sinking consider hearsay and that happens all the time and i've been doing this for almost thirty years and i'm used to it but there is something that right about this case we have a highly contested issue didn't mr hester my client stab me hopes in his cousin were didn't and government have the burden of proof to prove that happened we have an unusual circumstance where we're here the incident and film the two videotapes intrusive and you have to rely on witnesses see judge that will correct your honor but the witnesses were the detective gallant of who did nothing more than look at the video and give his interpretation of it and mr hester who was there he was stabbed struck so much evidence about going into the bathroom and there was evidence about their contact with one another that was clear and there was the kind of absurd notion that he was trying to make a phone call in the middle of a  ever looked at it at the victim also testified the victim statements that the defendant stamped him if the victim was not called by the government in this case he gave first he gave three statements one was the statement that he gave immediately after the event was at the hospital he said he was stabbed but he doesn't know who stabbed him if he saw him he could probably recognize him mind you mr hester was his cousin that he grew up he was a statement two days or three days later saying that  but how can you weigh a statement that's not subject to cross examination of mr jackson was on the stand i would have been going to there was also a fourth state that that's true but the rule certainly permit hearsay to come in as you acknowledged at the outset of this argument absolutely hearsay can come in but just because it's to examining judge more dues findings well in relying the has to be clearly erroneous which after reviewing all the evidence we are quote left with a definite and firm conviction that a mistake has been committed i think a mistake has been committed here and although the the video is not conclusive you can stop certain things from it you can tell that you seat two points of contact mr hester is holding to jimmy carter up against the wall and then he turns and he pushes them into the bathroom so theoretically he had a knife in his right hand comes out now he's bleeding from the shoulder comes out of the bathroom based on my review of it he's not bleeding at that point he's bleeding from his chest when he comes out of the area where mr hester was not mr has to resort to the left somewhere not only that we had the enhanced photographs that mr filter put together that i think if you look at them they're not conclusive but they certainly are consistent with a being a cell phone or box to shape you don't see anything that looks like a sharp blade and then you can judge we're doing this decision again i think he reversed the burden he said that he's  not clearly holding a cell phone number which he could be holding a knife if you look like he's whatever he's holding he's using it as some kind of weapon does it make sense that one use a flip phone as a weapon i your honor i don't see the photos  and again i think the government in a situation like this where the matter is highly contested they have an obligation to bring in the witness who is not like he's out of the country he listens your truth used to government could have brought him in and subjected him to cross examine just like  stories the fourth one is not highly existent but he said that in his second statement he said that he was not stared before he got to the bathroom in his deposition he said that he doesn't know his stand before you have a better we're not just again another thing that i could across from them i'm government of the burden of proof s please the court what judge moore do said about the video i think is apparent to everybody who has seen it it's a blurry very difficult to discern whether the item in mr history's hand was a  knife or some other object and judge moore do did not rest his decision that it was night at knife base time what was depicted with the object was as it was depicted in the in the video but all of the circumstances surrounding the event according to judge were due was the fact finder here support the notion that it was a knife and given that there are two competing permissible views of the evidence i don't think th phone and that mr hester's conduct in totality was inconsistent with his defense or his argument that he was there trying to protect his cousin particularly in light of the fact that towards the end of the video mr hudson is bleeding onto the floor after clearly having been stabbed and mr hastert simply turned around and walked out of the restaurant taking no action to assist his cousin as he at the restaurant now i'll concede and i'm sure it will be brought up that you know saying that one for two subpoenaed in the mulay is not the same as saying one actually stated he was sentenced for stabbing he wasn't sentenced for partizan correct but my point your honor is in two thousand and thirteen at the time of the guilty plea mr hester said i participated in that event not that i actually did the stabbing but i participated in the event his position at the hearing the evidentiary hearing is entirely inconsistent with that admission right mr hester  says the only thing that i did there was protect my cousin that's not participating in the stabbing the four individuals that's mere presence and the point that i'm trying to make maybe in artfully is that this d in terms of why mr has there might have done this and this is not something that judge moore who relied upon as mr hudson by two thousand and thirteen actually  brought a lawsuit against denny's seeking money damages for the injury he resulted that he suffered and denny's had him pleaded mr hester has defended so by the time of the sentencing  mr harum mr starr had a motive to say that he did not stab mr hudson because he stood to be held financially accountable for that action by virtue of this of the concededly mr watson gave inconsistent statements over time but judge moore do dealt with that and you know juxtaposed with everything else he knew about the case determined that as a good review indicated earl judge moore do was under no obligation to consider why did the family get a substantially higher sentence than the other defendants if the aftermarket in the case the record does not indicate that your and i would say under these circumstances it was the defendant's burden to show to the court that there was something that warranted a lesser sentence not the government's bur stabbing part was it was a prior prior convictions well i mean mr hester actually got a pretty favorable sentence given that he lost this evidence or here he didn't get obstruction of  justice he did not lose except some responsibility but you know that aside that was judge more dues privative to make those determinations he got within guidelines should there's nothing in the record to show i'm not certain of that your honor but i believe the answer of the question is yes because the way the probation office set up the seed accounts was there was no vicarious liability impose their name but it was you know level has been for causing injury but i don't believe the other defendants received this enhanced because they i don't believe they were held accountable for the stabbing of mr hudson oh so i don't i don't know assumed he was going to know whether there were some or not and i don't think there's enough of a record really to tell you right now how how similar they were other than they were the terms of that act and so i'm not going to present very hard particularly since he did get the acceptance point  usefully is left chest but there's no evidence of what at that point so what was judge moore duped and clearly erroneous in determining as i understand he saw a stabbing motions i didn't see a stabbing motion the closest thing that we apply and determine if one of the analyses we apply in determining whether something is clearly erroneous that if there's two permissible views of the evidence the one that the judges choose the judge chooses because they're both permissible is not clearly  away and finally he did he did plead guilty to the overt act i'm i wish that i had the foresight at that point to qualify the record saying look he participated in the event that but he did not stand because it was tell me from the beginning that he was pulling a cell phone record actually