[00:00:02] Speaker 03:
Looks like we have all collected, and the next case for argument is United States versus Clay, docket 24-2057.

[00:00:11] Speaker 03:
Counsel, please proceed when you're ready.

[00:00:16] Speaker 00:
Thank you, Your Honor.

[00:00:16] Speaker 00:
If I may have a second to speak.

[00:00:39] Speaker 00:
Good morning, justices.

[00:00:40] Speaker 00:
My name is Brock Benjamin, and I represent, I along with Mr. Marshall Ray, who's here, represent Jeffrey Clay.

[00:00:47] Speaker 00:
And we're here asking the court to reverse his conviction based upon several evidentiary issues.

[00:00:55] Speaker 00:
And I'll focus on the three issues, but mainly on starting with issue one.

[00:00:59] Speaker 00:
And that was where, in its response brief, the United States says Clay tricked Doe One into his car by offering her a ride.

[00:01:09] Speaker 00:
the defendant had filed a motion of alimony at the very beginning asking to admit evidence under 412.

[00:01:15] Speaker 00:
And while it's not argued this way in the brief, essentially the issue there was that we were arguing that it was a constitutional reason to allow that admission, because it doesn't fall under one of the two main reasons there.

[00:01:26] Speaker 00:
But that evidence was simply evidence that would explain and counter her testimony that she had hitched a ride

[00:01:33] Speaker 00:
from an individual at a bus stop in a, for lack of a better term, a bad part of El Paso, and would put the evidence of consent that she got into the car into evidence with documentary evidence.

[00:01:52] Speaker 01:
I would submit that one way that this... It shows consent to get in the car and get a ride.

[00:01:59] Speaker 00:
Yes, Your Honor.

[00:02:00] Speaker 01:
What other consent does it show?

[00:02:02] Speaker 00:
Well, Your Honor, but it explained the consent to get in the car and get a ride makes the story by Mr. Clay makes sense and puts him in a place where if he's a John picking up somebody for prostitution, that makes sense as opposed to simply he was there picking me up after I left the bar with my husband.

[00:02:22] Speaker 00:
And I would submit that in thinking about this, the way that this makes more sense is having tried many drug cases,

[00:02:28] Speaker 00:
In a drug case, the United States puts a cooperator on the stand and says, you've been convicted, and you were selling drugs, and you were doing XYZ.

[00:02:35] Speaker 00:
Here, the narrative would have switched dramatically had the United States put Jane Doe One on the stand and said, in her direct testimony, you have been convicted of a prostitution.

[00:02:47] Speaker 00:
But this day, you were not acting, or you were simply looking for a ride.

[00:02:51] Speaker 00:
That would have styled this testimony distinctly different

[00:02:56] Speaker 01:
Okay, so you're saying that primarily that it would be used to challenge your credibility.

[00:03:07] Speaker 01:
Yes, your honor.

[00:03:09] Speaker 01:
So in other words, if you're a sex worker, you're incredible.

[00:03:13] Speaker 00:
No, your honor.

[00:03:14] Speaker 00:
You have to be believed.

[00:03:16] Speaker 00:
Excuse me, I didn't mean to interrupt, your honor.

[00:03:18] Speaker 00:
No, that's not, it's to challenge the statement that the government led with in its response.

[00:03:24] Speaker 00:
And I believe it's sentence number two, where the government's position was that Clay tricked Doe One into his car.

[00:03:33] Speaker 00:
And that was, it's the,

[00:03:36] Speaker 00:
credulous idea that this is what they're leading with we're not arguing about whether the sex worker because she's a sex worker is credible or not credible what we're dealing with is the framework and the argument that is placed in front of the jury by We call it removing the sting where when you place your witness on the stand you bring out the bad facts first That's challenging just plain credibility

[00:04:01] Speaker 00:
of the getting in the car at a bus station at night with a strange white man, your honor.

[00:04:06] Speaker 00:
And that's the issue that is the credulous, or am I taking this car and going to a friend's house?

[00:04:13] Speaker 00:
Because that's the issue that the prostitution conviction would have put into play was the idea that, much like a cooperator, the cooperator is a

[00:04:27] Speaker 01:
How does that in any way reflect upon consent to have sex?

[00:04:32] Speaker 01:
It doesn't, Your Honor.

[00:04:33] Speaker 01:
It doesn't.

[00:04:34] Speaker 00:
It doesn't.

[00:04:35] Speaker 01:
So it is plain challenging the credibility of a sex worker

[00:04:39] Speaker 01:
because she's a sex worker.

[00:04:41] Speaker 00:
It's plain challenging the credibility of the case that the United States is putting forth through that testimony, Your Honor.

[00:04:50] Speaker 00:
And it indicted my client with the Man Act violation, which was taking a individual across state lines for prostitution purposes.

[00:04:59] Speaker 00:
And that was what Mr. Clay admitted to in his testimony.

[00:05:02] Speaker 00:
But so the issue when we're forcing

[00:05:05] Speaker 00:
When the district court precludes the 412, the documentary evidence, it shifts the narrative and forces Mr. Clay to testify.

[00:05:12] Speaker 00:
And the only thing he gets to say is, as the individual charged, I am credible or not credible.

[00:05:17] Speaker 00:
And we're not allowing the credibility to be challenged.

[00:05:21] Speaker 00:
in a different way.

[00:05:22] Speaker 03:
Is this all of the evidence that you wanted the conviction that's it?

[00:05:26] Speaker 00:
Correct your honor and that was what was in the motion in limiting was the ability to bring that out.

[00:05:30] Speaker 00:
It was a it was not a issue that was challenged by the government other than the admission of it.

[00:05:36] Speaker 00:
It wasn't it wasn't we're not arguing about facts or whether it exists or not we're just arguing about the

[00:05:43] Speaker 03:
The coming in and its relevance is what its relevance is explaining?

[00:05:48] Speaker 00:
Why a bus stop a stranger would get in a car with a white male?

[00:05:53] Speaker 00:
In a dark part of town after it hurt because her story was I left that I had an argument my husband I went out I was leaving and so what you're hoping to prove with that is that it was a consensual encounter Is a consensual encounter between the two of them as opposed to what was presented which was trickery to get into the vehicle and sensual encounter

[00:06:12] Speaker 03:
for prostitution.

[00:06:14] Speaker 03:
That's what you're trying to prove.

[00:06:16] Speaker 03:
So it's not credibility.

[00:06:18] Speaker 03:
I can't tell what you're saying.

[00:06:21] Speaker 00:
It scares me when people tell me that, Your Honor.

[00:06:23] Speaker 00:
I apologize to the court.

[00:06:24] Speaker 00:
But what I'm saying is that this case rose and fall on the idea of Jeffrey Clay's defense of, I went to South El Paso and picked up a prostitute and I took her to my house in Anthony, New Mexico.

[00:06:39] Speaker 00:
That was count two.

[00:06:40] Speaker 00:
That's what he was essentially admitted to and he was denying the kidnapping count.

[00:06:47] Speaker 03:
He didn't admit that.

[00:06:49] Speaker 03:
Otherwise he would have pleaded guilty.

[00:06:52] Speaker 00:
Your Honor, I've actually placed myself in the position where a client should stand up and plead to a different count.

[00:07:00] Speaker 00:
But that's not what happened.

[00:07:02] Speaker 00:
His testimony said that that's what happened.

[00:07:04] Speaker 00:
And it wasn't very articulate.

[00:07:05] Speaker 00:
But that is where that was going, Your Honor, was the defense position.

[00:07:11] Speaker 01:
But the central issue here is that the kidnapping.

[00:07:16] Speaker 01:
I'll let you go on a little bit.

[00:07:20] Speaker 01:
So there was consent to prostitution.

[00:07:25] Speaker 01:
That doesn't mean there was consent to kidnapping.

[00:07:28] Speaker 01:
It doesn't mean there was consent to an aggravated assault.

[00:07:32] Speaker 01:
It doesn't mean it was a consent to anything like that.

[00:07:36] Speaker 01:
A prostitute does not consent to being taken across state lines

[00:07:45] Speaker 01:
A prostitute does not necessarily consent to an aggravated handcuffing event.

[00:07:54] Speaker 01:
Isn't that true?

[00:07:55] Speaker 00:
100%, Your Honor.

[00:07:56] Speaker 00:
Although I would say there was a jury question about whether if her consent was initial at the beginning, if she changed her mind, would that still be a kidnapping?

[00:08:04] Speaker 00:
And the answer to that is clearly yes.

[00:08:06] Speaker 00:
You can change your mind.

[00:08:07] Speaker 00:
But that goes back to the idea that the narrative that is formed when the district court constricts what comes in and how it comes in changes, much like with a cooperator, where you would say that somebody is not

[00:08:24] Speaker 00:
It doesn't have a conviction or has a conviction.

[00:08:26] Speaker 01:
Mr. Benjamin, when you first started out this morning, you said, I'm going to take a different approach than the briefs, correct?

[00:08:35] Speaker 01:
Argument-wise is what I meant, Your Honor.

[00:08:37] Speaker 01:
I apologize.

[00:08:37] Speaker 01:
Well, yeah.

[00:08:38] Speaker 01:
Well, this whole thing we've been arguing for the past nine minutes or so is something that really wasn't pressed in your briefs, correct?

[00:08:51] Speaker 00:
Your Honor, I would disagree.

[00:08:52] Speaker 00:
Issue one was Mr. Clay given his defensive consent, and that... All right.

[00:09:01] Speaker 03:
Go ahead.

[00:09:02] Speaker 03:
I'm just trying to piece it.

[00:09:04] Speaker 03:
I'm trying to piece what you're saying.

[00:09:05] Speaker 03:
Is it this?

[00:09:06] Speaker 03:
That the prostitution conviction would have made the jury more likely to believe that it was a consensual prosecution encounter, and if they believed that,

[00:09:18] Speaker 03:
it would have been less likely to believe that there was trickery or anything that would support the kidnapping charge because they were just driving off to complete the transaction.

[00:09:28] Speaker 00:
Yes, Your Honor.

[00:09:29] Speaker 03:
That's your position.

[00:09:30] Speaker 00:
That's 100%.

[00:09:30] Speaker 03:
Do you have any law, because of course, 412 is a barrier for you and has a lot of societal purpose behind it.

[00:09:41] Speaker 03:
Do you have any law, and I can see this is different.

[00:09:44] Speaker 03:
This is a different sort of a situation.

[00:09:46] Speaker 03:
Any law that says a conviction is different because then you're not dragging someone's name through the mud and raising all kinds of allegations about them that they may not want shared and may not even be true, but you're dealing with a hard and fast conviction, piece of paper that says you were convicted of prostitution.

[00:10:06] Speaker 03:
I'll agree with you that seems a little different, but do you have any authority that says it is?

[00:10:11] Speaker 00:
I don't, Your Honor.

[00:10:12] Speaker 00:
We cited the United States versus AS that talks about the rule pitting societal roles, embarrassment of the victim.

[00:10:18] Speaker 00:
But I would suggest that Mr. Clay here, in admitting to prostitution, is suffering the same embarrassment as somebody who has a judicial public record for that, is what I would respond to that.

[00:10:31] Speaker 00:
But I don't have a specific site to answer the court on that.

[00:10:37] Speaker 00:
Your Honor.

[00:10:39] Speaker 00:
Issue three was our challenging of the limitation on impeachment by the district court, where the district court prevented Mr. Ray, defense counsel, from going into and challenging the complainant based upon the fact that her statement was not under oath.

[00:11:01] Speaker 00:
Her prior allegation from when she was a child was not under oath.

[00:11:05] Speaker 03:
You're talking about TV.

[00:11:07] Speaker 03:
TV.

[00:11:07] Speaker 03:
Okay, so you've moved on to the 2421 charge.

[00:11:10] Speaker 00:
I did, Your Honor, I apologize.

[00:11:12] Speaker 03:
Which, as I understood it, you were a moment ago conceding.

[00:11:16] Speaker 03:
And so if, indeed, there was plenty of evidence to support that charge on your theory that it was prostitution, why do we even care about TV?

[00:11:26] Speaker 00:
Because what came in under TV was very violent allegation of a sexual assault that should not have been admitted under the government's charged acts.

[00:11:38] Speaker 03:
Well, it didn't help convict, or it wasn't needed to convict for 2421 according to you.

[00:11:44] Speaker 00:
Correct, Your Honor.

[00:11:45] Speaker 00:
But it's extremely harmful and prejudicial on the kidnapping charge.

[00:11:51] Speaker 03:
Is it?

[00:11:51] Speaker 00:
Why?

[00:11:53] Speaker 00:
your honor having your stepdaughter come in and testify that you were raped and you were raped so bad that you were bleeding when the issue there was that was not in any of the prior statements is there there's a there's a sexual assault your honor and then i would suggest that there's a very violent vulgar sexual assault so your position is that it was important

[00:12:17] Speaker 03:
Because then the jury would be more apt to believe that what happened at Mr. Clay's house was rape.

[00:12:25] Speaker 00:
Yes, Your Honor.

[00:12:27] Speaker 03:
Now let me ask you this question, which is the big one for me, and that is, does Mr. Clay have to intend to rape before he crosses that New Mexico line?

[00:12:40] Speaker 00:
No, Your Honor, because for count two,

[00:12:43] Speaker 00:
or for Count 1, Your Honor, I apologize.

[00:12:45] Speaker 03:
I'm talking Count 1 since that's what you're saying the evidence hurt you on.

[00:12:49] Speaker 00:
No, I don't think he has to intend to rape at all under Count 1.

[00:12:52] Speaker 00:
Under Count 1, if we sanitize Count 1, if I simply take somebody across state lines against their intent, against their will, that's kidnapping.

[00:13:01] Speaker 03:
Well, it all bleeds into each other as far as the consent, the prostitution, and the rape, right?

[00:13:08] Speaker 03:
Correct, Your Honor.

[00:13:08] Speaker 03:
OK, so for 2421, does the

[00:13:12] Speaker 03:
Defendant have to intend And I don't know why I'm really talked about that because you've conceded that one but for that charge Does the defendant have to intend before crossing the state line?

[00:13:26] Speaker 03:
Not just to engage in sexual activity or hired sexual activity or anything else but rape Does that have to be in the defendant's mind before they cross the state line?

[00:13:37] Speaker 00:
It's a bifurcated, Your Honor.

[00:13:38] Speaker 00:
It's either for sexual purposes, prostitution, or to commit other criminals.

[00:13:44] Speaker 03:
I know that.

[00:13:45] Speaker 03:
I'm asking about the timing.

[00:13:47] Speaker 00:
Your Honor, I think that the, strictly speaking, and I don't think that's where we're at here, but I think, yes, the intent has to be formed before you commit the act, which is the transportation across the state line.

[00:14:00] Speaker 00:
But the issue here with regard to the Count Warren and the prejudice that came in there when the district court excluded the impeachment improperly, Your Honor, was that

[00:14:10] Speaker 00:
being able to go through and impeach somebody is much stronger than the way that the district court required it to be done, which was by refreshing recollection.

[00:14:18] Speaker 00:
Because the purpose of impeachment was to discredit the witness, TV, and not to establish the facts in the dispute.

[00:14:25] Speaker 00:
And the district court got hung up on the idea that it was being offered for the truth, so to speak, or for substantive evidence, and not simply for impeachment evidence.

[00:14:36] Speaker 00:
And the court,

[00:14:39] Speaker 00:
In our brief, Your Honor, we cited that the district court is not to protect the accusing witness from impeachment, but to determine whether the jury had sufficient evidence to evaluate that.

[00:14:50] Speaker 00:
under, evaluate the witness under violently.

[00:14:53] Speaker 00:
And the issue there was her statement, TV statement, didn't make mention of terms that came out and were argued in closing and on direct.

[00:15:01] Speaker 00:
Good girl, that the handcuffs and the lubrication jelly, and these were all things that were not in the prior statements that impeachment could have brought out.

[00:15:10] Speaker 00:
And the issue here, Your Honor, is that it was a seven hour deliberation.

[00:15:15] Speaker 00:
So clearly the jury between that and the jury question that came out regarding

[00:15:19] Speaker 00:
Consent and how one came up this was not an open and shut prosecution case that the jury bought hook line sinker, and I am out of time Thank you Good morning your honors counsel

[00:15:48] Speaker 02:
May it please the court, I'm James Braun on behalf of the United States.

[00:15:55] Speaker 02:
The decision whether to admit or exclude evidence is generally left to the discretion of the district court.

[00:16:00] Speaker 02:
And here, the district court acted well within its discretion in ruling on the evidentiary issues that are raised in this appeal.

[00:16:09] Speaker 02:
The exclusion of evidence under Rule 412 of the victim's prior acts of prostitution, the admission under Rule 413 of the defendant sexually assaulted his daughter in the past, and the limiting of impeachment of the daughter based on vague and unfounded accusations

[00:16:35] Speaker 02:
relating to her mental health and supposed prior accusations of sexual abuse.

[00:16:42] Speaker 02:
First, under Rule 412, evidence that a victim engaged in other sexual behavior is inadmissible in a proceeding involving alleged sexual misconduct.

[00:16:52] Speaker 02:
And that's exactly what the defendant was trying to do here.

[00:16:56] Speaker 02:
Any cases with a conviction?

[00:16:59] Speaker 02:
No, not that have been cited in the briefs, but this case wasn't about a conviction.

[00:17:04] Speaker 02:
And I'd like to address your question, Judge Phillips, about that, what the defendant argued in his motion in the district court.

[00:17:10] Speaker 02:
He didn't argue this is like a Rule 609 admission of a prior conviction.

[00:17:15] Speaker 02:
Well, nobody's saying that because it wasn't a felony, right?

[00:17:20] Speaker 02:
I don't know the answer necessarily.

[00:17:24] Speaker 02:
And what she had admitted in the interview is that she had a conviction.

[00:17:28] Speaker 02:
And I can't remember if she got a conditional discharge or something like that.

[00:17:32] Speaker 02:
But there was no evidence proffered by the defense of any documents.

[00:17:35] Speaker 02:
He talks about documentary evidence.

[00:17:37] Speaker 02:
He didn't proffer any documents.

[00:17:40] Speaker 02:
I believe all we have from the record is what the government put in its response to the defendant's motion, which was the victim had admitted during an interview that she had previously acted as a prostitute.

[00:17:50] Speaker 02:
That's all we have.

[00:17:52] Speaker 01:
So what the defendant asked for, and it's... And that did not get in the trial record, right?

[00:17:58] Speaker 01:
The... What's that?

[00:17:59] Speaker 02:
Did that get into the trial record?

[00:18:01] Speaker 02:
It did not get into the trial record, no.

[00:18:02] Speaker 02:
It was all pre-trial.

[00:18:04] Speaker 02:
Right.

[00:18:04] Speaker 02:
Right.

[00:18:05] Speaker 01:
And what the defendant had asked for in his motion is that... We can go through every page in here, and we can't see anything about a conviction of DOE 1.

[00:18:18] Speaker 02:
DOE 1 is also referred to as PL.

[00:18:21] Speaker 02:
Right.

[00:18:26] Speaker 02:
Nothing in there about her.

[00:18:28] Speaker 02:
No, because that was excluded under Rule 412 as far as the trial goes.

[00:18:32] Speaker 02:
Now, as far as the pretrial litigation, the defense at page two of their motion asked that the court permit the defendant to offer evidence that Jane Doe was a prostitute, that she had a history of engaging in the occupation of prostitution, and that the encounter that led to the charges in this case

[00:18:52] Speaker 02:
was the result of a solicitation for commercial sex initiated by Jane Doe.

[00:18:57] Speaker 02:
That's what he asked for, not to introduce proof that she had a conviction.

[00:19:01] Speaker 02:
And perhaps that might be different.

[00:19:03] Speaker 02:
That's not what he was asking for.

[00:19:04] Speaker 03:
Was the district court aware that there was a prostitution conviction?

[00:19:09] Speaker 02:
From the government's response, I believe the government just put it in its response

[00:19:20] Speaker 02:
PL had admitted to prior acts of prostitution.

[00:19:23] Speaker 02:
I'm not sure if the government mentioned a conviction.

[00:19:26] Speaker 02:
But again, the defendant didn't put on any actual evidence.

[00:19:29] Speaker 02:
He didn't submit the discovery page where this is listed in a report.

[00:19:33] Speaker 02:
He just said what I read from the record.

[00:19:36] Speaker 02:
So it was very vague as far as what exactly the defense was asking for.

[00:19:41] Speaker 02:
But it was just to offer evidence that the victim had previously acted as a prostitute was the gist of it.

[00:19:47] Speaker 02:
And that's what Rule 412.

[00:19:49] Speaker 02:
excludes.

[00:19:51] Speaker 02:
And what the defense is arguing is that this was admissible to prove consent and that it was required under the Constitution.

[00:19:57] Speaker 02:
And in answer to Judge Murphy's question about whether it means that a prostitute can't be believed, it sounded to me like the answer was no, but once a prostitute, always a prostitute is essentially what it was being offered for.

[00:20:12] Speaker 02:
That's how it would show consent.

[00:20:13] Speaker 02:
And that's

[00:20:14] Speaker 02:
directly contrary to this court's precedent and what the court said in the Palms case, that evidence that a sex trafficking victim previously engaged in prostitution is irrelevant to whether that victim was coerced into working as a prostitute on a later date.

[00:20:30] Speaker 02:
Minor child, right?

[00:20:32] Speaker 02:
I can't remember the victim in that case.

[00:20:35] Speaker 02:
No consent possible.

[00:20:37] Speaker 02:
But essentially, what the court said is the fact that someone has acted as a prostitute in the past

[00:20:44] Speaker 02:
does not show, is not relevant to show that they consented on a later date, and that the Constitution doesn't require the admission of irrelevant evidence.

[00:20:53] Speaker 02:
And that reasoning applies here.

[00:20:56] Speaker 03:
Here's my problem, and help me out, is that it seems to me as I read the briefs and the record that I've seen that

[00:21:07] Speaker 03:
consent and was there a prosecution transaction in the in the works even if it took a while before everybody the two of them are comfortable that neither was a police officer or whatever that that was the game in this case which is to say if the jury believed that this was a prostitution encounter then I don't know how the jury would find kidnapped

[00:21:36] Speaker 03:
crossing the state line by decoying or inveigling when both parties were in agreement that they were going somewhere to consummate a transaction.

[00:21:46] Speaker 03:
And so it's super-charged, that question.

[00:21:51] Speaker 03:
Its outcome determined it, perhaps.

[00:21:54] Speaker 03:
And therefore, when he says constitutional basis, the exception under 412, I'm listening.

[00:22:02] Speaker 03:
Why shouldn't I be listening?

[00:22:04] Speaker 02:
Well, because again, in Palms, the court said that the fact that someone has acted as a prostitute in the past does not mean they've consented to act as one on this date.

[00:22:13] Speaker 03:
It's different if it's a child, though, right?

[00:22:16] Speaker 03:
No, it's not, because they're talking about consent.

[00:22:18] Speaker 03:
The child can't consent.

[00:22:20] Speaker 02:
No, a child can't consent as a matter of law.

[00:22:22] Speaker 03:
Jane Doe One could have consented.

[00:22:24] Speaker 02:
Right.

[00:22:24] Speaker 02:
But what Palms is talking about is just the fact, what it says is,

[00:22:29] Speaker 02:
that evidence that a sex trafficking victim previously engaged in prostitution is irrelevant to whether that victim was coerced into working as a prostitute on a later date.

[00:22:37] Speaker 02:
And the same reasoning applies here.

[00:22:39] Speaker 02:
The fact in what Rule 412 basically precludes is the admission of this type of propensity evidence to say, because you acted as a prostitute before, you must have been acting as one now, or that is evidence that you were acting as one on this date.

[00:22:53] Speaker 02:
And as far as the Constitution goes, what the court said in AS

[00:22:57] Speaker 02:
is that it talked about the class of cases where the Constitution mandates the admission of this type of evidence.

[00:23:03] Speaker 02:
And it says that there's two classes of cases, those where it shows motive to lie and those where it shows bias against the defendant.

[00:23:10] Speaker 02:
And it gives an example.

[00:23:11] Speaker 02:
It talks about the 10th Circuit case in Pletaro, where the defendant had proffered evidence that the victim had a sexual relationship with a third party because it showed the victim's motive to tell that third party that her sexual encounter with the defendant was non-consensual.

[00:23:27] Speaker 02:
That's not what we have here.

[00:23:29] Speaker 02:
What we have here is prior acts of prostitution.

[00:23:33] Speaker 02:
That in no way shows that the victim had a motive to lie about the defendant or that she was biased against the defendant.

[00:23:40] Speaker 02:
And so the Constitution doesn't apply here in that context.

[00:23:44] Speaker 02:
And it doesn't show that she consented here.

[00:23:50] Speaker 02:
What the defendant was wanting to prove is that this act was consensual.

[00:23:55] Speaker 02:
He was allowed to put on evidence of that.

[00:23:58] Speaker 02:
The court did not prevent him from putting on his defense.

[00:24:01] Speaker 02:
He was allowed to testify to his version of events that this was an arranged, consensual sex for money exchange.

[00:24:10] Speaker 02:
And he was allowed to cross-examine the victim and ask her, did you agree to sex for money?

[00:24:18] Speaker 02:
She said no, but he was allowed to ask that question.

[00:24:21] Speaker 02:
He was allowed to put on that evidence of himself.

[00:24:24] Speaker 02:
precludes is the defendant to say, but you have acted as a prostitute in the past, haven't you?

[00:24:29] Speaker 02:
And try to imply that because she did it before, she did it this time.

[00:24:32] Speaker 02:
That's what's not allowed, and the Constitution doesn't require it.

[00:24:37] Speaker 02:
And unless there's any more questions on rule 412, I would move on to the third issue.

[00:24:44] Speaker 02:
The defendant skipped the rule 413 discussion, and unless the court has any questions about that, the admission of the

[00:24:54] Speaker 02:
the Rule 413 evidence, his argument is essentially that he wasn't charged with a sexual assault offense.

[00:25:06] Speaker 02:
And so therefore, it's not admissible in this case.

[00:25:09] Speaker 02:
We have argued that what the court should look at is the conduct under the Batten case.

[00:25:14] Speaker 02:
And the conduct in this case clearly involves sexual activity.

[00:25:20] Speaker 03:
And yeah, 413 does say accused of.

[00:25:23] Speaker 03:
And 412 says involving.

[00:25:26] Speaker 03:
An accused of sounds like a criminal charge.

[00:25:28] Speaker 03:
Sounds like it.

[00:25:30] Speaker 03:
I'm sorry.

[00:25:30] Speaker 03:
It sounds like a criminal charge.

[00:25:35] Speaker 02:
It could be interpreted that way, but it doesn't need to be interpreted that way, because accused can also mean something less formal.

[00:25:43] Speaker 02:
And as the court said, the Seventh Circuit said in Foley, what the rules of evidence are concerned about is facts, not necessarily elements.

[00:25:51] Speaker 02:
And so you look at the conduct.

[00:25:53] Speaker 02:
And what Rule 413 also says when it defines sexual assault is an offense involving, and it lists the conduct.

[00:26:05] Speaker 02:
These offenses certainly involve that type of conduct.

[00:26:09] Speaker 02:
The purpose of the kidnapping,

[00:26:11] Speaker 02:
was the sexual assault.

[00:26:13] Speaker 02:
The illegal sexual activity involved in count two was the sexual assault.

[00:26:19] Speaker 03:
Pause there.

[00:26:20] Speaker 03:
The purpose of the kidnapping was sexual assault, you say?

[00:26:24] Speaker 03:
That was the government's theory, yes.

[00:26:25] Speaker 03:
I thought the government's theory was that the purpose of the kidnap, what happened with the kidnap, is that she was inveigled and decoyed.

[00:26:36] Speaker 03:
Right.

[00:26:37] Speaker 03:
And what he says is it's prostitution and the government went with that too.

[00:26:41] Speaker 03:
It said you can convict on either basis under 2421 either prostitution or a sexual assault.

[00:26:48] Speaker 03:
But what didn't get said that I saw anyway was that he had to intend to rape her before he hit that New Mexico line.

[00:26:58] Speaker 03:
Do you agree with that?

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

[00:27:00] Speaker 03:
That that's as a matter of law?

[00:27:01] Speaker 03:
Yes.

[00:27:02] Speaker 03:
And so if you have a consensual encounter

[00:27:05] Speaker 03:
And it's a prostitution arrangement, which his own testimony made it sound like he was an old pro at that, as far as soliciting and picking up prostitutes.

[00:27:17] Speaker 03:
If that was what was in his mind, his intent to commit the sexual assault, the rape, really didn't happen until he got to New Mexico and was denied the prostitution.

[00:27:32] Speaker 03:
Isn't that right?

[00:27:34] Speaker 02:
Right.

[00:27:35] Speaker 02:
But just to be clear, the government's theory was that the kidnapping involved in vagueling based on the intent to commit a sexual assault.

[00:27:44] Speaker 02:
But why?

[00:27:45] Speaker 03:
What is the evidence for that, if he says that it was a prostitution arrangement?

[00:27:50] Speaker 02:
The evidence was the victim's testimony that there was never an arrangement to engage in sex for money, that she was just looking for a ride.

[00:28:00] Speaker 02:
And that was the understanding from the get-go.

[00:28:02] Speaker 02:
The only reasonable inference from that

[00:28:04] Speaker 02:
is that he had something else in mind when he then took her to New Mexico.

[00:28:08] Speaker 02:
And yes, in closing argument, the government said, even taking what he's saying as true, he's admitted to his guilt as to count two.

[00:28:16] Speaker 02:
But we still argue that's not believable.

[00:28:19] Speaker 02:
That's not a believable story.

[00:28:21] Speaker 02:
And so our theory stayed consistent, that yes, even if you believe him, he's guilty of count two, but here's the more believable version of events.

[00:28:28] Speaker 02:
And that is that when he picked up the victim for a ride, he knew exactly what he was gonna do.

[00:28:34] Speaker 02:
And that involves both the kidnapping.

[00:28:36] Speaker 01:
I take it your point is that if Clay's testimony was the only testimony regarding Judge Phillips' question, then the conviction would not be appropriate.

[00:28:52] Speaker 01:
But if you consider the testimony of the victim, Doh Wan, then

[00:29:00] Speaker 01:
there's a basis to determine that there was intent on his part to commit a rape before he crossed the state lines.

[00:29:10] Speaker 02:
That's right.

[00:29:12] Speaker 02:
All right.

[00:29:13] Speaker 02:
And really, then, the jury is left to determine who it believed, and that's for the jury to decide.

[00:29:18] Speaker 02:
And I would also note that the defendant hasn't raised a sufficiency argument on appeal.

[00:29:23] Speaker 02:
He's right.

[00:29:24] Speaker 02:
Has not raised a sufficiency of the evidence argument as to either count one or count two.

[00:29:29] Speaker 02:
Now, as to the final argument that relates to the restrictions on the impeachment of the defendant's daughter, this morning my opposing counsel focuses on the prior inconsistent statement.

[00:29:47] Speaker 02:
But that's not properly raised in this court.

[00:29:50] Speaker 02:
That's not something that he raised in his opening brief.

[00:29:52] Speaker 02:
His opening brief focused on the restrictions related to the

[00:29:59] Speaker 02:
allegations of mental health issues, prior accusations of sexual assault, and the improper withdrawal of money.

[00:30:07] Speaker 02:
In his reply, he for the first time cites to the record where the district court limited his impeachment for prior and consistent statements because it wasn't under oath.

[00:30:17] Speaker 02:
But even then, he doesn't really articulate what his argument is or how the district court aired or how he even preserved it.

[00:30:25] Speaker 02:
meaning what she had previously told law enforcement about the defendant's sexual assaults of her.

[00:30:34] Speaker 02:
And it seems like he's saying that she hadn't previously told law enforcement

[00:30:39] Speaker 02:
The defendant had told her to be a good girl during the assault.

[00:30:43] Speaker 02:
But he did not articulate that argument in the district court, why it was appropriate.

[00:30:48] Speaker 02:
And he has not articulated that properly here before this court or shown why it's preserved.

[00:30:53] Speaker 02:
I see I'm out of time.

[00:30:55] Speaker 02:
Unless the court has any additional questions, we would ask that this court affirm.

[00:31:00] Speaker 02:
Thank you, counsel.

[00:31:08] Speaker 03:
You do have 12 seconds, and we'd let you complete a thought if you have one.

[00:31:13] Speaker 03:
One question I have right off the bat is, did the district court know there had been a rape conviction or a prostitution conviction or not?

[00:31:20] Speaker 00:
Your Honor, in examining the record, that was not something that was ever disputed by the government.

[00:31:25] Speaker 03:
Disputed?

[00:31:25] Speaker 03:
Well, that didn't answer my question.

[00:31:26] Speaker 03:
Did the court know that there was one?

[00:31:28] Speaker 00:
I don't know, Your Honor.

[00:31:31] Speaker 03:
And you agree that it's not in the trial record?

[00:31:33] Speaker 00:
It's not in the trial record, but the United States Attorney never disputed that at any point in time.

[00:31:40] Speaker 01:
It was always argued about whether the admissibility... Well, what is disputed is whether you ever tendered a conviction or made an offer of proof of it before trial or during trial.

[00:31:54] Speaker 01:
Did you do that?

[00:31:55] Speaker 00:
There was a motion in the limit that was filed very early on and that was denied.

[00:31:59] Speaker 01:
Did you ever at any time

[00:32:01] Speaker 01:
Tell the district court in writing or orally or make any proffer of a conviction of prosecution or sex crimes by Doe One.

[00:32:14] Speaker 00:
Your Honor, yes, I believe they cited to the fact that the government in its interview said that Jane Doe One said she had a conviction.

[00:32:19] Speaker 01:
Did you make a proffer of that is my question, not what the prosecution did,

[00:32:25] Speaker 01:
Did you offer that into evidence at any time?

[00:32:28] Speaker 00:
In the motion and limiting, that's what they cited, Your Honor, was that evidence.

[00:32:34] Speaker 00:
And I apologize, I feel like I'm going back and forth.

[00:32:36] Speaker 03:
That evidence being the conviction itself or just being that we want to stop any references?

[00:32:44] Speaker 00:
That the United States produced a statement from the interviewing agent that said that Janeville 1 had a conviction and that was what was relied on in the motion and limiting.

[00:32:52] Speaker 03:
and expressly stated so the district court understood there was such a thing.

[00:32:57] Speaker 03:
My position is yes, Your Honor.

[00:32:58] Speaker 00:
That was in the motion of limitations, document 37.

[00:33:00] Speaker 00:
So we just need to look and see.

[00:33:03] Speaker 00:
I believe that's clear in there, Your Honor, yes.

[00:33:05] Speaker 03:
All right.

[00:33:05] Speaker 03:
Well, thank you.

[00:33:07] Speaker 03:
Your time has expired.

[00:33:08] Speaker 03:
Thank you, Your Honor.

[00:33:10] Speaker 03:
Counsel, we appreciate your arguments.

[00:33:12] Speaker 03:
The case is submitted, and counsel are excused.