didn't you didn't your client benefit from all this testimony basically she made the argument you're making that she was independent that this business of him being in control of her was not true so she how did how did it she was doing this one wrong the polish and the government essentially called her a liar thereby undermining her credibility but the only thing that you wish she could have also said is and i did this before but they still could have brought in her grand jury testimony to impeach her and called her a liar i mean i don't understand how having her say i was a prostitute before this was going to affect whether she was impeached because the government was arguing that my client recruited her that my client was her evidence which could have been used to rehabilitate why why does that contradict that he took her to california or why does the fact that she might have done prostitution on her own before contradict the fact that king testified in what she testified well it was relevant to his mere presence defense's presence was he didn't deny that he went along his defense was that he went along to the right because he liked the girl he liked her he was invited by mr king the way he actually knew mr king was when this young this month young man was eighteen years and three months old when this crime occurred at the age of eighteen he was the foster care system he was placed in the home of mr king's found mr king's father who was  as it was established during sentencing it's a sense since transcript juvenile stories became aware that they placed mr hands in this home where he shouldn't be but before they could remove him he aged out of the system so that's how he knew the son mr king he was his friend and he was but he was not able to rehabilitate his witness when she was attacked her credibility was attacked by the government i just don't understand how it would rehabilitate her though she contradicted her grand jury testimony contradicted her trial testimony so she was going to be attacked for that she lied under oath in one situation or the other and how saying i was a prostitute before would change that i don't understand it because when the government attacked her with a grand jury testimony which i would submit  and i'd like to address that a little later but the reason she lied and for the grand jury was because if you talk to pattern carcer it she was immediately released right after she testified she testified that the reason i live in from the grand jury because i didn't want to be in custody by the time of trial she was already back in custody because she had done other violations when she was out so a trial came around she had nothing to lose she was willing to tell the truth because she wasn't going to get out and she'd tell that whole story you just gave us to the jury and they didn't believe her well they didn't believe well there was an issue of credibility and when the judge mentioned that this case boiled down to an issue of credibility who they believe king or haines and i think it's relevant because this was other evidence this was evidence that went directly to his theory of defense look a spurious of japan's was i was merely present and to support that this young lady has been doing this for a year she's never used a pen now i think would be a little different scenario at the government didn't choose to attack her credibility so they attacked  credibility i think here under the due process since this went to an element of this defense the fact that it wasn't it wasn't sexual conduct that he was seeking to subsume it that was not really what was relevant it was the fact that she never used a pimp because the government was saying yes you did he is your pimp the factory your previously that shooting gave him prostitute neck prostitution activities and never used a pimp as relevant to that specifically when they chose to attack their own witness she had explanation for why she lied and from the great she gave that explanation she wasn't prevented from giving that explanation well after she gave that explanation that's when they brought in king and king said no no he were courage her he's a pen and i may ask this pam right to do that but it think he had a right to come in and say look you're saying that she she she's not a renegade that was essentially a position she's not renegade well the fact the first year previously she had been acting as a solo practitioner for lack of a better was relevant to whether or not he was merely present whether he just went along for the right whether he went along as her pimp that's the only purpose for which we were seeking to admit it and i would submit that under versus arizona it's a denial of to process when a defendant is denied the right to present evidence well event to an element of his defense and one of the elements of his defense its entire defense he didn't deny he went there he didn't deny he went along but he denied that he recruited her he encouraged her or that he was her parent but his argument was fully ventilated know before the jury i mean that in the closing argument there was counsel said that this was not her first rodeo the chief knew where the blade was she knew all about back page she knew her place and ads are all that i mean the whole defense seems to me pretty much came in well and that was argument i mean is the difference between a trial was argument based on evidence or another those things were not just created out of the blue but i was not permitted to bring in the evidence to see the jury look this isn't her first rodeo she's been doing this for a year she's been herself for a year unfortunately that was reality of the situation and the jury wasn't proven with provided with the whole picture i did the best i could to make this argument without having essential evidence again it may not have been that important if the government hadn't knows to the advisory committee and also in many of the opinions which cite the rape shield law that for twelve weeks has expanded protections to safeguard the alleged victim against invasion of privacy potential embarrassment and sexual stereotyping etc she did not want to avail herself of that protection that was a shield for her and the government took the shield and used as a sword to preclude her from telling her truth this young lady wanted this jury to know that she was a sole practitioner she was not happy with the government she was not happy with the way they treated her she felt her testimony was core as we made that argument and then they called her a liar and stopped her from telling the truth is there is there any case that says that the district judge needed to let her waive this protection well i was mature there's never been a case where the government hasn't boat the rape shield against the wishes of a victim do we know that i have not found any case where that  and i would submit that that that shield is her shield and i would like to analogize it somewhat to a search and seizure the only individual who has a right to object to a lawful to an unlawful search and seizure is a person has a right to privacy in this particular this was jordan's right to privacy this was a shield that was there protect her that she did not want to avail herself of not only did she want to tell her truth but again the underlying evidence was relevant to his defense and they chose to the jury didn't invoked when a victim did not want and vote or where the defense was mere presence the majority of those cases have to do with the there was court that she wasn't the victim wasn't being coerced or that the victim wasn't the intent of the spores was she's a victim or not whatever you want to called that should govern whether the statute applies is that your argument basically that doesn't apply depending on the alleged victim doesn't want to lie well i think the way the rape shield the purpose of the rape shield is to protect the victim to prevent hearst's well but it's on the books it says what it says i mean our courts supposed to ignore it depending on well i would submit that under the way the the victim didn't say what the government wanted her to say so then they use this sort as a shield to preclude not only my kind as indicated from from telling presenting evidence that went to his mens rare but also to preclude her from telling her truth  the eighth circuit says it's irrelevant they say whether minor victims had engaged in acts of prostitution before or after their encounters with the defendant is irrelevant well it's irrelevant when it goes to an issue of the consent you know his arguments i did not have the mens rea i did not have the intent to traffic this young lady i went along because i liked her but mens well i didn't understand mens rea or to be the main point of contention i thought his point of contention was whether he was really getting money from her whether he was really acting either pimp and if he was acting what was his intent on going alone there if he was in the car and he was going along as her pimp even though he may not have been physically driving if he was aiding and abetting if he was harboring if you sit tight make the same argument if the government hadn't called king to rebut to rebut her would you are you saying that your argument depends on that fact the government had you've expressed sort of outrage at the government's calling king to refuse her just a moment so i'm is that when your argument depends on that act of the government well i think i think i'm in a different stages i had wanted to bring to bring this evidence and this was evidence that was that i received days before trial that they had not given to me and i had asked to bring it in the judge had said no you can't bring that in but i think that once they chose to attack her credibility as diminishing my client's mere presence defense which was supported by jordan so they bring in king two to impeach her credibility king's testimony made it was an issue of who do you believe you know believe king are you going to believe jordan and since it is so intricate to his defense again of what was his and he was there he went along with them but if you go along as a guy who liked to girl or did you go along as a pimp and the fact that she said i don't use a pimp and they called her a liar he should have been able to say well no look she's been doing this for a year and again it's not the underlying sexual conduct the we were seeking to present it was just the fact that this young lady has never used a pimp and you're accusing him of being her pimp i think that's why it becomes relevant and credibility was everything in this case whether or not you believe king of whether or not you believed jordan and i think my time's up i appreciate i'll still give you a minute for about a thank you good morning it please the court v j shanker for the united states there is touching at this point soley on the on the role for twelve issue my colleague i think encapsulated exactly what the issue is here when she herself described what it is that she wanted to get in a trial and that was she wanted to say she's been doing this for a year that is precisely the type of evidence that rule for twelve forecloses that is exactly the policy judgment that the rules committee and congress made th evidence should not be brought and we're talking about a fifteen year old victim here and so for the defense to come in and say she's been doing this for a year is exactly what congress thought should not be brought before the jury and what if she doesn't want to protection does have character and it does not your honor this is a rule of evidence and it starts out as a rule of inadmissibility with certain limited numerated exceptions one of those is not the desires of the victim and there are good reasons for that and i think those reasons are exemplified in this very case we have a victim who came out at trial was contacted by this defendant from the from jail and told not to testify make yourself scarce don't testify against me and his family was also threatened by one of the two defendants of course king was no longer a defendant he became a witness but at the time he was defendant a defendant one of these two defendants contacted her family and threatened them that is exactly why we don't want to be putting victims in the place of having to choose do i invoke this rule is it mine to waive it's not the victim's decision to make it's that it's a rule of evidence if the government seeks to invoke it to preclude testimony then it's up to the district court and of course  of discretion standard here so was it an abuse of discretion for the district court to conclude that this is the very type of evidence covered by the rule and none of the exceptions applied here with that  government's happy to rest on its briefs all the other issues well you didn't try this case i don't know so i'm not being critical of you but in reviewing this case this was the best thing the government has done  there was some some really difficult things for me to understand why the government was acting the way it did and primarily at the end where the government says they believe a witness even a in isolation and take out that snippet we don't dispute here on appeal that that does constitute vouching as the courts have defined it what is clear from this as your honor said even a law student knows that what's clear from this that the prosecutor immediately knew it herself and i'm not saying that that on rings the bell but this court has said that we don't have prosecutor prosecutorial misconduct when it's clearly an inadvertent statement or a misstatement the p though one of the others wouldn't cause reversal when you put them all together there hasn't been a fair trial and constant not argue that but i'm just curious of the government's position on that why why c defendant deprived of his or her due process right to a fair trial this court and others have recognized that trials are difficult proceedings with with lots of errors they are fast moving and obviously errors that affect the outcome of the verdict have to be addressed what we have here are admittedly as we have acknowledged in our brief a few instances isolated brief and corrected of misstatements by the prosecutor we don't back away from that the question is was the defendant deprived of his right to a fair trial with respect to two of the witness statements that came out inadvertently one was the reference to cali and to youth center and the other was the reference to jailhouse calls by detective leo in both of those situations we had immediate curative instructions by the district court the testimony was stricken from the record and the jury was instructed not to consider it and then subsequently in the closing instructions the jury was instructed that testimony that had been stricken could not be considered as evidence and so we do have things that came out inadvertently they are regrettable we could a jury was also instructed something to the effect of you should especially suspicious of king's testimony or his credibility was that in response to the vouching knowing that already planned no that was a planned instruction so we have really with respect to the vouching i think we have four instructions that are relevant here two of them worst were sort of together but one was that statement and arguments by attorneys are not evidence the second homes that closing argument specifically are not evidence the third was that the jurors are the sole  credibility of witnesses and the fourth one was that king's testimony should be viewed with greater caution because he was a cooperating witness so that was a basically a cooperating witness instruction not so much tailored to the vouching situation in any event the broader point is that all of these instructions together which the jury is presumed to follow i think mitigates the few errors that happened in this trial it was not an especially lengthy trial but it was a four day trial with numerous witnesses  and i think the court including the supreme court has recognized that defined as entitle to a fair trial but not a perfect trial so could you clarify just a factual thing for me the text messages where they have shown to the jury where they only described  thank you it was a little point out that under four twelve one of the exceptions for twelve dually and three exceptions permitting the court to admit the type of evidence in a criminal case and paragraph c as when the evidence was exclusion would violate the defendant's constitutional rights and i would submit that since this did go to an element of the fans whether or not his intent was whether or not he was a pimp then see the evidence would have been admissible regarding the pros ok our final case on calendar is b k versus bad law seventeen dash one seven five zero one and seventeen dash seventeen five o two in this case each side will have twenty minutes