[00:00:01] Speaker 02:
Good morning, your honors.

[00:00:03] Speaker 02:
May it please the court.

[00:00:04] Speaker 02:
I'm Elizabeth Music, and I represented Mr. Burke at the trial court level.

[00:00:09] Speaker 02:
I'm a member of the CJA panel in the district of Montana, and I live in Bozeman.

[00:00:16] Speaker 02:
I would like to begin with the matter regarding the court's admission of Rule 403 and 414 evidence of Jane Doe III at trial.

[00:00:31] Speaker 02:
I believe that the district court erred in its assessment of whether to allow the government to present evidence of either Jane Doe III or IV, and it erred by allowing the government to choose which evidence to present at trial rather than performing the required LeMay analysis on each allegation individually.

[00:00:50] Speaker 02:
In United States versus LeMay, this court articulated five factors

[00:00:55] Speaker 02:
that should be considered when considering whether to admit evidence of other acts of child molestation.

[00:01:02] Speaker 02:
Those factors are one, the similarity of the prior acts to the acts charged, two, the closeness in time of the prior acts to the acts charged, three, the frequency of the prior acts, four, the presence or lack of intervening circumstances, and five, the necessity of the evidence beyond the testimonies already offered at trial.

[00:01:24] Speaker 04:
So in its order on the motion in Lemay, the district court quoted that passage from Lemay and then discussed those factors for a couple of pages.

[00:01:35] Speaker 04:
So where did it go wrong in your view?

[00:01:38] Speaker 02:
Well, Your Honor, the court actually issued a preliminary order on this matter where it did go through the analysis of the LeMay factors and interestingly the district court determined that

[00:01:54] Speaker 02:
the factors weighed against admissibility on a number of different matters.

[00:02:01] Speaker 02:
For example, if you're looking at the first factor for the similarity of the prior acts charged, the court found that the matters were not overly similar.

[00:02:10] Speaker 02:
In Jane Doe's 1 and 2, which were the individuals set forth in the indictment, the two alleged victims, those girls were approximately 5 to 10 at the time of the indictment.

[00:02:28] Speaker 02:
the alleged abuse.

[00:02:29] Speaker 02:
And Jane Doe III, for example, was 14 at the time of her allegations.

[00:02:34] Speaker 02:
And Jane Doe IV was age four at the time of the allegations.

[00:02:38] Speaker 02:
So I believe the court found that Jane Doe IV was slightly more similar, just if you're looking at age only.

[00:02:44] Speaker 02:
Next, if you're looking at the circumstances surrounding the allegations,

[00:02:53] Speaker 02:
In Jane Doe 1 and 2's cases, Mr. Burke was a family friend who would frequent the home of Jane Doe 1 and 2.

[00:03:02] Speaker 02:
He was friends with her father, and their mother testified at trial that on occasion they would leave Jane Doe 1 and 2 in the care of Mr. Burke while they went into town to

[00:03:17] Speaker 02:
run various errands, things of that nature.

[00:03:20] Speaker 02:
All of these allegations occurred on an Indian reservation in Montana, and it's a relatively remote area.

[00:03:29] Speaker 02:
And so with Jane Doe's one and two, the allegations

[00:03:35] Speaker 02:
were specifically that Mr. Burke would find ways to isolate these girls in a bedroom of the home and would commit acts of violence against them, sexual acts.

[00:03:54] Speaker 02:
However, Jane Doe III, on the other hand, this is the 14-year-old girl, she was in a home, they were having a get-together, and towards the end of the evening when everyone was going to bed, Jane Doe III, and I believe it was her stepsister,

[00:04:12] Speaker 02:
didn't have a bedroom in the home and so they were sleeping on two couches that were in the living room of the home and The allegations are that mr. Burke was laying on the floor Adjacent to one of the couches that Jane Doe three was lying on And that he attempted to molest her while she was sleeping on on the sofa with another person in the room and

[00:04:38] Speaker 02:
I think that that's a big difference because Jane Doe's one and two alleged that Mr. Burke would isolate them and commit these acts when no one else was around.

[00:04:50] Speaker 02:
That's very different from another person being on a sofa in a small living room just a few feet away.

[00:04:58] Speaker 02:
Jane Doe four, similarly, it was not an isolation type of allegation.

[00:05:05] Speaker 02:
Jane Doe four was age four at the time of the allegations.

[00:05:08] Speaker 02:
And it is alleged that her grandmother went to open the door to the room in which she was playing, I guess, and that the door was locked.

[00:05:22] Speaker 02:
Upon opening the door, Mr. Burke was present in the bedroom with Jane Doe Four, but also Jane Doe Four's father.

[00:05:30] Speaker 02:
And then there was conflicting

[00:05:34] Speaker 02:
I won't say testimony because these individuals didn't testify at trial.

[00:05:38] Speaker 02:
But there was conflicting information in the law enforcement reports from other witnesses as to whether Jane Doe IV's father was either asleep or pretending to be asleep or not asleep.

[00:05:48] Speaker 02:
And so here again, we have another incident where this young lady is not isolated with Mr. Burke.

[00:05:56] Speaker 04:
And all of this goes to the similarity of the... Yes, Your Honor.

[00:06:02] Speaker 04:
But the district court agreed with you on that, right?

[00:06:05] Speaker 04:
Yes, Your Honor.

[00:06:05] Speaker 04:
So why... So, I mean, I guess, you know, I think we can all... We can take it as given that the testimony was about an incident that was not particularly similar, but the district court thought that other factors outweighed that.

[00:06:22] Speaker 04:
So why is that an abuse of discretion?

[00:06:26] Speaker 02:
Your honor interestingly enough the district court in its preliminary order on this matter prior to the second hearing on it also found that factors two through four weighed against admission but in its order it stated that it wished to.

[00:06:42] Speaker 02:
to discuss the fifth factor a little bit more.

[00:06:45] Speaker 02:
And so we did have a second pretrial motions hearing about a week before trial regarding the fifth factor and regarding the necessity of the evidence beyond the testimonies already offered at trial.

[00:06:58] Speaker 02:
And interestingly, this was a pre-trial hearing, so no testimonies had been offered at trial at that point.

[00:07:05] Speaker 02:
And the government's analysis, or I apologize, the district court's analysis seemed to focus on what would be fair to the government when it was looking at the fifth factor and whether or not this testimony would be, I believe the standard is helpful or practically necessary.

[00:07:24] Speaker 04:
I mean, that's the language from LeMay, right?

[00:07:29] Speaker 04:
Yes.

[00:07:32] Speaker 02:
But what LeMay doesn't discuss is whether or not the court should be trying to make something easier or fairer for the government.

[00:07:41] Speaker 02:
The government has the burden of proof, and we believe that by attempting to make something fairer for the government, it was showing partiality to the government because it was assisting the government in meeting its burden of proof at trial.

[00:07:57] Speaker 04:
Maybe fairness to the government wasn't the best phrasing, but helpful or practically necessary conveys kind of the same concept, practically necessary to the prosecution.

[00:08:13] Speaker 04:
I guess why should we, just because of the use of the word fair, think that the court was doing anything other than looking at what LeMay says it should look at, which is how useful is this to the government's case?

[00:08:28] Speaker 02:
I agree with you, Your Honor.

[00:08:30] Speaker 02:
And I believe that where the court erred was actually when it chose to allow the government to choose which Jane Doe's testimony, three or four, would be admitted at the trial.

[00:08:45] Speaker 02:
One of the things that the court has established is that

[00:08:51] Speaker 02:
413 and 414 establish a presumption, but not a blank check.

[00:08:56] Speaker 02:
And that's from United States versus Sue, which is 362 F3, 1241.

[00:09:01] Speaker 02:
And we believe that by giving the government the choice of whether to admit evidence of Jane Doe III or Jane Doe IV, that was giving the government that blank check.

[00:09:11] Speaker 04:
But don't, I mean, don't district courts do that all the time?

[00:09:13] Speaker 04:
I mean, maybe not.

[00:09:15] Speaker 04:
In this precise context, but in a 403 kind of challenge, it's quite common to say, you can put in one witness on this issue, but I think two would be too many.

[00:09:26] Speaker 04:
But I'm not going to tell you who your witness should be.

[00:09:28] Speaker 02:
But Your Honor, in balancing the 403 analysis, that's where the court also erred, because the court should have either determined, A, both of the Jane Does are relevant and they're admissible and they can both testify, or B, neither of the Jane Does is relevant and admissible and neither is testifying, or C,

[00:09:50] Speaker 02:
One of these is a relevant inadmissible But the other is not and and that's where we believe that the court failed to properly conduct the 403 analysis to determine whether the evidence was more prejudicial than probative because as as the court is aware child sex cases are extremely emotionally charged cases and so to to allow

[00:10:14] Speaker 02:
the government to choose which additional Jane Doe to put on was simply improper, Your Honor.

[00:10:23] Speaker 04:
So if the district court had said they both come in, you wouldn't be challenging that?

[00:10:29] Speaker 02:
No, Your Honor, we would.

[00:10:30] Speaker 02:
Because we believe that admission of either Jane Doe was improper.

[00:10:34] Speaker 02:
We believe that the court just committed an additional error when it allowed the government to choose which was admissible.

[00:10:41] Speaker 02:
Because the court has the gatekeeping function

[00:10:44] Speaker 02:
to decide what is or is not admissible.

[00:10:49] Speaker 02:
it left that in the government's hands, your honor, which is not proper, and it's not something that's contemplated by LeMay.

[00:10:57] Speaker 02:
Under LeMay, the court needs to weigh the admissibility and be the determination of whether or not this other act's evidence is going to come in.

[00:11:06] Speaker 02:
And we believe that the court essentially just put that in the government's hands and let them choose.

[00:11:15] Speaker 02:
Furthermore, we believe that they likely chose the case that was the least similar to the allegations related to Jane Doe 1 and 2.

[00:11:26] Speaker 02:
Jane Doe 3 was much older and she was in a living room

[00:11:33] Speaker 02:
with her sister present.

[00:11:36] Speaker 02:
So for those reasons, we believe that the court committed multiple errors when it chose to admit the testimony of Jane Doe 3 at trial.

[00:11:49] Speaker 02:
We also believe that the district court aired when it allowed evidence of Mr. Burke's drug and alcohol use to be admitted at trial to, quote, set the scene.

[00:11:59] Speaker 02:
In discovery, the government provided evidence that Mr. Burke was a frequent visitor at the home of Jane Doe's one and two, and that he would go to the family home, and he would play video games, and he would drink, and he would smoke marijuana with the girl's father.

[00:12:13] Speaker 02:
Mr. Burke moved in Lemony to exclude evidence of drinking and drug use pre-trial, and the court held a hearing on that matter as well.

[00:12:22] Speaker 02:
Ultimately, the court ruled that the government could present evidence that Mr. Burke would go to the home and play video games and drink with the father of Jane Doe I and II.

[00:12:33] Speaker 02:
The court did this to allow them to set the scene.

[00:12:35] Speaker 02:
But the scene could have easily been set by saying that Mr. Burke went to the home to play video games.

[00:12:41] Speaker 02:
That's not an uncommon action, but by bringing in the act of drinking, we believe that that was prejudicial.

[00:12:48] Speaker 04:
And why exactly was it prejudicial?

[00:12:50] Speaker 04:
Because drinking is not an uncommon activity.

[00:12:54] Speaker 04:
And these days, I suppose, marijuana is fairly common a lot of places.

[00:13:01] Speaker 04:
Is the concern really that the jury will say, my goodness,

[00:13:05] Speaker 04:
You know, somebody who would who would drink and smoke marijuana must be a bad person and is that really a plausible.

[00:13:11] Speaker 02:
Your honor, I do think that that is a concern because at trial Jane Doe one and two's mother testified explicitly stating that her husband and Mr Burke.

[00:13:22] Speaker 02:
would stay at the home and they would drink and they would smoke marijuana and play video games all day while she went to work earning for the family.

[00:13:30] Speaker 02:
And that's incredibly prejudicial to show that these men are sitting home doing nothing but drink and play games all day long while you've got a mother out there leaving her children at home with these individuals and going to work.

[00:13:45] Speaker 01:
The government's effort

[00:13:47] Speaker 01:
Their mission in these kinds of situations is to marshal prejudicial evidence.

[00:13:58] Speaker 02:
I understand, Your Honor.

[00:14:00] Speaker 02:
Generally, every piece of evidence that the government seeks to admit is prejudicial to a defendant in a criminal case.

[00:14:07] Speaker 02:
However, while marijuana may be becoming legal in many states, including Montana, as far as recreational use goes, it is still very much illegal on Indian reservations in Montana.

[00:14:24] Speaker 02:
And so we believe that that factor weighs into it as well, Your Honor.

[00:14:28] Speaker 02:
And your honors, if I could reserve the remainder of my time for rebuttal.

[00:14:32] Speaker 02:
Thank you.

[00:14:46] Speaker 03:
Good morning, Your Honors.

[00:14:46] Speaker 03:
May it please the court.

[00:14:47] Speaker 03:
Kelsey Sable from the District of Montana on behalf of the United States.

[00:14:52] Speaker 03:
I'd like to start with the Rule 414 witness Jane Doe III and then move to discussing the alcohol and drug evidence.

[00:15:01] Speaker 03:
So, Your Honors, with respect to the rule 414, witness Jane Doe III, the District Court did not abuse its discretion in admitting Jane Doe III's testimony.

[00:15:11] Speaker 03:
The District Court correctly identified the correct legal standard that applies, the factors under United States versus LeMay.

[00:15:18] Speaker 03:
And it conducted a thorough analysis of Jane Doe III's testimony in the context of those factors, both in the initial order, the initial written order, and at the motions hearing on this issue.

[00:15:32] Speaker 03:
And the district court came to the correct result here.

[00:15:36] Speaker 03:
And that's particularly true given the way that the testimony actually unfolded at the trial.

[00:15:43] Speaker 03:
With respect to the similarity

[00:15:47] Speaker 03:
factor that was discussed.

[00:15:50] Speaker 03:
Jane Doe's 1 and 2 both testified prior to Jane Doe 3's testimony that Mr. Burke, that they would wake from sleeping to Mr. Burke assaulting them.

[00:16:00] Speaker 03:
That's an excerpt of the record, 61 for Jane Doe 1 and 106 for Jane Doe 2.

[00:16:05] Speaker 03:
And that's exactly what Jane Doe 3 testified to, that she woke up to Mr. Burke's hand moving up her thigh.

[00:16:14] Speaker 03:
And in addition to the similarity of the assault itself, as the district court found and explained, it was also similar from the standpoint of Mr. Burke maneuvering himself into the company of children and finding opportunities to assault children.

[00:16:33] Speaker 03:
when he is in their parents' homes, even though there might be other people in the home at the time.

[00:16:43] Speaker 03:
Jane Doe III testified that there was another teenager in the living room while they were sleeping, but nevertheless she woke up to this assault by Mr. Burke.

[00:16:52] Speaker 03:
And that was similar to Jane Doe One's testimony that on some occasions, the assaults would take place while her siblings were sleeping in the room with her, but they would be sleeping at the time of the assault.

[00:17:06] Speaker 03:
So the similarity goes not just to the assault itself, but also to the sort of MO of the assault.

[00:17:14] Speaker 03:
And with respect to the practical necessity of this evidence,

[00:17:22] Speaker 03:
It's necessary not just because Mr. Burke attacked the victim's credibility, which he acknowledged that he did, but it also is incredibly probative.

[00:17:33] Speaker 03:
Jane Doe III is an incredibly probative as to the identity of the victim's abuser in this case.

[00:17:41] Speaker 03:
The sort of centerpiece of Mr. Burke's defense was that maybe these victims, Jane Doe I and II, were abused.

[00:17:48] Speaker 03:
But it wasn't Mr. Burke.

[00:17:50] Speaker 03:
The theme of the case was memory is messy, and they're misremembering Mr. Burke as the person who abused them because of the delayed reporting and the delayed identification and that their memories had been corrupted.

[00:18:06] Speaker 03:
But with Jane Doe III, we don't have those issues.

[00:18:09] Speaker 03:
We have a victim who was assaulted, who reported it at the time, and who identified Mr. Burke as the person who abused her at the time.

[00:18:18] Speaker 03:
So her testimony was incredibly probative for the government and it weighed heavily in favor of admission with respect to the necessity factor.

[00:18:31] Speaker 03:
And so your honors, with respect to the district court allowing the government to choose.

[00:18:36] Speaker 00:
Excuse me.

[00:18:38] Speaker 00:
Could you just, there was one other piece of evidence on that.

[00:18:43] Speaker 00:
And I just want to clarify.

[00:18:47] Speaker 00:
Was it not the case that AL and LL recalled the abuse and they thought it was someone named Mike, but it was actually their mother who told

[00:19:01] Speaker 00:
them who the person was.

[00:19:03] Speaker 03:
That is correct, Your Honor.

[00:19:05] Speaker 03:
With respect to Jane Doe 1AL, she recalled and disclosed to her counselor when she initially disclosed the abuse that her abuser's first name was Mike, but she did not remember her abuser's last name.

[00:19:19] Speaker 03:
And then she spoke with her mother about her abuse, and her mother provided the last name of Burke, of Michael Burke.

[00:19:29] Speaker 03:
But important to that point, Your Honor, Jane Doe I identified Mr. Burke at trial as

[00:19:37] Speaker 03:
as the person who abused her.

[00:19:40] Speaker 03:
And she testified that she knew that because his face was burned into her mind.

[00:19:45] Speaker 03:
So she didn't remember his last name, but she absolutely knew who he was and knew what he looked like and knew that he was the person that she was remembering had abused her and her sister, your honor.

[00:19:59] Speaker 03:
And so the district court also did not err with respect to the rule 414 evidence by allowing the government to choose which victim to have testify.

[00:20:11] Speaker 03:
The district court absolutely did the LeMay analysis and the correct LeMay analysis with respect to each victim Jane Doe 3 and Jane Doe 4.

[00:20:20] Speaker 03:
both in the written order and at the motions hearing.

[00:20:24] Speaker 03:
And the district court limited the government to one witness in order to limit the prejudicial effect of this evidence on Mr. Burke.

[00:20:34] Speaker 03:
The district court determined that each victim was admissible under the LeMay balancing test.

[00:20:39] Speaker 03:
Each victim was more probative than it was substantially prejudicial, but limited the government to one to limit the prejudicial effect on Mr. Burke.

[00:20:50] Speaker 03:
I mean, sort of to Judge Miller, to your question, it is bluntly the government's decision about how to present its case and what witnesses to call and what evidence to introduce.

[00:21:05] Speaker 03:
And from our perspective, Jane Doe III was far more probative than Jane Doe IV.

[00:21:10] Speaker 03:
not just because of the similarities in the assaults, but because Jane Doe III was available herself to testify at trial, whereas Jane Doe IV was not.

[00:21:20] Speaker 03:
And she was able to take the stand, testify, tell her story in her own words, and make the identification of Mr. Burke as the person who assaulted her, which, again, was particularly relevant under the circumstances of this case.

[00:21:36] Speaker 03:
So if the court has no further questions on the Rule 414 issue, I would move on to the alcohol and drug evidence.

[00:21:47] Speaker 03:
So your honors just one factual point that I would like to clarify here The district court's order in liminey on the motions or at the motions hearing on this Was that the government could introduce evidence that mr. Burke and the victim's father?

[00:22:03] Speaker 03:
drank alcohol smoked marijuana and played video games together in the house as part of a general setting of the scene and that

[00:22:12] Speaker 03:
That order explicitly included the marijuana use that is objected to on appeal, and that's at Excerpts of the Record 497.

[00:22:21] Speaker 03:
And the testimony and the evidence that was presented on this issue by all of the witnesses complied with that.

[00:22:32] Speaker 03:
was that they drink alcohol and smoked marijuana and played video games and it wasn't an abuse of the district court's discretion to admit this evidence because it does go to the setting of the scene.

[00:22:42] Speaker 03:
I mean, as this court has consistently held, we don't expect juries to hear

[00:22:47] Speaker 03:
evidence in a vacuum.

[00:22:50] Speaker 03:
They are entitled to get the full picture of the circumstances of the crime.

[00:22:54] Speaker 03:
And this went directly to that.

[00:22:56] Speaker 03:
It explained how he knew these people, how and why he was in the house, how and why he knew the children and had access to the children.

[00:23:06] Speaker 03:
And so the district court was well within its discretion to determine that the jury had a right to hear that evidence.

[00:23:13] Speaker 03:
And we submit that it was not more prejudicial than it was.

[00:23:18] Speaker 04:
I mean, the fact that he was a regular visitor explained all those things.

[00:23:23] Speaker 04:
But the fact that his regular visits included drinking and marijuana use doesn't really seem necessary to explain that.

[00:23:31] Speaker 04:
So is your argument, I take it, is just that that's sort of part of the scene of what was happening?

[00:23:40] Speaker 04:
Is that it?

[00:23:41] Speaker 03:
That is correct, Your Honor.

[00:23:43] Speaker 03:
It is part of the scene of what was happening and it explains the circumstances of the crime.

[00:23:49] Speaker 03:
But it's also relevant, Your Honor, and this wasn't the basis for the district court's order, but as the evidence came out at trial, it's also relevant going to Mr. Burke's

[00:23:59] Speaker 03:
opportunity to commit the crime.

[00:24:01] Speaker 03:
I mean, one major piece of Mr. Burke's defense was that the house was too small and it was too busy for these crimes to happen, and there were always other adults in and out of the house and around the children.

[00:24:15] Speaker 03:
But the alcohol and drug use is relevant to explain, and the district court noted this in the Rule 29 motion

[00:24:22] Speaker 03:
hearing proceeding at excerpts of the record 195 to 196 why maybe the other adults weren't as observant as they should have been or how mr. Burke could have made the opportunity to commit these crimes even though there were other adults in the house so it also goes to them their alcohol and drug use is relevant to explain that right I mean the idea is that they didn't notice because they were under the influence of alcohol or drugs but though that doesn't that doesn't have anything to do with his use of them doesn't

[00:24:52] Speaker 03:
That's true, Your Honor.

[00:24:53] Speaker 03:
But again, I think that goes as well to providing a full picture to the jury and telling them what was happening here.

[00:25:00] Speaker 03:
And it would be sort of disingenuous to say that everybody else was drinking, but Mr. Burke wasn't when he was.

[00:25:08] Speaker 03:
And from the government's perspective, particularly how the evidence came out at trial,

[00:25:13] Speaker 03:
the limited evidence about drug and marijuana use was just not substantially more prejudicial than probative, you know, given the entire context of the case.

[00:25:24] Speaker 03:
And if the court has no further questions on these issues or any of the other issues that were raised in the brief, I'm happy to cede the rest of my time.

[00:25:32] Speaker 00:
I have just one question about the pre-indictment delay, the fact that the investigation was began in 2017.

[00:25:41] Speaker 00:
Um, but he wasn't indicted until 2021.

[00:25:44] Speaker 00:
Um, what was the reason for that?

[00:25:49] Speaker 03:
Well, so your honor, I, the, the reason for that, um, was, well, firstly, I, as the court has explained in, um, Corona Vibera, um, the defendant has to show prejudice as a result of the delay, actual prejudice.

[00:26:04] Speaker 00:
I'm asking what's the reason for that?

[00:26:06] Speaker 00:
You know, it's four years of delay.

[00:26:09] Speaker 03:
Yes, Your Honor.

[00:26:10] Speaker 03:
So the reasons were both sort of a staffing issue at the FBI office, the Shelby Resident Agency.

[00:26:19] Speaker 03:
Jared Thompson testified at trial that he left shortly after conducting the interviews.

[00:26:24] Speaker 03:
And there were other agents that were also leaving at the time, resulting in only one agent remaining.

[00:26:30] Speaker 03:
The district court also referenced the sort of staffing issues and difficulties with continuity of agents in that area.

[00:26:39] Speaker 03:
The pandemic was certainly a factor in the delay as well, you know, 2020 to 2021.

[00:26:47] Speaker 03:
And so those were the reasons for the delay and it's not something that we're proud of, it's we really endeavor to not have these types of delays.

[00:26:58] Speaker 03:
happen, especially in these types of cases, both for the victims and for the defendants.

[00:27:04] Speaker 03:
But again, Your Honor, it's our position that absent actual prejudice to the defense, that it is not a basis to dismiss the indictment.

[00:27:13] Speaker 00:
He argues that his grandmother died and she could have been around to offer helpful evidence to him.

[00:27:21] Speaker 03:
Your honor, yes, he argued that in the district court, but his grandmother's testimony related to evidence that was not actually presented at the trial it related to evidence that there was some rumor speculation in the community that he had.

[00:27:38] Speaker 03:
Accusations as a juvenile of other sexual abuse conduct and that evidence was not presented at trial So his his relative refuting that be you know, not being there to refute that evidence did not prejudice his defense All right.

[00:27:55] Speaker 03:
Thank you.

[00:27:56] Speaker 03:
Thank you your honor.

[00:27:57] Speaker 04:
Thank you.

[00:27:57] Speaker 03:
Thank you your honors

[00:28:07] Speaker 02:
Regarding the identity of the abuser of both Jane Doe's 1 and 2, Jane Doe's 1 and 2 testified at trial that their abuse went into 2005 and 2006.

[00:28:18] Speaker 02:
It's also undisputed that Mr. Burke was deployed and in the military from 2005 to 2009 and was out of the country largely.

[00:28:27] Speaker 02:
So their testimony actually provided an alibi for Mr. Burke concerning the actual identification that was provided by their mother.

[00:28:36] Speaker 02:
As the government alluded, Ms.

[00:28:39] Speaker 02:
Heisel was the one who provided the last name of Mr. Burke to Jane Doe One, but she was doing so based on her own experience with child abuse.

[00:28:49] Speaker 02:
and the fact that she had nightmares.

[00:28:52] Speaker 02:
She noted that Jane Doe One also had nightmares and she believed that there was a possibility that her daughter was also being abused.

[00:28:59] Speaker 02:
And regarding the government's assertion that Mr. Birx

[00:29:05] Speaker 02:
face was burned into the memory of Jane Doe one we presented expert testimony at trial regarding memory contamination and our ex expert testified extensively regarding a famous rape case where DNA exonerated the individual originally convicted and she has indicated

[00:29:25] Speaker 02:
that over the years when she thinks back to her brutal attack, she still sees the man who was originally convicted of rape, not the actual perpetrator, even though she knows the identity of the actual perpetrator now.

[00:29:38] Speaker 02:
So we do think that that was an important thing that occurred at trial.

[00:29:44] Speaker 04:
Regarding your you're over your time.

[00:29:46] Speaker 04:
So if you want to wrap up very briefly, yes, your honor.

[00:29:50] Speaker 02:
Thank you Your honor, we would just ask that this matter be remanded to the district court with instruction from this court regarding admissibility of evidence Because at the end of the day, mr Burke has been sentenced to 225 months in the custody of the Bureau of Prisons and we believe that he is entitled to a fair trial and

[00:30:11] Speaker 02:
Thank you very much.

[00:30:13] Speaker 04:
Thank you both.

[00:30:14] Speaker 04:
Thank both counsel for their arguments.

[00:30:15] Speaker 04:
The case is submitted and the court is adjourned.