microphone for yes sir yes sir well thank you thank you for inviting me i'd like to begin my remarks by addressing the second argument raised in the brief which deals with whether or not the evidence was legally sufficient to support the jury's verdict of guilty of count three which charged the defendant with a specific sexual  that is penetrating h c by means of hand finger or object that the government's theory was that the defendant i offend and sexually abused h c while she was unconscious and they charged two separate theories here in count two they charge the specific sexual act that he had a trader her by  means of penis in cult three they charged that and it traded her by the sexual act of insertion of his hand finger or object into her body the verdict was not guilty on count two and guilty on count three there was no direct evidence h c the government's witness had no memory of any sexual assault or seeing the defendant so it was entirely circumstantial both the identity of the perpetrator and whether this crime occurred the evidence was uncontested the evidence was unanimous by the government's witness expert witnesses that there was simply no way to tell whether or not the injury that is a two centimeter laceration on agencies a badge and all was caused by hand finger on jack to whether it was caused by a penis it was caused by a penis that was not caused by hand finger or object and vice versa the medical doctors the experts called by the government testified unanimously there is simply no way to tell so even if the government were even if you found that the jury could have reasonably concluded from the evidence that she was sexually penetrated in some way and that the defendant did it they failed to introduce any evidence circumstantial or direct that the injury must have been caused by hand finger or object and i'll read from the testimony of dr freeh let me let me just sense yes here from their side for a second the distinction is but the doctors said differently dr freeh who is an expert in treating minors and children including sexual injuries testified and it's in my brief question the injury to the girl's vegetal wall was either caused can you tell whether that injury was caused by a penis a finger a hand or a non human object her answer was no i then went through each of the possible alternatives is it fair to say it could have been caused by a penis or something else yes yes and on through all the other possibilities but and then i asked her but as far as which one of those things cause that there's no way of telling is there she answered no what was inserted and cause that tissue damage i can't tell you question it would be nothing more than a guess is that fair to say answer correct can can other object include you know  specifically i specifically asked her that when i say i don't i mean as a matter of law no i didn't know it's it's has to be a difference because an object in the sense  has to mean a non human object because otherwise there would have been no reason to create a separate car crime by penetration by peons so this is this a separate penis about how about the fact that there was an absence of scene wouldn't that be a let me finish the question going to be a reasonable basis for the jury to conclude that perhaps there was not penis involved but that it had to be some other object that would have caused a laceration that's the only fact that the government has pointed to to support their argument that the evidence was sufficient and i think that fact is immaterial it certainly doesn't amount to prove beyond a reasonable doubt because that's one of the factors that the doctors must have considered in ruling that the or in opining that the all the circumstantial facts did not support either conclusion or frankly supported the possibility of either obviously a perpetrator could penetrate the body of a victim with this penis and no sexual abuse of a minor they would have had to prove anything other than penetration they would not have had to prove the specific sexual act but they made that decision the government characterizes our argument on this point as a catch twenty two if in fact that's applicable it's a catch twenty two that the government created by the charging decision because if she if he is guilty of one he can't be guilty of the other and of both are reasonably possible in the evidence is at the court erred in failing to direct a verdict in the court did err because if in a circumstantial case there are two equally reasonable inferences that can be drawn from the circumstantial facts one consistent with guilt and one consistent with them with non guilt then the court has to direct a verdict of acquittal under those circumstances it flows from the first issue you know that the court erred in refusing to give the jury the requested instruction on theories of  count one the defendant denies that he had sexual experience or whatever the word i used with this particular person and that he is falsely accused but that's not there i mean that's a that that's  when you point not guilty and say you didn't do it you can argue that to the jury without without having court structure the defendant has a right to a theory of defense that deals with the specifics of his defense and that is why involves two different victims they were both thirteen at the time of the sexual assault by the defendant ac was actually the first victim but said nothing when it happened and so they were the f b i was investigating the when they discovered a c you happen to be a witness in the agency case so that's sort of the time from i want to go to your questions immediately the argument that the government charge this  wrong the federal sexual assault statutes are fairly complicated and and takes a while they can to get into him but if you sexually assault somebody with your hand your finger or an object you have to have the specific intent to do this sexual abuse so there's an element of specific intent that goes with the hand a finger or an object if you do it with your you that you can't convict me because the government can't prove i used my penis versus my finger or we get convicted him of the pinas you can't you can't prove it wasn't my finger that isn't how you that is how you look at it you look at the you look at the evidence in the elements were given correctly in regard to count three is there evidence to support the elements yes expert medical opinion said that it could be an object in their medical opinion it could be an object it could be be a finger  cut was very sharp a finger likely would cause a cut like that versus a penis that doesn't have any anything sharp on it and if you think about the circumstances we argue this happened in a car of a car she's bleeding on the passenger seat think about it what are you doing it's much more reasonable for a jury to do find that he's reaching involved in a sexual assault where there with his hand she starts believing because it easy induced to cut and then he stops what he does we believe if he pushes her out of the car and leaves and enter shoe falls out because the shoe is  caused by the hand or figure do you have to prove that would sure be at beyond a reasonable doubt and that's an element that the jury found here's your and what you're saying is we proved not pleasured testimony experts because they don't know but because you're one of them semen there well you do have to you do have to include the testimony the experts the testimony the experts was that this cut this  if that's her position with the intent to abuse humiliate harass or or or satisfy his sexual desire and he went to this party where these three underage girls are he drank with them he her out in the country to an area where he had taken other other young girls and that would be a c and if we we go to that we go to the issue which is is really important  were you concerned when he left with her and she says well when i was thirteen he took me out in the country but by the town a degree and sexually abused me and he sexually abused me a number of times in different places and dupree but that was to the trailer court where the kelly speaker trailer court now when she talked the f b i she didn't tell in her statement why she went there and defense counsel really didn't know it because in the prior statement  wasn't identified why and the defense counsel asked or because again he wants to go to kelly speaker's trailer court every witness he wants to be a kelly speakers trailer court because kelly speaker sixteen years in the past have been second victim of sexual abuse of a minor and he says you took them to kelly speaker to took the f b i agent kelly speaker's trailer didn't you why did you do that and she says that's where he sexually abused me in the past this is a place he would be chilly take me to have sex and and when they go there and then he followed up with a question is should go there because that's where h c was found that night well this is two days after the event occurred with agency and had no idea that her little friend was found at the kelly trailer court she went to the kelly trailer court because that's where the defendant took her when they had sex and lo and behold when they go to that exact place there's where hillary where i'm sorry age sees shoe is found by the f so you know that that that shows both crimes occur that shows the intent in regard to the intent to have sex it shows both card if she is lying of h c is making this  she has no normal or routine place where the defendant takes or but she does and she goes there and that's exactly where the missing shoe is found two days after the events occurred  in that we have to show that he intended to have a sexual desire to engage in sex for sexual desire or engage in a sexual assault and we go to the exact same place where he's taken a  where the trout where the case got a lot better after after the defendant testified his credibility just crumbled when he was testifying on the stand prior to trial he said he he collets in the driveway and that h c a had never been in his car those were the things that he had said before trial actually admitted all of the above were true that that he had known a see through his he now knew that the d n a had come back and a cheese blood was on his front seat of his car so he told tells us during this story that she was there for just a second and she got a nosebleed seats shut the door bleeding she had no blood no blood whatsoever if you would had a nose bleed and bleed on on the front of your shirt he then told this incredible story that ha yes  he she was in his car for all half a minute and he drives away but he sees her walk up the up the roll as he's going to happen block away to his cousin's house and then he sees another cousin and that cousin asked him to borrow his car and then he says i'm going to that cousin takes age see and leaves with his car it's a cold cold night he says he stands there same issue he brought a motion for a new trial based on this exact same issue in the district court who had sat through the trial and reviewed all the evidence concluded know that there was sufficient evidence and kind of again yet very simplistic i did not do it i did not commit this crime while the jury was told about the elements of the crime that there's no argument that they weren't told about that and  would allow him to argue i didn't do it unless or any other question is thank you for your time in the government's oral argument they basically make the same kind of argument they made in their brief which is the evidence showed the defendant committed some sexual crime against h c assuming for the sake of argument that that's correct that's not the question the question is whether he committed this crime the crime that he got convicted and given the unanimous testimony of the doctors no juror no reasonable jury could have concluded that the evidence proved beyond a reasonable doubt that the manner or means of the offense was committed by hand finger or object as opposed to it is true that  a motion was made to the district court to bake to set aside the first one major course at the end of the government's case the government the court said that he was going to take it under advisement after the prove that particular means of the offense if you read the course assertion only does a state the conclusion aren't you sort of arguing that the government had to prove that it was caused by a penis as opposed to whether there sufficient evidence from which a reasonable jury could conclude that it was caused by a hand finger other object i think they're the same i think that in order to prove that it was caused by the means charge hand finger or object they would have to prove that was not cause but i think that the two are virtually mutually exclusive hence the  charging there was really only one circumstantial fact that they relied on to prove that this crime was committed and that was the last aeration itself in view of the fact that there's no history from the patien no direct evidence the only evidence left on that issue would have been from the doctors and they were unanimous i presented a defense doctor who testified that it was a matter of speculation as to whether the injury was caused by an accident such as a falling accident while the young lady was intoxicated or or sexual trauma he said our testimony from our doctor was it could be either but based on that evidence couldn't reasonable jury disagree with the doctor that it could have been caused by a penis but agree that it could have been caused by a hand finger or other object i don't think so not given not given the untruth uncontested fact of the impossibility of making that determination i don't think a reasonable jury could of reached a verdict that is contrary to the uncontested medical evidence of the government at least on count three words twenty years and i could have been wife and i i know one or more of your experience in the state courts what kind of  sexual assault oath would bring in state court oh no i doubt that the statutory rape charge brought him fifteen years i do practice a lot of in federal court in indian country and i find that the se in federal court are and sex cases and drug cases especially are probably two or three times what they might be if that same offense had been committed twenty miles to the north who are facts cases  sex cases and drug cases of federal punishments are far more severe than if you were just asked my educated guess on count one in any case had he been convicted in a state court he probably would've gotten three four