two categories and that is problems with the evidence as it relates to the honor about jury instruction and the variance constructive amendment issue and prosecutorial misconduct in the closing argument i'm going to go in reverse chronological order and start with the problems in the closing arguments centering on the prosecutorial misconduct in improper argument in the closing the law is very clear and simple on this matter the jury is not permitted to consider factors other than the evidence not sympathy for the victim not fear of the defendant not fear of potential future crimes in deciding the verdict that's absolutely improper and that's what happened here just to summarize the prosecutor here unequivocally urged the jury to consider fear of robert dole fear of hurting other children in the future sympathy for david  harper he did this by beating the jurors over the head with a trusting courage team were there any objections made to these comments at one point there was an objection in in the section of the closing dealing with  sympathy for david harper and standing in his shoes this was the only objection launched and it was in the portion of the closing argument where the prosecutor was basically attempting to have the jury look over and explain away inconsistency isn't evidence due to the passage of time and due to the vet the fact that twenty two years had passed and that david harper was ten at the time defense counsel did object other than that there there were no objections lodged what did the district judge say with respect to that objection the judge did not issue an admonition he did caution the prosecutor he did say look you're toeing a fine line i'm not going to allow you to ask the jurors to stand in the shoes of the victim but then the argument proceeded and these comments continued and in fact after that sidebar discussion and again there was no admonition to the jury after that discussion the prosecutor continued and basically issued a third duty above and beyond what the court had already instructed the jurors as what their duty actually was the prosecutor went on to say i'm asking you to consider another duty and that is to not search for doubt but seek the truth seek to protect other children as david harper has ask you to do so the concern that that one might have is what's to prevent a defense attorney from failing to object and then saying that peel there were improper comments and therefore i get a new trial if if the defendant wins at trial great for the defendant the defendant loses he has in his back pocket argument well i think when when the comments rise to the level that they do in this case counsel actually failed to object and this court found that because the comments were so over the top and disparaging of defense counsel and asking the jurors to consider fear of the defendant despite that there was no objection this cour still reversed so that's a very particular particularly helpful case and other helpful case precedent from the circuit is us we saw all of and this is a particularly helpful case because if you look at what this court considered to be reversible error the comments are actually more benign than we're dealing with here that was a drug case and basically what the court what the prosecutor said in that case was you know why don't you send a message that drugs don't belong in northern kentucky which is basically where the trial was taking place here in cincinnati and that was followed by a lengthy admonition to the jury by the court and this court still reversed on that basis that's another very helpful case another precedent from the circuit is bates to be bell very similar to this case the jury was urged to think about future crimes that the defendant m convict may commit and in doing so obviously assume the guilt of that defendant before the jurors had even considered the evidence which is exactly what happened here now this court does have four factors  that go into the flagrant see determination and i'm i'm going to go through those factors but first i would just note the government concedes that these comments are improper really the only concede that all of them are proper the government does concede that the trust encouraged theme is improper but i don't think you said all of them i'm just telling you i don't think they did concede all the more improper you're correct the comment about the true that was no they did they did not concede that either i see how that's problem well your honor if you look at how close to the idea in a trial well in this particular case and when you consider the context and when you also consider the structure of the evidence in this case and the honor about jury instruction the way that the prosecutor framed this he said i'm giving you an additional duty will look back to what the previous duties were that the court said the court said determine the facts apply the law to the facts now the prosecutor saying here's an additional duty seek the truth seek justice and seek to protect other children in the future from this defendant finding the truth of what happened we're honoring in this case it's possible it's entirely possible that the jury believed that abuse occurred at some point but not on august third they may very well have believed that the truth was some sort of abuse occurred but if it wasn't on august third as the government witnesses establish that it could not have been then it was not in spencer west virginia and if it was not in spencer west virginia the government's evidence fails  seems to me that's just not the simplest way to look at what's going on in a case where you're supposed to find out what the real facts are when someone says find the truth seek the truth or stand by both lawyers can should be saying that that's the real point i mean you can't get your implication point but i don't think that's an obvious one and without some other evidence those are saying who cares what happened who cares whether he really hurt this kid if you did this to anybody we should punish him that would be a different story but that's not there's nothing like that well if if you look at the totality of the context and the fact that this trust encouraged theme was basically talked about thirty two times at least in the closing argument trust david harper trusted robert david harper's trust was betrayed now he's in trusting you jurors to have the same courage that he had to step forward and spill his life to strangers he's he's urging you to have the same courage to convict  goal and protect future children i don't want the court to get too caught up on this see seek the truth and not search for doubt comment because that's that's just a blip there's there's the entire context that we're talking about and this court's four factors for flag and c one of them is the strength of the evidence and here there is no strength of evidence we have an extremely weak case put on by the government we have objective evidence we have objective documents and government witnesses establishing the august third was not the correct date we have this letter here and you say it's an extremely weak case so i guess i'm not so sure i see it that way i mean it seems pretty strong the defendant admitted taking the boy out of state you have the boy's evidence you have the parents evidence that he went out of state the time you have someone at the church they visited checking a diary and saying yes he was there with the boy that that service seems to me your key theory of doubt turns on this disparity between whether they left at night or in the evening and that all seems to turn on whether this newsletter was accurate as to the time he gave this talk boy or honor it by not about it's a church newsletter you do have barbara harper who her important in this case is second only to david harper himself stating she probably attended that event that event occurred at night on august third this is a stablished and the record we have a letter here saying we august third and yes it specifically says august third and it specifically is august third is when the talk was given yes it and it talks in the past tense it says as it was given in the no it does not state that but the other objective documents in the record which barbara harper affirmed if you look at her testimony she affirms defense exhibits ninety ninety one and ninety two and these are other church documents that establish the general time frame for these community nights which is starting in the evening around seven to eight o'clock and ending around ten o'clock now the government theory was what the mom just lie and mom just making this whole thing up i mean what's the competing theory competing theory is they're wrong about this weekend and the reason that's so important as to whether this date the reason why the honor about situation is so crucial in this case and case determinative actually is because i august third was not the right date then it could not be spencer west virginia because even the government admits and it's not disputed that robert cone bowl filled and west virginia in spencer west virginia on one asian that was august fourth so if the transportation did not occur on august third then the location is not spencer west virginia and it was a loop prevented leaving just leaving later the mother thought when robert hunter left would they would with david harper may finish and that is during the daytime before dinner after lunch and it's sunny outside in this blue gray sedan now if if he were to have given the speech which he has two of this i just urge you to look at this letter and look at the details of it that demonstrate that barbara harper was actually at this talk that occurred in the evening on august third there's no other transportation scenario given in evidence at that point it's all conjecture th please the court then blossomed on behalf of the united states let me pick up right where that argument left off with judge by childers question which actually occurred to me as i was listening to my colleague's argument it does occur to me that there's actually even if one grants that mr pond gave this talk at seven or eight pm on that evening that actually doesn't contradict anything about the government's evidence it certainly doesn't contradict as it certainly doesn't contradict the fact that he that pongal was in cincinnati on august third and in west virginia on august fourth which is how the crimes alleged it doesn't even contradict anything about the testimony of of to the harpers home say around four thirty five or six o'clock that day and picked up david harper but david and the do not say that david accompanied hondo to the tar right there's no substantive evidence whatsoever of the talk there is no i mean there's this letter that she know in listening to him in listening to might my colleague one might think that this was the defense case or some kind of evidence that was introduced as the case in chief or the defendant it was not these exhibits i refer the court to page id three o six these evidence were introduced exhibits were introduced solely for purposes of impeaching harper they were not introduced a substantive evidence in fact there was an objection the first time they were raised and when you're in that objections on of five when you go to three or six that's a sidebar where the prosecutor explains that the prosecutor did not receive these exhibits ever notwithstanding a request for reciprocal discovery defense counsel explains i don't have to give them over because i'm not using them as my case in chief i'm just using them for impeachment and the district court says oh these are impeachment but why they use what they use and when they realize something is valuable i'm not sure how that affects us i mean so i guess one part of what you're saying judge batchelor saying you know they they've knowledge getting there very late at night that too is consistent leaving off the talk but you still have the problem of the mom saying they did leave while it was light so that part is inconsistent is it not really joe go ahead i mean and this is an admitted lee this is something that i'm just picking up on the question during my colleague's argument because if you think about it pongal comes to the community night talk wasn't supposed to be at the harpers home it was at the talk he gave and only then left for west virginia where she was going to be there and with his thinking when her ten year old son is leaving the well that is what that is i think when the ten year olds the only testimony was that's when the ten year old son left the home with pando in p car now perhaps perhaps pongal took them to the took them to the talk and then left after that and they just don't remember the talk which was not a particularly newsworthy event unlike giving your son over to the priest to go out of state i don't know there was no questions about that asked the trial it just occurs to me that it just doesn't actually contradict but even if it does even if it did as i say these were and as the court discussed with my colleague there was testimony that hey you got these documents they're not necessarily reliable nobody knows whether this talk actually took place on this day or not and the jury was free to evaluate that as against the testimony of the eyewitnesses who testified to personal knowledge their personal recollection of exactly what happened the one concern that arises is whether whether this is an alibi defense on the part of the defendant here and whether that makes a difference in terms of how would you address that yeah i don't think it's an alibi but let's but let me come back to that first let's say even if it is an alibi this court's decision and nora explains that the failure to give an on or about instruction when there is an alibi can be harmless and it gives you a couple of factors if you look at those factors in this case as discussed in our brief they all point to this error being harmless because we're talking about a single trip there was no confusion no room for doubt the witnesses said one time the prosecutor said one time and as judge sutton discussed with my colleague the evidence of guilt was strong and the evidence for this supposed alibi was relatively weak resting on soley on these documents which were used for impeachment in that witnesses testified were not reliable records of what they purported to report but why why should an honor about taking you weaving around all the different arguments but why should an honor about instruction be proper here given that the government's case was entirely it was august third fourth and nobody seemed to be going in any other direction you know the only the only possible answer as to propriety on that point i would offer is that i suppose one doesn't know based on the testimony whether they crossed interstate on august third or always forth but other than that i would say that it's not a big deal and in fact if there had been an objection i'm sure the government would have just said whatever we don't need that but there was no objection so we're looking at a plainer standard that's why i say that even if there weren't objection it would be harmless so certainly doesn't affect the defendant substantial rights now backing up as to whether or not there actually was an alibi the government doesn't think so an alibi is a defense at places that makes the crime as alleged a physical impossibility and that's not this an alibi would be if someone came in and testified father pond was in israel in all of august one thousand nine hundred one he couldn't have come as he was earlier in the year he couldn't have committed this crime or i was with father pando on august third and august fourth in our mission in cincinnati he never went to west virginia that would be an alibi but it's not an alibi to say that well yes i was in the place where the crime is alleged to have committed at the time and on the dates that the crime was alleged to have been committed but you shouldn't believe the government's witnesses who testified about the manner of my commission of the crime because that doesn't square with some documents i have about my in one of those evenings that's not an alibi but would it be an alibi if there were witnesses who said they had attended his speech in cincinnati that evening from seven until ten p no that would not be a no by itself i don't think so it would have an alibi would have to be something that made the crime as alleged physically impossible and that sort of evidence would not that's just better evidence stronger evidence of the suppose it alibi and i might add of course that you know this was never thought of as an alibi at the trial level there was no request for an alibi instruction the first time the word alibi is been used is on that some of the courage comments probably did exceed what the prosecutor said or said it in closing as to the so the only one that makes the only allegation of misconduct by the defendant appellant here that makes me uncomfortable is the courage comment but it's not courage comments it's two lines on one page of this closing argument which says she says there are thirty or so statements in closing she's talking about all the different meant that she thinks are improper i'll let her answer rebuttal but my understanding is that she's referring to use of the word trust and the claim on appeal is that the prosecutor used this trust theme throughout closing argument and my response to that is that there's nothing improper about having a theme a closing argument nothing improper about a theme of trust that the defendant acquired the victim's trust betrayed it and that the victim who testified it was trusting in the trial and trust in giving and trusting the jury with his life there there is that part's not improper so i don't think that the reference to thirty references to trust is itself a problem i wish the prosecutor would not have said that david harper would ask the jury to show the same courage because that seems close to asking the jury to walk in the victim's shoes or to identify with the victim i couldn't find a case that specifically disfavors that comment and so on it just you know certainly there are cases that say that a prosecutor may permissibly  call for justice in the closing argument may connect justice to the victim so that it is permissible had the prosecutor instead of asking the jury to show the same courage had just asked the jury to go with their verdict give justice to david harper that's fine  this court has said so so it's certainly not been a grievous impropriety if there is impropriety in that statement and that's the only one that makes me on congress what about the protect other children from the defendant right so if the if you read the transcript there's a there's a the way that he comes across as it says that you seek truth in the collective memories of strangers and the victim cama seeking only justice and to protect other victims that's a reference to the victim what the victim was seeking in his testimony the victim testified david harper testified and this was an issue at trial was his credibility and he testified that you know part  of what was elicited both on direct examination and cross of him was that he was not seeking money he had not filed a civil lawsuit and the only reason that he had come forward after all this time was that he felt a lot of guilt and wanted to see justice and felt guilt because he was afraid that pongal could be doing this to other kids that was his motivation it is not improper for the prosecutor to argue that the jury should find a  witness credible based on the the witnesses own statement of his motivation was that alleged or stated motivation attacked by the the defense  while the defense attacked every aspect of the witnesses credibility i mean at length and almost bizarrely so attacking him as a drug user a liar that he lied about things as small as what his assistant coaches in high school fond of his football playing ability to lying about committing felonies while on the job so the i think that the attack on the was asked to put themselves in david her prison as a ten year old boy writes are there not violations of the golden rule so that there were i think you're referring to there was one comment in describing how david harper's life spiral out of control after the events and then i think the prosecutor said something like you know you know you be that ten year old boy now again this is playing a review so i think what the prosecutor was trying to do there was not to say jury convict because this could have been you that would clearly be improper i think what the prosecutor was saying here was artful way to have put it would have been to say he's testified to this this and this yes he used drugs yes he did this and this but isn't that consistent with his experiences isn't that what you'd expect a ten year old boy to do so he was again arguing for that the jury should find that witness credible and so perhaps it was not artfully phrase but i don't think that it was egregious lee improper and i did want to  take issue with one point that my colleague made and perhaps i'm wrong on this the record will speak for itself but as she was arguing with in answer to judge moore's question about whether there was an objection to any of these alleged improprieties she said think i don't think there was i looked through just sitting a counsel table the closing argument the opening portion of closing argument and i did see two objections by defense counsel they were objections to the prosecutor was saying that the jury had not heard anyone testify that they attended this talk on august third and the defense attorney objected that the prosecutor could not permissibly talk about evidence that the defendant had not put on now i think that objection actually was wrong but that's the only objection that i saw in that closing argument there was no objection to any of the alleged improprieties are alleged on appeal and i do think that that goes to show that if there are two ways to read the prosecutor's comments one a proper argument about whether you should find a witness probable and an improper one about that the jury should convict in order to protect other kids and not based on the evidence it suggests that at least on planar review the one that i'm suggesting is the better interpretation because it certainly wasn't obvious enough to anyone court counsel anyone to raise an objection so in the government's q the any misconduct here was does not rise to the level of plain error and in must there for the questions united states asked the court to affirm just very quickly on the closing argument point and again the record shows this but i just wanted to clarify the statements about protecting other children are not just what counsel said the prosecutor said he told you he wanted justice and to protect other children from that man right there robert lbl that's all he's asking of you very simple so he did make this a personal statement about protecting other children now and on the points about the evidence the key to this case is barbara harper admitting that the date was wrong in her testimony between this is page id's three forty four but between three forty one and three forty five she admits august third is not the correct date and if if you look at the letter which she affirmed in adopted it says we and other couples present now the government the government's explanation for this fails at every turn the government tries to say she wrote this letter in advance well that doesn't make any sense it's illogical because the letter includes details about the speech details about what he talked about the government tries to say that the event was cancelled well that doesn't make any sense because again we have this letter talking about actual details of the event we have barbara harper of this incident have been very long time ago i mean in one sense that helps you because of homage or i'm trying to find a reasonable doubt and i'm saying gosh that's that's  want i'm very nervous about these recollections and whether anyone can remember this kind of thing but it also helps on this point because this is the kind of thing one might forget a couple decades later whether someone really did leave in the afternoon or when you said left in the afternoon you referring going to somewhere else before you left right i mean that's all we're talking about well that differential luckily we do have these documents and all we can go on is the testimony that's in the record we can't lessen the but the documents don't contradict the point i was just making well what contradicts everyone agrees they got their very late at night everything about the next morning suggest they have not gotten much sleep what contradicts the point though is that the only evidence in the record as to when and how they left cincinnati for west virginia is contradicted by the the speech taking place in cincinnati why couldn't they have gone why couldn't the defendant have picked up the boy at his house during the day before dinner and then have gone to the church and done the meeting at the church where the says she was present in this letter and then the defendant have taken the boy to west virginia it doesn't technically conflict it is different from what we might  infer or meant when she said he was picked up at my house before dinner or during the daylight and they left for west virginia but it doesn't explicitly conflict there's just no evidence speaking to that your honor there you know barbara harper you would think she would have just caught a contradiction i mean imagine it this way the testimony is it was a sunny day when they left and excellent defense counsel proves it rained the whole day in cincinnati so that dramatically and not maybe even dramatically undermines the credibility of the person who then said these other things but it doesn't disprove the theory it just proves they either mis remembered this right they just got that memory wrong after a couple decades or it's evidence everything else they were saying weren't true it wasn't true that's all it does and the seems to me very similar a very additional telling point is if you look on page three forty two page eighty three forty and that makes it pretty telling that what happened here is that we were you know the government and investigators are trying to reconstruct events that happened decades ago it was discovered that kono was in spencer west virginia on august fourth and so they backed into this date but then lo and behold it turns out robert hunter was in cincinnati hours after he would have had to leave why isn't this of a jury question because and it's getting back to the point that your opponent made which is that there's not a flat conflict it's inferences that are being drawn that the mom statement meant that the boy was taken immediately to west virginia as opposed to the possibility that there could be some consistency here which would be that the boy was taken to the church sat around while this session when the boy and the defendant left the west which we submit that the government can't have it both ways i mean that that is there's no evidence to that in the record  out cancelled that was the government's explanation the government can't have it both ways here there's absolutely no evidence in the record other than this one transportation scenario that was given for the government didn't make the argument  trial that i was making as a possible scenario as to what happened the government never argued that and therefore you're saying the jury couldn't consider that as a possibility i really don't think that they could have and if if they did it would have been an illogical an unreasonable leap to that conclusion because there's no evidence to it and from barbara harper's testimony it's pretty clear that she was stating that her child left with robert they want to west virginia they went out of state that's how the evidence actually played out thank you counsel the case will be submitted