good morning your honour's matt campbell from the federal defenders of eastern washington on behalf of washington and idaho i should say on behalf of jeremy bowman i'm going to attempt to reserve three minutes for rebuttal mr bowman's trial was rendered fundamentally unfair by two erroneous district court rulings the district court admitted under federal rule of evidence for thirteen mr bowman's prior conviction which was over ten years old when amounted to a statutory rape conviction this admission was erroneous because the conviction was factually  similar to the incident allegations remote in time infrequent occurrence and unnecessary but let me ask you a question yes because of you we could disagree as to what the judge did and maybe we would do something else but distended is that it was illogical implausible or without the support of facts in the record if first did the judge procedurally do anything wrong or failed to do anything that would constitute a reversible error i know is a holy hearing that he did he do something where you wanted him to do something that he didn't do or otherwise he did something that he should have done procedurally you are the district judge in essence there were several motions filed on both sides the district judge decided those motions without a hearing i guess i'm not specifically  r pages three through fourteen give or take he didn't have a hearing on the gist of i understand your response to my colleague are you saying there was a motion in limine the in the in the parties were in judge's chambers to discuss it there was no disk there was no face to face discussion of it it was filed on paper and if in the order specifically states that judge lodge found it sufficient to decide on paper vote each party presented its arguments on or on the judge decided without annoying ok ok but specifically so from that perspective i think our argument is that the district judge made conclusions  which were eroni is because they didn't they had to be more than iranis you have to be logical and implausible and with poor inferences and may be drawn from the record and i think that they are here  specifically if we look at that order judge lodge made the determination that the prior conviction was dissimilar under four when he discussed four or four b he specifically said there dissimilar the circumstances are not similar at all and he noted  that one involved allegations involving a minor which was essentially a statutory rape conviction and the allegations here were of violent rape against someone's will so that judge lodge specifically found that they that none went in favor of the government there were over ten the there was over ten years difference between the two there was no frequency went against the government in that  there were simply one prior allegation there were no intervening circumstances that would justify it and frankly it wasn't necessary the government had over ten had ten or more witnesses who all testified they were allowed to testify to things such  as that the complaining witness behaved consistently with what one would expect from a rape victim which cause problems for our second argument it seems to me that's the most interesting argument that you have here because it appears that  his the judge district courts bases for its ruling on allowing it under for thirteen was there was no consent in terms of why it was similar i'm focused on the similarity here  because i think that may be your strongest our argument what's your best case that level of generality just that because the one was involved a minor the other one wasn't a minor but it was not consensual sex what's what's your best case that that's insufficient  level of similarity for the two thirteen you're on i think it's it's harder to find cases in which the evidence was disallowed than that the evidence was allowed but i think the consistency that we see in cases like le may in cases like luna in cases like the dovi glanzer case is that typically there involving for like a child molestation type allegations where the similarity is appropriate interest in children and what we have been that is the analysis that the courts engage and what we have here is a situation where we don't simply don't see that we see one case involving allegedly a person interest in children one case involving the violent rape of an adult female so we simply just see a disparate analysis that yet we don't   i think the i think it's for thirteen and for fourteen i would agree that they're generally seen interchangeably but what we typically don't see is a situation where in essence you almost have one for thirteen case and one for fourteen case and you say those are similar and really judge lodge said they're similar because they're sexual assault cases and that was it in terms of similarity and so my next question is when you look though at the facts underlying the two thousand  conviction there does appear to be some similarity because it looks like they were part in the two thousand and six which kind of tracks what happened and the underlying facts here they were hardy in that case the victim was a fifteen year old girl with an eight year difference between the defendant versus a ten year difference with an adult female but otherwise a lot of the similar situation was drinking drugs so that both of them in the two thousand and six conviction acknowledge that they had been talking to each other and  seems like they were hanging out in both situations and the lead up to both of the situation seems very similar so even if accepting your argument regarding the inconsistency which i acknowledge is gave me some pause why isn't the decision ultimately harmless because judge lodge specifically determined that the facts that you just mentioned shouldn't come in the only facts that yuri was given regarding this conviction was essentially the first page of the judgment which simply stated what the conviction was the jury was never supposed to hear any facts regarding  objected to that judge lodge in his ruling on paper that i spoke of said essentially he would allow the fact of conviction the charge and that is it getting the didn't did defendant object to having the facts presented to the record on the record i mean yes i suppose we objected to all what you're basically saying is that you were better off if the facts if the the conviction itself sounds worse than what the facts would have shown well the conviction itself you make is dissimilar and really amounts to purely telling the jury he has a prior conviction and that analysis that your honor just went through was not part of judge blind man you're looking at the elephant one way and the prosecution lawyer said another way the judge looked at it another way you're looking at different parts of the elephant describing what they see and as my colleague pointed out though the standard here is a in making that showing what we have to do is rely on the ultimate ruling that the judge made the ultimate ruling that the judge made in essence was contradictory and presented the jury with evidence that was of no value it didn't provide modus operandi it didn't provide similar circumstances it simply told them in essence that this was a bad person who should convict i see my time's up it's going to give you a minute can we kind of use some of your time serena case hargrove on behalf of the united states one small quick correction first although this wasn't raised in the briefing judge lodge did offer to listen and asked the attorneys as he when he issued his decision a to ask for a hearing if they wished to have one in order to comply with rule twelve and that's a footnote to our eight in terms of the questions about the four a four b ruling versus the four thirteen ruling there is no contradiction there as the both one may and the advisory committee notes explain in rule fo thirteen that rule is designed to supersede the restrictive aspects of rule for a for b werewolf for a for b is a rule of exclusion that has exceptions to it that would allow f admission rule for thirteen is a rule of admission and that makes all the difference let me commented on their set page ten thirty two the limb a decision  that the role was specially designed to allow for admission and is indeed the reverse of the rule for i forget about the similarity analysis though because it seems like we have a case law that says it and i think it's may and glance or and then make a ruling especially regarding the similarity factor and here it does give me some pause the level of generality on the fourth thirteen even though it's a rule of admission instead of proscription  that the only similarity that the judge found was nonconsensual that's it and one of them was a was the prior conviction was for trial and there's been some discussion in our case law whether or not that should really be the basis just that one statement oh they're both not consensual when potentially the incidents could look very different and there's examples of that in our case law so i'd like to know your your position regarding that do you think and will you advocate forward from here that that's sufficient just that one statement your honor judge lodge carefully reviewed the briefing and the briefing went into great detail on the underlying did not you're absolutely correct and so it could be you could answer my question do you think that's a sufficient basis going forward just looked at this one even though that other the prior conviction involving our greatest sexual abuse of a minor could have been a four year old it could have been you know a three year old and this one you know was adult female who was twenty eight or thirty so i'm just want to know what your what your views are that on that your honor it would be preferable to have a more detailed decision from the court certainly in this case however the judge did review the underlying facts which were included in the government's briefing and as your honor pointed out those underlying facts make the convictions extremely similar the court then did a huge favor to the defense and only allowed evidence of the conviction itself to come before the jury the court sienna ties to that prior conviction and that is sharp contrast to what the court could have done if you look at limaye there was a prior conviction in that case as well and the mother was allowed to testify about the facts underlying the prior conviction which were extremely inflammatory involving the rape of her infant child and her toddler and that was despite the fact that there was a conviction the rule eleven allows for unconvicted bad prior conduct to be explored and presented to the jury so here what judge lodge did was he altered the balance the four three balance considerably by sanitizing that prior conviction and he allowed it in precisely for that the reasons that the rule provides i mean this rule was designed to allow for admission of crimes and it specifically sets forth that chapter chapter one o nine a under which the defendant's conviction occurred so the court was really following that rule closely and it did a huge favor to the defined and that it did not have to do by sanitizing that conviction these rules of mission if you will for thirteen or fourteen three balancing is vital to really to the constitutionality of the rule and that i think is where judge lodge did a very wise and hopeful thing because i mean the probative value limaye counsels that the  value of a prior conviction is going to be higher than the probative value of someone charged misconduct so the probative value is high and then judge logic really sanitize the potential prejudicial effect by allowing solely the fact of conviction you know what you really are factors a case absolutely honor the time act and frequency actually help us considerably for an interesting reason and that is although offenses happened a decade apart mr bowman was incarcerated for seven or eight of those hears so he really only had two years in which he could commit offenses like this again and he did so those are the two factors similarity and no frequency is just one act one prior act trip your honor one prior act that was resulted in a conviction it's also interesting there's an intervening  factor and then also necessity is that right yes your honor and necessity helps as well why don't you explain why necessity helps certainly necessity does not mean that the government absolutely requires it in its case makes clear that it just has to be necessary or help that necessary be helpful to the government's case and that's at page ten twenty nine limaye also counsels that ten twenty that where the defendant says that the victim's statement corroboration which is precisely what the defendant said here bad acts are going to be relevant highly relevant under the rule and so that weighs into that for three balancing seems like that was critical here i mean when you look at the facts in this case there was no physical evidence here it was her word against his basically what happened here both of them were drinking both of them there were drugs involved and so to me even though the factor of whether it's helpful it also puts a spotlight on how important it is to get here to the for all three factors and to have more of a detailed analysis than what the district court gave us here i don't dispute all your what you have said in terms of you know  what the effect of the ruling was and how he implemented the ruling did sanitize and follow through but my concern is would he have done that with a different set of facts because his level of generality in finding the similarity under four thirteen is is a little gives me some pause it was general your honor you're correct about that  d i believe that's why we included some of the underlying briefing as well to make it clear when he says that he read the briefing closely and really considered carefully that that's what he was considering i would highlight you know agree a more detailed analysis weighing of the facts here would have been helpful yes your honor and preferable certainly i think with the press of business and so on and everything a trial court is facing it's understandable but ideally it certainly would have been better to spell it out more i would like to highlight for your honors that the closing arguments of the parties i didn't try this case and so i read that the entire transcript and the thing that really jumped out at me and one of the things that our prosecutor highlighted in her closing was this discrepancy about the victim's clothing the victim had described asking the defendant for different clothing to wear because she felt dirty after being in the casino for forty eight hours or  so and wanted to wash her clothes and she'd been wearing pants and a blouse so she washed her clothes she testified and she borrowed from the defendant some stretchy shorts and a big t shirt and she testified that when the defendant her half brother raped her he was able to pull those elastic shorts off very easily and we introduced a photo that corroborated the victim's testimony about where she placed that clothing when she went into the bathroom and indeed there was a shirt just like she described in those elastic shorts just as she described in that place the defendant offered contradictory testimony he testified that she was still wearing the clothes she had worn the night before and that she helped him take her pants off and her blouse off which required unbuttoning and doing various other things so the testimony contradictory he couldn't recall anything much about giving her clothing and the prosecutor really highlighted that it was interesting because it jumped out to me when i read the transcript and she focused on that as well so there what if this wasn't a situation where there was no corroboration the victim testified extremely credibly and there were some factors that that supported her testimony but there's no doubt that this was important just briefly before twelve they were not able to sufficiently go into what happened later for the victim that same night that she had been sexually assaulted by the defendant in this case  like you know your response i think the main thrust of the argument that i did not allow the defendant to attack the victim's credibility that's correct your honor that is their argument  and they're arguing that they weren't able to adequately present a defense they were able adequately to present a defense and would explains that when other evidence less laden perhaps with the danger of unfair prejudice is allowed to be introduced to establish a point even if it doesn't establish the full point that the defense would like to make allows them to establish that point there is a substantial decrease in the constitutional concern there and that's what we have here the defense was allowed to introduce testimony from aaron holt about the victim's drug use that night about the partying about going to the casino about sleeping together and about in his words not acting like a rape victim mr holt testified that the defendant although she cried and was upset when she told him about what had happened she just wasn't devastated the way he thought position is that part of the reason why the jury may have found a credible was because we could not bring out the evidence that was just spoken about and that evidence was important because the government was allowed to effectively prop up its victim by having other people testify that she behaved consistently in the aftermath with what we would expect from a rape victim and here we had evidence that she had casual sex with someone she just met with in approximately twenty four hours purportedly being raped we were not allowed to bring out that you had ample opportunity to attack her credibility and you did so i don't know if you were the and the the lawyer down below but in light of wood what is your response to that well i think it's important to realize that in would the allegations were that the purported victim had in gay acted i believe in pornographic films so would deals with a situation where someone is trying to say that the purported victim is of loose morals or something more typical that's not what we were doing here what we're attempting to do was say contrary to what the government is bringing forth in its case this complainant did not behave consistently as a rape victim that's different than trying to say she's of loose morals we never intended to do that and elicit plenty of testimony through hold as to what happened immediately thereafter the only part there was excise on there for three analysis was whether or not she had sex with him but certainly her conduct in the twenty four hours following the incident would allow the jury would have plenty of ammunition for the jury to conclude that conduct was inconsistent with that with that of a rape victim and they apparently were not persuaded the jury could could conclude for example that she that she was partying or doing drugs but the jury might very well conclude that the use of drugs is consistent with trying to numb the pain which in fact w something that she had said on numerous occasions and what the jury was never allowed to hear was that she had sex with someone she just met that's entirely different and in fact if we look at the closing argument that's how does the fact that she had just met is it rebuts the government's contentions that it opened the door to buy in its case in chief that she was behaving consistently with what we would expect a rape victim to do so we should have been allowed to bring this out just the sex part of it as well was excluded correct your honor but not only was the sex part of it excluded during closing argument when i made a closing argument that in fact the complainant and mr holt slept to gether the district court not only eroni asli upheld in objection it struck that from the record and said there's no evidence to support that when in fact words matter i chose my words carefully you said your words were it ends with her sleeping with their on hold i don't sleeping is having sex no sleeping is sleeping that's all i was allowed to say and in fact the district court struck my remark and said that there was no evidence of that when if we look at pages a one for thirty three to thirty four and for twenty four there was evidence of it i accurately stated it so the district court never allowed us to use the word sex and in fact it erroneous they excluded my argument i'm well over time but i appreciate it thank you