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

[00:00:01] Speaker 03:
Our next case this morning is 24-5030, United States versus Summers.

[00:00:06] Speaker 03:
And Ms.

[00:00:06] Speaker 03:
Kimmelman, you may proceed.

[00:00:09] Speaker 00:
May it please the court, counsel, Kristen Kimmelman for Johnny Lee Summers.

[00:00:14] Speaker 00:
Mr. Summers asked the court to reverse his convictions and remand for a new trial because in his trial that was based on conduct that occurred in 2021, the judge allowed under Rule 44B

[00:00:27] Speaker 00:
other act evidence that occurred three years earlier in 2018 with different minors.

[00:00:33] Speaker 00:
And the court held that this other act evidence was relevant to identity, plan, motive, and intent.

[00:00:41] Speaker 00:
And because of that broad ruling, the trial judge, who is different than the judge who presided over the pretrial conference, let in the evidence and understood that it was relevant to those four purposes and also instructed the jury to

[00:00:57] Speaker 00:
that it could consider it for all of those four different ones.

[00:01:00] Speaker 02:
And all four were disputed?

[00:01:02] Speaker 00:
All four were disputed, and we dispute them on appeal.

[00:01:06] Speaker 00:
That was an abuse of discretion because they were not relevant to a permissible purpose.

[00:01:10] Speaker 00:
Now, I've divided the government's arguments into basically two groups, one about whether there was a signature quality or modus operandi, and the other about whether the evidence was relevant because it tended to show he had a sexual interest in children.

[00:01:25] Speaker 00:
Now, taking the signature quality evidence first, the government says, you know, Mr. Summers had an MO of using an older sister to gain access to a similar, to a younger sister.

[00:01:39] Speaker 00:
They don't actually have proof that that was his purpose in starting those relationships.

[00:01:43] Speaker 00:
And there are also key differences between the different relationships.

[00:01:48] Speaker 00:
And there's no distinct or unique signature quality.

[00:01:51] Speaker 00:
So in 2018,

[00:01:53] Speaker 00:
The evidence shows that Mr. Summers was communicating with the older sister.

[00:01:58] Speaker 00:
Mr. Summers was 18, and the older sister was 16, and was asking the younger sister for nude pictures of herself and also of her 10-year-old sister.

[00:02:09] Speaker 00:
And he also asked them to commit sexual acts together that he watched over video chat.

[00:02:16] Speaker 00:
There was no sexual contact, but there was intense involvement by that older sister.

[00:02:22] Speaker 00:
In 2021, when Mr. Summers is 21, he's dating a different person, Navi Hogue, who's 17, and at some point during their relationship, he starts communicating secretly with the younger sister who's 14, J.H.

[00:02:38] Speaker 00:
He's sending messages through Snapchat directly to J.H., sending her nude pics of himself, asking her for nude pictures, which I don't think she actually sends, and asking her

[00:02:52] Speaker 00:
to basically acquiesce in sexual acts with him, all behind the older sister's back.

[00:02:58] Speaker 00:
And that's actually how the government starts its closing argument.

[00:03:02] Speaker 00:
Don't tell Navi.

[00:03:03] Speaker 00:
Will you promise not to tell Navi?

[00:03:06] Speaker 00:
Referring back to messages that the government says that Mr. Summers sent to J.H.

[00:03:11] Speaker 00:
So those are very different qualities in those two different events.

[00:03:16] Speaker 00:
And the similarities between them are common.

[00:03:20] Speaker 00:
you know, the younger generation uses Snapchat.

[00:03:23] Speaker 00:
And unfortunately, there is a prevalence of sexting and using those messages to entice the younger people to engage in these sordid sexual acts or things they're just not old enough to do yet.

[00:03:35] Speaker 00:
And then when the person is caught, either with, you know, child pornography or these messages that suggest coercion, the defendants often claim, I was hacked.

[00:03:48] Speaker 00:
That wasn't me.

[00:03:49] Speaker 00:
It wasn't my account.

[00:03:50] Speaker 00:
I don't know who sent those messages.

[00:03:51] Speaker 00:
I don't know how those pictures got onto my computer or phone, whatever it is.

[00:03:56] Speaker 00:
It's very common.

[00:03:57] Speaker 00:
It's like the street level drug dealer who gets, you know, sees that the cops are coming and decides to throw away the drugs or the gun and run off.

[00:04:05] Speaker 02:
Well, it may be very common, but it's still something in dispute that the jury has to decide, that the jury needs evidence for to decide.

[00:04:14] Speaker 02:
Can't just say it's common and so therefore,

[00:04:17] Speaker 02:
everybody knows it's a lie or something.

[00:04:20] Speaker 00:
No, it's not that it's common so it's a lie.

[00:04:22] Speaker 00:
It's that it's common so it doesn't fit into the line of cases requiring that allow signature quality evidence to be proof of identity.

[00:04:31] Speaker 00:
And so other instances of that common street level drug dealer running away from the cops wouldn't

[00:04:39] Speaker 00:
be admissible just to show, well, he ran away then, he ran away now.

[00:04:43] Speaker 00:
Here, their identity was the disputed thing for the messages.

[00:04:48] Speaker 02:
Why isn't it enough?

[00:04:49] Speaker 02:
I mean, you're requiring this same lettering for every digit or letter of his name that

[00:04:57] Speaker 02:
M's be exactly the same, but isn't it a bigger question on signature that is this the sort of person who uses an older sister to get to a younger sister if he has an opportunity?

[00:05:10] Speaker 02:
Signature.

[00:05:11] Speaker 02:
And there's his name.

[00:05:13] Speaker 00:
Except in 2021, he didn't use this older sister to get to the younger sister.

[00:05:18] Speaker 02:
Well, he knew that she that there was a younger sister.

[00:05:21] Speaker 00:
that may have been how they met.

[00:05:23] Speaker 02:
And the older sister saw them in the bathroom and so he got to the younger sister just because he didn't maybe in the one instance he realizes the older sister is going to resist that and in the other instance he thinks she'll go along with it but that doesn't mean it's not the same fellow trying to commit the same crimes aka a good enough signature

[00:05:46] Speaker 00:
I suppose if there was more proof that that was his purpose in starting the relationship with the older sister, but we don't have any evidence like that.

[00:05:55] Speaker 02:
We have some proof, which is what happened.

[00:05:57] Speaker 00:
That's the circumstantial proof, you know, a man dates a sister and then gets interested in the younger sister.

[00:06:05] Speaker 00:
You know, that is another common occurrence.

[00:06:07] Speaker 00:
This is not like the other signature cases where it's the same car that's used in the different drug transactions that's registered to the defendant.

[00:06:16] Speaker 00:
or the excavator who goes to the same archaeological dig to excavate remains there.

[00:06:23] Speaker 00:
These are run of the mill, unfortunately, coercion.

[00:06:28] Speaker 00:
And the court let in the more sordid, unusual aspect of that 2018 occurrence, which was what the messages were asking the girls to do, which was to touch each other, kissing each other's pussy,

[00:06:44] Speaker 00:
That was not conduct that was from the 2021.

[00:06:48] Speaker 00:
And even though the government says it's not salacious or, you know, it is of a different character.

[00:06:55] Speaker 00:
And that certainly is something those details would have colored the jury's mind in such that it's hard to put out that information when looking at the evidence in front of it of whether Mr. Summers

[00:07:08] Speaker 00:
committed the acts that were actually charged there.

[00:07:10] Speaker 01:
Didn't he also ask in the 2021, in the incident that's the subject of this case, didn't he also ask the younger sister if she wanted to engage in a relationship with he and the older sister at one point?

[00:07:25] Speaker 00:
Well, he did.

[00:07:26] Speaker 00:
There's a message where he's saying you can join our relationship because I think the younger sister was hesitant to do something that might upset the older sister.

[00:07:36] Speaker 00:
They, of course, never did that, and there's no evidence that the older sister knew about those messages.

[00:07:44] Speaker 00:
She actually testified that she didn't know they were messaging each other.

[00:07:48] Speaker 00:
And even though she saw the incident in the bathroom, she said she didn't see exactly what happened between them.

[00:07:55] Speaker 00:
Now, turning to the propensity evidence that the government wants to use this prior 2018 instance to say,

[00:08:04] Speaker 00:
Mr. Summers has a sexual interest in children, so it's relevant to prove motive and intent.

[00:08:09] Speaker 00:
That runs in face of this court's precedent in Comanche that requires to be admissible the evidence to be free of propensity-based reasoning, chain of reasoning.

[00:08:22] Speaker 00:
And so the jury can't have to first conclude, well, Mr. Summers had a sexual interest in children back then, so he acted on that same interest now.

[00:08:32] Speaker 01:
Well, Comanche was different.

[00:08:34] Speaker 01:
In that case, the evidence didn't shed any light on the only disputed issue, which was self-defense.

[00:08:40] Speaker 01:
That's distinct.

[00:08:42] Speaker 01:
That's not what we have here.

[00:08:43] Speaker 00:
Well, in Comanche, the evidence was being used to prove that he was a violent person.

[00:08:50] Speaker 00:
And so here, the evidence is being used to prove that he is a sexual predator.

[00:08:54] Speaker 00:
And the government referred to that in their opening, that the jury was going to hear about repeated instances

[00:09:00] Speaker 00:
of sexual contact with minors.

[00:09:03] Speaker 00:
And then in the closing, uses again that 2018 evidence to make Mr. Summers out to be a liar.

[00:09:11] Speaker 01:
He disclaimed essentially any motive.

[00:09:14] Speaker 01:
He disclaimed sexual interest in J.H., the child.

[00:09:19] Speaker 01:
He said she was the instigator.

[00:09:21] Speaker 01:
He claimed he was hacked.

[00:09:22] Speaker 01:
He denied all this.

[00:09:23] Speaker 00:
Correct.

[00:09:24] Speaker 01:
He puts this at issue.

[00:09:25] Speaker 00:
So definitely his intent

[00:09:28] Speaker 00:
and whether he was the person sending the messages were at issue.

[00:09:34] Speaker 00:
The question is whether those prior act evidence, because it weighs on the propensity to have a sense of sexual interest in children, is admissible for a permissible purpose under the rule.

[00:09:50] Speaker 00:
And so we maintain that these are not substantially similar acts, three-year difference,

[00:09:58] Speaker 00:
different details and MOs and using the other sister versus just secretly communicating with the younger sister separate from the older, that makes it impermissible to introduce that evidence here.

[00:10:16] Speaker 01:
And even if the court... Well, he has a prior, clearly based on the 2018 interest, he has a prior interest in a very young child, a 10-year-old girl.

[00:10:25] Speaker 00:
And that is very...

[00:10:27] Speaker 00:
persuasive evidence that can color the jury's mind to not look at what 2021 evidence.

[00:10:32] Speaker 01:
But it can certainly also go to counter his disclaimer, essentially, that he had no sexual interest in J.H.

[00:10:40] Speaker 01:
as a child.

[00:10:42] Speaker 01:
She instigated it, that he was hacked.

[00:10:45] Speaker 01:
All the denials.

[00:10:46] Speaker 00:
So even if the court thinks that this evidence is relevant in some degree, it certainly was not all of

[00:10:54] Speaker 00:
We have three witnesses testifying in detail about what occurred.

[00:10:58] Speaker 00:
You have the exhibits from the government 18 and 19, which are pictures of those sorted text messages.

[00:11:06] Speaker 00:
And then you have the 30-minute audio interrogation of Mr. Summers from back in 2018.

[00:11:14] Speaker 00:
So the jury hears all of this without any sort of guardrails or limits.

[00:11:19] Speaker 01:
Well, didn't he, during that interrogation, make a lot of the same denials that he made here, as well as some admissions that he'd made here that he later denied?

[00:11:28] Speaker 01:
Correct.

[00:11:30] Speaker 01:
Wasn't it important for the jury to see that pattern?

[00:11:33] Speaker 00:
It was important for the jury to know that he claimed to be hacked, if we're going to accept that that's a permissible purpose.

[00:11:40] Speaker 00:
It's important for the jury to know that he

[00:11:43] Speaker 00:
sent sexual, you know, that he asked for these nude pictures from the girls.

[00:11:48] Speaker 00:
He didn't need to know that he, the jury didn't need to know that he asked for the girls to touch each other sexually while he was watching over video.

[00:11:58] Speaker 00:
I don't think that adds proof that could be relevant to this.

[00:12:04] Speaker 00:
So they certainly didn't need to hear the entire 30 minute interrogation and they didn't need to have the older sister going through the details

[00:12:12] Speaker 00:
of some of those communications or have the pictures of it.

[00:12:15] Speaker 00:
And now Judge Frizzell, who presided over the pre-trial conference, recognized that there was prejudice in this and that there would need to be limits to make sure that any probative, that's not overly unduly prejudicial.

[00:12:31] Speaker 00:
But that sort of, in my view, got lost in communication when the case was transferred to Judge Melgren for the actual trial.

[00:12:41] Speaker 00:
That's how this happened, that everything came in.

[00:12:45] Speaker 00:
And I would say because of that limiting instruction that allows the jury to consider for all four purposes, if this court finds that any of those were not permissible or that there were not the proper guardrails of keeping out the pictures of the messages, limiting the testimony, redacting the audio interrogation, then it needs to go back to the trial court

[00:13:11] Speaker 00:
at least for the court to make that 403 ruling explicit.

[00:13:16] Speaker 02:
What about harmlessness?

[00:13:17] Speaker 02:
It's not as though there weren't a lot of evidence about J.H.

[00:13:21] Speaker 00:
Right.

[00:13:22] Speaker 00:
There was a lot of evidence from J.H.'

[00:13:24] Speaker 00:
's testimony and from the Snapchat messages.

[00:13:27] Speaker 02:
And the sister?

[00:13:28] Speaker 00:
The sister was a favorable witness for Mr. Summers.

[00:13:31] Speaker 02:
Well, the sister recounted the bathroom episode.

[00:13:34] Speaker 00:
Which she didn't see exactly what happened.

[00:13:36] Speaker 00:
She recounted they were in the bathroom together.

[00:13:37] Speaker 00:
Well, pants down.

[00:13:38] Speaker 00:
Correct.

[00:13:39] Speaker 00:
But she also said J.H.

[00:13:42] Speaker 00:
is a liar, and that she had a motive to smear Mr. Summers because she liked him.

[00:13:47] Speaker 02:
She saw what she saw, she said what she said she saw, and what she said she said she saw was a lie.

[00:13:54] Speaker 00:
And Mr. Summers was acquitted of the counts that involved Navi, which also had a lot of evidence.

[00:14:00] Speaker 02:
I'm talking about J.H., though, and what her testimony was about J.H.

[00:14:03] Speaker 02:
And just wondering,

[00:14:05] Speaker 02:
The government, of course, is going to say no error.

[00:14:07] Speaker 02:
And if there were error, it was harmless.

[00:14:11] Speaker 02:
And I'm just asking your response to why isn't it harmless?

[00:14:14] Speaker 00:
It's not harmless because they heard very sordid details that had no relevance to the charges that he was facing based on that 2021 conduct.

[00:14:24] Speaker 00:
And Comanche says, even if you can admit the prior felony conviction, admitting those details make it more likely that the jury is committing him

[00:14:33] Speaker 00:
for a past crime, not for the current crime that he is facing the charges for.

[00:14:38] Speaker 00:
So it was extremely prejudicial.

[00:14:41] Speaker 00:
The jury couldn't escape that clear articulation that he was a sexual predator who needed to be put away because of what he had done back in 2018.

[00:14:49] Speaker 00:
Well, the 2018 charges were not what he was facing.

[00:14:53] Speaker 00:
He needed to be convicted if he was going to be convicted only based on what happened in 2021.

[00:15:01] Speaker 02:
But you said some of the 2018 could have come in.

[00:15:04] Speaker 00:
The fact of the prior conviction, use of a computer.

[00:15:08] Speaker 00:
That's what the jury could have known, that he was convicted of use of computer.

[00:15:12] Speaker 00:
Instead, they heard that he did all of these awful things.

[00:15:15] Speaker 00:
If I may finish my sentence.

[00:15:18] Speaker 00:
And that he did something very similar, not unique and distinct, but similar, three years later, so the jury needed to take the law in their own hands.

[00:15:28] Speaker 00:
That's the harm.

[00:15:30] Speaker 00:
Thank you.

[00:15:31] Speaker 03:
Thank you, counsel.

[00:15:33] Speaker 03:
Let's hear from the government.

[00:15:53] Speaker 05:
May it please the court, Stephen Bryden on behalf of the United States.

[00:15:57] Speaker 05:
If I could, I'd like to start right where my colleague just left off.

[00:16:02] Speaker 05:
The idea that the right solution here was to simply put in the fact of a prior conviction and not getting into any of the details flies in the face of 404B and what it's trying to accomplish.

[00:16:15] Speaker 05:
The government's evidence here showed that

[00:16:19] Speaker 05:
because Mr. Summers had repeatedly and extensively put his identification or the identification of the culprit at issue, the government needed to do something more than just say it was Mr. Summers.

[00:16:29] Speaker 05:
The government needed to prove that it was Mr. Summers.

[00:16:32] Speaker 05:
And you can't do that by simply stating the title of a prior conviction.

[00:16:37] Speaker 05:
And that's where this court's case law and identity comes from.

[00:16:41] Speaker 05:
And as Judge Phillips, I think, discussed a lot at the beginning of my friend's argument, the case law is not so

[00:16:49] Speaker 05:
strict as Mr. Summers presents it on how similar or exactly similar things need to be in order to be considered enough for his signature quality.

[00:17:01] Speaker 05:
One thing that wasn't discussed was not only the way that he interacted with the girls very similar between the two offenses, the way that he acted afterwards is extraordinarily similar.

[00:17:13] Speaker 05:
And it's not just saying that his Snapchats were hacked.

[00:17:17] Speaker 05:
In both of these interviews,

[00:17:19] Speaker 05:
He admits it first to some of this conduct.

[00:17:21] Speaker 05:
He admits to some of these messages until he gets to something that's compromising.

[00:17:25] Speaker 05:
And then he pulls back and says, actually, I'm hacked.

[00:17:28] Speaker 05:
These things aren't me.

[00:17:30] Speaker 05:
And I'm probably hacked by the girl's father.

[00:17:32] Speaker 05:
Both different times, he starts with the same thing.

[00:17:35] Speaker 05:
He's known to do these type of things.

[00:17:36] Speaker 05:
It's probably him.

[00:17:38] Speaker 05:
And then he backs up even further.

[00:17:40] Speaker 05:
And by the time of trial, he didn't say anything.

[00:17:43] Speaker 05:
He didn't do anything, according to his testimony, which even further called that identity into question.

[00:17:49] Speaker 05:
And this court's already found in Gutierrez in a situation of a bank robbery.

[00:17:55] Speaker 05:
Not only was part of the determination and signature quality that this was a husband and wife bank robbing pair.

[00:18:02] Speaker 05:
The husband goes in and commits the bank robbery.

[00:18:05] Speaker 05:
But what they found was a signature quality was that the wife was the getaway driver in both cases.

[00:18:11] Speaker 05:
And that during the getaway, she had kids in the car as kind of cover.

[00:18:16] Speaker 05:
And so that's not necessarily an element of the offense.

[00:18:18] Speaker 05:
That's not a part of proving up the crime itself, but it's part of the way that the defendants in that case chose to try to cover up the crime that went into that signature quality.

[00:18:30] Speaker 05:
And that's present here both, as I said, in the crime itself and in Mr. Summers' attempts to cover up the crime.

[00:18:36] Speaker 01:
Well, can you address the particular concern that counsel has expressed

[00:18:44] Speaker 01:
justifiably so, that the nature of the 2018 messages that were entirely introduced, some of those would have been highly prejudicial and weren't necessarily similar to the 2021 offense.

[00:19:03] Speaker 01:
And in particular, the request that the sisters engage in this sexual conduct together.

[00:19:08] Speaker 01:
There was nothing like that in the 2021 offense.

[00:19:13] Speaker 04:
It hadn't gone to anything quite that level in the 20s.

[00:19:16] Speaker 01:
It's a whole other level, and that came in.

[00:19:19] Speaker 01:
And why isn't that highly prejudicial such that at a minimum there should have been a balancing test at that point?

[00:19:26] Speaker 05:
Because what we have from the messages from 2019 is simply a request.

[00:19:32] Speaker 05:
And this court's case law has been relatively consistent that hands-on

[00:19:39] Speaker 05:
sexual offenses, actual proof of sexual conduct is the most prejudicial of that nature of that type of evidence.

[00:19:47] Speaker 05:
And so while the solicitation of that type of conduct is no doubt prejudicial in the sense that it puts the defendant in a bad stead, it's not necessarily so much more prejudicial than what we had in this case, which was 11 months of extraordinarily sexual communications with a minor and including acts straight up to penetrative

[00:20:09] Speaker 05:
of vaginal sex with the minor child.

[00:20:12] Speaker 05:
And so any prior act in a child sex abuse case that involves child sex abuse is going to have an amount of prejudice to it.

[00:20:20] Speaker 05:
But simply because the nature of it is different doesn't necessarily mean it's so much more prejudicial that it can't come in.

[00:20:27] Speaker 01:
Was there ever any discussion or attempt to limit the evidence that came in on the 2018

[00:20:37] Speaker 01:
activity.

[00:20:38] Speaker 01:
Was there ever any discussion with Judge Melgren about that?

[00:20:41] Speaker 01:
Because Judge Frizzell did indicate that there should be some consideration of limiting the evidence that would come in.

[00:20:50] Speaker 01:
Yes, Your Honor.

[00:20:50] Speaker 01:
But that never happened, did it?

[00:20:53] Speaker 05:
So I think it's important to actually look at what Judge Frizzell said.

[00:20:57] Speaker 05:
And so when he's talking about those limitations, he is talking about that it would be inappropriate for the government to bring any photos or videos

[00:21:06] Speaker 05:
of the children, right?

[00:21:07] Speaker 05:
I mean, he's not saying you can't bring in the topics of these text messages.

[00:21:11] Speaker 05:
That's what the government was asking to bring in under 404B.

[00:21:15] Speaker 05:
Everything the government presented at trial was in its 404B notice is what it intended to offer.

[00:21:20] Speaker 05:
And then Judge Frizzell also stated that it's important that the evidence presented is limited to the four purposes that he's already found are admissible.

[00:21:30] Speaker 05:
Well, that's what he did as a part of that order.

[00:21:32] Speaker 05:
If there were things in there that were outside the scope, he would have limited them at that point.

[00:21:37] Speaker 05:
Now, defense, certainly in response to Judge Frizzell's order,

[00:21:42] Speaker 05:
could have made specific objections during the presentation of that testimony, arguing that it had gone outside of the scope that Judge Frizzell had earlier approved, but they didn't do so.

[00:21:52] Speaker 01:
There were no objections like that?

[00:21:55] Speaker 05:
No.

[00:21:55] Speaker 05:
Well, so it may be a little tough to tell this from the timeline of the case, but it is in the pretrial order.

[00:22:01] Speaker 05:
So this hearing with Judge Frizzell happened the morning of trial.

[00:22:04] Speaker 00:
Right.

[00:22:05] Speaker 05:
And then Judge Melgren, there was a conversation about the scope of that order.

[00:22:09] Speaker 05:
right away that was more or less due to some miscommunication between the two judges.

[00:22:15] Speaker 05:
But once ultimately that confusion was clarified, Judge Frizzell only had time to make an oral order because it was simply a few hours later.

[00:22:23] Speaker 05:
So once he was able to get a full synopsis of that order, there was no, to my knowledge of the record,

[00:22:30] Speaker 05:
specific objection saying, OK, but this thing that the government wants to ask about or this part of the recording that the government wants to play is beyond the scope of what Judge Frizzell had authorized already.

[00:22:44] Speaker 05:
And then the limiting instruction that Judge Melgram ultimately gives reinforces that limitation from Judge Frizzell's order.

[00:22:51] Speaker 05:
making it clear that those are the only four purposes for which the evidence can be admitted and that the jury is not free to use that for any other purpose.

[00:23:02] Speaker 05:
The government did not make any arguments that were propensity arguments.

[00:23:06] Speaker 05:
We never argued to the jury that they should find this because of what had happened in 2019.

[00:23:11] Speaker 03:
Did the defense object to the limiting instruction that was proposed by the district court?

[00:23:19] Speaker 05:
I don't think so, Judge.

[00:23:20] Speaker 05:
If they did, I don't remember.

[00:23:27] Speaker 05:
There were a few other points from the reply brief that I just wanted to address briefly.

[00:23:31] Speaker 05:
It's brought up a lot about the fact that three years is allegedly a long time.

[00:23:38] Speaker 05:
prior for 404B evidence, and that's one of the reasons why this court should overturn the decision.

[00:23:45] Speaker 05:
Just a brief look through some of the case law that's in the government's brief, but not necessarily talked about on this point.

[00:23:53] Speaker 05:
The Shumway case, which has come up frequently, in that case, the act was seven years prior to the charged defense, and they specifically said,

[00:24:01] Speaker 05:
There's no absolute rule regarding the number of years that can separate offenses.

[00:24:05] Speaker 05:
Rather, the court applies a reasonable standard and examines the fact and circumstances of each case.

[00:24:11] Speaker 05:
The Engelman case, it was 13 years separating conduct.

[00:24:14] Speaker 05:
So there's no bright line.

[00:24:16] Speaker 05:
And even if there is a line at which things become too stale to be used, it seems difficult to imagine that three years in this case would be so far removed that it no longer has that value.

[00:24:31] Speaker 05:
thing to address what my colleague had said about Comanche and just the way to look at this evidence generally.

[00:24:36] Speaker 05:
404b evidence is not prohibited if there's any interpretation of it that may lead to a propensity inference.

[00:24:46] Speaker 05:
In fact, it's the opposite.

[00:24:48] Speaker 05:
In Mason, this court said, when other act evidence is admitted for a proper purpose and is relevant, it may be admissible even though it has the potential impermissible side effect of allowing the jury to infer criminal propensity.

[00:25:01] Speaker 05:
And here, because there were four established proper purposes, even if you could pose this evidence in a way that it would serve a propensity inference, number one, it's not what the government did in this case.

[00:25:15] Speaker 05:
And number two, that would not necessarily mean the evidence was improperly admitted.

[00:25:23] Speaker 03:
But again, shouldn't there have been some type of 403 balancing discussion by the district court

[00:25:32] Speaker 05:
So the district court stated that he had considered 403 in its oral ruling.

[00:25:38] Speaker 01:
Which judge?

[00:25:38] Speaker 05:
This would be Judge Frisell in the oral ruling.

[00:25:42] Speaker 05:
I agree he doesn't go into tremendous depth about it.

[00:25:45] Speaker 05:
But in saying the types of things that he believed would need to be limited in order to comply with 403, I think that gives this court enough information to recognize that he did, in fact, consider whether this evidence would be more unduly prejudicial than probative.

[00:26:01] Speaker 05:
and then ruled accordingly.

[00:26:02] Speaker 05:
It's not like he said nothing about 403 and said nothing about limiting principles.

[00:26:08] Speaker 05:
He just wasn't particularly verbose in how he went through it.

[00:26:19] Speaker 02:
How about harmlessness?

[00:26:22] Speaker 05:
So Your Honor, in this case, I think the harmlessness argument is very strong on behalf of the government.

[00:26:30] Speaker 05:
Looking at the evidence, completely exercising anything from the prior case, the government had over 3,000 Snapchat messages between the defendant and the victim.

[00:26:42] Speaker 05:
While there is kind of this attempt to downplay the nature of the evidence and portray it as a he said, she said, as you discussed earlier, that's not really the case.

[00:26:53] Speaker 05:
Nadie Hoag, who was not particularly favorable to the government during trial,

[00:26:57] Speaker 05:
admits, yes, there was a time that I came into the bathroom and her pants were down and he looked like he had just pulled up his pants, which matched with what J.H.

[00:27:06] Speaker 05:
testified to in the case, which also matched to what Mr. Summers had said to some extent in his interview with the police, which was played where he said, I was in the bathroom with her, yes, but we were in there and we were talking about video games.

[00:27:22] Speaker 05:
But then by the time he gets to trial, he was never even in the bathroom with her at the first place.

[00:27:27] Speaker 05:
So when you're looking at what you can infer from this testimony, you have a jury being able to consider, well, maybe his admission that he was there in the first place, and then both sisters saying that he was there and describing what he was doing.

[00:27:42] Speaker 05:
And then the Snapchat messages themselves, there's not just like 20 Snapchat messages that talk about

[00:27:49] Speaker 05:
particular sexual requests.

[00:27:50] Speaker 05:
Like I said, it was 3,000 pages, thousands of messages, thousands of messages.

[00:27:55] Speaker 05:
And they were also mundane aspects of their life.

[00:27:59] Speaker 05:
It was asking her if she'd come over to the hotel, talking about what they ate for dinner, what they did last night.

[00:28:05] Speaker 05:
These life events that we identified that the district court relied on in its sentencing argument, that he takes a picture of his hand, it gets cut in an accident, he sends it out, they're all in the messages.

[00:28:18] Speaker 05:
Well, he's in court.

[00:28:20] Speaker 05:
He's like, yes, I admit I got my hand cut.

[00:28:21] Speaker 05:
I admit I took those pictures, but I only sent them to my mom.

[00:28:25] Speaker 05:
So it couldn't possibly be me.

[00:28:27] Speaker 05:
I must be the hacker again.

[00:28:28] Speaker 05:
Or, you know, a conversation between he and J.H.

[00:28:33] Speaker 05:
talking about how far along his fiance at that point's pregnancy is.

[00:28:39] Speaker 02:
What's the standard?

[00:28:40] Speaker 02:
You have a quantum of evidence, and I appreciate you reviewing through it.

[00:28:43] Speaker 02:
Sure.

[00:28:44] Speaker 02:
But at the end of the day, what is the standard?

[00:28:47] Speaker 02:
You say, we have this much evidence, and because it's non-constitutional, they're blank.

[00:28:55] Speaker 05:
Well, I think when you're talking about, I guess I don't have a great answer to what you mean by a standard.

[00:29:06] Speaker 05:
So, I mean, there's obviously the harmless error standard and it's very effective.

[00:29:10] Speaker 02:
What do you have to show?

[00:29:10] Speaker 02:
First, it's your burden, right?

[00:29:12] Speaker 05:
Sure.

[00:29:12] Speaker 05:
We have to show that, you know, they would have convicted him regardless of the fact that this evidence that was brought in was inappropriate.

[00:29:19] Speaker 05:
That that doesn't cause any concern.

[00:29:21] Speaker 02:
By a preponderance or by something more?

[00:29:25] Speaker 05:
It would be by a preponderance.

[00:29:29] Speaker 05:
I'm sorry, I know the exact wording is in my brief.

[00:29:32] Speaker 05:
I believe that the court has to be convinced that the evidence, if it was improperly admitted, was not such that it affected the outcome of the case.

[00:29:45] Speaker 05:
And so I think that would be clear and convincing.

[00:29:46] Speaker 05:
But I stand on what I've written in my brief in case I have misstated that here.

[00:29:53] Speaker 05:
But the evidence here goes much beyond that.

[00:29:59] Speaker 05:
I've cited in the brief about when the evidence is overwhelming is pretty much always going to be a harmless error.

[00:30:06] Speaker 05:
And in a case like this, it's tough to find a situation where the evidence would be much more overwhelming because of the way that all the evidence intertwines with itself and because of how incredible both the jury and the judge made a point of saying that Mr. Summers testimony was.

[00:30:23] Speaker 02:
And yet, here comes the Miller evidence.

[00:30:28] Speaker 05:
Which I agree, I understand, Your Honor, that that evidence could have weight.

[00:30:34] Speaker 05:
But I think it's important to note that this evidence didn't permeate the trial like it's been presented.

[00:30:40] Speaker 05:
While there were three witnesses that presented evidence on the Millers, they took up the same time as one third of just the primary victim's testimony.

[00:30:50] Speaker 05:
This was a, I see that I'm out of time, Your Honor.

[00:30:53] Speaker 05:
Go ahead and finish.

[00:30:57] Speaker 05:
Oh, sorry, I didn't understand what she said.

[00:30:59] Speaker 05:
So this was one piece of one day's trial, and a trial that I believe was four and a half or five days long.

[00:31:06] Speaker 05:
It did not factor significantly into the government's closing argument.

[00:31:09] Speaker 05:
It was a few sentences total, and it didn't factor at all into the government's opening argument.

[00:31:15] Speaker 05:
And so while the evidence was important, that's the reason we put forward the 404B, there was a significant amount of evidence presented in the case that had absolutely nothing to do with the Millers.

[00:31:25] Speaker 05:
And that evidence alone shows that the defendant was guilty in this case.

[00:31:30] Speaker 05:
And we would ask that this court affirm.

[00:31:33] Speaker 03:
Thank you, counsel.

[00:31:33] Speaker 03:
Counsel are excused and the case is submitted.