clock and try and save about three minutes for rebuttal if i may the revocation proceedings in this case suffer from three serious flaws the conditions that my client was accused of violating were impossible to comply with the main witness against my client at the revocation hearing had serious credibility and bias issues and the judge failed to articulate required reasons to support his decision to revoke my client's probation these flaws should lead this court to vacate the revocation order and remand with instructions to dismiss allegations and be from the second superseding petition and if i may i would like to start with the third of the reasons that i articulated the fact that the judge did not articulate the reasons that he was required to under the due process cases that the supreme court decided morsi and gagner i think it is and this court's in bank decision and says my hernande conclusory statements that a probationer has violated his probation do not satisfy the due process requirement that a judge articulate the evidence that was presented that supports the violation and that's exactly what happened here after the evidence closed and the lawyers of the parties presented their respective statements the judge three lines of the transcript comprise entire findings i found the government has proven its for the allegations here when she was at the disposition hearing for that is not allowed and why why do isn't why would require your client's lawyer in that situation to object on that basis and point out to the court your honor you know obviously i disagree with what you said but you are required by the due process clause or whatever to i think what you're getting out is that there was a particular factual dispute that you think was very material to the outcome of the case and why would someone have to alert the judge that we need a finding an explicit finding which way you came down on th answers that that address that point your honor the first is the judge just presume to know that he's required to arch to resolve this dispute on the record especially in light of the the ruling that he made in my client's favor about admitting his version of the events at through the pro policy polygraph report but right i guess i've read the report differently frankly i think it dooms your client's position on whether all of this was consensual or not i think it actually affirmatively indicates that part of it was consensual and that's the valid basis it seems to me that the court had for revoking here now i grant you the court didn't make an explicit finding to that effect but it seems to me that's what the record indicates and i i mean i guess i'm not sure why we should basically as you say send it back and have this be done over again when it could have been cured if your which way you came down on this but nobody did that my other my other response to that your honor is a little bit more technical and it's simply that the rules didn't require counsel to make an objection that once the judge had made articulate is his finding there is no requirement in the rules that we take exception to the court's ruling rather that we simply alert the judge to the you know the fact that there was a dispute was the incident consensual was it not and as against the due process requirement that he articulate a finding that sufficient to allow this court to review it he should have known that he was required to make that finding so this is sort of a gotcha one the lawyer knows that he's making a mistake and so he says fin want object taken up on appeal i i sort of had the same feeling that my colleague does that that's why we have waivers when the lawyer fails to object well clear to the district court that whether the incident was consensual was the crux of of whether there should be a finding of a violation at all and as against the backdrop of the evidence that was presented at the hearing i think the record  sufficiently clear although it could have been clearer for the judge to know that he is required to set forth some basis other than i think i think the defendant loses here i think you say i think that you never sat in the chair i suspect and it isn't that easy to remember everything on every case for busy busy busy district judges so i think the supposition is wrong and i would rather state on the law why isn't it waived  when counsel who knows the case normally has one case to worry about if counsel doesn't object why isn't the objection waived well your honor i have articulated a reason why i think the rules don't require an objection here but presupposing that that you don't agree with that i think that that doesn't prevent this court from reviewing the objection at least for playing a plane or ok except there except that i also don't believe that the government has argued plain error sufficiently in its brief to put that issue on the table here i see waiver of a waiver  ok putting aside the question about whether the the the the can the issue was can the incident was consensual or not i also believe that there was a problem in that the conditions that my client was accused of violating were impossible to comply with because as the government still does not contest he truthfully told the polygraph examiner that he was the victim of sexual abuse i just that's where i differ with you part of it maybe but not the whole thing and i gree with you that the reporting requirement that the government relies on i don't think that was made clear enough as part of the rules but the rules were very clear that you are to engage in no sexual conduct whatsoever while you are here and i read even the polygraph report as i said as doing your client on on even that front because he at least what i read here but tell me if you think i'm missing something the first contact the contact from i'm not going to mention the names but right right other boy tore him sounded to me like it was there was nothing to indicate that that was not consensual well what was what he said was not consensual was when he was then forced to do something to the other boy i guess your honor i i disagree with that reading of the holographic court and the way i read the polygraph report is is telling a story of you know that this contact went on throughout the days they were traveling toward that toward this field trip that was you know all the way across the country and the way i read the disclosure as it was recounted in the polygraph report was that my client tried to push this other boy away and once he solve i guess i don't know what about what about the statement the school makes that there is no such thing as non consensual sex that everything that is sex is sex isn't you've warned that time  that no matter where or what the situation is it's a violation and you're going out the door but that's what's so bizarre to me about what the rules were at this treatment facility the name of what they are what they're dealing with is trying to help young people that are overcoming by an addiction is just like alcoholism the rest of them they have a very tough requirements but it's not because they're a military institution it's because they believe that need but if they have a right to make that right that that rule doesn't that do weigh with with your argument but there's no such thing as a nine consensual sexual contact i don't think it completely disposes of my argument your honor because the program director also testified that he expelled my client for engaging in consensual sex so it's no such thing as consensual right is it right it's thing is great and so he might my client was expelled apparently for doing something that by definition could not exist in the universe the treatment facility and if that is not well but there were there was also a rule this is no sex period well then the rule also forba him from being a victim of sexual contact that seems equally bizarre to me it's bizarre but that's the rule and it had to be reported so even if he were well but victim he validated the rule by not reporting but how is he supposed to how is suppose how is he supposed to know what he's supposed to report in this bizarre universe of a world where he can be thrown out for engaging in conduct that by definition cannot exist he he shouldn't be expected to comply with a rule that is so vague and impossible to understand i i i have trouble understanding what the rule is based on my reading of the program directors testimony and the handbook that was admitted as an exhibit at the trial i still don't understand what exactly he's not allowed to do and if it's true your honor that the rules forbid him think that he was confused about whether or not he was allowed to have sex while he was there i think it's clear that he was not allowed to engage in any sexual activity at all but it was not so clear whether he was allowed to be the victim of sexual assault and given everything that we know as a society everything that this program director certainly should know as someone who treats sexual assault perpetrators many of whom are sexual assault victims given that we know everything that we know about the way in which people children teenagers women of adult age who have worked for this court as a matter of fact how how they disclose being the victim of sexual assault it seems like putting the onus on a a person who's at a treatment facility to immediately report being the victim on pain of expulsion and being sent to prison seems like it condition that at least should have required very clear explicit notice with some direct testimony about how that could ruling role was made communicated to my good morning please a court and for the government and i'm out of arizona in this case the district court did not err either plainly  the procedural aspects nor did it abused its discretion when both finding that the juvenile did violate his probation conditions and which condition are you mainly relying on well three i mean obviously the first two are related that he participate and the residential treatment program am i and to go to your discussion earlier  defense counsel the government has to prove that he did not comply with his condition that he go to this program that he complete this program and i know we've gone down this road where it was consensual or not consensual but as happens often times when any defendant doesn't comply with their halfway house and they get kicked out we don't have a full blown trial it's like she got kicked out was this reasonable was this fair the government proves he didn't comply with that condition he got kicked out but i mean i hope you're going to not say that you're relying on this but if he were raped at gunpoint and that was the basis for his expulsion from the program he was just completely victimize no fault whatsoever on his part in fact he tried to do everything he could to avoid becoming the victim of a rape but nonetheless that happened to him i assume you're not saying that he could be violated and sent to prison on the basis of that well there's a couple  can just finish my question all i want to get from you is a straight answer if that were the situation then you would agree that the judge could not revoke his probation and sent him to prison on that basis correct i would say that would be fundamentally unfair ok thank you so so then that's their position on what the facts showed not quite as extreme but that's their position that this was totally on consensual this other boy coerced him into engaging in all of the sexual activity and you would concede that if that version of the facts were accepted by the judge he could he did not have the authority to revoke probation i'm not saying that's the correct word i read the facts differently but why aren't they right in saying that the judge was required to tell us which version of the facts he credited because under one version revocation was not permitted ok i'm going to take a step back from that you had a situation where somebody was raped at gunpoint and in this case even if they're facts even if they say hey he was an unwilling participant there's a sliding scale on this and i think when they did the investigation they looked they talked to the other youth they looked at the fact that there was a mutual masturbation in a van full of people to the point where this defendant ejaculated there was no struggle there was no fight and so they looked at those facts in determining this was a consensual act and do i think that the judge had to make a finding that well he really didn't want it to happen or you know this other guy was maybe the first one to act i don't think that i don't think that is important your honor and i think that in this case even though we have facts that lead it to this was a consensual act and clearly i disagree with defenses opinion that he was a victim in this case it was a mutual  have as i said when your opponent was up your i that's how i read the record that it was not all nonconsensual but what about says that hernandez i mean that case i read that case is saying that in this context if there is a material dispute that the defendant puts in dispute the judge must as a matter of due process resolve that explicitly on the record so that we know which side of the factual dispute the judge came down on and that did not happen here so what i don't it seems like we're stuck don't we have to send it back and have the judge tell us which version of the facts that he credit our position is in this case based on the facts to have been presented that no because the facts that were presented either he was were that he was a consensual thing even though later he says i really didn't want to do it and that was a version of i believe even under the defendant's version of the facts being he was not raped at gunpoint he did not report the activity right away based on the programs ruling that hey and it makes sense if you're a victim of sexual assault or you you have any contact you need to report this because this is younger kids these are all sex offenders it's super important to report this right it would have been a violation of the feel you to report his version of the facts were true it would be the failure to report and that would have supported the revocation again the revocation was that he was kicked out of the program and they made that determination to kick him out of the program but the district court had to make to the had to make the determination as to whether or not the evidence supported the revocation for that as that was the charge was he did not successfully complete the program correct so the district court had to determine did he unsuccessfully was he unsuccessfully terminated from the program and the answer is yes so  what reason was a for failure to report or for engaging in sex consensual or not it was because the program unsuccessfully discharged him for having sexual contact and not reporting it based on their investigation so even if so my question is based on what judge wapner did ask you if the district court because the district court didn't say whether or not he would be the defendant as a victim or an willing participant in so my question to us if if if in your view if the district court had determined that he was a victim the district court would have still say it that was sufficient d i think again the district court could have found that he violated his conditions by engaging in this not speaking up even if he was coerced that when he was coerced to the extent that there's that it could have been my i didn't resist hard enough i mean not just that you can i know that we go down that road right he was coerced it wasn't something that he voluntarily did that's that's that's should subject him to being sent to prison someone forced him to do answered you know if he was held with a gun to his head and the facility still decided to kick a mom because he didn't report a course then that would be an issue of  report yes immediately and and did he reported he reported it just prior to the incident happened in june he disclosed this just prior to the actual polygraph starting in august after he left the school after this school had already you know before before he was removed not his statement prior to the polygraph led them to the investigation when he was had to go to the polygraph  disclosed he made a report correct now how long was it from the time that this event took place to look time he disclosed the report made the report immediately immediately and it was reported two months later correct would that be in your estimation sufficient basis for the school under their rules again my position on whether the school should have revoked or not i don't think really matters it's a record reflects i wish they would have kept in there well it seems to me that the put yourselves in the shoes of the district to whom we give way why discretion in these issues of dealing with probation because it's not an easy situation to be and and for these kinds of cases especially the judge does not have psychiatric training how did the judge hamlet did he did he determine that did he rule upon the actual sexual encounter to the rule on the report or do you no longer that school and then we have to send him someplace else the latter your honor the latter and i do believe it is a record reflex he just said the government found that you have violated your conditions of rel operational ocean made by the defendant at that time to have a factual determination made by the district court on the reasons why the school terminated no your honor and that's why we argue that it's a and again you know a lot of this goes down to prosecutorial discretion what the what acts what the acts were and i think the record also there does reflect and he said you know there there's nowhere else for you to go and this is but you know this started in two thousand and eleven early eleven when the superseding information was filed and it was i mean it was a shame that they did not keep him there but  can have sexual contact there at the school and then when you look at the goals of the juvenile delinquency act in that we look at rehabilitation and the judge said this we're not sending you to prison is a is a punishment this kid has needed help and unfortunately the ball was dropped for years or so when he was in west virginia under probation but we need to who rehabilitate this kid and the only place for him at this point was a juvenile facility and this is after seven years of trying so had he you know he needed to go somewhere to be really rehabilitated and that's why i think that the prison sentence in this case a juvenile facility was a reasonable sentence because they have people that can help him and we know he can conceive succeed and do really well in a controlled environment you know at home he was missing school and he had  law enforcement contacts and he had this learning disability all of us and he said am i he's getting a zombie as he now has his ged they did not have behavioral problems with him and so we know he can be rehabilitated we know he can succeed in a control environment did poorly at home with mom but he can't you know he can succeed and it is our position that that this was a consensual act he's entitled to a new judge on this case and in fact this was a joint motion on the parties that the district court judge handle the actual revocation hearing was not given to a magistrate we did a joint motion so that court would hear it which the court did and then at sentencing the defense counsel one of her arguments was we don't want him to go to prison judge you know so much about this case you will have no control over this and my time is up there's not a sliding scale for sexual assault there's not a reporting requirement that should depend on well if he wasn't really co then we're going to excuse that but if he was only course a little bit and he still needs to report that the reporting requirement here was not very clearly explained if at all to my client and all the documentation that we have about what was explained and how it makes no mention of the reporting requirement other than to report it immediately but there's no way we can get him back in the school not out of what we rule here or what the district reported below correctly is that correct i'm not so sure about that the program you know he can enter an order telling them that they must take him back even though they found under their rules that he couldn't stay well have two responses to that your honor the first is just give me your best one the program director testified that he could come back if sufficient progress had been made so he could come back when if sufficient progress had been made if sufficient progress right so there's but there's no way that you could see that the judge could order them to take him back no doesn't have any jurisdiction over well he has jurisdiction to to refashion of and propr remedy in light of whatever has it's going to that is my question my question is he has no power to make the school take him back no he doesn't have any power to directly order the school to take him back ok thank you and this was the last resort this school was the last resort for this young man and as far as as far as i know this school was the last resort that was available within the range of contractors that were available to the probation department the probation department could make greater efforts to find additional contractors that would be suitable under the circumstances here we don't know that but that would be an issue for the just record to explore on right now i seem to remember that there was some mention at the hearing maybe it was the disposition here and i remember which one that the probation officer actually had made extensive efforts to find another similar placement and said that all of those efforts proof right the efforts pute frew futile because as i recall from the record your honor because my client had earned his ged whatever yeah options were available but that doesn't mean that other you know he's older now there might be some other thing that probation could find that would also i'm just saying at the time maybe it was at the time of sentencing there were no other options right that was that was the problem that was the record that was made yes and i think you counsel all right thank you your honor spank you both counsel a case just argued if it made it but decision by the court that completes our calendar for the day we are in recess until nine nine thirty am tomorrow morning