[00:00:00] Speaker 01:
Good morning.

[00:00:04] Speaker 01:
James Thompson on behalf of Mr. Bellhouse.

[00:00:08] Speaker 01:
I wanted to address two arguments.

[00:00:10] Speaker 01:
Oh, excuse me.

[00:00:11] Speaker 01:
May I reserve five minutes for rebuttal?

[00:00:14] Speaker 01:
I'll try to help you with that.

[00:00:16] Speaker 01:
I'll keep my eye out here.

[00:00:19] Speaker 01:
Okay.

[00:00:19] Speaker 01:
The two arguments I really want to address are the Uncharged Act evidence and the jury instructions concerning those uncharged acts.

[00:00:28] Speaker 01:
The Mr. Bellhouse was charged with and tried with five counts and there were perhaps 10 plus uncharged acts introduced in the case.

[00:00:42] Speaker 01:
So the uncharged acts turned a trial of five counts with two victims.

[00:00:47] Speaker 01:
into a trial of five counts and at least 10 unadjudicated acts with three victims and additional two witnesses or three witnesses.

[00:00:59] Speaker 01:
The uncharged acts outnumbered the counts also by twice as much.

[00:01:06] Speaker 01:
Christina's testimony, which was the primary uncharged acts case,

[00:01:11] Speaker 01:
makes clear that the testimony was both unfairly inflammatory and prejudicial.

[00:01:19] Speaker 01:
Rather than summarize the testimony, which is in the brief and is rather graphic, the cites to four excerpts of record 381, 414, and 415 detail her testimony.

[00:01:36] Speaker 01:
And her testimony was probably the most salacious

[00:01:40] Speaker 01:
of all of the testimony and the acts were probably the most on a scale of any of these, the most offensive as they were tried and as they were brought before the jury.

[00:01:53] Speaker 01:
Christina?

[00:01:54] Speaker 01:
Christina, yes.

[00:01:57] Speaker 01:
She was not charged in account, the acts were not charged in account.

[00:02:02] Speaker 01:
So the benefit of the presumption of innocence, you know, beyond the reasonable doubt standard didn't really apply to her case.

[00:02:10] Speaker 01:
Her case was probably charged as an uncharged act because it was not disclosed until well past the, or a few days past the deadline for even noticing uncharged acts.

[00:02:24] Speaker 01:
The deadline was May 15th and the uncharged acts of Christina and Marabella weren't noticed until four days after that deadline or 11 days before the time period expired.

[00:02:38] Speaker 04:
So Council, I mean, I don't want to make you go through the details of what the acts were, but it was

[00:02:46] Speaker 04:
It was not clear to me from the record that the conduct with Christina was significantly different in kind from the conduct with Anna and Genesis that was the counts charged.

[00:03:00] Speaker 04:
Those acts were the counts charged in the indictment and those involved sexual contact with both of those victims.

[00:03:10] Speaker 04:
Let me ask it this way.

[00:03:12] Speaker 04:
The standard here is abuse of discretion, is it not?

[00:03:15] Speaker 01:
Yes.

[00:03:15] Speaker 04:
So why was it an abuse of discretion for the district court to not view it the way you were describing and to think that these weren't really significantly more inflammatory than the charged conduct?

[00:03:32] Speaker 01:
I think there are two things.

[00:03:34] Speaker 01:
It's one, the number of the acts, the uncharged acts.

[00:03:37] Speaker 01:
And two, it's the additional victims that were mounted up with respect to the Uncharged Acts.

[00:03:45] Speaker 01:
Three, it was the fact that there were additional witnesses testifying as to the Uncharged Acts.

[00:03:52] Speaker 01:
And then lastly is really Christina's testimony.

[00:03:55] Speaker 02:
What's your best case to support that assertion?

[00:04:02] Speaker 01:
The best case for why it shouldn't have been introduced yes because of the you know Inflammatory nature of it and the over.

[00:04:11] Speaker 02:
Do you have an actual case?

[00:04:12] Speaker 02:
I mean in your brief you cite la victor

[00:04:15] Speaker 01:
Right, and I think Porter makes clear that because this evidence can be introduced doesn't mean it must be introduced.

[00:04:25] Speaker 02:
I understand that, but if you look at LaVictor, that's the case I thought that you cited in your briefs.

[00:04:32] Speaker 02:
I don't know that that helps you because they allowed those uncharged acts to come in in that case and they were equally

[00:04:44] Speaker 02:
egregious, if not more than what was being presented as a charged act during the trial.

[00:04:51] Speaker 01:
We did cite Victoria in the case, and I think we distinguished it in the briefing to show that these acts in particular, because of the number of them, I mean, I can go through the uncharged acts.

[00:05:04] Speaker 01:
There's, you know, additional touching of breasts in the vagina.

[00:05:07] Speaker 01:
There's, you know, kissing.

[00:05:08] Speaker 01:
There's additional acts in this camp warehouse.

[00:05:13] Speaker 01:
where there's a pressing against the body, but it's really Christina's acts.

[00:05:19] Speaker 01:
And she's the primary uncharged act count, if you will.

[00:05:23] Speaker 01:
In her case, in her stuff, with respect to the taco salad, the inserting of his fingers, and then licking of the fingers afterward and stuff, it really was much more than the others.

[00:05:37] Speaker 02:
I guess your view is that's more than one of the others in the charged act.

[00:05:44] Speaker 02:
having to perform oral sex.

[00:05:47] Speaker 02:
Yes, and only because... I'm trying to dial the distinction in terms of the egregiousness.

[00:05:53] Speaker 01:
I understand.

[00:05:54] Speaker 01:
I think that if you were a jury and you're sitting there and you're trying this case and you see these charged acts and you see two counts of oral sex, right?

[00:06:03] Speaker 01:
They're there.

[00:06:04] Speaker 01:
And you make your decision beyond a reasonable doubt whether those are true.

[00:06:09] Speaker 01:
As to the acts that involve Christina, which I do think are more

[00:06:15] Speaker 01:
towards the prejudicial end because of the nature of them and because there is no reasonable doubt benefit as to those.

[00:06:27] Speaker 01:
They just came in.

[00:06:28] Speaker 01:
There wasn't a determination that the jury had to make as to those.

[00:06:33] Speaker 02:
But the district court had to make a determination, 403 determination, whether it was probative versus the prejudicial nature of it and the district court

[00:06:45] Speaker 02:
made that finding.

[00:06:46] Speaker 01:
yes the district court did there's no doubt about it but again porter makes clear that just because it is admissible it's not mandatory and the court also found that there was not a timeliness bar of the introduction of Christine the acts against Christina because of the fact that the government notified defense counsel promptly upon learning of it and that

[00:07:15] Speaker 02:
So the lateness of the notification as you identified it was 4 days the district court had to make a decision whether to allow we have to determine whether there was an abusive discretion of that decision what.

[00:07:27] Speaker 02:
But you did you ask for a continuance.

[00:07:30] Speaker 02:
I'm trying to figure out what the lateness which are which are argument is directed because it didn't look at least from my review that the trial Council and I don't know if that was you was that you know it was not OK trial Council did not.

[00:07:45] Speaker 02:
Ask for extra days or a week or 4 more days to look into this because that was going to be the time the deadline that had passed so I'm trying to figure out what.

[00:07:59] Speaker 02:
Is the.

[00:08:01] Speaker 02:
argument that you're making regarding the lateness of the disclosure.

[00:08:05] Speaker 01:
Well, the statute's clear that if it's noticed late, it shouldn't come in unless good cause is shown.

[00:08:10] Speaker 01:
Exactly.

[00:08:11] Speaker 01:
So what's the good cause?

[00:08:13] Speaker 01:
Not the fact that it was promptly given to defense counsel or defense counsel were promptly notified.

[00:08:20] Speaker 01:
And not that it was, you know, similar acts and stuff.

[00:08:23] Speaker 01:
What is, why wasn't it noticed earlier?

[00:08:27] Speaker 01:
Why didn't the government interview Christina Ameribel prior to the May 5th deadline?

[00:08:35] Speaker 01:
It was only because they waited afterward that they interviewed them that they then learned of that evidence.

[00:08:41] Speaker 01:
Why didn't the government ask the questions that should have been asked, that were asked ultimately, why didn't the government ask those questions at the initial interview of

[00:08:51] Speaker 01:
of Christina and the initial interview of Maribel.

[00:08:55] Speaker 01:
And the failure to analyze it in that framework is what is the abuse of discretion.

[00:09:02] Speaker 01:
It's not that the court didn't go through, the court went through all of the steps that were required in terms of, you know, whether it's admissible or not.

[00:09:11] Speaker 01:
It's the call on whether or not it should have been admitted.

[00:09:15] Speaker 01:
And going back to the other angle of why the evidence could have been admitted was that they were inextricably intertwined with the other acts.

[00:09:29] Speaker 01:
But entwinement doesn't mean it's admissible.

[00:09:35] Speaker 01:
The question is whether or not the counts, one through five, told the complete story of the events that occurred.

[00:09:45] Speaker 01:
And they did.

[00:09:47] Speaker 01:
The government's own admission was there already is significant corroborating evidence of the charged offenses to ER 127.

[00:09:58] Speaker 01:
There was a complete story in Counts 1 through 5.

[00:10:02] Speaker 01:
Nothing was needed to be added to it.

[00:10:05] Speaker 01:
Christina's acts demonstrated didn't add to the story of Counts 1 through 5 in the sense that it completed that story.

[00:10:16] Speaker 01:
What it did was add even more

[00:10:21] Speaker 01:
salacious acts that caused there to be a complete, okay, you've got ten acts, you've got five counts, it's got to all lean towards conviction.

[00:10:34] Speaker 04:
But isn't that what Rule 413 allows to a degree?

[00:10:39] Speaker 04:
I wouldn't

[00:10:41] Speaker 04:
include the salacious part in there, but rule 413 allows, I mean, it is an exception to the rule that you can't have, you know, propensity evidence and like the inference that rule 413 allows the jury to make is, you know, because this person engaged in like the sort of sexual misconduct on other occasions, like, you know, we can draw the inference that he engaged in it on the charged occasions, right?

[00:11:09] Speaker 04:
I mean, that's the whole point of the rule, isn't it?

[00:11:11] Speaker 01:
Yes, Rule 413 allows for it.

[00:11:15] Speaker 01:
The question is whether or not it should be admitted.

[00:11:19] Speaker 01:
And here it just was too much.

[00:11:21] Speaker 02:
Well, the district court, I guess, made a determination because the defense was challenging the credibility of the charged conduct.

[00:11:33] Speaker 02:
Is that not correct?

[00:11:36] Speaker 02:
I believe, I mean, I believe that was the main defense was that these women were not telling the truth.

[00:11:44] Speaker 02:
Yes, that's correct.

[00:11:45] Speaker 02:
And so the district court made a determination whether the probative value of these uncharged acts outweighed the prejudicial effect.

[00:11:57] Speaker 02:
And we have to determine whether that district court abuses discretion in light of 403, in light of 413.

[00:12:03] Speaker 02:
Correct?

[00:12:04] Speaker 02:
That's correct.

[00:12:04] Speaker 02:
Okay.

[00:12:06] Speaker 02:
You have three minutes left.

[00:12:08] Speaker 01:
I don't argue with that at all.

[00:12:10] Speaker 01:
I understand completely what the court's saying, but the problem is that there was just... Christina was just too much and it was given late.

[00:12:19] Speaker 01:
And whether they had asked for a continuous or whether a four-day continuous wasn't going to do any good, they would have to go out and get all sorts of information.

[00:12:27] Speaker 01:
The question is whether it was just too much because it turned a trial

[00:12:31] Speaker 01:
of five counts into a trial of essentially 15 counts.

[00:12:35] Speaker 01:
And that was just too much when the government's story was complete.

[00:12:41] Speaker 01:
I mean, it can be allowed to add something if there's something missing, right?

[00:12:46] Speaker 01:
If the story's not complete on counts one through five.

[00:12:49] Speaker 01:
It didn't add in that sense.

[00:12:51] Speaker 01:
It didn't dovetail into it.

[00:12:53] Speaker 01:
It just added additional charges.

[00:12:55] Speaker 02:
From what I can recall from your briefing that I don't see a case that helps you with that, but if you want to come back when you come back and highlight

[00:13:03] Speaker 01:
I did the best I could with the cases that are out there.

[00:13:08] Speaker 01:
I looked hard.

[00:13:09] Speaker 01:
I looked low and hard.

[00:13:14] Speaker 03:
Where was the issue of lateness preserved in the district court?

[00:13:20] Speaker 03:
There was argument on it.

[00:13:22] Speaker 03:
There was motions on it.

[00:13:23] Speaker 01:
I saw I've just read the motion and limiting I didn't see any reference To find to er 104 is where the court found good cause Because the government did not learn of the evidence.

[00:13:37] Speaker 01:
I don't have the site I can I can look for him I don't have the sites of the defense argument, but but they had it and

[00:13:42] Speaker 01:
And then I only get I'll save a minute the jury instructions are really important here because the jury instructions were not given to Anna Genesis Tisha

[00:13:56] Speaker 01:
or Annabelle, but the jury instruction was given to Christina and Maribel.

[00:14:02] Speaker 01:
Those are the only two.

[00:14:03] Speaker 01:
They were given at the end of the case, but they only referenced Christina.

[00:14:07] Speaker 01:
They didn't reference the other people.

[00:14:10] Speaker 01:
The court was very clear that I can let this stuff in as long as adequate instruction is provided.

[00:14:16] Speaker 01:
Sure enough, but it wasn't.

[00:14:19] Speaker 04:
But there was a general instruction, wasn't there, that the jury was only to evaluate whether he was guilty of the charges and the indictment and not to assess his guilt for other acts?

[00:14:34] Speaker 04:
Wasn't there that instruction?

[00:14:35] Speaker 01:
Yes, at the end, but it was referenced in particular to Christina, but it was the other person's testimony that also, because Anna gave in charge of that.

[00:14:44] Speaker 04:
The instruction I just referred to didn't mention any particular witness.

[00:14:50] Speaker 01:
The court gave a model instruction regarding the uncharged acts at the end of the case.

[00:14:55] Speaker 01:
And the court instructed the defendant is not on trial for any other conduct or offense, not charged in the indictment.

[00:15:01] Speaker 01:
But there is a particular reference to Christina at the end of the case that that instruction is given.

[00:15:08] Speaker 01:
The government argues only about Christina, doesn't argue about the other individuals.

[00:15:14] Speaker 01:
Thank you.

[00:15:15] Speaker 01:
I'll reserve one second, if I can.

[00:15:44] Speaker 00:
Good morning, Your Honors.

[00:15:45] Speaker 00:
May it please the Court, Kelly Volcar on behalf of the United States.

[00:15:49] Speaker 00:
This Court should affirm, particularly given the deferential standard of review here, but I would like to start off immediately with clarifying something from my friend across the aisles argument, which is when it comes to Christina's testimony, there are multiple acts that she talked about.

[00:16:06] Speaker 00:
She is the uncharged victim.

[00:16:07] Speaker 00:
The government does not contest that.

[00:16:09] Speaker 00:
There is the sexual act,

[00:16:12] Speaker 00:
of Mr. Bellhouse inserting his fingers into her.

[00:16:16] Speaker 00:
That had been disclosed months prior to trial.

[00:16:19] Speaker 00:
The disclosure that occurred a couple of weeks before trial related to abusive sexual contact, additional events that only came to light during interviews as the government was re-interviewing these witnesses who were already on the witness list in advance of trial.

[00:16:35] Speaker 00:
And that was the reaching through the window and groping Christina's breasts in exchange for the cleaning supplies.

[00:16:42] Speaker 00:
So the late disclosure was much more limited than what my counsel across the aisle, what my colleague across the aisle indicated.

[00:16:49] Speaker 00:
And that is in the record at 2 ER 116 to 117.

[00:16:55] Speaker 00:
And Judge Thomas, to answer your question, the district court did rule on the lateness and found there was good cause at 2 ER 104.

[00:17:03] Speaker 03:
No, I understand that.

[00:17:05] Speaker 03:
I was just, I was wondering whether the defense made a motion based on that.

[00:17:10] Speaker 00:
Your honor, I believe it was discussed orally.

[00:17:12] Speaker 00:
Thank you.

[00:17:14] Speaker 00:
Yes.

[00:17:15] Speaker 00:
So I also want to go back to questions that the court had for my colleague relating to Christina's acts vis-a-vis the other charged conduct.

[00:17:25] Speaker 00:
And I agree with your honors that they were very similar in kind.

[00:17:28] Speaker 00:
The act against Christina, the one that had been disclosed months before, was similar in kind and nature.

[00:17:34] Speaker 00:
to the acts against Anna, who was the charged victim in count one, and similar, and the additionally identified acts, the abuse of sexual contact were similar in kind to the charged acts against?

[00:17:50] Speaker 02:
Well, my understanding under 404B for prior uncharged conduct committed had to be extremely similar.

[00:18:02] Speaker 02:
And there are two different acts here.

[00:18:04] Speaker 02:
I know defense counsel at the time didn't make that motion and isn't really arguing that now.

[00:18:12] Speaker 02:
I think it's arguing more that it was egregious, but I think there is case law that says it has to be.

[00:18:21] Speaker 02:
very similar based on the act.

[00:18:24] Speaker 02:
What's the case that you have or that you can present to tell us why this was similar enough?

[00:18:34] Speaker 00:
Well, Your Honor, I think the best case for the government is Porter, which came out just a couple of years ago, USV Porter.

[00:18:45] Speaker 00:
And in that case, that was the

[00:18:50] Speaker 00:
a person who attempted to anally rape a colleague in Yosemite and this court found that the testimony of a prior ex-girlfriend who had also within approximately it was the last year or so

[00:19:05] Speaker 00:
had also been anally raped by the defendant.

[00:19:08] Speaker 02:
That was a similar act.

[00:19:10] Speaker 02:
This is two different acts, and that's why I was trying to find a case.

[00:19:14] Speaker 02:
I didn't find it.

[00:19:15] Speaker 02:
Again, I'm not sure that that argument has been preserved, but you just said this was similar.

[00:19:24] Speaker 02:
when you pull out the lens here, that it's all sexual misconduct.

[00:19:30] Speaker 02:
But I just was curious if you had a case on the 404B and it being substantially similar in terms of the act.

[00:19:41] Speaker 00:
I don't know if I have a case to that level of granularity, but I would argue that I don't believe that that level of granularity is required by either 404 B or 413.

[00:19:53] Speaker 00:
And what I mean by that, Your Honor, is it is a five factor balancing test under LeMay of whether or not the acts can come in.

[00:20:01] Speaker 00:
And one thing that I do think is important is even if it wasn't the same sexual act, oral sex versus him inserting his fingers in her vagina, it would have been charged under the same statute at the time.

[00:20:12] Speaker 00:
So if the charge against Christina had been brought by the government, it would have been the same sexual act that was charged.

[00:20:20] Speaker 00:
It would have been the exact same charge that was against Anna or that was brought with respect to Anna in counts one and counts two.

[00:20:26] Speaker 00:
It's only subsequently that Congress has added, for example, an aggravated sexual assault against a ward.

[00:20:33] Speaker 00:
That statute wasn't available to the prosecution at that time.

[00:20:38] Speaker 02:
I know that.

[00:20:38] Speaker 02:
I was just focusing on the act, and I thought the case law was that it had to be pretty much identical.

[00:20:45] Speaker 00:
Your honor, I do not read the case law that way.

[00:20:49] Speaker 00:
I do believe that under LeMay, for example, although that related to a child molestation, there had been the similar oral copulation, but there was also evidence that he, the defendant may have vaguely penetrated the younger child in the prior 414 evidence, and that was still allowed to come in.

[00:21:12] Speaker 00:
because, again, it went to the defendant's propensity to commit these types of crimes.

[00:21:18] Speaker 00:
And the government's position would be that that's the same here with respect to Christina, which is in this case, and Your Honor Judge McGeehan mentioned this,

[00:21:26] Speaker 00:
To my colleague, these are the types of cases where credibility is on the line.

[00:21:30] Speaker 00:
Credibility was the entirety of the defense.

[00:21:33] Speaker 00:
These women cannot be believed because they are inmates.

[00:21:36] Speaker 00:
These women cannot be believed because they're just seeking immigration benefits or they're just seeking civil suits and damages.

[00:21:42] Speaker 00:
And because that was the entire thrust of the defense, this is exactly the type of case where rule 413 evidence, Congress has made the judgment that rule 413 evidence is critical.

[00:21:53] Speaker 00:
And so even though it wasn't exactly the same sex act, I think the part where it was within the same year, it was similar in kind.

[00:22:02] Speaker 00:
He followed very similar patterns as he had done with Genesis, for example, to both Genesis and Christina.

[00:22:07] Speaker 00:
Bellhouse had said things like, I want to set you on a desk and spread your legs and see what you taste like.

[00:22:14] Speaker 00:
For both Anna

[00:22:16] Speaker 00:
Genesis and Christina, there were multiple sexual innuendos and comments made both to the victims and also in front of other inmates.

[00:22:24] Speaker 00:
He bragged about receiving oral sex from other inmates to inmates that he intended to victimize.

[00:22:31] Speaker 00:
This was all part of his pattern and practice.

[00:22:34] Speaker 00:
And this is the government's inextricably intertwined argument for particularly the charged victims.

[00:22:39] Speaker 00:
This was all part of his pattern and practice to groom these women, to desensitize them to his sexual advances in order to take advantage of them.

[00:22:50] Speaker 00:
And I do put Christina in that same pattern, Your Honor.

[00:22:52] Speaker 00:
So even though the sexual act itself was different, the way that he went about desensitizing her, grooming her, exchanging contraband, in her case, cleaning supplies, in order to try to get

[00:23:06] Speaker 00:
sexual favors from her I would say that that is indistinguishable from the charged victims and that's where and I don't think that it was an abusive discretion for Judge Gonzales Rogers to find that they were similar in nature close in time all within approximately a year each a year of each other and Under the lame factors sufficiently Credible to present until for allow the government to present it to the jury

[00:23:33] Speaker 04:
Can you address the issue of the limiting instruction?

[00:23:36] Speaker 04:
So there's the limiting instruction specifically directed to Christina, but then you also have uncharged acts involving Anna and Genesis, and there isn't a limiting instruction specifically mentioning them.

[00:23:49] Speaker 04:
Why was that?

[00:23:50] Speaker 00:
Thank you, Your Honor, for the opportunity to address that.

[00:23:52] Speaker 00:
I think that the most intellectually honest way to address the uncharged acts as they relate to Anna and Genesis is that they were really inextricably intertwined.

[00:24:02] Speaker 00:
with the charged acts.

[00:24:05] Speaker 00:
The court below found many of the other acts in the form of providing the contraband or making statements to them, sexually inappropriate statements to them, all of that the court found was inextricably intertwined.

[00:24:19] Speaker 00:
And then when it talked about 413, it really shifted its analysis to Christina.

[00:24:24] Speaker 00:
However, if the court finds

[00:24:26] Speaker 00:
that it was properly admissible as inextricably intertwined.

[00:24:31] Speaker 00:
It didn't need an extra limiting instruction.

[00:24:33] Speaker 00:
It could have also been, and the government proffered it also as 404B, intent, lack of mistake, MO.

[00:24:40] Speaker 00:
And in that instance, as Your Honor pointed out, the judge gave the model 2.10 instruction that relates to typical 404B evidence at the end of the trial to catch all uncharged conduct besides

[00:24:56] Speaker 00:
what's in the indictment, and then there was the specific limiting instruction towards Christina, who if she was a 413 witness, then that would be appropriate under this court's ruling in Porter.

[00:25:08] Speaker 02:
What's your best case for that's sufficient?

[00:25:11] Speaker 02:
For what you just said is sufficient?

[00:25:14] Speaker 00:
Your Honor, there is no case that lays out what I just said in terms of your best case.

[00:25:20] Speaker 02:
I know you don't have probably something

[00:25:23] Speaker 00:
Thank you, Your Honor.

[00:25:23] Speaker 02:
Exactly.

[00:25:25] Speaker 00:
I believe that my best case for the inextricably intertwined is the Williams from the 1993 in the sense of just the part where the government could have charged more and the defendant is not on the hook for all of his bad actions doesn't necessarily take it out of the realm of admissible if it's meant to provide the government with the opportunity to tell a comprehensive story.

[00:25:49] Speaker 00:
There's also, although it is unpublished, Your Honor, the Boehm decision from just a couple of years ago.

[00:25:55] Speaker 00:
There's, of course, the published part, but the unpublished part also talks about 404B.

[00:26:00] Speaker 00:
And that was the filming of child pornography with a hidden camera.

[00:26:05] Speaker 00:
And then subsequently, the defendant did rape his stepdaughter.

[00:26:10] Speaker 00:
And that was admitted as 404B evidence.

[00:26:14] Speaker 00:
And this court found that was permissible.

[00:26:30] Speaker 00:
Going back to the jury instructions for Judge Miller, the government agrees that there was no instruction that was given at the time that Anna and Genesis were testifying.

[00:26:43] Speaker 00:
The district court did not interrupt as they were going through to provide a limiting instruction when uncharged versus charged acts were being described.

[00:26:51] Speaker 00:
But the reason why I believe that's not an abuse of discretion is because this entire trial, it was incredibly clear

[00:26:58] Speaker 00:
to the jurors at every moment what the charged acts were.

[00:27:01] Speaker 00:
The judge listed them in the preliminary instructions, said counts one and counts two were when Bell House had Anna perform oral sex.

[00:27:11] Speaker 00:
Count three is when he touched her vagina and breasts.

[00:27:14] Speaker 00:
Count four, that level of detail in the preliminary instructions before the jury heard any testimony, the government reiterated in opening statement what each of the counts were, walked through them, who was the victim, what was the alleged conduct.

[00:27:27] Speaker 00:
And then when it came to the closing arguments, the government was equally as clear, always setting Christina aside, but also always describing which act they alleged was the charged count.

[00:27:38] Speaker 00:
The district court reiterated in its closing argument

[00:27:46] Speaker 00:
In its jury instructions at the close of the case at 2ER239, it once again walked through each of the charges that were, each of the counts that were charged.

[00:27:57] Speaker 00:
When the jury provided a note that asked about count four, and could it be anything other than the touching of Genesis's buttocks for count four, that was at SER16, the district court said, no, refer back to the jury instructions.

[00:28:12] Speaker 00:
It may only be the touching of Genesis's buttocks.

[00:28:16] Speaker 00:
this is not a case for the court has to be concerned that the defendant was convicted on uncharged conduct this is a case where that at all points in time the district court was incredibly clear what was charged and what was not gave multiple different instructions that this court has affirmed over and over again uh... are sufficiently protective and then when the jury came back and did ask a clarifying question again was pointed towards uh...

[00:28:43] Speaker 00:
towards the specific charges that they had defined.

[00:28:50] Speaker 02:
Ideally, though, the district judge should have given a limiting instruction each time a witness testified regarding an uncharged act, even if it's general, right?

[00:29:02] Speaker 02:
At the end or at the beginning?

[00:29:05] Speaker 00:
Your honor I disagree and I also think it would be Impractical and and in work in practice in the district court before each one of these women speaking they'd have to in a case in cases where it is already difficult that to Remember the specifics enough to get an area and a place and a time and a date to interrupt at the flow of testimony each time they're going to talk about

[00:29:32] Speaker 00:
an instance and for example with Anna and Genesis or Anna in particular multiple witnesses said that it was near daily that they were kissing and hugging and he was pulling her into his lap and so I guess it's hard for me to picture how in practice district courts could interrupt testimony at each point and give a general instruction to the effect of whether or not it's uncharged conduct.

[00:29:56] Speaker 04:
But I think I mean he doesn't put it in quite these terms but maybe the suggestion on the other side is that when you

[00:30:02] Speaker 04:
When you do give that instruction with respect to one of the people talking about uncharged acts, but not to the others, I mean, I don't know whether jurors in the Northern District of California are familiar with the maxim expressio unius est exclusio altereus, but maybe they are.

[00:30:18] Speaker 04:
And so maybe the inference that the jury has is like, well, he told us not to consider it with this one, but therefore we can with the others.

[00:30:28] Speaker 04:
Should we be worried about that?

[00:30:30] Speaker 00:
Your Honor, I would say that would run counter to the Solomon case cited in the government's brief, which says that the court anticipates that jurors follow the instructions.

[00:30:40] Speaker 00:
And specifically, that case relates to the general 210 instruction about activities not charged for 404B evidence, that giving that general instruction at the end of the trial is typically sufficient to presume that the jurors follow it and only convict on the charged conduct.

[00:30:57] Speaker 00:
And again, I think that that would also

[00:30:59] Speaker 00:
The government's perspective is that the jury note runs counter to that as well, because to the extent that they were thinking that, they asked the question to clarify, and the court was very clear that they could only convict on the charged conduct.

[00:31:14] Speaker 00:
And even the verdict form itself listed that count one, two, and three related to Anna, and counts four and five related to Genesis.

[00:31:24] Speaker 02:
If there are no further... There were a lot of uncharged acts referred to.

[00:31:29] Speaker 02:
Correct.

[00:31:31] Speaker 02:
More than the charged.

[00:31:33] Speaker 00:
I do believe it's how it's characterized, Your Honor.

[00:31:36] Speaker 00:
It depends, because for Anna, for example, there were the two, and I know I'm over time, so I'll try to be quick.

[00:31:41] Speaker 00:
For Anna, for example, there were the two instances of oral sex, and there was the multiple instances of groping her breast and vagina, only one of which were charged.

[00:31:51] Speaker 00:
There was the kissing, hugging, and the pulling into the lap, but I would argue that's part of the grooming and desensitization.

[00:31:58] Speaker 00:
It would be hard to parse those out to charge every single one of those instances.

[00:32:02] Speaker 00:
And then for Genesis, I would say that there were more uncharged acts such as her leaning over and him pushing his groin into her.

[00:32:10] Speaker 00:
But there were also, I guess, Your Honor, I would just say that the uncharged acts didn't so overcome the trial when it was all really part and parcel of how

[00:32:19] Speaker 00:
he kept them under his power and control in order to get the sexual interactions that he wanted.

[00:32:27] Speaker 00:
If the court has no further questions, thank you for the allowance of extra time.

[00:32:30] Speaker 00:
Thank you.

[00:32:31] Speaker 00:
Please affirm.

[00:32:38] Speaker 01:
May I have 30 seconds?

[00:32:40] Speaker 01:
I'll give you one minute.

[00:32:42] Speaker 01:
With respect to the concluding instruction we were talking about, I have down at 3ER239, the court instructed at the end of the case, as previously explained, you heard evidence that the defendant may have committed a similar offense of sexual assault against Christina.

[00:33:02] Speaker 01:
So I do think at the end of the case that the only person that is named is Christine.

[00:33:07] Speaker 01:
The other folks are not named.

[00:33:09] Speaker 01:
The other individuals are not named.

[00:33:11] Speaker 03:
So counsel, your essential argument to quote you is it was just too much.

[00:33:16] Speaker 03:
And that was made to the district court.

[00:33:18] Speaker 03:
And the district court answered that by saying, this is a case that will largely boil down to who the jury believes, a federal officer or an incarcerated felon.

[00:33:30] Speaker 03:
And given that, the uncharged sexual abuse is more probative than cumulative.

[00:33:35] Speaker 03:
What's wrong with that?

[00:33:37] Speaker 01:
Well, the problem is, is that if you're going to believe the officer, you can believe the guard, one, the officer, you know, in terms of testimony stuff, if you're going to do that, then you don't add all of the Christina acts and all of the other uncharged acts, which allows for there to be

[00:33:56] Speaker 01:
an unfair assessment of who do you believe?

[00:34:00] Speaker 01:
Because the uncharged acts couldn't be countered, one because they were laid in one hand, and the other because they're not being decided under beyond a reasonable doubt standard.

[00:34:12] Speaker 03:
Well, one of the lame factors is the frequency of the prior acts, which would seem to indicate to me that if there are a lot of them, that argues for admission under 413.

[00:34:25] Speaker 01:
So I understand what the court's saying, but it seems to be wrong.

[00:34:33] Speaker 01:
I don't know how to say it.

[00:34:34] Speaker 01:
If you only have a few uncharged acts, they don't come in.

[00:34:37] Speaker 01:
But if you have a lot, they do come in.

[00:34:39] Speaker 03:
I'm just quoting LeMay.

[00:34:41] Speaker 01:
I understand.

[00:34:42] Speaker 01:
And I understand it's this court's case.

[00:34:46] Speaker 01:
But nevertheless, it seems to me that it can't just be that.

[00:34:51] Speaker 01:
It can't just be that if there's a lot of them, they come in.

[00:34:53] Speaker 01:
There has to be a discernment about where does it go too far.

[00:34:59] Speaker 01:
If they needed those uncharged acts to explain counts one through five, to fulfill that story, to give it breadth, to give it depth, to give it formation, sure, they should have come in.

[00:35:14] Speaker 01:
But they are totally different.

[00:35:17] Speaker 01:
I do think we made some argument with respect to similarity, Your Honor, but the clear it was more than is the thrust of it.

[00:35:26] Speaker 01:
But it's that kind of situation that you're in.

[00:35:30] Speaker 01:
This is too much, shouldn't have been admitted, not the same kind of thing, the relationship with Anna,

[00:35:37] Speaker 01:
whatever you want to call it, was real.

[00:35:40] Speaker 01:
That's why I don't think the two acts of oral sex are as egregious as the acts that are committed against Christina.

[00:35:50] Speaker 01:
I'm not, and I'm not trying to, you know.

[00:35:53] Speaker 02:
Thank you.

[00:35:54] Speaker 02:
Thank you very much.

[00:35:54] Speaker 02:
Thank you very much.

[00:35:56] Speaker 02:
Mr. Thompson, Ms.

[00:35:57] Speaker 02:
Volcker, appreciate the oral argument presentations here today.

[00:36:01] Speaker 02:
The case of United States of America versus John Russell Bellhouse is submitted.