good morning your honor may please the court my name is david shannon i'm out with the federal public defender's office in tucson i represent the defendant below the appellant here mr norris i did not represent him below he was represented by  any one letter we did no supplemental briefing there's an issue that is not in the briefs that under the fairly unlikely construction of book or might be of interest i'm just going to mention what it is the  one of the enhancements to the sentence in this case one of the sentencing guidelines was that the child in question was under in custody and control of the defendant there was testimony to that effect but the jury was not asked decision there been some district court cases applying sort of in a print the issd guidelines system under booker i think that's an unlikely result but if it were the result that issue was surface in this case i'm not going to argue the issue  one strain of cases that has come up as been a situation where you know i think a fairly strained construction of broker these records have said that they are going to treat the guidelines as advisory but they're going to calculate the guidelines it pretty much well yes and particularly if the court decides that that's going to be the sort of across the board result in many of these cases what i'm pointing out is that there's an issue in this case about that particular enhanced but that is not brief because it was a no what i would like to turn to first is the two related corpus like the issues because they have the most i think complex factual underpinning and of perhaps the most difficult to understand on a cold record what we're claiming in these two separate claims is first that there was no purpose like evidence to support the confession in this case and the confession was the only evidence for counts two the child did not testify to anything regarding counts two and three that is also important for this issue is also important for count one but in a more attenuated way because we're claiming that that same corpus and the like die principle should be a requirement when evidence is admitted under for fourteenth let me turn directly to your question about what the child did say and what the child did not say well first as a purpose for a matter i don't think my briefing was as clear as it should have been on what the requirement is under corona garcia but under corona garcia the requirement of additional supporting corpus collecting evidence is twofold and it requires independent evidence of the core elements not all of the elements of the offense and that's where corona garcia makes its mark but there has to be some evidence of the core of it it's our languages it fortifies augments our support right well that is part of the language around well that's language and we're going to be look at what happened in corona garcia and what the court said about the elements prong the court said that independent evidence was not necessary to establish the whole of the corpus collector but such evidence i e independent evidence mu and what the court looked at in making this analysis is corona garcia they looked you know under the first prong as to whether there was evidence to show that he had in fact reentered and that is the evidence that was found sufficient in corona garcia there was actually specific evidence to support the core element of the offense if i understand you correctly what you're saying the modification of corona garcia goes to the second element having to do a trust waiting in part your hon support the trustworthiness of the confession ok the first prong is that there must be understand with two prongs are and i understand with the current i just want to know if your reading of course corona garcia was different from mine and it isn't so i started on my question i couldn't hear that last i withdraw my question the so the element under quote i see it is that we have to have some evidence not just the confession some evidence related to the core elements of the offense turning then what we actually have in this case the government has alleged in its brief that there were three segments in the transcript where there was supporting evidence but this is just not correct they discuss the testimony of the mother which i believe is in the excerpt beginning at page one sixty eight but what actually is said in the next work at pages one sixty seven three one sixty eight is that the mother is asked well let me let me give a little more background as to what she was asked about she was asked about a prior molestation of the child by the child's father which had occurred one year before the alleged thanksgiving molestation in this case and she was she was asked about that and then she was asked no in between those two were there any reports or anything from school any indication of anything wrong answer was no that's on excerpt one sixty seven she was asked if there was any unusual behavior she says no that's one sixt something specific if i could and maybe you could answer this question would help me your argument now doesn't go to count one it seems to me that that's a very weak argument to say that there is not some one of the core if it your argument goes more to two and three that's correct ok we do have one piece of evidence of opportunity that is the victim was in fact with the uncle but you're saying as i understand it that there's nothing in her testimony other than the thanksgiving episode nothing in that testimony goes to either two or three the summer episode or episodes that's correct although i do question the evidence of opportunity because i have examined that language which is on page one sixty eight extensively i mean the testimony was she was up there and in the summer and i think i suppose that is some evidence but let me get  tribe i don't believe it says in the summer she was asked if the child had been with the defendant at other times and she said yes to all she does not say anything about the summer or any period of time so that at least corroborates that she had been in his home and the times ok now count number two goes to what type of action activity i believe count two is the i may have them reversed your honor one is the manual touching and one of the touching with the penis ok so one is the manual touching let's focus on that in her testimony she talks about manual touching there's nothing in i think count three is the one that's manual typing i could be wrong there's nothing in her testimony about count one of manual touch so we do have are testifying to manual touching at some time there is a separate count for manual touching why isn't that sufficient of the core evidence that in fact she was manually touched at some time and that time was not during count one apparently because you did not testify to that or it's not charged your honor it is not charged in count one but i disagree with the characterization of the testimony if you look at her testimony there are two segments of it one is pages one ninety three one ninety four the others that are on pages two hundred three two hundred and one ok if you look at what the government relies on the government cites page one ninety one three one ninety four but does not cite page one ninety if you look back on page one ninety this is in the girl's testimony she is being asked about what's yeah did sex to me then ok and did this happen one time or more than one i think once not once i think once now then you have to go back to what she's talking about he had assuming that it's very broad that it meant everything but that isn't necessarily so's sex may need the actual touching not the hand so you know i'm i'm not sure i'm not sure in my own mind that that argument carries you as far as you'd like to have it don't we have to consider the circumstance here's a seven year old girl in a court room in which the defendant is or uncle in which there's apparently a three was alleged as having occurred in the summer and the issue we're talking about here is the corpus intellect evidence supporting the confession which dealt with the summer so the  the victim say anything about anything happening in the summer anything that might support what the defendant confessed in the statements that were questioning if you look if you read this straight through from page one ninety three one ninety four you see what is happening the prosecutor is asking the girl about what happened on this occasion and she recites all the things that happened and she has asked again at the end of it i think on page one ninety that this happened once or more than once and she says once and i think an important thing to look at would be to think of how did this appear to the district judge and you can find that out at page two fifty nine where the argument if she didn't she doesn't mean that on another occasion the handlers you are one would just have to read the testimony but if you read it again and particularly look at the two hundred to a one i understand i've read it and really read it it just seems to me general which i would expect from a seven year old that could go either way but that's the reason she's on the stand and why they the defendant has counseled and has been a trainee to be able to cross examine her and bring out the specific that you wish to argue now if he doesn't do that why can't we just use what we would rationally think a seven year old is talking about unless there's something more specific well your honor the district judge who saw this just mon is that regarding count three this is according to this judge as i remember the testimony she said that she was given a couple of opportunities to say whether or not this conduct ever occurred before and i think she insisted that it had not and i think that is a fair reading of what is in the transcript and i think it's not a fair reading of the transcript to say that anything in there indicates more than what happened in thanksgiving time of two thousand the other thing that happened in this case regarding her testimony is that the prosecution asked her you say why didn't the defense go into this the prosecution asked her a number of times as the judge mentions there tried to get her to say that this it happened on more than one occasion and she said no it would have been foolhardy for defense counsel to then step up to the podium and say please tell us you know let me ask you one more time didn't this happen more than once that would have been insane from a point of view once i don't agree with that your honor the you know i just read it she said i had sex i'm not sure exactly what you mean with that she was then asks reciprocally to draw on a chart when it happened and there was no thousand and the doctor's testimony all fits in with that the i think i've come close to the in my time i would like to have a chance to respond to what the government as a safety thing about these factual issues so skirt these events occurred seven years old when she was testifying her uncle was in the courtroom i think it's understandable that she testified to three instances of criminal con contact sexual contact with her she was unclear with regard to time and one of the incidents that she talks about namely that the defendant put his penis in her mouth and peed in one is online nine where she testifies he put his dick in my private thing and on line eighteen and then when she's asked in my seventeen did he put his dick anywhere else she says came were completely voluntary they weren't coerced in any way they were certain the government would submit that they are actually reliable in themselves because they were against his penal interest and i believe she also says on those pages i think she says that this was happening at the defense house which is another thing  and the mother of course testified that that if and that this is one thing that i wanted to point out also the mother testified that the victim was at the defendant's house in the summer of two thousand it wasn't at the pages referenced by plans castle which let me let me have less of a specific question in that regard i can see the argument is we discussed with counsel about count three the hand episode is specific and that's when the count too has to do with the two at the different time in the summers distinguish from thanksgiving well that was one of the cans in the summer of two thousand so the mother did testify that the victim that the opportunity was there because the victim was at the defendant's house and summer of two thousand that's one piece of corroboration and the other piece of cooperation is just the general coop of the victim's testimony in confirming the sexual assaults generally let me see i said let me see if i argue i don't know maybe you're right but if i understand your argument what you're saying is there you've got it one you've got  three and there's some general there's some general discussion we don't know where ideas but that should be sufficient for two that he doesn't have to be specific he put his penis into me in november and the following truthfulness of that fantasy confessions because we have to remember that senate confessed to that act and this wasn't something that was elicited out of you know from by torture or some kind of coercive circumstance which is what the the rule was intended to avoid i understand that argument i want to know what's your closest case that would allow us when there's not a specific corroboration for a core crime in one count but there is in two other counts that this the generality of her evidence is sufficient to cover all three what's the best case  well i think th details of the confession standing argument that's correct i think it's just to ensure that the defendant isn't just making all this stuff and since since he's not making  penis to her private parts the second is summer of two thousand which is also clean as to her private parts and the third is planned to private parts also in the summer of two thousand now i don't see anything in there that would suggest oral sex as to which she testifie uncharted counter was already counting back for that isn't charged and i think that just is probably the result of the nature of this kind of offense and the testimony of of all of us all of the testimony that she offers that he that he put his penis in the general corroboration that provided by the victim's testimony as to the one time that this happened if there was a sexual assault and the fact that there were other instances of sexual abuse corroborates his confession is generally as does the fact that there was an opportunity the fact that she testifies to conduct that is uncharged should corroborate context which she cannot testify she does not testify well it may be because she is young and she's confusing that contact with other contacts but the basic argument is not necessarily that that testimony about themis in the mouth is necessarily corroborative but just the fact that she's testifying about being and that in and we don't rely necessarily on the specifics of her testimony as much because of her age and the circumstances of the trial with her being accusing a relative and so on and so forth and is i understand it your best case for this is lopez alvarez that i can say right now your honor i've just read lopez alvarez again or parts of it that i was interested i conformance with the traditional test sufficient evidence just damage the criminal conduct the core offense has occurred and what you're saying is because you establish that four counts one and fo you're the government's representative you've got to tell us what's your best case and we only missed what you have to say i want to throw all those out there ok as far as you know i don't i don't know if the court would like to hear about any of basically asked and this could contribute could have contributed some of the confusion in the victim's testimony there were other instances of special salt that were precluded that the government was precluded from getting into it dealt with the defendants relatives  you know i'm not familiar with specifically if they are the facts of the case to support the facts of this case so i guess why throw all of them out there but i think that both of the language in both of them supports this case  pardon your honor so i think that the only thing that hasn't been discussed regarding these facts i'm not going to go back over the facts i think we've all pretty well beaten them to death on this but the one other place in the transcript i would the matter and there are two things about that testimony i would like to mention one is that they say that the defendant admitted to contact with the penis and contact with the hand  do not say that he said anything about oral contact and i think this goes to the issues being raised about what sort of contact that the victim talk about and how it plays in with the actual confession the other thing is that the agents talk about the november of events and about one time in the summer they actually talk about one of them in the summer the one confusion in there is that one of the agents talked about november twenty fifth and i think the other one mentions to temper twenty fifth but i just want to caution that he also says he's relying on the other agents report and there's another spot in the transcript i think i think it's or at in the excerpt at two fifty nine where the judge refers to that as the confusion about the date and i don't think there really is if you read the whole thing i don't think there really is any confusion they were both when the agent used september twenty five you really meant november twenty five he was question and he said well i'm relying on his report i'm not sure about the date so that's september twenty five data sort of a red herring in there and actually i guess the facts are what they are we may read them the same we may read them differently but i think a fair reading not isolating the statements of the victim but reading them all together in the case that she also was talking about just want to tha you counsel thank you may please the court my name is dan shot it's my pleasure to represent mr charles manson and these three consolidated appeals there are a number of issues raised by these of peels and what i would like to do is  skip a little bit and go right to the skirt argument or the third issue raised in our goal which is whether or not the arizona district court judge erred in his application of the arizona statute of limitations