value and starting with the relevance of the evidence here that's evidence i think i was just saying it was relevant for impeachment the rule for fourteen witness and we don't have that same concern that's not the same it's not the same situation as a person who had previously tested it in a prior trial in vegas and wells was counsel able to teach the alleged prior victim and the mother or the trial in any way yes there was certainly the opportunity to cross examine and to ask questions about differences between her initial statement to investigators and her testimony in the present trial that the defense was not able to ask her now you testified  once before and you know that mister wilkie was found not guilty or whatever language would have it appropriate for a young teenager of her age wasn't allowed to inquire into those things which would go to her cry ability in terms of whether she had any bias against mister okey as a result of what transpired at the previous trial any motivation to testify a certain way again this is somebody who had given a couple different versions of what happened whether she was more motivated to testify to the more egregious errors and in this trial based on her feelings about the prior case but the bias certainly is that in addition to this minor i think it was a minor accusing him of sexual misconduct that she would been angry or because he got away with it as it was out basically the bias argument that's right that it would somehow affect her motivations to testify and i guess the version of that has actually testified to in the present case and it also more generally would go that in a couple different ways that it's evidence in its own right that should be analyzed on its own for relevance is it otherwise excluded under the rules and role for a three balancing i don't think that you know the trial the framing of it was that well this is a way to kind of mitigate prejudice of the admission of the rule for fourteen evidence and i think it goes to that but it's also evidence that should have been admitted in its own right independent of kind of like a defense on a rule for a three analysis and the admission of a different type of evidence ways none of which would have been in the civil hearsay which was seen to be the court's primary concern in vegas and then wells that it relied on here that evidence could have come in as a question to lp the rule for fourteen witness and in a way that i already described or possibly to her mother or to another witness are you aware that there was a prior trial on these allegations that well for fourteen allegations or two thousand and fifteen allegations and you're aware that mister o'keefe was acquitted that evidence could have come in that way it didn't have that evidence would it come in but if i agree with you that almost makes it it almost makes the evidence and like instructing the jury on how to use hearsay evidence and i was combines it all into one i think the preference would have been some sort of evidence l consideration i understand the language in that case as judgments of acquittal ordinarily are usually i don't recall the exact words are not admissible because they're inadmissible hearsay and they are relevant to t but i don't read those cases as saying acquittal evidence is never admissible for any purpose and so what i don't see and then again wells is any sort of argument that this evidence that the acquittal evidence would be relevant to the credibility of a witness  now coming in and testifying against her nd time about enough ends against her person by the defendant in this case that then i think another thing that distinguishes it is you know rule for fourteen is a propensity little and so i think that affects the  we're not we wouldn't be offering that evidence to show that it's not it's not it's not like you have evidence of conclusive evidence of the lack of guilt you it would be evidence  convict i agree with that in that the evidence here would be offered to show that by some standard that's binding on the jury that prior prior allegation that the prior allegations didn't happen the code of value goes to how does it affect the rule for fourteen witness in this trial her mother also testified briefly how does it affect those witnesses and are those people that the jury can find credible and i wanted see that those permissible purposes are relevant and acquittal evidence was brought up or considered and prior it's a good precedent i don't think that that was an issue for example and again wells speak and i wanted to briefly touch on the limiting instruction that the district court did give in this case that instruction was not sufficient to address this issue again the fact of the acquittal was relevant to impeachment and instruction to the jury that this is not something that mister o'keefe was made that that same point again at the pretrial conference which was actually the st morning of trial before jury selection and that would be on page eighteen of the trial transcript a defense counsel argued that in short that to allow the jury to know that there was an acquittal helps them determine her credibility so i think by arguing that this was relevant to her credibility and saying it's that it would be impeachment for the excuse me when be hearsay for that purpose i think that fairly encompasses the impeachment argument that we're using as an umbrella term here these testimony the rule for fourteen evidence to determine identity in this case that was an explicit invitation to the jury and the jury of eight in a question very deliberations we know was concerned about identity because they asked it b j w the alleged victim here or  her older sister positively identified mister o'keefe so for those reasons we know the timing of the rule for fourteen other hints to the identity of the perpetrator in this case that makes it is pollution of any evidence that would have guideline range in this conduct that we know that mister o'keefe actually spent over a year in custody for that he didn't get credit for it and then he again is punished by months or even years several months several years in addition to what he would have been punished for in this case strimmer thank you are there if it may please the court and my colleague ms clan i am j miller from the united states attorney's office in the district of south dakota and i represent the united states on this appeal the government is or known him part of the night them with stations took place while he was a guest in the home that the two girls lived in and a time the two respective girls as tribal fair was taking place when you compare the facts of the two different cases they're described by the district court as being strikingly similar in the one instance opie was acquitted of the sexual molestation and then the other he was convicted which is what brings about this appeal central questions before this court or on appeal dealing with equal have been resolved by this court and other circuit all in unison therefore two of the three arguments raised on appeal of the evidence of the acquittal on the two thousand and fifteen allegations for the court to adopt mister okies argument that the district court should have allowed him to present the evidence of his a park will would require abandoning circuit precedent but this order specifically held up the district court's failure to instruct the jury regarding park whittles was not an abuse of discretion and that's the wells case and the hearsay it was an argument they just said that it should abet admissible in that it was relevant when i read those two opinions i did not get a articulation of how that offense intended on introducing that and how the evidence of the partner there are quitted conduct even was interviews before the jury that they were just saying that it was relevant and something that should have been admitted to the j now one of the things that o t s ought appeal attempted to do in addressing judge codices question is is distinguishing wells and vega to argue that the acquittal should have been admissible in this particular case where maybe it isn't and others they raised three different points to argue that the cases are distinguishable and one is is not the relevance in particular to the rob the relevance that you look at those prior acts whether it be for all for a b or for fourteen evidence for hope of a prior act at a subsequent trial is the say regardless of the nature of defendant was previously acquitted of so therefore it's irrelevant whether the prior conduct was prior drug dealing as it was and wells in fargo bank excuse me or as it was noticed prior sexual molestation as it correct her mother was actually called by the defense mister opie and this case when you review the cases cited in the government's brief judgments of acquittal are not generally relevant because they don't prove innocence and show that the government did not meet its burden of proving guilt beyond a reasonable doubt and that is the curly case of this from the th circuit cited by the government in its brief so the fact that if there were some anger about a prior window why isn't that relevant to show by ass or a lack of credibility i had heard witness i mean it just seems to me and that's common sat cell i mean leave all the other argument events the bias is regarding the victim being greedy at the fact that she was molested by mister oki and watching justice wanting him held accountable that same feeling that what happened in monica and held accountable is no different than the st trial from the nd trial so that is not a proper bias to impeach her on secondly there are other aspects regarding her credibility that the acquittal wouldn't address and specifically the defense was allowed on cross examination of lp to get into her credibility to get into the differences between what she to law enforcement initially and what she testified to that at the trial of mister oak the in a two thousand and eighteen regarding the nd case all those impeachment type arguments were made regarding acquittal is that it miscible to impeach or is because the standards of proof are different at the original trial and twenty seven dollars team are lp was the name victim the burden of proof is beyond a reasonable doubt that's the jury the fighting had to ma confuse the jury when they're saying the burden of proof beyond a reasonable doubt except in this instance it's by a preponderance of the evidence the rd prong that you okey uses to try to distinguish of beggar and wells from this particular case is the identification issue a by b w and b j w and in this case the government acknowledges that neither  pointed out mister oak in the courtroom and so that's the man that did this however they did introduce testimony that the man that did this was a bigger man it was a bald man it was a man that had tattoos on his neck and tattoos on his arm that consisted of words they also indicated that this man resent or douce to them earlier in the evening as l b j and through other testimony introduced at trial everybody acknowledged that l b j was open those were his initials and pretty much answered everybody referred to him as they didn't call him lawrence they didn't call it pretty much everybody that knew him referred to him to a separate location in a vehicle that had been borrowed and then returned to the residence in the morning that vehicle was needed to go pick up the mother from the place she had been taken to and the witness to testify briggs find the keys t vehicle testified that those keys were found in the girl's bedroom which is consistent with the testimony of the mother that the keys were taken so that the mother could be transported to a different location and then also with what the girls testif molestation took place in that bedroom so even though the girls did not physically claim to him in the courtroom and identify him as the perpetrator there was more than enough evidence to identify him as the perpetrator in addition the identity testimony is completely separate and distinguishable from the testimony of lp and regarding her impeachment of those are apples and oranges it's not comparing apples to apples one of the things i would like to address is i've argued that there is clearly case precedent and veg and wells that says this comes then but there are policy considerations that we have to ask when i'm preparing for this i am asking myself what are the judge potentially going to ask me during this argument and one of the things just a basic line is is this fair why why is  allow and i addressed some of that already in terms of a judgment of acquittal is not relevant because it doesn't prove innocence the jury in the prior case had to find these testimony credible beyond a what the court found particularly mitigating is the both instructions told the jury in part you may hear when this instruction was st given and you have heard it during the final argument is that th that with what o p s attorney did in his closing argument or said in his closing argument to the jury that lp twice promise twice promised to tell the truth be told two different stories well the jury in this particular case only saw her promise once to tell the truth the other time was when she testified crikey seventeen the question is is why and how is the instruction that oakley suggests the district court should have given regarding the acquittal be so much better for such a game changer from the instruction the court actually gave in this court in this case although the district court did not respectfully disagrees with that in pappy the codefendant black cloud specifically contended that the district court consideration of acquitted conduct to enhance her sentence violated her rights under both the th and  amendment and the this court in that case specifically rejected that and not only has the th circuit in the happy case did this but there is five other case  cited by the government of the other eight circuit cases doing the same thing the united states supreme court in the watts case held the same thing and also ruled that every circuit has ruled like based on all the foregoing it is the government's position that the acquitted conduct was properly excluded during the doing of the jury trial the holding of the jury trial but was also properly used to enhance the is that lp would have developed in a nervous and because of the a clip well in the prior case not because of the alleged incidents i just wanted to make it clear i was on clarify argument regarding the limiting instruction argument isn't that the limiting instruction on its own was improper argument is that it wasn't a replacement for evidence that mister o'keefe had been acquitted of the prior allegations well absolutely actually it was it on that count which is you know on a  i think i would go back to the identity issue and the and then running really short on time but the specific attempt to tie the rule for fourteen evidence to the identity of the perpetrator through the government's closing argument and that would have gone to al