states versus wade first the district court in mid over defense counsel's objection a pending and unproven state court indictment as substantive evidence against mr wade that was ever under this court's precedents and an indictment is not meant to serve as an evidentiary function but not only did the district court consider the indictment it relied on it when reaching its conclusion finding that the indictment filled in the blanks in the government's case so you're on as we have a situation where a district court committed a legal error and relied on that error in reaching its judgment so i just did the district court considered it was that the defendant had offered the argument that he was in jail at the time his photographs were appearing on this website and therefore how could he have been you know offering to prostitute himself and it was in that context i thought that the district court recognized that the indictment charged this as a joint enterprise which would have suggested that he had coconspirators it might be my correct in understanding that's how the district court used the indictment your honor i'm not entirely sure that and i don't want to speculate as to you read the record as i did what do you think the district court's use was because the error it's possible the errors harmless but your honor two points on that i i think it's certainly plausible that the district court did use the indictment to sort of fill in the gaps and including gap that this was not a sole person enterprise that's true that's possible your honor but that was not otherwise corroborated by the evidence  argument that that's that's it and that's why it's our or any other misuse beyond that that you want her with the indictment with respect to the indictment would be two points your honor one is just i don't all we have before us is the record district court said that there were blanks and she used the indictment to fill in the blanks i think that it might be a little speculative for us to assume what the district court meant and then assume that that's harmless second i would  you know there there were other errors here that would lead to this not being harmless error after all it can all be homeless for example your honour's district court emitted a case detailed statement case detail report from   we've been talking about just for a moment are am i correct that what you're trying to do is to have us extend the rule that was announced in the united states versus joy which was  with respect to the use of an indictment it said sentencing to extend that rule to two that revocation hearings here yes your honor in fact i would i would say that it applies a four she are right after all in a sentencing case a district court can consider pretty much any conduct including acquitted conduct but who feel less are hearing according to this court's decision in barry evidence must be based on verified facts and accurate indictment is certainly not a verified fact nor is it necessarily accurate knowledge if the u s says that an indictment can't be considered standing alone without independent substantiation right so but what then what does that mean if there is in the pen in support for the under of the underlying facts what what does the indictment do what work does it do well your honor i think that's i think that in a sentencing context and indictment that is that bolsters other evidence that you could that supports the scene point could be used potentially to find something by by a preponderance of the evidence but here first of all the indictment isn't corroborated by anything the indictment filled in the blanks it didn't bolster other evidence it was the evidence and then second again going to this court's decision in barry that still lays out a standard where it has to be evidence must be based on verified facts and accurate knowledge that's not necessarily the same standard in a sentencing hearing where you're governed by a statutory regime that allows you to consider the allowance of the hearsay testimony of the young woman well that would be my second point your honor i get no less important by any means yes your honor i believe that's right but here there was  a report that was the predicate of one of the one of the government's two witnesses the entire basis for his testimony was a report that was replete with hearsay both from other officers who did not appear and did not testify against mr wade and from the alleged victims jane doe who in addition to being anonymous also did not appear and did not testify against mr wade now this court has said again and again  more support for an officer testifying to the collective knowledge of individuals who participate in the investigation why do you focus on the anonymous account that that was allowed in sure your honor so this court has said again and again that in the context of us are hearing evidence that evidence that does not fall within a firmly rooted exception to the rule against hearsay that's correct your honor and not i would go a little bit further than that i would say that the district court was obligated to conduct a balancing test that it did not conduct and the government concedes it did not conduct and thus your honor i think we've already passed the threshold of  the standard of review here so your honor i think on that point we should also look at balancing has to ultimately reach what conclusion that there is a there is good cause for the government not to produce the hearsay declarant good cause cited by the district court was none not ok there was no balancing test there was no cause offered there was no calculation of the defendant's interesting confrontation what it would there was good reason not to call her because it would be traumatic again you're on the i mean i'm i'm not urging you to adopt it i'm urging i want to hear why you think that's not not an argument we should accept well i  would say not be accepted because it wasn't offered below and in addition to that this is a fact append an inquiry i mean the the proposed reason for the witness not appearing is one factor but other factors like the importance of the hearsay statements the importance of the defendant's right to confront those statements and the indicia of reliability of those statements apply i was thought what i was going to hear from you was that her trauma was the result of a kidnapping not but that she was going to be traumatized by having to testify in court i mean i'm i am i correct that the woman is a minor but she was a willing prostitute not abused in the course of the prost that's absolutely correct your honor ok and and that with respect to the the charging instrument what does and what difference does it make as to whether a degree of crime was specified because  the law says prohibits committing any another federal state or local crime any crime that's true your honor although a defendant must get notice of that crime and so the b o s or report b violation which is a felony and so i believe your honor that it does matter a little bit but i would submit that frankly all of these errors still persist whether you consider the e o s our report whether you some  consider the state court indictment charge regardless of the degree the district court still will relied on an indictment it's still admitted a case detail report that was replete with hearsay it still committed these errors you know regardless of may please the court my name is jonathan al gore and i represent the united states i'm assisting united states attorney in the eastern district new york this court's judgment should be affirmed here and i want to start with the state court indictment that was added and kind of give like a temporal perspective where that came in with in the actual hearing the indictment was admitted into evidence after detective mills his testimony and to pick up where judge radke was talking about it was after cross examination detect mills where there was questions about when wade was incarcerated how could these back page ads have been posted and that happened also within officer hill's testimony and so this indictment and it's and so it was a response is that an indictment can't do that because it's not got a sufficient reliability it's only a probable cause findings what's your response to that but again your hon it's we have to also take it into the context of the whole hearing itself and i know chief judge cashman just brought this up it had that juba talked about how if it's held standing alone without any other substantiation in the record but here we have a volume and it's amount of testimony from officer hill about the back page ads that you know was not even addressed really in this in the initial argument here is the district court and use the indictment because to fill in the blanks right solely on to fill in the blanks of what the defense was arguing below that there were that how could he have possibly have posted these back page ads while he was incarcerated but filling in the blanks saying that essentially saying he they were coconspirators involved in this based on the indictment yes and there was nothing more than that right well and not been nothing in the indictment had been yet has been substantiated we just the indictment yes or no but there is also evidence from officer hill's testimony talking about the back page ads where there are other individuals that are obviously involved in prostitution but mr wade was when he was posting to those back page ads that you see throughout officer hill's testimony and so i want to get now to move to the hearsay arguments while it's true that there was no explicit good cause finding the basis in the record it's clear that first the objections below were only to double hearsay statements there  only two objections that were by the n y p d officers who had actually interviewed jane doe and provided that test them that and provided that that interview  detect the mills and so point turning to a one twenty two the objection was for django testimony coming in it comes in anonymously not identified at the time she made the statements as i understand it she was not sworn so they don't have the reliability that we've sometimes located in that fact she was not cooperating with federal authorities so we don't have that as a possible  reliability factor and as i understand it the trauma that you cite to us in your brief is the result of kidnapping there's no demonstration in the record that i could see that she would have been traumatized by having to appear in court this is not a case for instance where a child who was physically abused by the defendant is being asked to testify in court confronting him so in these circumstances how could rule thirty how could the rule thirty two balance be struck in favor of allowing this kind of anonymous hearsay testimony well your honor i would disagree that the record doesn't show that jane doe was traumatized we had that in detective mills and i know she was traumatized by the kidnapping but your if as i understood your brief you were arguing that a justification for her not having to come to court and testify is that that would have been a traumatiz based on detective mills is testimony and there is reliability i think also too jane doe's testimony through detective mills that he goes hearsay statements because she though that we're not confronting here the trauma of a child who was physically abused by the defendant having to testify in those cases the court has found that to be a good reason but i don't understand where we've ever had the circumstances such as this a ground for not allow for allowing hearsay testimony allowing it anonymously well i think you have that in jones though honor i think there you have and that's an opinion that she does kasman authored where you have a fourteen year old girl who was traumatized by looking at a man who was masturbating across the street and so the there it's even less of a connection to that individual who they did not call in to testify versus here's someone who has been woman was a prostitute before she ever met the defendant correct this child if you want to call or a minor i assume that yes or all right it's so that's not quite the same as the situation in i mean i'm trying to understand why it would have been so traumatic for this person to testify or even to be identified for the defendant not on the public record while i do believe she was next me is extraordinary in terms of the right to confront and have some ability to question that  don't identify the person you don't have them sworn and they don't testify in court i would disagree with your honor though that this is not in i actually think that the jones case is actually a little a more of a distinction in and lesser of military than here and that someone who has been promoted and jones is a much different situation this is a situation here where you have somebody who was a prostitute befor this case even began right jones didn't involve anything like that but it's true i mean there is a distinction in that she is a prostitute or was a prostitute yes your honor but also not only that traumatized and in addition that there i think there is clear though that this testimony that we're focused on here from detective mills taking that aside that the government proved through officer hill's testimony that the defendant had that there was a clear violation here and had proved to be prodded prominence of the evidence charge a if you look through officer hill's testimony the multiple amounts of back page ads you see you see through mr wade himself promoting himself as a prostitute multiple pages there and then in addition you have multiple back page ads that are for other women that were put in through specifically one that the curd just the month prior to this hearing and that ration though was that he was perpetrating the prosecution business right not just that he was offering him self from oettinger advancing prostitute right yes around and the test the evidence apart from that of the hearsay minor that proved that is what is officer hill's testimony through the back page ads that show mr wade not only offering him self for himself as well as so you see one of the examples is that a seventy three it's called flavorful tasty s and there officer held testified that wade's phone email as well as his ip address that he had used to provide for his vo us are up next to me his probation monthly report the ip address matched with that and you could find and there was multiple back page ads that showed him his connection to these back pages that were the problem arises though about whether he was in jail and yet there were still these connections and that that was where the question of conspiracy arose but there's only one or two instances where they're challenged where they were challenging that and so they were trying to take a small window of three to four days down below and argue that that that it was someone always someone else it potentially weighed sun that was part of the cross examination and so they took a two or three day window there where one bat one or two back page ads were posted and said that that was that was part of simming weeks after that or acumen how to how can we be confident that the defendant was not prejudiced here i mean it does seem to have been a significant fact that he was prostituting a minor not just engaging in general prostitution and that's that comes through with the minors hearsay testimony and my right it comes through the minors hearsay testimony but there there is also you'll find where the district court judge discusses discusses the eighteen versus nineteen year old distinction and which is after officer hill's testimony and that gets to and that's why i say again i think standing alone you can the charge it was proven through officer hill's test yes what i'm asking you is why isn't the remainder propre it for the district court to do the rule thirty two balancing and if it decides to admit the testimony and makes and makes its record either the party so be satisfied with there can be a challenge or if the district court says you know i don't think  thirty two would satisfy it but i find he did violate is you know probation or supervision for whatever reason or i don't find it now but one way or the other we would know why should we do his will one your honor i think i don't want to repeat you know obviously what i've said about officer hell and how i believe that stand alone but i do think also what you have where you have here is i do find that there is a record here good faith basis and there was no objection to the to the jane doe's testimony there's and there's none it's only a into the double hearsay and so whether there was air or not that was it was harmless clearly because there was no objection below there was no it was plain error analysis yes why i took it and so that's and that's and so that's why i would say that it was it not you know is it eyeing that it was clearly established that the court prejudice and i don't think there is your honor based on officer hill's testimony what you're going to get what was the sentence three years your honor yeah it's not an insignificant period of time and we have found the possibility that a review and so i think we make that argument here and so whether or whether and so i think within jewish you have a situation where because during the sentencing it was  it was established and that was the sole basis for that upward departure but again here this is the state court in time and i think when you look at i mean ju ju it jus a bit what i'm getting to is the idea that us says that standing alone the indictment is not sufficient there has to be something else yes your honor i think we would agree i would agree with that ok allow defense counsel to see the computer checks that had criminal history we have one other area where defense counsel was unable to effectively cross examine this non appearing   clarett but on the computer checks issue since it doesn't i mean if it doesn't matter what the what the ages it is if there is a commission of any crime  then why would the computer checks have revealed well potentially your honor and i'm speculating because the evidence is soley within the possession of the government but potentially jane doe had a conviction for perjury or  something else that would cast even more doubt upon her testimony if that's something this court were to consider and then second your honor i would just note that it's clear that the district court did in fact not view ms hill's testimony standing alone sufficient that's precisely why the district court found that there were blanks in the government's case and that the indictment fill in those blanks you're looking for remember yes or your client is incarcerated