please the court good morning your honor still anna schiavone on behalf of the appellant kenneth carter i'd like to reserve judgment welcome back by the way you were here earlier than we think you would like to reserve two minutes for a bottle and i will watch the clock so i plan to focus today on the two revocation counts subject to any of the court's questions on either of the sentencing issues on the two revocation counts i really see that there are four main points the first two are are sort of set a points for the third point which i think is really the crux of the revocation count  challenge and so the first two points i'll address quickly although if you have any questions i'm happy to answer them on the first point it's really related to the gun threat since the district court rejected that as a basis for revocation i'm addressing it only to the extent that the government is now advocating that this court make fact findings on appeal and find that the officers testimony was more reliable they on my client's testimony but the district court rejected that and there's been no but he did say that the officer believed  right but the but the court squarely rejected and said he was not relying on the government to rely on whether i had it that he wasn't relying on the gun counts as a basis for revocation and he made that very clear then at sentencing and said that's now out of the case but isn't relevant to whether there was probable cause to ask him to come out well that well the government actually didn't ask they the court did make a probable cause finding with respect to the stop of the vehicle in court said there was probable cause with respect to that but the court never made a probable cause finding the government didn't ask for one with respect to that the threat and the court didn't the court say that it was reasonable for the officers to believe  that he had said he was going to get a gun so even if that's the case your honor so even if that's the case the court rejected as a basis for the revocation because of the significant dispute with respect to credibility and so the court said i am not relying on the threat because i understand there is disputed evidence and even if even if it was made or even if it was reasonable for the officer to believe it was made the court discarded that as a basis for the revocation and so i don't think it would be a proper basis for this court to rely on because it would result require resolving those disputed issues of credibility did the district judge specifically say that there was going to be no finding  yes and the and and so it's our contention your honor that would require a showing a clear error and that it hasn't been because it's a factual finding the court said i'm not going to resolve this disputed credibility issue i'm did i'm taking this on the case and then even at the sentencing the court said you know that piece has dropped out of the case government don't you acknowledge that defense counsel don't you acknowledge that so in the district courts mine that was it had that happy's had fallen out of the case based on it finding that it wasn't going to make a finding sensually judge wallace and so it's our puts it position that under the clear air standard the government hasn't made a showing that that was clear or they're now saying the judge didn't make a finding and so this court can make the finding in the absence of finding is our position that would require this court concluding it was clearly erroneous to not make the finding of a court the district court found that there was a new law violation correct yes and  whether or not the facts are sufficient to support that finding yes and so that i'm sorry that her go ahead because he also found that there was reasonable basis to believe that the officers were facing a threat and felt justified in arresting the defendant and so that really mean that his delay yet to coming out was a sufficient basis for a new law violation exactly and so that during with the officers and so that gets to point sort of three so that then that then the second point in there was about the verbal threat and the speech issue which i don't think the government is saying that the speech was improper and so it gets down to the third point right is there a new law violation based on the delay which i think is the is the crux of your question and i really think the tough the tough issue here and the question then is under we have sort of two competing bodies of california law or at least two buckets as i see it we have the in ricci see case and the cairo bit case and then we have the muhammad case and the question is which is this case more like under california law and with respect to those delay and it's our position that the fifteen to twenty minute delay falls closer to the lens through which to look at the case and that and the question is they were investigating and part of the challenge here i think your honor and part of the challenge for me in our taking a living on appeal was the only ground argued below the only statute invoked was p c of california penal code sixty nine and that's about the threat it was specifically related to the gun sometimes no finding of a threat and no finding a probable cause if i'm in my house let's say the scenario was he had yelled and screamed at the police and they were upset about it and part of the challenge is i'm as i'm trying to say is because one forty a day was not at issue the government didn't invoke it before they didn't address the elements they didn't argue the elements and they also didn't ask for probable cause finding and i can find in the record where the court made nation with probable cause yes if the did they then have the right to order him out of the house as opposed i mean at least there's a set of cases that say that if you surround the house you essentially have seized the person and you need a warrant before you can actually go into the house or maybe it was a nexus you see but none of this was litigated either right maybe there was a message and see if they thought he had actually made this threat maybe there was a maybe therefore they could do that but there's no findings to underlie that either yes i would agree that there are no findings under like that and so where i see the real question so judge a person you just posed a hypothetical so if there was if if you made a finding there was probable cause or you reached that conclusion which there was no finding below i scoured the record at the problem finding was only with respect to the vehicle stop but even if they had probable cause and even if judge berg if the basis was  the belief the reasonable ness of the officers belief based on the circumstances the our position is that even if all of that is true under the body of cases the chase the line of cases under california law there wasn't physical interference here it was merely delay i not the mohamed c situation where where the defendant was outside of a car interfering with the investigation of a separate defendant he physically attempted to stop the officers five three officers on five occasions asked him to move they so your honor that while one forty a day the california statute it comes up a lot and i've litigator it below as well and so there are certainly the language itself does say delay but what the california courts have said is there has to be some type of obstruction involved in that it can't just be and we know that it's very clear in her chasey and that the courts have said the failure to respond with alacrity to a police order is not enough that in and of itself is not meant to be a resisting offense under one forty a day so that the court i think has given us clear guidance the california courts that delay without some type of physical interference for other obstruction particularly where here it's combined with verbal conduct protesting the police which is in the spear of the first amendment that really falls under the non obstructing it was not physical obstruction he was cooperative when he did exit the house it's it's not a scenario where a lot of the house because they were about to watch they were going to reach a door they were on the front porch they had it surrounded they made the announcements but he didn't then fight he didn't require them to come in he didn't fight he was cooperative he didn't talk to them he didn't refuse suppose we thought that there were not findings to support this but on the record there could be two we then remained the case for further findings or what do we do i didn't hear the first part your question if we thought yes lead with you that they were in the district judge did not make findings that would support the ruling but that on the record he might have been able to make such findings do we then we manned the case for further fact finding or why not i don't think so and i think the reason that i would say that were made if if he didn't make a finding on whether he said this thing about the could but he could have made a finding he just didn't make one and he could have made a finding as to whether there was at least probable cause to think that he had said this thing about the the first point with respect to the gun threat i don't it wasn't the fact that the judge kind of missed it and didn't have a chance he affirmatively declined to fly it right because you thought it wasn't relevant to his view of the case and of the statute if we thought it is relevant they did make the threat yes and the judge declined to make that finding but he could find one way or another but it's our position your honor that because he declined to find it and the government hasn't again made a showing that was clear a clearly erroneous view of the evidence a finding is sort of equivalent to a non finding when the court says affirmatively i am not going to make a finding on credibility he said no that isn't what he said he said i'm not going to make a finding as to whether or not the defender did i'm going to get a good that yes it was not didn't do the credibility or anything else but the police officer said i think that he said when he reported so you have before you know finding of what he said but you have the police officers thinking that he said i'm going to get a gun so based upon that it seems to me that's very difficult to not affirm the police the police believing that there may be may be a gun involved you would go there for would you i would i wouldn't agree with one portion of that judge wallace and the portion i wouldn't agree with is that the the court actually did say there's a credibility dispute and i am not going to resolve it but also for those that may be true but these resolving only one part of it that is what the defendant said he's not resolving what the police officer said later on and let me ask you another question  what what do you want us to do on this he's already served his time and even if you're right unfortunately he's served his time what what what can we do is not sort of mooted out that well it's the reason i and i appreciate that the court granted expedited status because of the nature of short sentences in these cases it's important was important to my client to pursue the litigation it is important to the criminal history as you know judge wallace revocations are part of the history it does it does have future importance if there was insufficient factual legal basis to hold these two revocations and let's not forget you can tell it comes up a lot in minors with with threats of minors and the one forty eight a offense and i think it's significant for particularly for if this kind of saturate is going to be invoked for supervised release revocation i mean it wasn't cited by the government here as the basis but if it's going to be relied on i think it would be important to have some guidance and he wasn't in fact prosecutor in state court it was not so the district attorney dismissed which is another issue in terms of there was no probable cause finding there they didn't pursue the case they dismissed it on the first day of trial lawyer who am going to say only thing you're working towards is having less of a record in case he gets no mischief in the future that's true your honor and but it's not an insignificant and it's not anyone who's and so the only other point i'm sorry i'm so over my time is that that fourth point was about the lack of evidence on the knowledge on the on the felon association issue i think it's significantly brief if the government good morning your honour's may it please the court amanda back for the united states before i begin i just want to say quickly the government's brief included a citation to city of columbia that was an error and i apologize your hono mr carter's sufficiency to sufficiency challenges fail and he was sentenced to a reasonable sentence i believe i should start with some of the questions that you are asking the  requesting here for you to make fact findings instead we're asking you to apply the standard of the law which is to review all of the evidence in the light most favorable to the government and then decide whether its preponderance supports a violation this to you about the gun or not and the district court completely refused to i mean i don't mean refuse yet reason in his view of the case not to do it not to make a finding but if we believe the his findings he did make are inadequate then why then your honor i believe you review all of the evidence and decide whether in the light most favorable to the government it supports the violation at hand that's the standard as articulated in killing your honor so there was evidence here presented by the defendant in other words if we think that the evidence there are sufficient evidence which you could find that he made a threat or at least you could find that the what you would do is is not worry about whether there is a finding of fact you would just take that the police officers thought there was a gun and i acted accordingly and with the deference we give them you get by and that  argument is a fair argument but would you move to another one having to do with whether or not you've proven in a record that the defendant knew that his  stepson was a convicted felon i mean we might all think that he should have known but the telephone call was apparently from the stepson to his mother and she said come over there's nothing to indicate the record the defendant was ever involved in that and there's nothing in the record that indicates that he knows use a felony now as we all understand that perhaps he must've because he's  stepson but i don't think perhaps he must of get you past a criminal process so why is there enough evidence for that and i'm saying this because it has go it was on his record in  correction your honor the fact that mr packard used his own cell phone not to call his mother but rather to call mr carter from the phone that is in the record and it was elicited primarily at the detention hearing and then again at the violation hearing mr packard when he was in the situation where he felt vulnerable used a cell phone to access a contact that was saved under the alias of mr carter he goes by the name skillet the officer could see that mr packard was calling someone names skillet and then telling skillet that the police were harassing him for answers one he asked whether he could come over as my understanding his initial call  can't explain why he would ask come over what he told look at least what he told the police is that he lived in the duplex he didn't say that he lived in the portion where his mother lived his probation record said that he lived in the adjoining section of the duplex so that may be absolutely do not read king saying that what it says is that he argued that insufficient evidence supports three of the just records of violation findings on a sufficiency of the evidence challenge we ask whether viewing the evidence in the light most favorable to the government any rational trier of fact could have found the essential elements of a violation but that seems to me to go back to the finding as it's not you make up your own findings so here your honor i would say that the king found influenced what he ultimately did in the sense of he found something else i don't know what he would have done here your honor there are facts sufficient to support of finding that the defendant violated his supervisor released by resisting arrest and wh segue ample to begin with the questions arise specific way based on findings the district court specifically found that the officers had a reasonable cause to investigate the buick he also then specifically found that the defendant of his own initiative and not at the command of the officers ran away from them and went into his home he found that the officer had a genuine belief that mr carter had made the gun threat he found that that fear of to believe that he did not say the words probable cause but he specifically said it was reasonable and legitimate and genuine and that based on that mr karr's carter's refusal to come out of the house for fifteen to twenty minutes when he admittedly could hear the police and now seeing his lawful arrest that that was interference with police activity those are the findings of the court they are sufficient to support a finding that the defendant know you said that your honor but actually he makes two separate findings he says first that the defendant was yelling at the police and he makes a specific finding that he was doing that and that which hearing are you talking about now which argument during which the violation hearing your honor at four o nine the judge finds that the defendant was swearing and running back into the house and that that was interference with a law enforcement officers awful duties then at four o nine to four ten and again on four twelve the court additionally finds that mr carter's refusal to come out of the house even though he could hear the commands ordering him to do so was interfering with his lawful arrest so those are the findings that the court made and they are sufficient to for you to affirm and say the the lower court had a reasonable basis and for finding the violated are the two cases that seem to say that this isn't a violation of the statute and the you think the other case mohammed sees sufficient was that interference mohammed c was largely about delay in that case the defendant also did held up his hand to the officers and sort of acknowledge their warnings to him and then ignore them the standard set out mohamed is particularly instructive here because that court said that delay is constituted by refusing repeated requests it's constitute by defiance and here that's exactly what the defendant did he admitted to it he said that for fifteen or twenty minutes he could hear the police outside saying you're under arrest the judge found that that was a lawful arrest and yet he defied the officers he refused to obey their lawful orders judge w e i'd like to get back to one of your questions about the knowledge of the felony conviction and ask a question about that as well before you do that we have is you've you've implied that circumstantial evidence is sufficient and you've indicated that there was a telephone call for to mr carter that was from the individual that had the felony conviction but what evidence do you have of knowledge by mr carter other than his having been exposed to this individual what evidence is there that mr carter was in fact aware of the felony are evidence that mr carter was aware of the felony is this first that he says that he lives in the duplex again this is association yes i'm giving you association the record shows that he did in fact know this person and that he was married to the mother of that person correct yes your honor what do you have other than the fact those facts that would allow one to conclude where you have to prove this by a preponderance of the evidence that  this mr carter knew about the felony conviction you do recognize that your burden right you have to show knowledge we do have to show knowledge how do you show it in this case we do it with circumstantial evidence that includes not only mr carter's association with his mother sorry with mr packard's mother with mr packard's living at the residence with mr packard's calling mr carter as soon as he felt that he was in danger it also relates to the timing of mr packard's felony conviction that felony conviction took place only two months before the incident at issue in this case it was one month after mr carter had been released from his is his inpatient drug treatment i mention this because it's not as if mr packard was convicted ten years ago and by the time mr carter came into the picture he might not be aware of it instead it happened approximately sixty days before this incident that is strong circumstantial evidence that this would have been something that mr carter was aware of that that is the evidence that we have to support the knowledge doesn't that sound more like it's the that he should have known rather than that he did know we believe it's both that he should have and that he did your honor and opponents of the evidence supports a finding that he did to the district court make an actual finding of fact that he did  my record of the district court findings is that he is mr carter at mid to knowing who joseph packard was that carter had interacted with mr proctored several times and that those violate those interactions were violations of the condition so we really don't have a finding by the district court of actual knowledge you're assuming i knew that but it's very logical i can understand it but i'm not sure that there gets you across what you in that case the ninth circuit this court did find that the defendant could learn of another person's felon status from other people and in conjunction with other evidence that was sufficient honor is that you review the evidence in the record and decide whether any trier of fact would find it sufficient to justify though the violation the finding of the violation so so your answer to my question of whether this is a completely unique circumstance is yes because we'll do it in the other circumstance where you are right i mean when you have a jury of finding sometimes you have to do something like that because there hasn't been anything specific but there is so as to be some kind of a relevant finding in this court sorry in this case your honor the relevant findings have been articulated that basically the officers had probable cause to arrest the officer and that now i'm trying to because this is another example of the same problem quick question on that if if we were to find that there wasn't enough evidence to show knowledge on the prior knowledge of the mr packard spar felony do you agree that it would need to go back for rese because the court had sentenced on all of these violations but we were concluding that one was not sufficient i think that would have to be the answer your honor the court was very clear that he was sentencing and for violations two of which are not contested here two of which are for what is worth the court was very clear from the beginning of this case when it was only the first two technical violations that he intended to sentence outside the guideline range if the defendant was not successful in his drug treatment so whether there would actually be a difference in the sentence it's an excess on a structuring and he was almost successful he was on the verge of completing his drug treatment i understand that it was supposed to officially end the next week but of because we don't decide something if it's mode well if you decide tomorrow it's not moot if you decide before he's i don't stand that i may ask you to decide on may tenth would it be moot or not mode i think it would likely be moot however if you do not affirm i do not think it is moot because in that situation the defendant would have to be re sentence and it's possible that the lower court would sentence him to an additional term of supervised release and that certainly would affect his believe he does because i believe that when he began this initial term of supervised release it was to thirty six months and he'd only serve five months before he was taken into custody ok that's my recollection your way of your son thank you thank you for answering my questions yes  to just quickly head on a few points with respect to at the end i it's my contention that if there isn't enough evidence on fraud it was the government's responsibility to prove it they didn't ask any question of the probation officer they didn't submit any documents not fraud knowledge of the felon status excuse me they didn't ask any questions on cross examine mr carter they had a chance double jeopardy should attach to that and they shouldn't more or some some form of that they should get a second bite essentially judge wallace they should get a second bite it hasn't been briefed on that relief element so if you wanted a very quick call that's a somewhat different point and with regard to the other hand in other words you may be right to didn't get another effort to ensure a hearing i suppose though that the district court might on know it had to prove it or it wasn't evident that they knew it and they just didn't introduce the evidence and the court didn't make the finding as a result did you object to the district court level actually that specific issue defense counsel actually did object and stated there was insufficient evidence it's at four o three i believe in the record your honor insufficiency evidence on the felon status issue i don't think defense counsel specifically articulated the knowledge piece and part of the challenge here but if you didn't  i don't see where you that the second bite of the apple has anything to do with this thing but i know you've got a half a step up and you want to take a full step but i'm pro not to do it because i don't think the defense really put it before the district court and i don't think it's fair to charge the district court for something when the defense doesn't argue it well it end but the flip side of that your honor is that the government was was charging the supervised release revocation and it was the government's obligation to meet its burden of proof and the simply offer that i don't believe it's correct that because he got the statutory max year it was the highest sentence he could he could have gone in no additional supervised release revocation time the court said that i don't think there's more time that can be tacked on and so on the briefs and so we go to the united states of america boy versus