first will be whether or not one eleven constitutes a crime of violence conviction under one eleven specifically the purported brady violation that we allege i will not be addressing and submit to submit on the briefs the sleeping juror the eighth amendment in this case so there's two with respect to the first issue the crime of violence there's two rather complex statutes first statute we have is nine twenty four see that provides three different levels of possessed brandished or actually destroyed so in my my client's case he was convicted under the the second the second portion of the brandishing a firearm with respect to one thousand four seat this you now turns then to the underlying predicate offense one eleven b sometimes referred to as the federal aggravated assault statute but as the court i'm sure is where there are many many other issues or many many other types of offense that are covered by that statute not just assault just as an example mere interference or impeding law enforcement would constitute a violation of one eleven one of the eleven in turn has three ways to violate that statu and those are under a sub a one there is a misdemeanor provision which is essentially if you will misdemeanor assault or just merely impeding or interfering or obstructing law enforcement of federal law enforcement in the exercise of their duties there is a second prong there under a two which doesn't apply in this case where there is actual physical contact a violation of just one eleven a one in and of itself is simply a misdemeanor a violation of a two however is a seven or eight year felony now there is a third provision under one eleven one eleven b which i would call a super felony if you will if you buy a late or the eight year felony turns into a twenty year felony so the issue here my client was convicted under one eleven a one the misdemeanor and b b was the advancement or that it turned the misdemeanor into a felony because a gun was present just a gun is present or that it was using it was using excuse me yes it was using a gun during the commission of the offense so now the issue is specifically if it if a defendant is convicted under the mr mueller prong under a one and used a gun during the commission of that mr peter obviously it clearly it clear it clearly constitutes a felony under one eleven b that's not the issue we can see that this issue now is whether that conduct as specified by one eleven a one and b constitute a crime of violence for one twenty c purposes but is it not true that one eleven a provides whoever forcibly assaults resists the presses intimidates am i right that the word forcibly is in that language in one eleven a that your client was convicted that is correct forcibly assaults but i do not read the statute and i do not believe the government argues it either that forcibly can be applied to all those different iterations of the statute in other words one need not to violate one eleven and one forcibly interfere or impede when you only interfere or peed the forcibly think what we're simply modifies only the first word assault correct your honor support do you have for that this is what we're we don't make that argument the government doesn't make that argument that's not that's not an issue that we address in our briefs but just plain language of grammar i would say argue that that forcibly assaults forcibly only modifies the the first assault privilege this is we can't look at the word forcibly in one eleven and i'm and so my question is what what basis do you have for now constitute categorically a crime of violence for ny twenty four c purposes and what we argue is that it does not in the reason being is that one can engage in one eleven a one slash b conduct with out engaging in violent physical force that's what constitutes a crime of violence for one twenty four c purposes it must be violent the use or threat violent physical force so if i have standing at my doorway refusing to allow law enforcement to come in certainly impeding and i have a gun in my hand as my client did does that constitute violent physical force and we submit that it does not get can you give me the cases that most clearly support your position i would point the court to this court's of violence when committed with a deadly weapon the court goes on in reading him and then does the state that the underlying crime must already have as an element some degree of or the threat of physical force so we go back to what the underlying offense was an underlying offense was one of levon a one slash b which in turn the underlying offense to that was really a one my client committed a misdemeanor and then we get back on the one to whether the word forcibly applies because if your reading is wrong i forcibly applies to all the others then wouldn't this constitute a crime of violence i do not believe so your honor let's assume for a minute that forcibly does let's concede that for argument  physical force forcibly could just be against standing there refusing to move or resisting the movement again resisting is also another problem under one eleven so forcibly resisting does that necessarily connote violent physical force i submit it does not and the government certainly has not argued that nor am i aware of any case law in the government does the actually to excuse the strike the district court specifically made a finding and the defendant in that case specifically was held liable for physical contact so in the issue clearly there was a fight violent physical force was there because that was alleged in the indictment and that is what the defendant was found guilty of that is not the case here the government readily concedes that there was no evidence my client was never charged with nor was convicted of actually touching ok turning to the next issue this is the brady issue and i believe this is most remain to the appeal as as we know in our in our briefs defense counsel in the senate were not aware of this thing called a pharaoh's scan until about three quarters of the way through the government's trial the that pharaoh scam was not actually disclosed to counsel and the defendant until several several weeks after trial hopefully the court with a reference to it nine of them documents yes there were there wasn't fact a reference to it it was buried within the discovery that there was no explanation for even what a pharaoh scan was a fair risk and is not like saying a d n a test or a blood test a ferro scan is actually a brand name for a three dimensional laser scanning device and what what exactly a faro scan is it is about as high as this podium here that's a little computer about the size of a desktop computer that sits on a pole and it swings around in three dimensions in a crime scene taking millions of data measurements to recreate a three dimensional environment for purposes of determining gun trigger pull a trajectory is that now you can as a prosecutor perhaps a defense attorney use at trial to show different perspectives where people were standing where the bullets went where the gun was being held and where other people were involved where other people were at the time of the apprentice the mirror the bear reference as we argue in our in our opening brief the bell reference does not constitute natural disclosure especially here where the government is contending look the ferrous can't just neutral evidence it's just a three dimensional rendering of two dimensional photographs well here the government as it usually does disclose the two dimensional photographs of the actual photos to us we did not need to guess what these photos are we were provided those electronically there is no reason why the government cannot also provide this fair scan and at least identify what it was we were left to guess in the context of weight with the way it was disclosed it simply appeared to have something to do either with a simple measurement perhaps a number that wasn't even clear or something to do with the client's background criminal background check and i see i'm just about out of time also submit on the briefs with respect to the eighth amendment issue as well thank you nine of some document right there was in the mentioned very briefly right it was in a three ring binder about that big and it was within the b c i reports and i mentioned that d c i had conducted a f skin is actually a fairly new as a district court noted it's a fairly new tool that law enforcement uses but it doesn't show in this case it's it's it doesn't show all it shows is a three dimensional computer generated image of of the house on the front porch it doesn't show this isn't the only law enforcement right i mean there are other people have the technology yes yes so it's something a defendant once he knows that you could either ists for whatever you have or could actually hire someone to do it yes and it was made available and it was made available for was a service perspire to one of the post trial motions for new trial did you did you attach the i mean obviously the court would normally have your exchanges of discovery so did you is it in the record that you made that a valuable i believe as an attachment are forty six is an e mail  that when you're saying are forty six you're referring to the record in the district court just page idea i think seven ninety two or seventy three there's an e mail that discusses and what if the documentary number are forty six i believe but that's at the motion for a new trial disclosed for months before trial but that's where the it's only on this one reference in this one document and as you called it in the three ring binder yes ok so you know i'm be followed by referring to something that's produced after a trial is saying that that complies with brady attached to that attack was an e mail was an e mail that was sent four months ago with a supplemental discovery packet i believe and the e mail you're saying refers specifically to find an e mail text to documentary forty six camps are maybe i'm giving you the wrong not i have to double check well let's see forty six is the united states response to the mo and i look at my wonder if you want to supplement with some thing after ok argument that would be fine but let me just tell you what my concern is my concern is the argument that your opponent is making that there's some brief reference to a fairer scan in some documents and as opposed to more fulsome divulging of theirs as would be the fit the u s government in a criminal case to show all the things that the u s government has looked at that relate to the innocence or guilt of the defendant so how would you respond to that the government the first game itself is not evidence it shows if anything it could maybe show is a bullet trajectories of the duct of burra naro firing his weapon it doesn't show where anyone was standing it doesn't show whether mr feeding pointed his weapon or brandished his weapon which is what he 's charged with here it doesn't contain any conclusions it doesn't do really anything other than a three d scan with measurements the government didn't intend to use that a trial didn't feel that it was even necessarily helpful if there was a piece of documentary evidence that did not use a trial because for those reasons it really had very little evidence or value as to what mr rashid he was charged with which was brandishing a weapon a federal agents rankin as far as the procedure was concerned the district in which i asked for it was quite common for the discovery to be provided to the defendant without any explanatory material is that your practice is well in many cases that is it's up to the defendant at that point to look through discovery and see if there's anything there and sometimes the discovery is only we will make a roomful of documents available to you if it's a heavy document yes and you can be available during these hours for your reviews that and that's an accepted practice yes it was this wasn't the case and so was the fairer skin made available to this if they wanted to before trial but they had to they had to but they had to ask for it wasn't that the government saying here you might want to look at this it we didn't feel it was it was it was that valuable piece of evidence and we still don't feel it was a valuable piece of evidence not to mention mr phoebe hired a private investigator who went out took measurements create a reenactment video all this information was presented to the jury through mr rashid his private investigator the reenactment video and his report there's nothing in that pharaoh scan that could have been favorable or more favorable to mr feeney that was already presented and you address the crime of violence  what the government need to prove in this case was mr peters charges one eleven a one and b a one and i don't i don't agree with the contention that forcibly only applies to assault is there any case that you found on that topic this parole which it was the fourth circuit case which doesn't really address whether forcibly applies to each individual statutory construction you rarely see where it would be forcibly assaulted forcibly resisted forcibly opposed forcibly impeded forcibly intimidated or forcibly interfered with  federal officer it's the government's contention that forcibly applies to all those those elements doesn't at eleven what eleven as a sort of loses its significance in this case doesn't it because of the way the indictment is worded it because with wants the gun isn't a ten because the way you charged it was the valet both  conduct and they want to get to get to be i mean ok i didn't understand then the argument made with your adversary about the structure of a one a i think i missed a point ok well i think our position is what we had to prove in this case was either forcibly assaulted resisted in one of the us with a dangerous using a dangerous or deadly weapon acts described in subsection a right uses a deadly or dangerous weapon so we have to come within some part yes and no and yes i keep looking back at this statute to try to understand it so so then we get to a one because it's definitely not a two so we're in a one was there forcibly assault and then there's the comma resists opposes impedes and so there's the textual argument is forcibly applied to each of those assuming on the one hand that forcibly does apply to each word then is that enough the combination of that reading of a one plus b is that enough to make this a i'm not familiar with three men does so i'm not i'm not going to say you know sit here and and pretend i am or try to make an argument right out of case i'd don't know the whole thing  that the use of a dangerous weapon i'm jim i know i probably am sure i did you know right i'm sorry just right now i just so so the question you know without knowing about the case then how how do we know this is a crime of violence in the other we are using this categor that the supreme court has told us to use and do we are we saying then that forcibly assaults resists opposes this has to be a crime of violence if you use a deadly weapon partially and it's not really a categorical approach case in the sense of johnson we're not dealing with a prior conviction we're not dealing we're dealing with an actual conduct in this case the trial the jury heard evidence about what he what mr murphy did the jury heard evidence the that was instructed on it was the six circuit so you don't use a categorical approach in that context i'm not no but the categorical approach historically applies to a prior conviction and i understand that but courts are no applying it to real world events before during and the nine twenty who are see right in under nine twenty four see i think the argument can be made that in this case you know we're not talking about how the crime is normally committed we're not talking about what we still take in the elements approach don't we yes and i think we have two cases evans versus  a recent case tailor that apparently maybe wrongly but apparently applied the categorical approach to deciding whether something is a crime of violence and or nine twenty four c three taylor did actually find that found that they actually actually residual clause nine twenty four c three b and that was that did a pretty lengthy analysis of the difference between the residual clause and i'm her criminal and under nine twenty four and if on the ark or criminal it's more broad and involve more things and nine years worth of litigation in the supreme court and so could you give us your elevator speech  why why this is a crime of violence using the categorical approach because the elements are force he was charged with force right there physical force and use of a deadly weapon statute requires physical force against the person yes that force of the forcibly assaulted or impeded or brought you know all the other elements and and also use of a deadly use of a deadly weapon  what makes forcibly physical force well i think reading that income in conjunction with using a deadly weapon so what would be your best case to support your view probably the fact that some courts are found that just one eleven a one alleged by itself is a crime of violence the fourth circuit has found that and with the use  whatever tyler's implications are and i pulled it right before coming in here and been trying to read closely the part that goes to arguably  what sixth circuit case prior to tyler says we use a categorical approach to nine twenty four c violations i would describe it as an approach that couples you know the giving of a crime a valance instruction to the jury with the jury's ability to consider the facts of a particular case to you where that is fine you can talks about how it's three separate offenses but it doesn't really it doesn't really go into categorical i mean isn't that categorical really only kind of applies here by analogy but i don't think judge i don't believe judge rogers uses that word does he i mean and taylor no i don't believe he does i don't believe they go t offense or how the crime is normally committed we're looking at this case it's the use of the gun was waving it around or pointing at the gun wasn't shot the gun wasn't used to hit somebody the gun didn't touch anybody  technology we have attached a declaration from an expert that we retained to our reply brief and there he states how difficult it is to get this technology these these machines cost about sixty five thousand dollars and there are only so i do not have recollection of any particular e mail but just in that regard i would just note to the court that the prosecutors in this case try to evaluate the pharoah scan data themselves a few weeks prior to trial and were an able to because they did not have the requisite software so i would suggest even if counsel had gone to the beat the b and this court states that the supreme court's rejection of the idea that the prisoner still has the burden to discover the evidence is based in part on the fact that the prosecution has the advantage of a large staff of investigators prosecutors and grand jurors as well as new technology such as wire taps of cell phones that is one of the reasons that these investigators must assist the defendant who normally locks the system they may wrongfully loses liberty for years if the information they uncover remains undisclosed so again just a mere mention of something called the farrow scan does not suffice for disclosure especially when there was no indication that we would have been able to use it or read it or open it up the government had that problem few weeks before trial and finally as we also as we also note the government hadn't of duty to evaluate it was the government's responsibility to evaluate this evidence that they created but yet they let it go on evaluated and at the very purpose of these para scans are to do bullet trajectory analyses the whole point our argument is if we had this then we'd have been able to show the jury that the government's theory that my client the side of the door and waved his gun would have been impossible without him having been shot four times the mere fact that he was not shot shows that there was a mistake at least we could have lose that does it show that he wasn't standing in the spot where they said he was standing is that what it's no it what what the fair skinned is able to do is you can put people in locations they say they wore and now have the bullet trajectory is the objective lee measured bullet trajectory to show th argument was is that he's here's the threshold of his house and he's walking outside according to the government he steps down this way and slides to the left there were four bullet holes in the door frame right on the other side of him and all the testimony was that as soon as he stepped out one of the officers opened fire america is testament originally that they thought that he had discharged his firearms but he never did i'm not able to position and show different scenarios about what may have happened where the officers were or use it to impeach the officers so officer board narrow you were standing where exactly now we can move