at first like to say that for twelve which of course excludes evidence of other sexual behavior on a victim in a sexual assault case subsection b gives a couple of exclusions to that b one is evidence of other physical evidence where there is physical evidence but we're focused on see which is exclusion would violate the defendant's constitutional right now for twelve is not sacrosanct there are exclusions i mean we have four thirteen and then we have four twelve b one c to talk about the defendant's constitutional right for twelve is not an impermeable shield to allow a victim to perjure herself as she did in this case the evidence in this case was necessary it's different from the other court this court's imp opinions and pumpkin seed never misses a shot tail because this evidence was highly probative this evidence was necessary not to prove that someone other than my client assaulted the victim back in two thousand and fourteen so first you have to look at the timeline in this in this case the allegations against my client allegedly according to victim allegedly happened in january of two thousand and fourteen she doesn't disclose these allegations until december tenth of twenty fifteen to the f b i and to a child abuse child advocacy center interview in sioux city iowa  and that was just with respect to the first allegation in the indict the what i call the bathroom incident my clients indicted and pled not guilty on september twenty first twenty sixteen which again we're talking ten months after the initial allegation while he's preparing for trial getting ready to try that sole count of the indictment on october seventeenth twenty sixteen as when we have this second child center interview with the victim where she puts on more specific more severe allegations against my clients which turned into a superseding indictment and counts two three and four excuse me that wasn't may it was late april of last year that we found out that at the time she gave this interview in november of two thousand and sixteen she was being abused by someone else a man named jerome sheridan it was eventually accused convicted in is now in federal prison for what he did to the victim in this case that interview took place on march twentieth of twenty seventeen so that's the timeline that allegations against my client earned in january of two thousand and fourteen not disclosed at a new trial in my cross examination of the victim i asked her on that second interview on november ninth two thousand and sixteen did you answer all her questions truthfully and this is after she admitted not telling the truth during her first interview in december of two thousand and fifteen so i asked her did you answer all her questions truthfully and she said yes and then i asked for a sidebar and i said judge she just lied there are two questions that she didn't answer  two questions that she lied about the last two questions of that interview one are there other is there any so i'm now projecting myself into that last two questions that second interview was there any body else touching you in appropriately at this time is there anything anybody else touching in appropriately answer no last question anything else any other anything else we should be talking about here in this setting meaning are there any other anything else going wrong in your life answer no and she lied about that because fast forward four months later she's talking contemporaneous with that interview that she's being molested by her own call so i wanted to get into that with the victim that she lied about that and i try started to i asked her the question this is on page eighty four and eighty five of the transcript wasn't the judge concerned that you would then get in shared and then i was trying to get  him yes i was trying to get in that she lied during that second interview without the nape just admitting that she lied i mean i was respecting the court's opinion and i hope that you get into how could you get that without if you look at the get without getting to the other abuse as it stood i had nothing to impeach her credibility because if i was handcuffed i had nothing to impeach her credibility on that november sixteenth statement if i could have at least gotten her to admit that she didn't tell the truth to that last question but wouldn't the government then have to ask her to explain what she didn't tell the truth i mean that's i wouldn't at all why i know it's up to the government but it was in the judge concerned that this would then open up the whole topic of the other abuse that's exactly what he was concerned about my point was i was trying to get into the fact that she lied and leave the nature of the lie alone as collateral if you will but he wouldn't let me you're arguing that this could not have come in under rule for twelve right i'm saying it should have come in the allegations of abuse about mr sheridan should have come in well and it did not happen what about the as i read the record your  damaged by four or three evidence and that right i've signed both i've assigned to signs of error under four twelve and four three and i think the miscible under four or three right i believe that the judge misapplied the meaningful balancing test that needs to take place this is so different than the evidence and never misses a shot so different than pumpkin seed so different than tail because it's highly probative and let's not shy away from talking about the fact  one's arguing that drone sharon and didn't do anything wrong he did and he's in prison for it now so the judge on both ends of the four zero three analysis he didn't regard that this was highly probative that the victim was just covering up this allegation of abuse to pretentiously projected on to my client so she wouldn't have to talk about what jerome shared and was doing to her or at worst she's just flat out lying and saying mr heart goes did this three years ago nothing  wrong with me right now even though she was being abused by jerome share so that's how probative is that that she might have withheld information about shared why do you think that's particularly probative aside from your projection theory when the government  when the government plays the card a closing that this is a typical de lay disclosure case i have nothing to counteract that this isn't a delayed disclosure case this is a cover up case with respect to counts two and three or at best i that she unconsciously pointed the finger back at my client who she had already accused it wasn't hard for her to say larry ha goes as molesting me because she'd already accused him he had already pled not guilty was preparing for trial so when activity again with respect to the set the more severe allegations in that second interview it shows an alternative theory of defense that has someone else other than my client was was harming the victim unintentional psychological trick we can play called projection it's unintentional and not even though we're doing it i'm just projecting it on to somebody else somebody she's already was you wanted her to admit that she had accused sheridan or that sheridan was abusing  i wanted to several things that's true i also wanted to remit that she lied during that second interview who she was a slug and not she in here lying about this is that right i wouldn't call a teenage victim of sexual abuse i know i wouldn't call but you could intimate it with that kind of you know judge because i offered to the trial court a different way that i wouldn't even have to necessarily talk to her about the instances i could have asked the child  abuse the child actually center examiner about this incident about what was going on actually in october and november of two thousand and sixteen i could have asked question agent jeff howard about that he took her statements as well i didn't have to talk to the victim about this other than the fact that she lied and i wanted to talk to her about those lies but the specifics of the allegations which are contemporaneous and similar in nature could have been handled another way and we offered to do that but the judge just shut us down and i'm asking th reverse and remand this matter so that we can retry it and we can again give my client the billet he did effectively confront the witness that accused him and a manner that protects her in a less  onerous way than saying you know what was actually going on directly to her and you're arguing that this evidence is admissible under rule four zero three yes because of the balancing test as meaningful balancing test it's highly probative and it can be brought in the end in a way that isn't so onerous on the victim and that's why we have what would it be probative that there's an alternative theory as to why she's pointing the how does that fit with your projection theory why would she be accused sheridan well just because sharon and did that and it's up to the jury to determine whether both individuals did it i wasn't able to argue anything and that violated my client's constitutional right i wasn't able to address it at all this highly probative uncontroverted evidence and that violated his right to a fair trial i should have been able to ask that question on page eighty five of the transcript gotten into the name that that question right there is reversible error in my opinion just because i wasn't able to effectively cross examine her with respect to that and i could have gotten into the fact that she lied no matter what her answer would have been without discussing the nature of the allegations so because she lets these other people do this my client didn't do it but it was what would you say that kind of transferred back to her and this was a good answer to give at this time or disclose that  had been done improperly or didn't happen or whatever it's an it's an alternative theory of the defense to combat the government saying this is a typical delay disclosure case either she's intentionally covering up the abuse  thank you your honor and please the court my name is there eldridge and i am here on behalf of the united states i'd like to start off by addressing the argument that the government proffered this as a typical delayed disclosure case the argument in closing at page two thirty four of the transcript i'm quoted saying speaking of the cac interviewer and she told you that it's typical not unusual majority of her cases for children not disclose right away and to not necessarily disclose everything that happened right away there was no direct connection of any of the experiences of forensic interviewer scarman to the facts of this case  which goes essentially to the heart of the argument here which deals with what was alleged at the trial court level to be behavioral manifestations of abuse here it's characterized as trauma and projecting essentially what's happening here is that the defendant has disguised what is a thinly veiled attack on credibility and attempt to impeach as a constitutional argument and that is not m this court has ruled on a number of occasions that impeachment is not an exception to rule for twelve and the district court got it right here in considering all of the policy considerations of four twelve with respect to a w who was in the sixth grade twelve to thirteen years old at the time that she was sexually assaulted by her step grandfather lawrence hawk ghost now the argument here is that the evidence was constitutionally required to be admitted under four twelve b one c there is no exception that applies here this constitutional right of confrontation and to present a defense that the defendant relies on it's not without limitation and that's pumpkin seed and the other cases that i've cited in my brief and limitations those proper limitations include concerns about harassment prejudice and interrogation that's only marginally relevant and that again is pumpkin seed what are the concerns here for this specific victim well for starters bringing forth testimony with respect to other abuse that she has suffered which is what rule four twelve was designed to prohibit yes in this case there was another federal indictment to in fact brought against other individuals who had sexually assaulted a w but for twelve specifically prohibits evidence offered to prove that a victim in gauging other sexual behavior sexual assaults are included in that sexual behavior the argument is that it's not offered for that purpose that there's this constitutional exception to get it in but it's not probative of anything other than potentially another grounds for impeachment with respect to the defense offered and the defendant did have the opportunity to present that defense a complete defense the defense at trial was that the victim had a motive to fabricate these allegations and that defense was advanced the defendant testified about how the children were coming over to the home and using the water and the argument by the defense on clo was she just wanted to get access to the house and so she fabricated these allegations that defense was advanced he also had a thorough opportunity to impeach the victim and that for us at pages seventy four to seventy five of the transcript now this argument about perjury directly relates to essentially what is an attempt to impeach and further impeach a victim whom defense counsel had a full opportunity to impeach what you mean by for opportunity i mean if he was precluded from showing that she lied in the interview then it wasn't full it was something less than full and you must be arguing that something less than full was adequate but what do you mean by fall he had the opportunity to impeach her credibility with respect to the accuracy of her disclosures a page seventy four he challenged her truthfulness to he challenge her credibility he called her a liar essentially the questioning was at that first interview on december ten you you had you were told there was one rule what was the rule tell the truth but you told her with respect to the bathroom incident that's the only thing that's only it do you recall that yes that was untruthful was it no you broke the one rule that she had for you in that interview didn't you yeah and then he goes on to ask about other lies to other individuals but i assume what he wants to do then is come back ok then in the next interview you implicated my guy with these other accusations but you were still lying in that interview correct your honor i think that all of these questions go to the allegations against hawke ghost she's asked you know that was a lie you told the investigator that was it meaning only that bathroom incident had occurred and that was a lie right yes and then you told the c c interviewer that that was it that was a lie yes and then the follow up question is on page seventy five now let's fast forward eleven months to november ninth two thousand and sixteen you had a second interview with the child perjury but this time you told her did you tell her the complete truth about every question she asked of you yes and he goes on to say you didn't lie to her about any question that she asked you know now in that context the victim is focused on all of the alligator against ghost she's been asked pages of questions about the initial disclosure about mr hauck oath and then goes on with the follow up question about the next interview at which point she did disclose fully the allegations against m line of questioning because the last question of the penultimate question was was there any other abuse the question was as he read it to us it was it was an open ended question about whether anyone i forget if it was anyone else or just was or any other abuse but it was certainly and i something that would have encompassed sheridan and i believe that the specific question is outside the record however the cac interviewer typically closes with where there are any other touches or have you experienced any other bad touches and even though the government acknowledges that she did not disclose at that point in time the argument made at trial was she denied having other problems or there being any other issues she thought she should raise with the c s t interviewer that is extremely general that doesn't specifically go to sherrod and or any other abuse that was occurring so the argument is a stretch at best when a victim when faced with the question are you having any other problems or is there anything else that i should know about answers in the negative it cannot be said conclusively that she's perjuring herself was the other touches question and i don't believe and again i have to refer back to what is outside the record which is the cac interview recording itself i believe the touches question was asked in the two thousand and fifteen december interview at which point she denied other touches and that was explored by counsel at trial you lied in december two thousand and fifteen when you said it was the only occurrence yes i lie and that went on so that is what i mean your honor with respect to a full opportunity to impeach but in this second interview when she added the new allegations against hart ghost was she also asked then were there other touches and said no and again i don't believe it's in the record but i don't believe it was phrased like that your honor i believe the argument before the trial court was are you having any other problems and is there anything else that's important for me to know about phrases to that effect and i'm paraphrasing your honor but i don't believe that at that particular interview that i have of the two of you are reciting it differently i guess we'll have to go yes and your honor i i do think suppose hype and suppose for the sake of argument that he was prevented from asking whether she lied about other touches yes why shouldn't he have been allowed to ask about that and if you did lie about that even if that were the case your honor i believe it's still an impermissible line of questioning and that goes to the the case law that's already out there from this court never misses a shot is essentially a case that has the same facts with respect to the argument that was proffered the defend argued i should be able under the confrontation caused to ask about other abuse by another perpetrator because the argument was that the victim was projecting or could possibly be projecting the abuse onto the defendant that case instead of the other perpetrator and this court said no this court said that way especially we've we're dealing with this family veiled attempt to to impeach and the confrontation argument was rejected multiple times as well as this projection argument again this projection argument has no basis in fact and no evidentiary support the court the district court found that there was very low probative value of that particular argument based on the record in front of it but the record was no different at trial the only thing that came out at trial that was above and beyond the limited record offered at the at the motion limit hearing was that the forensic interviewer said that yes it's possible that children can project as a form of you know one of the coping mechanisms dealing with trauma and abuse however when asked specifically if she had ever experienced a situation where a child had wrongfully put projected abuse onto another perpetrator she said something to the effect of i can't answer that i don't know i don't have any experience with that because she focuses on interviewing children in a very limited period of time so the record itself doesn't even support this additional protection argument you have concentrated on to evidence but the judge second ruling and that was it was not admissible under rule for rule three which i think is perhaps the better application of the rules of evidence are you are you not interested in protecting that the judge's use of that or i do believe that the district court conducted especially a four zero three analysis i read the record or what's in the briefing and so forth and he certainly did i think the judge properly found in this case that confusion of the issues and i believe the essential risk of  trials of unrelated defendants were considerations in this case i would note however he was saying in essence this projection or argument is probably frivolous or something like that he did say with respect to the projection argument said that the court is not persuaded that any similarity between the allegations or the timing of a w s disclosures without more is strong evidence that a w conflated merged or confused the abuse allegedly suffered or fabricated the charges against tacos and again that's his order at fourteen he considered the probative value of this evidence and couldn't find support for it and that didn't change at trial and that's the  those circumstances prohibits the admission of it right that is a consideration that i believe goes to both four twelve and four zero three four twelve says that these limitations are appropriate as long as the restriction is not arbitrary or disproportionate the low probative value of it minimal if any goes to whether or not the restriction and limitation is appropriate there are also very similar considerations under rule four zero three but i believe the constitutional protection is really what for twelve is consider is concerned with in terms of permitting an exception and i don't think it applied here well you know due process is involved in what's admissible under the rules of evidence so there's a constitutional underpinning to those rules as well correct your honor yes and i believe that the district court did go through the analysis on both levels addressing the confrontation clause argument with respect to the for twelve  exception why it didn't apply but also balancing the four or three factors and considering the possibility of confusion many trials of unrelated defendants and again of course the big four twelve consideration which is protection of the privacy of  if she had been twenty years old i mean the age of the victim doesn't bring forth twelve into play any more than any other right that's correct your honor for twelve applies to all victims equally the judge did say in his order i find no reason and i again i'm paraphrasing but not to extend that application to what in this case is a minor victim but that's correct any victim who suffers this type of abuse should still have those same protections of rule for twelve but in this case the judge properly found that rule for twelve and considered the four for three factors but rule for twelve prohibited the admission of the unrelated and again unrelated is key here sexual assault by sheridan and the district court thank you let me address are a red herring by the government saying that the question in the second interview about other aspects of abuses and the record there's a painstaking offer of proof somewhere between pages seventy six and eighty where i said what that question was and what i believe the answer would be there's also a written offer of proof which is this the third cac interview about the shared disclosures and her interview with the f so the record is clear as to what two of the last two questions in that second cac interview in november of two thousand and sixteen was the record is clear that's not outside the record at all judge me i'm to just address your concern on the four zero three analysis this is not unduly prejudicial unfairly prejudice or meant to mislead the jury this is an alternative theory of defense when the government says this is a delay disclosure case a typical delay disclosure case i at them point needed the ability to argue it's not delayed disclosure it's projection it's a cover up it's something other than what the government at danced and for those reasons judges i ask you to reverse