cases to be argued this morning but we still want you to stay within your time because we know they have other things to do today to withdraw first case for today which is united states  hotly contested at the trial the defense presented contrary evidence to the government's testimony about the abuse and so that really leads me to the context of the first point of error in the brief which has to do with the government's presentation of an expert witness dr shannon to talk about trauma bonds and a doctor walked in our own words was presented to tell the jury about the dynamics of the use of relationships and to give it what she called a general description of what's out there in the field of psychology she talked specifically about trauma bonds and what she the words of the rule of the expert has reliably applied the principles and methods to the facts of the case the government would have this court right that portion of the rule out of existence in that perhaps leads us to the old saw that it's close enough for government work if we've got three out of four of the provisions of the rule but we don't have to meet the fourth prong or you're right dr wolfe never said anything at all about this specific application of her trauma bonds to the witnesses in the case she never examined the witnesses she wasn't asked hypothetical questions about the witnesses she didn't review any records about the witnesses she just gave some general testimony about witnesses to talk about how they were psychologically and physically course the defense could all witnesses to talk about how that wasn't true and there was no psychological or physical course and and so on in the government comes along with an expert who apparently was on willing or unable to say these witnesses really did suffer from trauma bonds but talked about how with if someone's traumatically bonded to an alleged perpetrator then they may stay with that person for example for years which is what these people did with mr moore they were they lived with her in her home for a number of years and even after they left the home they maintained contact with miss moore and so the expert testimony while it lights in some way sound helpful it really wasn't in this case because it was really designed to bolster the government's case and explain why these witnesses who claim they were being abused didn't leave for years and then came back and maintained contact with with mr moore so there was no objection that it was a relative you know there was an objection there is a pretrial motion that was filed on that and judge o'connor held a hearing  on that motion and determined that that testimony would be allowed in part of that motion did say that it was irrelevant because it wasn't applied to the facts of the case and the i don't think this court and i ever issued an opinion saying you don't have to have part four of the rule in order to admit expert testimony because otherwise and so the defense could have called let's assume it was error for her have a group of people saying they were psychologically chorus and a group of people saying they weren't psychologically course and now all this and we have an expert that kind of implying that the psychological corps in is true and  the district court allowed that testimony to be presented to the jury without any application of that testimony to the facts of the case you have an expert with mr murray did have an expert witness but work from this where they were part of the misnomers family or extended family if you will and there was no psychological or physical cores i mean that was the way testimony that was presented from the defense to the jury  that the experts in my opinion the harm comes from the expert tipping kind of the balance and putting some imprint tour of reliability so to speak on what these these witnesses testified it had happened  psychologist come and say the witnesses were bipolar and because or bipolar they're likely to make up stories and and you can't believe them without ever examining the witnesses or responding a hypothetical questions based on the facts of the case or reviewing records just throw some psychologist up there to put a theory out there for the jury to hang their hat on and i think that's what the rule is designed to prevent the government  to the commentary to the rule in support of this idea that you can put a teaching expert on and there's nothing wrong with that and of course the commentary is is contrary to the plain language of the rule even kinda like the government writes out the fourth prong in the rule the commentary cites absolutely no case for that proposition and and if you read all the commentary about all the aspects of the rule and other aspects of the rule there are cases that support the commentary there's no case that supports that aspect of the commentary and then the commentary if you again if you read all of it is it's contradictory in that  there is for example an example in the cut and the commentary about a government expert being called to talk about the use of code words in a drug transaction in the commentary says that that is in midst of all of the testimonies reliably applied to the facts of the case and to explain the the application of the of the rule if if the government's allowed just to throw a teaching expert up there to bolster their  case then we create a situation where both sides can just put put experts at their like i talked about with the good expert saying that the government's witnesses are bipolar or have some other and that's something that the rule doesn't allow so i would urge that there was a error based on the government being allowed to present an expert witness to bolster the government's case without the expert applying that and use that to explain why these witnesses did what they say they did these witnesses were in counseling and receiving apparently psychological services and so we have a point error to gether it seems fundamentally unfair to allow the government to put on psychological testimony on the one hand and we know that the witnesses that psychological testimony is at least imply it only talking about these witnesses are in counseling or receiving psychological services but then were denied access to those records that could be used to show how these people did not suffer from trauma bonds but we weren't able to to re you know then the government's going to be entitled to those records and b and be able to contest it and so to me it's the same thing you've got complainants coming in here saying and there was testimony at the trial about their psychological and what you know what they experienced and and they testified about going to mosaic legal services her family services for help in deciding whether they were victims of human trafficking and they were in counseling it is just fundamentally unfair to allow the government to present psychological testimony and then deny the defense the best have an edge to to rebut the testimony which would be whether these people really are traumatically bonded in and that's what without ever having seen those records are going to we haven't been given access to i would suspect that that would be the best evidence as opposed to calling some other experts saying oh no there is no such thing as trauma bonds let's see what's actually in those records to see if these people really do have some traumatic bonding in this war and to kind of continue to the government for prosecution again without allowing the defense to have access to any of their records to see if the story that mosaic packaged up and put together and sent over to the government is the same now as what these witnesses are testifying about in court here there was no way to test that because all the mosaic records except for a very tiny fraction of them were withheld from the defense based both on psychotherapist patient privilege and attorney client privilege when mosaic was really kind of the instigator so to speak of of that so you're not disputing that they were talking to counselors and little i mean you agree that that's who they talked to  gave and i think it can be why those conversations if it's if you get on the stand and you talk about hey i went to mosaic and i talked to counselors and lawyers and and i went there was one thing to say i met with a lawyer it's another thing to discuss they they they admitted in testify that they went to the lawyers to talk about whether they were victims of human trafficking which was the same issue that was in play at the trial so there it's clear that's what they were talking  go over the united states judge dennis you're exactly right that it is well settled that a teaching witness may be used in cases where they're explaining a subject that is not within the common common understanding of the lay jury if that testimony is reliable and fits the facts of the case in the witness is particularly qualified to give that testimony that has been the case in a number of decisions from the northern district of texas a decision from the southern district of mississippi a position from the district of kansas in at least a decision from the southern district ohio of ohio and in fact one of the cases upon which mr muir relies is united states versus cuttin us from the eighth circuit in that case the circuit indicates that a teaching witness under this advisory committee no to rule seventy two would on occasion be appropriate in that case for reasons specific to that case it was not appropriate but the court indicated that the work asians were teaching witnesses would be appropriate and i believe this is precisely the type of case where teaching witness was appropriate because subject of trauma bonds is not something within the common understanding of a jury it is a technical psychological concept that's been the subject of a great deal of academic research and peer reviewed articles and something on which dr wolf was credited expert and she testified that was a recognized concept in the field of psychology so she gave this general explanation of the field of trauma bonding which helps put into context some of the previous testimony the jury heard from that somehow vitiate the rule seven o two expert principle applying to her when she initially challenge dr wolfe at the trial court level she argued that if dr wolfson were able to inspect the victims and to that she should have all of the psychological testimony in there and her information about trauma and she should have applied that to the facts of this case that's what i understand their argument to be so whether whether it whether she examined the victims or review some records or listen to the testimony of other witnesses and then gave an opinion based on having heard that testimony their argument is that all of that information about trauma trauma guns was never applied to the facts of this particular case that's what i understand argument to be my misunderstanding your not your honor but the point i was trying to make simply was that they made the opposite argument the trial court level and now that that argument didn't work for them and the government decided to use the dr wolf as a teaching expert are now arguing the opposite that she should have actually examine the records and opined on whether or not they were subject to trauma bonding where she pres and i think with respect to the trauma bonding misfires counsel does not give sufficient credit to the fact that she was subject to cross examination the victims were subject to cross examination she was allowed to present her own psychological expert to talk about trauma bonding the jury was left to make its own decisions there is no imprimatur of authority when dr wolfe was subject to vigorous cross examination as were the witnesses in this case and to judge dennis to your point i don't believe that doctor was irritable out dr weil to testify but even if this court finds that it was an error her testimony was not the focus upon which the government's entire case turned the court heard and the jury heard from the victims that are very compelling testimony from the victims and corroborative witnesses and they saw  discipline on tape which showed sort of a microcosm of all the abuse these witnesses were subjected to so i don't believe the doctor was ever to allow doctors to testify but i certainly don't think that the court ought to reverse on the basis of even finds that there was there turning to the to show completely that mosaic or the clients waive the privilege in any way either explicitly or implicitly miss mira seems to contend that if somebody speaks about a subject with a third party and then goes to an attorney or goes to a therapist or goes to a doctor to speak about that same subject that if they ever talk about that same subject outside of the scope of the privilege and the privilege is somehow auster case this court found that a troubled person who was going to therapist and making threats to his therapist about third parties didn't have a reasonable expectation of confidentiality when he made those threats because he well knew and this was stablished on the record and footnote to the case that his therapist had an ethical duty under louisiana law to turn over and warn people about the contents of these threats so the court found that there was no expectation of confidentiality when the person made these threats because he knew he well knew that the threats were going to be communicated by his therapist to third parties and they were in fact communicated to third parties in this case there's nothing actually on the record that indicates that the people who went to mos knew that anything they said would be communicated with third party or that actually was communicated to a there's a number of places in the record which mysterious sites that you relies on upon very heavily to indicate that there was some sort of privilege waiver for example on page fourteen twenty nine there's an indication that mosaic services put in victims in touch with a homeland security agent but all that is said on that page in the record is that simply that they were put in touch with the homeland security agent there's no waiver there's no indication on the record there or otherwise that any confidential communications were ever disclosed additionally with respect to the attorney client relationship that's established by stipulation of the parties reached on pages twenty thirty one and twenty thirty two of the record of the attorney client relationship exists and there is additionally no indication on the record that anything that was discussed with the mosaic attorneys was actually disclosed to a third party no respect did harmful effect on the necessary trust relationship that should exist between a doctor and their patient a therapist and a client and an attorney and their client which would have is if somebody went to their attorney for a problem or went to a doctor for a problem with a very sensitive nature and then they talked about that subject matter later in court they disclosed let's say a sexual assault to the police anything they told their doctor anything they told her attorney would necessarily be waived that would expand this circuits waiver principle i think far far past it's ever gone before and it would narrow the privilege doctrine to a point would be nearly meaningless i'd also like to discuss the brief challenge comment that the prosecutor made during his closing argument this comment caused no prejudice to miss me around because with that comment the prosecutor was merely attempting to explain the technical difference between what the jury could consider and could not consider when it was reaching a decision on  prejudice analysis it looks at two disjunctive factors looks at whether or not the comments have the prosecutor the manifest intent with that comment to focus the jury on the defend its is not to testify or whether or not the common would have naturally and necessarily focus the jury on that subject  with this comment the prosecutor when the court considers whether or not the prosecutor the manifest intent it looks to whether or not there is an equally plausible alternate alternative explanation for the comment and if it finds that there was an alternative explanation of the comment than it finds it there is no manifest intent and here the comment has a plausible alternative explanation immediately after the objection was clarified it's on pages twenty five twenty three and twenty five twenty four the record in considering the comment in its context the prosecutor just heard the defense make a significant challenge to the credibility of the government witnesses so given that the government was about to challenge the credibility of the defense witnesses it was important for the government to explain the technical difference given witnesses so after the objection was clarified the government and before the government even got an opportunity to explain its comment there was an immediate objection and that was clarified and then the government got to explain and provide this plausible alternative explanation once that occurred it did not draw another objection from the other side which had been very active during closing argument in order to draw any opprobrium from the district court so i think this indicates that it is a plausible alternative explanation like the comment made in that shows that no prejudice in nerds the defendant from this comment was of us a jury instruction on point that the court gave two instructions prior to the beginning of closing arguments before the court before the evidence was opened the judge told the jury that they an obligation not to consider mysterious decision not to testify after the evidence closed the court gave the circuits pattern jury instruction on the jury's obligation not to consider her silence against her and then after the challenge comment was made the court sustain the objection told the jury to disregard the last coming of the prosecutor and then it directed the jury back to page two of the jury charge which is on page seven sixty four in the record and given that there is an equally plausible explanation this court can also consider whether or not the comet would have naturally unnecessarily focused the jury on the defendants to the decision not to testify and this is i submit not the sort of comment that this court has found naturally and necessarily does so in the griffith case and in the johnston case those are two cases where this court found that a common cause prejudiced they didn't assume prejudice or you endo they made a specific finding that there was prejudice caused in the griffith case for example  prosecutor quite literally turned to the defendant during a closing argument and said would you like to get up there and testify and in the johnson case the prosecutor made a comment both during his case in chief about the defend his decision not to testify and then during his closing argument he went on a bit of a long run talking about the defendant's right not to testify and then followed it up with an incorrect statement of the law and the court found these comments naturally necessarily would focus the jury on the defense says not to testify this is not that sort of comment it was brief it was one sentence and once it was clarified given the prosecutor's explanation the court the one given there was no further objection nor did the district court the prosecutor if this court finds however assuming argue endo and again we don't concede error here but if this court finds that the comment was prejudicial the court and gauges in a three step analysis to determine whether or not there was harmless error beyond reasonable doubt three factors are the magnitude of the comment that was made the efficacy of the curative instruction and the weight of the overall evidence against the defendant all three factors favor the government the magnitude of the comment must be viewed against the backdrop of the trial itself and this was a long trial even though it lasted only five days there was i think upwards of twenty five witnesses there were hundreds of exhibits the testimony was emotionally fraught it was hard fought against that backdrop this is a once in its clothes this is a once in a statement or a closing argument which i think is akin to the statement made in the mcmillan case where this court found that a statement that i think is much more acute because the government there said when during his closing argument not one of those defendants is stepping up and saying they did nothing wrong i think that's a much more acute statement this court found that that was an isolated comment that when viewed in context was isolated in didn't necessarily call the jury to focus on th this is that sort of comment when viewed in the magnitude of the entire trial the effect of it i think was very slight the second factor the court looks at is the efficacy of the curative instruction and again we've discussed the fact that the judge gave two instructions before closing argument reflecting the circuit's pattern jury instruction on the jury's obligation not to consider the defendant's silence against him and then after the challenge comment was made there was an immediate objection the district court sustain the objection told the the jury to put the prosecutor's last comment out of their head to disregard it and then he referred them back to page two of the jury charge which contains that jury instruction that's relevant here this court is found in cases like mcmillan and lampton and rai that immediate curative instructions of this nature cure any prejudice that a challenge comment might have cost and finally the weight of the evidence in this case are strong contrary i think to misdemeanors contention this is not just a he said she said case the jury heard a very compelling story from three victims in this case of mysterious years and years of physical spiritual and mental abuse two sisters that met mr murell when they were down on their luck they were centrally a stranger and their parents  she made him stay out in the elements as punishment she'd forced him to stay in the garage and they didn't even have the dignity of being able to choose when they got to use the restroom and they had to clean houses day after day after day and sometimes even work a second job at night to fund mis nors lifestyle while receiving no money as a result of all their efforts the jury also heard corroborative testimony from a number of witnesses who saw the effects of the abuse firsthand as it was occurring and also from witnesses who  as punishment and on this tape it's sort of a microcosm of the entirety of your view she told the girls that she spoke the will of god that they were going to go to hell this is something that occurred apparently on a near daily basis they were going to hell that they were crazy that they were mentally retarded and then i think most tellingly she indicates that one of the girls was out in the garage and it was so hot there was cause and perspire and i think this corroborate the contention and the accusation the victims made which was they were often made to stay out in the garage for days on end even though it wasn't huge or cooled so that evidence taken together with the bank records which showed that the cleaning revenues funded them as we were is lifestyle even though there is no indication that any of that money went to ingrid guerrero who was the one doing all the hard work all that to ported at the time of trial i believe they had a temporary status that allowed them to stay in the country temp briefly i think that a year at a time but they did not receive any full immigration benefits at the time i think at least one of the victims isn't eligible for any further immigration benefits and probably will likely be d well settled that is again they're asking the court to do something that certainly this court's never settled and the government also argues that the jury would not understand trauma bonds without an expert witness and that's why they needed a teaching witness to talk about that but of course there's no need for the jury to understand trauma bonds if it's not relevant to the case and it's not applied to the facts the case and you can't just put a witness up there just to educate the jury on some topic unless you don't think the jury would understand just hearing the witnesses if there was no not to move testimony to think a point came across listening to the the victim in this and the witnesses to the point about why they stayed with with mr burke what would be the result of a trauma bond in other words what she was and what the what what the expert was implicating is that the reason these people stayed is because they suffered all this trauma and because of the trauma bond they didn't leave and even after they did leave they still maintained contact with mr moore and that was i think the bottom line is what that the expert was saying but with the jury of understood is i guess the best way to answer that is i think if the expert had applied it to the facts of the case that would certainly be wrong i was no expert if if there was no expert i think the jury then would be faced with having decide whether the testimony about the views is really true or not and whether it's credible because there is witnesses saying didn't happen and witnesses saying it did not say what they did they way the up and well they did except the jury in this case waited along with the expert testimony that was thrown in there to help them decide on the credibility of what these witnesses are saying and exaggeration expert to tell the jury that their expert was talking about something that was not credible shouldn't be given much weight on you had you an expert to counter in the generally accepted psychological community and so there was contrary testimony about that at but i still don't think that takes away the harm that you know now the jury's got to sort out which expert to to believe and i mean there are still testimony that whether it's sitting through that testimony a trial and saying i can heard all these people say and that sounds like a trauma bond or asking for answering hypothetical questions based on the facts of the case or reviewing records i mean this expert whether the expert review things that being asked so i don't know the government certainly didn't present anything saying doctor if you review this or did that or in so it was just never tied in with the facts of the case other than by inference we kind of just move on to a rope quickly the government also says there's no showing about that what was discussed with the mosaic was also the same thing discussed with the government i think this is sort of like making the final argument to a jury it's a reasonable inference if you go talk to mosaic about whether you're a victim of human trafficking and then you end up over at the government and there's a prosecution for human trafficking the same things were discussed and there was testimony a trial about that's how you got from mosaic to the government and so it's just disingenuous to say oh this was something totally different they were talking a mosaic about they're talking about the same thing and i don't think there's any question about that i don't have the records that i can point that out to you but the other thing is i