good morning your honour's and may it please the court i'm marla's inc on behalf of leroy charles i'm going to try to reserve four minutes for a bottle please federal rule of evidence for fourteen does allow the government to admit acts of other sexual abuse in a criminal trial and in district court but that rule does not change rule four zero three it does not usurp constitutional due process it does not circumvent the statute of limitations and it doesn't erase the other federal rules of evidence in fact is this court said and let me say it is not a blank check and in titles the government to admit whatever evidence it chooses here we have a trial that focused on mr charles's character on acts that weren't on trial and couldn't be on trial on the character of sex abusers generally and on the nature of the victims and the sick and this case what became secondary it was whether mr charles committed the five charged acts here and that's because of several trial court rulings so first there was one charge x evidence admitted there was a bolstering expert witness who bolstered and vouch for both the charged and uncharged x witnesses the government was allowed to submit testimony as to negative impacts of alleged abuse on the victims again both best a charged and uncharged acts you know for a for b evidence as well as hearsay so collectively it was these errors tha encouraged a verdict on improper bases on prejudice on sympathies on emotions on uncharged acts and on mr charles as character it was not only the content of these this evidence but it was the order in which a person presented and it's a volume and proportion in comparison to the five charged acts evidence as think i guess i start out by suggesting isn't the admission of any of this evidence subject to an of discretion review that's correct it is an abuse of discretion review or any one of the many issues that you presented in front of us and i got that there were five all of those issues are generally something the district court makes a discretionary decision about when admitting the evidence yes that's generally correct and if i am court said this minute give me a rule not not a general statement give me a rule give me a case that suggests the standard by which i review each of these decisions to the district court  now i i i ask you that question because i was a district judge once her and i constantly hated the court of appeals because they always wanted to impose their own idea of a good time and they weren't there they were reading the record only they didn't know what was going on except they read the record and they had predisposition to do whatever they wanted to do in a particular case and so it was always my wonderful idea that abuse of discretion was the standard which to me meant i had to be totally out of the ballpark in other words nothing to suggest what i did would be good it would be relevant would be allowed and then when i took that standard and i apply them to each one of these and then i apply them to what judge laden did as it related to each of these and to the decisions that he made and to the reasons he gave for making those decisions then while i may have sat here on appeal like the ones i was scared i may have thought judge lady was out to lunch but if there was anything around about his decision based on his reasoning i had to affirm and correct well i think there has to be no reasonable basis for the decision and if the right look if it's legal which i couldn't find any of the words which were legal then at that point it's really a discretionary decision by the district court i couldn't find any case dead on which would suggest that the decisions he made were totally illegal and therefore abuse so now i'm weighing the circumstances of this decision right well i would disagree with the court's characterization and we've seen it once how illegal tell me one illegal one case for illegality that he made on any one of these five decisions well i'll give you i'll give you at least to give him to the e r for a three rulings i point the court to calhoun which i cited in our briefing which talks about so that idea with for a three he would just subject to both for a for be evidence and the far one for evidence is that it but as a citizen of the jury can't be due to emotions we can't be looking at evidence for prejudices and sympathies but here although excuse me counsel in kirton curtain said but the district judge had to really see the material and so incurred and it was writings and the judge didn't review the writings and in fact one of the writings that the judge did not review referenced a sex act with an animal that had absolutely nothing to do with the case that was before the district judge and so in that case they the language is you know read or see which suggests that if it's a video or pictures a judge has to look at it before it's before he or she makes the decision as well if it's something that can be written but in this case this was testimony and so is it your suggestion they couldn't hold for the proposition that the judge would have to hear the direct in the cross of the witnesses before he or she can make a decision i think they need at least more than was done here and something substantially more like le may in the case of live witnesses i agree with you colonel was not about live witnesses but what happened here was there was a pretrial ruling before the court had heard any of the evidence either the charge or on charge they gave a blank check to the prosecution to put on sally and i'm charge act witness as the first witness and emil the evidence will be set for say i think it would have to be a proffer that was stronger than what was offered in this case i mean this was written motion heard pretrial dishpan and the span of a couple pages on the court's ruling is a paragraph or two i mean certainly hadn't heard the weight of the charge act evidence let alone the un charge can you point to any any of the evidence any of the charge conduct evidence that occurred that was different from what the proffered was courtenay with the court seemed concerned that look there was evidence that nobody really expected to come in district judge was nowhere and now the court you know the jury heard this but the argument that it should have been admitted for some for other for a variety of reasons but with respect to curtain curtain your argument is that the judge had to review it before making a decision and at the end of the day is it fair to say though that you agree the judge can do that by proffer your dispute now is that the proffer wasn't complete enough well i would say at least the proffer was incomplete and i'm not sure it's clear that they can do it by proffer but at least as what happened in limaye was that the court heard at least the charge act evidence first before deciding that you are for a three analysis which requires the court to look at the necessity of it th similarity and factors like that redundancy prejudice all that which is impossible to know when you haven't seen the charged act evidence and that's why and what may the first part of the trial was focused on charge x and it wasn't until the second part of the trial that the jury that you're the jury was led with one charge but so was it your view that the court then cannot just make a decision on four be prior to the beginning of a trial and the court now is required to wait until what until all the evidence is in that the government puts other evidence in and then they can decide on the form for me i think the court needs to at least have a good record in order to make up for us determination and here we did not we did not have pages and pages hours of sally's testimony talking about hundreds of acts of alleged abuse we didn't have that we didn't have the connection that carly mongerer the expert who came in needed to be brought in to testify to make the link between the charged and the on charge x evidence that wasn't before the trial court in the pretrial ruling  again there was this negative impacts evidence that also came in related to the uncharged acts and the charge acts this became a trial about mr charles's life about mr charles this character and not about the five acts of abuse if you put yourself in the role of the jury sitting here the way that evidence was presented again lead with sally no limiting instruction then clearly mockery of the expert testimony links was listening to instruction requested limiting instruction was given yes was requested and was given before had the last witness to testify who was also in on charge acts were the only time it was asked for right that was the only time it was given was it ever asked for and denied no i don't believe that it was but there was a there was a clear objection here and an understanding that that these collectively when one looks at the trial this was not a fair trial for mr charles and i'll reserve the remainder for but i'll thank you briefs all concerned proffer testimony also here the proper testimony was detailed the most inflammatory parts of the testimony were included in the proffers it included of five pages pages in trial brief dedicated describing the victim witness testimony in total three pages describing uncharged testimony in the motion introducing evidence you have amount of speaking and i don't hear you two but will so sorry what i'd like you to do is to tell me what portion of the record rebuts what i understood to be the claim that the judge ruled on admissibility of the under charge testimony before he knew what the evidence would be as to the charge testimony that was saying to me if it's true to be a violation of the testimony so that i could see whether or not music was accurate it was she said in sealed exhibit six it has a sealed volume number six that contains that child charged at the end of the testimony were asked a question about what effect this the abuse and assault had on their lives is that right that's correct and what's the relevance of that testimony for to the charge of conduct well in this element that it go to in this case it went to their credibility and also rebut attacks that the defense was making so in this case the expert also testified that these testified about general symptoms that are shown by children who are victims of sex abuse and a lot of what she described with what the victims in this case said that they had suffered i would also add that the drug abuse the fact that you know kid had behavioral problems those are things that the defense also emphasized in front of the jury to try to suggest that the victims were lying ok so it was relevant in this case it was relevant to helping to establish the credibility of the victim and you said just what the expert said with respect to particular characteristics that people of abuse have in this case in this case yes i'm allows for that recognizes that an expert can testify generally about behavior characteristics common and in victims of sex abuse and in this case that is that that was the purpose of eliciting the testimony was to say that and in addition it was also something also brought up by defense and trite in trying to attack them and the response to that is that you know these children are not just they're not there if they're using drugs some of them are some of them and defense suggested that pm had a drinking problem suggested that seeking had behavioral problems that some of the kids were addicted to drugs and that these are all reasons that you can't believe them and they counter to that as an expert who comes in and says oh actually  generally victims of sex abuse tend to describe to experience these types of things and then the jury can look at that and say well maybe you know these symptoms suggest that i can't believe them but maybe they're also you know consistent and suggest that they're telling t then that was something that the jury could weigh and i would also add that you know in these kinds of cases the harm that occurs this is it in like a medical case of someone has a physical injury and you commenting you describe the symptoms and you can see these things you have doctors testimony  helping to show that yes these are symptoms that are consistent with the type of injury in these types of cases the injuries are more often psychological we don't have eyewitness testimony we don't have forensic evidence we have people who are assaulted usually a very long time ago as children who are trying to recall these injuries and their injuries that cannot be seen so the expert testimony is helpful on that and allowing them to describe the symptoms that they've suffered over time is also helpful to allowing the the jury to weigh that evidence the question was very gentle what effects it had speak because it is going to have different effects on different people correct i'm on this case i mean the expert some of the some of the testimony was that common effects seen in adults and children who have been victims of sex abuse include drug use self harm not sleeping medical conditions aggression increased involvement with criminal behavior justice system and not attaching to other people so i hope that does that answer your question at this point i can't get past the idea that the experts first mony is i've seen a lot of children and they tell the truth when they testify this way then for these witnesses telling the truth when it was for this well has to be no matter how you what you just described is vouching but that is not what happened here nowhere and the record has appellant identified any testimony from our expert where she said generally victims in these types of cases tell the truth about this or in this case these victims she said nothing about these victims and she said nothing about truth telling she didn't vouch for the victims in this case the language that's being cited in the briefs cites cases completely unrelated to this or show about ching is there's been no testimony identified here that vouching actually occurred and it did not there was no point is all she's saying is that children testify this way generally so therefore in this particular case you shouldn't look skeptically on the testimony given this case actually the expert in this case never described how victims testify never she didn't describe the way victims test would tell their stories she didn't talk about how they usually tell their stories she testified about symptoms they often show she didn't she did not offer any testimony that said anything about the way victims testify or tell stories  and i also just point out on the fourth fourteen that in this case the district court heard briefing and argument on before three factors that let me identifies and i also point out cases such as child abuse cases require reliance on child victims whose credibility can readily be attacked in the absence of substantial cooperation in such cases there is compelling public interest  significant evidence that will shed some light on the credibility of the charge and any denial by the defense and i would submit that the evidence that was admitted under rules for thirteen or fourteen in this case did exactly that the court considered it looked at the property and actually excluded cc's testimony so that i was not that was not sufficiently similar to be included there's the record is clear that the court took its job seriously expressed reservations about you know the was read after during the trial on two occasions with the first three and also as e j had a portion of his testimony that ended up not being a charge defense and the instruction was read again after that that the jury could still consider purpose and charged and then closing arguments the parties again emphasized that the distinction between the charge and in charge conduct and then before the jury went out there again instructed on how to distinguish between the charge and charge conduct so i and that case i was just something that happened but in this case you actually did have the proper testimony and you didn't actually have application of the four three factors articulated in law before that evidence was presented to the jury and then you have been instructions and everything else that let me says you need to you on an abuse of discretion standard it and i would say that the points that are being made about the curtain arguments about not needing to hear testimony i would also point out that is an argument that summarize what the testimony is going to be about what turns out to be although this was not clear preach trial the very first witness that the government said minutes and what the government ends up listening to testimony from sally is about and several acts that were not had a summary of what the charge backs were from the end and what's it got to have it needs it would need to in order to compare to me it seems to me there's no question it had a summary it's no question that more than the summary on some of the charge backs and it's no question that others of the charge tax there's nothing that came in it didn't know about my question to you is what are you suggesting they did know well for allowing be presented well first of all they would have to know both of those things both the un charge and the charge in order to be able to compare right that's the essence of that for a three and a four one four and curry as in the main in those rules and in the case that we've cited so they'd have to know but just knowing one to have testimony by people that we're going to have to think about as it comes in and that's why i thought my colleague judge raise questions were pretty reasonable in that kind of a system it does not seem to me that one could suggest that every that i've got to have a whole hearing and hear all of the testimony and the cross and everything before i know whether the welder respect mr trials is on trial for his life here he is now i understand he was unsure of his life but we don't put we don't put the honorable laden on the on the bench without the full confidence in him he'll be able to do what he needs to do and then the you're saying he did not and so i'm trying to figure out what did he need to do i know no of press of the that would suggest that there is going to be testimony that's going to come in issue there and perhaps the court doesn't want to go that far here but i don't think it needs to go that far here because again what the court had been let me was at least had reserve judgment until hearing the evidence that was presented on the tracks which not only force the court to hear that evidence but first the jury to hear that evidence first hear the government's case before they have to hear the government's case in the defense case before they can make a decision on four for b i don't think it has to be during trial but it has to at least be on in more detail for some what happened here unless the government's think that testimony is going to be of every witness i need the defense i need a summary from you of all but i want a series of all your cross examination questions i want to summary of the other point you're going to make and then just look at those two things by himself or herself and say well  i think it's ok i think it's not i mean is that we've never required that before is that if that's in your view what is required that the court has to hear everything before it makes a decision well i don't think that would be unreasonable but i don't think the court house to require it but the court should be reserving judgment if they cannot tell from the proffer what the basis of that is going to be but what if the court thinks i can tell from the proper whatever just thing i've seen the indictment i've done the motion to suppress i've done some of the other motions i've a pretty good idea of what this type of case is and so i'm going to make my decision on the forum b for b what i have and i'm going to rule in advance so the lawyers know that what's going to come in so they can tell it you know they they can tell the jury in the opening if you wait to the very end if you wait no one's allowed to mention it and so the judge hears the government's case and then here's the defense case is it then in rebuttal that the government then gets up but does these other charge acts and jury has no idea what what they're about no one's ever referred to them before is that your suggestion as to how it has to be well it could be a rebuttal witness and there are cases where it is a rebuttal witness but no i mean if the court rules pre trial then they're subject to did not and should be looking at whether the way that this person presented was a fair trial to mr charles whether it satisfied europe or up three and whether the trial court abused its discretion when it would pretrial on a summary that then didn't match the evidence that was old excerpt one o seven is four paragraphs referring to what the testimony is going to be for one witness and instead we get fifty pages and i go for the court again three seventy three three seventy four three seventy four and three seventy six three seven fix three eighty two three eighty five this is all emotional testimony testimony after the fact on tally testimony as to the exchange between found him mr trials none of this is in the government's summary that was presented so i don't think that this match the