the morning your honors my name victim in count two was not a minor at the time of the alleged events and the allegedly bends and did no later than october st two thousand and eight this indictment however was not returned for over seven years the initial indictment date was effective assistance of counsel on direct appeal and is a purely legal question and you can look at the record to determine it this court has recognized that it's an appropriate time to raise that this is one such case because there could be no reason for failing to raise a statute of limitations defense that would have completely barred prosecution prosecution for now we assume that the government will continue to argue as it did in its briefs that the unlimited statute of limitations in eighteen u s c three thousand two hundred and ninety nine dollars applies this argument is misplaced however for several reasons st when looking at the statutory context which the united states supreme court said were permitted to do in davis versus michigan department of treasury it is clear that three thousand two hundred and ninety nine dollars unlimited statute of limitations only applied to cases involving minors you can tell this st by the name of the entire act which was the adam walsh child protection act you can also tell this by just looking at the st paragraph of the act which says its purpose was protect children from  dollars involving a minor victim comma and then it says for any felony under various chapters and sections and so if what you're saying is right why would they specify minor victim for one of the crimes but not minor victims for any of the other crimes and the government makes that argument as the rule last and while that is a way to look at the statutes the clear direction of the supreme court in this court is all the statutory context and to read these statues in so that don't conflict with others show that it has a different meaning that that's the way you should interpret and so and everything else points to the fact that thirty dollars to ninety nine dollars only applies right do you agree then that as a matter of plain language looking at th ninety nine dollars and isolation that that statute does not support your position the only way we get to your position is by looking at what you were citing earlier i guess was the preamble or the statement of purpose and some of the other provisions in the statute no  i believe it's a poorly worded statute and i can see where the confusion would arise but just because it said as a minor so ok for kidnapping as they're making clear it doesn't say and this applies with other statutes that applies to absolutely everything to eighty two at all referencing on your on your purpose point not heard you mention this idea i hadn't looked at this particular point but you mentioned internet safety and it seems to me that the fact that the victim could be a minor has nothing to do with honors internet safety i mean and so i realize it's the adam walsh child protection act but it seems like the even the purposes that you're talking about are broader than you suggest maybe all it says it's like to read child pornography in internet safety i think those of us go together and child pornography is often an internet and children are people who prey on children a lot on the internet and so the general purpose was to protect kids i mean this is also that a malicious protection ac also change sexual just ration requirements if you've been a child predator the whole purpose of the act was to protect children and that's another industry it makes sense to extend the statute of limitations when minors involved minors often been a victim of someone that has a lot of authority over them so the same reasoning doesn't apply when an adult victim say they have more authority they have more ability to go report this in the statute of limitations  act itself some of these i found that and i did research on this on another case that some of these titles actually appear in the public law and some of them are actually added by the equivalent of the reviser statutes and for the us code i'm wondering if you know what that appears ok thank you we've looked extensively i don't think this argument has been raised very often that i could find in at least published opinions the southern district of california united states versus that and made reference to this and had been removed there was a serious question whether they could have admitted any of the alleged adult rapes in a child molestation case but even if they could have admitted under four hundred and thirteen the allegations in count t it would have made the allegations of what happened in india which i'll get to if i have time so extend it so far removed that was complete hearsay they never came to testify before a three would have required that that  be admitted in the trial and it also affected the sentencing guidelines i believe added at least two points to mr alston's offense which changed his applicable guideline range and the court was able to consider this under th fifty three as a conviction when forming the appropriate sentence so while its count one was not barred by the statute of limitations we believe the failure to raised the statute of limitations or count to affected the entire there's no more questions on the statute of limitations i was going to jump around a little and go the error of what i was just referring to allowing mr ralston ex wife to testify regarding what she claims happened in india there were two mr ralston and his wife at the time where luke lived in india and miss ralston who had just gone through a very bitter divorce with mr alston claimed that the housekeeper in india claim that he raped her and that he touched her daughter these people from india were never brought to the united states to testify mr ralston was never given a chance to cross examine them in any way the trial court did say it was limiting this only for alleged emissions made by him but that's not what ended up happening and the government ended up introducing it as if it were true arguing as if it were true and it was repeatedly exam on page sixty three  correct but he objected to this so today extent that council should have kept objecting we do allege it was ineffective but he objected to the india incidences coming in at all and so we think that that was error to the extent that once the government started to ignore the court's ruling he should have done something more yes we think he was ineffective and we think it's apparent from the record he didn't want this and no one would want to send in a trial and he tried to keep it out and the government started completely r it even in closing the government argued as if it were true i mean the closing i think was page seven hundred and twenty six they argue things you know because of his past actions with this person they weren't just arguing his admissions which is what it was supposed to be limited to they were arguing it as if it were true and the way the government was asking questions was eliciting responses as if it were true which is in violation of the calm confrontation clause just because they didn't say what did s court to clarence said such that it violates the confrontation clause and the government repeatedly did this as it related to the india and said that a legit incidence in india but i thought what did the defendant admit housekeeper information was just admitted by the defendants are all comes in the same admission but what the court specifically ruled is that he said this could but you can't argue it as if it was true and that's what the government repeatedly did and repeatedly had the witness ask questions in such a way that the witness would respond as if it were true and that was the clear ruling because these he's never been in he's never been able to confront these witnesses they've never been  him very briefly i would like to touch him in the preliminary hearing testimony of j j w is not one of the alleged victims in this case and she ended up not coming to testify  there was no showing that she was unavailable i think the statement was she was having some pre term contractions but when the f b i went to see her she didn't want to come it wasn't that the doctors told her she couldn't she didn't send a family member to tell the court come so there was no real showing she was unavailable and then allowed the introduction of her preliminary hearing testimony which again violated mr alston's right to confront these witnesses that the preliminary hearing she wasn't one of the  witnesses his his motivation at the preliminary hearing wasn't the same she references a journal that he never had access to and could never cross examine her on in the preliminary hearing because she never came to testify can i back up a nd though on the on the on availability point i have a note here that says that that at trial your client conceded that j w was unavailable due to pregnancy complications is that true at trial my client's counsel conceded which we do allege then would have been in effect if i say he can't waive my client's right to confront the witnesses i mean that's one of our fundamental rights that clients get to decide that's why and we call it as one of the boykin rights we have to list because that's such a fundamental right so like or for the government i'd like to st go to the last issue that was just brought up with the preliminary hearing transcript think the st issue is on availability and i think it's very clear looking at the transcript that the defendant did not contest the unavailable already the witness in this case the district court judge prior to admitting those who are unavailable and availability question the government record has been fully to follow her look for to address those issues here are one of the reasons the record hasn't been fully developed just because we don't know why a trial counsel may have preferred to have a transcript come in rather than the actual witness contest i and i think that that might have been a trial strategy on trial councils are to limit the testimony to these three incidents that were discussed in the balloon or hearing transcri address the ineffective claim issue the statute of limitations in however the government's position is that the testimony from victim number two what have come in regard less under four hundred and fourteen or thirteen so there may be a trial strategy for defense counsel job instead of there are many other statutes that were either modified her changed the had nothing to do with minors and as i as quite common often times when laws are passed it's not necessarily limited to what's in the major title of the b sometimes other statutes in other areas are either amended or new structures are created that may not directly deal with i think in this specific instance even though it was an act as part of the adam walsh child protection and safety act  v rule that the matters by which this witness would testify was admissible under or thirteen or fourteen and he was going to allow that he was also going to the record demonstrates allow a much broader questioning of this witness outside of what was contained in the women are hearing transcript made of will that be other prior acts of sexual abuse she had suffered from this defendant and other counties in kansas and what it also heard when she had prostate lines three sexual assault acts of which the defendant pled guilty to is what she would have testified to and that is what the counsel would have had an opportunity  to one of the other points that was raised by the dealing with the testimony by the ex wife regarding what the two women are the woman and the little girl in india all are i think with the crux of what and the district court gave the limiting instruction that those statements were only introduced to give context to the defendant mention in the defendant's admissions are admissible and the district court gave that limiting instruction and after the witness had testified to those matters and told the jury that those statements were not to be admissible after the truth of matters heard it over only going to have contact as to why the hear during the course of the trial once again defense counsel did object these detainees coming in under full for thirteen m or fourteen but never made an objection at trial as to any kind of violation of the confrontation cl that were brought up in regards to challenges to a misstatement in the opening statement of the government two statements that were in the closing argument and i believe three questions that were posed to witnesses i think are the government's brief adequately yourself and it's all my understanding from reading the record he was being called simply to refute whether mr ralston made admissions to mr ball he wasn't being called to testify at all about the charges against him he wasn't being called to testify anything he allegedly did the only thing that would come out as i guess he was in jail with mr ralston and so that's not a real chance of incriminating yourself could the government of cross examine him though and try to undermine his credibility by asking about illegal acts he may have committed that they knew about the courts are allowed to limit cross examination in these sorts of things and in the trial court even acknowledged that he probably could limit the cross examination the whole colloquy back and forth the trial court even admitted he didn't know how this really was a real chance of and so tell him to invoke the th then deprive my plan of his right to call witnesses against him o if the government relied pretty heavily and argued in closing that he made these invitations to ricky ball in prison that he did the stuff in count one but he was going to have people make an alibi for him and mr johnson was going to come and say i was in that cell with  all the time and that never happened how do we know he was going to sue well that's what trial counsel and i was looking for the record say but i couldn't find it that quickly but that's what i believe trial counsel said that the intent was to call him a trial i see i'm out of time but i'm happy to answer any other questions you'll have i see no thank you thanks both counsel for the arguments you provided to the court and openness understand the issues in this case