i mean it's the court good afternoon my name is kevin mccoy with the federal defender's office in anchorage and i'm here to represent mr dolphin and unions in this case the government rely exclusively on to no contest and in alaska state court judgments misdemeanor judgments to prove that mr wynne committed two crimes in violation of an immigration order of supervision our view is that is that these no contest dependent misdemeanor judgments  not admissible in a subsequent federal criminal trial to prove the underlying misdemeanor crimes that are reflected in the misdemeanor judgment our view is that these judgments are inadmissible under alaska law why would you turn to state law and the federal criminal trial my view was that you don't my view is that you look at evidence rule for tend and you look at eight o three twenty two that hearsay exception and that the claim that that informs matter that and you know in terms of that as a practical matter that may just be something that congress wants to look at but i could not find anything like that just run out you asked me why i looked at state law and i did that too discussed of reduced go and  few limited purposes that's not the case in alaska if you were to run a west law check on the terms no contest at all no low contemporary you would not find a comparable statute when a life when the alaska criminal judgments can be used to discipline those professionals but you will not find if you search alaska law a general rule of acquittal and see between no contest pleas and guilty pleas or a general rule of admissibility  don't commit any crimes then this income coming from the government to prove that you committed a crime and it's our view that you can do that with a no contest dependent judgment because the federal rules of evidence excluded in this circumstance and  context of a revocation the question you asked would have more persuasion with me but the fact is that we're not in that right now you know congress has a like that to make this a misdemeanor crime and require that the government prove the underlying criminal act and i think i think in the briefing there's a lot of circuit case called wyatt discusses that directly but even even if somehow you conclude that the judgment should have come in i think the second point i want to touch on briefly and then save the balance of my time from a bottle was the failure to give an instruction  explaining for the jury the meaning of a no contest plea well isn't this a matter of law yes i think so i mean i think it's a matter of law that the government argues well we didn't we're not interesting that conviction to show that he admitted misconduct but the jury can infer from that thousand miles out on the aleutian chain he was with mr newman is an immigration custody as well as marshals custody right now and so as a practical matter discussing it with mr nguyen we didn't we didn't make a b of nations that we don't have relations with they bring these people into immigration custody and they put a will for the hold on them and they do have some administrative remedies they can impose i know that was what happened quite a bit with him early documents at one point and they were held in indefinite immigration ins at that time i see now custody can go on forever we can't hold them forever but they certainly had that approach in this case the case was presented to our office as prosecution of this misdemeanor offense which the court talk to earlier is a unique statute because it is very much although a criminal offense a misdemeanor offense is much more like a supervised release violation or a parole or someone who has committed an offense they in this case the judgment of conviction not the underlying plea itself at one point judge fitzgerald did overrule mr mccoy's motion and ruled that the plea itself which we had on tape all these state and federal cases in alaska were done audio rather than by court reporter and we're going to play that and we decided that after looking at the rule that actually that would violate rule for ten because that would be the actual plea and so we often we elected not to offer that you know arguments was that the jury could infer from the conviction that he had committed those asked and you touched on the commonsense aspect of this and sort of the be careful the remedy you're seeking because it is very easy to step into an old chief situation where the government is criminal whatever it's completely it can't be but you say the conviction can be tested what benefit do you get by the point that you're not admitting particular facts that could be specifically used against you for example i was drunk when i was in significant is the fact of the conviction in this case what is significant is not the fact of conviction but the fact of committing the underlying crime because that's what he's in essence is as you talked out to the defense counsel i take it you agree that you would have been free to prove up the underlying crime and succeed that way and i believe that if we had we would have read the objection of the underlying crime as well fact likely have to prove this the crime and not the fact of conviction of what could be offensive about proving the crime and you know very crime that he's being charged with what could be offensive about that because it would i think in that case the defense would be here saying that that it somehow unfairly prejudiced the defendant because of the perhaps violent nature of the underlying offense in this case was simply a lot after the jury and it was argued and i think i'm having some trouble understanding what the i mean i don't i don't want to push you that this isn't having to argue for the defense in some cases down the line but if in fact he's charged with is you committed a crime and this is a crime what could be objectionable about the missing evidence of the very crime he's being charged with having committed and i think the analogy goes to cases like all she for the underlying offense prosecuted you may have community crime in the state may fail to prosecute that crime or you may then they prosecute you and your acquitted of that crime because you couldn't be convicted beyond reasonable doubt the governor would still be able to come in and try and file this advice release violation significance here it's the underlying crime so you have any authority that supports the proposition that you can introduce a conviction that results in from the null of free to prove the facts of the underlying crime i think the condition can come in under hearsay exception of the public record so i think the argument is that it is evidence and under rule for a law and evidence in a civil evidence is anything that makes it more or less likely that an element of the crime then how can you explain  four cans explicit reference to it's of flexibility in the criminal context and it says in any civil or criminal proceeding so for ten is meant to speak to a criminal proceeding how could it ever speak to a criminal proceeding if maybe you can diffuse prove that crime for example possession of a firearm in a state assault prosecution being used as conclusive proof that someone possessed a firearm for a federal so they don't have that is different is exactly the same it's simply here from the is not conclusive proof but it's an it's an argument and the defense made that argument very vigorously his closing argument mr mccoy's you know than all of these different it is not evidence of that there may be different reasons a person  what happened in state court he cross examined deportation officer shailene chain think about that but you weren't president state court you don't know what where this man had an attorney or why he would have you know no contest plea and he made that argument very vigorously the jury simply shows not accept don't think it's just very frugal and i think it's it's fairly infrequent and i think in cases where it does come up it chanced to be a case that's usually resolved i don't there's they're certainly looking at prior to the authorizing question that is i'm not quite sure being traffic documents as being accurate and doing something the court can rely on this in a civil to we've got over very a fifty percent so thank you very much well i think that i mean if you've frustrate the purpose of a no contest plea to make them the same i think it is it's a distinction without a difference is what i'm trying to say i mean just if i could just talk about the practicalities here mr will be used again and what flows from the no contest plea is the judgment and i don't see it's a distinction without a difference the other thing when you look at the excerpts you'll see that the words no contest are prominent on the judgments and so i don't see how that that makes a difference in