may please the court my name is mark weisman of the firm hertzfeld and reuben i'm counsel for the plaintiff appellant joseph barone for some eighteen years prior to the events leading up to this action barone faithfully served as a confidential informant for the f b i in connection with the new york area organized crime investigations and it's undisputed in this case that mr braun was an extremely reliable and trust productive source for the f b i during that long period and it's further undisputed that mr barone perform this service for the united states at great risk to his personal safety and for minimal compensation from the united states it's not the question of course service that the f b i specifically authorized him to engage in certain criminal activity for the purpose of maintaining his credibility among organized crime associates and ultimately of course to be able to use that credibility actionable information for the f b i and he did in fact do that did he tell cooks that the that the murder in question was to be committed in january twentieth and he was recorded i think the answer to that is yes he was recorded saying he was indeed arrested on january ninth right yeah he was arrested on a friday a friday after a recorded call with with mr cox and what exactly if it's a matter of record or appropriately force what exactly was he planning to tell the f b i about the conspiracy i'm sorry what exactly was he planning to tell the f b i about this conspiracy  my client testified at the that is criminal trial that there was no conspiracy that the entire conversation with mr cooke's as well as with these desperately issues among other things was a fair probable cause it's right that even apart from the grand jury indictment which you challenge in any other number of ways isn't there plenty of probable cause i'm not you know your client was ultimately acquitted but isn't there a plenty of evidence of probable cause that your client was doing something because of which he could be indicted interest so your honor the probable cause here for the arrest is based on we can generously say a existence circumstances that these if we credit the f b i as story that they arrested mr barone after recording him on a phone call saying some very gruesome things but once they arrested him and got him back to the station and began to look at their files that what they should have realized is that he is an informant that he regularly was an active he's an informant doesn't give him a license to do everything and it was plenty of evidence that he was doing things beyond what an informant should do now i'm not saying he was guilty he was acquitted but it wasn't clear enough so that all the things that you are meets your soup now complaining it's not a question of were conviction stands or something of it's ork question is whether answer to that is not easy but the quick answer to that question is that there's there's a an f b i report called a form three o two in this case where it shows that mr braun reported on the exact same plot nine years earlier now the and that that report was never produced to the to the prosecution in this case and that at a minimum it raises a question of fact as to whether the f was aware of facts that that would have defeated or negated a probable cause after his arrest and then the second thing of course your honor is why just the fact that he reported on something earlier and was not involved or was behaving properly on that earlier get rid of probable cause just probable cause for arrest later when there is evidence that he wasn't reporting this  suggestion that he was not behaving as he should have know he gets acquitted of it but why does the fact that earlier he was behaving as he should've means that you can at don't have any probable cause for doing what you did no that there was not probable cause and they had a duty to examine the meaning of that if there basis for and one of the thing i'm sorry i just forgot that that in addition to that form three o two there was also years of formal f b i authorization to engage in what they call criminal conversations about various things so there was more than just the one piece of paper in there there was a substantial record of this informant my client leonti of evidence evidence on the basis of which a prosecutor could go on and say there is probable cause of a violation here whatever but that's my question and my answer to the question is that that should be a question of fact for the fact finder at trial because there is sufficient evidence that there is an absence of a absence of probable cause there is evidence that that exculpatory evidence was withheld from the grand jury was only produced on the eve of trial these with respect to that that form a three o two and that that the district court gave too much weight to  the defendant's contention that he wasn't authorized if if this court looked at the evidence and concludes that he was authorized then everything else thought the entire basis for for probable cause falls apart because he's in what he was authorized meaning if if if defendant's conceded that he was authorized on the day he was arrested and then proceeded to prosecute him i think the court would have no problem saying there was no probable cause so it really comes down to whether whether he was authorized or not that you reserve court my name is rebecca to neo and i represent the defendants in this case the district court correctly determined that there is no genuine issue of material fact as to mr brown's claims relating to his prosecution and detention and also that his negligence claim was barred by the discretionary function exception this is the third time that mr barone has asked this court to examine the facts and circumstances relating to his prosecution for murder for hire most recently this court rejected mr brown's post trial hyde amendment claim holding that the claim could not succeed where the government had solid evidence of mr brown's guilt and there was no evidence of significant dishonest or abusive conduct by the government the court should reject mr brown's latest claims as well i'll start by quickly pivoting to two specific points that my adversary brought up to this panel  first my adversary brought up the stew thousand form three o two about a previous murder for hire plot that mr braun reported to his f b i handler and my adversary said that that was the exact same plot th he reported i'm sorry he didn't report that the f b i discovered in two thousand and nine and he also said that that for three or two was somehow buried in only produced on the eve of trial and both of those contentions are not supported by the record  it is only in one document mister post talks self serving affidavit that he filed in opposition to the government's summary motion in this case where mr brown said i now know that that was the same  plot there is absolutely no evidence otherwise there's also absolutely no evidence at this form three o two relating to the two thousand plot was hidden buried withheld no evidence of that at all it was produced as thirty five hundred material far before the government had to do that in advance of mr brown's trial and the line a usa who had mr brown's criminal case in early two thousand and nine said that he could have access that file it was available to him he sure he was sure he could have access to it  and more importantly i believe as your honor raised that form two thousand and three form three zero two and two thousand in no way shows that mr barone was authorized to do what he did in this case to do what he was charged with contacting a third party criminal completely unknown to the f b i giving that criminal money victim information instructing that third party criminal to surveil the victim's house discussing that the crime should be carried out as a home invasion brown testified at his criminal trial that in december of two thousand and eight which was six months after he had first discussed this insurance plot with the twenty year old called mr brown and said hey you know this insurance policy that i took out in the victim it's go be up soon it's going to be up in february two thousand and nine and one of the recorded conversations it's in the record between mr brown and mr cooke's shows mr brown saying to mr cook's this policy is going to come due next month we've got to get this thing done if we don't get this thing done in the next few weeks that's it no one's going to get paid also mr brown conveyed that urgency to mr cooke's during the recorded call the other piece of record evidence that my adversary pointed to were the numerous pieces of paperwork in  that were also produced as three of one hundred material showing that he was authorized at points by the f b i to conduct criminal conversations and as your honor said there is plenty of evidence showing that at least for periods of time he was authorized to do that but those authorisation authorizations but the notion that he was allowed to do what he did in this case and what he was charged with those authorizations say he could not initiate or instigate a plan to commit a crime which he did here was authorization say that he had to report promptly to his handler when he learned of criminal activity especially violence he did not do that here he initiated an instigated a plan with a third party criminal wholly unknown  hearing i would say you know there is first of all he was given these types of instructions and ammunitions a lot numerous times for a period of six years he got them every three months for a period of about fifteen years he was given them every year we also know that he signed his code name to a lot of these forms we have his handlers deposition testimony explaining how he would go through these things and in fact we even have mr brown's own affidavit where he says you know yeah there was some paperwork i knew generally there were some things i wasn't supposed to do i knew that i shouldn't commit violence or you know commit a theft but i was allowed to do in fact as my adversary said quote unquote certain criminal activity he's he's very very good about this but he himself acknowledges that he knew that he wasn't supposed to actually commit crimes and that's really not in dispute and again he's conceded that he never told the f b i a thing about this murder for plot that he was planning between the summer of two thousand and eight until was apprehended in january two thousand and nine we're happy i think to rely and in large part on our priest at this point as we say in our briefs in fact there's a presumption of probable cause in this case because there is an indictment but the district court also found that there was actual probable cause for the prosecution which is a complete defense and mr brown does not actually even address the other elements in his opening brief we argue that the other elements also there's they're not tribal fact initiation continuation of the prosecution or malice the very same body of evidence also shows that the agents here certainly had qualified immunity for their conduct in this case there was absolutely no evidence of punitive intent that mr brown should be in the special housing unit that was not a decision that our agents or even involved in there was absolutely no evidence to meet the very high standard for intentional motion of infliction of emotional opinion an order he apparently was acting pursuant to an agreement that he could handle the whole case before that you had you given us the benefit of pinions by judge kaplan and magi distress claim that claim did not go through summary judgment to judge pac and so in judge dollars opinion on that point or rather his are in our that's where he lays out his discretionary function analysis and in judge kaplan subsequent opinion he about raising some money let me see if you can see what you can do in other words this whole initiated or these these are conversations you can character i think thing as initiated this is what he was doing for eighteen years was having ugly conversations with organized crime figures and that's what he was doing on the day he was arrested with respect to the contention that we can rely on an affidavit filed by the plaintiff in this case i mean testimony in that case they had every opportunity to depose him and and and challenge anything he said but he does confirm the former three o two itself contains the same cast of characters involves a what they say is a guy in connecticut which is the ultimately the intended victim of the suppose a plot later involves mr pearl are oh my clients testify that it was over insurance and there's a is more detail about that because it's the the conversations were coming up in the context of an employee who passed away of natural causes sowers and not just a made up after the fact explanation is exactly what happened it was the same a lot just