[00:00:00] Speaker 04:
are excused.

[00:00:02] Speaker 04:
We'll now turn to 33-7061, United States versus Bruce.

[00:00:19] Speaker 03:
While the attorneys are getting assembled here, I'll give you a brief summary of this case.

[00:00:28] Speaker 03:
there was a jury trial that convicted the defendant Stetson Bruce of sexually abusing his five-year-old son, R.W.

[00:00:38] Speaker 03:
With minors, we use their initials, so his son was R.W.

[00:00:42] Speaker 03:
In this direct criminal appeal, Bruce raises two primary arguments for reversal.

[00:00:49] Speaker 03:
First,

[00:00:50] Speaker 03:
Bruce challenges the district court's decision to admit into evidence a video recording of two out of court forensic interviews, one with RW, and that was the defendant, and one with RW's sister, who witnessed the alleged abuse, who testified to that effect.

[00:01:14] Speaker 03:
Bruce argues that the interview recordings are inadmissible hearsay evidence.

[00:01:21] Speaker 03:
The district court and hearsay evidence is evidence that is outside of court.

[00:01:27] Speaker 03:
The district court admitted the recordings under an exception, which allows hearsay evidence to be admitted if it is a prior consistent statement, which can only be admitted to rehabilitate a witness's credibility

[00:01:43] Speaker 03:
after that credibility has been attacked.

[00:01:47] Speaker 03:
And the government also argues it is admissible under another exception for medical treatments, statements for diagnosis purposes.

[00:01:56] Speaker 03:
And finally, the government says there's a third exception that should allow the evidence to come in under the residual hearsay exception, which is a catch-all exception to hearsay if the evidence is shown to be particularly reliable.

[00:02:11] Speaker 03:
In addition, Bruce argues that the district court abused its discretion by giving the interview recordings out of court to the jury for viewing during the jury deliberations without first playing those videos in court itself.

[00:02:32] Speaker 04:
Thank you, Judge.

[00:02:33] Speaker 04:
Mr. Anderson?

[00:02:52] Speaker 00:
Good morning, Your Honors.

[00:02:52] Speaker 00:
I please the court and counsel, John Anderson, on behalf of defendant appellant Stetson Bruce.

[00:02:57] Speaker 00:
It was my intention this morning, Your Honors, to reserve three minutes for rebuttal, and I will monitor my own time to that end.

[00:03:03] Speaker 00:
Your Honors, Mr. Bruce was sentenced to life imprisonment after a trial that was marked by the admission of powerful hearsay evidence in the form of forensic interviews with the victim, RW, and his sister, ER.

[00:03:14] Speaker 00:
The admission of this evidence was unsupported by any factual findings

[00:03:19] Speaker 00:
by the district court or any legal analysis by the district court.

[00:03:23] Speaker 00:
And on appellate review in this court, that evidence, the admission of that evidence finds no support in any applicable rule of evidence such that the district court's admission of the evidence was an abuse of discretion.

[00:03:35] Speaker 00:
This evidence formed a centerpiece of the government's case of trial such that the government cannot carry its burden of establishing the harmlessness of the evidence and accordingly we are asking this court

[00:03:46] Speaker 00:
to reverse Mr. Bruce's convictions.

[00:03:49] Speaker 00:
Your honor, I would like to begin this morning, if I may, by addressing potential admissibility under Rule 801, D1B2.

[00:03:58] Speaker 01:
Before you launch into that, there's a lot made of how the district court didn't elaborate at all, really, on the reasons why this evidence was admissible.

[00:04:09] Speaker 01:
And so should we be thinking about this under Rule 801?

[00:04:14] Speaker 01:
I mean, that's what the government

[00:04:16] Speaker 01:
There's one mention where the government says, how about 801?

[00:04:20] Speaker 01:
And it seems the court proceeded with that.

[00:04:23] Speaker 01:
Is that where we should be focusing our attention?

[00:04:25] Speaker 00:
Yeah, that's a good question, Your Honor.

[00:04:26] Speaker 00:
And again, as I mineral my brief, I'm at a bit of a loss as to march through the possible avenues of admissibility.

[00:04:32] Speaker 00:
Of course, part of this court's task is to determine whether it's admissible under any theory under the rules.

[00:04:40] Speaker 00:
That is where I started, because that is the argument that the government made.

[00:04:44] Speaker 00:
I'm not sure in terms of an order of operations, where do we start?

[00:04:47] Speaker 00:
Do we start with a non-hearsay under 801, or do we start with an exception?

[00:04:53] Speaker 00:
Your Honor, touching on D1, B2, I wanted to expand on that a little bit, and I don't disagree.

[00:05:02] Speaker 00:
801, D2, D2B, I get confused with that a little bit, but 801, D2B, the government suggests that that is, that the statements or the interviews would be admissible under that provision

[00:05:14] Speaker 00:
because the defendant attacked the credibility of ER and RW at trial.

[00:05:18] Speaker 00:
And I can't disagree with the idea that there was an attack on the credibility of these witnesses at trial.

[00:05:25] Speaker 00:
But this court has made clear, and certainly the advisory committee's commentary to the rule made clear, that an attack on credibility is by itself insufficient to support admission under D1B2.

[00:05:37] Speaker 00:
The touchstone for admissibility under D1B2 is the rehabilitative value

[00:05:43] Speaker 00:
of the evidence and what D1B2 does is if there is rehabilitative value then the evidence can come in not just for the purpose of the rehabilitation but as substantive evidence.

[00:05:56] Speaker 03:
Why wasn't the testimony as opposed to the witness challenge here under the argument that the witness was confused

[00:06:07] Speaker 03:
between a prior act of sex that that minor witness observed involving the father and the charge defense of a sexual act by the father against his minor son.

[00:06:22] Speaker 00:
I'm sorry, Judge Ubell, is your question why is that not rehabilitative in that respect?

[00:06:27] Speaker 03:
Of the evidence, right.

[00:06:28] Speaker 03:
Not of the witness, but of the evidence.

[00:06:32] Speaker 00:
Well, Judge Ebell, I think that it is not rehabilitative of the idea that he committed the act or certainly the witness's credibility here, right, which is what, as I understand it, Rule 801D1B2 speaks to.

[00:06:46] Speaker 00:
And here, one of the critical components, I'm sorry, I don't know if I'm answering your question, Judge Ebell, but it does not rehabilitate the witness's credibility.

[00:06:58] Speaker 04:
The fact that the witness gave a Saint similar account, the same account a year and a half or two years earlier, doesn't say something about credibility that the person can recite the same events?

[00:07:14] Speaker 00:
No, Your Honor, it doesn't.

[00:07:15] Speaker 00:
And I think it depends on what the attack is on the credibility, too.

[00:07:20] Speaker 00:
Because one of the things the government points out here is

[00:07:24] Speaker 00:
that the line of defense here was that abuse of the nature alleged in the indictment would have left physical injuries.

[00:07:30] Speaker 00:
With respect to that, certainly that does not address, as the United States Supreme Court said in Tomei, it does not, the defense does not meet the assault.

[00:07:42] Speaker 00:
In other words, establishing the president.

[00:07:44] Speaker 04:
You have to be careful about relying too much on Tomei, because the rule's been amended since then.

[00:07:50] Speaker 00:
I understand, Your Honor.

[00:07:51] Speaker 01:
Does it even apply to subpart two?

[00:07:54] Speaker 00:
That's a good question, Judge Rossman.

[00:07:55] Speaker 00:
I think it does.

[00:07:56] Speaker 00:
The commentary says that the temporal carryover in the new rule carries over from today.

[00:08:04] Speaker 00:
And I think it's an important discussion here because one of the questions here is at what point does the infirmity develop?

[00:08:13] Speaker 00:
In other words, if there is an attack and the government says, well, there's an attack on faulty memory or faulty recollection,

[00:08:19] Speaker 00:
There certainly was no finding here by the district court that at the time the initial statement was made that recollection was not faulty.

[00:08:26] Speaker 01:
And if you look... Whose burden is it to identify the relevant point in time?

[00:08:31] Speaker 00:
I believe it's the government's burden, Your Honor, as the proponent of that evidence.

[00:08:33] Speaker 00:
The government needs to show the threshold findings of admissibility, threshold elements of admissibility.

[00:08:39] Speaker 00:
And certainly here to come back to the initial point that underlies all of this, there were no findings from the district court that established

[00:08:47] Speaker 00:
the basis for admissibility of the evidence.

[00:08:50] Speaker 01:
So in light of the chronology that Tom insists on for the rule and if it applies to subpart two, is it your position that in the absence of a finding by the district court that there's nothing for us to defer to?

[00:09:06] Speaker 00:
Yes, Your Honor, and there is no finding that at the time that statement was made, the faulty memory had not arisen yet.

[00:09:12] Speaker 00:
And it's part of the dynamic that gets into the pretrial nature of the ruling here, because the defense, the faulty memory defense, was given the admissibility or the determination of the district court pretrial that this evidence was going to come in with only foundational testimony,

[00:09:31] Speaker 00:
Defense counsel had to go into this attacking not just the witnesses in trial, in court testimony, but the statements that were made in the forensic interviews that were going to be submitted to the jury.

[00:09:43] Speaker 00:
And in doing that, so there was an attack on the faulty memory.

[00:09:46] Speaker 00:
Your memory wasn't just faulty as you testify here today.

[00:09:49] Speaker 00:
It was faulty at the time you made those earlier recorded interviews.

[00:09:54] Speaker 00:
And remember, those took place two years after, more than two years after the alleged abuse in this case.

[00:10:02] Speaker 04:
I'm trying to think of what the nature of our review is here.

[00:10:07] Speaker 04:
If you're saying that the problem was that the judge didn't make a finding necessary to apply the exception, then what do we do if we agree with you?

[00:10:19] Speaker 04:
Do we reverse and then have a new trial where the judge may make a finding and we're right back where we started?

[00:10:28] Speaker 04:
Or are you saying there's no way the judge could make a finding?

[00:10:32] Speaker 00:
I wouldn't go that far, Your Honor.

[00:10:34] Speaker 00:
I wouldn't say that the district court couldn't make a finding.

[00:10:38] Speaker 00:
What I am comfortable saying to the court is the district court made no findings.

[00:10:41] Speaker 00:
We have no understanding of even what rule the district court believed supported admission of this evidence.

[00:10:49] Speaker 04:
So should we just reverse the verdict and judgment, or do we send it back down for the judge

[00:10:57] Speaker 04:
to make findings regarding the invisibility of this particular evidence.

[00:11:04] Speaker 04:
It should be just limited to that.

[00:11:06] Speaker 04:
And if the judge says, I make this finding, and well, say the judge says, I can't make the necessary finding, then you win.

[00:11:14] Speaker 04:
And it has to be retried without that evidence, if it's going to be retried at all.

[00:11:19] Speaker 04:
But if the judge says, I make the necessary finding, then it comes back to us to see if that was a reasonable finding.

[00:11:26] Speaker 04:
How do we proceed when the judge doesn't make finding on the record?

[00:11:36] Speaker 00:
in Paris and other cases, expressed a reluctance to make its own findings, whether to look at the record and make a finding as opposed to saying, is a finding in the district court supported?

[00:11:46] Speaker 00:
I think what this court needs to do is reverse the conviction and send it back down for a new trial.

[00:11:52] Speaker 04:
Why is a new trial necessary if we're just missing a ruling on evidence that could be, I see no reason why it has to go to a full trial to have that resolved.

[00:12:02] Speaker 00:
I don't think the record that we have, Judge Hartz, is sufficient to support that.

[00:12:08] Speaker 00:
There are other components that may go into a determination of the threshold questions under 8.01 or the 8.034 or 8.07 analysis here.

[00:12:17] Speaker 04:
And you think it would be improper to have an evidentiary hearing on the admissibility of the evidence on your name and just have that decided?

[00:12:25] Speaker 04:
I don't know what we've done in the circumstances.

[00:12:27] Speaker 04:
I'm asking your help.

[00:12:29] Speaker 00:
I don't think that having an evidentiary hearing here would be by itself sufficient without a new trial to answer those threshold questions in a vacuum outside of the trial that has already been conducted.

[00:12:41] Speaker 03:
But the trial, the judge would be the same judge who did the trial.

[00:12:45] Speaker 03:
And he may say, he or she may say, I can't make that ruling now because I've forgotten the details.

[00:12:52] Speaker 03:
But the judge might also say, I remember that pretrial, that trial clearly.

[00:12:57] Speaker 03:
I remember when this evidence came in and I did rule it was admissible.

[00:13:03] Speaker 03:
I remember that because the evidence came in.

[00:13:05] Speaker 03:
But let me explain why I ruled that way.

[00:13:09] Speaker 03:
Couldn't we give the judge the opportunity to say that?

[00:13:12] Speaker 03:
And then we can save the trial if the judge rules, it's okay.

[00:13:16] Speaker 00:
I suppose you could.

[00:13:17] Speaker 00:
I think that it'd be difficult, Judge Ebell, to go back and reconstruct that these years later.

[00:13:21] Speaker 03:
A lot of times the judge will say, I can't do it.

[00:13:24] Speaker 03:
But sometimes they say, I can.

[00:13:26] Speaker 03:
I can remember.

[00:13:27] Speaker 00:
I suppose that would be one avenue of doing it, Judge Ebell.

[00:13:31] Speaker 00:
I would have concerns given the state of the record and allowing the defendant to induce any additional evidence or argument that bears.

[00:13:39] Speaker 03:
We wouldn't tell the judge to take new evidence.

[00:13:43] Speaker 03:
we would say on the evidence and the transcript before you, what do you remember?

[00:13:48] Speaker 00:
I don't know that I've ever seen that done, Judge Ebell, in my experience.

[00:13:53] Speaker 03:
Judge Hartz is always coming up with creative solutions.

[00:13:56] Speaker 04:
No, no, I just don't want to waste time.

[00:13:58] Speaker 04:
I just don't want to waste time.

[00:13:59] Speaker 04:
And I must say, my memory, I don't ever recall this happening.

[00:14:05] Speaker 00:
I'm glad I'm not the only one.

[00:14:06] Speaker 00:
I don't recall that.

[00:14:08] Speaker 00:
But it would certainly be a potentially viable avenue.

[00:14:11] Speaker 00:
My position is that it would have to go back for a new trial at the end of the day.

[00:14:15] Speaker 01:
And counsel, isn't your position, if I understand it correctly, about the need for a new trial related in some way to your argument about the threshold motion to eliminate error?

[00:14:26] Speaker 00:
Absolutely.

[00:14:26] Speaker 01:
Can you speak to that argument?

[00:14:28] Speaker 00:
To the threshold.

[00:14:30] Speaker 00:
Yes, Your Honor, and I consider that sort of the kicking off point, you know, when you're off by a degree or so and you go down the road and then you're a mile away from your target.

[00:14:38] Speaker 00:
What happened here was the district courts ruled in response to the Motion Lemonade that the forensic interviews would be admitted.

[00:14:45] Speaker 00:
It went on and said that they would not be shown to the jury, would be given to them in deliberation.

[00:14:50] Speaker 00:
the court went on to discuss are we going to admit a full or just a truncated version.

[00:14:55] Speaker 00:
So it was really that error that put defense counsel in a position of not only having to address the witnesses trial testimony but having to address

[00:15:05] Speaker 00:
the forensic interviews as well.

[00:15:07] Speaker 00:
And that again is incompatible with the rationale behind Rule 801.

[00:15:11] Speaker 00:
The advisory commentary to Rule 801 says, should the defendant choose to open the door to this prior consistent statement, we see no reason why it should not come into substantive evidence.

[00:15:22] Speaker 04:
at the motion for limiting and ruling on that.

[00:15:25] Speaker 04:
Did the judge say I'm going to admit it or just say I'm denying the motion in limiting, we'll see what happens at trial?

[00:15:31] Speaker 00:
He did not say we'll see what happens at trial.

[00:15:32] Speaker 00:
He said the evidence will be admitted upon proper foundation testimony.

[00:15:38] Speaker 00:
When the government admitted this testimony, all it did was it put up the interviewer and essentially said, do you see that CD that has your initials on it?

[00:15:44] Speaker 00:
Is that a copy of the interview?

[00:15:46] Speaker 00:
Yes, it is.

[00:15:47] Speaker 00:
Move admission of the interview.

[00:15:48] Speaker 00:
So there was not the type of

[00:15:50] Speaker 00:
of foundation that we ordinarily consider in terms of 801 and the idea of opening the door to the testimony.

[00:15:57] Speaker 00:
Or just authentication.

[00:15:59] Speaker 00:
Correct, Your Honor.

[00:16:00] Speaker 00:
That's exactly right.

[00:16:01] Speaker 00:
It was authentication.

[00:16:04] Speaker 01:
I have another question.

[00:16:06] Speaker 00:
Absolutely.

[00:16:07] Speaker 01:
Could you speak to your argument on Rule 43, the sending of the videos to the jury room without playing them in open court?

[00:16:16] Speaker 01:
You don't address that in your reply.

[00:16:18] Speaker 01:
I just wanted to know what

[00:16:19] Speaker 01:
the status of that argument is?

[00:16:21] Speaker 00:
Yes, Your Honor.

[00:16:22] Speaker 00:
It is a live argument.

[00:16:23] Speaker 00:
And again, I have Circuit Court pressing from the Ninth Circuit on that that says it's structural error.

[00:16:28] Speaker 01:
What if it's not structural error?

[00:16:30] Speaker 00:
If it's not structural error, I don't prevail in the argument.

[00:16:34] Speaker 00:
As I see, I have a little bit about a minute left.

[00:16:36] Speaker 00:
I'd reserve that for rebuttal, if I may.

[00:16:43] Speaker 04:
Ms.

[00:16:43] Speaker 04:
Williams?

[00:16:51] Speaker 04:
Why don't you start by explaining how we can confirm when the judge didn't make predicate findings?

[00:17:00] Speaker 02:
I would love to start there, Your Honor.

[00:17:02] Speaker 02:
Lisa Williams, representing the United States of America.

[00:17:08] Speaker 02:
The judge could have made more findings about what he was thinking in admitting this evidence.

[00:17:15] Speaker 02:
The government isn't going to argue that there is a plethora of information that gets us inside Judge Jones' head.

[00:17:23] Speaker 02:
But that is not required for this court.

[00:17:26] Speaker 02:
Those type of detailed findings aren't required for this court to analyze the issue on appeal.

[00:17:33] Speaker 02:
The standard of review here, of course, is abuse of discretion.

[00:17:37] Speaker 01:
Could you be really specific about why the findings aren't required if we're analyzing this under 801?

[00:17:43] Speaker 01:
Because it seems to me that they are.

[00:17:46] Speaker 02:
So this court's task

[00:17:47] Speaker 02:
is to determine whether or not the district court made a clear error of judgment or exceeded the bounds of permissible choice.

[00:17:55] Speaker 02:
And in doing so, the court, and this is, I cited the Davis case, but it's well established law, the appellate court can affirm the rulings on 801, 803, subsection four, 807.

[00:18:10] Speaker 02:
This court can affirm the lower court's rulings on any ground that finds support in the record

[00:18:17] Speaker 02:
So this court is able to look at the record on appeal and affirm the omission of the evidence on any ground, which indicates making its own factual determinations, even if the district court's factual determinations are lacking.

[00:18:31] Speaker 01:
I don't disagree with anything you said as a general matter.

[00:18:35] Speaker 01:
If we are analyzing this as the government urges us to under subpart two,

[00:18:40] Speaker 01:
and Tome applies, or at least doesn't destabilize how we're supposed to understand the federal rules, and we are seeking and finding about timing, about chronology, and there isn't one, how could we possibly affirm under subpart two?

[00:19:01] Speaker 02:
I would submit that Tome does destabilize to some bit the analysis under B2, because of course that's the 2014 amendment put in well after Tome.

[00:19:11] Speaker 02:
But here's what I would submit, Your Honor.

[00:19:13] Speaker 01:
Is that your argument for why Tome doesn't necessarily apply?

[00:19:15] Speaker 01:
I just want to make sure I know the scope of your presentation.

[00:19:18] Speaker 02:
I don't think that this court has to resolve whether or not Tome has been destabilized or applies to affirm this matter.

[00:19:24] Speaker 02:
I don't think this court needs to reach that.

[00:19:27] Speaker 02:
I think that the very best argument for the omission of ER's interview is a B2 argument.

[00:19:35] Speaker 02:
And the very best argument for RW's admission is a B1 argument.

[00:19:42] Speaker 02:
And so I'd like to pull those apart and look at each one of those.

[00:19:46] Speaker 01:
So B. Could you answer my question first about part two?

[00:19:49] Speaker 02:
So B2, and that's what I was gonna say.

[00:19:51] Speaker 02:
I don't think RW fits as neatly under B2 as it does B1, so I'm gonna focus on EW with B1.

[00:19:59] Speaker 02:
EW, the allegation against her,

[00:20:03] Speaker 02:
was that she has transposed the sight of her father and Amy having sex, and it has created a false memory that then led her to say that she saw her father having sex with RW.

[00:20:19] Speaker 02:
There's this false memory line of attack.

[00:20:22] Speaker 02:
And B2 is to rehabilitate that memory.

[00:20:26] Speaker 02:
Now the timing that this happens is E.W.

[00:20:31] Speaker 02:
says to her mother, I saw dad and Amy having sex.

[00:20:37] Speaker 02:
And by the way,

[00:20:39] Speaker 02:
This reminds me that I also saw dad having sex with my younger brother.

[00:20:43] Speaker 02:
That's how this all kind of gets to the forensics interview stage.

[00:20:47] Speaker 02:
And so when EW shows up for that forensics interview, she had just a few days ago recently seen her dad and Amy having sex.

[00:20:58] Speaker 02:
And so the idea that she would be confusing this very recent memory with what she saw two years in the past is not credible.

[00:21:09] Speaker 02:
And so introducing the prior interview of when she gave that information so recent to observing the Adult Sex Act rehabilitates her against the argument that she's falsely transposing these memories.

[00:21:29] Speaker 02:
And it really goes to the meat of what B2 is designed to allow.

[00:21:40] Speaker 02:
For RW, the argument is slightly different because the best argument for RW is not a rehabilitation argument, which is a B2.

[00:21:50] Speaker 02:
It's a rebut and express or implied claim of recent fabrication.

[00:21:55] Speaker 02:
And that happened when defense counsel asks RW, well, you know, you've talked to the prosecutor quite a bit and he's told you what to say.

[00:22:05] Speaker 02:
Right then and there,

[00:22:09] Speaker 02:
that opens the door to admissibility to his prior interview.

[00:22:12] Speaker 02:
Now, and I do want to correct the record on this because defense counsel argues in the reply brief that there is no, nothing in the record to support when the government spoke with RW.

[00:22:24] Speaker 02:
That's not true.

[00:22:25] Speaker 02:
In fact, the very first line of redirect examination that government counsel did with RW was to clear up how many times and when he had spoken with the child.

[00:22:36] Speaker 02:
And the government attorney spoke to RW twice, once was a few days before trial, and once was earlier in that year.

[00:22:45] Speaker 02:
This case was tried in July of 2022, so earlier in the year is earlier in 2022.

[00:22:50] Speaker 02:
The forensics interview took place a year before that, in 2021.

[00:22:55] Speaker 02:
And so at this point, when defense counsel suggests that the government is coaching RW, helping him what to say, helping him how to testify at trial, they have opened the door under B1 to admit the prior interview to rebut that claim, to rebut the claim that the government is feeding RW what to say, because RW said these same exact words a year prior to even talking to the government attorney.

[00:23:22] Speaker 02:
So those are the two, I believe, strongest arguments for why 801 admits both interviews, albeit a little different for each one.

[00:23:33] Speaker 01:
That was very helpful.

[00:23:34] Speaker 01:
Thank you.

[00:23:34] Speaker 01:
I have a remaining question, and it really does relate to the threshold problem that I see in this case, which is,

[00:23:42] Speaker 01:
We agree with you about 801 sort of after the fact, you know, the concentration of the rule is, as the Supreme Court tells us, on rebutting.

[00:23:51] Speaker 01:
It's about rebutting charges.

[00:23:53] Speaker 01:
And the government started there.

[00:23:55] Speaker 01:
The government, you know, you said, at our peril, we talked about this in opening, at our peril.

[00:24:01] Speaker 01:
Why isn't that

[00:24:03] Speaker 01:
Well, it's not alleged to be misconduct, and maybe it isn't misconduct.

[00:24:06] Speaker 01:
And I'm not suggesting so.

[00:24:08] Speaker 01:
But it's certainly problematic and seems to be entirely inconsistent.

[00:24:12] Speaker 01:
It's like the argument that you've just provided on the subpart one and two seems entirely divorced from how this is in the case at all.

[00:24:19] Speaker 01:
Why isn't that an enormous problem for the government?

[00:24:23] Speaker 02:
You know, Your Honor, it's

[00:24:28] Speaker 02:
It's hard for me to argue.

[00:24:30] Speaker 02:
That is not a choice had I been trial counsel.

[00:24:33] Speaker 02:
I would not have referenced these interviews and openings because my read of this record makes very clear that they had not been admitted and they would only do so if the proper foundation would be laid.

[00:24:45] Speaker 02:
And I think where defense counsel and I really differ on this argument is what the court means by laying the proper foundation.

[00:24:52] Speaker 02:
And that's really I think what this court is going to have to resolve is what the court meant to that.

[00:24:57] Speaker 02:
With being the government attorney, what I see in that is it's not an authentication.

[00:25:02] Speaker 02:
It's not these videos are true and accurate copies of what was said and they haven't been manipulated.

[00:25:09] Speaker 02:
It is the foundational requirements that 801 requires.

[00:25:12] Speaker 02:
I mean as a

[00:25:13] Speaker 02:
threshold matter, both children had to testify, right?

[00:25:17] Speaker 02:
The rule requires that the witness testify and be subject to cross-examination.

[00:25:21] Speaker 02:
That, to the government, is a foundational requirement of the rule.

[00:25:25] Speaker 04:
That makes sense, but maybe I misunderstand what happened, the trial.

[00:25:31] Speaker 04:
But before trial, he said, the judge said, I'll let it in if the foundational requirements are met.

[00:25:38] Speaker 04:
And then at trial, the judge let it in as soon as it was authenticated.

[00:25:42] Speaker 02:
Oh, I disagree, Your Honor.

[00:25:43] Speaker 02:
These videos didn't come in until after both children had testified, subject to cross-examination.

[00:25:51] Speaker 02:
And then they introduced them.

[00:25:53] Speaker 02:
There was a couple of other witnesses that testified as well.

[00:25:56] Speaker 02:
Opening statements had been made.

[00:25:57] Speaker 02:
And then only when the interviewers were called, I believe, as the fifth or sixth witnesses, did they come in.

[00:26:04] Speaker 02:
And so the government's argument is it didn't

[00:26:09] Speaker 02:
expressly say now, there wasn't a well-developed argument.

[00:26:14] Speaker 02:
The record is lacking that.

[00:26:15] Speaker 02:
But the calling of the witnesses, the cross-examination, those are all of the foundational boxes that are getting checked out as the trial proceeds.

[00:26:25] Speaker 02:
And then once the government goes to admit the videos and also authenticates them through those witnesses, and the videos are true and accurate copies,

[00:26:35] Speaker 02:
then all of the foundation requirements of 8.01 have been met and have been laid, and that's why they're finally admitted.

[00:26:42] Speaker 01:
So we have to, even to engage with your merits argument on 8.01, really ignore how this got in the case improperly in the first place.

[00:26:51] Speaker 02:
Well, I don't think, I guess you could say ignore it, Your Honor.

[00:26:57] Speaker 02:
That's a harsh word.

[00:26:58] Speaker 02:
I don't think it's relevant to the inquiry at the end of the day.

[00:27:05] Speaker 01:
Why not?

[00:27:06] Speaker 01:
I'm really struggling with that.

[00:27:07] Speaker 01:
So can you help me?

[00:27:08] Speaker 01:
If we're writing this in favor of your position, what do we do with the way that this evidence was injected into the case?

[00:27:18] Speaker 02:
At the end of the day, the trial court never pre-admitted this evidence.

[00:27:23] Speaker 02:
It never said it's coming in.

[00:27:25] Speaker 01:
It didn't pre-admit as a matter of law.

[00:27:27] Speaker 02:
Correct.

[00:27:27] Speaker 01:
But didn't that fundamentally, that ruling on the motion to eliminate fundamentally affect the trajectory of the defense?

[00:27:34] Speaker 02:
I don't think it did because of the fundamental characteristics of this case.

[00:27:40] Speaker 02:
And you have two children who are going to come into court and say the defendant did these sex acts.

[00:27:48] Speaker 02:
Right?

[00:27:49] Speaker 02:
This is not surprise testimony.

[00:27:53] Speaker 02:
Going in, everybody knows that this case is going to center around these two kids testifying.

[00:27:59] Speaker 02:
And because of that, we see a lot that says, from defense counsel, the argument that this made the defense go on offense and had to, they had to do that anyway, your honor.

[00:28:12] Speaker 02:
I mean, these kids are coming in and they're saying what they're saying.

[00:28:15] Speaker 02:
And so I think that the posturing of this case and the way the record is, is more about

[00:28:21] Speaker 02:
the facts of this case and what it's about, then some sort of procedural error that's gonna be, that the court has to address.

[00:28:32] Speaker 02:
And I think I would be remiss in not using some of my last time to of course turn to the argument that this

[00:28:44] Speaker 02:
Court need not figure out if there's error here, because of course the government has its harmless error argument.

[00:28:52] Speaker 02:
Both children testified.

[00:28:57] Speaker 02:
And again, going back to this case, you have Eeyore making a statement after seeing her dad and Amy have sex, making a statement that, oh, this also happened to my brother.

[00:29:11] Speaker 02:
These children have not spoken with each other.

[00:29:14] Speaker 02:
They haven't been in the same room.

[00:29:15] Speaker 02:
They haven't seen each other for two years.

[00:29:18] Speaker 02:
And they pull RW in.

[00:29:21] Speaker 02:
Nix, the grandmother, testifies that she doesn't even know why they're there.

[00:29:25] Speaker 02:
So nobody tells RW why he's there for the forensics interview.

[00:29:29] Speaker 02:
And yes, he doesn't admit right away what happens.

[00:29:31] Speaker 02:
But then he does say, my dad placed his TT in my butt, talking about anal sex.

[00:29:38] Speaker 02:
These are not children whose stories are inconsistent.

[00:29:41] Speaker 02:
It's not maybe he touched my penis or he put his mouth over my penis.

[00:29:47] Speaker 02:
They describe the same exact sex act, independent of each other, with no motive to lie.

[00:29:56] Speaker 02:
What is RW's motive to lie?

[00:29:59] Speaker 02:
And so that alone, that is such powerful evidence.

[00:30:03] Speaker 02:
And then that they testify to at trial that the emission of the videos, which are cumulative, really is harmless error.

[00:30:14] Speaker 02:
But aside from the children's testimony, right, you have Nick saying that R.W.

[00:30:18] Speaker 02:
was very upset after living with his daddy would cry, daddy's being mean to me, he doesn't want to go back.

[00:30:24] Speaker 02:
The preschool teacher that the defense called as their own witness talked about the change that she saw in R.W.'

[00:30:31] Speaker 02:
's behavior at school, that he was a happy little boy and then all of a sudden would cry and say he doesn't want to go back to dad's house.

[00:30:39] Speaker 01:
Council, is your argument on harmlessness

[00:30:42] Speaker 01:
the content of it, is it the same for the alleged error of showing the videos only in the jury room?

[00:30:51] Speaker 01:
In other words, sorry, that was not an artful question.

[00:30:53] Speaker 01:
Is it harmless in the government's view if we don't assess that error under structural rubric because of all the reasons you've just recited that go to the admission of the videos in the first place?

[00:31:13] Speaker 02:
I don't think that you could have a structural error that's harmless, Your Honor.

[00:31:17] Speaker 01:
If it's not structural.

[00:31:20] Speaker 02:
If it's not structural, then it is.

[00:31:22] Speaker 02:
Not only is it not harmless, but defense has to show some prejudice that he suffered as a result of not showing the videos, and he's just failed to do so.

[00:31:32] Speaker 01:
I mean, the videos, by all... So the analysis, you would say, is different.

[00:31:35] Speaker 01:
If we conclude that the Rule 43 error, or construed as a constitutional error, is not structural, we apply harmlessness.

[00:31:42] Speaker 01:
analysis there, your position is that the defendant did not meet his burden to show prejudice?

[00:31:47] Speaker 02:
That's correct, Your Honor.

[00:31:49] Speaker 02:
Because I don't know what prejudice could result in the jury not seeing additionally bad evidence.

[00:31:55] Speaker 02:
And it's cumulative?

[00:31:58] Speaker 02:
But it's cumulative, but it's not good evidence.

[00:32:01] Speaker 02:
And I see I'm out of time if I may finish the question.

[00:32:04] Speaker 02:
It's not good, it's not helpful evidence for the defense.

[00:32:08] Speaker 02:
So how could there be any prejudice from the jury not viewing inculpatory evidence?

[00:32:15] Speaker 02:
That's more of the government's argument is.

[00:32:19] Speaker 02:
But they didn't, the viewing is an open court.

[00:32:22] Speaker 02:
Correct.

[00:32:22] Speaker 02:
That's the issue, right?

[00:32:23] Speaker 02:
Yes, that's correct.

[00:32:25] Speaker 02:
And we don't know if they viewed it in the jury room.

[00:32:30] Speaker 04:
Thank you.

[00:32:30] Speaker 02:
Thank you.

[00:32:32] Speaker 04:
Mr. Anderson, I'll give you two minutes.

[00:32:42] Speaker 00:
Your Honors, I'd like to come back and touch on just a couple of points that my colleague raised.

[00:32:47] Speaker 00:
The first is the structure, the idea of what was the impact and effect of the district court's pretrial ruling.

[00:32:55] Speaker 00:
I don't think it is a fair reading of this record to suggest that what the district court did was essentially deny the motion eliminated to exclude the evidence and say we will figure it out later on a trial depending on how that unfolds.

[00:33:09] Speaker 00:
The district court said it would be admitted upon foundation testimony.

[00:33:13] Speaker 00:
The district court then made the determination that it would not be shown to the jury, but would be provided to them in the jury room.

[00:33:20] Speaker 00:
Again, there was a very lengthy colloquy about would the full video be provided or only a truncated version.

[00:33:26] Speaker 00:
The government then put on a witness to talk about the process of forensic interviewing and how it works.

[00:33:32] Speaker 00:
So this was clearly understood.

[00:33:35] Speaker 00:
And of course, in opening statement, the first words out of the government's mouth were right from that forensic interview.

[00:33:40] Speaker 01:
So, counsel, so if we, let's say we disagree with you as a matter of law in the Motion of Women A ruling, what do you say to the government's argument made here today that we shouldn't ignore, that's a harsh word, that was my word, but that really it's the fundamental characteristics of this case that ameliorate whatever problem there may have been by injecting this in the way, injecting this evidence into the case in the way that it did.

[00:34:07] Speaker 00:
I don't agree that there's anything unique about this case that changes or ameliorates the way that the evidence came in, in particular with respect to RW.

[00:34:17] Speaker 00:
I see that I'm out of time.

[00:34:18] Speaker 00:
Can I finish?

[00:34:20] Speaker 00:
Yes.

[00:34:21] Speaker 00:
Particularly with respect to RW and coming back to the discussion with the Assistant U.S.

[00:34:27] Speaker 00:
Attorney, again, defense counsel is operating based on the district court's ruling on the belief that this was coming in and any discussion or line of questioning just couldn't make it worse because that evidence was coming in.

[00:34:38] Speaker 00:
Thank you.

[00:34:40] Speaker 04:
Thank you counsel.

[00:34:43] Speaker 04:
Case is submitted.

[00:34:44] Speaker 04:
Counselor excused.

[00:34:46] Speaker 04:
That was an excellent argument.

[00:34:47] Speaker 04:
I'm glad our visitors got to hear.

[00:34:49] Speaker 04:
And the one