good morning please be seated i see counsel here in the first case good morning after the first case is heard the panel will briefly retire and will be reconstituted for the rest of the assign counsel for mr graham i was not involved in the trial proceedings i cannot possibly get into all the issues i raise in my briefs but i urge every one of them to the court's attention they're presented an order of logic rather than purported strength they're all strong in other words i i want to hear of logic but not strength for me oh i mean i just that the first points have to do a sufficiency of the evidence and validity of the charges that i go to fair trial issues and sentencing and post trauma ocean and sentencing at the end i just wanted to urge all of the points to you i'm not going to get to get to them the one i'm i'd like to start with is actually point five which is the rule for twelve issue rule for twelve serves a very laudatory purpose but it has a tendency to collide with the defendant's rights but on the defense of the confront witnesses and for that reason the rule says that the government should or a party making such a motion should do so two weeks before trial in this case it was one day before trial when this motion was  made defense counsel had to put together an opposition the night before giving opening statement in preparing to cross examine witnesses and the ruling was made from the bench literally five minutes sexual history evidence so why don't you read to me the the the rule that you're the rule that you're relying on for the requirement of a fourteen day a fourteen old ok so it says if a party intends to offer evidence under rule for twelve b the party must and it goes on to say do so at least fourteen days before the trial so fourteen twelve b is an exception to fourteen twelve and a fourteen twelve and a prohibits makes inadmissible certain types of evidence fourteen twelve b is an  exception that allows the party in certain circumstances to put in such evidence that's not what was what well the government was both invoking an exception because they wanted to put the evidence in as part of their case and they and they preclusion either way judge if i'm parsing this rule too closely i still think it was very unfair for the government to do this the type you are trying on the rules you're just you're not relying on the rule but the rule doesn't cover your point but you're saying it was unfair yes and i'm and also relying on the rule because the government in its motion also said that we get to do this we want permission to do these following things that's not a cure your point is not about the thing that they that the government wanted to offer your point your point it's at the government that your point is that the government's motion to to bar you from putting evidence of the of the young women's prostitution was not made fourteen days before and i don't see anything in the rule that says it has to be i'll move on from this point you the these are women and histories prostitutes yes you had an opportunity to cross examine so where's the harm i mean the your argument has force but does it have force in this case to point are yes yes they did as the victims wanted victims three they they the these victims met defendant through ongoing prostitution so the government did put put it in that respect and as to victim one they they put in evidence of her arrest and even though that was unrelated to i c u ram what more would you want with respect to victim one and victim three well make the argument well he wanted to argue two things one is is as a as a defense he wanted to argue that if you if we could show other prostitution in the tents in the gate the the causation element of the statute now but i'd like to make a more important point your honor than that which i emphasize in my reply brief which is that he was also urging that he needed an opportunity to confront witnesses my fact in his that's a different point that's your point for no the point five i think point five i think so but when trial counsel puts put together this hastily prepared response he said furthermore the defense was put on notice by letter dated january fourth two thousand and thirteen that a witness has advised that victim one is believed to be currently engaged in prostitution other words he got a brady letter three days before trial saying that witness victim one is charges out there and that none of this he was able to go into he also wanted to do something similar with with victim three but for now i'm just going to focus on victim one he  no i think it's i think law enforcement i think people understand that law enforcement is working together it's possible it was related to a federal crime just like this was a federal crime i don't know i don't know but the point is that he he was precluded from making that kind of argument in addition to the other one that i made reference to and in addition to the the ones us the victim three so i do think it was unfair forgive me i do think it was unfair for this to be forced on into this case the the day before it may be unfair but it may not be catastrophic at least with respect to victim one and victim three because you could still argue that this you know this is when he tried to make it because what the jury heard testimony of victims one in three was that they were already working as prostitutes when they met graham so that put before the jury that there was this kind of conduct prior to their involvement with your client and with victim one they heard that she continued to work as a prostitute after leaving graham so i'm not sure i saw on the record but perhaps i missed it where you then tried to or your predecessor counsel tried to question them about motive and how that was cut off did i miss something i don't think he he tried all right so also i'm not sure that you you have a valid argument you had you had the factual basis for and now if you had tried to to argue didn't you know you're concerned about being charged with that conductivity whatever cross examination you wanted to conduct and it was cut off then we would hear your argument but i'm not sure why we should assume you were precluded from doing it when you had a factual basis and didn't the the judge's ruling is pretty expansive he precluded prostitution after the period of the indictment and before so even though he had this brady letter and during even though he had he had this brady letter that said that that victim this got into but the general  before the jury the general fact but i think it's i think it's pretty compelling when you've got a witness on the stand and you can't cross examine her based on potential law and law enforcement violations that the government knows about there was an a brady letter going on at the time that she was sitting in the witness stand i think that's pretty compelling cross examination that this ruling precluded could you briefly address the impact of this if any with respect to victim because i think we've all been talking about victim one victim three i don't think three of point i don't and the range for twelve issue your honor i don't think victim two comes into play and that's that's that's my understanding  i made my argument in the briefs on victim three if i could turn to something very quickly go ahead first of all i want to say that the sandbagging that i've described is also relevant to the new trial motion because graham said that he would he would have taken a plea if he had known that this kind of evidence can't come in and he's criticized for not for not saying well let's what he once he finds out that the police came in you know for not saying well or that i'm sorry that the evidence was coming in for not saying well let's but but the ruling was made literally five minutes before opening statement so i think that's an unfair criticism but if i could jump to something totally different if you don't mind i see the red light   there's there's three and there's three b three b is this venture this venture argument that's in the statute and i argue in my briefs that there's no proof of a venture here there's no business partner of graham the government suggest well maybe he could have been in a venture with the victims themselves i don't think legally that's possible so i think i really think that three b and the was was not proven by sufficient evidence and on fifty of them have to i mean if they prove the case and the three and i'm getting the three a day i'm going to three a is it has a different flaw three a is the constructive amendment where the the government it was not in the indictment this theory of observation which this court has pointed out in the robinson case is a strict liability theory for victims who are under eighteen that you no longer need to show under this alternate theory that the defendant either knew or recklessly disregarded that the victim was was under eighteen you can just show an opportunity to observe this was not in the indictment i think a strict liability a theory if there's anything it's constructively amends an indictment is the introduction of a strict liability theory and i've cited recent cases from the fifth and ninth circuit cases where they agree that that is constructive amendment of the indictment and i'm almost done judge take of the problem you know on so i've given you i think two very strong arguments why both aspects of victim three conviction are invalid and i just want to point out that it would it would i think it would be a mistake like suppose the court hypothetically were to all paths based on that note i want to point out that judge or carol when he sentenced my client he gave he gave him fifteen which is the minimum on count one made that consecutive to fifteen on count two for a total of underage conviction but two was a convict him two was underage as well right two when three were underage i think it would be a mistake to assume that three didn't matter to him or that it's not significant he blasts mr graham at sentencing for good morning your honour's may please the cork council my name is tiffany lee and i'm here on behalf of the government to address councils rule for twelve motion i believe that whether or not pretty or post instances of prostitution would be discussed you do think that that motion was reasonably timely putting aside what what regulations or rules may say because  if you do it like the day before you're going to end and you would know that you would up and the dominant defense available to the defendant may be no other d we believe that it was reasonable it was prior to the victims testifying and the reality is your honor they were permitted to testify as to how they met mr graham and a couple of those for a couple of those victims they met them while they were prostitutes and so that was there anyone that was there any inhibition and cross examination of that testimony i don't i don't believe that there was i believe that you know defense counsel had ample opportunity to address the fact that they were working for example with the someone that she was already working as a prostitute that's indeed you elicited that yourself or did you  listen to that fact yourself no i am i was not the i mean you is the guy you know his the governor we i mean we did we had like we elicited that the circumstances in which victim one met mr graham was she was posting her cell phone back page dot com so that's already in evidence and was was there anything that that prevented the defendant from bringing that out that same thing that you elicited and bring it out himself on cross examination not arguing it on summation absolutely not they had ample opportunity to address the fact that with respect to to the the argument that they that your motion was made late and untimely  prejudiced the defendant apart from whether fourteen days was applicable which i think under the rule that it wasn't a but if it was untimely in the sense of being late and a surprise just before trial did the defendant request an adjournment or initial time or some kind of a delay in the trial in order to be able to prepare for for what was a new as a result of your late motion no defense counsel filed a response and argued as we would anticipate that he would argue that you know he should be allowed to be permitted to admit that evidence that you know that there were factors in terms of rule waving relevancy and prejudice that he felt in your to his favor and that's why he felt that the evidence that they needed they needed to address included posts and pretty conduct prostitution activities on behalf of a defendant or you with a motion should be denied because of that because of the timing factor no that was not race did you did the government's motion disclose that the government would in any event bring out and the victims kind of wrecked examination i don't recall i  think i don't recall in my review of the documents if that was there that may or may not have been there but the fact remains your honor is we the government provided all the information relating to our victims including the evidence that they were engaged in prostitution or had been engage in prostitution with respect to as soon as the government found out that one of the victims was still engaged in prostitution we he simply wasn't he had all the information with respect to who these victims were that were going to be testified yes but he didn't if he knew who they were and he knew what they did but he didn't know the extent to which be able to introduce that that information much how much before the the opening statement i don't recall exactly i think it was either the day before the the day of may have been the day before but that is not sandbagging your honor i mean we are we were just this is days before the motion before our victims are testifying we were just trying to submit emotional m n a and at that  juncture there were there were issues raised of sandbagging and at that juncture there were issues raised such as the defense did the defendant need more time because of what he raised after the trial which was his whole idea that oh well it had i but known i would have taken the ten twelve year deal none of that came up when the government filed its motion it's not as you understand one of the one of the statutory issues one of the  elements that the need of the government show that the defendant used force or coercion to cause the victim to engage in commercial sex is a right that that is true with respect so if that's if that's if you need to prove if you need to prove that the defendant used force to cause the victim to engage in commercial sex how can it be appropriate to to bar to bar the defense from bringing out and that the that the victims were engaging in commercial sex before they ever heard of the or saw the defendant but that was brought up with respect to you i know but but you brought out to the extent you want it brought out but that's obviously a very important point i mean one of the it seems to me one of the obvious things that the defendant would want to argue say the government is saying that i used force to cause them to engage in commerce that they be gauging commercial sex since they were twelve years old or whatever what i do is that i don't understand how it can be appropriate when that's an issue in the case to bar the evidence of prior commercial sex on the part of the victims because the coercion doesn't necessarily occur just regardless of what the victim may have done in the past whether or not the victim was prostituting themselves what was prostitution voluntarily it doesn't change the fact of during the victim's relationship with the defendant doesn't the time blue date but it it goes to the likelihood that it was coerced not necessarily your honor not maybe not necessarily but all of those possibilities suggest that the jury should get to decide rather than you pre planning them from hearing it you taking the view that this was irrelevant indeed possibly prejudicial and we're suggesting to you that the fact that someone has been a prostitute for an extended period of time is pertin to least to whether or not there prostitution with the defendant was coerced or marlen terry and i'm not sure you can argue that it's not a pertinent factor i can argue it's person and factor your honor but again this is all on what the theory does it get excluded the theory it gets excluded is because of the fact that it becomes problematic when the focus becomes on the prior prost on the prior sexual acts on the prior acts of prostitution and it will confuse the jury i mean we have the burden of proving beyond a reasonable doubt that it was the defendant who  used you know recruited in ties provided and maintained and obtained the victim knowing and reckless disregard of their age and knowing and or and reckless disregard of the fact that force fraud or coercion would be used in order to cause when you put yourself in to engage and you prosecute someone for drug dealing and the defendant raises the defense of entrapment and he says the government the government got me into this drug deal i didn't want to the government got me into it don't you then put in evidence of the defendant's prior drug dealing before the government did what the defendant but in order to preclude any allegation of trap and when the defendant is in cuba accused of having used used force or coercion in order to cause someone to engage in prostitution why isn't that the perfectly logical thing to do to say well i didn't cause her to engage in prostitution she's been engaging in prostitution for most of the time she's been alive why isn't that a perfectly sensible logical response to th particular elements that you need to prove it may be logical but the rule basically this is a rule of evidence and this is a rule of evidence in which the trial judge has the discretion to evaluate what the facts are to evaluate whether or not it is a political under the circumstances there was case law to sit in other sex trafficking cases and which were all twelve was involved to preclude pre and post conduct activity in this case as to the defendant but he was allowed to have the these cases don't the cases in which the issue of the victim's sexual activity done very often have this  element of where the defendant is charged with using force to cause them to do it which makes it highly relevant whether they engaged in commercial sex previously but the other problem of the sex trafficking statute your honor deals with age so it's the way that works is someone has enticed in recruiting maintaining obtaining providing a victim victim one is of age is she is of age i irrelevant your honor i'm just saying that for the purposes of whether or not that testimony should be admitted in the rule twelve rule for twelve evaluation the issue is the victim's prior sexual conduct or misconduct or whatever under the circumstances we made the argument that we felt that it was not and unbalancing relevance for prejudicial value that it was not the that the equation didn't fit as to post or all the pre conduct prostitution and i know that i know that the government's time's up but i'd like to ask about the thirty five zero nine ruling the district court specifically failed or specifically chose not to make a finding of trouble and i'm curious as to how you think that you can exclude a witness on the findings that were made and the supreme court in craig which i know is pretty thirty five zero nine did suggest that there had to be a finding of substantial likelihood of emotional trauma and  there doesn't seem to be even in the record that you've put before us the expert report that you say justifies this this witness not testifying in open court your honor our  argument is that the district one through and maybe the term a nation under thirty five zero nine which talks about any one of those factors being sufficient in order to allow testimony by a minor victim through close circuit and i think this is this is a seventeen year old who had you know lived a pretty hard life on the streets what is the basis to think that she presented fear ironically the week this case was supposed to be argued there was another case before us in which a ten year old was a completely innocent victim testified in open court what was it about this victim that created exceptional circumstances that that's what you gandy says is needed this should not be a commonplace substitute for in court testimony what was the need here for this witness to testify by close circuit but victim had express fear in terms of testifying before the defendant can occur now and i was i was not i was not part of the you know nevertheless you are here to defend it this is a challenge by the defendant based on what you haven't psychiatry report into the record on appeal so it's based on the district court stated it was based on his own observation of the victim's testimony and secondly it was based on that psychiatric assessment which we are more than happy to provide to the court on appeal as i said you're you're here presumably you've seen it what does it say i have not seen it i have no you here to defend something based on the psychiatry psychiatry support that you haven't bothered to look at i admit that i did not have the opportunity to see the psychiatric evaluation so as to what level does the fear have to rise to to satisfy the constitutional concerns identified in craig i ask this because i would assume any number of people who've testified against mobsters though not juveniles have the same kind of general fear that was expressed by this witness why is that enough to exclude her there there was no finding that this would be a bit of a traumatic experience for her your honor there the statute speaks of fear and i i i understand what you're saying that there needs to be a problem there needs to be a higher i guess particular zation of fear but i mean there it's the governing suggested that it has to be the ultimate finding has to be used it's necessary to protect the welfare of the particular child that we have to have an emotional distress that's more than de minimus and the government submits that the trial judge upon the war dear a victim of the victim and again i agree i should have reviewed or tried to get a copy of a scythe psychiatric assessment based on his review of those two factors he felt that there was sufficient evidence with respect to what the findings were was that she would be unlikely to testify because of fear she appeared extremely nervous and uncomfortable and had difficulty verbalizing answers but that's that's true of many witnesses is there something i'm missing again without having been part of that here i don't know what physically the victim would have expressed her what the trial judge saw but he did bases findings on his own observations in addition to the testimony and in addition to his pointing out of the psychiatric assessment that pointed to the victim having a particular particular  fear of this particular defendant thank you  just on that last last point the most she said was that he's not a very good man i don't know i just know by being next to him he's very sneaky any plots and plans a lot i guess you could say that was about as much as she could say during that ford year about her fear and i i don't think that was specific enough and i've also argued that that with respect to the to the psychiatric assessment  that i didn't find it appropriate that the judge invoked that big when he wasn't invoking the provision in the statute that relates to having the expert testify i describe it as a bit of an run and maybe i should give up and so my metaphors today but but i don't think she didn't spin state specifically a ground for fear and i didn't think it was fair for of the judge to then say well i'm going to also use the expert even though i'm not using the expert on the other grounds and on the on the fort's well thing just i probably made made my points already but but this someone asked if you know in what way counsel was was inhibited and i tried to emphasis inhibited in terms of confronting witnesses and possibly that the bias motivation but also just in terms of that with respect to for twelve  for the circumstance that you would seek to bring out was brought out perhaps in a in a sanitized form by the government that counsel was free to cross examine and appeal it just seems to lack appeal with respect to the particular circumstances of this case wish he had asked for additional time he did say in his papers and i believe at the oral argument too that this is undermining the defense here and he made very strong references to the fifth and sixth amendment and so forth and he should have said judge i need more time to i you what you wish he had asked for more time what you mean is you wish he had asked for more time and it had been denied well we appellate lawyers always have carriage to the sandbagging as i described it is he had to deal with this on the morning of a trial that had been set i think for quite some time and and i'd like to point out that in my opinion if you compare his ruling from the bench it's on a forty nine of my appendix with his member he did a post trial ruling also where he explained that and in some more detail there's a discrepancy here  mean it's it's there so they're similar in the sense that the post indictment and pre indictment time periods are out and but in terms of during the indictment it's very murky  the post trial decision he makes it sound the defendant could have gone into anything during the period of time anything and by the way i think he was prejudice because he couldn't get into the the causation  issue and get into other relationships with other pimps and things like that but but leaving that aside when he ruled from the bench she said the court grants the government's motion to permit the introduction of evidence of sexual behavior in prostitution by the victims during that time period charge and the indictment as related to this defendant that's the government's motion however the defendant is prohibited from introducing evidence of the listening testimony that the victim engaged in acts of prostitution not related to their relationship with the fandom for the purpose of demonstrating their propensity to engage in prostitution wolf or three now you can parse that but i think a reasonable person hearing that was saying i can't do this at all unless i'm responding to what the