[00:00:00] Speaker 02:
I should say we do intend to take about a ten minute break after the third argument.

[00:00:27] Speaker 02:
Let counsel get settled here, but the next case for argument is United States versus Roberts, docket 23-7037.

[00:00:37] Speaker 02:
Counsel, we're ready to hear from you, and you're ready to deliver.

[00:00:45] Speaker 04:
Good morning, Your Honors.

[00:00:46] Speaker 04:
I'm Josh Lee from the Colorado Federal Public Defender's Office, and I represent the appellant, Roy Roberts.

[00:00:53] Speaker 04:
In this sexual abuse trial, the prosecution undermined Mr. Roberts' defense to the charges leveled against him by improperly injecting character into this case.

[00:01:05] Speaker 04:
The good character of the alleged victim's adoptive mother, Melanie Henry, and the supposed bad character of my client, Mr. Roberts himself.

[00:01:15] Speaker 04:
Mr. Roberts' defense to the most serious charges in this case, those involving R.R., was that Melanie Henry caused R.R.

[00:01:25] Speaker 04:
to say that he had been abused by Mr. Roberts when, in fact, he hadn't.

[00:01:30] Speaker 04:
In response to this defense, the prosecution argued that Melanie Henry was a school teacher of 22 years who spent her entire life educating, helping, and loving on kids

[00:01:43] Speaker 04:
and then says, does that sound like Melanie Henry is to blame?

[00:01:47] Speaker 04:
Now, that was a character argument and as such- Now that was in closing?

[00:01:52] Speaker 04:
Yes, actually they did it both in their initial closing and in their rebuttal closing.

[00:01:59] Speaker 04:
So it was a highly salient argument.

[00:02:01] Speaker 01:
You can't argue, is that your position, the validity of a particular witness's testimony?

[00:02:10] Speaker 04:
argue the validity of a particular witness's testimony, but you can't do it by way of character.

[00:02:15] Speaker 04:
And that's what the prosecution did in this case.

[00:02:18] Speaker 01:
By pointing out that she was a second or third grade teacher and had been doing it for years?

[00:02:23] Speaker 04:
Yeah, so if you're saying, so I'll give you an analogy.

[00:02:27] Speaker 04:
If a defense lawyer is challenging the credibility of a police officer, the prosecution can say,

[00:02:34] Speaker 04:
Police officers don't lie.

[00:02:36] Speaker 04:
This is somebody who dedicates his life to protecting the community.

[00:02:40] Speaker 04:
He would never lie.

[00:02:41] Speaker 04:
And that's what they did in this case.

[00:02:43] Speaker 04:
It's the equivalent of police officers don't lie.

[00:02:46] Speaker 04:
What they said is not just that she's a teacher, but this is somebody who's devoted her entire life to educating, helping, and loving on kids she can't beat to blame.

[00:02:56] Speaker 04:
That is a character argument.

[00:02:58] Speaker 02:
And the quote that you began with is, does that sound like?

[00:03:02] Speaker 02:
Was that from the rebuttal?

[00:03:03] Speaker 04:
No, in the initial closing argument, they say, does that sound like Melanie Henry is to blame?

[00:03:12] Speaker 04:
That's from the initial closing argument.

[00:03:14] Speaker 02:
Oh, to blame.

[00:03:14] Speaker 04:
Yeah.

[00:03:15] Speaker 04:
Does that sound like Melanie Henry is to blame?

[00:03:17] Speaker 04:
And they're doing this.

[00:03:18] Speaker 04:
I'm sure.

[00:03:19] Speaker 04:
Does that sound like what?

[00:03:23] Speaker 04:
So the prosecution is discussing the theory of defense, which is that Melanie Henry put RR up to these allegations.

[00:03:31] Speaker 04:
in order to get the adoption done.

[00:03:34] Speaker 04:
And the prosecutor says this stuff about Melanie Henry's character and then says, does that sound like Melanie Henry is to blame?

[00:03:42] Speaker 04:
So in other words, the argument is the defense can't be true because she's not the type of person who would do this sort of thing.

[00:03:51] Speaker 04:
So now, the government doesn't dispute that it's plainly improper to argue the good character

[00:04:00] Speaker 04:
of a prosecution witness or a third party.

[00:04:03] Speaker 04:
And the government does not offer any alternative interpretation of these remarks.

[00:04:11] Speaker 04:
And again, these were highly salient remarks.

[00:04:16] Speaker 04:
They were presented both in the initial closing and in the rebuttal closing.

[00:04:21] Speaker 04:
And the prejudicial effect of the prosecution's argument based on Melanie Henry's good character was

[00:04:30] Speaker 04:
magnified by a second error that unfairly tarred Mr. Roberts as a bad father.

[00:04:37] Speaker 04:
So the prosecution elicited and then repeatedly emphasized in their closing argument an incident in which Mr. Roberts allegedly abruptly abandoned his kids on the side of the highway, somebody that the kids barely knew.

[00:04:54] Speaker 04:
That was plainly erroneous for multiple reasons, including the fact that the prosecution did not provide proper notice that it was going to rely on this other bad act.

[00:05:06] Speaker 02:
Why is that a bad act?

[00:05:09] Speaker 02:
I've been left on the road for someone to pick up with someone waiting with me.

[00:05:13] Speaker 02:
I don't understand why that is so bad.

[00:05:16] Speaker 04:
It's bad for several reasons.

[00:05:18] Speaker 04:
You have to think about this in context.

[00:05:21] Speaker 04:
The prosecution definitely thought it was bad, the way they elicited it and used it in closing arguments.

[00:05:26] Speaker 04:
They established first that this woman was somebody who the Roberts family had virtually no connection to.

[00:05:34] Speaker 04:
I mean, they were related as cousins, but they didn't spend time with one another.

[00:05:38] Speaker 04:
They didn't have a meaningful relationship.

[00:05:40] Speaker 02:
He called her.

[00:05:41] Speaker 04:
He calls her up, right?

[00:05:43] Speaker 04:
He calls her up.

[00:05:44] Speaker 04:
And then the very same day that he's like, I need you to take these kids.

[00:05:49] Speaker 04:
that very same day, he goes and drops them off on the side of the interstate.

[00:05:53] Speaker 04:
And, you know, I think the jury would think, you know, if you're going to leave your kids with somebody, you go over to their house, have the kids meet this person, have the kids get used to the house.

[00:06:06] Speaker 04:
At a minimum, spend the day there.

[00:06:07] Speaker 04:
You don't just leave them on the side of I-40.

[00:06:10] Speaker 04:
And, you know, you don't have to take my

[00:06:12] Speaker 02:
I thought it was an exchange at that place.

[00:06:15] Speaker 02:
They weren't just standing alone.

[00:06:19] Speaker 02:
It was an exchange.

[00:06:21] Speaker 02:
What if it had been they dropped him off or met him at Wendy's hamburger?

[00:06:26] Speaker 04:
I think that would be bad too.

[00:06:28] Speaker 04:
What needs to happen is these kids need to feel comfortable with this woman.

[00:06:34] Speaker 04:
I think that what would normally happen is you would take them and introduce them to her and to her house, not just drop them off.

[00:06:42] Speaker 04:
the same day that you first spoken to them.

[00:06:45] Speaker 04:
And again, you don't have to take my word for it.

[00:06:47] Speaker 04:
The prosecution clearly thought this was important.

[00:06:50] Speaker 04:
They brought it up three times in closing, and they brought it up three times when responding to Mr. Roberts's theory of defense.

[00:06:59] Speaker 04:
But again, the error that I've started with, the character argument based on

[00:07:08] Speaker 04:
Melanie Henry.

[00:07:09] Speaker 04:
I think that error on its own was sufficiently prejudicial to call for reversals.

[00:07:16] Speaker 02:
Well, let's talk about that because that's broad language.

[00:07:20] Speaker 02:
Detail the requirements of prong three, and tell me why this was likely would have changed the outcome of the case.

[00:07:29] Speaker 04:
Not quite.

[00:07:30] Speaker 04:
So there has to be a reasonable probability, which is less than a preponderance.

[00:07:35] Speaker 04:
that the jury could have had a reasonable doubt.

[00:07:37] Speaker 04:
Really, if you can say, we can't, as a court, be confident that the jury wouldn't have acquitted, but for this error, prong three is satisfied.

[00:07:46] Speaker 04:
And here's why it is in this case.

[00:07:49] Speaker 04:
This was a case in which there was no forensic evidence.

[00:07:52] Speaker 04:
There were no incriminating statements from Mr. Roberts.

[00:07:56] Speaker 04:
There were no third party witnesses.

[00:07:58] Speaker 04:
The prosecution's case rested entirely on the testimony of two witnesses

[00:08:05] Speaker 04:
who there were identifiable reasons to doubt.

[00:08:08] Speaker 04:
And contrary to what the answer brief repeatedly says, there was no indication that RR's and CR's accusations were independent of one another.

[00:08:20] Speaker 04:
And in fact, there was a substantial basis to suspect that RR's accusations, and then by extension, CR's accusations, originated with Melody Henry.

[00:08:33] Speaker 04:
RR's accusations only arose after Melanie Henry decided she wanted to adopt RR and told RR.

[00:08:42] Speaker 04:
Second, RR was at a very suggestible age, seven years old at the time of his forensic interview and 10 years old at the time of trial.

[00:08:52] Speaker 04:
And this is somebody who would have wanted to please Ms.

[00:08:54] Speaker 04:
Henry and probably would have wanted to stay her and be adopted by him.

[00:08:59] Speaker 04:
I also have to say that there was evidence presented of consciousness of guilt on the part of Ms.

[00:09:06] Speaker 04:
Henry at the trial.

[00:09:08] Speaker 04:
She tried to hide her role in RR's accusations.

[00:09:14] Speaker 04:
She was not forthcoming about the fact that she had discussed these allegations with RR before his forensic interview.

[00:09:21] Speaker 04:
And she was not forthcoming about the fact that she was really the one who initiated the investigation of Mr. Roberts.

[00:09:28] Speaker 04:
And then finally, with regard to RR, there were strong indications that Ms.

[00:09:36] Speaker 04:
Henry, in fact, did influence what RR said on the stand.

[00:09:40] Speaker 04:
So, you know, the most telling example of this is that Melanie Henry decided that she wanted to refer to RR's mother by her maiden name, Brittany King, as opposed to Brittany Roberts, because she didn't want anything to do with Roberts.

[00:09:58] Speaker 04:
And R.R.

[00:09:59] Speaker 04:
on the stand also referred to his mother as Brittany King, just like Ms.

[00:10:04] Speaker 04:
Henry did, even though he never would have known her as Brittany King in his life.

[00:10:09] Speaker 04:
So there were a lot of reasons to suspect, enough to give rise to reasonable doubt, that these accusations may have originated with Melanie Henry.

[00:10:19] Speaker 02:
All of which were vetted with the jury.

[00:10:21] Speaker 02:
The jury considered all of this.

[00:10:23] Speaker 04:
Exactly, and the jury then heard

[00:10:26] Speaker 04:
Melanie Henry is not the type of person who would do this.

[00:10:30] Speaker 04:
That's why it's prejudicial, because you have a plausible defense, and then you have an error that directly collides with that defense.

[00:10:38] Speaker 04:
That's a recipe for prejudice, plausible defense and an error that directly collides with it.

[00:10:45] Speaker 04:
It was also prejudicial as to CR's accusations, because again, as we've argued in our brief,

[00:10:54] Speaker 04:
There was a substantial basis to suspect that CR's accusations were not founded in reality.

[00:11:02] Speaker 04:
CR was suffering from psychosis with delusions of persecution around the time of his forensic interview.

[00:11:11] Speaker 04:
And then CR was probably exposed to RR's accusations before CR's own forensic interview.

[00:11:21] Speaker 04:
So again, I think that acquittal was a real possibility based on this evidence.

[00:11:29] Speaker 04:
And then the prejudicial injection of character into this case, both through the argument based on Melanie Henry and through the prosecution's use of him dumping his kids off on the side of the road.

[00:11:42] Speaker 02:
Did they ever say dumping?

[00:11:47] Speaker 04:
They did not, but that's how we went to the jury.

[00:11:49] Speaker 04:
They did.

[00:11:50] Speaker 04:
What they did show is that he didn't have any meaningful relationship with this woman.

[00:11:59] Speaker 04:
The kids didn't either.

[00:12:00] Speaker 04:
He calls her up one day, says, take these kids, and then he leaves them on the side of the highway.

[00:12:04] Speaker 00:
Well, Counsel, you keep calling it, in your brief, it was bad father character evidence.

[00:12:09] Speaker 00:
But the government responds that these events were factually true.

[00:12:14] Speaker 00:
And you just argued a moment ago, well, what should have happened in terms of how someone should transfer their children?

[00:12:20] Speaker 00:
The facts are what they are here, and those were relevant to establish timeline to maybe in the government's view to explain potentially delayed reporting.

[00:12:30] Speaker 00:
So it's intertwined with other events of the case.

[00:12:33] Speaker 00:
It's not bad father character evidence, but how do you respond to that specifically rather than just saying, well, yeah, those are the facts.

[00:12:41] Speaker 00:
Maybe not what you would do or what I would do with children, but that's what Mr. Roberts did.

[00:12:46] Speaker 04:
So I want to make sure I understand the first question.

[00:12:49] Speaker 04:
Is it whether this evidence is intrinsic, or is it whether there's a non-character purpose for the evidence?

[00:12:57] Speaker 04:
Both.

[00:12:58] Speaker 04:
OK.

[00:12:58] Speaker 04:
So it's not intrinsic, because if you look at this court's factors in cushion, it doesn't beat any of them.

[00:13:06] Speaker 04:
This did not occur during the offense.

[00:13:08] Speaker 04:
It was not a preliminary or a background to the offense.

[00:13:11] Speaker 04:
And the reason we know it wasn't inextricably intertwined with the offense

[00:13:16] Speaker 04:
is because RR told the complete story on the witness stand of the events, and he didn't mention this at all.

[00:13:23] Speaker 04:
So that's why it's not intrinsic.

[00:13:24] Speaker 04:
Now, whether it's relevant to some issue other than character, I have two responses to that.

[00:13:30] Speaker 04:
The first is it doesn't matter to my notice of it.

[00:13:34] Speaker 04:
If this is not intrinsic and is another act, the prosecution has to provide notice that it's going to use it, even if it's relevant to some issue other than character.

[00:13:44] Speaker 04:
It didn't provide that notice, and so the evidence is inadmissible.

[00:13:49] Speaker 04:
The notice is a condition precedent to admissibility.

[00:13:52] Speaker 04:
But second, the government hasn't actually established that the evidence that I object to, the evidence of him abruptly leaving his kids with Miss Henry on the side of the highway, was relevant to Timeline or anything else.

[00:14:08] Speaker 04:
They established that the date that he went to live with her is relevant, but they haven't offered any proper purpose for this side of the road testimony.

[00:14:19] Speaker 04:
And that's the one that they bring up three times in closing, and they still have not been able to identify.

[00:14:24] Speaker 02:
You say the evidence that you object to, but the question is, what did the defense counsel at trial object to?

[00:14:31] Speaker 02:
And apparently had a much different take on this than you do.

[00:14:35] Speaker 04:
Well, so there was no objection.

[00:14:38] Speaker 04:
That means that our review is for plain error.

[00:14:41] Speaker 02:
But doesn't that mean more?

[00:14:42] Speaker 02:
That your characterization of all of this and how the jury must have interpreted it and so forth isn't even shared by defense counsel?

[00:14:50] Speaker 04:
I don't think we can infer that.

[00:14:51] Speaker 04:
We never infer that from an absence of an objection.

[00:14:57] Speaker 04:
What we do when there's an absence of an objection is we review for plain error, and we've met that.

[00:15:02] Speaker 04:
It's plain that you have to provide notice of other act evidence, and it's plain that this was other act evidence.

[00:15:08] Speaker 04:
And I'll reserve 37 seconds for rebuttal.

[00:15:11] Speaker 04:
Thank you.

[00:15:28] Speaker 03:
May I place the court?

[00:15:29] Speaker 03:
My name is Linda Epperly.

[00:15:31] Speaker 03:
I represent the United States in this case.

[00:15:35] Speaker 03:
We believe, number one, the district court did not plainly err in allowing testimony about the transfer of the children.

[00:15:42] Speaker 03:
We disagree that that is character evidence.

[00:15:47] Speaker 03:
We do not believe that there was evidence presented in the nature that opposing counsel has just described regarding Ms.

[00:15:58] Speaker 03:
Henry.

[00:15:58] Speaker 03:
So we do not feel that other than in the defendant's minds on appeal, that there is this setup between bad father versus good Miss Henry.

[00:16:08] Speaker 03:
Secondly, the district court did not plainly err regarding allegedly improper remarks in closing.

[00:16:15] Speaker 03:
The remarks were brief.

[00:16:19] Speaker 03:
The remarks played an important role in setting forth the timeline of these events because we're hunting

[00:16:27] Speaker 03:
markers, significant events that a kid that is five or six or seven years old will be able to remember.

[00:16:34] Speaker 03:
Also, the evidence went to explaining more about the context of this family in order to understand how all of this happened.

[00:16:48] Speaker 03:
And then finally, we'd argue that there is no cumulative error here and certainly no plain error.

[00:16:55] Speaker 03:
The government readily admits that there was not notice given under 404B.

[00:17:02] Speaker 03:
There was not a specific instruction given under 404B regarding where this transfer of custody took place.

[00:17:13] Speaker 03:
And the reason for that is that the defendants didn't call for one.

[00:17:16] Speaker 03:
We didn't call for one.

[00:17:18] Speaker 03:
The judge didn't, Sue Esponte called for one because at the time of trial,

[00:17:24] Speaker 03:
In the course of the litigation, the parties did not see this as character or other bad acts evidence.

[00:17:32] Speaker 03:
Now, this is a case where there were bad acts that all the parties were very careful about, which was the determination of why the mother of this family was no longer around.

[00:17:46] Speaker 03:
And in footnote four, we explained that this was a defendant

[00:17:50] Speaker 03:
who had been convicted and ultimately would serve time for first degree involuntary manslaughter because he was drunk driving the car that killed this woman so tragically.

[00:18:05] Speaker 03:
But all the parties knew we needed to not deal with that because that would be a character flaw.

[00:18:11] Speaker 03:
That would be a character evidence.

[00:18:13] Speaker 03:
We didn't try to argue it.

[00:18:15] Speaker 03:
No one did.

[00:18:16] Speaker 03:
And we were very careful with the witnesses

[00:18:20] Speaker 03:
including Ms.

[00:18:20] Speaker 03:
Henry, who attempted to explain how this family dynamic had occurred.

[00:18:27] Speaker 03:
And I believe that the language they settled on was that the father needed to arrange a home for the kids because he would not, quote, physically be able to care for them.

[00:18:38] Speaker 03:
Well, that's because he was on the verge of going to prison.

[00:18:43] Speaker 03:
I agree that waiting on the side of I-40 is not the best place to make a custody exchange.

[00:18:49] Speaker 03:
But as somebody who also did family law for a number of years, custody exchanges happen in a number of different locations.

[00:19:00] Speaker 03:
I-40, Okima, is about halfway.

[00:19:04] Speaker 03:
It's a place where many custody exchanges occur.

[00:19:07] Speaker 03:
There's nothing about this one that in any way allows the kind of characterization that was included in the defense briefs on appeal.

[00:19:19] Speaker 03:
The evidence simply doesn't support that.

[00:19:24] Speaker 03:
There were 11 words spoken by Ms.

[00:19:27] Speaker 03:
Henry about that drop off.

[00:19:29] Speaker 03:
The question was, where were you able to pick the boys up?

[00:19:33] Speaker 03:
Answer, we met on the side of I-40 in Okima, Oklahoma.

[00:19:38] Speaker 03:
Question, just on the side of the road?

[00:19:41] Speaker 03:
Answer, uh-huh.

[00:19:43] Speaker 03:
11 words.

[00:19:44] Speaker 03:
And during the closing argument, it was mentioned three times.

[00:19:49] Speaker 03:
On the first of those, the attorney argued that Ms.

[00:19:53] Speaker 03:
Henry went to pick them up in the middle of Okemah, Oklahoma so they wouldn't have to sleep in a car another night.

[00:20:01] Speaker 03:
Does that sound like Melanie is to blame?

[00:20:04] Speaker 03:
The second, she gets a call and where does she go?

[00:20:08] Speaker 03:
She goes to the side of I-40 to pick them up on the side of the road.

[00:20:14] Speaker 03:
That is the lady who loves these kids.

[00:20:16] Speaker 03:
And then finally,

[00:20:18] Speaker 03:
in what clearly is a discussion of the timeline.

[00:20:21] Speaker 03:
And again, all the parties are trying to identify significant markers to help these kids know when what happened.

[00:20:30] Speaker 03:
The government argued looking.

[00:20:32] Speaker 03:
Going back to the time frame, R.R.

[00:20:34] Speaker 03:
described for you that after his mom's death and before Melanie, who's Miss Henry, and Jason got him, mom passed away in December of 2017 and Melanie and Jason

[00:20:46] Speaker 03:
picked him up on the side of the road in February 2019.

[00:20:51] Speaker 03:
That's it.

[00:20:52] Speaker 03:
The government did not use this evidence to make arguments about this defendant's character.

[00:20:58] Speaker 03:
In fact, Ms.

[00:20:59] Speaker 03:
Henry, I believe, but I know the testimony came in through one of the witnesses, describing what this family had been through.

[00:21:09] Speaker 03:
Granted, things probably weren't easy even before the mother passed away.

[00:21:13] Speaker 03:
I mean, there was talk of them sleeping in

[00:21:15] Speaker 03:
a house where they moved to bed into the living room in the winter for heating issues.

[00:21:20] Speaker 03:
And there was, of course, some argument about whether Halloween is scary movies, October, that kind of thing.

[00:21:26] Speaker 03:
But certainly after the mother passed away, this family was in crisis.

[00:21:31] Speaker 03:
There was testimony that within days, this man took RR and a younger child named Andy.

[00:21:40] Speaker 03:
And they lived in several places.

[00:21:42] Speaker 03:
And it's described in our brief the number of family members they lived with.

[00:21:47] Speaker 03:
They lived with the defendant's father, the kid's grandfather on two different occasions.

[00:21:53] Speaker 03:
They lived with other family friends.

[00:21:57] Speaker 03:
And this defendant was trying to get on his feet.

[00:22:00] Speaker 03:
And that is, in fact, what he told Ms.

[00:22:02] Speaker 03:
Henry when he talked to her on the phone that day.

[00:22:04] Speaker 03:
And she described that on the stand, that he cared about the kids, that he

[00:22:10] Speaker 03:
was trying to get back on his feet, needed to get a job, but he needed some help with them in the meantime.

[00:22:17] Speaker 03:
So if this situation was discussed at all as far as his character, I would argue that the situation at trial was that there was a discussion of this and that it showed this man did care about these kids.

[00:22:33] Speaker 03:
He was trying to find a place, safe place for them to go.

[00:22:39] Speaker 03:
And after they finally make this transition, and they're with Ms.

[00:22:45] Speaker 03:
Henry, at least RR and the younger child, Andy, about nine months later, in October 2019, that's when the first disclosure comes from RR.

[00:23:00] Speaker 03:
And the government would argue that the reason that disclosure comes at that time is not because Ms.

[00:23:04] Speaker 03:
Henry was somehow

[00:23:07] Speaker 03:
attempting to unduly influence the child.

[00:23:10] Speaker 03:
That comes at a time when he has at that point spent some months in a stable home.

[00:23:16] Speaker 03:
That is a time when by October he has started school.

[00:23:19] Speaker 03:
There's more stability.

[00:23:21] Speaker 03:
That is also a time when, and we don't know, I don't know whether this was known to this kid or are, but it's about a month after his father went to prison, which would also, if he knew about it, make him feel more safe.

[00:23:35] Speaker 03:
I am not aware, I did not write the brief in this case, but based upon the argument that was just made, I'm not aware of the evidence regarding a consciousness of guilt and wanting to hide the true purpose that Ms.

[00:23:52] Speaker 03:
Henry initiated that.

[00:23:53] Speaker 03:
I do recall that there was discussion at trial about Ms.

[00:23:59] Speaker 03:
Henry and ultimately our colleague,

[00:24:02] Speaker 03:
dead mother by her maiden name, but a lot of the other things that were discussed I'm not prepared to rebut because I don't recall that from the briefs or the transcript and I invite a citation as to where that is.

[00:24:16] Speaker 03:
After RR discloses in October of 2019, about two weeks later, CR, the older child, discloses.

[00:24:26] Speaker 03:
It's important to note that at that point, well really from the time that

[00:24:31] Speaker 03:
The mother passed away in December of 2017.

[00:24:34] Speaker 03:
RR never lived with his older half-brother again.

[00:24:38] Speaker 03:
He went to live with his side of the family.

[00:24:43] Speaker 03:
They didn't have contact.

[00:24:44] Speaker 03:
They weren't at school together, so far as anyone can tell.

[00:24:47] Speaker 03:
At that point, CR was 18 or something, and RR was just starting school in first or second grade.

[00:24:58] Speaker 03:
I think it would be reasonable to assume that the younger child discloses DHS is involved.

[00:25:03] Speaker 03:
There's a forensic interview.

[00:25:05] Speaker 03:
We know that at some point RR has said that at one time, before mom died, when they were all in the White House, he walked into the living room and saw the defendant and some people without all their clothes on.

[00:25:18] Speaker 03:
And his dad told him to go back to bed.

[00:25:21] Speaker 03:
I think it's entirely reasonable, and again, I can't cite you to the record on this, but the DHS followed up with that and went and found the older boy to see what had happened in that case.

[00:25:34] Speaker 03:
In essence, the government would argue that in this case, there is not clear character error, that there's not clear character ethics that anybody at trial identified as such.

[00:25:46] Speaker 03:
The district court did not plainly err in

[00:25:50] Speaker 03:
taking some kind of action about the closings in this case.

[00:25:54] Speaker 03:
The 2019 Christie case, I think, is very instructive on what truly constitutes improper prosecutorial misconduct and closing arguments.

[00:26:04] Speaker 03:
And the examples given there are nowhere near what happened here.

[00:26:09] Speaker 03:
If anything, under Sorenson, what this court faces today are a couple of stray, improper, perhaps, remarks.

[00:26:17] Speaker 03:
That is not enough to require overturning a jury verdict and requiring the parties to go through this again.

[00:26:24] Speaker 03:
And we would argue that under the cases involving plain error, there was not error.

[00:26:33] Speaker 03:
If there was error, it was a plain.

[00:26:34] Speaker 03:
Nothing about this should cause this court any discomfort or any reason to doubt this jury's verdict.

[00:26:44] Speaker 03:
If there are no further questions,

[00:26:46] Speaker 03:
I ask you to affirm.

[00:26:47] Speaker 02:
Thank you.

[00:26:48] Speaker 02:
Thank you, counsel.

[00:26:51] Speaker 02:
You have rebuttal time remaining.

[00:26:59] Speaker 04:
Thank you.

[00:26:59] Speaker 04:
I just want to say two quick things.

[00:27:01] Speaker 04:
One, opposing counsel has spent most of her argument talking about issue number one, but this court can reverse based on issue number two by itself.

[00:27:09] Speaker 04:
That was the good character argument that the prosecution made regarding Melanie Henry.

[00:27:15] Speaker 04:
Point number two that I want to make.

[00:27:17] Speaker 04:
Opposing counsel characterized what the prosecution said about Melanie Henry as stray remarks.

[00:27:23] Speaker 04:
It was not that at all.

[00:27:25] Speaker 04:
There were two times that the prosecution discussed Mr. Roberts's theory of defense, and both times it made this point about Melanie Henry's character.

[00:27:34] Speaker 04:
That was plainly alone, and it was prejudicial, and so I'd ask you to reverse.

[00:27:39] Speaker 02:
Thank you for your arguments, counsel.