fifteen fifteen eighty united states of america versus land michael love victor oral argument not to exceed fifteen minutes per side mr supervisory attorney charles mark pickerel false student andrew marion arguing good morning your honor my name is mark pick wrong and ma'am please the court i'm an adjunct professor at the vanderbilt appellate litigation clinic for the current year and the court is approved mr andrew marino your honors i'm a please the court to reno for appellant mr little victor i'd like to request three minutes for a bottle or i'd like to address two issues today with the court's permission first chance to the sufficiency of the evidence as to four of the seven counts  conviction and then i'd like to turn to the expert witness i relied upon below and then conclude with a discussion of how these two things combined to render mr victor's trial fundamentally unfair i'll start with the sufficiency of the evidence challenge we're challenging the sufficiency under jackson gets virginia of four of the seven counts counts one two three and six count one was a count of sexual abuse under eighteen u s c twenty two forty two to be which requires as relevant here immense array of knowingness then a sexual act and that sexual act has to take place while the victim is physically incapable of giving consent or declining to engage in a sexual act and though the problem here is the united states really relies on just a snippet of testimony to support the judgment beyond a reasonable doubt it relies on testimony of the victim who said that there was a moment that she cannot remember sexual intercourse and it was a she said and this is really all the testimony there is there is a moment i cannot remember and then i woke up and the united states of page seventy two of their brief says that's sufficient for the jury to reasonably infer that mr  evidence but the majority her statement would go to the other counts aggravated sexual abuse or assault or habitual domestic offender but this statute is very particular in what it requires the sexual abuse statute requires a sexual act while the victim is asleep or intoxicated and the united states says she she testified that she was briefly asleep and so you can infer that mr le victor took a substantial step we would submit under jackson against virginia and under that's that's not a reasonable inference that's mere speculation i've kind of forgotten counsel was she a slape or where she out well it's a difference between sleeping and being passed out right and it's not clear from the record all she says is there's a moment she can remember and then she woke up and so you could say she was asleep well you you could be out for quite a while and when you come to it seems like only a moment that's that's my point that's true just dodgy but there's no evidence that anything happened during that moment there's no evidence that mr le victor did anything and he would really have needed to evaluate how would she know if he said that that is the problem but judge dr but i think it's a difficult statute to convict someone under and that's why there's these other aggravated sexual abuse statutes and i would submit that the the evidence the united states really needs is if the victim woke up and mr victor was about to engage in a sexual act and that's a reasonable inference that he was or whatever so i mean this i'm not sure it's quite as simple as you putting it well i think judge clay that's something we can speculate about but i don't think there's enough evidence on this record to to reach even a reasonable inference as to that ha was to introduce and so on i mean there's a lot of circumstantial evidence right but again judge plan i think that all goes to sexual acts occurring while she's conscious and i just think as to count one as to  incapacitated sexual abuse count there's just there's nothing tying a sexual act to her being physically incapable of the clips the upshot for for your client what's the effect on the sentence for this particular if you were correct and the court agreed with you what what's the upshot we would remand for a on that particular i'm really speaking about the sentence obviously i mean the there is say the other counts hold what does this affect the sentence in a significant way it may i'm i mean i would remand for you don't have that as a part of your argument but that if you if the court found this then the sentences reduced by right well i mean what could  possibly be whether we're up to it's this close to a life sentence almost thirty years thirty i don't know what the sentence would be on remand but it may very well change if i could address count if i could go to count six which is a witness tampering corrupt persuasion and our submission is that there's not enough evidence on this record of the corruptness of the persuasion we submit under arthur anderson against united states  really means doing something for a promise of benefit or a threat of harm i mean that just comes from the word corruption which has a connotation of acting on scrupulously for personal gain and if you if you look at the record this is just a boyfriend drafting a mock affidavit for his girlfriend to sign there's no implicit threat of harm there's no explicit hey will you please lie for me there's there's no way that you could derive a mens rea of knowingness from the evidence that the united states is relying on before it got to her and he pled guilty to count seven which was violating the think the p p o with the restraining order at least so he did plead guilty to that count and if you look at the united states briefing page seventy six and seventy seven they they don't  arthur andersen and they really cite two cases that are in a political here we're trying to tease out what corruptly persuade means they say united states against jeter which is a fifteen zero three case it's not a witness tampering statute and the supreme court in arthur anderson in footnot nine said eighteen u s c fifteen zero three is is really a different statute because it covers different conduct because it doesn't require knowingness of the crow persuasion and so it's a different inquiry and they also say the united states begins montgomery which is an unpublished case from this circuit and the difference between this and montgomery and other fifteen twelve cases that this court has issued is in montgomery the defendant explicitly said please go on the stand and lie for me say something that didn't happen  you know testify as to something that wasn't true and so you can clearly get from that amends freya of knowingness as to the current persuasion and there's there's nothing like that in the record here and so our interpretation of probably persuade i think daughtry there's still no threat of harm or no promise of benefit that would render it corrupts persuasion i think it's just persuasion yeah but isn't that implicit i don't think so i think such a broad reading of the statute carry a sense of up to twenty years i think so i think it's clear that congress is trying to cover less conduct with this if i could turn to the expert witness that was relied on below dr ben ami we raced seven zero two challenges and for three challenges i'd like to discuss the four three challenges mostly dr ben ami was admitted for a pretty narrow purpose and the purpose was to explain the phenomenon of domestic violence witness  her testimony went far beyond that and so there were really three problems with it much of it was irrelevant much of it was unduly prejudicial and then much of it essentially constituted character evidence and so the irrelevance and the  overly prejudicial miss it was really she she listed multiple anecdotes from domestic violence perpetrators whom she had interviewed in her research who had no connection to this case she testified about quotations by them and caustic language we we include a couple of those quotations in our reply brief and then the main brief pages fourteen to fifteen and she lists a couple anecdotes that just are too prejudicial so a couple of them are  testified at page twenty one fifty seven of a man who drove his car off the road while his girlfriend and their son were in the car of a man who attempted to suffocate his girlfriend thirteen times that's page twenty one seventy of the record a man bit a chunk out of his girlfriend's face and then suffocated her in front of their one year old child that's cheap she testified to that anecdote twice what was this supposed offered for was it offered to say that that these women then later recant know it wasn't i mean i didn't ask don't know what was offered for judge daughtry it was sort of to lay a base for her knowledge of domestic violence i suppose but it doesn't have any relevance to this case and it really is a high i mean just saying those examples because a hike likelihood of inflaming the jury and said it so well i guess so except that the jury knew none of that happened in this case  true true but i think that's not treat when it went to certified experts sort of lumps in the defendant with these you know pretty caustic toxic examples of prior domestic violence i don't think it has no effect on the jury and i i certainly  think combined with the other statements that dr ben ami made i mean for example she stated unequivocally quote we know that our canting victim signifies an especially dangerous offender one who is going to repeat severe abuse against the victim over time and coerce or that's twenty one fifty eight of the record that's an unequivocal statement saying it's guaranteed that because the victim in this case recanted mr lichter will commit crimes again and i i don't think that's permissible statement combined with the other understand the phenomenon of recantation in the context of domestic violence and the expert witness was testifying to explain how domestic violence and should work together right and i don't i mean i'm not conceding judge clay that that would be a a permissible thing under seven o two under daubert good morning may please the court i'm jeff davis i represent united states i represented the united states in trial with  court were to hold that that charge in charge was not valid we would still have the other two sexual assault count one count to encourage i mean this i'm walking to say what were those were the three hundred fifty five month sentence so it gets him to the max anyway i take it right jackson sentence right correct your honor and as for the argument that we didn't show that  victim was physically incapable declined participation what we charged in count one was an attempt it wasn't completed sexual act because counts two income three are the completed sexual act what this vick argument is the evidence was extremely thin on to support that well there's case law that cited in our brief fast horses one of them that holds that if a victim is asleep and the sexual out i sold is perpetrated on them that's sufficient to meet this statute that they're physically incapable of declining participation in this case the victim's test stated in her grand jury testimony that she could not remember what happened after midnight but she wakes up and her clothes are off and then it gets into the violent sexual assault right after that she also told that attempt we didn't charge the completion of the witness the tampering then judge clay i think you had a question as to when the defendant was ordered not to have any contact we do a lot of sadly we do a lot of these cases from indian country with  sexual assault especially with domestic violence at the initial appearance we asked the magistrate to order that there be no contact in any manner with the victim in the case including electronic phone anything like that and judge greeley ordered that in this case before the august fifth letter that he had the affidavit that he attempted to send out and the affidavit on its face says tell the court rewrite this in your own  handwriting it's an affidavit that says it was rough consensual sex and again we charged attempt we did not charge the completed act in that case getting to the defendant's argument regarding the expert witness first of all we presented the expert witness for the purpose of offering to assist the jury in understanding in and evaluating the seemingly inconsistent actions of the victim her initial refusal to make a law enforcement report returning to the defendant shortly after  to marquette from soldiers so no one could truly quarrel with the help probative this would be for a jury unfamiliar with the syndrome right and we saw it three cases one from the seven circular argument is about that and it's always prejudicial in some regard but the test is whether it's unfairly prejudicial corrective counsel gives us the let me agree just kind of conduct that he argues was inflammatory right and but when you look at the context of the trial dr bona me testified to that on direct and on cross examination as judged already asked bush the expert cross examined she what she fully cross examined they went through the power and control wheel and they asked hypotheticals well if this person lives in canada canada which our victim was that factor wouldn't apply if the they didn't have children in common one of the other factors would apply so she went through that with the expert and she also talked about lack of much physical evidence of physical violence between the couple because quite frankly we are victims started to regret can shortly after we indicted the case even before we indicted the  but anyways so we we had but we did have a foundation for that i mean she told the f b i in july july first or second before she renewed her relationship with the defendant that there was an incident  statements from medical personnel and others where she said that she was afraid of him that she was in an aggressively abusive relationship but more importantly as to dr bona meese testimony the defense a did you meet with the victim in this case she said no i didn't mean did you review report no i'm not making a credibility determination in this case now finally judge edgar when he was reviewing the rule twenty nine and rule thirty three motions pointed out that they made similar arguments before him and he said a lot of these issues went to expert witness once they're qualified  testifies about factors the appropriate way to address those is through cross examination and he said quite frankly the defense did a good job on that in this case all of those you know toxic examples he pointed out they really were not applicable in this case so and then i think most critical here is his instruction to the jury because we had a number of expert witnesses but he instructed the jury that like any other witness you can take some of what the expert said all of what the expert said or you don't have to take any of it so you know i disagree that these toxic statements resulted in some hollow eyed injustice  to the defendant or the any of the other evidence that they argued did such in this case i really think when trying this case i think what happened is the jury had to determine credibility in this case and you know sexual assault domestic violence they never happen on public so it becomes a he said she said and the perpetrator and a victim statements and in this case we had a clear and they had to weigh this victim statements and when she was called by the defendant on the last day of trial she took the stand and what she did initially she went through dr bona means testimony on the part of control we'll said this doesn't apply this doesn't apply i'm a canadian citizen i don't have children with him he doesn't have any economic control over me and then she said it was rough consensual sex but some of the things that i think you know stood out in the her testimony was  she said at one point that she stayed in the hospital she was asked how come you stayed in the hospital for days because i like the food that was her response she said they asked her why she went to the domestic violence shelter right after the convenience for the kids they wanted to watch the fourth of july proceedings and then she said at one point that she once she got out she tried to make contact with the well why did you try to make contact because i wanted to meet with him he met me at the park and i had sex with him i had sex in the car on the car in the grass in broad daylight and that's what why did you do that because i didn't know if i even had stitches nobody told me idea and she forgot she had written a letter to him prior to that indicating that she was laying there she didn't know why she was with him and that she had stitches in her cervix so i think once what a boils down to is credibility in this case the court has no further questions thank you may please the court just a few quick points on her bottle the united states notes a couple of times that they're only charging an attempt for a few of these counts but charging mr elevator with attempt doesn't lessen the evidence for your burden they still have to prove beyond a reasonable doubt and we submit they haven't done that as to counts one two three and six and as to your question judge cooke if this court were to find that there were insufficient evidence as to those counts we think that the sentence would probably be about fifteen years i think henri mand so a little less than five years for each count i'd also like to know that it's much easier for a jury to make these sorts of credibility determinations if they have a an expert witness who has lumped the defendant in with multiple toxic but irrelevant perpetrators and who has unequivocally stated that he has a likelihood a near guarantee to re offend again and so it's especially when the evidence is so close and it really may come down to a credibility determination the expert witness could have a serious prejudicial effect and i'd like to point out that as to count one when she testified that when the victim testified that there was a moment she didn't remember and then she woke up naked there's not even testimony there that she fell asleep clothed so there's no evidence that mr le baker was the one who took her clothes off so it's not a reasonable inference that he was the one who took her clothes off it's just speculation it's equally likely that she went to bed naked or that she she took her own clothes off and doesn't remember that and so for the purpose of count one there's there's really just a tiny hook on which the united states has latched the beyond a reasonable doubt determination on two and there's just not enough there if they're not