he's been on behalf of marcellus smith i think this case involves the simple application of two sets of law force because the government is conceding that mr smith's due process right to confrontation with for the court decided today is whether the error was harmless beyond reasonable doubt second the record in this case establishes that the minor witnesses were not in the same room when the assault occurred and establishes that they did not perceive anything other than a commotion noise and the sound of something breaking understate the rater it is clear that the minor child must not just carry commotion or fight but mu actually understand that what they are hearing is the sound of somebody injuring you know other person and so even ignoring the due process violation the court erred in class find this salt as a great a violation as opposed to a great  they applied it they discussed it and without intervening authority this court is bound by that decision i don't think the court can find that the error in this case is harmless beyond a reasonable doubt rely on it what difference does it make so there are many times in a trial that you may admit certain evidence and as the case develops the evidence becomes you know irrelevant miller it changes i disagree that it's clear in the reasons i think that the judge relied on it without the core could find at least that the government has not proved beyond a reasonable doubt that the judge did not rely on it is that first at the outset the judge did say he would consider the evidence and give it some weight known certainly it could be not but in his findings of fact he never says i find this evidence to be unreliable i'm not considering him but he did but he gave a whole bunch of reasons and this was one of them for but i don't think we can infer from his silence on the matter well if there will be a finding of non fact i don't think is obligated to find as something is not a fact he's obligated to find that it is a fact and then point to evidence of record dead say so you're providing standard that a judge would have to then go through all of the evidence and then find out those which he is disregarding and i think that's a standard well i think when he when he does make findings of fact in regards to other statements such as mr smith statements he called i have any question about the rater and the test that it that he said see a maybe you can help us out the court says that the state can prove that the child her idea sold first by close temporal connection among the child the verbal confrontation and the assault don't we have that here i disagree with that that's the holding of writer writer says that there's two ways for government to get to a witness to solve by a minor one is they're in the same room the other is they are in not in the same room but they perceive it and a perfect case for that is bit into if you look at bit what happened in pivot is there was assault and a very small house there was testimony that the walls are very thin you could hear everything in the house there was testimony that there was an open handed slap that would have been heard by the children and the court even said that's not enough that's too speculative here we have even less that e finding he made he found clean actually a record one five i mean my recollection of her testimony is that you know she heard yelling heard something break who knows what it was at that point so i think the findings of fact as stablish that this is now in this case the child's reaction after the a sold is is not to acknowledge that the mother fell down the stairs but is to refuse to discuss the case can we infer from that that she understood what was happening  here i don't think so for a couple of reasons one she one of seeing the fall down the stairs she was in the bedroom upstairs to the family talks consistently throughout the videos about how they don't trust the place and don't want to talk to the police because of issues that had with them in the past and three even an argument times it does it mean within within the same event whatever it means i don't think it means that after the fact in a confusing situation perhaps she may have understood there was a salt in fact when the officer comes back one week later and i asked her what do you know about this what happened she said my mother fell down the stairs that's what i've been told so even a week later she still doesn't know what's happened i'm so i think the brain is the means what it what it means they have to at the time it's happening understand that what they're hearing it's one personal but that's i think that's the question that we have at the time that it happened it means some will train you sleep as opposed to within the same event i mean if she had come back from a walk ten minutes later maybe that's not contemporaneous but if she just simply goes from her bedroom downstairs isn't that contemporaneous this and she become aware of the incident contemporaneously with it occurring in the course never defined separates it but what i would say is i don't think it matters because she comes down the stairs and she doesn't know what's going on and she doesn't know if her mother falling down the stairs she doesn't know if her mother's been you know and like except all of all of her actions including going up stairs and turning up the volume and all of that seems to me classically what someone does when they know exactly what's going to happen and they want her shut it out because they do know what's happening and want to protect he noise greater seems to say that if the child is aware through any of the census and i understand it to be an assault and if you look at rader there was the sound of the victim's head hitting the door the sound of victims had been cracked with a head but a cry of pain a far cry from what we have in this case i'm twenty seconds life for him that will give you a minute when the time comes thank you so for the united states the e mail in this case the introduction that e mail was harmless and we know that because the court never mentioned the e mail in the detailed findings and the court did mention everything else that relied on additionally the defendant introduced evidence of the victim directly contradicting the contents of the e mail including a video of her response when she heard about the e mail and finally the government did not rely on that e mail  arguing that the defendant committed the violation moving on to the rader issue which is just to pick up where you're left off the radar court noted that these incidents of domestic violence don't occur in a vacuum and i think it is important that the child in this case was sixteen years old and that action of going up and turning up the volume when she's hearing sounds of arguing and something breaking and trying to protect the other children is instructive additionally when we're talking about the sands that were heard in this altercation the neighbors heard sounds of violence and they called in a domestic violence report the police arrive on the scene and they don't even know which apartment it is that they're going to until they hear what they say sounds like she boards breaking the sound of a man cursing and yelling and as they approach the door they hear what sounds like a woman crying when the police are able to get the minor child to open the door she's cheerful she appears afraid and there are significant injuries to the well that all suggest so are you suggesting that if she didn't hear it happening but she came downstairs and realize what happened that would satisfy construction we actually think she did hear what happened and that's what caused her when she said she heard the yelling what she heard what happened was there was an argument downstairs she goes upstairs and turns on the television so she never hears the actual violence in the raiders explicit in saying that if they know that there's assaultive conduct but they don't know the specifics of the assault that's sufficient  preponderance of the evidence but if the standard was beyond a reasonable doubt he was a little dubious and he said that he did it he said and said asked week there was an argument the supreme court united states forces hammond about whether under aware and again we would rather you might push forward but you go back to the district court where you know when a district court specifically said that he wasn't sure what he would say for that if the standard was beyond reasonable doubt he was quite explicit about that and i think we could return to the case what does contemporaneously mean i'm with my to return to that because it's clear that almost simultaneously with you know these events the minor child is know when they enter the room i'm not funder cousens i think under rader there's some specific language that and it's at ninety three and greater the state may rely on the closest spatial connection among the child the verbal confrontation and the assault that immediately followed to prove the child was aware of the assault i don't know that it needs to be simultaneous i don't think it does need to be simultaneous especially when the court goes on at ninety three ninety four and rader to say that the state may introduce evidence of the child's reaction to the assault in this case the timing is is so close just in terms of the sounds that are being heard by the third parties the police and the neighbors the fact that the child acknowledges that she heard something breaking she's also the one who's answering the door as the defendant is leaving the scene of the argument i don't think that there's a definitive simultaneous especially since the raid or court is clear that they don't need to know exactly what the specifics of the assault are as long as they know it's assault of con conduct whether or not the court relied on it i think i would concede that's a that's a tougher issue for the defense but i don't think it matters because either way if the court finds that the child did not witness the salt as defined by organ law we're still going back to the district court for a great sea violation and then just briefly in terms of the sounds that the child heard i'm sorry but i didn't understand that point so if if the court were to find that the due process error was harmless but found that the child the elevation from a great seed to grade a was not an independent argument it doesn't depend on their person and then secondly in terms of what the sounds the child heard the court specifically extra record ninety eight that a call came in and that there was a disturbance this sounded like a fight whether that's a verbal fight a physical fight we don't know but that was the court's findings so i don't think that the sounds before do anything to add to the balance of suggesting the minor actually witnessed and understood an assault that we have any thing on the record that will give us a a