teen twelve nineteen united states of america versus patrick roy i want to say arguments not to exceed fifteen minutes per side ms freeman for the appellant your honor as may please the court my name is claire freeman and i represent mr patrick want to see again this matter i would like to reserve four minutes for rebuttal if i may and without kind of delving into hyperbole or becoming modeling this morning i want to start out by returning to justice scalia's words thirty years ago in iowa that we cannot gainsay the state or any of us cannot gainsay the value of face to face confrontation in the value of respecting our bedrock constitutional guarantees while they may upset this this it were spec for these guarantees may upset the rape victim or the abuse child they may also undo that malevolent adult who is coaching a child or the person is making up a story against the accused and while i understand the tension that we feel and i feel empathy for the difficulty in these situations when the accusations are as serious as they were in this matter we had one count of aggravated sexual abuse of which mr want to see go was acquitted and one count of abuse sexual conduct tacked of which he was convicted by a jury again we have that tension of the rights of the accused verses the these children that come forward and in this case we have an avalanche of error not just a few but i mean on the confrontation point i mean i certainly understand your argument and i understand your argument that crawford seems to be  analyzing these issues and categorically different way than craig did yet the supreme court has not overruled craig and i mean we just aren't we just without authority to to hold that crowd doesn't you know the craig's invalid well your honor i think that things have happened even since this court's cox decision in the in the years intervening i think we've seen a further  but just not a roge in itself i think implies that the courts don't need to blindly follow craig or if it can impose sort of a lower standard or just fall back on it i think that it if anything it simply heightens the scrutiny even  we have a higher standard of scrutiny now for any thirty five zero nine are classed here we have three issues under thirty five zero nine the first being challenging the close circuit television as a whole certainly it suggestive of guilt and i think undermines our adversarial system then we have the case specific findings here where we have equivocal evidence at best of the fear or trauma that h d w would have suffered and then we have the issue of expertise and a social worker a master's level social worker stepping in or thirty five d absolutely speaks of a psychiatric or psychological opinion so not only dr horrible but an m d opinion for the psychiatric aspect so i think given the eros of craig really absolutely have to up the ante i understand but i mean just to to be precise about it i mean craig correct me if you think otherwise craig seems to govern the six of them an  ue the statutory issues another matter that's what you're just speaking to but i mean as to the confrontation issue the sixth amendment issue i just i mean as a lower court judge i just don't see how we can get by correct i think it's sticky but again thirty five zero nine obviously and the court doesn't need me to tell you this but it flows directly from craig craig flows directly from roberts in crawford eviscerated pardon me but the closer i get to lodge real justice the logic but you know when the court just hasn't done it but again i think that that is still there is that undermining so i would at least ask for not to misuse the term but a stricter scrutiny here of the findings of the district court let me ask you this the magistrate judge a that was appropriate to use the closed circuit television for the six year while he was eight years old tommy testified there was no objection to the magistrate's report recommendation was there in this case no and i understand that why therefore as a why is this whole argument  wait i don't believe it is waved in first we've got smith bitch this court did say that despite a lack of objection to a report recommendation they would consider the issue in that case which was a civil case in full and they did but we also have i'd say given the tension between craig and crawford a potential complete miscarriage of justice here especially under the expertise issue where the statute is pretty clear that we need that doctoral degree and this court's precedent under cox  mean i think first and foremost in that one is her blanket assertion that children under ten should not be testifying i think that even though the magistrate judge said that he was finding a case specific finding on the matter that that blanket assertion which she made repeatedly undermines her her case specific consideration of the matter as well as her one time meeting with h d w as opposed to say in cox where we had a therapist meeting continually with the two minors training to be a doctor or to obtain a doctoral degree and putting in a countless hours with the children each day w we had one meeting and we had frankly a biased social worker who just feels young children  so those would be the substantive areas that i would fall back on most heavily as along with the training issue i also think that we hit on the matter of she very much points out the mood swings the end caprices the blank staring off into space as the symptoms of this alleged abuse but we have the trauma that h d w suffered beforehand of seeing his mother die in front of him  having an alcoholic father he doesn't want to live with and and a concession by the social worker that these alleged symptoms could have and did arise prior to any allegations of abuse so her falling under those symptoms as a potential demonstration of the trauma he would suffer i think is very much undermined here from from the c c t v issue i would also just point out on the waiver issue that there was no acquiescence it was fully briefed both in terms of the substance of the practice as a whole in terms of the expertise of the social worker and in terms of her finding before the magistrate judge it was fully fully and compellingly presented by my colleague at the defender's office and we don't have an issue as we did in compel where there is an acquiescence at all so while there was no objection to the report recommendation it was an objection lodged later counsel under the c g a panel continued to express displeasure with the with the c c t v set up and so i think from sort of a judicial economy standpoint which is one of the things that we saw in smith as a consideration we don't lose any economy here by continuing to consider the matter moving on from the c c t v issue to the hearsay issues i think that again we go back to  very clear that this alleged medical diagnosis here is say of the a dentist is alleged abuser is absolutely not for a medical diagnostic purpose which compel says it has to be for diagnostic purposes but there are not we follow exactly the circuits ideas and turning their about sort of the self interest of giving over them or that it was for medical treatment that the child was brought to the hospital for medical treatment and was talked to in the context i guess i find it hard to buy into that you're honored simply because we have a police officer accompanying this child and his family the visit is motivated by the authorities telling them to go to the hospital and we have a doctor who doesn't conduct any physical exam of the child and i understand the doctor's saying ok well it's been seventy two hours we're probably not going to find evidence i find that very difficult to believe given other cases where the child was there for medical treatment i would contest that your honor i just think that the presence of that police officer in the motivating factor being that the authorities told the family to go in u again i think in that case their actions spoke louder than words i mean i think it's very easy after the fact for these medical professionals to want to defend their actions and i think there is some i'll use the word bias here  against who wants to let an alleged sex abuser go these medical professionals wanted to defend these alleged admissions they received and yet again dr judy did no physical exam and i would say from evidence in other cases even seventy two hours of passage i think that physical evidence could have been collected depending on things like you know fissures and things so i find it very i'm somewhat incredulous that these medical professionals were asking these questions purely for diagnostic purposes when they didn't diagnose a standard as what we have to found abuse of discretion before for the admission of the hearsay evidence yes yes your honor why do you think i mean what's your sense of why there wasn't an don't i understand a judge judy sorry dr judy said about not wanting to cause the child more trauma but to me that feels like again sort of ignoring that tension of that role that the doctor played here i understand wanting to be gentle with a young child but i think that dr abdicated his role as a medical professional honestly and whatever his motivation for that to help h d w w or so forth it just shows an court my name is austin hanks and i represent the government perhaps a good place to begin is where we left off which is this eight zero three four exception through which statements to nurse smith and dr judy were admitted those statements were appropriately admitted by the district court in this case and i think that the fact that there wasn't further intravenous examination of h d w actually shows that the doctor was concerned for medical treatment if the physician had been on some sort of quest for evidence if he was just an instrument of the police trying to uncover any medical evidence of a crime perhaps he would have turned over every leaf so to speak and trying to find evidence of his counsel's pointed out fissures or something like that but in this case it was expressly because he was concerned with preserving the well being of the child and finding out what sort of medical care that the child needed that he decided not to continue with any intravenous examination of h d w in this case we know sexually transmitted infection but in this case after talking with you and telling him you know i really would like to check and see if you have any sort of anal injuries repeatedly told the physician no that would i don't want you to do that and i think the physician correctly determined that it would reach traumatize the child i think the physician also correctly determined that given h e w i told him that while he experienced pain through the initial invasion there wasn't any further evidence of bleeding and he wasn't experiencing any pain at the moment and that was a sufficient basis for the doctor to conclude well there's not really an urgent or imminent medical reason to go invading this boy's body especially given that appears he may be suffering some sort of emotional or psychological trauma based on what happened to him so again what this indicates in this case is that the doctor was performing a medical examination and was talking with h w for medical purposes and thus the district court appropriately admitted those statements and allowed the jury in rendering its verdict in this case as the court has acknowledged this court is bound by precedent in the case of united states versus cox this court had occasion to expressly address any apparent tension between crawford and crick after wrestling with that tension the court decided unanimously that craig was still good law and that it governed this issue of c c t v testimony of child complaining witnesses and sexual assault cases and  that ruling binds the court in this case here as well despite the concerns that were carefully outlined by judge sutton and his concurrence in cox craig is a good law and in this case the district court made appropriate findings that allowed the c c t v procedure to be used although the social worker who testified did make a statement that she believed it was always from anna for children under age ten to testify she also gave a lot of detailed and specific information about this specific child to the court she explained h u w had disclosed to her that he would be scared all the way around all the way around the world scared and scared up to space if he had to testify in front of his father and then furthermore the district the judge actually interviewed himself and confirmed that in fact the child would experience in it fear of his father if he were to testify now importantly thirty five or nine doesn't require expertise for a finding of fear choir's expertise for a finding of trauma and in this case the judge relied found that there was both evidence that the child could not testify because of fear and that he would experience trauma in this case the expert though a social worker was significantly qualified the rule does not require a specific psychological degree in order to qualify as an expert under thirty five or nine she had dealt with hundreds of other cases of alleged sexual assault of minors and she literally written a book about the types of trauma that children often  experience after this type of abuse she had furthermore previously testified in other cases as an expert on this issue and so she was an appropriate person to evaluate in this case whether if she did he would experience drama as a result  testifying or be unable to testify as a result of fear you know they've objected that he was asked a question about you know and were you aware were you not before you even went to the defendant's alice that he had a significant drinking problem and as i answer was  he knew about a prior incident where want to saigon had passed out and gays and a homosexual act right now the disregard found that was responsive to the question i i don't see how that's responsive to the question he was asking about were you aware the defendant had a significant drinking problem and he blurts out well he passed out and gays and homosexuals now why isn't that the grounds for a mistrial or perhaps looking at the question isolat nonresponsive you know but the theme in fact the central theme of defense counsel is crossed evasion fortunato was the extent of mr want to see it as a drinking problem viewed in that context i think the district court correctly determined follow i mean can you spell that i don't get it so i think because they had been so that's is emphasizing his alcohol yes your honor all right so then defense counsel you know to some extent one might argue it's invited but defense counsel asks this question yes so how in context is at risk i mean is a response or whatever they're talking about a specific interview your honor and been through the understand the circumstances instance and so i think the f b i agent reasonably interpreted it after asking about all this other stuff if you still asking me this question it must be these he's wanting me to say this other thing that also came up in this interview and so responded hey  aware that he had a thing in there was a circumstance that involved a homosexual act but as the court has pointed out i think this is truly invited error in this case after that one brief comment defense counsel moved on to another topic but then on again and then it was only after that that there was a sidebar where defense counsel mentioned that he would he would like a mistrial it the defense counsel did not avail itself of the remedy would which the court offered which was hey we can have a council's current program that when they just said let's just leave it alone i mean you know they were worried about kind of just focusing you know reminding your order i understand your honor but the defense counsel also seemed to want to have as his cake and eat it too on the one hand he didn't want to remind the jury of it and so he declined this striking option but on the other hand he seemed to want to remind the jury of it because in approaching the witness on recross he explicitly open the door to this this issue amplifying in the jury's mind your honour's i think a good place for me to start in rebuttal is on the homosexual remark and i think we all appreciate how difficult it is to make goals spur of the moment on your feet decisions at trial and my colleague in the lower court i think did his best to clean up the mess that the special agent had created by injecting i think intentionally of this extremely inflammatory remark because this isn't in the context of drinking this is in the context of a case involving allegations of homosexual sexual abuse of a child and it was completely not responsive to questions related to drinking it was responsive of nothing that had been posed i don't even well i mean it just doesn't make any sense on its own terms but how does one pass out and do something absolutely in on that too i think just very quickly say going into the world twenty nine issue and the insufficiency of the evidence i would say that there was no expert testimony on the ability to blackout and still form and ten even if you can have actions so i would just hit on that very quickly but i'd like to see that report but so that homosexual remark i would just fall back on lawrence and this court's discussion about montenegro about people's adult consensual sexual practices marriage having children that's not fair game and certainly not fair game to insert into an adversarial proceeding where exactly that sort of issue of homo sexual contact is at issue what about the though i mean again i think it was trying to clean up the spilled milk that the government had injected into it and then the decision not to ask to strike because it would have been futile it's not part of the record i have talked to my colleague about it and again i can completely understand the tension that trial counsel faces in trying to remedy what really amounted to a due process violation as we presented in the briefs i mean we had a due process right here to a fair trial and we had a special agent jumping up to the word that with personal sexual contact between adults to hit on just a few other matters in rolling into it from the homosexuality the cumulative error here i think that we can't ignore the fact that we have the guilt suggestive c c t v testimony of the alleged victim we have this hearsay evidence coming in both from the medical professionals and from these two women who very much had bias against my client and had demonstrated including in custodial proceedings with the grandmother and my client and very much an axe to grind to team custody of this child she already obtained the grand jury you know i mean the jury did get to make that judgment about those biases and i understand but i do think that undermines any sort of reliability analysis in as a techie from the seventh circuit that i cite in their reply brief goes in to rebut again the cumulative error here and we've got someone who's allegedly this sexual monster out on the street for another nine months before the government indicts him again i just find some of that a little bit difficult to countenance i want to very quickly on the sentencing issues most specifically can't as cited in the world twenty eight j letter of my colleague for the government yesterday can never addressed the issue of indigency under section three thousand six a at all times in the lower court mr want to see go was represented by appointed counsel and i think that changes the indigency equation very significantly here because we have indigence binding and we have binding statutory law relating to that case which can't do not address and as to the acquitted conduct we have the d n a transference studies the unreliability of child testimony studies and  idea that everybody has come out alive the a b a the states against use of acquitted conduct it's simply the u s sentencing commission that's lagging the star scar across our constitutional system of justice