were the the three minors involved in this particular case and all three of them testified during the trial that the touching that occurred was over the clothes in some that's w who testified that inconsistent with what the children to testify and at the time of the trial that the touch that they told her that the touching was under the clothes or skin made but it was a confrontation objection right i think my objection was under the i believe a state going to the confrontation clause in the sixth amendment clause the sixth amendment so under the confrontation clause seems to me since they testified i don't know why we are really have a whole lot to say about the confrontation clause well part of the part of the issue prior to the argument coming in but i guess my biggest problem about all that is based on my review of the record and based on the objection it seems as if the only thing i can really talk about as to this objection might be the confrontation clause based on the objection given well i believe that the court could also excuse me addressing the where are they cases which say when an objection isn't made under that provision of evidence but under a different confrontation clause  i can nonetheless address that issue well because i don't think they are well i think part of the argument here is that it's not just that one violation but the the numerous violations that come together in this particular case to allow us to argue it one is that we have argued oh i'm sorry i'm sorry to interrupt did you try the case i did your on the jew object to the introduction of the agent testimony i believe i did your honor i it's been a little bit while since i briefed the sin and since i tried this case but it was my memory that i did object to the agent's testimony object specifically on the basis while allowing the agent's testimony contradicted the live testimony of the victims i believe that the agent testified prior to the to the listen to the national ok did you object on the basis that allowing the agent's testimony monye produced evidence which was inconsistent with the victim's live testimony no i didn't because the agent testified that's my recollection the agent testified early in the case before the the children testified but at some point did you ask the trial court to exclude the agent's testimony on the basis that was inconsistent with what the victim's it said in their in their live  or again i think it could be addressed and really rule the arguments under eight zero one and the the combined errors that we allege occur in this particular case the heart of  the case really is not i mean answered the question if the agents testimony is allowed then there's substantial evidence supporting the aggravated counts if it's disallowed then it's not there well we did argue that the agent's testimony should not come well we argued first off that if the agent's testimony was going to come in that we should be able to also the statements that were made to by the defendant under the testimony of the agent that all of the contact that occurred was over the clothes and the court did not allow us to bring in that best i'm only  because the court deem that to be self serving testimony and did not allow us to look elicit from the agent the statements of mr gonzalez that he all the touching occurred over the clubs so we argued in our brief that that was of the model of the right of confrontation to not allow us to question the agent about the additional statements that mr gonzales made that that he all of his touching occurred over the close as your argument here on appeal yes that the district court erred by not allowing you to ask the agent about out of court statements by the victims well that's part of it yes that we were denied the right of confrontation and questioning the agent further sounds like a yes that is ok all right did you also object on the basis after the victims testified have in and and testified to over clothing such would you then move to exclude the agent's testimony i did i did not at that time ok but i did object to the testimony of both dr shaw and the forensic interviewer known as knapp which were both allowed to come in saying that there was skin that skin contact that well that was contrary to the testimony of the victims where they said that they were only touched over the clothes why didn't your testimony are your cross examination of k a suggest that k was acting under improper influence or motive to fabricate  i mean it seemed to me that your cross exam was you've been in the car room before you practiced your testimony before when you said you forgot you really meant you forgot what you were told to say during the practice which all seems to indicate that there is an improper influence or motive to fabricate which would be a reason if i read a to one the one b i correctly to allow that statement well i well i was trying to do a thought and so as you know a trial child witnesses you have to be very careful because they're not always clear in what they mean and we don't always know what we what they mean on the question that was asked so i was merely trying to clarify what she met when she said i forgot and so and it doesn't really seem exactly that when you say something like when you say you forgot means you forgot what you were told to say during the practice in the court room previously that looks like you're really challenging if you will or maybe she has a motive to fabricate maybe she's been told what to say maybe she's acting under improper influence which if i read a to one the one be i that is to that's the exact reason you would let those statements in but but the other part of that analysis on their call a cot is that the testimony of the child victim or whoever they're trying to rebut had to be consistent with the hearsay testimony that you're then trying to bring in no question if there's a hundred three when a declared offers a prior consistent statement that is consistent that's one way to lead at the end but there is also under two when there's an express or implied charge of recent fabrication or improper influence or motive which is a different alternative for letting it in well i understand i agree that the way i understand that rule to be is that all four of those must be present the first off they have to have that  allegation of recent fabrication but then they before the court can admit of has only here's a statement must be consistent with the the n court statement which is not the case that we have here there what i'd like to know is this is when apart from one of the social worker to testify as to what the girl said to her wasn't there and the agent who said that your client admitted at least on one count to touching one of the girls under their clothes that that's i think that's correct there was that statement by the agent as to one of the constantly but again we weren't allowed the opportunity to ask that agent in cross examination about the additional statements that my client made that he didn't touch them over the clothes but i didn't recall that issue being argued in the opening brief that he's about the admission illegibly missions but not being allowed to ask that agent about other an issue it's not a dress is so least i'm not seen any issue raised that would permit us to strike that testimony which normally would come in  to say it was wrong to admit that which would normally come in as an admission so if that's true then would your client be definitely convicted on that on that one co agent in there that mr gonzales admitted i think touching on the skin the skin there and that alligator that comes in and where he says that he demonstrated somehow or other the way he moved his fingers i think the agent said that he demonstrated somehow or other that he moved his fingers in a certain fashion and he said that with regards to one of the  trial counsel i was not trial counsel on this but i am familiar with the case and the three issues that were presented but if the court has specific questions i'm prepared to go into those right away sure why don't we start with this the agent is on the stand recounting what the told the agent and defense counsel wants to cross examine to bring out statements of the victim to the agent inconsistent with the live testimony is that i have a you're if if i'm my recollection at least in review of the briefs and review of the transcript in that the issue in terms of what was not brought out was specific to the f b i agents testimony as to the confession of the defendant at least in the brief the defendant indicates that while the government was able to bring out that confession it was not able to bring out  what was described as self serving statements made by the talking about a different strain tell me if this is what i'm about to describe is accurate the agent is on the stand describing what the victim one or more of the victims told the agent and on cross examination defense counsel wants to bring out statements made during those interviews that is inconsistent with what the agent testified to on direct  that's what happened ok how's that not there of the defense attorney and i've got an agent on the stand who says when i interviewed the victim the victim told me one two three and i get up to cross examine and say isn't it true that the that the victim also told you during those same interviews not one to three in the trial judge and there's an objection from the government in the trial judge says sustain you can't go into that that would be self serving tell me what's right about that but first your honor that statements that the victim state victims had already been on the stand and could have been and were elicited directly as to what they said was said it is that possibly relevant to the question i just asked you on what basis do you allow an agent to come on the stand and introduce hearsay based on an interview of the victims of this this crime and not allow the defense attorney to ask whether there were statements by those very victims inconsistent with what the agent has just testified to under ect you know  believe that they would be able to ask if it concerning statements made if they if the agent or the examiner is making statements and concerning inconsistent statements or consistent prior statements then the defense would have the ability to go into that range of questioning isn't what i just described what happened not from my review of the record from my review of the record the objection was that my review of the record was that the that the questioning was that jackson was to hearsay of the friends examiner saying providing any testimony at all concerning what was stated  honor i was looking at the record too and perhaps a defense attorney can pick that up on rebuttal and just give me the page numbers i was looking at the record in terms of the court's initial question as to what was the defendant's objection in terms of whether it was confrontation clause or whether it was an objection to asking about a government objection based on attempted cross of the confused as to which agent we're talking about there was more than one agent right one agent testified about what gonzales one agent testified about what the girls but one of the girls yes so my understanding was that the and maybe i'm wrong in this of the check it could ask for a supplemental briefing to clarify in this p situation where there was a government objection to the scope of the cross consistent statements related to t i believe that there was objection and the difficulty your honor in terms of in reading and how this was presented in the defendant's brief was that the objection was that the defendant was a list sitting statements from the defendant or i guess described as self serving but they would no longer be listed as a party opponent statement in other words th confession of the defendant was listed by the government under the party opponent confession or statement on hearsay yet to elicit that same state different statements would be objectionable my question was whether whether the request for cross on that additional statements related to the testimony about what gonzales it's more related to testimony about what one of the victims it's i don't know i don't recall specifically your honor i can follow up with leafing on that was i know that agent benedetti was the case agent was the first i believe the first witness to testify that testified to  of count for the defendant was charged with three counts of aggravated sexual abuse and one count of plain sexual abuse the difference being skin to skin touch with the aggravated sexual abuse and over the clothing touch now the first counts the first two counts involving a victim e t a when that went to the jury that was the victim in which the defendant had confess the skin to skin touching so there was evidence from a statement by the defendant against his own interest with the with the reliability that he had touched skin to skin with victim e a victim and b that was not charged as aggravated or skin to skin touch that was charged as what would fall into the over the clothing touch victim k i there were two counts for and count five one was count five four was charges aggravated which would have been skin to skin and count five was simply the abuse or over the clothing touch the evidence provided in terms of skin to skin touch for k after the after k it indicated that it was over the clothing was there was the testimony from the friends examiner as well as the doctor in terms of the medical examination that the but as i understood it the a c count i call it a  was reduced was the only thing we had against k that it was reduced from the a s c so we didn't even have a count even when i went to the jury having to do with a essay an absolutely honor e in that realm as the government pointed out that that testimony was never able to be considered on the element of skin to skin touch by the jury therefore if if in fact there was error in allowing that testimony then it was harmless or became moot by the courts rule twenty nine and fact basically saying that there were still but that can't be your argument as a relates to way in terms of v a the difference was that the defendant himself confessed to the skin to skin touch so if the court completely disregards what the friends examiner said or or  the i guess the doctor did not examine he did not talk about da but either one of those extra witnesses if that is completely disregarded the jury still had before it the defendant's confession which is arguably has significant reliability given the circumstances and in terms of need more time you have three minutes to so you decide what you want to cover able to specifically locate a part in the record in which the court raised my my reading of the briefs did not draw that to my attention i appreciate the opportunity to provide supplemental briefing and pinpoint the record citations to that the united states's view is that in terms of in terms of the issues that were raised the in terms of the issues that were raised the testimony of forensic examiner knapp as well as dr shaw were admissible and or the theories of admissibility the defendant didn't  appear to raise an objection in saying that it didn't fall but you've had a chance to examine that and you've got a chance to argue it seems to me at that point arguing wavers out the door you've got you've got your argument front of us you've got the points in front of us so you got to make your best argument about it you can't just talk about confrontation i wanted him to talk about that but he didn't so i was given it directly to you  i i'm sorry but i agree your honor and in fact i think that if the court raised it and they did and the government raised it during its it certainly was raised in the district court so the bottom line is that this is a discretionary call with the court on plain error of you here i think it could be playing a review but i get a r v but i i think you know honor under the that the objection was raised the objection was raised to hearsay whether it was couched in terms of the confrontation clause or not at the time it was addressed by the court and the government in terms of a hair or say exception and eight o y n d and so i think that that's a fair issue to raise on this in this and i think it's abuse of discretion standard review rather than a plain a review on that issue so i would go it as just a couple questions as the assistant united states attorney who tried this case still with the office currently system is is is on leave about coming to the court of appeals and whether to have a lawyer who tried the case or someone from more familiar with appeals argue the case seems to me that this is a case that screams out for the lawyer who tried the case for the government present in the courtroom now there may be reasons why that person cannot be here and i'm not trying to inquire into that but it could be that that entire  case and the matter was reassigned for appeal i know that that sometimes creates a less than intimate knowledge of the case again but that's what happened in this case your honor thank you i guess if i'm going to do this on abuse of discretion standard i'm having a tough time understanding how the declarant is offering a prior consistent statement that is consistent with the clarence challenged in court statement i can't find well here's the here seems to me there's no question what the kid said and there's no question the agent said something different and it makes a big difference when you're relating it to either account for a essay or a s c and so therefore if i go on the kids alone a can't be can't be convicted of a as a at all and if i throw in what the the agent says then they might be and he was convicted so therefore it seems to me i got to say that's a prior consistent statement and i can't i'm having a tough time on it even an abuse of discretion standard making that so you know i think i believe that the key factor is that whether or not this is offered in terms of an inference of reason of fabrication and that's what was argued in this case and i believe in a point of view that's what occurred here's here's the issue in terms of ok the victim took the stand the victim was cross examination examined i believe it was ok and not my review is the e a was not crossed but the don't know but it's an it's a discretionary standard once that's it's crashin on the fur on the second prong no question that's why i ask your opponent about it my problem is trying to get discretion to the d j when says no not under the clothes one says yes under the clothes that's not consistent i can't even read it consistent yada respectfully i believe that it's broader in terms of if the defense is questioning or the witnesses whether or not the witnesses fabricated the witnesses testimony or practiced or said things in that have been suggested by the prosecution then that door is open when th door is open and there and the government calls they subsequent witness to in terms of in rule eight zero one d one b then that subsequent witness is going to present testimony as to what the victim said so if the fabrication is or if the inference of fabrication is that this offense didn't happen which is the is the general m implication if you've practiced on the stand then that door is opened to what the defendant said now if the if the witnesses said now if the witnesses said something that's slightly different than what the subsequent witness says in general terms it is still speaking of the offense of the sexual abuse in terms of that slightly that's true and that's where and that's where the abuse of discretion standard is more of a spectrum now some court may if fall differently along that spectrum but this court fell in along that spectrum to that covered that particular rule  significantly over your honour's well thank you neal thank you very much and again i know if the court does wish some records sites we can follow that up and however the court seems like little bit of the same boat that judge gould was it seems to me that when you are arguing there's a violation of your due process of your client's due process rights to present a defense you work arguing about the cross examination about what other things would come out from the witness that would help you except as to those statements made that indicate that that is why i caught him while touching one of the victims and therefore what is wife would say would make a difference let me address i might be able to address your question in part by an and we cited to that part portion of the record in our briefing on page four of our i think it was our amended brief and then at trial when there was testimony  of the agent the defense objected to the testimony based upon the pretrial motion which was overruled and that's in the record at nine sixteen twenty thirteen page fifty two so in my objection i referred back in part to the pretrial motion i tried to do that so simply not make a speaking objection at the time of trial and referred the court back to my pretrial motions part of my basins and the court tonight that motion and additionally there is two different agents here because i believe that the forensic interviewer who testified later in the case was testified that and agent takes the stand and testify as to what the victim not your client the victim told the agent and then you get up on cross and ask the agent about other statements made by the victim to the agent which may or might be inconsistent with what the agent has just said on direct did that happen is my recollection that  judge hawkins questions go to the agent who is interviewing the victim and the statements the victim all the different i'm not to interview of the man i thought to talk once question was trying to clarify on the point i asked giving my different understanding that i thought and i might be wrong but that the inability to cross examine the agent about other statements related to the agent gave the admission of of gonzales not to the one who gave the prior statement of my recollection is that an agent in a dead he was saying when i entered when the interview occurred with mr gonzales and i was allowed them to fully go into the other statements that mr gonzales made about what the judge called self serving hearsay and allowed to come in that sounds different from your response to my question when you first got up and maybe i misunderstood the questions but try it one more  did the following happen a k an agent is on the stand describing what one or more of the victims told the agent during interviews that occurred before the trial ok right  you get up on cross examination and ask the agent about other statements the victim or victims may have said that would be inconsistent with what the agent said on well i said earlier that and i didn't find it in your brief i think i've got it is relates to what your person your own client would have said self serving to an agent that you want to be and well that's the only thing see way that is raised in the briefs not what the victims may have said i don't see that issue in front of me well all i write is that the if the agent i think we  testimony of the agent that was conflicting as to what the the alleged victim said in the open courtroom and what their sworn testimony was that was inconsistent and i believe i don't recall am agent been a steady step testified to any interviews with the children the mrs knapp who was a forensic interviewer and i believe also an agent and that maybe the confusion argument from both of you in this way is going to clarify this for us so it was my thought in conference will be will send send a request for supplemental briefs and each of you can be as