we are here to i hear the arguments in united states again think your honor may please the court and our thanks to the court for its flexibility in this case this is due process and rule thirty two point one for vide the defendant facing revocation receive written notice of the alleged violation of supervised release and there are a few cases out there trying to nail down what exactly what notice is necessary the government and we have cited essentially the same cases and both said they support our sides  we're on different sides so i think it's important to kind of go back to the basic principles because i ask you this i mean reading this record and i'm happy for you to tell me i'm wrong about this but it looks to me once we get to the revocation hearing that mr levy was perfectly aware of what violation number two that march twenty fifth violation was all about i didn't detect a hint of his either he or his lawyers saying what you're talking about you haven't had time to prepare and that's what leads us to the fact that there is no objection and does i think put this on plane  if i thought that this on or about march twenty fifth and so on battery sounds then at least before it really left in the dark i would be very worried about that but but i don't see a sign of it well what worries me is  as a defense lawyer the basics of our adversarial system are that we know what we're charged with and there are essential elements that the government has to prove at a trial is beyond a reasonable doubt here it's by preponderance of the evidence good a successful defense is not i didn't do it a successful defense is the government has failed to prove an essential element of the offensive alleged and in this case we don't know what those elements are we know generally what what the incident was and i think the ninth circuit you know analyzed a similar situation and javier and basically said you know there's no confusion over what the factual incident well there's no confusion at all here meaning at that revocation hearing the government calls four different witnesses about this altercation between lee and pulliam now actually maybe you can answer one thing for me are south bend police reports public documents is was there i don't know if you were defense counsel or not but is there a way for defense counsel if they wanted to to follow up and get report number fourteen forty one sixty two i'm not aware i don't think it was made part of the district court was it's just that the legal theory behind the government's prosecution was a more focused but in terms of the legal it's a limited universe of possibilities right i mean it's not everything is possible it's a limited universe and you also knew or defense counsel at the trial court also knew that it was a grade a violation which minute would have to be a crime of violence so that even limited the universe further down the well again and that's that's probation saying we think it's a great a violation the indiana battery statute has any number of ways to commit you know either a felony or misdemeanor and you know each each particular felony is going to have a separate essential element would you have the family go back to some he said that's probation and that the petition is always going to be from probation it's never going to be from the government right and i guess the reason i say that is i think that and the courts noted this i think in the past couple years with supervised release  lot of the problems we see here you know probation are not more years they they are very well versed in the guidelines and their professional guideline writers in terms of percentage reports etc but when probation says that it's a particular violation sometimes they're wrong you know sometimes they say well we think this is a crime of violence when you know you look at the categoric but that's true of any charge the charges made sometimes it's right sometimes it's wrong you're at least on notice of what they thought it was in the notice again the notice is always going to come from probation it's never the government that does this it's always probation that doesn't that that serves the writers of the right so if you know so even if we narrow the universe to felonies there are i think twenty or thirty ways to commit a felony battery in indiana and all we're told is that this is assault and battery see the see the police report if you've got the but if you've got the police report which which describes at least what one would assume the government's going to try to prove how is it exactly that that the defendant was actually prejudiced well he if he introduced evidence on his own volition of an essential element of one of the felonies i mean he's got he doesn't know what the target is what's the essential element that i'm that i'm trying to negate is a deadly weapon you know one thing that didn't really come out in the hearing but it is on the police report is that this wasn't a you know a louisville slugger kind of bad it was a small souvenir wouldn't  that can be brought out if if if we know that the essential element is deadly weapon now we might lose that but that's that's a defense if it's serious bodily injury maybe there's more inquiry into you know how serious were these injuries you know  more examination on that front but if it's just he did something wrong he committed a battery see i guess i'm missing here though is that i mean like i hear what you're saying and you see you say that well he might have he might have you know if he if he knew that it was you know choice fourteen as opposed to choice sixteen it may have done something different but if what you're asking for is actually the way it were done we all know that probation wouldn't just charge one they charge all the the what you might call in another context lesser included as they charge all of the variations and you and this mr lee wouldn't have been any better off than he was now well but he would have had due process you know really i don't see why he didn't have to process as it was i mean he's told the day he's told it's assault and battery he's given police report he reads the police report he sees the incident that they're worried about and i i have yet to hear you know maybe can argue that big baseball bats  where having the ninth circuit's rule which is a more precise statutory citation would move him ahead he still would have to  you know make all of the same strategic decisions that he's made here right and again you know our argument is that we in or in the criminal prosecution mr lee is in prison for four years because of this is a criminal prosecution and a criminal prosecution if you're charged with something that can send you to prison you're entitled to know the essential elements of the fans i think that's just a basic principle of our american criminal system you know point but is it then we have from counsel an indication that they that counsel is aware of the elements so to speak because he speaks of it could be right or it could be right well i assume he's he's felt that all those elements have been addressed in in the facts given to him that's all i can you know and again i guess our objection really is that this is this is the government's burden to allege a certain discrete number of elements that a defendant is alleged to have committed and the defense burden is not to select well here's the situation let me pick out a crime and try to defend against that that's not i but we're not talking about insider trading or securities fraud here we're talking about a kind of a judge can only set kind of a limited range and i mean it i mean the battery said you know i guess that i think that words matter and i think that the words that we use in documents  and you know in pleadings matter especially when liberty is is at stake you know and even in the government's brief they say you know the defendant was perfectly aware of what he was being accused of committing assault with a deadly weapon and that's not an offense in india now you know common sense is ok well i can probably figure out if i consult the code and consult this and that but but a defendant's entitled to more than that i think i think they're entitled to a precise delineation of what think that the rule needs to be and this may just be for future cases but i think the rule needs to be the defendant should be able to objectively reasonably be able to ascertain the elements of the offense the essential elements of the offense i think that's what do process requires and you know we've noted you know rule thirty two point one we might want to stay away from the edge of due process right the edge of the constitution rule thirty two point one might be you know as as an  district court you might say you should provide the statutory citation but i think due process at least requires the essential only the ninth circuit however he's gone that far well but if you look at the other circuit cases i mean it's it's mostly fact driven and  revocation perhaps there are different elements that might need to be proven and he seems to be urging us to go beyond the currently decision which really talks about  better practice and says but it doesn't say is a practice that has to happen no matter what so i guess i'm meaning the thing that gets me is that nobody objected to this to that was a march to that you're not relying on that anymore by the time again we got to the march twenty fifth case miss pulliam had recanted from the march second case also the march second case had no evidence no injuries that were visible unlike the march twenty fifth case so we when we decided to go to the hearing our position was we didn't believe through the burden on the violation of the one that we thought we could and violation to as the battery statues in d n a the as a statute really is fairly simple  what we consider the basic elements to get a battery so the need i mean i'm thinking of other battery statutes i can recall such as illinois and a lot of the what you're calling enhanced mates are easy enough to rule out as well you know was it a pregnant woman well would not say that your honor we've made it very clear from day one with the defense it was a deadly weapon and from that record we discussed separate judge miller to sensi because he had those exact questions we had the statute there and we showed him how the sta