[00:00:02] Speaker 03:
All right, our next case is 23-7022, the United States versus our home.

[00:00:08] Speaker 03:
Ms.

[00:00:08] Speaker 03:
Daggett.

[00:00:11] Speaker 03:
Take your time.

[00:00:14] Speaker 02:
Thank you, Your Honor.

[00:00:17] Speaker 02:
Good morning, Your Honors.

[00:00:18] Speaker 02:
May it please the court, my name is Sandy Baggett.

[00:00:20] Speaker 02:
I represent the defendant appellate Joseph Harjo.

[00:00:24] Speaker 02:
Your Honor, I'll be honest.

[00:00:26] Speaker 02:
I'm happy to jostle around the order of the issues.

[00:00:33] Speaker 02:
They are quite different.

[00:00:36] Speaker 02:
And if the court would like for me to prioritize one or the other, I'm happy to do that.

[00:00:41] Speaker 02:
Otherwise, I'll proceed as in the briefing.

[00:00:44] Speaker 03:
I wouldn't mind if you started on the Rule 414 issue.

[00:00:47] Speaker 02:
I can do that.

[00:00:48] Speaker 02:
That's essentially what I was asking.

[00:00:51] Speaker 02:
Thank you, Your Honor.

[00:00:53] Speaker 02:
Your Honor, on the 414 and 403 issue in this court,

[00:01:03] Speaker 02:
The real question is if you look at the trial in its totality and everything that occurred, there are, granted, individual little tiny roles that this court has found on small parts of when 414 evidence may be allowed, how it should be allowed, whether it is cumulative, what types of factors may be considered,

[00:01:28] Speaker 02:
And granted, if you looked at one of those in isolation, perhaps the rulings of the district court would fulfill this court's rules and standards on individual little parts.

[00:01:44] Speaker 02:
But what I'm asking the court is to look at it in its totality.

[00:01:48] Speaker 02:
and everything, all of the small decisions, and there were many of them related to 414 and 403 that occurred in this trial, that the totality of those meant that this defendant did not get a fair trial.

[00:02:02] Speaker 02:
And by that I mean the judge took the government's, initially took the government's proffer of what these witnesses would say at face value without evaluating any of the other evidence that was raised by the defendant to undermine the credibility and the statements of these individual witnesses.

[00:02:23] Speaker 02:
He had already been acquitted of conduct of two of the witnesses.

[00:02:28] Speaker 02:
And then for the other three, they had made statements to both Child Welfare Services and to the Tulsa County Police Department, the Tulsa County District Attorney's Office many years before this trial, which was a retrial.

[00:02:43] Speaker 02:
And nobody believed them.

[00:02:46] Speaker 03:
Your objection here really is that the district court abused its discretion and its gatekeeping.

[00:02:52] Speaker 03:
That's correct.

[00:02:54] Speaker 03:
You know, I think, you know, as a general matter, the government can proffer testimony in the way that it did here.

[00:03:06] Speaker 03:
And is your objection that you wanted basically a

[00:03:12] Speaker 03:
pretrial credibility determination by the district court or some kind of admissibility finding?

[00:03:21] Speaker 02:
When I think that there are significant doubts raised about that proffer, then the district court has to do some step further.

[00:03:29] Speaker 02:
I mean, the government is arguing the district court doesn't have to do anything, that they literally can take the proffer at face value.

[00:03:34] Speaker 02:
But in this case, there were substantial issues raised about that proffer.

[00:03:40] Speaker 02:
Number one, for example, the two children where the conduct was acquitted, the proffer was statements those children didn't even make.

[00:03:49] Speaker 02:
They were made by the mother, not by the children, either to child welfare services or in the trial.

[00:03:54] Speaker 02:
And further, the district court knew that

[00:04:01] Speaker 02:
when the government made those proffers, the government didn't know where the witnesses were, had never met them, had never interviewed them.

[00:04:10] Speaker 03:
And that's the argument you made in the district court, and the district court said, you know, I'm overruling those objections.

[00:04:19] Speaker 03:
But what should he have done?

[00:04:20] Speaker 03:
Brought the witnesses in?

[00:04:23] Speaker 03:
And then just tell me what should have happened here.

[00:04:27] Speaker 02:
Yeah.

[00:04:28] Speaker 02:
I mean, our position obviously is that there should have been some type of pretrial hearing when the 414 witnesses were not the subject of a conviction, which is the normal case, which is in your case law, is the situation where

[00:04:43] Speaker 02:
Those worries are kind of overcome.

[00:04:46] Speaker 02:
The worries about is the conduct sufficiently proven and are could a jury find by preponderance of the evidence that the conduct occurred.

[00:04:55] Speaker 02:
Those are really the two things that we're talking about here.

[00:04:57] Speaker 01:
What case are you relying on or cases to support our understanding of when a hearing would be required for 414 evidence?

[00:05:06] Speaker 02:
Janet, if I can just flip to my brief.

[00:05:28] Speaker 02:
Your Honor, I'm citing from page 30 of my opening brief, the Benali case, Your Honor.

[00:05:35] Speaker 02:
In that case, this court reviewed a district court that did hold a hearing for witnesses, 414 witnesses who had not been prior, the subject of a prior conviction by the defendant.

[00:05:51] Speaker 02:
And the court approved the procedure.

[00:05:55] Speaker 02:
I'm sorry, Your Honor.

[00:05:56] Speaker 02:
Go ahead.

[00:05:58] Speaker 04:
Excuse me, I didn't hear the name.

[00:06:02] Speaker 02:
The court, the case is Benally, your honor, B-E-N-A-L-L-Y.

[00:06:11] Speaker 02:
That's a 2007 case from this court.

[00:06:14] Speaker 03:
But our other cases say that a hearing's permissible but not required.

[00:06:21] Speaker 02:
Right, and I guess the question here is when is a hearing

[00:06:25] Speaker 02:
Does there come a point where a hearing should be required?

[00:06:28] Speaker 02:
And I'm arguing that in this case it should have been.

[00:06:32] Speaker 03:
Because there have been no convictions based on those.

[00:06:37] Speaker 02:
Because there had been no conviction, the prosecutor had done nothing to try to look into the credibility of the witnesses or the credibility of their statements.

[00:06:46] Speaker 02:
The Tulsa County District Attorney did not believe the witnesses.

[00:06:49] Speaker 02:
Child Welfare Services did not believe them.

[00:06:53] Speaker 02:
And in addition, the defense had proffered an expert witness that looked at the entire child welfare services file.

[00:07:02] Speaker 02:
and found that it was highly likely that the three of the three witnesses who were not subject to a trial had fabricated memories because the defendant didn't even have access to them at the time.

[00:07:15] Speaker 02:
They were living with their mother and her boyfriend who was an entirely different person.

[00:07:20] Speaker 01:
So we've never addressed the precise issue that you're bringing, right?

[00:07:24] Speaker 01:
I think that's correct.

[00:07:25] Speaker 01:
Because there was a hearing and we affirmed that procedure.

[00:07:28] Speaker 01:
Exactly.

[00:07:29] Speaker 01:
Is there any other law that you can point us to that would provide some sort of parameters for district courts to consider when a hearing might be required if it's just permissible and not required?

[00:07:42] Speaker 02:
Your Honor, I mean, I think that there is no law on this.

[00:07:48] Speaker 02:
I mean, that's really the question before the court.

[00:07:50] Speaker 01:
Why do you think that is so?

[00:07:51] Speaker 01:
It seems like there is no law on this.

[00:07:54] Speaker 01:
is the district court's discretion to hold the hearings in the atmosphere of what its duties are.

[00:08:02] Speaker 01:
And then 414 has this balancing.

[00:08:06] Speaker 01:
403 component to it.

[00:08:08] Speaker 02:
So my guess would be, and this is just speculation, is that because for the most part district courts do hold hearings when they are not the subject of a prior conviction.

[00:08:19] Speaker 02:
And for the most part, at least in my experience, the government doesn't proffer 414 witnesses who were not already the subject of a conviction.

[00:08:27] Speaker 02:
So this is just an unusual... It's an unusual set of facts, I think.

[00:08:31] Speaker 03:
You did get a limiting instruction before each

[00:08:35] Speaker 03:
each witness and an opportunity to cross-examine.

[00:08:40] Speaker 03:
It was well done.

[00:08:43] Speaker 03:
But you didn't ask for a mistrial after any of the witnesses.

[00:08:48] Speaker 03:
And to the extent they had the flaws that you suggested, they were liars or whatever, shouldn't you have asked the court to do over there?

[00:09:00] Speaker 02:
No, the court had in its pre-trial rulings had said that if on the defense objections for each of these witnesses it found that a mistrial was appropriate, that the court would enter a mistrial.

[00:09:15] Speaker 02:
And so I think the issue was preserved.

[00:09:18] Speaker 02:
And because the court had asked defense not to go into lengthy objections in front of the jury related to the 401-4 witnesses, so there was basically a shorthand

[00:09:30] Speaker 02:
employed at the trial, which encompasses all of the defense's prior objections to these witnesses with just a simple object to the witness during the course of the trial.

[00:09:40] Speaker 02:
But the court had made it clear that, yeah.

[00:09:45] Speaker 03:
Was there any exculpatory materials that were ever provided by the government?

[00:09:51] Speaker 02:
Exculpatory to what?

[00:09:53] Speaker 02:
What do you mean by that?

[00:09:54] Speaker 03:
Relating to the other victims.

[00:09:59] Speaker 03:
No.

[00:10:00] Speaker 03:
I mean, was it impossible for you to interview the victims or the human services people that might have interacted with them?

[00:10:12] Speaker 03:
What opportunity for other investigation did you have?

[00:10:16] Speaker 02:
Because of the age of the case and there was a retrial.

[00:10:20] Speaker 02:
All of the child services people were no longer working at that agency.

[00:10:26] Speaker 02:
We did try to reach them.

[00:10:28] Speaker 02:
We also did attempt to interview some of the 414 witnesses and their mother, and they refused to speak to us, not surprisingly.

[00:10:42] Speaker 01:
Can I ask you to clarify your position on what our standard of review is?

[00:10:46] Speaker 01:
Because it seems that

[00:10:48] Speaker 01:
from what you're describing today and in your brief, you're making a truly legal argument about the court's gatekeeping role and when an evidentiary hearing should be held and so forth.

[00:11:02] Speaker 01:
And the government points out that de novo review is limited to circumstances where the record sheds insufficient light on how the district court viewed the proffered evidence and cites to our McVeigh case.

[00:11:16] Speaker 01:
And by your reply, will you

[00:11:17] Speaker 01:
your reply brief, it seems like you accept that formulation and that we are on abuse of discretion review.

[00:11:23] Speaker 01:
So where are we in terms of reviewing the error that you are bringing forth?

[00:11:29] Speaker 02:
Your Honor, I also cited McVeigh in the opening brief.

[00:11:33] Speaker 02:
My reading of that case is that where the district court fails entirely to perform a gatekeeping function, then it is de novo under McVeigh.

[00:11:45] Speaker 02:
That's my reading of the rule in that case, and that is our position.

[00:11:49] Speaker 02:
The reply brief just demonstrates how much the district court abdicated that responsibility to the government.

[00:11:56] Speaker 02:
In other words, everywhere when we asked the district court to make a ruling, they said, oh, well, we will rely on the government to make sure it doesn't become a mini trial.

[00:12:06] Speaker 02:
We will rely on the government to make sure there's not an improper jury finding or an improper verdict.

[00:12:14] Speaker 02:
The court repeatedly, we will rely on the government to get the Tulsa County files

[00:12:20] Speaker 02:
and provide them.

[00:12:23] Speaker 02:
We will rely on the government's proffer and assume that they will do due diligence and make sure that the witnesses really are going to say these things before they go to trial.

[00:12:33] Speaker 02:
In other words, he completely abdicated everything to the government in making sure that the defendant received a fair trial.

[00:12:42] Speaker 02:
The government did none of those functions.

[00:12:45] Speaker 02:
The result is a trial that was dominated by these witnesses who came and testified that they were raped at gunpoint.

[00:12:56] Speaker 02:
I don't even know that the jury could remember who the original witness was and the actual witness for the trial, the charge, didn't even identify the defendant at the trial.

[00:13:08] Speaker 01:
So your answer is we're on de novo review.

[00:13:11] Speaker 02:
Yes, Your Honor.

[00:13:14] Speaker 04:
Can I ask a question, please?

[00:13:18] Speaker 04:
As I understand your response to Judge Rossman, you're asking for us to design some kind of rule similar to the dormant requirements that the judge be the keeper and start off with a hearing.

[00:13:38] Speaker 04:
before any of that can be admitted and made the determination.

[00:13:43] Speaker 04:
Is that what you're trying to ask us to do?

[00:13:46] Speaker 04:
To create a, in this statute, create a rule that says that the district judge has to use similar to a dog.

[00:13:58] Speaker 02:
Your honor, I'm not asking, and I don't think it would be appropriate to have a rule where in every single case there has to be a pretrial hearing.

[00:14:06] Speaker 02:
But what I do think the rule should say is that where there is proffered evidence by the defense or that undermines the credibility of the proffer given by the government, then there must be more inquiry from the court.

[00:14:25] Speaker 02:
Whether that is asking for affidavits from the witnesses.

[00:14:30] Speaker 02:
I mean, if you don't want to say that they have to actually come in court and appear twice in court.

[00:14:35] Speaker 01:
So is your argument then under McVeigh that the record here did not put the district court in a sufficient position to understand the proffer, to fully understand the proffered evidence?

[00:14:50] Speaker 02:
I think the district court could have, if he wanted to, he just ignored absolutely everything and said, the government has assured me that this is okay and I'm going to take the government's assurance.

[00:15:01] Speaker 03:
Well, there was a motion for reconsideration on this topic, right?

[00:15:06] Speaker 03:
I mean, he approved it and then you came back and asked for an additional hearing.

[00:15:14] Speaker 03:
There was briefing and a hearing on it, right?

[00:15:18] Speaker 02:
There was a hearing on whether to have a hearing.

[00:15:23] Speaker 02:
I wouldn't ask multiple times for a hearing, Your Honor, including, I believe, the day the trial started.

[00:15:29] Speaker 02:
It was obviously a critical issue for the trial, particularly with the charged witness unable to identify the defendant in the trial.

[00:15:41] Speaker 03:
Well, your time's expired.

[00:15:42] Speaker 03:
I'll give you some time for rebuttal.

[00:15:45] Speaker 02:
Thank you.

[00:16:03] Speaker 00:
May it please the Court?

[00:16:04] Speaker 00:
My name is Linda Epperly.

[00:16:05] Speaker 00:
I'm an Assistant United States Attorney and I represent the government in this case.

[00:16:11] Speaker 00:
We believe that there are two main considerations for the Court today.

[00:16:15] Speaker 00:
The Indian country, the Indian jurisdictional issues that we believe are precluded from consideration because this panel is required to follow the law of the Supreme Court and prior decisions of this panel.

[00:16:30] Speaker 00:
And as tempting as it was for me to try to avoid those arguments, I don't think that they're truly before the court today for decision.

[00:16:39] Speaker 00:
The 414 matter, Your Honor, we believe that the trial judge correctly exercised jurisdiction in allowing the five minor at the time that they were abused, witnesses to testify

[00:16:54] Speaker 00:
And the court wisely did that without requiring an evidentiary hearing, which would force these witnesses to testify twice.

[00:17:02] Speaker 01:
Is that a proper consideration?

[00:17:04] Speaker 00:
Excuse me, Your Honor.

[00:17:05] Speaker 01:
Is that a proper consideration under 414 that it would, there's no doubt it would be re-traumatizing, but is that a proper consideration for the court in its decisional process?

[00:17:17] Speaker 00:
It is not one of the listed factors of the many that the court has to go through in this analysis.

[00:17:23] Speaker 00:
whether it would be traumatizing.

[00:17:25] Speaker 00:
However, there is, I believe, as far as looking at the reasoning for 414, which was the nature of these crimes and Congress taking the unique step of saying we're going to allow an exception here for propensity evidence, it would be an anathema to

[00:17:48] Speaker 00:
the considerations that require passage of 414 to then say, but we're going to make these witnesses, unlike the other witnesses in the trial, come in for a mandatory preliminary hearing that will create a record that could then be used against them at the time of trial.

[00:18:04] Speaker 00:
If the court, as the court here could, based upon the information it was provided, make a decision that the trial jury could reasonably decide

[00:18:18] Speaker 00:
by preponderance of the evidence that these prior events occurred, that should be sufficient.

[00:18:23] Speaker 03:
It seems like that, you know, given the unique nature of these types of witnesses and the preponderance burden of proof, you know, it seems like that does suggest that in the right circumstances, the district court ought to take a closer look at certain witnesses, you know, factoring in the age at the time, lack of any

[00:18:47] Speaker 03:
criminal prosecution based on the allegations, the hearsay allegation.

[00:18:53] Speaker 03:
It didn't mis-bag it, create enough of a unique atmosphere here where further investigation would have been proven for the trial court before letting in this testimony, which is pretty devastating.

[00:19:09] Speaker 00:
No, Your Honor, it was not required here, and I do not believe that at the time of trial there was enough of

[00:19:17] Speaker 00:
and impetus, enough evidence proffered.

[00:19:19] Speaker 00:
The counsel has discussed in briefing and in argument today the evidence that was proffered by the defendant, which would require a hearing.

[00:19:28] Speaker 00:
But there was not, to my knowledge, evidence proffered that would have barred the trial court from making the decision it did.

[00:19:38] Speaker 00:
Yes, two of these victims involved conduct that was acquitted in a state court.

[00:19:47] Speaker 00:
But conduct in a state court was judged beyond a reasonable doubt.

[00:19:51] Speaker 00:
A jury here only had defined that that conduct occurred by preponderance of the evidence, number one.

[00:19:57] Speaker 00:
Number two, we don't know what their ability to testify at the age of that state trial is versus their ability to now explain in a clearer terms now that they're older exactly what occurred.

[00:20:10] Speaker 00:
Secondly, the court ruled correctly that

[00:20:16] Speaker 00:
The defense requested subpoena to the Tulsa County DA's office would not be proper, would not result in relevant evidence.

[00:20:25] Speaker 00:
There were concerns of attorney work product.

[00:20:30] Speaker 00:
There were concerns about whether one person at the Tulsa County DA's office believed these children or whether they did not or whatever the basis of the decision was.

[00:20:41] Speaker 03:
Does not mean that it's... Don't you think there might have been a good chance of relevant

[00:20:46] Speaker 03:
material for cross-examination purposes?

[00:20:48] Speaker 00:
Well, the defense had, Your Honor, the benefit of that information for cross-examination purposes.

[00:20:54] Speaker 00:
First of all, the court during the trial required that those documents, and I confess that I'm not as clear on exactly how the court ordered the government to eventually go gain the documents.

[00:21:08] Speaker 00:
Those were provided during trial.

[00:21:11] Speaker 00:
The court gave the defense a 30-minute recess to review those matters.

[00:21:17] Speaker 00:
And cross-examination took place.

[00:21:19] Speaker 00:
The defense did not say we need more time.

[00:21:21] Speaker 00:
The defense did not say we need to go interview some more witnesses now that we have the documents.

[00:21:25] Speaker 00:
So the defense had the benefit of that during the trial and it didn't really matter as far as the witness testimony.

[00:21:34] Speaker 00:
That's first thing.

[00:21:42] Speaker 00:
Evidence that the defense relies upon from their witness who examined the records and would have said basically these witnesses lack credibility.

[00:21:53] Speaker 00:
Again, that's not relevant evidence.

[00:21:55] Speaker 00:
The judge correctly excluded that expert's testimony as in something that would be invading the province of the jury, number one.

[00:22:02] Speaker 00:
And number two, found that the evidence found that that expert was not qualified to make those determinations even if that's something that the jury might have been able to hear about

[00:22:12] Speaker 00:
from a different qualified expert.

[00:22:14] Speaker 01:
So if it's the government's position that a hearing was not necessary in this case, under what circumstances would a hearing be required?

[00:22:25] Speaker 00:
I believe that there are some considerations and there are some considerations that are found in the NJOTI decision under that second prong that look at some of the things the court is to consider.

[00:22:38] Speaker 00:
Similarity of the prior conduct, the time lapse,

[00:22:42] Speaker 00:
or lack thereof between the other act and the charged acts?

[00:22:45] Speaker 00:
The frequency of the protocols?

[00:22:47] Speaker 00:
Are there intervening events?

[00:22:49] Speaker 00:
And is there a need for other testimony beyond what the victim and witness have said?

[00:22:54] Speaker 00:
And should the defense be able to proffer other witnesses who would challenge on a factual basis the underlying story or provide some sort of

[00:23:12] Speaker 00:
proof or potential proof that there was a fabrication with these other witnesses, then there might be a need for a hearing, but that's not what's found here.

[00:23:25] Speaker 00:
These victims, the proof was, barely knew each other.

[00:23:29] Speaker 00:
Many of them didn't know one another or they hadn't seen each other in years.

[00:23:32] Speaker 00:
It's not a case where in some similar cases you might have a group of kids who all of a sudden all

[00:23:40] Speaker 00:
decide that an action of abuse took place and there's a potential concern that they might have gotten together and made up this story.

[00:23:48] Speaker 00:
That didn't happen here.

[00:23:50] Speaker 00:
The court found that these acts were similar so it's not as if they were describing events that were completely unrelated to one another.

[00:24:00] Speaker 00:
There was not a long time lapse although this court has allowed in prior cases

[00:24:06] Speaker 00:
extreme time lapses far beyond what is seen here.

[00:24:12] Speaker 00:
I guess I struggle to lay out for the court an exact test that would need to be made before that evidentiary hearing would outweigh the risk of making these kids testify twice.

[00:24:25] Speaker 00:
But I can say that those factors are not present in this case.

[00:24:30] Speaker 03:
You know, on the similarity piece, I mean, one of the

[00:24:36] Speaker 03:
witnesses accused him of rape at gunpoint.

[00:24:41] Speaker 03:
And that testimony, the trial was over after her testimony.

[00:24:49] Speaker 03:
It seems that at some point the prejudice balancing can veer into an abuse of discretion or maybe this testimony should have been limited in some fashion.

[00:25:02] Speaker 00:
I would concur that that would be the closest call in this matter.

[00:25:08] Speaker 00:
But again, it is evidence that demonstrates a propensity to commit sexual abuse of children.

[00:25:20] Speaker 00:
And that victim, I believe, was somewhat older than some of the other very young victims, which may be why that firearm was required.

[00:25:29] Speaker 00:
But it's still evidence.

[00:25:32] Speaker 00:
that a jury could reasonably find by a preponderance of the evidence.

[00:25:36] Speaker 00:
And therefore, under the widely expansive parameters of Rule 414, I believe it was correct for the judge to admit it.

[00:25:44] Speaker 00:
If it had been incorrect, the defense had the opportunity to move for a mistrial at the time.

[00:25:51] Speaker 00:
And as you have pointed out, they did not.

[00:25:54] Speaker 00:
The court made clear that the court would hear the witnesses, that the government was in effect

[00:26:01] Speaker 00:
acting at its own risk in calling them.

[00:26:04] Speaker 00:
And if they gave testimony that was unbelievable, that couldn't convince the jury, the judge would declare a mistrial.

[00:26:11] Speaker 00:
Now I think that my opposing counsel attempted to lay the responsibility for that decision on the district judge because the judge found that he would have granted a mistrial if the testimony was improper.

[00:26:25] Speaker 00:
Perhaps the defense had no obligation to move for a mistrial.

[00:26:30] Speaker 00:
That seems to me a dangerous proposition.

[00:26:35] Speaker 00:
As defense lawyers, there are decisions that have to be made in the courtroom in the minute of that trial as to whether or not it's better to ask for a mistrial or whether to take what you have gotten, proceed to a jury with the belief that you can get a verdict that's favorable to the defense.

[00:26:51] Speaker 00:
And that is a decision that needs to be made by the client and the defense attorney and not by the district judge on a whim without

[00:26:59] Speaker 00:
without a motion being made.

[00:27:01] Speaker 00:
That seems a real danger in adopting that course of conduct.

[00:27:08] Speaker 00:
Basically, we would also argue that although there was discussion today of the totality of the circumstances, I don't see that as part of the term of art that's in the test that's provided.

[00:27:21] Speaker 00:
And while we have discussed things like the subpoenas to the district attorney's office, the defense expert, there not being 302s on

[00:27:29] Speaker 00:
pre-trial witnesses at what point the government ever located them before trial, and I don't know the answer to that.

[00:27:36] Speaker 00:
None of those other factors were raised as issues for appeal.

[00:27:40] Speaker 00:
They were not challenged on appeal.

[00:27:42] Speaker 00:
So they play into perhaps the milieu surrounding this 414 decision, but they are not properly before this court as issues on appeal.

[00:27:54] Speaker 03:
We have five witnesses here and our cases suggest at some point the testimony becomes cumulative.

[00:28:03] Speaker 03:
And why wasn't that the case here?

[00:28:06] Speaker 03:
What aspect of each victim's testimony made it corroborative rather than just piling on?

[00:28:17] Speaker 00:
I believe that, first of all, I do not believe that there was an

[00:28:22] Speaker 00:
I could be wrong, but I do not believe there was an objection made by the defense that the testimony was cumulative.

[00:28:28] Speaker 03:
I think there was pre-trial.

[00:28:29] Speaker 00:
Was there?

[00:28:30] Speaker 00:
I know that this matter was discussed at the trial level on at least four different occasions with four sets of briefings, discussion at the pre-trial, discussion in the trial.

[00:28:42] Speaker 00:
And I truly do not recall whether that was true.

[00:28:48] Speaker 00:
But these witnesses gave

[00:28:53] Speaker 00:
accounts at different times, some of which occurred in the beds, some of which occurred under other circumstances.

[00:29:01] Speaker 00:
And if we had gone to 8, 9, 10, 11 victims, that might have been true.

[00:29:06] Speaker 00:
With these, we had two of these children who were closely related to this defendant, three who were not.

[00:29:14] Speaker 00:
We had it occurring again over a variety of different times.

[00:29:19] Speaker 00:
Defense suggested that the defendant didn't have access to three of the

[00:29:22] Speaker 00:
but did have access to the other two.

[00:29:25] Speaker 00:
So there were a number of factors that made each witness' testimony important here as demonstrative of this defendant's propensity to abuse children.

[00:29:38] Speaker 00:
If there are no further questions, we would ask the court to affirm.

[00:29:41] Speaker 03:
Thank you, counsel.

[00:29:42] Speaker 03:
Amy, could you give one minute for rebuttal?

[00:29:52] Speaker 02:
Thank you, Your Honor.

[00:29:54] Speaker 02:
Your Honor, just a few housekeeping things.

[00:29:58] Speaker 02:
There was a supplemental authority raised by the government in the United States versus Gordon case in the Ninth Circuit.

[00:30:05] Speaker 02:
That case is pending filing of a cert petition on the question of the constitutionality of the MCA.

[00:30:13] Speaker 02:
So this court is aware that that is due by February 16th.

[00:30:19] Speaker 02:
Your Honor, in terms of the rebuttal to some of the comments that were made by the government, in terms of the documents that were turned over from the Tulsa County District Attorney's Office in the middle of the trial, there actually, it was just a single ledger entry saying that they were going to decline prosecution.

[00:30:38] Speaker 02:
There were no witness statements, notes of witness, interviews.

[00:30:42] Speaker 02:
There was not even a notation on who the prosecutor was that may have conducted the interviews.

[00:30:49] Speaker 02:
The second, the district court found that the expert was not qualified without allowing defense to respond to the government's motion to disqualify that expert.

[00:31:02] Speaker 02:
Literally issued a decision, said I'm sorry, I didn't allow the defense to reply, but I'm gonna find that he's not qualified.

[00:31:11] Speaker 02:
And it's clear on the face of his resume that he was qualified for the testimony that he was asked to provide.

[00:31:18] Speaker 02:
And it wasn't just to provide at the trial in front of a jury, it was to provide, to educate the court on what false memories are in children like these.

[00:31:33] Speaker 02:
The kids were all related.

[00:31:36] Speaker 02:
That's in the record.

[00:31:37] Speaker 02:
Three of them, the three slightly older ones were his actual children.

[00:31:42] Speaker 02:
And the two other ones were cousins.

[00:31:46] Speaker 02:
And the three older kids attended the trial where the defendant was acquitted of the allegations of the other two.

[00:31:54] Speaker 02:
So there was significant relationships between all of the children.

[00:31:58] Speaker 03:
Thank you, counsel.

[00:31:58] Speaker 03:
Your time is expired.

[00:31:59] Speaker 03:
Appreciate the arguments this morning.

[00:32:03] Speaker 03:
Counsel is excused and the case will be submitted.

[00:32:08] Speaker 03:
That's all right.

[00:32:09] Speaker 03:
You are done.