tough and there are two issues that are for shaping able to address in particular one of them is the johnson two issues and what that means for the case for my case and in regard to th issues and to begin with by prior panels that is to say we know that the counts the court instructed to look at the elements of the statute just the statute and so here we are i think fresh on looking at the underlying issues in my case which have to do with assault and battery directing that a prior crime would qualify as a predicate offense in all cases or not so it's no longer a question of what's likely to be the cakes it's no longer a question of what's typically the case it's a question of all cases jury are the place to determine and one reason for that is this in my case there was no jury there were no instructions for the jury is very typical for a person to plead guilty based with the accusation in which determine it based on alternative possible jury instructions because what that elements are is in the alternative for example in ma agreement the person is charged with a crime it doesn't say charged with harmful battery well i guess i'm just asking is if he did you might win that's why i'm asking these questions not because if you did you'd lose the issue if it's not a separate element and it doesn't matter if it might be mis understood to have been a separate element yes and so what i'm trying to figure out is is it or is it not under massachusetts law he separate element with respect to the nature of the touching and is there a case that helps me figure that out you know i mean i understand that question sounds like it ought to be clear that there ought to be either yes it's a separate element or not a separate oh but  battery or reckless battery earth is about or as the case may be but the business this is what i'm trying to figure out imagine the circumstance you just said was the jury was instructed only as to harmful battery only not offensive touching you saying that never happens no i'm not saying that if that happened and the jury then convicted that might not be an overbroad common for which they were convicted you see so that's what i'm just trying to understand how does this actually work with respect to i think it serves no go ahead i think it works in different ways in different situations and i think that's the very thing that it is trying to say then you be we'd remain for them to scrutinize and figure that out oh well well why not that's what my position is when a person guilty which happens to be my case that's tragic documents don't say so under the camp crystal given the level of force that we now know is necessary under johnson one which is that it has to be forced capable of causing physical pain or injury that's just not on the fence better something so you might right you know they do specify when you say what type we're talking but they're different but they're not all meeting with respect to what nature of the officer i mean with respect to the type of touching i don't believe that they do know that from this record i don't think it matters that's why i'm saying to you that i don't think you should read them because in some the question isn't whether in this particular case the question is this under this particular statute is it always one way or not that's law precedent might determine for us whether it's the visible or not whether it's the visible means whether there are different kinds of crimes are considered not whether different ways of proving that not whether there are aspects of that cr case whether miranda was affected what we typically understand is that under miranda once there's a good miranda warning that we scott ritter four officers who question the defendant before he while he was at the scene the police officers come up to the fifth floor they see him he he drops a backpack that he's carrying he runs he's cooperate but in the rest of his testimony have to read all of this testimony he says i think that's an apple right away he says i left for five or ten minutes right after he was help so then he comes back and he comes back and he sees that mr thouse is there and he's being shown information about the fact that guns nash the serial numbers of guns that was stolen i was in trouble now he says i want to cooperate now what happens during that five or ten minutes well we mcnally testifies that he never left side that he was the person who snapped on handcuffs and never left the side and then later on he saw other officers initiate a conversation doesn't say with  confession michael deion testifies and he says i went up to mr faust i told him it was important to locate other weapons i told him that we had a dent if i had the weapon in the bag as well the record stolen i wanted to it was really important to find other weapons and i wanted to hear his side of the story if he wanted to tell us at that point says i have children that's the point that if you have to do it and then brian meehan comes along write me and who knows that i already said this bryan me and says something very interesting he says i want to know whether you'll cooperate whether you'll talk when we get down to the station whether you'll talk to me no miranda warnings have been given now this officer who already knows what's happened so far is confirming is putting the nails in this particular thing that this person is going to cooperate if he's brought down and i ask office and then on the witness stand is this your know so we'd have to say justice kennedy's concurrence does not control for you to win if we don't agree with you on the quark or your point of cooperation what i think that you would have to  that basically the thrust of the seabird argument is that there's an intentional process of questioning this person which they were absolute he was trying to get information about other guns and that although they didn't get him and then what happens next by the way is circumstance that we feel we can rely and say we're giving this man this woman a choice you can talk or you can remain silent that's what see but says the purpose of this analysis and what i submit is under the it failed either one but they have not found one to be controlling it was an early decision where they treated the concurrence as controlling earlier the same year but what is the most recent and they said that they are not  right we're supposed to try and figure out whether we suffer crimes or not right and the determine of that is got to be think law right and in terms of that can't be just the face of the statute as we look at it blind to how massachusetts in fact today yes they are divisible or they're not right and so what's the government's argument that they are well if i will address that question but i again i want to come back to the circuit issue because i just i think it's important to understand how i think govern sets out that they do in fact have three forms of salt battery this brief as well as ours it's the same case but it does say that they have different elements that the first form they find is in fact under the massachusetts analog of the  to at this point if you want to hear more about that that's something you know we certainly could submit something in the just so if if if we remain to figure out whether this was  that's all it says then i think that would be a problem to prove it under separate group docket the question so what do you need it to say in order for us to be able to i conclude that there was a qualifying  if under massachusetts law that additional aggressive touching easy distinct element is not right ok so what is the case law that tells us whether massachusetts treats that as a distinct element well do but since you are instances in which even though there are different ways of committing it it's not an element in the sense that the jurors don't have to agree on the way the element is just the countries of them right well if all that's true in the case of a clique that would seem pursing it's going to be overbroad well even if the plea colloquy showed that he was saying it was harmful conduct as that would just be a fact and under the comp that's not enough what matters is what the element is well i guess the question is whether there's anything in the colloquy of the description of a contact with a colleague who can't tell us what massachusetts law says the element is right only the supreme court of massachusetts can tell us that no that's right but i guess so that's what i meant what in massachusetts law tells this one again i just want to back up to reassert so we're not losing at the argument that there's a lot of circuit issue and a waiver in terms the arguments actually raised in this case i'm resisting arrest is primary argument is that even looking at the violent form it's not violent enough so he's not really wasn't really the visibility point wasn't really present in that one at all so much as to say that even if you just look at you know part one it's not good enough we disagree with that we also think those are good controls on that but on the visibility  issue again we think the masters this case does treated separately the elements of it are violent enough we cite a case i don't remember the name of it that discusses the kind of force that's needed under the violent form i can i acknowledge because