may please the court my name is thomas diggins and i represent mr robert little we are asking your honour's to reverse in vacate the conviction because the opposite evidence was insufficient mr little did not willfully fail to remain within the extended limits of his confinement and mr little did not willfully fail to return within the time prescribed or in this case to arrive at the halfway house in rapid city the government did not prove any of those things at trial the testimony from the witness who worked for the bus company at trial was that mr little on the st bus from wisconsin dells to minneapolis that bus arrived late he missed his connection there after buses were cancelled because of blizzard and very cold conditions so this delay cannot be said to be willful on mr little's part just last year this court reversed a wire fraud conviction in the hague in case because of drought conditions the contract couldn't be performed and i submit this is similar because of weather conditions mr little could not get there on the th as scheduled and that had nothing to do with his willfulness the bus company official testified that the st opportunity for mr little to ride by bus in rapid city got him there on the th not the six at six forty five pm the furlough agreement which is a denim two on page one in the lower left sets forth the travel schedule and it gives mr little fifteen minutes to travel from the bus station to the halfway house so he should have been there at seven taxis were immediately available when the bus arrived we don't know whether mr little had money for a taxi and also mr zillah's from the b o p from oxford the case manager testified that inmates were given a little leeway when it comes to the scheduling of these furloughs he didn't think that's what does the records say about whether mr little had a cell phone with him when he left wisconsin for south dakota your honor the record is absent on you address that yes again there is no evidence that mr little had a phone so he would have had to borrow a phone but in addition the i would argue that the failure to make a phone call though it could be considered a violation of the furlough agreement does not amount to escape and does not show if we know he had a phone he didn't call i think that would show willfulness you know arriving late not notifying but the that means so that's my attempt to define what it might mean but but i mean he was two days late or with off without a phone call right i mean it could have been the failure car if if we get to willfulness then i mean it could have been the in the intervening two days right not the you know the short amount of time at the end where the bilby gives leeway i believe that's correct i don't think we can say that the weather conditions were willful on mr little's part but the government has argued that his failure to call shows willfulness but i would counter that his lack of the means to call defeats that and on this record i would submit there is not sufficient evidence to show that he willfully failed to arrive at the designated time and so the only way for the government to prove that he violated the statute is to show that he failed to remain within the extended limits of his confinement and such limits are clearly meant to apply to the geographic bounds of the furlough agreement at the agreement in its entirety you'll see there is one subsection that says if you fail to arrive on time you could be charged with escape but you could be subject to other criminal prosecution that's not a scheme and you could be subject to institutional disciplinary action for violating the terms so contrary to what the government argued at trial i think it's clear to the b o p that not any violation of the agreement amounts to escape and again excuse me we have a separation of powers problem here because the courts get to define what a statute means the b o b does not the government does not it's up to the court we ask the district court to do that  asking this court also to define what is extended limits of confinement what does that refer to and i submit it is geographic we have time in place when you're on a furlough you have to get there in a certain time and there are certain places you cannot go so under that reading of the statute the failure to make a phone call has nothing to do with where you are long it takes you and the statute says nothing about making a phone call so at best the statute is ambiguous as to whether a phone call is required and because of that ambiguity ambiguity i would argue that that the rule of lenity should apply and that the ambiguity should be decided in mr little staver if this court were to hole to rule that failure to make a phone call amounts to escape then i think the statute would be subject to a constitutional challenge is being void for vagueness because again it says nothing about a call and if congress wanted the failure to make a call when you're delayed due to amount to escape they should have said so in the statute the record that before us on the geography where mr little was there is no evidence that he went outside the travel schedule assets force on page one of a dent into there is no evidence that he wasn't on the buses there's no evidence that he was but again the government has the bird so they didn't show any any in from any testimony any exhibits or the stipulation that mr little went out these outside of the in his extended limits of confinement because of that there is insufficient evidence to convict him ways of proving a violation are in the disjunctive and it's my reading it's clear that wilfulness applies to both the failure to remain within the extended limits and the failure to return within the time scribed or as the government pointed out in its brief the kelly case flexibility approve we're not talking about failure to return we're talking about failure to get there in the st place but i think that is the extent of how kelly is helpful flexibility of proof here we have failure proof because again there's no evidence that mr little failed to willfully failed to arrive at the designated time or willfully failed to remain within the extended limit then this court does have an instruction on willfully seven point zero two and the committee comments say that well the word willfully not be used in  instructions and it wasn't in this case but it goes on to say where willfully does does appear and where well where the word willfully does appear in the statute in most cases it can be replaced with the words really and intentionally so when we consider this court's instruction to do well it's really not this court's instruction it's a pattern committees and instruction created by district judges and this court has said repeatedly that they have do not have force of law although they are persuasive that your honor i apologize that is correct and i i point that out because i think in ruling on this case it is important to consider what does willfully mean and mr little did not testify at trial he was not interviewed there was no no no testimony coming through law enforcement as to what he did or where he went and again he has no burden of proof the government had that and so i submit that  to for the conviction here your honor i believe that would go to willfulness so hypothetically if there was evidence he had a phone and he failed to call we still have the fact that whether prevented him from getting their intel the but he could have let epsy i oxford or the cab know that he was struck there's no evidence by the way that either of those institutions checked with the best company  to see whether whether delayed the buses right but i'm going back to what the statute says what does it take to meet this statute and there's no mention of a phone call and to me reading the furlough agreement it's clear that certain things subject someone to disciplinary action other things subject someone to criminal prosecution but it's specific on what subjects one to escape  inmate is at a stop over and commits staffed they are subject to prosecution but if they thieve commit that from a convenience store or something but that's not escape and i would submit that the failure to make a phone call i can't think of any situation in which failing to call is criminal and i submit that it is not criminal in this case it should be considered a violation of the furloughed reman at most subjects mr little to disciplinary action but it should not be considered criminal and again if congress wanted that to constitute constitutes kate they should have been explicit on that point so your honour's again i'm asking you to reverse an vacate the conviction because there was insufficient evidence to convict mr little under either of these sections of forty two and if there are no further questions i would  serve the remainder of my time to make a rebuttal thank you mr kellerman when you're ready may please the court counsel i'm eric kellerman i represent the united states in this matter the defendant in this case rubber little was not someone who was just able to do what he wanted he was a federal inmate he was going to halfway house you never right to that it was a privilege the bureau of prisons allows for inmates of course to finish their terms of imprisonment at halfway houses and so what we have here is we right to know where they're going to be and that's why there are conditions that are placed on a defendant is the government's position that violating any of the terms of the follow constitute are laid out in the understanding section your honor the the understanding section on the st page of the furlough agreement lays out that the defendant has to be within a certain area he has to arrive at a certain time he has to follow a certain schedule and essentially here in this case it was that he had to go by bus he may well have there was no evidence of it because the defendant was gone because he was absent and so what we have a situation where he was in direct violation of the conditions that were laid out in the st low agreement so is the argument then that the furlough agreement is incorporated into the extended limits of confinement is a just making sure i'm following the furlough agreement essentially if defined the extent of limits of his confinement the extent of limits of confinement has to be something that the bureau of prisons because they're the ones that confine inmates and so his confinement had return to the place prescribed by the bureau of prisons here we have a situation where the defendant i don't believe that there is any disagreement about this he did not arrive at the facility at the time prescribed right and that that leads right into a question i had on and that's one page eighteen of your brief where the government says because little failed to arrive at the facility on time his conduct with the nd part of the if i missed if i read it incorrectly i'll try to clarify here he was late by by all accounts he was late by two days his world fulness was shown by the fact that he course voluntary or intentional that we have some cases to talk about under certain rare circumstances it may also include knowingly i only know that because i was on the pattern i was the chair of the pattern jury instruction committee when we wrote this instruction and we left  voluntary we left knowingly out of the definition that we struck in the commentary because it's under such rare circumstances that it didn't really seem to fit most of the time and i don't think it fits here so in this case we're really looking at was it  or intentional act right and in order to show voluntary ness or intentionality don't you have to show that he had the ability to call and this record is silent on that it's not completely silent your honor i don't there was evidence from this william she was with the bus company and she mentioned that they have telephones now this of was this was a person from the rapid city bus station but she said that they do make phones available for inmates for people that are coming from f c eyes or b o p facilities they make it available for the calls the did she say that at the minneapolis  do not recall whether she said that that was the case there but i know that she said it about rapid city defendant understood it the defendant had no questions which means the defendant didn't ask for a phone he didn't ask what if i don't have a phone in this day and age your honor i submit that telephones cell phones are readily available you go to a bus station twenty years ago perhaps there was a long distance charge that someone might be concerned with but in this day and age telephones are easily accessible and easily available readily available all he had to do was find a phone and it was essentially the jury is part of their fact finding could just  drives an inference that you know cell phones are ubiquitous and to obtain one would bob be difficult indeed your honor i agree so just a practical question here i mean the furloughs off to the prisoner is it a voluntary and part of the prisoner whether or not he accepts the furlough assignment to the community alternatives it is so the president leaves be opi is there anything provided to him in the way of cash or other things or is that entirely on the prisoner and his or her family to me he was gone for several days here or was there any evidence in the record suggesting that he had financial read money with him or anything along those lines i don't know if the record in this case shows it but i do know that the b o p does provide some amount of money they provide the ticket tickets for the bus or if there are connections they provide those things to an inmate i believe there is some some traveling money it's not a large of i guess i sort of confided to what's in the record year but it doesn't sound like that's in the record in this case i didn't i do not believe it is your honor and i apologize for not knowing the answer to that but i don't think the record here shows that they're not a part of the come and go as you please club what you have in this situation was mr little was similar to those supervised release defend he had rules that he had to follow he did not follow those he showed up late he let no one know about it because the bureau of prisons has authority bang need to know where federal inmates are located they didn't have that information here on the defendant didn't provide it to them it was his obligation to do that is failure to show up the nd part of the definition of the court's definition as i outlined in the toward the end of my brief it meant that because he failed to return to the facility that he was supposed to be at fault failed to return to bur of prisons custody the willfulness is shown by the fact that he didn't make the phone calls he was required to make i asked the court to affirm robert little's conviction in all respects i do have our arm question arm in the instruction that the judge one thought is that there was no objection to it your honor there were no objections i believe that to the extent that it added a word it seems to me that it's definitional something that the court put in there because didn't necessarily doesn't necessarily imply that you have to return to the same place right and so i think the judge was just saying it's returning to bureau of prisons custody here it wouldn't be returning to f c i oxford it would be returning to custody your honour's i would like to discuss the matter of the availability of cell phones i would submit that even had mr little borrowed a cell phone and made a call he would not have gotten to the halfway house and the sooner he would have been just as late also in this record there is evidence that mr little is a convicted felon he stipulated to that there is a photo of him on page two of a dent and number two hundred and thirty in the furlough agreement and i think you should consider the difficulty of a convicted felon with his countenance asking someone to bar phone also on ms williams i believe her testimony was there is a phone in the rapid city bus station that travelers can use but mr little once he's there he doesn't need to call anyone he's minutes fifteen minutes by taxi is what's on the record from catch so again making a phone call doesn't get him in there any sooner i don't agree with the government that i don't disagree with the government that the b o p gets to set the extended limits of confinement if we're talking about geography but again this court gets to define what that phrase means and the testimony at trial it's the travel schedule and mr kellerman just said there's no evidence mr little left limits of his confinement so i would again asked his court to reverse an vacate the conviction and believe i'm out of time there no questions thank you thank you