doesn't the lower standard of proof at a supervised release revocation hearing sort of end the analysis in the st section of my brief and i'd suggest that the answer is the th amendment i think when you look at  the revoking courts and alice's she relied heavily on united states versus watts and the thing about watts is that it seemed to be answering a different question in that it was dealing with the use of acquitted to conduct at a sentencing the degree to which a punishment should be imposed not whether or not a criminal act had occurred and i suggest what's important there is that watts was relying on the logic of united states versus one assortment of eighty nine firearms and people in this case mr frederickson he's not property so the logic that would apply to firearms or any kind of physical item is is different then the greater protections that are afforded by the th amendment the due process in the collateral estoppel principles those are the different versions why does it not matter and i think it doesn't matter because the five does remain thank you because the factual issues without diving into the sufficiency portion of the argument i mean we're dealing with a we're dealing with a specific issue that got addressed by the jury on the same set of facts and so what we would say  is that the jury's verdict must matter and even with even with that drilling down into that point your honor just raised you know the fundamental question was whether or not there was self defen and suggest that when you look at something like commonwealth versus brown it goes to the to the to the equity and the fairness of it all the kamel versus brown case was out of pennsylvania and it's cited in my brief and it goes actually so far to advocate that they should put probation violation hearings which is directly analogous i suggest to a supervised release violation after the trial of a substantive offense because of the unjust result that would come from being acquitted of a substantive offense and later being found in violation serving time for it and i think that that's a compound and when you press that's a bad choice of words given the last case but i think it's compound it by u s versus lombard and more specifically u s versus dowling those are both cases that are cited in the brief that talk about the importance of looking at people have divergent stories as to what happened in the bathroom so it's going to be hard to prove to a jury beyond a reasonable doubt the offense so i don't think makes any sense to prosecute it as a crime on the other hand for purposes of supervise released we don't have to prove the criminal act beyond a reasonable doubt so we never take it for the criminal charge to begin with there's no state prosecution or anything like that they just go right to federal court and say but i can prove this conduct happened by preponderance and that's enough to revoke supervise really you would at that point say there's no problem with that correct i think i would have to yes and so that's a seems like the difficulty which is it does seem a little bit arbitrary that because there's a state prosecution or even a federal prosecution of the offense that somehow precludes the separate effort to  know so i guess the answer is that the difference here is that they chose to take a test or a trial and you know there's a related version of that though which i guess judge john justice kavanagh's point to and others which is that individual judges still it might bear on the substance of reasonableness of the sentence imposed even if there is not a constitutional limit on relying on the acquitted conduct and to that point the one thing that does trouble me about the district court's decision here is i can't tell if there is a finding by the district court that the alleged sexual assault did not occur as i read it there doesn't seem to be any such finding comment on that and the the opinion at one point suggests that well the sentence would be appropriate just because of the over reaction but then a lot of it reads as if at the same time she's thinks the probation officer did nothing wrong and the your client is a sucker punch and just acting completely inappropriate lee but that doesn't seem to be an acknowledgement that there is a allegation by him that he was sexually assaulted by a probation official and as you know a very difficult setting for him and it seems to me that if if there's no finding that he's lying that has to be accounted for in the sentence but it doesn't seem to be so i don't know if you guy i agree with that and i think that that was one of the the most difficult things is that you know the failure if i may answer please thank you and you know the failure to say that he hadn't that that the sexual assault did not occur is means that there's also a commentary on what would have been an appropriate way to respond to that should it have been disclosed at certain points and i think that you know especially for for all people who suffered sexual assault i mean how do you process that when does it get disclosed and i think that the idea that there would be so i agree with you ron i think that the failure to say that it did not happen and then coupling that with the  in the sense that i thought she was at pains to point out there was never any allegation about the sexual assault until the trial itself i mean it was never a clear to you the question yes go ahead so i think that specifically there's the commentary regarding officer garlics testimony and about how he was a friend of the family and it didn't make sense that he wouldn't say something to officer garlock upon being arrested but you know as well as we raised below i mean you know he was never questioned he was never interrogated there was never any questions asked by officer garlic and separate from that factual issue yes the court did mention that but i think that's different from laying out an explicit basis for the judgment that says i find the sexual assault did not occur that mr fredericks in the lied about the incident and that it's an excuse that is respectfully that simply did not happen thank you counsel and any further questions whether or not there is one ultimate fact just because that there are some are facts and before the court as well as the jury does not necessarily mean that the same ultimate issue with a fact was before both  three elements beyond a reasonable doubt the government also needs to prove that two elements of self defense or that a self defense instruction did not apply beyond a reasonable doubt and i really think that there is a lot of  direct examination st about the alleged sexual assault that he was asked what was your reaction and his answer was absolutely stunned out of my mind question that was your mental reaction was there physical reaction to being touched like that answer well you mean what did i do question what did you do next or answer i punched him and then a few lines down the question was and after you punched him under the left eye what happened next answer i just remember ended up on the grounds i pretty much held him by a shoulders like what are you doing what the hell would he even do here like you were here i was just flabbergasted question what was your emotional state while this was going on answer like i said  right to put his hands on mr frederickson in that way and when he did he did and when he did the response from mr frederickson was as he explained it was shock shot in response i don't disagree with that snap because that's what happened in the standards the government believes required god so i'd like you to i don't also like you to comment on whether in fact it is important that there was also state charges pending against him narrow approaches to the more general question that is present that in that case as judge lopez pointed out and his st question yes your honor i just and really the reason why is because an acquittal especially with a general verdict doesn't wait to a defendant innocence it's only the knowledge that the government hasn't proved their case beyond a reasonable doubt or the necessary elements of the offense beyond a reasonable doubt suggest with your opening remarks that perhaps the government failed to prove willful there's a as a way of suggesting we should not conclude that the defendant was acquitted on the was mr frederickson testimony is that he was just so shocked it was just a reaction so then i think it's fair to say that there is an open question as to whether or not i'm sorry willfulness did not need to be proved to the revocation well  not to be proved that revocation i believe that it fair to say that the judge determined that the self defense instruction did not apply in this circumstance based on the judge's statements during revocation hearing however i think that there is ambiguity as to what the jury me i think that i think that she was making the comment that i don't believe that the sexual assault happened but let's just say that somebody else could find that the sexual assault happened even if that's the case i don't believe that the self defense instruction  lies not necessarily that she believes but somehow concluded differently i think that she was espousing this to show that not only has the government proven by her planet the evidence and i don't know you read the actual sentence in the explanation i think you could rest on your briefs as to that point are there any further questions from this song thank you thank you  we have three minutes reserved angelo yes thank your honor just very briefly i'd say that the defense is not advocating for a position where people get away with wrongdoing really what we believe our position to be about is respecting the judgments of juries and affording them a meaningful a meaningful role in the in the public perception of the administration of justice and  could you address the the point that ms sun just made about the finding that your client was not credible being having to be read as a finding that these all did not occur since if he's not credible there's no evidence in the record that could support the claim that there wasn't a so i guess my my position from that was be that it's not nearly unambiguous enough to serve the role that we needed it to i think when you compare that statement that was just cited with the other statement that we had previously discussed i think that at at best it's an inconsistency and at worst the  that passing statement that was cited by attorney son just just fails to address the fundamental issues of the disputes between the parties the inconsistency  between the evidence and the the how can you i'm sorry how do how can you characterize a flat statement that the defendant was not credible as a passing reference by court i i guess that's i guess that's rather an important finding i can understand your honour's position and i was trying to think of a clear error about that well i guess the clear error would be the in light of the medical testimony in light of the inconsistency in the physical evidence the photographs the lack of blood in the the lobby area where he said he dragged himself across the floor the inconsistency between his statements in the police in the excuse me medical records versus what was said to the police versus what was said to witnesses immediately on the scene testimony these are correct based on that small small bite i guess that's that's one way to interpret that but i would back up to my my previous statement where i would say that at at that it's an inconsistency with the other commentary in the other statements and i think it was as as outlined in the brief it was especially important given given the the all of the evidence given all of the given all of the personalities of the media coverage if i may finish since your sentence and then you're through thank you given all that was going on in the case given all the extra analogies that a very clear definitive explanation was extremely important thank you counsel thank you