and to conform the supervised release condition to the oral announcement with or with the court's permission because the government and i recently exchanged twenty a j letters on the issue of the prior consistent statements i will start they are there are essentially three areas where the government and i have a dispute with regard to the park and system statements one is the existence of the motive to fabricate the nd has to do with  what role if any subsection two plays and then the rd would be the harmful ness of the introduction of the evidence with respect to the motive to fabricate the government's position is that there was no motive to fabricate that is simply belied by the record in this case the fact the matter is that mr davis the alleged victim here did in fact fabricate she initially said when she st contacted the police that nothing had happened and then she proceeded to flipflop her story so end and when she was asked about it she conceded that it would be embarrassing for cousins to have sex and that's why from our position that's why she fabricated the story to avoid embarrassment so from our position there is a clear motive to fabricate moreover that motive to fabricate a rose well before she made the can the statements that were at  issue she made those statements toward the end of the investigation of the case after she had st told the responding officer that there was no sexual assault nothing happened she then proceeded to flip flop she told  that nothing happened then she was approached by captain went from the fire department to discuss that she then said she was penetrated she then provided a story in an exhibit that was presented to the court in which she described the basic nature of what normally would have been the us all but didn't mention that she was sexually assault and she continued to flip and there were multiple flips after that and then she told our officer marches though that she had been sexually assaulted and she described in a way that was consistent with her trial testimony so based on the record there's really no question that she had a motive to fabricate and that arose well before she made the statements to officer with the twenty and j letter that cites partido which is the th circuit case that i believe addresses this to the extent that the court believes that there were inconsistency is outside of the motive to fabricate there were even identified by the government but it's my position that everything that happened in terms of attacking ms davis was this motive to fabricate the entire defense was that this davis lied about the rape because she was embarrassed that she had sex with her cousin and that she had been drinking with her cousin and had been drinking a specific kind of liquor fireball whiskey that she acknowledged and cross examination made her lose control  so the entire thrust of the defense was that there was this motive to fabricate the inconsistency as alleged inconsistency is that the government identifies or not really inconsistency as they point out they say that we said that ms davis provided a different story in an interview i was not that she provided a different story or an inconsistent account of the assault she didn't identify that the assault happened and that goes exactly to the motive same thing about reasons that she got out of the car whether or not mr burdette hold her down all those questions were about clarifying what her actual testimony was they weren't even pointing out inconsistency as they were trying to clarify the record and what her testimony actually was  subsection two a rule eight hundred and one has nothing to do with the motive to fabricate is when credibility has been attacked on another ground and it's our position that there was no other ground on which ms davis was attacked she was attacked solely for  the purpose of fabrication and the government is incorrect that it's keys that support its position and those cases the statements that came in under subsection two were exactly the kind of statements that should come in under subsection t cell the witness was confronted with certain kinds of statements that made it look like she was because of her statement it made it look like she was she had left out things or were withheld something from the police and then the government came back and brought in her entire statement to show that those perceived inconsistency is where an inconsistency is at all and that she actually provided the full information to the police the same thing with the j f k case from the  there the witness was confronted on cross with information saying that oh you've made new statements you've made different statements you've never said this before and the government brought in prior consists of statements to show that in context all of statements have been made the situation here or is completely different and finally as to the harm you have to understand the text of this case really it is he said she said the jury heard a lot of evidence that the victim had flip flopped in her in her recounting of whether or not essential assault had happened and then for the government to bring in a law enforcement witness at the end after she testified to clean up everything and to provide a very concise very professional account of what she said is really devastating to the did the officers testimony you know what she did so that really to what had already come in from those other three witnesses about what she said well let me clarify what we had was the timeline of flip flops and so those other statements were important in terms of showing how she flip flopped so it wasn't like she said nothing happened and then said it did and then stuck with it there was actually a flip flopping within that but so what you have are a series of statements of sort of weighing each side right so you've got her saying nothing happened her saying something happened when the officer comes in and he says exactly what she's ted what exactly was she testified to in the most concise way possible from the mouth of a law enforcement officer is one more wait on the government by and there was no and also coming from an officer that's incredibly powerful for the government to have that so it outweighs and it makes it look and gives her more credibility that she was  and what she said and he took her aside if you recall because he was afraid that there might be multiple men present and she would be ashamed and what she said was she was penetrated and he understood that to mean that she was actually assaulted but what she said hospital and she said that she was sexually assaulted then she spoke at your three hundred and seventy six with officer thompson she told him to leave it alone three hundred and seventy eight dollars is the introduction of exhibit sixteen which was submitted to the court she describes the incident during that description she said as he pulled my shorts off she never says that she was sexually assaulted she just describes that interaction and was they were together in the woods and she ran away elin at your friend's seventy eight and i think five hundred and ninety two there's the same nurse where she describes a sexual assault that's an interesting statement in that she in that statement says she references the drinking and she sa that paul kept drinking and she stopped drinking which also implies that she had been drinking while out in the was with him during the sexual assault which is which is not what she had said during her testimony so old that then leads up to officer march that was testimony so my point is when you look at that there's actually a lot of flip flopping and when the government then brings in the law enforcement officer it's incredibly damning for the defense because it does the last word that they you're he shores up all of these problems and all of these flip flops for where the government i see has been a lot of my time on that i do want to hit the four hundred and thirteen slash four o three issue  that has to subcomponents one that the evidence from my plans ex wife should not have been admitted at all under rule four hundred and three and two that there should have been a jury instruction this evidence was extraordinarily prejudicial in a he said she said case and you've got my client's ex wife saying that he raped her three times during the marriage she testified to three separate incidents one of which when she was pregnant and one of which when she was  with their child even if the court disagrees and think that the evidence should have been met it certainly should have come where a jury instruction and i keep in mind that randi joe brown though the ex wife was the last witness in the government's case and she so what the jury was left with was testimony they had no idea why it was coming in or what they were to do with it and they didn't get that information either before her testimony or in the final instructions both of which were recommended by the th circuit  considered and knew that this instruction could be given and then affirmatively decided not to give it what the record shows is that there was confusion so what happened initially before randy joe brown's testimony was that the government asked for the instruction you're correct the government absolutely asked for this instruction defense counsel then asked the court to exclude the testimony entirely the argument there was directed at whether the testimony qualified under will for thirteen has a prior sexual assault the the district court basically said i've already ruled on that as to the government and then the district court without giving defense counsel any opportunity to address the instruction itself because all she had said was don't allow this testimony it's not going to qualify as a sexual assault the district court then cut off defense counsel and said i'm not reading instruction a similar level of confusion happened when there was a discussion of the final instructions the the court said to the government you've asked for this yesterday i told you i wasn't giving the government then didn't make a record and then asked and then the district court asked for defense counsel's position defense counsel was clearly confused and said it's not needed because there's this for a whore be instruction the government said well we're not proceeding under for her be we're going under for thirteen and then depends counsels as well i mean it's the four hundred and thirteen dollars instruction and then she gets caught up again by the judge it's clear from not exchange that she thought there was an instruction in the packet that cover that evidence so that under that record there's no way it's invited there and my argument is also it's not plain air either because what would have been required of not point is or the defense counsel to take exception to a ruling that the thank you good afternoon may please the rachel hernandez on behalf of the united states after a night of drinking the defendant read his cousin in the woods and left her there where the police were collecting evidence as lead down giving them a pair of shorts instead of the pants he was wearing on the night of the assault and when d n a evidence was discovered he changed his story about what happened that night given the strength of that evidence the crux of the defense centered on the victim's credibility the district  were sound particularly given the highly deferential standard of abuse of discretion that is a play of all turning just to the for thirteen issue st the evidence met the  main factors the court conducted an extensive period considered the statements of the ex wife and and made proper rulings there i will turn to the issue that counsel was last addressing which is the jury instructions and and to judge miller's question about why or or what evidence is there that it was waived and i will tell you that defense counsel was aware that this was an issue because this  i don't dispute what counsel said as to how the discussion occurred with regard to this instruction but the fact that the assertion that she was not able to bring this up to the judge the defense said they needed time the judge gave it a brief recess the parties came back made argument on that other instruction and then the court said is there anything else certainly in that time should there if there was confusion the defense counsel had time to address that but as i said there was not confusion because this was a disputed instruction defense counsel was aware that this was coming in under four hundred and  she told the court appointees that it was not needed and that this was not a prior bad act so all of those factors support waiver here in the event that the core was still beyond the waiver argument i would say clean air  fight here it again i would point to that her as the error in objecting the point is to advise the district court to kind of send them a flag saying hey i don't i don't think you're getting this raid when the dish when the should be reviewed under plain error and there was no plane error the substantial waves of the defender were unaffected because the missing instruction itself places no limits on how the jury could handle the evidence the missing instruction says you may use this evidence of a reported missing instruction you may use this evidence to decide whether the defendant committed the act charged in the indictment that's a very broad use of the evidence so what the jury was told  ead was you must determine whether the defendant is guilty or not guilty of the charge in the indictment and that he's not on trial for any other conduct or offense not charged in the indictment so the jury was actually left with a more restrictive understanding of what they could do with that evidence than they would have bed if the instruction had been given i would like to move on to that issue of the prior consistency yes and i it's a bit of a i think it's a bit of a moving target with regard to when the motive for the purported motive to lie or rose to falsify rose given that she had not whether she had ever said it was consensual had not consensual in the beginning she did not report that she had been dissolved it and then she did report it after that there are times where she was interviewed and did not raise this court however as has not spoken on it and said no i think the easy answer is it was harmless and let me tell you why st of all officer marcia ball testified his entire testimony to wrack cross redirect spans fifteen pages of the transcript the questions at issue here span one and a half of those pages eight questions by comparison the victim's cross alone the focus of the case it was not even the focus of his testimony it was not discussed in cross examination in contrast what was discussed was a nother recorded interview by detective with a different police officer which admitted without objection by defense and which defense to play it in their closing argument played that recording of the day down so when you compare that and you compare the victims  the extensive nature of the victim's testimony and the cross examination of her statements and as the court pointed out the nurse the e m t and just the overall strength of the evidence which i mentioned earlier supervised release as the court is aware there is great deference owed to the district court who has the ability to observe to defend it throughout the proceedings pretty trial trial sentence say and here you ha an unobjective to chris said this report that his hands the lately of prior criminal history and bad ass towards domestic partners and for those reasons as the court the district court  believe that ms brown's testimony constituted perhaps sexual assault of the end for thirteen that's the only reason it was viewed and there is no evidence in the record the defense counsel did not want that instruction given the only evidence in the record is that she was confused and the case law messing us flores in particular does not require although it acknowledges that sometimes it would be nice if the defense counsel spoke up when things like this happen once the court will that's not what's required under the is she had blood on her pants she had scrapes and she was stranded in the forest and people were concerned that she had been sexually assaulted when that was offered to her she took it that's the theory of the case with respect to lifetime supervis release all i can say about that is it's an extremely rare thing right individual to get lifetime supervised release and what the judge decided here makes no sense in terms of the record my client had mental health issues he had alcohol abuse issues there's no question about that i had knowledge that there was evidence in the p s r that he had a domestic abuse problem that does not justify lifetime supervised release only thirteen