[00:00:00] Speaker 02: case number 22-3058. [00:00:03] Speaker 02: United States of America, this is Joey Green Ramouki, also known as Joey Green at Balance. [00:00:08] Speaker 02: Mr. LeCarre for the at Balance, Ms. [00:00:10] Speaker 02: Part for the Epoley. [00:00:11] Speaker 03: Mr. LeCarre, before you begin, let me just say to everybody arguing this morning, the reason we're late coming in is this sound system for several of us is being worked on, but it's very hard for some of us to hear. [00:00:26] Speaker 03: Me too, Your Honor. [00:00:27] Speaker 03: Okay. [00:00:28] Speaker 03: Well, then you know, [00:00:29] Speaker 03: If you would adjust council, if council would adjust the podium anyway, you need to and get as close to the black bar microphone as you can. [00:00:40] Speaker 01: I'll do my level best. [00:00:42] Speaker 03: Okay. [00:00:43] Speaker 03: Mr. Leco. [00:00:43] Speaker 01: Thank you. [00:00:44] Speaker 01: I'm very pleased for it. [00:00:46] Speaker 01: So for government and Mr. Green agreed that the normal rule in this circuit when ineffective assistance of council was raised for the first time by a new council was not [00:00:58] Speaker 01: involved in the trial proceedings flow, that case will be remanded for a factual hearing for the development of a record unless the following exceptions occur. [00:01:10] Speaker 01: that the case is, the theory is legally foreclosed, which isn't the case here, while the facts conclusively show that the appellant is not entitled to relief, which is not the case here. [00:01:22] Speaker 01: However, the law is foreclosed, the theory. [00:01:26] Speaker 01: And we have cited a number of cases, primarily at the district court level, that support our theory [00:01:32] Speaker 01: that it was an error not to seek a Daubert hearing, not to move to strike the expert's testimony at the conclusion of her testimony. [00:01:41] Speaker 04: Are you suggesting that generalized testimony can never be allowed? [00:01:47] Speaker 04: Can never be allowed. [00:01:48] Speaker 04: Generalized testimony from an expert about a particular subject can never be allowed. [00:01:53] Speaker 01: Oh, I don't, there are circumstances where it can be allowed, but it just wouldn't happen in this case for the following reasons, Judge Childs. [00:02:00] Speaker 01: There was no record below, and there were viable claims that could have been raised as to the expert's failure to apply her knowledge reliably to the underlying facts of the case. [00:02:12] Speaker 04: But if you look at the record, and I was very concerned about that myself, that one, we would allow generalized testimony [00:02:22] Speaker 04: Two, we would make sure that the testimony mattered in the case as to the facts presented and not so general that, for example, in a domestic violence case, you wouldn't allow them to say, and then their perpetrator could continue on this line of assaulting them, and then they'd be dead if that wasn't the facts of this case. [00:02:43] Speaker 04: So as I read the record, I feel like she [00:02:47] Speaker 04: stayed within her lane to only address issues that were here, but never opining on the ultimate issue. [00:02:54] Speaker 01: I respectfully submit that your court might take a look at pages 21 through 24 of our brief. [00:03:00] Speaker 01: And let me give you some examples. [00:03:01] Speaker 01: She testified to this phenomenon of coercive control relationships. [00:03:07] Speaker 01: She said they're characterized by the victim. [00:03:10] Speaker 01: And it's quite clear that she met the victim typically being a woman or she best be [00:03:15] Speaker 01: gender neutral on the issue. [00:03:18] Speaker 01: She said that there are five to seven attempts to leave. [00:03:20] Speaker 01: There was nothing to that effect in the record. [00:03:23] Speaker 01: She said, for example, that there was sexual violence in the bedroom, typically in these relationships. [00:03:28] Speaker 01: There was nothing like that in the record. [00:03:30] Speaker 01: She said that in addition to that, when people are jailed, when alleged accusers are jailed, they tend to call their, abusers are jailed, I'm sorry, Your Honor, they tend to call their victims. [00:03:42] Speaker 01: and threaten them, ultimately threaten them. [00:03:44] Speaker 01: There's nothing to that effect in this case. [00:03:47] Speaker 01: There's alleged pressure from the victim's family and from the alleged abuser's family on the victim who we can't. [00:03:54] Speaker 01: There was nothing like that in this case. [00:03:56] Speaker 01: Now, those should have been, there was no affidavit up front that was submitted in connection with the Albera motion. [00:04:03] Speaker 01: Council should have addressed up front and sought a hearing on the issue of whether Dr. Ogabans [00:04:12] Speaker 01: proposed testimony reliably fit the facts of this case. [00:04:17] Speaker 01: I could not do better than to commend the court to the district court decisions in the opinions in Raymond and Garner, as well as Schneider. [00:04:26] Speaker 01: They really spell out the law pretty well. [00:04:28] Speaker 01: Now, I will submit to you, Judge Childs, there has been a trend in the courts to allow this sort of testimony. [00:04:35] Speaker 01: I think it's wrong. [00:04:36] Speaker 01: I think the problem is at the appellate court level, as we said in our reply brief, there typically has been a Daubert hearing. [00:04:43] Speaker 01: There was no Daubert hearing in this case. [00:04:46] Speaker 01: And I need to address something about the theory of ineffective assistance of counsel. [00:04:53] Speaker 01: In my hubris, which is uncharacteristic of me, I said that the Sitzman case, which the government cited, I said that it was unassailable in the result. [00:05:04] Speaker 01: because among other things, the appellant in that case, the lawyer, who was the third lawyer on the case, there were two lawyers below, said that there was no need for a remand. [00:05:15] Speaker 01: I fail to note a dissent, rather the spirit of dissent, by a member of this panel, which would support our theory that the case should be remanded for development of a factual record. [00:05:28] Speaker 01: The most glaring thing that we have in this case is that we have an expert witness. [00:05:34] Speaker 01: who juries tend to trust expert witnesses. [00:05:37] Speaker 01: They have a special aura of respectability. [00:05:42] Speaker 01: In fact, the government counsel below in the closing argument talked about Dr. Aghaban as a, quote, incredible scientist. [00:05:51] Speaker 01: And she's giving you an explanation of all that's happened here, except that that explanation really overstated [00:05:58] Speaker 01: relationship. [00:05:59] Speaker 01: This is a very strange. [00:06:00] Speaker 04: Let's take the expert witness out of it. [00:06:02] Speaker 04: You still have to prove that essentially your client would not have been convicted. [00:06:07] Speaker 04: We have other testimony. [00:06:09] Speaker 04: The victim's neighbor, Michelle Talley, the victim's roommate, Tiara Berry, who saw the defendant actually drag the victim out of her own apartment. [00:06:18] Speaker 04: And this is a case where there's a violation of a protective order. [00:06:21] Speaker 04: So technically the defendant should not even be near the victim. [00:06:24] Speaker 03: And I would add the marks of abuse that were on the victim, as well as the jail calls and her own grand jury testimony. [00:06:34] Speaker 03: Why can't we skip over the deficient performance and say there's just not a chance in the world this jury wouldn't have convicted him separate and apart from the expert? [00:06:51] Speaker 01: Well, I think, Your Honor, what happened here [00:06:54] Speaker 01: is that if you view that no jury in the world would not have convicted, then I want to do my best to persuade you otherwise. [00:07:04] Speaker 01: Here's why. [00:07:05] Speaker 01: For every statement she made, there was a retraction. [00:07:08] Speaker 01: She's professed her undying love for the appellant right at the start. [00:07:15] Speaker 01: I grant you, I conceded in my opening brief, there was testimony from other people. [00:07:20] Speaker 01: However, [00:07:21] Speaker 01: The critical issue needs to be addressed here is what was his men's way and what happened here? [00:07:27] Speaker 01: What was going on in his head at the time this alleged violation occurred of the interstate transportation and violation of a CPO? [00:07:37] Speaker 01: There is testimony in the record, Judge Henderson and Judge Shales, that they had continued to, I don't want to use this word lightly, fool around. [00:07:43] Speaker 01: They stayed in contact, notwithstanding the protective board. [00:07:46] Speaker 01: Including a jail cell call. [00:07:49] Speaker 01: So the question becomes, [00:07:51] Speaker 01: What was going on inside his head? [00:07:53] Speaker 01: And we have a jury that's primed, it can make its own conclusions based on common sense and its experience. [00:08:01] Speaker 01: Rather than have a government put its thumb on the scale of somebody who doesn't know anything about the facts and who testified as to a number of phenomena, phenomena of as she said, [00:08:13] Speaker 01: was characteristic of this sort of a relationship, without ever having examined. [00:08:17] Speaker 04: So the remedy you seek would be to remand and have a new trial. [00:08:20] Speaker 04: What is it that you would show differently? [00:08:21] Speaker 04: Because you still have this other testimony that myself and Judge Henderson are alluding to, other facts and evidence in the case. [00:08:28] Speaker 01: There is that testimony, but you have to ask this, Judge Childs. [00:08:31] Speaker 01: You're sitting here essentially in a de novo of artifactual record. [00:08:35] Speaker 01: There was no, nobody made a motion below for a Daubert hearing. [00:08:39] Speaker 01: Could he have been convicted just on that testimony alone without a double hearing? [00:08:44] Speaker 01: Perhaps, but we'll never know. [00:08:46] Speaker 01: We will never know that because the government put its thumb on the scale by bringing in a so-called expert who knew nothing about the facts and was quite unabashed about knowing nothing about it. [00:08:57] Speaker 04: But let's look at the elements. [00:08:59] Speaker 04: The crime for interstate domestic violence requires only that the person who travels in interstate commerce do so with intent to kill, injure, [00:09:09] Speaker 04: harm or intimidate or attempt to commit a crime of violence or cause travel of the victim by force. [00:09:17] Speaker 04: So it's almost a strict liability standard. [00:09:20] Speaker 01: Intent, who makes that decision? [00:09:22] Speaker 01: That's the factual issue. [00:09:24] Speaker 04: But when on the other side of that intent is actual physical harm, drag out physical evidence on the body, how do we not gauge intent from that? [00:09:37] Speaker 01: She said that the sex was consensual. [00:09:40] Speaker 01: That's what she said. [00:09:41] Speaker 01: First she said- Dragging out of the apartment was consensual, too? [00:09:45] Speaker 04: To what, Your Honor? [00:09:45] Speaker 04: Dragging out of the apartment. [00:09:47] Speaker 01: No, absolutely, but that's not an element of a crime. [00:09:50] Speaker 01: A crime is taking the victim across state lines and having violence at that point, is my understanding. [00:09:57] Speaker 04: But I'm talking about the initial contact. [00:09:59] Speaker 04: They're not supposed to be in contact. [00:10:01] Speaker 04: You dragged her out of an apartment. [00:10:02] Speaker 04: You started your crime. [00:10:04] Speaker 01: And while she said a trial in the record, she also said that she went with it. [00:10:09] Speaker 04: He came in, and she went with it. [00:10:10] Speaker 01: We have a witness who saw it otherwise. [00:10:13] Speaker 01: I understand. [00:10:14] Speaker 01: OK. [00:10:14] Speaker 01: The question becomes, and I see I'm running out of time. [00:10:17] Speaker 01: You can continue. [00:10:17] Speaker 01: Go ahead. [00:10:18] Speaker 01: Well, thank you. [00:10:19] Speaker 01: The question becomes, was this trial elementarily appropriate, given the fact that there was an expert who was put on who knew nothing about the facts? [00:10:30] Speaker 01: And I think I appreciate you giving oral argument. [00:10:34] Speaker 01: because there is an important issue here, working underneath this. [00:10:37] Speaker 01: Under what circumstances should people be allowed to testify as experts when they're talking about their experience, they're not talking about laws of physics, they're not talking about gravity, they're talking about human phenomena. [00:10:50] Speaker 01: It's almost like the Goldwater Rule, in essence, indirectly diagnosing the field. [00:10:56] Speaker 01: I see that I over-estimated my time, so. [00:10:59] Speaker 01: All right, we'll give you a couple minutes in reply. [00:11:01] Speaker 01: Thank you, Your Honor. [00:11:02] Speaker 01: Uh-huh. [00:11:03] Speaker 02: This part? [00:11:04] Speaker 02: Thank you. [00:11:09] Speaker 02: Please. [00:11:10] Speaker 02: The court and park on behalf of the United States. [00:11:14] Speaker 02: On a rain man for an evidentiary hearing is not warranted. [00:11:17] Speaker 02: Mr Green rematch has failed to [00:11:25] Speaker 02: and that the council's deficiency prejudiced him. [00:11:28] Speaker 02: Beginning with deficiency, Federal Circuit Courts have routinely upheld this type of testimony, generalized expert testimony on the dynamics of abusive relationships and to explain specifically the irrational behavior or contradictory testimony of domestic violence victim. [00:11:47] Speaker 02: Trial counsel thus had no legal basis to challenge the mission of Dr. Raghavan's testimony. [00:11:52] Speaker 02: and he cannot be deemed constitutionally deficient for failing to raise merit evidentiary objection. [00:12:00] Speaker 04: And also- How do we deal with the fact that the jury hung on the kidnapping and burglary charges? [00:12:05] Speaker 04: Yes. [00:12:05] Speaker 04: Because we need to have defendants show that there would have been a difference in the outcome. [00:12:12] Speaker 02: Yes. [00:12:12] Speaker 02: And so you've got at least two charges that were not- And this relates to the prejudice prong of Strickland. [00:12:21] Speaker 02: requires the government to prove. [00:12:23] Speaker 02: The government's argument is the verdict, the way the jury handed down the verdict, they only convicted on the interstate violation of protection order count. [00:12:32] Speaker 02: They could not reach a verdict as a kidnapping and persecutory burglary. [00:12:35] Speaker 02: Kidnapping requires the government to prove that Mr. Green-Mermash held or detained BP for some purpose or benefit. [00:12:42] Speaker 02: The government in closing and its theory of the case was that the benefit he [00:12:47] Speaker 02: gained by detaining her was raping her behind elementary school in Maryland. [00:12:53] Speaker 02: So the kidnapping incorporated the rape. [00:12:55] Speaker 02: And the rape, there was plenty of evidence and was not disputed that they had sex. [00:13:00] Speaker 02: The issue was consent. [00:13:01] Speaker 02: The only test, the only evidence, the only person who could prove that so to speak is BP. [00:13:07] Speaker 02: So her credibility was on the line there. [00:13:10] Speaker 02: The violation protection order count, you didn't need, you really, it was only count that you didn't really need her testimony because the assault, which defense counsel really did not dispute below as to what happened in the apartment because Ms. [00:13:22] Speaker 02: Barry's testimony was so strong on that point. [00:13:26] Speaker 02: That was what showed the violation of the CPO. [00:13:29] Speaker 02: It also showed the use of force to cause her to travel across state lines. [00:13:34] Speaker 02: And I just wanted to make clear to the court. [00:13:37] Speaker 02: Your honor was citing to interstate violation of protection order B, I mean, a subsection one, which is not what she was actually he was actually charged with. [00:13:48] Speaker 02: It was subsection to causing travel. [00:13:51] Speaker 02: of victim, which says a person who causes another person to travel in interstate commerce by force, coercion, duress, or fraud, and the course of such conduct engages in conduct that violates the portion of a protection order that prohibits or provides protection against violence, et cetera. [00:14:11] Speaker 02: That's what he was. [00:14:13] Speaker 02: Do you think the case, can you hear me? [00:14:17] Speaker 00: You can. [00:14:18] Speaker 00: If you think the case is so clear, why did you need the alleged expert? [00:14:27] Speaker 00: The expert, there's no doubt the expert is helping you to tip the scale to the extent the prosecutor's gotta worry about the recantation that you're just gonna be affected by that. [00:14:38] Speaker 00: So you agree the expert is gonna tip the scales. [00:14:42] Speaker 00: That's why you put her in. [00:14:44] Speaker 02: Sure. [00:14:44] Speaker 02: Experts would aid the jury in understanding the evidence, because we have a victim who says one thing on the day of the incident, an inter-grand jury, and she says it completely. [00:14:56] Speaker 00: No, it's essentially telling the jury, in my expert view, he is guilty. [00:15:00] Speaker 00: That's essentially what happened. [00:15:02] Speaker 00: I mean, you understand that as a prosecutor. [00:15:04] Speaker 00: You all have been there a long time. [00:15:06] Speaker 00: You know that's exactly what's going on. [00:15:08] Speaker 00: So it's interesting that you're arguing so vigorously that the evidence is clear. [00:15:14] Speaker 00: that he can't possibly win with or without the expert. [00:15:18] Speaker 02: Well, I think with regard to this particular verdict, we could have won without the expert as to interstate violations of protection. [00:15:27] Speaker 02: The kidnapping, you look at the closing argument, a lot of the expert testimony was to talk about why the kidnapping was involuntary and also why she didn't leave Merritt at the 7-Eleven. [00:15:42] Speaker 02: She recanted. [00:15:43] Speaker 00: Why she recanted? [00:15:45] Speaker 02: Yes. [00:15:46] Speaker 00: That's what you're trying to get the jury to understand. [00:15:49] Speaker 00: Don't believe what she's saying. [00:15:51] Speaker 02: Yes. [00:15:51] Speaker 02: Yes, that's what we're trying to get. [00:15:52] Speaker 00: She's the victim. [00:15:53] Speaker 00: So that's huge in a criminal case. [00:15:55] Speaker 00: That's huge. [00:15:56] Speaker 00: The victim comes in and says, it didn't happen. [00:15:59] Speaker 00: Well, you, the prosecutor, have got to be worried sick about that. [00:16:02] Speaker 00: But you're arguing like, this is no big deal. [00:16:04] Speaker 00: You take the expert out, we're still going to win easily. [00:16:07] Speaker 00: Really believe that? [00:16:09] Speaker 02: Yes, that's the violation protection. [00:16:10] Speaker 00: Then maybe we should do what some of our cases have suggested, remanded for a hearing on this question. [00:16:16] Speaker 00: There was no hearing, there was no downward hearing. [00:16:19] Speaker 00: It's kind of strange in this area because as your opposing counsel said, it's not like this is science in some of the forensic areas, the decent forensic areas where there really is science to talk about. [00:16:32] Speaker 00: This is in an area where it's much more subjective and expertise is tricky. [00:16:38] Speaker 00: Why are you afraid of having the trial judge on a remand to go through it to see whether there's anything to be credited? [00:16:45] Speaker 02: We're not afraid, Your Honor. [00:16:46] Speaker 00: Well, then we should remand. [00:16:48] Speaker 00: As some of our cases, you have to be able to show a lot to block the remand, don't you? [00:16:54] Speaker 00: The remand. [00:16:54] Speaker 00: We're not talking about a win. [00:16:56] Speaker 02: Yes. [00:16:57] Speaker 02: We're talking about a remand. [00:16:58] Speaker 02: I understand. [00:16:58] Speaker 02: And I understand this court has said the general practice ordinarily, and Judge Kavanaugh, in one of the opinions, it's a rare case where [00:17:08] Speaker 02: court will not remand when you raise. [00:17:11] Speaker 02: I understand that we're arguing that this is one of the rare cases. [00:17:14] Speaker 00: I don't see the problem is I don't understand why because this person clearly tips the scales and the trial judge would not necessarily if it had been challenged trial judge on this record as I understand the law was not obliged to allow it. [00:17:30] Speaker 00: There was no guarantee the trial judge after a hearing, if it had been challenged at the trial, it's discretionary. [00:17:36] Speaker 02: There's no guarantee, but there is very strong federal circuit case law that has routinely and consistently upheld this kind of evidence. [00:17:44] Speaker 00: That doesn't get you to a conclusion that the trial judge in this case on this record would have definitely admitted the testimony. [00:17:51] Speaker 00: We don't know that. [00:17:52] Speaker 00: Because it was never brought to the trial judge. [00:17:57] Speaker 00: It was discretionary. [00:17:58] Speaker 00: The trial judge would have had discretion to decide, based on what was presented, whether this person would be allowed to testify or not. [00:18:06] Speaker 00: You know that this person is critical. [00:18:09] Speaker 00: And so if there is that possibility, it's discretionary. [00:18:13] Speaker 00: The trial judge had never considered the question. [00:18:15] Speaker 00: So it could go either way. [00:18:17] Speaker 00: There's no law that would have compelled the trial judge to admit her testimony. [00:18:21] Speaker 00: And our law is, as you say, now, just as Kavanaugh said, we normally send it back. [00:18:26] Speaker 00: We let that hearing happen. [00:18:28] Speaker 00: I don't understand why we don't send it back. [00:18:30] Speaker 02: That's an ordinary practice. [00:18:31] Speaker 02: And I agree with that, Your Honor. [00:18:32] Speaker 02: I'm trying to explain why we think this is the case. [00:18:34] Speaker 02: That's one of the rare cases. [00:18:36] Speaker 02: I understand the admission of evidence is discretionary. [00:18:39] Speaker 02: But in the facts of this case and the nature of her testimony, incredibly close fit between her testimony and the facts of this case. [00:18:50] Speaker 02: In federal court, these cases don't come up a lot. [00:18:52] Speaker 02: But certainly, in state courts, this is actually very much the norm for domestic violence cases. [00:18:58] Speaker 02: A lot of times, by the time of trial, victims are recanted. [00:19:01] Speaker 02: And this kind of evidence about why, what appears to be completely irrational behavior from people on the outside, why didn't BP leave when the police get out of the car and get out of the car and try to get the police officer when she was at that 7-Eleven after he had assaulted her before the rape happened? [00:19:19] Speaker 00: Experts in this area normally want to know something about the case and the people before testifying about what they surmise. [00:19:27] Speaker 02: But in this context... No, wait. [00:19:29] Speaker 00: Answer my question. [00:19:29] Speaker 00: Don't experts in this area, before they give their opinion, their expert opinion, want to know something about the facts of the case and the people involved before they sit up and say, well, in this situation, recantation is the norm. [00:19:44] Speaker 00: That's what she'll do. [00:19:45] Speaker 00: And it doesn't surprise me that she recanted. [00:19:48] Speaker 00: without knowing anything about her or the guy or the facts. [00:19:52] Speaker 02: The reason why she was caught, the government made clear we were putting on general testimony, courts have said consistently [00:20:00] Speaker 02: It is okay. [00:20:01] Speaker 02: And actually, the advisory committee notes to the 2000 amendments specifically understand that the 2000 amendments in light of Dover did not change. [00:20:10] Speaker 02: They call it the venerable practice of having experts testify about general principles. [00:20:15] Speaker 04: Because sometimes it's necessary. [00:20:16] Speaker 04: You say general principles, but you're focused on coercive control and traumatic bonding. [00:20:22] Speaker 04: So there's at least some information that had to be relayed by the government to the witness to focus on those particular areas, not just general domestic violence and generally how a perpetrator thinks or controls a victim. [00:20:38] Speaker 02: That's correct. [00:20:39] Speaker 02: Her testimony specifically on coercive control, the tactics that abusers use to [00:20:44] Speaker 02: keep their victims with them, regardless of what they do, and traumatic bonding to try to explain why a victim would put her interests and needs below someone else's, even in her own safety, even when she has the opportunity to do something. [00:21:00] Speaker 02: And that was the reason for her testimony. [00:21:02] Speaker 04: And why wouldn't the expert need to know something about this case to do that? [00:21:09] Speaker 02: The problem is, in these cases, she started opining, actually applying the principles to the facts of this case. [00:21:16] Speaker 02: She would ultimately be commenting on BP's credibility. [00:21:20] Speaker 02: And that is uniquely within the province of the jury. [00:21:22] Speaker 02: And that's why in cases like this, courts have upheld general testimony where the expert has not spoken with the victim. [00:21:32] Speaker 02: And that's in LeVictor and some of the other cases cited that LeVictor cited. [00:21:37] Speaker 02: This happens. [00:21:38] Speaker 02: They don't speak with the victim. [00:21:40] Speaker 02: They don't interview anyone. [00:21:41] Speaker 02: They're just giving a general framework so that the jury can kind of understand some of the typical behaviors of domestic violence victims. [00:21:51] Speaker 04: In the cases that have allowed the generalized testimony, those experts also would not be, number one, not planning on the facts, but would not even know anything about the case or the victim or the defendant. [00:22:04] Speaker 02: They purposely will not look at it because they do not want to opine what is the ultimate issue of the jury. [00:22:10] Speaker 02: They have to decide which version of BP's testimony, was it the grand jury and all the statements she made? [00:22:16] Speaker 02: close to the day of the incident, or is it what she said in trial? [00:22:19] Speaker 00: This is exactly why the problem you just posed, the judges who in their discretion do not allow the testimony, they don't allow it for precisely these concerns because they're concerned the jury will [00:22:33] Speaker 00: think that the expert is opining on the particulars. [00:22:37] Speaker 00: In this case, it's clearly. [00:22:39] Speaker 00: The thing I don't understand, it's such a stretch. [00:22:41] Speaker 00: The remand, I don't know what you're afraid of on a remand. [00:22:43] Speaker 00: I would have thought the government in this case would have filed a motion to say, remand it. [00:22:47] Speaker 00: Give them to have the hearing. [00:22:48] Speaker 00: They're not going to get anything. [00:22:49] Speaker 00: Why isn't that justice? [00:22:51] Speaker 00: I don't get that. [00:22:51] Speaker 00: Why are we wasting all this time when the law of the circuit says, as you said, the typical result in a case like this is to remand? [00:23:00] Speaker 02: But there's also a language in system that says it's not it's not reflexive. [00:23:05] Speaker 02: I mean, every case is different. [00:23:06] Speaker 00: I know there are cases to go the other way. [00:23:08] Speaker 00: I've been on the wrong hand. [00:23:09] Speaker 00: One of them. [00:23:10] Speaker 02: Yes. [00:23:11] Speaker 02: Yes. [00:23:11] Speaker 02: Yes. [00:23:11] Speaker 02: Yes. [00:23:12] Speaker 00: And since then, you've been very nice to not to point that out. [00:23:16] Speaker 00: But but in any event, I don't understand why you don't remand in a case like this when you know how fragile the expert quote unquote expert testimony is. [00:23:25] Speaker 02: Your honor, we had all this other evidence, especially with regard to the interstate violation protection order. [00:23:29] Speaker 00: It wasn't just the expert testimony. [00:23:31] Speaker 00: That's what you'd figure out on a hearing on remand. [00:23:34] Speaker 03: Your honor, I can think of a reason why you don't remand to put this on the same district judge who has heard all this evidence and knows that if it's retried without expert testimony, I won't say there's not a ghost of a chance. [00:23:52] Speaker 03: I'll say there's a very slight chance [00:23:55] Speaker 03: that a jury will not convict this man. [00:23:58] Speaker 03: And I'm wondering why we can't glean something from the jury in this case. [00:24:03] Speaker 03: In other words, they violated the protective order. [00:24:09] Speaker 03: They mistried on the other two. [00:24:13] Speaker 03: And to me, that indicates that they're thinking, well, [00:24:19] Speaker 03: We've heard this testimony about a change in attitude in the victim and so forth. [00:24:25] Speaker 03: So we don't know if she was kidnapped or not beyond a reasonable doubt. [00:24:28] Speaker 03: We don't know if there was a first degree burglary. [00:24:33] Speaker 03: But we do know this interstate order was violated. [00:24:37] Speaker 03: And that's what he was convicted of. [00:24:40] Speaker 03: That's exactly right. [00:24:41] Speaker 03: And it seems to me that the jury did a very good job here of either accepting the expert's testimony or rejecting it [00:24:49] Speaker 03: and concentrating on the evidence that came from the victim herself, from her roommate, from the neighbor, from their telephone conversation, from the bruises on her body. [00:25:02] Speaker 03: If there is a case that I think is a exercise in futility to send back, it is this one. [00:25:10] Speaker 02: That's correct, Your Honor. [00:25:10] Speaker 00: And I would just point out that- You're comfortable with that, counsel? [00:25:15] Speaker 02: I'm taking you at face value. [00:25:24] Speaker 02: And I'd also like to point out that the B-1 chart, if you look at the way the verdict came out, what I was trying to say, they convicted on the count where her testimony was the least important, but not even important at all, because much of the elements he did not dispute. [00:25:41] Speaker 02: What they could not reach a verdict on was the counts that depended on her testimony and the credibility. [00:25:49] Speaker 02: First degree burglary. [00:25:50] Speaker 02: If you look at the closing argument by defense counsel, he starts out with first degree burglary. [00:25:54] Speaker 02: And he says, we're not worried about the assault. [00:25:56] Speaker 02: We all know the assault happened. [00:25:57] Speaker 02: But how do you know when he entered, when the defendant entered the apartment, that he had the specific intent to assault her? [00:26:05] Speaker 02: Because she testified at trial. [00:26:06] Speaker 02: BP testified at trial. [00:26:08] Speaker 02: He walked in. [00:26:09] Speaker 02: He said, I want to talk. [00:26:11] Speaker 02: He then points out that Ms. [00:26:13] Speaker 02: Barry was in her bedroom at the time. [00:26:15] Speaker 02: She did not know what happened those first few months until she got up and saw what she saw. [00:26:20] Speaker 02: And Ms. [00:26:21] Speaker 02: Talley had seen the defendant push his way in, but she was not in the living room. [00:26:26] Speaker 02: She could not have heard what [00:26:27] Speaker 02: the defendant said so the only people who knew what happened in those first few minutes were or first few seconds really were the defendant and the victim again as well as kidnapping only person who can talk to who knows whether it's consensual or not or the defendant and the victim both those counts her credibility was key the jury couldn't reach a verdict [00:26:49] Speaker 02: What they did reach a verdict on was the count where her testimony really was not important at all. [00:26:56] Speaker 02: And that's why we think that on this particular record, defendant has not shown a callable claim. [00:27:05] Speaker 02: If there are no further questions, we have asked that the judgment in the district court be approved. [00:27:09] Speaker 02: Thank you. [00:27:10] Speaker 03: Mr. Lecker, why don't you take two minutes? [00:27:17] Speaker 01: We don't know. [00:27:19] Speaker 01: in the mind of jurors. [00:27:21] Speaker 01: We just don't. [00:27:22] Speaker 01: We do know this. [00:27:24] Speaker 01: If the issue was, as Judge Charles has eloquently said, consent, testimony went both ways. [00:27:33] Speaker 01: Why did the government have to put on an expert? [00:27:35] Speaker 01: Obviously, they were uncomfortable with the situation. [00:27:37] Speaker 01: There'd be no other reason for them to do it. [00:27:40] Speaker 04: You've been focusing on consent. [00:27:41] Speaker 04: Consent as to what, though? [00:27:43] Speaker 04: Because earlier, my comments were that other witnesses showed victim being dragged out [00:27:49] Speaker 04: and other witnesses see him violating the order because he shouldn't have been there in the first place. [00:27:54] Speaker 04: And then earlier you commented on, yes, but this was interstate travel. [00:27:58] Speaker 04: Well, you start out with the crime at the apartment. [00:28:02] Speaker 04: And the fact that she's dragged supposedly without consent and then ends up across state lines, why doesn't that make it interstate travel violation? [00:28:16] Speaker 01: Because you still get back to the ultimate question, mens rea, intent. [00:28:21] Speaker 04: What was his intent? [00:28:22] Speaker 04: You mean intent to have the ultimate outcome that she was across state lines without her permission? [00:28:27] Speaker 04: So at some point, it changed? [00:28:29] Speaker 01: Intent to go outside, and she didn't want it. [00:28:32] Speaker 01: They didn't want to have it. [00:28:33] Speaker 01: This is, again, this is only demonstrating the difficulty of this. [00:28:37] Speaker 01: We have a really unexplored issue of an expert who's bolstering the government's theory. [00:28:46] Speaker 01: What you have here is a victim, DP, alleged victim, says, listen, I wasn't happy about him coming in, but he wanted to have a discussion. [00:28:57] Speaker 01: I agreed to have a discussion. [00:28:59] Speaker 01: We got in an argument. [00:29:00] Speaker 01: They had a relationship. [00:29:02] Speaker 01: It was an on-again, off-again relationship. [00:29:04] Speaker 01: Who knows? [00:29:05] Speaker 01: Who really knows why they went across straight lines? [00:29:08] Speaker 01: He took her. [00:29:10] Speaker 01: They would open his car. [00:29:10] Speaker 01: She said they'd walked hand in hand downstairs. [00:29:13] Speaker 01: And they went out. [00:29:14] Speaker 01: And they went to his car. [00:29:15] Speaker 01: And they went over to Maryland. [00:29:17] Speaker 01: And there, she said, ultimately, she testified they had consensual sex. [00:29:20] Speaker 01: I will admit to you, Judge Charles, these are disquieting facts if you believe a government's theory of a case. [00:29:26] Speaker 01: The problem with the government's theory of a case is they put the thumb on the scale here. [00:29:31] Speaker 01: That a jury, we don't know why the jury convicted. [00:29:34] Speaker 01: we have no idea what was in their minds. [00:29:37] Speaker 01: What we do know was that there was somebody in that courtroom who was testifying at length as to a phenomena that she said she had observed in her experience, that although she said, I don't know anything about the alleged victim here, I know nothing about the facts, she related a whole host of events that could well have influenced the jury's mind into thinking that this was an example [00:30:01] Speaker 01: This interstate transportation charge was an example, an application of a set of phenomena that were not in the record. [00:30:09] Speaker 00: See, the problem, counsel, that my colleagues are addressing, which is a difficulty on your side, excuse me, what they're saying essentially to you is take the expert out, the defendant's still going to easily lose. [00:30:25] Speaker 00: Just use the record without the expert [00:30:29] Speaker 00: Given what we're talking about as Judge Child just recounted, it's going to easily lose. [00:30:34] Speaker 00: There's no way he can win that case. [00:30:36] Speaker 00: So there's really nothing. [00:30:37] Speaker 00: It's almost a harmless error kind of argument. [00:30:39] Speaker 00: There's really nothing. [00:30:40] Speaker 00: If it was our own his discretionary, maybe it wasn't the best decision to allow the expert in. [00:30:46] Speaker 00: But what we're essentially posing is a harmless error situation. [00:30:50] Speaker 00: It's so what. [00:30:51] Speaker 00: There's no conceivable way on this record that he can win, given what the evidence, the rest of the evidence is. [00:30:58] Speaker 01: I think the fact that the jury hung on the other two counts is a strong indication that we don't know what would have happened if they fought for it, he might well have been, he might have been acquitted or hung a jury on that as well. [00:31:10] Speaker 01: We can't take that expert out of the equation. [00:31:13] Speaker 01: It's comfortable to think that you can, but in reality, you know and I know, and we all know, jurors pay attention, experts, best advice for this case. [00:31:24] Speaker 03: All right, thank you. [00:31:25] Speaker 03: Thank you. [00:31:25] Speaker 03: You were appointed Mr. Lockhart, [00:31:28] Speaker 03: Your usual able job in the court. [00:31:30] Speaker 03: Thank you. [00:31:30] Speaker 01: Thank you. [00:31:31] Speaker 01: Always a pleasure to.