ninety one this conviction occurred after series of improper evidentiary rowlings at the trial court level each one standing alone i believe warrants a reversal of the conviction however taken in the aggregate most certainly warrants reversal of the conviction first mr willoughby was not permitted to cross examine the complainant in this matter about prior false allegations that she had made that were similar to the allegations made about the cardinal case how is this case different from cardinal this case is different from the cardinal case for two for two reasons one in the cardinal case the constitutional issue was not raised and the fourth one of a shock about the four twelve issue ok and why is cardinal different on the four twelve  issue that was a specific case in which there was very little analysis done of the allegation it should not be a blanket rule applied across the board this case is different because it can be objectively proven that the allegation was false and therefore no sexual conduct actually occurred in four twelve it's not implicated i mean did you have a not you personally but did counsel at trial have some obligation to give us a proffer of some kind or something i mean this this cunt the record is not you know doesn't have a real high level or resolution on this in terms of what exactly what kind of testimony would have been brought in  council could have done i'm just asking if there was an obligation i mean to the extent it's sort of vague and we can't really tell whether this would have been appropriate or not to hold that against you or the government i don't know if you had need to hold it against anyone i think ties go to the defendant in a criminal case i don't know about that i mean something sometimes you know somebody is trying to give certain ruling but anyway go ahead record showed the do the trial counsel say to the judge this is all i want to your judge you're worried about this going off into some frolic and detour in this poor woman sexual history that's not what i'm after this is all i want is there anything like that in the record there is there is nothing like that in the record nothing that would indicate exactly what questions is that's what we love the district court when you say to i want to questions like ok with some of those two questions and then i can say ok well this is not going to be  give you those two questions but not a third if that conversation occurred it was off the record ok i just want to make sure because i when i read the reply ok that's that's what that's a kind of proper i think that that's what i mean that was a nice summ of your brief but i didn't see the district and i returned to that because it is simply an inquiry into a false allegation it does not implicate any sexual conduct especially when there is objective proof that it was false not only did the accused that's karr know that's that's something i'm struggling with i'm not sure cardinals rightly decided but nor mine and it is a case without much analysis and it also like i said did not get into a constitutional issue and it can't be a blanket rule these are very case specific types of inquiries you keep coming back to the constitutional issue that's a different case that has a problem for you right the boggs case yes ok so now what about that one ok if we're moving on to the constitutional issue i don't care where you go i just try to help you try to help you help me ok well i mean teen that for twelve is not implicated but we can move on from that i'm even if we're twelve is implicated there is a constitutional exception in for twelve if the defendant's rights are going to be violated and in this case that certainly happened because he has a right mr willoughby has a right to cross examine his accuser and he was hamstrung in that effort in the confrontation clause doesn't say it gives you the right to confine it doesn't tell you the scope of the conversation what subject matter you get to cover when when the when the complainants credibility when the complainants accusations are the the main evidence against the defendant and that is certainly the case here in the government acknowledge that not closing it's do you believe her if you do you convict him how can mr well be present an adequate defense if he's not permitted to challenge that because there's this like a delaware versus them or stall or whatever the case  yes that you think that governs here i do it's simply just this impede this cross would've been so critical to the defense that it's required absolutely and and the government argues that they're so much more evidence that this doesn't matter this little thing doesn't was i mean that's one thing you ought to dress at some point there's an awful lot of that's going to cause this case and i'm happy to address that now because it ties in on this argument with just what just me just makes follow follow because again i'm  pushing you well i am pushing i'm just trying to make sure i understand the point of everybody so as i understand it bogs versus collins says two thousand which i think is after the delaware cases and it says no confrontation clause violation when for twelve a move for twelve prevents defended from undermining the witnesses quote general credibility by cross examining her about past allegations of rape so i i'm just how do you tell me how to get around that bugs versus collins address as a general credibility attack ok this is a specific because it's about one incident that's the way this works yes it's a physical you two are more incidents it's general  e a general attack on credibility is you're a liar a specific tack on credibility as you accused someone of similar conduct and you later recanted and said it was general credibility languages in the context of a rule for twelve the baby so i don't think the thing that makes a generalization your it's a plural situation of prior instances for it for singular otherwise i don't i don't understand what general means  them they were part it's a four for twelve setting so they must have been talking about several times this happened as opposed to once but mr willoughby needed the opportunity to do was to call into question the complain yes but not only the very essence her her motives past conduct of lying about the very same situation that we're dealing with here so it's not just a credibility issue it's a motive issue it's a pattern and show and he should have been able to go into those issues at trial especially considering that yes there is a lot of evidence that would tend to prove that mr willoughby committed the crime alleged but the evidence doesn't mean anything without her testimony you have to believe her to convict mr willoughby and it's so crucial and it's so central to his ability to present a defense that he should have been able to explore that so now answer just catheters question about the evidence well and i believe i did just now that yes there is a lot of other evidence but none of that evidence means anything without her testimony it's only her testimony that links any of that to mr will be forcing her into prostitution which is what he was convicted of those i don't standing alone could mean absolutely nothing i mean they were girlfriend and boyfriend so on the one hand you're saying you should have been able case is corroborated and i don't know if confirmed is too strong a word but you know the receipts from the hotel they went to other people's testimony about seeing her dropped off at this track place on the grange about two johns who said that they paid to have sex with her by phone records showing that john's calling will  by her calling from a pay phone that record you know it's i mean i certainly in one sense certainly understand where you're coming from there but as i said none of that means anything unless you believe her but my point is it makes you have to believe doesn't i don't when she said i truck he took me to this hotel you know and there's a hotel receipt well at least i would be inclined to believe that they went to the hotel right going to hotel with her isn't what he was can ok and then he gets she gets dropped off at the track and she calls from there probably believe that to right being well there's you know the phone evidence of that being dropped off there doesn't examination but i mean but how about that you had the two johns i mean there now it's somebody else's testimony right that we'd also have to say is it's not just  testimony they're going to get somebody else is saying one of the true one of those johns testified that he didn't even know the defendant now so we can't give that too much credibility as far as the defendant's role in any of this in order for you to believe the defendant a role other than knowing her and having her live in his house you have to believe her one of the giants testified he came to the house yes ok so what did he not know it was the defendant's house or the friend and not know that the john was coming over but mr willoughby didn't testify so we don't know that we don't know why that particular individual is there other than to have sex with the complainant how about the so again that were found in the trash can  that about the scripts that were found for her you know there were scripts that she said he wrote to you know for her to say when she's talking to prospective johns again you have scripts were found but you have to paper but the paper was found right but you have to believe her that he wrote that for her to use to engage in it i mean so when the jury then have to say i mean the script the piece of paper is there so that the jury then have to say well maybe she she wrote that out in some kind of masculine handwriting and crumpled it up and threw it somewhere with the idea that when she got back to the foster parents and talked to the f b i the f b i come and find that it was at the chain of inference is that he would have i'm not even asking you to draw that inference i'm just asking you to understand that all of that evidence doesn't mean a thing if you don't believe her and when he was not permitted to test that he was not permitted to attack her i guess what i meant ability in any way and i understand what i'm trying to suggest is that the corroborative value of all this other testimony would seem to me to overwhelm potentially the impeachment value of the testimony you say should have been permitted and i just want to be can i want to give you a chance i'm trying to give you a chance to tell me i'm wrong but i believe you know that's what i'm attempting to do it to tell you right now all right it all comes down to whether or not the jury believed the complainant and th government acknowledges as much you're right about that therefore it was crucial that he be able to fully confront her fully cross examine her and he wasn't permitted to do so with a of change the jury's mind we don't know that but he deserves that answer he twelve issue i think the bugs me collins case actually takes care of the confrontation clause argument in terms of this is specific and that refers to general credibility just a most like reputation as a liar or something i don't think that's right your hon i think that's that's not the correct reading of that case and i think it's also not a fair accurate and not an accurate representation of what was going on here this is not cross examination about the incident in question the facts giving rise to these charges this is this is a six or eight claim in the reply brief it's finally framed as a pure six wait did you tell a false statement on another occasion if yes the jury can then  infer you have a character for lack of truthfulness and therefore we have reason to think you're not truthful when you're testifying here this is a totally unrelated incident and so i think this is exactly what boxer counsels talking about that when it's makes me feel even more strongly that cardinal is probably wrong that they don't one should have been thinking about this and for twelve through the for twelve months they should have been thinking only six zero eight i mean for twelve the school's evidence offered to prove that a victim engaged in other sexual behavior that's just not what was going on here this was about lying well i have two responses one first lawyer is not until the reply brief that the record is actually made clear that's where they wanted to go i don't think that was clear at the district court level but i mean you can also read the ones that introduced the idea that oh it's an extra void bound up with the alleged sex act itself i mean i don't really see the defense below trying to say we want to talk about the sex acts they well talk about the law i think the point below was simply to go into this inquiry it is difficult to why draw the line i don't understand that you guys are i mean you no no that's fine you're not i mean the prosecution argued that and the district seemed to agree with that but i mean this hayden in her reply brief i mean why isn't that the why doesn't that demonstration just show that the argument that the government advanced the argument the dischord accepted is totally wrong i have two things over there first of all because the prosecution and the disc or a bound by carnal and cardinal made us forget about cardinal for a second ok if this question the two questions in the reply brief were posed to this victim the answer the first question did you ever accuse someone of sexual abuse or social misconduct with you did would you accuse anyone of truth lancers no because she did not think that she accused anyone she told some friends that she was or wasn't fooling around with the guy and so that's not an accusation of anything else so if they had framed this to the district court that all they want to ask is this question and then this question they never get out of the gate because the answer to the first question would have been no have to sort of try to get into it w and exactly right her and the only way you get to the point they want to get to is why didn't you say you did this in the theater didn't you say you did this and now we are going down that road and that's exactly why carving in the absence of cardinal they would have gotten th answer i'll give you that you were an initially were saying that without cardinal they would have gotten this in but anyway you had second thoughts ago with your so i do and the reason is without cardinal i don't think are for twelve argument would have prevailed but there's still the six weight issue and six to eight expressly says in the discretion of the district court and here the district court would have been entitled to say this is too far afield we're going to get into a mini trial the jury may get confused and we are dragging the victim through the m so whether it's a pure for twelve issue the policies behind for twelve are still in play and whether we call it six to eight or four or three the district court absolute has the discretion to say this is unrelated this is simply this light could have been about other how about if she in a case in say the the complainant she's testifying she did this she made these sorts of complaints or can it ten times ten other occasions come in is there's two reasons one he was able to make this argument the confrontation clause cases address when the defendant is completely precluded from advancing his defense it's not he couldn't do it as well as he wanted to understand that distinction but sometimes when excludes pretty damn well but which are unimportant i now understand that you're on a par with but there definitely are it's still early in the morning the point was made your honor there was an exhibit in this case where the victim herself talked about having told a lie and so if the crux of his defense is this is someone who on occasion tells lies and therefore the jury can infer that perhaps she's lying in this case you know i mean if you're the defense lawyer it's so much more powerful an instance of this kind of why not just you know she lied about her age you know at a job ok i understand your honor but but let's let's play that out a little further at trial let's say this court remains and there's a new trial they're going to ask the question did you accuse him of misconduct she's going to say no they're going to get into well didn't you say that you'd fooled around with him the punchline of that story that the prosecutor's going to get get to on redirect is is it true that when someone was falsely being accused of engaging in sexual conduct with you you told the truth because that's what happened below and their version of events when she's confronted and it's made clear to her was this after a lie detector test now for him but not her and we don't know whether or not she was made aware of that your honor well we know is the staff in vet interviewed her and then she told part of the story and then they came back another time and she said you know i need to tell you that the things i said were not true and so the punchline of that story is when she realizes this guy's going to lose his job this guy may be charged she told the truth she did not persist in a false allegation against somebody and so the probative value of this prior incident is actually not what it might look on the surface because she retracted it when it looked like someone might be unfairly accused the she didn't go to the police and say this cancer's abusing me she was just talking among friends her peers at the at the center and when the police came to her she said no that's not true when the the authorities came to her and so this doesn't tell us anything about whether or not she's someone who would lie to put someone in jail or to get someone in trouble for something they didn't do it's quite the opposite it actually reinforces our her credibility and so because it's an unrelated incident as this morning i think has demonstrated you can't get into this without getting a long ways into what she said what is she don who she done it with i think this is remain and if the court going over rules cardinal or finds a way to distinguish it i think the district court would still make a motion under for a three and under six a weight to exclude it and i think the district court would be well within its discretion i'm not saying the court has to but i think the court could do that and if the court can do that then there's no reversible error in this case in addition to you there's no reason you should remember this if you don't no worries but there rape and in bartlett and are that's an allegation of rape that's my recollection and if it was starlet is it that makes it more of a for twelve isn't it and i thought i thought the point of this case which is funny is it's all about read the charge in those cases is rape and the prior allegation is that the victim either against that particular defendant in one of them or against other persons i think other family members the victim had said this person rape me and then recanted it and frankly i think that stronger physically if it's the same person if the victim here had recanted and said i will be never prosecuted mia he had no idea i was doing this  on my own then i agree it's a much harder case for the government to win on for three or six away grounds because it's so close to the core of the defense that these allegations are false but we don't have that what we have is simply character for truthfulness and that is as ancillary to the core issue here with respect to your question earlier judge kessler i think that when the government says there's a six or a good case that on its face right or wrong district court discretion to make this ruling then if the defense has an exception or a way to frame it that's different i think it is incumbent on them to advance that and put that are going forward long before we get to the reply brief in the court of appeals if nothing else we would have had an opportunity to better develop what would have been asked what would what would her answer have been like to ask you about the higginbotham and that's the most certainly on and and just to get your i mean just if you could clarify the much the way i mean i mean frankly as a district judge if a defense attorney says to me i don't really have a good idea on that but i i really want to talk about the drugs as a district judge i would sure that as go ahead and let that in but let's talk about the drugs but you know and and i understand your point there just but setting that aside i mean what is the purpose that he tried to you know be a parent for me to here's the here's the way the case played out there's no dispute that that she lived with him and the defense attorney says that in opening statements she's there for four to six weeks her testimony and the testimony of the two johns who walked in a federal court and said yeah i paid for sex and  this phone number the defendant's phone number to do so they can't dispute that there's just no reason for them to say that if it's not true and so the only issue here is when the defendant is recruiting her when he's harboring her when he's maintaining her when he's transporting her does he know that the reason she's going to le grange the reason she's going to these men's houses when he's keeping her there does he know that this is so that she will be engaging commercial sex acts and taking out of these places who's causing her to engage in commercial sex acts and the answer is the defendant how does he know this and how do we know that that's his intent because he's tried to do similar things in the past i would how would this usage differ from is admissible with the case because they are we have some we got a lot of conflicting hard to reconcile our floor understand that your honor but i think that there are a number of cases in the drug distribution context where this court has found intent to distribute  one occasion is i think i know one or two you're thinking of but how about the bell case can you pass the bill well first of all i don't know that i need to pass a bill test because i passed the bend test and baton was before bell but let's say let's talk about what if  is court wants to apply the belt test i think we can pass the bell test and the reason is the bell standard is is to prior conduct sufficiently analogise so that we can draw that inference and bell talks about is it the same same or similar scheme now i'm not sure there's there's clearly a line there that if it's too close now and race just die and this is really the same conduct but what did he do with that with renee tot he tried to pick route and he had sex with her and what did he do here he tried to put this woman out any and sex with her with higginbotham he took her to the track what did he do here he took a stab you to the track he talked about taken her to detroit what do you do with him he took her to detroit he talked about taking her other places as you said he talked about taking her to florida to philadelphia that's exactly the exact same conduct and even some of the same places that higginbotham talked about going to try to walk the track and so like to just address the for a for be issue with mistaken bottom and miss todd regarding mistaken granted she did give the testimony regarding seeing the victim dropped off on the track however that is not what the defendant has an issue with the defendant has an issue with this pick testimony i'll just be frank and call it that and despite the you know assertions by the government of the the use for that evidence my submit that's just lip service because if you look at the closing argument of the government what did they use the evidence for what was it actually used for and pam pam pam pete was a pimp then he's a pimp now look at this point that was the closing argument in that relied heavily on the testimony of mistaken miss todd it was used for an improper purpose and that is the issue here is the prejudicial impact of this testimony diminish  the fact that he had these rap lyrics that describe himself as a pro or i don't believe so i mean let's be honest how many rappers rap about you know pimping being a parent that doesn't make them account doesn't mean they are but i have no knowledge truck he was a pimp that was one of the truck i mean you know that he's using it your point is they get it in one way i get your point they get in one way not for a fancy then they start talking about it in a propensity way i mean first of all that's a good time for them to action would be my first thing to say but my second of all i think i had i been defense counsel i'm just not sure what objective because then they say they can make it worse they say pimp that have the same scheme every time and  that i just so they could keep getting to repeat pampa and how much of things improved it but it isn't the same scheme and that's that's the other point is that many didn't i never miss todd never worked for she didn't testify that she worked for willoughby so obviously he's not forcing people into prostitution or she too would have been forced into prostitution she walked freely about you she knew him she had a relationship with him but she was not pimped out by h about them also not that not even remotely the same situation even by her own testimony she left when she wanted to leave he didn't keep her there he didn't force her to do anything so it's not the same it's not even remotely the same as what the  complainant in this case is alleged happened so it has very little probative value and it certainly what little it has outweighed by the prejudice to the defendant being able to say  i don't think we have any other questions but both of you've been really helpful great bring great arguments thanks for answering our questions and thank you ms hayden looks like you're c j so we know how little you get compensated for this but mr willoughby was lucky thanks for