such does not apply is that right that's correct you are so from whence are you getting i understand some form of appearance or presence is isn't assumed as a matter of your process but confront mean well if if anything can confront means what it has always meant that faith means face to face confrontation and although we don't have any case law in the due process clause so against him unless that right is a breach of showing a good cause and so what the judge also up here seems to have somewhat bent over backwards to come to a resolution of the competing interests here and what part of the chime of the testimony was the victim not in the presence of the defendant a very small person ten a ten percent of the time or something like that it is it is true that he was our side of the courtroom and also obviously outside the presence of the of the accuser for about ten to fifteen percent of her testimony however that was the portion of her testimony it was the portion where she actually described their alleged sexual encounter that was at the heart that testimony was at the heart of the  here if you can see somebody directly while they're talking on television they difference is kind of small it might be small in your honor but courts throughout the country for example the crossing the courtroom has no equivalent you know in these electronic in these remote mode of communication that a circuit and then the eleventh circuit the later united states have both refused  to equivalent in the face to face confrontation through with these remote confrontation really except there for the sake of argument but what exactly did the victim say when she was not face to face as you're defining it with that was material that the court relied on the information that she was under age and they had sex came out while he was present know that said well why are you in fear of the defendant and she said i don't know because he threaten you know thirty five zero nine you are expressly asking us to find that thirty five or nine ties in a way that the nothing us but more importantly i i read that in your brief there supplemental brief that you just filed and thank you very much for doing that quickly but there requires a good deal of speculation and with th traditional mootness is you can't speculate about what might happen in the future and there's no case it said sex offenses are different from the so so me there are not cases but i would say that also provides you an opportunity honors have been faced with a situation in which i gather that we don't know or you can't tell us that he will be subject to any sex offender registration requirement because us you don't know where he w rest of the country but might might my point your honor is that when it comes to sex offenses and when it comes to sex offender registration still if he story if our experience teaches us anything is that a some point probably sooner but i would suggest it is very likely it's going to happen is just the my thought of when but it will if you have what we don't have anything at all to say very likely it's going to happen that's the problem with mootness we have nothing in the record  do you have a case that would say that we can speculate that sooner or later these sex offenses are going to make a difference to this individual no case no record i do not have a case what i have is the past twenty twenty five years of experience seen you just got dramatic expansion of sec so i understand i understand we all have our views but when we get to say it's not moot because we can't say a lawyer said that it's going to go on we have to have something more stable because we would have to say why we can't follow palumbo we would have to distinguish i understand that that that would read that would be new i would cry i think really agree with you but i would also say that as a society as a nation we have come we have moved so far far away from the initial requirements when only people convicted of sex offenses were subject to registration we have more from that and right now we are already in a place where people who have never been convicted of also mentioned the case it even comes close to saying that that theory could be adopted even close what case would you rely on that then i would say because i do not have i have not i good morning please the court my name is philip cups and skin i represent the united states this case is moot your honors because mr king was released from custody in january and he is no longer unsupervised run if he were to read i understand pretty likely it would think it could but that a collateral consequence of the same kind that we can we concern ourselves with with regard to convictions well because the supreme court's had so in spencer that was exactly the facts of spencer spencer the finding doesn't make any difference so that was parole and this is supervised release which in this instance is part of the sentence and they and there are federal guidelines which  deal with the imposition of the sentence for violation of another it's a violation of the supervised release which has its own sentence it's not simply that it's filling out the earlier term  that he and that the federal guidelines give effect to particular to circumstances well a couple of things one under the guidelines this revocation wouldn't change anything for him in the future he already received a conviction in two thousand and eleven for this case that would score the maximum number of criminal history points so this would only be some sort of atmosphere of consideration in a future sentencing history here in the multiple revocations the underlying conviction it could all be in the mix but the supreme court squarely rejected that and in fact in spencer that defendant spencer had already re offended he was already back in the criminal justice system so it wasn't even all that remote of a possibility that this prior parole finding that he had committed rape would factory and again for him in the future in hurt him in a future case because he already had that case the supreme court said still no that does not amount to a concrete injury for article three purposes in a parole circumstance so all he is doing is being sent back to finish his previous sentence right yes and that's not true here yes true he gets so it's a several reasons for a separate offense basically well no this court has never said that supervised release violations or try and stop the offenses isn't the end my understanding of supervised release is the offense is not the particular offense but it's file and has the including mootness some of the cases we cited in our brief have have tracked spencer which was parole into supervised release there were more that we didn't cite including some one published and then of course more broadly this court frequently says including in january when it held that the fifth amendment does not apply to supervised release revocation hearings this court noted that probation and supervised release are the same number of patients certainly same there is no parole anymore in the federal system i think the point is parole supervised release probation or purposes of the procedure but that this isn't a procedural question i mean except in  exactly it's a question of what the consequences of  how much we should be concerned about the consequences for feed the future essentially and i think the other thing we have to keep in mind here is the defendant has not met his burden of showing any concrete consequences i just heard from my colleague  going to be expanded to include this is far from farfetched and we don't actually know what's true and in forty nine other states maybe we need to find out but the i think it is sometimes astonishing to me when we see cases what next week after we just messed this case california passes a statute or crying over to register then what is you can't come back no of course not and that smoothness moved this is a point in time as we stand here or sit here today is there any concrete injury before this court that this court could fix for him with a favorable ruling and in a week or tomorrow if things had changed that still doesn't matter this is a point in time it's right now and right now he's not  identified any concrete injury that this court can fix i think one thing i want to point out is in spencer there was a circuit split before that in the supreme court noted a case of this court called robbins v christians robbins was a case where a prisoner had been disciplined based on a finding that he used to list substances in prison and he spent longer in prison because of that petition for hate b s this court found that there was a collateral consequence under article three because his a lissett drug use that finding by the prison disciplinary authorities could be used against him in the future in employment and the court reason  that that's that's very plausible that a future employer would care about drug use and it noted some of the same things i'm hearing from the defense today about how drug use is an issue of the day and it's increasingly of concern to employers and there's drug testing and this court said five that is a collateral consequence that creates article three standing in the supreme court overrules that and spencer that was part of the circuit split supreme court takes spencer and goes the other way so i think post spencer with that history it is abundantly clear that the sort of speculation the defendant has offered does not suffice and i just ask the system for sake of argument we do reach the merits of course and section thirty five zero nine government points to thirty five zero nine in the trial court is that the government's position that if we reach the merits the court should say clearly thirty five to nine applies in revocation frankly it's a more rigorous model because it's based on the confrontation clause maryland v craig a confrontation clause case is the basis for thirty five of nine so it's more rigorous it gives the defendant more rights and the district court followed it here and it worked out well but but our position is it does not apply it applies to criminal trials and that's from the plain terms of the statute as well as that history maryland v craig what terms you're relying on i couldn't hear the in other words it might not be true in a child custody proceeding or something but that he was being the supervised release revocation was based on a new offense right here true  the revocation is based on a crime i don't we certainly wouldn't support that sort of selective application of thirty five or nine depending on the nature of the revocation hearing or the charged issue and i think there are other parts of the statute that that show that so it talks about a jury there's no juries ever in a revocation hearing it talks about giving notice of using the procedure a week before trial there is throughout trial thanks yeah no i believe it would apply to bend facts and therefore the reference or picture it can't mean very much someone else i think it's the sum of all those things as well as the history this court has previously said that thirty five zero nine was passed by congress mean a lot of things we think it's the other parts of the statute that help define what a proceeding is and it's it's a criminal trial but even if this court says it applies judge also clearly complied with it there was  abundant record for him to find that this witness was in fear she had actually previously described this rape in a forensic interview so she had experience knowing what it feels like to try to talk about this as a fifteen year old from a troubled background she knew how it made her feel and so when she talks to judge also been chambers after previously submitting a declaration and these months long process of describing it i believe he did if the court considers the whole record including that in chambers section i think when it finally got to the moment of allowing it he didn't at that moment articulate everything that had happened but i think he obviously recognized that there was this incredible months long record of this witness this victim saying that she could not talk about the details of her sexual intercourse with her  assailant with him sitting there in the room and then all that actually happens when she does that the judge is satisfied as he goes into another room still sees her through to a television talks to his attorney over a phone line but my understanding of the part of the confrontation protection that's being relied on here isn't whether he sees her it's whether she sees him and she does see him that's actually unlike marilyn the kreg in maryland the craig it's one way or the child doesn't have to look at the  court said that's ok under the confrontation clause here it's both ways they can see each other a large i think judge all subside it's like a twenty foot screen so it's clear they could look at each other