and gentlemen we're very pleased to have judge paul marr of the northern district of illinois sitting with us now as a busy judge today so our first case for argument united states versus excessive this error requires reversal of the convictions on counts two and three this case is precisely the kind of case that rule seven a one and rule seven o two were meant to protect against do the nature of the circumstances and force exercise the government in needed witnesses with the imprimatur of possessing specialized knowledge about law enforcement exercise of force to tell the jury that this force was objective leon reasonable but if the government wanted that evidence in the district court should require the government to go through the procedures attending will seven o two this report failed to satisfy its key keeping function ensuring that will seven zero two two apartments of the liability and relevance for satisfied before allowing the finder of fact to hear the reasonable here the specific nature of the reasonableness question what do you mean by specialized knowledge so couldn't just an ordinary lay person say that let's say that force use excess so in particular here we have two officers testifying based on their training that the exercise of force against warren was unreasonable and that training so with determination may not have i mean there are a duck there are there is a risk profile here that the officers gave their opinion on and so the risk profile is you have objective noncompliance to some degree by both by both warren and land so you have the officers testifying based on their specialized training what kind of risk that posed and what kind of level of force was appropriate  do you think this question would have been ok officer a based on what you observed did you believe you would have been justified if you had punched the suspect so here i think that would have been ok that doesn't call into account specialized knowledge i think that that question is tricky i think the answer is no and i think the reason is because the specific nature of the reasonableness question here posed to the officers calls into what keep calls them to bring their training and their expertise from outside the instant case to to answer that question so i think the nature of the question itself poses brings a rule seventy one so you don't think the officers could have asked why they personally didn't use force or wouldn't of use force well if they were asked simply why the personally didn't use force and they gave an explanation for why they didn't that may be similar iaido where they're talking about their mental state or something like that so that would have been ok yes i could have been ok i'm not exactly sure so it depends on what the nature of the question is i mean if the nature of the question is asking them to place themselves in the shoes of the of mr smith that i think may again drop on their expertise and their training from outside the instant case and therefore under the cases in this court she gets more lend rawlins that that would be expert testimony well what's the basis for concluding that this was really significant to the jury here is what i'm asking mr christian with my understanding is set similar testimony was given pretty egregious yes so we think it's a mistake to look at the other counts they had different facts and you know so how egregious the you know the behavior there was it's just you know it's really outside the scope of determination of counts two and three but you know we only need to look at the government's own arguments to know how significant this testimony was so the government on four occasions an opening closing argument emphasize for example in closing they were all one other issue with looking out counts one of the acquittals and counts one in four is you know there is a real possibility of a compromise verdict here that there were four counts and then you had two where there were acquittals and two that were convictions so it's it's just it's difficult to look at what you know to read into the minds of the jury but the tests are harmlessness isn't the average in the mind of the average juror and given that the prosecutors emphasis on this testimony and that the nature of the case itself i mean we have objective noncompliance by that by the two arrestees some level of force is called for and we have some exercise of force so you know what the officers professional judgment the testifying office of professional judgment i think would have an impact will to the jury here so what would you expect if they had been  classified as expert witnesses what would you expect the what your unit visited albert hearing so and there wouldn't be like well one thing i think is you know there is nothing at this police the police officers are trained but they're not scientists and so on they're not possessing you know really esoteric well so i think you one point here is we look at chad and howland's testimony and both of them explain rather non obvious propositions so for a first year chad testified that you could only use a punch in a deadly force situation fighting for your life if somebody was absolutely physically overbearing you if they've got some weapon of a type a club were choking you out hallam testified that if you were to punch somebody in the face or anywhere outside what we're normally trained to do that would be almost lethal force both of those are non obvious propositions and there's nothing in the record to indicate it's not obvious that police officers don't punch people in the face unless they're in a desperate struggle well what constitutes you know i mean that's ridiculous saving a police officer come up to someone and just punch him in the face of course there are situations where nobody should use that kind of force but well d close here we disagree that all the police officers test will police officers testified that even under the police officer testimony with respect to warren we have is we have testimony that is arms he was held below the arms of his arms were free and because his arms were free you know he posts some risk to the three officers that were unable to restrain him around him and so the physical the risk that he posed to the other officers merited some kind of force the question really is whether the force that smith exerted was reasonable now when we talk in count three we have an officer anything to to merit the force exercise but he didn't hear him being thrown up he just saw and needed air he didn't know that it was thrown that he was thrown and he didn't know what may have precipitated that force so on his own based on his own perceptions his determination that his opinion that the smith's force was excessive or unreasonable just didn't satisfy  so that i would just go to a full seven a when a again if you know on count two we have three officer officers testifying that smith's force was unreasonable but they didn't even see the punch and they all determined that smith had punched warren based on hearing it from others and actually smith himself saying you know i punched him so in such cases there are opinions that smith in there you're saying is hearsay well we're not sure what so you know it would have been it looked like that their determination that smith had punched warren was based on  just them hearing it from smith or warren so it just it wasn't limited to you know was an opinion that was limited to one that was rationally based on their own perceptions but  that smith's punching a warrant was unreasonable but they didn't see the punch right that did what i thought but i thought your to i thought your argument was not that they didn't that they didn't have a basis to observe this but that they did that they should not have offered expert testimony about whether didn't see the punches well things and they were cross examined on that yes i believe they were a vigorous we in the jury was awful instructed weren't they that they were not to give any greater weight to the testimony of police officers s and so that the jury instruction i was during instruction number thirteen simply says the fact that it witness is a law enforcement officer doesn't mean that their testimony necessarily deserves more or less consideration or greater or less weight but that doesn't address the issue either the seven to one or seventy one c e or the seven one b issue which is on the east on the seven one c issues these people are testifying based on their training and their specialized knowledge that the jury instruction doesn't really address the fact that they are you know testifying based on this specialized training or knowledge and you know the jury instruction doesn't obviate the requirements of rule seven on a i mean by specialize knowledge they taught in police school not to punch people that phase of life so again if you're you know the i don't know what the nature of the police training is that's part of the problem but the but the police training i surmise has a lot to do with with assessment of risk and what kind of forces is is proportionate to that risk again we have to  these here who are noncompliant and so it is very hard to imagine a situation in which punching a person in the phase is inappropriate act it just doesn't seem like a way of know three officers attempting to restrain warren by the hands and they couldn't get him and cuffed then we have one one use of force one punch to the face and immediately he's handcuffed afterwards so you know the exercise of force you know the question is whether it was reasonable and you know it did accomplish the goal of getting him restrained in handcuffs which is what all the officers were trying to do before hand and the eck the exercise the force that the other officers were engaging in wasn't able to accomplish that goal so you know this isn't like the other two forty two cases where we have you know multiple strikes to the head for you know half a person is completely secured in and cuffs in the the holding cell this is where you have objective noncompliance and non completely secured individual who poses some risk to the to the other officers in the case of count two and then in case the count three exactly in that case in new york where they kill a person because they're having difficulty and covering them you know sitting on a mission sitting on his chest a slap i think that does that you know may matter i mean it's seems like a close fist could be could be worse than a slap to the face and and the fear we had officers testifying  without actually seeing the punch itself that you know they just assume that it was a closed fist so that again is just points that will seven a one a shoe these officers were giving an opinion about whether the force was any reason for such a drastic dip in the sentence well i think that's correct i think the district court judge gave plenty of many reasons for while he didn't give you many reasons so one one point is that the district court sentence was in accord with the p s r recommendation to give down the variance and then want a variance from what thirty three that fourteen you know the instructive cases are all involve much more egregious conduct multiple strikes to the head what is the reason for such a dip so again i think that there are multiple reasons one of will surely one reassure one reason is that the district court determined that mr smith was unlikely to be a real offender well why does he say that well there fire and he would never be hired as a police officer and yet i think that was how do we know that i guess of the convictions on excessive force likely to ensure that he doesn't get hired as an officer again  and in terms of you know if there was nothing though in the sentencing judge's order to say that he could not he was prevented during the course of supervised release from becoming a police officer a security guard or anything like that that was in the order was it i don't think so i think it mr smith in a sentencing hearing that he was going to be on a plumber and was not going to be involved in law enforcement again and then the other other point was that you know district court determined that you know mr smith's offenses were a product of his anger management issues and and you know corresponding to that district court ordered that he put in  say what is anger management no the judge didn't say that how does the judge know whether anger management is suitable for a person who seems so out of control is this  doesn't tell us a lot doesn't tie those specific i disagree i'm not sure what more tying is required of the district court set out many of the reasons that support a lower sentence including if you know terry joe smith's involvement in the community the fact these are the work or the fact the nature of the offense conduct itself you know be posing difficulties for law enforcement officers all together so you know you set it out but then you have to say why you're persuaded one way or another in terms of how that affects dissenters so here i think the district court set forth that the offense conduct was in a kind of difficult situation involving fleeing suspects reckless suspects and so i think that the district court description of the offense conduct indicated why a downward variance was warranted let me give you another had already lost his job and reputation but then he also said that those were the consequences of every criminal conviction so that to me that doesn't justify the lenient sentence sure but the but though just a holistic view of all the three five five three a factors i think does justify the variance in particular you know the five instructive cases i think are really useful because they have conduct you know that's just far exceeds whatever right and so the judge said he looked at those other cases he said they were instructive those cases all had higher sentencing but the judge didn't explain that either me said they were instructive but he didn't say how they were instructed so here explain them here i think that you know that the nature of the the descriptions of those cases make clear why they were instructive but i think it's useful to say here also in in in terms of the adequacy of the explanation we are on plain error of you because you know the government had an opportunity to opportunities to you to object to the description of the sentence if it was not court bob would i be half of the government i would just start by saying addressing as he did the seven zero one testimony officers can provide seven to one just one that's based on their experience and training  in response the main one that i'd like to respond to right now is the risk profile risk assessment issue that he brought up this myth brought up and i think that's based on smith's view of the facts which aren't really consistent with the verdict and most of the evidence the officers all the other officers said we had his arms we had his legs this is for warren in particular she was apologizing he was passive he was not aggressive there was no need for any force there's also a little bit of a timing issue on this question of some force was necessary at some time and officers troy and bowler both said yes we needed to use force when warren was in the truck and then we hit him down and then it was good to go and then the new time enters that smith time and that's when no force is necessary at that point they're holding him down and smith punches him a chase and a smack or punch you know what whatever i don't see how training i mean you might have on your first day of training hey everybody just for the record let's not do this kind of thing but i thought about at first i thought oh it he's kind of right it's a non obvious proposition framed in terms such that you only punch someone in a deli pour situation but then i thought one of i ever heard of a police officer punching someone and not getting into trouble for it and so anyway i think that is an obvious proposition maybe not in those strict terms but just going back to the point that experience is fine it's important to distinguish between experience on the one hand and expertise on the other there's not is a point of asking the officers whether this misconduct was  what was the point of it if special training to your position the special training wasn't necessary for their opinion well why did the prosecutor keep asking them about their training right before asking their opinion on whether misconduct was reasonable sure i think first of all i'd separate out two out of the five officers were asked about training so that makes on the premises of your honor's question those two a little more problematic than the end of it and who were those two just the ones that were asked how him and chad were asked how him said he had received training that was relevant to that chad did not chad then proceeded to say in essence i suppose you might punch someone only if you were desperate but that wasn't based on his training it was sort of tangential to his training i guess you might say or common sense and how does the testimony compare with what was given with respect to counts one in four counts one of four the reasonableness questions were basically like they were more like the question asked officer big land it was just there was no training no no reference to training i was no reference to train there and those officers if i remember correctly the training officers weren't on the scenes of the others so i don't think that they could have tied back into their training through that testimony so that was more like the three that you might say even though the government's use they're all acceptable i understand there you can draw a distinction some is more acceptable than other and that's that the training and i think what the prosecution for the prosecutor was trying to get at first of all i think the  prosecutor who was also the prosecutor in the moral and case firmly believes this notion that if you're experienced and you have training in something that is not a matter of expertise at all that it's ok to talk about that like claire says in which the government said it's twenty j letter and so i think maybe the prosecutor was reaching out to the line where where he thought these questions were from permissible and he knew that hallam was the only one who had received such training through drug preparation so he said ask on that question but really i would just say that he equally knew that when he asked chad chad would say i received no such training so equally the point of it was to show that not all officers are trained in this sort of thing that it isn't that even though we have one here who is trained in it it's not necessarily a matter that all officers get trained rather than leaving it to the jury to that seven a one says that the opinions have to be helpful to clearly understanding the witnesses testimony or determining a fact an issue how did the offices testimonies meet that requirement sure and that it was more common common sense certainly would dictate this was not appropriate absolutely well the officers testimony was helpful because they were officers and in this sense they're not experts but they were on the scene and obviously the jury is hearing from these officers and they're thinking well one officer did something quite a bit different than the others and we have varying testimony about whether for example warren was compliant or noncompliant and i think that's the key issue that this is helpful i mean i wouldn't say that a punch to the faces right for noncompliance arrestee but if he was compliant then nothing no no force at all was necessary if he was non compliant or aggressively resisting that this is the factual issue then something was required and had getting the officers because if you look at the way they answer the question why why is it that you say this is this was on reasonable they say to me i just wouldn't punched  i wouldn't punched him because he was just sitting there apologizing i don't think that's the right thing to do but you know stuff like that so so they answered in a very factual way they weren't saying that this isn't reasonable in some ten thousand feet kind of objective way they were saying it was a reasonable and let me explain bit by kind of tying together the facts that i've already given you this big bulky story that i told you because i was there this final question kind of ties that together as to why i responded this way whereas in my view well i mean i was one of this way which i think was the right thing to do and my opinion as an officer who was on the scene is that the way officer smith responded wasn't and it doesn't suddenly legal conclusion kind of thing i understand the impulse to say well they use the word reasonable and standard uses the word reasonable force or obsessive force seems like a legal conclusion kind of testimony leading the jury to a certain answer this isn't like no well where the term used is child pornography i don't know i don't think i have i hope not i've ever used the term child pornography in everyday speech but i probably use the word reasonable excessively and those are just common words and i think that perkins got it right on this question it's a close call because if they had said use the word reasonable ness in a way that was the reflected objective reasonable us that probably would have been a problem but if you look at the way they were asked these questions it was always in the way that answered it was always based on what you saw at the scene and to me i did this i don't know i thought this was inappropriate because he was just sitting there i didn't see mr land do anything at all and suddenly he's up in the air and then he's on the ground and then you know other things happen anyway and so essentially your position is because they didn't sort of say you know these officers were trained in a certain way when we're dealing with individuals who resist arrest and you know in terms of the method we use you know punching someone in the face is not something that's appropriate you try other things they never testified to any of that that's what you're saying sort of i think i don't want to get to kind of find that that was ition but is there anyone well go hit i was going to say and i know you're talking about helpfulness but really quickly i don't want to confine the government's position to that the government's position is that this is not a matter of expertise doesn't matter the nature of the experience of training this is not like drug codewords or how narcotics are manufactured backpackers then you have to draw this court has very reasonably drawn a line between this case and broader experience here we're talking about watch the pace for somebody not doing anything and that's helpful to the jury in this particular case because all the officers were there they all responded in one way and smith responded in another way and smith's contention was that he responded that way because orlando acting lessons so that's a factual question these officers explaining why they didn't do anything helps the jury resolve whether actually existed that that's i think and i think i've covered the helpfulness you you want to say something about the sentence sure i would respond  to his point about what i think here at oral argument and maybe in the briefs smith's main book for an explanation is this likely in a story of the end and anger management issue not only is it unclear i think the just scan of left it to probation to determine the nature of this anger management it's my understanding of the record which obviously there are a lot of cases recently from this court about the problematic nature of that kind of thing but also  a lot of it was conditional and the judge was saying you've got an anger problem and if you address it then things might get better that doesn't sound like a reason for a low sentence to me at all and the judge was also saying you won't be able to do this again because you won't be a police officer you might do it again you just what we've charged under two forty two it'll be a state charge for battery and so i don't see those as reasons i think i don't have anything view north from the government as well as secure should view on smith's objections to the seven to one testimony but there are sort of two kinds of testimony there's the training testimony and there's the reasonable mr story and if you look at united states versus christian the court said if there are these two entirely different types of seven to one slash seven o two testimony and the below the objection was tied only to one type the other one is subject plainer review and there was never an objection to the and again that's what i don't take too stringent of you because the attorney maybe thought that in some fashion it counted as a continuing objection although i stand by what i said that obviously didn't make that clear to anyone but there really were two types of testimony if there's the training type and the reasonable stuff and there was never an objection to talking about the officers training and then as to the plan or a view for the government on the sentence the the judge as you can see from the transcript the judge i'm sure it was just an oversight but he said defendant do you have any objections to what i've said and then the defendant said no and the judge said ok this is the sentence anything else and that anything else that this court has said cunningham and shannon came close to and it is probably the clearest contemplation and pondering of this issue but it didn't go all the way  contemplate that a lawyer has to do that sort of thing so beyond that i think those are the primary zero and i one of the thing i'd like to talk about with seven or just really briefly people smith makes a lot of prosecutors comments a closing and opening emphasizing that these officers are trained experienced first of all that's fine if they were experienced it was a matter of expertise but in cheek and christian and rolland several cases this has rejected the sort of the jurors were overawed by the experience of the officers on this subject kind of argument and i would say that in addition to the fact that i don't see how a prosecutor mentioning closing stressing something or closing renders the district court's decision evidence or decision an abuse of discretion i'd also say that this court has new on numerous occasions rejected the claim that the jurors are overawed just because the prosecutor stressed the experience of officers and i know this kind of out of order but unless there are additional questions do runners up with cable thank you very much and the district court made clear that it's you know it was denying smith's objection at trial when he raised it on the troyer testimony on the seventy one b point i just want to say that you know what  it's you know speaks against me is just directing you know late great witness purposes not to direct the jury on what the legal conclusion to draw from and so we have in the closings argument is here's the big picture ladies and gentlemen of the jury seven police officers have testified that terry smith's use of force was excessive excessive is the term that was used in the jury instructions he was just a directing that the officers testimony you know satisfies that it is enough to satisfy