the honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court make it their attendance and they shall be heard god save the united states of america and this honorable court or sexual abuse they raise special evidentiary issues and we know that from this court's opinion and else in this case at least one example of that was the that might or why testified by video then because of people we all beings and suggestible we can't necessarily tell when they're different where the different details come from and that's called source monitoring or she also explained that the large party of research indicates that thirty percent of adults come to develop entirely false memories and that's as a result when given memory construction tools in children even more susceptible to those tools i suggest that the record demonstrates here think that's what occurred it occurred st by the maternal aunt the child herself did not bring up the fact that mr sisko did anything what the child what happened was the only after the child said nothing was wrong added the neighbor started to inquire and suggest that something may have been wrong and then really got into the details of what may have been wrong bring the neighbor brought up the sexual activity and that was the neighbor let me just to follow up on that my read of the cases is that the fact that there is a pro exception applies so if the neighbor were to say what happened why are you upset that alone wouldn't say mean that if the child then gave an answer to why she was upset that that was sort that would preclude the exception  applying that's at least my read of the press and i don't understand you to be disagreeing with that so it seems that a lot terms that the precise nature of the exchange between the neighbor and the child and what is that the length of time that passed between the arrival of cues and the child becoming upset and the child ultimately giving her answer is it like a minute i don't i don't believe that  pleasantly answered on the record what happened in the room according to the testimony was after the child said nothing was wrong the neighbor said she asked again and again and i believe those are her words as to what was going on and kept pressuring her to provide any answer and that really is where the issue comes into play as well this i trying to look to see whether this is reliable yet and i guess what i'm saying is given your views of discretion standard and the way you're describing it why wouldn't it make sense for an appellate court to say well if it comes down to that kind of judgment how much  there how much time passed how upset was the child why not leave that type of assessment to the district courts discretion rather than us on a cold record trying to make that  i understand the court's question however in this case i think the the number one the point that this was even an excited utterance wasn't even made until after the completion of the testimony th that it was a state of mind exception even though the state of mind was coming from the neighbor not from the child in the government even conceded that so here yes the trial court in given circumstances but i do suggest this court has to look at the severity of bringing in this type of information particularly where the jury in this case was looking for some facts  details to corroborate the child and quite frankly they couldn't find that those details for count two when they acquitted him on count two but hear the details provided by the un and the information coming from the counsel just before you get it just before you get there going to one of judge parents points is there anything that you know of that prevented defense counsel from putting the time lapse in issue no your honor i don't think there's anything to be quite frank  there was i think that was a little bit taken by surprise as to this information coming in when you look at the record in the and the exchange that took place after  from that standpoint the court's absolutely correct but i do think the severity of this information which didn't come from the child the child and never mentioned it during her testimony  this entirely came from the neighbor after or more or less after the child indicated that nothing was wrong and then continued to question the child and  provide suggestive language to they are no different than for example in the ellis case there was a social worker that went through all the details and everything is what happens with w these type of cases they use the n atomic all dolls and so forth but the trial court didn't let that in the let that testimony in because it was after the fact and it was coming from the socialists because i was not excited utterance case was not kno fact that the neighbor according to the transcript didn't just say what happens first to be hurt you and then the child said no or i guess no and then the neighbors said i just did that she tell me what whether he heard her and then the child answered those two questions i guess by the neighbor that are in the transit or in the record that you say distinguish this from being within the excited utterance exception that right correct as well as the statements that were in questions were not asking about the event and again trying to fall within the role they're asking direct accusations about other activities at another time not what about you know they weren't open any questions they were a huge story questions had harmed minor while again introducing to the jury the very st instance of accusations against mr irizarry sisk and introducing to a minor why those st accusations at no time  the minor ever bring up the accusations herself at tourist it all came from other individuals you ask you one last question if we thought that the other report by the neighbor about what the child is was admissible ok as a present some suppression or something like that if we thought that was not an error given the other evidence in the records regarding  harmless the reason i think it's prejudicial here is because the jury was looking for corroboration as demonstrated by the not guilty account the only corroborating details of the trial being up there  and to show all the elements that are required for the mann act violation as the government points out you also have to deal with intent and so forth and all these other things as to what of disputed testimony but we also contend this court doesn't even have to reach that because the two contested evidentiary issues presented by appeal it is clear that neither of them affected the outcome of the trial and so any potential error was harmless let's start with the fact that both pieces of dispute testimony are of a very minor importance in comparison with the evidence that is not an issue in this case and particularly the minor victim testified in this case and gave her firsthand account about how mr davies heidi took her to motels to sexually assault her as to specifically as to count one count that was convicted which was the count so good with the l and then motel the minor testified and gave her firsthand account about how mr he sadi took her and she thought she was going to wal mart which she actually enjoyed doing with mr de saadi but she was surprised when they passed wal mart and instead they drive into a motel and as they're driving in missouri the site tells her to get down so that they won't see her because she's a minor as soon as they come in to the motel she testifies how the motel room had a stripper pole and a t v in which mr  swiped and touched in her words her who which was her language for her vagina and question as to why he would she would make him spend that money if she wasn't going to do anything in addition as to count one as to the l a then motel the motel the inside of the common areas of the delavan motel he also d authenticated a record showing mr he said his car with his license plate in that n p l in motel during the relevant time frame and in addition to go the minors aunt testified that on two separate occasions during the relevant time frame she saw the minor either leave or come back with mr t saudi from about the hours of nine to four so she was out with him the whole day during the relevant time frame so all of this evidence is undisputed and it's clear that it was more than sufficient and the main driver to support the jury's verdict of guilty as account one making the disputed testimony in significant this case and i would now just as very similar to that under the count that was can with a conviction was for yes is the statement the child made with respect to the excited utterance issue is that statement about the visit that result in the conviction or was it a statement about the visit that result in the acquittal it was as to count two the one that resulted in the acquittal and that's a very very good point your honor and  s more heavily in favor of finding hard is this is that how clear is that in the record it's very clear and so let me explain me explain that so as to count as to be other than motel i just went through what naked laid on top of her and that he passed his penis through her through her vagina and through her anus and that way that he had jackie laid it on top of her so as we look at the two pieces of disputed testimony  consistent with what the minor said that he passed his penis through her vagina in the nd motel and then after that the minor said and some white stuff came out about i'm just the statement as reported by the child that's the excited not count one and that's the count that they acquitted on in addition to that the two disputed piece of testimony were bit were barely relied on after were barely relied on throughout the trial for example the the contested opinion testimony which is which is where ms mccullough testified that the miners nonverbal reactions to her statement be careful that that that meant that he hasn't done anything to you that was never mentioned after it  occurred the government didn't mention it in closing and there was no other mention of that opinion after that occurred as to the excited utterance statements it was actually mr he sadi who intend to size that in his own closing argument and made them a part  is an exception to hearsay statement let me just go directly could you just address that the fact that in this case it's not just a question of the neighbor saying what happened or just an open ended prop but as the as your opponent suggested the terms of the prop were themselves accusatory and then they came after the child and nothing happened originally and then to is the least as i understand the record the person making the accusatory prop herself described herself as insisting the child give an answer and those are the features of it that strike me as potentially concerning about treating this as an excited utterance if you could just address that of course  that it has to be an on prompted statement in fact i direct your attention to a seven circuit case united states the joy that specifically says there is no absolutes kwanten a the requirement to the excited utterance exception to the rule  the the circumstances under which the statement occurred indicate that it was clearly in a safe in a stressful and excited state that the minor was in once she heard the car noise  to testify that she became very nervous that she was nervous the whole time that her eyes got really big that she was acting scared that she was moving her fingers and hurst her facial expression changed so the record describes a very tense interaction that creates response arguably wasn't it was the result of an accusatory prompting that's at least my concern maybe there's a there's a catchall reliability issue and then that has a different think this comes in reaction was in response to insistent questioning that has an accusatory flavor so why is that not a problem because i think the crux of the inquiry is whether the same is were made under the stress of an exciting or a vent rather than the product of reflection or deliberation and of course the the prompting of the questions is is relevant to that inquiry but it's  dispositive i would point you again to the united states v joy or the court said or the court admitted a transcript of the whole nine hundred and eleven call where in part that the statements of the declarant were prompted by questions of the eleven dispatcher what the court said the fact that the declarant was answering questions rather than giving a spontaneous narrative does not indicated that he was not excited when he provided an answer and he specifically says on the contrary it's possible for someone to be too excited to volunteer pertinent information and thus the inherent guarantee of truthfulness supporting the admission of excited utterances applies equally to declarations made in response to an inquiry so again the most important thing is determining whether she's under the stress or excitement and there is the inherent guarantee of truthfulness that's provided by making statements as a product of that stress or excitement and i would indicate that the record showing her you know her demeanor and her clear excited state and nervousness upon hearing the car noise the car that she recognized as the car that mr a he thought he used to take her to motels and sexually assault her indicate that here this statement was made under the stress of an exciting event and therefore should follow which should fall within that exception in addition i like to point out that you know to the extent that there is a close call that is why this court gives the district  court ample discretion in these types of close calls because the district court is making these sort of split nd decisions and so to the extent that this court with sort of a thirty thousand dollars foot view and looking at everything may have taken  a a different approach it's important to consider that this court has said that the district where it has the superior vantage point to make these sort of split nd decisions and that's why we are the court for that ample discretion in deciding whether or not to admit disputed testimony under the excited utterance rule and i would also say no or have any other questions don't ok arms depressed thank you so much thank you and we just its argument in this case attorney for poland attorney present disconnect from the hearing at this time