fourteen second the jury instructions in this case were overbroad it lacks specificity and deprived mister perrault of his right to a unanimous jury verdict as to each count and rd in last mister pearl the cumulative nature of those errors as well as the denial of the motion to continue and additional errors that i'll discuss deprive mister up for all of his right to  the district court's decision to admit to allow the introduction of those seven propensity witnesses was an abuse of discretion because doing so is nephesh leon reasonable rule for thirteen and for fourteen are subject to the rule fo three balancing test in the specific problem the specific error the district court made it in this case is failing to assess the or failing to apply the law of diminishing returns as to each successive propensity witness so what if the court would have said five propensity witnesses would you be satisfied not less than an abuser i don't know that your art i don't know that there is a specific number of witnesses where one number would be fine and the other would be but have been around as i think the proper the proper analysis at this point is to assess whether or not the court engaged in the proper for three analysis to address your question let's say that the court deemed that the st witness the that the probative value of that witness was not substantially outweighed by the danger of unfair prejudice that what the court found to do is assess the next witness and  probative value as to that evidentiary proposition you make this argument the district or the trial counsel in this case made the argument that there were certain witnesses in this case that if brought in in combination with the john doe four i don't believe was was with mckay so that's not relevant at this point but he identified gender as to set in and not in as the witnesses if whose was was substantially diminished and whose true to value was substantially outweighed by the danger of unfair prejudice and said and specifically identified if brought in these witnesses would guarantee that mister prawle would be found guilty and that's what identified bringing in those witnesses who are what i would like to focus on is the danger of unfair prejudice your your out judge phillips your question was about what is the what is the appropriate number and i don't know that there is an answer at this point because we have to st ascertain  proper analysis under rule for three and part of that analysis is identify any undue prejudice that can arise out of this number of witnesses in a trial involving sexual assault allegations or any type of assault allegation particularly assault or sexual abuse the fundamental defense is going to the veracity of the alleged victim in this case who is john doe one and identifying and be the potential of that that when this has to fabricate or to make a false allegation in this case that was the defense and the defense focused on the fact that john doe one brought a civil lawsuit that there was a financial incentive and again that's why congress adopted rules provide a prosecution a way of establishing propensity but that propensity evidence is still subject to the th rebalancing in a case like this where you have such a high number of trips and city witnesses it overwhelms the defenses ability to a stablish a basis to attack the credibility of in this case john doe  alleged victim the name to victim alleged victim in the indictment that ability to mount a defense to challenge the ferocity in credibility of the named alleged victim was overwhelmed by the number by the seven propensity witnesses that were brought into this case it's very blank that government spent addressing those propensity witnesses i think highlights the risk that that type time the government the government's case in chief so the trial over half of the trial was spent on witnesses who were there only for a propensity for purpose and that highlights that in cases like this where there's not a cap or there's the trial a character assassination on the defendant because we have a trial where the majority of the government's case in chief is spent on for thirteen for fourteen propensity how many how many witnesses would you be satisfied with i mean can they call two i mean at some point i mean because i was thinking about this as you were talking to judge billups i think myself ok you have three witness says that you're primarily didn't didn't want to testify and that was the really the thrust of the argument below where were respect to these three witnesses and so you say ok well let's show you off those three witnesses would would you be making this same argument if there were only four that testified below and they took up instead of a half they took up three eighths of the time of the trial your hon did i do i think i don't know what the exact number of minutes in a case like this is it's certainly not the three witnesses the trial counsel identified plus the other four witnesses perhaps it's four perhaps it's well so i think in the context of this trial i can't recall exactly how many days the trial was i think it was a six day trial but over but if we're looking at the government's case in chief and half talking about character witness or a propensity when this is going back to the eighty's the seventy's even to the late sixty's we're talking about when this is essentially one million dollars alpha century and that type of evidence repeated over and over again has the tendency to invite the jury to make a decision on an improper basis and as the rules recognize that improper basis is typically and emotional one that's precisely what happened here so it's not just a cold calculation of what's the appropriate number witnesses or how much of the trial do we want to you know it's a calculation of did the this number of witnesses did invite the jury to make a decision on an improper emotional basis and in this it's i think it's clear that it did invite the jury to make a decision on an improper emotional basis we have with that number of witnesses taking up that much time in trial the jury isn't in evidently going to be distracted by that just overwhelming amount of evidence and that overwhelming amount of evidence is going to it's going to precisely do that overwhelm the defense's ability to appropriately put on the defense as it as the defense is guaranteed under the due process clause of the  amendment and the six and a right to a jury trial that cut the risk of inviting the jury to make a decision and an emotional basis was highlighted in the government's closing argument for two of the witnesses i believe it's john doe six it may have been john doe five but i believe john doe six and john doe seven the government highlighted how for john doe six that individual had suffered the emotional suffering trauma they had suffered that day they were unemployed they still lived with their mother for john doe seven the government highlighted the trauma that that individual had suffered that type of appeal to the jury's emotions with in the context of rule these propensity when if this does exactly what rule forty three is designed to prevent and that's what was there an objection to to those arguments that you just brought up there was not your honor i'm high i'm highlighting them because it identifies the emotional nature of these particular propensity witnesses so and in addition to that the government referred to those witnesses these are propensity witnesses as victims in the closing argument that they get highlights  these are not just individuals they are to establish a particular evidentiary proposition which is what the rules designed are designed to have them do they were there to overwhelm the jury's sympathies and negate any that the rules and that may be relevant to the consideration of this particular when this is under forty three dollars but again the i think that would lead to an l a calculation where we would have diminishing propensity diminishing marginal returns that there is less  of course on appeal here we're reviewing this for abuse of discretion whether judge has abused her discretion in the standard that she was to apply because there's no qualms with the the relevance of this evidence is whether the evidence was admissible and it should be admissible unless the danger of unfair prejudice substantially outweighed the probative value that's what we really need to examine here and we need to examine based on and judge gets a very no record not only did she conduct a full day's hearing on this matter but she spoke from the bench after and explained her decision and then followed up with the written decision that in detail analyzed each of the against danger of unfair prejudice here i submit to you that each one of these seven other john doe witnesses the propensity witnesses and mister ellison who describes them had an important value each you know of themselves and it's worth pointing out at below below during the hearing during the briefing of this case before judge trial counsel never asked for the kind of thing that a poet counsel is asking for here which is the sifting findings about each john doe witness their propensity value standing alone or this idea of diminishing returns but when we talk about probative value we need to talk about what issues there were at the trial level and here to start off the defendant arthur perot caddick work we denied ever abusing john doe at all and through defense counsel aggressively attack the credibility of john doe on a number of points now perreault it mid in his conversation with the f b i in his statement that he knew john doe one he knew him as an alter boy and he said that he gave him gifts  offered an innocent explanation for giving him those gifts and for his association with him at that time so let's take gifts for example and why i think we had six other john doe witnesses who talked about gift giving well the defense had made a specific point of saying that the gifts to john doe served innocent purposes so six witnesses that come along then and say that the gets went to grooming for sexual abuse becomes all the more relevant another thing here is as part of the defense articulated by perot he said he did not go to kirtland air force base during the time of the charged offenses in the indictment well any other john doe witness who says that they went to court on air force base during that time especially those that say there were abuses there their evidence has incredible brew probative value another thing to consider about these witnesses is two of them in particular in this is something that i mentioned during my my closing argument below with john doe three and john doe eight for both of their testimony was corroborated by an admission from the defendant corroboration of his abuse in the form of perot's admission same thing for john doe number eight during the conversation with the f b i perreault admitted abusing john doe number eight so the way i spoke about it at the trial level and why it's important is that provided the jury with a baseline of truth for three and for eight they had that evidence as especially reliable because there were pros admissions that went with it so when the y heard that testimony and they started to apply that to how the abuse was similar to the abuse against john doe one that was especially probative because because they they when they say they were groomed in the same way and abused in the same way and things it has an extra ring of truth because the admissions that go with it so free and aid are especially probative at the trial court level it seemed the only real objection that the defense had to these propensity witnesses was to two thousand and nine so i want to tell you why in particular those three were probative and it needed to stand on their own number two for example he was somebody who said that he was abused at saint bernard debt's parish he also was someone who did not file a lawsuit so when you were assessing the credibility of john doe one the victim of the charge defenses in this case and he filed a lawsuit in there was a direct attack on his credibility because he filed a lawsuit number two was important because he was also alleging abuse at the same time or maybe a little bit earlier in time late eighty's where as john doe one was early ninety's at saint bernard that's when he didn't file a lawsuit so that made him credibility also a core of the defense had to do with whether was there was a bed in a certain room of the rectory at the at the church at the time of the of john doe warrant john doe witness number two had been not only a parishioner there but a security guard and could speak to whether or not there was a bed there so that made him especially probative that was an issue that didn't just come out st a trial that was litigated before the trial as you can see from the record so for those reasons john doe two was very important john doe seven john doe seven is the one who mister nelson haim was talking about some of his testimony on the stand about becoming emotional in the impact in his life i'd note again that that wasn't something that was the objected to and if you look at the record as a whole the reason why i highlighted that in the summation is because there had then attacks on john doe one because of problems he had in his life after the abuse the lawsuit the inability the counseling the inability to hold down a job and unrest so what i was trying to do there  highlighting the statements that john doe seven had made on the witness stand about how his life that was part and he lost his faith was to show that there was another person out there who was suffering the similar effects and that was also buttressed by the testimony of the expert gail goodman who talked about these effects being typical of abuse survivors but very importantly john those seven said he went to kirtland air force base with arthur perot something arthur perot denied and john doe seven said he was tonight to ninety two he really never stopped abusing children and he always had someone so number nine was was really probably the st in line that we know about and he knew perot as an authority figure as a cheech or same way that john doe one knew perot as an authority figure he also said he was abused in a bed which became a contentious issue at trial and he talked about similar grooming manners like going outings and giving gifts so those three witnesses that would challenge the most by the defense below are actually very very probative and altogether those which says were were certainly necessary and the judge was well within her discretion based on the defense it was articulated and the way she explained her reason to to admit all of them into evidence it's also worth noting here that the judge didn't give the prosecution everything it asked for and it was careful in how it is guided what would come in and what would stay out and it was all geared towards what is similar to the abuse of john doe one if the allegations that were proffered pre trial and more of the same nature as what john doe once said happened to him they were let in if they were different they were excluded and there i'd point the court to pornography the united states has made a motion to admit evidence that he's shown pornography to other victims as a group and then technique in the court disallow that saying that's not something that john doe says happened to him also the court was made aware by the prosecution there were many many other witnesses out there accusing perreault of abuse and so but were only proffering eight at the time and seven who ultimately testified so the judge did have in mind that the door already been a way to wind down the potential propensity witnesses at the time of trial the rule for twelve and four for thirteen and for fourteen as applied in this case it exactly what congress intended the rule to do to not put a victim of sexual abuse which often involves late disclosure usually happens in an ice plated area often with a  avoided having john doe one have to go through and uncorroborated will unresolvable swearing match with the defendant where john doe one would make the allegation imperato would deny it and there would be no other witnesses and no whether physical evidence that's why for thirteen and for fourteen exists in their different from rule for four b that has a stricter standard in non sex offense case this is for situations just like this here we have old allegations we had a victim who was credible and could stand on his own there were a lot of strength in his testimony including what i thought he gave it made special credibility was the way he explained his not only his faults later in life but some of the embarrassment at the time where he would get blood in his underwear and hide it from his parents those are real hallmarks of truth so john doe one was strong on his own but here he didn't have to stand alone because there were these other witnesses in judge vasquez was well within her discretion to to allow them to testify here so it was an argument about the jury instructions being confusing to the jury foreman double jeopardy stamp yes well i think on this point your honor it's important to remember how parowan how the trial counsel tried this case at the trial court level and one thing i'd point you to is the cross examination of john doe one and the overall defense the overall defense was to categorically deny any abuse of john doe one to admit that you knew him he admitted he knew him as an altar boy to the f b i but it made any abuse say he didn't go to court on air force base say he didn't go to the cemetery but then on cross examination if the defense wanted to pick apart individual incidents they could have developed that during cross examination and ask more probing questions about what happened each time in the office of the chapel or in the car or by the flight line they didn't do that their defense was categor al denial of all allegations so really the details didn't matter then and the jury instruction then makes a lot of sense this was a jury instruction that was proposed both by the prosecution and the defense this is something the defense asked for and the indictment doesn't tell them anything about how specific they could use the same act for count one count two for example yes your honor well the important thing here the record reflects that the the judge read the indictment to the jury at least twice during the course of the trial and the face of the indictment makes clear counts one in two happen at kirtland air force base in the language of the indictment actually says on different occasions so the jury was on notice that those were two separate events they needed to consider and they got another jury instruction that said they needed to consider the charlie was amazed that visually it was at the beginning of the trial i mean days before the deliberated that i'd have to look i think about a forty five dollars day day trial so they got it at the at the outset of jury selection and they got it again i think at the beginning so but it was also something that was was mentioned in the summations of the parties so it should have been there should have been more recency in the jury's mind about these issues when they went back into the jury room also i point out number seven was distinguish because it happened at santa fe national cemetery so that wouldn't be confused with one in two that have been occurring air force base so together with the indictment specifying that one in two were separate acts and number seven specifying a different location that was sufficient for the jury to know that we were talking about three different things in conclusion here based hindsight seems to be two thousand and twenty for the defense at trial they were happy with the jury that was chosen didn't exercise for peremptory challenge they were happy with the jury instructions they didn't object to the pre sentence report and the obstruction enhanced it for flight but here now after trial they they want to really to get those case those issues and they're not properly would preserve to instruction sixteen it's regarding counts twelve and seven it's not just this that the specific acknowledged acts were not identified is that the location in the instruction itself was not identified as to each count and submitted by the phone your honor because the party suggested that the in the indictment go back with the jury and the court own did not submit the him or did not send the indictment back to the jury i don't believe it's we have a real question about jury unanimity with these very broad nonspecific jury instructions that are overlapping and the part of the problem i'm sorry i'm out of time i apologize you