good morning good morning your honor please the court are you back yes i am back your honor again joe appear to be the same individual i am still renee manus of the federal public defender's office here in portland oregon today i am appearing on behalf of mr for two years the oregon department of health and human services child services division sent mr daughters to therapy for the express purpose of having them acknowledge that they were the victims of sexual abuse and to identify their assailant they also insisted on labeling them as victims of sexual abuse in all of their records before the child dependency court even though the children denied being victims sexual abuse the children's attorney in the dependency proceedings wanted that designation removed and the court appointed special advocate in the dependency proceedings wanted that designation removed and the children's court the judge overhearing the children's dependency proceedings quite literally cannister gaited d h s personnel in a way which is i have never seen in my almost thirty years of law for labeling these children as victims of sexual abuse when they claim no such sexual abuse had occurred and accusing mr hosty of sexually abusing his children abused it would have been very interesting to have the jury hear how d h had been castigated by that judge for making these allegations and how  or not these children are really were calling being sexually abused was was the judge qualified as an expert the judge was qualified to review the evidence presented before while but not the question i asked he's he's not a  what he was talking about was whether it was he a perceptive witness no he wasn't a first so it's offering you're basically offering his opinion on the evidence that came before him i'm not sure how about it's evidence for the proceeding that we're looking at today the judge's statements were not offered for the truth of the matter of whether or not the children were abused they were then that's the impact that you're hoping to have on the jury we are trying to explain the story of how these children came to make these allegations and why d h s s was so absolutely insistent on continuing to send these children to therapy to have them disclose that they were the victims of sexual abuse when out of the victim's testified at the jury trial which is here on direct appeal right we're here on direct appeals but we have these ongoing c p s or whatever whatever dependency perceives that know on where he they children are taken away and then they're given back to him he turns them over he turns them back when he's homeless and all of that but that being said this is a direct criminal appeal so in the direct criminal appeal my understanding is that the jury convicted him of one of the daughters allegations did not convict him of was that the younger daughter i believe yes your honor the and i'm sorry i forgot i'm going to attempt to reserve two minutes for rebuttal all right we'll see how the younger daughters allegations were subjected to a rule twenty nine directed verdict at the close of the prosecution's case so those are not before us he did ok so he's convicted on the one and i think that there is there was some medical evidence that was introduced as to that daughter right actually the medical evidence is critical because it establishes she was not abused what how  resorted both ways there no absolutely not the young girl was taken the day after she's removed from her father she's taken your kind of trajectory and off on the point is we're on direct appeal in this case and you wanted to enter you wanted to enter into evidence the judge's conclusion in a dependency hearing right but just hearsay under eight o three while hearsay it is still admissible because it establishes the reality of the situation with the h s and why they are so motivated to have these girls whether witnesses examined as to that they didn't report over a period of time and then they finally that the jury knew that they didn't initially report right yes the jury knows that they were being counseled during a period of time and it was that the jury knows the circumstances of how long it took them to report right yes your honor they they they did know that fact but the motivations of the state actors although i would like briefly to return to the medical evidence because i think it's critical that the court understands that originally d h has contended that the older girl was so badly abused she would need surgical repair she was taken to a gynecological pediatric expert who said you are crazy there is nothing wrong with this young woman she reports she was not the victim of sexual abuse and is a reliable witness she has a completely normal development there is absolutely no evidence of sexual abuse and yet that fact never makes it into the d h s proceedings they continue to label her as a victim of sexual abuse with physical evidence they intentionally ignore the report report of the expert medical doctor saying that this is not true and they persist for two years to try and get a child to disclose that she has been the victim of sexual abuse perpetrated by her father we think that in order for mr to confront these allegations against him it's absolutely critical for the jury to understand the entire roam of what happens with d h s and why why would they persist in sending these girls who made the decision to process this case the us department of justice  understand that the level of animists between your client and v h s is very high i don't understand how that's relevant to this proceeding why why the court had to get into that why the court should delve into everything that might have happened in state court because it explains why these girls were continuously sent for two years or you had the opportunity and plainly did examine them as to how long it took and so forth the what's going on behind the curtain on the state side strikes me is that apparently struck the district judge as a real tension the doesn't speak to what the jury supposed to be considering the jury supposed to be considering the truth of the disclosure of these girls eat ass at this point in time allegation of sexual abuse and how she came to make that allegation is absolutely critical to the valuation of that  yes dr levy was able to testify to that interesting only enough both e s and her older brother testified that they still believe there was physical evidence of sexual abuse because they'd been told that by the state of oregon for of that these allegations were not immediately reported and so what opportunities were presented in the criminal trial to establish why they weren't reported and media but from your perspective and the defen perspective sure your honor so i think what was presented at the criminal trial was actually significantly more information than the judge and like the state custody judge had before him when he seemingly mis understood what the medical evidence showed so the jury in this case heard the testimony of all three children they heard the testimony of the one victim for whom they convicted they heard the testimony of both the sexual assault nurse examiner who said that she found injuries agile injuries on that victim they also heard the testimony of dr the doctor who over three months later testified and what he said was that his examination which took place three months later i didn't foreclose the possibility that the sane examination had revealed injuries it just foreclose the possibility that there had been penetrative injuries sustained in the preceding two weeks so what was missed in the state dependancy hearings was that there was a three month gap between the initial examination and dr lee's examination and so dr lee you know explain to the jury why that would make sense that you may not find injuries after three months it's also worth noting that the testimony of the victim in this case was not that she was penetrated by mr chavasse there was there was allegations that he sexually abused her culminating i think most gratuitously and performing oral sex on her but it's not clear that he would have injured her in such a way that would have remained three months after her initial nurse examination the jury also heard directly from two officials associated with the h s and he from the girl's therapist and all of these people including the victim herself were subject to cross examination on the notion that she was talked into or coerced into making these allegations by d h s s so i think the district court made the correct ruling  recognizing that the jury could and just clicked alluded to did in fact reach a different conclusion based on the facts than the dependency court judge reached i think in fairness to the dependency court judge he had an extremely limited record he didn't have the testimony of the doctors in front of him and it seems to me that he just made a mistake that being said presenting his mistake or his conclusion to the jury would have been highly prejudicial the united states it would have  subverted the fact finding function of the jury and as this court has recognized in sign and subsequent cases you know putting judicial fact findings in front of a jury raises a real concern that they're going to give those findings undue deference here the wanted that the jury didn't acquit but judge hernandez following the conclusion of the government's case twelve the rule twenty nine i guess rolled down and i believe that was not i think the record fairly clear that it's not necessarily that he didn't believe that there was sexual abuse that daughter but as the case was charged under twenty four twenty three and one of the elements was that at the time the mr chavasse transported these two girls into the state of oregon mr chavasse had the motivating controlling or significant purpose of rule yes your honor so what the court found the case factually i think is is somewhat unique what the evidence showed was that over the course of an approximately eleven month chavasse loaded his two daughters into a truck into two cars but ultimately a truck and drove them from place to place around the country during the course of that eleven months mr chavasse undertook significant efforts to isolate those girls and sure they didn't have contact with adults to whom they could disclose abuse didn't have contact with adults with whom they could build trust relationships and that he took significant efforts to brainwash those children to not be trusting adults to not be willing to go to officials to be scared of foster care and so as part and parcel of mr chavasse as efforts to isolate and brainwash those children he enlisted them in in the small crimes the some of those specific crimes including stealing shops from a vacation house that the victim testified mr geraci compelled the children to drink and then proceeded to attempt to abuse her so what the court found was that those actions were so interested inextricably intertwined with the crimes themselves that they they gave they gave the jury the sense as to what environment the children were living in isolating them and keeping them from the watchful eyes of the h s c p s and other states or any adult who could recognize the condition those children were in so it told so much of the story in terms of what environment the children were living in how they were kind of being brainwashed to to not trust people and to engage with mr chavasse in these kind of off the grid activities it's noteworthy i think your honor and it came up in the trial that on the day the victim ultimately disclosed that mr tomasky had abused her this is after she's been taken from his care and placed in foster care she did so at that same time of talking about these burglaries that they had committed she felt a great deal of shame about her activities and i think it was one of the things that that had her keep her science longer than perhaps it would have otherwise the district court certainly had an adequate record i think a strong foundation and did not abuse its discretion in finding that those activities were really part and parcel of the crime of transporting these children from place to place and ultimately into oregon i have a question there's  pending motion regarding file exhibit number five under seal why is it necessary for us to review exhibit number five her to soften the issues on appeal your arms i'm sorry apologize i'm not familiar with  transmitter an exhibit under seal so if i'm correct your honor i think what that was was the forensic interview video of one of the miners yes that's what it is just a d v d it was just i think to give the court the ability to review that video since some of the factual statements made in the government's brief are based on that video which were it was presented to the jury we don't really need to review it that way you know your honor because i think there might have been  i think there may have been opposition filed opposition arguing that it relates to charges for which he was acquitted and admitting would filed that violate double jeopardy but i mean if we don't really need to look at  i'll give you two minutes thank you your honor a couple of issues i believe that if you take a look at dr lease testimony he does not limit his testimony as represented by mr sennheiser he specifically states that there's absolutely no evidence and if she had been so debt badly damaged to need sexual repair i'm sorry surgical repair of the sexual abuse which is what d h has contended there would still have been evidence three months later addressing some of the other issues which are on appeal mr ski was not tried for being mentally ill homeless and i tenor and the evidence showed he had been that way since he was fourteen years old sometimes in the company of his children sometimes just by himself all of the other alleged bad acts that were introduced by the government did not relate in any way to the sexual abuse of e t s it related to the fact that mr and his children all three or i ten ar'n't in homeless in the cannot but it's sort of it's really you always have to give context when you tell a story and let's say if you said that if you just limited to when the sexual act occurred in a car well for persons homeless and they're living in the car that is probably relevant to why it might not have happened somewhere else but the whole point of this is these miners do not report this over a period of time and your cross examining for reasons well if it's true why don't you report it and all of that it seems that it's important for a jury to understand exactly how these children were living during the period that it happened to have valuate why they might have reported why they might not have reported all of those things one could argue that  people don't live like this it was unusual so if you completely didn't give some backdrop as to what how they were all living it just none of the case would make any sense and if the argument is only that they were isolated the fact that there are ten or and in homeless in traveling establishes that they're isolated the types of bad acts that were introduced were he left them on one occasion have some alcohol he they broke into homes to find food in things to sell he had sex with consenting adult women at a point in time when he thought the children were asleep in the next hotel bed or in the back of the cap these do not a stablished that he is i tender and in homeless all they do is make a character assassination of mr which is based on the fact that he is i tender and homeless not on the fact that he is sexually abusing anyone the government did not need these bad acts to prove time i think there was also at wasn't there also evidence put on about crimean and how alcohol and sore and isolation and all of those things can be grooming which as you know i know that's a whole other thing