may please the court counsel my name is dan you help us and with the federal public defender's office and i represent mr ford he raises a very say shoes on appeal first there's a due process and rule thirty two point one b to se error caused by the district court's reliance on statements by an absent witness ms jasmine smith and smith statements were used to corroborate mr ford's identity his status as a building manager as seems to me we know and there's no contest that jasmine smith is in fact another tenant in the building and is in a position to make these kinds of statements even though they might be hearsay i'm not certain what we know about jasmine smith other than she didn't testify should have been that couldn't be considered unless there was a balancing test is performed under us versus jordan we know she's a ten are you contesting that she was another tenant in the building that i only know what stated in the record and it was alleged that she was all these things are alleged but the problem isn't that the problem is did the government make a showing why the absent witness shouldn't there wasn't able to be there and did the district court that and perform obligations and make the a balancing test make the necessary findings and rule thirty two point one b t c ultimately then the reliability of the evidence would be before the district court but those necessary prerequisites never happened so it's a matter of due process and matter of the rules of this whole issue of smith came up as a consequence so for raising this right and in the government got the testimony from matthews about the statement smith provide if there was no objection the government i think to get it to admit exhibit five and there were no objections yes right through and and so i mean even if it was an one is mr roy who is either a drinker or a drug abuser who's reliability would be at issue and so they dish will corroborate would be important also as for what was not objected to it's a requirement of the rule that the government state why the person is absent the district court make a finding about it that's all true but there's also i mean this rule like many is something that can be wa and and i'm worried in light of what judge williams was alluding to the way this in their statements initially come in is via forward and i'm wondering whether there's just waiver of at least  thirty two point one point due process maybe not that then you're really at a different level altogether where you're saying you know here's the smith statement it's worth something i would say the problem would be an invited pair problem by introducing statements in part by the way not all of that information was introduced and so it storm brings up the references to rory's drug use sex to call and so it would still be as an adverse witness did not support say two fords i don't know whether she was somebody else it was not somebody else didn't the court ask for its lawyer whether he objected to the admission of the smith statement and of one of the two essential witnesses in this case and so i believe that we would still have let you know that she was going to say all these things that didn't help you i'm not certain what was known so what you're doing though what you're suggesting then is we put a burden on just the court judges that when there is no objection to a statement being given that the district court almost has to act as if there were an objection make these kind of findings because if there is no objection by either side it's been agreed is going to come in and the rule is pretty simple about what i asked the district courts to do and what the hearing make sure that this didn't happen when i'm saying what you're saying is even if there's an agreement there's no objection but more it still has to go on right if it is a city it's almost like it's a candle stipulation so the judge then has to then go and do what he would or he would have done had there not been a stipulation or had there not been an exhibit that just seems to me to be a really tough asked to do is make a couple of questions about the witness who's absent and we have to file a record that's just what i'm just saying that just the court is not on notice that you have to do that to ask those additional questions unless there's an objection if there is an objection no problem the court has to out practically i wouldn't forego the argument on appeal though the colloquy was defective and therefore i can withdraw my plea that's the analogy that i'm wishing to make here and if i can move on briefly but before i do just say as to the effect of remedy in this case we're turning these in a dress rehearsal when the government doesn't do what it's supposed to do the district court doesn't do what it's supposed to do we should allow a second bite at the apple and the circuits case united states versus johnson which i don't cite in my brief but i did mention when i heard you jordan casey jordan is absent my perspective on this jordan says go back and consider whatever is necessary but we're making this dress real and to dress rehearsals we're giving second bites at the apple and there's no disincentive for the government ever to come in with what it should have as a look at there's every disincentive if defense counsel is on their toes and they don't read these things then as soon as there's an objection the government's got to step forward and do what they need to do to their attention we're doing nothing to disincentive five's the violation of the rule when it comes up and people then spend time in jail and come back and have a second hearing and these are things that i wish to avoid turning however to the revoked for non criminal behavior for and there are all kinds of things you know you leave the jurisdiction but that's not a crime that's maybe a violation of your terms supervised release or you you know you don't show up for a drug stor you do all sorts of that you consume an excessive amount of alcohol that will soon mean you're sitting there your living room doing it you're not driving a car that's not a crime some things are and with the one exception of the place that it the original term of supervised release in most of the rest of the time it just says the term it just makes so much more sense to me to have it all relate back to offensive conviction and that would be great statute only said original offense and it doesn't and so far as your honour's construction of the term offensive that be the limited view that the government has about it having to be equated directly with a crime and we take a position that's not so i mean i don't know are cases that use the word sense to mean something other than a the court i'm elizabeth montel this is sydney i think the attorney and i represent the apple leave the united states of america i'd like to address the counter the argument about the government in this case not doing what it was supposed to do in other words explain why it didn't prevent jasmine's as well as a witness at the reputation hearing so i was worried about that because i couldn't see anything in the record indicating that she was unavailable nothing to tell me whether her statements had any in dish a reliability or not it seemed like the government just took too many shortcuts there is that is correct there is nothing in the record about why this myth was unavailable however in this case because the defendant made no objection i understand that the rules don't apply but there was no objection under the confrontation clause under due process under rule thirty two point one itself and never triggered the government's duty to explain to the court why ms smith was not presented at the hearing and why there was no opportunity to confront or cross examine her so much and what are we supposed to do though to get the district courts to comply with rule thirty two point one we we've had cases in which we've said we really mean it you need to conduct th balancing toes and it just keeps not happening that's correct there was no balancing done in this particular case but again that's because they just kind of made no objection and did not put the district court on notice that it was that it didn't want jasmine smith statement into evidence at the revocation hearing in fact as was noted earlier on page thirty one of the records when mr ford himself on cross examination that the government's main witness hoyer brought up jasmine from a statement about whether he was smoking crack cocaine on the day in question there but it was quite a different part of the statement though i mean it's hard to imagine why mr ford would have wanted the tony part of the statement for audience certainly certainly your honor but again there was no objection to the admission of the full statement nor did the defendant in this case explicitly asked the district judge to just consider the part of the statement for the limited purpose impeaching the government's main witness that was not done here and therefore the defendant has waived his ability to challenge the admission of hearsay at his revocation hearing i think that  it's important to note that this court in jordan found that the defendant in that case made an objection due process grounds to the admission of hearsay evidence that the revocation hearing and this court found that that was sufficient to preserve his rule thirty two point one b to c issue for appellate review thereby suggesting that there is some duty on the part of the defendant to raise issues for the district court judge so then they can  it became an issue triggered the government to respond indicate why miss smith wasn't produced here and then subsequently the court's obligation to conduct the balancing test here so if we were to disregard  testimony would there have been enough evidence for this court to revote absolutely in the district court relied principly on mr rowe hallways in court testimony which he found credible and which was cooperated by another tenant in the six hundred fifty one north twenty ninth street property who placed mr de for mr ford as the property manager tony so we have the victim himself identifying the defendant as the man who beat him up both in the photographic lineup and in court and said yes this is the man who beat me up in the district court found that testimony to be credible and specifically found that mr i think there was a question about the reliability of misstatements and dismissed statements and for the reasons that i have already given relating to the live in court testimony of the various witnesses the other tenant of the building placing mr ford of the property manager that it it does indicate that ms misstatements in this case were reliable i think it's also important important to note that because mr ford was introducing miss miss statement to attack the victim's credibility in one sense he's asking the district court judge to find her reliable but then on the back end is also asking this court or ask her asking that for this court to find that her other semen is not reliable so in one sense he's using her statement as a sword and a shield and what about those thirty five eighty three  term in that statute they were really focusing on is the offense that resulted in the term of supervised release in this case offense refers to the offense of conviction the congress could have stated in the statute it could have referred to supervised release violations that could have said revocation but they didn't adjust that offense and therefore the fact that they amend it that congress emitted the word original i don't think is a is a is a noun it it's a nonstarter and this case  there was a recent supreme court case that came out in may twenty sixth of this year where the supreme court did have an opportunity to examine the term offenses used in title eighteen it's kellogg brown and root services in vs the united states although they were looking at the wartime suspension of limitation act the court there found that the term offenses were first to crimes and it did recognize that the term offense does have a broader meaning and crimes and offenses are not necessarily synonymous but the supreme court had said that in title eighteen that is not how it's used that offense refers to the crime of conviction and one last point  on the section thirty five eighty three if if this were to find the defendants interpretation of the statute to be correct it would lead to an absurd result because on a second violation of supervised release conditions under him under the defendant's interpretation of the statute a defendant could be sentenced to no more than two years in prison meant for any second revocation and on his third revocation no more than one year and that's simply not the statute reads so based on the plain language of the statute the government is requesting that the that this court affirmed the district court finding both as and time the district court expressively relied on ms smith's testimony to find the violation so i don't think that we can say that we're not the case that was given we could have had the same result here i think that's powerful evidence to the contrary also the government has a duty it always has a duty to make its witnesses available under the rule in the district court has noticed because the rule says to have the witness there unless the government makes the necessary showings and the government can't read a word into a statute any more than we can read one out of it in if doesn't have the word original before the word offense and it doesn't refer to the original offense it refers to the new offense and it doesn't lead to a service dition doesn't make sense  so you're so you could have a you could have a serious offense and you know a long period of significant prison sentence and then a very short period of supervised release and yet the original offense over the head of the really see in order to increase the incentive for him to know that very true but the universe even broader than that we have a state court where if  violation of law he can be or she could be sentenced to the time in the state court for that very serious conduct so we don't have to worry about this constantly loop narrowing possibility of less criminal exposure because we always have a hundred instances where there are serious misconduct and crimes an avenue in state court which is really the better place to answer for your misconduct as opposed to this proponents of the evidence send you back to prison for however long we wish to under fairly