[00:00:00] Speaker 00:
And we will start with 23-5062, United States versus Riggs.

[00:00:19] Speaker 02:
Good morning.

[00:00:20] Speaker 02:
Excuse me.

[00:00:20] Speaker 02:
Good morning, and may it please the court, Nicholas Hart for appellant Gary Riggs.

[00:00:25] Speaker 02:
Mr. Riggs challenges his convictions

[00:00:27] Speaker 02:
following a jury trial for four counts of aggravated child sexual abuse for three reasons.

[00:00:34] Speaker 02:
First, that the district court abused its discretion in allowing six uncharged acts of child molestation under Rule 414 to be presented to the jury.

[00:00:46] Speaker 02:
Second, that the district court abused its discretion in allowing an expert in

[00:00:51] Speaker 02:
child, the forensic interviews of child victims to testify in a manner that bolstered the alleged victim SB's testimony.

[00:01:04] Speaker 02:
And three, that the district court abused the discretion by allowing a sane sexual assault nurse examiner expert to testify when there was no issue related to any sane examination in this case.

[00:01:20] Speaker 02:
To start with the rule 414 evidence, here the district court allowed six uncharged acts of alleged child molestation of SB to be presented to the jury.

[00:01:33] Speaker 02:
Each of those acts, other than one of them, were alleged to have occurred in the same location, around the same time frame, and under similar circumstances with one of them occurring in Texas.

[00:01:47] Speaker 02:
These six acts, which took

[00:01:49] Speaker 02:
The acts before the jury from four to 10 acts resulted in unfair prejudice and were more prejudicial than probative.

[00:01:59] Speaker 02:
The probative value?

[00:02:01] Speaker 00:
Were they more prejudicial than the charged acts?

[00:02:05] Speaker 02:
I do believe that they are, Your Honor, because we're going the government's argument is that the four charged acts are more severe than the art charge act.

[00:02:14] Speaker 02:
So that reduces the prejudice.

[00:02:16] Speaker 02:
But by adding six separate acts,

[00:02:19] Speaker 02:
and now putting before the jury 10 acts of child abuse instead of just four, that does lead to unfair prejudice because the jury is now confronted with 10 instances where the allegations are that Mr. Ray's abused SB.

[00:02:35] Speaker 02:
So it's the quantity.

[00:02:37] Speaker 00:
Well, is that really the test, the quantity, or is it the, I guess, the quality?

[00:02:43] Speaker 00:
I mean, you've got in the charged acts some more detail

[00:02:49] Speaker 00:
and you have actual penetration.

[00:02:57] Speaker 00:
Couldn't we look at it and say, well, the jury already heard such graphic evidence with respect to the charged acts that this didn't really impact much?

[00:03:09] Speaker 02:
I think that three of the six acts, which were discussed in more detail,

[00:03:16] Speaker 02:
that the government agrees with me are 414 acts.

[00:03:19] Speaker 02:
Two of those didn't involve digital penetration.

[00:03:22] Speaker 02:
And one of them involved penetration in a vehicle that was while going home that related to some of the charged conduct itself.

[00:03:35] Speaker 02:
So I do think that these acts, there are certainly some where there is less detail and less serious conduct.

[00:03:43] Speaker 02:
but there's also some that do have equally serious conduct as some of the charged acts.

[00:03:49] Speaker 02:
I think also the fact that SB was unable to discuss all of the detail, the memory issues, and additionally, the vagueness of these statements does lower the probative value

[00:04:10] Speaker 02:
of the 414 evidence that was submitted to the jury and instead what the jury walks away from with this is exactly what SB testified which was this happened so many times I can't even place everything.

[00:04:24] Speaker 03:
But it also verifies the expert testimony that it's very difficult for children to deal with this particularly.

[00:04:37] Speaker 02:
It does verify

[00:04:39] Speaker 02:
testimony, which is why we're not challenging this at the relevancy prong, just at the 403 balancing prong.

[00:04:45] Speaker 02:
No, I mean in conjunction with prejudice versus probative value.

[00:04:51] Speaker 02:
I think that that relevance is reduced by the four other witnesses that testified that also give confirming information related to SB's

[00:05:02] Speaker 02:
allegations, and that's the friend, the mother, the father, and the grandmother.

[00:05:06] Speaker 00:
Well, none of them were there.

[00:05:07] Speaker 00:
There were only two people there any time these acts occurred.

[00:05:11] Speaker 02:
That's correct, but there are four witnesses who were able to corroborate that she was at least present on these days or that they were together on those days, and that is evidence that bolsters that testimony and is relevant, I think, reduces the probative value

[00:05:32] Speaker 02:
of the uncharged acts.

[00:05:34] Speaker 03:
Ultimately, aren't you walking yourself into a harmless error situation where you have four people corroborating surrounding circumstances, you have four instances where strong testimony was given by the victim, you have certain admissions by the defendant, and so these extra six vague and unspecified instances just really didn't end up meaning that much in light of the

[00:06:02] Speaker 03:
strong evidence?

[00:06:03] Speaker 02:
I do think that we could say, given all the evidence, that it is harmless, especially when we consider the quantity of the acts.

[00:06:13] Speaker 02:
And that's the main quantity argument that's here, is that having these six uncharged acts and creating 10 acts that the jury had to individually consider and unanimously agree upon.

[00:06:24] Speaker 02:
So did you try the case below?

[00:06:26] Speaker 02:
Yes.

[00:06:27] Speaker 03:
As part of your closing argument, did you try to exploit the idea that the six uncharged acts were vague and she didn't really remember anything about them and couldn't specify anything about them?

[00:06:40] Speaker 02:
We tried to do that for all ten of the acts.

[00:06:44] Speaker 02:
And really the attack on the 414 and the underlying conduct was essentially the same, which is, you know, there was

[00:06:53] Speaker 02:
because this is a McGirt case.

[00:06:55] Speaker 02:
I mean, there are years of statements that are very inconsistent, but of course, we're not here just arguing credibility of SB.

[00:07:06] Speaker 00:
This is an abusive discretion review for us.

[00:07:09] Speaker 02:
Yes.

[00:07:10] Speaker 02:
All three of the issues that we raise around are an abusive discretion review, as all three are evidentiary issues.

[00:07:18] Speaker 02:
To move to the second issue, which is the admission of the expert testimony

[00:07:23] Speaker 02:
of the child's forensic interviewer.

[00:07:26] Speaker 02:
Mr. Riggs agrees that generally speaking, testimony from forensic interviewers about general characteristics of a class, this court has said, is admissible.

[00:07:39] Speaker 02:
But this testimony, instead of just talking generally about the fact that a jury needs to set aside its biases,

[00:07:47] Speaker 02:
and that there's truly no indicative behavior of abuse or reporting because every person is different, went further than that and was specifically tailored towards each of the issues that were related to SB's testimony.

[00:08:09] Speaker 02:
By talking about that inconsistent statements are common,

[00:08:14] Speaker 02:
that delayed reporting when an abuser is a family member is common about the memory issues, the inability to distinguish between the acts, that mental health influences, such as they're suffered by SB.

[00:08:28] Speaker 03:
So what could the expert have talked about that would have been relevant other than those things?

[00:08:35] Speaker 03:
Because the whole plan of attack here was those things.

[00:08:44] Speaker 03:
How could there be, you say you don't dispute that the expert could testify generally, but I mean, what are they going to do?

[00:08:53] Speaker 03:
Talk about a bunch of stuff that's not at issue?

[00:08:54] Speaker 02:
I think that in this category of testimony, the way that I've seen it done that I think is proper is where experts come in and say, we all as a society have these biases for how victims should act.

[00:09:09] Speaker 02:
That is not true.

[00:09:10] Speaker 02:
No two are the same.

[00:09:14] Speaker 02:
We need to set aside those biases and understand that everyone reports different and reacts different and does things differently.

[00:09:21] Speaker 02:
You need to judge.

[00:09:23] Speaker 02:
And then the lawyers, the prosecutors stand up and argue you judged the credibility based on the witness's testimony.

[00:09:29] Speaker 03:
Did you cross examine the expert based on and ask some questions that would have elicited things that you thought would be favorable to your position?

[00:09:41] Speaker 02:
We did, Your Honor, after.

[00:09:44] Speaker 02:
We did not, the statements continued to be vague and tailored back towards what SB experienced because it was just directly related to this testimony, trying to undo something with that, the challenge.

[00:10:05] Speaker 00:
I don't know how you can say that the testimony was directly related to the victim's testimony here because

[00:10:13] Speaker 00:
that Ms.

[00:10:15] Speaker 00:
Blevins said that she had not interviewed SV and she did not know anything about SV's interview.

[00:10:23] Speaker 00:
So she specifically told the jury, I'm not talking about this particular victim of child sexual assault.

[00:10:32] Speaker 00:
I am telling you generally about what patterns we can see among child victims of sexual assault.

[00:10:42] Speaker 02:
And she then went on to testify based on the government's questions only about the issues with reporting that were before the jury.

[00:10:53] Speaker 00:
Well, she didn't limit it to only the issues that were relevant here.

[00:10:57] Speaker 00:
She also testified about accidental disclosures.

[00:11:01] Speaker 00:
She testified about preschool age children's ability to answer questions.

[00:11:06] Speaker 00:
She talked about

[00:11:08] Speaker 00:
on how a child may react if they have a previous experience.

[00:11:13] Speaker 00:
I mean, those weren't relevant here, and yet her testimony went well beyond.

[00:11:20] Speaker 00:
It did happen that some of the things that she said generally occur also occurred here, but that doesn't seem surprising when you've got SB as within the group of people she's talking about.

[00:11:36] Speaker 02:
I do think that some of those, Your Honor, are still related here, especially the previous accidents, because this is happening over the previous incidents, because it's happening over a course of several years.

[00:11:51] Speaker 00:
Well, but it's a previous experience with child welfare or law enforcement, and this was the first time.

[00:11:58] Speaker 00:
despite as the evidence came out that we had an ongoing sexual assaults, various over time, that it wasn't until very late in the day that law enforcement or child welfare got involved.

[00:12:17] Speaker 02:
Yes, I understand what you're saying, Your Honor.

[00:12:20] Speaker 02:
I mean, we do have, I think that the overall and the large majority of the testimony

[00:12:28] Speaker 02:
does have this targeted nature to it.

[00:12:32] Speaker 02:
If I may just briefly cover the last area, Your Honor, with my remaining time.

[00:12:39] Speaker 02:
As for the SANE expert, this discussion we think is also an abuse of discretion because this is not actually an absence of evidence case.

[00:12:47] Speaker 03:
Did you ever bring it up?

[00:12:48] Speaker 03:
Did you ever suggest there's no forensic evidence that this occurred?

[00:12:52] Speaker 03:
They have no lab results.

[00:12:56] Speaker 03:
No rape kit, no this, no that?

[00:12:58] Speaker 02:
We did not, Your Honor.

[00:13:00] Speaker 02:
Because even before the nurse took the stand, the investigator talked about how there just simply is no evidence when there's these delayed disclosures.

[00:13:09] Speaker 02:
So the issue in the case was really about whether SB was telling the truth and not so much about the forensic investigation.

[00:13:17] Speaker 02:
And there were issues related to the interview of Mr. Riggs.

[00:13:21] Speaker 00:
In the United States versus Dalton, I mean, we said

[00:13:26] Speaker 00:
that where there's an absence, a lack of evidence, that you can have someone testify to explain that.

[00:13:34] Speaker 00:
And it's to deal with what people refer to as the CSI impact on juries where they seem to question why they're not being told about physical evidence because they have an understanding that in 30 minutes you can have it solved with all the fancy science.

[00:13:56] Speaker 00:
How is this different?

[00:13:58] Speaker 02:
I think Dalton is distinguishable here because there were instances where the investigation actually searched for DNA evidence but wasn't able to find it.

[00:14:08] Speaker 02:
And the experts were able to come in and say how in investigations it's common that these forensic investigations don't uncover any forensic evidence.

[00:14:18] Speaker 02:
That's not what we have here.

[00:14:19] Speaker 02:
We don't have an instance of the examination happening or anyone seeking an examination.

[00:14:25] Speaker 02:
We already had the investigator saying why there was no examination in this case, that it was not an issue whatsoever.

[00:14:31] Speaker 02:
So all this did was put before the jury evidence that had absolutely nothing to do with the case.

[00:14:39] Speaker 03:
So where is the harm?

[00:14:40] Speaker 03:
I mean, the jury hears it.

[00:14:43] Speaker 03:
So what?

[00:14:44] Speaker 03:
It's not an issue.

[00:14:45] Speaker 03:
They're smart enough to recognize it's not an issue.

[00:14:48] Speaker 03:
The government wasted everybody's time by putting on this witness.

[00:14:54] Speaker 02:
If I may answer, Your Honor.

[00:14:58] Speaker 02:
So first, the government actually didn't raise the harmless error argument as to the two expert issues, and I think that's because, and all I can do is obviously speculate, but I think that's because expert testimony

[00:15:11] Speaker 02:
even though the jury is instructed that they don't have to follow it or credit it, does receive different type of deference from a jury when you have these well-credentialed experts coming in and talking about these issues.

[00:15:27] Speaker 00:
Don't we have the authority to sua sponte consider harmless error under our case law and under the federal rule?

[00:15:37] Speaker 02:
Absolutely, and yes.

[00:15:43] Speaker 00:
Thank you.

[00:15:55] Speaker 01:
Good morning.

[00:15:56] Speaker 01:
May it please the court, Lina Alam for the United States.

[00:16:00] Speaker 01:
This court has repeatedly recognized

[00:16:03] Speaker 01:
that in the context of sexual abuse and child molestation, consistent with congressional intent, courts are to liberally admit evidence of prior sexual misconduct for any purpose, including to prove a defendant's propensity.

[00:16:23] Speaker 01:
Here, either three or six episodes of uncharged

[00:16:30] Speaker 01:
sexual misconduct against the victim of the four charged offenses, was more probative than prejudicial, and supported the jury's verdict in this case.

[00:16:47] Speaker 01:
The district court did not abuse its discretion in allowing those, again, three or six episodes of- I think I'd say six.

[00:16:58] Speaker 01:
I don't think it matters, Your Honor.

[00:17:00] Speaker 01:
I think the three that the government argues did not really come in as episodes of child molestation because the victim was unable to give details about them are obviously less prejudicial than the ones where the victim described the child molestation.

[00:17:20] Speaker 03:
So you would agree that they're less probative too, right?

[00:17:24] Speaker 01:
Not really, Your Honor, because

[00:17:26] Speaker 01:
One of the purposes for admitting her testimony about the course of conduct and the number of times it happened and the fact that there were so many incidents since she didn't remember them all was actually probative of why her testimony on the charge defenses could have been less clear or why her memory of where things happened or the details of each individual incident had deteriorated because there were so many incidents she almost couldn't keep track.

[00:17:55] Speaker 01:
And so her failure of memory on the uncharged incidents was actually part of the probative value of her testimony about those incidents.

[00:18:03] Speaker 03:
OK.

[00:18:03] Speaker 03:
So I thought I understood from your brief that part of your argument was, look, her memory on these things weren't very good.

[00:18:09] Speaker 03:
She didn't really have any details.

[00:18:11] Speaker 03:
So the jury didn't even really get that much from them.

[00:18:14] Speaker 03:
So ergo, they weren't prejudicial.

[00:18:18] Speaker 03:
But now we have another theory on why they were really probative.

[00:18:22] Speaker 03:
So maybe they were prejudicial.

[00:18:23] Speaker 01:
Well, they're actually both.

[00:18:25] Speaker 01:
Just as the defendant is in the unusual position of arguing that there was less prejudicial evidence

[00:18:34] Speaker 01:
to support, to corroborate SB's testimony, but that evidence also goes to whether the error was harmless.

[00:18:40] Speaker 01:
We're in the unusual position of saying this evidence wasn't particularly prejudicial because her memory wasn't great.

[00:18:46] Speaker 01:
It also was probative to the extent that it helped explain the course of her testimony in general.

[00:18:52] Speaker 03:
It seems to me the thin nature of the testimony could be particularly problematic for you, and for this reason, is because it suggests that the purpose

[00:19:04] Speaker 03:
of the evidence and that the effect of the evidence was just to pile on numbers of times that this happened and that you weren't really trying to get, you didn't really have great evidence that it was the same conduct.

[00:19:18] Speaker 01:
It was similar conduct and this court's cases have pretty consistently affirmed admission of this kind of evidence and in much more significant ways.

[00:19:28] Speaker 01:
In the Peralt case,

[00:19:31] Speaker 01:
Only one victim was charged seven episodes.

[00:19:35] Speaker 01:
Seven other victims gave 414 testimony, and the one charged victim testified as to hundreds of episodes of sexual misconduct by the defendant against that one victim.

[00:19:48] Speaker 01:
And in that case, this court affirmed.

[00:19:53] Speaker 01:
The victim was a child who testified about an attempted rape, and the court admitted four different episodes of forcible rape from victims ranging from age 10 to age 20, many of them years and years before.

[00:20:10] Speaker 01:
And under the Rule 403 analysis, this court affirmed as well.

[00:20:16] Speaker 01:
All of these cases are premised on the general

[00:20:20] Speaker 01:
sense that congressional intent is that these kinds of prior abuses, even when there are small differences or even when there is a large lapse in time or a number of different episodes, are not so prejudicial that they should not be admitted.

[00:20:34] Speaker 03:
Yeah, I guess my point is that if your evidence is not particularly probative

[00:20:44] Speaker 03:
of the ultimate fact of did you do it or not.

[00:20:49] Speaker 03:
Maybe not the memory issues, but your evidence is your witness has a lot of memory problems and a lack of detail about these things.

[00:21:01] Speaker 03:
But you still continue to bring in six additional occasions that the purpose of that is just to pile on and

[00:21:09] Speaker 03:
And to say it happens all the time, I can't tell you exactly what was happening all the time, but it happened all the time.

[00:21:16] Speaker 03:
And it seems to me that that's problematic for you.

[00:21:19] Speaker 01:
It's not particularly in this case because the district court gave an instruction that specifically cautioned the jury and required them to first make a threshold determination whether they believe those other episodes occurred before they gave them any weight.

[00:21:36] Speaker 01:
And so to the extent that that could have been prejudicial, that prejudice was limited by the specific instruction that the district court gave in this case.

[00:21:46] Speaker 01:
Moving on very briefly to the second point in Appellant's brief, it sounds to me that the argument is that the government or the witness somehow caused the district court's abusive discretion

[00:22:04] Speaker 01:
by narrowly tailoring the questions asked of Ms.

[00:22:08] Speaker 01:
Levins to relevant evidence.

[00:22:11] Speaker 01:
And that is simply not what Parson stands for.

[00:22:14] Speaker 01:
Parson suggests that evidence by a forensic interviewer about the process of child abuse disclosure is admissible and is not

[00:22:27] Speaker 01:
does not somehow bolster or vouch for the witness's testimony, particularly whereas here the expert had no opportunity to interview the victim and did not know what the victim's testimony was, but was asked questions by the prosecutor that were tailored to the subjects that were likely to come up in this case.

[00:22:48] Speaker 01:
That is not an abusive discretion.

[00:22:51] Speaker 00:
And I think the argument is that it becomes vouching because

[00:22:56] Speaker 00:
The expert either just intuitively knew or was told that these are the weaknesses in the victim's testimony, vague memory, confusion on dates, and didn't report it for years.

[00:23:17] Speaker 00:
And then the expert went right to those subjects matters to dis- I think this is the argument, to disabuse

[00:23:26] Speaker 00:
the jury of any concerns about weaknesses in the victim's testimony?

[00:23:31] Speaker 01:
Well, certainly the questions were tailored by the prosecution to ask about the areas of concern as to the victim's testimony.

[00:23:40] Speaker 01:
I don't think it was a coincidence that the expert testified that victims of child sex abuse sometimes have failures of memory or make tentative disclosures or that the time lapse can change things over time.

[00:23:54] Speaker 01:
But that it wasn't a coincidence doesn't mean there was some collusion.

[00:23:58] Speaker 01:
That means those are very frequent issues in child sex abuse disclosures and that the government only chose to ask questions about the things that made sense in this case did not create an abuse of discretion on the part of the district court.

[00:24:12] Speaker 00:
Thank you.

[00:24:15] Speaker 01:
If there are no other questions, I would see the rest.

[00:24:17] Speaker 00:
You want to talk about Miss Bell?

[00:24:21] Speaker 01:
Just briefly, Your Honor, I want to explain why Appellant's attempt to distinguish Dalton is mistaken.

[00:24:30] Speaker 01:
In Dalton and in the other cases cited, in general, those experts were permitted to testify about the absence of evidence where tests were done.

[00:24:37] Speaker 01:
And here, obviously, the test wasn't done.

[00:24:40] Speaker 01:
But part of Ms.

[00:24:42] Speaker 01:
Bell's testimony was specifically about why the test wasn't done.

[00:24:47] Speaker 01:
both because it wouldn't have been expected to find evidence for the physical reasons that she described, but also because of the level of trauma that would be caused by this particular kind of testing, unlike testing a gun with fingerprints or DNA.

[00:25:02] Speaker 01:
There was harm to be done by doing the test in the first place.

[00:25:05] Speaker 01:
And so to the extent that the jury wanted to know why the government hadn't gone ahead and done the test at all, Ms.

[00:25:13] Speaker 01:
Bell's testimony was

[00:25:14] Speaker 01:
was designed to address those concerns.

[00:25:16] Speaker 03:
Did you have any belief that the jury wanted to know?

[00:25:20] Speaker 03:
Had it been brought up in opening statements that they're not even going to present you with any evidence?

[00:25:26] Speaker 01:
I don't believe that had been brought up.

[00:25:29] Speaker 01:
However, in all of these cases particularly,

[00:25:33] Speaker 01:
where the government chooses to put on a panoply of experts about evidence that doesn't exist, it's designed to deal with the potential concerns that are raised from a jury pool that's been raised on CSI.

[00:25:44] Speaker 03:
I mean, aren't those usually cases where one would expect to see forensic evidence, but the government for some reason doesn't have any?

[00:25:55] Speaker 01:
I think the question your question raises is, who is one in this case?

[00:26:00] Speaker 01:
And because jurors are typically not familiar

[00:26:03] Speaker 01:
with the forensics of child sex abuse.

[00:26:06] Speaker 01:
They may well have expected there to be some kind of physical evidence of the rapes of a 13 or 14 year old that were described here.

[00:26:15] Speaker 03:
What was the most recent charged occurrence before trial?

[00:26:22] Speaker 01:
It was the digital penetration in December of 2014 and the trial took place in May of 2022.

[00:26:29] Speaker 03:
Yeah, so I mean,

[00:26:33] Speaker 01:
And of course that was because of McGirt.

[00:26:37] Speaker 01:
So the original state trial, I think, took place in 2015 or 2016.

[00:26:40] Speaker 01:
And the forensic exam, the report of the child sex abuse took place in May of 2015.

[00:26:48] Speaker 01:
And so even then, it would have been a good five or six months from the last alleged digital penetration.

[00:26:57] Speaker 01:
If there are no other questions, I would see the rest of my time.

[00:26:59] Speaker 01:
Thank you.

[00:27:00] Speaker 01:
Thank you.

[00:27:01] Speaker 01:
And ask the court to affirm.

[00:27:03] Speaker 00:
We will take this matter under advisement.

[00:27:06] Speaker 00:
Thank you.