yes you're just having a trouble hearing i think here you know if i ask to repeat if i ask you to repeat yourself it's only because i'm having trouble hearing after i got off the plane i have an ear problem but the two arguments i brought up in my brief i realize i have twenty minutes but i don't believe that i'll be that long by any shot but there's really just two arguments  noncommercial court exception i think and there are two ways you can get one it is if he was acting in the course and scope of his employment but i don't think molesting little girls at home come around selling candy to your  negligence in failure to train us eat but i don't see how we can tell them how to train their pilots without encroaching on their discretionary function so it looks as though brief sure the very first starting and i think i don't agree with the court i think that's not within the course and scope and i believe that that was judge carroll's emphasis on his order i think the the real argument is with the training the idea that it's discretionary and they bring up there with the travelers case the problem is they think once they entertain to train their pilots alleviates from the discretionary function i mean once again when i train and walk clerks it doesn't even occur to me to tell them don't molest any little girls in fairbanks during you're here why would it occur to the u a e well certainly your honor  the difference is there is a cultural difference and i think that it takes note that if you read the excerpt of the record with regard to his testimony every question in his criminal case was that i didn't realize i wasn't trained i didn't understand and in fact i think it's most important to note that is his criminal attorney in order to get him out of the united states and back disingenuous in the idea that their criminal attorney representing the pilot said the reason he didn't do this on purpose is because he did know they want to argue both ways since lawyer said that the criminal attorney in front of the judge the criminal attorney representing the pilot in order to get him from the united states back out to the united arab and i was his lawyer i would try to sell that so i understand why me but what we're seeing evidence in this in the excerpt well the evidence  it's yeah forty nine and fifty having read that don't you agree with me that you and your government have indicated that the reason these criminal acts occurred was because of a difference between your culture and your language in the culture and language of stephanie cross answer yes i agree do you remember before your sentence that you met with the gentleman and then it goes on ye here today i could never get to do any discovery judge carol wouldn't even allow me to do discovery and that was the whole point i wanted to actually depose somebody i was able to depose one person only because he was being shipped up to the us it's back to the u a basically on the premise that hey i didn't mean to do it they want to use both arguments on this and they're going to get away with it i wasn't able to depose one person that was the entire problem of my first argument is this is a motion for summary judgment you looked i was being shipped up he had no criminal repercussions at the time i did pose them you know if in fact that was a big argument because he wanted to plead the fifth and i said you've been sentenced you can plead the fifth there's no harm here so differences and that's why it was nothing was done intentionally on his part nobody ever told him that sounds like just an avoidance of responsibility i didn't know there was anything wrong with robbing liquor stores here and this strange country i understand that your honor and i know comparative fault certainly on the guy and this but the idea is i don't like it on the part of the child oh no no i'm not on the part of the actual pilot who i have no ability to do anything i can't figure the training that you're talking about i mean it's true that in some countries women smile at you and it just means they're nice from other countries they smile at you means they're responsive to you they like you and that cultural difference people with travel see but as far as grabbing somebody and holding them in your house when they're fourteen years old and doing sexual stuff with them is there any evidence that there is any cultural difference that training was needed for well again i you know not to fall back on this but i was not able to do i mean they never even answered i was unable to do anything when i go to these sovereign immunity things is they don't have to go through the litigation they get out right at the get go i and it's asked and so you don't get to do all your discovery first you can get evidence regarding differences in culture without imposing the people in the country at issue and i wasn't able to i mean this they never even answered the complaint and for reasons that you're saying it's a question of law so i never even me the problem is that judge pirro was correct that he could take a certain amount of that and i'm still determine the immunity issue he's allowed to do that which are what you're saying is that if he takes evidence then automatically the motion to dismiss becomes a summary judgment and it was premature because you hadn't completed discovery but it seems to me that there's that the law allows him to take a certain amount of evidence on the immunity issue without getting into that problem is it your position that he took too much evidence and then there therefore he swung it over to the summary judgment context that's you're requiring you're allowed to have therefore he can't have a motion dismissed has to be summary judgment therefore you're entitled to discovery before summary judge i think the line was drawn by judge carroll when he started to go into the i apologize i don't have th emirates if a woman doesn't want you to kiss them is that the response that the girl then slaps the man answered first of all first of all the culture in the united arab emirates forbids any man to approach a female before they are married in the meantime the military forces advise us and told us when you go to the united states it's forbidden to have any kind of contact with anyone especially sexual contact and this is because this is my mistake and i'm really sorry that it happened man answer i told you i mean a person in the united arab emirates cannot have any kind of sexual approaches to answer that question plus i don't have that experience to know it could you tell us exactly what to do about the fact that the yam complaint does not represent this to be the case almost threw himself concedes this is true in his deposition and so they did train they did it all go full around with the girls over there in the u s yes and i think that it was unfortunate that through other parts of the deposition that there was in the  by this pilot what are you asking is it's complete that is just basically i didn't know any better and i can't remember the exact words yes because i read it yeah here it is paragraph thirteen i was not of weird but the laws of the state of arizona prohibited sexual contact and i think it also sa complete and should have been supplemented by this and the other statements in the deposition but i believe this court can decide the case on either either way you can take in the four corners of the complaint this complaint says they didn't train we ignore the deposition and stay out of the four corners the extent the extent of training with which to provide employees is surely among those decisions involving the exercise of political social or economic judgment so the and no i did not your honor the but i believe that we can we can stay within the four corners of the complaint give an appellate argument in their briefs and before this court without considering material ry those facts which for which discovery would be required in order to defeat the jurisdictional organ claimant hohner there's you're losing me along here you know indicate that we can question is before the conclusion whether those facts were relied upon or whether they were assume for purposes of the court's decision i'm not sure and it's difficult to tell  the court did not deal directly with the discretionary function issue in our briefs we did say that under the law of the circuit we can rely think manufactured homes we can rely on other grounds in order to justify determination honeymooned if the district court goes further than that it's getting into the realm of summary judgment and so our usual rule is it becomes a summary judgment therefore counsel says wait a minute i get government before summary judgment so the problem is as i see it number one then if the court takes facts to germany immunity issue which you can do and then secondly if it did take facts where they just facts pertaining to them you know or has he gone over nor is there any suggestion that there is one this is a general duty to train and i and that's an f t c a case here although the standards of discretionary function are the same the application appears to whatever you want to find you have to be particular and in fact racoon says that under the fs i f a discovery is only to verify allegations of well your honor i believe that the district court is arguing negligence not argue or of sorry that this record is deciding using that determination for a negligence standard and i believe that that the court as best i can make it is saying that even assuming these allegations to be true and that the allegations that are and i don't understand why you are arguing even if you were limited to the four corners of the complaint had a defense for you where he still prevails the reason i don't understand it is the judge says right  for a long time to get the contact yeah that's what he says in the beginning then he says i don't have knowledge and then later on in his deposition testimony completely says something different which makes factual questions of his own testimony but i think the argument that i'm hearing here now is we're dealing with motions to dismiss that we don't need to look at four corners the idea is i think we're used to and then he goes on to say something completely different you're speaking to this leading question by his lawyer don't you agree that just yes a very yet and also by his own criminal attorney at the sentencing hearing but several pages of testimony where he says that he didn't have the training i mean a recent issue that just occurred with the same sort of situation in middle east where that was the argument i didn't understand the culture in the first time this argument ever been me this i haven't understood the culture so we're all ok but he says the culture there is you don't even approach a woman and that's and that's i think that's the whole point is that's the culture they're coming over to the united states that's not the culture that's where you need to be well the gist of what i was getting out of that particular case is that one the judge starts to consider the four corners of the complaint and starts talking about the negligence as he did in on page six of his order is when he starts getting regarding the that if twelve emotion is acceptable and we don't need to look at the facts of the case simply based on the fact that it's discretionary the this is the doctrine of the state doctrine that they wanted to use and the waiver of the tortious exception is all based on i case is involving diplomats and national security this isn't a case involving a diplomat or national security this is simply when your ship and your soldiers over here teach them about what they can and can't do because the cultures are so different and we do the same thing with our men when we send them over and the idea that it's discretionary is alleviated the moment you decide to train them you know whether you want to train them or not that's discretionary the moment you train them is the moment you have to not be negligent in your training i've no further arguments if there's any other questions thank you