johnson thank your honor may it please the court my name is alas johns and i'm here on behalf of talent mr coleman this case involves the question of under what circumstances may i just record at a revocation hearing at mit right to due process and his rights under federal rule of criminal procedure thirty two point one to confront adverse witnesses against him although this court has in some instances allowed for the admission of such testimony the facts of this case do not fall within any of those prior precedents and are more like this court's holdings and sutton and intentions where the government could not demonstrate the ability to meet either prong of the bell test when the government fails to produce a witness the government must demonstrate a reasonably satisfactory explanation for not producing the witness not simply we try we tried once the the government simply tried for one day to try to produce  track the witness stand on as long a young law clerk and learn many lessons about and work in litigation having to track a witness down that's why we have the subpoena process in the st place and all that the efforts that were done here they didn't get the subpoena doesn't help you with but your honor i would say that the government would be rewarded for waiting until six days before the hearing to make its st attempt to try to subpoena the witness and started ordering the subpoena but they didn't have delivered the subpoena to someone who was out on training and then eventually when it was actually attempted to be physically served it was one day before the hearing so again here you have here you and this case you have the report made on june the nd you have the plenary revocation hearing on june the th and then it's more than a month later that the st attempt is made to to serve the primary witness needed at this revocation hearing and her ward the government i think would set up sort of a character for the government to rely on that have you have a witness that has some credibility problems that has some issues in terms of the testimony that they would give maybe their criminal history that you're giving the government out by saying well if they wait if they wait until that person has moved if they wait till that person is changed they're found number if they wait until just a few days before the hearing but they did give it one shot which this court in timmons said eleven attempt is not reasonable one attempt is not reasonable and here it may not have been the day before the hearing but it was the week of the hearing  july th and then they didn't even believe that she had moved out of state because the very next day on july the th they filed the government files its witness list and in that witness list which is supposed to be a notice to the other side to the defendant what to expect and they listed both mrs house and ms eleven asked witnesses and as residents of kansas city missouri and also if this comes down to if this comes down to the assertion that the government applies events brief that ms house was being uncooperative this court has said for many years going clear  graff that that is not a sufficient reason a witness his preference not to testify without the government demonstrating not alleging not just asserting but the government demonstrating danger to that witness if they would testify that that's not sufficient and so it did this witness even maybe you correct me if i'm wrong i thought this witness said well i don't want to press charges against him but did she ever say i message to a probation officer warning on that tuesday that tuesday the government says monday in their brief but june nd two thousand and twenty was a tuesday and if this allegedly happened at eleven thirty pm on saturday night may the eleven it's not khalif it's not to a medical personnel or an ambulance or nursing care it's to his p o to get him in trouble and just like this court recognized in timmons motive ms house's motive for getting him in trouble is is relevant to evaluating that nd prong and bell because in timmins there was also a demonstrated desire expressed by the ex girlfriend to get mr timmons in trouble and that same motive was here clearly to try to get mr coleman in trouble but the photographs not demonstrate where they happen when they happened how they happened who inflicted those injuries none of those there's no cooperation all three witnesses at mit at that they had no cooperation arguing on behalf of the government i think the court is pretty clear on the law we have two of the judges here who have written i think the most recent and comprehensive opinions on this issue the  st being of course us us versus sutton the other one being the timmins case these are the cases that the other side is relying upon with respect to st of all the question of whether it's impractical or not   st tried to look for the witness in to mins reading from his opinion the day before the hearing it provided the dubuque police department with a subpoena for barry which by the way was never even they never even attempted to deliver it because it says the person who was supposed to get it never even received it so i don't think that's a borderline i know it's a district court called it a borderline it damn but it's no attempt at all i don't know how of you remember the the gong show and they had these stupid jokes with chuck barris and he said i ran away from home and my parents never found me and any positive he said because he never looked for me and that's pretty much what you have in in the sim in the timmins case and the sutton case where there was virtually no attempts whatsoever the government for whatever reason just thought they could come in and put the hearsay on in this particular case we had a nd try i mean and i get that you get there she's she's not there you don't know where she is you tried but that's a probation officer there's no effort to reach out to lawn forstmann that may or may not be involved at this point you've got a fair amount of time to continue to look at what was one why shouldn't just record expect sort of a little bit at a little bit more effort than one try couldn't find her ok well to answer your question judge there was of course a nd try they still had they still had a lot of communication through the telephone and they still thought she was she was cooperating so they arranged to serve her to meet her at a wal greens and guess what she doesn't show up but but even at that they don't stop they continue to try to reach or by telephone but she's either not answering or she has her phone disconnected but what they learn what they learned before they lose communication with there is she's couch surfing basically that's what she tells her she's moving from place to place so they knew she wasn't with miss isla moore you know they know really where she was and secondly then she says i'm leaving town now this court's case law and i know just tell you had something to say about this in your defending opinion i think it was in one of the cases harrison i believe where you were saying the distance baby by itself isn't enough that simply because somebody is in virginia doesn't mean that without some evidence of how hard is it going to be to get him here how much is it going to cost maybe we shouldn't just use linear distances our test well in this case we had no clue where she was yeah we listed her as kansas city but she told us she was moving she could have been in virginia she could have been in texas we had no way of knowing and so plus we knew that she wasn't she wasn't being cooperative not that she was withdrawing her allegations she never said he didn't do it what she said was i don't think you know it initially she wanted him prosecuted but then she came with the conclusion as many domestic of these victims do she ultimately completed i don't want him to go to jail for this he needs help he needs treatment that's not denying the allegations that's simply saying i know what's going to happen if you if i go testify he's going to go to things and again i think this distinguishes the case from from simmons and in his way to men's and sudden where we were they found no reliability here what we had was we not only had her making three extremely consistent statements to two different police officers and the probation officer we had sets of photographs that showed the injuries and i know that there's been a suggestion that maybe they were self inflicted but she had a bite mark on her face how do you self inflicted a bite mark i mean she had actual real injuries and so to say which were documented and so to say that that we don't know who did it it's like well what are the probabilities that she either a had somebody deliberately inflict them or that a random person inflicted them and then also there is some of the  number for miss ellen that don't work and so that was it so there was no indication on the record that we had any way i mean obviously we would have that we could have corroborating with other witnesses but our point here is  that when you look at i know there's case that say that on sworn statements of the least four you know the least reliable form of preparation but i think it's important to look at what you had the of the conk that because when you're looking at reliability you have to consider that know judge as for mill your wish you had a situation where they called three witnesses who for a and every even really tried to look at three witnesses who looked like they might have been more involved in the assault than the actual person  who was having his probation revenue revoked i mean blood under the fingernails of surveillance cameras inconsistent statements they had not only did they have out of court statements that looked like they weren't reliable and but it almost looked like these individuals who the government was using were actually the ones who were involved in fact all three had bed  finger identified as being the the assailants and there was evidence i think that one of them this clinician blood under her fingernails blood and various parts of her house you don't have that here you have an individual who says this is what happened and the photographs confirm it and then you get to timmins and in to vince you had a situation where the police are investigating you have the defendant saying i didn't do it you got to witness didn't do it that several witnesses who said he didn't do it and nothing and i think it's also in terms of connection here i think it's significant you have the defendant writing the court a letter basically saying promising to stay away from her only denying that he didn't that he pulled the gun nothing else talking about her teeth saying their their fall and asking the court not for justice for mercy that to me is something i think the court could and did take into consideration in determining whether there was corroboration and that is that's absent from both the cases in sutton the defendant when he was interrogated city had nothing to do with it in timmins he came into court said he had nothing to do with it gill have that here so i think that they can take what are the fed it was saying what they are defend it was telling the court read between the lines and say we've been pretty easy for him to say i wasn't there i don't know this person or if i do it never happened not what he said so if i'm the judge i'm thinking hey he's not really denying it he seems to be conceding it and again we don't have the kind of contrary evidence that we had in timmins that we had in sutton that really makes the person say whoa and the other thing about you know she had a motive i mean to a certain extent any victim is going to have some sort of animus against the other person she said did the crime against her but in this case are animists wasn't so great that by the time the hearing came around she changed her mind about you know although she didn't deny he did it it's like she changed her mind about wanting him prosecuted so in any event i don't think this case is timmons i don't think this case is sudden this is a different case where we have an impractical it's impractical to call her and i think we have reliable evidence here so i would urge the court to affirm thank you thank you  mr copy refers to officer warning us his probation officer she's not she's a officer she's a probation officer that works for the court and they as your honor pointed out there was no effort on the part of law enforcement to use their many resources there are many databases to see if ms house or an asylum had utilities and they were named if they had phone numbers in their name if there were other ways of tracking them down that's why we have th to even get you cannot get enough free in between the lines to tie the photographs the statement two and a half days later where miss house never called law enforcement herself until suggested by the probation officer to do so she never sought medical treatment there is no indication there's no forensic evidence in the record at all to show that that mark on her forehead is a bite mark there is nothing that ties there's no forensic evidence or medical records or anything that ties those injuries to in assault that had occurred and as for mr coleman statement there's no admission of of responsibility at all you just simply say i'll stay away from this person who's making these accusations against me he says specifically she lied and she lied because she was mad he said because they were not together anymore and he was seen some he else he says her teeth came out they false false teeth do come out of your mouth and even in the record in the testimony of ms of officer warning and detective can miss house admitted to them that she had no idea where the injuries to her teeth came from she did not even attribute the injuries to her teeth to mr coleman and i apologize i see that my time has run out if there are no further questions i would ask the court to reverse the ruling of the district court court did and in the relief granted in the johnson case we would ask that no further record be allowed to be developed and i think the court for its time and consideration th both to counsel for your arguments here today and for your briefing on the matter and we will take it under