[00:00:00] Speaker 05:
United States versus Baker, and this is 24-7017.

[00:00:10] Speaker 01:
May it please the court, Carl Hennis for Sean Baker, and I'm going to try my best to reserve two minutes for rebuttal.

[00:00:17] Speaker 01:
We're here today because a district court excluded evidence that went to the heart of Baker's defense.

[00:00:23] Speaker 01:
This case turned entirely on the credibility of a single witness, DP

[00:00:28] Speaker 01:
a 12-year-old girl who first made her allegations of sexual abuse while hallucinating in the hospital.

[00:00:34] Speaker 01:
The government repeatedly told the jury that DP couldn't possibly have fabricated detailed allegations of sexual abuse.

[00:00:43] Speaker 01:
But when Baker tried to introduce YouTube videos that directly refuted that claim by showing that DP had made up fictional stories about sex just months earlier

[00:00:53] Speaker 01:
The district court excluded the videos under federal rules of evidence 412 and 403.

[00:00:58] Speaker 01:
The district court misapplied both rules.

[00:01:02] Speaker 01:
The YouTube videos fall outside both Rule 412's plain text and its purpose, and Rule 403's extraordinary remedy was not warranted here because the videos had clear probative value, they went to DP's credibility, and they pose little, if any, risk of prejudice or confusion.

[00:01:21] Speaker 01:
And even putting aside the rules of evidence, the Constitution does not permit a conviction in a case like this, where a defendant is denied the opportunity to confront his accuser with evidence that casts doubt on the reliability of her testimony.

[00:01:35] Speaker 01:
This court should vacate Baker's convictions and remand for a new trial where the jury can receive a full and accurate picture of DP's credibility.

[00:01:45] Speaker 01:
I want to start with rule 412.

[00:01:47] Speaker 01:
That was kind of the meat of the

[00:01:50] Speaker 01:
dispute in the trial court.

[00:01:52] Speaker 01:
And it's really important at the outset that Rule 412 does not bar all sex-related evidence.

[00:01:58] Speaker 01:
This court's decision in AAS makes that clear.

[00:02:01] Speaker 01:
It bars only evidence raised for two specific purposes, to prove an alleged victim's sexual behavior or to prove an alleged victim's sexual predisposition.

[00:02:14] Speaker 01:
And here, the fictional stories in DP's videos have nothing to do with either DP's prior sexual behavior or her inclination to engage in sexual behavior.

[00:02:25] Speaker 05:
The comments on sexual behavior specified in behavior can be features of the imagination.

[00:02:36] Speaker 05:
It can be involved sexual fantasy, correct?

[00:02:39] Speaker 05:
Correct.

[00:02:42] Speaker 05:
then look at the phrase sexual predisposition, that phrase could be interpreted rationally, could it not, a predisposition to create sexual fantasies?

[00:02:55] Speaker 01:
I don't think that's quite right.

[00:02:57] Speaker 01:
So I think that sexual fantasies are private thoughts.

[00:03:00] Speaker 01:
They're imaginary scenarios that reflect, you know- Making up sexual stories.

[00:03:06] Speaker 01:
I don't think that's quite right.

[00:03:07] Speaker 01:
They're private.

[00:03:08] Speaker 01:
They're not fictional narratives created for an audience, posted publicly for an audience.

[00:03:14] Speaker 01:
Every case I've seen that involves sexual fantasies involves an alleged victim fantasizing about her own conduct.

[00:03:22] Speaker 01:
And that makes sense because Rule 412 is concerned with the victim's conduct.

[00:03:28] Speaker 01:
It's not concerned with fictional stories about other things that

[00:03:33] Speaker 01:
are outside of her involving fictional characters.

[00:03:36] Speaker 01:
And I think, you know, I haven't found a case remotely similar to this that has excluded evidence under Rule 412.

[00:03:43] Speaker 05:
Or admitted it.

[00:03:44] Speaker 05:
I mean, it's an issue of first impression, fair?

[00:03:47] Speaker 01:
To some extent, but the default under our system of law is, if it's relevant, it comes in.

[00:03:53] Speaker 05:
So, you know, it's kind of the burden on the government to... Well, under 412, maybe under 403 or 402, but 412, I mean, we have

[00:04:02] Speaker 05:
we have to interpret 412.

[00:04:05] Speaker 01:
Absolutely.

[00:04:05] Speaker 01:
But I think the default is the videos come in unless they fall under 412.

[00:04:12] Speaker 01:
And so I think the closest thing that I've found is these cases where there's been a prior false allegation of sexual abuse.

[00:04:21] Speaker 01:
And do those fall under Rule 412?

[00:04:24] Speaker 01:
And there's a little bit of a circuit split there.

[00:04:25] Speaker 01:
And I think that situation is a little different because, A, it involves an actual victim's

[00:04:31] Speaker 01:
you know, her conduct, you know, making up conduct about herself and her activities.

[00:04:37] Speaker 01:
And B, those allegations aren't the kind of thing that are publicly published on the internet for anyone to see.

[00:04:43] Speaker 01:
So they implicate a little more, you know, Rule 412's policies.

[00:04:48] Speaker 01:
But even then, courts generally say if it's clear that the allegations of the prior sexual assault are false, if we know they're false, then there's no bar to introducing them under

[00:05:01] Speaker 01:
Rule 412.

[00:05:02] Speaker 05:
Can I ask you a question?

[00:05:06] Speaker 05:
Let's say it's an adult.

[00:05:08] Speaker 05:
Let's say it's an adult female who writes X-rated novels, or just romance novels that involve components of sex.

[00:05:21] Speaker 05:
And she has many publications.

[00:05:25] Speaker 05:
And then she claims that she was

[00:05:30] Speaker 05:
compelled to have sex.

[00:05:32] Speaker 05:
And the defendant is arrested and at the trial says, well, I want to exhibit one.

[00:05:45] Speaker 05:
Defendant's exhibit one is going to be her first romance novel because she clearly has the capability, the inclination to make out sexual fiction.

[00:05:59] Speaker 05:
And that's exactly what she did with me.

[00:06:01] Speaker 05:
She just made it up.

[00:06:03] Speaker 05:
And we know that she has the capability and the willingness to do it, because she has many publications to her credit.

[00:06:11] Speaker 05:
Does that come within Rule 412?

[00:06:14] Speaker 01:
I don't think it would, because it's not relevant to her sexual behavior or her sexual predisposition.

[00:06:21] Speaker 05:
And here we have this other wrinkle that... OK, let's say she makes up all of these stories in her head.

[00:06:29] Speaker 05:
So you're saying if she makes up the sexual stories in her head, just doesn't put it on paper, now that is a sexual predisposition, right?

[00:06:39] Speaker 05:
Because of the comment that fantasy can be sexual behavior.

[00:06:43] Speaker 05:
So I think, so as I understand, you're drawing the line between you lose that component of sexual conduct, sexual behavior, once you express it externally.

[00:06:57] Speaker 05:
But if you don't express it,

[00:06:59] Speaker 05:
then it comes within 412.

[00:07:02] Speaker 05:
Is that the line you're drawing?

[00:07:04] Speaker 01:
So I think so.

[00:07:07] Speaker 01:
I mean, 412 is certainly, I mean, the policy behind it is protecting victims from invasion of privacy and to prevent them from having to disclose intimate sexual details about their private lives.

[00:07:20] Speaker 01:
So it does make a big difference if we're considering sexual fantasies, whether this is a private, intimate detail of my life and

[00:07:29] Speaker 01:
There's great policy reasons that we don't want to put a witness on the stand and say, have you ever fantasized about having sexual relations with the defendant?

[00:07:39] Speaker 01:
That is completely inappropriate.

[00:07:41] Speaker 01:
But once you put them out into the world, and once they don't involve your sexual conduct, they involve sexual conduct of fictional characters, admittedly fictional characters.

[00:07:51] Speaker 01:
The government admits that these are completely fictional characters, then that is no longer

[00:07:56] Speaker 01:
sexual predisposition that's no longer sexual behavior, that falls far outside of Rule 12.

[00:08:03] Speaker 01:
And again, I mean, the government hasn't said anything remotely similar that would apply something like this in this case.

[00:08:10] Speaker 01:
And here we have this- May I ask a question?

[00:08:17] Speaker 03:
What's really bothered me in this case is the advisory comment note

[00:08:23] Speaker 03:
because it talks about the alleged sexual predisposition, whether offered as substantive evidence or for impeachment.

[00:08:35] Speaker 03:
Now, I've been listening to you, and how could you use this information, particularly in light of the government's comment that, what, no 12-year-old can make something like that?

[00:08:47] Speaker 03:
I've forgotten exactly the language.

[00:08:49] Speaker 03:
How could you use this information other than for impeachment?

[00:08:54] Speaker 01:
So Judge Baldock, I think the important thing about the commentary is that it only applies if the evidence actually falls under rule 12, or 412.

[00:09:07] Speaker 01:
It only applies if the evidence is being offered by the defendant to prove either other sexual behavior or sexual predisposition.

[00:09:17] Speaker 01:
And if it is not being introduced for one of those narrow purposes, then impeachment

[00:09:22] Speaker 01:
It doesn't matter what purpose it's introduced for, because it is admissible evidence.

[00:09:27] Speaker 01:
And the Sixth Circuit Kettle decision, I believe it is, they recognize this.

[00:09:31] Speaker 01:
They say, too narrow purposes for this evidence, that it's prohibited.

[00:09:37] Speaker 01:
And if it's not introduced for either of those purposes, then it's fine to come in, even for impeachment.

[00:09:45] Speaker 01:
So the first thing we have to do is...

[00:09:48] Speaker 03:
So how would you enter, as far as your objection to the trial court's failure to let you use that, I'm not quite sure on what basis, in other words, were you using it to disprove the government's statement that no 12-year-old can do this, or what other basis would you be admitting it for?

[00:10:12] Speaker 03:
I need to hear your explanation on that.

[00:10:15] Speaker 01:
Exactly.

[00:10:15] Speaker 01:
The government repeatedly told the jury that

[00:10:18] Speaker 01:
you know, she could not have made this up.

[00:10:20] Speaker 01:
And they used every adjective in the book, you know, manufacture, concoct, craft, make up.

[00:10:26] Speaker 01:
And because of the exclusion of this evidence, we could not rebut that.

[00:10:30] Speaker 01:
So, you know, if the government gets to tell the jury that she couldn't have made it up, then the defense has a right to show the jury that she could have.

[00:10:40] Speaker 01:
So that went unanswered in closing arguments and in evidence generally.

[00:10:44] Speaker 01:
And the government in their briefing ignores that they repeatedly make this argument.

[00:10:50] Speaker 01:
And so even putting aside Rule 412, we have the Confrontation Clause backup, which says that a defendant gets to introduce facts that could make the jury doubt the reliability of the witness's statement.

[00:11:04] Speaker 01:
And that's especially the case when it's the only witness to testify to an important issue, where that testimony is uncorroborated

[00:11:12] Speaker 01:
and where the government's case hinges on the fact that that witnesses credibility.

[00:11:20] Speaker 01:
And again, if the government gets to say that she couldn't have made this up, under the Confrontation Clause, the defense gets a right to show that she could.

[00:11:28] Speaker 05:
Well, we typically consider that under opening the door or invited error.

[00:11:33] Speaker 05:
But you haven't argued invited error.

[00:11:35] Speaker 05:
You haven't argued that it's opened the door.

[00:11:38] Speaker 05:
And so it seems that we're

[00:11:41] Speaker 05:
unfortunately, stuck with interpreting the language in Rule 412.

[00:11:45] Speaker 05:
In other words, it seems like the issue would be the same legally for us, irrespective of whether or not the government had argued once or multiple times that DP could not have made that up.

[00:11:59] Speaker 01:
I think you're probably right that it's the same analysis either way.

[00:12:03] Speaker 01:
But I do think it adds something to the Confrontation Clause argument.

[00:12:07] Speaker 01:
Because in this court's decision in Begay,

[00:12:09] Speaker 01:
which we cite in the briefs, this court emphasizes the fact that this crucial testimony, the government raised a theory in their closing, and they emphasize this particular thing.

[00:12:19] Speaker 01:
And because of the evidence that was excluded, the defense essentially could not answer that testimony.

[00:12:24] Speaker 01:
So I think it does go to the confrontation clause analysis, and it certainly goes to the harmless error analysis.

[00:12:30] Speaker 05:
If we conclude that the evidence was inadmissible under Federal of Evidence 412,

[00:12:39] Speaker 05:
would you still argue that there was a violation of the confrontation clause?

[00:12:44] Speaker 05:
In other words, can there be a violation of the confrontation clause if the evidence was properly excluded under a federal rule of evidence?

[00:12:51] Speaker 01:
Absolutely.

[00:12:51] Speaker 01:
And that's the exception in Rule 412, 412C3, I think.

[00:12:57] Speaker 01:
But it specifically says that the confrontation clause, an exception to Rule 412 is if excluding the evidence would violate the defendant's constitutional rights.

[00:13:09] Speaker 01:
Briefly go to rule 403.

[00:13:11] Speaker 02:
Let me stop you for just a minute.

[00:13:12] Speaker 02:
So just so we walk away here with something concrete on that, other than the exception that's contained in the rule, what case do you have applying that exception that is particularly helpful to us as far as you're concerned?

[00:13:31] Speaker 01:
So I think Begay is the case that applies it in the rule 412 context.

[00:13:36] Speaker 01:
Robinson is another case that's not in Rule 412 context, but it's applying the confrontation clause analysis.

[00:13:42] Speaker 01:
And that's the case where there was only one witness that could speak to a particular issue.

[00:13:47] Speaker 01:
It was uncorroborated.

[00:13:49] Speaker 01:
And this court said it was crucial that the jury heard evidence that might cast out on that witness's credibility, because the jury received an inaccurate and incomplete picture of the defendant's credibility.

[00:14:01] Speaker 01:
And that is exactly the situation we have here, because the government was able to tell

[00:14:05] Speaker 01:
the jury, there's no reason that this 12-year-old would be able to make this kind of thing up.

[00:14:12] Speaker 01:
And we know there is, because she had these fictional videos out there.

[00:14:16] Speaker 01:
I want to move very quickly to rule 403.

[00:14:19] Speaker 01:
This is an extraordinary remedy.

[00:14:20] Speaker 01:
It's used sparingly.

[00:14:22] Speaker 01:
The probative value is obvious.

[00:14:23] Speaker 01:
It goes right to the crucial issue in the case.

[00:14:26] Speaker 01:
The government didn't even offer below that it would be prejudicial to introduce this kind of evidence.

[00:14:31] Speaker 01:
The theory now is incredibly speculative.

[00:14:36] Speaker 01:
you know, issues of confusion or anything.

[00:14:37] Speaker 01:
This is just, you know, there's no way that these confusion, prejudice substantially outweigh the probative value.

[00:14:47] Speaker 01:
And our legal system, the default is admission.

[00:14:52] Speaker 01:
And these should have been admitted here, especially when you see what the government said in its closing argument that Baker was not able to rebut.

[00:15:03] Speaker 01:
Thank you.

[00:15:06] Speaker 05:
I'm going to give you one minute for rebuttal.

[00:15:21] Speaker 00:
Good morning, Your Honors.

[00:15:22] Speaker 00:
Lisa Williams, representing the United States of America.

[00:15:26] Speaker 00:
I want to pick up really quick where we left off on that 403 analysis.

[00:15:29] Speaker 00:
And I'm going to return to 403 later.

[00:15:31] Speaker 00:
But this is an issue that the defense raised in the reply briefing as well, that the government's argument about unfair prejudice is waived or untimely.

[00:15:42] Speaker 00:
The district court specifically in its ruling, excluding the evidence under 403 at the motion-eliminating stage, found

[00:15:51] Speaker 00:
that it would create unfair prejudice.

[00:15:54] Speaker 00:
And so there's no waiver.

[00:15:55] Speaker 00:
There's no untimely issue with this unfair prejudice prong.

[00:15:58] Speaker 00:
The government is defending the district court's ruling where it found that exact ground.

[00:16:03] Speaker 00:
And I just wanted to address that, because I don't understand where this argument keeps coming from, because that's just simply not the case with the record on this appeal.

[00:16:12] Speaker 00:
Now, turning to the 412 argument, this court has to first decide

[00:16:18] Speaker 00:
whether or not the evidence falls within the ambit of Rule 4, 12a.

[00:16:23] Speaker 00:
If it does, then it'll turn to the 12b argument, which is that's where the confrontation clause argument is embedded, and whether or not exclusion of the evidence would violate the confrontation clause.

[00:16:35] Speaker 00:
And then if it finds that there is no confrontation clause violation, then it can affirm on those grounds.

[00:16:42] Speaker 00:
And I really am not going to get to 403, but I do want to say,

[00:16:49] Speaker 00:
You know, even if the district court erred with 412, even if the evidence falls outside of 412 and so a 412 analysis isn't necessary, there is still the issue of the 403 analysis.

[00:17:03] Speaker 00:
And so in many ways, this court doesn't even need to reach the 412 argument to affirm and decide this case because there is the 403 issue out there.

[00:17:15] Speaker 02:
What's the prejudice under 403?

[00:17:19] Speaker 00:
I mean, it's enormous, Your Honor.

[00:17:21] Speaker 02:
But in the context of the government raising the idea that she couldn't make it up?

[00:17:28] Speaker 00:
Sure.

[00:17:28] Speaker 00:
The prejudice is everything that is in the commentary and notes of Rule 412.

[00:17:33] Speaker 02:
These have to be separate, don't they?

[00:17:37] Speaker 00:
No, it's the rationale underlining 412.

[00:17:40] Speaker 00:
The enormous risk of prejudice that a jury may latch onto

[00:17:44] Speaker 00:
when evidence of sexual behavior or sexual disposition of a witness is introduced in a trial, the Congress had to draft a whole rule about the risk of prejudice that will arise when this type of evidence is admitted at trial.

[00:17:58] Speaker 02:
So the risk of- Doesn't that, though, speak to the idea that you can't then shoehorn 412 back into your 403 analysis if 412 doesn't apply?

[00:18:12] Speaker 00:
No, because if 412 doesn't apply, there is no 412 analysis.

[00:18:17] Speaker 00:
But you still have to analyze whether the evidence is admissible pursuant to 403.

[00:18:24] Speaker 00:
I think what I may agree, the 403 analysis is less imperative if you exclude under 412, because they have similar.

[00:18:34] Speaker 02:
The 403 analysis doesn't matter if you properly exclude it under 412.

[00:18:40] Speaker 00:
Correct.

[00:18:41] Speaker 00:
And I guess that's the, it's, it's suppurifice if you exclude under 412, because many of the same things that you're going to look at are 412.

[00:18:52] Speaker 02:
But if you, if you find... So assume, in the context of this case, not just general matters, but the context of this case, what's the, assuming 412 doesn't apply, what is the prejudice to the, to the victim in this case or to the government?

[00:19:11] Speaker 00:
Prejudice to the victim is that the jury, and I cited the case about what an unfair prejudice means.

[00:19:20] Speaker 00:
And it's the Isabel case.

[00:19:24] Speaker 00:
And unfair prejudice is when the jury has an undue tendency to suggest a decision on an improper basis, commonly though not necessarily an emotional one.

[00:19:39] Speaker 00:
And the risk is that the jury would look at this little girl and see that she had these sexual videos out there and say, nice girls don't make up sexual fantasies.

[00:19:51] Speaker 00:
Nice girls don't engage in this behavior.

[00:19:54] Speaker 00:
And because you did these dirty things that we don't think you should have, we don't want to believe what you say.

[00:20:02] Speaker 02:
I mean, the problem, though, is she didn't say it.

[00:20:05] Speaker 02:
This is all in response to something that the prosecution said.

[00:20:11] Speaker 02:
The young lady didn't say it on the stand herself.

[00:20:17] Speaker 02:
The government said she couldn't make it up.

[00:20:19] Speaker 02:
She didn't have any way to know these details.

[00:20:23] Speaker 00:
Well, I'll say there are some interesting cases in the 412 context that say

[00:20:32] Speaker 00:
Evidence should come in to explain a child victim's knowledge of sexual terms and sexual things like penetrative sex.

[00:20:43] Speaker 00:
But as I believe it was Judge Bacharach noted previously, that wasn't the reason the defense sought to introduce this evidence prior to trial.

[00:20:56] Speaker 00:
They didn't say that these videos were needed to explain her vocabulary and knowledge of sex.

[00:21:03] Speaker 00:
If they had, I think that this would be a very different appeal presented to this court.

[00:21:08] Speaker 00:
The written reason that the defendant gave in its response to the government's motion in lemonade for why they wanted to omit the videos was because they were going to, quote, offer it to show

[00:21:20] Speaker 00:
that the victim is a talented storyteller who, a year prior to this outcry, told fictional accounts of sexual behavior.

[00:21:31] Speaker 00:
And so now that's the reason that they gave the court.

[00:21:35] Speaker 00:
And we cannot ignore that that's how the issue was done.

[00:21:38] Speaker 02:
Did they change, did their justification morph at trial?

[00:21:41] Speaker 00:
Not that they brought to the court's attention, Your Honor.

[00:21:43] Speaker 00:
I think they certainly could have said, we would now renew our request to admit these videos since the government has said X, Y, and Z. But they didn't do that.

[00:21:53] Speaker 00:
And so that is not a ground that they can argue before this court.

[00:21:57] Speaker 00:
They are stuck with the record that they have.

[00:21:59] Speaker 02:
So from a preservation standpoint, it's your position that they're stuck with their explanation

[00:22:04] Speaker 02:
that they made before trial, that they made no additional argument and made no additional plea to the court to allow them to introduce it at trial?

[00:22:15] Speaker 00:
Correct, because we're on abuse of discretion.

[00:22:17] Speaker 00:
And if you never raise an argument to the court.

[00:22:19] Speaker 02:
No, I understand.

[00:22:20] Speaker 02:
I'm asking you to affirm that what I'm saying about the record is true.

[00:22:24] Speaker 00:
I agree.

[00:22:25] Speaker 00:
Yes, I'm agreeing with you, Judge.

[00:22:27] Speaker 00:
Because again,

[00:22:31] Speaker 00:
It's not that you're stuck with your initial offer in writing, but you are stuck with what you put forth before the district court when the record ends.

[00:22:43] Speaker 00:
And the end of the record is the end of trial.

[00:22:45] Speaker 00:
And so at that point, well, even if they had raised it in their motion for a new trial motion, right?

[00:22:51] Speaker 00:
They did do a written motion for a new trial.

[00:22:53] Speaker 00:
That could have been another opportunity to ask for a new trial and say, hey, these videos should have come in on these grounds because these are the things the government argued in closing.

[00:23:02] Speaker 00:
They didn't even do that.

[00:23:03] Speaker 00:
And so they had several opportunities to pivot and readjust their argument, and they didn't.

[00:23:08] Speaker 00:
And to do so now on appeal is invited error or a waiver or a forfeiture.

[00:23:15] Speaker 00:
I think the most interesting argument, legal argument, is whether or not these videos fall within the scope of rule 412A.

[00:23:23] Speaker 00:
I think if they do, if this court concludes that they do, the 412B analysis is pretty straightforward, because again, these are being offered as generalized impeachment.

[00:23:33] Speaker 00:
And this circuit and many others have been very clear that generalized impeachment is not a recognized exception to 412B, and it doesn't create a confrontation clause issue.

[00:23:43] Speaker 00:
So the real meat of the issue here

[00:23:45] Speaker 00:
is this 412A.

[00:23:49] Speaker 00:
The defendant has to prove that the court abused its discretion in finding that the videos fell within the scope of 412A.

[00:23:57] Speaker 00:
And first of all, the court said the clips would be offered as evidence of DP's sexual predisposition.

[00:24:08] Speaker 00:
That is a finding of fact that district court made

[00:24:11] Speaker 00:
That's in its written new trial motion order denying the new trial motion for judgment of acquittal.

[00:24:18] Speaker 00:
That finding a fact, because we're on abuse of discretion, the defense has to establish was clearly erroneous.

[00:24:25] Speaker 00:
This is a district court that watched the videos and also sat through trial

[00:24:32] Speaker 00:
and had access to all of the information in the case.

[00:24:36] Speaker 00:
I have gone through the record, and I could be wrong.

[00:24:39] Speaker 00:
I make plenty of mistakes.

[00:24:41] Speaker 00:
But I could not find that the videos were provided anywhere in the record to this court.

[00:24:46] Speaker 00:
I don't have a clue how the defense can convince this court that the district court made a clearly erroneous factual determination after viewing videos that this panel hasn't even viewed.

[00:25:01] Speaker 05:
I have a question about that and I was wondering why we don't have YouTube videos.

[00:25:07] Speaker 05:
But I don't know that it's his fault because he doesn't have an obligation to supply an appendix.

[00:25:12] Speaker 05:
It may be that it was the fault of the district court clerk failing to properly compile the record.

[00:25:19] Speaker 00:
At the same time, Your Honor, you will have to reverse the district court.

[00:25:25] Speaker 00:
You'll have to find that it abused its discretion.

[00:25:27] Speaker 00:
And without watching those videos, how can you determine, especially with respect to the 403 argument, how can you find that the district court abused its discretion in finding that the content of these videos were so overly prejudicial compared to their probative value?

[00:25:43] Speaker 05:
Well, that may be true on Rule 403.

[00:25:46] Speaker 05:
On Rule 412,

[00:25:48] Speaker 05:
It seemed to me that both sides agree that there's a sexual component to the YouTube videos.

[00:25:55] Speaker 05:
And so I had thought that, at least under the Rule 412A analysis, that they're either sexual or they're not.

[00:26:04] Speaker 05:
And we either accept the defendant's argument about private thoughts versus externally expressed thoughts or not.

[00:26:14] Speaker 05:
But it seemed to me that everybody agreed that the four YouTube videos do have a sexual component.

[00:26:20] Speaker 00:
That's true, Your Honor.

[00:26:21] Speaker 00:
Absolutely, there is a sexual component.

[00:26:22] Speaker 00:
But what defense claims is that they were not offered to show predisposition.

[00:26:27] Speaker 00:
And the district court made a specific finding that they were offered to show predisposition.

[00:26:32] Speaker 00:
And that's the distinction that the government's trying to get at.

[00:26:36] Speaker 02:
Let me ask you a question.

[00:26:39] Speaker 02:
Part of the problem here is, in most of these cases,

[00:26:42] Speaker 02:
This evidence is being offered to show something that the victim did, okay?

[00:26:53] Speaker 02:
And she agreed to it.

[00:26:57] Speaker 02:
She knew what she was doing, you know, that the victim had the ability to consent, these types of things.

[00:27:06] Speaker 02:
And in this, the whole argument from the other side is we didn't have sex.

[00:27:11] Speaker 02:
This never happened.

[00:27:12] Speaker 02:
And so nobody's, and you look at this, prohibited uses.

[00:27:18] Speaker 02:
Evidence offered to prove that a victim engaged in other sexual behavior.

[00:27:26] Speaker 02:
I mean, that's not the reason it's being offered, right?

[00:27:30] Speaker 02:
You agree with that, don't you?

[00:27:31] Speaker 00:
No.

[00:27:34] Speaker 02:
What sexual behavior are they trying to prove she engaged?

[00:27:37] Speaker 00:
As I mentioned in the brief, Your Honor, sexual behavior includes sexual fantasies.

[00:27:41] Speaker 00:
And so the extent that these YouTube videos are a manifestation of her sexual fantasies, they do constitute sexual behavior.

[00:27:49] Speaker 02:
But the purpose, they're not offering it to show that she did that, did they?

[00:27:54] Speaker 00:
Well, that's what the defense claims and the court found otherwise.

[00:27:57] Speaker 00:
And the government believes that that's not true.

[00:28:00] Speaker 00:
And that's the rub.

[00:28:01] Speaker 00:
That's the rub.

[00:28:03] Speaker 00:
That's the rub is how this court sifts through the defense's purported purpose in offering them.

[00:28:10] Speaker 00:
which is not to show sexual disposition or sexual behavior.

[00:28:13] Speaker 02:
They're saying we want to show it, we want to introduce it to show it didn't happen.

[00:28:18] Speaker 00:
Well, they want it that she fantasizes and that she lies.

[00:28:22] Speaker 00:
And here's the thing, they also, this is what they want to do.

[00:28:25] Speaker 02:
Well, it's different though.

[00:28:26] Speaker 02:
They're wanting to show, they're wanting to offer it to prove that she didn't engage in sexual behavior with him.

[00:28:33] Speaker 00:
Well, that she's lying about the sexual behavior she's claiming she engaged in.

[00:28:38] Speaker 00:
Correct.

[00:28:39] Speaker 00:
But not that it didn't, because she's lying, is why they want to offer it.

[00:28:44] Speaker 00:
Is the behavior never, this sex never took place because this little girl's a liar.

[00:28:50] Speaker 00:
That's their argument.

[00:28:52] Speaker 00:
Because she testified and she said this all took place.

[00:28:55] Speaker 02:
Well, they certainly want to make their case that she's capable of making it up.

[00:29:00] Speaker 00:
Right?

[00:29:00] Speaker 00:
But she did make it.

[00:29:01] Speaker 00:
I mean, they have to say she's making it up, Your Honor, because she sat at trial and she said these things happen.

[00:29:06] Speaker 02:
I understand.

[00:29:07] Speaker 02:
I understand.

[00:29:08] Speaker 02:
But at the same time, it lets you off free because you get to get up there and say she couldn't make it up.

[00:29:15] Speaker 02:
But they're not allowed to say that she did under your theory.

[00:29:19] Speaker 00:
Well, that's what I was going to say, is there was a way to get this evidence in without the YouTube videos, right?

[00:29:25] Speaker 00:
If they wanted to allege that she's a storyteller, hey, you are involved in making videos on YouTube, and those videos are works of fiction, and you see yourself as a storyteller, and you engage, you enjoy telling stories.

[00:29:38] Speaker 00:
You don't have to mention the sex part, Your Honor.

[00:29:41] Speaker 00:
You don't have to.

[00:29:42] Speaker 02:
But the sex part's what matters, because you said that she was too young to do it, that she couldn't have understood enough to make that up.

[00:29:49] Speaker 00:
The sex part is what dirties her up and makes the jury not want to believe her, Your Honor.

[00:29:55] Speaker 00:
That's why the sex part matters to them.

[00:29:56] Speaker 02:
The sex part is also what you're using as a sword to prevent them from defending themselves.

[00:30:04] Speaker 00:
So why should you be able to use it?

[00:30:09] Speaker 00:
Well, listen, Your Honor.

[00:30:10] Speaker 00:
A lot of the comments that they were made in closing, I believe, were also made in rebuttal.

[00:30:15] Speaker 00:
And the government's provided a little bit more leeway in responding to what the defense arguments are, saying that she made it up.

[00:30:21] Speaker 00:
And so there is that component of opening the door.

[00:30:24] Speaker 02:
But it seems like everybody thinks the other sides open the door.

[00:30:31] Speaker 00:
That's our thing, we're doing our job right, aren't we?

[00:30:35] Speaker 00:
If I may, I really did want to talk about just one point with harmless error.

[00:30:40] Speaker 00:
I see I'm out of time, but the he said, she said.

[00:30:44] Speaker 05:
I'm going to play like King Solomon.

[00:30:47] Speaker 05:
I'm going to give you one minute to do that, and I'm going to give you now two minutes.

[00:30:51] Speaker 00:
Perfect.

[00:30:52] Speaker 02:
And I'm not going to interrupt.

[00:30:53] Speaker 02:
And I'm going to give him zero points.

[00:30:56] Speaker 00:
And this not only goes to harmless error, but it goes to the materiality analysis.

[00:31:00] Speaker 00:
It's an important thing, the strength of the government's case.

[00:31:04] Speaker 00:
This is not a he said, she said case.

[00:31:07] Speaker 00:
This is a she said, and he kind of agreed case.

[00:31:10] Speaker 00:
Because let's not forget about his confession, where he told the investigator that this little girl came on to him.

[00:31:19] Speaker 00:
Now, and then he said,

[00:31:21] Speaker 00:
I regret how far things went.

[00:31:24] Speaker 00:
So when we look at the totality of the evidence here, this isn't just some little girl getting on the stand.

[00:31:30] Speaker 00:
This is a man sitting down post Miranda saying that this child came onto him and he regretted how far things went.

[00:31:38] Speaker 00:
And that is really strong evidence for the government in these types of cases.

[00:31:43] Speaker 00:
Because as we all know, six and seven year old girls don't come on to their step dads

[00:31:50] Speaker 00:
That just doesn't happen.

[00:31:51] Speaker 00:
So that's the one thing I wanted to mention in terms of the strength of the government's case.

[00:31:56] Speaker 00:
I appreciate the extra time.

[00:31:58] Speaker 05:
But before you leave, Judge Waldoch, do you have any questions?

[00:32:05] Speaker 03:
No.

[00:32:05] Speaker 03:
Other than the fact that I do have a comment that 4.012 says a lot of this stuff.

[00:32:12] Speaker 03:
So what we're doing was touching it.

[00:32:16] Speaker 03:
OK.

[00:32:16] Speaker 03:
Thank you very much.

[00:32:17] Speaker 00:
All right.

[00:32:17] Speaker 00:
Thank you.

[00:32:19] Speaker 02:
I think he's directing that at me.

[00:32:27] Speaker 01:
Real quickly on the fact that if you all don't have the videos, I apologize.

[00:32:31] Speaker 01:
We wrote a letter to the Oklahoma District Court and asked them to send them to you, so we can look into that.

[00:32:38] Speaker 01:
On Rule 412, sexual predisposition, as Judge Carson pointed out, is just not at issue here.

[00:32:44] Speaker 01:
There's no argument that DP had any inclination to engage in sexual

[00:32:48] Speaker 01:
activity because we said she didn't engage.

[00:32:52] Speaker 01:
Our whole theory is that she didn't engage and I think Judge Carson brings up a good point is that these cases are usually consent type cases.

[00:32:58] Speaker 01:
This is extremely strange application of Rule 412 to say that you can't, that Rule 412 bars evidence that you're arguing shows that sexual conduct didn't occur.

[00:33:11] Speaker 01:
That is strange.

[00:33:13] Speaker 05:
Isn't that the rub?

[00:33:14] Speaker 05:
Is sexual predisposition

[00:33:17] Speaker 05:
conduct, or does it include both the predisposition to create sexual fantasies, as well as the proclivity, the predisposition to engage in sexual conduct?

[00:33:31] Speaker 05:
You've made an excellent argument, but there's two meanings, arguably, to the term.

[00:33:41] Speaker 01:
seen about the predisposition is a predisposition and inclination to engage in sexual conduct.

[00:33:47] Speaker 01:
That's what federal practice and procedure says.

[00:33:50] Speaker 01:
And again, that kind of plays into these cases about false allegations.

[00:33:55] Speaker 01:
The government says that our evidence is just generalized impeachment evidence so that it doesn't implicate the confrontation clause, but it's not generalized impeachment evidence.

[00:34:04] Speaker 01:
This is evidence that makes her specific testimony less believable on this point.

[00:34:11] Speaker 01:
And that's something that the Confrontation Clause absolutely protects.

[00:34:15] Speaker 01:
We have to bring this in, especially if the government's going to be able to say in closing that she couldn't have made this up.

[00:34:22] Speaker 01:
And on harmless air, there's two things to look at.

[00:34:24] Speaker 01:
Their closing argument, which I've already touched on, and their own investigators said, if he had seen the YouTube videos, he might have changed his mind.

[00:34:30] Speaker 01:
The jury might have too.

[00:34:32] Speaker 01:
Thank you.

[00:34:33] Speaker 04:
Thank you very much.

[00:34:37] Speaker 04:
Judge Bullock, do you have any questions?

[00:34:40] Speaker 05:
OK, both sides, I think your briefing and arguments were excellent, as we always expected both of you.

[00:34:47] Speaker 05:
And court is adjourned until 8.30 tomorrow morning.