time i'm just going to refer to him as is mr brown if i may judge one of the you judges one of the things i want to do this morning is is focus the court's attention not on all of the issues raised in our brief but rather on in this case in the limited time we have this morning the motion for a new trial we've argued the sufficiency of the evidence issues in the brief obviously i would respond to any  questions the court may have on that but if i may take things out of order a little bit i'd like to start with the the motion for a new trial which the appellant mr brown argues was denied an error by the district court now the this is one of those cases where there's really no disagreement about the law the standards of review except for the cross appeal and terms of the sentencings there's no question that a motion for a new trial is governed by a standard of abuse of discretion we don't quibble with that there's no question that a motion for a new trial is to be rarely granted no only in an exceptional case it's a tough standard for you i believe the th circuit has said it's a stringent standard i'm not sure which is which is worse but neither is particularly hospitable to me i grant you that and i think that this case is that exceptional case and i think the district court erred in in her determination that it wasn't and i think that because one of the things and indeed the government itself and its brief noted this at page two hundred and forty one of the things that makes a case rise to that exceptional level is where governments witness is impeached and  we don't just have an impeachment and i don't mean an impeachment in front of a jury with a prior inconsistent state and i mean a a gutting if you will of that that witness's testimony here we don't have just an impeachment we have a by the government's use of force expert sergeant aken and that recantation was of his trial testimony that mr brown did not hold stirrer his firearm his service weapon during the interaction with the victim in this case mr braswell now to be sure and i noted this in the brief the court below knew about that testimony at the point in time where she denied the motion pron new trial i'm not suggesting that that she wasn't aware of the fact i am suggesting however that she did not consider that fact as is playing by her written order in assessing whether this says that there is like a separate rule that governs motions for new trial based on what i call after acquired evidence in that newly disclosed drooly newly discovered evidence and that's really just not what we're talking about here wrecked and below it was made clear i believe trial counsel now magistrate rinehart acknowledged in the record before the court in the court noted that she could not consider and deciding that for the motion for a new trial the actual fact of the enhanced video the video itself in real time had been introduced at trial and seen by the jury after the jury's verdict you so obviously the video existed after that it was slowed down for lack of a better term and frame by frame or elongated and i'm not quite sure what the technical term is but when you looked at it not real time sergeant a can testified during the motion for a new trial hearing that he changed his opinion sergeant taken being the use of force expert he changed his testimony about whether mike brown holstered his weapon during this time that the government had argued throughout the trial before the jury that he had held the firearm in his hand when he when he used his fist to secure the compliance so i'm not suggesting that this is a a situation of a newly acquired evidence as to the to the video itself but surely said and the standard really that was used by the district court and which was agreed to by both of the parties was not that which deals with a newly discovered piece of evidence but rather whether in this case the evidence preponderate did such so heavily that a miscarriage of justice took place a miscarriage of justice which is shocking and that's why in the brief we discussed the fact that the other co defendants were acquitted of essentially the same charges on the same action not as i said in the brief to suggest that the inconsistency of the verdicts mandates and a new trial but rather as evidence as to the magnitude of the injustice that was occasioned in this instance and for those reasons we think that the district court was in error when she determined that this was not the exceptional case that this was not the situation where the use of the gun now having been debunked was not one that permeated the trial in this case and on top of the sufficiency of the evidence as to two other critical elements in the case that being willfulness most importantly as well as the use of force that was applied so let me briefly address those in the in the moments i have the evidence as to the use of force involved obviously in a civil rights case such as this the use of force level that can be employed is dependent on the amount of resistance that presents from the alleged victim in this case mr braswell so next escalating say scale and of course the totality of the circumstances have to be have to be considered and it's a standard whether and objectively reasonable word again police officer viewing the totality of the circumstances would judge the resistance in this case to be active versus passive i know that the government suggests and perhaps it's just in artful wording in its brief that the met mr brown admitted in the record below to the use of passive resistance and that takes place at page seven that that's that's simply not the case there's never been an admission by mr brown that that mr braswell was exhibiting only passive resistance i mean just in fairness the video that the jury did see to  unbuckled the seat belt your honor it was i take and there was testimony that he hadn't buckled the seat i take i take the court's point on that however that assumes that we start the clock running at the moment that the door is open and that's simply not that's divorcing the rest of the circumstances and taking a snippet of time and making that one minute and twenty eight seconds or whatever it was ninety seconds  basically that being the only circumstances that are going to comprise the totality and ignoring that everything that happened before then and the government argues in its brief and and really to your point judge newson that they had to take mr brads well as the passenger and only look at what he did write that you know that makes sense to me i don't understand how what was happening beforehand really bears on resistance passive or active on the part of the passenger until that door's open understood your honor with the exception understood respectfully recall also that during this chase and as outlined in the brief among the things that were happening among the the back and forth during this entire time period is somebody tossing something out of the passenger side window and there's no way for an objective lee reasonable officer coming up after all of this back and forth that the court's well aware of and reading the briefs and in the ninety seconds as as officer brown is attempting to secure compliance and shouting raise your hands what put them on the dashboard fair enough perhaps he could not have reached down and unbuckled a seatbelt i dare say i probably wouldn't either not that that makes a hill of beans a difference but there's absolutely no reason he could not have comply with that the door was open and he was being punched immediately made the video is crystal clear your honor prior to that point in time it was the passenger in a car leading police officers on a high speed chase and perhaps throwing something out of window and between the time that i have often a question about this a sentencing enhanced meant for aggravated assault before you finish which is it the district court missed understand that this was by narry that it had to determine whether the that what the what was being done was to gain control of the victim versus you know cause harm to the victim in could it not have been that he did had both intentions that it's not by mary and that the district court misunderstood the law about it i don't take that just get back to your question judge newsome if i may answer his and then you can answer mine and i'll let you have the time judge newsome it the discussion in of the facts in your question ignores that point in time from when the car is stopped both cars are stopped  out of the car draws his service weapon stands at the side of his car then at the front of the subject vehicle all the while he is issuing loud verbal commands to raise your hands or put your hands on the dashboard never mind the loud verbal commands being issued by the other officers so it is not as the government suggests and it's brief a situation where there was no time and there was a rush to judgment it was pretty fast the whole incident was pretty fast it was i literally i think it's about ninety seconds but during that time period armed with everything that had happened before armed with a refusal of mr brough's well to do that which can he you must concede he could have that is put his hands on the dashboard we submit that an objective lee reasonable officer would have have believed there was active resistance as to the court's judge priors question about the sentencing and whether the binary nature of the the dual intents if you will was misunderstood or misapplied by the court st that argument wasn't made below but more importantly i don't think that if one considers what the definition of intent to do bodily harm is under the a political guideline that is a felonious action assault with the intent to cause bodily injury how that cannot be reconciled with the attempt to gain compliance with a lawful order because if you're gaining compliance with a  may please the court christopher wang on behalf of the united states with regard to the excessive force issue the evidence was more than sufficient to establish that brown's use of force against g b was objective leon reasonable st of all we have brown's own words he admits  officer report that he used hard force against g b in response to nothing more than j b failure to comply with loud verbal commands nd we have the testimony of patrick monteith who witnessed j b being moved backward and forward while he was restrained by a seatbelt in the car and that's when the taser was deployed rd we have the testimony of the government's use of force expert subject akin who testified that conduct at described by brown and as witnessed by m constituted passive resistance for which department policy based on the constitutional reasonable a standard allowed only soft control techniques to gain compliance a can further testified that the hard force that brownout not to be equating though their training with necessarily what the constitution requires should be your honor i don't think that a violation of policy is necessarily a violation of the constitution but they can clearly not yes that's right akin testified that the policy is based on the constitutional the testimony of so heard the testimony of sergeant make an ascetic aken who testified that this was not proper under the under department policy because it is appropriate to use soft control techniques and not hard force in response to passive resistance which i mean i testimony a reasonable jury could conclude that brown's use of hard force was objective lior reasonable opposing counsel in her opening remarks stated that brown made loud verbal commands for j b and the other of the door or could the jury have reasonably inferred that in fact that not even that happened i think the jury could infer that that didn't happen brown stated in his office report that prior to opening the  door he issued a loud verbal commands videotape isn't doesn't obviously doesn't have sound in doesn't indicate what he was doing outside of the car i would add that there is a very very short period of time between when the car stopped and when doors open i think it's approximately ten seconds in a exit the vehicle is still passive resistance that's just failure to comply with verbal commands and that certainly doesn't constitute active resistance that would warrant opening a door kicking and then punching j b what about in one of the officers reports that  indicated that that he had was putting his hands between the seats and the hand his hands were not visible to the officer i believe you're referring to officer ryan's report i thought right officer ryan's report about  reaching in between the seat should be taken with some skepticism because he only added that after i believe eight days after his submission of his initial reports and after sergeant teco rejected that report in any event  officer ryan's perception as to what j v was doing is irrelevant to brown's response possibly relevant to two officers arise response and what kind of force used on j b was certainly not relevant to the browns response in brown never indicated that that j v was engaged in any kind of resistance behavior any kind of conduct above refusing to comply with loud verbal commands why would that be irrelevant to brown response because i think hands were between the seats well if brown never noticed that i don't think he could he could argue that his use of hard force was in response to too active resistance that he didn't himself perceive free of unreasonable force or recklessly disregard that right the evidence was more than sufficient for the government to meet that burden brown using intentionally as hard for some increasing severity a kick a punch than a taser against a passively resisting j b uses force with the knowledge that apartment policy prohibited the use of such force to gain compliance when confronted with passive resistance and attempt to conceal such conduct by omitting a full and true description of his force from mr officer a point after the incident now i'd like to move to the issue of a new trial the district court acted well with that instance question including that in concluding that it would not be a miscarriage of justice justice to let the jury verdict stand the government presented significant largely uncontroverted evidence that brown use violent force against a passively resisting j b in violation of the policies of which he is aware and attempted to conceal such conduct in a meeting a true and full account of his force from his office to report as judge newsome pointed out the enhanced video he did doing that he did this record it firmly said it would not consider because it was not before the jury the defendant actually told the court no we're not we're not relying on that yesterday did that did this or co denial for the motion for the new trial that the district not with the district courts and i'm say talking about what defense counsels yes defense counsel specifically disclaimed any reliance on rule thirty three and into trying attempting to introduce the enhanced video in any event even if the enhanced video was introduced it would not affect the district court's decision as a district court noted the government's charged with using hard force in several ways other than with the gun in his hand evidence the evidence did not propounded heavily against the guilty verdict on section two hundred and forty two counts considering all this other hard force i think the opposing counsel brought up the inconsistency between the jury's conviction of brown and his acquittal of his co defendants i think the jury's decision making is a black box which is why we don't want to rely on inconsistent verdicts to to when we're determining whether the weight of the evidence was to make the argument that that i've been concerned about did the government make the argument that it's it seemed to me the district court might have misunderstood that this issue about gaining control versus intentionally causing bodily injury doesn't necessarily have to be binary there could be you could have both and i think the district court did misunderstand that you're on you make that argument we did not make that argument below we we made the claim below that this  enhanced men should apply but we did not know that you didn't know the district court was going to view it that way that's that's correct your honor and we could not have made the argument because we attempted to to move for reconsideration the district court decided that or she was not going to consider the the merits of that argument but this this aggravated assault guideline applies because brown's felonious of assault of j b involved a dangerous weapon a taser with the attend to cause bodily injury as you just prior noted the district court rejection of the guideline was erroneous because it was based on an incorrect view that the intent to cause by the injury is mutually exclusive from the intent to gain control brown's intent entirely clear to me that that's what happened you know that's the thing that's bugging me about this it may be that the district court really did understand the standard but i'm concerned that maybe it is it you think it's clear from the record that the district court thought it was binary i think that's the most logical interpretation of her decision you're you're on i think she didn't the facts here are pretty much one way you could say is look i just don't think it was district court could understand that it's not necessarily a binary choice but find as a matter of fact that it was one for and not the other yes you could but in this case i think th the facts are pretty much undisputed brown and intensely deployed his teacher twice and believe that the tasers probes had struck unpenetrated j b s body the district court didn't didn't just really dispute any of those facts but came to the conclusion that there was not an intent to cause bodily injury because there was also an intent to gain control over j b but of course the intent to gain control with a taser involved do you acknowledge that let's say we think you know the event there's another appeal that's that's correct your honor i guess i've got sort of related question i think in your brief you say look you don't have to be mutually exclusive and i think if i've got the quote here you say a taser is designed to cause bodily injury and incapacitate its target and therefore there is no reason to fire a taser other than to bring about incapacitation through bodily injury does that not prove a little bit too much the use of any weapon tool to bring about compliance a baton and cuff for that matter also falls into the logic of your argument right like you are the whole point of this thing is to person and bodily injury sort of comes as an unhappy incident but the two go together so now are we going to be in the position including when your clients are defendants f b i agents i believe so your honor i think really yes that is a shocking proposition to me when you're defending civil or even criminal lawsuits against your own officers that their use of a taser to bring about compliance automatically mechanism to to ensure that maybe that the use of the this is guideline for his use is not used more and more frequently than the court would seem reasonable so i think that's sort of one hundred and eleven way in which th not a double counting problem it's already accounted for in the well i don't i don't think so but i do think that the it's i don't i don't think that the use of the tazer as as the as a basis for to a two point t react to her language the court found that officer ryan's report had sufficient condition of reliability thus it was appropriate for the court to cite to officer ryan's report along with the testimony of officer monti in stating that some evidence  that officer brown used the taser to gain compliance rather than to cause bodily injury so we do have here with the district court was in fact understanding that there there were two ah there were two options they might not be mutually exclusive but it's pointing to evidence in the record to support the district court's decision how do you respond to that i think that the district court got that  want your candidate answer it yes i mean it do you think that's the better argument i do think because it doesn't go it doesn't go as as far as as the initial answer i gave but i you know i think that the fact that we that we have to have the details used has to be intentional and it has to be not legally justified for me to point to apply alleged to go over a minute and a half we did the same for your record is correct they didn't make that argument to the court so we don't know that i mean the district court's miss apprehension of that point would not become apparent until the district court said what it said at this point well i understand that judge but i and i i get i get that you're saying i think but the problem here is there is no way personally i you know in reading it in reading her order on the motion for reconsideration in reading her comments both written and in the record about the application of the guideline there's no indication to me that she didn't understand that it was not either or that they both could live together i personally don't agree with that but that they i think she understood it and she found that actually what if you're right then she'll make the same finding again if we if we were to vacate and remand for resign and sing she she could say well despite my in artful language  understood this all along and i found that it was one not the other even with the understanding that it could be bowed and she could say that in of the same sentence and in into the end of confusion right she could but the reason why there is confusion is it wasn't discussed ahead of time if they had some concern about it then they should have are it be kind of like coming in and saying sufficiency pick an element that's what i'm arguing can't you can't anticipate everything a district court is going to say that might be erroneous i mean i don't and i don't see where the failure to in to anticipate that error or that misapprehension by the district court if it was a misap a day well it means that the person who was deciding in the st instance had the opportunity to go through her reasoning for wh r she believed it was binary whether she didn't believe it was binary and it would certainly and the confusion but more importantly the whole purpose of preserving your issues in your arguments below is to give that person making the decision the opportunity and lord knows a review of the record in this case makes it plain that judge rosenberg while i may disagree with her on some things was  going through facts law inferences both up and down so there is just no reason to believe that had she not been given this argument while they were arguing there were they were dual compatible that there is no reason to believe that if in fact she got a confused which i don't think she did that she would not have ruled the exact same way  we have a case will go to the last case