on march nineteenth two thousand and four the victim in this case who was thirteen years old left school with summer after house to let me interrupt you we were deadly familiar with the facts and we've got some legal issues on appeal i first one is sentencing in your brief on page nineteen you say quote the district court never once mentioned the advisory nature of the set sentencing guidelines flat statement that it's kind of acted in the red brief in the courts as i have taken into account the sentencing guidelines which are advisory i understand that and i was mistaken when i in the brief and i rechecked it after i got the government's brief and they were in fact correct he did say that but that you can see that in a reply brief i did not but that didn't necessarily diminish the argument that i was making but i'd like to get to that later if i could i want to start with the first issue that i raised in the briefing that being whether or not the testimony from a witness that the victim on that occasion was too drunk to have that counsel frankly the way you presented the issue and not the way it happened in court you tell us it was a seven zero one case involving a lay opinion but have if you read the transcript it was completely different the witness was moving all over the place and on  cross examination the witness said one thing and then on redirect this whole thing came up and then at one point counsel for the defendant said he didn't have any objection to that was clearly to impeach the witness it had nothing to do with the seven hundred one well i disagree  testimony initially was that she was too young and that was not a licit it by defense counsel that was a listed by counsel for the government as a mustache as a hostile witness regardless over objection the court letter n and that's when he testified that he didn't have sex with her because she was too young now what transpired here correct in that when he was interviewed that witness he stated to the f b i one of the reasons that he did not have sex with the victim was the because he thought she thought she was too young so introduced even if it's impeachment i never met or i never understood the yak seven to one argument because to them gosh when i was a sixteen year old in high school i could tell if somebody was extremely drunk most people can it's just pretty ordinary in fact there are bunch of amusing footnotes and with more on evidence about just that that ordinary folks can tell whether somebody is  knew what i was doing if somebody came up to me and said give me a hundred bucks at that time i would've told them i don't have a hundred bucks which means i knew what i was doing i understood the question and i responded to it so just because somebody is drunk doesn't mean somebody is incapable of consent many people consent to intercourse during the course of intoxication that doesn't mean it it's wrong but it doesn't resolve the issue is this a correct statement of what happened as side by the prosecutor was attempting to impeach robert with robert's previous statement to mans that robert did not have sex with c m because she was too young not because she was too drunk defense counsel then stated he had no objection is that what happened is that what happened it is it's exactly what happened and that's why that is you as i argue it had to be analyzed for plain air but if we go back we have to keep in mind that that was the second part the first part when he first attempted to  testimony as to why this witness did not have sex with the victim it was objected to and the objection was overruled and we get the two drunk testimony instantly does the conviction for sex with a person incapable of appraising the nature of a conduct matter or would he get the exact same sentence just for sexual act with a person between the ages of twelve and fifteen well certainly in terms of calculating the guidelines it doesn't matter because they were group together does not matter because they are grouped in terms of the guidelines but it certainly could matter in the grand scheme of things in terms of factors a judge could consider the determining sentence for example let's assume that this evidence did not come in  opinion was not allowed and let's assume that the jury acquitted him of that particular trifle they could still convict him of the second charge but certainly that would be a factor that the court can consider so we're imposing a lesser sentence where your what i'm thinking is arguably the too drunk to answer it could mean that she think a put our proverb thinks she's thinking boy overpraising the nature of the conduct it could also mean i don't like having sex with girls who are real drunk they may throw up on me i don't like it it doesn't necessarily mean that it would be a jury question what it means you're absolutely correct that the editor of it could be a number of things but it certainly can it's i'm sorry why wouldn't it just be something to explore on cross and leave it to the jury we can explore anything on cross but before we explore something on cross the evidence should be admissible period and my position is that it's not  it shouldn't have to be explored on cross it's too prejudicial it goes to the ultimate issue i don't see how one ring that bell by crossing where it's all that prejudicial and i and i don't see that it's a problem of on ringing the bell i mean everybody knows these kids are drinking at a party well their various stages of being drunk guy understand that and you and let me respond this way certainly there's plenty of evidence in this case that the jury could consider to find that she was incapable of consenting because she was too intoxicated there's plenty of that there was however evidence in this case i believe her name was margaret milford who testified that she was awakened in the middle of the night and observed the defendant mr blatchford and the victim evidently having sex on the couch and she heard the victim say take my pants down and then when she asks the victim what she is doing the victim responds with mind your own business there after she goes  awakens kevin malone whose home they were in and kevin comes out and the incident stops from those facts a jury clearly could conclude that she knew what she was doing even in fact she even if in fact she was intoxicated she asked the man to pull the pants down she asked the man to continue agree with us and that's why i'm having trouble getting to the no ten minutes to seven are one problem it just seems like an ordinary kind of curious you that's exactly what seven a one says the jury should be able to decide if there's enough evidence for a jury to consider the issue on its own merits then we shouldn't be allowing somebody to answer the question for them that's what this judge in this case allowed the witness to do and we just can't say ok clearly if it's helpful to the jury and if it's necessary for a determination of a fact that's also part of seven zero one and in this case that was not necessary because that's within the province of the jury there was plenty of evidence that's the time when these opinions should not come in what was the evidence that she was thirteen the evidence that she was thirteen came from the victim herself because prior to the incident she had never mentioned to anybody nor did anybody else state that she was an under the age of sixteen much less thirteen in fact the evidence was that she was telling people she was nineteen that's the way the evidence played out all the way through this case until she went to the f b i and indicated she was thirteen no other witnessed in this case testified that they see or she knew that this person was thirteen although certainly there were some there that went to school individual incapable of appraising the conduct than there is for sexual abuse of a minor i don't have those comparative numbers but my recollection is that the punishment is greater and i don't want the court to have a misimpression with respect to that that the key issue is is the order of what took place in the course of the trial both of the questions and answers that the appellant claims are offensive here were both presented on redirect examination and it's crucial what takes place on cross examination robert alone is present that night he said percipient witness to the acts that take place before the sexual abuse and he's a witness at the time of the sexual abuse and is the best friend of that them as a hostile witness and that's correct and that's correct and what do you indicated on questioning by the defense was that the victim herself claimed to be nineteen years old he was then asked by the defense attorney how well did you think she was and his answer was seventeen or eighteen years old that was on cross examination and then he was asked in the context of when he was in the room with the two of them when the sexual assault took place why didn't you do it again action objection relevance not objection opinion testimony objection relevance and the issue at that point for that the trial court was to rule on whether it was a relevant question over relevant it was appropriate rebuttal because of course what robert that was asked at that point was white why didn't you have sex with her and her and her and his response which was a surprise to the government because pretrial he had  cated to the f b i that his response was because i thought she was too young which isn't exactly appropriate rebottle to believing that she was nineteen seventeen or eighteen so then you got into the prior statements of the f b i agent exactly  and he was rebutted on that and claimed you wanted to reach him on this and the defense attorney said ok well i have no objection to that that's correct your honor that's correct with no reference to seven zero one or opinion testimony from a restaurant and when and which is why certainly was with respect to case was that robert cone had already testified that the victim was getting drunk on the top of the hill that he believed that the victim was intoxicated when people were leaving at the end of the party that she in the defendant carried the victim down from the hill because of her intoxicated state that it took two people to carry the victim out of the room after the sexual assault as a result of her intoxicated state the defendant provided a written statement to the f b i prior to the trial exhibit four that was presented to sit her if she did robert following testified that the victim was too drunk to walk before this exchange of questions on redirect yesteryear in the defendant's own written statement he indicated that the victim was not in her right mind and care about the written statement i want i want to know the testimony at trial but it but but but the written statement was testified to by the f b i agent was presented before the jury at trial it was a trial exhibit it was read to the jury and my point your honor is there was overwhelming evidence in this record so respected you take it already testified what you meant was robert balonne had already said in his written statement that she was too drunk to walk and the jury heard that from the i'm sorry your honor i'm mixing two things rather below testified at trial that she was too drunk to leave the living i want to know is did robert balonne say she was too drunk to walk and his testimony before the jury before this exchange on redirect yesterday because that bears on whether even matter that he ventured an opinion on whether he was too drunk during the redirect heat heat he did in fact provide that testimony prior to this interview you're saying after all i've been ringing for a long time and it's exactly what i'm saying that to that to the extent that that the question of intoxication constitutes plain error and again because there was no objection on the seven i want to achieve so this can only be evaluated on a plane or standard whether or not it constitutes a point or i think has to be looked at on whether or not it constitutes harmless error and clearly given the ample evidence in this record with respect to the intoxication incapacitation of the victim it does not constitute a plan with respect very quickly to the sentencing issue as as the court has noted the judge obviously did acknowledge that the guidelines were advisory and more importantly went through at least a six step process in describing exactly have united states versus blackford is submitted by the council you used up all your time but if if you need a few seconds for rebuttal cake take thirty seconds or so since the focus has been to some extent on whether the victim was able to walk as i understood the testimony from robert along i'm not talking about what was in the pre sentence report as part of the brief filed by the government his testimony was that she was having trouble walking down the hill and that he helped her so to that extent she she wasn't incapable she was simply having trouble that's all i would thank you c