crucial words in the magistrate judge's verdict are the words strong enough the final sentence of his verdict is this was a strong enough pushing to have caught her twice in the back into a brewster in a fashion consistent with the argument made by government well enough or hard enough a direct comment on proportionality i mean that there was testimony by the mother and aunt as i recall that the the victim was the initial aggressor right  magistrate judge clearly discounted their testimony that he didn't hold her up by the neck they claimed it was sort of holding by elbow or some sort and so with all of that why  down like this against the neck and in fact on her direct examination ms mag belated testified oh it left a hand print and then when i attempted to impeach that she actually denied having ever said it on direct examination said no no no there was no hand print because there was there just sort of a long mark on her neck that i think is entirely consistent don't work there with the presumption that a judge knows the law and you would have to rebut that presumption in this case that's true and that's where i think the word strong enough come in i should say first of all i think it's actually an open question whether there is a proportionality requirement at all in the case of non lethal self defense because generally that's where it comes up is someone hits me and i shoot them to protect myself that in for instance there is no such thing as imperfect self defense in anything other than a murder to manslaughter case because i don't even think it is necessarily been decided that the non lethal use of force must be proportional but even if it must be proportional even if you assume that that's implicit in the reasonableness of the self defense doctrine it's not a mathematical one to one and part of what i think you have to do in looking at the magistrate judges verdict is look at the final argument that the prosecutor ma the prosecutor did not argue your honor you should believe ms magdalna disbelieve the four defense witnesses and significant portion of ranger foster's testimony who we presented if that had been what the government had argued and the judge said yes i agree i believe  percipient witnesses in the room we just being a jackson versus virginia question of whether the evidence was legally sufficient but by final argument the prosecutor is essentially saying ok maybe she was the aggressor or maybe we have self defense here but he overreacted and at that point to the extent that the magistrate judge blesses that and he essentially incorporates by reference the prosecutor's closing argument in his verdict he's i think mistakenly buying into that belief that it's a one to one thing that if she slapping him in the back and he's shoving her hard with the neck against a window that that can't be self defense but if the purpose of what he did is to get her off of him and hold her down and everyone in the room other than ms magdalna testify to precisely that this was about getting her off of him getting her calmed down and getting her restrained then it is simply of no moment that she wound up injured even significantly injured and he wound up uninjured if his action was to get her off of  verdict you write are going this case would be here on an issue of incorrect jury instruction that that would be the problem it seems to me in this case the jury instruction the prosecution it sounds like what about asked for and i suspect the judge would have given is if he used in self defense force in excess of the force he was speaking to repel there's no self defense and if that were the instruction we don't absolutely be here and i think it would be a clear reversal and it seems to me that that is the legal error that the judge me that would have been instructional error had it been given to the jury because that is the final argument the government's making even if she was the aggressor even if he was using the force to repel or use too much and that's the word strong enough the judge seems to be saying it doesn't matter who started it it doesn't matter that he was attempting to repel the force it was simply too much because at the end of the day you know the prosecutor essentially argues she ended up hurt and he didn't and that's not the law self defense but the counsel for our purposes rendering the verdict and what why didn't why do you believe that we get to that point you magistrate judge made the timing of talking about it but the reality is if you look at the evidence that was put on in the trial he could have come to the same conclusion whether or not a closing argument was made as you indicated is not correct i guess i'm not sure i understand the question that jury during the testimony arguments were made about what he did the reaction all of these sorts of things could not the magistrate judge have come to the conclusion that he did based upon evidence that was presented in the trial and regardless contradicted that evidence i believe made magma laid out over all those other witnesses i suspect we'd be here on clear air with you because i don't actually think this transcript permits anyone and i think that's why it's interesting but it's not really what he did ver twice in the back and brewster and strong enough it's simply not the question it's clear she's the aggressor and it's clear that the in the use of force was used to protect himself and his three year old daughter who's standing very nearby let me under the hypothetical i can't imagine the jury convicted him because the problem is no more reasonable than is necessary is not a mathematical equation it's not she hits him with three units of force and he can only repel her with three units of force it's what did he need to do to restrain her she's a whirling dervish she has a right to get her off of him and if she uses three units of force and he uses ten units of force to respond and she comes out injured in the process that is still a valid use of self defense and there is certainly that i know of no case law that says one to one proportionality and there may have had to be an argument about subsequent instructions or additional directions i think and i keep about what is no more force than is reasonably necessary but that's not what i understand and i do agree judge to be standing i look at these pictures and he use more force than was necessary to restrain her when she was attacking him what he's saying is he just used too much force period and it begs the question in this case i think the government not of color as a witness could they have just put in the morning please the court my name is cheryl carvalho's distant u s attorney representing the united states there was sufficient evidence to support the defendant's assault conviction and to overcome the claim of self defen extrinsic evidence that finding is virtually never clear error in this case i think it's significant that when first approached by law enforcement in yosemite the defendant denied any alter cation had taken place that denial of any altercation taking place that certainly nothing was ted by the defendant that the victim had in any way assaulted him or that there was any need to defend himself aunts somebody ranger who interviewed the defendant shortly after the altercation saw no injuries and so testified that in very great contrast as the judge properly found were significant victim scuse me in addition even her stepfather who was the defense witness testified yes she might have been injured somewhat and he saw some redness around her neck certainly as correctly noted by the  judge such injuries were not consistent with the defense claim of what happened in this case that he was simply trying to prevent her from hurting him and or his dock his three year old daughter their significant injuries  tell the defendant top let her go it was she was holding her up and using enough force to to caused lacerations in her back not consistent with simply holding her away counsel you would agree w not that the record does not show that the magistrate judge specifically stated the standard for self defense you agree with i believe that's correct your honor so under the circumstances stated and it was not myself arguing the case at that level but i believe the prosecutor indicated that correctly stated that in a case of self defense the burden does shift to the prosecution to disprove that beyond a reasonable doubt and i think in this case it has so you're saying that because the government stated the standard that that was a reminder to the judge and that we should presume that the judge properly applied that i think your related to the threatened harm and i think it's clear from all the evidence in the record that that was not the case in this case that the defendant did not use reasonable force in this case was quite a bit larger than the victim and i think really one of the most significant factors in addition to the injuries themselves were the fact that it was a fact that the defendant denied any altercation even transpiring when he was first approached by law enforcement this certainly does not help any defense claim that he was reacting in self defense or that he was assaulted in any way by the victim in this case there was another issue raised in the defense brief which has not been highlighted here are so if the court would like i can go into the admission of the medical tried to calm her down to keep her away from him by holding her against the wall by using his elbow on her neck so he didn't deny the doctor cation his initials they said what's going on he said nothing's happening and they said what happened with your sister and he gave testimony or gave a statement to the rangers at the time completely consistent with the testimony both of the defense witnesses and the photographs and evidence