instruction issue then i'll get into a discussion on jurisdiction and the other issues under the statute and if there's any time remaining against this dancing at a minimum for a new trial must be order here to the district courts refusal to give a jury instruction on involuntary manslaughter as a lesser included offense of the murder charge the law in the circuit is very clear if there error not to let me ask you that cause it i suppose if i were the trial yet in this case i would have given that instruction you haven't is it pretty  for the instruction i mean not much there very thing here's my question we keep saying and i cases over and over whether to give an instruction on a lesser included  just come into my world for a moment pretty you know like i'm off in the eleventh circuit or where we want to call it pretend how do we deal with that if that is the standard how do we deal with that in this case that jerk could possibly have found that this was an accident or an intentional act on this aren't a part she she she testified specifically that she wasn't aiming the one thing right so whenever that's true it's an abuse of discretion  she wasn't even the nice anywhere and she in fact stabbed her husband then that would suggest a lack of incentive on her part that this in fact was an accident and certainly based on what she also described as what was taking place  that's her husband who was unsteady on his feet he was drunk he had a blood alcohol content of point two six he had difficulty standing when he he needed assistance when he came to the house they were in the midst of the fight she went to the kitchen  and she was holding a knife and the next thing you know she said the knife was in his chest we had testimony from a forensic pathologist who said that that is certainly concerned that those events are consistent with the trajectory of the of the wound that he in fact could have been falling over into the knife where she was holding it that would certainly suggest that this was an accident certainly unintentional and if that's the case then the instruction has to be given and therefore at a minimum  military extraterritorial jurisdiction for me just for a short underneath in order for the government to establish extraterritorial jurisdiction the government was obligated to both allegedly indictment and crew the trial well it's like strictly to thirty three sixty one which talks about the element being a company on forces outside of united states the definition for that however does not appear in that statute that appears in section thirty two sixty seven all right well that's certainly true but the stipulation was her residence was in riverside california but part of the i don't think she came back and then she was one of the things she was mad about was that the nursery wasn't ready for the baby in the house with a man well that's right and our position is that this certainly could have simply been a visit and even if it were a visit then staff sergeant mark would have made up a room for the baby to also testimony that prior to the actual stabbing she had already made a determination that she would be leaving that she was one of these things longer there so sort of a she didn't consider that that was going to be her residence there was no suggestion of any permanence on her  but if i can get back to whether or not the government sufficiently alleged recession and this is where what i think is key the there was no jurisdiction in this case unless the government alleged the extraterritorial jurisdiction of the act this this is unlike simply an essential element of the offense which in cotton the supreme court said well that's not really jurisdictional here in fact we are dealing with something that is actually whether or not she was confused just for the jurisdictional argument the government is not excused from alleging an essential jurisdictional element in the offense and for that i would refer to cotton where cotton where it distinguished between what your station is this is the the armed forces then jurisdiction can be found in a district court and you know with that some of the court as an additional questions on the issues involving this that you don't move to the consider those are proper factors to consider in context though here well essentially what the court was doing was ignoring the sentencing commission's development of the sentencing guidelines a sense of the court ignoring the sense of balance because obviously conviction is the fact somebody was killed i mean is that the court basically said if this is this is voluntary manslaughter it's horrible voluntary manslaughter because it's so close to being murder that i said was if this is you know i've looked into this case now listen the evidence and this is voluntary manslaughter wow this is a really bad voluntary manslaughter and for that i was that you're right that's a clearly erroneous finding her this was not there was nothing hints about this act it was a single step and that even if it was an intentional act even if you rejected what the jury found it's still a single stamp and there was nothing particularly heinous about this prime this was not some some ridiculously harsh murder that's what place here it was in the course of a domestic dispute a single stab wound struck her husband and that was how how this right rises to the level of some type of heinous murder that was just way rises this way there are a lot of voluntary manslaughter that are brought on by very serious situations the person is an abusive spouse he beats on her every day he's done and when i get piers to me that there was some evidence from which a rational jury could have found involuntary manslaughter as  in that circumstance why isn't the defendant entitle to the benefit of their instruction the standard that the district court applies in determining whether the jury instruction is warranted on appeal the standard of review that the support applies is abuse of discretion how does that fit together i mean that's that's that's question because if the district court apply the standard that i described that applying to be incorrectly that is there is no evidence when we look at the record and we say yes there was why isn't that a legal error on the part go what we end up with is a defendant who was entitled to a lesser included instruction and didn't get it and why isn't that a bigger problem than fiddling around with the standard or review or what we used to describe  well and the standard of review as articulated in the roston case is a highly deferential standard to the just reports the termination as an answer the question what what happens to the defendant we we make the district court judge and we say well you made a mistake but it's ok but then the defendant never got the instruction to which she was entitled if the district court did not abuse its discretion even though reasonable minds might differ on the  if the district court didn't error to the extent that it amounts to abuse of discretion the defendant is stuck with the verdict well let me put it another way if we look at the record that the district court looked at said there is no evidence the district court was just wrong when it said there wasn't any why isn't that an i mean if you want to use your term analogy why isn't that an abuse of discretion to deprive a defendant of an instruction on a lesser included  offense on a mistaken understanding of what the record contains well on this record or on of the government agrees with the district court and does not believe that there was any evidence that's your sliding away from my question if i understand that you don't agree with my reading of the record but if it is correct then why isn't it an abuse of discretion for the district court to make a mistake about whether the convinced that the district court committed an error of judgment that standard is applied in a wide range of circumstances for example evidentiary determinations reasonable minds might differ on whether evidence should or should not have been admitted me but that is not the question the question is whether in making the decision that it did that the district court abused its discretion precisely and that's easy so you have a case like this where you have this other matter of a minute but there's something she said well you know i was sort of waving around and i remember everything distinctly except i blacked out at that very instant when the stabbing took place i certainly can't remember anything about the stabbing i mean before and i going to tell us why it was not improper in this record to refuse to give the instruction that there's some evidence out there yes your honor well first of all let me just reiterate the government disagrees with the assessment that there was some evidence and the expert witness testifying about theories about how the victim could have suffered the fatal injury is not sufficient evidence to warrant instruction there was no evidence admitted about how the stabbing occurred in an accidental fashion the defense did offer up this theory through the expert witness that the victim could have somehow lunged on to the knife but that is completely contradicted by the actual evidence about how the stabbing occurred which was presented by the defendant herself the defendant testified not only as your honor points out that she remembered everything leading up to and everything after the stabbing but does not mean number the stabbing itself which is essentially no evidence about how the stabbing occurred but she also testified that first of all when she said that the defense or the victim crouched as though he was going to punch that meant that he was bending his knees a little bit she didn't remember him even bending forward at all right after the stabbing was completed she testified that the defendant and the victim were both standing her testified that she didn't do this on purpose she didn't mean to standing on that to the contrary on her she never testified to that her testimony was i didn't want to fight him i wanted him to leave she never testified that she didn't mean to stab him she never testified that the stabbing was an accident she simply said that she didn't remember how the stabbing occurred to stand so many things that he was slapping her and  disbelief that she said they were having a fight and he does believe that and you know i think she said that she didn't mean to do it while she but she didn't testify that she didn't mean to do it she did testify that there was a fight leading up to this and she did testify that the victim hit her several times as your honor points out and all of that testimony even though the district court disbelieved her is what justified the voluntary manslaughter instruction under a theory of provocation or imperfect self defense but nowhere in the record is there evidence that the stabbing was accidental or unintentional in fact her testimony on that point simply was she stabbed him and that she did not recall how the stabbing occurred her inability to recall how the stabbing occurred is a lack she after the stabbing occurred trying to save his life she telephoned for help after the stabbing occurred yes your honor she talked with him two men sitting on yes your honor here in the telephone call she the telephone operator heard her saying stay with me baby but again her hurt her statements about after the offense her statement stay with me baby and her other comments to that effect while the demonstrate perhaps remorse over what she did that itself is not sufficient evidence that the stabbing was accidental to warrant an instruction in fact in raw sound her testimony that she didn't mean to kill  but not kill him in other words evidence that she stabbed him not only in the chest the she stabbed him directly in the heart with tremendous force and this case is very analogous to the rostand case in the boston case there was evidence of a physical altercation between the victim and the defendant there was evidence that the victim in the defendant were not getting along leading up to the killing and there was evidence well actually the victim died by going overboard on the ship and drowning after the victim went overboard and drowned the defendant called for help just like the defendant did in this case now in rajasthan the defendant didn't testify at all but in that case the defendant argued for a lesser instruction on voluntary manslaughter on a provocation theory the rationale that he offered was if there was evidence that a physical altercation occurred between the two and a jury could possibly find that a physical fight between two people is adequate provocation to warrant a voluntary manslaughter instruction this court in deciding roston agreed with the defense that a physical altercation could possibly provide adequate provocation for voluntary manslaughter but when the court looked at the record it found that there was no evidence presented that it actually did result in provocation and mackie's in the court under the abuse of discretion standard deferred to the district court's judgment on the state of the this was an unintentional lack is that perhaps the victim flung himself under the knife perhaps the victim charges it her or lunged into her him the process of punching her and impaled himself on the knife but when you look at the trial record there's no evidence that that occurred the defense expert speculated about different ways that this injury could have been inflicted concerning the direction from which the knife may have come but that is not evidence that that's actually how the stabbing occurred the defendant testified that she didn't remember the stabbing itself so there is no evidence about this stabbing occurring in any accidental fashion and to the extent that their experts speculated that the victim might have flung himself under the knife there is no evidence that that occurred and the evidence that is in the record directly contradicts that theory if the court disagrees and does find that the district court abused its discretion on that issue then the government does agree that that provides a basis for reversal and there isn't any need at this point to get to any of the other apply the same standard of review that it does in all other sufficiency of the indictment cases to a jurisdictional question there the crime occurred on an indian reservation and the defense challenge the sufficiency of the indictment on the jurisdictional issue concerning the victim and defend the indians in the crime occurring on the reservation and the same standard of review applied there is it does and all other cases here since the defense is raising the issue for the first time on  appeal me the standard of review is plain air and first of all as the government argues in its briefing the government does not believe that there was any error at all as your honour's of pointed out the jurisdictional element in this case is that the defendant was accompanying the armed forces and the indictment does so allege however even if the court were to find that the indictment did not sufficiently alleged all of the factors to establish a company in the armed forces overseas reversal on the sufficiency of the indictment is not warranted because there was no plane air the defendant's rights as substantial rights were not affected well i think in the jur question we don't really go to clean air i see that the indictment can be cured by the evidence but jurisdiction stands in a different context all of the jurisdictional elements so as your honor points out if there is any deficiency in the indictment itself that is cured by the evidence and the jury's finding on the wrist to shouldn't  honor as cited in the briefs that in a situation such as this where the victim is deceased and family members of the victim have to come forward and participate in the proceedings essentially in the place of the victim that it is appropriate to award restitution for the lost wages they came to the clown but they didn't participate in the feedings in that other than just coming to the cloud there's some cases i think where they have helped with the investigation and done and part of the restitution award had to do both with their attendance at trial and also their attendance at the sentencing proceedings do they actually testify or just put in letters and now they did actually testify or on or at the sentencing