i was not thinking that that was a normal process at all well how do you determine the rest of the credibility of a picture that's not what you're supposed to do for this poem very fact determination right it's just you're supposed to make a determination and i don't see why you couldn't do it on the basis of f b i three  actually exists i'm quite confident i can remember what supreme court case says it is but that the district judge is most definitely not supposed to assess the credibility of the the witness and decide do i think that person is credible ok i guess all that to testify for the jury that's definitely not what happens right well first of all in order to bring it forth it has to be understood it has to be the reporter's test is there in order to make sure that the jury can accept it that is that it passes that straight face test test in other words i need to have some validity that these facts actually occurred there was no conviction there was no testimony there was simply a three o two from the f b i how could how does one determine from an f b i three o two whether these facts actually opportunity to determine the credibility of the witnesses and that's what the first judge in this particular case held that there should be an evidentiary hearing so we're unaware of any place where the f b i three hundred two can suffice for a preponderance of evidence  normally again it's something you know your thought is that what congress or whoever rules and actors they basically wanted then the victim to be you know traumatized twice over let's have this unary sort of take the witness on board here outside the presence of the jury make them go through all of the rigors of cross examination all of the stress and embarrassment that brings and then if that person seems credible the judge will just make them do it all over again from the jury i can't imagine that's the system that we're supposed to indorse here well if otherwise how are you going to bring evidence for with some credibility there has to be some basis i mean are you telling me that at three o two from an f b i agent that is enough to suffice the credibility issue of whether it actually exists normally there's a conviction so you have evidence that in fact this act actually occurred you have a conviction where you have the testimony of the actual witnesses the people that were victims you know i can't speak to the victims but i know on behalf of the defendant character evidence is not the basis for a conviction bill we want to convict people on the facts of the case and when you bring enough character evidence in to say this person is horrible and bad people start convicted him on who they are who their character is versus the facts of the case so i i do believe that in fact there has to be sums some test to bring before you bring forward these individuals and again again i don't want to speak on behalf of victims but of the presence of the jury under the confines of a judge i don't see that the victim second time in this particular case it's even worse because the first judge made a determination ok my client mr abrams we're going to have this evidence or a hearing so you'll have some notice have to do this character evidence it's actually going to come forward and in the middle of trial the judge trial judge made a determination and swished and said no you know what i have enough information from the three of you i will let it come forward i understand and under huddlestone the court could have allowed the evidence come forward for the jury and made the determination  conclusion that you know i saw i've seen this testimony and i find that that's credible if it passes a straight face test and it's allowed or have the person contradicting themselves on the stand could have asked that testimony be stricken but that's not what happened in this case in this particular case this district court judge erred by making that ruling prior to the testimony and based soley on the f b i three o two statements so our position is that in fact was an error under federals of evidence for one three and should bushes so then your view is that once the witnesses testified at trial i guess there was and there was no motion to strike their testimony on the basis that it wasn't it was lacking credibility right that's true so what's the complaint i guess i don't well in this particular case it's twofold the fact that the court should have ruled ahead of time so my client would have had been prepared in the second is that my client was expecting an evidentiary hearing he was told by a judge jones that he would get an evidentiary hearing he'd have an opportunity to cross examine the character witnesses and at least have some idea the idea of what kind of information has been brought forward but you're saying that to me from ron i hear you saying well he wasn't entitled to the sort of dry run testimony outside the presence of the jury entitled in the sense that the first judge gave an order any relied upon it he went into there was a different judge by the time i went to trial that judge is not bound by what the earlier judge said and she said no we're not going to do it that way and so if if there were if somehow the witnesses got on the stand and you know said something i guess that i don't know what you're investing that they think look to things you do you and the judge said boy you've contest by consistently what you say in the f b i three or two but i just don't think any reasonable jury could find you credible so therefore i don't know i'm supposed to strike the testimony of i mean in this particular case you had two ex wives they were obviously biased against the client or or defendant would have been twenty years since they had any interaction with their client in the twenty years since then they've never once made a report that never once brought forth a picture the never brought forth another witness a declared any of these character evidence that had occurred twenty years before i think absolutely that in fact the no no jury could believe them because they had gone to the police were really going to  judge made it solely on the f b i three o two and i think that's inappropriate second of all is my client relied on the judge the first judge that said there was going to be an evidentiary hearing before we brought in this in this character evidence you're going to an opportunity to see what the testimony doesn't cross examine it so on those two point points i do believe of the pro court erred with regard to federal sort of evidence for one theory that the district court has an inherent responsibility i think you might agree with me  whether it's spoken or not to impose the requirements of rule four zero three which you know has to be more you know probative than it is prejudicial and take into consideration other factors that may be relevant those other factors that were raised by my client included if there was less prejudicial way of getting the information and if the court if the jury finder of fact was going to be distracted by these character evidence facts it occurred twenty years before and the court did not even consider those particular issues but more importantly that the court misapplied the issues are the main factors similarity you have wives that existed two decades before that ended in divorce and a lot of emotional issues that occurred twenty years ago and then you have teenagers forty years after the fact i just don't see the similarities other than the fact that they're the same cla that there's just too much similarity the second thing is the timing issue the court actually said twenty years actually suggests or encourages that this should be applied to the courage is or is neutral how c of applied and it was extraordinary to prejudicial i don't know if you had an opportunity to read the transcript the whole of these acts wife came in and said exactly what you'd expect i hate him he was he was horrible he treated me he could try to control the finances he tried to control me physically had nothing to do with the allegations because that's what i was going to ask you about in terms of similarity i mean you're right the circumstances are quite distinct and in some ways but i thought there was a there was a similar strain in terms of his attempt to control almost psychologically as well as physically the victims in each of the instance this is what i mean every you know every person is going to have a different opinion regarding that clearly my position is the fact that they were two decades apart s that you understand from the standpoint of just trying to assess probative value that your client's position remind me if i'm not open that mischaracterizing it was basically like this young lady made this entire thing up none of this happened  so it does make it more likely that she's telling the truth when that kind of sort of psychological coersion or manipulation that he exhibited toward her the ex wives also suggest that something similar happened then albeit twenty years earlier but boy it's not it doesn't seem that can and so on all right when there's kind of a common so that's what i think the similarity is i agree with you that otherwise the objective circumstances are quite different but how do you respond to that well you know at the end of the day your hon think the fact of matter is you had a very biased witnesses were going to say whatever they could to damage something that somebody that they divorced twenty years ago but isn't that something you argue to the jury you argue bias sure absolutely but when it gets so prejudicial that they lose track of the facts of the case then it becomes unfair i mean what does that have to do that he tried to control her finances was it have to do with the fact that they hated him to this day what does the fact that when they you know last year when they heard a noise outside their window twenty years after the fact they fel of him i mean that's the type of evidence that they're bringing in in front of these finders of fact and they lose all track of the facts of this case i mean what does it have to do that an ex wife year ago have not seen this individual for twenty years heard a voice outside or in the navy in the dark and was worried that he was going to come attack or that's the type of testimony that came in through these character witnesses and it's just in my opinion an unfair and extraordinarily biased and should have come in in the first  jurors but i just think it's extraordinarily prejudicial when you start talking about the fact that you control the finances the fact that twenty years after the fact i'm afraid that i'm going to be attacked all the prejudicial information that came in controlling and abusive to w twenty years ago and that is beyond the pale well so here's the thing that wouldn't most ex wives have something horrible to say about their ex husband i mean i don't know but i'm just saying the fact that  you well and so it is but the problem and the reason i'm before you is and i think when you get so prejudicial and so extreme that it becomes unfair and that's why i appreciate the opportunity presented t you and one thing i might add is this is an individual who represented himself we have the prosecutors at the same time asking how to feel when you're raped i mean that they're taking advantage of the fact that my client doesn't understand legal objections necessarily and you know he took it upon himsel can to your your argument that this is twenty years ago and who knows what happened in the meantime but much of your argument would be precisely the same precisely the same if one of these women and divorced or been divorced or had gotten divorced five years before two years before you would still make the same argument when you she's bridge edition she's prejudiced against him she hates him she's biased against them all of these arguments that you're making now because it apply equally even if it was just a few years ago so i'm that and that is impressed as you are with it with the time differential here where we're dealing with somebody this kind of course of conduct and i understand that but you know at the end of the day is that course of conduct i mean here's the reason why they said they didn't report it as i was scared ok i was scared so so i could see you know a month after the divorce make it apply six months maybe but twenty years does that make sense to you that after twenty years of being divorced that you never reported it once  somebody was definitely afraid of them what it makes sense to be many people who are very shrewd obviously reasonable minds differ but at the end of the day in my opinion it gets to the point where there's no longer is a fair trial that the jurors are concentrated on this person's character versus the facts of the case i mean i've listened to your arguments i grant you i understand exactly where you're coming from but it seems to me your complaint really is with for thirteen itself and we've i think the constitutionality of that is behind us all of the things that you're talking about go to should we even have this rule but the judgment has been made that we should and our court has and you know the sonia rule that we've said it so it's all right i'm not even a arguing about the constitution i'm simply saying it was wrong wrongfully applied for thirteen was wrongfully applied the court told him we're going have an evidentiary hearing you'll have the opportunity to cross examine these witnesses and that you know in the sixth or seventh day of trial all this and they just came in with him never having the opportunity and the judge making  that's the one that talks about the threshold determination that needs to be made so the area that mr abrams is raising is essentially the district court didn't make this credibility finding but he also says that's not what the district court does the district court is supposed to say could any reasonable juror hear this proffered evidence and could any reasonable juror make a determination by a preponderance that this happened you know it's this question marks well first of all do you have a lot of experience in cases where these cases that we cited both to the district court there was sort of a compendium in our motion in the mini about well what happens do you need does it have to be a conviction can it be in charge do you have to have a hearing does it not i would say to some of the recent cases i've seen you don't have to have a hearing of course this is a matter in the district court's discretion if there's something that maybe doesn't add up to the court or they want to have a little more than what was proffered that's absolutely up to the district court but in this case i do in a cracked the same way that was made that we're only talking about three  there was much more than three zero two years that were submitted if you look at it's e c f number forty eight is them iow that talks about trying to get this evidence in it has a detailed chart comparing all the similarities of all the victims and also remind the court that we're not talking about just  there were four total so there were the two ex wives that were the older in time and then we also had a victim from missouri that was about five years after the ex wives and we had another victim from salt lake city that was only five years before this crime the allegations in this case and it was based on things like the police reports for the two that didn't make it to trial because put sources put them aside just focusing on the two who did just because that's all that's forus correct i look at the three of to use and what struck me was that there are  i guess one maybe it was when i read the government's brief i thought they were going to be a lot more detailed than they were and i don't think on the basis of what's in the three zero two's the judge could make any determination about the similarities because there's not enough detail so i  guess i don't know if it's just kind of the deal to me becomes harmless error but i would not have thought that if all the judge was going to look at where the three o two is that any determination could be made that oh yeah you know what happened to the two ex wives are so similar or similar enough to what happened to the young lady in this case that this evidence should come out so i guess that's why i was curious when you said there was a lot more than israel to use it doesn't sound like it for the two ex wives well i think if you go back and look at the chart it's sort of laying it out for the why the relevant facts are similar so there's a lot of facts we can point to such as where they married or were these runaway teenagers that he picked up that are not similar but this is talking about the similarity of the sexual assaults themselves and so we're talking about someone based on the three o two switcher attach and also the police reports but of course the direct exam if the court lets it in it's not just going to ask each detail of the three a two it's going to going to ask a little background that's going to ask some things about the details of the sexual assault right because that's where the similarities come in and so this this person really had in this very brutal m o about how he sexually abuse these women and if you look at the similarities there that's the part where we see the pattern that's the part that's going to be the jury considering whether this is relevant to this case and we're not talking about just some sort of rape where there's obviously lack of consent some sort of sort of force we're talking about a very specific brutality pattern that he gauges and when he does this and i  an officer of the court the prosecutor got up and say we've origins we've talked to these other victims and this is what they say these are the similarities and so on and so forth that the judge much earlier the hope was all four of them were going to come in and the fourth one in particular the most recent five years ago victim was actually even more strikingly similar then the basic similarities of the others and so when the district court was considering it by the time she rule this motion during the course of trial after she had heard it in the context of evidence after she heard the female victim testify about how the defendant specifically made her do things he made his ex wife do and the courts now hearing this in context since finding it even more relevant based on the pro if these witnesses were here would they be credible it's we had these place reports we have these properties three zero to use and if these statements were made to a jury could a reasonable juror find by a preponderance that these things happened and so that's what what it was based on and the district court did comment about how she was considering all four of them not just the two that were the two that were coming in to testify there was also some discussion about evidence rule for zero three again this is under evidence rule for thirteen it's an income rule of inclusion congress specifically turned away from role for a for b which is not to be as for propensity evidence this one's allowed to be used for anything that's relevant and that includes propensity and so when we're looking at four o three it's whether the probably devalue substantially outweighed it's not just about test fifty fifty it has to be substantially outweighed by unfair prejudice and  had raised some other proposed factors he would like the district court to consider those are some factors that originated from a tenth circuit case and what was said there was if these are relevant they can be considered but again of course any factor that is relevant could always be considered because it's a non exhaustive test but here the court didn't consider and i think you can see from the transcript what was happening there is she was saying that these are not relevant i'm sticking to the five factors from what may the five factors that are controlling law on the circuit and she applied them and did a very detailed analysis of that when we talk about the timing factor of the oldest victims account being twenty years ago when they were married the district court didn't say something to the effect of this way strongly in favor of mission she just said look this doesn't exclude it and maybe it's just neutral congress was an act in this rule you can see how much they were trying to make it a rule of inclusion and they specifically did not include a time limit so could we imagine some case where maybe it's fifty years old were a court may look at it and say ok we have to draw the line somewhere in this fifty years old maybe the witnesses have died or something like that sure there could be an outer bound but as a matter of a black and right rule there is no specific time limit that someone could point to and say once we get to fifteen years or twenty years and so on that it's too old especially in a case like this where we have a pattern where it wasn't twenty years ago and then stopped we have several examples that can be pointed to and i do just want to briefly did you have a question or i was going to change the subject you have more just one brief there was a comment made about some misconduct about the use of the word rape i just want to play now when the prosecutor was questioning that the first witness the first ex wife the question was asking about the quote sexually abusive behavior and then the witness responded and talked about rape and so there can't be  if we're using terms like sexually abusive and if the witness believes it's rape wants to call or a pin i think it's commonly understood what he did to her was rape i don't see how there's any misconduct there so that's why i had on on the for thirteen  guess the denial of the motion for a continuance and the lack of access to the his materials in order to be able to prepare for trial i guess i guess i had some concern about how that played out and i hope and you could clarify  terms of what the record shows of course is that the as i understand it the main complaint he has is that well i was asking for more time and sure maybe at some point you say enough is enough we've got to get going on with this but the main problem was that every time they transported me they basically confiscated all of my discovery materials i had to just start from scratch every single time and so yeah i've had that stuff with me the whole time maybe i would have had an adequate amount of time to prepare but given that that kept happening  was i was not able to get ready in the in the time frame so maybe you can just address share point so we know that he went per se on november ninth we know that he got transported in the materials were taken away like you said but we know that starting in about mid december things really started to change for him where his standby counsel is getting the picture delivering more copies meeting with him so he does make a lot of these complaints but i'm going to point you to the places in the record where the record contradicts what he's complaining about about time and access so he admitted in a declaration that he found in february second he received discovery and the means to examine it by january fifteenth this is that page eight hundred ninety seven so he admits jamey thirteenth this is one month before trial he also admits that he did in fact examine it so we have by counsel talking about spending twenty hours on disc on discovery review with him and as the record shows this is not a document intensive case this is not a white collar case we're talking some witness interviews most of the discovery provided by the government was about six hundred pages mr abrams criminal history he has a thirty year criminal history so a lot of it was that of course there was some materials that came from prior defense counsel but again when we're talking about eleven hundred pages part of the issue there was this i pod download it's a solid right report it's meant to be looked at electronically it's not meant to be printed out in a long p f and i understand the issue about the cd being confiscated however generally fifteenth a month before trial he was transferred to the washoe county jail where he stayed for the rest of the month c d s are contraband there they gave him access as we get closer to trial we have the court entering orders such as giving him some more time to talk to witnesses on the phone he did it that he'd already talked with his counsel with several witnesses but there were a few more to go so the court issues an order directing the jail give him more time on the phone this is the phone where you can't record calls the court also entered or actually judge jones which is prior to this he entered in order to or the jail to give standby counsel as much time with the defendant as the defendant wanted so we're not talking certain visitor hours or anything he could go in there as much as he wanted and that's why we know how much time they spent reviewing discovery so the court the district are did a really good job of making a record of this of what kind of access he did have especially in the jail the one month prior to trial there was a sergeant palmer who came in and testif about all these accommodations that were made for mr abrams and mr abrams alone he talks about how this is never been done and his experience ten years at the jail and they're really the deputies are bending over backwards to help him they're skipping lunch is they're printing stuff for him they're delivering stuff to him  we know that standby counsel told the court in the late january status conference he was ready to cross examine mr abrams is ready to cross examine his witnesses he just needed a little more time to finish looking at some of the i pod stuff and then if you look at the  victim rights witness availability and standby counsel said ok he's ready on these things not on these things we need a month maybe a month and a half government oppose government said we want nothing zero continuance and so the court kind of cut it down the middle and instead of giving a month twenty one days this is an abuse of discretion review we cannot see that twenty one days as opposed to a month is ninety's less is an abuse of discretion and so i think if you look at those places in the records where  meeting he got everything he's admitting he reviewed it would he like more time of course would everybody like more time probably yes but it's also contradicted by the fact that he talks about this being a straightforward case he's been preparing for three and a half years so if you really look at the facts of what happened your honor i think that the answer is he got enough time and he admitted he reviewed and had everything and if you look at how he did it trial he had materials he was prepared i mean he's proper so it is what it is but this is not a case where he got up and really had  no idea what to ask the witnesses or what to do in trial and then lastly the final thing i want to say about the continuances is even if the court were to think that more time should have been granted the main problem that mr abrams faces here  he can't show any prejudice he really only talks about two kinds of prejudice the first is his expert o'donohue he never raised this in the district court he never said i need a continuance because if i don't get one my expert won't be available and if you look at what happened his expert was available at the beginning  trial and he essentially flaked out the expert showed up for volunteer the district court question him and his testimony was going to be limited and then he was supposed to come in that friday afternoon there was a bit of a time difference the court wanted him at two thirty standby counsel told him four o'clock it was a friday afternoon he wasn't there she let the judge let the jury go home and said ok we're going to have him what monday or tuesday and they said yeah he'll be fine tuesday morning comes he's not there ok tuesday afternoon the court saying ok whenever he's here we're going to start we're going to interrupt whoever's on the stand take a break put him on we'll get him in and then at the end of the day the court we're at the end of trial and the court asks where is he and they say well he's not coming was he supposed to testify they have originally wanted him to testify essentially about the victim credibility so he talks about interview tactics and if there are certain features of interviews whether or not questions and methods that are use are suggestible and so the district court basically found to the extent he was just going to be saying here are some methods and these people aren't credible that he couldn't do that but he was going to be allowed to talk about factors that might have an influence on whether an interview was reliable the other category of prejudice that's mentioned is just things like if i had more time i could've reviewed more i could have had more witnesses etc which off fine but the problem is to show prejudice you have to talk about what the outcome would have been different if you had these things so for example this witness what come in and rebuy did this person or so on and so general allegation of prejudice is insufficient for him to meet that pronk and even though th were the jury right exactly so that the court adopted some pretty detailed methods about the movement of everyone in the courtroom that would make it so the jury wouldn't be able to see him and there is no evidence that the jury did see him so the court did a lot to try to maintain the decorum of the courtroom and if anything it was mr abrams he was not maintaining that because he was acting out during trial he was getting in monish constantly his eventually held in contempt of court so there's there's no evidence or prejudices l so i have read through the eight days of testimony in preparation for the appearance today in the appeal but i want to point out one issue that i contradict with the u s attorney's office and that is the issue of what the court ruled on with regard to the test the preponderance test and i'm looking directly at the transcript that the court this is the court's transcript in the debates down in seventy three and i think it's important i don't want to chastise anybody but this is this is my reading of  what the court said this is the court room dition the defendant also suggests that the absence of written documentation of alleged prior sexual stroll salt shows that the proof is inadequate however the standard is whether the court is able to make a pulmonary finding that the jury could reasonably find by proponents of evidence that the prior sexual assault was prior sexual assault occurred and based on the proffered by the government via the statements but attached as exhibits  to the government motion and that's the document forty eight i find that the jury could reasonably find by preponderance of the evidence that the prior sexual act occurred that is only the proffer was only those of three on tuesday that was exhibit forty eight other words though the most the government raised brought forth a motion to allow evidence in under four one three the actual evidence was just those two for those real to some are you disputing counsel statement that the motion itself contained a at that motion i well but i just kept asking you you personally have looked at it do you disagree with her and i do and that's my reading of it that's why i point out to the exact date stamp number sort of the court wants to go back and look at it they can the motion is there the consideration the other two incidents and what was else was going on and you're disputing that i'm reading straight from the record on her like i think she pointed to another part of the record that's that's that's the exhibit that we've talked about that i wish i wish i only wish as a district judge i always said what i meant but i did tell you this was the case but you know what i understand reason one is different i realize that different people could disagree and i was not there but this is important enough to me that you know when i first appeared before this court i said that were violated for one three and four or three specifically that the court ruled in appropriately and that is my belief that was based solely on those realtors which is court has found is very ambiguous and didn't give any notice whatsoever and the court also pointed out the issue that my client should have some awareness of what's coming in the court reversed their opinion and yet it was a second judge but in the middle of trial if it was day six always sudden he finds out that his ex wives are coming in and he doesn't have a clue what they're going to say other than what a page and a half of a thrill to set in this very ambiguous and then they come in and he had the motion and that's why i like to look at it myself but it is so mean that it contains a more detailed proffer of what the ex wives w stand here and say that's certainly the way it but that's the way i see it yeah so i thought that was important to bring to the court yeah the other issue is the continuance you know the continuous i think that the timeline is nov sixteenth two after three weeks elapsed so in my reply i point out how much of that time period was actually available to my client in order to you know get information and prepare for the trial when the standby attorney didn't even get to see him until three weeks that the investigator didn't get to see him until much later after that and then when he was finally allowed to make phone calls it was a very restricted time you actually are over your time thank you counsel things you are going to be shit case just argue to submit