your honors the district court erred in two main respects in this case the first was through its ruling that ordered de to testify to a close circuit television in this case and that was an error for three main reasons the first reason is because the district court was required to hold an evidentiary hearing to determine whether he was actually unable to testify for one of the reasons articulated in section thirty five zero nine and simply didn't do that in this  case the second reason is because even assuming the district court wasn't required to hold that evidentiary hearing it was required to or to make very specific findings under the supreme court precedent and under section thirty five zero nine and it simply did not make those required findings and finally with respect to the confrontation clause ruling the rulings that the district court did make even if they could be construed to be considered findings simply weren't adequate under supreme court precedent and section thirty five  nine the second reason that the district court erred was that through its ruling finding that mr i leads to prior convictions constituted crimes of violence under the guidelines i like to start off with the confrontation clause issue  this court is aware under maryland v craig the supreme court actually analyze the suitability of a one way close circuit television provision under maryland statute in that case the supreme court was very clear that  before actually ruling on whether that would be appropriate in allowing a minor to testify through that procedure the district court has to yes the district court has to hear evidence the government concedes that the evidence you're hearing will crime it is applicable to certain to a certain provision of the section thirty five one statute and i think that the eleventh circuit in gates which was cited in our brief indicates that in the only that's applicable circuit court decision that's actually considered this had on the evidentiary hearing requirement is a strict requirement the district court must actually hold that i've been in jury hearing i think that's clear what is that the evidence you're hearing requires in the plain text of craig where the district court actually held that of an inch or hearing and the supreme court announced we're not going to specify the exact prerequisites of this exact evidentiary standards that must be met but it's very clear that the district court must hear evidence and if it's only receiving affidavits that are completely one sided without the opportunity to test those assumptions and those conclusions that the individuals who are submitting those reports even if the evidence you're hearing requirement didn't actually require an in court hearing where the district court was receiving evidence and providing for cross examination which we would maintain that it does the district court didn't make the required findings and i think it's very clear under what additional findings would you have written court order which may not be set out in terms of actual findings one two three four but what what would you have thought should be in there that wasn't in there well if you findings i think that should have been in there i think the key one wishes are quite under craig is that the trauma or the fear that the district court thinks is present has to be more than de minimus and i think it's clear from the district court's oral ruling as well as as it's written ruling that while it did specify that  he was fearful it didn't specify the quantum of fear whether that fear was more than de minimus and also didn't separate out whether the fear whether the whether d was actually unable to testify due to fear of mr  or whether that was due to fear of or trauma of retelling the events or the courtroom courtroom generally and there was plenty of discussion in the expert report as well as at oral argument or at the pretrial conference on that issue whether it's the degree to which you can the court could separate out the fear of mr ali specifically being present in the courtroom versus the general generalized trauma of being in the courtroom and being forced to testify  i think that that another finding that it should have made is that the simply was unable to testify i think that the district court found that he was frightened that she was distressed that she was afraid of the defendant and that's an e r three eighteen that being in the same room would be an emotional trauma but did not actually find it specifically find that he was unable to testify be due to fear or unable to testify due to trauma so i think those are very specific findings of the district court had to make under craig and also under section thirty five zero nine and simply didn't make even if we could consider the district court's ruling to actually constitute findings of fact i think that those findings were erroneous the district court found simply that the television procedure at issued in thirty contemplated in thirty five zero nine would somewhat mollified by the defendant's fear or the trauma that the defendant would cite that d e would under undergo or experience by testifying but it did not actually find it did he would be unable to testify and that video procedure would be the only way that she would be able to testify  second with respect to the crime of violence first ruling i would we would argue the same points that we made in our brief which would be that the the district court was relayed to the district court in this caters in this case was the court where from the briefing the victim was eight years old she was abducted she was dragged into the defendant's valves she was only penetrated orally penetrated and he looked a the victim's mom realized that she was missing and she went to the house looking for she was where the defendant previously molested two other family members and she knew that he was a registered sex offender when she went to the house she found the child she had laid out the child's clothing the child's clothing was different because the shirt was on backwards within ten minutes of finding her daughter the victim broke down and disclosed what had happened that the defendant namely penetrator based upon that information the victim's mom took it to the police department and then brought it to the hospital at the hospital the victim met with the registered nurse who conducted the rape kit at that time the victim at first appeared to be ok when asked about what happened she began crying she told the registered nurse that the defendant had threatened to harm her if she disclosed what happened after that point in time as the case was developing for the district court the government filed a motion to thirty five zero nine to allow the victim to testify by two way television cameras the district court was where the following facts the district court was aware of an affidavit prepared by agent worth in which the victim's mother stated that she talked with the victim repeatedly presumably a mother knows her child but than anyone else and the victim stated she was very scared of the defendant and the victim mother stated that the victim would be unable to testify in a court room if the defendant was present the district court was aware of that the district court was aware of the registered nurses information and that the victim told her that the defendant had threatened to harm her if she disclosed the abuse part of the records from the registered nurse who are also provided to the district court which detailed or documented the diff the victim's demeanor at the hospital and how she began crying hysterically during this procedure at the that she had spoken to her daughter her daughter stated that she was scared of the defendant dr muscatel asked this young child if should be able to testify if the defend it was in the same room and the defendant then nodded her head no and said that she was scared so the district court had all of this information available when making a determination whether or not the victim was scared if she'd be and would she be able to testify in court but in addition to all of that facts just as in the us i think that counsel a knowledges all of that but his point these would be the statute was simply whether if you have an expert report or affidavits do you have testimony and meet the requirements of the statute  appreciate if you could address your argument to that point absolutely your honor and i would submit the based on the answer to president the answer would be no the as he case was a consolidated case mystery as you mr george where the government moved to close the people probably meant the answer should be yes i'm sorry put all the district court was provided by the parties or all the strike that all the parties provided to district court were the forensic interview recordings and in those two cases those two district courts reviewed those recordings and determine that it was appropriate due to of the child the close the courtroom in this case the court had all the information that i had to discuss in addition the government provided the court with a copy of the forensic interview from august first in which the victim broke down crying and needed her mother and we also provided the district court with a court determined that under thirty five zero nine b one b that the only provision that would require expert testimony would be under provision b one b two and an under b one b one which is the fear of the defendant this court clearly after reviewing that statute determine that expert testimony was not was not required in response to a defense counsel statement he indicates that the yates case is head on in regards to this case the government's position would be that the aids cases clearly distinguishable in the present case were talking about an eight year old child having fear of the defendant in the gates case that involved adults who lived in australia that were involved in some sort of fraud case and they simply did not want to travel back to united states to testify so the government would argue that the facts are clearly distinguish  a prior conviction under twenty two forty three was a crime of violence so it's the government's position that the district court was required to follow the ninth circuit president and determine that these prior convictions the two parsecs convictions involving children who were crimes of violence what about beccles just mentioned beccles i can discuss but i could johnson in beccles it's the government's position if you like to start with john since that's what defense counsel addressed that was in regards to the residual clause or the potential for a risk of danger it's the government's position that here the sexual assault of a child doesn't concern the residual clause this is the use attempted use or threat use of physical force in my briefing i discussed the second circuit laos case which determined that under this statute although force is not defined force is required to commit sexual assault of a child or sexual contact with a child because you have to have that contact in order to sexually abuse a child so force is necessarily required in order to make that contact him regards to beccles whether this is an elements or a means t it would appear that looking at the statute this would be divisible statute but this court has determined that crimes against children sexual assault forcible sex offenses are pursuing a crime of violence thank you thank you  not always required yes he was materially different from from the case we have here in the as the court was not interpret in the confrontation clause it was actually interpretating it was actually ruling on a courtroom closure motion whether the court could be close to the public during a certain specific portion of the testimony the court was not interpret ing the supreme court's decision and craig which which had the confrontation clause issue set squarely before it and in fact  the ninth circuit court stated that an alternative to closure would be video testimony through to a close circuit television and it also noted at page twelve ninety of that decision that that close circuit testimony would actually material of this materially change the nature of the proceedings and so i think that the court in the as he actually contemplated that a closure motions materially different that the considerations are different in a video testimony motion and that the the supreme court decision in craig actually requires an evidentiary hearing and i think that it's clear why if we look at this case because we look at the government sites to asian or three affidavit where he he recited numerous conclusions that he was drawing based on his conversations with the mother that's exactly why that mr ali requested an evidentiary hearing in this case simply to test those conclusions in the statements that asian or it was making there's no way to test just if we proceed by affidavit for example when did the mother say this to agent north how does how does she know that he is very scared that she had any subsequent conversations those are all questions that the fence counsel would have asked to agent north if it had been permitted to hold that have an in hearing with respect to the crime of violence issue the government's reliance on the grand voice decision i think for the reasons that we stated in our briefing is just an absolute here i think that this this court's subsequent decisions after grand voice have indicated that the per se crime of violence analysis just doesn't apply after taylor and that the taylor analysis in that categorical approach requires that we we analyze each conviction on a case by case basis and i think when we do that we see that the prior convictions that mr lee was convicted of simply didn't involve the use of force and i think that that's clear either using the categorical approach or even if the court were to look at the underlying documents  and with respect to the beccles decision we would rely on the arguments that we made in our briefing i don't think that the district court or the government actually ever relied on the residual clause below and if this court  were to analyze the effect of the holes on this case i think that the proper approach would be to be told that that simply isn't applicable here because of the government's waiver thank you thank you thank both of you for your argument this morning united states versus ighly is submitted