[00:00:00] Speaker 04: Take that case under advisement. [00:00:09] Speaker 04: The next case on the calendar is United States of America versus Baker 25-1050. [00:00:38] Speaker 00: And good afternoon, everyone. [00:00:40] Speaker 00: My name is Jesse. [00:00:43] Speaker 04: Hold on. [00:00:43] Speaker 04: There's going to be a lot of background noise until the post and council gets seated and we're ready to go. [00:00:48] Speaker 04: So just give us one minute, please. [00:00:54] Speaker 04: Okay. [00:00:54] Speaker 04: I think we're all ready. [00:00:56] Speaker 00: Good afternoon. [00:00:56] Speaker 00: My name is Jesse Cantor and I represent Mr. Baker. [00:00:59] Speaker 00: And I want to take things a little out of order for this hearing. [00:01:04] Speaker 00: Start with the confrontation violation first before I get into the 413 issue however you want to do is just fine, okay? [00:01:11] Speaker 00: So starting with the confrontation violation to avoid a confrontation violation The witness first needs to have personal knowledge What he is about to testify and this is going to be detective spence? [00:01:27] Speaker 00: and absent that and then there needs to be a [00:01:29] Speaker 00: a sufficient foundation to establish an independent recollection based on refreshing memory. [00:01:34] Speaker 00: And that's the part that we have a problem with in this particular case. [00:01:37] Speaker 00: That's what our record lacks. [00:01:38] Speaker 00: Why? [00:01:39] Speaker 00: Because in this particular case, Detective Spence, first of all, testified that he didn't really have any recollection of this event prior to. [00:01:48] Speaker 04: Well, that's not really what he said. [00:01:50] Speaker 00: He said he was present. [00:01:51] Speaker 04: He said he was present. [00:01:52] Speaker 04: He remembered the event, I think, quite generally. [00:01:54] Speaker 04: And then he needed to refresh his recollection from the report. [00:01:57] Speaker 00: Which he did not author, right? [00:01:59] Speaker 00: Right. [00:01:59] Speaker 00: Prior to being in contact, he testified that this case wasn't even on his mind. [00:02:03] Speaker 02: Well, but he testified to several things. [00:02:06] Speaker 02: He said initially, you know, I don't remember this. [00:02:09] Speaker 02: I remember generally. [00:02:10] Speaker 02: I remember some stuff about it, but not specifics. [00:02:15] Speaker 02: And then he said after reading this report, it refreshes my recollection. [00:02:20] Speaker 02: And the trial judge said, okay, I believe you. [00:02:24] Speaker 02: You can cross-examine him and attack his credibility, but I think he's now testifying from his recollection as refreshed by the report. [00:02:34] Speaker 02: So is your contention that the trial judge clearly erred in making that determination, or is there a legal argument that's separate from that? [00:02:46] Speaker 00: Well, the record does not have Detective Spence testify that his [00:02:51] Speaker 00: recollection was refreshed. [00:02:52] Speaker 00: What he says is that after seeing the report, he says, quote, part of it after reviewing the report were familiar to me. [00:03:01] Speaker 00: And then counsel on the direct examination states, well, let's walk through that report. [00:03:07] Speaker 00: But there was never an instance, as far as I can tell from the record, where Detective Spence testified, OK, now after reviewing this report, my recollection [00:03:17] Speaker 00: has been refreshed. [00:03:18] Speaker 02: Does he have to remember everything that occurred at the time? [00:03:22] Speaker 02: Does everything in the report have to be familiar to him, or is it enough that reading the report refreshes his recollection? [00:03:29] Speaker 00: What has to be established for Sufficient Foundation for 612 is that what he's about to testify to has to be based on an independent recollection as opposed to him testifying [00:03:40] Speaker 00: to the contents of the report, which is what we are arguing he did, versus testifying based on an argument. [00:03:47] Speaker 02: Well, let me separate your argument here, because this is why I asked the question. [00:03:52] Speaker 02: You started with a confrontation clause argument. [00:03:55] Speaker 02: Yes. [00:03:56] Speaker 02: And now you're making a 612 argument. [00:03:58] Speaker 02: And by the way, I'm not sure it's 612. [00:04:00] Speaker 02: I think you're really talking about 602, because 612 talks about your rights to use the document. [00:04:09] Speaker 02: refreshes somebody's recollection, but put that aside. [00:04:14] Speaker 02: I'm focusing now on the confrontation clause argument. [00:04:19] Speaker 02: If he's giving his own testimony based on what he now remembers having looked at the document, why is that a confrontation clause problem? [00:04:31] Speaker 00: Because if there's an insufficient record to establish independent recollection, [00:04:38] Speaker 00: then we are now diving into what Smith v. Arizona holds, which is if you don't have that independent recollection and you testify to the contents of a report, that's the confrontation violation. [00:04:50] Speaker 02: Right, so I'm trying to focus now on, and I'm familiar with the Arizona case, I'm trying to focus now on how much you must remember to refresh your recollection to avoid a confrontation clause violation. [00:05:06] Speaker 02: Not a rule 602 violation, but a confrontation clause violation. [00:05:11] Speaker 00: The standard, as I read it, is you have to have an independent recollection. [00:05:15] Speaker 04: Well, he remembered being there. [00:05:16] Speaker 04: He said, I don't remember verbatim. [00:05:18] Speaker 04: The jury got to hear, because your client was exercising his right to cause examination, that he didn't remember verbatim, that he hadn't authored the report. [00:05:27] Speaker 04: How was your client denied his right to confrontation? [00:05:33] Speaker 00: Because Detective Spence testified based on [00:05:36] Speaker 00: without first establishing what parts were familiar to him. [00:05:40] Speaker 04: So I guess we're both sort of continuing to speak in generalizations. [00:05:48] Speaker 04: What's your base case law for the proposition that this wasn't enough? [00:05:51] Speaker 04: We've never said in order to refresh your recollection, you have to be able to say, ah, it all comes back to me now like it was yesterday. [00:05:59] Speaker 04: So how much is enough? [00:06:03] Speaker 00: what would be enough would be if there was confirmation from the witness to testify that, yes, that interview and what Mr. Baker said, because he was tough. [00:06:13] Speaker 04: What's your best case law? [00:06:14] Speaker 04: What's your best case law that draws that line for us? [00:06:16] Speaker 00: Well, it comes back to Smith v. Arizona. [00:06:18] Speaker 00: All right. [00:06:19] Speaker 00: Right. [00:06:19] Speaker 00: I mean, with these evidentiary issues, it's really hard to find a case exactly on point. [00:06:25] Speaker 00: Really, the question here, the error here that we are arguing, is that Detective Spence did not have that sufficient [00:06:33] Speaker 00: independent recollection, based on what he testified to, which is I just remember gists of what was, or I just remember parts of it were familiar, but then there was never any follow-up. [00:06:43] Speaker 00: Okay, well, let's now dive into the parts that were familiar. [00:06:46] Speaker 04: So that takes me back to how your client's right to confront was denied, but I'm not sure if there's more that you have to say about this, given that you've pointed out the case law that you want to rely upon. [00:06:56] Speaker 00: Yes. [00:06:56] Speaker 04: Are there other parts of your argument you'd like to? [00:06:58] Speaker 00: Yeah, so then that dives into, or moves into the 413 error. [00:07:02] Speaker 00: And the trial judge allowed SC, who was the witness to establish the 413 evidence from 2004, allowed her to testify based on the judge making a finding that her testimony was relevant due to propensity. [00:07:20] Speaker 00: That was the relevancy ruling. [00:07:23] Speaker 00: And the error that we are arguing is that a one-time single event from 2004, 20 years prior, [00:07:33] Speaker 00: is inadequate and insufficient to establish propensity. [00:07:36] Speaker 04: Well, it's remarkably similar modus operandi. [00:07:40] Speaker 04: And maybe we could start with the standard of review here. [00:07:44] Speaker 00: So the standard of review for that is this an evidentiary issue with respect to admissibility. [00:07:50] Speaker 00: That's abuse of discretion. [00:07:51] Speaker 04: Right. [00:07:51] Speaker 04: How did the court abuse this discretion here? [00:07:55] Speaker 00: Because when we look at the proximity [00:07:58] Speaker 00: What the judge ruled with respect to proximity. [00:08:02] Speaker 04: Are we talking about proximity and time or proximity? [00:08:05] Speaker 04: Are you talking about the humans involved or are you talking about the? [00:08:08] Speaker 00: Proximity and time, like when this 413 evidence occurred. [00:08:11] Speaker 00: I mean, the court had to go through the LeMay factors that we outlined. [00:08:15] Speaker 00: And I just wrote this down as my paraphrase of what the judge ruled, but he stated that the age of the prior act weighs in favor of admissibility and neutral on the issue of admissibility. [00:08:29] Speaker 00: And that, Your Honor, would stretch the meaning of proximity. [00:08:34] Speaker 04: I think there's room to disagree on those factors. [00:08:36] Speaker 04: But how is there room to disagree about abuse of discretion? [00:08:39] Speaker 00: Well, OK, maybe I can address that by way of an analogy. [00:08:42] Speaker 04: All right. [00:08:42] Speaker 00: OK, here's an analogy. [00:08:44] Speaker 00: If you commit a traffic violation, you get one speeding ticket in your life from 20 years ago, one speeding ticket. [00:08:52] Speaker 00: Does that now mean you have, 20 years later, a propensity to speed? [00:08:57] Speaker 00: or propensity to commit traffic violations. [00:09:01] Speaker 02: But are we dealing with a different weighting under Rule 413? [00:09:04] Speaker 02: 413, our case law says, evidence of a sexual assault can be admitted in order to show a propensity. [00:09:16] Speaker 02: What you seem to be saying is that in this case, it was so distant in time that under maybe Rule 403, it should have been excluded. [00:09:25] Speaker 02: But I don't understand the Rule 413 argument. [00:09:29] Speaker 02: The Rule 413 argument makes this kind of conviction admissible to show propensity. [00:09:36] Speaker 02: What you seem to be saying is, well, but its prejudicial value outweighs its probative value because it was so long ago. [00:09:43] Speaker 02: I understand that argument, but I don't understand the argument that the judge erred in finding that the prior conviction could be used to show propensity. [00:09:53] Speaker 00: To address that question, Your Honor, is we have to then understand what propensity means. [00:09:58] Speaker 00: And propensity is a pattern. [00:10:01] Speaker 00: It's a pattern of conduct. [00:10:02] Speaker 00: It's a natural tendency. [00:10:04] Speaker 04: But Congress knew that. [00:10:05] Speaker 04: And Congress adopted this rule in 413, and it doesn't have a time limit on it. [00:10:09] Speaker 00: There's no time limit, but at least there has to be some kind of pattern. [00:10:12] Speaker 00: And our argument is that. [00:10:14] Speaker 00: But where does it say it has to be a pattern? [00:10:16] Speaker 00: Well, that's the definition of propensity. [00:10:18] Speaker 00: There has to be some natural tendency. [00:10:20] Speaker 01: Would your argument be different if there were [00:10:23] Speaker 01: The same time period had elapsed, but there were three incidents that occurred 25 years ago. [00:10:30] Speaker 00: Yes. [00:10:30] Speaker 01: So then your argument isn't based on the temporal distance. [00:10:34] Speaker 01: It is that there aren't more events that are meeting the definition of penitentiary. [00:10:40] Speaker 00: Temporal is one part. [00:10:41] Speaker 00: But then again, if we look at all the factors that are used to determine whether or not this was prejudicial, for example, [00:10:49] Speaker 00: a pattern, which is part of the LeMay factor. [00:10:51] Speaker 00: So if there were more than one event, certainly I'd have a different argument. [00:10:55] Speaker 00: If there was an interviewing event. [00:10:57] Speaker 02: That's a Rule 403 argument, I think. [00:10:59] Speaker 00: That is, yes. [00:10:59] Speaker 02: And it may be well taken. [00:11:01] Speaker 02: I'm just trying to get you to focus on why you think the prejudicial impact of this testimony outweighs any probative value. [00:11:11] Speaker 02: I'm having a harder time understanding your argument that a single incident can't be used to show propensity because that's precisely what the rule says. [00:11:22] Speaker 00: Okay. [00:11:23] Speaker 00: Well, I think your first part of the question was how does the prejudicial impact outweigh the probative value? [00:11:31] Speaker 00: That's right. [00:11:31] Speaker 02: Tell me why that is. [00:11:34] Speaker 00: This type of testimony is unduly prejudicial because we're talking about testimony of a sexual assault against a minor from 20 years ago. [00:11:41] Speaker 00: and inherently that has to be prejudicial because this is a sexual contact. [00:11:48] Speaker 04: It's unfairly prejudicial. [00:11:49] Speaker 00: It's unfairly prejudicial because of how long ago it was. [00:11:52] Speaker 00: Again, this was something that happened before. [00:11:54] Speaker 02: Let me change the facts. [00:11:55] Speaker 02: I'm sorry. [00:11:56] Speaker 02: It's the remote. [00:11:57] Speaker 02: So finish saying what you're saying now. [00:12:00] Speaker 00: I'm sorry. [00:12:00] Speaker 00: I missed that last part. [00:12:01] Speaker 00: I'm sorry. [00:12:01] Speaker 02: I'm sorry to speak over you. [00:12:03] Speaker 02: It's the difficulty of doing this remotely. [00:12:07] Speaker 02: But let me ask. [00:12:08] Speaker 02: Let's assume that the incident had been precisely the same. [00:12:12] Speaker 02: 20 years ago on an airplane, everything exactly the same. [00:12:17] Speaker 02: Would you still argue that its age made it inadmissible? [00:12:22] Speaker 00: Looking at the LeMay factors, I would argue that the only factor that applies would be similarity. [00:12:26] Speaker 00: But you still have to consider the other four factors, pattern, intervening events. [00:12:33] Speaker 00: You have to consider necessity. [00:12:37] Speaker 00: And there was a... I think your answer to my question is yes. [00:12:41] Speaker 00: Yes, I wouldn't make that argument. [00:12:43] Speaker 00: I wouldn't make that argument. [00:12:45] Speaker 00: In temporal proximity, if there was some event that was similar closer in time or if, say, Mr. Baker 20 years ago was sent to prison for that first event and then was in prison for [00:12:57] Speaker 00: you know, a decade or so, then it would be an easier argument to make that it was more probative than prejudicial. [00:13:04] Speaker 04: What about the fact that the conduct isn't disputed? [00:13:07] Speaker 04: It's not denied. [00:13:08] Speaker 04: He didn't deny that he acted this way on this occasion. [00:13:11] Speaker 04: He just disputes whether it was consensual. [00:13:15] Speaker 00: I disagree with that because, again, that testimony came from a witness who we are, again, arguing had inadequate recollection. [00:13:21] Speaker 04: I'm talking about the victim in this case. [00:13:23] Speaker 04: He doesn't deny acting the way she accused him of acting on the plane, does he? [00:13:27] Speaker 00: Oh, I thought you meant the 413 witness. [00:13:30] Speaker 04: Well, your concern is about propensity. [00:13:32] Speaker 04: What I'm trying to point out is the conduct in this case isn't even disputed. [00:13:35] Speaker 00: The conduct is not. [00:13:36] Speaker 00: The only issue for the jury on this case was consent. [00:13:39] Speaker 00: Yes. [00:13:40] Speaker 00: Yes. [00:13:41] Speaker 00: So I see I got two minutes. [00:13:43] Speaker 00: I would prefer to keep that for rebuttal, Your Honor. [00:13:47] Speaker 00: Certainly. [00:13:47] Speaker 00: Thank you. [00:13:57] Speaker 03: Good afternoon, Your Honors, and may it please the Court. [00:14:00] Speaker 03: Carolyn Forstein for the United States. [00:14:03] Speaker 03: Unless the Court would prefer otherwise, I'll take the issues in the same order that the appellant did. [00:14:07] Speaker 04: Well, can I just focus you on my issue? [00:14:09] Speaker 04: Sure. [00:14:10] Speaker 04: For this particular case, 20 years is a long time, counsel. [00:14:14] Speaker 04: Want to talk about that? [00:14:16] Speaker 03: Yes, Your Honor. [00:14:17] Speaker 03: Agreed that 20 years is a long time, but I think it's squarely in line with the amount of time that other cases have said is permissible, and I think [00:14:25] Speaker 03: to take the point that the court I think articulated before, it really is a totality of the circumstances analysis that the courts described in Glanzer and LeMay. [00:14:34] Speaker 03: So I think while we can talk about each individual factor, it's the district court's analysis of all the factors together. [00:14:40] Speaker 03: And I would again point that especially on an abuse of discretion standard, I think we can clearly see that the district court considered each of those factors and balanced them against each other. [00:14:51] Speaker 03: And to Your Honor's specific question about the 20 years, I would point this court to Medicine Horse, where there was two assaults from 45 and 50 years prior. [00:15:01] Speaker 03: And the court there still said that that was permissible. [00:15:04] Speaker 04: How important was this evidence of this prior assault to the government's case here? [00:15:10] Speaker 03: I think it was certainly helpful, which is the standard under LIME for necessity in the context of a Rule 413 and Rule 403 balancing test. [00:15:19] Speaker 03: Here, as Your Honor pointed out, the issue was consent, and there was no witness that could corroborate whether or not the victim had or hadn't consented to the conduct. [00:15:29] Speaker 03: It was entirely dependent on her testimony, and so with respect to that, having the 413 victim testify about what had happened to her was meaningful corroboration for the victim in that particular case. [00:15:41] Speaker 04: Yes, but if you hadn't had it, you'd still have the same he said, she said about the two individuals on this airplane. [00:15:47] Speaker 04: I would agree. [00:15:48] Speaker 04: I heard that. [00:15:48] Speaker 04: They heard both accounts. [00:15:52] Speaker 03: Yes, your honor. [00:15:52] Speaker 03: I agree. [00:15:53] Speaker 02: Do you at least think that the judge may have overstated the difficulty with the lack of contemporaneousness here? [00:16:06] Speaker 02: I mean, it may well be that balancing all the factors, the judge didn't abuse his discretion, and it may well be that there are cases that find incidents this old to be [00:16:17] Speaker 02: admissible, but I'm having a hard time thinking that the time period cuts in favor of admissible. [00:16:27] Speaker 03: I appreciate that, Your Honor. [00:16:28] Speaker 03: If I recall correctly, the district court said that it either cuts in favor of the government or is neutral. [00:16:33] Speaker 03: And perhaps neutrality would have been a better way to come out on that factor, but I don't think that it was an abuse of discretion by any means. [00:16:41] Speaker 04: Well, I have to back up and reread the sentence. [00:16:44] Speaker 04: I can't think how it cuts in favor of the government. [00:16:46] Speaker 04: What am I missing there? [00:16:47] Speaker 03: Your Honor, I think it's that 20 years in the scope of things is perhaps not as long as it could be. [00:16:53] Speaker 04: Well, does he mean that, and this is entirely possible, he's more familiar with the case law because there were examples that I read about in this particular briefing that I had not seen before that are significantly longer periods of time. [00:17:08] Speaker 04: Maybe he was just familiar with that and I was not. [00:17:09] Speaker 04: But otherwise, I don't know how it would cut in favor of the government. [00:17:13] Speaker 03: I think, Your Honor, based on the record, I would say the same. [00:17:16] Speaker 03: I think the court did cite to US versus Abrams in its ruling on this issue, and that was also a 20-year gap. [00:17:23] Speaker 04: Had the government made that argument to the district court prior to the ruling that there were other cases that were with longer delays? [00:17:31] Speaker 04: Your Honor, I would have to go back and check the briefing, but I know that that issue was briefed. [00:17:34] Speaker 04: OK, thank you for that. [00:17:35] Speaker 04: I think I interrupted you, Judge Hurwitz. [00:17:38] Speaker 02: No, I got an answer to my question. [00:17:40] Speaker 04: Oh, OK. [00:17:42] Speaker 04: Anything further? [00:17:44] Speaker 03: Your honor, if there's nothing further on the rule 413 question, I'll turn to the second issue, which was about the testimony from Detective Spence. [00:17:53] Speaker 03: Right. [00:17:54] Speaker 03: And so that's the detective who interviewed Mr. Baker back in 2005 after that prior sexual assault was reported. [00:18:02] Speaker 03: So I think to start with, as I believe your honor has discussed with my friend in argument, this really wasn't a confrontation clause violation. [00:18:09] Speaker 03: The witness came and testified about an event that he was personally at. [00:18:13] Speaker 03: So I would take issue with sort of the initial framing of the facts as this being him reading a report into the record. [00:18:21] Speaker 03: I would note even that in the direct examination, the government didn't introduce the report. [00:18:25] Speaker 03: The government didn't say, let's walk through the report. [00:18:28] Speaker 03: The government said, let's walk through the interview. [00:18:30] Speaker 03: And this was the interview that he conducted with Mr. Baker. [00:18:33] Speaker 02: Can I ask you a factual question about trial? [00:18:38] Speaker 02: Baker says, parts of him, [00:18:41] Speaker 02: interview are familiar to me. [00:18:45] Speaker 02: Do we know whether he testified about parts that weren't familiar to him? [00:18:52] Speaker 02: Or did whether he just refreshed his recollection from the parts that were familiar to him? [00:18:57] Speaker 02: Can we tell that from this record? [00:19:00] Speaker 03: Your honor, I don't think we can tell that from this record beyond the fact that he was testifying under oath to his recollection. [00:19:07] Speaker 02: Well, I'm not sure that helps me. [00:19:08] Speaker 02: In other words, I'm trying to figure out, let's assume I [00:19:12] Speaker 02: the writing refreshes my recollection about some things, but not others. [00:19:19] Speaker 02: And I testify about the things that I was refreshed on, but then I also testify about things I don't remember at all just because I'm reading the paper. [00:19:34] Speaker 02: Trying to figure out whether or not I can tell from this record whether that happened here or whether or not all we know is that [00:19:42] Speaker 02: He says his recollection was refreshed because some parts were familiar and then testified about is testified about what was refreshed. [00:19:51] Speaker 03: Yes, I guess I would have two points in response, if I may, and one might be a clarifying question. [00:19:55] Speaker 03: So I agree on the record. [00:19:56] Speaker 03: I don't think it was parsed at that level of at that level. [00:20:00] Speaker 03: So there's nothing in the record where they said, did you were you specifically refreshed on this fact? [00:20:04] Speaker 03: Do you specifically recall this fact? [00:20:06] Speaker 03: I deal with respect to your reference to the report and just sort of reading the rest of it. [00:20:10] Speaker 03: I think that's the piece that my understanding is that did not happen at trial. [00:20:14] Speaker 03: So he read the report in witness preparation, but the report was only used on cross-examination at trial. [00:20:20] Speaker 03: So I do think that that is a meaningful, just sort of factual baseline for this, is that this was not an instance where a witness came up to the stand, was given a report that someone else read, and the witness simply read it to the jury. [00:20:33] Speaker 02: I'm sorry, Judge Christian. [00:20:35] Speaker 02: The question on this point, if it did occur all as a result of cross-examination, in other words, you didn't put him on the stand and then ask him to testify about what happened at the time, correct? [00:20:50] Speaker 02: Yes, Your Honor. [00:20:53] Speaker 02: Do we have something like a waiver of a confrontation cause problem? [00:21:00] Speaker 04: I think I'm lost in the question or the answer. [00:21:03] Speaker 04: Do you mean, yes, we didn't put him on the stand and ask him to testify, but what happened? [00:21:07] Speaker 04: I thought you did put him on the stand and ask him to testify, but what happened in the interview? [00:21:11] Speaker 04: I think I might have misunderstood the first part of Judge Hurwitz's question. [00:21:14] Speaker 04: Could you take another run at that question, Judge Hurwitz? [00:21:16] Speaker 02: You said this only came up in cross-examination. [00:21:20] Speaker 02: But in direct, I take it, he testified about what happened in the interview based on his recollection being refreshed, correct? [00:21:28] Speaker 03: You did not use the term refreshed. [00:21:31] Speaker 02: I understand. [00:21:33] Speaker 02: The judge admitted it under that evidence rule. [00:21:36] Speaker 02: So I'm trying to figure out how this happened. [00:21:40] Speaker 02: And I thought it was on his direct, but then you said it was on cross. [00:21:45] Speaker 03: And again, if I'm misunderstanding the question, please just let me know. [00:21:48] Speaker 03: So what happened below was that first, before the jury was there, there was a voir dire. [00:21:53] Speaker 03: The defense was permitted to voir dire Detective Spence. [00:21:56] Speaker 03: the court concluded that it was permissible for him to testify. [00:21:59] Speaker 03: The government then put him on direct, said, you know, walked him through, did you conduct an interview with Mr. Baker? [00:22:05] Speaker 03: He said, yes. [00:22:06] Speaker 03: They said, let's walk through that interview. [00:22:08] Speaker 03: He testified without paper in front of him to his own recollection of what had happened. [00:22:14] Speaker 03: And then on cross, the defense got up, cross-examined him and used the report to actually impeach him on a particular point that he had misremembered. [00:22:23] Speaker 02: Okay, thank you. [00:22:24] Speaker 02: That's helpful. [00:22:25] Speaker 02: So now my question is, was there a point on cross-examination where he said, you know, now that you've asked me that question, I don't have any independent recollection of that occurring. [00:22:42] Speaker 03: I would have to go back and check the record. [00:22:44] Speaker 03: I don't know if I remember him saying, I specifically don't remember that that occurred. [00:22:48] Speaker 03: But he did you know he went back and looked and correct himself and said it had to do I think with the point in time at which the victim which Mister Baker recalled that the victim had said no in that prior assault and he noted that he had spoken incorrectly on direct which I would submit is exactly what the confrontation clause requires that's. [00:23:05] Speaker 03: That's precisely what I think the confrontation clause envisions to happen on cross-examination is to be able to undercut a witness's credibility. [00:23:13] Speaker 03: And that's what happened here. [00:23:14] Speaker 04: Is it your recollection there was just the one instance of the witness saying, oops, I got that wrong? [00:23:20] Speaker 03: I recall there being one instance in which the report was specifically used to point out something that he got wrong. [00:23:25] Speaker 03: I would have to go back and check the transcript. [00:23:27] Speaker 04: OK, Judge Hurwitz, you weren't done, I think. [00:23:29] Speaker 02: No, I was. [00:23:30] Speaker 02: But I had a broader question. [00:23:32] Speaker 02: And it's the same question Judge Kristen asked you about. [00:23:35] Speaker 02: the prior victim, where I think your argument about why you needed to use it or found it useful was a little different. [00:23:46] Speaker 02: Here, why do you need a guy whose recollection has to be refreshed about an interview that occurred 20 years ago in your case? [00:24:01] Speaker 02: If the jury doesn't believe the victim, [00:24:06] Speaker 02: I just have a difficult time. [00:24:09] Speaker 02: And look, this may be admissible. [00:24:11] Speaker 02: That's what we're going to rule on. [00:24:12] Speaker 02: But it's another one of those ones where it seems to me the government in some ways created the problem by doing a belt and suspenders approach. [00:24:22] Speaker 03: I think my answer to that would be twofold. [00:24:25] Speaker 03: The first is that I do think there were additional things that came in through Detective Spence. [00:24:28] Speaker 03: So the interview he was testifying about wasn't just the interview of the victim. [00:24:34] Speaker 03: It was the interview that he did with Mr. Baker. [00:24:36] Speaker 03: Understand. [00:24:38] Speaker 03: And in that interview, Mr. Baker did admit to some of the conduct, including I think he couched it in qualifying terms but said something like, I may have shoved her head down towards my genitals. [00:24:48] Speaker 03: So I think that, again, confirmed his conduct and the lack of consent. [00:24:53] Speaker 03: which isn't something that anyone besides the victim, in this case the 413 victim, can testify to. [00:24:58] Speaker 04: I think he repeatedly said that every time she said stop, I stopped, meaning she had to repeatedly say stop. [00:25:06] Speaker 03: She did, Your Honor. [00:25:06] Speaker 03: And so I do think that's additive, but I would also note that, you know, in any event, I think Your Honor's concern speaks to the fact that this would be harmless, that Detective Spence's [00:25:16] Speaker 03: testimony even if this court concludes that maybe he shouldn't have been permitted to testify that there was, you know, this was additional on top of the 413 evidence, so we would submit harmless error on that point as well. [00:25:30] Speaker 03: If the court has any questions about the final two submissions, I'm happy to take those now, both the lesser included offense instruction and then also sentencing. [00:25:38] Speaker 03: and can also just run through the government's argument briefly on those. [00:25:42] Speaker 04: I don't think we do. [00:25:43] Speaker 04: Is that right, Judge Hurwitz? [00:25:44] Speaker 04: No questions on those last two points? [00:25:45] Speaker 00: I don't. [00:25:46] Speaker 04: OK. [00:25:46] Speaker 04: It looks like we do not. [00:25:48] Speaker 04: OK. [00:25:48] Speaker 04: Thank you, Your Honor. [00:25:48] Speaker 04: Thank you. [00:25:52] Speaker 00: With my last two minutes, I do want to say just when we're talking about harmless error, [00:25:57] Speaker 00: with respect to the 413. [00:25:59] Speaker 00: That testimony bolsters, was used to bolster SC, the prior victim's testimony, which was then used to bolster EC's testimony. [00:26:09] Speaker 00: So when we're talking about sexual assaults against a minor, that's not harmless. [00:26:15] Speaker 00: But I do want to spend my last minute going over some of the cases that the government is relying on with respect to this 20-year period. [00:26:25] Speaker 00: And the cases, [00:26:27] Speaker 00: Judge Hurwitz wanted to know about some cases, particularly Medicine Horse. [00:26:30] Speaker 00: We heard Abrams and so on. [00:26:33] Speaker 00: Those are distinguishable cases. [00:26:35] Speaker 00: Medicine Horse, let's start with Medicine Horse. [00:26:43] Speaker 00: While there was testimony about [00:26:47] Speaker 00: Prior events going back 45 to 50 years, there were multiple acts, multiple victims, all involving a pattern involving family members that were also recent. [00:26:57] Speaker 00: So it was a span of events, a pattern of events, which is different from what we have here. [00:27:02] Speaker 00: Same thing with Abrams. [00:27:04] Speaker 00: It goes back starting 20 years, but as recent as five years. [00:27:08] Speaker 00: Again, we have a pattern of acts from 20 years on the high end to five years on the low end. [00:27:14] Speaker 00: Stern is the only case, and these are all unpublished, by the way. [00:27:17] Speaker 00: Stern is the only case that involved one incident from 20 years ago, one act, similar to what we have. [00:27:23] Speaker 00: The difference, however, is that Stern had an intervening circumstance where the defendant was incarcerated for much of that 20-year period, unlike what we have here in Baker. [00:27:33] Speaker 00: And then the only other cases that were published that were cited by the government would be the Meacham and the Larson case, [00:27:39] Speaker 00: However, setting aside that they're from different circuits, the second circuit and the tenth circuit, setting that aside, again, it involved multiple victims and multiple acts. [00:27:49] Speaker 00: So when you have a pattern of conduct that spans a decade or two, that is distinguishable from a one-time, single event that we're talking about here, Mr. Baker. [00:27:59] Speaker 00: I think I'm done. [00:28:00] Speaker 04: Thank you. [00:28:00] Speaker 04: Thank you both for your advocacy.