UNITED STATES DISTRICT COURT
________________DISTRICT OF TEXAS
__________________ DIVISION

UNITED STATES OF AMERICA	                 §
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V.	                                                                 §		NO. ____________________
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______________________	                             §

DEFENDANT'S MOTION FOR NEW TRIAL

TO THE HONORABLE ________________________, DISTRICT JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS:

	NOW COMES Defendant ___________________, by and through his undersigned attorney, and files this MOTION FOR NEW TRIAL, and would show this Honorable Court as follows.

I	
	Defendant seeks a new trial as to the single-count Indictment, alleging a violation of 18 U.S.C. §2241(c), aggravated sexual abuse.  The power to grant a new trial is conferred upon this Court by Rule 33 of the Federal Rules of Criminal Procedure.  The Court may grant such relief whenever “required in the interest of justice.”  Fed. R. Crim P. 33.  As set out in the accompanying memorandum, Defendant seeks a new trial because the Court removed key defensive evidence from the jury's consideration, and created an appearance of partiality toward the prosecution. _______________ also asserts that the Court made certain comments during the course of the trial that constituted improper judicial testimony.
	______________ also seeks a new trial based on the Court's admission of unreliable hearsay statements over defense objections, regarding the complainant's allegations and identification of _____________________.  As a final ground for a new trial, _____________________ asserts that the jury's verdict was not supported by the great weight of the evidence introduced at trial.
II
	In order to secure a conviction in this case, the prosecution was required to prove beyond a reasonable doubt that the Defendant, _____________,  assaulted the complainant, _____________________, as charged in the indictment. The existence and reliability of the identification of _____________________ as the assailant was the single most significant, material fact at issue in this highly contentious trial.  He was entitled, under the Sixth Amendment to the United States Constitution's right to trial by jury, to have this fact determined by the jury on proof beyond a reasonable doubt.  _____________________ respectfully submits that this right was compromised by certain comments made by the Court during the course of the trial.  He further submits that the Court's comments which, in their essence amounted to an instruction that the jury disregard key defensive evidence, deprived _____________________ of a fair and impartial trial guaranteed by the Fifth Amendment to the United States Constitution.
III
	Studies have found that “children can indeed be led to make false or inaccurate reports about very crucial, personally experienced, central events.” See  Donald P. Judges, Two Cheers for the Department of Justice's Eyewitness Evidence: a Guide For Law Enforcement , 53 Ark. L. Rev. 231, 246 (2000). While children, under the right circumstances, can make reliable witnesses,  the variables involved in interviewing child witnesses may effect the reliability of the child's testimony. Id.  _____________________ was entitled to elicit evidence about the manner in which the Prosecution interviewed and prepared the child witnesses in this case.  In fact, eliciting such evidence was crucial in order to test the children's independent recollections of what happened on the night in question. 
	Defense counsel elicited evidence of the Prosecutions use of highly suggestive and repetitious questioning of the child witnesses.  _____________________, ______________ all testified that they were repeatedly interviewed by Prosecutor___________, and that she told them to make sure and make repeated references to “________” and  “___________.”  In addition, Prosecutor __________ acknowledged that after ________ was sworn in and a break was called, _____________ approached him and asked if he recognized anyone in the courtroom. Orlando Jr. responded that he recognized the defendant.  _____________________'s questioning was suggestive because of its timing: a  break had been called, and the  courtroom was clearing of people.  Those who remained in the courtroom were standing up and moving around. The inference that the jury could draw from this is that _____________________, through his question, was pointing out ______________—the only person remaining at defense table, and one of the only people in the courtroom that did not appear free to walk around. _________________ testimony confirmed this implication. He stated that _____________________ approached him and pointed _______________ out to him. 
	_____________________ should have been entitled to have the jury consider this evidence,  and its effect upon the reliability of all of the children's testimony.  It was the jury's role, as the trier of fact, to weigh this evidence and determine what inferences could be drawn from it regarding the reliability of _____________________'s “on the scene” identification of _____________________.  During its direct-examination of its expert witness, ___________, the defense sought his opinion on the effect the aforementioned coaching had on the reliability of the children's identification of _____________________.  The Court stated to the jury that there was no evidence that the prosecution committed the above referenced acts.  This comment improperly removed this key impeachment evidence from the jury.
In “a criminal case . . . no fact, not even an undisputed fact, may be determined by the Judge.”  United States v. Johnson, 718 F.2d 1317, 1322 (5th Cir. 1983) (en banc) (quoting Roe v. United States, 287 F.2d 435, 440 (5th Cir.), cert. denied, 368 U.S. 824 (1961))  In instructing the jury that there was no evidence of this type of coaching of the child witnesses, the Court invaded the province of the jury  and improperly determined a disputed fact at issue in this case
	In addition, in stating that the Prosecution “did not do that,” the Court engaged in impermissible judicial testimony.  It is well-settled that a federal trial judge has the power to explain, summarize, and comment on the facts and evidence.  Quercia v. United States, 289 U.S. 466, 469–70 (1933); United States v. Blevins, 555 F.2d 1236, 1240 (5th Cir. 1977).  Equally settled, however, are the “inherent limitations” on this power: “In commenting upon testimony he may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it.”  Quercia, 289 U.S. at 470.  The Court contravened the prohibition on judicial testimony by stating that a disputed fact, did not happen.
	And finally, through its comments, the Court created the impression that it favored the Prosecution's position on a material fact issue—the extent to which the Government's trial preparation of the witnesses tainted the witnesses' independent recollections of the assailant's identification.  The judge must exercise the most scrupulous care to avoid giving an unfair or one-sided impression.  United States v. Fischer, 531 F.2d 783, 786 (5th Cir. 1976) (citing Quercia, 289 U.S. at 470).  Because such comments by the Court create the appearance of partiality and effectively removed key evidence from the jury's consideration, “the interests of justice” require that the Defendant be granted a new trial.
IV
	As an additional grounds for new trial, _____________________ submits that the Court improperly admitted highly prejudicial hearsay statements regarding the identification of _____________________ as the assailant.  Both _________ and __________ were allowed to recount, over defense's hearsay objections, _____________________ and _____________________'s out of court statements regarding what they were told by _____________________ on the night of the assault.  _____________________ and _____________________ were allowed to recount _____________________'s out-of-court statements. These statements were admitted under the excited utterance exception to the hearsay rule. Federal Rule of Evidence 803(2) provides a hearsay exception for “a statement relating to the startling event or condition made while the declarant was under the stress of the excitement caused by the event or condition.”  While there was evidence that _____________________ was upset when she told her sister and brother what happened that night, the evidence suggests that she was upset because she was afraid she was going to get in trouble for leaving her room and not going to bed that evening.  In fact, both _____________________ and her mother testified to that fact.  The defense submits that this is not the type of “stress or excitement,” ensuring an absence of reflection, contemplated by the rule.  
	The underlying theory of the excited utterance exception is that “such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabulation[.]” Idaho V. Wright, 497 U.S. 805, 820 (1990); See also Fed. R. Evid. 803, advisory committee notes (stating that basis of excited utterance exception is that “circumstances may produce a condition of excitement which temporarily stills the capacity of reflection”).   The evidence in this case shows that _____________________, _____________________, and _____________________ each had the capacity of reflection when the statements at issue were made.  _____________________ and _____________________ testified that they debated whether to call the police or their parents, and that they were worried that they might get in trouble for not adequately supervising _____________________ and for not going to bed as directed.  The evidence does not suggest that the children were under the type of stress or excitement that necessarily leads to a lack of reflection or contemplation.  
	The evidence also shows that _____________________'s out of court statements to her siblings were not volunteered without prompting, but instead were made in response to their repeated questions of what happened. The fact that a statement is not spontaneously uttered factors into the analysis of whether it qualifies as an excited utterance.  See Paxton v. Ward, 199 F.3d 1197, 1211 (10th Cir. 1999) (child's statement made in response to  mother asking him what was wrong was not truly spontaneous). 
	Finally, the reliability of _____________________'s statements identifying “_____________________” as the assailant is called into question by the fact that _____________________ had already expressed her belief to _____________________ and _____________________ that the man found with _____________________ outside their room was “_____________________,” or “_____________________.” _____________________'s identification of the man may well have tainted _____________________'s independent recognition of the assailant.  This fact militates against a finding of lack of reflection and sufficient reliability inherent in an excited utterance. See Paxton, 199 F.3d at 1209 (court should assure itself that statements were made under circumstances not indicating a possibility that the child was coached or overheard someone else identify the assailant).  Because no such assurance of reliability and lack of reflection can be made in this case, these statements should not have been admitted at  trial
V.
	As a final ground for his motion for new trial, _____________________ asserts that the evidence adduced at trial preponderates heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand. See United States v. Robertson, 110 F.3d 1113, 1118 (5th Cir. 1997) (discussing standard for granting new trial).  As was emphasized above, the identification of _____________________, as the assailant, was the most vigorously contested issue in the trial.  It was the Government's burden to prove beyond a reasonable doubt that _____________________ was properly identified as the assailant. The great weight of the evidence did not support this determination.  As the Government acknowledged in closing argument, there was no physical or medical evidence linking _____________________ to the assault.  The only two witnesses who could possibly have identified the assailant were _____________________  and _____________________.  Neither witness could make an in court identification of _____________________ as the perpetrator of the assault, despite being given ample opportunity in court to view him.   This lack of in court identification heightens the evidentiary load carried by the out of court identification. The evidence adduced at trial confirms that _____________________'s out of court identification of _____________________ cannot fufill this heavy evidentiary burden.
	The trial testimony of Officer _________ shows that the out of court identification procedure was conducted in an impermissibly suggestive manner. _________ testified that _____________________ identified ____________ after only a brief look at him while he was handcuffed and surrounded by Agents ___________ and ____. Both Agents were dressed in camouflage and wearing combat-styled boots.  In addition, both men were armed: ___________ carried an M-16 which resembled an assault rifle, and ____ had a side arm. _____ acknowledged that _____________________'s fearful reaction may possibly have been a result of seeing the Agents dressed in that manner. ______ also acknowledged pointing to _______ and asking _____________________ if that was the man who assaulted her.  In light of the generally frightening nature of the scene, _____________________'s affirmative response to _________'s question may have been her way of ending the encounter as quickly as possible. The testimony also showed that _____________________ was never asked to identify _____________________ at the scene, and therefore there was no corroboration of _____________________'s identification.  Because of the impermissibly suggestive procedure, _____________________'s on the scene identification of _____________________ is entitled to little or no weight. 
	Other than the on the scene identification, all that remains to support the jury's verdict is _____________________'s and _____________________'s testimony that they recognized the assailant as “_____________________,”  or the “_____________________.”  There were also, however, several facts that cast doubt on this testimony.  As was detailed above, _____________________'s initial recognition of “_____________________”  may well have been tainted by _____________________'s identification of him as the man standing outside their room.  _____________________'s brief exposure to this man prior to identifying him as “____________” is susceptible to inaccuracy, especially in light of the  full occupancy of the temporary lodging facility and the time of  night that these events occurred. The likelihood that _____________________ inaccurately identified the man as _____________________, and that _____________________'s recognition of “_____________________” was influenced by _____________________'s inaccurate identification, is reinforced by both girl's inability to recognize _____________________ in court.  The fact that both girls could not identify _____________________ as the assailant suggests that it is more likely than not that their initial recognition of him was inaccurate.  Because the Government's sole identification evidence  is severely lacking in accuracy and reliability, the evidence preponderates heavily against the jury's verdict.  Therefore, the Court should grant _____________________'s motion for a new trial.
	
	WHEREFORE, premises considered, Defendant prays that the Court will order an new trial.
						Respectfully submitted.
						__________________________________
						Attorney For Defendant

CERTIFICATE OF SERVICE

	I certify that I served a copy of the foregoing Defendant's MOTION FOR NEW TRIAL and Memorandum in Support of Defendant's MOTION FOR NEW TRIAL on the United States Attorney for the ___________ District of Texas (ATTN: Assistant United States Attorney, _________________) by delivering same to his office at _____________________ on ____________________, 20__.

						
					Attorney For Defendant