the facts alongside the government's version for the jury to consider that is the defendant's right to testify as to those facts so that the jury may consider them and weigh her credibility before making a determination on self defense in this case the district court arbitrarily denied that right the district court deprives the jury as the opportunity to set down to versions of the case not completely the judge did allow him some of the evidence three instances of conduct so we're not talking about the total absence of evidence are we is not a total deprivation your honor however the three instances that the court let in were perhaps the least purpose of the pattern of violence an escalating violence that form the basis of the defendant's theory that they were there were some of the more specific  well in fact they said i would characterize them as the least probable because wealth effect and the others that were proper grossest were also specific they were not close in time they were remote one was at least two and a half years prior to the incidents in question occurred in two thousand and twelve or two thousand and thirteen that's the first the how i mean incident where mr jasiek pushed mr ms top and front of the moving vehicle on the other the second didn't even spring the incident happened on july twenty fifteen two months prior missed top of what is driving the same vehicle that she drove on the day the incident the lancer and mr yagi is outside the vehicle that day just prior he strikes or break open the windows of the vehicle and she pleads she please just before that happens this is in her mind on july eighth two thousand and fifteen when she strikes and with her vehicle in addition specific recollection specific instances were proffered from the defendant she said she testified in her proper that in the six to seven months prior to this incident weekly she was beaten by mr yazdi carson bruising causing cut importantly your honor the evidence that was presented the two months prior to the incident in question where cornelius hopper has windows are stricken out that that is absolutely critical to understand both the subjective and objective components just a very basic question because i want to make sure that i understand your argument and your constitutional argument you have a subheading b i think is versus a thirty seven and you talk about that this is reverse rule six o nine b evidence specifically said in entertaining that it early in addressing this proffer that i'm not going to go back to the entire five or six years of the entire relationship and get into every single act in regard to that part i don't know that we can say that the district court abused his discretion in regarding this is cumulative or that it would open up he also said that it would open up the trial first of all your honor it's you know the standard we argued pursuant to the marquis case mistah asserts that her constitutional rights were violated even if the court were to find that it's an abuse of discretion standard we still posit that the district court rulings with escalating violence continued violence violence involving the vehicle because of course the jury hears this case and hears in the top was inside the vehicle and heard what the doctor was she had to overcome the jury is how was she in reasonable component and the judge of course did not make specific finding with regard to this very positive evidence that was excluded the district court said she wasn't going to let in nebulas testimony wasn't going to  self defense instruction and did let him eat three instances the problem with these three instances is that they gave the jury the impression that there were only three instances and the defendant hates the defendant theory was that there was a pattern of violence was the then proceeded to get the defense theory and so the jury was denied the opportunity to hear that factual basis and to hear the argument as to why why somebody who's inside a car and strikes somebody at three to five miles an hour was reasonably in fear chance of a couple minutes ago you referred to the three instances that did come in as absolutely arbitrary and random i say the decision was arbitrary it is arbitrary when you look at it how much evidence was excluded in the city but that they didn't have the six or seven months just prior to the incident and the violence and the specific recollection of that violence from all three witnesses that i understand your point with with we haven't really talked about the statements to the officers did you forfeit your confrontation clause argument  testify to i i would have to say i can't tell you for sure but i believe we did raise a will completeness argument we didn't raise it in your brief here here in the briefly raised impeachment and the right to present the prior consistent statement please the court will my name is maria song and i'm an assistant united states attorney in los cruces new mexico the times is arguing that that her rights are violated to present a complete self of completely valid alive that allegation if you look at what the district court let in the district court let in three specific instances of four for be evidence about yahoo's prior violent was articulating is that they found the district court found that that instance there was a specific recollection about the time that it had happened in the specific you have to be if you know you've been beaten up every week you have to say  will one on january third no your honor of course not but with regard to the allegation of the stabbing i think the district court found it relevant as to her fear of what he was capable of on that date but in addition to the three instances that the court let in if you look at the record during this topic has testimony she testified on numerous times that yagi always hit me in the face this was an ongoing didn't judge specifically told the jury disregard whatever the witness says usually or always disregarded that happened i believe the third time that the witness use the phrase always the judge did we presented the jurors all of the judges and instructions that's correct on her but i think if you read through the record then the fact that she's repeated it and the last time that she said it and there's an objection the court was talking about that specific time that she referenced always there's there's no doubt her from reviewing the record in this case that the jury understood that this abuse was ongoing and i didn't understand that he had knocked out the was permitted to be given to the jury so first of all the record there was inconsistent testimony about whether or not yagi was walking away or whether or not he was banging on the hood of the car initially what mr hopper had told blogs or is day in question there had been no testimony that yasi had actually broken any car windows and so the court found that that instances not specific enough when miss top initially gives her statement to law enforcement she doesn't say anything about the fact that he's banging on the car that he's threatening her in fact what she tells him as he gets out of the car and he's walking away and that's when she hits him on the day of trial her testimony changes and she's fully allowed to elaborate on her self defense claim and she says that he gets out of the car that she hits him and then he starts banging on the hood of the car and then she will bring them before she well walked away  that so the record i mean if you go through her testimony it's not exactly clear i think she kind of goes back and forth on some points she says that she hits him first and then he starts banging and then when she's pressed on it at other points  found that it wasn't similar because there was no instance in the on the july eighth two thousand and fifteen incident there was no allegation that ghazi had ever broken any windows there was no physical evidence that that had occurred and so when the district judge excluded that that's what the district judge found that there was enough similarity and i believe the district judge also excluded it excluded it under four three grounds and so if you look at what the judge let in regard to what happened on july eighth two thousand and fifteen she was allowed to fully explain to the jury hey this is what happened he had been hitting me this is why i was afraid restricting to that this in the ga the reasonable fear that something else was about to happen based on what happened shortly before but the judge didn't just limit her testimony only to that day she allowed other witnesses to testify about there are allusions in all of their testimony to a lot of other abuse that was happening it's true that the district court in let them go into specific detail about that but it was clear to the jury if you read the record that these were not the only three instances of abuse that mr hopper high had ever suffered at the hands of yahtzee the jury knew that he was abusive the jury knew the history of their past relationship and she was fully allowed to develop her self defense theory about why she felt the need to use the sports that she used the jury was given the self defense instruction and i believe that they weighed the evidence and they just didn't find certain certain portions of her case credible and that's why they came out with the we hear let's say forty five particular instances within a twelve month period of the day in question one one of the forty five examples was he pulled a knife on her  another example was that she was driving the vehicle and he was slugging were and he got out and started walking away and return to the vehicle examples like that at some point isn't it particularly under the nova review a question of well the judge lets in two or three examples but does that really  adequately protect the defense constitutional right to present a defense and to make it more difficult is one of the more aggravating circumstances that make the self defense theory difficult for the she would maybe feel the need to protect herself even though he was the three as he was moving away from the vehicle at some point don't we have to say running in two or three examples really is not adequate to preserve the defendant's constitutional rights group present a defense your honor that may be the case but that's not the circumstance here we don't have forty five different instances that we're proffer to the court within the timeframe that the court is referencing and with regard to her self defense claim she's in a vehicle which is a dead which can be a deadly weapon so in order for her to justifiably be able to use that he has to be she has to have an immediate fear that he isn't about to inflict deadly force against her she testified that she could see his hands she knew she testified on direct oh i didn't know if he had the wrench went but when she was pushed on cross examination she admitted that she could see his hands while he was banging on the front of the car and she could see that he didn't have a weapon with him so in order for her to be able to justifiably under the law use that vehicle to hit him he has to be coming at her with some sort of deadly force and i think that what the jury understood is him just banging on the top of the car it's not sufficient to get there and the record wasn't even completely clear on that what she initially told law enforcement she never said anything about him banging on the front of the car about him hitting her throughout the day so that is all evidence that the jury was able to weigh in assessing her credibility and whether or not they believed that it was justifiable for her to hit him so i believe that the record is clear she was fully allowed to develop her self defense claim the judge did let in three specific instances that the court specific there was a specific recollection and the judge excluded the other instances on forestry grounds and even though this is a review the constitutional review is noble what the bear case tells us is that in order for an an evidentiary ruling infringes on a defendant's due process rights only if the district court violates the federal rules of evidence and then there are even if there is a violation the defendant still has to prove materiality if these other instances had been introduced would they have exculpated her and i ask a question about materiality yes actually two questions ms fox young repeatedly talked about the incident two months prior as the most provocative and i think there's been some discussion during your argument about comparing that with what happened on the day of the incident but i think her comparison with the other three instances the world and i think her argument is that  your response to repairing it to the three instances that actually world well if i understand the argument the argument is the judge let in the wrong the wrong in instances or kept out one that was a lot more probative and that was that was arbitrary  honor i don't believe it was i think that when the district court review when after this topic proffered the instance that they reference where he punched out the windows what the district court said that she didn't find that instance to be similar enough which is one of the things that the court is supposed to evaluate under a forum for the analysis because in this case on july eighth there was no allegation that he had actually punched out any of the windows here and there was no physical evidence to support that so it really the issue or is the issue who's emper just because you were in the corps you could say that you were free and clear of this person's right well your honor i think that the district court is supposed to go through a specific four zero four be analysis and if the court finds that it's too remote to temporarily remote then they can exclude all those around her brother several years earlier was closing time the district court with regard to that found that the recollection was this if again that's why they let it in but i think if you goes just judge mathis in answer your question the district court is allowed to exclude for all for be evidence on on if it's to temporarily remote if it's not similar enough it's it and then under the pro business gets to the core of three analysis so even though it might have been programmed what the district court found is that it wasn't similar enough and i think that that the district court was well within counsel or excuse