[00:00:00] Speaker 03:
Full roster today, six cases for argument and six cases that will be heard for argument.

[00:00:06] Speaker 03:
So I won't waste any time.

[00:00:08] Speaker 03:
We'll start right off with United States versus McFadden.

[00:00:12] Speaker 03:
It is docket 23 and 1089.

[00:00:22] Speaker 03:
Counsel, please proceed when you're ready.

[00:00:25] Speaker 04:
Good morning.

[00:00:28] Speaker 04:
My name is Ty G. I represent Mr. McDermott.

[00:00:32] Speaker 04:
This appeal raises an important question, an important constitutional and evidentiary question about the improper expansion of the residual hearsay rule.

[00:00:43] Speaker 04:
Rule 807 permits hearsay not otherwise admissible under any other hearsay exception.

[00:00:51] Speaker 04:
If the hearsay is reliable and if the hearsay

[00:00:56] Speaker 04:
is more probative on the point for which it is offered than any other evidence the proponent can obtain through reasonable means.

[00:01:16] Speaker 04:
I want to focus this morning, Your Honors, on the more probative on the point prompt.

[00:01:23] Speaker 04:
what the 2019 Rules Committee called the necessity requirement.

[00:01:28] Speaker 04:
The point for which KW's hearsay statement was offered was to prove penetration.

[00:01:37] Speaker 04:
At 21 years old, KW, in court, under oath, and before the defendant, as well as the jury, testified there was penetration.

[00:01:51] Speaker 04:
The government was dissatisfied with his testimony, and it argued that the Rule 807 hearsay statement ought to come in because KW's testimony was, quote, equivocal and, quote, reluctant.

[00:02:08] Speaker 04:
The court agreed.

[00:02:09] Speaker 04:
Your Honor, this analysis of 807 is wrong.

[00:02:17] Speaker 04:
It misconceives the entire point of the second prom of Rule 807.

[00:02:23] Speaker 04:
The rationale for Rule 807, that second prom, is to ensure the necessity of the hearsay because of the truth-seeking function's hostility toward out-of-court statements.

[00:02:41] Speaker 04:
There was no necessity here.

[00:02:43] Speaker 04:
KW literally testified

[00:02:46] Speaker 04:
on the point for which the hearsay statement was offered.

[00:02:50] Speaker 03:
Then is it harmless?

[00:02:52] Speaker ?:
It was not harmless, Your Honor.

[00:02:55] Speaker 04:
It wasn't harmless because, well, first of all, the government has not responded to our claim that it was in fact harmless.

[00:03:03] Speaker 04:
And it wasn't harmless because, as the government said in closing argument, this is a case about whom to believe.

[00:03:13] Speaker 04:
And permitting improper hearsay statements, unsworn statements, allied court statements, is effectively bolstering the government's case and that particular witness contrary to the hearsay exception.

[00:03:30] Speaker 04:
The more important point, the point that basically establishes harmfulness, the larger point, is that writ large permitting the expansion of Rule 807 in this way

[00:03:51] Speaker 04:
does what Tom suggested could, which is to swallow the entire hearsay exception, excuse me, the entire hearsay rule.

[00:04:01] Speaker 01:
Counsel, if there was a type of case in which 807 has been more liberally interpreted, as you know, it is in cases where children are alleged victims, particularly of sexual crimes.

[00:04:12] Speaker 01:
And I think you submitted a 28-J letter noting our recent decision in Burgess, in which we,

[00:04:19] Speaker 01:
affirmed it was not abuse of discretion to allow these types of statements in cases that are charged, such as this one.

[00:04:25] Speaker 01:
So how would you distinguish our case law in Harrison and Burgess in this case?

[00:04:30] Speaker 04:
Yes, Judge Federico.

[00:04:32] Speaker 04:
The government submitted a 28-J letter on Burgess, and we responded distinguishing Burgess.

[00:04:40] Speaker 04:
To answer the question, Your Honor, the most important distinction between Burgess and this case

[00:04:47] Speaker 04:
is that, and actually, the distinction between this case and every case cited in Burgess, and frankly every case cited in the WB case from the Eighth Circuit, is that in this case, you have a 21-year-old witness who was testifying about events that took place a decade earlier when he was 11 years old.

[00:05:09] Speaker 04:
In every one of the cases cited,

[00:05:13] Speaker 04:
by Burgess or by WB, these are child victim witnesses.

[00:05:20] Speaker 04:
For example, in Burgess, the victim was seven years old at the time of the offense and nine years old when she testified at trial.

[00:05:30] Speaker 04:
That is the typical case that WB and, frankly, Burgess is talking about.

[00:05:36] Speaker 04:
And frankly, Your Honor, there are two points about Burgess that are actually important.

[00:05:42] Speaker 04:
I kind of talk about Burgess and WB in the same vein.

[00:05:47] Speaker 04:
Both of them talk about, first of all, the extraordinary, exceptional nature of Rule 807, and then they make the point that Your Honor made, Judge Federico, about how

[00:05:59] Speaker 04:
child victim cases are different.

[00:06:01] Speaker 04:
But they're different because child victims are a special type of witness.

[00:06:06] Speaker 04:
They're not a 21-year-old adult.

[00:06:09] Speaker 04:
So that's one point that is very important.

[00:06:14] Speaker 04:
The second point, also made by Burgess, Your Honor, is that Burgess said that it is important that the witness was present in court

[00:06:29] Speaker 04:
and was able to testify.

[00:06:31] Speaker 04:
That was significant for the Burgess Court.

[00:06:37] Speaker 04:
And here you have the, in all those cases, you have witnesses who are not just equivocal or reluctant.

[00:06:46] Speaker 04:
That's not it.

[00:06:48] Speaker 04:
If you looked at WB, you looked at Burgess and the cases that are cited, these are cases, excuse me,

[00:06:54] Speaker 04:
in which the witness is testifying inconsistently with what he or she had previously said in, for example, a forensic interview.

[00:07:08] Speaker 00:
Were you contesting what this witness testified to?

[00:07:15] Speaker 04:
Well, whether there was penetration, Your Honor?

[00:07:18] Speaker 04:
Yeah.

[00:07:19] Speaker 04:
There was no specific cross-examination of KW on the question of penetration.

[00:07:27] Speaker 04:
The defense was that it never happened.

[00:07:31] Speaker 04:
The defense of the case was that the general denial that these acts.

[00:07:39] Speaker 00:
Well, then wouldn't it be very pertinent to tie it back since it was years prior?

[00:07:45] Speaker 00:
It would be relevant to tie it back, Your Honor.

[00:07:48] Speaker 00:
But you can't go back and be 11 again.

[00:07:51] Speaker 04:
No, you can't go back and be 11 again.

[00:07:54] Speaker 04:
However, the entire hearsay rule says that the judicial institution and the Constitution favor, supports, and wants in-court testimony, not hearsay testimony, Your Honor.

[00:08:15] Speaker 04:
If, for example, we could always go back to the hearsay statement made by a child in a forensic interview, there would be no need for the hearsay rule at all.

[00:08:28] Speaker 04:
We can simply carve out an exception that says that in all child sex abuse cases, there will be no hearsay rule.

[00:08:36] Speaker 04:
But that's not what we have, Your Honor.

[00:08:39] Speaker 04:
And what we have is a rule, rule 807,

[00:08:42] Speaker 04:
that specifically limits the type of hearsay that is permitted when the statement, the hearsay statement is not permissible under any other hearsay rule.

[00:08:55] Speaker 04:
And the plong that I'm focusing on today is that one that actually asks the court to make a comparison between two types of statements.

[00:09:10] Speaker 04:
The hearsay statement,

[00:09:12] Speaker 04:
and the in-court statement.

[00:09:16] Speaker 04:
And the rule says that the judge must determine whether one is more probative than the other.

[00:09:25] Speaker 04:
And in this case, Your Honor, A equals A, if there was nothing different substantively between KW's testimony

[00:09:37] Speaker 04:
testimony in court in front of the jury and in front of the accuser that there was penetration.

[00:09:44] Speaker 04:
There's nothing different between that and his 2013 interview when he also said, yes, there was penetration.

[00:09:52] Speaker 03:
Is the problem that the government didn't wait for the attack and then introduce the statement as a prior consistent statement, would that have been fine?

[00:10:02] Speaker 04:
That could have been fine, Your Honor, if it had done that.

[00:10:08] Speaker 04:
But also, we do have other rules on that.

[00:10:12] Speaker 03:
Well, back to harmlessness.

[00:10:14] Speaker 03:
Yes.

[00:10:16] Speaker 03:
It sounds like one way or another this was coming in.

[00:10:19] Speaker 03:
You weren't going to just simply let the victim or witness testimony stand.

[00:10:24] Speaker 03:
You opposed that testimony.

[00:10:27] Speaker 03:
Wow.

[00:10:27] Speaker 03:
And you're saying that it could have come in as a prior consistent statement.

[00:10:31] Speaker 04:
Well, Your Honor, we have some counterfactuals here because the statement came in before there was any cross-examination of KW.

[00:10:42] Speaker 04:
And so what would have happened, Your Honor, had the hearsay statement, 33 minutes of hearsay, not come in?

[00:10:52] Speaker 04:
I don't know the answer to that, Your Honor.

[00:10:54] Speaker 04:
And I suppose that the defense, when it learns that it's coming in over its objection,

[00:11:01] Speaker 04:
is running through quite a few strategic thoughts and tactical thoughts about how to respond in the face of this 33-minute hearsay.

[00:11:13] Speaker 03:
So back to your original answer to my question, the problem, as you said, the reason it was harmful is it bolstered the witness.

[00:11:22] Speaker 03:
Are you saying that it made the witness more believable for the jury?

[00:11:26] Speaker 04:
I think it certainly could have done that, and I don't see how you could avoid that inference, Your Honor.

[00:11:32] Speaker 04:
This was a lengthy interview, a video interview, of a child who was 12 years old at the time making statements about what happened.

[00:11:44] Speaker 04:
Of course, this statement was made in a

[00:11:48] Speaker 04:
what you could call a sanitized room, sanitized of jurors, sanitized of a judge, sanitized of the oath.

[00:11:55] Speaker 04:
It is an 11-year-old child in a room with toys that are designed to elicit comfort.

[00:12:04] Speaker 04:
And that, Your Honor, is simply not a description of the witness stand.

[00:12:10] Speaker 04:
And at 21 years of age,

[00:12:13] Speaker 04:
KW certainly recognized the importance of telling the truth.

[00:12:18] Speaker 04:
And here he is being confronted with the accused who is watching his testimony and listening to his testimony.

[00:12:30] Speaker 04:
That's important for the judicial system, Your Honor.

[00:12:33] Speaker 04:
And I'd like to reserve the rest of my time for Father, Your Honor.

[00:12:37] Speaker 03:
Very well.

[00:12:37] Speaker 03:
Thank you.

[00:12:53] Speaker 02:
May it please the court, Bishop Grewell, on behalf of the United States.

[00:12:56] Speaker 02:
I want to make two points this morning, and then I'll jump right to the probativeness right after I identify those two points.

[00:13:05] Speaker 02:
First, this court's highly deferential standard of review when it comes to rule 807, rulings especially in the child sex context, requires affirming the admission of the videotape here of 11-year-old KW detailing the feds' abuse from two weeks earlier.

[00:13:19] Speaker 02:
And second,

[00:13:21] Speaker 02:
That video, along with the rest of the record, renders the Sains one line of roundabout vouching for the other boy, in this case, harmless.

[00:13:29] Speaker 02:
Before talking about the probativeness, let me just lay out the three ways that this court is very deferential on, a little 807, because I think it matters for the probativeness inquiry.

[00:13:37] Speaker 02:
First of all, is an abuse of discretion on both the trustworthiness and the more probative prongs.

[00:13:44] Speaker 02:
And in the recent Burgess decision, Judge Ebell talked about how

[00:13:48] Speaker 02:
you're going to defer to the judge's finding on the more probative prong, because again, the judge can see the credibility of the witnesses and the like.

[00:13:57] Speaker 02:
I think that's particularly important here, where the judge bases ruling not just on the words said by KW in his testimony, but also on the fact that he was reluctant, required prompting for his answers, and the message that that sent to the jury about whether he was being consistent in terms of whether he had been penetrated or not.

[00:14:16] Speaker 02:
Second, this court views the record

[00:14:18] Speaker 02:
in the light most favorable to the district court's ruling.

[00:14:22] Speaker 02:
That means where there are alternative interpretations of the evidence.

[00:14:25] Speaker ?:
As long as there's a plausible interpretation that's in favor of the district court's ruling, this court needs to read the record that way.

[00:14:31] Speaker 02:
And finally, in terms of the district court's ruling, you look at everything in the record that supports the ruling, but anything that would be contrary to the ruling, you only look at as at the time of the ruling, was that particular evidence in there or not?

[00:14:44] Speaker 01:
Counsel, can I ask about your first point?

[00:14:46] Speaker 01:
where you say that the judge made a determination that was more probative because the court found the witness was reluctant and required prompting.

[00:14:56] Speaker 01:
How does that go to probativeness when our cases tend to be witnesses who are unable to recall specific facts?

[00:15:03] Speaker 01:
So it's statement by statement as to whether or not the events happened.

[00:15:07] Speaker 01:
Here, I didn't see in the record where the court made any findings the witness was unable to speak to certain things.

[00:15:13] Speaker 01:
It was really the manner in which the witness

[00:15:16] Speaker 01:
spoke about things.

[00:15:17] Speaker 01:
So how does that probative analysis work when it's just the manner of speaking, not the content of the speech of the testimony?

[00:15:24] Speaker 02:
Yeah, I think it goes to this notion that it feeds into the equivocation.

[00:15:30] Speaker 02:
The fact that basically the witness here was inconsistent and unclear, language that this court adopted emerges from the Eighth Circuit's decision that we have testimony that's inconsistent and unclear, that's enough.

[00:15:42] Speaker 02:
And so the way in which the victim testified

[00:15:46] Speaker 02:
made it clear that these earlier statements where the victim said the exact opposite about being penetrated, in fact, McFadden had tried to penetrate, but basically had been unsuccessful and had pulled up his pants, was directly contrary to the later, yes, did he penetrate you.

[00:16:01] Speaker 02:
And so it left the jury with an unclear message about what had happened.

[00:16:04] Speaker 02:
It was inconsistent, unclear testimony.

[00:16:06] Speaker 02:
And I think that's what the other evidence was going to.

[00:16:12] Speaker 02:
So I guess it's not just the words, but the way

[00:16:16] Speaker 02:
the witness said them.

[00:16:17] Speaker 02:
Beyond that, this court can also affirm, because there was another reason for this evidence being more probative, that is the testimony about KW witnessing JW's crotch being touched by McFadden.

[00:16:30] Speaker 02:
He was not able to testify to that at trial.

[00:16:33] Speaker 02:
He was not able to recall that.

[00:16:35] Speaker 02:
We noticed that up as evidence for our rule 807.

[00:16:39] Speaker 02:
And even though the district court didn't specifically rely on that in admitting this in Knox, this court noted that where you have

[00:16:46] Speaker 02:
an alternative theory of evidence under which the evidence would probably be admitted, it's not going to reverse on other grounds.

[00:16:55] Speaker 02:
That was probably admitted here also under Burgess.

[00:17:00] Speaker 02:
If you look at footnote seven, this court said it was not going to be an abuse of discretion where the court there didn't even identify what the more probative

[00:17:08] Speaker 02:
fact was.

[00:17:09] Speaker 02:
So here, the fact that the district court didn't identify the touching as another more prodive fact doesn't mean that this court can't rely on that.

[00:17:17] Speaker 02:
And it's plainly clear here that the witness wasn't at all able to recall that particular fact, but was in the video.

[00:17:26] Speaker 02:
I can talk about the circumstantial guarantees of trustworthiness on Rule 807, but I think

[00:17:31] Speaker 02:
The record is replete with those.

[00:17:33] Speaker 03:
Maybe just discuss the ones that it's a weaker case in this case than it was in Burgess.

[00:17:44] Speaker 03:
I guess I'm not sure which one this would be.

[00:17:46] Speaker 03:
Spontaneity.

[00:17:47] Speaker 03:
Let's start with that.

[00:17:48] Speaker 02:
Certainly.

[00:17:49] Speaker 02:
So I think the ones that they identify as being weaknesses would be the spontaneity and I suppose the disease comment.

[00:17:55] Speaker 02:
And then they ought to identify I guess a motive to fabricate.

[00:17:59] Speaker 02:
First, the spontaneity.

[00:18:01] Speaker 02:
I think this court has also cited other courts that recognize when it's a child speaking, spontaneity is not as important.

[00:18:08] Speaker 02:
But again, this is a totality of the circumstances of Spurge's notes.

[00:18:11] Speaker 02:
So I think you have to look at all the stuff in favor.

[00:18:13] Speaker 02:
And the fact that you may have one or two things against, like spontaneity, is not going to undermine the circumstantial guarantees of trustworthiness.

[00:18:20] Speaker 02:
The disease comment, this is one of those where there are two alternative interpretations of that.

[00:18:25] Speaker 02:
And you have to adopt one that's more favorable to the district court's ruling.

[00:18:28] Speaker 02:
One interpretation is that this was part of the counselors and the parents somehow coaxing this boy into an admission that was false.

[00:18:36] Speaker 02:
Another interpretation is that he actually disclosed on his own, and they were now trying to explain why this man who they'd invited for Thanksgiving and Christmas dinner and let their child go on a trip with them would do this thing.

[00:18:49] Speaker 02:
And it was only one line amongst a bunch of otherwise child appropriate language, such as talking about Mike touching his no-no and asked about touches that he didn't like.

[00:18:58] Speaker 03:
As we go through and we compare, because it's a factual inquiry, what happened here, what happened in court, what happened during the interviews, if we say it doesn't measure up to Burgess and that in fact there is error, did the government argue harmlessness?

[00:19:15] Speaker 02:
We have not argued harmlessness here.

[00:19:16] Speaker 03:
And what's the effect of that?

[00:19:19] Speaker 02:
Well, I actually think if you look at the video, it is a prejudicial video.

[00:19:24] Speaker 02:
That's part of the reason the same one line about you is not

[00:19:28] Speaker 02:
It is not harmful.

[00:19:30] Speaker 02:
So I don't think this court, I mean, this court can do what it wants.

[00:19:35] Speaker 02:
If it finds it harmless, then it certainly could.

[00:19:36] Speaker 02:
But we have not argued harmless.

[00:19:38] Speaker 02:
I believe we've weighed that argument.

[00:19:41] Speaker 03:
Did the government jump the gun?

[00:19:42] Speaker 03:
Was it introducing its consistent prior statement before there was any attack on cross-examination?

[00:19:49] Speaker 02:
I don't think it needed to wait here because I think the record was already quite clear that, I mean, I don't think that they needed to cross-examine on penetration at all because the witness here had already been inconsistent on it.

[00:20:02] Speaker 02:
So the defense could have simply relied on that and disclosing arguments.

[00:20:05] Speaker 02:
He said one thing, he said he'd never been penetrated.

[00:20:07] Speaker 02:
Then he did say he was penetrated.

[00:20:10] Speaker 02:
There's no reason to believe that testimony.

[00:20:13] Speaker 02:
So I don't think that the government did jump the gun in these particular circumstances.

[00:20:17] Speaker 02:
If he had simply said, yes, I've been penetrated and was clear about that, then I think we might have different circumstances.

[00:20:25] Speaker 02:
And the fact that maybe he'd said, yes, hesitantly, wouldn't be enough on its own.

[00:20:29] Speaker 02:
But given the preceding testimony where he basically said the exact opposite, I think it was enough here.

[00:20:34] Speaker 02:
And again, it is a factual inquiry.

[00:20:36] Speaker 02:
But again, it's a factual inquiry under an abuse of discretion standard.

[00:20:40] Speaker 02:
So if there's something in there to support the admission on those two prongs, I think there is, and I think it's met.

[00:20:46] Speaker 02:
On the motive to fabricate, there is no motive to fabricate here.

[00:20:50] Speaker 02:
The two, they've identified this revenge motive that somehow K.W., when he's traveling back from Nebraska with his mom, says, J.W.

[00:20:58] Speaker 02:
was abused, I wasn't, and I'll do whatever I can to put McFadden away.

[00:21:02] Speaker 02:
We had testimony from Sheryl Young before that explained why a young boy would not want to disclose his own abuse that had just happened.

[00:21:09] Speaker 02:
And it doesn't show that JW had already disclosed.

[00:21:13] Speaker 02:
What it showed is what the video says, that KW had actually witnessed JW being abused.

[00:21:18] Speaker 02:
And so I think that's an interpretation of that you need to adopt.

[00:21:21] Speaker 02:
Likewise, there are other motifs to fabricate is that the parents and the therapist somehow would have had something to get Mr. McFadden.

[00:21:29] Speaker 02:
There's nothing in the record like there was in Tome where the child, after a year away from disclosure, wanted to be out of their father's custody.

[00:21:38] Speaker 02:
So I think the Rule 807 evidence was properly admitted here.

[00:21:42] Speaker 02:
It certainly wasn't abuse of discretion on the record of this court.

[00:21:45] Speaker 01:
Counsel, before you transition up to 807 and the first issue, how would you respond to Mr. G's argument that Burgess, Harrison, other cases can easily be distinguished because the age of the witness at the time of trial compared to those cases where it's still a child who the judge is evaluating to do the 807 analysis?

[00:22:04] Speaker 02:
Yeah, so I think part of that is also based on, again, we have Shirley Young testifying below, that these events occurred when he was a child.

[00:22:12] Speaker 02:
And so the way that memory is going to be formed is certainly a factor.

[00:22:16] Speaker 02:
And in fact, the fact that we had to wait 10 years for him to be able to get to the stand in this particular case because of the way the state prosecution went below.

[00:22:24] Speaker 02:
They had been prosecuting the state, and then eventually his conviction was overturned on some beauty trial grounds.

[00:22:30] Speaker 02:
That long wait combined with the way children formed memories I think actually

[00:22:34] Speaker 02:
Ways in favor of this being another Rule 807 category, where you're going to have memory problems because this is a case that can go to trial in the same way that you or Lynn would have.

[00:22:44] Speaker 02:
So I think that way is in favor of our point here.

[00:22:48] Speaker 02:
Moreover, I would note in Harrison when this court says that the probative prong is not a rule of cash, fire, and rigidity.

[00:22:55] Speaker 02:
The Weinstein treatise that it cites notes that even cumulative evidence can be something that would come in

[00:23:02] Speaker 02:
under a probative prong when necessary.

[00:23:04] Speaker 02:
And so even if you just looked at this as the boy ultimately said he was penetrated, that doesn't mean that the court used his discretion by finding a more probative prong met here.

[00:23:16] Speaker 02:
Turning to the one line of vouching here, the case they really want to hit on in the reply brief seems to be the Jones case from 2023.

[00:23:23] Speaker 02:
So let me hit some of the distinctions because I think we talked a lot about Charlie in the briefing.

[00:23:28] Speaker 02:
First of all, the vouching in Jones was far more outrageous.

[00:23:32] Speaker 02:
We had one line here.

[00:23:33] Speaker 02:
In that case, you had a mother who repeated over and over again testimony about the credibility of her daughters, the victims, and credibility of the defendant, her husband of three years.

[00:23:46] Speaker 02:
She said that she believed her girls.

[00:23:48] Speaker 02:
She didn't believe they would lie.

[00:23:50] Speaker 02:
She no longer believed her husband, who she trusted.

[00:23:52] Speaker 02:
She believed her girls would tell the truth.

[00:23:54] Speaker 02:
And again, she didn't believe they would lie.

[00:23:56] Speaker 02:
The jury plainly heard the message here, trust these witnesses.

[00:23:59] Speaker 02:
The same one line here was much more roundabout.

[00:24:02] Speaker 02:
Secondly, the mother in Jones was the very first witness.

[00:24:06] Speaker 02:
And so they had to set up for these witnesses before the jury had had a chance to assess the credibility.

[00:24:11] Speaker 02:
In this case, JW testified first.

[00:24:14] Speaker 02:
Then a whole night passed before the sane had the one line of testimony.

[00:24:17] Speaker 02:
And so the jury had had a chance to assess JW's credibility before the sane here testified.

[00:24:24] Speaker 02:
Furthermore, the sane had only met with JW once.

[00:24:30] Speaker 02:
In Jones, it's the mother of these girls, and she'd also been the spouse of the defendant for three years.

[00:24:36] Speaker 02:
The jury was much more likely to take that woman's testimony that she was a credibility barometer.

[00:24:43] Speaker 02:
And then a very important distinction, I think, from Jones is on Prom 3 of Plain Air and Jones, the court said, the government can't meet this standard because all of the evidence of abuse was vouched for.

[00:24:55] Speaker 02:
That isn't the case here.

[00:24:57] Speaker 02:
KW was never vouched for.

[00:24:58] Speaker 02:
His testimony was unbouched for testimony, and he also corroborated JW's testimony with, well, in particular, the video showing that he had witnessed JW's abuse, and that video was not vouched for.

[00:25:11] Speaker 02:
It provides, I think, clear, detailed, and powerful testimony of the abuse in this particular case.

[00:25:18] Speaker 02:
I want to make one factual clarification, I guess two factual clarifications.

[00:25:25] Speaker 02:
One, they note throughout their still fighting whether JW alleged first or not.

[00:25:30] Speaker 02:
I think you can just look to their closing argument.

[00:25:32] Speaker 02:
Volume 6, 102, 103, they actually made the exact opposite argument.

[00:25:36] Speaker 02:
They tried to argue that JW made up the abuse because he's heard KW's allegations.

[00:25:42] Speaker 02:
So it's a little odd that they've changed that position of appeal.

[00:25:46] Speaker 02:
Secondly, in their reply brief, footnote two,

[00:25:48] Speaker 02:
They say that the jury never heard from two boys who recanted.

[00:25:51] Speaker 02:
They cite page 52 of the transcript or sublet of volume two of Record on Appeal.

[00:25:56] Speaker 02:
I think they're actually referring to page 56 of the volume of the Record on Appeal.

[00:26:02] Speaker 02:
52 is the transcript page.

[00:26:04] Speaker 02:
That's the allegations of IS and EM.

[00:26:10] Speaker 02:
IS never recanted.

[00:26:12] Speaker 02:
He stood by his testimony.

[00:26:14] Speaker 02:
He simply avoided summons for the trial here.

[00:26:16] Speaker 02:
And ESEM did recant, but what he recanted was his denial of abuse.

[00:26:21] Speaker 02:
He came back a week later and told Detective Prescott, yes, I had been abused.

[00:26:25] Speaker 02:
And we wanted to introduce that as 414 evidence, the fact that he had been annually penetrated near the Gunnison River.

[00:26:31] Speaker 02:
And they objected to that.

[00:26:33] Speaker 02:
They didn't want either IS or EM's testimony to come in.

[00:26:36] Speaker 02:
So the notion that somehow that would have helped them in front of the jury simply isn't the case.

[00:26:41] Speaker 02:
Detective Prescott didn't vouch, I think that's clear under Brooks and Jones,

[00:26:45] Speaker 02:
What you can't do is say somebody's telling the truth, you can certainly give reasons to believe that they're telling the truth, motives that they have.

[00:26:52] Speaker 02:
Jones says that at 707.

[00:26:53] Speaker 02:
Unless the court has any questions on the 2018 audio tape, I'll quickly address the sentencing enhancement here.

[00:27:04] Speaker 02:
This is an enhancement that punishes using your influence to get a minor to go along with a sex act.

[00:27:09] Speaker 02:
I think the whole notion of voluntariness here, the question is really,

[00:27:15] Speaker 02:
did the child engage in the sex act when they're sort of passively submitting to that sex act?

[00:27:20] Speaker 02:
I think that's really what the dispute is about here.

[00:27:22] Speaker 02:
And I would direct this court, I can file a 20-J court with like, but there's a case out of the second circuit, a SUBA 67 F4th 56, discussing statutory language in 18 USC 2251A, it's very similar about engaging the sex act, says that they,

[00:27:41] Speaker 02:
passive acquiescence can qualify.

[00:27:43] Speaker 02:
That makes sense in the light of a guideline that is about dealing with a power dynamic between adults and minors if you read it the opposite way that the child has to want to engage in the sex act that's only going to protect the, it will not protect the least vulnerable.

[00:28:00] Speaker 02:
With that I would, I'm out of time.

[00:28:02] Speaker 02:
I'm going to ask for support for a front.

[00:28:04] Speaker 03:
Thank you.

[00:28:10] Speaker 04:
I want to address a point that Judge Federico, you raised, and a statement the government made.

[00:28:20] Speaker 04:
The government said that the trial judge could see the credibility of the witness.

[00:28:25] Speaker 04:
And Judge Federico, you were talking about how do you distinguish between the manner of speaking and the substance of what the witness is saying.

[00:28:37] Speaker 04:
Both the government statement and Judge Federico, your question, bear on the issue of credibility.

[00:28:46] Speaker 04:
And credibility is not an 807 consideration.

[00:28:50] Speaker 04:
The consideration of the second prong is, as I discussed earlier, a comparison between the hearsay statement and the trial testimony, whether one is more probative than the other.

[00:29:04] Speaker 04:
And as I say, they were the same, so one could not have been more probative than the other.

[00:29:11] Speaker 04:
On the record, the government and the trial judge, prior to the 807 decision, talked about reluctance and equivocation.

[00:29:21] Speaker 04:
Your Honor, reluctance and equivocation are not remarkable.

[00:29:27] Speaker 04:
We see every day in court witnesses who are reluctant and witnesses who are equivocal.

[00:29:33] Speaker 04:
That alone is not a basis to meet the second prong of Rule 807.

[00:29:41] Speaker 04:
That is a credibility question.

[00:29:43] Speaker 04:
And the reluctance and equivocation are resolved by the court, or excuse me, by the lawyers.

[00:29:51] Speaker 04:
And in this case, reluctance and equivocation was overcome by the leading question from the prosecution.

[00:29:59] Speaker 04:
Was there, in fact, penetration?

[00:30:01] Speaker 04:
Answer, yes.

[00:30:03] Speaker 04:
That ends, Your Honors, the Rule 807 inquiry.

[00:30:08] Speaker 04:
On the question of the standard of review on this, yes, it's abuse of discretion.

[00:30:14] Speaker 04:
But, Your Honors, under Burgess and Tome, we know that there is an abuse of discretion if the judge makes an error of law.

[00:30:25] Speaker 04:
In this case, the error of law is the

[00:30:28] Speaker 04:
the judge's understanding of whether or not the hearsay statement was more probative on the point for which it was offered than the trial testimony.

[00:30:40] Speaker 04:
And she believed that if there is equivocation or reluctance of the witness, that satisfies the more probative on the point prompt.

[00:30:55] Speaker 04:
That's just wrong, Your Honors.

[00:30:57] Speaker 04:
And I see that my time is up.

[00:31:03] Speaker 03:
Thank you for listening to my presentation.