please the court cunningham of the federal defender's office on behalf of mr preston reversal is required because of the district court's error in admitting highly prejudicial opinion before for be evidence prejudice was compounded by the prosecutor's improper questioning and comments i'll start with the opinion evidence as the government acknowledged in closing argument the only issue for the jury was whether the allegations his therapist repeatedly testified that in her opinion those allegations were true this was clearly improper under this court's precedents and it was highly prejudicial because the case hinged on t r s credibility eliminate instruction that was not given until the next day was insufficient to cure the prejudice this was devastating testimony in this kind of a case and after the instruction was given the jurors made clear that they still didn't quite understand that they weren't supposed to be listening to the other what witnesses opinions about the allegations because they tried to ask agent  didn't believe that was a totally different witness i wasn't sure traction had to do with the testimony regarding the expert witness mr bruce are correct yes your honor that is correct but the instruction also sa you are the sole judges of credibility and you are to disregard opinions on credibility this was a case since it hinged on credibility and there was no physical evidence there was no  asking that the e mail be allowed to be admitted an e mail newsgroups where she talked about the fact that she thought the defendant was lying about his abuse his drug abuse crime and i have to response to that the first is things played out very differently at trial it was anticipated pretrial that the defense would be calling the therapist but that's not what happened what happened at trial is that t r admitted on the stand that he had lied to the therapist about his drug use there would have been no point for the defense to get into that with a therapist it was the government who ended up calling the therapist and the government jumped the gun and asked not just about a general opinion which in  of itself might have been wrong in that context but asked specifically did you believe the sexual abuse allegations which were at the heart of the case so that's that's very different but how do you respond to their argument that  essentially that was invited error because the reason that that and missile opinion about whether or not he was lying about drug abuse came into the case because of the motion by the defense attorney  honor as i just explained things happened differently at trial the defense is entitled to change its strategy but beyond that nothing in the district court's order allowed anybody to get into opinions about the sexual abuse allegations the way the district court's order was worded was that if the defense elicits an opinion on dishonesty from this from the therapist then the prosecutor can ask whether that opinion is limited to drug abuse or made more broadly nothing in that order even if it was still relevant gave the prosecutor license to do what it did at trial by asking about whether it was lying about sexual abuse crass going right to the heart of the case which is clearly in permissible under this court's precedents and it's just devastating it's as bad as it gets in a case like this and there was an objection yes your honor when that first happened when the prosecutor asked did you think wrong and the reason why opinion testimony is wrong is because it speculative and so therefore i posit that that was a correct objection and then of course after that i thought your objection was somewhat different in that you had somebody who was an expert and the expert is telling the jury based on my expertise you should believe this with this that was also part of it and that's almost antecessor speculative honor in that first instance the defense objected based on speculation and foundation later the defense objected to another impermissible question based on ultimate opinion and here and this there just was not notice an expert she testified as an expert on many occasions but she was not noticed as an expert wasn't that why the court gave the curative instruction also because it had to do with opinion testimony and credibility yes your honor but as i've explained in the brief in some instances when something is just this devastating a curative instruction is is not going to be enough when something is this prejudicial and courts do reverse despite curative instructions in these extreme kind of situation if there are no further questions on that topic i'll move on to the forum for the issue the two thousand and three incident was admitted to show propensity sexual interest in a but that is what is prohibited by four for b one if the only way to show a proffered purpose is through a propensity inference then that is inadmissible and old she makes that crystal clear because old chief says it's improper to generalize a person's extended act into bad character and then reason that it raises the odds that the defendant committed the act in the charged offenses that's exactly the kind of reasoning that the district court engaged in and this court's precedents make it clear that that type of reasoning is improper hernandez miranda bradley rodriguez i believe expresses that very honor that was the proffered purpose but the only way it can show intent is by engaging in propensity based reasoning there is no independent way it shows intent as opposed to saying curtain where the defendant had the stories on his person at the very time he went to meet the young girl or who he thought was a young girl and he claimed no i didn't really want to meet a young girl i wanted to meet an adult and role play but that's not what the stories were about  to the four zero three issue as well because the extent to which something is at issue affects the four or three balancing that is clear from the advisory committee notes themselves for four or three that says you have to balance the probative value and need for the evidence against the potential for unfair prejudice and it's also clear under this court's precedents both before and after have only which is what the district court issue were almost identical and they happened before the alleged offense and this circuit uses similarity as a precautionary measure to try to make sure that propensity based evidence doesn't come in acts were very different the alleged acts were very different because they didn't involve any sexual acts with a child it was something that was protected you know private behavior in one's own home with a perfectly legal picture of a child so it's very different and also the allegations in this case occurred after the charged act so there's really no way to use them to show intent except be a propensity because they didn't even exist yet and even if the evidence was marginally relevant in a non propensity way under four for b the prejudice prejudicial impact far l did you have a valid argument yes your honor there were a couple of of all throughout the opening statement and closing arguments the government repeatedly said t r s allegations are the and also i would suggest the record we likes that the alleged defense changing strategy actually did not occur the court pretrial ruled that the defendant could get into that the stain which is the typical prosecution technique and the objection the defendant made was not pay we're not going into this now or hey this is an improper opinion it was speculation and foundation not a learning anybody in the courtroom  debate either change their strategy or they weren't intending to get into that e mail on cross examination which exactly is what they did they got into in the middle in cross examination they made a statement that suggested they were trying to imply to the abuse wasn't there then once he was under what theory is that permissible they were asking an expert witness about whether or not he believed the allegations that were before the jury whether they were true or not as to make sure the jury had the appropriate right it wasn't that to limit it to say she was only saying that he was lying about the other matters not about sexual abuse lying about drugs not to say by the way was did you believe he was lying about the sexual abuse i would say a judge didn't authorize that did the judge you're you saying the judge authorized that i'm saying the judge authorized the judge's order authorizing government to qualify the authorize a question about something clearly improper do you believe the witnesses to the ultimate crime what obviously i can't read the district court's mind but what the court appeared to be doing with telling the defense if you want to get into that opinion about his mind about his drug abuse the government can clarify the extent of for opinion about his why as a practical matter i'm not sure there's much of a distinction between he was only whining about drug abuse lot of issues i don't know how we would cover that without which one do you think of the worst what the defense counsel i s cunningham focused on with what i expected he would focus on in this argument so i think we both agree that those are the issues doesn't the key issues in this case you don't disagree basically that it's inappropriate to ask an expert witness to opine on the credibility of the victim about the ultimate issue in a criminal case to you i do not disagree with that ok so maybe you would want to move on a different either the form for beer or whatever else you think is important i just clarify gets me since just question what i was saying what i thought he was saying was there is no functional difference between he is only going about i suspect he's only warning about his drug abuse and i suspect he was not lying i'm not expressing any opinion on that one i know he was trying another i have no opinion that's a lot different from saying my opinion is he was telling the truth anything else other than the drug abuse would by necessity in purpose he was not whining about sexual abuse why express view at all about anything other than the drug abuse you can say look i think he was lying about drug abuse i think he was not lying about drug use than talking about what else he might have been lying if anything or some other line about whether sexual abuse you know  lying about his age to get drinks in a bar you know all of those things seem to be different and one could easily say i think he was lying about drug abuse without expressing any view whatsoever about whether he's lying about anything else and the guess what i'm trying to understand from you is why you think it was appropriate to get into anything else other than is he lying about  so by by making that kind of inference they're trying to suggest to the jury that he thought he might have been lying about other stuff and that was not there came before this statement that he's not lying  know it came after the first statement that was where that wasn't the objection the appropriate objection that they're making but during the cross examination of the two sides but you don't disagree that the proper way to have done that would have been to simply ask the expert if she has problems based on her experience with the victim's credibility they relate to his drug abuse and not something else right and then when that evidence sufficient only good or abuse would have been sufficient probably only to the drug abuse and so and it was not appropriate to then go on and say by the way he didn't think he was lying about the sexual abuse but the curative instruction took care of it that's the bottom line and how do you respond to counsel's concern about the jury question that suggested that he curative instruction did not accomplish its goal because the jurors again asked another witness who was also being asked what they believed and why they believe that they could have been looking for factual information they want  didn't believe him and then the defendant made famous about the met is that the fact that they wanted to know what information was he basing that on again i think you could argue that asking for actual information not not an opinion actually but let's give them some of the other issues in your limited time what about the similar act under ha harass degrade or a what rouse or gratify the sexual desire of any person that was the intent the government had to prove that evidence before will be evidence the masturbating to the picture of a child who is about the same age as the victim in this case is certainly relevant to establishing that element how does it establish that element without having a propensity based purpose to it because you're looking at what the government has to prove the intent of the defendant well they don't they don't object to intent right i mean there is no denial of having had the intent there was just a general denial that he didn't do it correct yes but the government still has to prove every element  defendant's indian status so just because they don't contest it doesn't mean the government has to doesn't have to prove it and prove it convincingly and beyond a reasonable doubt and that was what this evidence went to and it was how how does this go to intent how does this make intent clearly the fact that he is sexually aroused or gratified by and is this what the district court said are you coming up with this after the fact the district court basically said it was it was relevant and he rejected the argument that the that the defense made that the defendant's intent towards young children may change over time because there was a five year time gap between the two but he said it was relevant obtained sexual arousal by a young boy isn't that that's very close to his character is that i mean isn't that part of the problem that sounds like you're you're saying he was saying he was a child molester he that she had a preference for children that it's definitely not how the evidence was used at trial the court gave a woman instruction and the prosecutor in the closing argument specifically said you could only consider it for the end as it went and as it related to the he says this guy had only had sex with this boy but he loves young boys and masturbate to them you don't think that would have more of a prejudicial effect than the and the value you get the evidence prejudice is that part of the government introduces the question is it improper in this case it was not improper because it was admitted for a it was relevant to the specific very specific intent the statute requires and it w when there was a proper objection the prosecutor said well wait that's no i'm not saying you should believe because i'm saying i'm saying it you should believe it because it's what the evidence shows is that sort of an acknowledgement that that was a mistake times of the prosecutor do this as far as the victim saw in the troop my memory and i'm not exactly think it's like five or six times maybe i'm not i'm not i'm not defendant the victim was telling the truth contradicts testimony that that there's a lot of tension to the fact that the defendant didn't testify now because there was there was other ways they could have contradicted i know there were others but when you say there's no testimony was much broader than simply the defendant sexually abused me that was the circumstances of his interactions with the defendant about sleeping on the couch about all of that there was no evidence to contradict any of that let's certainly could have been  of the what was going on in that house that could have been the ex wife it could have been the victim's brother but their testimony coincided with what the victim was saying the fact that the facts they weren't actually witnesses who could come in and testify that what the victim was saying was wrong with me in the defendant was the only person that could have reported that the rule when i'm supposed to call attention to the fact that the defendant didn't testify that is correct but we can try to make it today but nobody can see if we can draw attention the fact that the fence didn't produce evidence or testimony and that's the distinction ok thank you at least that i want to give you an opportunity to  i'll start with a comment on the failure to testify the prosecutor's comment was specific to t r testimony on the sexual abuse allegations and as your honor said there was no one else who could have testified we understand that there wasn't an objection until the end but as the court indicated this was a theme opening and closing statement it certainly conveyed the prosecutor's opinion on the  witness prosecutors are held to a higher standard under wetherspoon and they are expected to know not to do that you with regard to the four for be evidence intent was not in dispute it is technically an element of the touching counts because conceivably there could be a medical or caretaking purpose but that there was nothing like that how do you respond to the argument of the government that there was a very detailed specific in an attempt requirement that included having a certain sexual arousal effect well your honor as we discussed in my opening argument that wasn't disputed the defense was it didn't happen and the extent to which something is disputed has to be taken into account under four and three in fact this court in  if there is a dispute as to whether the allegations even incurred for a for b evidence doesn't come in for intent and the other kate other cases are consistent with that hadley is inconsistent with cases that came before and after inconsistent with the advisory committee notes to four o three old chief and everything that's out there  and the limiting instruction was was in effect of the limiting instruction even of a jury could follow it in the face of such prejudicial emotional evidence didn't even tell the jury not to the propensity so because intent wasn't even an issue how