it please the court my name is paul turn around the federal public defender office for the district in nevada this morning to represent in cannistraro i would like to reserve two minutes for goggle i will certainly watch my clock but if the court in any direction might like to give me i'll be happy to take also as i as a quick housekeeping item late yesterday afternoon when i was looking over the case i happened to suddenly realize that in the excerpts of the closing argument in the one nine hundred ninety eight trial  second trial that five pages were missing i checked with my office those pages were not in my office however someone went over to the courthouse and found the pages they should have appeared after excerpts of record fifteen seventeen and before excerpt of record fifteen eighteen and their pages one fifteen through one nineteen i have them here this morning i showed them to the counsel for the state i don't know if i could possibly tender them to the court now whether i again all of these counts indicate that some object was inserted into the vagina of the victim to have them specifically indicate sexual intercourse all the case was tried under the theory that sexual intercourse that occurred female genitalia well that may be from medical perspective that may may be true it's not true perspective of the statute or or of this charge of the statute does indicate it's interesting the statute when it defines sexual intercourse acknowledge that if there was any penetration of the female genitalia it would be sufficient to satisfy the statute if proper life just sorry would be i think if under the statute if that particular section of the statute was was used in the information it was not that portion of the statute this think that it could have been alleged in a more general manner it was not it was alleged very specifically as to what was supposed to have happened here and it was very specific each count speaks of an object in the vagina to have them moved to amend he could have moved to amend really at any time up to the case going to that to the jury well that is also a gay player as long as he gave fair notice to the defendant that it was going to move to a man it did not give any fair notice and never it never moved to constitutional purposes in that case but seems generally to say that doesn't really matter that that that's something that has when you have a general statement and then a more specific to which kind of a statement that there isn't necessarily a object they say then to which sexual intercourse they just go right to the bottom line sexual intercourse right what do we do with the patient what the state court key case here as interpreted by this course this court excuse me and shepherd be released there just the court is wrong when it when it concludes that the that the theory of the government of the state was not changed it obviously w no penetration but merely a rubbing of the of the genitalia my problem is that i think that you quoted selectively in that your brief you say this is not a magical sexual int put his penis between the lobby up between the lips up against the hymen or at least that was the theory that the government was per person pursuing and when right in context it was not majority just like if you said somebody is right on arm you'd mean their right arm i mean i mean i think that's a fair logical reading of it if you said their head you mean their head john is that is an out of a piece of anatomy it's not some vague term i what they said happened was home defense was actually that nothing happened well sort of fence what was that the the the lady was the young lady was lying and it was impossible that she said she and that was a fair defense appropriate defense to make it but when  suddenly the government the state starts saying what she said isn't true he did at the end there saying well sure she's a she's really didn't mean that they backed way off their own witness because they realize they're losing this case and they come for a new theory that their witness although wrong it's understandable she's a child that's not the way that they played this case that's not the way they pursued this case he had no chance to descend on that basis his defense could have changed dramatically if that if this was if this was the type of case that they closed with he would have had a different the word intercourse appears in wistfully constantly and the statute says intercourse in its ordinary meaning ordinary meaning suddenly that word disappears in the in the closing argument of the second trial you don't see that we're any more it's more  quite a bit mr shier didn't get a chance to defend itself a very serious charges he deserved a chance to have his day in court his whole defense was turned into a joke can you imagine how his lawyer felt sitting at that at the table and suddenly your defense is a complete farce because you two questions they and dykeman does use the word in china and it also uses the word sexual and of course the there's no statutory problem here that's plain but the question is is there are not does are those words in the when your proofs are that at best he inserted his penis in the labia well you know and that goes to the definition that the experts talked about the defense's expert as you pointed out earlier clearly said that the general understanding of that term like vestibule up to the heinemann and that was the whole point of the expert testimony saying that there was rubbing on there was a thinning of the hymen that could only be caused by rubbing of a penis against that hymen so i think that clearly put him on  satisfied by merely showing that there was some penetration of the genitalia is that your basic position yes you're right he was in the list that he was being charged with putting his feelings into his daughter's china and that's conclude that well you have to prove that he entered the vagina i think he was on notice of that your honor i don't think that it could have happened i don't think that that this although came out closing argument is consistent with the information and does not constitute either a substantial variance for an amendment to the court found also that the variance as as it was stated and as the district court the federal district court judge created even if there wasn't a variance you have to determine if the defendants substantial rights were affected by that very honest if they were it's it's rights for not affected those are two things that the purpose of the information was he fully informed that you know what he was being charged with yes is there any possibility that he could be subject to a second prosecution because of what was stated in the information   he couldn't be so based on that there was no substantial creditors to his rights i'm saying that his so he was fully informed of the charges against i'm not sure how we could more fully inform him i'm not sure how the quest for the prosecution could have done that the alleged sexual assault sexual penetration sexual this course and insertion of the penis into his daughter i've totally forgotten yet that although the expert indicated that there was sort of some people in the community might interpret vagina more broadly she said that's wrong it's wrong to put a man in prison for the rest of his life on one point something like that that's wrong you said they had if they had a full earlier trial the rubbing never came up none of the stuff they had a whole trial if everything was so simple and straightforward why in the world didn't it come out in the first trial obviously an awful lot of people including you say his defense was that never happened you therefore never got into a debate about what happened because he said never happened and i'm under stand what you're saying your honor but but it seems odd that the state would find this very simple but it would only become simple ninety eight percent of the way through a second trial then it becomes