that's correct i did not isn't it waived i don't believe it is because we sought in fact to have the agent produce the the judgment all you had to do was move to strike and the judge would have granted it because it was hearsay or you've had it preserved but if you don't move to strike if you don't object you haven't given the other side an opportunity to shore up and it looks like to me it's a straight waiver what case do you rely on that that isn't a waiver morsi versus brewery your honor that in that case here's the testimony generally speaking is inadmissible unless the government establishes why they can't bring in that testimony or that evidence in this instance all we had was an agent who testif i submitted those objections to the the magistrate and they were overruled but our contention was that it was that it was unreliable because we didn't even know who the officer was and in fact whether such a conviction existed in fact i from a conviction that would be you admit that that would be sufficient to show that your the trying to violated the terms of his of his parole in this instance yes because the allegation was that he had committed the offense of the illegal and right after the party the condition that was placed on your the petition in fighting for the excerpt of record in the petition specifically alleges that he committed this offense that he violated his conditions at the least by returning to the united states unlawfully and the only evidence of that was that he had been arrested the government contends that sufficient to prove that that's what he did but i want to make sure i'm very clear on that we don't have the government does not have to show the court would not have to find that byte by byte for hundreds of the evidence that he was convicted of a crime i'm going to have to find by a preponderance of the evidence that he committed the crime which means the technically then he had actually been acquitted of the crime of illegal entry into the united states because he failed to satisfy because the government f of beyond a reasonable doubt but as an administrative matter the government might still be able to find by a preponderance of the up man that he had committed the crime i suppose that's true but in this instance the petition alleged i think specifically that he had committed in that he had been arrested and our contention is that being arrested is not evidence of a violation of supervised release the specific condition that was indicated to have been violated was that he committed a new suppose that he was charged but he was never tried the government has no way of of dealing with this i think they do but they have to have a witness who has actual knowledge of the facts and circumstances they can't rely solely on hearsay knowledge or hearsay  testimony of what another agent reportedly said ok but if we have your arrest records or we had we had the officer who had arrested him that would that be sufficient it would be admissible it would be admissible i don't know whether it would be sufficient because we wouldn't know what the officer would say other than that he found him in the united states and whatever circumstances he's relying on to establish that he that he committed that do you deny that your client was in the united states i don't deny it because he was transported from california to arizona on the basis of are there any circumstances under which you would have been lawful for your client to have crossed the border from mexico back into the united states to be honest with you i don't know but i suppose that simply being deported from the united states is not an automatic exclusion for all purposes and for all time there are there certainly are some circumstances under which somebody can return to the united states lawfully even even if he's been ordered not to come back into the united states well the condition usually is that you not return to the united states without the express lawful condition or permission from the provisions of section thirty five eighty three and thirty six zero three subsection one which basically are that the defendant be provided with a copy of the conditions of his release or supervised release and you know take a referral that wasn't done in this court relying on the fact that there was in fact actual notice by the judge said you know since we're fighting in this case that there is no where but the court encouraged  district court and probation officers to to establish procedures nope that have been established they continue to rely on the fact that the court says something to the defendant of the time of the sentencing that he shouldn't return to the united states without permission and my contention is th unless this court takes this the step of actually enforcing the compliance with those statutes by in essence vacating revocations where there has been no compliance with those statutes that they're going to continue to rely on that district courts and the probation officers ought to comply with those statutes i don't think you have to or to overrule it in that instance i think you over you affirmed primarily because it was i think the first time you should have been brought up before this court and it was very clear that there was no compliance with those statutes as in this case there is no compliance with the stench of the magistrate judge recommended in the district judge affirmed the fact that there was no complies with the statutes but unless and until this court undertakes to to give some meaning to i vacating convictions where there has been no such compliance i think we're going to have the same problem they're just going to say well it's harmless error or close enough if you will for government work and that that is going to result i think in vs two statutes in is a distinction the issue is whether or not the warrant is a valid warrant at the time that it is issued and regardless i understand what the government's answer was to my motion to dismiss on that basis but essential holding i think of darkness or maya is that for a valid for a warrant to be valid on a petition to revoke it's got to be made under oath otherwise the district court acquires no jurisdiction and i think it's particularly in this case where you have m not have an inherent jurisdictional that doesn't seem to be the holding of my in order for the court to acquire jurisdiction i think there's no continuing jurisdiction i think unless there's been a petition filed in a warrant issued and that defendant is hauled before the court to answer that petition i understand that argument where the supervised release period has expired that there is no jurisdiction but i'm not sure that that's the thing argument parts hanes if the court is exercising its statutory authority while the supervisor at this period is in effect i think even if the court even if the defendant is under supervised the court my name's nathan leonardo and i'm representing the government in this case first i want to clarify  this case or the notice of the verbal notice that it gave the defendant about not returning to the united states or else he would be in violation of his conditions of supervised release occurred on august of two thousand the defendant was then deported on august of two thousand and one and the or take a decision did not come out until two thousand and two so it's not as if the district court was ignoring this court and minister and that the court and probation should be giving written notice instead of just or almost well don't leave that point too quickly you say that we can just extend that case to these facts because as i understand the government's argument even though the statute specifically requires the condition to be given in writing that we have one cohesive said where you gave them orally that doesn't automatically our words automatically get you home free but was what was the specific charge that he was that he was violated for in this case the specific charge for which he was violated it was that they not commit another federal state or local crime yes in the oral presentation of the judge to the defendant did he make those  know he actually was even more specific and more descriptive about the activity that would that the fan actually committed in this no it was something different and that was a specific crime which was which was reentering the united documentation ok so if you tried to violate entering the united states without authority then the case which excuses the specific statutory language would not add a magically terminate but that isn't the situation here he wasn't told orally you shall not commit another federal state or local crime correct that's correct this merger via you're violating him for not committing another federal crime i don't see how this case will help you unless we extend it even further and over overrule our reasoning that you got the information orally therefore we don't have to give it in any other federal state or local crime i didn't find that i didn't know i didn't represent that i just yet i just said that i didn't want to represent that he didn't tell the defendant that he should not commit another crime so i'm going to look for right now actions that he would specifically advise that he he could not take and that would be a violation of a supervisory conditions well i think that's a very good legal argument but the purpose of giving this written notice is that people don't go to law school and somewhere i'm gone to school and all get something in writing that they can have with them and that's what the congress wanted us to do for reasons unknown to me because i was not involved we decided to extend that where they've met persons specifically gives the oral requirements but that isn't here well i know why why shouldn't we enforce what congress told us to do i think your honor may you make a good point and i think in this case we're all notice with even better than written notice for somebody who is an educated  problem or he can get it translated but at least it be in writing so you would extend it then anytime there's a spanish speaking defend asked and there are no notice would be in english that there the government is excused from giving the written notice that would be how the case would wri if there was no i my i'm simply pointing out that in this case there was two translated oral notices and i'm unaware of any practice of giving giving translated written notices i suppose that is possible but technically under the law and under inflated in which written notice would would comply with that statute so if you if you if you were writing the case you'd you  extend our prior precedent to those situations in which they defendant does not speak english and therefore we don't have to give them a written notice no i think right at the end i don't i think that the president not need to be extended i think that under ortega brito this case this case of the same situation essentially well it is the same situation that defendant was arrested for illegally re entering the country and that was a violation that year that the judge happened to pick the one thing that mr tonight did later on when he came back yet mr yes which is typically what happens in these cases is that that one thing is what the violation is but you're right i think that if it was a b the general conditions that are in that should have been in the written notice if the advisors as to the specific crime that later armed the defendant happens to commit that that should be sufficient ye as a matter of fact i would say that somebody and what's the point of supervised release if a defendant can commit a crime i don't i don't necessarily think notices as even should it be necessary to notify somebody not commit another crime while you're unsupervised release of course you can commit another crime on a supervised release that's almost kind of sensical but in this case the defendant was specifically warned of the crime that he says he actually committed and also do you remember the well that's kind of the common sensical warning that i guess that i was just talking about that's a more broad warning that what we have here here we have i think an even better warning because it specifically says what the defendant would be violated for or have to come before the court again for and that's what the defendant did so it was the specific conduct committed by the defendant that he was warned against doing which was even better than just a blanket general warning not to do anything bad which is what and this case the defendant was on supervised release and because he was being supervised by the court the court certainly had jurisdiction over him hardest and if anything would go towards the validity of the warrant  that or the the warrants that serve as the basis for him to be arrested in california braceros on up but once he was in arizona even if that warrant was invalid the court had jurisdiction over the f term had expired but in this case it was during which is not the case in markets and that makes sense because people who are on supervised release or probation don't enjoy the same type of their month first they're being supervised and second  don't enjoy the same kind of constitutional protections that the average citizen does a question about that i take it the statutory authority that you argue that the district court had is that section thirty six zero six nice marshal is not a probation officer how how does thirty six on six help you if the statute itself doesn't provide for the rest of courage in this case well i think it it helps in showing the inherent authority jurisdiction of the court when somebody is on supervised release that it is an inheritance you said you're going on the statutory authority but the statutory authority doesn't help you because it's restricted to arrest by probation officers my argument isn't necessarily that the arrest itself was valid but simply that the court once the defendant was in front of them and this is what we learned from them a chain case where the defendant was abducted from mexico illegally brought before the court and the supreme court said that the court still has jurisdiction over this individual despite how he was arrested and how he how he came to be in front of them had jurisdiction and i think that's the same thing here is that i mean the anybody could have grabbed him and pulled him in because somehow the district court has inherent authority over the defendant regardless of whether it is his constitutional rights of inviolate no i think there are other remedies for evidence civil remedies but there is no remedy in this case you know whether mr to suppress you know and i'm my conceding that the arrest was illegal necessarily but my argument is that it doesn't matter to the case because the district don't make any difference the open affirmation well they do make a difference they don't make a difference in this case there because there is no remedy in this case it would well seems triste it strikes me that that warrant requirement is in there for protection you would rule it out if i understand it correctly who that anybody can do it not just a probation officer you isn't even a government if the government person calls favor detective and says i want to hassle it seems to me that well there's a reason for requiring warrants and i think that is the reason that ensure that there's a reason why you're going to arrest them that's correct but i'm going and we only give an exception to that probation officers by the statute right so in your example the probation officer could have just got me  well i think you're right and there it is a safeguard and when that safeguard is you know not complied with there are remedies such as suppression of evidence think things of that nature civil remedies for a legal arrest but in this case defendant's goal or what the defense asking for is not one of the possible remedies well the fourth amendment usually doesn't life say to defend it's would be to sue under civil law right now is it all in this situation i'm not an expert on remedies but it seems  most importantly the i two thirteen which was their arrest report from when the defendant reentered the country illegally was admitted into evidence as exhibit four and that's on page twenty two of the e me twenty three ok and it indicates that all the circumstances about how they found the found and united states how he had no documentation twenty three  exhibit one that about the defendant's identification tying into the a filing all the documents there in it i'm looking for the actual evidence that he that he violated the violated u s law after he was released  because your case may rely upon whether or not we remove the file name the government would like to check and see what happened at that exhibit and if you can resurrect it somewhere to to have it shipped to outside of the record and i'm not i'm not familiar with the answers to those questions i thank