good morning my name is matthew brissenden i represent the appellant troy harris in this matter as the panel is aware in our papers we advance two arguments for the purposes of the oral argument here this morning i'd like to focus on the second argument with the cour permission and that argument is whether or not the district court err when it ruled that the government could prove up specification for that is the assault specification purely by use of hearsay evidence and without calling the complaining witness to be confronted before the district court could make that ruling it was obligated to perform a balancing test it was obligated to balance mr harris his due process the interests in confronting the adverse witness against the government's process interest in confronting the witness against him holding in essence that he had forfeited that right and that his right was intitled to very little weight based on the government's assertion that the witness had expressed a generalized apprehension and fear of appearing the case law is crystal clear in this regard a defendant only forfeits his interest in confronting an adverse witness when he has acted specifically and with the intent to prevent that witness from appearing and in this case there was zero evidence that mr harris or anyone on his behalf had in any way tried to interfere with this witnesses testifying as to cases where we've allowed testimony from  here they don't apply except is rule thirty two point one so so the standard belief set for trial confrontation seems to me not to be exactly on point it may be something we sell but not exactly what i would say your honor though if we bring it back to united states williams which of course that situation did involve a violation of supervised release was not a trial situation where this court articulated this in the district balancing be you should just be put in to record things which you centrally go to bed moments i guess what i'd say is is the court walks through a balancing test but it was a strictly one sided balancing test because at the outset it said i'm not considering mr harris as interesting as balancing test so i would suggest the results probably a foregone conclusion when you consider only the government's interest in effect that's what this court said and williams which was the case that the district court was following said you still perform the balancing test in this context but in that balancing test the defendant's interests are the history that was the word the court used which is exactly what happened here so you essentially have a one sided balancing test and what troubles me is that really when you look at the countervailing interests the factors that supported the introduction of this hearsay testimony this was not a compelling case for several reasons first of all with respect t reasons that the defendant didn't appear again and i've indicated there was no specific threat to this defendant she was unable to articulate any specific reason why she was fearful this defendant other than this one small salt incident did not have a history of violent conduct and there was no assertion that any of his co defendants or that anyone else he was associated with he said she was so concerned she was willing to be arrested or not appear and that's not those defendants what i'd say is the record establishes what i would call mixed motives for her not appearing there's also an indication that she indicated to the government that she was reluctant to appear because she had at least three open criminal matters those exactly the sorts of considerations disregard his way every day well certainly was a factor to consider but is that a compelling factor this is not a case where you had a defendant for instance that had recanted on her testimony she came in and she met with the government wasn't that they couldn't locate her she was available to be located problem with her analysis is that as i said it was a purely one sided analysis and considered only the facts that the government put forward an utterly disregarded the defendant's very real interest in cross examine this witness and the other factor that she had to consider was the reliability court was trying to follow this court's guidance if in williams and force the court the government had cited that case and urged the court to follow that authority and what william says is that the court goes ahead and performs the balancing but in performing that balancing your essentially ignoring the defendant's interests so as i said it was a one sided balancing test and the court clearly erred in holding that it that mr harris's interests were not in title anyway and i go to the first issue just briefly excellent your brief acknowledges that in johnson there is a state that defeats your point and you call it  please the court my name is jennifer to sherry and i'm an assistant united states attorney in the southern district of new york i represent the government in this appeal and i also represented the government in the revocation hearing below your honour's hearsay was properly admitted in this case for several reasons first the rules of evidence do not apply in the relaxed setting of a revocation hearing under rule eleven zero one d three second the sixth amendment confrontation clause does not apply in this context and third the district court correctly conducted the applicable balancing test that is set forth in williams so the district court weighed the government's interest in not calling the victim in its showing of good cause for doing so and the reliability of the proffered evidence against the defendant interest in cross examining and here the district court properly found that the victim statements were reliable for several reasons first the victim made her initial report of abuse on the evening of the same day that the assault occurred she actually express your honor so on page ninety of the appendix the district court specifically stated that the defendant interest was entitled to quote very little weight because he had caused this situation so the district court clearly considered the defendant interest but determined that it was outweighed by the reliability of her statements and also the fact that the government had made diligent efforts to call her but she had a well founded fear of retaliation because she had been punched in the face in public and continued to reside in the same neighborhood as the defendant and i just wanted to clarify also this was not just one small assault this is a woman who was punched in the face and public as i mentioned and so the district court properly balanced the government's interest against the defendants interest and determine that the government's interest outweighed it consistent with williams and also the procedural requirements that are set forth and federal rule of criminal procedure thirty two point one b to c i'd also like to address your honor's point about the statement in johnson in general i'm sorry judge newman's point about the statement in johnson concerning section thirty five eighty three d to the court six justices of the court just stated that a district court may extend supervised release under subsection need to before revoking it under  subsection e three and decided to retain that language over the specific objections of justices thomas and kennedy so at best johnson forecloses harris his argument that section thirty five eighty three is but a menu of mutually government's position today is that under newdow versus peterson a supreme court dicta is entitled to quote great deference and i expect that the government will continue to adopt just to touch on several points the government's correct that the district court found that my client's cause the complaining witness not to be present and based on that accorded his interests local very little way can't rely on the charged offense conduct it has to be demonstrated that the defendant did something above and beyond that would seek to interfere with the testimony of i'm d problem with relying on the charge conduct the requires the court to in advance of the hearing basically find of the defendant is guilty of the charge conduct you're basically making a determination that he did in fact assault or before you even reach the question of whether or not hearsay should be well i think that factor would go to the question of whether or not the government had a good in a compelling reason for not not for abuse that there that this is a balancing test i enjoy now arguing that it's a matter of law couldn't sit at the state with respect to the issue of whether the defendant had forfeited his interest i would concede that under those circumstances you have a more compelling explanation for why the government wasn't producing  i want to touch just basically base quickly on the issue of the witnesses reliability because what the government has argued again and again is that this witness repeated the same story three times over again and that makes it reliable the testimony was that she had started consuming alcohol twelve o'clock that day and continue consuming alcohol through two o'clock in the morning when the incident occurred and by her own statement to the investigators she was twisted or severely intoxicated at the time the alleged assault took place the fact that i said your honor she relied she completely ignored the defendant's countervailing interests and that analysis of course if you're looking at one side of a scale and you consider what's only on that one side of the scale the court is going to come down on the government's side because she said you forfeited your interest you don't have a valid interest in cross examining this so it was untrue he had any compelling reason to want to cross examine this witness because for among other reasons the questions about her reliability this