back because judge would sits with us from time to time she hails from the southern district of georgia where she previously served as chief judge and will probably agree about a lot of things this week but one thing in particular that we probably will not agree about is who's going to be victorious in the notre dame georgia football game next march so welcome our welcome back to  take a moment to outline what that theory of defense was the core of it was that his accuser who was the government your primary evidence against him was an unreliable witness and there were were three basic components to that first her age when the alleged abuse occurred she was four or five and the time that passed between  and the time of trial which is about eight years or you know have a sufficiency the sufficiency of the evidence issue in your brief that's correct you're alleging that the indictment was insufficient because it failed to factual basis of the offense so basically track to the language of the statue and the case of the both the supreme court and this court have made clear that the allegations have got to contain some factual matter in order to be sufficient so so so what what more factual detail do you think was necessary here that was that there was a date range there was a range for the age of the child some specificity about the nature of the offense what more do you think was required well i disagree that there was that's a physically about the nature of the fence other than that there was you know there there was statutory language that indicated which portion of the statute that the government was proceeding  under don't you think that statute itself provides some detail i mean not to the too fine a point on it but direct genital touching underneath the underwear or something i mean that's pretty specific well it's a definition of what sexual contact entails but for example in this case in the just covering and out the trial there were there were multiple different allegations of what the nature of the sexual touching was that occurred and so you knew th indictment failed to narrow down for the defense you know what was the actual offense that the government was alleging there was almost the language of the indictment goes on page twenty of your prefer you say it does nothing other than track the statutory language use and it gives no detail about the day or the activities that were involved i find it difficult to line up what was actually used in the indictment and your contention on page twenty and fact weren't there are some date parameters that aren't included in the language of the statute and weren't there are some conduct independent of what's and the statute well there was a nineteen it did but he was also working for a portion of that time in a child development center and there was no named a victim in the effect of the offense and so when when you have no name victor you know it's not possible to far well we did not know what was presented to the grand jury or the victim i mean we certainly knew by the time we got to trial what the government was going to present but if the purpose of the indictment is to bind to the government t alleged before the grand jury in the end diamond has got to specify what that offense was and so there is no way to know if the offense that was presented to the grand jury was the same offense that was proved at trial and so do all these facts what would have been sufficient in your mind what more well i don't think there is a bright line rule to say what is the fish and what is not but naming a victim certainly would have helped being more specific about the date rape it certainly would have helped being more specific about what the what the sexual contact was when it occurred where it occurred certainly would have helped but we have none of that in this indictment and you seem to suggest by reference to civil cases such as it paul and so forth and targeting roulade of the civil rules that somehow that law should be injected and to rule seven of criminal  procedure requires a factual basis for the defense and the case law requires factual allegations not just conclusory allegations drawn from the language of the statute and so my point in the brief is that they are very very similar and that you know this indictment does not match you know does not mean that standard where did you need the therapist nerved so a core part of our theory of defense was that the victim or alleged victim had been subject to suggest questioning and suggestive techniques over the course of eight years which makes it more basis to suggest that the victim's memory was contaminated by the passage of time and the power of suggestion before you get that there are those notes and and if so then i think you have to have what was the basis for we did have that in this case we had two experts who examined the interviews and found evidence of suggestive techniques so the first expert was actually a prosecution expert from germany dr auto lot and she examined the so what they look at is the way that she just closed the way that the people who were involved in the abuse changed the way that coeur factual details of her account changed from one interview to the next and also the way that she was questioned so in the first and second interviews after a doctor out a lot note that and also dr asplen notes that there was instead of an open ended exploration of what happened and who was involved there were specific questions about mr evans which tends to you to suggest to the child that she needs to give information about m the federal rule of evidence on privilege does say that they are the privileges are developed under the common law but subject to the constitution so there is a carve out there for constitutional principles such as the right to due process such as the right to to get defense evidence and you know that has got to be examined that wasn't at issue in jaffe which is th supreme court case where the supreme court first recognized as a civil privilege a civil case was the psycho therapist as i understand it the prosecution didn't to call the psycho therapist during missibility shame when we don't have the psychotherapy testifying what how is that admissible well the first the first point of admissibility is there is evidence of the number of times that she was interviewed or asked to recall memories of sexual abuse and so that is not being offered for the for the truth of what the allegations were but dr athlon testify are were in his report and i believe he also testified to that that the number of times matters and in fact in some jurisdictions are a friendly interview is only allowed to be conducted one because of the risk of contamination in young children and it's s how how do the notes come out well we i mean had the records had they had we been able to as the peano the records we could have subpoenaed a record because tony and brought them in as business records possibly i mean i think actually they're not hearsay so we wouldn't have need needed to meet a hearsay exception but we would have to lay foundation for what they were which would we could have done by calling the records historian or the or the psycho argument mrs oswald or hear from the government mr krishna please the court i'm going to begin with the indictment issue and then continue to that there this court's permission so with respect to the indictment i think the fundamental flaw with mr evans argument is that he creates th faults dichotomy between on the one hand alleging concrete facts not on the other hand alleging the statutory elements in this case the statute it issued here describes the physical conduct that between may of two thousand and seven and december of two thousand and eight that's over a year could he be charged with another incident within those same dates because the evidence is that he molested her several times what about one of the other times could he be charged with aggravated child abuse for one of those other events no he couldn't he would be he would enjoy double jeopardy protection because he'd be entitle to the record in this case as we know which one he's been which he doesn't he knows only that there is an intentional touching we don't have to specify the date and it would have been possible in this case when we're dealing with the four to five year old victim who's living with the abuser for eighteen months as we know from this indictment which kid it is if we give that indictment a commonsense construction the date range maps exactly to the time period that i understand that but what if he molested other little kids during this year period of time refuse a pedophile how does he know which kid it is by looking at this and well he's not in the into identity of the victim isn't an element of the offense if he suspects that we performed a bait and switch between the granger in the trial there is not entitle the know which kid he molested he can he learns that their criminal discovery and that's what was provided and indeed it's important to something more specific than another person that doesn't even say where it took place we don't know it took place and on a military base and heidelberg germany you could have put that in the indictment we don't even know whether it took place in germany or the united states looking at this indictment the indictment alleges that the conduct occurred outside the united states are in the general you could have put in there on a military base and heidelberg germany and that would avail of more specific  i don't if you have to comply with the rule seven if a written statement yes and if we ever tax you so that you know that you're protected if you make your claim for double jeopardy in the future bride but double jeopardy doesn't look only in the indictment it also looks at the criminal discovery it looks at the record and it looks at the trial we know who the victim is we know that we're talking about the same person who was living with the abuser at this time and also i agree that the indictment could have listed i labored germany but that doesn't make it a violation of will seven see the indictment also places mr evans and heidelberg germany from may of two thousand and seven to july of two thousand and nine where does it say that that send the general allegations section of the indictment or explains how he was not listed soldier and then for a period of time he was a company another member of the armed forces because that provides the jurisdictional hook for this prosecution and count one activated sexual abuse count incorporates those general allegations expressly and it's a you've probably seen many of these is this  indictment a fairly standard indictment for this sort of crime i mean it does this one look like the others i guess i have seen indictments that look like this i think as a practice in our office we do generally try to put initials or perhaps specify the age for perhaps be more specific about location but none of those that first of all none of those facts go to the elements of the fence and all of those facts can easily be remedied with discovery in the reply brief mr evans says that we don't have the benefit of discovering the trial record in dealing with these noticed issues but this court has disagreed on that and united states versus bailey it seven seventy eight f third eleven ninety eight twelve one this is a twenty fifteen case in which this court recognized that the full record can be used to overcome any notice or double jeopardy insufficiencies and there was  simply no actual surprise here and that's always the lynchpin of any challenge to the sufficiency of the indictment mr evans knew who we were talking about and he knew what we were accusing him of doing there is no surprise on that score and it's difficult to see what he would have done different differently at trial if this indictment been written to from now as for the question about the therapist notes i think it's important to recognize here that their central argument focuses on how important these notes would have been to make suggestive questioning to fats but that is a very common defense in these child sex abuse cases so they're essentially arguing that these notes are fair game whenever we have a child victim is how you need to testify when you go to the trial and let me refresh your recollection of what if that was in there and that would have been some relevant to this defense he may have been entitled to th there was some testimony about matter on an ex post analysis of what actually is in the nose what matters is did the district court abuse its discretion in looking at this motion and saying does this make the case that if i grant them the relief  that was the specific ground given how can we say that notes about sexual abuse are not relevant and a trial about sexual abuse these are not relevant right and so again the question is why are notes about sexual abuse not relevant and that case about sexual abuse because the relevance here is solely about suggestive questioning that's the purpose that they want to use these notes for so the question is is there evidence that alison davis or patricia evans the two therapists whose notes mr evans wants what is the evidence that those two individuals was first the basis of their suspicion is the inconsistency in the two forensic interviews that we have in two thousand and nine there is no evidence in the record that allison davis even saw the victim davis who was the victims their office the texas met with the victim at that time a believe the victim was in missouri so we can rule out else and it was right there as for patricia evans she saw the victim in misery in between the two interviews she met with an army investigator she told the army investigator all i've heard from the victim is that she describes herself as mr ricks girlfriend and that they gooden is there any reason why the court could not have conducted it in camera inspection of the notes before deciding they're not  reasons first with respect to rule seven hundred c the reason for the specificity is that we don't want criminal defendants to burden the world at large all of these third parties with nothing to do with this case to produce no and even if the defendant himself never gets them the third party is still aggrieved by producing them and given to them to the court more fundamentally this information is privileged and the privilege is diminished even if a federal judge looks at these notes the jaffe case makes this clear because it emphasizes that the value of these notes is the reason that its power to protect this privilege is that the mental health our citizenry is a public good transcendental importance and certainly for victims like we have here child victims of sexual abuse that interest is at apex and jackie says that one of the so one is to say that the privilege might be overcome you know given the interests on the other side the prosecution whatever then that's a separate question about waiver so talk to us about waiver and about whether the privilege  your mind and way because you're not suggesting that there's no case by case analysis of waiver is there i mean surely the privilege can be waived i think the privilege certainly can be waived but it was not waived here a waiver has to be clear and unequivocal and we're talking about a girl who at the time of the trial was twelve years old and it should testify digit did she testify to the substance of these conversations at all or was it only to something about the logistics of the interviews or whatever she testified that allison davis helped her structure the interviews i don't believe she testified about the substance of her meetings with patricia atkins and for the reasons i've discussed alison davis is not a reasonable source of suggestive questioning since all of the central allegations that we're dealing with were made before the two ever met and there's no certainly i don't think there's a waiver in either case but there can't possibly be a waiver with respect to patricia it's and with respect to this privilege issue and about weighing the criminal defendants rights it's also important to note that what's going to happen here is if you were to recognize a waiver or if you were to not honor the privilege not to protect it not only does that mean that child witnesses would be more reluctant to seek therapy but more fundamentally for the purposes of the truth seeking function of the  trial means that these notes are less likely to exist either because there is choose not to take the notes or because victims choose not to confide in their therapists and so defendants don't actually get the advantage they were seek the status quo is maintained as far as their ability to maintain a defense but the mental health of these victims is now imperiled let's go back to waiver what effect are you suggesting that her age twelve in this case has on her ability to waive i think a waiver has to be at the very least knowing and clear and unequivocal i don't i personally don't think i think she would need a guardian to waive this privilege  testimony at trial where there was no warning from the district court about the consequences of her statement there's no sort of she had no reason to think that by making this one statement that out and davis helped me structure my testimony i'm now opening the door to having all of my notes and you have any cases to suggest to us that she would need the step of having a guardian before she could waive not on i don't right now but i'm sure i could find work i hope i can but can i ask you a quick quick question and this will i'm afraid will require you to stand up there a little bit longer than your ten seconds but i want to give you an opportunity before i ask your opponent as well so we haven't talked at all about the the desks that were seized and i just have a couple of genuine sort of record questions that are not quite clear to me yet can you with respect to the labels that were on the desks can you describe for me exactly what those labels say so it sounds like in one brief it said that there were no labels that said something like a s s period two and then the other brief suggests that they also said something about you know the such and such a dell flash drive or so yes is there anything more than that is there anything about the contents on the desks the labels do not identify the contents they don't say for example rick's adult folder or child pornography they do identify the sources of that provided the hard drives data and they also i believe have the signature of the army investigator who received the c d s and the time and the date symbolizing the her receipt but with respect to this child pornography i think one thing that is critical to note is how did little of a kid how a little influence this actually has this trial because it came in with a limited instruction district court specifically told the jury that they couldn't consider this evidence to conclude that mr evans actually gauged in any form of intentional touch they could only consider this evidence if once they decide that this intentional touching occurred they could figure out what the motive was and there is abundant overwhelming evidence of sexual intent if the jury decides to believe  thank you i'd like to first say a little bit about how our defense would have been different had the indictment been more specific if the indictment alleges a specific offense that gives us the opportunity to say to the jury the government has approved this specific instance of touching and you have seen evidence that the story of the child has changed over time she has alleged different things involving different people in different acts so do you do you mean just so i'm clear your theory of presentation at trial correct so so had you not learned enough during discovery to craft her theory of trial here's the here's here's where the difference lies because we did not have a specific offense in the indictment the jury was free to say we don't have to find that the offense proven at trial is the same one charge in the indictment we just can look at all of these allegations and kind of come to a decision about whether we agree that some abuse happened i mean that's the prejudice in the indictment that we can argue to the jury look this is the offense has to be proven the one that was charged in the indictment not some other offense this offense i mean so that makes it more difficult to present our defense at trial i also want to talk about allison davis and why she was important she was present for the third forensic interview when prosecutors had this child in a room for five hours questioning her showing her prior statements about this abuse and so her her involvement in coaching the child through this forensic interview and also her involvement in helping the child's that up her trial testimony makes the likelihood that her notes contain evidence of  suggestibility great so i disagree with the government's point about the day there's i also want to make a point about the waiver which is that we do not require child defendants to have a guardian president present to waive their miranda rights we're talking no to waive their constitutional rights so i don't see i don't know of any reason why i should have a guardian present  a privilege but you wouldn't deny that that would be a relevant if not dispositive irrelevant highly relevant factor as to the voluntariness of the decision i don't disagree that it would be a factor but i disagree with this rule that there should specificity the defendant touched me right here on may twelfth at two twelve mockingbird lane and in fact that can sometimes occur when it's discreet  somebody pick somebody up after the football game and this happens but when you have a young child with someone for eighteen months is it ever possible truly to have that kind of specificity that you say you must have to adequately prepare for trial it is that i think the my point would be the government has to decide which version of her story is the truth and take that story to the grand jury and not and no rely on this well she made one allegation and this month she made a different allegation the next month and it doesn't matter which one is true as long as we think something happened and i don't think the difficulty of hearing to the rules should change the rules though i don't think that we that mr evans should be entitled to to less processed and less right just because it's difficult for the government to make their case i think the government should be held to the same standard in this case as they would in a fraud case or in any other kind of case and with reference to the worlds to us rule seven are any of the cases and term putting it mandate that a particular name be placed in the indictment you know there's there's not a mandate i will say i've never seen an indictment that doesn't have initials or some kind of  allegation about identification of who the victim was it does say that there's got to be factual allegations a statement of the essential facts that constitute is the government's burden to prove in a harmless and your error analysis that there was no effect on the verdicts and to introduce in appropriately evidence that mr  that three images of child pornography out of twelve thousand images that was on his computer and not letting us cross examine on the those twelve thousand other images because we don't have the actual analysts there and that is highly prejudicial so when you say you didn't have the actual analysts this is another genuine question that i have what is it exactly that these programs the encased in the f take f t k if i've got that right what is it that that that those spit out what's the data what we see and some which were not at that there was that the it contained information about file structure folder structure with regard to some of the so for some reason it was my impression that the that the government had narrative explanations from german analysts but that they opted not to put on and instead put bridgeboro on to provide his own in court narrative explanation is that not evidence because their original evidence had been destroyed did not exist and so he was taking the results that the german analysts had come up with using a backtracking and testifying about what he believed was done to get that evidence but without actually knowing but you agree that the that there were evidence of narrative explanations provided of the end case  german analyst that was not introduced it was no it you know none of the reports were introduced ok thank you counsel thank you