good morning runners matt campbell from the federal defenders on behalf of mr gonzales and i'd like to try to reserve three minutes for rebuttal is watch the clock the government taking its cue from the district court below continues to try to argue that aging knapp's testimony was properly admitted as a prior consistent statement there are two flaws with this argument st it wasn't properly admitted as a prank insistent statement and nd this court on direct appeal in a panel on which judge has set has already that i think technically that is correct however at the district court found i think correctly that based on law the case the court was required to presume that substandard performance had already been met if in fact we look at the decision which attributed to me we were looking at footnote five are we it seems to me that in footnote five the prior prior record said we do not consider where their actions all as trial counsel is constitutionally ineffective for failing to object so in other words the prior panel is saying while there is prejudice as a relates to prejudice for if you will play an error we're not suggesting that his performance was bad we didn't have enough we didn't have enough stuff in the record to suggest that it was bad agreed your honor certainly there for at that point it seems to me the district court could have and should have looked at whether counsel's performance efficient or whether wasn't instead the district court said the law of the case perhaps there might be some reason why a trial counsel wanted this evidence and that's not the record that we have what we have is a situation where trial counsel clearly wanted this evidence excluded but simply made incorrect objections and because of those incorrect objections last the issue at the trial court and lost the issue on appeal so you don't think that a room in for an evidentiary hearing as to why counsel made that call was even necessary in order to would also know honestly that that's a problem i'm having with the remains it appeared to me that the panel thought that the district court needed to conduct an evidentiary hearing in order to ascertain why counsel failed to object on the proper ground judgment rightly points out ineffective assistance had not been briefed as part of the direct appeal obviously not only that we were suggesting that it was a prejudice finding yet we didn't find clear and therefore we were trying to say as far as we're concerned there is prejudice but no clearer because the final prong of the plain error of you was not satisfied and then we sent it back to allow if you will  discord determine whether there was ineffective assistance of counsel well in reading the panel's plain error analysis it seems that the panel found error that was plain and that was prejudicial so i suppose the only issue from an ineffective assistance of counsel point of view that wasn't proven on direct appeal would be whether there was some tactical or strategic reason for making this objection so the that you could have played in error and it isn't which just recorded didn't really consider district court even considered the idea that because the panel and found what they found that it was absolutely by law the case to fish i was wrong and the government doesn't seem to  specific analysis of why counsel didn't make that decision we had moved for an evidentiary hearing below an evidentiary hearing that a court denied or read the prior panel disposition as conclusively determining that there had been ineffective under prong one correct and if i'm understanding the colloquy between you and my two colleagues the problem is that that's not what the panel intended the panel thought that it might be prejudicial but it sent it back to the district court to determine whether the conduct was deficient under prong one and so the error lies with the district court's analysis in reading the panel's disposition and in determining what to do on remains yes your honor and the only response i can give to that is again i think if counsel had said nothing if counsel had simply let this evidence come in there might be some question as to whether there was a tactical or strategic reason for that but that's not what happened the u s attorney's office sought to introduce video statements trial counsel objected and the district the district court then came back and said i won't let into statements i will let in i'm paraphrasing a razor sharp surgical strike of questions to be asked while the government wanted to play the whole video of the forensic  clearly was clearly hearsay until you find out what specific statements that's the surgical portion of what was directed i agree with that in that playing a video would have been perhaps worse  than letting these questions in but my point is trial counsel objected to them but made the wrong objection so was the defense theory that there was collusion among the victims that was somehow no questions asked of the particular victim at issue here there is no crossing right but overall defense theory was that this was a put up that your client was being framed at the instance of the families of these young girls  that part of the defense theory there were some questions asked about whether how close families were whether generally speaking on the reservation people have a tendency to try to keep things within the reservation or state you know not in not attack or certain people or attack others that sort of thing but they were generalized so from a prior consistent statement point of view factors would be lacking including the fact that the motive to fabricate or arise recently and after the initial statement and that was never proven here but why wouldn't it be proper for the district court to allow in as rebuttal evidence of the prior statement by the victim to the forensic examiner that the occurred under the cloak because as we've cited in numerous cases the impeachment at best was general it was not a the witness at issue and any motive to fabricate occurred prior to the videotaped interview so wouldn't make it  after united states the issue here frankly is the fact that the defendant confessed and that was properly admitted and wasn't corroborated that that's that's the issue we're wrestling with our case law says and admission by the defendant that i did it is not good enough unless there is something to establish its reliability of the scale of what is corroborated because what was corroborating what was it was corroborated because is there any without the map testimony that the defendant touched the underneath her clothing there is not there is  testimony of the two tougher sentences there is an argument we don't however argument there is nothing i mean to be fair with me what evidence is there what corroborating evidence is there that if i take the law of the cases as it is here it seems to me that the nap testimony does not get admitted while busy the government in knots but these the specific words in dispute the law the case dr and the government did  present a strong argument as to why that information was properly admitted given the essential attack against that when this through the cross examination of agent benedetti and the cross examination of the other victim what does that have to do with allowing hearsay evidence in particular situation it also has to do with the nature if you read through the testimony of e a i read the testimony of e a didn't say anything to suggest but now knapp should come in and say i am absolutely telling you she doesn't tell the truth because she was touched underneath her clothes also exists as a panel found in the prior for the priory man it could be a number of reasons why a testimony actually trails and but nonetheless the panel having sat there never said one whit that we're going to allow that testimony and the only reason that there was that there was a problem at all was we couldn't tell whether there was a deficient performance and on this record i don't think that we can determine their sufficient performed well but if the problem is then we thought it was going to go back for you to suggest there was to fish performance use all it happened was the district court applied the law of the case to suggest it's deficient performance that was never found in the law of the case and you don't appeal issue so how do i get to help you well i think your hon questions were made she would allow aberrate when followup questions were made as to the nature of the touching under the clothes or not of the clothes she shut down a ten year old victim at this point and she shut down what happened to demonstrative exhibit was that in the record before the prior panel is understand she was illustrating her testimony with a diagram of a female form and pointing to where she was touched i believe it was i can't say with certainty but it wasn't included in the record i don't believe it evidence to conclude and i think we can tell from the reading of the testimony where she was point on that exhibit yeah but just because she pointed to the general area doesn't get to the specifics of over or under the out if you need lapse testimony out at that point it doesn't seem to me barring corroboration you've got to have it but you could never get to the point that you're going to say there's enough evidence for be pressed about the nature and where the touching occurred we get into those specific questions and then we have a line of questioning of aging benedetti to start out with prior to testimony as well as the cross examination of the other witnesses that does allude to apparent consistent or prior inconsistent i mean the problem is state of the record is she didn't testify expressly that it was skin on skin and then you tried to rehabilitate or by offering the forensic interview that she did say skin to skin touching that's not a prior consistent statement under the rules of evidence as well i would say that the her initial statement was and you wanted same to believe the truth of the initial statement and you tried to get that in because that if the th circuit panel had been there and saw what i saw they would have thought this was consistent with which goes to my question about whether reasonable attorney at the time would have thought it was a c statement that we can consider is at issue i think you can and as i was not a trial counsel i looking to the district courts determination he was in the best position as anyone in this room to determine whether that statement was and consistent he had an opportunity to evaluate the demeanor of the victim had an opportunity to evaluate the whole proceedings and whether she was essentially undermined through the cross examination of other witnesses was not a traditional way to introduce a prior consistent statement it's not a traditional type of case in the sense you have a vulnerable victim witness that you may recall she was up there with the counselor with her when she was testifying and in the government's reading of her testimony when she essentially shuts down she shuts down because she doesn't want to talk about the same or and she doesn't want to talk about it anymore when the prosecutor is trying to push her about whether it was skin to skin where it happened to court seem to not much of anything about adding your parade is at something that we can consider whether whether the district court heard in saying that it was per se deficient of a lot of the case i think you can i think you can the counts against the vacated then the whole sentence ought to be redone no because we have two independent victims the jury independently considered that testimony independently considered evidence and they were properly charge sounds that we're going to get the heavy sentence for the counts against the eight that's correct and if it was a sentencing as i understand the sentencing package so therefore why isn't it that we ought to send the whole sentence factory redone because the independent evidence that came into into the independent evidence that came in as to these other victims would not have gotten disc in the skin contact but it did and it did it didn't need to because those stand that's why i don't so the sentences were the same for the other two victims who were convicted of a lesser charge those convictions were the lesser charge or the sentences were the same so it's thirty years old for sentencing purposes they were sentenced together but they were concurrent sentences i understand that but the question is what relief should we afford if we agree with mr campbell that there was a error here do we send it back in for an entire re sentencing do we direct the district court to re sentence on lesser included counts and then reconsider in light of that sentence on the other two cow i would think it needs to be sent back only for consideration of counts one counts to the counts related to a if it's a package sentence i don't know how that happens that was i thought judge thomas question i guess with instructions that the district court need only consider whether it would in the light of the course different early with the grounds that counts one and two whether it would consider the sentence those collectively concurrently i think that's out i think that's what our bundling case law says i think that's correct that's it but i think the panel need not disturb there's no reason for this or counts three and four there was independent evidence that is not challenged on bundling i would cite the court to the hand in mclean decisions that i had mentioned previously in my briefing i do want to point out this was a very close case and i would cite the court to e r eight o seven ruling on the r twenty nine where the district court said you barely eat by on counts one in two to allow that to go to the jury and that was after this evidence was erroneous lee admitted so this was not a strong case but what's the relief do we do we have a case and send it back and vacate the sentences on all counts for a complete re sentencing in regard to deficient performance i would point out that the district court while it assumed prejudice i think part of that the district court was in the best position to view and