jury about whether it was he who put it all for that and did it but that's not really a question of whether it was offered propensity or not that really you're really disputing what happened and that is what i think charge assault case seems like our court and many other circuit courts have routinely said that is proper for all for be for intent can use it with a case which involves the same victim an assault case where a court has said that was improperly admitted i do not however i would like to discuss the case because although it did involve the same victim they start smacking each other around because they've been drinking too much well that's all you need to do to bring it in but let me let me go back to what you just said because it seems to me the government had to improve had to prove intent here and the defense in this case could have been as the trial went through well look there just goofing around this horseplay you know it's not an attempted assault but the fact that every piece of history of drinking and then started smacking each other that would seem to me to prove his intent on that day at the park was not horseplay it was to ask around an assault or so it seems to me that it's just more evidence of that when they get drunk he hits help me understand why that is proper and it shows that in these situations he likes to hit her why isn't that immiscible and head evidence in this case think about it let's go back to the way i don't think so these people are completely out of control think about all these people who are drunk and he's probably the only intent maybe that he would not fall down after having drinking that much  they are but in any event let's also examine the fact that maybe this was simple assault here but the intent to is yes you know in a way he case there was no weapon and there in that incident was an e r that incident that he would say i'm going to kill you or something similar but yes i mean they were screaming and yelling like that but that you know those are those are the kinds of think people say that kind of thing all the time that doesn't mean that there was a the wife sees me that night you know when he was supposedly have is or i'm over and i think it's also important to mention you know i don't want to forget about the red marks on her neck  was charged under specifically say strength up a strange elation regardless of whether that conduct result in any visible injury or whether there is any intent to kill so i mean the red marks doesn't matter there were red marks there were red marks if seems like by what this argument is the question is did he was there evidence to suggest that he knowingly impeded the normal breathing or circulation of the blood and i mean are you really c he didn't testify that he was having difficulty breathing there was nothing like that and it's not enough to just say you know put his arm across her chest or through a stretch mean you still have to go through the elements of the statute and that is and that's that because strangulation has a specific definition but when i met him you made i'm assuming you made the argument you're making to us before the jury and the jury didn't agree so i mean i don't understand how i just don't understand the position that there's absolutely zero evidence that you know he knowingly impeded normal  please the court system united states attorney michael album is on behalf of the united states jump in and address the four hundred and four b argument which counsel referred to off the bat i think that  council's arguments characterization of the two events the waikiki incident of the new jersey incident are not supported by the record when the record is analyzed and the testimony that was given it's clear that brought in just with an intent to harm there doesn't have to be strangulation involved in both in the in the prior with i say prior bad acts but actually these two incidents occurred after the incident when she was charged is that and still it's sufficient that the prior acts are relevant to that element but i believe that there's at least with regard to the like he incident where the testimony was that the defendant grab would support an intent to strangle but i believe it is the intent to cause bodily harm that is shown clearly in both incidents well there's no evidence as to how the the skirmish started the evidence that does come forward is completely one sided the st impression by the lifeguard is that the miss benson is flying backwards from which it could be inferred that she was shoved or whatever and then when she rushes back to the defendant he grabs her by the neck and throws her down and there's really no evidence to say that she started it or that it was a mutual fight and then the new jersey incident is much more even more stark in the defendant's intent where the officer observed the defendant on top of the the victim and swinging downward with his arms as if to punch her and and he did indeed yell  i'm going to f ing kill you you f ing bitch so he's clearly he's stating his intent in that purpose now we don't know whether he would have carried out that threat to its ultimate conclusion but he clearly demonstrates his intent to cause bodily harm and that's sufficient to pass for a four b n scheme now under different facts that the argument that these incidents would be more are substantially more prejudicial could be well taken but not here where the intent evidence is so important and i believe judge owens nailed it when he said that without such evidence the jury could conclude that they were horsing around or that there was the jury does get that picture into how the defendant feels about his wife and what he intends to do to or when the situation arises county there there there is a line of cases that says the fact that a victim fails to react a certain way after being assaulted is admissible for a whore be here's what i mean by that in opening statement defense counsel said suggested that after the assault in the park the victim just kind of sat on the bench and just carried on as if nothing had happened and there are some nights are good cases one is called sin jinny i think and then there are a bunch of other cases from other circuits that say the fact that a victim doesn't respond how you might expect someone who's just been punched to respond you can introduce prior bad acts of previous assaults to explain why she's been taught essentially keep your cool don't fly off the handle or he's going to hit you again i was i didn't see that argument made at all in terms of the admissibility of that these acts i just want to make sure that was not argued in this report as an as another way to admit this i was not argued to the district court the evidence of the the victim's behavior post assault obviously dig come in was in front of the the jury and that was one of the bases on which the government sought to introduce a there's still a very important facts specific inquiry but reality where you have a history of domestic violence particularly where it's one sided where escher and a victim it's hard to imagine circumstances in which those prior acts would not demonstrate intent to cause bodily harm and if indeed that the case or that the count at trial involves that material element then i'd say in the the vast majority of those domestic violence cases it would be admissible subject to four o three and i think that the the quote from the th circuit and johnson which we quoted are really sheds light on that and explains that kind of the modern thinking about domestic violence is that it's a it's a story that involves periods of aggression and periods of reconnection between on a saillant and a victim and that that this prior act evidence is directly  that relationship and the defendant's intent to dominate to control and indeed cause bodily harm so there is not a line between saying this is a person who beats up his partners character trait of general violent disposition is certainly a character trait that would not be appropriate appropriate purpose to introduce another act evidence but how one person feels about another and how is actions are intended to affect that person is not a character trait it would be a different calculus if mr berkman had beaten other partners in the past  separate girlfriends and then we had some to attempted to introduce that in this case and i'm not saying that that would be inadmissible i'm just saying the calculus would be different but it's hard to imagine when you look at the  circuit for step tester for element to say how is this l to say how are these other x not probative of his intent to harm or they really are and then you just have to get to the  point well are they substantially urged the risk of unfair prejudice substantially outweigh the probative value and that's going to be fact specific here it was not an abuse of discretion for the court to find that the  was met because we had a case in which the victim did not testify in which there was no medical evidence of injury because the victim was uncooperative and you were interpreted in the observations of two eyewitnesses albeit unbiased unrelated witnesses but two eyewitnesses who were standing some distance away and so in those facts intent was a critical element of the court is a further questions on the role for b p s well simply just just highlight that in and looking at the facts in the light most favorable to the government there was  throat and that he leaned forward from which the jury could infer that he was applying pressure or at least attempting to do so and you had that characterization by mr janowicz which do you feel and mention where she she was describing what she saw and she said it looked like it looked as though he was strangling her and that that evidence came in and whether or not an objection should have been made or should have been sustained and the time is not before the court that is part of the record in deciding the sufficiency evidence the court can also look to the forum for be evidence of the defense intent that the court can look to the verbal the yelling by the defendant and his wife that preceded the incident akhalaia in which he stated let's do this right now and acted aggressively the court can look to his actions with the knife threatening her with that and and i believe that the i mean the red marks on his fenton's chest i think are subject to some different interpretations in light of the defense evidence in this case but in viewing that evidence in the light most favorable to the government the court can credit that the fact the government does not have to prove that a completed strangulation occurred and the definition includes an attempt and so just be the observations of the eyewitnesses here are sufficient under the standard of review to sustain the conviction in the government doesn't actually have to show that there ever was and impeding a normal group just that there was an attempt that's correct your honor and  that's certainly evidence of certainly sufficient to do that here and i'd all turn to the court if you have any questions on the other major areas raised on the harm based upon the state and sent both of these witnesses made the police which were completely different for when they testified to which you know by the time they testified together on the government's theory of  not no weapons and no evidence strangulation coming in and order to get the government the conditions that it wanted in this case was really a case of simple assault case and with that i believe that we are in recess for the rest today thank you