reasons first because the court erred in narrowly interpreting the statutory reference to domestic violence against miss nixon second because the district court wrongly instructed the jury on two occasions and third because the district court's multiple eviden on this nixon's defense from the very beginning of the case miss nixon's defense was sliced into pieces and pieces of her substantive pieces of her defense were thrown away all the while the government's burden was lightened resulting in a trial that was a mere formality this all started at the very beginning when the statutory term domestic violence was far too narrowly interpreted by the district court this term was left undefined by section twelve zero four the statute under which miss nixon was tried and convicted and the court interpreted that reference to domestic violence in the statutes affirmative defense against miss nixon far too narrowly we ask this court recognize that the term domestic violence as found by the supreme court in the united states versus kassam one is a term of art that can include things that might one might not consider to be violent in and of itself but when considered in a pattern it certainly rise at the level of domestic violence specifically the court refused to allow mr nixon to present evidence that she herself had been the victim of domestic violence in the form of emotional psychological and financial abuse and instead would not allow her to even present that evidence to the jury this violated her statutory right to an affirmative defense under section twel c two which is the second of three a form of defense that's provided by the statute the district court erred in narrowly interpreting this this reference to the only physical acts of domestic violence and in doing so it pointed to after an act of legislation that went out of its way to actually define the term narrowly as opposed to the statute before the court today which leaves the term undefined minute set aside a lot of other references that we think are relevant here chief among them is the hague convention which is particularly referenced and twelve zero four d meaning that when congress wrote section twelve before it intended it to be interpreted alongside the hague convention and the hague convention does provide an affirmative defen for the return of children who have been psychologically have been experienced psychological trauma and so it makes little sense that congress would recognize a psychological abuse and trauma and one instance but then in a statute that directly references that earlier statute it decided not to the references to other statutes that go out of their way to specifically and narrowly define the term domestic violence are in opposite in that light in addition to that your honor the  and different crimes removing a child from the united states attempting to remove a child from the united states and retaining a child outside of the united states counsel has this long of argument been preserved for review was even preserved for decision in the district court it was your honor miss nixon's trial counsel proffered eight a specific unanimity instruction no unfortunately that's not how you preserve plainly federal rule of criminal procedure this is a one count indictment and you say it charged three crimes well that's a claim of duplicity and the rule expressly requires that intention to be raised before trial and says that it can't be raised later unless there was good cause for not raising it before trial as i understand what happened here it was not raised before trial and you have never argued that there was good cause for deferring it too late in the trial well your honor the court's not a reason for requiring it to be raised before trial is so that if the district judge agrees with it the united states can appeal will understood your honor  we would point to the fact that courts have regularly remedy these types of duplicitous indictments through specific even and that unanimity instructions so even after the fact they can still be rendered the rule is clear that the claim is fo if not raised before trial you couldn't write a clear rule unless there is good cause so it wasn't raised before trial i look in your brief for an argument that there was would cause and there's none there understood your honor and i do not particularly recall whether it was raised before it was not raised before trial not checked the thank you your honor a but in addition to that there was also another error that the that the district court made when instructing the jury and that was wanted to find as a matter of law that miss nixon's ex husband gigi had parental rights as a matter of law but the the statute itself twelve of four goes out of its way to space and there's an ambiguity in your brief about that are you contending  jury question or only that it is a question for the judge but the judge gave the wrong answer in the first instance your honor we contend that this would be a jury question it's an application of a lot of the facts of course i didn't see that argument but even in the alternative you're on is it in your brief did i miss it if it is in our brief and it's specifically drawn out in our reply brief your honor that this is a question that the jury sort of been asked to consider but yet did the defense at trial ask the judge to send this question to the jury your honored trial counsel was sort of shoehorn into a position based on the district courts earlier statements and refers to this as a matter of law and so the district court or excuse me and in an effort not to frustrate the district custody miss nixon's ex husband was operating pursuant to a no contact order from the state court in illinois which stated that he by the definition of the statute did not have print rights he had no physical custody over the child and if he didn't have that simple custody over the child there were no parental rights that miss nixon could have frustrated at the moment she left the united states for her home in canada and so under even if this court were to consider that a matter of law and were to consider the jury determination to be waived  made by mr nixon's daughter against miss nixon's as her ex husband these include the daughters pediatrician her kindergarten counselor and another counsel of that she was referred to after these allegations first surfaced and all of these individuals  would have testified had they been allowed to that they had diagnosed the child as an abuse as an abuse victim that they believed that the the child was telling the truth that she had been abused and that this nixon was aware that they had diagnosed her and that goes so had these individuals been allowed to testify they would have testified to the fact and boosted miss nixon's own testimony and helped the jury to realize that she certainly had a reasonable belief that she was playing domestic violence when one child when one's child's pediatrician and counselor tells you that your child is being abused you tend to believe that and that would have been very informative and very probative for the jury to have heard of determining whether or not ms nixon had a reasonable belief that abuse was being suffered and not only that your honor but miss nixon also sought to introduce evidence that she suffered from p t s d she offered three witnesses on this those were very curtailed to the point were only one of heard from want post traumatic stress disorder your honor you  heard my request earlier i said i apologize for not real words absolutely your honor miss nixon was diagnosed by multiple doctors with post traumatic stress disorder and her argument was that and why would that be relevant to anything it's relevant your honor because the the district court determined that the relevant standard here was whether or not miss nixon reasonably believed and had the perception that her daughter was being sexually abused and a victim as these as these experts would have testified a victim of post traumatic stress or only witness what's herself and one individual who was allowed to testify in a very curt manner about mistakes and be nervous but nothing about her post traumatic stress disorder and so with that your honor we would ask this court to reverse on a multitude of please court briefly address the the meaning of the term domestic violence in the defense in section twelve zero four it's important to realize that even in light of the supreme court's gloss  is included in the statute is the term domestic violence congress could have used other terms such as abuse that are more capacious and could include emotional abuse psychological and financial abuse etc however congress chose to use the term domestic violence now in castleman to be sure the supreme court said that domestic violence is a term of art that doesn't necessarily require the same quantum of force that is required by the term violence as generally used but again kasim was dealing of force at issue not with the distinction between physical and emotional abuse and it's there's no suggestion in castleman or in any of the other supreme court case law that the term domestic violence can be understood to include all forms of emotional and psychological abuse so just looking at the plain meaning of the term as used in the statute this court ought to conclude that the district court was correct in deciding that it was limited to physical violence however also cited a number of other another and many things beyond the plain meaning of the statute the way that congress understood the term domestic violence of the time as defining other statutes how it subsequently used the term all of those the proper way to preserve a duplicity argument is to raise it before trial the proper way the mandatory that's that's correct your honor the mandatory way but of course your brief doesn't mention this and therefore on your honor i mean it is it is a situation in which the court can and i think that the court should it's certainly the easiest way to resolve this however i think that even if the court were to conclude that we have we have forfeited the forfeiture waive the forfeiture that you haven't means that the government should have charged three separate counts in the indictment and mr nixon could have been exposed to conviction and sentencing on three separate counts that is the evidence supports her attempt to remove her child from the united states a removal of her child from the united states and the retention of her child outside the united states and i don't think most defendants who who have been charged with a violation of section twelve for would see it as fair for them to be charged with three separate offenses and i don't think about what congress was intending it passed the statute there's nothing there's no there's nothing you know cases that the defense has pointed to that would suggest that this that the retention or removal removal retention are two separate crimes or three including attempt is without intent to obstruct parental rights and then later retained outside the united states so they are not they are not necessarily all inclusive however congress included the mall in order to cover all the situations that could arise with respect to the jury instructions first of all the defense did not raise below and i didn't believe from reading their brief had raised the argument that the issue of parental rights should have been submitted to the jury and in fact in the district court this is of that page five of the transcripts of december twentieth the defense counsel said i quote whether he had parental rights is a matter of law both below the  conceded below that it was a matter of law on appeal to the extent they raise the argument at all they did so very briefly and so might my brief did not devote much time to whether or not this should have gone to the jury but as i also pointed out in my brief even if it had gone to the jury and the jury had been properly instructed the jury would have agreed with the district court in this case that gigi had parental rights at the time that the minor child was removed from the united states the evidence of the statutory definition says that parental rights can include rights and the evidence showed that the father g g had access to his child up until january of two thousand and fifteen and that that access was temporary limited to visitation under the supervision of dr appleton up to the point of the custody trial that would eventually took place in july of two thousand and fifteen but at no point in the record in the state court was there any suggestion that his parental rights had been removed that he had been deprived of his parental rights and at the very least he had those visitation rights in under the supervision of dr appleton and that is sufficient to satisfy the statutory requirement turning them to the alleged evidence here evidentiary errors in this case with respect to the post traumatic stress disorder diagnoses the as the government points on and in its briefing be it to the extent posttraumatic stress disorder is relevant at all at all to mr nixon's reasonable belief that she needed to flee the country it is a very minimally relevant and in fact the government's position is that the proper question is not whether or not she reasonably believed that an incident or occurrence of domestic incidents or pattern of domestic violence that occurred but rather not whether it actually had occurred and under that under the government's understanding that we we sought to follow in the district court and were prevented from doing so that then post traumatic stress disorder would have simply no relevance at all to her defen and finally and i think this is probably of the more challenging of the two issues the district courts exclusion of abuse evidence of repetition of the minor child statements to counselors to a counselor and doctor about the alleged abuse that the defense points in their reply brief to the conclusion of those proffered experts that the minor child had not been coached and i think if  this court were to to look specifically at that small aspect of the proposed testimony that could be potentially relevant particularly if the proper standard is as the government views it not a reasonable belief but whether in fact the abuse occurred however the evidence of coaching was not something that was discussed at any length in the district court but primarily in the district court mr nixon sought to have these witnesses come in and simply parrot the hearsay it potentially was her best evidence and certainly to the extent that they did something other than simply parrot hearsay and testifying to their own conclusions about whether abuse occurred that arose from something other than the minor child statements then that would indeed independent conclusions that she was telling the truth then i think there would have been a much better case for relevance here but in the district court the the thing that the defendant wanted to admit was the one of the those witnesses to come in and testify i concluded based on her statements that she was sexually abused that she was sexually abused so the focus was not on their independent assessment but in any event the district court did not abuse its discretion and any error was harmless and the reason for that is that ultimately particularly under the defense's theory that whether the abuse occurred is actually not the issue of whether she reasonably believe the abuse occurred statements by those witnesses that they concluded that the minor child had been abused would have done nothing more than co rm the testimony of the minor child that she was coached to say that she had been abused in other words they could not those that was perfectly consistent for those witnesses to testify this is what she told me this is what i concluded but it's p consistent with coaching and the minor child testified in this case the jury also was able to hear from the defendant in the jury could draw the conclusion that the minor child was telling the truth that she had been coached to make these accusations of sexual abuse there's also other consistent evidence that this was in fact coaching for example be one of the reporting officers who heard this recording of the minor child's alleged statements noted that mr nixon was mouthing along with the recording that allegedly had just been made of her minor child making these accusations she was mouthing along without recording for approximately one minute there was also the evidence that the department of child services and the number of police departments had decided not to pursue charges against the father that they did believe that these accusations were unfounded so all of the evidence taken together shows that even if the district court should leading cases on domestic violence and as we noted they do are two for two as a term of art there but importantly when they go into the violent afaik they were interpreting a statute that specifically dealt with violence as a subset of domestic violence here we are not dealing with such a definition undefined and in fact it's notable that the government that in traffic in the statute congress didn't use a more restrictive address to our favor the jury instruction issues as you mentioned your honor the government did forfeit this argument and it would be a miscarriage of justice to not reach this error and so we ask that this court does reach she was her only evidence as you noted your honor all of her witnesses to the abuse allegations that were were excluded and importantly the government noted that there were three witnesses to that  and murphy specifically looked at the question of coaching and found that there was no cocina which would have been particularly helpful for ms nixon to rebut the officers testimony that he thought she was nothing along with  recording of her daughter's statements despite the fact that she has always maintained she was saying oh my god under her breath importantly as well these witnesses did not say they were simply going to parrot and statement in victim the district court not only wouldn't allow any statement as to what they heard from the child victim but they wouldn't even allow them to testify as to their observations of what she had done and these errors completely deprive