[00:00:00] Speaker 01:
Your Honor, good morning.

[00:00:02] Speaker 02:
Ben Lechman on behalf of Mr. Porter.

[00:00:05] Speaker 02:
May it please the Court, I'd like to reserve approximately five minutes of my time for rebuttal.

[00:00:11] Speaker 02:
I'm here to challenge federal rule of evidence 413 as facially unconstitutional because it permits the government to convict people based on a constitutionally forbidden and an unscientific, undata-driven approach as a propensity argument.

[00:00:27] Speaker 02:
The history of evidentiary rules regarding a

[00:00:30] Speaker 02:
defendant's sexual propensity is not ambiguous.

[00:00:33] Speaker 02:
The government attempts to assert in its briefs that the law is vague on this point.

[00:00:39] Speaker 02:
I think it's purposely obtuse, but we have two Supreme Court cases and at least two published cases of this court that tell us propensity evidence when it is adduced as

[00:00:52] Speaker 02:
strictly propensity evidence is, in fact, unconstitutional.

[00:00:55] Speaker 01:
Can I ask you just a question?

[00:00:56] Speaker 01:
Sure.

[00:00:57] Speaker 01:
I want you to continue.

[00:00:58] Speaker 01:
But is your position that we could find it unconstitutional, or do you realize we're bound by our own precedent and the Supreme Court's precedent?

[00:01:06] Speaker 01:
So are you thinking that our court should go en banc to overrule our own precedent, or do you think there's room for this panel to find it unconstitutional?

[00:01:17] Speaker 02:
I think there is room for this panel.

[00:01:19] Speaker 02:
I anticipated this question.

[00:01:21] Speaker 02:
And that is because the rule that I'm challenging, rule 413, has only been addressed in an unpublished opinion that I don't believe binds this court in terms of Ninth Circuit precedent.

[00:01:33] Speaker 02:
Rule 414 has been addressed in published precedent.

[00:01:37] Speaker 01:
And if this court were to- And you don't think LeMay controls this case?

[00:01:41] Speaker 02:
I don't.

[00:01:41] Speaker 02:
I will get to that in a moment.

[00:01:43] Speaker 02:
I guess I just want to answer the court's direct question right at the head.

[00:01:48] Speaker 02:
And that is, if the court finds that 414 is somehow applicable here, and I'm going to argue in a moment that it's not, then I understand that I'll have to do the judicial version of being a Karen, go to DC, talk to a manager, or nine of them, and have it resolved in that way.

[00:02:02] Speaker 02:
But I do think that this court is bound by its prior decision, which is published in McKinney versus Reese.

[00:02:09] Speaker 02:
And in that case, the holding was that admission of propensity evidence is of constitutional dimension, and in that case, warranted the granting of habeas relief.

[00:02:18] Speaker 02:
In that case, the facts were about the defendant having a knife before doing some acts that were consistent, arguably, with the offense for which he was charged.

[00:02:28] Speaker 02:
It was admitted as propensity evidence, and this court granted habeas relief.

[00:02:33] Speaker 02:
Additionally, there are two Supreme Court cases that I think this court should be bound by and is bound by.

[00:02:39] Speaker 02:
One is Spencer v. Texas.

[00:02:42] Speaker 02:
And in that case, the government, I noted in their

[00:02:46] Speaker 02:
response brief said, they cited the dissent by Judge Berger saying, hey, recidivist statutes have never been thought to, well, they said that their argument was that Judge Berger felt that the majority

[00:03:01] Speaker 02:
hadn't dealt with propensity argument head on, but they buried the lead here.

[00:03:07] Speaker 02:
I think they buried the lead there because what Justice Berger said was recidivist statutes have never been thought to allow the state to show probability of guilt

[00:03:19] Speaker 02:
because of prior convictions.

[00:03:22] Speaker 04:
If we may, let's go back to LeMay, because we do have that case.

[00:03:26] Speaker 04:
So what would be the difference between the federal rules of evidence that would cause us to conclude that LeMay doesn't govern here?

[00:03:33] Speaker 02:
A couple of things.

[00:03:34] Speaker 02:
One is, obviously, Mr. Porter was in charge with 414, which is what LeMay deals with.

[00:03:39] Speaker 02:
And if I were trying to make the argument that the analysis from a 414 case would apply, I would expect the logical rejoinder from the government to be

[00:03:48] Speaker 02:
hey, that would be an advisory opinion.

[00:03:50] Speaker 02:
That's not the same rule.

[00:03:51] Speaker 02:
And it is not the same rule.

[00:03:52] Speaker 02:
And I'll explain why in a couple of ways.

[00:03:54] Speaker 02:
One is 414 deals with a much narrower range of cases.

[00:03:58] Speaker 03:
But the immediate question isn't whether you could distinguish 414.

[00:04:02] Speaker 03:
The question is whether the reasoning of delay is binding here because the reasons it relied on are applicable here.

[00:04:15] Speaker 02:
Well, I can address those.

[00:04:18] Speaker 02:
The first is there is some data-driven basis to believe that propensity might be different in a child case.

[00:04:25] Speaker 02:
Additionally, you're talking about a class of alleged victims who don't potentially have a voice.

[00:04:30] Speaker 02:
That's a little different than 413, which has a broader base.

[00:04:34] Speaker 02:
Finally, the LeMay factors, two things here.

[00:04:37] Speaker 02:
The first is a lot of it deals with 403.

[00:04:42] Speaker 02:
But the problem with 403 is,

[00:04:44] Speaker 02:
It can't really be used here.

[00:04:46] Speaker 02:
It'd be like a pilot saying, you can trust our airplane because we have parachutes, and then burning the parachutes.

[00:04:51] Speaker 02:
Because the legislative history, there's a Seventh Circuit case that was cited by the government.

[00:04:55] Speaker 02:
And I looked through the legislative history that was in that case, and what it said was to basically gut 403, that there's a presumption that this propensity evidence is accepted.

[00:05:06] Speaker 03:
But then you're crawling with lame.

[00:05:08] Speaker 03:
Because LeMay did rely on that, right?

[00:05:11] Speaker 02:
Well, I guess it did in an incorrect way.

[00:05:13] Speaker 02:
You can't rely on... But then you're quarreling with LeMay again.

[00:05:17] Speaker 03:
I mean, in other words, we're a three-judge panel.

[00:05:19] Speaker 03:
You could file a petition for a hearing on Beck.

[00:05:21] Speaker 03:
But in terms of our decision-making, what you're saying now is saying that we should not listen to LeMay, and we can't do that.

[00:05:30] Speaker 02:
Well, if the court... Let's sidestep that question.

[00:05:32] Speaker 02:
If the court did listen to LeMay, I would say that

[00:05:35] Speaker 02:
that the district court in this case didn't follow LeMay appropriately, because in this case there are a great many distinctions.

[00:05:42] Speaker 02:
And this is where we get to the gay kinship being part of my brief, where in LeMay, or in Mr. Porter's case, what was supposedly similar was basically a strange rape situation analogized to

[00:05:56] Speaker 02:
a two-year consensual adult relationship in a totally different setting.

[00:06:02] Speaker 02:
And what the district court in this case said is, well, Mr. Porter engages in CNC.

[00:06:06] Speaker 02:
Mr. Porter engages in anal sex.

[00:06:09] Speaker 02:
Mr. Porter engages in breath plate, which are all, as I noted in my brief, a big part of LGBTQ plus culture.

[00:06:17] Speaker 02:
It's spread to mainstream culture.

[00:06:18] Speaker 02:
But then the government seized on that, and they used at least

[00:06:22] Speaker 02:
a substantial portion of their closing argument, I think it's at least two pages, it comprises maybe more, to say, this is what he does.

[00:06:29] Speaker 02:
They turn to the jury and they just did a rank

[00:06:32] Speaker 02:
propensity argument, and it had nothing to do.

[00:06:34] Speaker 02:
So the LeMay factors, even if that were the law, and I don't think that it is based on the fact that it's a different statute talking about different class of victims and a different type of case, even if it was, it wouldn't, it wasn't properly applied by the district court here.

[00:06:48] Speaker 02:
It wouldn't pass.

[00:06:49] Speaker 02:
I know we had that 28-J letter about whether it was de novo, abuse of discretion, and I have some disputes about that because that, that case

[00:06:58] Speaker 02:
did say that it's still de novo review of the constitutional statute.

[00:07:02] Speaker 02:
Let's take the sidestep that and talk about even under an abuse of discretion review, the district court abutes its discretion by finding that these things are sufficiently similar when they are in fact not.

[00:07:13] Speaker 02:
When there's corroborating evidence, there's not.

[00:07:16] Speaker 02:
There's nothing that seems to meet those factors here.

[00:07:20] Speaker 02:
There's, I think, almost a half a decade difference in time.

[00:07:23] Speaker 04:
So the LeMay factors here, even if applied... So what is the standard of review on that piece of this?

[00:07:28] Speaker 04:
I understand your argument that these are two different types of incidents, but what is the standard of review in allowing the evidence in on that, over that objection?

[00:07:38] Speaker 02:
I would say it's still de novo because it's a different statute, so you can't analogize to it.

[00:07:43] Speaker 02:
But even if it was an abuse of discretion, it wouldn't satisfy the abuse of discretion standard because the facts simply don't fit the factors that are set forth in LeMay.

[00:07:57] Speaker 02:
And if the court has any other further questions, I'd want to reserve my time for a bottle, please.

[00:08:15] Speaker 00:
Good morning, Your Honors.

[00:08:16] Speaker 00:
May it please the Court, Nirav Desai for the United States.

[00:08:20] Speaker 00:
For over 20 years, circuit courts throughout the country have uniformly held that Federal Rule of Evidence 413 is facially constitutional.

[00:08:27] Speaker 03:
But this Court's never so held in a published opinion.

[00:08:30] Speaker 00:
That's correct, Your Honor.

[00:08:31] Speaker 00:
But alluding to the questions the court was asking, my friend on the other side, the reasoning of LeMay controls the outcome in this case.

[00:08:39] Speaker 03:
In LeMay, this court can- I mean, there was some discussion in LeMay of child-specific reasons.

[00:08:48] Speaker 03:
Having to do with the fact that they're particularly unlikely to be believed on their own.

[00:08:55] Speaker 03:
So you need something external to be cooperative.

[00:09:00] Speaker 03:
And maybe some speculation, although I haven't seen the evidence, that child sexual abusers are more likely to continue.

[00:09:15] Speaker 00:
Your Honor, a few points in response to that.

[00:09:17] Speaker 00:
First of all, it's Mr. Porter's burden to show facial unconstitutionality, just as it was LeMay's in that case.

[00:09:26] Speaker 00:
I would submit to this Court that Mr. Porter has come forward with even less data or evidence or case law than Mr. LeMay did in that case.

[00:09:37] Speaker 00:
In LeMay,

[00:09:38] Speaker 00:
There was an allusion to child molestation versus adult sexual assaults, but the thrust of the reasoning in LeMay was a discussion of the historical treatment of propensity evidence in the ordinary case versus sexual assault cases.

[00:09:54] Speaker 00:
The court went through the history, found that it was ambiguous, and because Mr. LeMay had the burden in that case, it found that that history

[00:10:04] Speaker 00:
came favored upholding the statute and thus turned to 403.

[00:10:07] Speaker 03:
Is there, in fact, in the congressional record, for example, or anywhere, actual evidence that people convicted of sexual crimes are more likely to repeat or to have a pattern that they can't, that's determinative?

[00:10:30] Speaker 03:
Is there any such evidence?

[00:10:33] Speaker 03:
Actual data?

[00:10:35] Speaker 00:
I can't speak definitively, but I don't believe in the congressional record there was that data.

[00:10:39] Speaker 00:
There are law review articles and other types of secondary sources outside of that that do speak to recidivism.

[00:10:45] Speaker 03:
And my understanding is they are somewhat skeptical of the notion that there's actually a difference.

[00:10:55] Speaker 00:
So the government would recognize that at the time of rules 4.13 through rule

[00:11:01] Speaker 00:
15 were passed, that they were hotly contested.

[00:11:05] Speaker 00:
And ultimately what the courts have decided is that that's the province of Congress to draft these rules, as opposed to the Supreme Court or another court drafting rules of evidence.

[00:11:19] Speaker 00:
And to that point, in LeMay, LeMay crafted the safeguard of applying 403 in a full-throated manner to

[00:11:29] Speaker 00:
decisions about whether to admit evidence in the context of Rule 414.

[00:11:33] Speaker 00:
And I would note, just as an aside, this court in United States versus Sue, footnote four, has recognized that due to the striking similarities between the rules in 413 through 415, and that they are in pari materia, that this court has followed decisions interpreting these rules individually in cases interpreting their companion statutes.

[00:11:57] Speaker 00:
And in that respect, to the court's earlier questions, to my friend on the other side, LeMay's discussion of rule of evidence for 14.

[00:12:06] Speaker 00:
is animates this court's consideration of rule 413 in this case.

[00:12:13] Speaker 04:
Do these kind of challenges depend on a record?

[00:12:15] Speaker 04:
In other words, if somebody were to argue that this rule of evidence is unconstitutional, is it different if they come forward with studies, experts, whatever they would come forward with to say, this actually is an irrational rule.

[00:12:30] Speaker 04:
We don't actually have that here.

[00:12:33] Speaker 00:
We don't, Your Honor.

[00:12:34] Speaker 00:
There is absolutely no evidence supplied by Mr. Porter in this case supporting why Rule 413 is facially invalid.

[00:12:43] Speaker 00:
What was it?

[00:12:44] Speaker 00:
Do you know in LeMay was there such evidence put forward?

[00:12:46] Speaker 00:
There was historical evidence.

[00:12:48] Speaker 00:
Because the question went to whether the rule violated fundamental conceptions of fairness, what was submitted in LeMay, from what I can glean from the opinion, was a historical record about the admission of propensity evidence

[00:13:00] Speaker 00:
when that has historically been allowed and when it has not been allowed.

[00:13:05] Speaker 00:
And on the historical record, this court recognized in LeMay that the record was mixed.

[00:13:11] Speaker 00:
There are the cases that Mr. Porter relies on today, Dowling and Spencer and McKinney, that the LeMay court considered, but also had historical records reflecting that propensity evidence had been allowed

[00:13:28] Speaker 00:
both sexual assault cases as well as under lustful disposition laws going back to the 1800s.

[00:13:34] Speaker 00:
And so that was the nature of the evidence that was supported.

[00:13:37] Speaker 03:
What about the McKinney case?

[00:13:39] Speaker 03:
Is that informative here?

[00:13:41] Speaker 00:
Only in a limited way, Judge Berzon.

[00:13:43] Speaker 00:
So McKinney does recognize in a sentence the constitutional magnitude of propensity evidence, but McKinney

[00:13:52] Speaker 00:
came out what was issued before rules 413 through 415 and also Lemay addressed McKinney in this sense.

[00:14:00] Speaker 00:
McKinney said that sometimes propensity evidence will be fundamentally unfair where it is of little relevance and the prejudicial value exceeds that probative value in an unfair manner.

[00:14:16] Speaker 00:
Lemay confronted McKinney directly and made that exact point in rejecting

[00:14:21] Speaker 00:
the appellants argument based on McKinney in that case.

[00:14:25] Speaker 04:
Can you address the application of this in this case because Mr. Porter argues that the two sets of events here are actually quite different and why don't you go ahead and give your response?

[00:14:38] Speaker 00:
Yes, Your Honor.

[00:14:39] Speaker 00:
So first I would note that Mr. Porter hasn't directly challenged the actual 403 balance that was conducted in this case.

[00:14:47] Speaker 00:
He's raised two

[00:14:48] Speaker 00:
two constitutional challenges, and his as-applied challenge goes to whether there needs to be independent corroboration during the process of evaluating whether Rule 413 evidence should come in.

[00:14:59] Speaker 00:
So the government would submit that Mr. Porter's not even attacked the 403 balance and has waived that argument.

[00:15:05] Speaker 00:
But going to the similarities, in the district court, Mr. Porter's contention was that the acts here were too dissimilar and that AH

[00:15:18] Speaker 00:
and Porter were in a consensual relationship as opposed to a sort of stranger assault situation.

[00:15:25] Speaker 00:
Those are the two arguments that he raised in the district court.

[00:15:30] Speaker 00:
And the government in the district court acknowledged that there was a difference in the nature of the relationship, that there was indeed a longer term relationship between AAH and Porter than there was in the incident involving TD and Porter.

[00:15:42] Speaker 03:
But it wasn't only the relationship.

[00:15:49] Speaker 03:
theory here was that he went in, it was the name of the victim, T.D., was that what he said?

[00:15:55] Speaker 03:
Correct, Your Honor.

[00:15:56] Speaker 03:
That he just showed up in T.D.'

[00:15:58] Speaker 03:
's chambers and was on top of him.

[00:16:01] Speaker 03:
It's not simply that they were both there and he did something that T.D.

[00:16:06] Speaker 03:
didn't like, it's that he went into the cabin unannounced and just got on top of him, right?

[00:16:15] Speaker 03:
Wasn't that the story?

[00:16:18] Speaker 00:
Yes, Your Honor, and the district court recognized the dissimilarity in terms of the single event versus a relationship.

[00:16:25] Speaker 03:
But it's not a single, it's not a question of a single event, it's a question of essentially a, you know, this didn't happen within a relationship, sexual or otherwise.

[00:16:39] Speaker 03:
It happened, I understand they knew each other vaguely, but as TD told the story, it isn't that there were

[00:16:45] Speaker 03:
in the cabin together and then this happened.

[00:16:47] Speaker 03:
It's that this guy just walked into the cabin and raped him without him even being awake when it started.

[00:16:54] Speaker 00:
That's correct, Your Honor, but what the district court focused on as well was the parallel accusations of the nature of the assaults, the biting, the choking, the physical restraint, and the

[00:17:06] Speaker 00:
anal penetration or attempted anal penetration were strikingly similar aspects of both assaults that also informed the court's analysis.

[00:17:14] Speaker 00:
And that similarity analysis also exists in the context of all the other LeMay factors that the court really did a diligent and thoughtful job of trying to balance in deciding whether or not to let this evidence in.

[00:17:28] Speaker 00:
And just taking a step back and thinking about the fairness of admitting this type of evidence, several aspects of this case speak to the guardrails that the district court put on the admission of this evidence.

[00:17:43] Speaker 00:
There's, of course, disclosure of materials to Mr. Porter pre-trial to avoid unfair surprise.

[00:17:48] Speaker 00:
There's pre-trial notice in the form of a Rule 413 notice filed by the government, which was akin to a motion in limiting.

[00:17:55] Speaker 00:
The district court held a hearing on Rule 413

[00:17:58] Speaker 00:
at which it entertained all the arguments of the parties about whether to admit this evidence, it issued a written order in order to allow for meaningful appellate review, which is what LeMay asks district courts to do.

[00:18:10] Speaker 00:
It granted the motion without prejudice to the motion being re-raised at a later time in the trial, which Mr. Porter did not re-raise.

[00:18:17] Speaker 00:
There was the opportunity to cross-examine A.H.

[00:18:19] Speaker 00:
at trial.

[00:18:21] Speaker 00:
There were jury instructions, including this court's model 2.11, which does not allow a jury to convict a defendant on the basis of that other assault.

[00:18:32] Speaker 04:
Everything you say is true.

[00:18:32] Speaker 04:
I think the implication of all this is that virtually any prior forcible sexual activity by the defendant would likely come in under this logic.

[00:18:44] Speaker 00:
I don't agree, Your Honor, with that respectfully.

[00:18:47] Speaker 00:
And one example of that is the Glanzer case, a Rule 415 case, where this court affirmed a district court's exclusion of a prior

[00:18:56] Speaker 00:
a prior sexual assault.

[00:18:58] Speaker 00:
So I think Glanzer more broadly supports the idea that district courts can be trusted to apply the LeMay factors and act as a set of guardrails or protectors of truly devastating and potential evidence from coming in.

[00:19:18] Speaker 04:
Well, I guess one thing, and this may be essentially what the defendant is arguing through

[00:19:24] Speaker 04:
Some of his arguments about the nature of the sexual activity is that some of the things that are allegedly distinctive here may not be so distinctive in terms of sexual practices.

[00:19:36] Speaker 04:
It'd be one thing if they were perhaps even more unusual, but I think what the defendant's argument is, is that these are essentially things that people engage in, and here it was forcible, and that's the argument that there's a similarity, but beyond that, some of the things we're talking about may be more common.

[00:19:50] Speaker 00:
Respectfully, Your Honor, I would push back on Mr. Porter's premise, which is that it is a

[00:19:58] Speaker 00:
That is a normal part of the LGBTQ plus community to get you unconsented.

[00:20:04] Speaker 03:
It doesn't matter whether it's normal.

[00:20:05] Speaker 03:
The question is whether it's not unusual.

[00:20:09] Speaker 00:
And the point, Your Honor, Judge Burson, that I would make is that it ignores the narrowness of the 413 evidence here, which was unconsented to choking, strangling, anal penetration, and restraint.

[00:20:23] Speaker 00:
It's not the government at no point made the argument that because Mr. Porter has certain sexual interests, that that is why a jury should convict him.

[00:20:33] Speaker 04:
Right, but the key parallel here is unconsented to.

[00:20:35] Speaker 04:
Unconsented to.

[00:20:36] Speaker 04:
And that's where my question comes back, is that if we're saying this comes in, then it seems that many, if not all prior, unconsented to sexual activity would then be relevant to the prosecution in this case.

[00:20:48] Speaker 00:
It could be potentially relevant, but there's still the 403 balance that has to look at similarity, closeness in time, frequency of the prior incidents, and other factors that a district court can consider in weighing whether to keep this evidence out.

[00:21:03] Speaker 00:
And I would push back on one other line of argument just before I run out of time that Mr. Porter raises, which is that he asserts that the government took advantage

[00:21:13] Speaker 00:
of this propensity evidence at closing argument to say this is what the defendant does.

[00:21:19] Speaker 00:
Respectfully, my friend on the other side takes that comment out of context.

[00:21:25] Speaker 00:
That phrase was the culmination of a paragraph describing an element of one of the offenses

[00:21:31] Speaker 00:
describing the alleged assault on TD by Mr. Porter, and then the last sentence is, after discussing attempted anal penetration, this is what the defendant does.

[00:21:41] Speaker 00:
That comes nine pages before any mention of AH in the closing argument, and I'd respectfully submit that these are completely disparate or divorced concepts within the closing argument, insofar as Mr. Porter wants to argue that is

[00:21:54] Speaker 00:
informative here.

[00:21:57] Speaker 03:
Did you say that the LeMay case discussed McKinney?

[00:22:02] Speaker 00:
Yes, Your Honor.

[00:22:03] Speaker 03:
Where's that?

[00:22:11] Speaker 00:
At page 1026 to 1027, Your Honor, this court said, LeMay, of course, emphasizes that McKinney held that the ban on propensity evidence is of constitutional magnitude.

[00:22:22] Speaker 00:
What he misses, however, is the fact that we held that such evidence will only sometimes violate the constitutional right to a fair trial if it is of no relevance, if its potential for prejudice far outweighs what little relevance it might have.

[00:22:39] Speaker 00:
specifically consented with the same phrase from McKinney that Mr. Porter argues to this court in his brief.

[00:22:52] Speaker 00:
My last point before I wrap up is that, with regard to the legislative history, my friend suggested that the legislative history quote unquote gutted Rule 403.

[00:23:03] Speaker 00:
Both Senator Dole and Representative Molinari both specified that the Rule 403 balance remains a part of the assessment of whether Rule 413 evidence should come in.

[00:23:16] Speaker 00:
And that has also been part and parcel of the second, seventh, eighth,

[00:23:22] Speaker 00:
tenth circuit cases that have also found 413 to be constitutional, and by analogy, LeMay.

[00:23:29] Speaker 03:
And with that, the United States— Did any of the circuit cases as to either 413 or 414 or 415 actually have a data-driven analysis

[00:23:46] Speaker 03:
It's almost an equal protection argument.

[00:23:50] Speaker 03:
If any of these address an equal protection argument, it essentially says the exception for sexual acts from the general rule is an equal protection violation, with data to show that there's really not a cognizable difference.

[00:24:05] Speaker 00:
I do not believe there's a data-driven analysis, although equal protection arguments have been rejected by the courts that have considered it.

[00:24:14] Speaker 00:
But the rules, when they were enacted in 1994, had a somewhat long history, as early as 1991, where the rules had been debated for a series of years and ultimately culminated in the passage of these three rules.

[00:24:30] Speaker 00:
But I'm not aware of a data-driven equal protection analysis, Your Honor.

[00:24:36] Speaker 00:
Unless the court has any further questions, I would ask that the court affirm the district court.

[00:24:42] Speaker 04:
Thank you, Mr. Desai.

[00:24:43] Speaker 00:
Thank you, Your Honor.

[00:24:51] Speaker 02:
Just three quick points, Your Honor.

[00:24:53] Speaker 02:
The first is, with regard to the legislative history, it came from the Seventh Circuit's case in Julian, and one of the things that the court— It comes from the legislative history.

[00:25:02] Speaker 02:
But it was cited in Julian, sorry, my bad.

[00:25:06] Speaker 02:
During that discussion, one of the things that was mentioned was that Congress had said there should be a presumption of admissibility here.

[00:25:14] Speaker 02:
And I think that's where 403 is gutted.

[00:25:16] Speaker 02:
I know Congress, when they enact a presumption, like say, for instance, in the Bail Reform Act, they also note that that's a rebuttable presumption.

[00:25:24] Speaker 02:
It can be rebutted.

[00:25:26] Speaker 02:
Congress omitted to do that here.

[00:25:28] Speaker 02:
And so I do think 403 is gutted because of that.

[00:25:31] Speaker 02:
And the government, in its 50-something pages of briefing, offers no hypothetical how that would actually function, how that would be rebutted.

[00:25:39] Speaker 02:
And my final point is just in terms of the evidence in this particular case,

[00:25:43] Speaker 02:
It wasn't something so unusual, as Your Honor's question indicated.

[00:25:48] Speaker 02:
It was just, this is just normal sexual conduct.

[00:25:51] Speaker 02:
And that was done in a two-year consensual relationship, which doesn't have bearing, doesn't meet the LeMay factors.

[00:25:58] Speaker 02:
And with that, I would say that.

[00:25:59] Speaker 02:
Oh, no.

[00:25:59] Speaker 03:
She said it was unconsensual.

[00:26:00] Speaker 03:
And that is a difference.

[00:26:01] Speaker 03:
No corroboration.

[00:26:02] Speaker 03:
Are you, in fact, challenging the application of 403 to this case?

[00:26:08] Speaker 02:
I am.

[00:26:09] Speaker 03:
Where in your brief did you challenge that?

[00:26:11] Speaker 02:
I think what I said is it can't work given the fact that there is a presumption that it would be included.

[00:26:22] Speaker 02:
And so how would you ever be able to say it's unfairly prejudicial if the courts already found that it's presumptively admissible?

[00:26:31] Speaker 03:
showing that the prerogative value was not, that the prejudice outweighed the prerogative value.

[00:26:40] Speaker 02:
I don't know how it could be when it's presumptively going to always be up late.

[00:26:44] Speaker 03:
The district judge here did go through a long written analysis of that.

[00:26:48] Speaker 02:
I did read the analysis, Your Honor.

[00:26:49] Speaker 02:
I just disagreed with the way it landed.

[00:26:51] Speaker 02:
I felt like it was overly provincial.

[00:26:54] Speaker 02:
It came from a previous time frame and didn't really contemplate the way people's sexuality is viewed today.

[00:27:00] Speaker 03:
So my question is, just as a question of what's before us, did you challenge the way in which this district court, or you're challenging it now,

[00:27:09] Speaker 03:
applied the 403B analysis, as in LeMay, for example, where there was an actual challenge to that.

[00:27:17] Speaker 02:
Yes, and I don't think I could pinpoint exactly where that is in my brief.

[00:27:20] Speaker 03:
Because I think it isn't there as the problem.

[00:27:23] Speaker 02:
I think that's the whole second section of the brief regarding Judge Kavanaugh, and I did that sort of tongue in cheek, but it was to point out that almost any allegation could come out.

[00:27:34] Speaker 02:
That congressional hearing, these allegations would have been admitted against Justice Kavanaugh.

[00:27:43] Speaker 02:
And with that, I would submit unless the court has further questions.

[00:27:47] Speaker 04:
OK.

[00:27:48] Speaker 04:
Thank you.

[00:27:48] Speaker 02:
Thanks, Your Honors.

[00:27:53] Speaker 04:
All right.

[00:27:53] Speaker 04:
That concludes the argument in our second case, which is now submitted.