i'm sorry i want to thank you very much for except thing is he jay appointment in this matter your service is fun i'm fundamentally important to our system of justice and as a court and as a judge i deeply appreciate it thank you jim may perceive through the clothing the next she's testified that after that she didn't want anything to do with frank anymore however like true days later she then testified that she was playing on the couch prison which came out during the trial that testimony came out during the trial in this case and so but there was no there was no evidence to show but this so i think there's a possibility here that whether there are sufficient evidence to convict depends on whether mr tong calls evidence was properly admitted that like to talk about that ok let me guess your hon sexually abused children well then the court indicates that that and there was no there was nothing seven or the the burden that they had at they had to meet to use this they they knew they presented the testimony revive or to counsel let me ask this i think the key question is how would the defense have prepared to friendly for trial had they been given more or better or how can you make a decision and argue that you needed this testimony to revive or to refresh or or to bring back up the testimony of the when when when you presented in your case  to to offer in a prior statement because the child has become unwilling or on able to testify that you can you can probe present that evidence right because that's an exceptional circumstance now when you get a situation here where the child has testified although you know maybe not as forcefully as the government wants and has testified to matter that may or may not have been that a claim of recent fabrication is unfounded right sand and that's really not what happened here right so what's happening here is they're saying they haven't and his not is detail that it's got to be based on unable or unwilling doesn't it right i mean that's got to be the theory as i see it so the question becomes is is there really any evidence in this record that you think that you believe would show that this child victim was in any way on able so improperly corroborate the witnesses testimony to bolster the witnesses testimony and to add detail to that testimony not when the child was unable or unwilling to put that detail in the record but where the child just didn't give it rule in seven says that you have to have you have to give notice you know it's got to be written all this you can't just give a written order so you're going to call a witness for one reason and then you know and then and then put them on to testified or reported the thing to us allowed to testify or the moderate in the victim talked to three or four of the investigators before they finally talked to brandy they didn't need your testimony not at all now the last the last and really the strongest issue that i blame that i have in this case is the specific have the task of money like this where i mean this isn't the strongest case in the world for an intentional touching and i think in my argument i in my brief i said you know if this is a federal twice intentional act that was intended to humiliate abuse or gratify the sexual desires from another person ok because it was just addressed moments ago i'm going to talk about the specific intent instruction struction is given in this case were specific intent instructions they were in accordance this court's precedent from the espinosa case arlo horn both of those were cited in my brief they were consistent with what this court has laid out as the elements of of sexual contact they saw that in order to convict you have to find the jury that is has to conclude that the defendant intended to abuse harass degrade or arouse the sexual desire of any person three times in the instructions on each of them i believe it notes that the defendant has to act with intent  was anticipating that this evidence from the forensic interviewer was going to come in or was going that the united states was going to seek to put in the evidence from this person as a prior consistent statement by this child i don't believe that there's any notice requirement under rule it'll one d on me for that purpose when examination of the child that she had made up the allegations that didn't happen but what did happen was the victim's mother she was on the stand and there was extensive cross examination of her about making the story up she's the one that took the child to the forensic interview she called the f b i she put the words in motion at least as far as prosecution in the case there was an allegation of fabrication by her that she made the whole thing up to get back at the defendant to attempt to get him in trouble and so all the united states anticipated it was going to go into this and they noticed that was given the notice that was given did not say particulars to be disclosed when you never intended to use it under a dose of well the particulars it's child's statements to the forensic interview her and i guess what i'm getting to next on that point is that at the pretrial conference i believe it was it was a number of days before the trial i can't remember the exact date right now the forensic interviewers statements what the f everyone was going to testify about were expensive lee discussed in the context of the defense trying to keep it out completely until a little bit later and around parentage twenty or twenty one of the pretrial conference transcript the defense talks about wanting to use that forensic interview to cross examine i think she was talking about the child at that point she wanted to use the statements made in that forensic interview for cross examination the defense wanted to use these very hearsay statements or at least  statements by the forensic interviewer from that interview granted the notice did not say at all seven i looked up and i tried to find authority saying that for what was required under a nato seven notice is given with regard to what's going to be used here very or discussed in detail at the pretrial conference the defense even wanted to use the child statements to the and that the government would not be able to object on hearsay grounds again my point is you but i don't know if you read like that and i had them just looking ahead and that my recollection of the conversation that starts on page twenty one and goes to page twenty four is the government representing that while we disclose an expert witness we're going to have her disclose expert witness things and then we're going to have her discuss the demeanor of the child in making the report and the consistency of that demeanor with with what i've seen in other places of my work and then of course then the defense says well we want to cross examine on some other things while until they actually cross examine and open the door i don't know how you get from want or you've got to have some incomplete testimony or some failure on the part of the test the child's testimony under seven it but most has to be given that kind of notice frequently happens in the middle of the trial i mean you've tried plenty of these cases and i presided over a bunch of the notice that i'm talking about with regard to these statements the notice that i'm talking about came in the united states response to the defendant st motions in limine e it's document eight the expert notice had come some time before that i thought you had made a reference to the transcript at page twenty one so it was look transcript i thought it was page twenty one dollars your honor but i believe in the record they were talking about there is a discussion about whether ms toggle should be able to testify and there is a dobber discussion there regarding whether she's qualified as an expert defense counsel was considering a challenge there but then the conversation also went into beyond the expertise area it was about the specific statements that the child had made and that's what i'm talking about is not only in the united states these being a possibility the defense even talked about wanting to use a number of them  because the charge of fabrication had come up during this thunderhawk cross examination so you know the state's goes into the background and what ms toggle talked about with child sex abuse victims and what  here was an eight year old she was ten years old at the time of trial she was eight years nine months old at the time when this happened to her she had by my count i believe there were nine times during her testimony where she sat and was unable to respond she did provide some information she did say made comments about the defendants i believe it was his private touching her bottle through his  made the findings and so the evidence was going to be admissible and the prosecutor proceeded is shown by the sexual nature by what happened the defendant's actions themselves that does come from the hollow horn case going back to what you just said without the talk of testimony is are sufficient evidence here to convict based upon the victim's testimony alleged i'm sorry yes your honor i believe that there is just what i was outlining a few moments ago i believe her testimony very simply and very succinctly put was that his middle touched her bottom after he had put her on his lap in the tractor and in the house his hand rubbed her middle or her private over her clothing it's right around ages to thirty seven of the trial transcript thank you thank you children i believe that you used most if not all of your time but i'll give you a minute for rebuttal of if you wish to just read one of the instructions on the specific and can't here's here's  certified brandy talk as an expert in she testified on examination that just as the st time she testified so i think the judge is confused as to that as to the witnesses in this case thank you