morning please the court i represent mr brown on his appeal from his conviction for possession of a firearm i want to focus on the district court rulings and the government's aggressive and misleading cross examination in closing arguments which we  contend deprive mr brown of a fair trial the district court allowed the government to persistently badger the main defense witness even allowing it to reopen its cross and badger her more about her failure and the failure of her neighbors to complain to the c c r b or any other authority about the defendant's arrest this line of inquiry was entirely misleading because the witness did not testify to anything that was illegal there was no no basis based on the witnesses report of the event for anyone to complain to the c c rb or any other authority she testified that mr brown was rolling a marijuana joint when the police entered the building and that they went right him and put him in handcuffs for the marijuana and only after that did they find a gun in a plastic bag and when they took mr brown away they took him away and the gun as well and the marijuana now the defense witness certainly crop contradicted the police testimony at trial that the police had found the gun in mr brown's waistband but the police said nothing on the scene to suggest that they would later say that they found in his waistband the witness testify clearly when pressed repeatedly on this by the prosecutor they didn't say that they only said look what we found and took the gun along with mr brown so based on her testimony there was no reason for anyone to report anything there was no illegal conduct by the police as far as anyone at the scene could tell you that the witness or her neighbors it was a legal arrest for possession of marijuana in public view and illegal confiscation of a gun found near by the government please correct me if the government asked sort of as a prelude to inquiring about whether acknowledged she was he said not really she said no not really i think at least twice said no and then finally the rd time said kind to kind of upset like she would be upset about any anybody being arrested but the when the when the when the when when the government came back on its reopening of cross they asked her again multiple times so you said you were upset you said you were upset and she said and the defense counsel kept objecting that the government was distorting the testimony but the defense objections were just continually overruled and there was no not even any legitimate basis for this reopening of cross examination it was all just based on this pretextual argument that some statements had been turned over and there were no  before i'm not sure when she was disclosed but her name was her name was given at least the day before that with the that was the representation that was made on the record maybe two days before and other information about her wasn't available i think the defense counsel didn't have it available and there were no state right but there were no statements there were not there were no notes of there were no witness statements and the government doesn't even contend on appeal that that that these notes that pages of notes that were turned over on the spot when the defense counsel when they were demanded by the government she turned them over right away and they included and then in the appendix a couple of phone numbers maybe three phone numbers a note about getting pizza and getting a subpoena and a reference to jose or some other witness no statements nothing that could ever be termed as a rule twenty six statement nevertheless they were allowed to reopen cross which had been closed that the government had said no for the questions and then the nd assistant who apparently was unhappy with the cross demanded the notes and asked to reopen there was an definitely an objection to the reopening multiple objections there was there was a whole  the law that this these were not what misstatements there was no basis for this nonetheless the government was allowed to reopen and they really went to town on the witness and really badgered her repeatedly on why nobody called the c c r b objection after objection and then it was even worse part of the error here was that in summation the government then distorted the witness's testimony multiple times and particularly in rebuttal to to be that which it had tried to get her to say which she never said it claimed repeatedly that she testified that she saw an innocent man get arrested for something he did not do that she quote saw an innocent man dragged away for something he didn't do that he was quote put in handcuffs and dragged away in front of two dozen people for a crime he did not commit and that no one reported it or said anything that multiple jackson's were overruled and finally despite the witness's testimony that the police arrested and handcuff mr brown for the marijuana before they found the gun in her specific denial that the police ever said they would pretend the gun came from mr brown the government asked the jury finally its final pitch on this issue in summation was you use your common sense and ask what would happen if the police quote arrested someone for something you can see they did not do if they pulled a gun out of a bag and then said arrest this guy for this it's his just after walking in don't you think someone would say something that never happened according to this witness's testimony it was a gross and blatant distortion of her testimony and so that's just classic prosecutorial summation misconduct all of this was objected to the reopening of crossed the persistent misleading badgering of the failure to report and the distortion of the testimony and summation all the objections were overruled therefore in a reprint forcing in the jury's mind that this was legitimate and address omissions at all and our entire argument is based on the fact that you can commit this crime in new york this crime could be committed by and by omission it doesn't require an affirmative act thompson was a pro se case was argued pro  se probably apparently didn't raise the issue it was certainly not a not addressed the issue of omissions in this court has held that questions neither brought to the attention of the court ruled upon or not considered as having been decided so as to constitute precedent so this issue of the omission is pending right now in a case that's been argued before another panel and united states versus scott and that's eighteen dash one hundred and sixty three it's been pending since th and it directly presents the the omissions argument is that case also involved one hundred and twenty five paragraph one no it involves manslaughter which involves the same elements except causing death so it's this it's the same argument thanks for your thank you i reserved two minutes essentially decides the issue in this case and the government's belief is that yes it does the holding is clear it is squarely on point defense counsel is correct that the argument was not made with respect to omissions in the briefing in the thompson case but under the court's precedent the holding is nonetheless binding that being said the court would reach the same decision if it had considered the briefing in this case it is clear that o missions where in this particular context with the elements of this particular crime also would constitute a crime violence in our mission in this particular context not turn to the elements of this crime in a moment constitute the use if a defendant is purposely availing himself or herself of force even if that person is not the impetus for the force now the elements of this crime are three and the crime i'm talking about of course is one hundred and twenty dollars subsection one which makes it a crime with intent to cause serious physical injury to another person he causes such injury to such person or to a rd person i just want to pause before i get to the elements to know that the scott case involving manslaughter does not involve the same element involve an intent to cause that type of injury that's why it's manslaughter not murder three elements here st voluntary act or with the defense focuses on an omission which under new york law is the failure to perform an act as to which a duty of performance is imposed by a law that the defendant is physically capable of performing the nd is that the actual mission must be because of the serious physical injury meaning that it must actually contribute to the resulting injury as he quote sufficiently direct cause such that the ultimate harm should have been reasonably forseeable and rd the defendant has to have intended to cause serious physical injury i'm sure your honour's looked at the definition of serious physical injury but i want to remind the court that it's physical injury which creates a substantial risk of death or which causes death or serious and protected disfigurement to track that impairment of health or protected loss or impairment of the function of any bodily or again this is not a minor injury this is not an accident that has occurred there is intent to cause serious physical injury and the has the act has to be taken with intent to do that physical injury to another person in the hypotheticals that are floated by defense counsel and briefing in other similar cases those hypotheticals are in some cases crimes that were that were found to be committed in other cases that have been upheld by the new york  appeals or other new york words that involve emissions do you do it involve the use of physical force use here is merely the purposeful of the element does not mean that the individual has to punch someone in the face or stab them in the stomach indeed in castlemaine and this court and bill and wave they address these kind of outlier examples of sprinkling poison and in doing the wave this court even acknowledges that if one were to take the defense argument to its logical conclusion one pulling a trigger on a gun which is a very minimal literal physical use of force by one's finger is not the  that that directly causes one to be killed it's the bullet that that has that causation and certainly there's no disagreement that shooting someone is found is essentially the same inquiry and the elements are very similar but not identical but the important thing for this court in applying the law in a waiver is that it looks at castleman and says our analysis in light  physical act of initiating an action that leads to a consequence it's not the physical act fine individual that is the use of force it's the a veil ment of the use of force and when i was getting to that is an added factor that accrues to that's that huge benefit in this analysis when looking at a crime of violence but that need not be present and that case did not turn on whether a dangerous instrument was used it cannot be that one can use if one uses to cause intentional injury intentionally with an intentional act that they use a dangerous instrument then it is a crime of violence but if one uses something that is not in the statutory category of a dangerous instrument for example a car to run someone over if the core is not within the definition of a dangerous instrument then that takes it out of the definition that cannot be the distinction that makes a difference here well it does relate to the issue of the commission under new york law do you think fanciful or speculative that a person can violate one hundred and twenty five subsection one by circumstance to deny someone medical care where you all a legal duty or to done i someone nutrition where in a legal duty is owed for example in a parent child relationship one is availing themselves of the force of the disease in the medical context that knowing that the disease is ravishing one's body by not seeking medical care only here where there is it would be where there is a duty imposed by law to seek that and and with the intent to cause physical injury to that person and with the intent to sorry and actually causing such serious physical injury to that person it is not the case where a parent denies their child medical care and then they simply that's automatically a crime of violence there are other elements here that must be met and that's why it's a crime of violence if it was negligence it's not a crime  the case was clear on that the reason that type of omission could be a crime of violence is the other elements in this case and if you'll permit i'll turn briefly to address the trial issue unless your honor has additional quite not thank you ms defense counsel raised the issue of philip's testimony at trial and one thing i wanted to with respect to judge hall's question is that the name of that witness and every other defense witness that was listed in there were many on the list even though were called was the day before trial and the government repeatedly asked defense counsel for more information about those individuals and was told they simply didn't have any they didn't have addresses they didn't have phone numbers they had nothing that they were either willing or able to share with us and we made a record on that in front of the district court and it wasn't until the judge ordered them to that they provided us some very basic information about some of the witnesses one of whom we were only given a nickname jimbo and i was the other witness that testified at the trial we weren't even given a legal name it was attempted trial by surprise and the district court didn't appreciate it and neither did the government so after being told that there was no information available and that no notes have been taken in both the district court and then a full record had been made on this the district court and the government were shocked when the defense when that if the offense witness attorney believes that something is either protected by work product or privilege or not substantive such that it should be released and the defense counsel did not take advantage of that of that at all  phone numbers that were jotted down on a piece of paper were in by no stretch of anyone's imagination could possibly constitute twenty six point two witness statements so yes defense counsel represented that they had no three thousand five hundred material for the witness because they did not they were in fact the numbers do not even clear that witnesses phone number as it turned out there were other people's phone numbers and they were simply investigative notes the witness testified that no notes were taken any meetings that there were notes taken at the st introductory meet the st time she met the lawyer and they were basically just notes about being there and interviewing and saying we have to get a subpoena to myself i need to get a subpoena that kind of thing so there's no question that that anything that these should not have been turned over never it never should have been turned over were not required to be turned over so that was just a pretext to reopen the cross because one of the lawyers was unhappy with the lack of aggressiveness of the  bill and we have a did not address the same statute it was a statute with a different element use of a deadly weapon is not controlling at all of this case neither castleman felon waiver nor thompson discussed omissions at all and it is clear that in new york state unlike many states it's not the case everywhere but it's a bit unusual that in new york you can commit manslaughter st degree manslaughter which are the same elements except death results it's with intent to commit serious physical injury it's the same the government's argument is basically that just having the intent is the force and if that were true that would be the same with manslaughter they are arguing that manslaughter is also a crime of violence but that that that that argument emissions argument is is is pending right now before another panel and they will decide it and that that would that would control this case that would be controlling it in this case whether the question whether  crimes by simply by doing nothing by taking no action by omission is a is a totally different argument