i'm going to let you pronounce your name i probably ask you that once previously and you did it and i'm not going to try again thank you jeff smith and may please the court my name is evan howes you know basically pretend to eat doesn't exist the i don't exactly know where it came from but it's there and we just pretend it's not but so i met in house i'm here to represent mr darrell freeze and your honour's twelve years the district court increased my client's sentence by more than twelve years in this case based entirely on an uncorroborated allegation of decade old uncharged conduct by this mr randall b shack but it did come down to his credibility right no your honor and i want to be very clear well the answer is yes and the and the be sure this case is about the credibility of story but this case is not about a credibility determination the district court did not have the ability to make a credibility determination because the government did not invite mr b scheck to come testify at sentencing the government didn't even give the district court the audio of his only recorded statement where he made gave life to these allegations other than just clear just then just making them so they did the district court didn't have the type of things that and i think the best way i can explain this i think is a case you should be familiar with the court is surely familiar with this anderson vs city of bessemer city north carolina it's the similar supreme court case where the we started a one million times six hundred and forty eight to be exact i actually looked up thomas to see right and so the the court in that case made very clear that the basis for the extra deference that's afforded to a district court's credibility determination is that the district judge has the ability to look at variations in the witnesses demeanor and tone of voice inflection when submit when subjected to questioning and it's important not what the other test is whether the district court's decision is the light of the record as a whole or where there are two different versions whether the district court's view is last of all that in terms of the record as a whole that can also mean the cold record of documents court proceedings and all that sort of thing it doesn't doesn't have to be a live proceeding for the district court to look at everything that's available that's that's absolutely right judge smith and i mean that and so that i guess i want to pivot back to the original thing i want to say about this case is the reason this court should have a firm and definite conviction that a mistake was made the other standard announc bessemer city is that the evidence supporting mr b sex allegation here was unreliable on its face and because the allegation itself was contradicted in numerous ways as to material details by the defense's substantial rebuttal presentation and it's the rebuttal presentation that makes this case different and it's those two things in your honor is exactly right in bessemer city the other thing that's important about bessemer city is that the court made very clear that the there are at least two conditions when it's appropriate for a court of appeals to vacate a factual finding is clearly erroneous and that's when there's documents or other extrinsic evidence  record that contradict the factual finding or a witness a story or when the witness a story is internally inconsistent or so implausible on its face that it shouldn't be credited and so again the supreme court used those disjunct to flee could be one or the other but this case as we've pointed out in the briefs we've got at least two of those conditions we've got contradiction by extrinsic reliable extrinsic evidence and we've also got internally inconsistent for mr b sex story so i'm the court will allow i'd like to get into the evidence of some specifics of the evidence the st problem with the evidence supporting m case is that it was unreliable on its face in the st place the court should look at simply at the statement remember at the very st interview where mr b shack made this claim he didn't give any details he simply said i was abused in the past by two and one was named daryl freeze and he was a school bus driver and greville and as we'll discuss later those two facts turned out not to be correct but the point is that was just a bare allegation the only time he gave any substance to his allegation was that one feb th teen interview that's discussed at length in the brief and in that interview he admitted multiple times in fact i think defense counsel said on the record that it was forty four different times where he said i i don't know i can't remember where i'm confused about multiple different details that you would expect the person to remember even ten years after he was confused about who he was seeing because remember he said he didn't say he was just with mr freeze he said he was with numerous other men around the exact same period and he wasn't able to name any of those men only mr freeze but he he expressed the stated in his own allegation i'm confused about the timeframes i have my memory is fuzzy sometimes when i think about it it's in a dream like state not encourage the court to look at the chart or the table that i made that spans pages thirty one to thirty two of the blue brief and one of the quotes that i think is very important there is he said i don't remember everything every time i think about it it's always different in my mind always different that that is a witness saying every time i think about the thing that i'm talking to you about it's different in my mind now i can it's hard for me to imagine a statement by a star witness in any legal sphere that would more undermine the reliability of that statement than confessions that i don't remember i don't know and i'm confused about the very thing that i'm alleging and of course mccready agent mccready the only person who did testify at the sentencing hearing here expressly testified that that's a reason in his expert opinion to not credit or did that to to have thoughts about the reliability of an accusation so we have and basically what that comes down to your honor's is randall be shot confessed unreliability in his own statement and if you take that together with the context the context was also inherently reliable i mean again and i've said he he gave this allegation for the  very st time when he was confronted by army c id and a federal homeland security agent in a polygraph exam who asked him if he'd been having sex with children and of course during that so there's two things that are important there one he had obviously had a motive to deflect the attention of the agents away from himself onto other people and he also had a motive to justify his behavior because in that interview he admitted that he was going to places in order to have sex with children but that he just simply said it wasn't me it was fraud show my accomplice and now we later learned that that wasn't true and so that's the nd important thing about the polygraph and again this is the government's own evidence that it's submitted in the record that evidence absolutely establishes that he lied to these federal agents to army see id not once but twice on the same day and the way he lied was in a way that downplayed his own culpability he said it wasn't me it was fraud shot right and so we have a witness who says he doesn't remember things he says he's not sure he says he's confused and then we also know that this witness has lied to federal agents about something that is very materially close to to what he's talking about here right so those are two things that should in the normal course put up red flags and lawyers and years unreliability how can we credit this this convert this simple allegation that was never exposed to the rigors of cross examination when the witness it's himself says he doesn't remember and in this confused about the very things that he's alleging so the other piece of the motive that i've not in the plea for simply that the time could he actually made this february twenty seven thousand interview he was in the process of plea negotiations he had been indicted for his own terrible crimes and he was in the process with his lawyer next to him with the usa that was prosecuting him in the room making these allegations for the express purpose of seeking a sentencing reduction so it's another reason not to trust with this individual is saying and a n i'm not claiming that the defense established here that the shot was necessarily lying but all of these things go into the reliability determination and remembered the only thing the government gave the district court here were rd hand attend this february two thousand and seventeen interview so nobody in this case that was before the district court and especially the district court had an opportunity to observe mr b sachs demeanor to listen to to realize what h this testimony of the knowledge of their own freezes name the fact that indeed he defines out that he was involved in these sorts of activities as well the fact that had face time interaction a few years before at least a few years after these events occurred in the other evidence that this made it seems to me highly plausible that these sorts of bench did happen even if his recollection wasn't of each individual but it wasn't all that reliable and i must say i sympathized with you this is not the way i would want my own sentencing to go but nonetheless hearsay reliance on documents is part of the accepted evidentiary mix for sensing here so what is it that miss is extraordinary in a way in that it's not the ordinary but why isn't this the corroborative evidence that is here the things that didn't match sufficient for the district court to accept t these events occurred just sounds like the reason the suppose that corroborative evidence wasn't sufficient is because the only thing that was corroborated here were generic details right so we don't there's no disputing in the records that these individuals at least met one time over facebook and it wasn't face time your honor it was simply a a chat message on and on and on a cell phone so as one conversation that's the only evidence in this entire record that establishes any communication between these two individuals and what's very important about that judge southwick is that the government had that evidence and didn't actually put that conversation into the record here  the reason is because agent mccready testified there was nothing relevant to the allegation in that conversation and that's extraordinary you would think that if there was any basis for suggesting that these individuals had a prior familiarity and especially if they had had a sexual consensual sexual relationship ten years prior there might have been something like a randall it's been a long time nice to hear from you or it's been a long time since we've seen each other but the agent said there was nothing in that conversation that indicated prior from that era to so we really don't have any corroborating details we have a person who has admittedly had access to an individual's facebook account who knows his name has alleged something about him that we know from the rebuttal evidence wasn't true that he wasn't bald and has said been able to say his marital status and those things are entirely consistent judge southw and the agent said if there was something in port about that conversation to these allegations i would have remembered it but he said very clearly in his testimony but i don't remember it right and he said there was just small talk and that and that's another part of talk and so that the it was in innocuous conversation and it didn't and he also explicitly testify there is nothing sexual in nature so we just have one communication over ten years after an alleged event and we have a witness who's able to name a person i can name any i mean if it's that's generally accessible information is not corroborative of whether or not two individuals met at a certain time or a certain place and actually engaged in a sexual act together and remember and i guess i'll have to get into the robot a presentation in my rebuttal presentation but in rebuttal we presented reliable extrinsic evidence the very thing that the supreme court talked about in bessemer city that contradicted the details of the story that proved several of the details of the story false and if if you allow me to at smith i'll just to emphasize one very quickly mr over and over again at the time i had sex with this mr freeze character i he was a bus driver a school bus driver indeed built with the government's own probation officer in the government's evidence itself established that he was not a school bus driver until much later than the actual relevant time frame here and not only does that contradict the expressed statement of the story but the time frame that mr freeze was a school bus driver it would not have been illegal for him to have consensual sex with mr b shack the shock would have been seventeen at that time and so the point is that there's just too much uncertainty in all of this evidence and i'll get further into that in my  good morning it may please the court and your gold for the united states the issue in this case is whether the record plausibly supports the district court's finding that the sexual allegations actually occurred that comes from mr friess is brief and he's right the term is plausibly it's not strong law it's not concrete it's not most likely it's just possible and that reflects the limited role of an appellate court when reviewing a district court's factual finding at sentencing for clear error you've heard my i can't answer that your honor but what i can say is that obviously it's prosecutorial discretion about which witnesses what i would not testify what i have done it differently standing here before you today maybe yes maybe no but i'm here with the record that we have he did not testify come again i would only be speculating i would speculate that he probably was available because he was in serving his own he was incarcerated so i'm i would speculate that he could have been rated over but i can't tell you for certain standing here what i can say is that this court's precedent is clear that even uncorroborated hearsay evidence may be sufficiently reliable for sentencing and like i said you've heard my friend's case as to the evidence that supported his version of events let me tell you the three factors that support the government's version st the level of detail in the allegations nd the surrounding facts that lend her a liability and rd the implausibility of mr b exceeding mr friezes version of events at the district court would have had to believe turning to them in order as this court has held in robinson  a witness's level of detail in his allegations can support their reliability at sentencing mr b shaq was very detailed and i want to go through what he was detailed in his allegations he identified mr friess not once not twice but three separate times and he did so initially before he was arrested in his own case in fact he did so one year almost one in a half years before mr freeze would be caught up in his own criminal conduct he was graphic to the types in the locations of the sex that occurred and i'm going to get into them because again this is about the level of detail there were two incidents the research or all in anal sex the oral shack sad that it took place at his home in a garage that was converted into a living room he remembered that mr freeze wanted him to swallow his ejaculated but he would not do so asked to the anal sex he remembered that it took place in a wooded vacant lot near his home that he was bent over a car and that it hurt he of course remember that they met on silver daddy's and w sometime when he was fourteen or fifteen before entering high school now my friend references how mr b shaq said during that interview how he was a z and fuzzy various that's true but we would encourage the court not just to look at my friend's brief but actually look at the transcript and the questions and answers what was he hazy in fuzzy about he wasn't hazy or fuzzy about whether he engaged in sexual acts with mr freeh yes but about collateral details the exact times the exact dates whether mr friess used condoms and lubricant whether it was his st experience with oral sex whether this was his st time with a quote older gentleman whether or not he remembered those details doesn't take away from the central allegations the oral and the anal sex and on that your honour's at or away sufficient basis for the district court to find them reliable but there's more there are the surrounding facts and then prevent that top prevent talks about how the surrounding facts can add to the system see to a hearsay allegations as they did in this case mr b shack remembered that mr freezes silver daddy's username included the words the response brief as well as in the reply brief and actually if you can find them all at the reply brief on page twelve you're never going to see a definitive statement where mr b shaq says yes he was a school driver when we had sex it was just that he was a school bus driver and if you go to oral weighing three all fogged up this is were age mccrae he is reaching out to the local sheriff's office to tell them of this report he says that mr freeze was a bus driver not that he was a bus driver ten to twelve years ago just that he was a bus driver full stop and the district court even inquired about this and you can see that ads are a way to twenty and to twenty one i wanted to know was this in the context the prosecutor said may i confer with the agent which was agent mike craig and he did so and says no mr he wasn't identifying him as a bus driver at that time now in the reply brief they say well that's not evidence that's just a trial prosecutors assertion maybe so but i mean it in direct response to what the district court had asked and you can read that for yourselves regardless of whether or not it was a bus driver again he didn't know he was a firefighter or that he pursued that vocation and yet he identified his user name as such he knew he was married at one point and had one child now mr freeh says well anybody who's on facebook could have known that true that's one way you could have looked at it but the district court could have looked at it the other way that this was another thing that add consistency to his statements he knew that he thought that he was in his mid to late forty's at the time of the encounters that matches with mr freezes nine hundred and sixty two berthier he remembered that mr freeze complained about the driving distance between beeville and what vernia which is where mr b shaq lived at the time that mr freeh says well i wasn't from beeville i lived in paris during the relevant time that's true except for he ball and again mr freeze takes great issue with this he's says i'm not bald you have the picture of him in the p s r so you can judge for yourself it's true he's not completely bald in fact as came out during one of mr freezes on the witness testimony one of his defense investigators who met with his ex wife and she didn't say oh no he's not paul she just described him as not totally balls that he had short hair and a receding hairline so yes maybe he wasn't completely bald but it still generally consistent that's the facebook conversation it's true that the actual contents of that  that conversation isn't in the record but it was agent craig who testified that it contained small talk but you would have expected if they had been meeting for the st time on there to be some indication of that there wasn't was just small talk the concern be a bit in that all we know that it was small talk we don't know if there's any indication of sort of the speculation from your friend on the other side that that other than the government wasn't thinking it was helpful to do should i i can't tell you again what the prosecutor was thinking i do think that if there was more to it some type of introduction it would have come out but again that's not in the record and so i would be speculate so i think you're right jake southwick and that it's probably at it might be a neutral we just view it differently but the biggest concerns about this record is should be doing in the future i agree that in preparing for this and standing before you this isn't the record i would like i have agreed that just to talk about the credibility determination to be clear what the government say it is true that a witness who has testified before the district court or i suppose as my friend says if they had listened to the audio of the allegation that gets stronger deference and that did not occur here so we don't get that deference but it's still a credibility determination in the sense of who to believe do you believe m or do you believe mr freeh and the well it's also i mean if there are two competing views of the evidence perhaps we would take one view but the question is whether the view of the district court is plausible and there can be more than one plausible version of factors absolutely your honor and as this court has held up even if it were the trier of fact it would have found differently that is not a sufficient basis for reversal where it is plausible and again our door to put it another way in order to reverse here we would have to determine that judge jack found is plausible correct yes i i agree and we don't think it was implausible again based on the level of detail the surrounding facts and  the implausibility and let me get into that because mr of three this is a version of events is essential that he was falsely accused that mr b scheck pointed the finger at him to believe that you would have to credit the district court judge jack would have to credit a number of assumptions st she would had to assume that mr b shack would falsely accuse a man who he had just met from a different state now even if that's but say it's a safe assumption because he knows that he's under criminal investigation there are more assumptions that he then chooses a man and accuses him of engaging in sexual activity involving children because he was a minor at the time and that person actually in fact happened to do that in gauging that behavior rd that he would do so way year and a half before that me and would in fact be accused by authorities of doing that and th and perhaps above all that mr bishop would choose to falsely implicate mr freeze while also truthfully implicating another of a number of other people which as a district court heard led to their successful arrests and convictions you can see this at two hundred and  extension forty five of the record so based on all of these assumptions the district court would have to make based again on the level of detail in the allegations and the surrounding facts the district plausibly credit mr b shaq's allegations and could find them reliable standing here today what it have been better had mr b shaq himself testified maybe so i don't know what he would have you know i i believe he would have been consistent with this but i don't have that record before me but the question again on appeal is based on this record was to district court's finding pause of all and we think the answer is yes and for that reason because the district court did not clearly err in crediting mr b shaq's allegations and finding them reliable and properly applied the pattern in the hands minutes under section four b one point five b one if the court has no further questions we ask that you affirm the judgment of the district court or thank you thank you from save time for thing i will do is point you to row with three o two that's agent mccready's st contemporaneous report when he st made the allegation and it says be shot stated that he had been molested by two individuals in texas when he was a child the two individuals were identified by as daryl freeze of beeville texas who was a school bus driver and martin lambert of santa tonio who was a substitute teacher i think the only reasonable reading of that is that he was identifying the status of the person at the time that he was abused but the thing is we don't know because we just don't know from the record here in my mr gold is my friend and he and i do respect him but we do disagree on this case judge higginbotham the reason that the government didn't present randall be shaq is because he would have been subjected to cross examination the district judge would have seen his uncertainty the district judge would have seen him clam up when he was asked why did you say you didn't know don't remember all of these things why were you only able to name darryl threes even though you said that you were with numerous other men but weren't able to name in the of those why did you name this martin lambert guy but then no evidence whatsoever checked out about that accusation that's the reason we don't have it because there isn't that the government came with what they had and what we're saying is what they have is not enough to subject an individual to twelve extra years in prison based on a preponderance of the evidence standard and to be clear your honour's this is not a choice between two versions mr gould refers to version and mr freezes version i have no version of the events i'm simply asking you to look at the shacks version we're not asking you to really weigh the evidence i couldn't ask you as the appellate court to do that i'm only asking you to look at the face of the allegation and determine whether what was said or what an officer heard was said is sufficient to get you over that hump to allow you to accept twelve x three years in prison i would suggest that it's a close call as to whether or not there is even probable cause to effectuate an arrest of mr freeze based on this allegation alone without any corroborating data as to an actual contact between these two men prior in the past but if it's a close question as to probable cause it's certainly not enough to meet the preponderance of the evidence standard but i'm not at that this is not a case where there's one story of an evidence by witness one witness says one thing is x happened another witness says why happened and the district judge was just determining between those were simply looking at a single allegation and looking at whether or not that was supported by reliable evidence and the government's it emphasizes that he identified mr freeze three times when he he just said his name three times and if he knew if he knew this man from meeting him on the internet we don't know when they met i'm not suggesting the st time they met was face book we don't know the hope we don't know from this record and that's the problem the government didn't give us enough information to know when it's not possible to to determine that everything mr p sec said was true think about that the government emphasizes detail well it's not surprising that mr be shocked would be able to describe in detail sexual acts with a child because unfortunately he admitted to doing that repeatedly and systematically with the individual who was in his accomplice in his own crimes so it is not strange is it doesn't give him advantage credibility that he was able to describe these gross things in detail given that he had admitted to doing that had to actually victimizing people in that way himself as to verification the ultimate thing is when you have hearsay you need some level of corroboration it's true you have relied on uncorroborated evidence hearsay evidence before but when you look at the verification here there simply was none of the details that could have been verified this man affirmatively claimed that a certain website was used there is no evidence in this record that the shack or mr freeze ever used this website and your  last thing i can leave you with is if you are inclined to find that it was plausible in light of this record which i really do think that it is not based on this record but if you are inclined it would be very helpful if you would