you primary reason for that being that there's simply not sufficient evidence from which the jury could draw a reasonable inferences of guilt that mr i you commit an act put in the victim and threat or fear that caused a sexual act and with the and i think the critical question that some of that has to be answered by the prosecution is what is the act that caused fear by ms bad what is the act that they  led to a sexual act because if you look at all the possible acts are out there they all have some flaw that makes them not connected to fear or threat that would lead to a sexual act and i would take them a little bit more and if you look at the act that probably got the most attention at trial it is the fight that took place the day before the sexual act on november twent severely indisputably the sexual act took place the next day there was no connection between those two things temporally and you've got more than twelve hours of time passes so you have a temporal disconnect between those two things and at no point does mr a you refer back to that if you look at his bad hands testimony she acknowledges that one of the hallmarks of the relationship was when they had fought frequently they had sex as a act of reconciliation that was very common for her she said we have sex all the time she talks about the sexual act itself and she said well at some point i just let it happen because i want him out of the house and she talks about the fact that when she was asked was the sexual abuse why didn't you report sexual abuse she again says we had sex all the time and once we've fought so i'm going to i'm going to three a little bit of a curve ball although i think it's a  fair inference too from the from the the government's brief here which is that if you look at the cause of the fight the night before it was about infidelity and you know you have sex with other people but you don't have sex with me and you you know have relationships with people and then you look at this particular and that because the black guy in a drag out fight and then you have her resisting here a little bit you know trying to keep her panties up and things like that but then he mention infidelity again and shortly thereafter maybe not immediately but shortly thereafter she submits and i wonder if that creates enough of a connection in other words if i just got beaten up once you know my boyfriend significant other you know i talked about infidelity that that's a trigger and so i'm just going to submit because i don't want to get beat up again because we're talking about that again why isn't that why did that make the necessary connection two reasons distrusting one is if i am talked a little bit about the pattern right because we did spend a lot of time in the pattern the case was well tried by the government we spent a lot of time talking about twenty eleven and twenty fifteen and i use a bad guy which you know by the record that's hard to dispute things but it doesn't translate sex if you go then to the november twentieth incident and i think that's the second point about this besides there's no track record of violence when sex look it was miss bad hand describes and how she describes it and i think a success in that testimony is where it's critical to look at the full their case that we cited in our twenty a j you have a description by ms bad hand of what happens at page fifty nine of the trial transcript when she's asked a question in that line nine ok what happened answer we had sex and then after that he got ready and somebody picked him up there a few more questions did you ever tell him no yeah tell me what happened when you had sex what did you do it was bad him answers i was still man i was being madly i told him i wasn't because i didn't want to get i didn't want to start another fight i didn't want to fight anymore and i kept pushing his hands off and everything so she describes in her testimony initially this she's mad right i don't have sex the i'm mad at you she goes on to say because i was mad that i had a black eye and he just beat me up tonight for how are you going to have sex with somebody that just and then there's a question of the government were you scared of him yes that's the only time that she says she's scared when the government or walks are into that but does it doesn't he doesn't the thing about the i don't want to start another fight sort of feed my theory which is they seem to fight all the time about the infidelity and she might  just said once he brought up the infidelity and i talked about that was that i'm just i'm not i don't want a repeat of last night and frustration or consent of just wanting to not be with him anymore in that moment just get out of here and having sex is what takes to get rid of you that is in fact different than threat or intimidation fear of violence that causes her to submit sex and one of the point i would say though then is you have to look at twenty to forty two it is possible for the government to prove too much on this right because the threat or fear has to be other than when you look at twenty to forty to someone other than threatening or placing the other person in fear that they will be subjected to death serious bodily injury or kidnapping so if you look back to the november twentieth  that's serious bodily injury if we are here on assault result in serious bodily injury case and you ask me is that you know evidence from which the jury can find serious bodily injury i'd have to say yes there's a black eye there's there's bruising and so i think one of the problems sort of presented the idea that her fear of him was sort of separate from their sexual relationship did kick could the jury still make an in though you can make the jury argument just as you're making here that these two things have never been connected and why couldn't a jury based on the evidence given as i understand it the evidence was that this was not the first time that there had been a physical assault on her it would not be reasonable for a jury just to infer based on the circumstances that that general fear would would play into whether or not there was consent yeah i mean i agree just because if the jury can can look at and draw inferences from the totality of her fear i would say however that the inference that they draw which must be reasonable in the context of all that testimony was barely so for us has to be that the future costs and i think that's the disconnect that exists right is that you would be impossible for me to say that ms bad had had some level of fear i you i mean just hurt their circumstances and history would indicate that but her testimony when you look through it how it's presented and compare it to fool they are right where the issue was force and the victim old me just sort of mere questions from the government right as opposed get back together so i think in the context of all the testimony and her response to your question it's just not reasonable to infer that her fear caused the sex something else cause the sex which was that's what we do i want to be rid of him in that moment she's not describing the fear so i think your honor it's not an inference that is reasonable i'm the type to tell you this circumstance and i think that's why in particular you know when you consider the inference is you do have to look at the overall trial strategy here which was to demonstrate mr i use a bad guy right the opening is you have to look at the chain you can't look at these individuals you have to look at the totality when you know if she testifies there's dwelling on the twenty assault the twenty fifteen assault the bad priors when you get to closing there's a discussion of you have to look at the history she's living in constant fear he's using sex as a weapon is really not what they have and shows it shows hard and abusive relationship right to some degree both ways but ultimately what you need is that causation right and you need the ability to draw a reasonable inf fear causing the sex trade again none of the know the pattern has ever translated to sex to her description of it that page sixty is when she's asked is he trying to pull down your panties or trunk she says yes and then what happens i just let happen because i just wanted him to be gone he was going to go were cattle so i don't think ultimately it's a reasonable inference that she was afraid it's that she's sick of it right i mean she just doesn't want him around and  that's i think what's the reasonable inference there and the other problem with again your honour's if you tie the struggle right to her connection of fear it is again this problem of proving too much there can't be a fear of serious bodily injury under twenty two forty two and if you tie back to the event of the earlier date that's certainly what it looks like is you know the fear of serious bodily injury if i can and reserve the remainder of my time for a vot maybe the court goes in council the united states is asking that you affirm both convictions in this case the first being the sexual abuse charge and the second be attempted tampering with a witness charge no at the beginning of a pounds argument he asked what was the cause of the fear well the standard of review here is do novo and viewing in the evidence in the light most favorable to the jury's verdict including any reasonable that is relief for both counts in the indictment there were inferences where the jury could determine did the defendant knowingly engage in a sexual act by placing miss bad hand in fear of by threatening her and if he knowingly also acts of consciousness of wrongdoing by telling her to say that she lied or to x x x telling her to say that she had actually lied about the sexual act and to say that she sh drop the charges and upon sites for her but i believe food here is completely distinguishable from this particular set of facts food there was a charge of aggravated sexual abuse by force and this court specifically highlighted the distinction between twenty to forty one aggravated sexual abuse by force and twenty to forty to sexual abuse by stating that it would render a distinction meaningless if we accept the factual situations and fool bear in this particular case the fear that caused the victim to engage in sexual act was essentially a lifetime of abuse contrary to appellate argument the united states was not intending to paint you as a bad person the point was to demonstrate the pattern of abuse last year discord in the united states b johnson held a similar fact pattern was admissible for under four for b purposes can use the prior history to explain the defendant's intent and that is exactly what the jury was able to do the arguments here today were presented to the jury he presented the argument of intent and they rejected it and those inferences can be derived from the past abuse where he received a federal conviction in two thousand and eleven for assaulting her while she was pregnant what about that it seems to me that the evidence in the record from  this sort of thing happens all the time we fight unhealthy relationship we fight and then we engage in sex later if that's all if that's all you've got from your victim  a reasonable jury just in for what they might be thinking about his prior actions don't they have to look at what the victim herself was thinking absolutely and i would say though that in this case she specifically said she was afraid that she was afraid she would get beat up again additionally she explained that when he when the kids leave i believe it always gets worse so she explained her fear and even in cross examination when the defense pointed out to her about other acts she talked about how she was in fear when he would come and kick in her door talked about the incident in two thousand and fifteen where he slapped her threw a pop can at her as the appellant stated earlier and i think the fear is reason we inferred from her tone the jury was also able to see her demeanor in this case the united states arrested the victim on a material witness warrant as noted in in our briefing in the record she ultimately recanted in this case based upon the defendant in march after being arrested on a sexual abuse charge he calls her from the back of a of a three affiliated tribes police department vehicle and specifically tells her to say that she lied and the jury got to see not only her testimony but this video where the defendant is telling her see that you lied this is going to screw up my life and make me a sex offender you've got to get me out of this tell the prosecutor that unit dropped the charges before we get to the witness tampering which is i think what you're touching on i want to go back to the question i was asking opposing counsel you know i've sat on a lot of domestic abuse cases over the years  and often the same trigger leads to the same pattern of abuse and here it seems that mr i use trigger was talking about infidelity and the fact that she had other boyfriends and things like that am i off base here because it seems to me that that's what caused the fight the night before it got mentioned here and then she sort of submitted as she put it i don't know if he has those words was the issue of infidelity came up this year and i would argue that that is  the the united states case for the threatening portion of it that was taken as a threat by the victim it was a not just a fight a fight that happened in the car with some slaps and pushing but the defendant earlier that evening on november twentieth took her to his mother's grave kicked  in the stomach in the face her eye was swollen shut and that was own infidelity iraq proxima twelve hours later when he says he wants to engage in sex and she's resisting he makes the for isa's the phrase you letter but he hid it except for me at which point as she was at that time pulling up her her panties she stops and in her own words let it happen because she didn't want to get hit again and that trigger of infidelity was a trigger specific to her and was ubiquitous throughout the fell when the defendant talked to the appellant talked about trying to paint mr i was about individual that wasn't the intent if you even look at the conviction in two thousand and eleven that fight started over infidelity there is a pattern of the relationship a this court in johnson stated was relevant to talk about the defendant's intent to talk about the relationship gives the jury enough inference to say this individual was beaten up twelve hours prior was resisting and then when given the the phrase you let everybody hit except me she stopped resisting and based upon that that is a set that sexual abuse that's fear because fear is very broad it's broader than force i believe that was stated in one feather additionally fear can be  fear of bodily harm and additionally when it comes to the entire argument we talk about in this case the for a for b context explains the defendant's intent in this case the the court instructed the jury  on knowledge proof of knowledge proof of intent additionally about four for b in the instruction specifically stated you can talk you can look at the defendant's prior acts to determine his intent his his knowledge and i believe that directly contradicts the appellate argument because the jury was instructed that they could infer those prior acts to explain the fear in addition to the threat that the defendant made what is the relevance though of what judge sheppard said i mean one of the things we said in full there  was we talked about the fact that force and fear were different of the two the two crimes were deaf and i hear you saying that that fear is broader and forces narrower but arguably those acts of pulling down the panties and the struggle might actually suffice for fear it might have sufficed in full there i don't know we were presented with those facts why did they survive suffice for fear and are we just allowing that overlap that we are very cautious about and forbear to bleed in order to create bad and if we were to accept those facts as evidence of fear i believe that it's absolutely political in this case that the victim was in fear and that the jury could infer that from the circumstances and the fact that she's pulling up her panties shows fear i believe the jury could say she's pulling her panties showing she's afraid of engaging in sexual a sexual act in conjunction with the fact that he beat her up and had her ice woman shot by assaulting her twelve hours prior i believe that it's completely separate whereas in food where we're talking about pulling pushing shoving in a any excuse me a more of a force con concept in fear fear has to be more broad and her fear could be attributed to getting beat up as she stated  that could be manifested in her resisting by saying no and also by simply telling stopping to resist like in the reynolds case which although not exact it was a deal with the sentencing guideline an enhancement it was the same sort of situation in that case the defendant takes a minor victim out to a secluded location he's ultimately charged with coercion coercion and enticement but he isolates her he starts touching her and she stopped resisting because she was in fear the court this court held that that enhan t under the guidelines arrange for an upward enhanced madonna as it relates to a twenty to forty two sexual abuse was proper because she was in fear and i think that's directly analogous to this case which is the letting it happen it cannot be viewed in isolation it has to we have to look at the fatality of the circumstances the appellant is asking essentially to view the sexual act for that five minutes when it happened and even to a certain point saying well even what she did is irrelevant it's his intent what i had urged the court to do is look at the holding in johnson and reynolds and apply that same reasoning by stating when you have a victim of a bitch will victim of domestic violence when she states that she's afraid and ultimately when she's beaten up twelve hours prior she's going to be afraid and then you add that to the fact that she resists before the sexual act and the defend it gives her a trigger that she takes the threat or the jury could infer as a threat that you let everybody hit except me and then immediately reports it and i want to argue that when we talk about some of the corroboration in this case the jury got to hear that the miss bat had reported immediately that she went in there went got medical treatment the d n a came back to the defendant  voluntary i would say it's not a voluntary she it was it was something that she did not initially state i believe that at this time the bad hand was in fear as the evidence demonstrated and i believe that goes to i haven't talked about the variance or the alleged hearsay statements because of the the palin has not raised them but i would just like to point out that those that these defendants act of tampering in march of two thousand and seventeen when he calls the victim after being arrested was additionally a potential motive for the victim to fabricate in favor of the defendant now i know that in the appellant's brief he specifically states that this is not something that is usually the course of action usually the  defendant is the one that opens the door to it and then the opposing party brings it in but when mrs bad hand receives that call in march she ends up or canting and the jury got to see the the tone the inflection in that video recording and it is the inflection is very scary for mr bad hand she is afraid of him as she did as she testified to and that after that she ends up recanting the united states arrest or on a material witness warrant and at trial she explains what ha ppened that you know she had been called by both the defendant and the defense sister asked to drop you know the charges and ultimately that can also be you can look at that as to why the miss bad hand acted the way she did there all  play that that make her a free acted the way she did and what what action are you referring to there the action of not not initially eliciting it right away that it was a sexual assault at this point she just wanted to be safe she wanted to get out of there i believe as  testified she wanted to go not be in that situation she was in the video that was admitted from officer prisons body camera she's actually packing up all her belongings and getting out so at that time the argument would be the fear is not only the fear of the sexual act that she's facing but she's afraid that he'll come back and that's why she acted the way you know she did in terms of stating over the second the physical abuse before the sexual abuse you're awful i want to ask you about the variance because  i understand why opposing counsel and focus on we have concurrent sentences in the lead charges is certainly the sexual abuse but i got to tell you i'm actually concerned about the the the post indictment statements the april seventh statement in the april eleven statement because those were after the superseding indictment were given and what i'm concerned i'll be very specific i'm concerned that the jury may have convicted the defendant of witness tampering or some jurors may have rested their verdict on witness tampering based on the april seventh and the april eleventh communications which post dated the indictment make me feel better about that because i don't feel very good about it those are i would say that the instructions that the court gave about influencing witnesses and fourth would be instruction for consciousness of guilt for witness tampering for the witness tampering that occurred after the indictment additionally this is one of several actually believe it's a big nod or explains that if there are multiple a that you have to limit the verdict to x preceding the return of the indicted whatever it was april sixth april april fourth whatever whatever the date of the indictment was was or some instruction on that other than the two instructions that were given in the four for b and influencing when or with this  it explains about how that is permissible if the united states doesn't waiver its theory and your question it's like  is entirely possible that at least some jurors reached a verdict based on reliance on those and plenty of those case would indicate that alone is a basis reversal so you should not feel good about that why was there what was the reasoning for avoided the problem that possibly we're facing it might you know judge kelly i would tell you that that testimony came up along the way and defense counsel got up and objected and then there was an ongoing about that and address pretrial if you look at what the court does it goes back after it says you can take the for consciousness of guilt you can consider them as prior bad acts and defense counsel says well now we're relying on post indictment conduct i don't know why the court didn't give it me instruction it's just not clear from the record but they did not in a way that makes it clear that you could not rely on those as substantive evidence of guilt on count two and i think that is fatal is to count to  that was that brought up to the court that this issue the issue of variance the issue of admitting in the post indictment conduct was judge sheppard at page three exactly when it took place up to a trial right because the victim was still in the house this is different but i know there is a difference that matters with me right because the allegation is on or about march tenth and there is extensive discussion of one on or about means that could include additional question is one of the things that the weakness of what i'm troubled about is in this kind of goes the other way is it seems like those later statements closed loop on earlier statements like the april seventh statement was a bad hand told i you that things went well in an earlier conversation with police and so i don't know that i buy the consciousness of guilt necessarily of the government but there may be an argument here that those who are not independent statements that it wasn't a fatal variance because they sort of were related to things that happened prior to when the indictment superseding indictment was returned i just i'm wondering what your response is because that's a key issue for me yeah i mean i think if with the point i mean just trust that this is sort of some interconnected right right effort i think the problem is if it's interconnected a necessary to it right we're still reliant on post indictment conduct if it is as you say closing the loop right we're button and own we talked to her or she's on board then it's a necessary part of the attempt to corruptly persuade her and you're still relying for conviction on this post name and conduct so i think it can be a problem if it's independently relied on or it's a necessary component of the full act of trying to persuade thank your