of aggravated sexual abuse of a child under twelve attempted aggravated sexual abuse of a child under twelve and abusive sexual conduct contact with a child under twelve these were all children who were younger than twelve as indicated by the  related to him and some regard so we have three victim witnesses the first one was sh she testified at trial that my client had made contact with her so actually while they were looking for an i pad and the second victim witness were two counts are it was made allegation wise by her that she had been molested while sleeping in his living room and also that he tried to attack her in a barn the third victim abuse of sexual contact under twelve with a child under twelve she alleged that he had touched her inappropriately while she was younger these alleged victim witness victims all testified in a manner that was consistent by their child advocacy center forensic interviews the three children had interviewed after these allegations were made with forensic interviewers there are two separate ones two for two that they conspired with one another to come up with these charges and three that there were new allegations that came on after the child advocacy center interviews all of the children testified consistent with their i with regard to the allegations being admissible under the second part of it all one d one b i to these children would not have had their interview testimony should not have had their every testimony submitted so as to bolster their credibility looking at the trial testimony of these children were not impeached by any inconsistent statements between their trial testimony played yes and i wonder why there are not that's just invited air that you know he never he never jacked it he seemed to be fine with it because there is this there is this theory as you mentioned earlier about the  victims getting together and spiraling and so it seems like the district was doing what mr spotted bear wired with respect to that one right with respect to that one you know i was not tribal council so i can't speak for what was going on in mind with regard to playing the entirety of any cheese video that would follow the rule of completeness i thought he said you know hey this is going to be played so we may as well play it all you know he did not object and this is a plain error standard of review case i believe that it's a forfeit sure and not a waiver because i don't know that the rights were known as to what was being waived at the time that it was at the at the time that the the forfeiture was made as to errors as to rights that were being waived if that makes what do you say about well obviously wrong i think that the the the facts and thunder are different enough here in this case that it's not a political and got to be obviously wrong so tell us how it's obviously different well it's obviously different in that the prior inconsistent statements were entered not prior consistent statements the interview of the forensic interview was seventeen days after the alleged  they hear it once on direct testimony and then they hear it again when it's played in that interview and it plays five six times i mean this gets into a case where you know it made the difference they said that it wasn't  cumulative but that based on a he said she said with no forensic interviews and no witnesses or no physical evidence that it was that extra helping that was contemplated in ramos her of all where you know in a case where there evidence of overwhelming guilt maybe it doesn't matter but in a case like burrs here it does matter and i would submit that in this case these sex abuse charges were years old they were made by children who were remembering back to when they four or five or six years old when they were twelve eleven and twelve that i just think that is just not it's prejudicial it's extremely prejudicial when these are repeated over and over and you know i want to other even if it's hearsay evidence so other people testifying to what the victim sad and you did here have you know family members and others talking about the exact same things that appeared on the video are very similar what  do with that it seems to me that the videos when you when you add in that the victims themselves testified that there was other hearsay evidence that was objected to not being challenged that we have a lot i mean it's hard to prove proof substantial rights am i wrong about  that that is very true as far as being able to prove substantial rights but in this case you know the family testified as to prior inconsistent statements the prior consistent statements are the issue here you know like i said four five six think that this can just be kind of an extra helping i mean it does cumulative so under that it should necessarily be testified to yeah i understand you were talking about the residual hearsay i was getting more and maybe the answer is to say more to the plane air standards and the third prong of substantial rights as your does your answer change in any way with regard to that or would you give me the same answer the way i would do yours and some of the same answer i mean you know it seriously affects the fairness of the trial when you have victim testify times five versus saying it once and then having it again i think that substantially affects the outcome of the trial you know and the other issue that we have here the alleged victim testify they had the defendant testify and then her state statements came in through an interviewer and again back to thunder her saying that testament was through an interviewer not the child being i see that i only have four minutes left and i would like to reserve some time during the no other questions ok thank you found mr spotted deer guilty the ultimate question for this court is can it be plain error if the death and want of the evidence it mid and under united states versus even sinned this court last year held plane air relief is not available in cases of waiver because we're having an issue extinguishes any potential error and leaves nothing to correct and what i'd like to point out to the court is that this was a decision that the united states introduced the evidence not to as a prior consistent statement it was to rebut certain allegations that the defendant made specifically that these three young girls had concocted these allegations together and it was in part largely due to the fact that the appellant wanted this evidence admitting that trial prior to trial the united states defense counsel and the court held a hearing outside the presence of the jury and where in the united states made it clear that it had filed previous notice of intent to offer the forensic interviews under federal rule of evidence at all seven however we were not going to admit those recordings absent three circumstances as is kind of stated in thunder horse and some of the other  that whether the girl stated they did remember they were non responsive something was different or if the defendant opened the door and united states versus smith is a case that i'd like to highlight because it was very similar where the court this court held the district court did not air when pursuant to federal rule of eighty seven and thunder force it admitted a video recorded child forensic interview specifically because throughout trial the defendant placed the issue of the victim's credibility in controversy which allowed  there is a highly deferential review however in this case it was invited because not only did he not object he specifically wanted portions and even though the united states had redacted certain portions of the interview because they referenced another victim that was alleged to have potentially been abused is it because he failed to jack to the other portions and wanted a specific portions played is that not so i mean he invited the air as to the portions introduced by the government do before trial in this case the united states talks with the defendant about hey i don't really intend to offer these interviews unless you bring it up and make it into an issue and then he does i believe it allows everything to come in because not only did he want to include other portions he before we the united states even ask the victim or even bringing up an opening statement he's telling the victim he goes you went to a forensic interview this is been recorded we could show the jury all of this at that point he's been arguing you concocted this allegation with this with these other girls therefore there's something in this video that probably is beneficial for us at that point it allows us to bring in that interview to explain in rebut that the fact that he was she was not  about how she'd said something different that the prior interviewed actually would proceed in that motor to fabricate but in this specific instance the way it rebuts is because it shows the full picture it rehabilitates it explains the entire avenue how  allegation came forward the individual who wants this item in wants it for a certain piece they don't object to it's plain air and then they go so far as to say we want to specific portion included because we're saying that everything is a big conspiracy this interview there are certain portions in the interview where the victim describes certain things talking about how she does not necessarily want to talk about certain things it shows a difference in demeanor that although the defendant is making the argument she's trying to concoct this story with another person her demeanor in the interview is absolutely different it showing that there are certain things she doesn't want to talk about there are certain things she's embarrassed about which were but the the idea that this was some sort of deviation from the rules specifically that would show that was plain because it was admissible under federal rule of eight zero seven under us to be thunder horse which shows that if there is a statement that is more probative on the point than any other evidence that the general purpose of the rules and interest of justice can be served and it's evidence of material fact coupled with circumstantial guarantees of trustworthiness which is what thunder horse talks about it's admissible and the circumstantial guarantees of trustworthiness in thunder horse go to the forensic interviews themselves whether or not they're trained forensic interviewers they ask non leading questions whether or not there can they speak consistently about the events in the interview as they do it at other times and how quickly or how the length of time between each of the interview in the outcry and i think most importantly is that united states v smith case again which goes into show that if the defendant makes it a strategy to attack the victim's credibility then the forensic interviews can come in to a bot to clarify those issues and the issues in this case are that the forensic interviews were closer in time to the outcry they showed a different demeanor for each of the the girls than than the defendant wanted to portray that these were people who were vindictive trying to get him i think there was some argument made in about potential money that he might have you saw three scared girls who really did want to talk about what had happened and demonstrating to the court that this was not something where we have a a grand conspiracy and in terms of the last point i'd like to bring out is that the prejudice angle i don't there is no prejudice for the admission of these interviews because mr spotted byram self testified at trial and when he testified he corroborated almost everything the girl stated with the exception of the sex act for any age she he specifically talked about how she slept in his living room when he would drive he would place or on his lap the incident in the bar n he talked about and how it was there was a time where she tried to get away and he grabbed her arm and pulled her back he remembers her pulling out or smartphone calling her grandfather and then for eight she remembered the incident about getting the pad you remember the incident with m s where she was there for thanksgiving that he went up stairs with her they wrestle around with her and her cousin and all of that demonstrates that if this is not an extra help helping like in or or some of the other consistent statement cases which would in some way say you've heard it more than one time therefore this is prejudice the defendant's own testimony corroborated so much of the victim's  own testimony that it's not prejudicial to have the forensic interviews in and ultimately this case is not where we're even if it was there was airier there was some deviation from the legal route rule whether there was in fact prejudiced because ultimately appellant had the chance to object to all of these interviews the united states made it abundantly clear that it was only going to introduce these these videos should the defense open the door or something come up and the united states reluctantly introduce these interviews after the defendant made it a general part of his trial strategy to say all of these girls are colluding they are talking with people to tell them what to say at the forensic interviews the united states then says all right now that they've made it a point for the jury to consider we have to admit this evidence to clarify to the jury what actually happened in these interviews because if there's an unanswered question for the jury they may think that something happened that didn't and that is what the united states did not want to leave the jury what about the third requirement the player standard as you know and i you heard me talk to opposing counsel you have a lot of hearsay it doesn't appear that much hearsay was was excluded maybe i'm i'm misreading the trial record here but there's a lot of hearsay they came and but a lot of it's not being challenged and a lot of it you know a lot of it's not before rights and i would also argue that also at trial when the appellant testified and he brought his family members to testify they equally brought out additional hearsay statements that would also go into that vein and pending your questions your honor i would ask this much hearsay ended up coming in your honor i think that goes to the point of the the united states argument which is the defense at this trial was all these girls got together colluded that they made up allegations after the fact and they were going after mr spotted bear and potentially for various reasons and i think the reason to not object to this evidence is to further that defense and to further that defense although it may not be a defense that that it did not work in this case it doesn't mean it was necessarily a bad defense because when three say that you've molested them you have to come up with a defense and the defense was they were conspiring and all of those hearsay statements everything including the forensic interviews furthered the defense's argument and although it may not have been in one of the forensic interviews he's right and there's a couple pieces i think in the end a cheese interview in there might even be in as his interview where they're talking about how well i believe if he's there i know it's at least in n h where they talk about the boys and girls cross examination it absolutely could have been why do you think that your great idea let the three videos i can't speak to why the defendant did not object at the time i'm just my argument is that it was for the benefit of him to make  big greater argument of a grand conspiracy i'm ultimately we just don't understand how the videos help that theory you're saying it's because the one piece of one of the three videos had or that one reference to the girls together yes or no there's also a portions where they keep talking about other individuals there is the idea of the united states needed to get more evidence so there's times in the forensic interviews where they bring up individuals name to go look for there's a part when we really doctored some of the forensic interview for additional people that might have been victims there was talk or the defend it one of those in to explain that the united states didn't chase down every every lead those sorts of things and that this idea that these these allegations keep growing bigger and bigger and so that was another reason to bring in the forensic interviews of us to show that these allegations were actually being bigger and bigger they were consistent with the the the in court testimony and ultimately it rebutted the conclusion argument we have in these cases of the government is always trying to get in this hearsay in these child witness cases to bolster the children because it's usually just the child witness and maybe there's some forensic evidence but we've got case after case where they government tries to get in the interview or to testify or the video or the other people and it's potential there's a potential for abuse there is your and i would say that under normal circumstances absolutely there is a potential but in this case the united states took specific steps before trial to provide notice to the defendant twice that it intended to introduce the videos when before trial it said we're not going to unless you either open the door or thunder horse applies and then the defendant does not object and incorporates it as part of his trial strategy that places it in and then he specifically is the first person to mention the forensic interviews to the jury it puts the united states in a very difficult position as to what to do then do we not play the forensic interviews and  defendant bring in this idea that there's something in there that that that's not or do you leave it up to the jury to decide because ultimately really dealing with playing you on it it's not opening it's not evidence but his first question to n h he was these interviews were recorded we could show them to the jury that implies that there is something there more than than just initial law outcries it also it shows that he wants them into further his argument and so that should be held against the thank you with regard to mr connick argument i do not believe that the door was opened by defense counsel in this case he did say mention the videos and he asked and i believe it was about the videos but that was more of a situation where is he is she going to testify truthfully reminding her you know that she made these statements earlier  the out of court statements with regard to mr spotted bear corroborating information on on trial i don't know that it proves anything by him being like oh i remember the situation but i remember it differently with regard to whether or not a success act was committed i don't think that proves anything here again which i have referenced many times the the debate over what happened was entirely the same between here and the alleged victim in that case except for whether or not the sex was consensual so that even agrees that they had sex i don't think that burst years testimony made it more likely that he was guilty than not guilty  with regard to the video as it relates to concocting allegations the videos don't show anything with regard to whether or not these girls all conspired against him and they also show  related to whether or not anything was concocted after these videos  they may just have a moment your honor rumors and if we go back to rule it out seven with the residual exception first of all that analysis was not conducted by the district court so we don't know exactly how it would have rule but with regard to eight zero seven eighty four admitting it will best serve the purposes of these rules and the interests of justice i worry that you know seven is going to be an end run by the government in any given case despite what the rest of the rules state the purpose of these rules is not to have met prior consistent statements except for into an inch or two to into on instances and in the interest of justice i just don't think that