[00:00:00] Speaker 04:
Next case, 23-5120, United States versus Pacer.

[00:00:30] Speaker 04:
Mr. Kaplan.

[00:00:31] Speaker 02:
Thank you, Your Honor.

[00:00:33] Speaker 02:
My name is Daniel Kaplan.

[00:00:34] Speaker 02:
I represent the appellant in this case, David Pacer.

[00:00:41] Speaker 02:
A trial witness has one job, and that job is to tell the truth.

[00:00:49] Speaker 02:
In lay terms, in common parlance, a person who screws up their one job is not competent.

[00:01:00] Speaker 02:
Sure, if somebody has one job, in the case that we're talking about here, I'm referring to an instruction given in Mr. Pacer's trial.

[00:01:13] Speaker 02:
And the first sentence of the instruction was, under federal law, a child is presumed to be a competent witness.

[00:01:20] Speaker 01:
And you quarrel with that?

[00:01:22] Speaker 02:
Yes.

[00:01:23] Speaker 02:
All right.

[00:01:24] Speaker 02:
And the problem, the leading problem with that instruction is,

[00:01:29] Speaker 02:
that jurors are not lawyers.

[00:01:31] Speaker 02:
We're all lawyers.

[00:01:32] Speaker 02:
We all know the legal definition of competent as applied to a witness.

[00:01:38] Speaker 02:
And it's not something intuitive and it's not something a lay person would apply to a person who's performing a certain function.

[00:01:45] Speaker 02:
Not the legal definition is not.

[00:01:48] Speaker 02:
The lay definition, the ordinary everyday definition of competent would say if someone has one job and they don't do it, they're not competent.

[00:01:57] Speaker 02:
So when the jury is told,

[00:01:59] Speaker 02:
A child is presumed to be a competent witness, and the only witnesses in Mr. Pacer's trial, the only ones who testified that he inappropriately touched children, were child witnesses.

[00:02:12] Speaker 01:
The jury is effectively going to a reasonable juror.

[00:02:17] Speaker 01:
Are they going to ignore the instruction that it's the jury's job to determine the truthfulness and believability of each witness?

[00:02:27] Speaker 01:
It's not contradictory.

[00:02:29] Speaker 01:
They can do that.

[00:02:30] Speaker 01:
They can't do that.

[00:02:31] Speaker 01:
If you're saying that the competent means they always tell the truth, then there's no reason for that second instruction.

[00:02:42] Speaker 01:
You could argue that in every case.

[00:02:46] Speaker 02:
I don't agree with that, Your Honor, and I would look at cases such as Sandstrom that talk about what a reasonable juror could construe an instruction, not the same instruction, but similar instructions, to be telling them

[00:02:58] Speaker 02:
And the Supreme Court said a reasonable juror could try to reconcile, on the one hand, an instruction saying a certain group of witnesses are presumed to be competent.

[00:03:08] Speaker 02:
And on the other hand, you're the judges of the credibility of witnesses by saying, OK, we decide whether to credit witnesses.

[00:03:14] Speaker 02:
But in making that decision for this one group, we start with a presumption that they tell the truth.

[00:03:20] Speaker 02:
That's not illogical.

[00:03:22] Speaker 02:
And a reasonable juror could

[00:03:24] Speaker 01:
Well, easily reach that conclusion.

[00:03:25] Speaker 01:
A reasonable juror could do anything he wanted.

[00:03:28] Speaker 01:
You can guess what they think about every instruction.

[00:03:32] Speaker 01:
But competent does not mean truthfulness.

[00:03:36] Speaker 02:
In lay terms, in this context.

[00:03:38] Speaker 01:
In lay terms or any other term.

[00:03:39] Speaker 01:
I mean, you can force into a groove like you've done, but I don't think that's a legal argument.

[00:03:46] Speaker 02:
Well, I would refer to the reasoning of the Sandstrom opinion and Connecticut versus Johnson

[00:03:53] Speaker 02:
another Supreme Court and circuit court cases that look to when an instruction is intolerably misleading or inappropriate.

[00:04:02] Speaker 02:
And what the court says many times in Sandstrom and other cases is, if a reasonable juror could construe this instruction as this improper

[00:04:11] Speaker 02:
Meaning?

[00:04:12] Speaker 04:
Counsel, how are we to understand?

[00:04:15] Speaker 04:
We have to look at the instructions as in a totality, right?

[00:04:18] Speaker 04:
Sure.

[00:04:18] Speaker 04:
So how does instruction six, which is about credibility, inform your argument about instruction seven being misleading as to competence?

[00:04:29] Speaker 02:
Well, instruction six, Your Honor, has general guidance about assessing the credibility of witnesses.

[00:04:35] Speaker 02:
And it tells the jurors, among other things, that they were the sole judges of credibility or believability

[00:04:41] Speaker 02:
of each witness.

[00:04:44] Speaker 02:
A reasonable juror could say, okay, we're the sole judges, and we happen to know because we were told that for this one group, child witnesses, in being sole judges, we apply this presumption.

[00:04:56] Speaker 02:
That would be a perfectly logical way to read those two instructions together.

[00:05:01] Speaker 02:
The government has suggested

[00:05:04] Speaker 02:
that this jury instruction six, the earlier version of it that was given in Pacheco, this court's opinion in Pacheco, with one modification where it said including the child witnesses, but just making the point near the sole judges, that that's the same as here.

[00:05:19] Speaker 02:
That is definitely not the case, Your Honors.

[00:05:22] Speaker 02:
In the Pacheco instruction, the jury was not told that they were to presume that child witnesses were competent or that child witnesses were anything in particular.

[00:05:33] Speaker 02:
They were told, you're the sole judges of the credibility of all witnesses, including child witnesses, period.

[00:05:38] Speaker 02:
It didn't create the problem that we have here.

[00:05:41] Speaker 02:
The problem that we have here is Mr. Pacer is serving a life sentence upon a conviction given by a jury that was told to presume the credibility, effectively, of the only witnesses who said he inappropriately touched children.

[00:05:55] Speaker 01:
Well, it's only if you buy that the competent means credible.

[00:05:59] Speaker 01:
It's just old enough to tell the truth is what it means.

[00:06:04] Speaker 02:
That's the legal definition in a statute.

[00:06:06] Speaker 02:
No juror, unless they happen to be a lawyer, and if they were a lawyer, they were told ignore what you know about the law when you sit on a jury.

[00:06:13] Speaker 02:
What happens to know that?

[00:06:14] Speaker 02:
The jurors don't know that.

[00:06:15] Speaker 02:
They're a lay people.

[00:06:17] Speaker 04:
We know that they do know what instruction six says.

[00:06:20] Speaker 04:
So is it fatal that instruction six doesn't have that qualifying language that Pacheco did?

[00:06:29] Speaker 04:
If it had that language, maybe you wouldn't be making this argument about Instruction 7.

[00:06:34] Speaker 04:
But without it, there's a problem.

[00:06:37] Speaker 02:
I don't think I agree with that, Your Honor.

[00:06:39] Speaker 02:
And I may be misunderstanding the question.

[00:06:41] Speaker 02:
Is the qualifying language including the child witness?

[00:06:43] Speaker 04:
Yes.

[00:06:44] Speaker 02:
I don't think it makes any difference whatsoever.

[00:06:46] Speaker 04:
Why?

[00:06:47] Speaker 02:
Because the Pacheco Instruction is simply saying you judge credibility of witnesses, comma including child witnesses doesn't set child witnesses apart.

[00:06:55] Speaker 02:
It just includes them within.

[00:06:57] Speaker 02:
And it's not telling them apply a presumption to any group of witnesses, it's saying decide whether you believe any of them.

[00:07:05] Speaker 02:
This instruction in our case is fundamentally different with or without that qualifying language because it's telling the jurors this one group of jurors, one group of witnesses who happen to be the only ones who really incriminate in a meaningful way my client are presumed to be competent which a lay juror, a reasonable lay juror could construe as credible.

[00:07:26] Speaker 04:
Counsel, do you still advance an argument about the second sentence?

[00:07:29] Speaker 02:
Absolutely.

[00:07:32] Speaker 02:
The second sentence, you should judge a child's testimony using the same standards and in the same way you would any other witness.

[00:07:39] Speaker 02:
Now, the essential problem with that in this case is that the core of Mr. Pacer's defense was largely based on expert testimony, and not just our expert's testimony, but the government's expert's testimony about how children are special.

[00:07:54] Speaker 02:
Children are different.

[00:07:56] Speaker 02:
the way children disclose and the way children make accusations.

[00:08:00] Speaker 02:
is subject to suggestibility.

[00:08:03] Speaker 02:
It can be affected by repeated questioning.

[00:08:05] Speaker 02:
It can involve contamination.

[00:08:08] Speaker 02:
Younger people, children, are more suggestible than adults.

[00:08:12] Speaker 02:
Did you offer an instruction to that extent, to that effect rather?

[00:08:16] Speaker 02:
We didn't, but we wouldn't have, in line with this court's case law in Pacheco, this court said it's not, we don't believe an extra child witness instruction is necessary.

[00:08:27] Speaker 01:
Well, did you make an objection?

[00:08:29] Speaker 01:
based on the fact that specific grounds that you're now asserting?

[00:08:35] Speaker 02:
The objection was, initially, we don't believe this two-sentence instruction should be given, and that it's the Ninth Circuit has observed.

[00:08:44] Speaker 02:
The Ninth Circuit, by the way, citing this Court's opinion in Pacheco, has observed that a separate child witness instruction is not appropriate.

[00:08:51] Speaker 02:
That was a challenge to both sentences, the entire instruction.

[00:08:54] Speaker 04:
But you didn't, it seems like you have a preservation problem here, right?

[00:08:59] Speaker 04:
are more language jurisprudence on jury instructions that you have to actually object to the specific, it's not enough to object to the instruction, you have to object specifically to the language that you're then gonna challenge on appeal, right?

[00:09:12] Speaker 04:
You didn't have a specific objection to the second sentence.

[00:09:15] Speaker 02:
I understand the point you're making.

[00:09:16] Speaker 02:
I don't agree with it because if you imagine if my colleague who made this objection had stopped where he first made his objection, I don't think we would be even talking about preservation because he said we don't want this instruction

[00:09:28] Speaker 02:
It's not appropriate.

[00:09:29] Speaker 02:
The Ninth Circuit disapproves of it.

[00:09:30] Speaker 02:
It's not an issue of competence.

[00:09:32] Speaker 02:
And nobody would have brought up there's a difference between the first and the second sentence.

[00:09:37] Speaker 02:
It's only because a minute later, my colleague came back and said, I have one more point about the first sentence.

[00:09:43] Speaker 02:
And he made this point about credibility competency, but it even comes up.

[00:09:46] Speaker 04:
It's a penalty for over-specification, right?

[00:09:49] Speaker 02:
I know this court applies that insufficiency.

[00:09:51] Speaker 02:
I don't know if it applies it here.

[00:09:52] Speaker 02:
I don't think it should apply here.

[00:09:54] Speaker 02:
The Ben V case we've cited, I think both sides have cited, Ben V.

[00:09:58] Speaker 02:
basically says if you make an objection you tell the court what you want and Ben V cites the Supreme Court's case of Hogan Hernandez and the Supreme Court says look if you tell the judge what you want the judge to do or not do that generally preserves your objection to that action.

[00:10:14] Speaker 02:
The objection was we don't want instruction seven.

[00:10:17] Speaker 00:
Would you have been, would the defendant have been satisfied with the instruction if it added a third sentence and that is you know in

[00:10:28] Speaker 00:
considering the child's testimony, you are to consider any other testimony that addressed children's testimony.

[00:10:37] Speaker 00:
Would you have been satisfied with the instruction then?

[00:10:41] Speaker 02:
No, it would start to address part of the problem with sentence two, but it wouldn't fix it because, and there's an issue in this case of these two sentences.

[00:10:51] Speaker 02:
We have problems with both of them.

[00:10:53] Speaker 02:
As you know, they could be read as contradictory, but in Francis versus Franklin, Supreme court case, I cited in my brief, the Supreme court says,

[00:11:01] Speaker 02:
when you have two sentences of a jury instruction and they seem to be absolutely opposite each other, we don't know which one the jury applied.

[00:11:07] Speaker 02:
The jury might have said, well, follow number one and ignore number two, or follow number two and ignore number one.

[00:11:12] Speaker 02:
So I would say in that case, you would just have a massive more contradictory object of the instructions.

[00:11:17] Speaker 00:
I understand your argument.

[00:11:24] Speaker 00:
I note the last sentence of instruction six indicates much the same thing as the second sentence of instruction seven, and that is the testimony of the defendant should be weighed and his credibility evaluated in the same way as any other witness.

[00:11:44] Speaker 00:
And there is no addition, say, and remember, he's accused of a crime, and you can consider that.

[00:11:55] Speaker 00:
So given that sentence, doesn't that basically take away your argument on sentence two of instruction seven, and you're left merely with your argument as to sentence one?

[00:12:09] Speaker 02:
I don't see that there's anything in that sentence of instruction six that gets rid of the problem with instruction two about child witnesses, because our problem is specifically about child witnesses.

[00:12:22] Speaker 00:
It doesn't solve the first sentence of instruction 7.

[00:12:26] Speaker 00:
I agree with that.

[00:12:28] Speaker 00:
But doesn't that last sentence, it's not the last sentence, I'm sorry.

[00:12:32] Speaker 00:
Second to last sentence.

[00:12:33] Speaker 00:
It's second to last sentence.

[00:12:35] Speaker 00:
It treats the defendant the same way as the second sentence of instruction 7 treats children.

[00:12:43] Speaker 00:
So doesn't that eliminate your argument and your left

[00:12:46] Speaker 00:
with a challenge to sentence one of instructions.

[00:12:50] Speaker 02:
No, I don't agree because sentence two is taking away our defense which had to do specifically with child witnesses.

[00:12:56] Speaker 02:
This sentence from instruction six was about the defendant, not about child witnesses.

[00:13:01] Speaker 02:
I'm going to, if I could, just reserve the balance of my time.

[00:13:03] Speaker 02:
Sure.

[00:13:14] Speaker 04:
We'll hear from the government.

[00:13:23] Speaker 03:
May it please the court, Stephen Bryden for the United States.

[00:13:27] Speaker 03:
This court should uphold the jury's verdict because the judge acted within its discretion in giving the child witness jury instruction as well as the jury instruction on 414.

[00:13:37] Speaker 03:
The court also acted within its discretion in allowing the statement of Ms.

[00:13:43] Speaker 03:
Parsons as well as in finding that Mr. Pacer's statement to the special agent should not have been suppressed.

[00:13:51] Speaker 01:
Does he have a point that

[00:13:53] Speaker 01:
Competency and credibility are interchangeable.

[00:13:58] Speaker 03:
So that's the argument from Mr. Pacer here.

[00:14:01] Speaker 03:
And competent credibility, they're just not interchangeable.

[00:14:05] Speaker 03:
Even in the lay version of these words, there are differences to them.

[00:14:09] Speaker 03:
You have to kind of stretch through a couple different points of reasoning to get from, well, competent means you're able to do something, you're able to do something well.

[00:14:19] Speaker 03:
And an oath says that people are bound to tell the truth when they're witnesses.

[00:14:23] Speaker 03:
And so thus, somebody who's a competent witness is somebody who's obviously telling the truth.

[00:14:28] Speaker 03:
I don't believe that that logically follows as a surety, that this is what every reasonable jury would think, or even that a reasonable juror would think that.

[00:14:35] Speaker 03:
But we don't have to consider that in isolation.

[00:14:38] Speaker 03:
And the problem here is it's coming on the heels of jury instruction six, which is the pattern jury instruction, letting the jury know they are the sole judges of credibility.

[00:14:47] Speaker 04:
Why isn't it fair to infer, even if we apply all of our

[00:14:51] Speaker 04:
precedents that we, you know, take the instructions as a whole, the juries follow and understand instructions, that it's just confusing because instruction six uses the word credibility.

[00:15:02] Speaker 04:
It's much more sort of elaborate in what it's telling the jury about.

[00:15:06] Speaker 04:
And then all of a sudden instruction seven just uses the word competent.

[00:15:10] Speaker 04:
Why couldn't we conclude that the jury must have assumed that competent means credible in this context?

[00:15:16] Speaker 03:
Because there's nothing in the record that supports

[00:15:18] Speaker 03:
that kind of a reading on behalf of the jury.

[00:15:21] Speaker 03:
Additionally, there's nothing that was argued.

[00:15:23] Speaker 04:
What kind of evidence would support?

[00:15:24] Speaker 04:
Can you elaborate on that?

[00:15:26] Speaker 04:
What would have supported that kind of confusion?

[00:15:28] Speaker 03:
If the jury had asked a question to the court about competence and credibility, then for sure that would raise the issue that they're confused by it.

[00:15:36] Speaker 03:
There also could be other things in the trial record that could show that confusion.

[00:15:39] Speaker 03:
For instance, if the parties in their argument seem to be arguing with that or against that presumption, that's going to signal to the jury that

[00:15:48] Speaker 03:
Even though these words are different, they're used in a different context, we should read them the same.

[00:15:53] Speaker 03:
But in the closing arguments from both attorneys for the government and the attorney for Mr. Pacer, there is significant, or almost all of the argument turns on the credibility of the children, or at least how the evidence and how the facts go to show credibility.

[00:16:09] Speaker 03:
And nobody at any point says anything close to, because they're children, you should presume they're telling the truth, or you have to start from,

[00:16:17] Speaker 03:
believing them, they're addressing the issues raised by defense about their allegations of coaching or lying, and talking about how the facts disprove those, not asking the jury to find that.

[00:16:31] Speaker 03:
The jury instructions themselves disprove them.

[00:16:34] Speaker 03:
And I think it's even more clear when you're including the rest of instruction number seven.

[00:16:39] Speaker 03:
The first sentence doesn't exist in a vacuum.

[00:16:42] Speaker 03:
It exists combined with a sentence reinforcing to the jury

[00:16:45] Speaker 03:
that in this case they are supposed to judge a child witness under the same standards as they would any other witness.

[00:16:51] Speaker 03:
Now that does not preclude the defense argument that these children have reasons that they're not credible.

[00:17:00] Speaker 03:
That's what the credibility instruction tells them to assess, assess their biases, assess reasons to lie and things like that.

[00:17:06] Speaker 03:
So this instruction reinforces that those child witnesses are subject to all of those.

[00:17:11] Speaker 00:
There's a pattern jury instruction on this, isn't there?

[00:17:15] Speaker 03:
There is, the general credibility.

[00:17:19] Speaker 00:
Yeah, and that follows Pacheco, correct?

[00:17:23] Speaker 03:
So there's a little difference between the pattern instruction in Pacheco that's meaningful, which is that the judge in Pacheco does specifically single out child witnesses and include them in the group of witnesses that are supposed to be treated with the same level or the same assessment of credibility.

[00:17:38] Speaker 03:
And while in this instruction, that is kind of separated into that second instruction,

[00:17:43] Speaker 03:
It's still giving that same information to the jury that the court did in Pacheco that child witnesses are included in the gamut and they should be assessed that way.

[00:17:52] Speaker 04:
But it's physically disaggregated.

[00:17:53] Speaker 04:
I mean, isn't the jury, what is the jury to make of that?

[00:17:56] Speaker 04:
I mean, it's not included.

[00:17:57] Speaker 04:
They're not included as one of the subset.

[00:17:59] Speaker 04:
They're separated.

[00:18:01] Speaker 03:
Well, honestly, they're read all in a row to a jury as just a run of information that's given to them.

[00:18:09] Speaker 00:
Is the jury given the written instructions?

[00:18:11] Speaker 03:
They are given written instructions.

[00:18:12] Speaker 00:
Well, so that doesn't matter.

[00:18:13] Speaker 00:
If they go back to the jury room, they look and they say, oh, this is separate instructions.

[00:18:18] Speaker 00:
They're number six and number seven.

[00:18:20] Speaker 00:
They're treating children different.

[00:18:23] Speaker 03:
I agree that they are on separate pages and may or may not have titles, depending on the particular court.

[00:18:29] Speaker 03:
But ultimately, again, or is it reasonable to assume that a jury is making that finding in comparison to all the rest

[00:18:38] Speaker 03:
The instructions would make it clear that that's not something to do.

[00:18:41] Speaker 00:
Is seven a pattern jury instruction?

[00:18:43] Speaker 03:
It is not, Your Honor.

[00:18:45] Speaker 00:
Was there a record made of the jury instruction deliberations?

[00:18:56] Speaker 03:
There is a record made of a kind of final jury instruction conference.

[00:19:01] Speaker 03:
There appears to have been a preliminary jury instruction conference that's not on the record.

[00:19:06] Speaker 00:
At the one that's on the record, is there any indication from the government?

[00:19:10] Speaker 00:
Is it why they're adding this instruction seven in sequence, instruction six, and instruction seven is not a pattern?

[00:19:22] Speaker 00:
Is there any discussion of that?

[00:19:24] Speaker 03:
The government certainly does not claim that instruction seven is a pattern.

[00:19:28] Speaker 00:
The government simply... Was that discussed?

[00:19:30] Speaker 00:
I understand that.

[00:19:31] Speaker 00:
My question is, was that discussed at the

[00:19:35] Speaker 00:
a jury instruction conference that is on the record.

[00:19:39] Speaker 03:
Your Honor, my recollection of the instruction conference is that they talk about the fact that it's a non-pattern.

[00:19:43] Speaker 03:
That's part of the argument.

[00:19:45] Speaker 04:
Well, it seems that at the instruction conference, the government wasn't really defending this instruction very rigorously.

[00:19:54] Speaker 03:
The government argued that it was a correct statement of the law and that it was an appropriate instruction.

[00:19:57] Speaker 04:
It's a confidence and credibility are two different things.

[00:19:59] Speaker 04:
We're not going to vehemently fight this.

[00:20:01] Speaker 04:
You think it's an accurate statement of the law, and that was sort of the extent of it, right?

[00:20:04] Speaker 04:
That's correct.

[00:20:04] Speaker 04:
And you acknowledge that the Ninth Circuit disfavors.

[00:20:07] Speaker 04:
There was no sort of litigation about that.

[00:20:10] Speaker 03:
I acknowledge the Ninth Circuit disfavors that, but I think what's important from Pacheco is Pacheco doesn't say that this circuit does not offer child witness instructions.

[00:20:17] Speaker 03:
What it does is it places the decision of whether to give,

[00:20:21] Speaker 03:
or what type of child witness instruction to give into the sound discretion of the district court.

[00:20:26] Speaker 03:
And so while this might not be appropriate there, Pacheco tells us it can be appropriate here as long as it's following the rules of jury instructions generally.

[00:20:34] Speaker 03:
Is it an accurate statement of the law?

[00:20:35] Speaker 03:
Could it be helpful to the jury in helping to make their finding?

[00:20:39] Speaker 00:
Is there any specific child witness instruction in the patterns?

[00:20:46] Speaker 03:
No, there is not.

[00:20:55] Speaker 03:
I guess I would just briefly, on the 414 issue.

[00:21:02] Speaker 04:
Actually, before we move on.

[00:21:04] Speaker 04:
So it's the government's position.

[00:21:05] Speaker 04:
We're on plain error for the second sentence.

[00:21:07] Speaker 04:
Is that right?

[00:21:09] Speaker 03:
It is, Your Honor.

[00:21:10] Speaker 03:
Ultimately, while the government agrees that the first objection, I guess, is to the instruction as a whole, when we're talking about the fact it's not preserved is because the argument is not raised at all.

[00:21:23] Speaker 03:
This argument that this instruction

[00:21:25] Speaker 03:
attacks the core of the defense argument was never raised.

[00:21:29] Speaker 03:
And so there was no opportunity for there to be any kind of district court argument or any fact finding about whether this instruction really did hamper the defense argument, whether there should have been another instruction offered instead.

[00:21:42] Speaker 04:
So your argument focuses on preserving the second sentence.

[00:21:45] Speaker 03:
Correct.

[00:21:46] Speaker 04:
Okay.

[00:21:46] Speaker 04:
So let's assume either we disagree with you or we agree that the defendant is on plain error but satisfies that it's plain error.

[00:21:58] Speaker 04:
Why isn't that sentence just fundamentally undermining the defense in the case?

[00:22:07] Speaker 03:
It doesn't undermine the defense in the case because that sentence speaks to all child witnesses.

[00:22:14] Speaker 03:
And as Mr. Pacer acknowledges,

[00:22:16] Speaker 03:
The defense's argument was not that children are not credible, and that you can just, because somebody is a child, find that they're not credible.

[00:22:25] Speaker 03:
And this instruction doesn't say either way that you're supposed to find they're credible or you're not supposed to find they're credible.

[00:22:31] Speaker 03:
It tells you you have to judge them according to the information in the record and the information in the instructions.

[00:22:37] Speaker 03:
And so ultimately, this did not get in the way of their ability to argue the case at all.

[00:22:43] Speaker 03:
In closing argument,

[00:22:44] Speaker 03:
They went significantly into questions of credibility.

[00:22:48] Speaker 03:
They brought up the testimony of both of the government expert and the defense expert.

[00:22:54] Speaker 03:
There was, you know, Mr. Pacer took the stand himself and testified about why he considered the children to be not credible when they were making their allegations.

[00:23:04] Speaker 03:
And there's nothing in the record that shows that this instruction would have or did hamper that argument in any way.

[00:23:15] Speaker 03:
And ultimately, if we're on plain error on that issue, when you get to the issue of substantial rights, there is a significant amount of evidence in this case that shows that Mr. Pacer was guilty of what he was alleged to have committed.

[00:23:28] Speaker 03:
This is kind of qualified as a he said, she said case in the briefing by Mr. Pacer, but that's not really consistent with the evidence that's in the record.

[00:23:38] Speaker 03:
Mr. Pacer himself gave statements that agreed with

[00:23:42] Speaker 03:
virtually everything that SL testified to, other than the moment of sexual abuse itself.

[00:23:49] Speaker 03:
He admitted that within a few days of moving in with her mother, within a month of starting to date her, he would massage her in bed before night, he would put lotion on her.

[00:24:00] Speaker 03:
The testimony between the four, the victim SL and then the three or 14 victims are very similar in

[00:24:12] Speaker 03:
the ways that Mr. Pacer chose to abuse them.

[00:24:16] Speaker 03:
So in his action to take when they're separately, when they're alone, specifically targeting children of women who are not necessarily paying perfect attention, women that he can start to date and then immediately get access.

[00:24:32] Speaker 03:
But they're not, sorry.

[00:24:33] Speaker 04:
I understand your argument that the third prong isn't satisfied.

[00:24:38] Speaker 04:
I understand your argument there.

[00:24:39] Speaker 04:
But it just doesn't seem to make sense to me

[00:24:43] Speaker 04:
how we still credit the government on the third prong when the entire defense was about the credibility of the child witnesses.

[00:24:52] Speaker 04:
And this jury instruction is singling out that group of witnesses and telling the jury to treat them in a special way.

[00:25:01] Speaker 03:
If the instruction told them to treat them in a special way, I agree that we would have a problem.

[00:25:05] Speaker 03:
But the instruction itself tells them to treat them in the same way.

[00:25:08] Speaker 03:
What defense is asking for

[00:25:10] Speaker 03:
is an instruction that tells them to treat them in a different way.

[00:25:13] Speaker 03:
And they didn't proffer what that instruction would look like.

[00:25:17] Speaker 04:
But ultimately... Just the existence of the instruction itself is the problem.

[00:25:24] Speaker 03:
If that was the case, it would have been a problem in Pacheco.

[00:25:27] Speaker 03:
Because Pacheco is also saying that child witnesses are subject to the same rules and regulations... But there wasn't a separate instruction in Pacheco.

[00:25:34] Speaker 04:
It was part of the...

[00:25:36] Speaker 03:
There wasn't a separate instruction, but we're looking by the principles of the instructions and what somebody's going to take them to believe.

[00:25:43] Speaker 03:
There is no meaningful difference in what's being given to them simply because it's on a separate page.

[00:25:51] Speaker 00:
Unless the court has any further questions, I would.

[00:25:54] Speaker 00:
Does the pattern instruction doesn't say anything about competence, does it?

[00:26:00] Speaker 03:
It does not.

[00:26:05] Speaker 03:
Thank you very much.

[00:26:06] Speaker 03:
I'd ask the court to affirm.

[00:26:14] Speaker 02:
A few quick points, Your Honors.

[00:26:15] Speaker 02:
The government just stood here and said that the defense is asking for an instruction telling the jury to treat children differently.

[00:26:23] Speaker 02:
That is 180 degrees the opposite of what's happening here.

[00:26:27] Speaker 02:
We wanted no instruction telling the jurors how to treat child witnesses.

[00:26:31] Speaker 02:
They insisted on it, and they got it.

[00:26:32] Speaker 02:
That's why we're here.

[00:26:34] Speaker 02:
So the government trying to turn things around suggests maybe they're not too confident in their case right now.

[00:26:39] Speaker 02:
The government also said just, sorry.

[00:26:42] Speaker 00:
Does record include the proposed jury instructions of both sides?

[00:26:46] Speaker 02:
Yes.

[00:26:47] Speaker 00:
Okay, thank you.

[00:26:49] Speaker 02:
The government also said, the government agrees that the first objection to the child witness instruction attacked the instruction as a whole.

[00:26:57] Speaker 02:
I submit preservation is not an issue for either sentence of the jury instruction given

[00:27:03] Speaker 02:
the government's concession just now.

[00:27:05] Speaker 02:
Now, a basic point to make here is that the jury is a black box.

[00:27:10] Speaker 02:
We don't know what happens in the jury room.

[00:27:11] Speaker 02:
So there's a sense where you have to look at the instruction, as in Sandstrom, as in Connecticut versus Johnson, as in other cases in this court addressing jury instructions and say, could a reasonable juror have construed this in a very inappropriate way?

[00:27:28] Speaker 02:
That's what the court says over and over and over again in Sandstrom, over and over in

[00:27:33] Speaker 02:
Connecticut versus Johnson, and in the Connecticut versus Johnson case, the Supreme Court notes that the pivotal concept of Sandstrom is that the possibility, italics, that the jury reached this decision in an impermissible manner requires reversal, even though the jury may also have reached the same result in a constitutionally acceptable fashion.

[00:27:52] Speaker 02:
So because the jury is a black box, the government is saying, well, we don't have a record showing the jury misconstrued.

[00:27:57] Speaker 02:
Well, of course we don't have a record.

[00:28:00] Speaker 02:
The court reporter doesn't sit in the jury room

[00:28:02] Speaker 02:
We don't have transcripts.

[00:28:03] Speaker 02:
That's closed off.

[00:28:05] Speaker 02:
And so that's the analysis.

[00:28:06] Speaker 04:
So your argument on that point is that we wouldn't, because I asked the government about that record point, we wouldn't expect to have a record.

[00:28:14] Speaker 02:
Of course not.

[00:28:14] Speaker 02:
And in Sandstrom and Connecticut v. Johnson, the court didn't have a record.

[00:28:18] Speaker 02:
This court didn't have a record in Pacheco.

[00:28:21] Speaker 02:
It looked at the language.

[00:28:21] Speaker 02:
It looked at the record of the trial and said, was this problematic or not?

[00:28:26] Speaker 02:
In this case, it went to the core of the defense

[00:28:28] Speaker 02:
It told the jury to credit the only witnesses who implicated my client in criminality, and it was as prejudicial as it could possibly be, and it calls for reversal.

[00:28:39] Speaker 04:
Thank you, counsel.

[00:28:40] Speaker 04:
Thank you.

[00:28:41] Speaker 04:
Thank you both for your helpful arguments.

[00:28:43] Speaker 04:
The case will be submitted.

[00:28:45] Speaker 04:
We will take a 10-minute