00:18] Speaker 00:
I aspire to reserve three minutes for rebuttal.

[00:00:22] Speaker 00:
I'd like to begin my discussion of the issue of the limitations that were placed on defense counsel's use of the preliminary hearing testimony.

[00:00:37] Speaker 00:
To provide a little context for that issue, prior to trial, TC had given two different accounts of the reported events at the hotel.

[00:00:50] Speaker 00:
She had

[00:00:51] Speaker 00:
given a forensic interview and that she contended that there was a actual rape that occurred upon checkout and at a preliminary hearing she testified under oath that at checkout there was touching that did not, but it did not involve penetrative sex.

[00:01:13] Speaker 00:
So going into trial, that's what defense counsel understands her allegation to be.

[00:01:19] Speaker 00:
She takes a stand at trial and her story is that there was a rape incident right after check in.

[00:01:28] Speaker 00:
That was new.

[00:01:30] Speaker 00:
Defense counsel is faced with the task of cross examining her about this completely new account with her prior testimony that described an account on a different day.

[00:01:44] Speaker 00:
And after establishing that, hey, this is your preliminary hearing testimony, you do remember this is your testimony, tried to ask questions to establish that she had not testified to penetrative sex at the hotel at the preliminary hearing.

[00:02:04] Speaker 01:
Was it your understanding at the preliminary hearing that this was impeachment evidence?

[00:02:11] Speaker 00:
It's impeachment evidence to the extent that it contradicts her testimony.

[00:02:16] Speaker 00:
But it's also sworn testimony.

[00:02:19] Speaker 00:
And it's inconsistent with her trial testimony.

[00:02:23] Speaker 00:
So it's also admissible and substantive proof.

[00:02:27] Speaker 01:
But you didn't make that argument, the substantive proof argument.

[00:02:29] Speaker 01:
I'm trying to understand if there's a delta between your position at trial and your position on appeal with respect to the quality of that evidence.

[00:02:36] Speaker 01:
Is it impeachment?

[00:02:38] Speaker 01:
below and substantive here, or did you make an argument that it was also admissible substantive evidence?

[00:02:43] Speaker 00:
There was not an argument contemporaneously made that this is substantive evidence.

[00:02:48] Speaker 00:
It's just an effort to examine the witness, and it is substantive evidence.

[00:02:54] Speaker 00:
The government's position is, well, no, it's not substantive evidence because it's not inconsistent.

[00:03:04] Speaker 00:
But the preliminary hearing testimony

[00:03:06] Speaker 00:
is fundamentally inconsistent in a couple of ways.

[00:03:12] Speaker 00:
One is the effort was being made to establish the reality that at the preliminary hearing, it was described as touching only, but we had to check out, and so that's as far as it went.

[00:03:26] Speaker 00:
That is completely different than what was testified to at trial.

[00:03:30] Speaker 00:
The nature of the act is completely different.

[00:03:33] Speaker 00:
Another way that it's complete.

[00:03:35] Speaker 04:
At trial, was not the testimony related to the day they checked in the 16th?

[00:03:43] Speaker 00:
It was, but the testimony was also that that's the only sexual contact that happened at the hotel.

[00:03:51] Speaker 00:
If you look at page 51, lines 13 and 14, which I should have highlighted more in my brief appointment reflection,

[00:04:03] Speaker 00:
After giving the account of this penetrative rape at the hotel, the question's asked, and is that the last time Jerry touched you?

[00:04:14] Speaker 00:
Yes.

[00:04:15] Speaker 04:
Well, that would have been right, right?

[00:04:17] Speaker 04:
Because, I mean, we're talking, well, the check-in, that's when the rape is alleged to have occurred.

[00:04:25] Speaker 04:
And then on the 17th, so you're saying on the 17th where

[00:04:30] Speaker 04:
They did some things according to her testimony at the state hearing, but it didn't go any further than that because they had to check out.

[00:04:38] Speaker 04:
So you're saying the inconsistency lies there?

[00:04:40] Speaker 00:
That's one of the inconsistencies.

[00:04:43] Speaker 00:
At the preliminary hearing, she was asked what happened at the hotel.

[00:04:48] Speaker 00:
And she says, he touched me inappropriately upon checkout, but we had to move out or get out of the room.

[00:04:57] Speaker 00:
And so that's as far as it went.

[00:04:59] Speaker 04:
That as far as it went, but far as it went in that particular incident.

[00:05:04] Speaker 04:
I mean, I guess the point is, it's a question of how specific one is when you're asking questions.

[00:05:10] Speaker 04:
Because I mean, as it relates to that specific incident on the 17th, that is as far as it went.

[00:05:18] Speaker 00:
If there is an event on the 17th, that's inconsistent with her trial testimony.

[00:05:25] Speaker 00:
She testified at trial effectively

[00:05:28] Speaker 00:
nothing happened after the night of check-in.

[00:05:32] Speaker 00:
She said, that's the last time that he touched me.

[00:05:37] Speaker 00:
And in the context, that obviously is referring to sexual contact.

[00:05:43] Speaker 00:
So if her answer had been, well, that was,

[00:05:50] Speaker 00:
Yeah, I said that, but we were talking about the check-in, and what I testified to here was talking about the rape that happened after, immediately after, I'm sorry, close to checkout versus checking in.

[00:06:04] Speaker 00:
Then that's also inconsistent, because she said nothing happened after the night of checking in.

[00:06:13] Speaker 00:
So it's inconsistent.

[00:06:14] Speaker 03:
Well, nothing, could she have been referring to actual rape, though, when she said nothing happened?

[00:06:19] Speaker 00:
She said that that's the last time he touched me.

[00:06:21] Speaker 03:
OK, the night of check-in.

[00:06:23] Speaker 00:
Yes.

[00:06:24] Speaker 03:
And this is what she said at trial.

[00:06:26] Speaker 00:
At trial, she said that after describing the rape, that's the last time Jerry touched me.

[00:06:35] Speaker 00:
And the other thing about these questions is one of the questions was, you testified that there was no rape at the hotel.

[00:06:47] Speaker 03:
On the day of check-in.

[00:06:50] Speaker 03:
Out, I mean, on the day of check-in.

[00:06:50] Speaker 00:
It's not qualified as to time.

[00:06:54] Speaker 03:
I think it can be read that way, right?

[00:06:56] Speaker 03:
It can be read that way.

[00:06:58] Speaker 00:
Only by adding words to the question that aren't there.

[00:07:03] Speaker 00:
And to a great extent, what's happened here is cross-examination has been cut off before it can even start.

[00:07:14] Speaker 00:
We can speculate that, well, what if the answer had been this?

[00:07:17] Speaker 00:
What if the answer had been that?

[00:07:19] Speaker 00:
But when counsel gets around to the point in the cross-examination of asking, you said this stuff didn't happen, objection, and it's not allowed.

[00:07:36] Speaker 03:
And the- And it wasn't allowed because the trial court said it had been asked and answered, right?

[00:07:41] Speaker 00:
The first question the trial court said, asked, and answered, is there an objection?

[00:07:48] Speaker 00:
And the objection that was made and ruled upon was improper impeachment, which is somewhat vague.

[00:07:59] Speaker 00:
And that was sustained.

[00:08:00] Speaker 00:
And then the question was revised to you testified that there was no rape at the hotel.

[00:08:08] Speaker 00:
objection, improper impeachment, asked and answered, sustained.

[00:08:14] Speaker 00:
And it's not improper impeachment.

[00:08:18] Speaker 00:
It's actually an attempt to introduce substantive evidence.

[00:08:22] Speaker 00:
And these questions simply had not been asked and answered.

[00:08:25] Speaker 00:
The only way that there had been an answer to these questions previously was the witness saying, I don't really remember what I testified to, which was followed by an invitation to review the preliminary hearing testimony.

[00:08:40] Speaker 00:
And then the witness says, okay, now that's my testimony.

[00:08:42] Speaker 00:
And she'd said that before.

[00:08:46] Speaker 00:
In this case, the proof of the offense conduct is the story of this child.

[00:08:56] Speaker 00:
That's it.

[00:08:58] Speaker 00:
We've got agreement that he took her to the hotel.

[00:09:03] Speaker 04:
Under what theory is this substantive evidence?

[00:09:05] Speaker 04:
Help me with that.

[00:09:06] Speaker 00:
It is substantive because it is a statement that she made

[00:09:12] Speaker 00:
that is inconsistent with her prior trial testimony.

[00:09:18] Speaker 04:
Yes, and I understand that to be a grounds for impeachment.

[00:09:21] Speaker 04:
That doesn't answer the question, though.

[00:09:24] Speaker 00:
Under 801, a prior statement under oath where the witness has the opportunity to explain the prior question, which could have happened had the witness been required to answer,

[00:09:42] Speaker 00:
is substantive proof.

[00:09:45] Speaker 01:
Do we have a preservation problem because that aspect of your argument that you advance on appeal about substantive evidence was not litigated in the district court?

[00:09:56] Speaker 00:
No.

[00:09:57] Speaker 00:
The question is, the objection's improper impeachment.

[00:10:02] Speaker 00:
The question for you is, was that a valid objection?

[00:10:07] Speaker 00:
It was excluded.

[00:10:10] Speaker 00:
What the transcript would have actually shown is in the record.

[00:10:17] Speaker 00:
The government has not on this issue, as best I can tell, said that there's not an offer of proof.

[00:10:25] Speaker 00:
The content of the expected answer is included in the question.

[00:10:32] Speaker 01:
So you're asking us to rely on context?

[00:10:35] Speaker 00:
Context and then subsequently

[00:10:39] Speaker 00:
The transcript is provided and really for the purpose of just demonstrating, we are not playing fast and loose with the court.

[00:10:48] Speaker 00:
This existed.

[00:10:49] Speaker 01:
There's only a little bit of the transfer provided.

[00:10:52] Speaker 01:
Is that right?

[00:10:53] Speaker 01:
I want to make sure that we're not missing anything in the record.

[00:10:55] Speaker 01:
That's correct.

[00:10:56] Speaker 00:
The entire transcript was not submitted.

[00:10:59] Speaker 00:
Council, as I understand it, made the decision that they wanted to include

[00:11:05] Speaker 00:
just the parts that they were asking the witness about.

[00:11:11] Speaker 00:
The government has never contended that there is some other part of the preliminary hearing transcript that discusses this supposed rape on the night of check-in.

[00:11:27] Speaker 00:
So if the contention is the offer of proof is insufficient,

[00:11:32] Speaker 00:
It's difficult for me to figure out how to respond to that.

[00:11:36] Speaker 00:
What we really have is a story that at the preliminary hearing is so different that the government's position is, well, it's talking about something else.

[00:11:48] Speaker 00:
But the witness's trial testimony establishes that if she's talking about something else, that's also inconsistent because she said there wasn't something else.

[00:11:59] Speaker 00:
She said, I was raped when we checked in, and that's the last time Jerry touched me.

[00:12:05] Speaker 04:
About the hunting rifle issue and limits on cross-examination about the hunting rifle, the government's position in its brief is, one, there was no limitation really as it relates to the question of whether she was allowed to use the hunting rifle.

[00:12:23] Speaker 04:
in that particular incident, in that particular time period, and two, that it wasn't a logical argument to make in light of the fact that she had access to the hunting rifle.

[00:12:35] Speaker 04:
So I didn't see any response in your reply brief to either one of those arguments, and therefore, why isn't that waived?

[00:12:45] Speaker 00:
The government is correct that the answer was given.

[00:12:48] Speaker 00:
The record still reflects though that the way this happened is there was an objection.

[00:12:58] Speaker 00:
The court invited an explanation for why it's relevant, which was it would be unusual to rape a person and then give them a loaded firearm.

[00:13:09] Speaker 00:
That doesn't make sense.

[00:13:11] Speaker 00:
That's not what a rational person would do.

[00:13:13] Speaker 00:
And the court sustained the objection with that explanation being made on the record, which is indicating to the jury you're not considerate for that.

[00:13:27] Speaker 04:
Well, help me, help me, because that's not my recollection.

[00:13:29] Speaker 04:
My recollection is what the court barred was a reference to a prior incident in which the rifle was used.

[00:13:38] Speaker 04:
that the court did not bar a line of questioning as to relates to whether she had access to a rifle in that particular temporal period where the rape supposedly took place.

[00:13:50] Speaker 04:
I mean that's not what I think the government alleged in its brief and that's not my recollection of the record.

[00:13:56] Speaker 04:
What am I missing there?

[00:13:58] Speaker 00:
My recollection of the record and the record speaks for itself is that

[00:14:04] Speaker 00:
The question was asked, when you left the hotel the next morning, you went hunting and Jerry gave you a rifle.

[00:14:12] Speaker 00:
Objection.

[00:14:14] Speaker 00:
Counsel, what's the relevance of that?

[00:14:16] Speaker 00:
Well, I wouldn't give a rifle to someone that I just raped.

[00:14:20] Speaker 00:
That doesn't make sense.

[00:14:21] Speaker 03:
Well, you missed her response in there.

[00:14:22] Speaker 03:
The question is, when you went hunting, did Jerry give you a gun?

[00:14:25] Speaker 03:
Answer, 22.

[00:14:26] Speaker 03:
OK.

[00:14:28] Speaker 03:
The question, OK.

[00:14:29] Speaker 03:
And you had shot, I think, the same 22 with him before, right?

[00:14:33] Speaker 03:
Answer, yes.

[00:14:35] Speaker 03:
then the government's objection.

[00:14:36] Speaker 03:
I'm going to object to relevance, what's the relevance council, and then defense council proffers the.

[00:14:44] Speaker 03:
So it did come in, the objection was then sustained.

[00:14:48] Speaker 00:
Right.

[00:14:51] Speaker 00:
The other issue that I raise is the DHS interview.

[00:14:59] Speaker 04:
which is just another example of... And the DHS report is not in the record, right?

[00:15:06] Speaker 04:
It is not.

[00:15:07] Speaker 04:
And so how would you have laid a foundation for that specific argument, I mean, that specific line of questioning without the report actually being in the record?

[00:15:17] Speaker 00:
The same way that other inconsistencies were addressed in the witness's testimony.

[00:15:22] Speaker 00:
Ask her, did you say this?

[00:15:25] Speaker 00:
If she said no,

[00:15:27] Speaker 00:
the report would be used for refreshing recollection, and she could answer.

[00:15:34] Speaker 04:
The report would have been used for refreshing recollection, but the report is not in the record, and the court excluded the report, right?

[00:15:42] Speaker 00:
Correct, but it being excluded doesn't prevent, to the extent it's being used to refresh a witness's recollection, it would not have prevented counsel from saying, hey, here's what you said previously.

[00:15:56] Speaker 00:
So it's another, we're cutting off the whole process by just saying, no, you can't ask about this prior statement.

[00:16:07] Speaker 00:
In a case that depends completely on this story.

[00:16:12] Speaker 03:
How were you trying to get this in?

[00:16:14] Speaker 03:
Was it under Rule 613?

[00:16:15] Speaker 03:
I thought that was your argument.

[00:16:20] Speaker 00:
Well, it's just previously you said, you were asked, have you ever been sexually abused?

[00:16:27] Speaker 00:
She was asked that at a time when she testified at trial.

[00:16:30] Speaker 03:
But she'd already tried to get in the whole, apparently, the report itself, which we don't have.

[00:16:36] Speaker 03:
But she'd already tried to get that in, had been barred pre-trial, right?

[00:16:41] Speaker 00:
The court ruled that prior allegations that somebody else had sexually abused TC was not going to come in.

[00:16:49] Speaker 03:
Under 412.

[00:16:51] Speaker 00:
Under 412.

[00:16:51] Speaker 03:
Rape shield law.

[00:16:52] Speaker 00:
But that is completely different from there was a time you were interviewed.

[00:16:58] Speaker 00:
They asked you in a conversation where Mr. Asbell was brought up, have you ever been sexually abused?

[00:17:05] Speaker 00:
Has anybody done anything sexual to you?

[00:17:08] Speaker 00:
As they would do in a general way.

[00:17:10] Speaker 00:
in an interview without leading who did it.

[00:17:13] Speaker 00:
And she said, no, I have not.

[00:17:17] Speaker 00:
And so then she comes into trial.

[00:17:19] Speaker 03:
We don't even know that though, because we don't have the report.

[00:17:22] Speaker 03:
We don't know what was said or who asked her what.

[00:17:26] Speaker 00:
We have an offer of proof that counsel made that if she answers truthfully, I expect her to say these things.

[00:17:34] Speaker 00:
that there was a report, there was an investigation, you were asked about sexual abuse, and you said there hadn't been any.

[00:17:44] Speaker 03:
Well, this is about questioning about a prior statement, so you do have to show opposing counsel the statement before you question her about it.

[00:17:52] Speaker 03:
Did that happen?

[00:17:54] Speaker 00:
No, but the ruling was you're not allowed to ask her.

[00:17:58] Speaker 03:
Well, why not, though?

[00:17:59] Speaker 03:
I mean, did you even try?

[00:18:00] Speaker 03:
Did you have the report there available?

[00:18:03] Speaker 03:
Did you say, okay, this is what I'm going to do with this report?

[00:18:07] Speaker 03:
She made this inconsistent statement in response to a specific question, and I'm trying to get it in under 613.

[00:18:17] Speaker 03:
Here it is.

[00:18:17] Speaker 03:
Let me ask her, did any of that happen?

[00:18:20] Speaker 00:
No, an offer of proof was made by counsel that this is what I expect her testimony to be.

[00:18:27] Speaker 00:
And the court was saying, you're not to get into the DHS investigation period, even for the purpose of showing that there was a flat out denial of any sexual abuse as of that time when she testified that there had been a years long series of abuse.

[00:18:49] Speaker 00:
And so the jury doesn't have the benefit of knowing that when asked, she said, I've not been sexually abused at a time that at trial she testified, she'd been abused many, many times.

[00:19:04] Speaker 00:
And this is in the context of a case where my client stands convicted based on her story.

[00:19:13] Speaker 00:
We're way over.

[00:19:13] Speaker 00:
Yes.

[00:19:17] Speaker 00:
Thank you, Your Honor.

[00:19:18] Speaker 04:
Thank you.

[00:19:32] Speaker 02:
Good morning, Your Honors.

[00:19:34] Speaker 02:
Lisa Williams, representing the United States of America.

[00:19:38] Speaker 02:
I think I want to start where we left off, briefly discuss the DHS report, and then turn it into part of an inconsistent argument.

[00:19:45] Speaker 02:
First of all, there was no offer of proof as to what the DHS report contained.

[00:19:53] Speaker 02:
The colloquy that happened at trial was the court said, you're not getting into it.

[00:19:58] Speaker 02:
And then the court said, do you have anything else to add?

[00:20:02] Speaker 02:
And one defense counsel, Mr. Weidel, told the other, quote, make a record of the questions.

[00:20:08] Speaker 02:
And then Mr. Kohler said, all right.

[00:20:10] Speaker 02:
These are the questions I would ask your honor.

[00:20:15] Speaker 02:
And then a list of questions follows.

[00:20:18] Speaker 02:
That is not an offer of proof.

[00:20:20] Speaker 02:
In fact, I would quote Chief Judge Holmes from 45 minutes ago when he said, an offer of proof relates to what the witness would have testified to.

[00:20:33] Speaker 02:
There is nothing in this record about

[00:20:38] Speaker 02:
contained.

[00:20:40] Speaker 02:
And the DHS report is not in the record.

[00:20:43] Speaker 02:
And the government's in a bit of a tough situation here.

[00:20:47] Speaker 02:
We have no objection to defense counsel moving to supplement the record in this case, to add the DHS report.

[00:20:55] Speaker 02:
Because the representations made about what are in the DHS report are not true.

[00:21:02] Speaker 02:
This little girl was simply never asked during the DHS interview

[00:21:06] Speaker 02:
Have you ever been sexually abused?

[00:21:09] Speaker 02:
Because we all know that doesn't happen in these types of interviews.

[00:21:14] Speaker 02:
And the problem is that we all owe a duty of candor to the court when we're representing things.

[00:21:21] Speaker 02:
And the fact of the matter is the DHS report doesn't say that.

[00:21:26] Speaker 02:
And that is why, and here's the thing, defense counsel knows that.

[00:21:30] Speaker 02:
And that's why he doesn't make an offer of proof.

[00:21:33] Speaker 02:
Because at the district court, he cannot say that this is what the testimony would be.

[00:21:38] Speaker 02:
So his offer are, these are the questions that I would want to ask.

[00:21:43] Speaker 02:
And we also know that defense counsel understands the difference.

[00:21:47] Speaker 02:
Because later, on trial testimony on page 263 of the transcript, he does make an offer of proof.

[00:21:57] Speaker 02:
with respect to court exhibit two.

[00:21:59] Speaker 02:
And he says, I would request to enter in just parts of the transcript from yesterday.

[00:22:04] Speaker 02:
It would be as an offer of proof.

[00:22:08] Speaker 02:
So this attorney understands the difference between making an offer of proof and providing a list of questions he wanted to ask.

[00:22:18] Speaker 03:
Well, he says he couldn't do that because the court had told him that report's not coming in.

[00:22:24] Speaker 03:
Period.

[00:22:26] Speaker 03:
Move on.

[00:22:27] Speaker 02:
And your honor, it's not coming in in front of the jury.

[00:22:30] Speaker 02:
But for example, he could have asked, I would like permission then when the witnesses don't testify in front of the jury.

[00:22:36] Speaker 02:
to excuse the jury and conduct that and ask her questions, ask her these questions, and get her testimony to preserve the record for appeal.

[00:22:44] Speaker 02:
That's one way that, and that is the proper way to preserve a record and make your offer approved.

[00:22:52] Speaker 02:
He also could have waited until a break, because again, that's what he did with the preliminary transcript, waited for a break at the end and said, I also want to make an offer approved regarding the DHS report.

[00:23:01] Speaker 02:
This is what it would have said.

[00:23:02] Speaker 02:
He could have even admitted it as court exhibit three.

[00:23:06] Speaker 03:
Are you saying that you agree with defendant that there is a distinction between admitting the report fully for whatever it says, which is that the report was unsubstantiated, and admitting a portion of the report as an inconsistent statement regarding prior abuse?

[00:23:33] Speaker 03:
Because that's what he makes that distinction.

[00:23:37] Speaker 03:
Because one argument is made prior to trial.

[00:23:40] Speaker 03:
It's just not admissible under 412.

[00:23:43] Speaker 03:
And then he tries something else at trial, which is what we're talking about now.

[00:23:47] Speaker 02:
Correct.

[00:23:48] Speaker 03:
Are you conceding that that's a valid distinction to begin with?

[00:23:52] Speaker 02:
No, because in no scenario should the report be omitted.

[00:23:57] Speaker 02:
It's the substance of the report.

[00:23:59] Speaker 02:
right, that wants to be admitted at trial.

[00:24:03] Speaker 02:
Now, if he's allowed to explore an inconsistent statement, then he could have said, and you previously, and in fact did say, right, you had an opportunity to disclose in August of 2018 that you were being sexually abused and you never did that.

[00:24:19] Speaker 02:
And she said yes, she said no because of the way the question was framed.

[00:24:22] Speaker 02:
But she agreed that yes, I had this opportunity to disclose and I did it.

[00:24:27] Speaker 02:
If she would have said no,

[00:24:28] Speaker 02:
That's not true.

[00:24:30] Speaker 02:
He could have, I think the government could see it would be proper to try to refresh her recollection with the report and show it to her.

[00:24:37] Speaker 02:
But that doesn't mean it gets admitted, right?

[00:24:40] Speaker 02:
That doesn't make it, because when you refresh recollection, then if she still said, this refreshes my recollection and it doesn't help, well guess what?

[00:24:48] Speaker 02:
You're stuck with the answer.

[00:24:50] Speaker 02:
Because we're not going to impeach on extrinsic evidence.

[00:24:53] Speaker 02:
That's 608.

[00:24:54] Speaker 04:
In the refreshing of elections,

[00:24:58] Speaker 04:
recollection scenario that you alluded to, would there have to be any reference to what the item is that is refreshing the recollection?

[00:25:06] Speaker 02:
No, I don't think so, Your Honor.

[00:25:07] Speaker 02:
I think the parties could have navigated through it.

[00:25:10] Speaker 02:
And that's what the court wanted to, because there's a reference that they weren't even allowed to refresh the election, recollection with the DHS report.

[00:25:17] Speaker 02:
And the court said, you can do that.

[00:25:20] Speaker 02:
You just can't call it the DHS report.

[00:25:23] Speaker 04:
OK, so there is an exchange of that sort in the record.

[00:25:26] Speaker 02:
Yes, there is, Your Honor.

[00:25:27] Speaker 02:
And the government knows that in its brief.

[00:25:29] Speaker 02:
And so I think the court's concern was they don't want the jury to know that this is a DHS investigation.

[00:25:34] Speaker 02:
That's what the court is concerned about limiting, what we're calling the report.

[00:25:39] Speaker 02:
But the court did allow counsel to go ahead and use the report if they wanted to.

[00:25:46] Speaker 02:
They just couldn't call it a DHS report.

[00:25:48] Speaker 02:
So I'm handing you a document.

[00:25:50] Speaker 02:
I'd like you to turn to page four.

[00:25:52] Speaker 02:
Does this refresh your record?

[00:25:54] Speaker 02:
That would have been entirely acceptable under the court's ruling.

[00:25:58] Speaker 02:
Council chose not to do that.

[00:26:02] Speaker 02:
So the record before the court, this court, as to what the DHS report is, what it contains is scant.

[00:26:13] Speaker 02:
There was an offer of proof in the original defense filing on the Rule 412 motion.

[00:26:21] Speaker 04:
So as it relates to this specific challenge, what is your top line rationale for why this specific challenge fails?

[00:26:35] Speaker 04:
I mean, we talked about a lot of stuff.

[00:26:38] Speaker 04:
If we were writing this opinion, what is the top line?

[00:26:43] Speaker 04:
Don't give me a blizzard of details.

[00:26:45] Speaker 02:
Give me the top line.

[00:26:46] Speaker 02:
I know you don't like a blizzard of details.

[00:26:48] Speaker 02:
It's tricky because they make three really different arguments with respect to the report, right?

[00:26:53] Speaker 02:
And one argument is that they wanted to talk to her about the molestation that happened with her brother.

[00:27:01] Speaker 04:
Yes.

[00:27:01] Speaker 02:
Okay?

[00:27:02] Speaker 02:
That's not coming in under 412.

[00:27:05] Speaker 02:
That is purely a 412.

[00:27:08] Speaker 02:
You don't fall into the constitutional right exception of 412C.

[00:27:12] Speaker 02:
The district court ruled on that.

[00:27:13] Speaker 02:
It doesn't go to motive or bias to lie.

[00:27:15] Speaker 02:
So with respect to you were previously molested by your older brother, 412 bars such an effort.

[00:27:20] Speaker 03:
Although they do challenge that again on appeal, that pretrial ruling.

[00:27:24] Speaker 03:
Or at least I read them to be challenging it.

[00:27:27] Speaker 02:
In their reply brief, they make the extraordinary argument

[00:27:30] Speaker 02:
that because she was molested by her brother, she's not engaging in sexual behavior, seeming to read some sort of consent requirement.

[00:27:43] Speaker 02:
into Rule 412 in order for a victim to fall under the protection of such a rule, which no case in this country has ever interpreted encouraged in that manner, Your Honor.

[00:27:56] Speaker 02:
And it would directly contravene the underpinnings and concerns that Rule 412 gets at to suggest that it does so.

[00:28:04] Speaker 02:
And that's the government's response to that.

[00:28:07] Speaker 02:
So with respect to the prior sexual abuse, 412, perhaps, that's the government's top five argument.

[00:28:13] Speaker 02:
Then they say, we wanted it because it shows a false report.

[00:28:18] Speaker 02:
There's no evidence that this is false.

[00:28:20] Speaker 02:
That's the top line argument is you're not allowed to question when there's no basis to question.

[00:28:25] Speaker 02:
The DHS report finds that the allegations made, by the way, by third parties, right?

[00:28:33] Speaker 02:
TC doesn't call up DHS and say, my older brother's molesting me.

[00:28:39] Speaker 02:
Third parties from a family picnic claim that this is happening.

[00:28:44] Speaker 02:
And so the DHS report unsubstantiates the findings.

[00:28:49] Speaker 02:
Well, that is not the same thing as a finding that TC lied.

[00:28:54] Speaker 02:
So top line argument on that, Your Honor, no evidence on it.

[00:28:59] Speaker 02:
Then the third and final argument about the DHS report is that they wanted to show that she previously denied any sexual abuse.

[00:29:09] Speaker 02:
One, the top line argument is there's no evidence in the record that that evidence exists.

[00:29:14] Speaker 02:
But then the secondary argument, which I believe is just as strong, is they are allowed to explore with TC that she had an opportunity to disclose and that she failed to disclose.

[00:29:27] Speaker 02:
And that is basically what they wanted out of it.

[00:29:33] Speaker 02:
And to the extent that they wanted to ask, you were asked

[00:29:39] Speaker 02:
Have you ever been sexually abused?

[00:29:41] Speaker 02:
And you said, I've never been sexually abused.

[00:29:44] Speaker 02:
Such a broad question has serious relevancy issues.

[00:29:48] Speaker 02:
Because why is it relevant whether or not TC was abused by anybody else?

[00:29:53] Speaker 02:
What's relevant, what they want to show is you were asked if you were sexually abused.

[00:29:59] Speaker 02:
And you said, Mr. Asbell has never sexually abused me.

[00:30:03] Speaker 02:
That's the proper scope.

[00:30:04] Speaker 03:
It certainly could be relevant if it was close in time.

[00:30:08] Speaker 03:
It was similar allegations of abuse, and it might have explained why this little girl had some knowledge of these terms and activities that she presumably wouldn't have had knowledge of.

[00:30:19] Speaker 03:
There certainly could be relevance.

[00:30:21] Speaker 02:
I think you could craft a factual situation, yes, Your Honor.

[00:30:26] Speaker 02:
get to that.

[00:30:27] Speaker 02:
Obviously, there's no facts in this record to support that.

[00:30:32] Speaker 02:
But the question he's allowed to ask at trial that it gets his answer to is, you had an opportunity at the end of August in 2018 to disclose sexual abuse, but you didn't, did you?

[00:30:45] Speaker 02:
And she says, no.

[00:30:47] Speaker 02:
As in, no, I didn't disclose the abuse.

[00:30:49] Speaker 02:
That's in the trial.

[00:30:52] Speaker 02:
And then

[00:30:53] Speaker 02:
There's no mention of it at closing.

[00:30:55] Speaker 02:
I'm away from my top line argument now, right?

[00:30:59] Speaker 02:
But there is still this harmless error analysis hanging over, right?

[00:31:04] Speaker 02:
So he got in the main point is that she could have told somebody about this and she never did.

[00:31:12] Speaker 02:
And now they're arguing that he needed just a little bit differently worded question.

[00:31:18] Speaker 02:
And somehow that slightly differently worded question, that's what would have tipped the scales and gotten him his acquittal.

[00:31:27] Speaker 02:
And the government, in its harmless argument, says, no, that's not right.

[00:31:31] Speaker 01:
Should we be thinking at all about Rule 403 and evaluating how the district court ruled on the DHS interview?

[00:31:37] Speaker 02:
Yes, Your Honor, you should.

[00:31:38] Speaker 02:
Because even after you worked through 412,

[00:31:42] Speaker 02:
rule four three of course is always hanging over the balance and the district court did express concerns under rule four oh three uh... with the DHS interview and that of course is what is the you know

[00:31:53] Speaker 02:
It's relevant, but what is the probative value here?

[00:31:56] Speaker 02:
How much bang for the buck does it give you?

[00:31:59] Speaker 02:
And then you have to weigh it against the risk of unfair prejudice, confusion of the issues, and all of the other 403 factors.

[00:32:09] Speaker 02:
And again, and the argument I was just making, I think, feeds into that 403 analysis, that balancing, because you have to look at it.

[00:32:16] Speaker 02:
You just wanted to ask your question slightly different, and in doing so,

[00:32:23] Speaker 02:
It's not probative.

[00:32:30] Speaker 02:
And you risk all of these really dangerous things.

[00:32:33] Speaker 01:
Because again.

[00:32:33] Speaker 01:
So I wanted to clarify what the government's position is on this, though.

[00:32:37] Speaker 01:
Because on appeal, your arguments on this point seem to be 412 and no offer of proof, right?

[00:32:44] Speaker 02:
Our primary, I do think we note that the district court made the rule 403 ruling and that this court can affirm because it's evidentiary this court can affirm under any theory supported by the totality of the evidence.

[00:33:04] Speaker 02:
Turning now, with a minute and 30 seconds left, to the prior inconsistent statement, I think what's really important is to walk the court through what happens here.

[00:33:13] Speaker 02:
And he says, with the prior inconsistent statement, you testified at the preliminary hearing that you didn't have sex at the hotel.

[00:33:21] Speaker 02:
She says, I don't remember.

[00:33:23] Speaker 02:
He goes, let me refresh your recollection.

[00:33:26] Speaker 02:
He hands her the transcript, the court exhibit two.

[00:33:29] Speaker 02:
She reads it.

[00:33:31] Speaker 02:
And she goes, did that refresh your memory?

[00:33:34] Speaker 02:
She goes, I read it and it didn't help.

[00:33:39] Speaker 02:
So it did not refresh her recollection.

[00:33:43] Speaker 02:
So at that point in time, this is trial ad 101, you are stuck with the witness's answer.

[00:33:51] Speaker 02:
So when he continues to ask that same question and the government objects, asked and answered, it's because that question was in fact asked and answered.

[00:34:02] Speaker 02:
She said, I don't remember testifying that way.

[00:34:04] Speaker 02:
He refreshed her recollection.

[00:34:06] Speaker 02:
She says, this doesn't help.

[00:34:08] Speaker 02:
And then after that, he continues to ask her, but she still doesn't remember.

[00:34:13] Speaker 02:
That's the testimony.

[00:34:15] Speaker 02:
So the court's objection at that time is entirely proper.

[00:34:21] Speaker 02:
to serve up.

[00:34:23] Speaker 02:
And again, the problem also with this is it's confusing to this 14-year-old girl.

[00:34:30] Speaker 02:
And I know the court doesn't like me to get outside the record.

[00:34:33] Speaker 02:
But later on at that hearing, she does testify to penetrative sex taking place at the hotel room.

[00:34:40] Speaker 02:
So she's confused because he's saying, you never said this.

[00:34:46] Speaker 02:
And in the back of her mind, she's probably thinking, I did say that.

[00:34:51] Speaker 02:
That's not right.

[00:34:52] Speaker 02:
I don't understand his question.

[00:34:54] Speaker 02:
They show her four pages that doesn't help.

[00:34:58] Speaker 02:
And she says, this doesn't help.

[00:35:01] Speaker 02:
I don't remember it this way.

[00:35:03] Speaker 02:
And then they don't show her the rest of her testimony.

[00:35:07] Speaker 02:
That's the problem with the prior and consistent argument, is that the district court did not abuse its discretion because of the way that the questions and answers are asked.

[00:35:18] Speaker 02:
A lot of the, and I see I'm over time, if I may just have a few seconds to wrap up.

[00:35:25] Speaker 02:
It's not the questions that defense counsel wishes were asked, or wanted to be asked, or should have been asked.

[00:35:33] Speaker 02:
It's the questions that were asked at the trial that this court has to look at.

[00:35:36] Speaker 02:
And when you look at the questions that were asked, there is no way to find that the court abused its discretion.

[00:35:42] Speaker 02:
This court should affirm.

[00:35:43] Speaker 04:
Thank you.

[00:35:47] Speaker 04:
The case is submitted.

[00:35:48] Speaker 04:
Thank you, counsel, for your fine argument.