well here the next case united states versus michael smith arguments to support the conviction them to affirm the conviction st they argue that the police was predicated not only on the conspiracy to assault but on the assault charge as well charging  the assault he was charged with the assault as a predicate for count six and then in the allocution did he not admit to the assault that he was involved in the assault no your honor the elec you're the victim the victim was shot right them that but he also he went back to the car to get the gun he had the gun in anticipation i mean it was certainly reasonably foreseeable that someone was going to be shot right and under new york acting in tonsil it was such an twenty of the new york penal law the defendant must solicit request command import soon or intentionally the others another person to commit and was confronted with the statement from the defendant i don't know that they were going to do it would simply leave the assault count to stand under those circumstances it would require and would would generate much more questioning by the court before that was accepted the fact that he went to assault and and stated that he went there to assault the person assault is a legal conclusion he got into a fist fight without any weapon and another person that he says i didn't know that they were going to do that then steps in and commits the act with a dangerous weapon that alone without morton knowledge or assistance or request by the defendant is simply not sufficient under the new york d penal law acting in concert to support the charge your honor the  not the shooter we're not requiring him to altitude to the assault that's the government only words at the point and then the court on page seventy one dollars of the appendix for the court says how do you  to the element that's reflected in counts four and five by court that no one subject in there that that's what count six is relying on both four and five right fifty eight of the appendix he admits that they decided they were going to shoot the guy and that he he carried he brought his gun someone else and teach them but but they that back and says i wasn't the shooter and i didn't know that they were going to shoot but there's a foreseeability aspect to this is there not you know that in the world and then enough that it's forseeable that someone is get shot even acting in concert is the only legal basis upon which he could be charged with assault because he was not the person who fired the weapon and under the new york penal law definition in section twenty of the new york penal law you have to solicit command request import soon or intentionally the other person to tumut the apt when you do that with the mental culpability that's required and there is nothing in this record to support those elements it's not a matter of reasonably foreseeable it's whether you did something to help them that's not enough to be there d and even know that something might happen you have to play a role and that is why we argue that these admissions are not sufficient to support the acting in concert and therefore not suppression to support the  right no judge i'm asking to find that the that the conviction this conviction predicated it as it is on a conspiracy to assault is no longer constitutional in harmless we argue that the harmless error does not apply under these circumstances because there was no error d in the we the police was proper and the subsequent law rendered the crime to which mr smith pled unconstitutional but their harmless error analysis comes into play only if there was an error in the plea and there was not so it should not play any role and so we would urge the score we'll hear from the government they please the court my name is chris catherine i'm an assistant united states attorney for the eastern district of new york and i represent the united states this court affirmed the judgment because smith pleaded guilty to a section on twenty four very favorable disposition that significantly reduced the statutory penalties that he faced smith not twenty four c conviction we agree the conspiracy to assault is no longer a valid predicate but the defendant does not appear to contest and that's for good reason because there is clear precedent from this court that assault remains a valid predicate and that some citing to both had and sing verses fark though it's pretty clear if you look at johnson one steffan ition that assault would fit within the definition of use of force and as the court had noted when or in the plea the district court not only informed mr smith that he was secondary liability just like aiding and abetting liability and so when you go into a situation where you're trying to determine whether the substantive assault whether he's guilty of that assault i don't think that davis extends to theories of liability here this conduct is was pretty clear when you're a member of a high ranking member of a gang and you go with firearms with the intent to shoot this individual like judge gannet noted the st time he was asked he admitted that they were going there with the purpose of shooting the individual he himself brings a gun and tries to employ that gun but an innocent bystander intervenes preventing him from me able to get off the of proof and the crime is the substantive one that still remains valid after davis and so you know pinkerton exist it doesn't i don't think it's implicated in any way by davis because the  barbecue with his fellow coconspirator blood members two was solved this individual was retaliation for that individual she were doing one of their fellow gang members they went over there because they're going to assault  individual who's got a violent history so they go there he admits we went there with guns he goes there he gets into the fight he goes back to get his gun to try to shoot this individual while that's happening his fellow gang member knowing that the rules of the gang require when you when you go there you've got to get retaliation and if your leader is unable to carry out the acts you carry them out so based on that record there was it was reasonably foreseeable to him that one of his fellow gang member who he knew was armed with a firearm would use that firearm to carry out this retaliation plan judge bianco held as much in connection with composed johnson briefing where he held that it was reasonably foreseeable that force would be used given the events of that day given who they were going to assault when you was was when he got into the fight with the fight with the victim the guy who eventually got shot that's correct your honor that's correct he got a smith got into the fight with the victim and then he went back to get his carcass the victim had got the better of them but then the innocent bystander got in between smith and the victim so that when smith pulled the gun on the victim he couldn't get a clear shot and that's when smith's coconspirator took the shot severing the victim's spammer larder you don't have any situation here where you've got to worry about there was an actual force force was used it's undisputed that force was used this victim but or emergency personnel and law enforcement probably would have died from blood loss this is a significant injury and it was reasonably foreseeable in light of all those and twenty four c count partially on the conspiracy to assault and as well as not more precisely the finding the crime of violence because at the time the you know the case law was correct and just back at the time did instruct the defendant on the correct law but now subsequently the last change he was an adequately instructed about or not appropriately destructive about the crime of violence but any error is completely harmless because this defendant would have pleaded guilty regardless this that's not surprising because he significantly reduced his that story penalties is that satori penalty he was able to convince the government to allow him to plead to a lesser included offense of the one hundred and twenty four dollars c which carried a five five year mandatory minimum that of a ten year mandatory minimum sentence he was able was another there was also another assault right that say yes absolutely your honor there was a nd he got it he got coverage for an un charter shooting that he had committed so he got the federal government agree half of what the statutory penalties would have been if convicted of all counts there's just simply nothing in the record that suggests this defendant would have done anything other than pleading guilty and in fact he doesn't even argue otherwise now he's not saying i wouldn't pleaded guilty had i known that i couldn't be convicted of the conspiracy to assault you just think subsequent case law is in my favor and so let's dismiss that count so there's absolutely nothing in the record to suggest he would have done anything than what he actually did in addition to the coverage in addition to getting the reduced that story penalties we agreed to dismissed six open counts he received a very favorable disposition and there's nothing in the papers to suggest that he would have done that he would not have pleaded guilty otherwise and so for those reasons and for all the other reasons that we set forth in our papers the court should have from the judgment of the district court and unless the court has additional questions the government will rest