your honor i'm going to direct my attention to the second issue in this case i think there is sufficient evidence that at least technical violations were established to fish and to establish that there were grounds to revoke supervised release the issue of course was whether or not the punishment was excessive or whether or not there was air in after all the evidence to come in he said now we go to the issue of punishment and fact time there have been no mention whatsoever  this state of any investigation concerning what happened in the state of texas none of the witnesses the government have presented either m agent the probation officer or the language that they've been brought before the court had mentioned anything about the subsequent that the judge in deciding punishment have to consider a number of things going what i'm trying to say is that what the district court did is it seems to me after he had heard what the government said the whole tone of the dis but that hasn't been presented to the court i'm uncomfortable in dealing with it and perhaps there are some comfort in knowing the other violations that may be prosecuted here now the court clearly is first step is was it a violation to bring up evidence of another crime to bring up evidence of an ongoing investigation when he did not put that into evidence i think the government almost concedes that that was a rare if that's an  happened and that's what happened here instead of presenting evidence before a court and following a proper procedure a modicum of due process what we have here is an attorney getting up and saying oh and by the way judge if we don't have enough evidence right i think the attorney should have objected and should have made a strenuous objection and should have asked number one maybe for a new hearing in front of a different judge because once the judge heard that it could not be stricken from the judge but don't judge it's a bench trial i say that's the end of it because once in a miserable improper evidence comes before there's no curative other than just starting all over again i think before we find a violation serious enough in order to stop this from inherent power to make a ruling that because the violation was serious enough and because the judge can't put it out of this mi point the judge in balance being mitigating and and aggravating factors he knows defendant has has in the past done this mortgage fraud he also knows that he was doing something here to know that he was also continuing to do it is going to have a very strong impact on him and i i believe that when the u s attorney said this after the defense counsel word out of court evidence like that and poison the judge's mind if we simply tolerate it or you get away with improper conduct well i have several responses that you are first of all type of conduct you should have given warning and you should have really gotten the evidence together now let them have an opportunity and here i recognize in hindsight that it probably wasn't necessary and it may have been in error and i agree with the court that that i don't know either whether or not it's an error and for that reason in my response brief for my i'm sorry answer brief i assumed that it was history and went straight to the element of reliance because there is no evidence of reliance in this case the point that counsel for the appellate makes that the court said other violations that may be prosecuted here on page one of five it's important not the judge that's here mr buchanan kelso below for the defendant on page ninety stated that he was not calling the defendant he was not calling angela balder negril his girlfriend because they were the subject of the investigation of the ongoing investigation relating to these very acts that caused the violation so therefore when judge hicks is talking about take some comfort in knowing that there may be further prosecution here he's not talking about dallas texas where that other investigation is taking place he's talking about the evidence that was presented before him that day i'm sorry the proffer that was presented before him that day dark and maybe the best way or one way to proceed might be to say there are some other mr geisha going on in the court would be interested in hearing about it we can present the evidence and or maybe give some only that i think it is good to take away the lesson from this to be to be is there anything else i would like to make i believe that the second issue is the issue that is important the court i would like to just make a few points about it the cases that the defense relied upon to show prosecutorial misconduct are all trial cases they were all cases where it was before a jury the evidence was presented before a jury at the guilt phase obviously the court has recognized that this was just a this was a judge not a jury and the judge knows the law presuming a lot of like correctly and the judge who said i'm going to limit myself to this case to hear what he applies to the cautionary s from himself correct i also would like to point out the language that the judge used in arriving at his sentence and that was he said he talked about the conduct being similar of the violation of the judge was concerned that the defendant in his words was out less than a month before his back committing the same conduct that got him incarcerated in the first place you know we have a belief and i think your honor i feel