[00:00:09] Speaker 01:
Good morning. May it please the court and counsel. My name is Stephen Babcock. I represent the appellant in this case, Adriano LeBeau.

[00:00:17] Speaker 01:
This is a long saga.

[00:00:21] Speaker 01:
In 2020, Mr. LeBeau was charged with two counts of aggravated sexual abuse when he was a juvenile. Ultimately, the district court in that case dismisses one of those counts based upon a Brady violation by the government.

[00:00:35] Speaker 01:
Then on the heels of that, the government voluntarily dismisses the other count and doesn't recharge that count for well over three years.

[00:00:44] Speaker 01:
In the subsequent federal prosecution in this instant case, the government files a 413 notice to use both of those two previously dismissed counts as 413 propensity evidence. We file a motion in limine essentially to exclude that evidence from The government then files a response to that backing off of the count in which they were held to violate Brady, but proceeds on the count that they voluntarily dismissed and didn't recharge for an additional three years.

[00:01:17] Speaker 02:
Counsel, the rule does not require, does it, that a passed act have resulted in a criminal charge, let alone a conviction, right?

[00:01:30] Speaker 01:
Correct. It does not, but the rule does require an analyzation of Rule 104B that what is being presented, that it's relevant if the fact exists. And in our response to the government's notice, we included the government's own investigation, where the witness in the 413 evidence, her sister, who was an eyewitness, stated as though that she was in the room.

[00:01:58] Speaker 03:
Well, she wasn't an eyewitness, in fact. I mean, she was. came into the room.

[00:02:03] Speaker 01:
And as the evidence played out in the trial, I'm sorry, excuse me.

[00:02:08] Speaker 01:
Uh, well, I would argue as though that she definitely was an eyewitness.

[00:02:12] Speaker 04:
You probably should wait for the question to be finished.

[00:02:15] Speaker 01:
I apologize profusely.

[00:02:19] Speaker 03:
She was, she was an eyewitness to the fact that the girl was there, that she was in the room, that the bow went into the room. Um, and, and then she went into the room later, but she, she couldn't have known what happened during the period she wasn't in the room.

[00:02:35] Speaker 01:
She was in the room by her own testimony and her own statements shortly after Mr. LeBeau entered into the room.

[00:02:43] Speaker 03:
And she became extremely livid about him being there, and it was very difficult to see why she would be so livid if something wasn't going on.

[00:02:51] Speaker 01:
Right. And she gave a statement to law enforcement that her sister was clothed, that Mr. LeBeau was clothed, and she kicked him out.

[00:03:00] Speaker 03:
And that's what she said then. But it's not what she said in trial.

[00:03:03] Speaker 01:
What she said in trial was that Mr. LeBeau was clothed as that for the very first time after multiple interviews and multiple years.

[00:03:13] Speaker 02:
Now that Mr. LeBeau was on top of her and the government's even backed off from that in their own briefing, because in all of that was a subject that was could have been and was raised at trial that the credibility question. I mean, that.

[00:03:30] Speaker 02:
that was available and used.

[00:03:35] Speaker 02:
So I guess I have a great difficulty seeing what difference it would make to say in the face of these conflicts in testimony, what would it have even added to say there was no criminal charge brought?

[00:03:58] Speaker 01:
I believe as though that the reason why that it matters on why there was no criminal charge brought was the government themselves on their own volition dismissed that. There was no way.

[00:04:11] Speaker 03:
First of all, as the district court said, there are many reasons one could dismiss a criminal charge. So was your position that you would have been able to prove that the reason they dropped it was because they thought that there wasn't what? They couldn't prove it beyond... a reasonable doubt, but that isn't the standard at this point even then, so it's not very useful for that purpose. In other words, even if it were relevant, which I don't know that it is, that they thought they couldn't prove it then beyond a reasonable doubt, now they don't have to prove it beyond a reasonable doubt.

[00:04:49] Speaker 01:
No, they do not have to prove it beyond a reasonable doubt.

[00:04:52] Speaker 03:
And not only that, it's all the state of mind of the government, what the government thought of the evidence. Why is that pertinent at this point?

[00:05:00] Speaker 01:
Oh, it's pertinent at this point because the statements that were made in the 413 testimony should have been gone through an analysis on whether or not they were reliable, but they weren't. And the district court itself did not rely upon the 413 evidence, even though the government argued it big time, at the time, as sentencing. So at sentencing, where you go into the whole world of relevant conduct and all sorts of matters come in, the district court specifically stated that it was not going to rely upon the 413 evidence when imposing sentence.

[00:05:37] Speaker 01:
However, without even going through a test of reliability, it was able to be heavily used by the government during the trial.

[00:05:46] Speaker 02:
And it was heavily questioned.

[00:05:50] Speaker 02:
The credibility of it was questioned.

[00:05:53] Speaker 01:
It was questioned, but it's highly prejudicial if unreliable evidence comes in of allegations of previous sexual abuse.

[00:06:01] Speaker 03:
How would you make this reliability determination? We know from the case law that you don't have to have a hearing, right? You said you wanted to have a hearing, but the case law says definitively, Huddleston, you don't need to have a hearing. So if you don't need to have a hearing, how would you prove the reliability of that? When you have a witness who is testifying that this is what happened, you're going to make credibility determinations? What are you going to do?

[00:06:25] Speaker 01:
Well, I think so that that is certainly something that should have been outside the purview of the jury. And Rule 104B states that a hearing should happen if justice entails. And that was not done.

[00:06:36] Speaker 04:
You asked for one? No. You didn't ask for one, correct?

[00:06:39] Speaker 01:
I did not. I did not ask for one, which I would have. Didn't ask for one. But it also states as though that justice entails. And in this particular case, justice did so entail because there was a statement made by the sister, quote unquote, my sister wasn't raped.

[00:06:56] Speaker 03:
But the witness, the sister said she was raped.

[00:07:02] Speaker 03:
So therefore, it's a question of who was truthful.

[00:07:07] Speaker 01:
Well, the sister said that she believes that she was raped. that it was blurry, that it was foggy, that she couldn't really remember. And these are all the same things that the district court relied upon when not using that 413 evidence when imposing sentence on this case.

[00:07:24] Speaker 02:
I want to go back to the relevance of the matter because suppose the DA or the U.S. attorney or the relevant prosecutor had come in and said, well...

[00:07:40] Speaker 02:
I believed that I could easily prove this by a preponderance of the evidence, but I had doubt as to whether I could prove it beyond a reasonable doubt.

[00:07:52] Speaker 02:
I mean, that is quite likely what was going through someone's mind. So how is that relevant? How is it helpful?

[00:08:03] Speaker 01:
If I can backtrack a little bit on how most of these 413 evidence evidence claims come into play. And most of the time, and I've tried many of these aggravated assault cases, and the government will file the 413 notice and you'll get police reports from six or seven years ago. And there was no charges brought, there was no convictions brought, nothing. So you're at least at the very able as a defense attorney to be able to cross-examine that agent during trial that this was reported years ago, correct?

[00:08:37] Speaker 01:
And no charges were brought, correct? We tried to even cross-examine the agent in this case, and the district court struck it down and said it wasn't relevant, which flies in the face of the district court's reasoning in going through the 413 analysis, the LeMay factors set forth by the Ninth Circuit, the intervening circumstance. The district court completely said that the fact that the case was moved for dismissal and it was dismissed was relevant.

[00:09:09] Speaker 01:
And then at trial, using the same rules of evidence, 104B, 413, 403, the district court said it wasn't relevant.

[00:09:19] Speaker 01:
And then the district court once again stated that they weren't going to rely upon that imposing sentence. And it was highly prejudicial in this particular case and certainly not harmless because the way that the government leaned into that evidence in closing argument. They said it was frosting evidence. It was bonus evidence. It broke the tie. Well, if there's a tie in a criminal case, the defense wins. The standard is beyond a reasonable truth.

[00:09:48] Speaker 04:
Was the jury ever told that the defendant was arrested or charged for the prior act?

[00:09:57] Speaker 01:
No. Couldn't have been.

[00:09:59] Speaker 04:
So you would have been introducing evidence that there was a charge and then dismissed.

[00:10:05] Speaker 01:
Correct.

[00:10:05] Speaker 04:
So... That so in a sense there, because the jury was never told that there was a charge, was there any need to say that it was dismissed?

[00:10:14] Speaker 01:
Yeah, I believe as though that there was a need to say that it was dismissed because that was a move that was made voluntarily by the government.

[00:10:21] Speaker 04:
But they never found out it was charged.

[00:10:23] Speaker 01:
No, they did not find out that he was charged. However, however, at least the fact as the Dowling case that was relied upon heavily by the government during the argument at trial, which they backed off on now. when they used acquitted conduct as 404B evidence, at the very least in that case, the district court said multiple times that, two times, don't want to get ahead of myself, two times they said as though that he was acquitted of that conduct.

[00:10:53] Speaker 04:
And once again, as I'm stating... In that case, there was evidence of a charge to begin with, correct?

[00:10:58] Speaker 01:
There was evidence of a charge to be done with.

[00:11:01] Speaker 04:
This is different.

[00:11:02] Speaker 03:
What would you have done? Would you have put the agents on the stand and asked them why they dropped it?

[00:11:08] Speaker 01:
I couldn't. The district court wouldn't allow me.

[00:11:10] Speaker 03:
If they had allowed you. If he had allowed it.

[00:11:12] Speaker 01:
Yes.

[00:11:13] Speaker 03:
If he had allowed the dismissal in, would you just leave that? If you leave the dismissal without an explanation, it seems to me the relevance is extremely flimsy because there are all kinds of reasons that cases get dropped, right? In other words, it could have gotten dropped because they were too busy that day. We don't know.

[00:11:37] Speaker 01:
Well, we know why.

[00:11:38] Speaker 03:
Excuse me.

[00:11:39] Speaker 01:
Excuse me.

[00:11:41] Speaker 03:
So you would have to establish why it was dropped and for it to be permanent, wouldn't you?

[00:11:47] Speaker 01:
No, I think there could have been a curative instruction like there was in the Dowling case, merely stating as though that he was acquitted of that charge. In this particular case, you could have said that the case was dismissed. And it wasn't a secret why the case was dismissed.

[00:12:00] Speaker 03:
But the difference between an acquittal and a dismissal is that an acquittal is a determination of something determinative, i.e. this case, it wasn't proven to us beyond a reasonable doubt that he did this. A dismissal can be all kinds of things. So unless you establish that it has something to do with the nature of the evidence, and then you still have the preponderance reasonable doubt problem, you don't have anything. There's nothing relevant to

[00:12:29] Speaker 01:
Believe that it's relevant because it can certainly be perceived as going to the credibility of the unreliable testimony.

[00:12:36] Speaker 03:
But you'd have to bring that out. Otherwise, it could have been that they were busy that day.

[00:12:43] Speaker 01:
The district court knew the reason why the case was dismissed. And that was because.

[00:12:49] Speaker 03:
That isn't the question. The question is what would the trial have looked like?

[00:12:52] Speaker 01:
The trial would have looked like at least we would have been able to stand up and combat that in closing argument. and said that evidence that you're using is frosting evidence, that you're using is bonus evidence, that you're using to break the tie. That was originally a charge that the United States Attorney's Office had. They dismissed it, and for three years they never recharged it.

[00:13:14] Speaker 03:
And I believe this... And what, unless you establish that they dismissed it for a reason related to the quality of the evidence?

[00:13:25] Speaker 01:
The reason why that the district court stated that it was dismissed was, of course, the companion, the sister case with it was dismissed because of Brady violations. And then right after that, they didn't want to charge this case. So there certainly should have at least been a determination of reliability.

[00:13:45] Speaker 01:
And I see that I've gone over my time. Thank you very much.

[00:14:09] Speaker 00:
Good morning, Your Honors. May it please the Court. Kelsey Sable from the District of Montana on behalf of the United States. The District Court did not abuse its discretion by admitting Jane Doe One's testimony at trial and denying the motion to introduce evidence that the case charging the conduct against Jane Doe was dismissed. The District Court correctly, in following the United States Supreme Court case in Huddleston v. United States, left the determination of Jane Doe One's credibility and the fact finding on the prior sexual assault to the jury.

[00:14:40] Speaker 00:
As the district court correctly noted in its order, the question for the court is whether there is evidence sufficient for the jury as the fact finder to determine that the sexual assault against Jane Doe One occurred by a preponderance of the evidence. The court does not itself weigh the evidence or weigh the witness's credibility or find that the government proved that conditional fact by a preponderance of the evidence before it admits the evidence at trial.

[00:15:10] Speaker 00:
And Jane Doe One's memory was always that she woke up with Mr. LeBeau inside of her. She was consistent in that statement throughout her interviews with law enforcement and her testimony at trial. She only stated that she was not assaulted based on what her sister, A.M.B., told her based on A.M.B. 's involvement that night. And Mr. LeBeau's argument to the district court for excluding that evidence was that A.M.B., you know, we must believe A.M.B., and A.M.B. said this did not happen, and we must believe A.M.B., so we cannot believe Jane Doe won.

[00:15:45] Speaker 00:
But A.M.B. 's statement was also consistent the entire time, that she was not in the room the entire time, that he was in there before she was, She said to law enforcement that it was a minute or a couple of minutes, but she also said that she was drinking that night as well as Jane Doe One. She insisted that she was not drunk, but her memory of that time that he was in the room without her is certainly susceptible to impeachment or could be inaccurate.

[00:16:19] Speaker 00:
I would also note that Jane Doe did not initially disclose the sexual assault. It was several months after the event that she disclosed, and it was several months after her disclosure that AMB was interviewed. So there was no reason for AMB to fix this event in her mind or make it notable before all of this came out and before she was interviewed.

[00:16:45] Speaker 00:
And with respect to the evidence related to the charge against Jane Doe 1. You know, the district court was correct in its order and in its discussion at the sidebar when this came up at trial that evidence that the charge of the conduct against Jane Doe 1, evidence that that was dismissed was irrelevant to whether Jane Doe 1 was credible or whether that sexual assault actually occurred. I mean, as this court has noted.

[00:17:13] Speaker 03:
Did the judge also make a 403 ruling?

[00:17:16] Speaker 03:
With regard to the Jane Doe evidence?

[00:17:18] Speaker 00:
Yes, Your Honor. The district court's order was incredibly thorough and went through all of the LeMay factors and analyzed each of those factors and determined that the evidence was not more prejudicial than probative. And the district court's analysis was thorough. It was detailed.

[00:17:36] Speaker 03:
So we don't really have to decide that it was not probative at all?

[00:17:44] Speaker 00:
No, Your Honor. I mean, I... I think the district court, you know, this court has consistently affirmed that the district court has wide latitude to evaluate the admissibility of evidence and weigh the prejudice of evidence against the probative value.

[00:18:00] Speaker 02:
So presumably we could assume that the evidence met the relevance threshold and simply, from your perspective anyway, affirm on the ground that There was appropriate 403 balancing about confusion and so on and so forth.

[00:18:23] Speaker 00:
Yes, Your Honor. And I apologize. I believe I misunderstood your question, Judge Berzamba. With respect to the evidence, my answer is the same. Yes, I think that's right. I would say that I think that the district court was correct that that evidence was not probative at all. But I would agree that even if this court were to find that the evidence of the case dismissal had some limited probative value, this court could also find that the district court was correct in its analysis that the prejudice or the risk of confusion and misleading the jury outweighed that limited probative value.

[00:18:58] Speaker 03:
And that it would have somehow you would have had to try – you would have had a whole side trial on why it was dropped because it would matter why it was dropped.

[00:19:11] Speaker 03:
I think that's right, but I don't know that we – And that's what the district court said, actually, is what do we do if we let it in? Do we then ask the agent why it dropped and why do we do that?

[00:19:22] Speaker 00:
I think that's correct, Your Honor, but I don't know that we actually could have practically – fully explored that or fleshed that out. I think Mr. LeBeau's argument is necessarily that this evidence is relevant because it shows, this dismissal shows, that the government did not believe Jane Doe won or did not think that this sexual assault actually happened.

[00:19:45] Speaker 03:
And one response to all that is it doesn't matter what the government thought, right?

[00:19:49] Speaker 00:
Absolutely correct. My response to that is it doesn't matter what the government thought. Under Huddleston, that determination is up to the jury. And my other response to that would be we could not rebut that argument or that inference without vouching for Jane Doe. I mean, the agent, I don't believe it would be appropriate for the agent to testify, no, I actually did believe her or the government believed her or we thought this actually did happen. I think that's vouching and it's inappropriate. So it leaves that implication, that inaccurate implication there.

[00:20:22] Speaker 00:
in front of the jury. And so I don't think that that's, I don't think there's a way to present that evidence, even if it does have some scant probative value that doesn't mislead or confuse the jury. It's up to the jury to determine whether this assault happened and what weight, if any, you know, that bears on its decision with respect to the charged offenses.

[00:20:44] Speaker 03:
Now, both of these witnesses, the prior contact witness and Jane Doe and the The witness in the current case were extremely vague about what had actually happened. But, I mean, so in terms of the adequacy of the evidence for the conviction, I mean, I guess the ultimate answer is it's up to the jury. But the victim in this case, you know, just fell apart completely in cross-examinations and didn't know anything.

[00:21:23] Speaker 03:
Does that make any difference in terms of the substantial evidence inquiry?

[00:21:28] Speaker 00:
Well, I don't know that I would necessarily agree with that respectfully, Judge Berzani. She was very intoxicated that night. Nobody's disputing that. So I think her memory was certainly blurry and fuzzy, but she was absolutely clear.

[00:21:42] Speaker 03:
Well, she was clear in her direct examination. She apparently had been well prepared. And then as soon as she was cross-examined, she said, I don't know, I don't know, I don't know, I don't remember anything, I don't remember anything.

[00:21:52] Speaker 00:
she had some difficulties with her memory on some details of that night, you know, where she was, whether there was some dispute about whether she was in the car when they went down to the basement, whether she was in the house when she went down to the basement. There were some parts of that night she did not remember, but she was absolutely clear both on direct and on cross that she went down into the basement because she thought that the cops were coming or he said something about the cops. and that she blacked out, and that when she came to, she had a knife against her neck, and he was inside of her raping her.

[00:22:24] Speaker 00:
She was absolutely consistent about that the entire time, and she was consistent about that not only in her statements at trial, but in her prior consistent statements to numerous other witnesses that testified to those statements by her at trial. She made initial disclosures to her friend Ben, who testified at trial, and his testimony was consistent with her testimony that she called him the next morning, hysterical, crying, upset, and he took her to Indian Health Services for a rape kit.

[00:22:55] Speaker 00:
Her mom testified at trial consistent with the victim's testimony that she called her mom and told her what happened. Her mom testified she was also hysterical and crying and reported that Mr. LeBeau had raped her with a knife. She made consistent disclosures to the SANE nurse, to the first Bureau of Indian Affairs officer that interviewed her at IHS, and to the FBI that ultimately interviewed her a couple of days later. There was also the SANE nurse who testified.

[00:23:27] Speaker 00:
She testified to the victim's demeanor during the SANE exam, which was, Arguably, the jury could have determined consistent with somebody who'd experienced trauma. Agent Wall with the FBI testified similarly. The SANE nurse also testified as well as Agent Wall. I believe that they both observed bruising on her neck. That may well the jury could have determined been consistent with having a knife held against her neck during the assault. So there was some significant corroborative evidence here. You know, and this court has continually held that it will only reverse for insufficient evidence if no rational fact finder could have found the essential elements beyond a reasonable doubt.

[00:24:08] Speaker 00:
And in the government's view, there's more than sufficient evidence for that here, even if we discount the 413 evidence.

[00:24:19] Speaker 00:
And if the court has no further questions on these issues or the others that were raised, I'll cede the rest of my time.

[00:24:28] Speaker 00:
Thank you, Your Honors.

[00:24:39] Speaker 01:
Thank you. I would respectfully disagree that the 413 evidence wasn't highly important in convicting Mr. LeBeau based upon the, I would say, is inconsistent fogging memory from P.S., the victim in this case. I do not believe there was sufficient evidence for a conviction on this case without the 413 evidence, which we continue to state was unreliable and didn't go through the proper process that should have happened. But if you take a look at P.S., the victim in this case, the individuals that testified, not only did she completely fall apart on cross, she wouldn't answer anything.

[00:25:21] Speaker 01:
And then additionally, you had the people that were at the house that night that completely rebutted many of her statements about how she got into the house, about when she arrived at the house, about how she was interacting with Mr. LeBeau, about how she acted after this supposed violent rape when the owner of the home said that she saw right afterwards and she was laughing. And next thing you know, she was trying to sleep in the owner of the house's bed. At no time did she tell anybody at any point as though that, hey, you know, just a little bit ago, somebody had a knife against my throat and it was him.

[00:26:00] Speaker 01:
So by acknowledging that and knowing it was a close case, the 413 evidence was relied upon heavily by the government.

[00:26:08] Speaker 04:
So we understand your argument. Do you I think your time is up.

[00:26:11] Speaker 01:
Thank you. Thank you very much, Your Honors.

[00:26:12] Speaker 04:
Okay, last we have McCulloch versus Bizignano.