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24-2013, United States versus Rivera.

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Counsel for appellant, if you will make your appearance and proceed, please.

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Good morning, Your Honors.

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Brock Benjamin on behalf of the appellant, Michael Rivera.

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Chief Judge Holmes, Judge Carson, Judge Rossman, may it please the court.

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This case is Michael Rivera's complaint is about two distinct, and what I'm going to discuss here today is two distinct pieces of testimony that brought in evidence that was not only extremely prejudicial, which is me just having sour grapes, but more importantly is evidence that the court did not uphold its gatekeeping function to

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exclude specifically an image that was possibly sent over text was the testimony of Agent Sean McManus and then Agent Dan O'Donnell and his testimony, expert testimony that violated in our argument the specific dangers of

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law enforcement testimony, which is becoming a mouthpiece for the prosecution and speaking exclusively to that idea.

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Is the standard in each instance abuse of discretion?

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Your Honor, the standard is abuse of discretion.

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It's, I think, de novo as far as how the court reviews that because of the two-step test that is in Nasio.

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But doesn't the first test just go to whether the court actually recognizes the need to do the hearing and to go through the process?

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And then the second step is actually how it undertook it.

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Correct, Your Honor.

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OK.

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So we're in the how you undertook it phrase, right?

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Yes, Your Honor.

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I thought you were making a slightly different argument about Agent O'Donnell, that you were contending that blind testimony itself is inherently unreliable.

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Maybe I misunderstood.

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Your Honor, and that's where I didn't use the delayed disclosure as a major basis of the testimony.

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That's what I think the United States took the argument to be.

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The concern that we had here was that the Daubert hearing Agent Dan O'Donnell's testimony was grooming, grooming, grooming, and cross-examination by Ms.

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Booth was on that and trying to pin him down as far as his experiences in dealing with the grooming.

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However, at trial, then he became

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It morphed into his experience with the behavioral unit and the large groups and then essentially the blind testimony became that his experience, all individuals or all offenders, because that was the only experience he had was with offenders, that there was no reason why this never happened.

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The issue that I think we had there was when an expert comes in and testifies that he's never seen a false accusation outside of child kidnapping cases was his distinction.

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But in the grooming instance, he's essentially coming in and saying that this, in my experience, is wholly true.

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Your Honor, I would... Did you cross-examine him?

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Uh, Ms.

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Booth did, Your Honor.

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I did not.

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Okay.

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You weren't in trial counsel.

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So did she, I mean, she brought this out.

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Like the things you're talking about are different than what we have here.

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You're talking about groups.

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This is one-on-one grooming.

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You know, she, she brought out the differences in his testimony in the case before the jury, didn't she?

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She did, Your Honor.

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But the concern that I had here and, uh,

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opposing counsel deals with it that says that in a footnote, counsel says that he requested documents.

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The concern is in a civil case.

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We have all kinds of information to cross-examine this with.

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Agent Daniel O'Donnell had two publications that he had made, and those were both on 911 calls and missing children.

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But so his response, and every time Ms.

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Booth brought him back to that, was 13 years and hundreds of cases.

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And when she asked him if he could identify a specific

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time that involved a false allegation.

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He says, I don't think so, and I can't think of one off the top of my head.

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And so it becomes this, how do I pin you down?

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And cross-examination doesn't serve that purpose because the expert, his basis has to be reliable.

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There has to be some way to challenge that basis besides the one that always fails me at trial, which is just liar, liar.

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It doesn't work.

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And so the concern here is without

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some form of challenging the 13 years and hundreds of cases training experience, him saying, I've never met a false accusation, he simply is an individual that is presenting, and this is the argument that I believe I make, Your Honor, that he's simply presenting the government's case.

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True, he's here as a blind expert.

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He's not

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saying this is what this individual did and the government says that I'm better off or Mr. Rivera is better off without having had that testimony.

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I disagree because he comes in as an FBI agent that says that I've been doing this for this many years and I've never once ever seen a false accusation.

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I struggle with your argument in two respects.

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If that's a truthful statement, what is wrong with saying that?

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I mean, all that does is go to the context in which he received the cases.

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I mean, if he received cases that were of the nature that they were already built up such that they were strong, I mean, notice he's in the FBI headquarters and he probably doesn't see every case.

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So all he said was, to my knowledge,

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I have not encountered a case that would involve false allegations.

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He didn't say there were no false allegations in any case, right?

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Correct, Your Honor.

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The problem and the concern here is as an expert, he comes in cloaked in this title of expert and is providing testimony that is supposed to be helpful to the finder of fact.

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And that testimony in this case was

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that grooming exists, and it exists if you identify it, and I've never identified it in any cases I've ever seen.

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You said that you spoke about grooming, and grooming is relevant to this case, is it not?

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Grooming is relevant, Your Honor, but when he has a statement that is, I've never seen a false example of it, how do I test that reliability?

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How do I challenge the effect?

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Your Honor, the Court's correct.

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Let me pause if you'll allow me for a second.

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How do I test the reliability of that statement that I've never encountered a false allegation in my work?

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How does the defense challenge that statement?

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I mean, is that what you're saying?

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How would I be in a position?

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Is that your concern?

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How would I be in a position to challenge the reliability of that statement?

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Without him having provided

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cases and other information that then I am able to review and go back and challenge.

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Yes, your honor.

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I have no way to challenge.

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I have no way to challenge that statement because he makes it as the expert here to tell the jury that there are in effect no false allegations.

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And see, that's it.

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I mean, there's an inferential leap from him saying, in my experience, I've encountered false allegations to saying there are no false allegations.

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I mean, if they had asked him in the whole universe, do you think that there would ever be a false allegation?

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And he said, I don't think there would be.

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That's a different matter, because then that clearly would implicate the defendant as being part of that.

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But all he did, well, let me phrase it this way.

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I clarified, at least I understood, that your argument involves right now the point about testing the reliability of that statement.

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Well, is that statement an opinion or is that statement a fact?

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They asked him, based upon your experience, have you encountered, right?

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I mean, I can pull it up, but my memory is that's what it was.

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Based upon your experience, have you encountered a false allegation?

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No, I haven't.

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That's a statement of fact.

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That's not an opinion.

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in your honor, he may hold that opinion, but when he comes in as an expert and says that he has no experience with innocent defendants, he doesn't have experience with single offender versus large groups, his testimony in the United States cites is in the brief, but his

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experience with the child exploitation unit was also a large-scale group.

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And as it relates to the large-scale group, why is that not, are you contending that that is not relevant?

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That his grooming knowledge, his knowledge of grooming based upon these large-scale groups, are you contending that's not relevant to provide context for the jury as to grooming as it relates to an individual?

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Your honor, I don't think it's relevant or relatable to Michael Rivera, who is a single individual who is alleged to have had a relationship with one child.

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Why not?

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And what source of authority do you have for that proposition?

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Your Honor, I don't think it's because it comes back to, in Nasio, the court talked about the ability to use your experience and how the experience leads to that opinion.

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If his experience is dealing with large groups of convicted offenders after the fact, that doesn't deal with individuals that are sitting in court before the court and are on trial for that fact.

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Did you make that argument in the district court anywhere?

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That because Agent O'Donnell's testimony was focused on large-scale groups, that it was therefore unreliable.

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Is that anywhere in your... The government says you never made the argument.

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Your Honor, looking... I looked for that.

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We made the objection.

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I can't point the court to it at this point in time, Your Honor.

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So your position is that it's preserved?

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Your Honor, my position would be yes, Your Honor.

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You can't point me to where?

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I would ask the ability to supplement this after this argument, Your Honor, but no, I cannot.

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Your honor I see your owners.

[00:10:11] Speaker 01:
I see I have five minutes left I'd like to move to agent McManus and the possible the issue there was that Agent McManus after having had a dog bear hearing that Then talks says he talked to a person who talked to an engineer and said that it was possible and that's at the

[00:10:29] Speaker 01:
The statement that came in that was extremely harmful comes from by way of an expert, Agent McManus, an expert who had been designated on records, talking to a supervisor, talking to an expert at Verizon, saying that this is common or possible.

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And that's a 304.

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And so we have Agent McManus, who is designated as a historical records expert,

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who then becomes an expert and testifies about file transmutation or that changing over

[00:11:01] Speaker 03:
Well, historical records, but also records of the kind that were at issue here, right?

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Correct, Your Honor.

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Not just any records.

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I mean, records involving electronic transmissions, right?

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Correct, Your Honor.

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Okay.

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And if you would, let me just walk through a scenario and then tell me where I'm wrong on this.

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As I understand what happened here, Agent McVaniss contacts this Verizon supervisor.

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He gets the information.

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He uses that information in offering an opinion

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as to whether it's possible, whether it's possible to have a transfer of the mode of the file, the kind of file.

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Okay, this is what I would ask you to respond to.

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Why if Agent McManus is a qualified expert, okay, about documents and electronic documents, if he is a qualified expert,

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Why wouldn't it be within his purview to seek information that would help him make a determination?

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Note, he didn't parrot what the person told him.

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He was asked, how'd you get the information?

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So he didn't offer a verbatim statement of what the guy told him.

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He takes this information, he digests the information.

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I'm offering a position for you to respond to.

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He digests the information, and then he responds with his own expertise.

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That's I'll stop there.

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What's wrong with that scenario?

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Because your honor, I believe Agent Mimmanich parrots what the expert at Verizon told him because the US says that the specific basis for his opinion had come from Verizon in its brief.

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And that's the issue here is that we have an individual who

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much like the United States v. Smalls, where the court talks about a formal statement to officers versus a casual remark to an acquaintance.

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This is on the point of contention, and we cited that over and over in the brief.

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So this is your Crawford argument.

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Yes, which relates specifically to the fact that I believe Agent McManus did not have the experience and wasn't designated and doesn't have the understanding, which is why he calls Verizon and then makes that, he simply tells us what they told him that it was

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But under 703, can't I as an expert rely upon information informing his own opinion?

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In other words, in this big, big world, you're not an expert on everything.

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You may have a scope of knowledge.

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you know, segment of it that you don't fully understand, but you can synthesize that in making an overall determination.

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What's wrong with that?

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That's what I thought 703 contemplates.

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Your Honor, and I agree, that's what 703 contemplates.

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What it doesn't contemplate is an expert who is designated as an expert on records who's relying then on what was in his CV as a familiarization with Verizon and other cell phone companies.

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It was a two-week familiarization.

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then coming in and saying, I did not know what happened.

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I called a supervisor who then spoke to an expert.

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And Agent McManus, I don't think the government says that Agent McManus talked to the engineer.

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The engineer says, yes, it's possible.

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And so that possibility theory that was related, and we don't know what was related, how it was related,

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or how it was synthesized, to use the court's words, back to Agent McManus.

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Agent McManus tells us that that opinion comes from Verizon.

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Isn't that what makes it non-testimonial, though?

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I mean, if the Verizon agent, if he'd have said, hey, I've got this guy, take a look at his phone records, and tell me if it's possible that the nature of this file changed in transmission to him.

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And the guy said, oh, yeah, I found his file, I looked at it, and that's exactly what happened.

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And he parroted that.

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as opposed to taking what this general information that the guy talked to him about possibilities, and then bringing it out as part of his own testimony.

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Wouldn't the first one be testimonial, arguably, and the second one is not?

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Your Honor, I think the first one's testimonial.

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I think the problem that we have here is, one, it's the government's burden to show that that's not what happened, because they're the proponent of that evidence, but two... I mean, you heard that.

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I mean, that wasn't the testimony.

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I mean, we can read the testimony.

[00:15:14] Speaker 01:
Correct, Your Honor.

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The testimony is on page 304 regarding that portion, and I'm out of time, Your Honor.

[00:15:22] Speaker 01:
May I respond?

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I'm done.

[00:15:24] Speaker 02:
Okay.

[00:15:25] Speaker 01:
Thank you.

[00:15:25] Speaker 01:
Thank you.

[00:15:32] Speaker 04:
May it please the Court, good morning, Your Honors.

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My name is Elliot Neil, and I represent the United States in this matter.

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So picking up where I left off,

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I'm going to jump in front of Judge Rossman here.

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She's like me.

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We're both at our mics.

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What I was just talking to your colleague about is a situation where I think something would be clearly testimonial.

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And that is where you have a witness who calls somebody and says, hey, look at this specific guy.

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Tell me exactly what happened with his file so I can parrot it back to the jury.

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I mean, isn't what you're

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trying to uphold here very close to that, except it just sticks in the word possibility.

[00:16:18] Speaker 04:
Your Honor, I don't think it's close to that scenario.

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As Agent McManus testified to at trial, agents in his position as part of that cellular analysis survey team

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are constantly in contact with employees at Verizon and other telecommunications companies asking questions about how the network operates, you know, exact questions like this.

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Is it possible?

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I mean, that doesn't make it less testimonial what's coming from the other side, though, just the fact that he talks to them all the time, does it?

[00:16:50] Speaker 04:
No, it doesn't, Your Honor.

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But I think what's important is that the analysis of whether that statement is testimonial looks at the declarant.

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looks at the understanding, the knowledge, and the intent of the declarant, and in this case, that Verizon supervisor.

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So the question is whether that declarant, in making that statement, believed the statement to be testimonial.

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And there's no indication from the record or from Special Agent McManus' testimony that that's what the Verizon supervisor would have understood his statements to be doing.

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So if on cross, if the defense lawyer had said,

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Where did you get this information?

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Well, I got it from the Verizon person.

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What did you tell the Verizon person?

[00:17:37] Speaker 02:
Well, I told the Verizon person that I was getting ready to testify in court against Mr. Rivera and that I needed to find out if this file had changed character in transmission, then we might have a different situation there.

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Correct.

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Because in that situation, the record would be clear that the declarant understood this was going to be used in testimony in court.

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Correct.

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And I'll note that Mr. Rivera in his briefing focuses a lot on, I was trial counsel, so he focused a lot on what I said about Special Agent McManus's preparation and the circumstances of his reaching out to the Verizon supervisor.

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That doesn't matter, Your Honor.

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It doesn't matter what my intent was.

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It doesn't matter what Special Agent McManus' intent was.

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It doesn't matter that we were preparing for trial.

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What matters is, again, what that Verizon supervisor believed.

[00:18:34] Speaker 03:
What Judge Carson has been speaking to is the confrontation cause aspect.

[00:18:38] Speaker 03:
I thought there was also an aspect related to the reliability of his testimony generally as an expert.

[00:18:44] Speaker 03:
Am I missing that?

[00:18:46] Speaker 03:
I believe you're correct, Your Honor.

[00:18:52] Speaker 04:
As to reliability, however, I mean, the district court performed

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a Rule 403 analysis.

[00:19:01] Speaker 03:
Well, no.

[00:19:02] Speaker 03:
Well, the district court would have performed, I guess, a Rule 702 analysis, right?

[00:19:05] Speaker 03:
702, yes.

[00:19:06] Speaker 03:
And the question would be whether it abused its discretion in doing so.

[00:19:11] Speaker 03:
And that leads me to ask, what was the scope of his qualification as an expert?

[00:19:17] Speaker 03:
Because, I mean, the phrase was used by opposing counsel.

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He was a document.

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He was a document expert or something.

[00:19:24] Speaker 03:
which wouldn't necessarily lend itself to believe he'd be situated to be talking to Verizon about changing of file types.

[00:19:32] Speaker 04:
I agree if historical records were the only topic that Special Agent McManus was accepted as an expert in.

[00:19:41] Speaker 04:
That's not the case, Your Honor.

[00:19:43] Speaker 04:
The United States in its Rule 16 disclosure and expert notice identified that Special Agent McManus would be offered as an expert

[00:19:53] Speaker 04:
And I don't remember the exact wording right now, but essentially offered as an expert in how the Verizon network operates.

[00:20:01] Speaker 00:
It works.

[00:20:02] Speaker 00:
But what did Judge Strickland find he was qualified to testify about?

[00:20:06] Speaker 04:
That topic.

[00:20:08] Speaker 00:
The topic that was in your disclosure?

[00:20:09] Speaker 04:
Correct.

[00:20:10] Speaker 04:
Each of those topics.

[00:20:11] Speaker 04:
And again, I don't have the exact wording right in front of me, but it did include a general topic of how the Verizon network

[00:20:21] Speaker 04:
operates or I believe how perhaps how telecommunications networks operate.

[00:20:29] Speaker 04:
So that testimony was squarely within the items in which we offered Special Agent McManus as an expert in to begin with.

[00:20:40] Speaker 00:
This conversation with the Verizon employee happened after that finding was made, right?

[00:20:44] Speaker 04:
It did.

[00:20:45] Speaker 00:
So how should we be thinking about that chronology?

[00:20:46] Speaker 00:
That just seems strange.

[00:20:50] Speaker 04:
Your Honor, I don't believe it's strange in the sense that as Special Agent McManus testified to, again, he often asks employees like the employee he reached out to these questions.

[00:21:06] Speaker 04:
Although it did happen after that Daubert hearing and in preparation for trial, there's no indication from the record that he communicated that to the Verizon supervisor or that the Verizon supervisor had any

[00:21:19] Speaker 04:
knowledge or indication that this was in preparation for trial or was in place of testimony.

[00:21:31] Speaker 04:
You know, whether a statement's testimonial is highly fact dependent, as Your Honors, I'm sure, are well aware, it turns on questions such as the formality of the situation in which the statement occurred, and that comes from Ohio v. Clark.

[00:21:44] Speaker 02:
Let me stop you for a minute.

[00:21:46] Speaker 02:
I think you just said

[00:21:48] Speaker 02:
that there was no indication that he called the Verizon employee to ask about something related to this case.

[00:21:59] Speaker 02:
Did I misunderstand that?

[00:22:00] Speaker 04:
Yes, Your Honor.

[00:22:01] Speaker 02:
This was a call that was placed for purposes of this case?

[00:22:06] Speaker 02:
Correct.

[00:22:07] Speaker 02:
OK, because he had a question about how the network worked.

[00:22:10] Speaker 02:
We don't know what he said to the Verizon employee, but we do know that he called to ask about something that he wanted to use in this case.

[00:22:17] Speaker 02:
That's correct.

[00:22:18] Speaker 04:
That's correct.

[00:22:20] Speaker 04:
And Your Honor, that also does touch on the question of reliability that Your Honor asked earlier.

[00:22:25] Speaker 04:
And that's Mr. Rivera has put forth this argument like the Verizon supervisor's statement to Special Agent McManus was the only source of information that Special Agent McManus was relying on.

[00:22:40] Speaker 04:
That's not the case.

[00:22:42] Speaker 04:
Special Agent McManus testified

[00:22:46] Speaker 04:
that he also relied on.

[00:22:49] Speaker 04:
Let's see.

[00:23:02] Speaker 04:
So Special Agent McManus, in addition to testifying that he relied on what the Verizon supervisor told him, he also testified that he relied on his general training and experience with Verizon records.

[00:23:15] Speaker 04:
And that comes from volume four at page 637.

[00:23:21] Speaker 04:
He also referenced additional training and experience in discussions with Verizon.

[00:23:26] Speaker 04:
He referenced a number of academic papers about transcoding videos across cellular carriers and the internet.

[00:23:33] Speaker 03:
So you think he was positioned to exercise independent judgment in evaluating this information when he offered his opinion?

[00:23:40] Speaker 04:
Absolutely, Your Honor.

[00:23:43] Speaker 04:
I do.

[00:23:44] Speaker 04:
That experience and prior training in addition to this phone call with the Verizon supervisor is what allowed him to then make his expert opinion that it was possible.

[00:23:56] Speaker 00:
Is it the government's position that if we disagree with you on error that this error is harmless?

[00:24:01] Speaker 04:
It is.

[00:24:02] Speaker 04:
That is the government's position, Your Honor.

[00:24:04] Speaker 00:
Do you think you carry your burden on harmlessness?

[00:24:06] Speaker 00:
You agree the government has the burden on harmlessness, right?

[00:24:09] Speaker 04:
I do, Your Honor, and I do think that we've carried the burden on that.

[00:24:12] Speaker 00:
How have you done that?

[00:24:14] Speaker 00:
It seems to me that in your briefing, you're not marshaling the harmlessness standard.

[00:24:20] Speaker 00:
And so I wasn't sure how you, if we were to get there, how we would say that you carried your burden on harmlessness.

[00:24:28] Speaker 04:
Your Honor, I think we see that any potential error was harmless in the fact that the jury still heard evidence that a filed

[00:24:38] Speaker 04:
transformation like that was possible in the form of Officer Weir's experiment that he conducted.

[00:24:45] Speaker 00:
His informal experiment with his son?

[00:24:47] Speaker 04:
Yes.

[00:24:49] Speaker 04:
In addition, Your Honor, I think one of the most important parts when looking at whether this error was harmless is the fact that whether the file type changed and whether the victim did in fact send the video to Mr. Rivera doesn't actually matter when it comes to the conviction.

[00:25:08] Speaker 04:
the crime was complete when the victim made the video.

[00:25:14] Speaker 04:
So while that file transformation was probative and helped support the government's case, it's not actually one of the elements of the case.

[00:25:27] Speaker 04:
And the video was on her phone, right?

[00:25:29] Speaker 04:
Correct.

[00:25:29] Speaker 03:
Yeah.

[00:25:30] Speaker 04:
Correct.

[00:25:31] Speaker 04:
So you know,

[00:25:34] Speaker 04:
Even without that testimony, the jury very likely still would have convicted Mr. Rivera.

[00:25:41] Speaker 04:
And that's on the strength of a mountain of other evidence, Your Honor, including the victim's own testimony, where she testified that the defendant asked her to take naked images and videos of herself and that she did that.

[00:25:55] Speaker 04:
And at that point, the crime was complete, Your Honor.

[00:26:05] Speaker 04:
One other point I want to make about the Confrontation Clause issue is that the government does not believe that this issue was actually preserved.

[00:26:14] Speaker 00:
Mr. Rivera argues that... He specifically asked to cross-examine the Verizon employee, right?

[00:26:22] Speaker 04:
Yes, Your Honor, but saying I want to subpoena this person to testify is not the same thing as saying,

[00:26:28] Speaker 04:
that person's statements are testimonial, or there is a Crawford problem here.

[00:26:32] Speaker 00:
Well, that gets to the merits of whether the Crawford objection would be availing.

[00:26:36] Speaker 00:
But in terms of the preservation question, why is that not sufficient under our precedent to put that issue squarely before the district court for a ruling?

[00:26:45] Speaker 04:
Your Honor, I just think that if counsel intended to preserve a confrontation clause argument or objection, he would have said so.

[00:26:54] Speaker 00:
What does our precedent require?

[00:26:55] Speaker 00:
Does it require magic words?

[00:26:57] Speaker 00:
If you don't utter the words confrontation clause, you're out of luck for preservation.

[00:27:04] Speaker 04:
I don't believe so, Your Honor.

[00:27:05] Speaker 04:
Although the case cited by Mr. Rivera, and that's USV Robinson, I don't find that compelling.

[00:27:18] Speaker 04:
I don't think that that indicates that Mr. Rivera's objections, as he made them at trial, preserve.

[00:27:27] Speaker 04:
preserve that objection.

[00:27:29] Speaker 00:
So your position as the constitutional component is not, but the evidentiary piece is?

[00:27:34] Speaker 04:
Correct.

[00:27:42] Speaker 00:
I have a question for you about Agent O'Donnell's testimony.

[00:27:45] Speaker 00:
I got the sense from the government's brief that you seem to argue that a blind witness can never engage in bolstering

[00:27:57] Speaker 00:
because by design, they're unfamiliar with the facts of the case.

[00:28:01] Speaker 00:
And I just wanted to know what the government's position is on that, generally, and also in this case.

[00:28:08] Speaker 00:
So I would not go so far as to say that it can never be bolstering, because- So your position is not that just because they're a blind witness and inherently unfamiliar, therefore, as a matter of law, cannot bolster.

[00:28:20] Speaker 00:
Correct.

[00:28:20] Speaker 00:
That's available.

[00:28:21] Speaker 04:
Correct.

[00:28:22] Speaker 04:
Correct.

[00:28:23] Speaker 04:
And as we noted in the briefing,

[00:28:27] Speaker 04:
Witnesses who support the government's case are always, at least at some level, going to bolster other parts of the case.

[00:28:36] Speaker 04:
Or the government wouldn't call that witness or present that evidence.

[00:28:44] Speaker 04:
When it comes to bolstering, I mean, bolstering

[00:28:57] Speaker 04:
It's not apparent how Special Agent O'Donnell's testimony bolstered the testimony of any other witness when he never offered any opinion about Jane Doe's credibility.

[00:29:12] Speaker 04:
He never offered any opinion about Mr. Rivera's conduct.

[00:29:15] Speaker 00:
But that goes back to relying on him being a blind expert, right?

[00:29:21] Speaker 00:
Yes.

[00:29:21] Speaker 00:
I think that the appellant's position is that sort of the nature of the fact of what he was testifying about created the problem.

[00:29:31] Speaker 00:
It's not that there's no problem because he didn't mention the victim.

[00:29:36] Speaker 04:
Right.

[00:29:36] Speaker 04:
And my response to that would be,

[00:29:40] Speaker 04:
By us offering him as a blind expert, we were minimizing as much as possible that risk of bolstering.

[00:29:48] Speaker 04:
Any amount of bolstering would be heightened if he had provided an opinion on Jane Doe's credibility or on whether Mr. Rivera had groomed Jane Doe.

[00:30:02] Speaker 04:
And he didn't do that, and we specifically did not ask him questions about that.

[00:30:06] Speaker 04:
We specifically offered him as a blind expert to minimize risk of bolstering.

[00:30:12] Speaker 04:
And I think that's exactly what occurred.

[00:30:14] Speaker 04:
A minimal amount of bolstering, if at all.

[00:30:24] Speaker 04:
Another point with Special Agent O'Donnell's testimony that I wanted to note

[00:30:30] Speaker 04:
in response to Mr. Rivera's argument today is that it was Mr. Rivera himself that elicited a lot of the testimony that he now complains about.

[00:30:42] Speaker 04:
So Mr. Rivera notes that Special Agent O'Donnell's testimony was offered originally for grooming and then sort of morphed into this testimony that he had never encountered

[00:30:55] Speaker 04:
or he couldn't think of any cases he had encountered that involved false accusations of grooming.

[00:31:00] Speaker 03:
I hate to interrupt you, counsel, but you're running over.

[00:31:02] Speaker 03:
Oh, I am, Your Honor.

[00:31:05] Speaker 03:
Thank you.

[00:31:05] Speaker 03:
So unless my colleagues have any questions.

[00:31:08] Speaker 03:
All right.

[00:31:09] Speaker 03:
Thank you very much for your argument.

[00:31:13] Speaker 03:
Cases submitted.

[00:31:14] Speaker 03:
Thank you, counsel, for your fine arguments.